Bombay High Court
Harsha Harkant Sodha vs Bharat Gulabrai Vaghani And 6 Ors on 2 September, 2024
Author: N.J.Jamadar
Bench: N.J. Jamadar
2024:BHC-OS:13626
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
VISHAL ORDINARY ORIGINAL CIVIL JURISDICTION
SUBHASH
PAREKAR
Digitally signed by
VISHAL SUBHASH INTERIM APPLICATION NO.1485 OF 2020
PAREKAR
Date: 2024.09.04
20:05:21 +0530
IN
SUIT NO.217 OF 2020
Harsha Harkant Sodha ...Applicant
In the matter between
Harsha Harkant Sodha ...Plaintiff
vs.
1. Bharat Gulabrai Vaghani
2. Gita Sharad Vaghani
3. Ami Dhaval Jantia
4. Zarna Vinay Chainani
5. Abhijeet Sharad Vaghani
6. Dushyant Vora
7. Jash Dushyant Vora ...Defendants
Mr. Vivek Kantawala i/b. Mr. Vivek Kantawala & Co., for the
Applicant.
Mr. Sunip Sen a/w. Mr. Neerav Barot i/b. R.V. & Co., for the
Defendants/Respondents.
CORAM : N.J. JAMADAR, J.
RESERVED ON : JULY 8, 2024
PRONOUNCED ON : SEPTEMBER 2, 2024
--------------
ORDER:
1. The Interim Application is preferred seeking appointment of
the Court Receiver in respect of the properties set out in Exhibit
A/A-1 of the plaint (the suit properties) and for temporary
injunction to restrain defendant No. 1 from dealing with, disposing
of, liquidating, redeveloping and creating third party rights in the
suit properties.
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2. This is a suit for partition of the suit properties. Gulabrai
Shamji Vaghani, was the father of the applicant/plaintiff and
defendant No. 1. Defendants No. 2 to 5 are the heirs of Sharad
Vaghani the predeceased son, and defendant Nos. 6 and 7 are the
heirs of Anupama Vora, the predeceased daughter of Gulabrai.
Gulabrai was endowed with a number of properties including the
suit properties.
3. Gulabrai left behind Jayaben, his widow, the plaintiff,
defendant No. 1 and defendant Nos. 2 to 7, the children of
predeceased son and daughter.
4. The plaintiff has taken out this application with the assertions
that Shamji Vaghani was the grandfather of plaintiff. After the
demise of Shamji, the joint family properties devolved on Parvatibai,
her grandmother, and Gulabrai, her father. After the demise of
Gulabrai, defendant No. 1 with the consensus of the entire family
became Karta of HUF which owned several movable and immovable
properties. Even after the demise of their mother Jayaben, on 13 th
April, 2014, defendant No. 1 continued to act as Karta of HUF. In the
said capacity, defendant No. 1, inter alia, collected rental income,
operated bank accounts and effected several transfers of the
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movables, and immovable properties of HUF, on either tenancy or
leave and license basis.
5. The plaintiff avers the defendant No. 1 entered into several
transactions representing himself as the sole representative of
Gulabrai Vaghani family and the said HUF. The plaintiff repeatedly
called upon defendant No. 1 to furnish the details of the HUF
properties. Defendant No. 1 informed the plaintiff that all the
properties have been encumbered and that the plaintiff has no right
either as a daughter of Gulabrai or as a member of the said HUF.
Repeated requests of the plaintiff to seek details and accounts of the
estate of HUF did not materialise.
6. Eventually, defendant No. 1 started to appropriate the HUF
properties for his personal benefit and has made a living for himself
and his family by using the proceeds of properties and assets of the
said HUF. As the defendant No. 1 refused to part with the share of
the plaintiff in the HUF as a co-parcener, the plaintiff addressed a
hand written communication dated 15th May, 2019 to defendant No.
1, regarding the stand of the parties. Ultimately, the plaintiff was
constrained to institute the suit, inter alia, for partition and
separate possession of her share in the HUF.
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7. Pursuant to an interim order dated 19 th December, 2019 the
defendants have filed disclosure affidavits. Based on the information
furnished by defendant No. 1 in the disclosure affidavits, the plaint
came to be amended so as to include the properties in the Schedule
of joint family properties (Exh.A) and (Exh.A1). Thereafter, the
plaintiff has moved for further interim reliefs.
