Gujarat High Court

Manishaben Manubhai Pandit vs Rukshamaniben Dashrathlal ... on 3 September, 2025

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                            C/FA/1546/2020                                      JUDGMENT DATED: 03/09/2025

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                                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/FIRST APPEAL NO. 1546 of 2020

                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MR. JUSTICE DEVAN M. DESAI
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                                   Approved for Reporting                       Yes                 No

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                                        MANISHABEN MANUBHAI PANDIT
                                                  Versus
                              RUKSHAMANIBEN DASHRATHLAL BRHAMKSHATRIYA & ANR.
                       ================================================================
                       Appearance:
                       MS ARCHANA R ACHARYA(2475) for the Appellant(s) No. 1
                       MR AB GATESHANIYA(3766) for the Defendant(s) No. 1
                       RULE SERVED for the Defendant(s) No. 2
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                         CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                            Date : 03/09/2025

                                                            ORAL JUDGMENT

1. This Appeal is filed by the appellant - original plaintiff

under Section 96 of the Code of Civil Procedure, 1908

(for short, hereinafter referred to as `the Code')

challenging the judgment and decree dated 29.2.2020

passed by the City Civil Court, Ahmedabad in Civil Suit

No.4994 of 1998 whereby the suit of the original

plaintiff was rejected.

2. Heard learned advocate Ms. Archana Acharya for the

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appellant and learned advocate Mr. A. B. Gateshaniya

for the respondent. Though served, none appeared for

respondent No.2. Perused the record.

3. The short facts arising from the record are as under :-

4. The plaintiff - appellant herein filed a suit for a relief of

permanent injunction restraining defendant No.1 from

transferring or alienating land and from evicting the

plaintiff from suit property. It was further prayed that

respondent No.2 - society be restrained from

transferring the suit property in favour of any 3 rd

person. The plaintiff - appellant filed the suit for the

property being tenament No.2 situated at Uttara

Society, Near RTO, Near Gandhi Ashram, Ahmedabad.

The plaintiff and defendant No.1 are daughters and

mother respectively. The suit was resisted by

defendant No.2 by filing written statement at Exh.15.

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Respondent No.1 - original defendant No.1 though

served did not file any written statement. Issues were

framed at Exh.30. Plaintiff examined herself. Defendant

No.1 examined herself at Exh.116 and defendant No.2

was also examined. After considering the evidence,

learned trial Court dismissed the suit. Being aggrieved

and dissatisfied with the impugned judgment and

decree dated 29.2.2020 passed by the City Civil Court,

Ahmedabad in Civil Suit No.4994 of 1998, the appellant

- original plaintiff has filed the present appeal.

5. Learned advocate for the appellant contended that the

suit premises was purchased by father of the plaintiff.

As the father of the plaintiff left the maternal house

somewhere in 1960, respondent no.1 married with

Dashrathlal Balubhai Brahmakshatriya. The defendant

No.1 thereafter transferred the suit property in the

name of his son - Pankajbhai Manubhai Pandit on

23.10.1979. Thereafter Pankjbhai M. Pandit applied

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with society to transfer suit property in the name of

plaintiff on 26.8.1989. Pankajbhai Padit was unmarriad

and died on 2.6.1995. Name of defendant No.1 was

mutated in society record as well as in share certifiate

on 31.8.1998. It is contended that defendant No.1 on

23.9.2007 and 20.1.2010 applied to the society to

mutate names of her daughters inluciding plaintiff in

the share certificate but the society did not take any

action and taking advantage of such position,

defendant No.1 threatened plaintiff to vacate suit

property. Resultantantly, plaintiff was constrained to

file the suit for a relief of permanent injunction. She

has further contended that the defendant No.2 did not

contest the suit by filing written statement and hence

the contentions raised by plaintiff - appellant has

remained uncontroverted. Exhs.54 and 55 are the

applications made by the mother to the custodian of

respondent No.2 society dated 23.9.2007 inter alia

contending that son of defendant No.1 has expired

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and, therefore, names of 3 daughters of defendant

No.1 be mutated in share certificate. The said request

was again reiterated by defendant No.1 vide Exh.55

dated 20.1.2010. As the society did not take any

action, plaintiff gave a notice Exh.56 to the society to

mutate her name in the share certificate. During the

life time of Pankajbhai, an application dated 26.8.1989

was made to the society to enter the name of plaintiff

in the share certificate of the suit property. However,

the society did not mutate the name of plaintiff in the

share certificate of the suit property. Upon death of

Pankajbhai, defendant no.2 society without intimating

the plaintiff, inserted the name of defendant No.1 in

the share certificate. In the record of Ahmedabad

Municipal Corporation, name of plaintiff and her

borther are shown as occupier and owner respectively.

From the evidence on record, it is crystal clear that the

plaintiff is in possession of the suit property and the

intention of the mother - respondent No.1 was clear by

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letters dated 23.9.2007 and 20.1.2010 Exhs.54 and 55

respectively to get the suit property transferred in the

names of 3 daughters of defendant No.1 including the

appellant after deleting the name of late Pankajbhai.

The oral deposition of the plaintiff has gone

unchallenged as defendant No.1 - mother has not cross

examined the plaintiff. In absence of any contrary

evidence, a presumption can be drawn that defendant

no.1 has accepted the case of the plaintiff and

therefore a decree of declaration and permanent

injunction ought to have been passed in favour of the

plaintiff. No other submissions are made except the

above.

