Research › Search › Judgment

Bombay High Court · body

2022 DIGILAW 603 (BOM)

Meena Ravindra Jhaveri v. Nilesh Vora

2022-03-02

N.J.JAMADAR

body2022
JUDGMENT N.J.JAMADAR,J. - This application is for restraining the defendants and their servants and/or agents, assignee etc. from in any manner dealing with, alienating, disposing of, parting with possession and/or creating any third party rights and/or creating any charge in respect of the immovable properties described in 'Exhibit-B' to the plaint, for appointment of Court Receiver in respect of those properties and also to make an inventory of Locker Nos.2130153 and 0740014 in Andhra Bank, Ghatkopar Brach, Mumbai, standing in the name of defendant no.1 and also for a direction to defendant no.1 to disclose on an affidavit all his dealings with the assets of late Vrajlal and Rama Vora, the plaintiffs and defendant no.1's parents. 2. The background facts can be stated, in brief, as under: (a) Late Vrajlal Vora and Rama Vora were the parents of the plaintiffs and defendant no.1, who is the brother of the plaintiffs. Defendant no.2 is the son of defendant no.1. Vrajlal Vora passed away in the year 2006. Rama died on 16/1/2019. Vrajlal was a Doctor by profession. He had acquired a large number of properties. Those immovable properties included; (a) A premises at ground floor Satya Sadan, 6A, next to Aurora Cinema, Matunga, Mumbai; (b) A premises at first floor, Wadala Udyog Bhawan alias Hindu Rajasthan Industrial Estate, Wadala, Mumbai and, (c) Flat no.6B - 101 to 104, first floor, Damodar Park, Ghatkopar West, Mumbai. (b) The plaintiffs aver that property at Matunga [Sr.No. (a)] was taken on lease and after the demise of the said Vrajlal, the tenancy was surrendered in or around August - 2008. All the proceeds from the said surrender, i.e. Rs.60,00,000.00 were appropriated by defendant no.1 to the detriment of Rama and the plaintiffs. The property at Wadala [Sr.No.(b)] was acquired by Vrajlal in the name of Rama. Post the demise of Vrajlal, at defendant no.1's insistence, Rama sold the said property and the sale proceeds were appropriated by defendant no.1 to himself alone. Vrajlal had purchased four flats bearing Nos.101 to 104 [Damodar Park flats, Sr.No.(c)]. Flat Nos.101 and 103 were purchased in the name of late Vrajlal. Flat No.102 was purchased nominally in the name of Rama, and Flat No.104 in the name of defendant no.1. Vrajlal had purchased four flats bearing Nos.101 to 104 [Damodar Park flats, Sr.No.(c)]. Flat Nos.101 and 103 were purchased in the name of late Vrajlal. Flat No.102 was purchased nominally in the name of Rama, and Flat No.104 in the name of defendant no.1. (c) Defendant no.1 clandestinely and with malafide intention got Flat Nos.101 to 103 transferred by way of instruments in the nature of gift from late Vrajlal as well as Rama in the year 2002. Subsequently, in the year 2003, defendant no.1 sold Flat Nos.101 to 104 at Damodar Park, and again appropriated the sale proceeds to himself alone. Upon being confronted, defendant no.1 had assured the plaintiffs that the plaintiffs would be paid their share in the sale proceeds of all the above properties. (d) The plaintiffs have further asserted that the plaintiffs became aware of the transfer of Flat Nos.101 to 103, Damodar Park, in favour of defendant no.1 only in the year 2018, when late Rama had confided in them. The plaintiffs have thus sought a declaration that those gift-deeds are void and not binding on the plaintiffs. (e) The plaintiffs aver that defendant no.1 utilized the sale proceeds to create Secured Overdraft facility and make payment of EMI for acquiring four office premises bearing Nos.101 to 104 at Presidential Plaza, Ghatkopar. Though defendant no.1 had ostensibly financed the said acquisition by availing a loan from New India Co-operative Bank Ltd. on 1 st November, 2002, yet, the joint family funds, especially the proceeds from the sale of Flat Nos.101 to 104, Damodar Park, were utilized to repay the said loan amount. 