1 WP No.9551/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9551 of 2010 Shubhada Anil Pal ... Petitioner versus Hitendra Satish Lala @ Bittu ... Respondent ... Mr.Pradeep Patil for the petitioner. Mr.S.V. Gavade for the respondent. CORAM : D.G. KARNIK, J DATED : 23rd June 2011 P.C. 1. Rule returnable forthwith. Mr.Gavade waives service for respondent no.2. By consent, heard forthwith. 2. Petitioner (original defendant) and the respondent (original plaintiff) are mother and son. The suit property is an agricultural land bearing Gat No.118 at village Saral. The property originally belonged to Prabhakar Ramchandra Ambre, father of the petitioner. On death of Prabhakar, property was inherited by the petitioner and her mother i.e. widow of Prabhakar in equal shares. Petitioner thus became the owner to the extent of one half share and her mother (respondent’s grandmother) became the owner of the other half. 2 WP No.9551/10 According to the respondent plaintiff, his grand mother i.e petitioner’s mother, willed away her one half share to him and therefore, he has become owner of one half share. He filed a suit for partition of the suit property. In the suit respondent filed an application for injunction restraining the petitioner from transferring the suit property. The trial court granted the injunction. The appellate court has confirmed the order. That order is impugned in the present petition. 3. Even according to the plain averments in the plaint and in particular paragraph no.12 thereof, it is seen that respondent is not claiming ownership of the entire property but is claiming one half share in the suit property under the Will of his grand mother. Of course, the Will is denied by the petitioner but even assuming the respondent’s case to be true, respondent at the most has one half undivided share in the suit property. The remaining half undivided share admittedly belongs to the petitioner. Under section 6 of the Transfer of Property Act, every property is transferable except the properties mentioned in clauses (a) to (i) thereof. As such, petitioner is entitled to transfer her half undivided share in the property and there can be no injunction for her transferring her half share. 4. In the circumstances, the trial court as well as the lower appellate court erred in granting absolute injunction restraining the petitioner from transferring the suit property. Assuming the respondent’s case to be true, petitioner could have been restricted only from transferring his half undivided share in the property. 3 WP No.9551/10 Consequently, petition is allowed. Impugned order is modified to the extent that the injunction shall operate to the extent of alleged half undivided share of the respondent in the suit property. Petitioner is free to sell her half undivided share in the property. 5. In view of the fact that the dispute is between the mother and son and the mother is old, the trial court is directed to expedite the hearing of the suit which shall be decided within one year hereof. Rule made absolute to the extent indicated above. (D.G.KARNIK, J)