Bombay High Court
Pralhad Balkrishna Balghare And Anr vs Suryakant Balkrishna Balghare on 16 April, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-AS:17277
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1501 OF 2024
1, Pralhad Balkrishna Balghare,
Age 72 years, Occu - Agriculturist
2. Vidya Pralhad Balghare,
Age 57 years, Occu. Housewife
Both residing at :
Survey No.203/2B,
Rajiv Nagar (South), Viman Nagar,
Pune 411 014. ... Petitioners
versus
Suryakant Balkrishna Balghare,
Adult, Occu - Agriculturist,
R/at 203/2B, Rajiv Nagar (South),
Viman Nagar, Pune - 411 014.
Also address at
Flat No.801, 803 A Wing, 8th Floor,
Optimus CHS, Opp. Lunkad,
Queensland, Mahada Road,
Viman Nagar, Pune - 400 014.
Through the Power of Attorney Holder
ARUN
RAMCHANDRA Sagar Shivaji Khandve,
SANKPAL
Adult, Occu - Agriculturist,
Digitally signed
by ARUN
R/at : Survey No.102, Daulat Bungalow,
RAMCHANDRA
SANKPAL
Date: 2025.04.16
Near Datta Mandir, Lohagaon,
20:17:28 +0530
Pune - 411 017. ... Respondent
Mr. A.V.Anturkar, Sr. Advocate with Mr. Drupad Patil with Mr. Yatin Malvankar,
for Petitioners.
Mr. Anurag Mishra i/by Mr. Avinav R., for Respondent.
CORAM: N.J.JAMADAR, J.
CLOSED FOR ORDERS ON : 23 JANUARY 2025
PRONOUNCED ON : 16 APRIL 2025
SSP 1/20
::: Uploaded on - 16/04/2025 ::: Downloaded on - 16/04/2025 22:29:39 :::
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JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of the parties,
heard finally.
2. The Petitioners - Defendants take exception to a judgment and order
dated 27 October 2023 passed by the learned District Judge, Pune in Misc.
Civil Appeal No.221 of 2022, whereby the appeal preferred by the Petitioners
came to be dismissed affirming the order dated 11 April 2022 passed by the
learned Civil Judge, Sr. Division, Pune in RCS No.2034 of 2019, thereby
restraining the Petitioner - Defendant No.2 from selling, transferring,
assigning or alienating the suit property on the basis of Gift Deed dated 25
April 2013 and 17 June 2013 in any manner, till further orders.
3. The background facts leading to this Petition can be stated, in brief, as
under :
2.1 Shivram Laxman Balghare was the common ancestor. Shivram had
acquired a number of properties, including the agricultural lands bearing
No.203/2B of Village Lohegaon, Gat No.533 of Village Ambegaon and Gat
No.385 of Village Ambegaon (suit properties). Shivram passed away on 13
August 1978, leaving behind Laxmibai, the widow, who passed away in the
year 1979; three sons, namely, Shankar, Haribhau and Balkrishna and two
daughters Nirabai and Shantabai. Balkrishna passed away on 2 March 1989,
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leaving behind Yashodabai, the widow, who passed away on 21 August 2001;
two sons, Pralhad - Defendant No.1 and Suryakant - Plaintiff, and three
daughters Hirabai, Pushpalata and Sharda. Vidya - Defendant No.2 is the
wife of Pralhad - Defendant No.1.
2.2 Ashok and Maruti, the sons of Haribhau, had instituted suit No.1273 of
1990 for partition and separate possession of their share in the joint family
properties, including the suit properties. The successors in interest of
Balkrishna, including Pralhad - Defendant No.1 and Suryakant - Plaintiff
were impleaded as Defendant Nos.9 to 14 therein.
2.3 By a judgment and order dated 31 October 2000, the said suit was
decreed and each of the Plaintiffs therein, were declared to be entitled to get
6/80th share out of the suit properties. Defendant Nos.9 to 14 therein
(including Pralhad - Defendant No.1 and Suryakant - Plaintiff) were declared
to be entitled to 6/20th share together out of the suit properties.
2.4 An appeal against the said decree, being Appeal No.193 of 2001, came
to be dismissed on 9 January 2003. Final decree proceedings in the said suit
are pending.
