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Bombay High Court
M/S. Risali Developers Thr. Its Partner ... vs Smt. Meen (Kamini) Krishna Gaikwad And ... on 30 January, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-AS:4844
905. AO-386-2025.odt
Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 386 OF 2025
WITH
INTERIM APPLICATION NO. 9865 OF 2025
M/s. Risali Developers .. Appellant
Versus
Meena (Kamini) Krishna Gaikwad & Ors. .. Respondents
....................
Ms. Preeti Walimbe, Advocate for Appellant
Mr. Gulabrao W. Awasarmol a/w Mr. Pawan S. Dabhade, Advocates
for Respondent No. 1
Dr. Uday Warunjikar a/w Ms. Gargi Warunjikar, Advocates for
Respondent Nos. 2 to 4
Ms. Shweta S. Shinde a/w Mr. Anand Dande, Advocates for
Respondent No. 5
...................
CORAM : MILIND N. JADHAV, J.
DATE : JANUARY 30, 2026
P. C.:
1. Heard Ms. Walimbe, learned Advocate for Appellant; Mr. Shejul,
learned Advocate for Respondent No. 1 and Dr. Warunjikar, learned
Advocate for Respondent Nos. 2 to 4.
2. On 01.10.2025, following order was passed:-
"1. Heard Ms. Walimbe, learned Advocate for Applicant / Appellant; Mr.
Awarsarmol, learned Advocate for Respondent No.1 and Dr. Warunjikar,
learned Advocate for Respondent Nos.2, 3 and 4.
2. In the present case, the impugned order prima facie hurts the
Developer who is Appellant before the Court. The lis rather primary lis is
between the Respondents namely Respondent No.1 who is original Plaintiff
and Respondent Nos.2, 3 and 4, out of whom Respondent No.2 is father of
Plaintiff. Suit is filed for partition and entitlement of share in the ancestral
property by Plaintiff. Fructification has already taken place. Plaintiff is
entitled to her share. It is not denied by her father viz; Respondent No.2.
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Both, Plaintiff and Defendants who are Respondents before me are party to
Development Agreement with the Developer who is Appellant. Developer
has completed substantial development, but because of the Suit filed by
Plaintiff and the omnibus direction of restraint passed, which is under
challenge in the present Appeal From Order, restraining Developer from
dealing with all his flats, the Appellant - Developer is seeking modification
of the said order. Developer's project is going on as it comprises of 7
buildings. Developer under the Development Agreement executed with
Plaintiff and Defendants is required to hand over 42 flats in total to
Respondent No.2 - father and other Respondents. Plaintiff is the sole
daughter of Respondent No.2. Her share is not denied by her father. There
is a dispute about how much that share should be. Yesterday when the
matter was argued, Plaintiff desired 7 flats out of the 42 flats receivable by
Respondent No.2 (her father) as her share.
3. Today, Plaintiff is agreeable to accept atleast 5 flats as her share.
Respondent No.2 (father)'s consistent position is that Plaintiff is entitled to
3 flats out of the 42 flats as her share. He is ready to offer her the 3
constructed flats identified by him in his Reply Affidavit. Today, Respondent
No.2 has also offered in addition 1 (one) office premises on 1 st floor to
Plaintiff to put an end to the lis. Plaintiff shall take cognizance and apprise
the Court accordingly.
4. The impugned order passed by the learned Trial Court in Exhibit '5'
proceedings in the Suit is appended at page No.18 of the Appeal From
Order and at page No.475 of the Interim Application. According to Plaintiff,
there are 4 properties in which Plaintiff seeks her substantive share and
right. Out of these 4 properties, two properties are under development
which are the subject matter of Suit proceeding filed by Plaintiff.
5. There is a further dispute of Plaintiff with regard to the properties
which are being developed by the Appellant - Developer. According to
Respondent No.2 - father of the Plaintiff, 3 separate properties have been
amalgamated and are the subject matter of development by the Developer
before the Court. According to him, 1 out of the 3 properties is his
exclusive and self acquired property which admeasures 17 Ares. The
remaining 2 plots admeasuring 34 Ares and 33 Ares are ancestral
properties wherein Plaintiff will have her substantive share. Share of
Plaintiff is not denied in toto by Respondent No.2 - father. However
according to Plaintiff, the plot admeasuring 17 Ares is also ancestral
property and is not the exclusive domain of her father. This lis will be
decided in the Suit proceedings.
6. According to Respondent No.2 - father, share of Plaintiff is only to
the extent of receiving 3 constructed flats in the entire development which
has been placed on Affidavit which has been filed yesterday and placed
before me. However, according to Plaintiff, she is entitled to 7 flats, that
undoubtedly would be the subject to the trial. As stated above, today
Plaintiff is ready and willing to accept 5 flats only. In the lis between two
these private individuals, the Developer who is developing the property
cannot and should not suffer. His other purchasers should not suffer.
