Notice of Motion (L) No. 2347 of 2013. Case: Jayamati Narendra Shah (deceased by L.Rs.) Vs Narendra Amritlal Shah. High Court of Bombay (India)
| Case Number | Notice of Motion (L) No. 2347 of 2013 |
| Counsel | For Appellant: Ashish Kamat, Bankim Gangar ib/. Negandhi, Shah, Himayatulla, Advs. and For Respondents: Gaurang Mehta a/w Ms. Nikita Menon, Advs. |
| Judges | Mrs. Roshan Dalvi, J. |
| Citation | AIR 2014 BOM 119 |
| Judgement Date | January 18, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
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The plaintiff is the son of the defendant. The defendant's wife, the plaintiff's mother, expired on 10th June, 2013 leaving behind a registered Will dated 2nd July, 2011. The plaintiff has sought administration of her estate. The plaintiff has also sought disclosure of the remainder of the estate which the plaintiff has no knowledge of. The plaintiff is the sole beneficiary under the Will of the deceased which has been sought to be probated. The plaintiff claims to be the owner of the properties bequeathed by the deceased to him and the usual injunction against alienation of those properties.
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In the suit the plaintiff has claimed partition of immovable properties that have been bequeathed to him and mandatory injunction directing to handover those properties to the plaintiff and the usual permanent injunctions against alienation.
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The defendant has filed his affidavit-in-reply to the notice of motion to oppose the grant of ad interim reliefs. The plaintiff has filed the rejoinder thereto.
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For considering the properties which constituted the estate of the deceased the cases of the respective parties are required to be seen for the grant of the injunctive reliefs claimed. The plaintiff has set out the properties comprising the estate of the deceased in the list of immovable properties Exhibit-C and the list of movable properties, Exhibit-D to the plaint. For the purpose of notice of motion, a consideration of the immovable properties is required.
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The plaintiff claims 1/2 undivided share which the deceased had in flat No. 14, Prem-kunj Co-op. Hsng, Society Ltd., Sion (West), Mumbai-400 022. The defendant resides in that flat. The plaintiff had left that premises upon certain disputes between the parties prior to the death of the deceased. In the notice of motion the usual injunctions against sale and alienation of that property would suffice.
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The plaintiff also claims tenancy rights in the garage No. 1 in Urvashi Building, Sion(West), Mumbai-400 022. It is stated to be a parking garage. It is contended that it is neither a residential nor a commercial premises. It is not covered under Section 5(11) (c) (i) or (ii) of the Bombay Rent Act, 1947 or Section 7(15)(d) of the Maharashtra Rent Control Act, 1999. It would have to be seen in the suit whether a garage would devolve upon any member of the family of the deceased upon the death of the tenant as a statutory tenant cannot bequeath the tenancy right as held in the case of Vasant Pratap Pandit v. Dr. Anant Trimbak Sabnis 1994 Mh LJ 1450: (1994 AIR SCW 2601); However that judgment considered a commercial or a residential premises. A parking garage in which user and occupation was only parking vehicles would not be on par with a residential or commercial premises in which some of the heirs of the deceased live or carry on business along with the deceased during the life time of the deceased. The garage may revert back to the owner upon the death of the tenant or may devolve upon the heirs in equal shares. Upon such consideration of the law the title which may pass upon the bequest would be considered. Pending that the garage must be protected against alienation and sale.
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The plaintiff has made an unusual claim upon an unusual bequest under the Will of the deceased. The Will, Exhibit-B to the plaint, shows inter alia as one of the properties of the deceased whatever "monies" that come to "my share" in the account of Narendra Amrutlal Shah (NAS) HUF which includes 1/3 share of NAS HUF in a bungalow situate at Ashwamegh Co-op. Hsng. Society in Ahmedabad. The title of the deceased to give her a right to bequeath the property would have to be seen in the monies that would come to her share in a HUF of her husband, the defendant herein. The husband was alive on the date of the Will as also on the date of her death. The deceased was not a widow. The deceased did not get the share which belonged to her husband in the HUF upon her husband's death as per Section 3 of the Hindu Women's Right to Property Act, 1937. The deceased was not a member of any HUF which owned a bungalow in which her husband, the defendant herein, had a 1/3 share. It is argued that the deceased was a member of the joint family of her husband along with her three children, the plaintiff being one of them and the other two being his step brothers. It is, therefore, argued on behalf of the plaintiff that the deceased had a 1/5 share in the...
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