2.5 Pralhad and Vidya - Defendant Nos.1 and 2, instituted a suit, being
RCS No.254 of 2018, for declaration, injunction and separate possession of
their share of the joint family properties, including the suit properties, which
were described at paragraph Nos.1B, 1C and 1D of the plaint. Defendant
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Nos.1 and 2 asserted that in Suit No.1273 of 1990, the individual shares of
Pralhad - Defendant No.1 and Suryakant - Plaintiff and the other successors
in interest of Balkrishna, were not declared by the Court. Till date, the suit
properties have not been divided by meets and bounds, except the land
located at Survey No.211, Lohegaon (suit property 1A therein). Defendant
Nos.1 and 2, thus, prayed for separate possession of their share of the suit
properties. In the alternative, the suit properties be sold by auction and the
sale proceeds be divided, if partition by meets and bounds was not possible,
and further consequential reliefs.
2.6 Suryakant instituted RCS No.2034 of 2019 asserting that the persusal
of the plaint in RCS No.254 of 2018 instituted by Defendant Nos.1 and 2
revealed that the Defendant No.1 had transferred undivided share out of the
suit property 1A i.e. Survey No.203/2B of Village Lohegaon by way of gift
under the Registered Gift Deed dated 25 April 2013 in favour of Defendant
No.2. Likewise, Another Gift Deed has been executed in favour of Defendant
No.2 in respect of the suit properties 1B and 1C i.e. Gat Nos.533 and 385
situated at Ambegaon. The Plaintiff in RCS No.2034 of 2019, thus, averred
that the Gift of undivided interest by the Defendant No.1 in favour of
Defendant No.2 is illegal and void. Thus, action by way of suit for declaration
that the said Gift Deeds dated 25 April 2013 and 17 June 2013 are illegal,
non-est and void ab-initio and do not bind the share of the Plaintiff in the suit
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properties and the consequential relief of injunction.
2.7 In the said suit, the Plaintiff prayed for temporary injunction to restrain
the Defendants from alienating or otherwise creating third party interest in the
suit properties on the basis of the said Gift Deeds. By an order dated 11 April
2022, the learned Civil Judge was persuaded to allow the application and
thereby restrain Defendant No.2 from alienating or otherwise creating third
party interest in the suit properties on the strength of the said Gift Deeds.
The learned Civil Judge was of the view that the suit properties were
admittedly joint family properties. The Defendants themselves had instituted
a suit for partition and separate possession of the joint family properties being
RCS No.254 of 2018. Prima facie, Defendant No.1 had no right to alienate the
undivided interest in the suit properties by way of gift. It was, therefore,
necessary to restrain Defendant No.2.
2.8 Aggrieved, the Defendants preferred an appeal before the District
Court. The learned District Judge found no reason to interfere with the order
passed by the trial Court. Referring to the Articles 258 and 267 of Mulla's
Hindu Law, 16th Edition, the learned District Judge held that there was an
express prohibition against the transfer of undivided interest by way of gift.
Referring to the fact that the Defendants had instituted a suit for partition and
separate possession of their share in accordance with the decree passed in
RCS No.1273 of 1990 and there were other documents which indicated that
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the Plaintiff and Defendant No.1 reckoned that the suit properties were not
partitioned and they had undivided interest therein, the learned District Judge
returned a finding that the Plaintiff had made out a prima facie case. The
elements of balance of convenience and irreparable loss were also found in
favour of the Plaintiff.
3. Being further aggrieved, the Defendants have invoked the writ
jurisdiction of this Court.
4. I have heard Mr. Anil Anturkar, learned Senior Advocate and Mr.
Drupad Patil, learned Counsel for the Petitioners, and Mr. Anurag Mishra,
leaned Counsel for the Respondent, at some length. Learned Counsel took
the Court through the pleadings, orders passed in the previous proceedings
and the material on record.
5. Mr. Anturkar, learned Senior Advocate for the Petitioners, urged that
both the Courts below have committed an error in law in returning a prima
facie finding that the suit properties continued to be joint family properties.
This incorrect impression of the character of the property has singularly
vitiated the determination by the Courts below. Taking the Court through the
averments in the plaint, wherein the Plaintiff has categorically asserted that
the suit properties were self acquired properties of Shivram, the grand father
of Plaintiff and Defendant No.1, Mr. Anturkar would urge that, with the demise
of Balkrishna in the year 1989, there was a notional partition and the said
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notional partition was required to be taken to its logical end. Consequently,
the character of the suit properties as joint family properties came to an end
with the demise of Balkrishna, in the year 1989.
