AO/215/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 215 of 2008 With CIVIL APPLICATION No. 7500 of 2008 In APPEAL FROM ORDER No. 215 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = PANIBEN WD/O KESHABHAI VALABHAI & 4 - Appellant(s) Versus RAMANBEN D/O PARBHUBHAI VALABHAI & WD/O KIKABHAI - Respondent(s) ========================================= = Appearance : MR RS SANJANWALA for Appellant(s) : 1 - 5. MR NM KAPADIA for Respondent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 08/12/2008 ORAL JUDGMENT 1. Present Appeal from Order is preferred by the appellants AO/215/2008 2/8 JUDGMENT original defendants under Order 43 Rule 1 of the Code of Civil Procedure to quash and set aside the the impugned order passed by the learned 3rd Additional Senior Civil Judge, Surat dated 31.1.2008 passed below Exh. 5 in Civil Suit No. 25 of 2007, by which learned trial Court has allowed the said application submitted by the respondent herein plaintiff. 2. The respondent herein -original plaintiff had instituted Special Civil Suit No. 25 of 2007 in the Court of learned Principal Senior Civil Judge, Surat for declaration and permanent injunction in respect of the disputed land by holding that she has got right title or interest in the disputed land being ancestral property as per the amendment in the Hindu Succession Act. It was the case on behalf of the plaintiff that the property bearing No. 305, 313, 322, 325, 326, 330 paiki situated at Sultanabad, District Surat were an ancestral property owned by one Valabhai Chanabhai grandfather of the plaintiff. The defendant No. 1 was the widow of one Keshabhai Valabhai son of Valabhai Chanabhai and uncle of plaintiff. It is the case on behalf of the plaintiff that after the death of the Valabhai Chanabhai his sons AO/215/2008 3/8 JUDGMENT namely Prabhubhai and Keshabhai had ½ equal share in the ancestral property and the said property were jointly owned and possessed by the Prabhubhai and Keshabhai. That after the death of the Parbhubhai in the year 1948, aforesaid properties were managed by her uncle Keshabhai and were jointly owned by the plaintiff and her mother. So far as the properties vide schedule B, those were self acquired properties of Prabhubhai who was father of the plaintiff and on his death she and her mother became the absolute owner. It was the case on behalf of the plaintiff that the said Keshabhai was managing all the suit properties and taking undue advantage of it, taking disadvantage of the minor age of the plaintiff and illiteracy of her mother in collusion with the Revenue Officer got his name mutated in the revenue record as owner with respect to all the properties. Therefore, the aforesaid suit came to be filed for declaration and permanent injunction. In the said suit the respondent herein plaintiff submitted application Exh. 5 for interim injunction and the said application came to be allowed by the learned trial Court by impugned order dated 31.1.2008 passed in Special Civil Suit No. 25 of 2007, the appellants-defendants have preferred the AO/215/2008 4/8 JUDGMENT present Appeal from Order. 3. Shri Shanjanwala, learned Senior Advocate appearing on behalf of the appellants-defendants has vehemently submitted that the learned trial Court has committed an error in allowing the application Exh. 5 restraining the appellants from transferring or alienating the suit property. It is submitted that learned trial Court ought to have appreciated that the plaintiff has no right title or interest in the suit property. It is submitted that the learned trial Court has failed to appreciate that the suit property has been mutated in the names of predecessor of the appellants in 1950 and ever since the properties were in the name of the predecessor of the appellants and have been in possession of the predecessor of the appellants as the absolute owner. It is submitted that even the predecessor of the appellants died on 4.7.1989 and names of the appellants were entered into the revenue records on 26.2.1990 and, therefore, suit filed by the respondent-plaintiff is barred by limitation. It is submitted that learned trial Court has failed to appreciate that as per law prevailing prior to 1956, the properties have devolved upon the appellants predecessor and thereafter upon the appellants and any claim of the AO/215/2008 5/8 JUDGMENT respondent based on prevailing position in law cannot be entertained. Shri Sanjanwala, learned Senior Advocate appearing on behalf of the appellants-defendants has submitted that Prabhubhai father of the plaintiff died in 1948 and Valabhai the grandfather of the plaintiff has died before 1956 and, therefore, as per Hindu Succession Act the plaintiff had no right title or interest in the property of Valabhai Chanabhai i.e. grandfather. Therefore, it is requested to allow the present Appeal from Order. 