By observing that there are several other variables which will have to be gone into and decided while ascertaining the shares of each of the individuals associated with a land which is a joint property in the light of the subsequent amendment in the Hindu Succession Act of the year 2005, the Bombay High Court dismissed the present petition moved by the petitioners assailing the common order passed whereby their application filed for seeking temporary injunction against the respondents was rejected by stating that any kind of prejudice shall cause injustice to the respondents inasmuch as in spite of that land being a joint property they would be deprived of having its possession and benefit.
A Single bench of Justice Mangesh S. Patil dismissed the petition instituted by the petitioner in the present case against the common order whereby the petitioners application for temporary injunction was rejected and consequently, the respondents application for possession warrant was allowed, by observing that observing that in view of the peculiar facts and circumstances of the matter in hand, the petitioners who claim through a purchaser cannot be allowed to obstruct the execution and should wait for a decree for partition to be passed and executed.
The facts relevant for adjudication for the present writ appeal were that one Bhatu was the husband of the first respondent Jijabai and father of the respondents two to six. Their ancestral family had joint family properties. Subsequently, Bhatu executed a sale deed dated December 26, 1986 through which he sold the land bearing number Gat No. 163/1 to the original petitioner Tryambak’s father Namdeo. Tryambak died while the petition was lying pending and it was being carried forward by his legal representatives.
Thereafter, respondents - one to four instituted civil suit seeking a declaration that they were the co-owners of the property stated above and for impleading Bhatu as the first defendant in the said suit. The suit was decreed. However, the petitioners contended the execution of the decree by preferring an application under OrderXXI Rule 97 read with Section 151 of the Code of Civil Procedure . The same was rejected by an order dated May 13, 2014.
The petitioners yet again approached this Court by way of review petition in their second appeal which was already dismissed by a judgment dated August 21, 2013. While dismissing the review petition it was stated that the sale- deed executed by Bhatu in favor of Namdeo was declared non- binding on the share of the respondents- one to four was declared and the petitioners could consider a step for effecting the partition.
In pursuance of the same, the petitioners failed a suit for general partition against the respondents- one to six in respect of all the properties of the joint family of Bhatu. It was also discovered that the respondents one - six having sold some of the properties to the respondents who were shown as the formal parties in the petition. It was the case of the petitioner that Bhatu had 1/3rd undivided share in all the properties, and he was seeking the same to be separated and had further prayed that the land Gat No. 163/1 sold by him to their predecessor Namdeo be allotted to his share.
Thus keeping in view the aforesaid circumstances, the petitioners submitted application in the regular suit claiming temporary injunction against the respondents- one to six from executing the decree passed in the Regular Civil Suit. On the other hand, the respondents one- to six prayed for issuance of possession warrant. The common order stating that petitioner’s application for temporary injunction stands rejected and consequently, the respondents application for possession warrant was allowed was assailed through the present writ petition.
After hearing the rival contentions of the parties, the Court noted that the facts of the present case were not disputed. It was further noted by the Court that petitioners through temporary injunction were seeking to stay the execution of the decree and thereby claiming to be in exclusive possession of the entire land bearing number Gat- 163/1.
In view of the same, the Court noted the concept of a Hindu Joint Family property was necessary to bear in mind. In relation to the same, the Court stated that a share of a member of the joint family would be ever fluctuating. Bhatu had sold the land Gat No. 163/1 to Namdeo by the sale-deed dated December 26, 1986.The petitioners in their suit for general partition arrayed the respondents one to six , herein as the defendant no. one to six, claiming them to be Bhatu’s wife (Jijabai) and their daughters and even a son. The share of Bhatu in the circumstances on the date of the sale-deed would depend upon the fact as to which of these children were born and even conceived on the date of the sale-deed, the Court noted.
It was further observed that prima facie they may be entitled to have a proportionate share to which Bhatu would be entitled to, it would be rather premature to conclude that the entire land Gat No. 163/1 would have fallen to his share and the same would have allowed the petitioners to retain it. Rather it would cause a serious prejudice and injustice to the respondents inasmuch as in spite of that land being a joint property they would be deprived of having its possession and benefit, the Court remarked.
By placing reliance on the case of Hanmandas Ramdayal and others Vs. Vallabhdas Shankardas, this Court reiterated the long standing principle of Hindu Law wherein the non alienating coparceners have a right to file a suit for possession against the purchaser who has purchased an undivided share of an alienating coparcener. Whereas the remedy for such a purchaser would be to file a suit for general partition, the Court submitted.
In view of the aforesaid observations, the Court concluded by observing that in view of the peculiar facts and circumstances of the matter in hand, the petitioners who claim through a purchaser cannot be allowed to obstruct the execution and should wait for a decree for partition to be passed and executed. Thus in view of the provision of Section 41 (a) and (b) of the Specific Relief Act, 1963, no injunction can be granted to the execution of a decree, the Court stated.
Accordingly, the writ petition was dismissed.
Case name: TRYAMBAK NAMDEV MALI AND ORS Vs. SMT. JIJABAI BHATU SONAR AND ORS.
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