Bombay High Court
Antony Eugene Pinto & Ors vs Eugene Cajetan Pinto & Anr. ...Defenda ... on 15 September, 2008
Equivalent citations: AIR 2009 (NOC) 1993 (BOM.), 2009 (3) AIR BOM R 764, 2009 (5) AKAR (NOC) 866 (BOM.), 2009 A I H C 2932
Author: Roshan Dalvi
Bench: Roshan Dalvi
1
IN THE HIGH COURT OF JUDICATURE
AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ADMINSTRATION SUIT NO.186 5 OF 198 0
Antony Eugene Pinto & Ors. ...Plaintiffs
Vs.
Eugene Cajetan Pinto & Anr. ...Defenda nt s
Mr.Zal Andhyar ujina with Ms. Thakkar and
Mr. Javed Gaya for the Plaintiffs /Petitioners
Mr.Hares h Mansu k h a n i with Mr. A.B. Shreekh a n de
For the Defenda nt s / R e s po n de n t s
CORAM: SMT. ROSHAN DALVI, J.
DATED : 15 TH SEPTEMBER, 200 8
JUDGMENT:
1. This Suit has been directed to be tried along with and immediately after the Testament a ry Suit No.5 of 2004 is disposed of granting or refusing letters of Administration with the last Will and Testament of Prof. Cosmas Damian T. Pinto (the deceased), dated 12 th Febru ary, 1963 annexed thereto.
::: Downloaded on - 09/06/2013 13:51:32 ::: 22. That is because the parties in the Testament a ry Suit are also the parties in this Suit and the evidence with regard to the estate of the deceased would be overlapping.
3. The original Plaintiffs, Defenda nt s 1 and 2 and the husb a n d of Defenda nt No.3 are the 8 children of the said deceased. The Plaintiff Nos.1, 2 and 3 have expired after the filing of the Suit. Their heirs have been brought on record as party Plaintiffs.
4. The Defenda nt Nos.1 and 2 have sought to propou nd the Will of the deceased dated 12 th Februa ry, 1963. Hence they are required to probate the Will. Accordingly they have filed Testament a ry Petition No.5 of 2004. The original Plaintiff No.3 has filed Caveat thereto. Evidence on behalf of the Plaintiffs herein (on behalf of the Caveator therein) and on behalf of the Defenda nt s herein (the Petitioners therein) has been recorded. For reasons stated in Testame nt a ry Suit No.5 of 2004, Letters of Administration with the carbon copy of the verbatim handwritten copy of the said Will has been granted.
5. This Suit is for administra tion of the estate of the deceased. The estate will be required to be administered in accorda nce with the directions of the deceased under his ::: Downloaded on - 09/06/2013 13:51:32 ::: 3 Will dated 12 th Februa ry, 1963.
6. The deceased expired on 29 th Ju ne, 1975. The Suit has proceeded as on intestacy. Each of the Plaintiffs have claimed 1 / 8 th share in the net estate left by the deceased.
7. The Plaintiffs have sought directions for disclosure of the properties, both movable and immovable left by the Deceased and for administration thereof. The corresponde nce annexed to the Plaint (which has been taken on record by consent of the parties as Exhibit- I (colly) in Testament a ry Suit No.5 of 2004, mentions about a Will left by the deceased, but which was until then not found, and requires the Defenda nt No.1 herein to administer the estate as per said Will. Nevertheless it is claimed that each of the heirs would be entitled to 1/ 8 th share in the estate of the deceased left by him as on the date of the death of the deceased on his intestacy.