8. An affidavit in reply, has been filed on behalf of defendant No.
1. At the outset, defendant No. 1 contends that late Gulabrai
Vaghani was not the Karta or coparcener of HUF. Therefore, the suit
premised on the existence of HUF is not tenable. It is contended, the
plaintiff is guilty of suppression of facts. Gulabrai passed away on
22nd April, 1993. Resultantly, as Gulabrai was not alive on 9 th
September, 2005, the plaintiff is ineligible to take advantage of the
provisions contained in Hindu Succession (Amendment) Act, 2005.
The plaintiff has also suppressed the fact that her marriage was
solemnized in the year 1970. This fact also disentitled the plaintiff
from claiming any share in the property of HUF.
9. On the aspect of the entitlement to partition, the defendant
No. 1 contends that the plaintiff has failed to discharge the burden
to disclose as to when the HUF came into existence. Shamji Vaghani,
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the grandfather of the plaintiff and defendant No. 1, held all the
properties as his self acquired properties. After the demise of
Shamji, properties devolved on Gulabrai and Parvatibai, the widow
of Shamji, by succession and not by survivorship. Therefore, the suit
properties cannot be considered as coparcenary properties in the
hands of Gulabrai and would become coparcenary properties only
upon his death. Since the plaintiff claims that the properties left
behind by Shamji devolved on her grandmother also, the properties
cannot be said to be coparcenary or HUF in the hands of Gulabrai.
10. In the alternative it is contended that upon the death of
Gulabrai S. Vaghani on 22nd May, 1993 a notional partition took
place and shares of each of the coparcener stood crystallized.
Consequently, as the properties have already been partitioned, the
plaintiff is not entitled to a share in the HUF.
11. The defendant No. 1 contends the suit is also barred by law of
limitation. A case of ouster of the plaintiff has been pleaded.
12. Without prejudice to the aforesaid contentions, it is contended
that the HUF owns only ½ undivided share in the immovable
properties enumerated. Therefore, any injunction restraining HUF
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from in any manner dealing with its properties would cause grave
and irrepealable harm and loss not only to the HUF and its
coparceners but will also affect third party rights.
13. In the backdrop of the aforesaid pleadings, I have heard Mr.
Vivek Kantawala, learned counsel for the applicant/ plaintiff, and
Mr. Sunip Sen, learned counsel for the defendants/respondents. The
learned counsel took the Court through the pleadings and
documents on record.
14. Mr. Kantawala, learned counsel for the applicant/plaintiff,
submitted that the right of the plaintiff to the HUF properties left
behind by her deceased father is unquestionable. The defendant No.
1 has endeavored to raise all possible defences with a devilish
design to deprive the plaintiff of her legitimate share in the joint
family properties. It was further submitted that there are a number
of immovable properties and the defendant No. 1 has been
wrongfully appropriating the income and benefits out of the joint
family property for himself and the members of his family
exclusively, whilst the plaintiff has been completely deprived of the
benefits. It is, therefore, necessary to appoint a Court Receiver and
restrain the defendant No. 1 from creating third party rights in the
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suit properties, lest there is a clear danger of the suit properties
being wasted, damaged or alienated to the grave prejudice of the
plaintiff.
15. Mr. Kantawala, further submitted that the ground that the
plaintiff is not entitled to a share in the suit properties as a co-
parcener as Gulabrai, the father of the plaintiff, passed away before
1994 and the marriage of the plaintiff was solemnized in the year
1970, does not merit any countenance as the position in law has
been settled by a three Judge Bench judgment of the Supreme Court
in the case of Vineeta Sharma vs. Rakesh Sharma and Ors.1. Neither
the fact that the father of the coparcenar was not alive on 9 th
September, 2005 nor the fact that plaintiff's marriage was
solemnized prior thereto, is of any significance.
16. The other ground of the property having been devolved on
Gulabrai, by way of succession, and not as a coparcenary property
and, therefore, the plaintiff is not entitled to succeed to the said
property in the capacity of a coparcener is equally misconceived.
