Bombay High Court

Dr. Babasaheb Deorao Jadhav And ... vs Mahadeo Deorao Jadhav And Others on 10 December, 2021

Bench: R. G. Avachat

                                                Appeal from Order No.21/2020
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


               APPEAL FROM ORDER NO.21 OF 2020 WITH
                 CIVIL APPLICATION NO.5554 OF 2020


 1.       Dr. Babasaheb Deorao Jadhav,
          Age 75 years, Occ. Pensioner,

 2.       Saraswatibai Babasaheb Jadhav,
          Age 68 years, Occ. Household &
          Agriculture.

 3.       Anand Babasaheb Jadhav
          Age 49 years, Occ. Business &
          Agriculture

 4.       Sau. Vandana Anand Jadhav,
          Age 47 years, Occ. Business &
          Agriculture

          All R/o Building No.10, Flat No.3-B,
          Atur Park Co-operative Society,
          Sy. No.5, CTS No.11/1,
          Koregaon Park, Pune - 411 001       ... APPELLANTS
                                  (Orig. Deft.Nos.5, 9, 10 & 11)
          VERSUS

 1.       Mahadeo Deorao Jadhav,
          Age 80 years, Occ. Agriculture,
          R/o Nandur Ghat, Tq. Kaij,
          District Beed.

 2.       Keshavrao Deorao Jadhav,
          Age 78 years, Occ. Agriculture,
          R/o Nandur Ghat, Tq. Kaij,
          District Beed.

 3.       Kashibai Vishnupant Kakade,
          Age 76 years, Occ. Household,
          R/o Bansarola, Tq. Kaij, Dist. Beed.

 4.       Usha Keshavrao Jadhav,




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                                              Appeal from Order No.21/2020
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          Age 52 years, Occ. Household,
          R/o Nandur Ghat, Tq. Kaij,
          District Beed.

 5.       Yuvraj Keshavrao Jadhav,
          Age 47 years, Occ. Agriculture,
          R/o Nandur Ghat, Tq. Kaij,
          District Beed.

 6.       Ashok Mahadeo Jadhav,
          Age 52 years, Occ. Agriculture,
          R/o Nandur Ghat, Tq. Kaij,
          District Beed.

 7.       Bhaskar Mahadeo Jadhav,
          age 46 years, Occ. Agriculture,
          R/o Nandur Ghat, Tq. Kaij,
          District Beed.

 8.       Satish Daivan Hange,
          Age 50 years, Occ. Service,
          R/o Hangewadi (Rameshwarwadi),
          Tq. Kaij, Dist. Beed.

 9.       Hema Satish Hange,
          Age 43 years, Occ. Housewife
          R/o Hangewadi (Rameshwarwadi),
          Tq. Kaij, Dist. Beed
          At present at Allahahad
          Uttar Pradesh

 10.      Asaram Dattatraya Pangre,
          Age major, Occ. Agriculture,
          R/o Subhash Road, Ward No.2
          House No.2/8/45, Beed

 11.      Ashabai Asaram Pangre,
          Age major, Occ. Household,
          R/o Subhash Road, Ward No.2
          House No.2/8/45, Beed

 12.      State of Maharashtra,
          through Collector, Beed

 13.      The Tahsildar,
          Tahsil Office, Kaij, Dist. Beed.




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                                                    Appeal from Order No.21/2020
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 14.      The Sub-Registrar,
          Sub-Registrar Office,
          Tahsil Office Campus,
          Kaij, District Beed.

 (Participation of respondent Nos.2 to 13 is not required in disposal
 of present appeal as Exh.160 was filed by the respondent No.1
 against the appellants - original defendant Nos.5, 9, 10 and 11 and
 defendant No.14)
                                                    ... RESPONDENTS
                                              (No.1 Orig. Plaintiff,
                                         Nos.2 to 14 Orig. Defendants)

                                .......
 Shri S.V. Adwant, Advocate for appellants
 Shri A.D. Gade, Advocate for respondent No.1.
 Shri B.V. Virdhe, A.G.P. for respondents No.12 to 14
                                .......

