Oral Judgment:
1. This is a Suit for partition. The Plaintiff is the sister of the 1st Defendant and the 2nd Defendant. Partition is sought Flat No. 74 in Ashoka Apartments, Rungta Lane, 68, Nepean Sea Road, Mumbai â 400 006, as also Garage No. 20. The flat, situated in a upmarket residential locality, is about 1,380 square feet.
2. The principal dispute relates to the interpretation of two clauses of the Will of one Rochiram P. Asrani, the father of the Plaintiff and Defendants Nos. 1 and 2. Briefly stated, the Plaintiffs case is that the flat in question was given absolutely to the Plaintiff and her two siblings, Defendants Nos. 1 and 2 in distinctly specified proportions: the 1st Defendant was to get a 40% undivided share, right, title and interest in the flat and the Plaintiff and the 2nd Plaintiff were to get a 30% share each. The case of the 1st Defendant is that this is not an absolute bequest and that the two sisters, i.e., the Plaintiff and the 2nd Defendant, obtained only a life interest.
3. It would be appropriate to first set out the relevant clauses of the Will, annexed as Exhibit âCâ to the plaint. Clause 4 of the Will reads thus:
â4. I own Flat No. 74 on 7th floor where I reside and Garage No.20 in the said Ashoka Apartments as Member of the Ashoka Apartments Co-operative Housing Society Ltd., Rungta Lane, 68, Nepean Sea Road, Mumbai â 400 006, since inception. I bequeath all my Rights, Title and Interest in my said Flat and my said Garage to my said son and to my two Daughters in the following Proportionate share for each as percentage stated hereinbelow:
1) ASHOK R. ASRANI - 40%
2) SONIA R. ASRANI (Maiden Name) - 30%
alias SONIA RAMAN SABHARWAL (Married Name)
3) RENU R. ASRANI (Maiden Name) - 30%
alias RENU JASBIR OBHAN (Married name)â
4. Clauses 8 and 11 are also material and they read as follows:
â8. My movable properties mainly consist of Equity Shares in Limited Companies, Fixed Deposits in Banks, in Bank Balances and inter-alia in Cash. Subject to the provisions of Clause-3 above, I bequeath the rest of my movable properties to my son ASHOK R. ASRANI. It is possible that I may acquire in future any property which may accrue in future to me or may be left out, the same shall also go to my said Son.
In the event any of my said Daughters name hereinabove in Clause-4, pre or post deceasing me or expires, then in that event her or their share in my properties shall devolve on my said Son ASHOK R. ASRANI.
11. In some of my Shares of Limited Companies and Bank Accounts, my late wife JYOTI R. ASRANI is Joint Holder. My Executrix and/or my Executor shall obtain Probate from the Court of Competent Jurisdiction as the Legal Representatives of my WILL, and get those Shares and Bank Accounts inter-alia transmitted to my son ASHOK R. ASRANI.
If required, my Executrix and /or Executor shall obtain Probate as Legal Representatives, and shall amicably settle all the outstanding matters inter-alia including those stated in Clauses 4, 5, 6 hereinabove, with my said Society and get my said properties transferred to my Son and Daughters named hereinabove, by defraying the required amounts from my movable properties.
For obtaining the Probate, and for other legal matters, my Executrix and/or my Executor will engage my Advocate Mr. Sameer R. Bhalekar or any other competent Advocate and to make payments from my movable properties.
The beneficiaries under this WILL shall have the liberty to make adjustments amicably in respect of their Benefits given to them, whenever they require.â
(Emphasis supplied)
5. I have heard Mr. Godbole, learned Advocate for the Plaintiff and Ms. Merchant, learned Advocate for the 1st Defendant, at some length and on different occasions.
6. Ms. Merchants submission is that the words in the second paragraph of Clause 8 are such as would limit the grant of bequest made under Clause 4. Specifically, she says that the words âin the event of my said daughters named hereinabove in Clause 4, pre or post deceasing me or expires, then in that event her or their share in my properties shall devolve on my said son Ashok R. Asraniâ is a clause that operates to restrict the grant in Clause 4.
