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2013 Supreme(Bom) 2460
In the High Court of Bombay at Nagpur
R.K. DESHPANDE, J.
Ravindra Ganeshlal Agrawal
Versus
Nandlal Kundanlal Agrawal & Others
Writ Petition No. 3246 of 2012
Decided On: 10-12-2013
For the Petitioner:Dr. Anjan De, Advocate.
For the Respondents:R1 to R6, F.T. Mirza, Advocate.
Entitlement to share in property depends on whether it is self-acquired or ancestral, as per the Hindu Succession Act.
Headnote:
Injunction - Partition and Separate Possession - The court held that the plaintiff, being the son of a predeceased daughter, is entitled to a share in the property if it is self-acquired, but not if it is ancestral. The appellate court erred in vacating the injunction order, which was restored by the court.
Fact of the Case:
The trial court had passed an injunction order restraining the defendants from creating any third party interest in the suit property. The appellate court set aside the order, leading the plaintiff to appeal to the court.
Finding of the Court:
The court found that the plaintiff's entitlement to a share in the property depended on whether it was self-acquired or ancestral. The appellate court's decision to vacate the injunction order was deemed erroneous and was set aside.
Issues: The main issue was the plaintiff's entitlement to a share in the property based on the nature of the property - self-acquired or ancestral.
Ratio Decidendi: The court held that if the property is self-acquired, the plaintiff, as the son of a predeceased daughter, is entitled to a share. However, if the property is ancestral, the plaintiff cannot claim a share.
Final Decision: The court allowed the writ petition, quashed the appellate court's decision, restored the injunction order, and directed the expedited disposal of the suit.
1. Rule made returnable forthwith.
Heard the matter finally by consent of the learned counsels appearing for the parties.
2. In a suit for partition and separate possession, the trial court has passed an order of injunction on 18.10.2011, restraining the defendants from creating any third party interest in respect of suit property till the final disposal of the suit. In Misc. Civil Appeal No. 104/2011, the appellate court has set aside the said order and dismissed the application at Exh. 28. Hence, the original plaintiff is before this Court.
3. Undisputedly, the plaintiff is the son of Smt. Kamlabai, pre-deceased daughter of Kundanlal, whereas the defendants are the sons of Kundanlal. Kundanlal died on 02.05.1994, whereas, Smt. Kamalbai died earlier in the year 1975. If the provisions of Section 8 of the Hindu Succession Act applies, presuming that it was a self acquired property of Kundanlal, then the plaintiff being the son of predeceased daughter shall have a share in the property. However, if it is to be treated as an ancestral property of Kundanlal, then the appellate Court has held that the plaintiff cannot claim share in the property as his mother Smt. Kamalbai cannot be treated as coparcenor of the joint Hindu family. The reliance is placed upon the decision of the learned Single Judge of this Court in case of Sadashiv Sakharam Patila and others vs. Chandrakant Gopal Desale and others, reported in 2011 (6) ALL MR 207; and the Division Bench judgment in case of Vaishali Satish Ganorkar and another vs. Satish Keshaorao Ganorkar and others, reported in 2012(3) Mh.L.J. 669.
4. Shri Mirza, the learned counsel appearing for respondent nos.1 to 6 has invited my attention to the order passed by the Apex Court on 23.09.2011 in Special Leave Petition challenging the decision of the learned Single Judge in case of Sadashivvrs. Chandrakant, cited supra. It is apparent that the Apex Court has made it clear that the observations made by the High Court on the merits of the case shall not prejudicially affect the final adjudication of the suit by the trial court. The case before the learned Single Judge was against the order of temporary injunction.
5. In view of above, the question need to be gone into by the trial court as to whether the plaintiff Ravindra shall have share in the property even if it is assumed to be an ancestral property. The appellate court has committed an error in vacating the injunction order passed by the trial Court. Therefore, the same cannot be sustained and needs to be quashed and set aside.
6. In the result, the writ petition is allowed. The judgment and order dated 14.06.2012 passed by the learned District Judge-2, Akola in Misc. Civil Appeal No. 104/2011, is hereby quashed and set aside and the order dated 18.10.2011 passed by the learned Joint Civil Judge, Junior Division, Murtizapur, in Regular Civil Suit No. 100/2010, below Exh.28, is hereby restored. The suit is directed to be expedited. No orders as to costs.
