1 ap391.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.391 OF 2010. Faridhusein Hamid Shaikh & Ors. ... Appellants Vs. Mr. Abu Hamid Shaikh & Ors. ... Respondents ...... Mr. S.K. Shinde for Appellants Mr. Girish Agarwal for Respondent Nos. 1 to 3. ...... CORAM : J.H. BHATIA, J. DATE : 25TH OCTOBER, 2010. P. C. 1. Heard the learned counsel for the parties. 2. The appellants before the Court are the original plaintiffs. The suit property is a residential house bearing No. 63 situated at Jubli Baug Rest Camp Road, Devlali Camp, Nasik. The property was standing in the name of Hamid Nanhekhan Shaikh, the father of the plaintiffs and defendant No.1. According to the plaintiff, earlier their family was residing in the suit premises as tenants. In 1990, by the accumulation of earning of the plaintiffs and particularly plaintiff No.1, who had gone abroad, the house was purchased in the name of their father. Plaintiff No.1 has also come 2 ap391.10.sxw back to India and all the plaintiffs were siding in the suit house. It is contended that defendant No.1 got prepared a false will of his father dated 7-02-2004 to the effect that the complete house was bequeathed by the father in the name of defendant No.1. Their father died on 5-5-2004. The defendant No.1 executed a sale deed of the suit house in favour of defendant Nos. 2 and 3, on 28-4-2009 on the basis of the will. Defendant Nos. 2 and 3 are trying to take possession of the house. In view of these circumstances, the plaintiffs filed suit for declaration that defendant Nos. 2 to 3 do not have any right over the suit house. The plaintiffs also sought partition of the suit house and claimed their separate respective shares with possession. They also sought declaration that the sale deed in favour of defendant Nos. 2 and 3 is null and void and not binding on the plaintiffs. They also sought perpetual injunction restraining defendants from causing interference in possession of the plaintiffs and also from creating any third party interest in the property. 3. The plaintiffs also filed application Exh.No. 5. for temporary injunction restraining defendants from causing any interference in their possession and from creating third party interest in the suit property , pending the suit. The application was opposed by the defendant Nos. 2 and 3 claiming that they are in possession of the house. The trial Court after hearing the parties, came to the conclusion that under the Muslim 3 ap391.10.sxw Law the deceased father of the plaintiffs and defendant No.1 could not have bequeathed whole of his property by will. He could bequeath not more than 1/3rd of his property. In view this, prima facie the will is not valid and is not binding on the plaintiffs. With these observations, the trial Court restrained the defendants from creating third party interest, but refused to grant temporary injunction in respect of possession. Being not satisfied with the order, the plaintiffs have preferred the present appeal. 4. The learned Counsel for the plaintiff-appellants vehemently contended that the mutation of the house in favour of defendant Nos. 2 and 3 on the basis of sale deed has also been set aside by the concerned authority. The learned Counsel for the defendant Nos. 2 and 3 contended that in the written statement the defendants have pleaded that besides the suit property, the deceased was holding several other properties at Nasik, Devlali etc. and these properties are not shown in the plaint. According to him, if all the properties are taken into consideration, the suit house could not be more than 1/3 of the total property. It is material to note that except this general statement made by defendant Nos. 2 and 3 that deceased was holding several other properties at different places, no specific details of the same are given. If such details would have been given in written statement, the plaintiffs could be asked to explain their possession and those properties could also be considered, while deciding 4 ap391.10.sxw the validity of the will. In absence of any such details, it has to be presumed that the suit property was the only property in the name of the deceased and there is no dispute that under the Muslim Law, a person cannot bequeath his property in its entirety by will. Therefore, Prima facie, the defendant No.1 does not get the title over the complete suit house on the basis of will. If it is so, he also cannot pass title over the complete house to the defendant Nos.2 and 3. According to the plaintiffs, they and their father were living in the suit house since long and now the attempts are being made by the defendants to dispossess the plaintiffs from the possession on the basis of sale deed. Once it is held that prima facie will as well as consequential sale deed are not binding on the plaintiffs, they cannot be dispossessed from the house, as it is residential house. The purchaser cannot dispossess the co-owners of the property, who are in actual possession. Therefore, in the interest of justice, it is necessary to restrain the defendants from causing interference in the possession of the plaintiffs over the suit house, pending the suit. 5. For the aforesaid reasons, the appeal is allowed and the defendants are hereby restrained from causing any interference in possession of the plaintiffs over the suit house pending the suit. 6. It is hereby made clear that the findings in this order are prima facie based on the assumption that the deceased was not holding any 5 ap391.10.sxw other properties. Therefore, the defendants shall be at liberty to bring on record by way of amendment, if they so desire, that the deceased was holding some other properties also. 7. Appeal stands disposed of accordingly . J. H. BHATIA, J