Bombay High Court
Dilip Yeshawant Padale vs Smt. Leena Chaban Tonde And ... on 14 October, 2022
Bench: Makarand Subhash Karnik
6. ao 161.21.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
CIVIL APPELLATE JURISDICTION
URMILA
URMILA PRAMOD
PRAMOD INGALE
INGALE Date: APPEAL FROM ORDER NO. 161 OF 2021
WITH
2022.10.17
20:35:25
+0530
INTERIM APPLICATION NO. 1674 OF 2021
Leena Chaban Tonde ..Appellant
vs.
Dilip Yashwant Padale and ors. ..Respondents
--------
Mr. Atul G. Damle, Senior Advocate i/b Mr. Hitesh P. Vyas,
for appellant.
Mr. Chaitanya Mulawkar i/b Mr. Sandeep S. Salunkhe, for
respondent no.1.
Ms. Bindvasini Yadav, for respondent no. 2.
Mr. J.P. Sen, Senior Advocate i/b Mr. Makarand B. Savant,
for respondents no. 7 and 9.
Mr. G.S.Godbole i/b Mr. Parag Tilak, for respondents no. 11
and 12.
Mr. Janak Dwarkadas, Senior Advocate a/w Mr. J.P. Sen,
Senior Advocate, Mr. Nirman Sharma, Mr. Akshay Doctor
and Mr. Parag Sawant i/b P.S.Chambers, for respondents no.
13 and 14.
---------
WITH
APPEAL FROM ORDER ST. NO. 2585 OF 2021
WITH
INTERIM APPLICATION ST. NO. 18922 OF 2021
Dilip Yeshwant Padale .. Appellant
Vs.
Smt. Leena Chaban Tonde and ors. .. Respondents
-------
1
6. ao 161.21.doc
Mr. Chaitanya Mulawkar i/b Mr. Sandeep Salunkhe, for
Appellant.
Mr. Atul G. Damle, Senior Advocate i/b Mr. Hitesh Vyas, for
respondent no. 1.
Ms. Bindvasini Yadav, for respondent no. 2.
Mr. Makarand B. Savant, for respondents no. 7 and 9.
Mr. G.S.Godbole i/b Mr. Parag Tilak, for respondents no. 11
and 12.
Mr. Janak Dwarkadas, Senior Advocate a/w Mr. J.P. Sen,
Senior Advocate, Mr. Nirman Sharma, Mr. Akshay Doctor
and Mr. Parag Sawant i/b P.S.Chambers, for respondents no.
13 and 14.
-------
CORAM : M. S. KARNIK, J.
DATE : OCTOBER 14, 2022
ORAL ORDER :
1. Heard learned Senior Advocate Shri Damle,
appearing for the appellant, learned advocate Shri
Mulawkar, appearing for respondent no. 1, learned Senior
Advocate Shri Sen, appearing for the respondents no. 7 and
9, learned advocate Shri Godbole, appearing for
respondents no. 11 and 12 and learned Senior Advocate
Shri Dwarkadas, appearing for respondents no. 13 and 14.
2. The challenge in this appeal from order is to an order
dated 26/11/2020 passed by the Civil Judge, Senior
Division & 7th Addl. Judge, Small Causes Court, Pune, partly
6. ao 161.21.doc
allowing the application- Exhibit 184 filed by the appellant-
original plaintiff. The appellant filed the suit in the year
2012 for declaration that the gift deed be declared as null
and void. Shorn of unnecessary details, brief facts are as
under:
3. Pandurang Vishnu Padale claimed to be the absolute
owner of the property in dispute. During his lifetime,
Pandurang gifted the suit property to his grandson -Dilip
Yashwant Padale by a gift deed dated 18/12/1957.
Pandurang had two children, son- Yashwant and daughter -
Godavari. Dilip-respondent no. 1- original defendant no. 1
is the son of Yaswant whereas the plaintiff-Leena is the
daughter of Yashwant. Though the gift deed is dated
18/12/1957, the suit was filed for declaration of the gift
deed to be null and void only in the year 2012 by the
appellant-plaintiff-Leena. It is the contention of the plaintiff
that the relations between the parties were cordial and
therefore the plaintiff never opposed the defendant no. 1
dealing with the suit property. This she did so in good faith
as she always thought that her share in the suit property
6. ao 161.21.doc
would be given to her.
