1 AO-784.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.784 OF 2010 WITH CIVIL APPLICATION NO.972 OF 2010 IN APPEAL FROM ORDER NO.784 OF 2010 Smt. Suvarna Shankar Sanap .... Appellant Vs. Balkrishna Dhondu Karad & Ors. .... Respondents Shri Suresh M. Sabrad for the Appellant. CORAM: R.C. CHAVAN, J. DATED: AUGUST 03, 2010 P.C: 1. This appeal is directed against the order passed by the learned trial Judge refusing injunction to restrain creation of third party interests pending the suit. 2. By the judgment pronounced today in Appeal From Order No.542 of 2010 and connected Appeals, the question of insisting on granting a temporary injunction to restrain the defendants from creating third party interests/alienating the property pending suit, 2 AO-784.10 in the face of the provisions of Section 52 of the Transfer of Property Act, 1882, has been decided. It has been held as under: (a) Section 52 of the TP Act provides adequate protection to the parties from transfers pendente lite and such transferees are neither required to be impleaded nor can claim impleadment. They cannot even resist execution proceedings. (b) In Mumbai (as also elsewhere as and when amended provisions are made applicable) plaintiffs could (or rather ought to) have notices of their suits registered under Section 18 of the Indian Registration Act, in view of the amended provision of the TP Act and the Registration Act. They cannot seek to restrain adversary by an injunction by refusing to go in for registration of the lis. (c) Rule 1 of Order XXXIX of the Civil Procedure Code enabling Court to grant temporary injunctions to restrain transfers pendente lite is only an 3 AO-784.10 enabling provision, recognizing the power in the Court to issue such injunction and does not imply that because there is power, it must be exercised. The provision could be invoked only if protection provided by Section 52 of the TP Act is shown to be inadequate. (d) In the face of protection provided by Section 52 of the TP Act, Courts should be cautious in examining the claims by plaintiffs of irreparable loss if injunction to restrain alienations is refused. (e) In suits for specific performance/right to develop against the recorded/rightful owners, Courts may consider if an injunction would cause greater inconvenience to a rightful owner by being deprived the right to deal with his property for the sake of a claim which is yet to mature into right and which metamorphosis rests in the discretion of the Court is not certain. 4 AO-784.10 (f) Courts may consider necessity of imposing suitable conditions to protect plaintiffs' interests short of granting injunction - like seeking undertaking that no equities would be claimed, on account of sale/development of properties; effecting sales only after putting transferees to notice that their rights would be subject to suit etc.. Interests of prospective purchasers would also be protected if plaintiffs in such cases register the lis, though it may be optional. 3. In this case the plaintiff had claimed to have 1/5th share in the property of Dhondu Karad. Dhondu Karad was suffering from cancer. He died on 31-8-1994 and his widow Parvatabai also died on 16-8-2007. Defendant No.1 was looking after the properties. The plaintiff claimed partition and separate possession of her share. The plaintiff learnt that defendant Nos.1 to 4 had sold field bearing gat No.159/2 to defendant Nos.5 to 7, without the plaintiff s consent. Hence she filed suit for partition and separate possession of her share and prayed for an injunction restraining the 5 AO-784.10 defendants from alienating the suit properties till the disposal of the suit. Since this is the only injunction sought, without showing as to how the provisions of Section 52 of the Transfer of Property Act, 1882 would not provide adequate protection to the plaintiff s interest, such an injunction could not have been granted. In any case, even on merits the learned trial Judge has found that prima facie there was a Will in favour of defendant No.1 in respect of half share of the property. The other half which was owned by Dhondu Karad had already been partitioned amongst the family members of Dhondu Karad. In any case, if the plaintiff eventually succeeds in getting her share ascertained, and if any property is found to have been sold, since this is a partition suit, the learned trial Judge could always direct that the property sold may be put to the share of the transferors. There may be no difficulty in the plaintiff getting her share in the property. In view of this, the appeal is dismissed. 6. Since the main appeal itself has been dismissed, Civil Application No.972 of 2010 is also dismissed. (R.C. CHAVAN, J.)