Inviting the attention of the Court to the contentions in the affidavit
in reply, especially paragraph 13, Mr. Kantawala submitted that the
existence of the joint family property and the status of defendant
1 2020 SCC OnLine SC 641.
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No. 1 as the Karta of the joint family is rather incontrovertible.
17. Mr. Kantawala further submitted that the resistance to the
application based on bar of limitation also does not merit
acceptance. The applicant has categorically asserted in the plaint
that defendant No. 1 denounced the right of the plaintiff in the joint
family property on 15th May, 2019. Therefore, the plaintiff cannot be
non-suited on the ground of delay or for that matter 'ouster' from
the joint family property. To buttress this submission, Mr.
Kantawala placed reliance on a judgment passed by this Court in the
case of Reshma Zaveri and Anr. vs. Vikram Chandulal Shah and
Ors.2.
18. Mr. Sunip Sen, the learned counsel for the respondents/
defendants, submitted that it is a settled law that the onus to
establish that a particular property is a joint family property is on
the person who asserts the said character of the property. In the
case at hand, there is no prima facie material to show that the suit
property is a joint family property. To lend support to the
submission that burden lies upon the person who alleges the
existence of HUF to prove the same, Mr. Sen placed reliance on a
decision of the Supreme Court in the case of Bhagwat Sharan (Dead
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through LRs) vs. Purushottam and Ors. 3. Secondly, since Gulabrai
had inherited the self-acquired properties of Shamji along with
Parvatibai, the properties devolved by succession and not by
survivorship. Therefore, the suit property can not be considered as
a coparcenary property in the hands of Gulabrai. Thirdly, a
coparcenary property can not devolve upon a woman by succession.
Once Gulabrai inherited the property, it did not retain the character
of joint family property. The said property became HUF for the first
time in the hand of defendant No.1. Qua defendant No.1, the
plaintiff, being a sister, is not a coparcener. Mr. Sen, further
submitted that, at any rate, on the own showing of the plaintiff,
defendant No. 1 is the Karta of the joint family property. Therefore,
no injunctive relief can be granted against the defendant No. 1.
19. Mr. Sen placed a very strong reliance on the decision of the
Supreme Court in the case of Commissioner of Wealth Tax, Kanpur
and Ors. vs. Chander Sen and Ors. 4, to buttress the submission that
under section 8 of the Hindu Succession Act, 1956, the property of a
male Hindu who dies intestate devolves on his son in his individual
capacity and not as Karta of his own family. It was submitted that
the aforesaid decision of the Supreme Court has been followed by
3 (2020) 6 Supreme Court Cases 387.
4 (1986) 3 Supreme Court Cases, 567.
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this Court in the case of Paresh Damodardas Mahant vs. Arun
Damodardas Mahant and Ors.5
20. Lastly, it was urged that, the property that devolves on a
woman cannot be a HUF property. Further, the property devolving
from a woman can not ever be HUF property. The plaintiff has not
pleaded how 50% share in the property which devolved on Gulabrai
absolutely, became the HUF property in Gulabrai's hand.
Conversely, Parvatibai's property never came to Gulabrai but
devolved separately. There is no basis for alleging that the said
property devolved on Gulabrai. Therefore, Mr. Sen would urge the
tenability of the suit itself is debatable. Resultantly, the plaintiff is
not entitled to any interim relief.
21. I have given anxious consideration to the rival submissions
canvassed across the bar.
22. The facts are few and rather incontrovertible. The
relationship between the parties, is not in dispute. Gulabrai, father
of the plaintiff and defendant No. 1, passed away on 22 nd April,
1993. Gulabrai left behind the plaintiff, defendant No. 1 and their
mother Jayaben. The later passed away on 13 th July, 2014.
5 NMS No.738/2014 in S. 454/2014 Dt.13/10/2014.
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Defendant Nos. 2 to 5 are the children of Sharad Voghani, the
predeceased son of Gulabrai. The defendant Nos. 6 and 7 are the
children of Anupama Vora, the predeceased daughter of Gulabrai.
There is also not much controversy over the fact that after the
demise of Gulabrai, defendant No. 1 continued as Karta of the HUF.