4. The application Exhibit 5 was initially filed in the suit
of 2012 which, for the one reason for the other was not
decided. The application Exhibit 184 which is decided by the
impugned order, was filed, as according to the plaintiff,
during the pendency of the suit, defendants no. 7 and 9
have sold some part of the suit property transferring the
interest in favour of the defendants no. 13 and 14. Learned
Senior Advocate, Shri Damle submitted that defendants no.
13 and 14 are in the process of further creating rights in the
property which will prejudice the appellant.
5. The trial Court has partly allowed Exhibit 184. The
trial Court granted injunction in respect of the survey no.
24/7 admeasuring 00.33 R which in its view was an
ancestral property. So far as survey nos. 39/1 admeasuring
0.9 hectare 53 R, 39/2 admeasuring 0.5 Hectare 9 R and
40/1, admeasuring 00 Hectare 63 R situated at Village-
Mhalunge, Taluka Mulshi, District-Pune are concerned, the
trial Court was prima facie of the opinion that the properties
was the self acquired property of the Pandurang and hence,
6. ao 161.21.doc
refused to grant any injunction.
6. Learned Senior Advocate Shri Damle assailing the
order passed by the trial Court submitted that the trial
Court was not justified in proceeding on the footing that the
properties are self acquired properties of Pandurang. In his
submission, once the plaintiff pleaded that property in
question was the self acquired property of Pandurang, then
it was for the defendants to have dislodged the plea taken
by the plaintiff regarding the jointness of the properties.
According to Shri Damle, there is nothing on record
produced by the defendants to show that the properties are
the self acquired properties of Pandurang. It is then
submitted by learned Senior Advocate Shri Damle that
Pandurang during the lifetime of his son- Yashwant, gifted
the suit property in favour of his grandson -Dilip (defendant
no.1). Shri Damle submitted that Dilip, at the relevant
time, when gift was made in his favour, was a minor.
Relying on the provisions of the Hindu Minority and
Guardianship Act, 1956 (hereafter referred to as "the said
Act", for short), Shri Damle submitted that the gift deed
6. ao 161.21.doc
itself is void as during the existence of natural guardians of
Dilip, one Raghu Padale was shown as a guardian in the gift
deed. Shri Damle submitted that such a gift deed is ex
facie, during the lifetime of Dilip's father Yaswant, void.
Learned Senior Advocate relied upon the provisions of
section 6 of the said Act to contend that during the lifetime
of the father and mother of a minor, it is only the father
and/or mother who could be appointed as a natural
guardian and no one else. My attention is also invited to
section 11 of the said Act to submit that after the
commencement of the said Act, no person shall be entitled
to dispose of, or deal with, the property of a Hindu minor
merely on the ground of his or her being the de facto
gruardian of the minor. It is Shri Damle's submission that
Pandurang could not have appointed Raghu as a natural
guardian. It is thus the submission that the subsequent
transactions by defendant no. 1 on his attaining majority
are illegal and of no consequence.
7. Learned counsel on behalf of the respective
respondents argued in support of the impugned order. It is
6. ao 161.21.doc
submitted that the order passed by the trial Court is a well
reasoned order and it cannot be said that there is any
perversity in the findings recorded. Learned Senior
Advocate Shri Dwarkadas submitted that the gift deed is of
the year 1957. The suit is filed by the appellant after a long
delay of 55 years. The properties have been dealt with by
the defendant no.1 in whose favour the gift deed was made
by Pandurang only after he attained majority. The first
transaction was in the year 1977 and there have been
several such transactions right upto the year 2011, despite
which the suit is filed for the first time in the year 2012.
Shri Dwarkadas submitted that there is no embargo for
Pandurang to have gifted the property in favour of his
grandson- Dilip. It is further submitted that Yaswant i.e.
Dilip's father never objected to the gift deed during his
lifetime. It is further submitted that the trial Court rightly
observed that Raghu acted in his capacity as a Manager of
the property.
