Bombay High Court
Ramsheth Sahebrao Waghmare vs Radhakrishna Sahebrao Waghmare And Ors on 2 April, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:16154
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Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1383 OF 2025
Ramsheth Sahebrao Waghmare,
Age: 57 years, Occupation: Business,
Resident of Nana Sagar, Plot No. 405,
ARUN
Sector - 22, Navi Mumbai - 400 703. ..Petitioner
RAMCHANDRA
SANKPAL
Digitally signed by
ARUN RAMCHANDRA
Versus
SANKPAL
Date: 2025.04.08
11:45:36 +0530
1. Radhakrishna Sahebrao Waghmare
Age: 51 years, Occupation: Business
2. Seema Radhakrishna Waghmare
Age: 45 years, Occupation: Business
3. Datta Sahebrao Waghmare,
Age: 47 years, Occupation: Business
All resident of Plot No. 405, Sector - 22,
Turbhe, Navi Mumbai 400 703. ...Respondents
Mr. Suryajeet P. Chavan, with Bajrang M. Solanke, for the Petitioner.
Mr. Vinayak B. Gadekar, i/b Jidnyasa P. Rankar, for Respondent Nos. 1
and 2.
CORAM: N. J. JAMADAR, J.
DATED : 2 APRIL 2025
JUDGMENT:
1. Rule.
2. Rule is made returnable forthwith and, with the consent of the
learned Counsel for the parties, heard finally.
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3. By this Petition under Article 227 of the Constitution of India, the
Petitioner assails the legality, propriety and correctness of the judgment
and order dated 22nd October 2024 passed by the learned District Judge,
Panvel-Raigad, in MCA No. 14 of 2024 whereby the Appeal preferred by
the Petitioner-original Plaintiff came to be dismissed by affirming an
order dated 20th January 2024 passed by the learned Civil Judge, Senior
Division, Panvel, rejecting Application for temporary injunction
preferred by the Plaintiff in SCS No. 380 of 2023.
4. Shorn of unnecessary details, background facts leading to this
Petition can be stated as under:
4.1. Defendant No.1 is the brother of Plaintiff. Defendant No.2 is the
wife of Defendant No.1. Defendant No.3 is another brother of the
Plaintiff.
4.2 The Plaintiff avers that the Plaintiff had permitted the Defendant
Nos. 1 and 3 to reside in a building owned by the Plaintiff. Defendant
No.1 had requested the Plaintiff to provide finance to purchase a plot,
i.e., Survey No. 4/1/a/3/b/1 at Mouje - Halkhurd, Taluka Khalapur,
District Raigad (the suit property) and had promised to get the Sale
Deed executed in the name of the Plaintiff.
4.3 The Plaintiff claimed to have parted with a substantial part of the
consideration. Yet, the Defendant No.1 got the Agreement for Sale in
respect of the suit property executed in the name of Defendant No.1
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alone. The balance consideration was also paid by the Plaintiff.
Eventually, Defendant No.1 got the sale Deed executed in the name of
Defendant No.1 alone. The Plaintiff was fraudulently made to sign as a
witness to the said instrument.
4.4 When the Plaintiff demanded Defendant No.1 to transfer the suit
property in the name of the Plaintiff, Defendant No.1 avoided to do so,
on one or the other pretext. As the dispute between the Plaintiff and
Defendant No.1 escalated, Defendant No.1 surreptitiously executed a
Gift Deed of the suit property in favour of Defendant No.2. Hence the
Suit of declaration and consequential relief of injunction.
4.5 In the said Suit, the Plaintiff preferred an Application for
temporary injunction. By an order dated 20th January 2024, the learned
Civil Judge, rejected the said Application observing inter alia that,
prima facie, it appeared that the suit property was acquired by
Defendant No.1 under the registered Sale Deed dated 28 th April 2008
and the question as to whether the consideration to acquire the suit
property was paid by the Plaintiff, was a matter for adjudication at the
trial. Therefore, the Plaintiff was not entitled to injunction.
4.6 The learned District Judge, Panvel, did not find any fault with the
discretion exercised by the Trial Court. It was observed that, pursuant to
the Gift Deed executed by Defendant No.1 on 26th March 2021 in favour
of Defendant No.2, the latter has become absolute owner of the suit
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property and, therefore, no injunction could be granted against
Defendant No.2.
5. Mr. Chanvan, the learned Counsel for the Petitioner, submitted
that the Courts below have completely ignored clear and categorical
admissions in the reply filed on behalf of Defendant Nos. 1 and 2 that,
all the properties, including the suit property, were jointly acquired by
the Plaintiff and Defendant No.1. The subject property, in particular,
was acquired from the funds generated out of the joint family business,
namely, Gajanan Automobiles. In view of the aforesaid stand of
Defendant Nos. 1 and 2, according to Mr. Chavan, the character of the
property was not in contest and, therefore, the Courts below ought to
have at least restrained the Defendant Nos. 1 and 2 from creating
further third party rights in the suit property.
6. Mr. Gadekar, the learned Counsel for Respondent Nos. 1 and 2,
made a valiant attempt to urge that Defendant Nos. 1 and 2 have not
admitted that that the suit property was acquired out of joint family
funds. If the reply filed on behalf of Defendant Nos. 1 and 2 is read as a
whole, according to Mr. Gadekar, no such admission is discernible.