                                   CORAM :        R. G. AVACHAT, J.
                  Date of reserving judgment : 1st September, 2021
                  Date of pronouncing judgment : 10th December, 2021


 JUDGMENT:

The challenge in this appeal is to an order dated

20/6/2020, passed by the Court of Civil Judge, Senior

Division, Ambajogai on application Exh.160, in Special Civil

Suit No.5/2012. By the impugned order, the parties to the

suit have been directed to maintain status quo as regards

alienating, transferring or creating third party interest in

respect of the suit properties. Original defendants No.5, 9, 10

and 11 have, therefore, preferred the present appeal.

Appeal from Order No.21/2020 :: 4 ::

2. Shri S.V. Adwant, learned counsel for the

appellants herein would submit that, it is a suit for partition

and separate possession of house and landed properties (55

in number), specifically described in the plaint. The suit dates

back to 2012. An application (Exh.5), seeking for injunction,

restraining the appellants from creating third party interest in

respect of the suit properties was filed along with the suit

itself. The plaintiff, elder brother of the appellant No.1, did

not urge for hearing of the said application. The trial Court,

therefore, in September 2015, passed an order to hear the

application (Exh.5) along with the suit. Issues have been

framed way back in June 2017. affidavit of evidence was also

filed. The plaint, in the meanwhile, came to be amended. For

over five years, the plaintiff has been seeking adjournments in

the matter for one or the other reason. All of a sudden, an

application Exh.160 came to be moved. It is nothing but a

replica of application Exh.5. In October 2019, the Court

passed the order of status quo without say to the application.

Without indicating any reason, the trial Court confirmed the

order of status quo vide impugned order.

3. The learned counsel would further submit that, the

appellants herein constitute among themselves a joint family.

Appeal from Order No.21/2020 :: 5 ::

The appellant No.1 was a meritorious student. He first did

M.B.B.S. way back in 1969. He joined the Government

service as a Medical Officer. He completed Masters in

Surgery, while in service. He successfully passed examination

held by the M.P.S.C. for recruitment of Class II Medical Officer.

In the course of time, he became Class I Officer. He served

on the post of Superintendent Sir J.J. Group of Hospitals,

Mumbai and superannuated on the post of Officer on Special

Duty in Medical Education and Public Health Department,

Government of Maharashtra, Mantralaya. Learned counsel

would further submit that, the appellant No.3, son of

appellant No.1 did Master in Engineering. He had opened up

an industry and in the course of time, he diversified his

business to construction activities. His mother and his wife

have also been well educated. All of the appellants have been

Income Tax assessees. The plaint is conspicuously silent to

state that the family of the plaintiff and defendants did have

surplus nucleus for acquisition of other properties. There is

also no pleading and evidence as well to show that, any such

nucleus, if any, was applied for acquisition of other properties.

The properties acquired by the appellants herein have been

their gains of earnings. The properties held by the female

members of the family of the appellants are their absolute

Appeal from Order No.21/2020 :: 6 ::

properties by virtue of Section 14 of the Hindu Succession

Act. The appellant No.1 had raised loan for acquisition of the

properties. Evidence to that effect has been placed on record.

According to learned counsel, the concept of blending of a

property of the female member of the joint family is unknown

to Hindu Law. Whatever properties have been purchased

from the plaintiff have been duly paid for. According to

learned counsel, the trial Court ought not to have restrained

the appellants from exercising right to alienate or deal with

the properties they have acquired on their own exertion.

Learned counsel, therefore, urged for allowing the appeal.

4. Shri A.D. Gade, learned counsel for respondent

No.1 would, on the other hand, submit that, the plaintiff was

elder member of the joint family. The family admittedly held

number of agricultural lands and house properties as well.

There was sufficient nucleus for acquisition of the other

properties. Documents have all been placed on record. The

trial Court passed an order of status quo on the application

Exh.160 with the consent of learned counsel for the

appellants. The said order continued from time to time.

Affidavit of evidence has been filed about 3 - 4 years back.