8. Relying on the decision of the Supreme Court in the
case of K. Balakrishnan Vs. K. Kamalam and ors.1,
1 (2004) 1 Supreme Court Cases 581
6. ao 161.21.doc
learned Senior Advocate Shri Dwarkadas submitted that
though a minor suffers disability from entering into a
contract, but he is thereby not incapable of receiving
property. The Transfer of Property Act does not prohibit
transfer of property to a minor. Shri Dwarkadas submitted
that it is not as if the properties gifted to the minor are
disposed of by the guardian during defendant no.1's
minority. In fact, upon attaining the majority, in the revenue
records, the name of defendant no. 1 was entered into.
9. Shri Dwarkadas then submitted that so far as the
finding of the trial Court regarding the self acquired
property is concerned, the trial Court has correctly in
paragraph 47 recorded that there was nothing to
demonstrate as to how the properties became joint family
properties in the hands of Pandurang. To support his
submission that prima facie it is for the plaintiff to establish
that the properties are joint family properties, learned
Senior Advocate relied upon the decision of this Court in the
case of Gopal Bhagwandas Ahuja Vs. Jagdish
Bhagwandas Ahuja2, more particularly, paragraphs 49 to
2 (2013) 7 Bom CR885
6. ao 161.21.doc
56 and 70, which read thus:
"49. In my view Court must also see whether plaintiff
has been able to demonstrate even prima facie as to
whether in any of the other businesses in which plaintiff,
his wife or son are not partners and such firm in which
defendant no.1 or his family members are partners or
shareholders and/or directors of the companies whether
at any point of time, profit and loss of such business or
properties were shared amongst the family members
including the plaintiff as income and/or loss arising out of
joint family businesses.
50. Mr.Dwarkadas, learned senior counsel invited my
attention to the letters addressed by his client to the
plaintiff's advocate calling upon the plaintiff to disclose
his income tax returns and accounts to show as to
whether any of the properties standing in the name of
various partnership firms and/or companies were claimed
as Hindu undivided properties or as to whether any profit
and/or loss of such firm and/or companies were claimed
to have been received and disclosed by the plaintiff in his
personal income tax return and/or books of accounts. It
is not in dispute that the plaintiff did not offer any such
inspection. It is not in dispute, plaintiff also did not
produce any such documents, on record.
51. Mr.Shah, learned senior counsel in fairness conceded
that in none of the personal income tax returns and/or
books of accounts, plaintiff has claimed any of the
properties standing in the name of various partnership
firms and/or private limited company described in Exs.B,
B1 and C of the plaint as joint Hindu family properties
and/or claimed to have been received any profit and/or
loss from the said businesses nor has shown any
liabilities of any such company and/or firm as that of the
plaintiff in his personal income tax returns and books of
accounts. In my view, Mr.Dwarkadas, learned senior
counsel is right in placing reliance on the judgment of
this Court in case of Shivani S.Roy (supra). In my view
admissions made by a party before wealth tax and
income tax authorities cannot be ignored and the same
would be against the public policy. It is held that if a
party has not claimed before revenue authority that he
6. ao 161.21.doc
was owner of a particular property, he cannot be
permitted to approbate and reprobate. I am not inclined
to accept the submission of Mr.Shah, learned senior
counsel appearing for the plaintiff that though no amount
of profit and/or loss was distributed by various
partnership firms controlled by defendant no.1 or other
defendants and/or private limited company controlled by
defendant no.1 to the plaintiff and/or other members of
the family, it would have no bearing on the issue whether
such properties/businesses would be Hindu undivided
property or not and distribution of such profit or property
would be only at the time of partition of property and not
otherwise. Court has to see whether any profit and loss
from such businesses which are claimed to be joint
family businesses are shared and/or distributed by
parties before drawing any inference that such
businesses and properties were joint family businesses
and/or properties. In my prima facie view, plaintiff has
failed to establish by producing any documents on record
to demonstrate that any of such partnership firms and/or
companies which are controlled by defendant no.1
and/or other defendants, any profit was distributed to
the plaintiff or that he had shared any liabilities of such
firm and/or companies as the member of the joint Hindu
Family or otherwise.