7. Mr. Gadekar would further urge that the Plaintiff miserably failed
to demonstrate that he had financed the acquisition of the suit property
and it was nominally purchased in the name of Defendant No.1.
Emphasis was laid by Mr. Gadekar on the fact that the Plaintiff had
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signed the said Sale Deed as an identifying witness to the Defendant
No.1 Since the said Sale Deed was executed in the year 2008 and the
Plaintiff acted as a witness thereto, the challenge to the exclusive
ownership of Defendant No.1, sought to be mounted in the year 2023,
was clearly barred by limitation. Therefore, the Courts below committed
no error in rejecting the Application for temporary injunction, urged Mr.
Gadekar.
8. I have carefully perused the pleadings and the documents on
record and given anxious consideration to the submissions canvassed
across the bar. The substance of the case of the Plaintiff is that though
the suit property was purchased in the name of Defendant No.1, under
the registered Sale Deed dated 28th April 2008, yet, he had paid the
entire consideration. Defendant No.1, who had agreed to transfer the
suit property in favour of the Plaintiff, resiled from the said promise.
9. Evidently, the Plaintiff acted as a witness to the said Sale Deed.
Prima facie Defendant No.1 could sustain the claim of exclusive
ownership of the suit property on the strength of the said Sale deed.
However, the stand of Defendant Nos. 1 and 2, in the reply to the
Application for temporary injunction, prima facie materially erodes the
said claim of Defendant Nos. 1 and 2.
10. In paragraph 2 of the said Reply, Defendant Nos. 1 and 2 have
contended that the Plaintiff, Defendant No.1 and Defendant No.3 were
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residing together. The Plaintiff was the eldest. They had started the
business of Gajanan Automobiles and generated huge income out of the
said joint family business. They had acquired a number of properties in
the name of the Plaintiff, his wife and children. As many as 14
properties were shown to have been jointly acquired by the brothers,
including the suit property which is described at Sr. No. 8 in the table,
below paragraph 2.
11. If there was any doubt about the correctness of the aforesaid
contention, on account of any inadvertence or otherwise, the same
stands removed by the further contentions in paragraph 3 that, the
Plaintiff and Defendant No.1 have purchased the aforementioned 14
properties out of the joint income of all three brothers but the Plaintiff
with malafide intention to grab all the properties, including the suit
property, purchased the said properties in his name and that of his wife
and children.
12. In the reply, especially to the assertion in paragraph 2 of the
Application, an endeavour was made to demonstrate that the amounts
which were shown to have been utilized to acquire the suit property
were credited to the account of the Plaintiff out of the income of the
Gajanan Automobiles. It was contended that the money contributed by
the Plaintiff did not belong to the Plaintiff exclusively but constituted
the joint family property.
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13. The situation which thus obtains is that, on the one hand, the
Sale Deed under which the suit property was acquired shows that it was
acquired in the name of Defendant No.1 alone. The Plaintiff had, in
fact, acted as a witness to the said Sale Deed. On the other hand, there
are clear and categorical admissions of Defendant Nos. 1 and 2 that the
suit property was one of the 14 properties acquired by all the three
brothers out of the joint family income. The endeavour of Mr. Gadekar
to wriggle out of the situation by asserting that the contentions in the
reply, cannot be construed as admissions, does not merit countenance at
this stage. Undoubtedly, admissions are not conclusive and can be
shown to be incorrect or can even be withdrawn. However, at this stage,
the Courts below were required to be given due weight to those
admissions.
14. As noted above, the admissions regarding the character of the suit
property do not appear to be in the nature of a stray contention raised
in an unguarded moment. There are clear, categorical and conscious
contentions in paragraphs 2 and 3 of reply not only with regard to the
suit property but also in respect of other properties, which were
acquired out of the joint family funds. It would be difficult to jettison
away those contentions as immaterial or inconsequential.
15. If the character of the suit property enters into the arena of
contest, especially, on account of the contentions of Defendant Nos. 1
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and 2, then, in my considered view, the matter cannot be decided on the
strength of the registered instrument alone. The Courts below were thus
required to take into account the aforesaid contentions of the
Defendants and appropriately modulate the relief so that the subject
matter of the suit is not lost on account of actions of the parties, during
the pendencey of the Suit.
16. Therefore, a limited order of injunction to restrain the Defendant
Nos. 1 and 2 from creating further third party rights in the suit property
was required to be passed to protect the subject matter of the suit. An
injunction, of the aforesaid nature, would balance the equities between
the parties and would not also cause irreparable loss to the Defendants.
17. I am, therefore, inclined to allow the Petition.
18. Hence the following order:
ORDER
(i) The Petition stands partly allowed.
(ii) The impugned order dated 22nd October
2024 as well as the order passed by the Trial
Court dated 20th January 2024 stand quashed
and set aside.
(iii) The Application for temporary injunction
stands party allowed
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(iv) Defendant Nos 1 and 2 are restrained
from transferring, alienating or otherwise
creating third party rights in the suit property,
till the final disposal of the suit.
(v) The learned Civil Judge, seized with SCS
No. 380 of 2023, is requested to hear and
decide the Suit as expeditiously as possible.
(vi) Rule is made absolute to the aforesaid
extent.
(v) No costs.
[N. J. JAMADAR, J.]