3. The plaintiffs further aver that defendant no.1 purchased Flat No.A-401 and 402, Presidential Towers, L.B.S. Road, Ghatkopar (West), Mumbai, in the year 1995-1996. The consideration to acquire the said flats again, according to the plaintiffs, flowed from the joint family funds and the loans advanced and funds made available by the Vrajlal and Rama. Thus, defendant no.1 through various modes and means utilized Vrajlal's funds for the purpose of ensuring that the then existing business loans were retired and further properties were acquired in defendant no.1's individual name, to the detriment of the plaintiffs interest. The plaintiffs have furnished the details of the various loans allegedly advanced by Vrajlal, Rama and Ratilal Vora (HUF) and Smt. Jabakben Vora, the mother of Vrajlal, to defendant no.1 and defendant no.1's wife Nita. 4. The plaintiffs have furnished the details of the various loans allegedly advanced by Vrajlal, Rama and Ratilal Vora (HUF) and Smt. Jabakben Vora, the mother of Vrajlal, to defendant no.1 and defendant no.1's wife Nita. 4. After the demise of Vrajlal, Rama stayed with the defendants at Flat Nos.401 and 402 Presidential Towers. Rama had sumptuous amount and also investments in various financial instruments, including five Samruddhi Deposit Schemes, Fixed Deposits, jewellery etc. Defendant no.1 was managing all the financial matters of Rama. Defendant no.1 clandestinely transferred the joint family property including the movables and valuable property possessed by Rama, in the name of his wife and children. After the death of Rama, the plaintiff confronted defendant no.1. The latter repeatedly assured them that the entire joint family property including the movables and money and deposits would be equally distributed between the plaintiffs and defendant no.1. It further transpired that defendant no.1 had clandestinely transferred Flat No.402 Presidential Towers in the name of defendant no.2 by executing a gift-deed. 5. The plaintiffs were thus constrained to institute this suit seeking a declaration that the suit properties described in Exhibit-B are the joint family properties and the plaintiffs and defendant no.1 have 1/3 share each in those properties, for partition by metes and bounds, prohibitory injunction restraining the defendants from alienating and/or otherwise creating third party rights therein and also for a declaration that the gift-deeds executed by Vrajlal and Rama in favour of defendant no.1 are null and void and, in the alternative, for a declaration that the plaintiffs and defendant no.1 have 1/3 share in the proceeds of the properties, which were sold by defendant no.1 pursuant to those gift-deeds. There is a legitimate apprehension that defendant no.1 in order to the frustrate the claim of the plaintiffs may create third party rights over the joint family properties. Since defendant no.1 has been in possession of the valuable movable properties, including jewellery, financial instruments and funds of Rama, it was imperative to have the inventory of the contents of Locker Nos.2130153 and 0740014 in Andhra Bank, Ghatkopar Branch, Mumbai, which stand in the name of defendant no.1. Hence, this application for interim reliefs. 6. An affidavit-in-reply is filed by defendant no.1. At the outset, defendant no.1 contends that the plaintiffs are guilty of suppression of important material facts and are, therefore, not entitled to any equitable relief. Hence, this application for interim reliefs. 6. An affidavit-in-reply is filed by defendant no.1. At the outset, defendant no.1 contends that the plaintiffs are guilty of suppression of important material facts and are, therefore, not entitled to any equitable relief. Defendant no.1 did not dispute that the late Vrajlal had self-acquired properties i.e. first floor premises at Wadala Udyog Bhavan, Flat No.6B-101 and 103, Damodar Park and Flat No.102 at Damodar Park in the name of Rama, a tenanted premises of Satya Sadan 6A, Matunga. It was, however, denied that defendant no.1 was the nominal owner of Flat no.104, Damodar Park. Defendant no.1 claimed to have purchased the said flat out of his own income and savings. Contesting the claim of the plaintiffs that all the properties which stand in the name of defendant no.1 were acquired with the aid of joint family nucleus, defendant no.1 contended that he had been practicing as a Senior Gynecologist in Mumbai since last 40 years and has had sumptuous income from the said profession and acquired Flat Nos.401 and 402 at Presidential Towers, Ghatkopar, in the year 1995. 