Bombay High Court
Smt Manibai Ganpat Sutar And ... vs Krishna Ganpat Sutar And Others on 28 June, 2017
Bench: Anuja Prabhudessai
903_ao_61_20144 wi_caa_85_2014.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.61 OF 2014
WITH
CIVIL APPLICATION NO.85 OF 2014
IN
APPEAL FROM ORDER NO.61 OF 2014
Smt. Manibai Ganpat Sutar & Ors. ...Appellants
Versus
Krishna Ganpat Sutar and Ors. ...Respondents
.....
Mr. K.S. Dewal with Mr. J.M. Joshi i/b. Mr. Roshan Tanna for the
Appellants.
Mr. Prasad Dani, senior counsel with Mr. Amol Mhatre for the
Respondents.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATED : 28th JUNE, 2017.
JUDGMENT:
Rule. Respondents waive service. By consent, Rule is made
returnable forthwith and the Petition is taken up for hearing and final
disposal.
2. The Appellants herein have challenged the order dated 30th
December, 2013 whereby the learned Civil Judge, Senior Division,
Thane has dismissed the application for injunction filed in Special Civil
Suit No.423 of 2008.
Megha 1/6
903_ao_61_20144 wi_caa_85_2014.doc
3. I have perused the pleadings of the respective parties and
considered the submissions advanced by the learned counsels for the
respective parties.
4. The Appellant No.1 is the widow and the Appellant Nos.2
to 9 are children of Ganpat Sutar. The Respondent No.2 is the first
wife and the Respondent Nos.1, 3 and 4 are the children of Ganpat
Sutar from the first marriage. The dispute in the present case is in
respect of the properties bearing survey No.136, Hissa Nos. 2 and 9
situated at village Khairne, and the property bearing Gut No.263(P), at
village -Turbhe and Survey No.6, Hissa No.8 at Village Vashi, which
were originally owned by said Ganpat Sutar. Ganpat Sutar had formed
a partnership firm under the name and style of M/s. Sutar and
Company with Appellant Nos.2, 8 and the Respondent No.1 as its
partners. After the death of Ganpat Sutar the partnership was
reconstituted and his widow Manibai Sutar was added as a partner of
the firm. Subsequently, the Appellant No.3-Shamkant Ganpat Sutar,
Appellant No.3, Ramakant and Shashikant were also admitted as
partners in the said Firm.
Megha 2/6
903_ao_61_20144 wi_caa_85_2014.doc
5. The grievance of the Appellants was that the Respondent
No.1, who had assumed the position of Karta, had indulged in several
illegal activities such as withdrawal and transfer of funds from the
accounts of partnership firm, purchase of property in his name and on
the name of his wife and children and siphoning money of the
partnership firm by forging signatures of partners, misappropriation of
partnership funds, etc. The Appellants apprehended that the
Respondent No.1 was intending to transfer the property bearing Plot
No.7A, Sector 9 situated at Vashi, Navi Mumbai in his personal name.
The Appellants therefore, filed Special Civil Suit No.712 of 2007 for
declaration, accounts and injunction in respect of the said property.
The said suit is admittedly referred to the Arbitration and the same is
pending.
6. The Appellants have claimed that subject matter of the
present suit is the joint family properties of the Appellants and the
Respondents and that they have entitled share therein. The Appellants
have therefore called upon the Respondents to render true and correct
accounts of M/s. Sutar and Co. and also demanded partition by metes
and bounds of the immovable properties. The Respondents did not
concede to the request and the same necessitated filing of the Special
Megha 3/6
903_ao_61_20144 wi_caa_85_2014.doc
Civil Suit No.423 of 2008. The Appellants claim that the Respondents
have been misappropriating the funds and have used the property for
their personal gain, whereas the Respondents have claimed that the
Appellants have not disclosed several properties and other immovable
assets held by them. It is contended that the Appellant Nos.2, 3 and 8
are residing separately since 1993 and the Respondent No.1 had
purchased several properties by obtaining loan from the Bank as well
as financial institutions. The said properties are self acquired properties
and cannot be treated as Joint Hindu Family properties. It is further
stated that some time in the year 1993, Ganpat Sutar had partitioned
the property and as such the Appellants are not entitled to seek
partition of the properties.
7. The dispute in the present proceedings is between the
family members. The previous suit was being Special Civil Suit No.712
of 2007 is pending arbitration. Besides the issue of oral partition
cannot be decided at this stage and until such adjudication it is
necessary to preserve status quo in respect of the properties in dispute
so as to prevent perpetration of wrong.
8. In this regard, it is also to be noted that by order dated
Megha 4/6
903_ao_61_20144 wi_caa_85_2014.doc
16.6.2008 the learned Judge had directed the parties to maintain
status quo in respect of the suit property. The status quo order
continues to operate till date.
9. Mr. Dani, the learned senior counsel for the Respondents,
on instructions makes a statement that without prejudice to the rights
of the Respondents, the Respondents will not transfer, alienate or
create third party right in respect of the suit property till the disposal of
the suit. The statement is accepted.
10. In the light of the above statement and also considering the
fact that the issues involved in the suit require adjudication on merits,
in my considered view the appeal can be disposed of with directions to
the parties to maintain status quo till the disposal of the suit.
11. The Appeal from Order stands disposed of in above terms.
12. The learned Trial Judge shall endeavour to dispose of the
civil suit as expeditiously as possible and preferrably within a period of
one year from the date of framing of the issues.
Megha 5/6
903_ao_61_20144 wi_caa_85_2014.doc
13. It is made clear that this Court has not gone into the merits
of the matter and all the points and contentions of the respective
parties are expressly kept open.
14. In view of disposal of the Appeal from Order, the Civil
Application does not survive and hence, disposed of.
(ANUJA PRABHUDESSAI, J.)
Megha 6/6
