Friday 14 September 2012

Court Should Fix Ad hoc Amount Which The Person continuing in possession must pay At the time of Deciding injunction


Indian Succession Act sec. 213 does not bar a party from relying on the will at interim stage of proceeding. Trial court will finally decide the rights of the parties at trial of the suit. 

Principles  of  law  which  emerge  in  this  case  are
crystallized as under:-
1.  No one acquires title to the property if he or she was
allowed  to  stay  in  the  premises  gratuitously.  Even  by  long
possession of years or decades such person would not acquire
any right or interest in the said property.
2. Caretaker,  watchman  or  servant  can  never  acquire
interest in the property irrespective of his long possession. The
caretaker or servant has to give possession forthwith on demand.
3.  The  Courts  are  not  justified  in  protecting  the  
possession  of  a  caretaker,  servant  or  any  person  who  was  
allowed to live in the  premises for some time either as a friend, 
relative, caretaker or  as a servant.
4. The protection of the Court can only be granted or
extended  to  the  person  who  has  valid,  subsisting  rent
agreement, lease agreement or license agreement in his favour.
5.  The caretaker or agent holds property of the principal
only on behalf of the principal. He acquires no right or interest
whatsoever for himself in such property irrespective of his long
stay or possession.”

HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL  JURISDICTION
APPEAL  NO.306 OF 2012 in
NOTICE OF MOTION NO.577 OF 2012 in
SUIT NO.552 OF 2012
Ramesh Sippy Vs. Suresh Gopaldas Sippy & ors.            
CORAM :  MOHIT S. SHAH, C.J. &
 N.M. JAMDAR J.
Wednesday,  July 4,  2012.
JUDGMENT:  
This appeal is directed against the judgment and order  dated 18
April 2012 of the learned  single Judge of this Court, in Notice of Motion
No.577 of 2012 in Suit No.552 of 2012 filed by the appellant / plaintiff for
obtaining possession of the Flat No.5/B situated on the 5th floor ( the suit


premises ) in a building known as “Shree Vijayaa Bhavan” in Mumbai.
The suit is filed on the basis that the appellant is the owner of the said flat
by virtue of holding shares in the Unique Enterprise Co-operative Housing
Society.  The appellant filed the above numbered Notice of Motion for
appointment of Court receiver and for a direction to the respondents /
defendants to deposit interim compensation during pendency of the suit.
2. At the first ad-interim hearing on 15 March 2012, the trial Court
recorded the statement made on behalf of the defendants that until further
orders, they will not dispose of, alienate, encumber, part with possession or
create any third party rights in the suit flat.  At the next ad-interim hearing
on  18  April  2012,  the appellant  /  plaintiff prayed  for  further direction
regarding  appointment  of  Court  receiver  and  for  deposit  of  interim
compensation.  The learned trial Judge however, in the impugned order
dated 18 April 2012 observed that merely because the affidavits were filed3 APP306­12
it cannot be said that there was such grave urgency that the Court must
appoint a Court receiver at this stage or direct that the defendants should
pay sum as interim compensation or mesne profit.  Learned trial Judge
accordingly granted only ad-interim order in terms of prayer clause (b)
restraining  the  defendants  from  disposing  of,  alienating,  encumbering,
parting with possession or creating any third party rights in the suit flat.
Notice of Motion was ordered to be heard in due course by keeping open
the contentions of the parties.
3. We may also note at this stage that the defendants have raised
preliminary issues that the suit is barred by Law of Limitation and also that
the Court has no jurisdiction to entertain and try the suit  which can only be
entertained and tried by the Court of Small Causes, at Mumbai.  However,
for the present it is not necessary to decide these issues as the same will be
decided by the learned trial Judge at the hearing of Notice of Motion in
which the above issues are sought to be raised as preliminary issues. In this
appeal, we are only concerned with the limited question, whether during
pendency of the Suit any orders are required to be passed at this stage  for
appointment of Court receiver or deposit of any interim compensation.
