1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.245 OF 2009 WITH CIVIL APPLICATION NO.281 OF 2009 Shri Nitin D. Shevale & Ors. ...Appellants. v. Shri Shailendra S. Nivangune ...Respondent. Mr. Shriram S. Kulkarni, adv. For the Appellants. Mr .V.D.Borwankar, adv. For the Respondent. CORAM : J.H. BHATIA, J. DATED : MARCH 31, 2010 P.C. 1 According to the plaintiffs/appellants on 15.6.1975 husband of the deceased plaintiff no.4 Sarubai and father of the plaintiff no.5 Dattatraya had purchased land survey no.41/16 admeasuring 42 R in the name of Sarubai. Property was purchased as joint family property though it was purchased in the name of the plaintiff no.4 Sarubai alone. According to the plaintiffs, the defendant got a sale deed executed on 8.2.2007 from Sarubai in respect of 21 R of land. According to the plaintiffs, Sarubai had no right to dispose off this property because it was joint family property and the plaintiff nos.1 to 3 and 5 had also shares in the property. It was also contended that fraud was placed against her while getting the sale deed executed from her and, therefore, 2 sale deed is not binding on the plaintiffs. It was further contended that out of the part of consideration of Rs.10 lacs only amount of Rs.1 lac was paid and 3 cheques of Rs.3 lacs each payable on subsequent dates were dishonored and thus, sale deed was without any consideration and, therefore, it was void. With these pleadings, plaintiffs filed suit for declaration that the sale deed is void and not enforceable. They also contended that they were in possession and the defendants should not disturb their possession. By application , Ex.5, Plaintiffs sought temporary injunction restraining the defendants from creating any third party interest in the property pending the suit and also from making permanent construction on the property. Application was opposed. According to the defendant, he had paid whole of the amount even in respect of the three cheques of the subsequent dates and that amount was deposited in the account of the plaintiff no.4, Sarubai. It was contended that other plaintiffs have no right, title or interest in the property and the sale deed being for valid consideration and as the possession had already handed over, the suit is not tenable and the plaintiffs are not entitled to any temporary injunction. After hearing the parties, the learned trial Court rejected the application, Ex.5. That order is challenged in the present appeal. 3 2 There are two aspects in the matter. Firstly, whether suit property was purchased in the name of the plaintiff no.4 Sarubai for and on behalf of the joint family and whether she alone would be entitled to dispose off that property. Second question is about the payment of consideration. Assuming that Sarubai was exclusive owner of the property, she had entered into a contract with the defendant and she executed registered sale deed dated 8.2.2007. As per that sale deed, possession was also given to the defendant. Out of the consideration amount of Rs.10 lacs, amount of Rs.1 lac was paid to her and for payment of the balance amount of Rs.9 lacs, 3 post dated cheques of Rs. 3 lacs each were issued to her. They were bearing the dates 1.6.07, 1.9.07 and 1.9.07. Thus, the title on the land had passed in favour of the defendants and Sarubai had right to recover the balance amount of consideration. Admitted facts are that all the three cheques were dishonored and on 25.10.2007, suit was filed by the plaintiffs. Later on, it was revealed that a few days after that , i.e., on 31.10.2007 amount of Rs.9 lacs was deposited by the defendants in the bank account of Sarubai and thus whole of the consideration amount was paid. There was only delay in making payment, and, therefore, possibly, Sarubai could claim interest for delay in payment of the amount. 4 3 Sale deed shows that the possession of the suit land was given to the defendants, therefore, in view of the circumstances, prima- facie, it is difficult to hold that the possession of the land was not given to the defendants. However, if the land was purchased in the name of the plaintiff no.4 Sarubai as joint family property, then not only plaintiff no.5 Dattatraya but other legal heirs of his father deceased Nivrutti and the plaintiff no.4 Sarubai herself would be entitled to some share in the property. In view of this, pending the suit, it will be necessary to see that no third party interest is created in the property. This aspect was not considered by the trial Court while rejecting application. 4 Therefore, appeal is allowed. Defendant shall not create any third party interest in the suit land pending the suit and if he makes any construction on the said land, it shall be subject to the result of the suit. 5 As the appeal itself is finally disposed off, civil application no.281/09 does not survive and stands disposed off accordingly. The trial Court shall expedite the hearing of suit and dispose off the same as early as possible. (J.H. BHATIA,J.)