1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5550 OF 2007 Madhukar Raut & Ors. .. Petitioners versus Preeti Dedge & Ors. .. Respondents ALONGWITH WRIT PETITION NO.5940 OF 2007 Smt.Dipti Madhukar Raut .. Petitioners versus Mrs.Priti Charudatta Dedge & Ors. .. Respondents ALONGWITH WRIT PETITION NO.5927 OF 2007 Mrs.Priti Charudatta Dedge & Ors. .. Petitioners versus Mr.Madhukar Namdeo Raut & Ors. .. Respondents Mr.P.K.Joshi i/b Mr.V.J.Kale for Petitioners in W.P. No.5550 of 2007,for respondents Nos.3 to 5 in W.P. No.5940 of 2007 and for respondents No. 1 to 3 in W.P. No.5927 of 2007. Mr. R. S. Apte Sr. Advocate with Mr. C.D.Konale for the 1st and 2nd respondents in W.P.Nos. 5550 and 5940 of 2007 and for petitioners in W.P. No.5940 of 2007. Mr. V.B.Rajure for Petitioners in W.P.No.5940 of 2007. 2 CORAM : A.S.OKA, J. DATE ON WHICH JUDGMENT IS RESERVED : 15th October 2009. DATE ON WHICH JUDGMENT IS PRONOUNCED : 24th November 2009. JUDGMENT: 1) These petitions can be conveniently disposed of by a common judgment. Notice for final disposal was issued on 10th July 2008. 2) These petitions arise out of the same suit. The parties are hereinafter referred to with reference to their status before the trial court. The plaintiffs filed a suit claiming a declaration that they have undivided share in the suit properties situated at Pune more particularly described in the first paragraph of the plaint. The plaintiffs also prayed for partition and separate possession of their share. The plaintiffs are the daughters of first and second defendants. The third defendant is the brother of the plaintiffs. The fourth and fifth defendants are the sisters of the plaintiffs. The sixth defendant is a firm of which seventh and eight defendants are the partners. The ninth to twelfth defendants are the uncles and cousins of the plaintiffs. The thirteenth to twenty first defendants are the persons who are purchased the flats and premises constructed by the 22nd defendant firm on the suit property. The second and third defendants are stated to be the partners of the 22nd defendant firm. The plaintiffs contended that they are the coparceners and co-owners of the suit property. The allegation is that the first and third 3 defendants have entered into some agreement as regards the suit property in favour of sixth defendants. It is alleged that the said transaction has been entered into without the consent of the plaintiffs. It is alleged that on plot number 10 in the Shivprasad society, Panmala, Pune the defendant no.22 constructed a building known as Raut heights. It is alleged that second and third defendants are the partners of 22nd defendant firm. It is alleged that the said defendants have sold flats in the said building in favour of 13th to 21st defendants. It is alleged that though the plaintiffs raised an objection, the first to third defendants refused to pay even a farthing to them. 3) Applications for temporary injunction were made by the plaintiffs at Exhibit 5 and Exhibit 121. The said applications were partly allowed. While disposing of the said applications, the trial court observed that in view of the pendency of the suit, the transfer or creation of third party rights by the first, third and sixth to 11th defendants shall be subject to adjudication of rights of the plaintiffs in the suit. The learned trial judge held that the plaintiffs will be entitled to value of their share in the suit property and the defendants and third parties in whose favour in interest is created shall be bound by the decree in the suit. Being aggrieved by the said order , the plaintifs preferred an appeal before the district court. The appeal was partly allowed. The first and third defendants were directed to file on record copies of all the agreements entered into by them in respect of the suit property and furnish copies thereof to the plaintiffs. The first and third defendants were directed to 4 deposit in the court 2/7th share of the plaintiffs in any monetary consideration received by them till the date of the judgement and monetary consideration which may be received by them in future. The amounts deposited by the first and third defendants were ordered to be invested in fixed deposits with any nationalised bank. 4) Writ petition No. 5550 of 2007 has been preferred by the second and third defendants for challenging the impugned order dated 27th April 2007 passed by the learned district judge.Writ petition no. 5927 of 2007 has been filed by the original plaintiffs for challenging the same judgement and order. Writ petition no.5940 of 2007 has been filed by the fourth and fifth defendants for challenging the same order. 