7. Defendant no.1 contends that Vrajlal and Rama had gifted him Flat No.101, 103 and 104, Damodar Park, out of their natural love and affection on 7/10/2002. Defendant had sold Flat Nos.101 to 103 at Damodar Park, during March - December, 2003 and acquired four office premises being Nos.101 to 104, Presidential Plaza, Ghatkopar. The plaintiffs never challenged either the gift-deeds or the Will executed by late Vrajlal on 25/2/2006. After the demise of Vrajlal, Rama surrendered the leasehold premises at ground floor Satya Sadan 6A, Matunga, unto the landlord without any monetary consideration. The plaintiffs and defendant no.1 were signatories to the Memorandum of Understanding ("MoU") evidencing the surrender of the said premises. Thus, the plaintiffs claim that defendant no.1 appropriated the entire consideration of Rs.60,00,000.00 is patently false. Late Rama paid a sum of Rs.11,00,000.00 each to the plaintiffs out of the proceeds of the sale of the premises on the First floor, Wadala Udyog Bhavan and, therefore, the allegations that the sale proceeds thereof were taken by defendant no.1 alone are against the weight of the material on record. 8. Late Rama paid a sum of Rs.11,00,000.00 each to the plaintiffs out of the proceeds of the sale of the premises on the First floor, Wadala Udyog Bhavan and, therefore, the allegations that the sale proceeds thereof were taken by defendant no.1 alone are against the weight of the material on record. 8. Defendant no.1 asserted that in the year 2017, defendant no.1 was constrained to execute the gift-deed of Flat No.402, Presidential Towers, in favour of defendant no.2 on account of the acts and omissions of defendant no.1 which bordered on emotional blackmail and harassment of defendant no.1. 9. The very institution of the suit was stated to be at the instance of defendant no.2. In fact, the plaintiffs had mediated in the dispute between defendant no.1 and defendant no.2 and several meetings were held to resolve the disputes and arrive at a family settlement. 10. Defendant no.1 has also contested the assertion of the plaintiffs as regards the appropriation of the movable properties, jwelleries and funds of Rama. 11. Defendant no.2 has filed an affidavit-in-reply. Defendant no.2 claimed to have contributed money for the acquisition of the properties by defendant no.1. The possession of defendant no.2 over the suit properties was sought to be substantiated by placing documents, which evidence the running of business concerns by defendant no.2 from those premises. It was asserted that defendant no.1 had gifted Flat No.402 in Presidential Towers to the knowledge and acquiescence of the plaintiffs. The gift-deed executed by defendant no.1 in favour of defendant no.2 is thus legal and valid. It was asserted that though there were negotiations between the plaintiffs and the defendants to arrive at a family settlement yet the documents relied upon by defendant no.1 are 'primary without prejudice draft' and, thus, defendant no.1 cannot derive any advantage therefrom. 12. An affidavit-in-rejoinder is filed on behalf of the plaintiffs, controverting the assertions of defendant no.1 of acquiescence on the part of the plaintiffs. The dispositions and payments, which were made by Vrajlal and Rama in favour of the plaintiffs, were sought to be accounted for. It was denied that Vrajlal and Rama desired that defendant no.1 would exclusively inherit the entire joint family property. 13. The parties have placed on record a number of documents to substantiate their respective claims. 14. I have heard Mr. Bhosale, the learned Counsel for the plaintiffs, Mr. It was denied that Vrajlal and Rama desired that defendant no.1 would exclusively inherit the entire joint family property. 13. The parties have placed on record a number of documents to substantiate their respective claims. 14. I have heard Mr. Bhosale, the learned Counsel for the plaintiffs, Mr. Patil, the learned Counsel for defendant no.1 and Mr. Shah, the learned Counsel for defendant no.2, at some length. I have also perused the pleadings and the material on record. 