Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.708 OF 2018
IN
S.C.SUIT NO.1103 OF 2018
Mr.Subhash Motilal Ladda ... Plaintiff
Versus
1. Mr.Surendrabahadur Amardhwaj Singh,
2. Asha Digvijay Singh,
3. Mr.Pradeep Amardhaj singh,
4. Geeta Vinod Singh,
5. Nisha Amardhwaj Singh ... Defendants
CORAM: HIS HONOUR JUDGE SHRI A.H.LADDHAD
(COURT ROOM NO.7)
DATE : 28th SEPTEMBER, 2020
Mr.Jaddish Singh, ld. adv. for plaintiff.
Ms.Ujala S. Yadav, ld adv. for defendant nos.2 and 4.
Defendant no.3 in person for himself and for defendant nos.1 & 5.
ORDER
1. Plaintiff filed instant Notice of Motion seeking following
reliefs :
“(a) This Hon'ble Court be pleased to declare that, the
defendants have no rights in respect of said VLT Shops
(i.e.) Shop Nos.6 and 7, Scheme 61 (Globe Mill Passage),
Pandurang Budhkar Marg, Southern Footpath, touching to
the Mahindra Tower boundary wall near Gate No.3, Sai
Temple, Worli, Mumbai400 013 without giving 1/6 th
shares to legal heirs of their sisers Late Reeta @ Rita
Anurag Singh and are also not entitled to collect a monthly
compensation from the occupants of said VLT Shops till
final hearing and disposal of Petition for Probate filed by
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the plaintiff befoe Hon'ble High Court;
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(b) This Hon'ble Court be pleased by temporary order and
injunction, to restrain the defendants and/or anybody
claiming through them, from taking forcible possession of
said VLT Shops (i.e.) Shop Nos.6 and 7, Scheme 61 (Globe
Mill Passage), Pandurang Budhkar Marg, Southern
Footpath, touching to the Mahindra Tower boundary wall
near Gate No.3, Sai Temple, Worli, Mumbai400 013 for
their exclusive use, occupation and benefit, without
following due process of law till final hearing and disposal
of Petition for Probate filed by the Plaintiff before Hon'ble
High Court;
(c) This Hon'ble Court be pleaded by temporary order and
injunction, to restrain the defendants and/or anybody
claiming through them, from taking forcible possession of
said Room No.6 in the Building No.5, Century Mill Workers
Colony, P.B. Marg, Worli, Mumbai400 030, without
following due process of law till final hearing and disposal
of Petition for Probate filed by the Plaintiff before Hon'ble
High Court;
(d) Pending the hearing and final disposal of the suit, this
Hon'ble Court be pleased to appoint Court Receiver in
respect of the said VLT Shops (i.e.) Shop Nos.6 and 7,
Scheme 61 (Globe Mill Passage), Pandurang Budhkar
Marg, Southern Footpath, touching to the Mahindra Tower
boundary wall near Gate No.3, Sai Temple, Worli, Mumbai
400 013 with all powers under Order XL of the Code of
Civil Procedure and to collect all the benefits arising there
from and to deposit the same in this Hon'ble Court;
(e) Interim adinterim injunction in term of prayer clause(a),
(b), (c) and (d) above be granted.
(f) Cost of this Notice of Motion be provided for.
(g) Any other and further Order as the nature and circumstancs
of the case be granted.”
2. It is the case of plaintiff that he is the executor of the Will
made by one Mr.Amardhwaj Jagdeo Singh, who expired on
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02/12/2016, leaving behind two sons and four daughters. It is
contention of plaintiff that the deceased was running VLT Shop No.6 at
P.B.Marg,Mumbai and Flour Mill in Shop Nos.6 and 7 therefore, the
deceased made dispossession of all income of those shops equally
amongst his legal heirs.
3. It is further case of plaintiff that the defendants filed suit
bearing No.279 of 2017. In the aforesaid suit all the legal heirs of
deceased Amardhwaj were added as parties. During pendancy of the
said suit all the legal heirs except one arrived at amicable settlement
whereby they have agreed to divide the income of shops between
themselves equally. It is further contention of the plaintiff that one of
the daughters of Amardhwaj namely Rita Anurag Singh died due to
Cancer leaving behind her two minors. It is allegations of plaintiff that
present defendant nos.1, 3 and 5 are not giving shares to the present
defendant nos.2 and 4 and the minor children of Rita Anurag Singh.
Therefore, plaintiff being the executor of the Will constrained to file the
present suit.
4. Heard learned advocate for the plaintiff as well as advocate
for defendant nos.2 and 4. Defendant no.3 was appearing in person for
himself and on behalf of defendant nos.1 and 5. However, today he is
absent. The defendant no.3 filed reply to the Notice of Motion wherein
they have not denied the share and right of the legal heirs of
Amardhwaj Singh. It is argued by learned advocate for the plaintiff that
he being the executor of the Will is entitled to file the present suit and
also it is the responsibility of the executor to see that all the legal heirs
of the deceased should get benefits as per the Will of the deceased. He
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has further argued that the legal heirs of Rita Anurag Singh and present
defendant nos.2 and 5 are not getting the benefits under the Will.
Hence, he prayed for granting interim relief as prayed in the Notice of
Motion.
5. I have perused the pleadings of the plaint, Notice of Motion
as well as reply. The plaintiff is claiming himself to be executor of a
Will which is yet to be probated. It is very surprising that the legal heirs
who are deprived of monitory benefits are not coming before the Court
seeking any relief. Plaintiff being so called executor of a Will, although
the Will is not yet probated, in my view he has no locus to file suit.
Hence, in my view there is no substance in the motion, hence motion
stands dismissed. Thus, I proceed to pass the following order.
O R D E R
1. Notice of Motion No.708/2018 is hereby dismissed.
2. Plaintiff to bear cost of N/M NO.708/2018.
3. Notice of Motion No.708/2018 disposed off accordingly.
Sd/
(A.H.LADDHAD)
28/09/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 28/09/2020
Transcribed on : 29/09/2020
Signed by HHJ on : 29/09/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
30/09/2020 12.00 noon Mr. B. R. Hatekar
Name of the Judge Hhj shri A. H. Laddhad
Date of Pronouncement of
Judgement/Order.
28/09/2020
Judgement/order signed by P.O on 29/09/2020
Judgement/order uploaded on 30/09/2020
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