1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.562 OF 2008 M/s. Kartik Realters Pvt. Ltd. ..Appellant. Vs. Sachin Ravindra Devkar and ors. ..Respondents. Mr. Girish Godbole with Mr.P.G.Chavan for the Appellant. Mr.S.M.Gorwadkar for the Respondent Nos.1 and 2. CORAM : R.S. MOHITE, J. DATE : 18TH AUGUST, 2009 PC : 1. This is an appeal filed by M/s. Kartik Realters Pvt. Ltd. who are the defendant Nos.2 in Special Civil Suit No.2166 of 2007. The defendants impugn an order passed below Exhibit 7 passed by the 6th Joint Civil Judge, S.D. Pune. By the said order, application at Exh.7 filed by the original plaintiffs has been allowed and the appellants have been temporarily restrained from causing any construction over the suit property in any manner 2 whatsoever. 2. The brief facts of the case are as follows. One Vothoba Deokar had 1/4th undivided share in the suit property which admeasured 57- Ares. By registered agreement of development executed on 22.11.1996, the said Vithoba Devkar granted development rights in favour of one Suresh Yadav. Son of Vithoba and his grant sons were made confirming parties to this agreement of development. It may be mentioned here that the father of the present plaintiffs by name Ravindra Vithoba Devkar was also signatory as a confirming party to the said document and he signed on behalf of himself and the plaintiffs who were minors when this development agreement was executed. After the death of Vithoba a separate registered development agreement was executed by Ravindra Viothoba Devkar (who was arrayed by the plaintiffs as defendant No.1) and the remaining 13 members of Vithoba 3 Devkar s family granting development rights in favour of defendant No.2. Ultimately, by a registered sale deed executed on 16.4.2005 the then existing 16 members of the Devkar family including father of the plaintiff Ravindra Deokar and two confirming parties by name S.K.Yadav and Mr. Gupta who claimed to have certain rights in the suit property sold the suit property to the present appellants. 2. On 26.10.2006, the present suit came to be filed by the plaintiffs for the following main reliefs. a) It be declared that the Development agreement dated 23rd Feb.2004 in respect of the property belonging to the plaintiffs is not binding on them; b) Defendant No.2 be restrained from causing any construction over the property of the 4 plaintiffs or to create any third party interest in the same or to sell the constructed portion to any third party, either by themselves or through their agents or any other person claiming through them; 3. By the impugned judgment and order, injunction sought by the plaintiffs against the defendant No.2 was granted on the single ground that as the shares of the minors could not have been alienated in view of the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1966. The ground which has been given is not tenable in law in view of the judgment of the Apex Court in the case of Sri. Narayan Bal and others Vs. Sridhar Sutar and others reported in (1996) 8 S.C.C. 54 in which it has been held that Section 8 of the Hindu Minor & Guardianship Act 1956 has no application to the share of the Hindu minor in the joint Hindu property. The Advocate appearing for the respondents sought to contend that in any case Vithoba had only ¼th share in the Hindu undivided 5 property and he had three other brothers who hold 3/4th share. His contention was that since shares were undivided the construction could not be effected on any particular spot in the suit property. It was contended that the decree for partition between the family members had already been passed and the regular darkhast was pending since 1993. The contention that unless property was divided by metes and bounds, it would not be possible for the defendant No.2 to effect construction on any particular portion of the undivided property . In my view, this argument cannot be raised by the plaintiffs who have no locus since their shares have been completely alienated. Some argument was sought to be made that alienation was not for legal necessity. However, from a plain reading of the plaint, it is found that there are no averments in this respect. In fact, the final alienation is made by sale deed and there is no challenge to the sale deed at all in the suit. It was lastly contended that alienation 6 was bad because the plaintiff s father was not Karta. Alienation was in fact been done by sale deed and the same is not at all challenged. It is also noticed that Vithoba had four sons and the eldest was one Baban. Baban is signatory to the development agreement dated 23.3.2004 which is the only document under challenge. In my view, therefore, this contention has no substance. In the net result, appeal deserves to be allowed. The impugned judgment and order dated 27.2.2008 passed by the 6th Joint Civil Judge, S.D., Pune below Exh.7 in Special Civil Suit No.2166 of 2007 is quashed and set aside. 3. The Advocate for the respondents states that in this matter interim relief is running since last 18 months, the same may be continued as he would like to test this order in the Apex Court. Ad interim relief is therefore, continued for a period of four weeks from today. (R.S. MOHITE, J.)