7. Ms. Merchant submits that the relevant provision of the Indian Succession Act, 1925 is Section 131, which reads thus:
âSection 131. Bequest over, conditional upon happening or not happening of specified uncertain event.â
(1) A bequest may be made to any person with the condition superseded that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person.
(2) In each case the ulterior bequest is subject to the rules contained in Sections 120, 121, 122, 123, 124, 125, 126, 127, 129 and 130.â
8. The argument is that the wording of Clause 8 is a condition super-added and relates to a uncertain event. This does not make the condition invalid, submits Ms. Merchant.
9. Ms. Merchant relies on a decision in AbhayKumar Ghose v Indira Rani Ghose (AIR 1931 Calcutta 499)in support of the proposition that a vesting of an estate by virtue of a testamentary bequest can, on a proper consideration of a Will, in certain cases result in a subsequent divesting upon the happening of a specified condition, though at an uncertain time. This, she submits, is precisely the meaning of Clauses 4 and 8 of the will in question, read together. It is, therefore, she submits, Section 131 that applies and not Section 124 of the Indian Succession Act, 1925.
10. Ms. Merchant then cites the decision of the Privy Council in IndiraRani Ghose, Srimati v Akhoy Kumar Ghose ((1933) 1 AWR (P.C.) 893 : AIR 1932 PC 269 : (1933) ILR 60 P.C. 554 : 140 Ind. Cas. 433; In Appeal from the decision of the Division Bench of the Calcutta High Court in Abhay Kumar Ghose v Indira Rani Ghose, supra).That case related to a will of 30th October 1903. In this, the testator appointed his widow and her brother (i.e., the testators brother-in-law) as his executors and trustees, along with others. After directions as are common to wills made in this country (for obsequial ceremonies and so on), in clause 12 the testator made provision for several pecuniary legacies and annuities âout of his estateâ. Two of these were material: a legacy of Rs.2,000 to each of his daughters sons, i.e., Rs.1000 at the time of their marriage, and Rs.1,000 to each of his daughters daughters at the time of their marriage. Clauses 10, 11 and 14 were material, the last of these particularly so. Clause 10 said that the estate was not to be partitioned until the youngest of the testators sons attained the age of 25, but his sons were to be maintained and educated from the income of the estate. If any of them attempted a partition before the time specified, he would forfeit his legal share. In clause 11, the testator said that should he die without any son or grandson, his widow would be entitled to adopt three sons in succession. Finally clause 14, one that seems to have been a minefield:
14. Subject to the payments of the legacies and annuities aforesaid (the latter unless otherwise expressly provided being payable during the terms of the natural lives of the annuitants) as well as to the provisions hereinbefore mentioned, I devise and bequeath the whole of my estate real or personal of any kind or description whatsoever and wheresoever situate to my said executors and trustees in trust for such of my sons as shall be living at my death or come into existence within twelve months after my death and also for the son or sons of such of my sons as shall then be dead (such son or sons taking the share their or his father would have taken here-under had they or he been then alive) provided the said sons or son's sons shall be orthodox Hindus of good repute equally as tenants-in-common and the said sons or sons of my sons taking equally per stirpes as tenants-in-common, but nevertheless in the event of any sons or son's sons dying without leaving lineal male issue him surviving the other of my son or sons or son's sons living at the time shall be equally entitled to his or their share of the property as he or they would inherit under the Hindu law, but should I die without lineal male descendants the son or sons to be adopted by my wife shall inherit the whole of my residuary estate, but he shall not be put in possession until he attains the age of 21 years, and should any of my heirs or residuary legatees cease to be orthodox Hindus of good repute he shall forfeit a moiety of his share, which shall go to my other qualified heirs according to their respective shares.
