1 WP 8121.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8121 OF 2011 1. Sanjeev S/o Shivram Borawake Age : 53 Yrs., Occ. 2. Sudhakar S/o Shivram Borawake Age : 70 Yrs., Occ. 3. Hemant S/o Shivram Borawake Age : 68 Yrs., Occ. 4. Janardan S/o Shivram Borawake Age : 61 Yrs., Occ. 5. Shankar S/o Shivram Borawake Age : 53 Yrs., Occ. 6. Dnyandeo S/o Shivram Borawake Age : 58 Yrs., Occ. 7. Rajiv S/o Shivram Borawake Age : 53 Yrs., Occ. 8. Shashikant S/o Shivram Borawake Age : 53 Yrs., Occ. All R/o : Dharangaon Road, Lp[argapm. Tq. & Dist. : Ahmednagar. .... PETITIONERS V E R S U S Sow. Sulochana W/o Shrawan Jadhav Age : 60 Yrs., Occ. Household, R/o : Kopargaon, Dist. Ahmednagar. .... RESPONDENT 2 WP 8121.2011 - [ J ] Mr. S.S.Kulkarni, Advocate for the petitioners. Mr. V.H.Dighe, Advocate for the Respondent. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 30/11/2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The present respondent had filed Suit for declaration that the Will deed executed by Shantabai in favour of the present petitioners is illegal, null and void. The plaintiff has also claimed injunction restraining the present petitioners from selling and disposing of the suit property. 3. The plaintiff filed an application for temporary injunction restraining the petitioners/original defendants from alienating or selling the suit property in whatsoever manner. The trial Court rejected the said application. The plaintiff preferred Appeal. The Appellate Court allowed the Appeal and restrained the petitioners/original defendants from disposing of the suit property till final decision of the Suit. Aggrieved thereby, the defendants have assailed the said order in the present Writ 3 WP 8121.2011 - [ J ] Petition. 4. Mr. Kulkarni, the learned counsel for the petitioners submits that the relations between the parties are not disputed. The plaintiff is the real sister of the defendants. The plaintiff has not challenged the gift deed executed by the mother in favour of the defendants. By the said registered gift deed, the mother has allotted eight ( 8 ) plots to the petitioners. Even the sale deed has been executed by Shantabai in favour of the present petitioners. The petitioners have also filed affidavit of attesting witnesses to prove the prima facie case. Even otherwise, the plaintiff is protected by virtue of Section 52 of the Transfer of Property Act. The learned counsel further contends that in spite of the fact that the plaintiff has not challenged the gift deed, still the District Court has restrained the defendants from alienating the property which has been given to them by the gift. The learned counsel relies on the following Judgments of the Apex Court and this Court : i] Smt. Laxmibai Ramkrishna Pate and another V/s Smt. Kondabai Dattatraya Dumbre and others reported in 2010 ( 5 ) ALL MR – 723. ii] Appeal From Order Nos. 248 ,330 and 542 of 2010 decided on 03/08/2010 along with 4 WP 8121.2011 - [ J ] Appeal From Order Nos. 543,544 and 545 of 2010 reported in 2010 ( 5 ) Bom.CR – 43. iii] Special Leave Petition ( Civil ) Nos. 9479, 9490, 9688,10016,10095,10280 and 10294/2005 decided on 05/05/2006 Seema Arshad Zaheer and others V/s Municipal Corporation of Greater Mumbai and others reported in (2006) 5 SCC – 282. 5. Mr. Dighe, the learned counsel for the original plaintiff opposes the petition and submits that the District Court has rightly passed the order considering all the contentions. The Will deed on the face of it, is sham document. The registered gift deed itself states that no will deed has been executed by Shantabai. The will deed is alleged to be of the year 1997 and the gift deed is subsequent in point of time. In the subsequent registered document, deceased Shantabai states that no will deed has been executed. As such, there is cloud over the said will deed. The plaintiff has not sought the relief of partition and separate possession and all the co- owners are deemed to be in possession of every part of the property. In such circumstances, the defendants can not alienate and create third party interest. 5 WP 8121.2011 - [ J ] 6. With the assistance of the learned counsel, I have gone through the proceedings. 7. Even if it is assumed that the plaintiff has a strong case, still as it is not disputed that all the defendants are brothers of the plaintiff and that the property was the absolute property of Shantabai, the plaintiff would not have more than 1/9th share in the suit property. In such circumstances, restraining the defendants from dealing with the total property would be unreasonable and would not be in consonance with the principles of justice, equity and good conscious. The rights of the parties can be protected if the defendants are restrained from alienating the part of the property. 8. In the result, I pass the following order : The impugned order passed by the District Court is quashed and set aside and modified as under. The defendants/present petitioners shall not alienate the plots to the extent of two ( 2 ) Acres of the land. The defendants are at liberty to alienate the remaining portion of the land. The said alienation would be subject to the decision of the Suit and the defendants shall make it clear to the purchasers that the sale is subject to the decision of the Suit and that no equities would be claimed if the Suit is decided against the 6 WP 8121.2011 - [ J ] defendants. 9. Taking into account the dispute between the brothers on one side and the sister on another, the trial Court shall expeditiously decide the Suit preferably within the period of nine ( 9 ) months from today. 10. Rule is accordingly made absolute in above terms. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 8121.2011 - [ J ]