8. The estate stated to have been left by the deceased is enumera ted in the list Exhibit- C, to the Plaint.
9. The Defenda nt No.1 has filed his written statemen t on 31 st March, 1981. He relied upon the Will dated 12 th ::: Downloaded on - 09/06/2013 13:51:32 ::: 4 February, 1963 which has been annexed as Exhibit- 1 to his written stateme nt. He has averred about the admitted immovable properties of the deceased and how the deceased himself dealt with and disposed them off during his lifetime. He has also averred about the movable properties left by the deceased being certain shares and a bank Account standi ng in the joint names of the deceased, Defenda nt No.1 and the husb a n d of Defenda nt No.3 in Grindlay's Bank, Santacr uz Branc h. He has shown how most of the shares and securities of the deceased ig inherited or acquired by the deceased came to be utilized by the deceased in the constr uction of the building called Damiano on one of the plots of his land.
10. The Defenda nt No.1 has interpreted the Will with regard to the bequest of the bungalow / h o u s e of the deceased called Marie Ville.
11. The written stateme nt shows how on 2 open plots of land 2 buildings, Cosmos and Damiano, came to be constr ucted during the life time of the deceased and how the flats therein came to be appropriated also during the life time of the deceased. A large part of the Will of the deceased, therefore, came to be acted upon during his life time. The assets enumer ated in Exhibit- C, to the Plaint ::: Downloaded on - 09/06/2013 13:51:32 ::: 5 would be required to be dealt with in accordance with the directions in the last Will and testame n t of the deceased dated 12 th Februa ry, 1963.
12. Much after the Testament a ry Suit No.5 of 2004 proceeded and after evidence was led, the Defenda nt s have amended the written stateme nt to add the averment with regard to the bar of the Suit under the Limitation Act, 1963.
13. It may be mentioned that an administration suit is required to be filed within three years from the accrual of the right to sue under Article 113 of Part X of Schedule- I to the Limitation Act, 1963. The right to sue accrued to the Plaintiffs on the date of the death of the deceased i.e on 29 th Ju ne, 1975. The Suit is filed on 21 st November, 1980. The Suit is, therefore, seen to be barred by the Law of Limitation unless the Plaintiffs show if the bar is saved by any act or event. This issue is required to be tried as preliminary issue under the provisions of Order XIV Rule 2 of the C.P.C.
14. If the Suit is within Limitation, since the Will has been probated, (Letters of Administration granted), a preliminary decree for administration of the estate of the deceased would be required to be passed under the provisions of Order XX Rule 13(1) of the C.P.C. Conseque ntly, in that event each of ::: Downloaded on - 09/06/2013 13:51:32 ::: 6 the properties of the deceased would have to be separately considered for its due administr ation for taking accou nt s and making inquiries as necessary.
15. In the event the suit is seen from the averment s in the plaint itself to be barred by Limitation, it would have to be dismissed without directing administra tion of the estate of the deceased.
16. This would be dependent upon the determination of the issue of Limitation as a preliminary issue. The Issues are framed and answered as follows :-
ISSUES FINDINGS
1. Whether the Suit is barred by the
Law of Limitation ? Yes
2. Whether the Plaintiffs are entitled to
administer the estate of the deceased
as claimed by them and whether any
preliminary decree for such
administr ation can be passed ? Yes, subject
to the bar of
Limitation.
3. What Order ? As per final order.
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7
17. ISSUE NO.1:- (RE-LIMITATION) : The deceased expired on 29 th Ju ne, 1975. This Suit is for administr ation of the estate of the deceased on intestate. The Plaintiffs claim 1/ 8 th share in the estate of the deceased. The Plaintiffs have valued their share in the estate left by their deceased father at Rs.50,000 / - each, being the 1 / 8 th share in the aggregate.
No period of limitation is fixed for an Administration Suit. Conseque n tly this Suit would fall under Part- X contained in Article 113 of the Limitation Act, 1963. The said Article runs thus :-
Description of Period of Time from which
application limitation period begins to run
113 Any suit for which Three years When the right to
no period of limitation sue accrues.
is provided elsewhere
in this Schedule.
18. The right to sue accrued on the date of the death of the deceased for Administration of his estate, because it is from such date that his heirs become entitled to his estate.