11. This, the Privy Council said, was plainly the work of a draftsman whose knowledge of the niceties of English is imperfect. The Privy Council considered the several unintelligible results that might obtain. Disputes between the family members began almost immediately after the testator died. The estate was administered by the High Court through receivers appointed periodically. On attaining majory, the testators elder son Sidheshwar obtained a grant of letters of administration de bonis non with the will annexed. He was granted possession of the estate and administered it till his death. He died intestate and without male issue, being survived by his widow (Indira Rani Ghose) and an infant daughter. Under the Bengal School of Hindu Law, one that governed him and, before him, his father, his widow was his sole heir, and, failing her, his infant daughter. Akhoy Kumar Ghose, the testators younger son (Sidheshwars younger brother) survived Sidehswar. On Sideshwars death, the question was whether a gift over of his share of the residue under Clause 14 still operated and, if it did, whether its wording resulted in that share being carried over to Akhoy exclusively (and not passing on to Indira Rani Ghose, Sidheshwars widow). On the basis that the gift over did take effect, Akhoy Kumar Ghose applied for and obtained probate and then took possession of the entire estate, claiming that Indira Rani Ghose, Sidheshwars widow, even if his sole heir, had no interest in it. The redoubtable widow refused to accept this position. She brought suit, one that ultimately found its way to the Privy Council. She sought a declaration that on a true construction of the testators will, Sideshwar had at his death become absolutely entitled to his equal half-share of the residuary estate, subject to proportionate provision for the pecuniary legacies and annuities already referred to. She sought a declaration that on Sidheshwars intestacy his half share devolved on herself, a prayer that the Privy Council describes as somewhat irregular, given that the entire suit related only to the estate of the testator and not to Sideshwars estate. A single judge of the High Court granted Indira Rani Ghose the relief she sought, and issued the declaration. Akhoy Kumar Ghose appealed. That appeal was allowed, and the matter was remitted, liberty being reserved by the appellate court to Indira Rani Ghose to apply to the single judge to deal with claims of detail and which had not till then been adjudicated. The Privy Council thus had before it an appeal from the order of the Division Bench. Indira Rani Ghose, the original plaintiff, and the appellant before the Privy Council, sought restoration of the original order of the learned single judge. Pending the appeal, Akhoy Kumar Ghose died but the action was continued by the executors of his will.
12. The appellant (the original Plaintiff ) argued first that Clause 14 of the testators will was governed by Section 124 of the Succession Act. The argument was that upon a true construction, that clause was confined to a situation where Sideshwar died without leaving male lineal issue during the lifetime of the testator. This was âthe uncertain event with no time mentionedâ for its occurrence. It did not extend to a situation where Sidheshwar died after the testator. The legacy to Sidheshwar was, therefore, payable or distributable on the testators death, and consequently, the gift over â the âlegacyâ of the section â could not, if the section was to be obeyed, take effect. âIn other words, the original gift to Sideshwar became at the moment of the testators death, and as a result of the section, absolute and indefeasible.â This was the view that commended itself to the learned trial Judge. The Privy Council rejected this view, ultimately dismissing the appeal to it. It said (Paragraph numbers are from the Manupatra report):
13. Death in the case cited was clearly on the will confined to âdeathâ in the testators lifetime. In the present case however notwithstanding the appellants original contention to the contrary, it is clear, their Lordships think, that the death of a son or sons son referred to in this will is the death of one who has taken something under the original gift contained in it; that is to say, it is a, death which must take place after that of the testator. This distinction between the cases is, for the present purpose, vital. It is true that in each the event remains uncertain. In the present case, it not being a case of death simpliciter, it might even after the death of the testator never have happened at all. But was it an uncertain event with reference to which it could be said that âno time is prescribed in the will for its occurrenceâ? The answer must, their Lordships think, be in the negative. The two first illustrations attached to Section 124 make clear what may be only implicit in the actual wording of the section, namely, that it does not apply if a period is specified in the will within which the contingent event is to happen, or, putting it otherwise, that the section only applies, if without doing violence to the terms of the will, it can be held, as a matter of words, that the occurrence of the uncertain event prior to âthe period when the fund bequeathed is payable or distributable,â is alone within the contemplation of the testator. If the terms of the will make that construction of his words impossible, the section then does not apply. It will suffice in exposition of this statement to refer to the first of the illustrations attached to the section:
âA legacy is bequeathed to A., and in case of his death to B. If A, survives the testator the legacy to B does not take effect.â
14. In the case illustrated it is possible without doing violence to the words to refer the specified death of A. to his death in the lifetime of the testator. And so much being possible, the section requires that A.s death shall be so referred.
