1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 366 OF 2009 IN NOTICE OF MOTION NO. 1372 OF 2008 IN S.C. SUIT NO. 1273 OF 2008 Anand Virendra Jhaveri .. Appellant (Orig. Plaintiff) Vs. Virendra Nemchand Jhaveri .. Respondent (Org. Defendant) Mr. M.L.Patan,Advocate, i/b. Ms. J.P.Thakkar, Advocate, for the appellant. Mr.H.S.S.Murthy, Advocate, i/b. Mr. Sanjay Patankar, Advocate, for the respondent. CORAM: J.H.BHATIA, J. DATE : 12th April, 2010. P.C. 1. Heard the learned Counsel for the parties. 2. The plaintiff-appellant is the son of the defendant-respondent. They are living in Flat No.9 on 4th floor of Vinod Apartment Co-op. Housing Society Ltd. at Gowalia Tank. This flat was purchased by the defendant even before the birth of the plaintiff. According to the plaintiff, before purchase of this house, the family was living as a tenant in Sicka Nagar. The tenancy was in the name of the 2 grandfather Nemchand Jhaveri, who died in 1977. According to the plaintiff, the suit property i.e. flat No.9 was purchased with the money received on surrendering that tenancy and therefore, it is a joint family property and he has got share in the property. The defendant wants to dispose of the property. Therefore, the plaintiff filed the suit for declaration that he has right and share in the property and he also sought perpetual injunction restraining the defendant from disposing of the property. He took out Notice of Motion No.1372 of 2008 seeking temporary injunction of the same nature. The defendant contended that the suit house is his self-acquired property and the plaintiff, as a son, has no right, title or interest in the suit house. He has to clear the debts of the Bank and some other creditors and there are also family needs which can be met only by disposing of this house. The trial Court, after hearing the parties, dismissed the Notice of Motion. Against that the appeal is filed by the plaintiff. 3. There is no material on record to show that the defendant was holding any ancestral joint family property nor there is any material to show that the suit house was purchased by the defendant with the sale proceeds of any ancestral joint family property or with any joint family funds. Also there is no material to show that the defendant had received any amount on surrendering tenancy rights and that the amount was used in purchase of the suit flat. The plaintiff was not even 3 born when the suit house was purchased by the defendant. Admittedly, the elder son of the defendant was also living in the same, but later on he shifted elsewhere. The plaintiff, being the younger son, is still living in the suit house. Taking into consideration the circumstances, prima facie, it appears that the defendant No.1 is the exclusive owner of the property. There is nothing to show that the suit house is the joint family property of the plaintiff and the defendant. If it would be joint family property, even then the plaintiff could not have filed a suit for mere declaration and injunction when the remedy of filing suit for partition and separate possession could be filed by him. 4. Taking into consideration these circumstances, as well as the circumstances in which the defendant is required to dispose of the property, I do not see any illegality in the impugned order. 5. Therefore, the Appeal stands dismissed. 6. As the Appeal itself is dismissed, C.A. No.443 of 2009 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) 4