1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 170 OF 2009 WITH CIVIL APPLICATION NO.201 OF 2009 Sou Pushpalata Sadanand Mahulkar & ors. : Appellants versus Tukaram Joma Koli and ors. : Respondents. Ms.Gauri Godse for the Appellants. Shri.P.K.Dhakephalkar, Senior Counsel i/by Shri Harshad Bhadbhade for the Respondent Nos. 11 and 12. Shri N V Walawalkar, Senior Counsel i/by Ms Sunita Devgonde for the Respondent No.13. CORAM : R.M.SAVANT, J. DATED : MARCH 03, 2009 P.C. 1. This Appeal takes exception to the order dated 29th December 2008 passed by the learned Civil Judge Senior Division Panvel by which order the Application Exhibit-5 for temporary injunction filed by the Appellants/Plaintiffs came to be rejected. 2 2. The Appellants are the original Plaintiffs, who have filed Special Civil Suit No.357 of 2008 for cancellation of the Power of Attorney dated 10/07/2006 in favour of the Defendant No.11 and for cancellation of the sale deed dated 19/10/2006 between the father of the Plaintiffs and the Defendant No.12 and, second sale deed dated 12/09/2007 between the Defendant No.12 and the Defendant No.l3 in respect of the land admeasuring 21 Hectors and 29 Ares situated at Mauje Didhade, Taluka Uran, as also for setting aside the Memorandum of Understanding dated 27/10/1995. The suit property was purchased jointly by one Joma Dhaya Koli and Rajaram Gajanan Koli alias Mahulkar in the year 1949 for Rs.2308/- from Smt.Mariyabibi Jawaje Faki Ali Shilotri and eight others. The said Joma Dhaya Koli expired on 5/6/1951 and the said Rajaram Gajanan Koli expired on 1/9/1989. The said Rajaram had three sons viz. Dwarkanath, Sadanand and Ramesh. It appears that Dwarkanath died unmarried and issueless. The Plaintiff No.1 is the widow of Sadanand and the Plaintiff Nos.2 to 5 are the sons and daughters of Sadanand. The Plaintiff No.6 is the wife of Ramesh – the Defendant No.10. The Plaintiff Nos.7 to 9 are the children of Ramesh-Defendant 3 No.10. 3. It is the case of the Plaintiffs in the said Suit that Rajaram and Joma had ½ share each in the suit property and after the death of Rajaram the property to the extent of his share devolved upon his sons Sadanand and Ramesh in whose hands it became a joint family property and the Plaintiffs are the co-sharers in the suit property and, therefore, the sale deeds executed by Sadanand and Ramesh are not binding upon the Plaintiffs. It is also the case of the Plaintiffs that prior to 10/7/2006, the Defendant No.12 had entered into negotiations with Sadanand and Ramesh along with the Plaintiffs and the Defendant Nos.1 to 9 for sale of the suit property. However, at the said time, the offer of Rs.7,00,000/- per acre made by the Defendant No.12 was not accepted and a proposal of Rs.32,00,000/- per acre was placed before the said Defendant No.12. It is further the case of the Plaintiffs that the legal heirs of Joma were ready to sell the land for a lesser consideration. Hence pursuant to separate discussion between them and Defendant No.12, the total consideration was agreed at Rs.30,00,000/- per acre. It is further the 4 case of the Plaintiffs that the Defendant No.12 had paid an amount of Rs.1,59,10,000/- in the year 2006 and the balance consideration was to be paid at the time of sale. Thus the Defendant No.12 has not yet paid the balance amount of Rs.6,20,90,000/- to them. It is further the case of the Plaintiffs that in December 2007, the Plaintiffs came to know that the Defendant No.12 had cheated them by obtaining sale deed and power of attorney from the persons of the branch of Joma and by obtaining thump impression of Sadanand and signature of Ramesh. It is the case of the Plaintiffs that in the meanwhile, the Defendant No.12 had illegally sold the suit property to the Defendant No.13 for a consideration of Rs.26,31,49,140/-. The said transaction, therefore, is not binding on the Plaintiffs as the Plaintiffs have a share in the suit property as they are claiming through Sadanand and Ramesh. 4. The Defendant Nos.1 to 9 filed their written statement and denied the suit claim. The said Defendants contended that the sale transaction has been completed and all have received the consideration. The Defendant No.10 Ramesh/ member of Plaintiffs' 5 family has, however, supported the suit claim. 