Bombay High Court
Abdul Karim Khalilur Rehman vs Abdul Rahim Khalilur Rehman And 2 Ors on 9 March, 2020
Author: G. S. Patel
Bench: G.S. Patel
4-IA2-2020 IN S671-19.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 2 OF 2020
IN
SUIT NO. 671 OF 2019
Abdul Karim Khalilur Rehman ...Plaintif
Versus
Abdul Rahim Khalilur Rehman & Ors ...Defendants
Mr Karl Tamboly, with Jennifer Michael, Som Sinha, & Divya
Vishwanath, i/b Som Sinha & Associates, for the Plaintiff
Dr Birendra Saraf, Senior Advocate, with Vikram Deshmukh,
Uzair Kazi, Shiraj Salelkar, Mohd Ashraf, Deepakar Livingston
& Arati Ranade, i/b Vidur Legal, for Defendant Nof 1f
Mr Gauraj Shah, i/b Chitnis Vaithy & Cof, for Defendant Nof 2f
Mr Chintan Bf, with Siddharth, for Defendant Nof 3f
CORAM: G.S. PATEL, J.
DATED: 9th March 2020 PC:-
1. The Suit is for administration and partition of the estate of one Khalilur Rehman MA Karim ("the deceased"). The Plaintif Abdul Karim Khalilur Rehman ("Karim") is one of the deceased's son. The 1st Defendant Abdul Rahim Khalilur Rehman ("Rahim") is the other son. The Defendant No. 2, Jahanara Begum Choudhary, is the deceased's widow. Defendant No. 3 is the daughter of the Page 1 of 8 9th March 2020 ::: Uploaded on - 09/03/2020 ::: Downloaded on - 10/03/2020 05:28:13 ::: 4-IA2-2020 IN S671-19.DOC deceased and 2nd Defendant. Defendants Nos. 4 and 5 are the legal heirs, i.e. husband and son, of another daughter who has also died. No reliefs are sought against Defendants Nos. 3, 4 and 5.
2. The present Interim Application, moved today for ad-interim reliefs, seeks the following orders:
"(a) That pending the hearing and fnal disposal of the suit, this Hon'ble court be pleased to restrain the Defendants, particularly the Defendant Nos. 1 and 2, from in any manner entering upon, remaining in, using, occupying or enjoying in any manner whatsoever including by running any business/showroom by any name whatsoever directly or indirectly, the suit premises more particularly the Shop No. 3/10 Kamal Mansion and also from in any manner preventing the Plaintif access, use and enjoyment thereto;
b) That pending the hearing and fnal disposal of the suit, this Hon'ble court be pleased to restrain the Defendants, particularly the Defendant Nos. 1 and 2, either by themselves or through their agents or servants, by a temporary order of injunction from selling, surrendering, transferring, assigning, alienating, encumbering or creating third party rights of any nature whatsoever in the suit premises, including properties enlisted at Exhibits D to F as well as assets and properties disclosed by the Defendants in terms of prayer clause c;
c) That pending the hearing and fnal disposal of the suit, this Hon'ble court be pleased to restrain the Defendant No. 1, either by himself or through his Page 2 of 8 9th March 2020 ::: Uploaded on - 09/03/2020 ::: Downloaded on - 10/03/2020 05:28:13 ::: 4-IA2-2020 IN S671-19.DOC agents or servants, by a temporary order of injunction from using any of the suit properties, including properties enlisted at Exhibits D to F as well as assets and properties disclosed by the Defendants in terms of prayer clause c, for his personal or business purposes or for any purpose whatsoever including the tenanted premises a Serial No. 4 of Schedule I to the amended Plaint;
d) That pending the hearing and fnal disposal of the suit, this Hon'ble court be pleased to order and direct the Defendant Nos. 1 and 2 to disclose on oath details of the assets and properties owned by and belonging to the Deceased and forming part of his estate within such time as this Hon'ble Court may direct including but not limited to details of deceased Bank Accounts, Fixed Deposits & Lockers, Mutual Funds Shares, DEMAT Accounts, Gold & other Jewelleries, and other movable and immovable properties of the deceased;
e) That pending the hearing and fnal disposal of the suit, this Hon'ble court be pleased to order and direct all the Banks, in which the monies or other movables of the Deceased are lying deposited in accounts or in which the Deceased has lockers, etc as per Exhibit F hereto and as may be disclosed by Defendant Nos. 1 and 2 pursuant to orders passed by this Hon'ble Court in terms of prayer clause c, to deposit the monies and movables lying in such accounts with this Hon'ble Court;
f) That pending the hearing and fnal disposal of the Suit, this Hon'ble Court be pleased to appoint the Page 3 of 8 9th March 2020 ::: Uploaded on - 09/03/2020 ::: Downloaded on - 10/03/2020 05:28:13 ::: 4-IA2-2020 IN S671-19.DOC Court Receiver, High Court, Bombay, or some other ft and proper person, as the Receiver of the suit properties, being those enlisted in Exhibits D and E as well as those disclosed pursuant to orders passed in terms of prayer clause c, with all powers under Order XL Rule 1 of the Civil Procedure Code, 1908;"
3. For the present, Mr Tamboly for the Plaintif restricts his relief to Shop No. 3/10, Kamal Mansion, Arthur Bunder Road, Colaba 400 005. It is claimed that the deceased was the tenant of these premises at Kamal Mansion. The 1st Defendant agrees that the tenancy originally stood in the name of the father. The 1st Defendant, however, says that the tenancy has devolved on him. This is disputed. All contentions are expressly left open.
4. Karim claims a 29.16% share, right, title and interest in the deceased's estate. He also says that the deceased was conducting business in the name of a partnership frm, M/s. Khalil Moulvi & Sons. That frm has, by consent, been dissolved by an order made on 20th August 2019 in an arbitration before a learned sole Arbitrator appointed by this Court.