4. Mr.Seervai  learned  counsel  for  the  appellant  /  plaintiff  has
submitted that in 1972, Unique Enterprise Co-operative Housing Society
Limited allotted 500 shares to the appellant and in view of the allotment of
the said shares, appellant / plaintiff is an owner of Flat no.5/B situated on
the 5
th
 floor of the building known as “Shree Vijayaa Bhavan” belonging to
the above co-operative society.  It is further stated that when some of the
share certificates were misplaced, appellant made application to the society
for duplicate share certificate and after issuing a  public notice, the co-4 APP306­12
operative society issued duplicate share certificates to the appellant in the
year 2004.  Respondent No.1 is the brother of the appellant, respondent
No.2 is the son of respondent No.1, respondent Nos.3 & 4 are the sons of
the sister of appellant and respondent No.1. Since the said sister was a
widow,  the  father  of  appellant  and  respondent  No.1  had  allowed  the
widowed sister with her children i.e. respondents No.3 & 4 to occupy the
suit flat. It is submitted that however, the plaintiff had allowed respondents
No.1 to 4 to occupy the suit flat  only gratuitously and because they are
relatives but that did not confer any right upon the respondents to occupy
the suit flat.
5. Relying on the judgment dated 13 July 2011 of another Division
Bench of this Court in Appeal No.1062 of 2010 (Geetanjali Minhas vs.
Rishi  Minhas  &  anr.)   Mr.Seervai  contended  that  the  presumption  of
regularity attaches to a share certificate issued by a Co-operative Housing
Society, and therefore the Court, atleast at the prima facie stage, will have
to go according to the share certificate.  It is therefore, submitted that at this
stage the Court must proceed on the basis that the appellant / plaintiff is the
absolute owner of the suit flat and the respondents have no right to occupy
the same.
6. Mr.Seervai learned counsel for the appellant has also  heavily
relied on the decision dated 21 March 2012 of the Supreme Court in the
case of Maria Margarida Sequeira Fernandes and others v/s Erasmo Jack de
Sequeira(Dead) through L.Rs.  (Civil Appeal No.2968 of 2012)  arising out
of  SLP  (C)  No.15382  of  2009  in  support  of  the  contention  that  the
possession  of  the  respondent  /  defendants  holds  no  good  against  the
appellant / plaintiff who is the rightful owner of the suit flat.  Relying on5 APP306­12
said decision it is contended that  possession is important when there are no
title documents and other relevant records before the Court, but, once the
documents and records of title come before the Court, it is the title which
has to be looked at first and possession cannot be considered in vacuum.   If
the title dispute is removed and the title is established in one or the other,
then, in effect it becomes a suit for  ejectment where the defendant must
plead and prove why he should not be ejected. It is therefore, submitted that
since the defendants do not have any title to the suit flat, they are liable to
be ejected and therefore at this stage, the Court should appoint a Court
receiver requiring the Court receiver to give out the suit flat on license and
the license fees should be deposited in the Court. He submitted otherwise
even after the suit is decreed, the appellant will not be able to recover
mesne profits from the defendants.  It is contended that in the Judgment
referred above, the Supreme court has held that the Court should fix adhoc
amount  which  the  person  continuing  in  possession  must  pay  and  the
plaintiff  may withdraw such amount after furnishing  an undertaking.  The
Supreme Court has made it clear that should the Court pass any order for
reimbursement it will be a charge upon the property.
7. Strong reliance is also placed on paragraphs  No.90, 91 and 92 in
the above decision and in the paragraph 101 laying down the principles,
which read as under -
“Mesne Profits
90. Experience has shown that all kinds of pleadings are
introduced and even false and fabricated documents are filed in
civil cases because there is an inherent profit in continuation of
possession.  In a large number of cases, honest litigants suffer
and dishonest litigants get undue benefit by grant or refusal of an
injunction because the Courts do not critically examine pleadings
and documents on record.  In case while granting or refusing6 APP306­12
injunction,  the  Court  properly  considers  pleadings  and
documents and takes the pragmatic view and grants appropriate
mesne profits, then the inherent interest to continue frivolous
litigation by unscrupulous litigants would be reduced to a large
extent.