15. Mr. Bhosale, the learned Counsel for the plaintiffs, would urge that there is no controversy over the fact that Vrajlal had acquired large number of properties including the immovable properties at Wadala, Flat No.6B-101, 102 and 103, Damodar Park, and was in the occupation of a leased premises at Satya Sadan, Matunga. Nor is it in contest that Vrajlal was a medical professional and had seizable income. Moreover, neither the existence of the joint family nor the joint family property can be disputed. In the absence of any material to indicate that there was a partition of the joint family property, the plaintiffs have an equal share with defendant no.1 in the joint family properties as well as the properties acquired by defendant no.1 in his individual name, which are also impressed with the character of joint family properties. It would, therefore, be imperative to protect the interest of the plaintiffs during the pendency of the suit for partition, for which a strong prima facie case is made out by the plaintiffs. In the face of the material, in the nature of the gift of Flat No.402 by defendant no.1 in favour of defendant no.2 and conversion of the valuable properties, jewellery and financial instruments, which belonged to Rama, by defendant no.1, there is an imminent danger that the joint family properties would be alienated, wasted and dissipated. From this standpoint, according to Mr. Bhosale, the balance of convenience tilts in favour of the plaintiffs and they would suffer irreparable loss if interim protection is not granted. 16. Mr. Patil, the learned Counsel for defendant no.1, controverted the submissions on behalf of the plaintiffs. It was urged that the claim for partition of the suit properties described in Exhibit-B is wholly misconceived. Bhosale, the balance of convenience tilts in favour of the plaintiffs and they would suffer irreparable loss if interim protection is not granted. 16. Mr. Patil, the learned Counsel for defendant no.1, controverted the submissions on behalf of the plaintiffs. It was urged that the claim for partition of the suit properties described in Exhibit-B is wholly misconceived. Since the immovable properties were indisputably the self-acquired properties of Vrajlal, the gift-deeds of Flat No.101 and 103 at Damodar Park by Vrajlal and Flat No.102 by Rama in favour of defendant no.1 are legally impeccable. There is no serious challenge to those gift-deeds. Therefore, the plaintiffs cannot lay any claim over the office premises Nos.101 to 104 at Presidential Plaza, the properties acquired by defendant no.1 out of the sale proceeds of Flat Nos.101 to 103 at Damodar Park and his own funds. Nor there is any material to show that Flat Nos.401 and 402 at Presidential Towers were acquired by defendant no.1 from and out of joint family funds. 17. In any event, according Mr. Patil, the claim of the plaintiffs is stale and barred by acquiescence. Not only were the plaintiffs aware of the execution of the gift-deeds by Vrajlal and Rama in favour of defendant no.1 on 7/10/2002, but plaintiffs also derived benefits under the Will dated 25 th February, 2006, executed by Vrajlal, constituting defendant no.1 as the residuary legatee. Mr. Patil endeavoured to impress upon the Court that the suit has been instituted at the instance of defendant no.2, who pursued an evil design to usurp the entire properties of defendant no.1. In the absence of any coherent material to indicate that the properties retained the character of the joint family properties, defendant no.1 cannot be restrained from exercising absolute ownership over the suit properties. Therefore, the plaintiffs do not deserve any interim relief, urged Mr. Patil. 18. It must be noted that Mr. Bhosale and Mr. Patil took pains to take the Court through the thicket of facts and documents to substantiate their respective submissions. However, in the context of the limited nature of controversy, at this juncture, it may not be expedient to delve deep into the facts. 19. In a sense, the facts which bear upon the controversy at hand are rather uncontroverted. Firstly, the relationship between the parties is not in contest. However, in the context of the limited nature of controversy, at this juncture, it may not be expedient to delve deep into the facts. 