6. Once the aforesaid position is accepted, which, according to Mr.
Anturkar, is an inevitable consequence of the notional partition under Section
6 of the Hindu Succession Act, Pralhad - Defendant No.1 and Suryakant -
Plaintiff ceased to be coparceners with effect from 1989 as they succeeded to
the estate as tenants in common and not joint-tenants. Resultantly, Pralhad -
Defendant No.1 was fully entitled to deal with his share in the suit properties
without any restraint. The learned District Judge, thus, committed an error in
importing the principle that the gifts were prima facie illegal for being of an
undivided interest of the coparcener in the suit properties.
7. A very strong reliance was placed by Mr. Anturkar on a judgment of the
Supreme Court in the case of Uttam V/s. Saubhag Singh and Ors.1, wherein it
was enunciated that on a conjoint reading of Sections 4, 8 and 19 of the
Hindu Succession Act, 1956, after joint family property has been distributed in
accordance with Section 8 on principles of intestacy, the joint family property
ceases to be joint family property in the hands of the various persons who
have succeeded to it as they hold the property as tenants in common and not
as joint tenants.
1 (2016) 4 SCC 68
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8. Mr. Anturkar also placed reliance on a judgment of the Supreme Court
in the case of Gurupad Khandappa Magdum V/s. Hirabai Khandappa
Magdum2, which was referred to in the decision of Uttam (supra). In the case
of Gurupad V/s. Hirabai (supra), it was enunciated that fiction created by
Explanation 1 of Section 6 of the Hindu Succession Act (as it stood prior to
2005 Amendment), has to be given its full effect. All the consequences which
flow from a real partition have to be logically worked out, which means that
the share of the heirs must be ascertained on the basis that they had
separated from one another and had received a share in the partition which
had taken place during the lifetime of the deceased. The allotment of this
share is not a processual step devised merely for the purpose of working out
some other conclusion. It has to be treated and accepted as a concrete
reality.
9. In opposition to this, Mr. Anurag Mishra, learned Counsel for the
Respondent, submitted that the contention sought to be canvassed on behalf
of the Petitioners is wrongly grounded in facts and unsustainable in law.
Attention of the Court was invited to the pleadings in the suit instituted by the
Defendants regarding the character of the suit properties and the prayers
therein and the manner in which Plaintiff and Defendant No.1 treated the suit
properties as joint by executing no objection certificate to permit each other to
2 (1978) 3 SCC 383
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use the portions of the properties in their respective possession.
10. Mr. Mishra also invited attention of the Court to the findings of the Court
in the judgment in RCS No.1273 of 1990 to the effect that the suit properties
were ancestral properties and were available for partition and that Defendant
Nos.3 to 15 therein, including the Plaintiff and Defendant No.1, failed to
establish that, late Shivram had allotted the suit properties i.e. Survey
No.211/1 and 203/2B to the deceased Balkrishna. In the said judgment, the
Court had, in terms, observed that the Defendants failed to discharge the
burden that the suit properties were acquired by late Shivram without the help
of joint family funds, and, thus, the nature of the suit properties therein was
that of ancestral properties. Therefore, now it is not open for the Defendants
to contend that the suit properties are not the joint family properties.
11. Mr. Mishra joined the issue on the import of the Explanation 1 to
Section 6 of the Hindu Succession Act, (unamended), by canvassing a
submission that the joint family properties do not cease to be joint family
properties upon the death of a male Hindu in a situation where Explanation 1
operates. Reliance was placed on a three Judge Bench judgment of the
Supreme Court in the case of Vineeta Sharma V/s. Rakesh Sharma and
Ors.3, wherein it was observed that the statutory fiction of partition created by
proviso to Section 6 of the Hindu Succession Act, 1956, as originally enacted,
3 (2020) 9 SCC 1
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did not bring about the actual partition or disruption of coparcenary. The fiction
was only for the purpose of ascertaining share of deceased coparcener when
he was survived by a female heir, of Class-I as specified in the Schedule to
the Act of 1956 or male relative of such female.
12. Mr. Mishra also placed reliance on a decision of the Division Bench of
Patna High Court in the case of Santan Narain Tewari V/s. Saran
NarainTewari and Ors.4 to buttress his submissions.
13. Mr. Mishra urged that it is well recognized that a gift by a coparcener of
his undivided coparcenary interest is not legal. Reliance was placed on the
judgments of the Supreme Court in the cases of Thamma Venkata
Subbamma V/s. Thamma Rattamma and Ors. 5 and Baljinder Singh V/s.
Rattan Singh6. Thus, the Courts below cannot be said to have committed any
error in restraining Defendant No.2 from further alienating the suit properties
on the strength of such void gift deeds.