The trial Court has rightly exercised the discretion in passing

Appeal from Order No.21/2020 :: 7 ::

the impugned order. The appellate Court should, therefore,

not interfere with the order passed in exercise of discretionary

jurisdiction. Learned counsel took me through some

documents in the nature of sale deeds etc. to show that it is

the plaintiff who has purchased some immovable properties in

the name of appellant no.1 and his son. At the instance of

appellant No.1, a Company namely Anand Live Stock Pvt. Ltd.

was formed. Some joint family properties have been

transferred for formation of the Company. On passing of a

resolution in the absence of plaintiff and his family members,

the properties have been transferred in the name of some of

the appellants herein. This is nothing but a fraud. The

appellants have, in fact, transferred a few joint family

properties to the defendants No.14 and 15. If the impugned

order is set aside, the appellants would create third party

interest in respect of the suit properties. The same would be

prejudicial to the interest of the plaintiffs and other members

of the joint family. Relying on the authoritative

pronouncements, the learned counsel would submit that, the

order passed in due exercise of discretionary jurisdiction

ought not to be interfered with in appeal. Principle of lis

pendence is not an effective remedy. According to learned

counsel, the suit is pending hearing. In the fitness of things,

Appeal from Order No.21/2020 :: 8 ::

no interference with the impugned order is warranted,

submitted by the learned counsel.

5. Deorao was the common ancestor. He was

survived by his wife, three sons and three daughters. The

plaintiff is eldest among the siblings. 2 / 3 daughters of

Deorao are no more. On the demise of Deorao, his progeny

inherited movable and immovable properties. The properties

in the suit are 55 in number. 28 properties are admitted to

have been either ancestral or joint family properties. The

impugned order in respect of these properties, therefore,

need not be interfered with.

6. It is the case of the plaintiff that, it is he who

spent for primary and higher education of the appellant No.1.

It is he who has acquired immovable properties in the name

of appellant No.1 and his son. The consideration therefor was

paid out of the joint family funds. The suit is for partition and

separate possession with a consequential prayer for setting

aside alienations.

7. The normal state of every Hindu family is joint.

Such family is presumed to be joint in food and worship. The

Appeal from Order No.21/2020 :: 9 ::

presumption is stronger in the case of brothers than in the

case of cousins and the further one goes from the founder of

the family, the presumption becomes weaker and weaker.

There is, however, no presumption that a family, because it is

joint, possesses joint property. A person asserting the

existence of joint family property has to prove the nucleus

with which such property could be acquired. It is only then

such property could be presumed to be joint and the onus of

proving self acquisition would shift to the person asserting as

such.

8. Along with the suit itself, an application Exh.5 was

preferred. The record indicates that, the plaintiff did not urge

for hearing of the said application. The trial Court ultimately

passed an order that the said application would be heard

along with the suit. With the reiteration of almost all

averments in the application Exh.5, the application Exh.160

came to be moved. The same was also pending for long. It is

true, vide order dated 31/10/2019, the trial Court passed the

following order :

"Perused the application and say. Learned counsel for the defendant submitted that, both the parties be directed to maintain

Appeal from Order No.21/2020 :: 10 ::

status-quo in respect of alienation of the suit property. Accordingly to both the parties, to maintain status quo in respect of suit property till the next date."

11. The parties were directed to maintain status quo

till the next date. It was an order passed below application

Exh.167 moved by the plaintiff. The appellants herein had

filed a say thereto as under :-

"Defendants No.5, 9 to 11 have today filed their say/ reply to the interim application filed by plaintiff below Ex.160 and also ready to argue on the said application. Plaintiff has not shown the all properties which are mentioned in the original suit and only ask the relief against the self acquired properties in the name of respondents No.5, 9 to 11. This shows plaintiff has filed this application with ill intention and only to harass the defendants No.5, 9 to 11 and only to prolong the matter. Hence this application be rejected."

12. The aforesaid reply undoubtedly indicates that the

learned counsel for the appellants had given concession to

pass status quo order only for the period to the next date.