But does not the illustration equally plainly connote that it would have become the illustration of a case to which the section had no application if, instead of being worded as it is, it had run:-
âA legacy is bequeathed to A., and in case of his death before or after that of the testator to B.,â
a case in which the legacy to B., on the testators very words must take effect just as certainly if A. survived the testator, as if he predeceased him. In other words, A.s interest in the legacy, B. surviving, is cut down to a life interest, and Section 131 of the Act becomes relevant as an enabling provision. That section, it will be recalled, is as follows:-
âA bequest may be made to any person with the condition superadded that in case a specified uncertain event shall happen the thing bequeathed shall go to another person.â
15. The section is made subject to, amongst others, Section 124. Freed from the operation of that section, as, in their Lordships judgment, for reasons already given, the present gift is, there seems to them, as there seemed to the learned Judges of the Division Bench, no reason why Section 131 should not here have full effect, unless, indeed, some other objection to the efficacy of the gift over can be found. And in her remaining contentions the Appellant sought to find two.â
17. To their Lordships this appears to be peculiarly a case, similar to those referred to by Lord Macnaghten when delivering the judgment of the Board in NorendraNath Sircarscase [1896] 23 Cal. 563 in which care must be taken lest the wills of people speaking a different tongue, trained in different habits of thought, and brought up under different conditions of life, are interpreted by the application to them of a too rigid construction of the English language. Particularly must this consideration be in mind if it appears that a rigid construction leads to such consequences, as have just been indicated.
18. Here however in their Lordships view the appellants construction of the will does not survive examination. A conscious intention on the part of a testator to dispose of property in the hands of another person under a gift from himself is not lightly to be imputed. Less likely is it that the persons to take under that disposition, and as an intestacy of the first donee, would be described in terms of relationship not to the donee but to the testator himself. And this more general criticism of the appellants construction is reinforced on closer examination of the actual words of the testator, showing as it does that he is here doing none of the things thereby imputed to him. Three very helpful aids to the true meaning of the words employed are supplied by reference to the same words in other parts of Clause 14, where their signification is unambiguous. ...
21. ... In other words, on their true construction the effect of the testators words of destination is as follows: In the event of any of my sons or sons sons (to whom a share of residue has been given) dying without male issue them respectively surviving the other of my son and sons and sons sons living at the death of the deceased (and being also sons or sons sons entitled to a share of residue under this my will, and entitled also to inherit from me under the Hindu law) shall take in equal shares the property comprised in the original gift to the deceased.
22. That to their Lordships seems to be an exact paraphrase of the words of the will, in their true signification, and as so paraphrased, the words convey the share to a destination sufficiently clearly described and in no sense obnoxious to Hindu law. Whether this accrued share of an original taker would or would not be subject to defeasance like his original share: whether the son or sons would âinherit under Hindu lawâ because he was beneficiary under the testators will, or because he could qualify on intestacy are questions which need not delay their Lordships now for the gift on either view would be equally valid according to Hindu law, and Akhoy, who in the event is the only claimant to Sideshwars share, fulfils all qualifications. Accordingly in their Lordships judgment, this second contention of the appellant also fails.