19. In a sense, the facts which bear upon the controversy at hand are rather uncontroverted. Firstly, the relationship between the parties is not in contest. Secondly, there is not much controversy over the fact that Vrajlal passed away in the year 2006 and Rama expired in the year 2019. There is no qualm over the fact that the properties at Udyog Bhavan, Walada, Flat Nos.B-101, 102 and 103, Damodar Park and the leasehold property at Satya Sadan 6A, were the self-acquired properties of Vrajlal. The parties did not dispute that Vrajlal was a medical professional. By and large, there is not much dispute over the fact that Vrajlal executed the gift-deeds in respect of Flat Nos.101 and 103, Damodar Park, in favour of defendant no.1 on 7/10/2002. Rama also executed the gift-deed of Flat No.102 on the very day in favour of defendant no.1. Nor is it in contest that defendant no.1 sold the Flat Nos.101 to 104 at Damordar Park in the year 2003. 20. In the light of the aforesaid uncontroverted facts, the issue which primarily crops up for consideration is the character of the aforesaid properties. The normal condition of a Hindu family is one of jointness. However, there is no presumption that a joint family possesses joint property or any property. Where it is, however, established or admitted that family possessed some joint property which, from its nature and relative value, could form the nucleus from which the property in question could have been acquired, a presumption arises that such property was a joint family property and the party who asserts self-acquisition carries the evidentiary burden to establish the same in the affirmative. What is thus of critical significance is the proof of existence of adequate family nucleus, which could support the further acquisition of the properties. 21. In the context of aforesaid fundamental principle, it is imperative to note that the plaintiffs have approached the Court with a two-fold case. One, the properties which have been acquired by defendant no.1 namely Flat Nos.401 and 402, Presidential Towers and office premises Nos.101 to 104, Presidential Plaza, were acquired, out of joint family property/funds. 21. In the context of aforesaid fundamental principle, it is imperative to note that the plaintiffs have approached the Court with a two-fold case. One, the properties which have been acquired by defendant no.1 namely Flat Nos.401 and 402, Presidential Towers and office premises Nos.101 to 104, Presidential Plaza, were acquired, out of joint family property/funds. Two, the execution of the gift-deeds in respect of Flat Nos.101 and 103 by Vrajlal and Flat No.102 by Rama in favour of defendant no.1 on 7/10/2002 was void and illegal and to the detriment of the plaintiffs interest in the joint family properties. The further acquisition of the properties especially office premises Nos.101 to 104, Presidential Towers, from out of the sale proceeds of Flat Nos.101 to 104, Damodar Park, is therefore impressed with the character of the joint family property. 22. First and foremost, as noted above, the parties are not at issue over the fact that, (a) the leased premises situate at ground floor Satya Sadan, 6A, next to Aurora Cinema, Matunga, Mumbai; (b) the premises at first floor, Wadala Udyog Bhawan alias Hindu Rajasthan Industrial Estate, Wadala, Mumbai and, (c) Flat no.6B - 101 to 103, first floor, Damodar Park, Ghatkopar West, Mumbai, were self-acquired properties of Vrajlal. 23. Once this position is conceded, the gift of Flat Nos.101 to 103 by Vrajlal and Rama in favour of defendant no.1 can hardly be called in question. On the one hand, the legal competence of a father to make a valid gift of the self-acquired property to one of his heirs to the detriment of others, is recognised. On the other hand, the properties so gifted does not retain the character of joint family property in the hands of the donee. To put it in other words, the gift of the self-acquired property by the father to his son does not constitute an ancestral property in the hands of the donee. In this context, the reliance placed by Mr. Patil on the judgment of the Supreme Court in the case of C. N. Arunachala Mudaliar vs. C. A. Muruganatha Mudaliar and another AIR 1953 S.C. 495 , is well founded. This position was reiterated by the Supreme Court in the case of Govindbhai Chhotabhai Patel and ors. vs. Patel Ramanbhai Mathurbhai. Civil Appeal No.7528/2019 24. Patil on the judgment of the Supreme Court in the case of C. N. Arunachala Mudaliar vs. C. A. Muruganatha Mudaliar and another AIR 1953 