True, the said order continued for certain length of time. The

application Exh.160, however, was ultimately argued on

merits. The trial Court passed the impugned order with

Appeal from Order No.21/2020 :: 11 ::

following reasons :-

"Accordingly the fact which property is self acquired property, and which property is the joint family property, can be ascertained after leading the full fledged evidence, and at this stage while deciding the interim application, it would not be proper to record any finding in this regard. Where plaintiff has filed his affidavit of evidence at Exh.145. The earlier application filed at Exh.5 was ordered to be heard along with the main suit and subsequently present application is filed by the plaintiff stating that during the pendency of the suit defendants are alienating the suit property. Thereafter as per order passed below Exh.165, 167 both the parties were directed to maintain the status quo in respect of the suit property. Again the very status quo order is continued till the next date as per order passed below Exhs.173, 175, 177, 178, 179, 183, 185, 186, 187, 190, 193. Accordingly, from time to time the very status quo order is got extended. As affidavit of P.W.No.1 is already filed on record at Exh.145. Therefore, it would be just to expedite the hearing of the suit directing both the parties to maintain the status quo in respect of the alienating the suit property during the pendency of the suit."

13. The aforesaid order would undoubtedly indicate

the trial Court to have not assigned any reason for passing

the impugned order. Although the learned counsel for the

respondent no.1 was right in submitting, on the basis of

Appeal from Order No.21/2020 :: 12 ::

authoritative pronouncement that, the appellate Court shall

not interfere with the order passed in exercise of due

discretion. The aforesaid order indicates no reasons have

been assigned for passing order in exercise of discretionary

jurisdiction. The three parameters, namely prima facie case,

balance of convenience and irreparable loss required to be

considered for passing order of interim injunction have not

been considered at all.

14. In case of Ramdev Food Products (P) Ltd. Vs.

Arvindbhai Rambhai Patel & ors., [ (2006) 8 SCC 726 ],

relying upon the judgment in Transmission Corpn. of A.P. ltd.

Vs. Lanco Kondapalli power (P) Ltd., (2006) 1 SCC 540, the

Apex Court held :-

"Normally the appellate court would be slow to interfere with the discretionary jurisdiction of the trial court. The grant of an interlocutory injunction is in exercise of discretionary power and hence, the appellate courts will usually not interfere with it. However, the appellate courts will substitute their discretion if they find that discretion has been exercised arbitrarily, capriciously, perversely, or where the court has ignored the settled principles of law regulating the grant or refusal of interlocutory injunctions.

The appellate court may not reassess the

Appeal from Order No.21/2020 :: 13 ::

material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion."

The Apex Court further referred the case of

Wander Ltd. Vs. Antox India (P) Ltd., 1990 Supp. SCC 727,

Seema Arshad Zaheer Vs. Municipal Corpn. Of Greater

Mumbai, (2006) 5 SCC 282 : (2006) 5 Scale 263, held :-

In this case the courts below proceeded on a prima facie misconstruction of documents. They adopted and applied wrong standards. Therefore a case for interference has been made out."

15. Under the Hindu Law, a member of joint family

can have his separate property. The appellant No.1 became

major in December 1963. he did M.B.B.S. in 1969. He was

appointed as a Medical Officer with the Health Department of

the State of Maharashtra. He completed his Master in

Surgery, while in service. After having passed the

examination held by M.P.S.C., he was first appointed as

Medical Officer, Class II and then he became Class I Officer.

Appeal from Order No.21/2020 :: 14 ::

His son, appellant No.3 is postgraduate in Engineering.

Initially he had opened up an industry at M.I.D.C., Waluj,

Aurangabad. He has now diversified to construction business.

His wife too is well educated. The appellants have been

income tax assessees. There is material on record to indicate

the appellant No.1 to have had raised loan from the Bank.

Pledged gold ornaments for another loan to acquire

immovable property. He had been in Government service for

over 20 years. Whatever acquisitions made by him and his

son would prima facie take colour of their self acquisition.