However, Mr. Andhyar ujina on behalf of the Plaintiffs drew my attention to the letters forming the admitted corresponde nce between the parties annexed at Exhibit- A (colly) to the plaint. The said letters have been marked ::: Downloaded on - 09/06/2013 13:51:32 ::: 8 Exhibit- I (colly) in the Testame nt a ry Suit No.5 of 2004.
19. The first letter in the proceedings is dated 28 th August, 1980. It is addressed by Anthony ( original Plaintiff No.1), Marie (Plaintiff No.4) and Francis (original Plaintiff No.2) to Cyril (original Plaintiff No.3), Eugene (Defendant No.1) and Irene (Defendant No.2). This letter itself is written more than three years after the death of the deceased when the right to these heirs, who made the claim in the letter, accrued. The letter itself shows that it was more than five years since their father died and no account s have been submitted so far despite repeated efforts in that behalf.
20. Incidentally this letter also refers to a Will by the deceased and calls upon the three addressees to obtain necess ary probate. The letter further takes exception to rents being collected by Irene, Defenda nt No.2 and certain declaration made by Eugene Defenda nt No.1 about the estate of the deceased.
21. Upon receipt of this letter by Plaintiff No.3, he addressed the letter dated 30 th August, 1980 to Defendant No.1 alleging that he was arbitrarily managing the immovable and movable assets after the death of their father in a secretive man ner and that he had made a stateme nt before Income ::: Downloaded on - 09/06/2013 13:51:32 ::: 9 Tax Authority. The original Defenda nt No.3 also mentioned about a Will left by the deceased in the said letter and called upon Defenda nt No.1 to forward detailed account s of the estate and liabilities of the deceased.
22. The Defenda nt No.1 by his letter dated 3rd September, 1980 replied to the letter stating that in the short period of four days indicated in that letter he would not be able to give the particulars required. He also mentioned about certain business visits he had to make and assu red Plaintiff No.3 that he would clarify the points and issues stated by him. He did not raise any disputes about the estate of the deceased.
23. Mr. Andhyarujina contended that the Plaintiffs stated their case in the said letter and alleged about the mis-
management of the estate by the Defenda nt No.1 and only when the Plaintiffs received the letter dated 3 rd September, 1980 that the cause of action accrued to them, because Defenda nt No.1 disputed their right. A reading of the letter dated 3 rd September, 1980 does not show that the Defenda nt No.1 disputed anything.
24. Mr. Andhyarujina contended that the bar of limitation, if any, was saved by the said corresponde nce.
::: Downloaded on - 09/06/2013 13:51:32 ::: 1025. The contention is wholly incorrect. The first letter itself was written as mentioned therein five years after the death of the father. It, for the first time, mentioned that account s were not sub mitted. The letter called for the production of the Will of the father. A period of limitation can be saved only after it began to run. The period of limitation must be saved before it culminates in the stat utory bar. The period of limitation would begin run ni ng only when the cause of action accrues. When the cause of action accrued is itself mentioned in the letter written five years after the death of the deceased. The cause of action, therefore, also cannot accrue upon the receipt of a reply to that letter. The Plaintiffs may not have received any reply. That would not mean that the cause of action would not begin to run. The period of limitation, may, in a given case, get extended only after the period begins run ni ng.
26. Under Article 113 the period would begin to run when the right to sue accrues. The letter dated 28 th August, 1980 itself shows that the right to sue accrued more than five years ago and nothing was done by Defendant No.1. No action in law could have been taken for claiming the reliefs claimed in the letter after the date of that letter. The Plaintiffs have not made any averment in the plaint that the suit is not so barred. The Plaintiffs have not averred in the ::: Downloaded on - 09/06/2013 13:51:32 ::: 11 plaint how the bar of limitation is saved.