S.C. 495 , is well founded. This position was reiterated by the Supreme Court in the case of Govindbhai Chhotabhai Patel and ors. vs. Patel Ramanbhai Mathurbhai. Civil Appeal No.7528/2019 24. In the case at hand, the endeavour on the part of the plaintiffs to assail the gift-deeds dtd. 7/10/2002, by Vrajlal and Rama in favour of defendant no.1 is paved with multiple hurdles. One, the gift-deeds were executed in the year 2002. Two, within a year of such gift and during the lifetime of both Vrajlal and Rama, defendant no.1 sold the flats at Damodar Park. Three, there is no material to indicate that the plaintiffs had resisted the disposal of those flats by defendant no.1. At this length of time, the explanation on the part of the plaintiffs that they became aware of the execution of the gift- deeds by Vrajlal and Rama under coercion and undue influence as late as the year 2018, does not appeal to human credulity. 25. The plaintiffs assertion that defendant no.1 had appropriated the proceeds of rest of the two properties acquired by Vrajlal, exclusively to himself, is also not borne out by record. Indisputably, the tenanted premises at ground floor Satya Sadan 6A, Matunga, was surrendered by Rama in or around August - 2008, after the demise of Vrajlal. The plaintiffs assert that defendant no.1 had appropriated the entire consideration of Rs.60,00,000.00 received for the said surrender. When the defendant no.1 controverted the said assertion, by contending that even the plaintiffs were parties to the MoU evidencing the surrender of the said premises sans any consideration, the plaintiffs attempted to salvage the position by contending that the tenancy could not have been surrendered without obtaining the substantial compensation and, thus, though the plaintiffs had signed the MoU, the consideration was exclusively appropriated by defendant no.1. 26. In the face of a clear and explicit admission that the plaintiffs were the signatories to the MoU evidencing the surrender of the said premises coupled with absence of any evidence to show that the said surrender was for consideration, at this juncture, it would be difficult to draw an inference that defendant no.1 had received consideration for the said surrender of the tenancy by late Rama. 27. 27. As regards the sale of the third property i.e. First floor, Wadala Udyog Bhavan, the parties were not at issue over the fact that the said premises was sold by Rama in the year 2006. The plaintiffs assert that it was defendant no.1 alone, who grabbed the entire consideration. The counter version of defendant no.1 that each of the plaintiffs had received a sum of Rs.11,00,000.00 by way of their share in the consideration for the sale of the said property was sought to be substantiated by placing reliance on the entries in the passbook of Rama with Andhra Bank, which evidence payment of Rs.11,00,000.00 each to plaintiff nos.1 and 2 on 20 th March, 2014. Though the plaintiffs made an effort to explain away the said payment by contending that it was unconnected with the sale of the said premises, yet, at this stage, the contention of defendant no.1 that the said payment was made towards the share of the plaintiffs in the sale proceeds, gains credence. 28. This takes me to the crucial aspect of the acquisition of the properties by defendant no.1. Whether those properties were acquired with the aid of the joint family nucleus. In all, there are three acquisitions. First, the purchase of Flat Nos.401 and 402, Presidential Towers, in the year 1995. Second, the purchase of Flat No.104 at Damodar Park, (along with Flat Nos.101 and 103 in the name of Vrajlala and Flat No.104 in the name of Late Rama.). Third, the acquisition of office premises Nos.101 to 104 at Presidential Plaza. 29. The claim of defendant no.1 that the office premises Nos.101 to 104 at Presidential Plaza were acquired by availing loan and utilizing the sale proceeds of Flat Nos.101 to 104, Damodar Park, finds prima facie support in the documents on record. 30. The controversy revolves around the acquisition of the Flat Nos.401 and 402, Presidential Towers, and Flat Nos.104 at Damodar Park. Defendant no.1 endeavoured to impress upon the Court that Flat Nos.401 and 402, Presidential Towers, were purchased by him in the year 1995 out of his earnings and savings. Likewise, Flat No.104, Damodar Park, was purchased by defendant no.1 out of his own income and savings. Yet the exact date of acquisition of Flat No.104, Damodar Park, is not pleaded. 