Gujarat High Court
Manishaben Manubhai Pandit vs Rukshamaniben Dashrathlal ... on 3 September, 2025
NEUTRAL CITATION
C/FA/1546/2020 JUDGMENT DATED: 03/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1546 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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MANISHABEN MANUBHAI PANDIT
Versus
RUKSHAMANIBEN DASHRATHLAL BRHAMKSHATRIYA & ANR.
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Appearance:
MS ARCHANA R ACHARYA(2475) for the Appellant(s) No. 1
MR AB GATESHANIYA(3766) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/09/2025
ORAL JUDGMENT
1. This Appeal is filed by the appellant - original plaintiff under Section 96 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as `the Code') challenging the judgment and decree dated 29.2.2020 passed by the City Civil Court, Ahmedabad in Civil Suit No.4994 of 1998 whereby the suit of the original plaintiff was rejected.
2. Heard learned advocate Ms. Archana Acharya for the Page 1 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 06 2025 Downloaded on : Mon Sep 08 22:18:42 IST 2025 NEUTRAL CITATION C/FA/1546/2020 JUDGMENT DATED: 03/09/2025 undefined appellant and learned advocate Mr. A. B. Gateshaniya for the respondent. Though served, none appeared for respondent No.2. Perused the record.
3. The short facts arising from the record are as under :-
4. The plaintiff - appellant herein filed a suit for a relief of permanent injunction restraining defendant No.1 from transferring or alienating land and from evicting the plaintiff from suit property. It was further prayed that respondent No.2 - society be restrained from transferring the suit property in favour of any 3 rd person. The plaintiff - appellant filed the suit for the property being tenament No.2 situated at Uttara Society, Near RTO, Near Gandhi Ashram, Ahmedabad. The plaintiff and defendant No.1 are daughters and mother respectively. The suit was resisted by defendant No.2 by filing written statement at Exh.15. Page 2 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 06 2025 Downloaded on : Mon Sep 08 22:18:42 IST 2025
NEUTRAL CITATION C/FA/1546/2020 JUDGMENT DATED: 03/09/2025 undefined Respondent No.1 - original defendant No.1 though served did not file any written statement. Issues were framed at Exh.30. Plaintiff examined herself. Defendant No.1 examined herself at Exh.116 and defendant No.2 was also examined. After considering the evidence, learned trial Court dismissed the suit. Being aggrieved and dissatisfied with the impugned judgment and decree dated 29.2.2020 passed by the City Civil Court, Ahmedabad in Civil Suit No.4994 of 1998, the appellant
- original plaintiff has filed the present appeal.
5. Learned advocate for the appellant contended that the suit premises was purchased by father of the plaintiff. As the father of the plaintiff left the maternal house somewhere in 1960, respondent no.1 married with Dashrathlal Balubhai Brahmakshatriya. The defendant No.1 thereafter transferred the suit property in the name of his son - Pankajbhai Manubhai Pandit on 23.10.1979. Thereafter Pankjbhai M. Pandit applied Page 3 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 06 2025 Downloaded on : Mon Sep 08 22:18:42 IST 2025 NEUTRAL CITATION C/FA/1546/2020 JUDGMENT DATED: 03/09/2025 undefined with society to transfer suit property in the name of plaintiff on 26.8.1989. Pankajbhai Padit was unmarriad and died on 2.6.1995. Name of defendant No.1 was mutated in society record as well as in share certifiate on 31.8.1998. It is contended that defendant No.1 on 23.9.2007 and 20.1.2010 applied to the society to mutate names of her daughters inluciding plaintiff in the share certificate but the society did not take any action and taking advantage of such position, defendant No.1 threatened plaintiff to vacate suit property. Resultantantly, plaintiff was constrained to file the suit for a relief of permanent injunction. She has further contended that the defendant No.2 did not contest the suit by filing written statement and hence the contentions raised by plaintiff - appellant has remained uncontroverted. Exhs.54 and 55 are the applications made by the mother to the custodian of respondent No.2 society dated 23.9.2007 inter alia contending that son of defendant No.1 has expired Page 4 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 06 2025 Downloaded on : Mon Sep 08 22:18:42 IST 2025 NEUTRAL CITATION C/FA/1546/2020 JUDGMENT DATED: 03/09/2025 undefined and, therefore, names of 3 daughters of defendant No.1 be mutated in share certificate. The said request was again reiterated by defendant No.1 vide Exh.55 dated 20.1.2010. As the society did not take any action, plaintiff gave a notice Exh.56 to the society to mutate her name in the share certificate. During the life time of Pankajbhai, an application dated 26.8.1989 was made to the society to enter the name of plaintiff in the share certificate of the suit property. However, the society did not mutate the name of plaintiff in the share certificate of the suit property. Upon death of Pankajbhai, defendant no.2 society without intimating the plaintiff, inserted the name of defendant No.1 in the share certificate. In the record of Ahmedabad Municipal Corporation, name of plaintiff and her borther are shown as occupier and owner respectively. From the evidence on record, it is crystal clear that the plaintiff is in possession of the suit property and the intention of the mother - respondent No.1 was clear by Page 5 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 06 2025 Downloaded on : Mon Sep 08 22:18:42 IST 2025 NEUTRAL CITATION C/FA/1546/2020 JUDGMENT DATED: 03/09/2025 undefined letters dated 23.9.2007 and 20.1.2010 Exhs.54 and 55 respectively to get the suit property transferred in the names of 3 daughters of defendant No.1 including the appellant after deleting the name of late Pankajbhai. The oral deposition of the plaintiff has gone unchallenged as defendant No.1 - mother has not cross examined the plaintiff. In absence of any contrary evidence, a presumption can be drawn that defendant no.1 has accepted the case of the plaintiff and therefore a decree of declaration and permanent injunction ought to have been passed in favour of the plaintiff. No other submissions are made except the above.
