The main challenge is to the order of injunction restraining creation of third party interest in the suit properties under the impugned order of the Second Joint Civil Judge (S.D.) Thane dated 23rd November 2010. One Sakhuram had three children: two daughters, Narmadabai and Muktabai and one son, Sadashiv. The two daughters predeceased him. His son succeeded him.

2. Muktabai died in 1978. Narmadabia, the other daughter died in 1987 prior to Sakharam who died on 4th October 1995. Sadashiv, claiming to be the sole heir and successor of Sakharam, got the Revenue records altered showing a mutation entry dated 3rd December 2002 reflecting his name.

3. The son of Muktabai filed the suit claiming the share of Muktabai in the properties of her father Sakharam. He claims that the properties of Sakharam are ancestral properties or properties purchased from the proceeds or the sale of ancestral properties. Sadashiv, who is the Defendant No.1 in the suit, claims that the properties were purchased by Sakharam alongwith Sadashiv himself and are, therefore, his self acquired properties. These properties are stated to have been bequeathed by him under the registered Will dated 11th September 1989. The son of Muktabai claims that the Will is bogus and that Sakharam had no bequeathable interest, the properties being ancestral properties which he could not have disposed off by Will. The other heirs of Muktabai and Nannadabai similarly claim the properties of their deceased mothers.

4. Upon the case that they are ancestral properties, the heirs claim that Muktabai was a coparcener under Section 6 of the Hindu Succession Act 1956 as amended by the Hindu Succession (Amendment) Act 39 of 2005. It is claimed that Muktabai being a daughter of a coparcener viz: Sakharam became a coparcener by her birth in her own right as did Sadashiv.

5. Sadashiv claims that even if the properties are ancestral properties Muktabai or Narmadabai were not coparceners and cannot claim any interest therein, it is his contention that only on and from 9th September 2005 on which date the Amendment Act 39 of 2005 came into force that the daughter who was then living would become a coparcener. Muktabai as well as Narmadabai died not only prior to the Act having come into force, but even prior to their father. The succession of Sakharam opened on 4th October 1995 when he expired. On and from that date his estate had to be administered. On and from that date his coparcernary interest in the ancestral property would devolve by survivorship. So far as his intestate succession is concerned, Sadashiv as also the children of Muktabai and Narmadabai would take their shares from 1995. Neither of the children claimed her share. In fact, Sakharam died testate leaving behind a registered Will. Seven years after his death the mutation entry came to be made. Sadashiv was shown as the owner of the suit lands. None challenged the ownership or the mutation entry within three years of the death of Sakharam and also within three years of the mutation entry having been made respectively.

6. Sadashiv entered into an assignment for development of his properties with the other Defendants on 24th December 2004 followed by a registered development agreement on 10th March 2005. The development commenced from 30th May 2005. A public notice dated 10th May 2006 was not objected by any party. The initial claim has been made only in the suit filed in 2010.

7. It may be mentioned that the aforesaid facts are all admitted and extracted from the pleadings. The seminal aspect to be considered for seeing the prima facie case of the Plaintiff, the son of Muktabai, to restrain creation of third party rights in the suit properties taking them to be the ancestral properties of Sakharam, is whether his mother was a coparcener and was entitled to coparcenery rights in the suit properties even assuming that the suit properties are ancestral properties. If that aspect is seen, it would next have to be seen whether t