91. The  Court  while  granting  injunction  should  broadly
take  into  consideration  the  prevailing  market  rentals  in  the
locality for similar premises.  Based on that, the Court should fix
adhoc amount which the person continuing in possession must
pay  and  on  such  payment,  the  plaintiff  may  withdraw  after
furnishing an undertaking and also making it clear that should
the Court pass any order for reimbursement, it will be a charge
upon the property.
92.  The  Court  can  also  direct  payment  of  a  particular
amount and for a differential, direct furnishing of a security by
the person who wishes to continue in possession. If such amount,
as may be fixed by the Court, is not paid as security, the Court
may remove the person and appoint a receiver of the property or
strike out the claim or defence. This is a very important exercise
for balancing equities. Courts must carry out this exercise with
extreme care and caution while keeping pragmatic realities in
mind and make a proper order of granting mesne profit. This is
the requirement of equity and justice.
101. Principles  of  law  which  emerge  in  this  case  are
crystallized as under:-
1.  No one acquires title to the property if he or she was
allowed  to  stay  in  the  premises  gratuitously.  Even  by  long
possession of years or decades such person would not acquire
any right or interest in the said property.
2. Caretaker,  watchman  or  servant  can  never  acquire
interest in the property irrespective of his long possession. The
caretaker or servant has to give possession forthwith on demand.
3.  The  Courts  are  not  justified  in  protecting  the
possession  of  a  caretaker,  servant  or  any  person  who  was
allowed to live in the  premises for some time either as a friend,
relative, caretaker or  as a servant.7 APP306­12
4. The protection of the Court can only be granted or
extended  to  the  person  who  has  valid,  subsisting  rent
agreement, lease agreement or license agreement in his favour.
5.  The caretaker or agent holds property of the principal
only on behalf of the principal. He acquires no right or interest
whatsoever for himself in such property irrespective of his long
stay or possession.”
8. On the other hand Mr.Dhond, learned counsel for the respondents
has submitted that the appellant / plaintiff has no case, much less prima
facie  case.   It  is  submitted  that  as  far  back  as  in  the  year  2001,
Mr.G.P.Sippy, father of the appellant and respondent No.1 and grandfather
of respondents No.2, 3 & 4 had written a letter dated 15 January 2001 to the
Secretary  of  the  Co-operative  Housing  Society  when  Mr.G.P.Sippy
received  letters  from  M/s  Crowford  Bayley  &  Co.,  advocates  of  the
Society.  In the said reply dated 15 January 2001, Mr.G.P.Sippy had clearly
stated the following -
“I would therefore like to clarify a few things before you take any
further steps :
1.  The entire 5
th
 floor flat which consists of Flat no.5 (A & B)
had been  bought by me from my own funds for the residential
purpose  of  my  family  members,   which  included  my  son
Mr.Ramesh  Sippy  and  my  married  daughter   Mrs.Soni
R.Uttamsingh who has since expired.
2.   Mr.Ramesh Sippy was an active  member in my film business
at one time and therefore it was mutually decided among the
family members to allot some Shares of my flat and therefore I
gave permission to the Society to mark as 'B' and issue separate
Share Certificates in his name.
3.    On inspection of the flat you will find that there is only one
kitchen in the full flat and only one living hall which clearly8 APP306­12
explains that the whole 5
th
 floor is only one flat  which belongs to
me.
4.     We  further state  that  all  the payments  towards  cost  of
premises as well as maintenance charges till date have been made
by me and no payments have  been made by Mr.Ramesh Sippy,
which clearly shows that he has got nothing to do with the title of
the flat and was living only as a family member.
With reference to the above facts, it is interesting to mention that
Mr.Ramesh Sippy had left my house about 10 years  back to
settle  down  in  his  own  premises  which  he  has  bought  some
where else and is living  there with his family.  It is since that
my  two  grandchildren,  Shaan  Uttamsingh  and  Sameer
Uttamsingh are living with me after the death of my daughter
Soni.  I think it is therefore very surprising how all of a sudden
he is now trying to make a claim on my falt and interfering with
the living  arrangement of my family.  I am pained to learn that
he has written letters to you which are misleading. I request the
Society  to  cancel  the  name  of  Mr.Ramesh  Sippy  as  a  Share
holder from your records which was done earlier at my request
and finally treat the entire floor flat in my single name”.