52. In my prima facie view, since 1982 onwards, various
businesses came to be started by the defendant no.1 and
other defendants independently. It it not the case of the
plaintiff that in businesses and properties standing in the
name of the plaintiff and his wife and/or son in which
none of the defendants are the partners with the plaintiff
or his family members, any profit and/or loss was
distributed by the plaintiff and his family to the
defendants including defendant no.1. On the contrary,
record will indicate that plaintiff has claimed exclusive
share in some of the immovable properties which were
given as security in respect of various loans. None of the
defendants have made any claim in such properties as
properties of the joint family businesses or joint
properties or otherwise. Though at the conclusion of
arguments, Mr.Shah, learned counsel appearing for the
plaintiff submits that plaintiff has no objection if all the
businesses and/or properties standing in the name of
6. ao 161.21.doc
plaintiff, his wife and his sons are treated as properties of
joint family properties and/or joint family businesses. In
my prima facie view, all the contesting defendants are
rights in their objection to such submission being made
across the bar at this stage. It is submitted that all the
businesses which are described in Exh.B, B1 and C to the
plaint are independent and self acquired businesses of
the respective parties in whose name it stands and are
not Hindu undivided family businesses and/or properties.
Objection is also raised on the ground that there is no
such pleading made by the plaintiff to the effect that all
such properties standing in the name of the plaintiff, his
wife and son were also acquired out of the joint family
fund and/or joint family properties and as joint family
properties and/or businesses.
53. Mr.Dwarkadas, learned senior counsel invited my
attention to the letter dated 1st July, 2010 addressed by
the plaintiff to the 1st defendant and his wife (Ex.I-5 of
the plaint). Mr.Dwarkadas, learned senior counsel laid
emphasis on the contents of the said letter in support of
his submission that the plaintiff had accepted the
position that he was partner with the 1 st defendant in
one of the partnership firm in his individual capacity and
was entitled to share of profit in that partnership firm. It
is also alleged in the said letter that defendant no.1 had
not shared any profit from the construction and marble
business though plaintiff was alleged to be partner. On
perusal of the said letter dated 1 st June, 2010, in my
prima facie view, the plaintiff had represented the 1st
defendant that plaintiff was having 50% share in the
various businesses as equal partner with 1 st defendant
and such claim was not on the basis of such
business/properties being Hindu undivided family
businesses/properties. It is not the case of the plaintiff in
the said letter that as a member of Hindu undivided
family, he had 1/10th share. The plaintiff has claimed
equal share with that of the 1st defendant. In my prima
facie view, the claim of the plaintiff that all such
businesses which are under the control of the 1st
defendant or other defendants are joint Hindu family
businesses is ex facie an afterthought.
54. Though plaintiff has claimed 1/10th share in all the
properties described in Ex.B, B1 and C, it is not in
6. ao 161.21.doc
dispute that the Defendant nos. 3 and 6 who are
supporting the plaintiff has not filed any independent
proceedings claiming their 1/10th share in the property
as described in Exs.B, B1 and C or any of the properties.
Defendant nos. 2, 4, 5, 7 and 9 to 11 have filed
supporting affidavits in this proceedings in favour of
defendant no.1 stating that the father of the plaintiff and
defendant nos. 1 to 8 never started any joint family
business. It has been stated that the plaintiff as well as
defendant no.1 have started their respective businesses
from their self acquired fund. It is further stated that the
business of the company as mentioned in the suit were
not started out of any joint family fund and are not joint
family businesses. Those defendants also made a
statement across the bar through their counsel that none
of the defendants have claimed any share in any of the
properties standing in the name of the plaintiff, his wife
or son or the 1st defendant as all such properties were
their self acquired properties and not joint family
properties and/or businesses. Defendant no.1 also
through their learned senior counsel Mr.Chinoy made a
statement that in respect of the properties of business
standing in the name of the plaintiff, his wife and son, no
right, title or interest of whatsoever nature is being
claimed by the 1st defendant as the same are self
acquired by the plaintiff, his wife and son and none of
the businesses run by each of them are joint family
businesses and/or properties.