14. In rejoinder, Mr. Patil, learned Counsel for the Petitioners, submitted
that with the preliminary decree passed in RCS No.1273 of 1990, there was a
clear disruption of the joint family properties. The shares of the Plaintiff and
Defendant No.1 stood crystalized. Mr. Patil placed reliance on the judgment
of the Supreme Court in the case of Radha Bai V/s. Ram Narayan7, wherein it
4 1959 SCC Online Pat 111
5 (1987) 3 SCC 294
6 (2008) 16 SCC 785
7 AIR Online 2019 SC 1521
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was held that once the share of coparcener is determined, it ceases to be a
coparcenary property. The parties in such an event would not possess the
property as "joint tenants" but as "tenants in common".
15. Before adverting to appreciate the legal submissions, it may be
appropriate to note the factual backdrop in which the courts below have
granted injunction. Such a consideration is necessary as this Court in this
Petition is primarily called upon to examine the legality, propriety and
correctness of the exercise of discretion to grant injunctive reliefs by the
courts below.
16. First and foremost, it is imperative to note the character of the suit
property. Though an endeavour was made on behalf of the Petitioners to
urge that the suit property was the self-acquired property of Shivram, yet, the
judgment of the Civil Court in RCS No.1273 of 1990, which has attained
penalty, has concluded the issue by a categorical finding that the properties in
the hands of Shivram, the grandfather of the Plaintiff and Defendant No.1,
were ancestral properties and all the properties were available for partition.
The Civil Court had, thus, concluded that the Plaintiffs therein had proved that
the suit properties were ancestral properties and Defendant Nos.3 to 15 failed
to prove that the deceased Shivram had allotted the suit properties i.e. Survey
Nos.211/1 and 203/2B described in Schedule A under the Vyavasthapatra
(family arrangement) dated 20 August 1969 to deceased Balkrishna, Shankar
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and Smt. Lakshmibai. In the face of the aforesaid findings, which have
attained finality, it it now not open for the Petitioners to contend that the suit
properties were self-acquired properties of late Shivram.
17. Secondly, the manner in which Defendant Nos.1 and 2 considered the
nature of the suit properties also assumes material significance. In the suit
instituted by Defendant Nos.1 and 2, being RCS No.254 of 2018, a
categorical assertion was made that the individual shares of Plaintiff No.1 -
Defendant No.1 herein, Suryakant, Smt. Hirabai, Pushpalata, Sharada,
Yashodabai Balkrishna - Defendant Nos.9 to 15 in RCS No.1273 of 1990,
who represented Balkrishna Branch, were not declared by the Court in the
said suit. Till date, the suit properties were not divided by meets and bounds,
except the land bearing Survey No.211/1, Lohegaon Haveli i.e. suit property
1A in the suit instituted by Defendant Nos.1 and 2. The prayers in the said suit
are also of importance. Defendant Nos.1 and 2 sought partition and separate
possession of their shares in the suit properties.
18. Thirdly, there are documents which indicate that the Plaintiff and
Defendant No.1 had treated the suit properties as undivided properties, and,
to allow each other to enjoy the portions in their respective possession, they
had executed no objection certificates. What is of significance is the fact that
both the Plaintiff and Defendant No.1 acknowledged that they have undivided
interest in the suit properties.
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19. The aforesaid being the factual position, the manner in which
Defendant No.1 professed to gift the properties in favour of Defendant No.2
deserves consideration. Under the Gift Deed dated 23 April 2013, Defendant
No.1 professed to gift 1008.8 square meters area and the structure thereon to
Defendant No.2, out of Survey No.203/2B admeasuring 2H 21.94 R, the suit
property described in paragraph 1B of the plaint in RCS No.254 of 2018
instituted by Defendant Nos.1 and 2. Defendant No.1 claimed that he was
the absolute owner of the property sought to be gifted therein.
20. Under the second Gift Deed dated 17 June 2013, Defendant No.1
professed to gift an area admeasuring 1H 97.33R out of Gat No.533
admeasuring 14H 18R; the property described in paragraph No.1C of the
plaint in RCS No.254 of 2018, which has been instituted for partition and
separate possession of the said suit properties and Survey No.211/1 at
Lohegaon. In the second Gift Deed, Defendant No.1 claimed that he had
undivided interest in the suit property bearing Gat No.533 and professed to
gift an area admeasuring 1H 97.33R.
21. A cumulative reading of the aforesaid Gift Deeds, in the light of the
averments in plaint in RCS No.254 of 2018 instituted by Defendant Nos.1 and
2 leads to an inference that what the Defendant No.1 professed to gift to
Defendant No.2 was his undivided interest in the properties which formed part
of his undivided interest in the suit properties.