31. Likewise, Flat No.104, Damodar Park, was purchased by defendant no.1 out of his own income and savings. Yet the exact date of acquisition of Flat No.104, Damodar Park, is not pleaded. 31. At this stage, the existence of the joint family properties and the income of Vrajlal assumes significance. There is material on record to indicate that Vrajlal practiced medicine till the year 2003. The plaintiffs have banked upon documents to show that during the relevant period, funds were transferred by Vrajlal to finance the said acquisition. Attention of the Court was invited to an entry in the account of defendant no.1's wife Mrs. Nita to the effect that on 15/5/1996, a sum of Rs.2,00,000.00 was transferred to her by Vrajlal. Reliance was also placed on the entry in the balance-sheet of Vrajlal Vora submitted along with the Income-tax Return for the year ending 31/3/1997, which indicated that the late Vrajlal claimed to have advanced a sum of Rs.9,30,000.00 to defendant no.1 and Rs.6,52,950.00 to his wife Nita Vora. Coincidentally, total consideration for the acquisition of Flat Nos.401 and 402 was of Rs.17,40,000.00. 32. The purpose for which the aforesaid sums were transferred by Vrajlal, and whether there were, in fact, such advances are the matters for trial. What is of significance, at this stage, is the fact that as late as February, 2015, Rama Vora made a declaration, in response to a query by the Income Tax Officer that, in Financial Year 2011 - 2012 (AY 2012-2013), she along with her married daughters (plaintiffs) had decided to waive the unsecured loans of; (a) late Dr. V. R. Vora of Rs.12,54,500.00, (b) V. R. Vora HUF of Rs.4,92,701.00 and (c) late Jabekaben Vora, her mother-in-law of Rs.7,26,926,.00 standing in the books of Dr. Nilesh V. Vora, defendant no.1. It is pertinent to note that defendant no.1 has not set up the case that the plaintiffs had so written off all the loans. 33. Conversely, defendant no.1 has made no effort to furnish the particulars of the source of funds for financing the acquisition of Flat Nos.401 and 402 apart from asserting that he had acquired those properties out of his earnings and savings. The same explanation is offered to sustain the claim of self- acquisition of Flat No.104, Damodar Park. 34. 33. Conversely, defendant no.1 has made no effort to furnish the particulars of the source of funds for financing the acquisition of Flat Nos.401 and 402 apart from asserting that he had acquired those properties out of his earnings and savings. The same explanation is offered to sustain the claim of self- acquisition of Flat No.104, Damodar Park. 34. In the aforesaid view of the matter onus, prima facie, shifts on defendant no.1 to establish that Flat Nos.401 and 402 were acquired by defendant no.1 without the aid of the funds from Vrajlal and Rama. It is true that the time-lag may bring in the elements of acquiescence and bar of limitation. These issues would warrant adjudication at the trial. There are two factors which prima facie tilt the scale in favour of the plaintiffs. The stand of defendant no.1 that post the sale of property at Wadala Udyog Bhavan, the plaintiffs were paid Rs.11,00,000.00 each constitutes an implied admission of the right of the plaintiffs in the joint family property, even post the demise of Vrajlal. Two, the further stand of defendant no.1 that the parties were making efforts to arrive at a family settlement, not in the distant past of the institution of the suit, cannot be said to be inconsequential. Albeit, as defendant no.1 professes, the primary object of the said exercise might have been to resolve the disputes inter se between defendant no.1 and defendant no.2. However, the involvement of the plaintiffs underscores, in the least, the assertion of their claim by the plaintiffs. 