5) On 16th October 2007 when these petitions came up before this court for admission, this Court directed the first and third defendants to file an affidavit in this court disclosing the details of the sale or transfer of property in regard to the suit property after filing of the suit. The said defendants were also directed the state in the affidavit the details of the amounts received by them. This Court observed that after such affidavit was filed, a workable arrangement can be made. Accordingly an affidavit dated 25th October 2007 was filed by the first defendant. In the said affidavit it was disclosed that a sum of Rs.2,27,50,000/-was received by the first and third defendants. There is a counter affidavit filed by the plaintiffs disputing what is stated in 5 the affidavit. 6) When these writ petitions appeared on board on 27 th September 2009, the learned counsel appearing for the first and third defendants stated that the said defendants were ready and willing to deposit a sum of Rs.50 lacs with the trial court on or before 30th September 2009. An affidavit dated 6th October 2009 was filed by the first defendant stating that a sum of Rs.50 lacs has been deposited by him with the trial court on 30th September 2009. It is stated in the affidavit that he has not received any amount after 25th October 2007 when an affidavit was filed by him in this Court disclosing that he has received a total amount of Rs.2,27,50,000/-. In the said affidavit the first defendant has given an undertaking that whenever any amount will be received by him during the pendency of the suit as against the suit properties, he will give intimation of the same to the trial court. It is stated that as per the directions of the district court, out of the amounts received by him, the share of the plaintiffs shall be invested by him in nationalised bank and deposit receipts shall be deposited with the Court. 7) The learned counsel appearing for the first to third defendants submitted that the plaintiffs are claiming total 2/7th share in the suit properties. He pointed out that the said defendants have received a sum of about Rs.2.70 crores and out of that amount, a sum of Rs.50 lacs has been already deposited. He submitted that if any amount is received in future, the 6 said defendants are willing to abide by the undertaking incorporated in affidavit dated 6th October 2009. He submitted that in view of the said undertaking and in view of deposit of a sum of Rs.50 lacs, the impugned order be quashed and set aside. 8) The learned a senior counsel appearing for the plaintiffs submitted that in fact the said defendants have received a sum of Rs.4 crores and more. He submitted that the share of the plaintiffs is more than Rs.1.34 lacs. He submitted that the said defendants have not correctly disclosed the amounts which they have received. He submitted that the courts below ought to have granted temporary injunction as prayed by the plaintiffs. 9) The learned counsel appearing for fourth and fifth defendants in support of their petition submitted that though the said defendants may not have filed a suit, they are also entitled to a share in the suit properties and therefore the first and third defendants be directed to deposit an amount representing their share. 10) I have carefully considered the submissions. The plaintiffs who are the daughters of first and second defendants have filed a suit for general partition. The third defendant is the brother. Broadly the allegations in the plaint are that the first and third defendants entered into some transactions with the sixth defendant firm in respect of the suit properties. Another 7 allegation is that the second and third defendants are partners of the 22nd defendant firm and the said firm has developed a property and sold flats to 13th to 21st defendants. It must be stated here that both the courts below have declined to grant temporary injunction in favour of the plaintiffs. The trial court merely observed that transfer or creation of third party interests by the defendants shall be subject to the final result of the suit. The trial court further observed that in case the plaintiffs succeed in the suit, they will be entitled to value of their share in the suit property. The appellate court modified the said order by directing the first and third defendants to deposit 2/7th share of the plaintiffs in the consideration received by them till date and the consideration amount which may be received by them in future. The amounts deposited by the first and third defendants were ordered to be invested in his deposit with any nationalized bank. Thus in the suit of the year 2005, there is no temporary injunction operating in favour of the plaintiffs till today . Even during the pendency of this petition, there was no ad -interim relief granted by this court. In fact by order dated 16th October 2007 this court directed the first and third defendants to file an affidavit disclosing various details to enable the court to make a workable arrangement. In fact in the last line of paragraph 1 of the order dated 16th October 2007, this Court recorded a prima facie view that there was no reason to interfere with the impugned order. 