Therefore, the impugned order passed by the learned Trial Court directing a
complete embargo and restraint on the Developer requires to molded and
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modified straight away at least to the extent of allowing the development to
be carried out by the Developer further which does not concern the lis
between the private parties before me. I am informed that Developer has
already handed over 33 constructed flats out of 42 flats as promised under
the Development Agreement to Respondent No.2 - father. In that view of
the matter, Plaintiff's share in the said flats would be only to the extent of
either 3 flats or 7 flats or 5 flats whatever the case may be as claimed by
Plaintiff subject to adjudication of the lis by the learned Trial Court. Those
many flats can be secured, if so required and the impugned order can be set
aside and development can proceed further.
7. In view of the above, the impugned order dated 30.04.2024 stands
modified and the restraint which is the stated in the said order will not
apply to the development carried out by the Developer as also the
remaining flats which are readied by the Developer for the purpose of
development.
8. Rest of the order shall remain as only to the extent of the lis
between Plaintiff and Respondent No.2 - father. In so far as the dispute
between the private parties is concerned, Dr. Warunjikar, on instructions
informs the Court that in addition to the three flats the Respondent No.2 -
father is now ready and willing offer one commercial shop on the first floor
to the Plaintiff.
9. Today, Plaintiff is present in the Court. Advocate for Plaintiff is
directed to take appropriate instructions, if he so desires to accept the offer
given by Respondent No.2 and apprise the Court on the next adjourned
date.
10. Mr. Awarsarmol, learned Advocate has vehemently submitted that
all properties which are the subject matter of development are ancestral
properties and therefore Plaintiff has a substantive right and share in all the
said properties which is strongly refuted by Dr. Warunjikar. All this can be
decided in the Suit proceedings.
11. Further order will be passed in Appeal from Order for disposal on
the next adjourned date after hearing the private parties. Respondent No.2
will give details of 2 additional flats if the offer is not accepted by Plaintiff
so that appropriate order can be passed in the interregnum for securing
Plaintiff's interest till the Suit is decided.
12. Stand over to 9th October 2025. To be placed under the caption
'First on Board'.
3. In view of the above, grievance of the Appellant before me
stands duly addressed. In that view of the matter, the cause of action
in the present Appeal from Order (AO) does not survive. The reason
for keeping the present AO pending from October till today was on
account of the request made by Mr. Awasarmol on behalf of his client
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(daughter) having dispute / lis for receiving her share in the properties
from her father and other relatives duly represented by Dr. Warunjikar.
This is a case where this Court made an attempt to see if the father
and daughter would reconcile but despite keeping the matter on
several occasions and requiring parties to talk to each other it seems
that the same has not been finally reconciled. Though Mr. Awasarmol
in his usual fairness states that the daughter is ready and willing to
accept 3 flats and 1 shop as agreed to be given to her by her own
father as her share but it is with a rider / caveat that it would be for
the present leaving the right to the daughter to agitate the same later
for her share. If that is the case, this Court cannot help the warring
Respondents in the present AO. Mr. Awasarmol appearing for daughter
who is the Respondent No. 1 before me in the present case has not
challenged the impugned order separately. Once that is the position,
the only method available to his client is to file substantive
proceedings seeking her separate share in partition from her father
and other relatives considering that partition is in respect of the
properties / share coming to her qua the share of the father, other
sister and other relatives. It is seen that there are 42 flats available for
partition along with shops and offices which are handed over by
Appellant Developer to Dr. Warunjikar's client which are for the shares
of all parties.
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4. Mr. Awasarmol submits that in the pleadings filed by the
Appellant / Developer, rights of his client have been accepted by the
Developer. That cannot be considered by the Court. As per the
principal Development Agreement, the Developer has handed over 42
flats, offices and shops. The dispute of shares is between the father
and daughter. However in view of the order dated 01.10.2025, if
Respondent No. 1 desires to seek assertion of her rights, she is free to
file appropriate proceedings as available to her in accordance with law.
All contentions of Respondent No. 1 as also all other Respondent are
expressly kept open.
5. Request made by Mr. Awasarmol for modification of the
impugned order stands expressly rejected in view of the above
reasons. All contentions of Respondents are expressly kept open to
agitate in the appropriate proceedings.
6. With the above directions, Appeal from Order is disposed.
Interim Application is also disposed.
Amberkar [ MILIND N. JADHAV, J. ]
RAVINDRA MOHAN
MOHAN AMBERKAR
AMBERKAR Date:
2026.01.30
19:50:26 +0530
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