9. It is submitted that thereafter Mr.G.P.Sippy had made a Will
dated 23 December 2003 bequeathing  the entire residential premises on the
5
th
 floor  of  'Shree  Vijaya  Bhavan'  to  Unique  Enterprises  Co-operative
Housing Society, to defendants No.3 and 4 who are sons of the deceased
widow and daughter of Mr.G.P.Sippy as per paragraph No.6 of the said will
which reads as under -
“I am the sole owner of residential premises situated on the 5
th
floor of Shree Vijaya Bhuvan, Unique Enterprises Co-operative
Housing  Society  Ltd.  Altamount  Road,  Mumbai-400  026
(hereinafter referred to as the 'said flat').  I hereby bequeath and
devise all my rights, titles, claims and interest in the said flat at
5
th
 floor of Shree Vijayaa Bhuvan including all my rights, titles,
claims  and  interest  in  the  Shares  of  Unique  Enterprises  Cooperative Housing Society Ltd., and all furniture and fixtures,9 APP306­12
equipments, household goods lying therein to my late daughter
Sunita's Sons  ( My Grandson ) SHAAN UTTAMSINGH and
SAMEER UTTAMSINGH equally.  I have made nomination in
respect   of  the  said  shares  and  said  Flat  in  favour  of  my
grandsons  SHAAN  UTTAMSINGH  and  SAMEER
UTTAMSINGH with the said Unique Enterprises Co-operative
Housing Society Ltd.”.
A copy of the said Will was submitted by Mrs.Mohini Sippy, mother of
appellant and respondent no.1 and the grandmother of the other parties to
the society as far back as on 15 January 2008 as will be apparent from the
society's reply dated 28 January 2008.  It is submitted that inspite of the
aforesaid reply dated 15 January 2001 from Mr.G.P.Sippy and inspite of the
letter dated 20 February 2001, having been written  by Unique Enterprise
Co-operative Housing Society to the appellant / plaintiff, the plaintiff did
not file any suit or any proceedings for getting possession of the suit flat.
Even in the paragraph No.10 of the plaint, the appellant / plaintiff  has
referred  to  the Will  propounded   by  the widow  Mrs.Mohini  Sippy,  of
Mr.G.P.  Sippy  who  is  the  mother  of  appellant,  respondent  No.1  and
grandmother of the other parties.  The plaintiff admittedly came  to know
about the said Will upon reply of the Society dated 28 January 2008.
10. Mr.Dhond  learned counsel for the respondents, states that in
view of the disputes being raised about the ownership of the flat, which has
been bequeathed by Mr.G.P.Sippy to respondents No.3 & 4, defendants
will take out the appropriate proceedings for probating the Will dated 23
January 2003 executed by Mr.G.P.Sippy.
11. As regards the plaintiff's claim of ownership of the flat, the same
is denied not only on the basis of the reply dated 15 January 2001 at Exhibit
'I'  but also after referring to the fact that the plaintiff  claims to have been10 APP306­12
given the suit flat in lieu of his dues upon retirement from partnership firm.
However, the plaintiff retired from the said partnership firm in the year
1975 as per the Retirement deed dated 12 January 1975.  It is clearly
mentioned in the said Retirement deed that the plaintiff voluntarily retired
from  the  partnership  on  12  June  1975  and  it  was  agreed  that  the
controversies were settled between the parties and that the retiring partner
i.e. plaintiff  “will be paid the amounts due to him by  the continuing
partners on demand by retired partner”.  It is submitted that in view of the
above clause in the deed of Retirement, it is clear that nothing done in the
past was to be treated as consideration for retirement of the plaintiff from
partnership firm and therefore the allotment of 500 shares in favour of the
plaintiff  in the year 1972 cannot be explained away by referring to the deed
of Retirement dated  12 June 1975.