27. Their Lordships have in short been unable to find in this will any indication of an intention sufficient to displace the prima facie meaning of the words used in Clause 14, And the question is solely one of intention. In the result therefore their Lordships conclude that the appeal fails and should be dismissed. And they will humbly so advise His Majesty.
(Emphasis supplied)
13. I believe this decision, intricate as it is, and so closely dependent on the peculiar facts of that case (and of the clause that fell for consideration), does provide guidance to the manner in which a Court should approach matters of interpretation of testamentary bequests. Indeed, on the fundamental underlying principles, this decision seems to me to militate against an acceptance of Ms. Merchants assiduously constructed arguments.
14. Ms. Merchant then relies on the decision of a Division Bench of this Court in GulabjiAjisigi and Co. v. Rustomji Kharsedji Banatvalla (1924) XXVII Bom. L. R. 380).In this case too, the question was whether on a proper construction of Clauses 8 and 10 of the Will in dispute in that case the 1st defendant before the Court took only a life interest or an absolute interest. The relevant clauses are set out at page 394 of the BLR Report. Ms. Merchant emphasizes that in construing the Will, it is a well established principle that the Will must be read as a whole and an endeavour must be made together its entire meaning. In the case before the Division Bench of this Court, paragraph 8 of the Will in question there seemed to grant an absolute interest to one Rustomji. Paragraph 10 then provided for an absolute ownership to the grandchildren after Rustomjis death. Did this mean that Rustomji had only a life interest? What was the true construction? The Division Bench held that the two paragraphs were inconsistent. It held:
âPara 8 is therefore not consistent with para 10. âWhere two clauses or gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevailâ (Indian Succession Act, s. 75). Can the two gifts be reconciled? Yes, if reading the two clauses together it appears that âa restricted interest was intended for Rustomji.â The rule in s. 75 should only be applied only be applied in the last resort. And in my opinion the decision of the learned trial Judge is correct and that it must be taken that the testator intended a life interest for Rustomji. If the rule in s. 75 were applied the result would be that on the birth of a son no interest would be left to Rustomji, a conclusion which should not be accepted unless it is inevitable. It is not indeed the case of either party.â
15. Finally, Ms. Merchant relies on the decision of a learned Single Judge of the Calcutta High Court in Kali Sadhan Banerjee and ors v. K.K. Banerji and Ors (AIR 1982 Calcutta 158).In that decision, it was held that where a donor grants an absolute estate in one clause of the deed and in a subsequent clause provides that on a happening of a contingency the absolute estate will be curtailed to a life estate after the death of the donee by exclusion of all the heirs at law of the donee from inheritance, such a clause is one of defeasance as it defeats or extinguishes the absolute estate. It is not a repugnant clause. This is the foundation of Ms. Merchants construct in this case, viz., that the second portion of clause 8 is one that is in defeasance of the apparently absolute bequest in clause 4.
16. Mr. Godbole, learned Advocate for the Plaintiff, on the other hand, submits that it is Section 124 read with Section 125 that applies to the case at hand and not Section 131. Sections 124 and 125 read as follows:
âSection 124. Bequest contingent upon specified uncertain event, no time being mentioned for its occurrence.â Where a legacy if a given is specified uncertain event shall happen and no time is mentioned in the Will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable.
Section 125. Bequest to such of certain persons as shall be surviving at some period not specified.â Where a bequest is made to such of certain persons as shall be surviving at some period, but the exact period is not specified, the legacy shall go to such of them as are alive at the time of payment or distribution, unless a contrary intention appears by the Will.â
17. Mr. Godbole also refers to Section 89 and 96 of the Indian Succession Act:
âSection 89. Will or bequest void for uncertainty. â A Will or bequest not expressive of any definite intention is void for uncertainty.
