1 WP3246.12.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 3246/2012
Ravindra Ganeshlal Agrawal,
aged about 51 years, Occ. Agriculturist,
Old City, Murtizapur, Tq. Murtizapur,
Distt. Akola . PETITIONER
ig ...VERSUS...
1] Nandlal Kundanlal Agrawal,
aged 70 years, Occ. AGriculturist.
2] Surajilal Kundanlal Agrawal,
aged 75 years, Occ. R.D. Agent,
3] Omprakash Mohanlal Agrawal,
aged 56 years, Occ. LIC Agent,
4] Vijay Mohanlal Agrawal,
aged 52 years, Occ. R.D.Agent,
5] Rajendra Mohanlal Agrawal,
aged 48 years, Occ. R.D.AGent,
6] Sanjay Moyanlal Agrawal,
aged about 45 years, Occ. Business,
1 to 6 R/o. Near Balaji Mandir,
Tanga Chowk, Old City, Murtizapur,
Tq. Murtizapur, Distt. Akola.
7] Sau. Shobha Bhagwandas Agrawal,
aged 58 years, Occ. Housewife,
R/o. Bada Talav, Shashtri Mandir Ke Pass,
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House No. 3/5/10, Adilabad (A.P.)
8] Sandip Uttamchand Ladaniya,
aged about 42 years, Occ. Service,
9] Uttamchand Kashiprasad Ladaniya.
Aged adult, Occ. Business,
10] Kailash Uttamchand Ladaniya,
aged adult, Occ. Business.
8 to 10 R/o. Narsi Namdeo,
Tq. And Distt. Hingoli. RESPONDENTS
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Dr. Anjan De, Adv for petitioner
Shri F.T.Mirza Adv., for Respondent Nos.1 to 6
None for other respondents.
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CORAM: R. K. DESHPANDE, J.
DATE : 10th DECEMBER, 2013 ORAL JUDGMENT Rule made returnable forthwith.
Heard the matter finally by consent of the learned counsels appearing for the parties.
2] In a suit for partition and separate possession, the trial court has passed an order of injunction on 18.10.2011, restraining the defendants from creating any third party interest ::: Downloaded on - 23/12/2013 20:33:47 ::: 3 WP3246.12.odt in respect of suit property till the final disposal of the suit. In Misc. Civil Appeal No. 104/2011, the appellate court has set aside the said order and dismissed the application at Exh. 28.
Hence, the original plaintiff is before this Court.
3] Undisputedly, the plaintiff is the son of Smt. Kamlabai, pre-deceased daughter of Kundanlal, whereas the defendants are the sons of Kundanlal. Kundanlal died on 02.05.1994, whereas, Smt. Kamalbai died earlier in the year 1975. If the provisions of Section 8 of the Hindu Succession Act applies, presuming that it was a self acquired property of Kundanlal, then the plaintiff being the son of predeceased daughter shall have a share in the property. However, if it is to be treated as an ancestral property of Kundanlal, then the appellate Court has held that the plaintiff cannot claim share in the property as his mother Smt.Kamalbai cannot be treated as coparcenor of the joint Hindu family. The reliance is placed upon the decision of the learned Single Judge of this Court in case of Sadashiv Sakharam Patila and others vrs.
::: Downloaded on - 23/12/2013 20:33:47 :::4 WP3246.12.odt Chandrakant Gopal Desale and others, reported in 2011 (6) ALL MR 207; and the Division Bench judgment in case of Vaishali Satish Ganorkar and another vrs. Satish Keshaorao Ganorkar and others, reported in 2012(3) Mh.L.J. 669.
4] Shri Mirza, the learned counsel appearing for respondent nos.1 to 6 has invited my attention to the order passed by the Apex Court on 23.09.2011 in Special Leave Petition challenging the decision of the learned Single Judge in case of Sadashiv vrs. Chandrakant, cited supra. It is apparent that the Apex Court has made it clear that the observations made by the High Court on the merits of the case shall not prejudicially affect the final adjudication of the suit by the trial court. The case before the learned Single Judge was against the order of temporary injunction.
5] In view of above, the question need to be gone into by the trial court as to whether the plaintiff Ravindra shall have share in the property even if it is assumed to be an ::: Downloaded on - 23/12/2013 20:33:47 ::: 5 WP3246.12.odt ancestral property. The appellate court has committed an error in vacating the injunction order passed by the trial Court.
Therefore, the same cannot be sustained and needs to be quashed and set aside.
6] In the result, the writ petition is allowed. The judgment and order dated 14.06.2012 passed by the learned District Judge-2, Akola in Misc. Civil Appeal No. 104/2011, is hereby quashed and set aside and the order dated 18.10.2011 passed by the learned Joint Civil Judge, Junior Division, Murtizapur, in Regular Civil Suit No. 100/2010, below Exh.28, is hereby restored. The suit is directed to be expedited. No orders as to costs.
JUDGE Rvjalit ::: Downloaded on - 23/12/2013 20:33:47 :::