Disposed

Rusi H Pavri and 2 Ors. v. Perin F Pavri and 3 Ors.

Bombay HC4 May 2012NMS/2094/2011

Case brief

AI extract

What is this about?

In a suit for partition, the High Court appointed a Court Receiver to manage property forming part of deceased owners' estate. Court allocated agents to parties for use of premises and directed collection of rent and payment of outgoings while staying the order.

What did the court decide?

Appointment of Court Receiver; Defendant No.2 and Plaintiff No.1 appointed as agents; injunction restraining creation of third-party rights; order stayed for eight weeks.

Rusi H Pavri and 2 Ors. Vs Perin F Pavri and 3 Ors. — Partition | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

¶5

NOTICE OF MOTION NO. 2094 OF 2011 IN SUIT NO. 1635 OF 2011

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Rusi Hormusji Pavri, of Mumbai, Parsi, ) Indian Inhabitant, a Senior Citizen, residing) at Indian Mercantile Mansion, Madam Cama) Road, Mumbai 400 001 )

¶7

Rushad Rusi Pavri, Parsi, of Mumbai ) original Indian Inhabitant, Now Non Resident) Indian, presently residing at 238, East, ) 81^st Street, Apartment 10-A, New York, ) N.Y. 10028, U.S.A. )

¶8

Renata Darius Desai, Nee’ Renata Rusi ) Pavri, Parsi, of Mumbai, Indian Inhabitant, ) residing at Block No.T-14, Cusrow Baug, ) Shaheed Bhagat Singh Road, Mumbai ) 400 001 ) ..... Plaintiffs

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VERSUS

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Perin Faramroze Pavri, Parsi of Mumbai, ) Indian Inhabitant, a Senior Citizen, having ) address at C/o. Roxana Miki Buhariwala, ) Surya Prakash, Ground Floor, Babulnath ) Road, Chowpatty Sea Face, Mumbai 400 007)

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Roxana Miki Buhariwala, Parsi of Mumbai) Indian Inhabitant and d/o. Late Mr.Framroze) Hormusji Pavri residing at Surya Prakash, ) Ground Floor, Babulnath Road, Chowpatty ) Sea Face, Mumbai 400 007 )

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Virstine Jamal Yazdanparast, Parsi ) Original a Mumbai Indian Inhabitant, ) now Non Resident Indian, and d/o. late ) Mr.Faramroze Hormusji Pavri at present ) residing at 41-8, Buller Street, Artarmon, ) New South Wales, 2064, Australia ) 4. M/s.F.H.Pavri & Sons, ) a concern being presently managed by ) Defendant Nos. 1 and 2 as the heirs of late ) F.H.Pavri, having address at Pavri House, ) R.Sidhwa Marg, (Gunbow Street), Fort, ) Mumbai 400 001. ) ..... Defendants

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Mr.Simil Purohit with Ms.F.Irani and Mr.Manish Doshi, i/b. Vimadalal & CO. for the Plaintiffs.

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Mr.M.A.Rochiramani, i/b. Mr.Prem S.Gidwani for Defendant Nos. 2 and 4.

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Mr.Gautam Patel with Ms.Malvika Menon, i/b. Tyabji Dayabhai for Defendant No. 3.

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CORAM : R.D. DHANUKA, J.

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DATE : 4 th MAY, 2012.

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ORAL JUDGMENT :

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The Plaintiffs have filed this suit for a declaration that immoveable property

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known as ‘Pavri House’ is the property of the Plaintiffs and Defendant Nos. 1 to 3 and they are the co-owners. The Plaintiffs have also sought declaration in respect

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of the suit property that the Plaintiffs and Defendants are entitled to certain share

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in the suit property. The Plaintiffs have applied for partition of the suit property

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by metes and bounds. The Plaintiffs have taken out this Notice of Motion for appointment of the Court Receiver and injunction in respect of the suit property. Some of the relevant facts for the purpose of deciding this Notice of Motion are thus :-