Section 96. Bequest in alternative. â Where property is bequeathed to a person with a bequest in the alternative to another person or to a class of persons, then, if a contrary intention does not appear by the Will, the legatee first shall be entitled to the legacy if he is alive at the time when it takes effect; but if he is then dead, the person or class of persons named in the second branch of the alternative shall take the legacy.â
18. I do not believe that Sections 89 and 96 are directly applicable to the case at hand.
19. Mr. Godbole relies on the decision of the Supreme Court in SmtTalkeshwari Devi v Ram Ran Bikat Prasad Singh and Anr. (1972) 1 SCC 549).That case also involved a similar dispute. Clause 5 of the will in question said that if one of the two grand-daughters named died without issue, the other living grand-daughter would enter into possession and occupation of the entire bequest and would become the absolute owner thereof. This was held not to be a clause in defeasance. The Supreme Court said that had the testator wanted to effect a divestment on the happening of any contingency, he would have so said. But the will nowhere says that the properties bequeathed to the appellant and her sister would cease to be their properties on their dying without issue. Obviously what was intended was a contingency of one of the two legatees predeceasing the testator.
20. It seems to me, however, that Mr. Godbole is correct in his submission that it is Section 124 that will apply and not Section 131. The reason for this is, I think, is evident. The clause on which Ms. Merchant relies, clause 8, is a distinct clause. It is unrelated to clause 4 except for a limited purpose. Clause 8 comes towards the tail of the Will. It has two paragraphs. The first paragraph of Clause 8 is clearly restricted to movable properties. All bequests in that paragraph of Clause 8 are only in respect of movable properties. The second paragraph of Clause 8 is, therefore, clearly a reference only to the first paragraph. The mention of the daughters and the fact of a cross-reference to their names in Clause 4 does not and cannot mean that Clause 4 is in any way restricted by the second paragraph of Clause 8. All that Clause 8 does in so referencing the daughters is that it fixes with certainty the identity of the daughters, their names having been set out in Clause 4.
21. Ms. Merchant attempts to distinguish TalkeshwariDevi by pointing out that the second paragraph of clause 8 uses the words âpre or post deceasing or expiresâ and therefore contemplates a situation of either or both of the daughters dying after the testator, in which case their share in the flat would go to the 1st Defendant. This can, she submits, only be a clause of defeasance. As I have noted, this is straining the reasoning. Clause 8 deals with a distinct set of bequests and is unrelated to clause 4.
22. Mr. Godbole is also correct in pointing out that Clause 11 at internal page 6 of the Will itself gives yet another clue as to the testators intent. The second paragraph of Clause 11 clearly states that once probate is obtained by the executors named in the Will, the properties mentioned, inter alia, in Clause 4 (but importantly not in Clause 8) are to be got transferred to the testators sons and daughters and that costs of these transfers are to be made from the estate itself. It cannot be that any part of Clause 8 is in defeasance of Clause 4, for that would then mean, by an extension of the same reasoning, that Clause 11 is in defeasance of Clause 8, thus cycling us back to the position that Clause 4 is an absolute bequest.
23. On the principles set out in the IndiraRani Ghose decision of the Privy Council, the view that Ms. Merchant commends is one that is far too rigid. This is not a will that is drafted with any great legal dexterity. What must be gathered is the testators intent and if, as Ms. Merchant says, the intention was to grant a life interest then Clause 4 would be rendered entirely meaningless. I cannot comprehend what could possibly be meant by a â30% life interestâ in a residential flat. It is one thing to say that the two daughters would have a right of residence or, if this property was a commercial property let out and earning an income, the two daughters would have a right to receive in their lifetime a 30% share in that income. But the flat was always ever self-occupied. It continues to be occupied by the 1st Defendant. What the two daughters, the Plaintiff and the 2nd Defendant got, therefore, was an absolute bequest of 30% each in the flat. If the intention was to create only some sort of life interest in the flat then, on the principles set out in TalkeshwariDevi, the will would surely have said so, especially given that it attempts to make, however infelicitously, provisions in great detail. As the Supreme Court said, the will must be read as a whole to gather the intent of the testator. On that assessment, I am not persuaded that Clause 8 is one that is in defeasance of Clause 4 or that what the two daughters received was only a limited life interest.