23. The core controversy between the parties revolves around the
right of the plaintiff to succeed to the joint family property. As noted
above, initially an endeavor was made to throw a cloud of doubt over
the entitlement of the plaintiff by asserting that the plaintiff was not
entitled to claim the benefit under section 6 of the Hindu Succession
Act, 1956, as amended by Hindu Succession (Amendment) Act,
2005 as on 9th September, 2005, the father of the plaintiff was not
alive and she was already married.
24. A three Judge Bench of the Supreme Court in the case of
Vineeta Sharma (supra) has set at rest the controversy sought to be
raised on behalf of defendant No. 1. After an elaborate analysis of
the provisions of the Hindu Succession Act, its historical backdrop,
and the precedents, the Supreme Court, inter alia, enunciated that,
(i) The provisions contained in substituted Section 6 of the
Hindu Succession Act, 1956 confer status of coparcener on the
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daughter born before or after amendment in the same manner
as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier
with effect from 9.9.2005 with savings as provided in Section
6(1) as to the disposition or alienation, partition or
testamentary disposition which had taken place before 20th
day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not
necessary that father coparcener should be living as on
9.9.2005.
25. Mr. Sen fairly submitted that, in view of the aforesaid position
in law, the initial defence sought to be raised by defendant No. 1 to
refute the claim of the plaintiff does not survive. Mr. Sen, however,
strenuously urged that the fact that on the demise of Shamji, the
property devolved upon Gulabrai and his mother Parvatibai by
succession and not by way of survivorship, is of material
significance. It was urged that, Gulabrai inherited the said property
as his separate property and not as joint family property.
26. In the case of Commissioner of Wealth Tax (supra), on which
reliance was placed by Mr. Sen, the question that arose for
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consideration was, "whether the amount standing to the credit of
the father of the respondent was inherited, after his death, by
respondent in his individual capacity or as a Karta of the assessee's
joint family consisting of himself and his sons." The Supreme Court
referred to the legal position under uncodified Hindu law and the
effect of introduction of section 8 of the Hindu Succession Act, 1956.
Thereafter, the Supreme Court formulated the question which arose
for consideration, namely:-
When the son as heir of class I of the Schedule inherits the
property, does he do so in his individual capacity or does he
do so as Karta of his own undivided family ?
27. The Supreme Court answered the aforesaid question as
under :-
15] It is clear that under the Hindu law, the moment
a son is born, he gets a share in the father's property
and becomes part of the coparcenary. His right
accrues to him not on the death of the father or
inheritance from the father but with the very fact of
his birth. Normally, therefore whenever the father
gets a property from whatever source from the
grandfather or from any other source, be it
separated property or not, his son should have a
share in that and it will become part of the joint
family of his son and grandson and other members
who form joint Hindu family with him. But the
question is; is the position affected by section 8 of
the Succession Act, 1956 and if so, how? The basic
argument is that section 8 indicates the heirs in
respect of certain property and class I of the heirs
includes the son but not the grandson. It includes,
however, the son of the predeceased son. It is this
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position which has mainly induced the Allahabad
High Court in the two judgments, we have noticed, to
take the view that the income from the assets
inherited by son from his father from whom he has
separated by partition can be assessed as income of
the son individually. Under section 8 of the Hindu
Succession Act, 1956 the property of the father who
dies intestate devolves on his son in his individual
capacity and not as karta of his own family. On the
other hand, the Gujarat High Court has taken the
contrary view.
.... ...... ...
22] In view of the preamble to the Act, i.e., that to
modify where necessary and to codify the law, in our
opinion it is not possible when Schedule indicates
heirs in class I and only includes son and does not
include son's son but does include son of a
predeceased son, to say that when son inherits the
property in the situation contemplated by section 8
he takes it as karta of his own undivided family. The
Gujarat High Court's view noted above, if accepted,
would mean that though the son of a predeceased
son and not the son of a son who is intended to be
excluded under section 8 to inherit, the latter would
by applying the old Hindu law get a right by birth of
the said property contrary to the scheme outlined in
section 8. Furthermore as noted by the Andhra
Pradesh High Court that the Act makes it clear by
section 4 that one should look to the Act in case of
doubt and not to the pre-existing Hindu law. It would
be difficult to hold today the property which
devolved on a Hindu under section 8 of the Hindu
Succession would be HUF in his hand vis-a-vis his
own son; that would amount to creating two classes
among the heirs mentioned in class I, the male heirs
in whose hands it will be joint Hindu family property
and vis-a-vis son and female heirs with respect to
whom no such concept could be applied or
contemplated. It may be mentioned that heirs in
class I of Schedule under section 8 of the Act
included widow, mother, daughter of predeceased
son etc."