5. The Defendant No.11 has supported the transaction. Similarly, the Defendant Nos.12 and 13 in their joint written statement below Exhibit 55 have denied all the contentions raised by the Plaintiffs. The Defendant Nos.12 and 13 have further contended that before registration of the disputed agreement for sale on 10th July 2006 the Plaintiffs had executed the sale deed and power of attorney. Prior to that they had issued a public notice in respect of the said transaction on 25/5/2006. However, no one had raised objection to the same. The Plaintiffs have agreed to sell the suit property at the rate of Rs.7,00,000/- per acre by cheque and have also received the amount. It is further contended by the said Defendants that the amount of consideration was distributed as per the Memorandum of Understanding dated 27/10/1995 between the Plaintiffs and the Defendant Nos. 1 to 10 which has been given effect to in the revenue records and as requested by the Plaintiffs and the Defendant Nos.1 to 10. It is further contended that Sadanand, who is the signatory and through whom the Plaintiffs are claiming share, never raised any 6 objection to the said transaction during his lifetime. Hence the Plaintiffs are not entitled to file the suit against the said Defendants. 6. The Plaintiffs in the said suit filed the Application Exhibit-5 for temporary injunction which has been rejected by the impugned order 29/12/2008. The trial Court, in the context of the claim raised by the Plaintiffs that the property devolving in the hands of Sadanand and Ramesh was the joint family property and, therefore, the Plaintiffs had a share in the suit property and, therefore, the sale deed executed by Sadanand and Ramesh was not binding on them, relied upon the judgment of the Apex Court in the case of Bhanwar Singh v/s Puran & ors reported in 2008 AIR (SC)1490, especially paragraph Nos.11 and 14 of the said judgment in which the effect of Section 8 of the Hindu Succession Act 1956 has been considered by the Apex Court. The said Paragraphs are reproduced herein under :- “Para 11:- The Act brought about a sea change in the matter of inheritance and succession amongst Hindus. Section 4 of the Act contains a non- obstente provision in terms when of any text, rule or interpretation of Hindu Law or any custom or 7 usage as part of that law in force immediately before the commencement of the Act, ceased to have effect with respect to any matter for which provision is made therein save as otherwise expressly provided. Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolve according to the provisions of the Chapter as specified in clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed in Class-1 heirs but a grandson, so long as father is alive, has not been included. Section 19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stripes, as also tenants-in-common and not as joint tenants. Para 14 :- Interpretation of Section 8 of the Hindu Succession Act came up for consideration before this Court in Commissioner of Wealth Tax, Kanpur & ors v. Chander Sen & ors. [(1986) 3 SCR 254]. Mukherjee, J. (as the learned Chief Justice then was) upon considering the changes effected by the Hindu Succession Act as also the implication 8 thereof and upon taking into consideration the decisions of Calcutta High Court, Madhya Pradesh High Court, Andhra Pradesh High Court as also Madras High Court on the one hand and the Gujarat High Court on the other, opined :- “In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law let a right by birth of the said property contrary to the scheme outlined in Section 8. Further more as noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved 9 on a Hindu under Section 8 of the Hindu Succession would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc. Before we conclude we may state that we have noted the observations of Mulla's commentary on Hindu Law 15th Edn dealing with section 6 of the Hindu Succession Act at page 924-26 as well as Mayne's on Hindu Law, 12th Edition pages 918- 919. The express words of Section 8 of The Hindu Succession Act, 1956 cannot be ignored and must prevail. The preamble to the Act reiterates that the Act is, inter alia, to 'amend' the law, with that background the express language which excludes son's son but included son of a predeceased son cannot be ignored.” 10 In the light of the judgment in Bhanwar Singh's case, the trial Court held that after the death of Rajaram, in view of the Memorandum of Understanding entered into between Sadanand and Ramesh and the heirs of Joma viz Tukaram, Atmaram and Ramesh Balkrishna Koli, became entitled to 1/5th share each in terms of the said Memorandum of Understanding. The said Memorandum of Understanding was given effect to in the revenue record and that after the said 1/5th share was fixed, Sadanand had executed the sale deed in the year 2006 in favour of the Defendant No.12 and, thereafter Sadanand expired in the year 2008. Thus, according to the trial Court, after the death of Rajaram in the year 1989, the property vests in his two sons Sadanand and Ramesh being the heirs of Class-I and they will have rights in the suit property as tenants in common, however, they will not have rights