12. In rejoinder Mr.Seervai, has submitted that the Will not having
been probated, the defendants cannot rely upon the said Will.  Reliance has
been placed by the appellant  on the provisions of section 213 of The Indian
Succession Act, 1925 in support of the contention that the defendants No.3
&  4  cannot   assert  any  right  as  legatee,  unless  court  of  competent
jurisdiction has granted probate  of the Will under which defendants No.3
& 4 are claiming their right.  Strong reliance has been placed on decision of
a three-Judge Bench of Supreme Court in Mrs.Hem Nolini Judah (since
deceased)  and  after  her  legal  representative  Mrs.Marlean  Wilkinson,  v.
Mrs.Isolyne  Sarojbashini  Bose  and  others  -A.I.R  1962  Supreme  Court
1471. It has been held that -
“........This section clearly creates a bar to the establishment of
any right under will by an executor or a legatee unless probate  or
letters of administration of the will have been obtained.11 APP306­12
…... The section does not say that no person can claim as a
legatee or as an executor unless he obtains probate or letters of
administration of the will under which he claims.  What it says is
that no right as an executor or legatee can be established in any
Court of Justice, unless probate or letters of administration have
been obtained of the will under which the right is claimed, and
therefore it is immaterial who wishes to establish the right as a
legatee or an executor.  Whosoever wishes to establish that right,
whether it be a legatee or an executor himself or somebody else
who might find it necessary in order to establish his right to
establish the right of some legatee or executor from whom he
might have derived title, he cannot do so unless the will under
which the right as a legatee or executor is claimed has resulted in
the grant of a probate or letters of administration.  Therefore, as
soon as the appellant wanted to establish that Mrs.Mitter was the
legatee of Dr.Miss Mitter and was therefore entitled to the whole
house she could only do so if the will of Dr.Miss Mitter in favour
of Mrs.Mitter had resulted in the grant of probate or letters of
administration.  Admittedly that did not happen and therefore
S.213(1) would be a bar to the appellant showing that her mother
was the full owner of the property by virtue of the will made in
her favour by Dr.Miss Mitter.  The difference between a right
claimed as a legatee under  a will and a right which might arise
otherwise is clear and in this very case.  The right under the will
which was claimed was that Mrs.Mitter became the owner of the
entire house”.
Mr.Seervai has also relied on a decision of Division Bench of this Court in
Vaman Ganpatrao Trilokekar and others v. Mrs.Malati Ramchandra Raut
and others -A.I.R 1988 Bombay 321, wherein it has been held as follows -
“........What it says is that no right as an executor or legatee can
be  established  in  any  Court  unless  probate  or  letters  of
administration have been obtained of the will under which the
right  is  claimed  and  therefore,  it  is  immaterial  who  seeks  to
establish the  right as a legatee or an executor.  Whosoever seeks
to establish that right he cannot do so unless the will under which
the right is claimed has resulted in the grant of probate or letters
of administration.12 APP306­12
30. Mr.Chagla  submitted  that  the  bar  of  Section  213
applied only to the establishment of a right and, therefore, only to
the passing of a decree.  It was no bar to the continuation of a
suit.  Only valuation had here been ordered  and that was an order
in continuation of the suit.
31.   As we have held, no Court may apply the provisions of
Sections 2 and 3 until it has determined and has declared who the
sharers in a property are and what their share is. Such declaration
by  preliminary  decree  cannot  be  made  until  and  unless  the
executors  or  heirs  of  deceased  parties  have  established  their
rights  to  the  property  by  obtaining  probate  or  letters  of
administration.”
13. On the other hand, Mr.Dhond learned counsel for the repondents
has submitted that, all that section 213 provides is that no right as executor
or legatee can be established in any Court of law, unless the Will has been
probated but that does not preclude the Court from considering the claim of
the legatee under a Will at the interim or ad interim stage.  It is submitted
that just as section 212 provides that a right to any part of property of a
person who has died intestate cannot be established in  any Court  unless
letters of administration have first been granted  by a Court of competent
jurisdiction, similarly section 213 provides that when a deceased has left a
Will, the right of the executor or legatee cannot be established without the
Court of competent jurisdiction having granted probate of the Will  or letter
of administration with the Will or copy of an authenticated copy of the Will
annexed.  Reliance  has been placed by Mr.Dhond on a judgment of the
Division Bench of this Court in the case of Ramniklal Amritlal Shah v.