55. It has been held by the Supreme Court in case of
Surjit Lal Chhabda (supra) that the property of joint
family may consist of ancestral property, joint acquisition
and/or self acquired thrown into a common stock.
Question that arises for consideration of this court is
whether prima facie plaintiff has made out a case
whether any of the properties described in Exs. B, B1
and C of the plaint are jointly acquired by the members
of the family or any of the self acquired properties by the
plaintiff and/or by defendants are thrown into a common
stock. In my prima facie view, plaintiff has been unable
to show even prima facie that any of the properties
described in Exs.B, B1 and C and/or businesses
mentioned therein have been started out of the joint
funds or any of the properties standing in the name of
6. ao 161.21.doc
the individual partnership firm and/or companies were
ever considered as joint Hindu undivided businesses and/
or properties. No profit and/or loss has been distributed
by any of this firm and/or to parties partners and/or
shareholders. I am therefore prima facie not inclined to
accept the submission of Mr.Shah, learned senior counsel
that any of such businesses and/or properties standing in
the name of individual members and/or firm and/or
companies are to be treated as joint family properties or
the same having been thrown into the common stock.
Supreme Court in case of Bhagwan Dayal (supra) has
approved the legal position summarised in Mayne's
Hindu Law, 11th Edition that one or more members of
the family can start business or acquire properties
without the aid of the joint family properties but such
business or acquisition would be of his or their
acquisition. This legal position summarized in the said
treatise that even if the business was started or the
properties so acquired can be thrown into common stock
or blended with the joint family property becomes the
estate of the joint property. Such person need not do so
in which case the said property would be of his or their
self acquisition and succession to such property would be
governed not by the law of joint family but only by the
rights inter se between the members who have acquired
the said property as per terms of the agreement
whereunder it was acquired. In my view, such properties
which are standing in the name of the partnership firm
and/or company and/or individual and which are self
acquired properties and are not thrown into common
stock would be governed by the agreement whereunder
such properties are acquired and cannot be considered
as Hindu undivided properties and/or businesses.
56. I am of the prima facie view that in the year 1969,
when the firm M/s.Kanayalal Rameshkumar started,
there was no joint Hindu family business in existence.
Sections 4 and 5 of the Partnership Act, 1932 makes it
clear that the said Act governs only that relation of
partnership which arise from the contract and not from
the status as the one obtaining amongst the members of
the joint Hindu family trading partnership. Sections 4 and
5 has been construed by the Supreme Court in case of
Nanchand G.Shetji (supra) and it has been held that
6. ao 161.21.doc
legislature in its wisdom excluded joint Hindu trading
families from the operation of the Partnership Act.
70. In my prima facie view, plaintiff is unable to
establish any rights in respect of any of the properties
described in Exhibit-B, B-1 and C to the plaint as the
properties of Hindu undivided family. Plaintiff is unable to
show any nucleus by demonstrating before this Court
even prima facie, that the income generated by his
father prior to 1969 was used by father in starting the
partnership business in the name of M/s Kanayalal
Rameshkumar in 1969 and thereafter by defendant No.1
and others by use of such income generated out of such
firm in other businesses started by defendants. In my
prima facie view, the plaintiff has failed to discharge such
initial burden on the plaintiff to prove that all such
businesses and properties described in Exhibits-B, B-1
and C are Hindu undivided family businesses and
properties. The defendant no. 1, 2, 4, 5, 7 and 8 state
that in so far as properties and businesses which are
standing in the name of the plaintiff, his wife and his son
are concerned or firms and companies in which those
defendants are not partners/shareholders, all such
properties and businesses are the properties of the
plaintiff, his wife and his son and are not Hindu undivided
family properties and/or businesses. All these defendants
have also made statement that they do not make claim
in respect of any of those properties and/or businesses.
Statements made by the contesting defendants are
accepted."