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One Mr.Hormusji F. Pavri was the owner of the suit property. He executed the Will on 7^th April, 1967 thereby he bequeathed the suit property in favour of his three sons i.e. Rusi Hormusji Pavri, Plaintiff No.1 herein, Eddie Hormusji Pavri, another son and Mr.Framroze alias Fali Hormusji Pavri, the third son in equal share. Mr.Hormusji F.Pavri died on 14^th September 1970. The suit property consists of ground floor plus three upper floors and also having open space. On 28^th July, 1991, Mr.Framroze alias Fali Hormusji Pavri died leaving a Will dated 24^th March, 1987. The said Will has been probated. Defendant No.1 is widow of Mr.Framroze alias Fali Hormusji Pavri and Defendant Nos. 2 and 3 are the daughters of Mr.Framroze alias Fali Hormusji Pavri. It is the case of the Plaintiffs that the said Mr.Framroze alias Fali Hormusji Pavri was carrying on business in the name of M/s.F.H.Pavri & Sons in portion of the suit premises. After the demise of Mr.Framroze Hormusji Pavri sometime in the year 2004, the said business has been continued by Defendant No.2.

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By an Agreement dated 2^nd February, 1994 was entered into between the Plaintiffs, Defendant No. 1 to Defendant No.3, Mr.Eddie and his wife. Under the

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said Agreement, it was agreed that the Wayside Property should be sold subject to the tenancy of the ground floor tenant and subject to the tenancy of Eddie H.Pavri of the first floor and also garage and two store rooms on the ground floor. In so far as the suit property is concerned, it was agreed that a net sale proceed of ‘Pavri House’ would be divided between the estate of Fali H.Pavri, Eddie H.Pavri and Rusi H.Pavri in the proportion of 22% for each of the three parties. It was further agreed that the balance amount of 34% would be relating to the occupancy rights of the estate of Falli H.Pavri and Rusi H.Pavri in the proportion of 60% and 40% respectively.

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On 4^th February, 2002, Eddie Pavri died leaving a Will dated 15^th October, 1998. The Plaintiffs were appointed executors. In the said Will 22% share of Eddie H.Pavri was bequeathed in favour of Plaintiff No.1 for life and thereafter in the ratio of 75% and 25% respectively between Plaintiff No.2 and Plaintiff No.3. The Plaintiffs applied for Probate in respect of the said Will dated 15^th October, 1998 which came to be granted by this Court on 27^th September, 2010.

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According to the Plaintiffs, by virtue of the said writing at page 43 dated 2^nd February, 1994, Plaintiff No.1 became entitle to 35.60% in respect of the suit property. Plaintiff Nos. 1 and 3 become entitled to 22% of estate of Eddie H.Pavri. According to the Plaintiffs, they became entitled to total 57.60% in the estate of

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the deceased in the suit property. Defendant No.1 to Defendant No.3 became entitled to 42.40% i.e. 22% share being the share of Mr.Framroze Pavri and remaining 20.40 in lieu of their occupancy rights in the Pavri House.

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It is the case of the Plaintiffs that substantial portion of the suit property which is forming the part of the estate of the deceased is being used by Defendant No.2 for commercial purposes to the exclusion of the Plaintiffs. It is the case of the Plaintiffs that writing at Ex. “D” dated 2^nd February, 1994 has been implemented by the parties. In so far as Wayside Property is concerned, the said property has been admittedly disposed of by the parties and sale proceeds have been distributed to the parties entitled to under the said writing.

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The Learned Counsel Shri Purohit appearing on behalf of the Plaintiffs made the following submissions :-

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(a) Admittedly the entire suit property is forming

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part of the estate of the deceased father. Plaintiff No.1, Eddie Hormusji Pavri and Mr.Framroze alias

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Fali Hormusji Pavri were entitled to equal share in

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the said estate. In view of the writing at Ex. “D”

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which has been signed by all the parties and having

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been acted upon, the Plaintiffs became entitled to

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57.60% in the estate of the deceased father.

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(b) According to the Will dated 13^th July, 1994 executed by Framroze Pavri who was carrying on business in the name of M/s.F.H.Pavri & Sons in the portion of the suit premises. According to Clause 5, a direction was given to the executors to dispose of the business if the testator was not able to dispose of during his lifetime and the assets including any share thereto to be distributed according to the said Testament. The Learned Counsel submitted that even the said Will which has been probated by this Court do not permit the beneficiary to continue the business of M/s.F.H.Pavri & Sons.

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(c) The Learned counsel submitted that the Plaintiffs are in use, occupation and possession of only 60 sq.ft. desk space and remaining portion of the suit premises is being used by Defendant No.2 exclusively except two small portions which are in

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occupation of two other occupants. The Plaintiffs have been collecting the rent in respect of the one of the occupant and is being deposited in the joint account. Rent of the another occupant is being collected by the Defendant No.2.