Bhupendra Impex Pvt. Ltd. and others -AIR 2001 Bombay 224 in support
of the contention that though no decree can be passed without obtaining
probate of a Will, the claim under the  Will can certainly be relied upon at
the interim or ad interim stage.13 APP306­12
14. The defendants No.3 and 4 are claiming to be legatees under the
Will dated 23 December 2003 of their grandfather Mr.G.P.Sippy.  The Will
was propounded by Mrs.Mohini Sippy the widow of Mr.G.P.Sippy and the
grandmother  of  the  defendant  No.3  &  4.   The  question  thus  arises  is
whether the said Will can be permitted to be pressed in service by the
respondents at this stage of the proceedings.
Section 213 of the Indian Succession Act needs to be noticed
which reads as under -
“213. Right as executor or legatee when established – (1) No
right as executor or legatee can be established in any Court of
Justice, unless a Court of competent jurisdiction in (India) has
granted probate of the Will under which the right is claimed, or
has granted letters of administration with the Will or with a copy
of an authenticated copy of the Will annexed”.
Plain reading of the section indicates that no party as an executor or legatee
of a Will can establish any right in Court of law unless Court of competent
jurisdiction has granted probate or Letters of Administration as the case
may be in respect of the Will.  The Apex Court in the case of Mrs.Hem
Nolini Judah (supra)  has held that, a party which wishes to establish right
under a Will shall not be granted any relief unless the party has obtained
probate or Letters of Administration.   The Apex Court by  referring  to
section 213 of the Indian Succession Act laid down that the said section
creates a bar for establishment of any right by an executor or legatee unless
a probate or Letters of Administration have been obtained.  The Division
Bench of this Court in the case of Vaman Ganpatrao (supra) held that a
party could not claim any relief on the basis of rights flowing from Will
unless a probate or letters of administration are obtained. However ratio of
the  aforesaid  judgments  cannot  be  pressed  in  service  to  advance  a14 APP306­12
contention that even at interim stage the party is not entitled to refer to the
fact that a Will has been executed.  In both the judgments, as the facts
therein will show, the legatee / executor  were seeking  a final relief based
on a Will without there being any probate or Letters of Administration and
such relief  obviously could not be granted in view of the clear language of
section 213 of Indian Succession Act.  The position of law laid down in
section 213 of the Act and the judgments referred to hereinabove cannot be
stretched to  import such a bar even at the hearing at interim stage of the
proceedings.  Such interpretation would mean that during the pendency of
proceedings for probate or Letters of Administration the fact that there is a
Will in existence cannot even be used at the interim stage in collateral
proceedings.   Submission  advanced  by  Mr.Seervai  based  on  the  above
judgment and section 213 of the Act cannot be applied to the facts of the
present case.  In fact Division Bench of this Court in the case of Ramniklal
Amritlal Shah v. Bhupendra Impex Pvt. Ltd. and others -AIR 2001 Bombay
224,  has  made  this  position  amply  clear.   The  Division  Bench  after
considering the provisions of section 213 of the Act held that, the bar under
section 213 is merely regarding “establishing” a right as an executor or
legatee in an action and not for the purpose of seeking an interim relief.
The observations of the Division Bench in paragraph no.7 read thus -
“7.  The  next  contention  of  Mr.  Doctor  is  that,  even
presuming that the suit is maintainable without production of the
probate certificate, the appellant in his capacity as executor could
not have sought any interlocutory relief. This is the argument
which seem to have appealed to the learned Single Judge. The
contention is that to claim interim relief the appellant had to
establish, apart from the merits of the case, his character as the
executor; this he could not do without production of a probate
certificate  by  reason  of  section  213,  even  prima  facie.
Consequently, no interim relief could have been granted. In our15 APP306­12
considered view, this argument is fallacious.  A party seeking
interim relief in a suit is not required to 'establish' his rights.