11) Now, the first and third defendants have deposited a sum of Rs.50 8 lakhs with the trial court. There is a dispute between the parties as regards the total amount received by first to third defendants. The suit is pending from the year 2005 and there is no ad- interim injunction operating in favour of the plaintiffs. Looking to the nature of the controversy, infact the suit deserves to be decided early especially when the dispute is between two daughters on one hand and their parents on the other hand. In the affidavit dated 6th October 2009, the first defendant has agreed to deposit the share of the plaintiffs in the amounts received by the first to third defendants in future. Thus the claim of the plaintiffs has been secured to some extent. It is obvious that all transactions which are made or which may be made hereinafter in respect of the suit properties are naturally subject to final outcome of the suit. The development work which is carried out on any of the suit properties will be naturally subject to final outcome of the suit. It must be observed here that the observation of the trial court that the plaintiffs are entitled to receive only the value of their share is erroneous. The suit is for general partition. If the plaintiffs succeed in the suit, while effecting partition, equities can be always adjusted. 12) As far as the petition filed by fourth and fifth defendants is concerned, the said defendants did not apply for interim relief before the trial court. The said defendants did not challenge is the order of the trial court passed on application for interim relief. Therefore, for the first time in the writ petition under Article 227 of the constitution of India, the said defendants cannot get 9 any relief. It is for them to take out appropriate proceedings before the trial court. 13) As stated earlier, the first and third defendants have deposited substantial amount of Rs.50 lakhs. The said defendants will have to deposit the share of the plaintiffs in the consideration received by them hereinafter. As stated earlier, at this stage it is not possible to grant temporary injunction in favour of the plaintiffs. The amount of Rs.50 lakhs and all amounts hereinafter deposited by the first and third defendants will have to be invested in fixed deposit. However it will be open for the plaintiffs to apply for withdrawal of the said amount before the trial Court provided they are in a position to give adequate security or bank guarantee for the said amount. Appropriate order regarding disbursement/withdrawal of the amounts with interest accrued thereon will be passed at the time of final disposal of the suit. In view of the affidavit filed by the first respondent on 6th October 2009,the first and third defendants have virtually accepted the impugned order of the district court. 14) Hence, the writ petitions are disposed of by passing the following order: : O R D E R : (a) The sum of RS.50 lakhs deposited by the first and third defendants 10 shall be invested by the trial court in fixed deposit with any nationalised bank. However, it will be open for the plaintiffs to apply for withdrawal of the amount as observed in paragraph 13 above. (b) Whenever any amount is hereinafter received by the first to third defendants on account of transfer and alienation or development in respect of the suit property or a part thereof, within 10 days from the receipt of the amount ,the said defendants will give notice thereof to the plaintiffs with all the necessary particulars. The 2/7 th share of the plaintiffs in the amount so received shall be deposited by the first to third defendants with the trial court within a period of 14 days from the receipt of the amount. (c) The amounts so deposited by first to third defendants shall be also invested by the trial court in fixed deposit with any nationalised bank. (d) The fixed deposits as aforesaid shall be renewed from time to time till the disposal of the suit. The order regarding disbursement/withdrawal of the amounts invested together with interest accrued thereon shall be passed at the time of final disposal of the suit. (e) All transactions in respect of the suit properties and the development work carried on the suit properties shall be subject to final order which may be passed in the suit. (f) It will be open for the fourth and fifth defendants to file appropriate application before the trial court seeking appropriate relief. (g) Subject to aforesaid modification, the impugned judgements and orders are confirmed. 11 (h) All contentions of the parties on the merits of the suit are expressly kept open. (i) The hearing of the suit is expedited. The trial court shall decide the suit on or before 30 at June 2010. (j) There will be no orders as to costs. (A.S.OKA,J)