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(d) The Learned Counsel submitted that

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admittedly the suit property being part of the estate and writing at Ex. “B” have been acted upon, Defendant No.2 cannot be allowed to exclusively use the estate of the deceased in which not only Defendants are entitled to share but also the Plaintiffs.

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(e) According to the Learned Counsel, reliance placed on the Will of the deceased Mr.Hormusji F. Pavri by the Defendant No.2 purporting to bequeath the alleged tenancy rights in favour of Mr.Framroze Pavri is misplaced as neither such alleged tenancy rights could be bequeathed by Will nor Defendant No.2 is claiming through her grandfather. The

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Learned Counsel pressed for appointment of

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Receiver and injunction.

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On the other hand the Learned Counsel Shri Patel, appearing on behalf of Defendant No.3 who is daughter of Defendant No.1 and late Mr.Framroze H.Pavri supported the case of the Plaintiffs. It is grievance of Defendant No.3 that though under Clause (5) of the Will of the deceased father, upon his demise the executors were directed to dispose of the business, instead of disposing of the business and distributing the estate amongst the legal heirs, Defendant No.2 was conducting the business contrary to the said direction given by the father. The Learned Counsel submitted that Defendant No.3 is excluded from the business and no income generated from the said business carried on by Defendant No.2 which is forming part of the estate of Mr.Framroze H.Pavri is being distributed to her. According to the learned Counsel prayer for appointment of the Court Receiver made by the Plaintiffs should be granted.

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The Learned Counsel appearing on behalf of Defendant Nos. 2 and 4 submitted as follows :-

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(a) The father of Defendant no.2 was carrying on business jointly with Mr.Hormusji F. Pavri

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during his lifetime and continued to do the business in the substantial portion of the suit premises till his death sometimes in the year 2004. After the demise of Mr.Framroze H.Pavri, Defendant No.2 has continued to carry on the same business. According to the Learned Counsel all municipal taxes, property taxes, outgoings had been paid by Mr.Framroze H.Pavri during his lifetime and after his demise by Defenant No.2. The Learned counsel submitted that since last several decades, business was being carried on by the predecessor of the Defendant No.2 without any objection in the suit premises and therefore no case for appointment of Court Receiver is made out by the Plaintiffs.

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(b) Under the said Will of the grandfather, Mr.Hormusji F. Pavri tenancy rights in respect of the suit property was bequeathed in favour of Mr.Framroze H.Pavri and therefore Mr.Framroze

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H.Pavri had tenancy rights and upon his demise,

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same is inherited by Defendant No.2 and therefore

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in addition to the shares claimed by Defendant Nos. 1 to 3 in their own rights in the suit property, Defendant No.2 is also claiming tenancy rights independently in the suit premises.

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(c) Defendant Nos.2 and 4 are willing to continue their statement that they would not create any third party rights and/or part with possession in respect of the suit property that is sufficient to protect the suit property.

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I have heard the Learned Counsel and have given my anxious consideration to the rival submissions made.

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It is not in dispute that the suit property was owned by Mr.Hormusji F. Pavri and the entire suit property was bequeathed in favour of his three sons, i.e. Plaintiff No.1 and other two sons, Eddie Hormusji Pavri and Mr.Framroze alias Fali Hormusji Pavri equally. The said Will has been probated. It is also not in dispute that all the parties to this proceedings have subsequently entered into an Agreement on 2^nd February, 1994 in respect of not only the suit property but also another property known as Wayside Property. It is common ground that the said

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Wayside Property which was agreed to be sold under the said Agreement dated 2^nd February, 1994 has been already sold and proceeds have been distributed.

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In so far as share of the Plaintiffs, Eddie H.Pavri and Mr.Framroze H.Pavri under the Will dated 7^th April, 1967 executed by late Mr.Hormusji F. Pavri is not in dispute. In para (12) of the affidavit in reply filed by Defendant No.2, it has been admitted that each of the three brothers had 1/3^rd share. In so far as writing Ex. “D” is concerned, in para (13) of the said affidavit Defendant No.2 has admitted that the said writing was acted upon. It is therefore common ground that even the said writing has been acted upon by the parties to the present proceedings and few others.