Question  of  establishment  of  rights  is  relevant  only  for  the
purpose of the final decree in the suit and not at an Interlocutory
stage. In order to seek or get interlocutory relief, all that a party
has  to  show  is  that  the  suit  is  not  frivolous,  that  there  is  a
probability of his succeeding in the suit, apart from balance of
convenience, with which we are not concerned here. As far as the
argument  of  Mr. Doctor  goes,  we  focus our  attention  on  the
"establishment" of the appellant's character as an executor. In our
view,  it  was not  necessary  for  the  appellant to 'establish'  his
character as executor at this stage. It was necessary to show,
prima facie, that he was the executor. This could have been done
by the production of the Will of the deceased-original plaintiff
and,  unless  upon  a  perusal  thereof  the  Court  came  to  the
conclusion that there was no way the appellant could claim to be
an executor under the Will, that would prima facie show the
character of the appellant as an executor under the Will. The
stage for the appellant to establish his right as an executor under
the Will is yet to come in the trial if the suit goes on and. under
the law as laid down by the Supreme Court, the appellant would
fail unless he produces the probate certificate at the time when
the  Court  finally  decides  the  suit.  At  all  intermittent  stages,
therefore, the insistence upon establishing the appellant's right as
an executor, was neither necessary nor required. It was sufficient
that he showed that he had a prima facie right to that character.”
We  agree  with  the  observations  of  the  Division  Bench  that
section 213 of the Indian Succession Act does not bar a party from relying
on the Will at the interim stage of the proceedings.
15. Thus having considered all the rival submissions, we are of the
view that, as held by a Division Bench of this Court in Ramniklal Amritlal
Shah's  case  AIR  2001  Bom.224,  though  right  under  a  Will  cannot  be
established without obtaining  a probate, for the purposes of interlocutory
proceedings claim can be made under a  Will.  We have also recorded the
statement of the learned counsel for the respondents that the respondents16 APP306­12
No.3 and 4 are going to file a petition for probate within one month from
today.  In this view of the matter, it is open to the respondents to invoke
their claim under the Will dated 23 December 2003 of Mr.G.P.Sippy.
16. From the documents on record, it would prima facie appear that
Mr.G.P.Sippy had purchased the entire flat on the 5
th
 floor of the building
in question and for convenience the flat was bifurcated into two parts 5A
and 5B.  According to the case of the defendants, Mr.G.P.Sippy was thus,
the absolute owner of the property and before his death he had executed a
Will in favour of defendants No.3 and 4 bequeathing the entire flat on the
5
th
 floor in favour of defendants No.3 and 4 who are the sons of the predeceased widowed daughter of Mr.G.P.Sippy who was thus, the sister of
appellant and respondent No.1.  Defendants No.3 and 4 are claiming to be
legatees  under  the  Will  dated  23  December  2003  of  their  grandfather
Mr.G.P.Sippy.   The  defendants  therefore,  have  an  arguable  case.
Ultimately it will be at trial of the suit that the trial Court will finally decide
the rights of the parties.  At this stage, it is not possible to accept appellant's
contention that the respondents particularly respondents No.3 & 4 do not
have any claim in the suit flat whatsoever.  It will be at the trial of the suit
that the Court will finally determine the rights of the parties.  At this stage,
we do not find any warrant for passing any order for appointment of a
Court receiver or for deposit of any amount by way of adhoc mesne profits.
17. In the view that we are taking, the question about the preliminary
issues raised by the respondents / defendants would not be required to be
decided at this stage.  No useful purpose  will, therefore, be served by
keeping  Notice  of  Motion  pending  before  the  learned  trial  Judge.
Accordingly Notice of Motion No.577 of 2012 is disposed  of -17 APP306­12
(i)  after  recording  statement  of  the  learned  counsel  for  the
respondents that the respondents will be filing the petition for
probate of the Will dated 23 December 2003 of Mr.G.P.Sippy,
within one month from today, and
(ii) after confirming the ad-interim relief granted in terms of
prayer (b) seeking interim injunction against the disposal etc. of
the suit flat, granted by order dated 18 April 2012 as interim
relief during pendency of  Suit No.552 of 2012.
CHIEF  JUSTICE
                   N.M.JAMDAR, J.  

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