as joint tenants and, therefore, the trial Court was of the view that it could not be said that the said vendors were not entitled to sell the property as is sought to be contended by the Plaintiffs. The trial Court was of the view that the mutation entry effected pursuant to the Memorandum of Understanding in the year 11 1995, would have to be considered in support of the transaction. The trial Court also took into consideration the fact that the Plaintiffs have received an amount of Rs.One crore from the Defendant No.12 and that the case of the Plaintiffs that it was orally agreed that the price would be Rs.30,00,000/- per acre would have to be proved by the Plaintiffs in the said Suit. 7. I have heard the learned counsel Ms.Gauri Godse for the Appellants and learned Senior Counsel Shri P K Dhakephalkar for the Respondent Nos.11 and 12 and the learned Senior Counsel Shri N V Walawalkar for the Respondent No.13. The principal contention advanced on behalf of Appellants/Plaintiffs by the learned counsel Ms Gauri Godse was that the property devolving in the hands of Sadanand and Ramesh after the death of Rajaram was the joint family property and the Plaintiffs, therefore, have a share in the same, and therefore, the sale deed executed by their father Sadanand and Ramesh is not binding upon the Plaintiffs. The learned counsel for the Appellants further submitted that the fact that the Defendants had paid the amounts to the Plaintiffs indicates that the Plaintiffs had a 12 share in the property. The learned counsel for the Appellants distinguished the case of Bhanwar Singh (Supra) on the ground that in the said case partition was already effected between the heirs of the concerned party and in that context the Apex court had taken into consideration Section 8 of the Hindu Succession Act 1956 and had observed that the said property could not be termed as a joint family property. She further drew my attention to the averments made in the plaint and submitted that it was orally agreed between the parties that the Plaintiffs would be paid at the rate of Rs.30,00,000/- per acre. She further submitted that the Plaintiffs' interest in the suit property ought to be secured and the Plaintiffs could not be thrown out at the interim stage. The learned counsel drew my attention to the judgments of the Apex Court dealing with the issue as to what comprises joint family property and separate property. 8. The learned Senior Counsel Shri Dhakephalkar appearing for the Defendant Nos.11 and 12 submitted that it is not the case of the Plaintiffs that they have not agreed to sell the suit property, but the question sought to be raised by them is only as regards the price at 13 which the suit property was agreed to be sold. Therefore, according to the learned Senior Counsel, the instant suit has been filed only because the Plaintiffs are aggrieved by the price. He drew my attention to the written statement filed by the Defendant Nos.1 to 9 wherein the said Defendants had agreed that the rate fixed was at Rs.7,00,000/- per acre. The learned Senior Counsel therefore submitted that the case of the Plaintiffs that the price orally agreed was Rs.30,00,000/- per acre was a case which could not be accepted. The learned Senior Counsel, relying upon the judgment in the case of Bhanwar Singh, submitted that the Plaintiffs could not be said to have a right in the suit property by birth, as according to him, after the advent of the Hindu Succession Act, 1956, the scenario as regards inheritance had undergone a change. He further submitted that the conduct of the Plaintiffs can be seen from the fact that till their father Sadanand was alive, the Plaintiffs did not question the transaction entered into by him and, it is only after the death of their father, the Plaintiffs have filed the instant suit. The learned Senior counsel submitted that the challenge to the Memorandum of Understanding dated 27/10/1995 is raised for the first time in the above suit, i.e., after 14 lapse of 13 years. The learned counsel submitted that the Memorandum of Understanding has also been acted upon by the parties and the Plaintiffs never once did question the same till filing of the instant suit. The learned counsel lastly submitted that the Plaintiffs appear to be put up by the Defendant No.10 Ramesh as he appears to be dissatisfied with the consideration received. 