10. It is further submitted that this is not a case where it
would be equitable to grant an injunction in favour of the
appellant who came to the Court after 55 long years and
challenges the gift deed knowing fully well that several of
the properties were sold prior to the filing of the suit. It is
submitted that even in respect of the properties which the
6. ao 161.21.doc
defendants no. 13 and 14 have purchased from the
defendants no. 7 and 9, the properties were sold in favour
of the defendants no. 7 and 9 in the year 2004 and 2007
respectively, much prior to the filing of the suit in the year
2012. He submitted that it would be inequitable to grant
any injunction to the plaintiff at this stage.
11. Learned Senior Advocate Shri Dwarkadas then invited
my attention to the decision of the Supreme Court in the
case of Mahadeo Savlaram Shelke and ors. Vs. Pune
Municipal Corporation and anr.3, placing reliance on
paragraph 12 of the said decision which reads thus:
"12. In "Modern Law Review", Vol 44, 1981 Edition, at page
214, R.A. Buckley stated that "a plaintiff may still be
deprived of an injunction in such a case on general
equitable principles under which factors such as the public
interest may, in an appropriate case, be relevant. It is of
interest to note, in this connection, that it has not always
been regarded as altogether beyond doubt whether a
plaintiff who does thus fail to substantiate a claim for
equitable relief could be awarded damages". In "The Law
Quarterly Review" Vol 109, at page 432 (at p. 446), A.A.S.
Zuckerman under Title "Mareva Injunctions and Security for
Judgment in a Framework of Interlocutory Remedies" stated
that
"if the plaintiff is likely to suffer irreparable or
uncompensable damage, no interlocutory injunction will
be granted, then, provided that the plaintiff would be
able to compensate the defendant for any unwarranted
restraint on the defendant's right pending trial, the
3 (1995) 3 Supreme Court Cases 33
6. ao 161.21.doc
balance would tilt in favour of restraining the defendant
pending trial. Where both sides are exposed to
irreparable injury pending trial, the courts have to strike
a just balance".
At page 447, it is stated that
"the court considering an application for an interlocutory
injunction has four factors to consider : first, whether the
plaintiff would suffer irreparable harm if the injunction is
denied; secondly, whether this harm outweighs any
irreparable harm that the defendant would suffer from an
injunction; thirdly, the parties' relative prospects of
success on the merits; fourthly, any public interest
involved in the decision. The central objective of
interlocutory injunctions should therefore be seen as
reducing the risk that rights will be irreparably harmed
during the inevitable delay of litigation".
12. Learned Senior Advocate also placed reliance on the
decision of this Court in the case of Aviat Chemicals Pvt.
Ltd. Vs. Jagmohansingh Arora and ors. 4 to contend
that Aviat was a case where the Court held that it was
incumbent on the respondents (Arora) to obtain injunction
to compensate the applicants (Aviat) for the damages or
the loss of profit which they have suffered due to the
passing of the ad-inerim order dated 04/02/1999. This, in
order to support his contention that unless there is a strong
prima facie case, balance of convenience and irreparable
loss in favour of the plaintiff, injunction should not be
granted.
4 2000 (3) Mh.L.J. 66
6. ao 161.21.doc
13. Learned Senior advocate Shri Sen and Shri Godbole
invited my attention to the relevant findings in the
impugned order to submit that impugned order does not
warrant any interference in this Appeal.
14. Heard learned counsel for the parties at length. The
gift deed which is under challenge is dated 18/12/1957.
Defendant no.1's grandfather-Pandurang gifted the suit
property in favour of the defendant no.1 during the lifetime
of defendant no. 1's father-Yashwant. Yashwant
undoubtedly was a natural guardian of Dilip. During the
lifetime of Yaswant, he never objected to the gift deed in
favour of his son Dilip. It is only after defendant no.1-Dilip
attained majority some time in the year 1968, that he
disposed of a part of the property for the first time in the
year 1977. Since 1977 upto 2011 several properties out of
suit property have been sold by the defendant no.1. It is
only in the year 2012, i.e. almost after 55 years since the
execution of the gift deed that the appellant i.e. defendant
no. 1's sister filed the suit for declaration and injunction.
The application Exhibit 5 filed in the year 2012 was never
6. ao 161.21.doc
decided for one reason or the other. So far as defendants
no. 7 and 9 are concerned, part of the suit property was
sold and transferred to them by the defendant no.2 on
21/06/2004 and 03/10/2007.