5. Mr Tamboly's complaint on behalf of Karim is that his brother Rahim has began using the Kamal Mansion premises to carry on his own business. Karim, therefore, seeks an order permitting him to enter the premises. That is the purport of prayer clause (a). There is also in the preceding portion of prayer (a) a restraint sought against Defendants Nos. 1 and 2 and in particular I expect the 1st Defendant Rahim from entering the Kamal Mansion Page 4 of 8 9th March 2020 ::: Uploaded on - 09/03/2020 ::: Downloaded on - 10/03/2020 05:28:13 ::: 4-IA2-2020 IN S671-19.DOC premises or using them for any purposes whatsoever. Karim himself is not in Mumbai. He seems to be presently residing in Dubai. I no purpose in granting an ad-interim order in terms of prayer clause (a). It is sufcient to make an order ensuring that Rahim does not surrender the tenancy or possession of the Kamal Mansion premises. As to his use of those premises for his own business, surely that is a question of mesne profts in a claim to be made by Karim at some appropriate stage. The income Rahim generates may be some level of proof of the quantum of mesne profts. Again, at this stage, contentions must be left open. All that this, therefore, requires is that Rahim must maintain accounts from the date after which he began running his own business in the Kamal Mansion premises.
6. The mother, the 2nd Defendant, Jahanara, represented by Mr Gauraj Shah has a completely separate claim. Mr Shah states that the mother was paid maintenance at Rs. 25,000/- per month but since the business of the partnership frm, M/s. Khalil Moulvi & Sons was shut down that payment has stopped. Dr Saraf on behalf of the 1st Defendant states that his client has made attempts to send some amount as maintenance to Jahanara. She refused to accept these payments and returned them. Dr Saraf now states that with immediate efect, i.e. March 2020 Rahim will pay Jahanara an amount of Rs. 25,000/- per month. Liberty to Jahanara to make an application for enhancement and to make a claim for any past amounts that have remained unpaid. Similar liberty to Rahim to fle an application for a reduction or cessation of this amount. Any such application by either Rahim or Jahanara will be by way of a separate interim application. Jahanara cannot get such reliefs in Karim's IA.
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7. So far as the estate is concerned, therefore, the following ad- interim order will sufce:
(a) The 1st Defendant will not surrender possession or create any third party right, title or interest in respect of the tenancy of Kamal Mansion premises without leave of this Court obtained after at least two weeks' prior written notice to the Advocates for the other parties;
(b) All claims as to who is the tenant are kept open and all contentions in that regard are left open for an appropriate decision at an appropriate time in a Court of competent jurisdiction;
8. Dr Saraf has prepared two lists of the admitted immovable and movable properties in the estate of the deceased. These are taken on record and marked "L1" and "L2" for identifcation with today's date. In the immovable properties in List "L1" there are three properties listed as forming part of the estate of the deceased. I notice that the Kamal Mansion premises are shown in the second part, i.e. as allegedly not forming part of the estate but I have already made an order in that regard.
9. So far as the three properties that are admittedly part of the father's estate, Dr Saraf's statement on behalf of the 1st Defendant made on instructions is noted and accepted that without leave of the Court obtained after at least two weeks' prior written notice, the 1st Page 6 of 8 9th March 2020 ::: Uploaded on - 09/03/2020 ::: Downloaded on - 10/03/2020 05:28:13 ::: 4-IA2-2020 IN S671-19.DOC Defendant will not part with possession, alienate, encumber or create any third party right in respect of these premises.
10. List "L2" accepts that there are certain immovable properties in a residential fat in Veena Ashoka CHS Ltd Block - A, Arthur Bunder Road, Near Strand Cinema, Colaba, Mumbai 400 005. These are valued at approximately Rs 50 lakhs. There will be a similar order in these terms against the 1st Defendant in regard to these immovable as well. Dr Saraf clarifes that the valuation is only approximate and that the 1st Defendant is not personally aware of the movables but his statement will extend to whatever is currently available in that fat. The actual physical possession of the fat is with the 2nd Defendant, Jahanara. Mr Shah is not in a position to make a statement in regard to the Veena Ashoka CHS Ltd premises. Hence, none of the parties will dispose of, alienate, part with possession or create any third party right, title and interest in respect of the Veena Ashoka CHS Ltd fat or any of the movables in that fat without prior leave of the Court obtained after at least two weeks' prior written notice.
11. There is an Afdavit in Reply. Mr Tamboly says that an Afdavit in Rejoinder will be necessary. That Rejoinder is to be fled and served on or before 3rd April 2020.
12. I notice from the Afdavit in Reply at pages 82-83 that the 1st Defendant has disclosed two Demat Accounts and two Bank Accounts. Dr Saraf states that these items were among those not disclosed by the Plaintif. Liberty to the parties to seek an Page 7 of 8 9th March 2020 ::: Uploaded on - 09/03/2020 ::: Downloaded on - 10/03/2020 05:28:13 ::: 4-IA2-2020 IN S671-19.DOC appropriate order in this regard either by amending the present Interim Application or in a fresh Interim Application simply because it is not possible to tell from the current disclosure what is the current balance at the foot of those bank accounts, what the operating instructions are, or what the investments in those Demat Accounts are. However, there will be no drawals from these bank accounts and there will be no liquidation of any investments in any of the Demat Accounts by any of the parties till further orders of the Court.
13. Issue a fresh Writ of Summons as against Defendants Nos. 4 and 5.
14. List the Interim Application for hearing and fnal disposal on 7th April 2020.
(G. S. PATEL, J) Page 8 of 8 9th March 2020 ::: Uploaded on - 09/03/2020 ::: Downloaded on - 10/03/2020 05:28:13 :::