6. Per contra, learned advocate for the respondent has

supported the judgment and decree and contended

that defendant No.1 had purchased the property from

her own income as defendant No.1 was serving in a

School at the relevant point of time and out of her own

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income defendant No.1 had purchased suit property in

her name. It is further contended that the plaintiff has

no independent right qua suit property. The plaintiff

has filed a suit for declaration coupled with a relief, a

simplictor of permanent injunction. However, the

declaration is in the nature of an injunction and in

absence of any consequential relief, a simplicitor suit

for permanent injunction is not maintainable. It is

further contended that during the lifetime of

Pankajbhai, his name was mutated in the share

certificate upon request made by defendant No.1.

However, after the death of Pankajbhai, upon written

request made by defendant No.1, the society re-

transferred the name of defendant No.1 in place of

Pankajbhai. It is further contended that the plaintiff

could not prove her case that the father had invested

in purchasing the suit property in the name of

defendant No.1. Right from inception, the title of the

suit property stands in the name of defendant No.1 and

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merely because plaintiff is in possession of the suit

property, a relief of permanent injunction is not

available to the plaintiff. No other submissions are

made except the above.

7. I have considered the submissions canvassed by

learned advocates for the respective parties and

perused the Record & Proceedings.

8. Before averting to the question of maintainability of the

suit, it would be profitable to refer certain facts which

emerge from the record.

9. The suit property was initially purchased by defendant

No.1 in her name and the society had issued a share

certificate in the name of defendant No.1. Exhibit 40 is

a copy of resolution passed by defendant No. 2 -

society on 23-10-1979. It appears from Resolution No.1

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that upon written request made by defendant No.1,

name of Pankajbhai i.e. son of defendant No.1 was

transferred in the share certificate. By a certificate

dated 25-08-1980, Exhibit 44, the society declared that

the suit property stands in the name of Pankajbhai

Manubhai Pandit. Thereafter, on 26-08-1989 (Exhibit

48), Pankajbhai Manubhai Pandit requested the

custodian of defendant No.2 society to enter name of

plaintiff in the share certificate. However, it appears

from the record that the said application of Pankajbhai

Manubhai Pandit was not either decided no changes

were made in share certificate. On 2.6.1995, brother of

Plaintiff Pankajbhai Manubhai Pandit expired leaving

behind no legal heirs. The defendant No.2 society vide

communication dated 31-08-1998, Exhibit 52,

intimated defendant No.1 that her application dated

4.8.1998 requesting to transfer share of suit property

in her name has been accepted and Exh.53 is the share

certificate which indicates that name of defendant No.2

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has been mutated in the society record on 3.8.1998.

10. The appellant - plaintiff has not stated any averment to

the effect what right does she have in the suit

property. What has been pleaded by plaintiff is suit

property was purchased by her father in the name of

defendant No.1, and defendant No.1 upon application

requested the society to mutate name of Pankajbhai in

the society record. The plaintiff has prayed for a relief

of declaration in the form of permanent injunction. In

absence of pleading as to any legal right or title over

the suit property, a simplicitor suit for an injunction in

the nature of declaration is not maintainable. To have a

decree of permanent injunction in the nature of

declaration, plaintiff must establish a title and / or a

legal right to retain possession of the suit property.

11. From the record, it reveals that the suit property is self

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acquired property of mother - defendant no. 1. Plaintiff

has not been able to prove that father had purchased

the suit property in the name of defendant No.1.

Defendant No.1 was serving in a School which is

coming out from the evidence. The mother had

independent source of income and out of which

defendant No.1 had purchased the suit property and

right from the inception, the suit property stood in the

name of defendant No.1, except during certain years

when name of the son of defendant No.1 was mutated

in the share certificate. The request of the son

Pankajbhai to the society that the suit property be

mutated in the name of plaintiff remained pending

even after his death and the name of plaintiff was

never mutated in the share certificate. Even the

request of defendant No.1 to mutate names of all the 3

daughters in the share certificate also remained

pending. The plaintiff, however , requested the society

to give effect of her mother's wish, but the said request

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was made during the pendency of the suit which is of

no importance. The plaintiff does not have an

automatic share in her mother's property while her

mother is alive.

12. In the present set of facts, even if, the defendant No.1

has not filed any written statement and plaintiff's

version has gone unchallenged, plaintiff cannot be

granted a relief of declaration without any

consequential relief. It is well known principle of law

that the plaintiff has to succeed on his/her strength and

not on the weaknesses of the other side.

13. The plaintiff has also sought a relief against defendant

No.2 which is a Cooperative Housing Society.

Undisputedly, the plaintiff has filed the suit against the

society without issuing any notice as contemplated

under Section 167 of the Gujarat Cooperative Societies

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Act 1961. Section 167 of the Act is reproduced

hereunder for the sake of convenience.

"167. Notice necessary in suits.

- Save as otherwise provided in this Act, no suit shall be instituted against a society, or any of its officers in respect of any act touching he business of the society, until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left."

14. It is not even a whisper in the plaint that before

institution of the suit, a statutory notice as

contemplated under Section 167 of the Act was issued

when the plaintiff is claiming any relief against a

cooperative society, fulfillment of provisions contained

under Section 167 of the Act being mandatory, are

required to be fulfilled by plaintiff and in absence of

any statutory notice issued before the institution of the

suit, suit is not maintainable against the registered

cooperative society.

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