35. The second limb of plaintiff's case is the appropriation of the property of Rama by defendant no.1, exclusively, to the detriment of the plaintiffs. It would be suffice to note that there are documents which evidence deposits and financial instruments to the credit of Rama. Emphasis was laid on behalf of the plaintiffs on an entry dtd. 23/4/2018 in the bank account of late Rama, indicating transfer of a sum of Rs.48,00,000.00 and the consequent conversion of the said amount into fixed deposits of various amounts in the name of defendant no.1 and his wife Mrs. Nita to bolster up the submission that defendant no.1 converted the property of late Rama during and after her lifetime to his own use. 36. Nita to bolster up the submission that defendant no.1 converted the property of late Rama during and after her lifetime to his own use. 36. Defendant no.1 attempted to meet the said contention by placing on record material to indicate that the said account from which the amount of Rs.48,00,000.00 was transferred stood in the joint names of Rama, defendant no.1 and his wife Nita and, on the very day, fixed deposits receipts of varying amounts were created in the joint names of Rama, Nilesh and Nita, to make the investment tax efficient. 37. Whether late Rama was exclusively entitled to the said funds is again a question of fact to be decided on the basis of the evidence. Nonetheless, the fact that Rama was endowed with movable properties and funds can hardly be disputed. Defendant no.1 claimed that under the Will of late Vrajlal dtd. 25/2/2006, he was constituted a residury legatee and after the demise of Rama he was exclusively entitled to all the properties left behind by Rama. It is not the case that late Rama made any testamentary dispositions. Even if the case of defendant no.1 is taken at par, whether the directions for application of the property bequeathed by late Vrajlal to Rama constitutes a non-dispositive desire or legacy in favour of defendant no.1 is the question which needs determination. 38. The position which thus obtains is that the plaintiffs have succeeded in making out a prima facie case so far as Flat Nos.401 and 402 and the movables including cash and valuable securities left by late Rama. So far as the office premises Nos.101 to 104 at Presidential Plaza, there is material to indicate that the property in the hands of defendant no.1 did not retain the character of joint family property and, therefore, those acquisition cannot be said to be accretions, out of joint family property. 39. In the backdrop of the time-lag and the fact that defendant no.1 has been residing in Flat Nos.401 and 402, Presidential Towers, it may not be just and convenient to appoint a Court Receiver. Nor the prayer for appointing a Court Receiver to have the inventory of the lockers standing in the name of defendant no.1 seems justifiable. 39. In the backdrop of the time-lag and the fact that defendant no.1 has been residing in Flat Nos.401 and 402, Presidential Towers, it may not be just and convenient to appoint a Court Receiver. Nor the prayer for appointing a Court Receiver to have the inventory of the lockers standing in the name of defendant no.1 seems justifiable. In the circumstances of the case, the interest of the plaintiffs can be adequately protected if defendant no.1 is directed not to alienate, dispose of or otherwise create third party rights in Flat No.401, without the leave of the Court. Since defendant no.2 volunteered to maintain the status quo as regards Flat No.402 gifted by defendant no.1, it may be appropriate to direct defendant no.2 to continue to abide by the said statement with liberty to move for relieving defendant no.2 from the said statement, if the circumstances so warrant. 40. The conspectus of the aforesaid consideration is that the application deserves to be partly allowed. 41. Hence, the following order: :Order: (i) The application stands partly allowed. (ii) Defendant no.1 is directed not to alienate, dispose of or create third party rights in Flat No.401, Presidential Towers, without prior leave of the Court obtained at least after two weeks prior notice to the Advocate for the plaintiffs. (iii) Defendant no.2 shall continue to abide by his statement that defendant no.2 will not dispose of or encumber or otherwise create third party rights in Flat No.402, Presidential Towers, till disposal of the suit. (iv) Defendant no.2 shall be at liberty to move by way of an application to relieve him from the aforesaid statement after two weeks prior notice to the Advocate for the plaintiffs. (v) Application stands disposed of. (vi) Costs in cause.