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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION NO.3388 OF 2008

IN

TRUST PETITION NO.6 OF 2008

SANJAY KILACHAND

..PETITIONER

VS.

MR. SURESH TULSIDAS KILACHAND

..RESPONDENT

Mr. Simil Purohit with Lata Bachani i/b I.R.JOSHI & Co.

for Petitioner

Mr.E.P.Bharucha with Ms. Soma Mitra i/b Desai & Desai for

the Respondent

CORAM: SMT ROSHAN DALVI, J.

DATED: 13^th February, 2009

P.C.:

1.This Trust Petition is filed in respect of the property settled

upon trust under the Will of Tulsidas Kilachand, the father

of the parties. Under clause 14(b) of the said Will the

Respondent has been given a life interest in the net income

of the trust property. The trust property is the residential

house of the settlor.

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2.The wife and children of the Respondent are given a corpus

of the said trust property.

3.Consequently during the life time of the Respondent, the

Respondent is entitled to receive any income, if any, that is

derived from the trust property. There is no income derived

from the trust property.

4.The Respondent has sought to create rights in favour of a

third party under the Memorandum of Understanding (MOU)

dated 31.07.2008. Hence this Notice of Motion is taken out

for an injunction against the Respondent from in any

manner dealing with, disposing off, selling, alienating or

creating third party rights in the suit property or entering

into any Agreement for sale or development or otherwise.

5.In paragraph 3 of his Affidavit in reply the Respondent states

that he has “potential life interest in the net income arising

from the proceeds of any sale” of the suit property. The

statement is entirely misconceived. The Respondent only has

a life interest in the net income of the property. He cannot

have a life interest in the income upon the sale of the suit

property. No income is derived upon sale of any property.

Only sale price is obtained by the Vendors of a property. The

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Respondent cannot sell the suit property in view of his

limited interest. The corpus belongs entirely and only to the

wife and children of the Respondent under clause 14(b) of

the said Will. It is upon the death of the Respondent that his

wife and children would be entitled to the suit property.

6.The Respondent claims to derive the value of his life interst

by the creation of a right in favour of a third party under the

MOU dated 31.07.2008 executed by him with such party.

7.The MOU dated 31.07.2008 is executed by the Respondent

in favour of Om Builders Pvt Ltd. And Orbit Abode Private

Limited, referred to therein as Purchasers and who are the

builders and developers of immoveable properties. The recital

I of the MOU shows that the Purchasers are desirous of

“acquiring” the suit property. The consideration payable to

the Respondent upon such acquisition is agreed at Rs.11

crores. The Consideration is payable upon the Respondent

agreeing to unconditionally and irrevocably release,

relinquish, renounce and surrender his life interest in the

income to be generated out of the said property. The income

is sought to be generated upon, what the Respondent

contends, surrender of his interest. The Respondent has

sought to dissolve the trust to facilitate the sale of the suit

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property, as per clause (1) of the MOU. Under clause 3(a) of

the MOU the Respondent has represented to the Purchasers

that he is entitled to the income to be generated out of the

trust property. Under clause 3(d) & (e) of the MOU He has

further represented to the purchasers that he has not

entered into any negotiations or agreement concerning his

life interest or created any third party interest or

encumbered his life interest. Under clause (6) of the MOU,

the purchasers would be entitled to specific performance of

the MOU and to claim the expenses incurred by them from

the Respondent. The purchasers are to have first charge over

the life interest of the Respondent with i