6. Per contra, learned advocate for the respondent has supported the judgment and decree and contended that defendant No.1 had purchased the property from her own income as defendant No.1 was serving in a School at the relevant point of time and out of her own Page 6 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 06 2025 Downloaded on : Mon Sep 08 22:18:42 IST 2025 NEUTRAL CITATION C/FA/1546/2020 JUDGMENT DATED: 03/09/2025 undefined income defendant No.1 had purchased suit property in her name. It is further contended that the plaintiff has no independent right qua suit property. The plaintiff has filed a suit for declaration coupled with a relief, a simplictor of permanent injunction. However, the declaration is in the nature of an injunction and in absence of any consequential relief, a simplicitor suit for permanent injunction is not maintainable. It is further contended that during the lifetime of Pankajbhai, his name was mutated in the share certificate upon request made by defendant No.1. However, after the death of Pankajbhai, upon written request made by defendant No.1, the society re- transferred the name of defendant No.1 in place of Pankajbhai. It is further contended that the plaintiff could not prove her case that the father had invested in purchasing the suit property in the name of defendant No.1. Right from inception, the title of the suit property stands in the name of defendant No.1 and Page 7 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 06 2025 Downloaded on : Mon Sep 08 22:18:42 IST 2025 NEUTRAL CITATION C/FA/1546/2020 JUDGMENT DATED: 03/09/2025 undefined merely because plaintiff is in possession of the suit property, a relief of permanent injunction is not available to the plaintiff. No other submissions are made except the above.
7. I have considered the submissions canvassed by learned advocates for the respective parties and perused the Record & Proceedings.
8. Before averting to the question of maintainability of the suit, it would be profitable to refer certain facts which emerge from the record.
9. The suit property was initially purchased by defendant No.1 in her name and the society had issued a share certificate in the name of defendant No.1. Exhibit 40 is a copy of resolution passed by defendant No. 2 - society on 23-10-1979. It appears from Resolution No.1 Page 8 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 06 2025 Downloaded on : Mon Sep 08 22:18:42 IST 2025 NEUTRAL CITATION C/FA/1546/2020 JUDGMENT DATED: 03/09/2025 undefined that upon written request made by defendant No.1, name of Pankajbhai i.e. son of defendant No.1 was transferred in the share certificate. By a certificate dated 25-08-1980, Exhibit 44, the society declared that the suit property stands in the name of Pankajbhai Manubhai Pandit. Thereafter, on 26-08-1989 (Exhibit
48), Pankajbhai Manubhai Pandit requested the custodian of defendant No.2 society to enter name of plaintiff in the share certificate. However, it appears from the record that the said application of Pankajbhai Manubhai Pandit was not either decided no changes were made in share certificate. On 2.6.1995, brother of Plaintiff Pankajbhai Manubhai Pandit expired leaving behind no legal heirs. The defendant No.2 society vide communication dated 31-08-1998, Exhibit 52, intimated defendant No.1 that her application dated 4.8.1998 requesting to transfer share of suit property in her name has been accepted and Exh.53 is the share certificate which indicates that name of defendant No.2 Page 9 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 06 2025 Downloaded on : Mon Sep 08 22:18:42 IST 2025 NEUTRAL CITATION C/FA/1546/2020 JUDGMENT DATED: 03/09/2025 undefined has been mutated in the society record on 3.8.1998.