(emphasis supplied)
28. The aforesaid decision was followed by the Supreme Court in
the case of M. Arumugam vs Ammaniammal And Ors.6
6 (2020) 11 SCC 103.
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14] In Commissioner of Wealth Tax, Kanpur and Ors.
vs. Chander Sen and Ors., the dispute related to a joint
family business between a father and son. This
business was divided and thereafter, carried by a
partnership firm of which both were partners. The
father died leaving behind his son, two grandsons and
a credit balance in the account of the firm. The issue
that arose was whether the credit balance in the
account left behind by the deceased was to be treated
as joint family property or the property was to be
distributed to Class-I legal heirs in accordance with
Section 8 of the Succession Act. This Court held that
Succession Act supersedes all Mitakshara law. The
relevant portion of the judgment reads as follows: (SCC
p, 577, para 22)
"22.... It would be difficult to hold today the
property which devolved on a Hindu under Section
8 of the Hindu Succession Act would be HUF in his
hand vis-a-vis his own son; that would amount to
creating two classes among the heirs mentioned in
class I, the male heirs in whose hands it will be joint
Hindu family property and vis-a-vis son and female
heirs with respect to whom no such concept could
be applied or contemplated. It may be mentioned
that heirs in class I of Schedule under Section 8 of
the Act included widow, mother, daughter of
predeceased son etc."
Accordingly, it was directed that the credit balance
would be inherited in terms of Section 8 of the
Succession Act.
15] In Appropriate Authority (IT Deptt) vs. M. Arifulla
the issue which arose was whether the property
inherited in terms of Sections 6 and 8 of the
Succession Act was to be treated as the property of co--
owners or as joint family property. The Court held as
follows : (SCC p. 344, para 3)
"3. ... This Court has held in CWT vs. Chander Sen
that a property devolving under Section 8 of the
Hindu Succession Act, is the individual property of
the person who inherits the same and not that of
the HUF. In fact, in the special leave petition, it is
admitted that respondents 2 to 5 inherited the
property in question from the said T.M.
Doraiswami. Hence, they held it as tenants in
common and not as joint tenants."
16] Applying the principles laid down in the aforesaid
cases, it is apparent that after the death of Moola
Goundar, his interest in the coparcenary property
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would devolve as per the provisions of Section 8 since
he left behind a number of female Class-I heirs.
29. The aforesaid decision in the case of M. Arumugam (supra)
was further clarified by the Supreme Court in the case of
M.R.Vinoda vs M.S. Susheelamma (deceased by LRs.) and Ors.7
20] In our view this judgment does not lay down a
different law, and is not contra the ratio in Sri
Narayan Bal (supra). In M. Arumugam (supra), the
Court was dealing with the situation governed by
pre- amended Section 6 of the Hindu Succession
Act, which postulates deemed partition on the death
of a coparcener. Under the Hindu Succession Act,
inheritance to the estate of the deceased coparcener
on a deemed partition is by way of succession, and
not by way of survivorship. Therefore, the property
inherited is individual and not joint Hindu family
property. Consequent to which the plaintiff therein,
who was a minor, had inherited the share on her
father's death, who was a Karta. The inherited
property belonged to the minor. In this context, the
Court held that the mother alone would be the
natural guardian, and the relinquishment made by
her on behalf of her minor daughter, i.e., the
plaintiff therein, would not be void.
30. The decision in the case of Chander Sen (supra) was followed
by another two Judge Bench judgment in the case of Radha Bai vs.
Ram Narayan and Ors.8 and, thereafter, it was enunciated that, "the
consistent view of the Supreme Court, including of three Judge
Bench, is that the grand son or grand daughter is clearly excluded
from heirs in Class-I."