27. Mr. Andhyar ujina argued that not Article 113, but Article 65 would apply to this case. Article 65 falls within Part- V of the Limitation Act dealing with suits relating to immovable property. It relates for suits for possession of immovable property or any interest therein based on title. Such is the claim under Section 5 of the Specific Relief Act which relates to suits for possession on title. This is not one such suit. The suit ig is for administr ation and not for possession. It is filed upon the estate of the deceased falling for administr ation upon his death and not on title. Conseque n tly, even the time which begins to run under Article 65 is the time when possession of the Defenda nt becomes adverse to the Plaintiff. This is not a suit on title for prescription. The Defenda nt s did not claim adverse possession of the estate of the deceased. The Article is wholly inapplicable to this case.
28. So is a judgment relied upon by Mr. Andhyar ujina in support of his contention. (Parmeshwari Devi Ruia Vs. Krishnaku m ar Nathmal Nurarka & Ors, 200 7 (6) BCR, 18 0) . This was the case of challenge to a Deed of Conveyance in a declaratory Suit. The Plaintiffs challenged Consent Terms which were filed in an earlier Suit without her ::: Downloaded on - 09/06/2013 13:51:32 ::: 12 knowledge. The Plaintiff also alleged fraud being committed by the Defenda nt in respect of certain constr uction sought to be put up on the land where the disputed building, since demolished, stood as the ancestr al house of the Plaintiff. The Plaintiff inter alia alleged intermeddling and misappropriation of the estate of one Jan kibai her grand-
mother and challenged an agreement for sale which was a part of the dispute in an earlier Suit, which resulted in registration of Lis Pendens Notice and an appoint me n t of the Court Receiver. ig The Plaintiffs also disputed the execution of the Consent Terms fraud ulently executed by the parties to the previous Suit without the knowledge of the Plaintiffs. The Plaintiff essentially challenged the said Consent Terms as vitiated by fraud and the Conveyance Deed as null and void. That was therefore, a suit based on an Instru m e n t. Such a suit fell under Part- V of the Limitation Act relating to immovable property. That Suit was for challenging docume n t s executed by fraud and was held to be within the 3 years bar of limitation under Article 113 of the Limitation Act and not under Article 65 thereof.
29. This Suit is for administr ation of both movable and immovable properties of the deceased father of the parties. The estate of the deceased is enumer ated in Exhibit- C. It shows eight properties. Three of these properties at item ::: Downloaded on - 09/06/2013 13:51:32 ::: 13 number s 1, 2 and 8 are movable properties; the remaining five properties at item num bers 3 to 7 are immovable properties. The Suit is, therefore, not relating to immovable property being a suit for possession based on title. Neither the Article nor the judgment relied upon by Mr. Andhyar ujina would apply to this Suit.
30. This Suit is clearly barred by the Law of Limitation on the face of the plaint itself. Hence. The preliminary issue is answered in the affirmative.
31. In fact the plaint deserved to be rejected under the provisions of Order VII Rule 11(d) of the C.P.C as it appears to be barred by the Law of Limitation from the statemen t in the plaint relating to the death of the deceased itself. It may be mentioned that failure of the office of the Court to raise the objection and of the Court to consider rejection of the plaint at the threshold itself, a salutary procedur al provision, has resulted in needless consu m ption of considerable judicial time in this Suit as well in the Testame nt a ry Suit which has come to nothing resulting in a complete failure of case manageme nt.
32. ISSUE NO.2:- (RE-PRELLIMINARY DECREE FOR ADMINISTRATION OF THE ESTATE) : The estate of the ::: Downloaded on - 09/06/2013 13:51:32 ::: 14 deceased father of the parties would otherwise be required to be administered as per his last Will and Testame nt dated 12 th Febru ary, 1963 for which Letters of Administration with the carbon copy of the verbatim handwritten copy of the Will of the deceased annexed thereto have been granted to Defenda nt s 1 and 2 herein in Testament a ry Suit No.5 of 2004.
33. The deceased executed the Will twelve years before his death. The deceased dealt with a large part of his movable and immovable properties during his life time. Most of his estate adeemed during his life time.