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22. In the light of aforesaid rather uncontroverted position, the learned
District Judge was fully justified in observing that Defendant No.1 could not
have lawfully transferred by way of gift his undivided interest in the suit
properties. The legal position is well neigh settled that a gift by a coparcener
of his undivided interest in the coparcenary property is void. Reliance by Mr.
Sharma on the judgment of the Supreme Court in the case of Thamma
Venkata Subbamma (supra), which has been consistently followed, is well
placed.
23. To salvage the position, an endeavour was made before this Court to
draw home the point that Defendant No.1 cannot be said to have gifted to the
Defendant No.2 his undivided interest in the suit properties. In fact, upon the
death of Balkrishna, father of Plaintiff and Defendant No.1, there was partition
and the suit properties ceased to be the joint family properties. Consequently,
Plaintiff, Defendant No.1 and other heirs of late Balkrishna inherited the joint
family properties as tenants in common and not as a joint tenants.
24. Taking the Court through the provisions of Section 6 of the Hindu
Succession Act (as it stood prior to 2005 Amendment) and Section 8 of the
Hindu Succession Act, Mr. Anturkar would urge that, upon the demise of
Balkrishna, joint family properties ceased to exist. A very strong reliance was
placed by Mr. Antuarkar on the decision of the Supreme Court in the case of
Uttam V/s. Saubhag Singh and Ors. (supra), wherein the legal position as
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regards the joint family property prior to the Amendment of 2005, in the
context of the effect of Sections 4, 8 and 19 of the Hindu Succession Act, was
expounded. Mr. Anturkar laid special emphasis on the propositions (v) and
(vi) enunciated in paragraph No.18 of the said judgment. They read as
under :
"(v) On the application of Section 8 of the Act, either by
reason of the death of a male Hindu leaving self-acquired
property or by the application of Section 6 proviso, such
property would devolve only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections4, 8 and 19 of the Act,
after joint family property has been distributed in accordance
with Section 8 on principles of intestacy, the joint family
property ceases to be joint family property in the hands of the
various persons who have succeeded to it as they hold the
property as tenants-in-common and not as joint tenants."
25. Mr. Anturkar also banked upon the judgment of the Supreme Court in
the case of Gurupad Khandappa Magdum (supra), which was followed by the
Supreme Court in the case of Uttam v/s. Saubhag Singh and Ors. (supra).
26. At this stage, it may be apposite to note the background facts in which
the decisions in the cases of Gurupad Khandappa Magdum (supra) and
Uttam V/s. Saubhag Singh and Ors. (supra), were rendered. In the case of
Gurupad Khandappa Magdum (supra), a Hindu widow had claimed partition
and separate possession of her share in the joint family property which
consisted of her husband, herself and their two sons. In that context, it was
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held that by applying the principles of notional partition envisaged by Section
6 of the Hindu Succession Act (as it stood then), she would have got ¼ share
in the joint family property had partition been taken during the life time of her
husband. Thus, inevitable corollary of the application of the legal fiction
incorporated in Section 6 of the Act, was that the heir will get his or her share
in the interest which the deceased had in the coparcenary property at the time
of his death, in addition to the share which he or she received or must be
deemed to have received in the notional partition.
27. In the case of Uttam V/s. Saubhag Singh and Ors. (supra), the
Appellant - Plaintiff therein, had instituted a suit against his father and father's
three brothers on the footing that the suit property was the ancestral property
and that, being a coparcener, he had a right by birth in the said property in
accordance with the Mitakshara Law. The suit was decreed by the trial Court.
First Appellate Court reversed the decree observing that, when the Plaintiff's
grandfather died in 1973, his widow was alive and, thus, grandfather's share
was required to be distributed in accordance with Section 8 of the Act, 1956.
Resultantly, joint family property was required to be divided in accordance
with rules of intestacy and not survivorship. Secondly, no joint family property
remained to be divided when the suit for partition was filed. While upholding
the said view, the Supreme Court in the case of Uttam V/s. Saubhag Singh
and Ors. (supra), held that on the date of the birth of the appellant therein
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(1977), the ancestral property not being joint family property, the suit for
partition of such property would not be maintainable.