31. The legal position which thus emerges is that, a line of
7 2021 (20) SCC 180.
8 2020 (19) SCC 513.
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decisions starting from Chander Sen (supra), take the view that
under section 8 of Hindu Succession Act, the property which
devolves on male would be his separate property and he does not
inherit the same as Karta of his own family. This proposition of law,
in my considered view, does not govern a situation where the
dispute is between the heirs who are entitled to succeed to the
property of the male Hindu who died intestate, as Class I heirs.
32. Under the uncodified Hindu Law, if the property is inherited
by a Hindu male from his father or father's father or father's
father's father, it is ancestral property as regards his male issue. In
other words, a person inheriting property from his three immediate
paternal ancestors holds it in co-parcenary with his sons, son's sons
and son's son's sons. In the case at hand, it is an admitted position
that Shamji held the property as his self-acquired properties. By
this token, the property held by Shamji devolved on Gulabrai and
Parvatibai by succession under section 8 of the Hindu Succession
Act, 1956. By the same reckoning, after the demise of Gulabrai, the
property would devolve upon his heirs in accordance with the
provisions contained in section 8 of Hindu Succession Act, 1956,
even if the case of the defendant No. 1 that Gulabrai held the
property as his separate property, is taken at par. Conversely, if it is
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held that the property was held by Gulabrai as a coparcener, the
plaintiff, in view of the Hindu Succession (Amendment) Act, 2005
would become a coparcener by birth like that of defendant No. 1.
33. Now the expression "property" in section 8 of the Hindu
Succession Act, 1956, it appears, covers in its ambit the entire
property of a male Hindu who died intestate. It includes not only his
separate or self-acquired property but his interest in co-parcenary
property in case he is survived by any of the female heirs or a
daughter's son mentioned in Class I of the schedule. With the
daughter becoming a coparcener, of course, the position would alter
in the case of a coparcenary property as she would be entitled to
claim under section 6 like a son.
34. Looked from the aforesaid perspective, the plaintiff and
defendant No. 1, being the Class I heirs, would succeed to the
property of Gulabrai with the children of predeceased son and
daughter simultaneously under section 9 of the Hindu Succession
Act, 1956. Therefore, in my considered view, the submission of Mr.
Sen that Gulabrai inherited the property of Shamji as the separate
property, or for that matter, the property devolved on Gulabrai after
the death of Parvatibai ceased to be the HUF property, does not
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merit countenance as the fact remains that the property of Gulabrai
would devolve upon Class I heirs in accordance with the provisions
of section 8 read with section 9 of the Hindu Succession Act, 1956.
35. The challenge to the tenability of the suit on the ground of bar
of limitation premised on the assertion in the plaint that the
plaintiff has been kept away from the affairs of the HUF, implying
thereby that there was ouster of the plaintiff, is required to be
stated to be repelled. In fairness to Mr. Sen, it must be noted that,
the said ground was not seriously canvassed by Mr. Sen during the
course of the submissions.
36. Thus, it may be suffice to note that it is well recognized that
where one co-heir pleads adverse possession against another co-heir
it is not enough to show that one out of them was in sole possession
and enjoyment of the profits of the properties. The possession of one
co-heir is considered in law as possession of all the co-heirs. The co-
heir in possession cannot render his possession adverse to the
other co-owners not in possession merely by any secret hostile
animus on his own part in derogation of the other co-heirs title. It is
settled rule of law as between co-heirs that there must be evidence
of open assertion of hostile title coupled with exclusive possession
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and enjoyment by one of them to the knowledge of the other so as to
construe ouster.