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In paragraphs (7) and (8) of the said affidavit, Defendant No.2 has admitted that M/s.F.H.Pavri & Sons occupied part of the ground save and except that is occupied by M/s.Harshad & Co. First floor is occupied by M/s.F.H.Pavri & Co. Plaintiff No.1 has a desk and a small cupboard on the first floor which is used by the Plaintiff No.1 who visits the premises at Pavri House occasionally. It is further stated that on 2^nd floor save and except the portion occupied by Dr.H.R.Mobedji and M/s.Harshad & CO. , the entire floor is in use and occupation of M/s.F.H.Pavri & Sons. It is further stated that the portion in front of the building immediately abutting the entrance to Pavri House is an open space which

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is exclusively used by Defendant No.4 i.e. F.H.Pavri & Sons for storage of its material namely bamboos, props, tables, chairs, cloth and other items used for decoration. The said area is used primarily for loading and unloading the material of F.H.Pavri & Sons and parking of the truck therein. It is thus the case of the Defendant No.2 that excluding small portion of the suit property entire property is being used by Defendant No.2 for carrying on business in the name of F.H.Pavri & Sons.

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In so far as issue of tenancy raised by the Defendant No.2 is concerned as to whether Mr.Framroze Pavri became tenant or the same is inherited by Defendant No.2 and is therefore she is tenant or not cannot be decided by this Court. In view of the fact that the share of the Plaintiffs and Defendants are admitted under the Will dated 7^th April, 1967 and also under writing dated 2^nd February, 1994, it is clear that suit property is forming part of the estate and is required to be protected. The Plaintiffs as well as the Defendants will have share in the estate of the deceased. In my opinion, since the Plaintiffs as well as Defendants have right in the property forming part of the estate, Defendant No.2 cannot be permitted to use the said premises to the exclusion of the others without imposing any terms and conditions. Even as per para (5) of the Will dated 24^th March, 1987 executed

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by the deceased father of the Defendant No.2, the directions were issued by the testator to the executors to dispose of the business after his demise. Even if it is

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true that Defendant No.2 or her father has been carrying on business for quite sometime in the portion of the suit premises, fact remains that the business is being carried on exclusively by Defendant No.2 in the suit property to the exclusion of others though Plaintiffs and Defendant No.3 are entitled to share in the estate of the deceased Mr.Hormusji Pavri.

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In so far as payment of taxes made by Defendant No.2 or by her father in respect of the suit property is concerned, the same is the matter of accounting. Admittedly writing dated 2^nd February, 1994 has been acted upon. It is made clear that I have not expressed any opinion on the claim of tenancy made by the Defendant No.2 and the same can be decided by appropriate court in appropriate proceedings.

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In my opinion since admittedly Defendant Nos. 2 and 4 are using almost the entire suit property excluding the small portion of the 60 ft. desk being alleged to used by Plaintiff No.1 and two other small portions which are in occupation of two of the occupants, the Plaintiffs have made out case for the appointment of the Court Receiver in respect of the suit property. In my opinion no party can be permitted to use the property admittedly forming part of estate exclusively and that also without any payment.

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I, therefore, pass the following order :-

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(a) Notice of Motion is made absolute in terms of prayer clause (a).

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(b) Court Receiver, High Court is however directed to appoint Defendant No.2 as an agent of the Court Receiver on payment of royalty for the area in her use and occupation and on usual terms and conditions.

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(c) Court Receiver shall not insist for security. Court Receiver is also directed to appoint Plaintiff No.1 as his agent in respect of the desk premises being used by the Plaintiffs on payment of royalty and without security.

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(d) Court Receiver is directed to collect rent from two

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occupants occupying a portion of the suit premises.

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(e) Court Receiver is directed to pay the taxes and all outgoings in respect of the suit property from the royalty to be collected from the agents.

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(f) Till the Court Receiver takes possession of the suit property, there shall be injunction in terms of the prayer clause (b) of the Notice of Motion.

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(g) Plaintiffs are also restrained from creating any

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third party rights in the suit property.

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(h) Notice of Motion is accordingly disposed of.

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(i) There shall be no order as to costs.

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At this stage, at the request of Learned Counsel for Defendant Nos.2 and 4, order of appointment of the Court Receiver is stayed for a period of eight weeks.

Rusi H Pavri and 2 Ors. v. Perin F Pavri and 3 Ors.

Case brief

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Rusi H Pavri and 2 Ors. v. Perin F Pavri and 3 Ors.

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