28. The aforesaid pronouncements, however, cannot be construed to mean
that fiction of notional partition would bring about real partition. A three Judge
Bench of the Supreme Court in the case of Vineeta Sharma (supra), had an
occasion to also consider the position as it obtained prior to 2005 Amendment
in the matter of notional partition under Section 6 read with Section 8 of the
Act, 1956. The Supreme Court referred to the observations in paragraph
No.13 in the case of Gurupad Khandappa Magdum (supra), (which was also
extracted by the Supreme Court in the case of Uttam V/s. Saubhag Singh and
Ors. (supra),) and explained the import of the said observations in the
following words :
"103...... The only question involved in the aforesaid matter was
with respect to the Explanation of Section 6 and the determination
of the widow's share. In that case, the question was not of
fluctuation in the corparcenary body by a legal provision or
otherwise. Everything remained static. No doubt about it, the
share of the deceased has to be worked out as per the statutory
fiction of partition created. However, in case of change of body of
the coparceners by a legal provision or otherwise, unless and until
the actual partition is finally worked out, rights have to be
recognized as they exist at the time of the final decree. It is only
the share of the deceased coparcener, and his heirs are
ascertained under the Explanation to Section 6 and not that of
other coparceners, which keep on changing with birth and death.
109. When the proviso to unamended Section 6 of the Act, 1956
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Act came into operation and the share of the deceased
coparcener was required to be ascertained, a deemed partition
was assumed in the lifetime of the deceased immediately before
his death. Such a concept of notional partition was employed so
as to give effect to Explanation to Section 6. The fiction of notional
partition was meant for an aforesaid specific purpose. It was not
to bring about the real parttion. Neitehr did it affect the severance
of interest nor demarcated the interest of surviving coparceners or
of the other family members, if any, entitled to a share in the event
of partition but could not have claimed it. The entire partition of
the coparcenary is not provided by deemed fiction; otherwise,
coparcenary could not have continued which is by birth, and the
death of one coparcener would have brought an end to it. Legal
fiction is only for a purpose of it serves, and it cannot be extended
beyond was held in State of Travancore - Cochin V/s. Shanmugha
Vilas Cashewnut Factory8; Bengal Immunity Co. Ltd. V/s. State of
Bihar9; and CED V/s. S. Harish Chandra10............"
(emphasis supplied)
29. The Supreme Court went on to enunciate in clear and explicit terms
that the statutory fiction of partition created by the proviso to Section 6 of the
Hindu Succession Act, 1956, did not bring about the actual partition and
disruption of coparcenery. The observations in paragraph 137.4 read as
under :
"137.4 The statutory fiction of partition created by the proviso to
Section 6 of the Hindu Succession Act, 1956 as originally enacted
did not bring about the actual partition or disruption of
coparcenary. The fiction was only for the purpose of ascertaining
8 AIR 1959 SC 352
9 AIR 1953 SC 333
10 AIR 1955 SC 661
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share of deceased coparcener when he was survived by a female
heir, of Class I as specified in the schedule to the 1956 Act or
male relative of such female. The provisions of the substituted
Section 6 are required to be given full effect. Notwithstanding that
a preliminary decree has been passed, the daughters are to be
given share in coparcenary equal to that of a son in pending
proceedings for final decree or in an appeal."
(emphasis supplied)
30. In any event, in the facts of the case at hand, as noted above, it
becomes evident that the Defendant Nos.1 and 2 have not only treated the
suit property as joint family property, but also instituted a suit for partition and
separate possession of their share in the joint family property, Defendant No.1
professedly executed a gift of his undivided interest in the suit property and
proceeded to deal with the suit properties on the premise that the Plaintiff and
Defendant No.1 were having undivided interest in the suit properties.
Consequently, the contention on behalf of the Defendants that the Defendant
No.1 had gifted the suit properties which absolutely belonged to the
Defendant No.1 appears debatable.
31. In the totality of circumstances, the order of injunction restraining
Defendant No.2 from creating further third party rights in the suit properties
appears justifiable as it also protects the subject matter of the suit till the
adjudication of the rights and liabilities of the parties. The learned District
Judge, thus, cannot be said to have committed any error in repelling the
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challenge to the order of injunction passed by the trial Court. Hence, no
interference is warranted with the impugned order in exercise of supervisory
jurisdiction. The Writ Petition, therefore, deserves to be dismissed.
32. Hence, the following order :
ORDER
(i) The Writ Petition stands dismissed.
(ii) Rule discharged.
(iii) No costs.
(iv) By way of abundant caution, it is clarified that the
consideration was confined to examine the legality, propriety and
correctness of the impugned order and the trial Court shall not be
influenced by any of the observations of this Court while adjudicating
the suit.
( N.J.JAMADAR, J. )