37. A profitable reference, in this context, can be made to a
decision of the Supreme Court in the case of Md. Mohammad Ali
(dead) by LRs vs. Jagadish Kalita and others 9, after a survey of the
precedents, the Supreme Court enunciated the law as under:
"19. Long and continuous possession by itself, it is trite,
would not constitute adverse possession. Even non-
participation in the rent and profits of the land to a co-
sharer does not amount to ouster so as to give title by
prescription. A co-sharer, as is well settled, becomes a
constructive trustee of other co-sharer and the right of
the appellant and/or his predecessors in interest would,
thus, be deemed to be protected by the trustee. As noticed
hereinbefore, the respondents in their written statement
raised a plea of adverse possession only against the third
set of the defendants. A plea of adverse possession set up
by the respondents, as reproduced hereinbefore, do not
meet the requirements of law also in proving ouster of a
co-sharer. But in the event, the heirs and legal
representatives of Gayaram Kalita and Kashiram Kalita
partitioned their properties by meets and bounds, they
would cease to be co-sharers in which event a plea of
adverse possession as contra distinguished from the plea
of ouster could be raised. The courts in a given situation
may on reading of the written statement in its entirety
come to the conclusion that a proper plea of adverse
possession has been raised if requisite allegations
therefor exist. In the event the plaintiff proves his title,
he need not prove that he was in possession within 12
years from the date of filing of suit. If he fails to prove his
title, the suit fails.
20. By reason of Limitation Act, 1963 the legal position
as was obtaining under the old Act underwent a change.
In a suit governed by Art. 65 of the 1963 Limitation Act,
the plaintiff will succeed if he proves his title and it would
no longer be necessary for him to prove, unlike in a suit
governed by Articles 142 and 144 of the Limitation Act,
1908, that he was in possession within 12 years
9 (2004) 1 SCC 271.
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preceding the filing of the suit. On the contrary, it would
be for the defendant so to prove if he wants to defeat the
plaintiff's claim to establish his title by adverse
possession.
............
25. Possession of a property belonging to several co-
sharers by one co-sharer, it is trite, shall be deemed that
he possesses the property on behalf of the other co-
sharers unless there has been a clear ouster by denying
the title of other co-sharers and mutation in the revenue
records in the name of one co-sharers would not amount
to ouster unless there is a clear declaration that the title
of the other co-sharers was denied and disputed. No such
finding has been arrived at by the High Court."
(emphasis supplied)
38. Applying the aforesaid principles to the facts of the case, the
challenge to the claim of the plaintiff as being barred by limitation
on the premise of ouster, in a sense, constitutes prima facie
unjustified and unsustainable denial of the rights of the plaintiff in
the property which, upon the demise of Gulabrai, devolved on her
alongwith the other heirs including the defendants. That constitutes
a strong prima facie case in favour of the plaintiff.
39. In a situation of the present nature, where defendant No.1
categorically denies right, title and interest of the plaintiff in suit
property, the balance of convenience tilts in favour of the plaintiff. If
interim relief is not granted, there is an imminent risk of the joint
family properties being alienated, disposed or third party rights
created therein to the prejudice of the rights of the plaintiff. Thus,
1-ia-1485-2020.doc
the plaintiff would suffer irreparable loss.
40. The prayer to appoint a Court Receiver, in the facts of the
case, does not seem warranted. Admittedly, defendant No.1 has
been in possession of the suit properties, either physical or
constructive, in the capacity of a co-heir. In fact, the plaintiff
asserts in the plaint that defendant No.1 has acted as karta of the
HUF. Thus, the Court does not find any justification to appoint a
Court Receiver in respect of the suit properties. However, since
defendant No.1 has professed to deny the right, title and interest of
the plaintiff in the suit properties, defendant No.1 deserves to be
restrained from alienating, disposing of or liquidating or otherwise
creating third party rights and/or interest in respect of, the suit
properties, till the disposal of the suit. Since a number of suit
properties are stated to be in the possession of the tenants and/or
licensees, it may be appropriate to direct that defendant No.1 shall
not create or renew any tenancy or give any of the suit properties
on Leave and Licence basis, without the leave of the Court, so that
the equities could be balanced and appropriate orders could be
passed at the final disposal of the suit.
Hence, the following order.
1-ia-1485-2020.doc
ORDER
1] The application sands partly allowed.
2] The defendant No. 1 and his agents, assigns and
servants are hereby restrained from alienating,
disposing of, liquidating, or otherwise creating third
party rights and/or interest in respect of, the suit
properties more particularly described in Exhibits A
and A1 to the plaint, till the disposal of the suit.
3] The defendant No. 1 shall not create or renew any
tenancy or give any of the suit properties on leave and
licence basis without the leave of the Court.
4] Application disposed.
5] Costs in cause.
(N.J.JAMADAR, J.)