15. The application Exhibit 184, the decision on which is
the subject matter of challenge in this Appeal, was filed on
04/09/2019 for the relief that defendants be temporarily
restrained from creating third party interest in the suit
property. In my prima facie opinion, the gift deed executed
by Pandurang in favour of his grandson-Dilip cannot be said
to be unlawful. It is seen that no part of the property gifted
to defendant no.1-Dilip has been disposed of during his
minority. The properties were dealt with by Dilip only after
he attained majority. His father - Yashwant never opposed
such gift deed during his lifetime though he was a natural
guardian. Raghu, who is alleged to be a guardian, as per
the gift deed, and to whose guardianship an objection is
raised by the appellant-plaintiff, did not deal with or dispose
any property during the minority of Dilip.
16. So far as the contention of Shri Damle that the
6. ao 161.21.doc
property in question was a joint family property, I find that
except for stating that the property is a joint family
property in the hands of Pandurang, there is absolutely no
material on record to substantiate the jointness. The
recitals in the gift deed do indicate that one of the
properties i.e. survey no. 24/7 is an ancestral property and
to that extent, the trial Court has granted injunction.
However, so far as the other properties are concerned, the
trial Court has recorded that the plaintiff merely pleaded
that the property is the joint family property and that the
plaintiff has not given any sort of flow in respect of the said
properties as to how it became the joint family property.
The trial Court has further recorded that the details as to
the acquisition of rights in the said property has not been
stated by the plaintiff. In such circumstances, if the trial
Court prima facie came to the conclusion that properties
bearing survey nos. 39/1, 39/2 and 40/1 are self acquired
properties of Pandurang, I do not find any perversity in such
prima facie findings to warrant interference.
17. It is pertinent to note that the plaintiff has
6. ao 161.21.doc
approached the trial Court with a suit for declaration and
injunction almost 55 years after the gift deed was executed.
Several transactions were entered into by defendant no.1
during this period and to the knowledge of the plaintiff.
There is no injunction in favour of the plaintiff since 2012
when the suit was filed. The trial Court by a well
considered order refused injunction in respect of properties
in survey nos. 39/1, 39/2 and 40/1, whereas, finding that
one of the property is ancestral in nature, granted
injunction so far as survey no. 24/7 is concerned. The
Appeal from order is therefore dismissed. In view of
dismissal of the appeal from order, nothing survives for
consideration in the interim application and the same also
stands disposed of.
18. Considering that the suit is of the year 2012, I am
inclined to accept the request made by learned Senior
Advocate Shri Damle that suit needs to be expedited. The
trial Court is requested to decide the suit as expeditiously
as possible and preferably within a period of 18 months
from 16/11/2022. The parties to appear before the trial
6. ao 161.21.doc
Court along with the copy of this order on 16/11/2022. The
parties to co-operate with the trial Court in the expeditious
disposal of the suit.
19. Needless to mention that the observations made by
me in this order and that of the trial Court are prima facie in
nature and the trial Court will obviously decide the suit on
its own merits without being influenced by any observations
made by me in this order and by the trial Court in the
impugned order. No costs.
Appeal from Order St. No. 2585 of 2021 with Interim
Application St. No. 18922 of 2021
20. The trial Court passed a common order below
Exhibits 184 and 195. I have already dismissed the appeal
in its challenge to the order passed below Exhibit 184.
21. The defendant no. 1 is aggrieved with that part of the
order by which the trial Court granted injunction in respect
of part of the suit property i.e. survey no. 24/7,
admeasuring 0.33 R. I have gone through the well
considered findings of the trial Court. The trial court has
considered the recitals in the gift deed itself which makes a
6. ao 161.21.doc
reference to the property in survey no. 24/7 being an
ancestral property. Based on such recitals, prima facie, the
trial Court has come to the conclusion that injunction should
be granted. I do not find any perversity with such finding of
the trial Court. Hence, Appeal from Order Stamp No. 2585
of 2021 is dismissed. In view of the disposal of the appeal
from order, interim application also stands disposed of. No
costs.
(M. S. KARNIK, J.)