34. The evidence in the Testamen t a ry Suit No.5 of 2004 has shown ademption of plot of land on which one building Cosmos was constr ucted by a Gift Deed with regard thereto. The evidence has further shown the ademption of the plot on which the building Damiano was constr ucted by the deceased himself from certain shares which stood in the name of the deceased and / o r in the name of the deceased jointly with Defenda nt No.1 herein and by payment s made by Defenda nt No.2 and how the deceased dealt with the said property during his life time and how the deceased dealt with the flats in the said building. The said property of the deceased, being the open plot of land bequeat he d under his ::: Downloaded on - 09/06/2013 13:51:32 ::: 15 Will underwent a complete metamorp hosis and ademption (Chaman Lal Kapoor Vs. Kundan Lal Kapoor A 197 9 Delhi 24 0 ). Upon such ademption the deceased continued, albeit in another capacity as flat owner in respect of two flats on the first floor of the said building which remained a part of his estate not disposed of by a further Will or Codicil.
35. The plot of land on which the building Marie Ville stood including the goods and furniture in Marie Ville have all been bequeat hed to Defenda nt No.1 and the husb a n d of Defenda nt No.3. That bequest has to be effectuated as per the Will.
36. The rents collected from the buildings Damiano and Marie Ville would go as a corollary to the ademption and effectuation of those bequests respectively.
37. There is absolutely no evidence of any book written by the deceased and hence, no royalty can be even remotely shown to have been earned by him to form a part of his estate.
38. Certain monies in the bank accou nt of the deceased being Savings Bank Account No.780 in Grindlay's Bank, Santacr uz Branch, Mumbai, which he held as a joint owner ::: Downloaded on - 09/06/2013 13:51:32 ::: 16 with Defenda nt No.1 and the husb a n d of Defendant No.3 had inter alia the rents collected for the two flats on the first floor of Damiano building which was the only estate of the deceased at the time of his death.
39. Evidence with regard to the shares, if any, which the deceased continued to hold in various Companies until his death would otherwise be required to be led before the Commissioner for taking accou nt s.
40. The property at Goa which the deceased owned and possessed is also shown to have been dealt with and disposed of by sale by the deceased during his life time as per the oral evidence led in the Testame nt a ry Suit No.5 of 2004 readwith the documen t a ry evidence Exhibit- O thereto.
41. Only directions with regard to the ascertainme n t of the shares of the heirs and legal represent a tives of the deceased with regard to the rent of the two flats on the first floor of Damiano collected and credited to the Bank Account No.790 in Grindlay's Bank, Santacr uz Branch, Mumbai and the shares, if any, remaining with the deceased till the time of his death are required to be passed under the preliminary decree. Similarly, directions with regard to the evidence to be led before the Commissioner for Taking Accounts in respect ::: Downloaded on - 09/06/2013 13:51:32 ::: 17 of shares of Companies in which the deceased would be shown to have shares are required to be passed, which could have been passed in this Suit, subject to the bar of limitation. Issue No.2 is answered accordingly.
42. ISSUE NO.3 :-(RE-ORDERS IN THE SUIT) : Each of the Plaintiffs claim 1/ 8 th share in the estate of the deceased. The estate of the deceased is shown to be two plots of land with buildings constr ucted thereon leased to third parties and part occupied by Defenda nt ig No.1, the immovable property in Goa, the movables in one of the buildings, rents collected from both the buildings, the bank account and the shares held by the deceased as also a royalty alleged to be received by the deceased. The Plaintiffs have valued their share at Rs.50,000 / - each. The valuation, in 1980 when the suit was filed, is seen to be far below its then market value. The Plaintiffs have undert a ke n to pay additional Court Fee after the Plaintiff's share is ascertained. To ascertain the Plaintiffs' share they have sought to prosecute this suit as also challenged the carbon copy of the handwritten copy of the Will of the deceased produced by Defenda nt No.1 as Exhibit- 1 to his Written Statemen t. The Will was required to be proved and probated. (Since the executors of the Will have died, Letters of Administration with that copy of the Will annexed was required to be applied for and granted).