There is prima facie nothing to indicate that the joint family

funds have ever been paid to them for acquisition of the

properties in Pune, Beed etc. This Court, however is not

inclined to consider the submissions made by learned counsel

for the appellants that the property held by the female

members of the family of the appellants would be their

absolute property by virtue of Section 14 of the Hindu

Succession Act. There is, however, another aspect of the

matter that, the record indicates that, while acquiring a few of

the properties in the name of appellant No.3 Anand, the

original plaintiff has paid consideration amount. The details

of those sale deeds have been given in the reply

affidavit. The appellants are, therefore, required to

Appeal from Order No.21/2020 :: 15 ::

come clean on this aspect during trial of the suit. Moreover,

the properties which were acquired by or transferred to Anand

Live Stock Pvt. Ltd. formed by the appellant No.1 is

concerned, it is to be stated that, by passing a resolution

behind the back of the plaintiff and his family members, the

properties in the name of the said Company have been

mutated in the name of members of the appellants' family in

revenue record. There is prima facie nothing to indicate the

original plaintiff and his family members have been parties to

the said resolution shown to have been passed by the Board

of Directors of the Company.

16. Learned counsel for the respondent No.1, based

on the authoritative pronouncement, namely R. Janakammal

Vs. S.K. Kumarasamy (Deceased) through Legal

Representatives & ors. [ 2021 SCC OnLine SC 444 ],

Maharwal Khewaji Trust (Regd.) Vs. Baldev Dass, [ (2004) 8

SCC 488 ] and Baikuntha Nath Paramanik, Dead by his L.Rs.

Vs. Sashi Bhusan Pramanik, Dead by his L.Rs. [ (1973) 2 SCC

334 ], would submit that, filing of Wealth Tax and Income Tax

returns is not conclusive of status of family. The Court should

not permit change of status quo. When joint family is having

nucleus, acquisition in the name of family members are

Appeal from Order No.21/2020 :: 16 ::

presumed to be family acquisitions.

17. It is reiterated that, the appellant no.1 was not

the elder in the family. He was a medical practitioner. He

joined service as a Medical Officer. He rose to the higher

rank, superannuated as Officer on Special Duty in Medical

Education and Public Health Department, Government of

Maharashtra, Mantralaya. His son too was well educated and

daughter-in-law as well. They have been assessed to income

tax for long. The properties have been acquired in their own

names. Some times, Bank loans have been raised for

acquisition of the property. Gold and policy of insurance have

also been pledged. There is nothing prima facie to indicate

the joint family funds to have been utilised for acquisition of

those properties except one which has been referred to

hereinabove. If the impugned order is to continue, the same

would necessarily affect the rights of the appellants to

exercise proprietary rights in respect of their self acquisitions.

This Court is, therefore, inclined to interfere with the

impugned order to the extent mentioned in the operative

order.

18. In the result, the appeal partly succeeds. Hence,

the following order :

Appeal from Order No.21/2020 :: 17 ::



                                    ORDER


 (i)           The appeal is partly allowed.

 (ii)          The impugned order so far as regards the properties

at Sr.Nos.2, 4, 5, 17, 18, 19, 24, 25, 28, 35, 36, 37,

40, 41, 42, 43, 46, 47, 48, 49, 50, 51, 52, 54 and

55, which are prima facie self acquired properties of

the appellants - original defendant Nos.5, 9, 10 and

11, is hereby set aside;

(iii) The impugned order stands unaltered so far as

regards properties at Sr.Nos.1, 3, 13, 14 and 15;

properties at Sr.Nos.6, 7, 8, 9, 10, 11, 12, 16, 22,

23, 26, 27, 29, 30, 31, 32, 33, 34, 38 and 39, which

are admittedly joint family properties. The

impugned order so far as properties at Sr.Nos.20 and

44, which are said to be not in existence and the

property at Sr.No.21, which is the same property

mentioned at Sr.No.19, mentioned in the plaint, to

stand unaltered.

(iv) The impugned order also to stand unaltered in

respect of the properties acquired under sale deed