10. The appellant - plaintiff has not stated any averment to the effect what right does she have in the suit property. What has been pleaded by plaintiff is suit property was purchased by her father in the name of defendant No.1, and defendant No.1 upon application requested the society to mutate name of Pankajbhai in the society record. The plaintiff has prayed for a relief of declaration in the form of permanent injunction. In absence of pleading as to any legal right or title over the suit property, a simplicitor suit for an injunction in the nature of declaration is not maintainable. To have a decree of permanent injunction in the nature of declaration, plaintiff must establish a title and / or a legal right to retain possession of the suit property.
11. From the record, it reveals that the suit property is self Page 10 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 06 2025 Downloaded on : Mon Sep 08 22:18:42 IST 2025 NEUTRAL CITATION C/FA/1546/2020 JUDGMENT DATED: 03/09/2025 undefined acquired property of mother - defendant no. 1. Plaintiff has not been able to prove that father had purchased the suit property in the name of defendant No.1. Defendant No.1 was serving in a School which is coming out from the evidence. The mother had independent source of income and out of which defendant No.1 had purchased the suit property and right from the inception, the suit property stood in the name of defendant No.1, except during certain years when name of the son of defendant No.1 was mutated in the share certificate. The request of the son Pankajbhai to the society that the suit property be mutated in the name of plaintiff remained pending even after his death and the name of plaintiff was never mutated in the share certificate. Even the request of defendant No.1 to mutate names of all the 3 daughters in the share certificate also remained pending. The plaintiff, however , requested the society to give effect of her mother's wish, but the said request Page 11 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 06 2025 Downloaded on : Mon Sep 08 22:18:42 IST 2025 NEUTRAL CITATION C/FA/1546/2020 JUDGMENT DATED: 03/09/2025 undefined was made during the pendency of the suit which is of no importance. The plaintiff does not have an automatic share in her mother's property while her mother is alive.
12. In the present set of facts, even if, the defendant No.1 has not filed any written statement and plaintiff's version has gone unchallenged, plaintiff cannot be granted a relief of declaration without any consequential relief. It is well known principle of law that the plaintiff has to succeed on his/her strength and not on the weaknesses of the other side.
13. The plaintiff has also sought a relief against defendant No.2 which is a Cooperative Housing Society. Undisputedly, the plaintiff has filed the suit against the society without issuing any notice as contemplated under Section 167 of the Gujarat Cooperative Societies Page 12 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 06 2025 Downloaded on : Mon Sep 08 22:18:42 IST 2025 NEUTRAL CITATION C/FA/1546/2020 JUDGMENT DATED: 03/09/2025 undefined Act 1961. Section 167 of the Act is reproduced hereunder for the sake of convenience.
"167. Notice necessary in suits.
- Save as otherwise provided in this Act, no suit shall be instituted against a society, or any of its officers in respect of any act touching he business of the society, until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left."
14. It is not even a whisper in the plaint that before institution of the suit, a statutory notice as contemplated under Section 167 of the Act was issued when the plaintiff is claiming any relief against a cooperative society, fulfillment of provisions contained under Section 167 of the Act being mandatory, are required to be fulfilled by plaintiff and in absence of any statutory notice issued before the institution of the suit, suit is not maintainable against the registered cooperative society.
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NEUTRAL CITATION C/FA/1546/2020 JUDGMENT DATED: 03/09/2025 undefined
15. Nature of relief against society is a declaration that society has no right to transfer suit property in any other name.
16. As discussed above and in view of above facts and circumstances, I do not find any reason to interfere in the findings arrived at by the learned trial Court. More particularly the decision of the learned trial Court is in complete consonance with the evidence on record and the settled position of law.
17. In the backdrop of the above facts and circumstances of the case, the first appeal is meritless and the same is dismissed. No order as to costs. Record and Proceedings, if any, be sent back to the concerned Court forthwith.
18. After passing the above order, learned advocate for the Page 14 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 06 2025 Downloaded on : Mon Sep 08 22:18:42 IST 2025 NEUTRAL CITATION C/FA/1546/2020 JUDGMENT DATED: 03/09/2025 undefined appellant has submitted that the appellant was protected by granting interim relief during the pendency of this appeal which has continued till today and, therefore, she requested to continue the same for a period of 3 months to which learned advocate for the respondent has objection. However, in the interest of justice, request made by learned advocate for the appellant is accepted for the period of 4 weeks. Interim Relief which has remained in force during first appeal to continue for a period of 4 weeks from the date of receipt of copy of this order.
(D. M. DESAI,J) vk Page 15 of 15 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 06 2025 Downloaded on : Mon Sep 08 22:18:42 IST 2025