1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4204 OF 2008 WRIT PETITION NO. 4204 OF 2008 WRIT PETITION NO. 4204 OF 2008 Dattatraya Maharaj Kalambe Jaoli Sahakari Bank Ltd. & Anr. ...Petitioners Versus Shri Kuldeep Nandkumar Jadhav & Ors. ...Respondents Mr. A.S.Desai, Advocate, for the petitioner. Mr. Abhay Thorat, Advocate, for respondent NO.1. Mr. Dilip Bodke, Advocate,for resopndent Nos. 2 & 6. Mr. S.N.Patil, AGP, for respondent Nos. 7 & 8. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE: 24th November, 2008. DATE: 24th November, 2008. DATE: 24th November, 2008. P.C P.C P.C 1. Heard the learned Counsel for the parties. 2. This petition is filed by the original defendant no.6 in Regular Civil Suit No.279 of 2007 on 2 the file of Civil Judge, Senior Division, Satara. The property in dispute is Gat no.330/6/1/A to the extent of 5 Ares. According to the petitioner, respondent Nos. 4 and 5, who are the original defendant Nos. 3 and 4, had obtained certain loan from the petitioner-Bank and their father, Marutrao, had mortgaged the suit property with the petitioner-Bank. The petitioner-Bank took steps under the Securitization Act for taking possession of the property and put the same to auction. However, the respondent Nos.1 and 2 who are the original plaintiffs, filed suit for partition and separate possession and in that suit they also sought interim relief against sale of the property pending the suit. According to them, they are the son and widow of Nandkumar Jadhav, the predeceased son of Marutrao. Marutrao was in possession of certain ancestral properties and by sale of some property, he had purchased the suit property and, therefore, the plaintiffs claim to have share in that property. According to them, Marutrao could not mortgage the property as the security of loan taken by the defendant Nos. 3 and 4. The petitioner, who is defendant No.6, has contended that it was self-acquired property of Marutrao and it was not the ancestral property nor the plaintiffs had any right or share in the suit property. The trial Court, after hearing the parties, allowed the application Exhibit 5 and 3 restrained the defendants from disposing of the suit property or putting the same to sale till decision of the suit. Against that, the Bank preferred Misc. Civil Appeal No.108 of 2007. That appeal was also dismissed. Therefore, the petitioner-Bank has filed the present petition. 3. The Courts below noted that Marutrao was holding some ancestral property which had come to him and two others on death of his father in the year 1988. Record indicates that there was ancestral property in the hands of Marutrao. According to the plaintiffs, Marutrao had sold some ancestral property to purchase the suit property and, therefore, this property also becomes joint family property. Both the Courts below noted that the Bank had not produced any document or material to show that the suit property was not joint family property and in view of this, pending the suit for partition, it was necessary to stay the auction. 4. The relationship of the plaintiffs with deceased Marutrao is not in dispute. After perusal of the record, and particularly the observations made by the lower appellate Court that certain property bearing Gat Nos. 367, 367/7 and 350/2 was mutated in the name of Marutrao after the death of his father in 1988. The 4 relationship of the plaintiffs with deceased Marutrao is not in dispute. 5. I am satisfied that prima facie, there is evidence of nucleus in the hands of Marutrao. At least there is no evidence to show that suit property was the self-acquired property in the hands of Marutrao. In such circumstances, I find no fault with the impugned order. 6. Therefore, the petition stands dismissed. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)