4. Appeal from Order is opposed by Shri N.M. Kapadia, learned advocate appearing on behalf of the respondent. It is submitted that appellants have deliberately stated that the Valabhai Chanabhai had died before 1956 and Prabhubhai died in 1948 and impression has given as if the said Valabhai Chanabhai has died after Prabhubhai father of the plaintiff has died. It is submitted that as such Valabhai grandfather of the plaintiff has died in 1940 much prior to Prabhubhai died in 1948 and, therefore, on the death of the Valabhai Chanabhai, Keshabhai and Prabhubhai had got equal share in the property. Therefore, it is submitted that learned trial Court has AO/215/2008 6/8 JUDGMENT rightly granted injunction restraining the appellants from transferring/alienating the suit property. It is submitted that taking disadvantage of the minor age of the plaintiff and illiteracy of her mother her uncle Keshabhai who was managing the properties jointly had got his name entered into the revenue record. It is submitted that right of the plaintiff in the disputed land cannot be taken away solely on the ground of delay and laches, if any. It is submitted that in the facts and circumstances of the case and considering the provision of the Hindu Succession Act as amended, the learned trial Court has not committed any error in granting injunction. Therefore, it is requested to dismiss the present Appeal from Order. 5. Heard the learned advocates appearing on behalf of the respective parties. At the outset, it is required to be noted that the learned advocate appearing on behalf of the appellants-defendants has tried to mislead /misguide the Court by submitting that Valabhai Chanabhai grandfather of the plaintiff had died prior to 1956 and the Prabhubhai father of the plaintiff had died in 1948. It was sought to be argued and an impression was given that as the Valabhai Chanabhai grandfather of the plaintiff had died AO/215/2008 7/8 JUDGMENT after the death of the Prabhubhai father of the plaintiff, during the lifetime of the Prabhubhai father of the plaintiff could not have inherited the property and, therefore, plaintiffs have no right title or interest in the suit properties, as her father Prabhubhai had no right title or interest. However, on verification of the record it appears that Valabhai Chanabhai grandfather of the plaintiff died in 1940 much prior to the death of the Prabhubhai father of the plaintiff. Thus, after the death of the Valabhai Chanabhai both Keshabhai and Prabhubhai had equal share and consequently on death of the Prabhubhai, the plaintiff and her mother had equal share in the property. Thus, in view of the above, when the learned advocate appearing on behalf of the appellants has tried to mislead the Court, the Appeal from Order is required to be dismissed on that very ground. 6. Even otherwise, on merits also considering the fact that in view of the amendment in the Hindu Succession Act prima facie it cannot be said that respondent-plaintiff had no right title or interest in the property originally belonging to the Valabhai Chanabhai grandfather of the plaintiff and subsequently from the share of the AO/215/2008 8/8 JUDGMENT Prabhubhai i.e. father of the plaintiff. In view of the above and to avoid any further multiplicity of proceedings and to see that further third party rights are not created in the disputed property, when the learned trial Court has allowed the application Exh. 5 restraining the appellants from transferring/alienating the suit properties, it cannot be said that the learned trial Court has committed any error which calls for the interference of this Court. 7. Under the circumstance and for the reasons stated above, there is no substance in the present Appeal from Order, which deserves to be dismissed and is accordingly dismissed. 8. CIVIL APPLICATION NO. 7500 OF 2008 In view of the dismissal of the Appeal from Order, no order in Civil Application. (M.R.SHAH,J.) kaushik