24. I am unable, therefore, to accept Ms. Merchants submissions. There is no dispute that the 1st Defendant and his family are in use and occupation of the entirety of the flat in question. Neither the Plaintiff nor the 2nd Defendant uses any part of that flat. The Plaintiff resides elsewhere. The 2nd Defendant resides abroad. Mr. Godbole has made a suggestion, and this I must record, that given that these are family members and the 1st Defendant must be required to pay not market royalty as an agent of the Court Receiver, but an amount that is suitably discounted since he is a family member and since there is a bequest in his favour. It is, Mr. Godbole says, equally clear that the 1st Defendant has only a 40% interest in the flat and he cannot be allowed to use the whole of that flat free of cost. An alternate suggestion for an outright purchase of the share of the one or the others was not acceptable to the 1st Defendant; perhaps understandably since he has lived there for a very long time and possibly all his life.
25. In the Notice of Motion, the reliefs sought are not only for an injunction restraining the 1st Defendant from preventing the Plaintiff from entering and visiting the flat, but also for restraining him from disposing of it or creating any third party rights; for the appointment of a Receiver; and for the payment of some compensation.
26. In assessing this, I cannot lose sight of the fact that these are all members of one family. It is equally true that the 1st Defendant has been using the whole of this flat without hindrance from any person. It is not as if the Plaintiff or the 2nd Defendant need a place to reside. Both appear to be comfortably well settled elsewhere. Moreover, they have not once objected to his use of the entire flat. In fairness, Mr. Godbole does not even suggest that either the Plaintiff or the 2nd Defendant have any need for use of any part of the flat.
27. I am not convinced, despite the apparent reasonableness of Mr. Godboles submissions, that this is a fit case for ordering payment of compensation by the 1st Defendant. In my view, an injunction in terms of prayer clause (b) and the appointment of a Court Receiver of the flat to take symbolic possession will sufficiently protect the Plaintiffs interest. I see no reason why, at this stage, the 1st Defendant should be subjected to any royalty. He is earning no income from his personal use of the flat. He uses it as his home. As and when the flat is sold, he will undoubtedly receive only 40% of its sale value, the remaining 60% going to the two daughters. But that is for another day, not today.
28. The Court Receiver, High Court, Mumbai is appointed Receiver of Flat No. 74 in Ashoka Apartments, Rungta Lane, 68, Nepean Sea Road, Mumbai â 400 006, as also Garage No. 20. He shall take symbolic possession of the suit flat and the garage. He shall not disturb the possession of the 1st Defendant. The 1st Defendant shall be entitled to continued use, occupation and possession of the flat and the garage, but without payment of any royalty. However, the 1st Defendant shall do so as an Agent of the Court Receiver.
29. There will also be an injunction against the 1st Defendant in terms of prayer clause (b) of the Notice of Motion, which reads as follows:
âb. Pending the hearing and final disposal of the Suit, this Honble Court be pleased to pass a temporary order and injunction of this Honble Court injunction restraining the Defendant No.1, his agents, servants and/or any person claiming through or under him from encumbering, disposing of and/or creating any third party interest in the Suit flat and garage.â
30. An authenticated copy of this order is to be communicated by the Advocates for both the parties to the 3rd Defendant, the Ashoka Apartments Cooperative Housing Society. The Ashoka Cooperative Housing Society is not to accept any application for transfer of the suit flat without leave of this Court.
31. The Notice of Motion is disposed of in these terms with no order as to costs.
32. It only remains for me to record my appreciation of the assistance of Mr. Godbole and Ms. Merchant. I must in particular commend Ms. Merchant for the poise, composure and precision with which she has conducted her case. Her research of the law has been quite remarkable.