::: Downloaded on - 09/06/2013 13:51:32 ::: 18Despite the initial claim of the deceased having left a Will, the Plaintiffs have refuted the Will produced by Defenda nt No.1 as called upon.
43. The reliefs in this Suit could be granted only upon considering whether the Will of the deceased produced by the Defenda nt No.1 could be probated or not. Hence, the Probate Petition which resulted in the Testamen t a ry Suit being filed upon the Caveat of the original Plaintiff No.3 had to be tried first.
44. Evidence in the Probate Petition as well as in this Suit would necessarily be overlapping, because it is related to the same estate claimed by the same parties. This suit was, therefore, directed to be heard together and immediately after the Testamen t a ry Suit No.5 of 2004. Extensive evidence therein has been led. Various issues of fact and law are considered. Letters of Administr ation with the Will annexed thereto has been granted. The entire effort has come to naught, since the Administration Suit itself is seen to be barred by limitation.
45. It may be mentioned that the very claim as well as the stren uo u s effort made to agitate and prosecute it by the Plaintiffs herein has been vicious and perverse from the ::: Downloaded on - 09/06/2013 13:51:32 ::: 19 inception of the litigation.
46. The Plaintiffs applied for and got appointed Court Receiver with regard to the entire estate of the deceased including the bank account in which the rents were credited and the future rents which were obtained from the third parties who were leased / licensed the flats in the building Marie Ville as well as Damiano. The Court Receiver was appointed in respect of the amou nt s which stood to the credit of the account of the deceased being Account No.790 in Grindlays' Bank, Santacr uz branch as also the amou n t which stood in the personal account of the Defendant No.1 in the branch of the said bank jointly with the deceased in which no part of the estate of the deceased was credited.
Though the Plaintiffs together claimed 5 / 8 th of the estate of the deceased, the remaining 3 / 8 th being admittedly the legitimate claim of the Defenda nt s, no part of the bank account or the rents was spared for the Defenda nt s.
47. The Court Receiver was appointed in respect of not only the flats leased to third parties to take symbolic possession and to collect rents therefrom, but also in respect of some of the rooms in the flat occupied by Defenda n t No.1 on the first floor of Marie Ville, the bungalow / h o u s e in which the deceased lived with Defenda nt No.1 until his death. 2 rooms ::: Downloaded on - 09/06/2013 13:51:32 ::: 20 have remained sealed since 1981.
48. The Court Receiver has remained in possession from 1981 and 2008, an amazing 27 years in a Suit so distinctly barred by the Law of Limitation as can be evidenced from the stateme nt s in the plaint relating to the date of the death of the deceased and the date of the filing of the plaint itself.
49. The evidence itself shows the Plaintiffs' own suggestion in the cross examination of Defenda n t No.1 that his business had closed due to certain strike of the workers during the life time of the deceased, which made the deceased very unha p py with Defenda nt No.1. The further evidence of Defenda nt No.1 upon such suggestion shows that his business was closed due to the strike declared illegal by the Court, since 1990. The cross examination of Defenda nt No.1 has sought to show that he lives under frugal circum s t a n ce s. This is despite the fact that he is a son of a father, who left large and valuable movable and immovable properties. His evidence further shows that even the rents which were being collected by him from the tena nt s / l e s s ee s / licen sees of the flat on the ground floor of Marie Ville and two flats on the ground floor of Damiano leased by him was stopped due to the appoint me n t of the Court Receiver. The interim order passed in this time- barred Suit has deprived Defenda nt No.1 ::: Downloaded on - 09/06/2013 13:51:32 ::: 21 of his legitimate livelihood from his inheritance, though he has lived without want and with dignity.