9. The learned Senior Counsel Shri Walawalkar appearing for the Defendant No.13, submitted that the suit and the application as filed by the Plaintiffs suffer from delay and latches. As per the Plaintiffs' own case, the Plaintiffs became aware of the transaction between the Defendant No.12 and the Defendant No.13in December 2007, the instant suit came to be filed in June 2008, there is absolutely no explanation for the delay. The learned Senior Counsel for the Defendant No.13 drew my attention to the agreement entered into between Sadanand and the Defendant Nos.11 and 12 wherein the Plaintiff No.2 Jitendra Sadanand Mahulkar has signed as a witness. The learned Senior Counsel further submitted that the Defendant No.13 is a bonafide purchaser for value who has paid an amount of Rs.Twenty Six crores and, therefore, no reliefs can be 15 granted against the Defendant No.13. The learned Senior Counsel drew the Court's attention to the statement in the sale deed dated 19/10/2006 showing the payments received by each of the Plaintiffs, as also the receipts issued by the Plaintiffs in acknowledgment of having received the said payment. 10. Having considered the rival contentions of the parties, the trial Court, in my view, has, rightly relying upon Bhanwar Singh's case, come to a conclusion that in view of the Memorandum of Understanding dated 27/10/1995, Sadanand and Ramesh and the heirs of Joma became entitled to 1/5th share and therefore Sadanand and Ramesh, through whom the Plaintiffs are claiming, were entitled to dispose of the said 1/5th share. In the light of Bhanwar Singh's case it cannot be said that the Plaintiffs have acquired a right by birth in the suit property. In so far as the Memorandum of Understanding dated 27/10/1995 is concerned, the said Memorandum of Understanding was filed in the proceedings under Section 70B of the Bombay Tenancy and Agricultural Lands Act. The said proceedings under Section 70B initiated by the heirs of Joma were not persuaded by the parties in view of the said Memorandum of Understanding. The said 16 Memorandum of Understanding has been acted upon and given effect to and mutation entries were accordingly effected in the revenue record, which have been standing as such for the last 13 years or thereabouts. Significantly the Plaintiffs till filing of the present suit have not taken exception to the said Memorandum of Understanding or mutation entries effected on the said basis and kept silent about the same, significantly the Plaintiffs have chosen to challenge the said Memorandum of Understanding after 13 years. 11. A perusal of the averments in the plaint would indicate that the Plaintiffs now want to resile from the agreement entered into by Sadanand in the year 2006 in favour of the Defendant No.12 by contending that orally it was agreed that the Defendants had agreed to pay Rs.30,00,000/- per acre. In my view, considering the provisions of Section 92 of the Evidence Act, the Plaintiffs now cannot be permitted to resile from the said agreement. It would also be significant to note that the Plaintiff No.2 Jitendra has signed the said agreement dated 19/10/2006 as an attesting witness. The Plaintiffs have also executed separate receipts as having received the amounts 17 under the agreement. The said factors would also be relevant to consider, whether the Plaintiffs have made out a prima facie case for the grant of the reliefs prayed for. 12. In so far as the issue as to whether the suit property is a joint family property is concerned, a useful reference could also be made to the judgment of the Apex Court in the case of Yudhishtir v/s Ashok Kumar reported in 1987 AIR (SC) 558. Paragraph 10 of the said judgment is relevant. In the said paragraph the Apex court has referred to its judgment in the matter of Commissioner of Wealth Tax, Kanpur v Chander Sen wherein the Apex Court has observed that on coming into effect of Section 8 of the Hindu Succession Act, when a son inherits the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity. In view of the principle laid down in the said judgment, in my view, the finding of the trial Court that Sadanand and Ramesh were entitled to dispose of their 1/5th share cannot be faulted with. The extent to which the Plaintiffs seem to stretch their rights qua the suit property can be seen from the fact that a right in the property 18 by birth is also sought in respect of the wives of Sadanand and Ramesh. As rightly contended by the learned Senior Counsel for the Defendant Nos.11, 12 and 13, the undertone of the suit is that the Plaintiffs are piqued by the fact that the Defendant No.12 has sold the suit property at a much higher price. 13. Having considered the impugned order as also considering the facts and circumstances of the present case, in my view, the Plaintiffs have not made out a case for the grant of the equitable and discretionary relief of injunction. The above Appeal from Order is accordingly dismissed. 14. In view of the dismissal of the above Appeal from Order, the Civil Application No.201 of 2009 does not survive and the same is accordingly disposed of. [R.M.SAVANT, J]