Shri. Shrikant Dadoba Tavdare ... vs Mr. Ravikiran Mohan Tavdare And ...
2021 Latest Caselaw 12681 Bom

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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION

                                          WRIT PETITION NO. 5092 OF 2021

                   Shri. Shrikant Dadoba Tavdare
                   since deceased through Lrs.                           .. Petitioners
SNEHA
NITIN                    V/s.
CHAVAN
Digitally signed
                   Mr. Ravikiran Mohan Tavdare & Ors.                    ..Respondents
by SNEHA
NITIN CHAVAN
                                                     ----
Date: 2021.09.07
11:48:56 +0530
                   Mr. S.P. Chavan for the Petitioners.

                                                           ----
                                                 CORAM : C.V. BHADANG, J.

                                                 DATE       : 06 SEPTEMBER, 2021

                   P.C.

1. The challenge in this petition is to the order rejecting the

application for temporary injunction filed by the

Petitioners/Plaintiffs. The Petitioners had sought an injunction

restraining the Respondent No.1 from creating third party interest in

the suit property or effecting any change or making construction

thereon.

2. The suit property happens to be Survey No. 1216 of village

Shirol, Taluka Jaisingpur, District Kolhapur. The case made out in

the plaint is that Dadoba Tavdare (since deceased), who is the father

of the plaintiff Shrikant Tavdare (since deceased) had executed a

Sneha Chavan page 1 of 4 8 wp 5092-21=.doc

Will dated 05 February 1982 in respect of 70 x 45 ft land from out of

City Survey No. 1216 in favour of his wife Ratnabai. According to

the Petitioner, Ratnabai had purchased 352.2 sq. meters of land from

Dadoba Tavdare and 162.26 sq. mtrs of land from Respondent No.3

Mohan Tavdare. It is the material case that as per Will dated 05

February 1982 Ratnabai had not become the absolute owner of the

suit property which was subject matter of the Will. By virtue of the

said Will, the property was given to her only during her lifetime

after which the said property will go to Respondent No.3 Mohan. It

was contended that Dadoba expired on 30 August 1983 while

Ratnabai passed away on 20 October 2010. During her lifetime,

Ratnabai executed a Gift Deed dated 23 April 2004 in favour of

Respondent No.1, who is the son of Mohan Tavdare. The Plaintiff

filed the suit for a declaration that the said Gift Deed is illegal and

null and void and for separation of his 1/7th share.

3. The Petitioner filed an application for temporary injunction

which was rejected by the Trial Court on 06 May 2019 which order

has been confirmed in Appeal by the learned District Judge at

Jaisinghpur in Misc. Civil Application No. 23 of 2019 vide Judgment

and Order dated 20 March 2020.

     Sneha Chavan                                              page 2 of 4
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4. I have heard the learned counsel for the Petitioner and

perused record.

5. It is not in dispute that the Petitioner has not challenged the

Will executed by Dadoba in favour of his wife Ratnabai on 05

February 1982. All that is contended on behalf of the Petitioner is

that by virtue of the said Will Ratnabai had not become absolute

owner and she was entitled to enjoy the property only during her

lifetime after which the property was go to Mohan. Thus, going by

the case of the Plaintiffs under the Will, the property was not to

come to the Plaintiffs. It is thus, difficult to see as to how the

Petitioners could be aggrieved by the Gift Deed executed by

Ratnabai when the same has not been challenged by Mohan. It

further appears that the Gift Deed of the year 2004 is challenged by

filing a suit in the year 2019. Considering the over all circumstances,

no exception can be taken to the concurrent finding recorded by the

courts below refusing to grant injunction as prayed. The learned

District Judge has observed in paragraph 13 of the impugned

Judgment that issue whether the Petitioner has 1/7th share in the

property as mentioned in paragraph 1(b) of the plaint would be

decided during the course of the trial.

     Sneha Chavan                                               page 3 of 4
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6. Thus, the petition is without any merit and is accordingly

dismissed.

7. The observations herein are of a prima facie nature for the

limited purpose of deciding the prayer for temporary injunction. The

Trial Court shall not be influenced by the same at the trial of the

suit.

C.V. BHADANG, J.

     Sneha Chavan                                            page 4 of 4