50. This is a gross case of a false claim, intensified by laws delays resulting in complete ruin of a party ultimately seen to be on the right side of the law and the legal process being resorted to and availed of by the parties seen to be on the wrong side of the laws.
51. It is astou ndi ng how so stark a fact could not be noticed in the last about three decades that the Defenda nt s, more specially Defenda nt No.1, came to be so adversely effected by a barred suit and an interim order therein. This is, therefore, a case for heavy costs required to be imposed upon the Plaintiffs who grossly delayed in filing their action and then vehemently agitated it, the entire exercise which has proved futile.
52. Costs are required to be granted under Section 35 of the C.P.C. Section 35 runs thus :-
"35 Costs :- (i) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall ::: Downloaded on - 09/06/2013 13:51:32 ::: 22 have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necess ary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.
(ii) Where the Court directs that any costs shall not follow the event, the Court shall state its reason s in writing. "
53. The Court Receiver has given accou nt of the rents collected from the Lessees / licensees of the buildings Damiano and Marie Ville. These are invested in five banks from time to time. The total amount lying to the credit of this Suit invested by the Court Receiver in Fixed Deposit and as credited by the Court Receiver in his General Account is Rs.19,94,477 / - . It is now seen that the Plaintiffs would not be entitled to the payment of any amou nt from the aforesaid total amou nt lying with the Court Receiver since the estate of the deceased cannot be administered under an order of the Court in the action brought by the Plaintiffs, after the period of limitation expired. The Court Receiver is required to be discharged without rendering any account s (other than the above) and on payment of his costs, charges and expenses. All the properties for which the Court Receiver came to be ::: Downloaded on - 09/06/2013 13:51:32 ::: 23 appointed are required to be handed back to Defenda nt No.1 from whom the Court Receiver took possession.
54. As a consequence of the above the entire amou nt lying to the credit of this Suit with the Court Receiver shall also have to be handed over to Defenda nt No.1 as the estate of the deceased which admittedly was in the hands of Defenda nt No.1 which the Plaintiffs sought to seize. Hence, the following order:-
ig ORDER
(i) The Suit is dismissed with costs fixed at
Rs.25,000 / - .
(ii) The Court Receiver stands discharged.
(iii) The Court Receiver shall forthwith hand over
possession of all the immovable properties being the flats in Damiano as well as in Marie Ville to Defenda nt No.1.
(iv) The Court Receiver shall pay over Rs.19,94,477 / -
without rendering further account s and after deduction of his costs, charges and expenses to the Defenda nt No.1.
(v) The Plaintiffs apply for stay of this judgment.
(vi) The Plaintiffs admittedly have a claim to and interest in 5 / 8 th of the estate of the deceased, the other 3/ 8 th being admittedly belonging to the ::: Downloaded on - 09/06/2013 13:51:32 ::: 24 Defenda nt s. The stay, if any, to be granted is, therefore, in respect of the Plaintiffs' 5 / 8 th share in the immovable properties as well as in the aforesaid amou nt lying with the Court Receiver.
(vii) The Court Receiver shall, therefore, retain 5/ 8 th of the amou nt of Rs.19,94,47 7 / - with him after deduction of his costs, charges and expenses. He shall hand over 3 / 8 th of the amoun t to the Defenda nt No.1.
(viii) Conseque n tly
ig the appointme nt of the Court
Receiver is continued for a period of four weeks from today for 5/ 8 th of the estate of the deceased.
(ix) The Court Receiver shall contin ue to collect rents as before for a period of four weeks from today.
(x) The Court Receiver shall keep invested 5 / 8 th of the rents received by him as before.
(xi) The valuation of the Suit properties as on 21 st November, 1980, the date of the filing of the Suit shall be determined by the Commissioner for taking account s.
(xii) The Plaintiffs shall pay the deficit, if any, in the Court Fees upon such valuation.
(SMT. ROSHAN DALVI, J.) ::: Downloaded on - 09/06/2013 13:51:32 :::