IMPORTANT POINT
Suit for declaration and injunction filed more than five decades after gift deed was executed, cannot be decreed in favour of plaintiff.

ORDER (ORAL)

M.S. Karnik, J.—Heard learned Senior Advocate Shri Damle, appearing for the appellant, learned advocate Shri Mulawkar, appearing for respondent no. 1, learned Senior Advocate Shri Sen, appearing for the respondents no. 7 and 9, learned advocate Shri Godbole, appearing for respondents no. 11 and 12 and learned Senior Advocate Shri Dwarkadas, appearing for respondents no. 13 and 14.

2. The challenge in this appeal from order is to an order dated 26/11/2020 passed by the Civil Judge, Senior Division & 7th Addl. Judge, Small Causes Court, Pune, partly allowing the application- Exhibit 184 filed by the appellant-original plaintiff. The appellant filed the suit in the year 2012 for declaration that the gift deed be declared as null and void. Shorn of unnecessary details, brief facts are as under:

3. Pandurang Vishnu Padale claimed to be the absolute owner of the property in dispute. During his lifetime, Pandurang gifted the suit property to his grandson-Dilip Yashwant Padale by a gift deed dated 18/12/1957. Pandurang had two children, son- Yashwant and daughter – Godavari. Dilip–respondent no. 1- original defendant no. 1 is the son of Yaswant whereas the plaintiff–Leena is the daughter of Yashwant. Though the gift deed is dated 18/12/1957, the suit was filed for declaration of the gift deed to be null and void only in the year 2012 by the appellant–plaintiff-Leena. It is the contention of the plaintiff that the relations between the parties were cordial and therefore the plaintiff never opposed the defendant no. 1 dealing with the suit property. This she did so in good faith as she always thought that her share in the suit property would be given to her.

4. The application Exhibit 5 was initially filed in the suit of 2012 which, for the one reason for the other was not decided. The application Exhibit 184 which is decided by the impugned order, was filed, as according to the plaintiff, during the pendency of the suit, defendants no. 7 and 9 have sold some part of the suit property transferring the interest in favour of the defendants no. 13 and 14. Learned Senior Advocate, Shri Damle submitted that defendants no. 13 and 14 are in the process of further creating rights in the property which will prejudice the appellant.

5. The trial Court has partly allowed Exhibit 184. The trial Court granted injunction in respect of the survey no. 24/7 admeasuring 00.33 R which in its view was an ancestral property. So far as survey nos. 39/1 admeasuring 0.9 hectare 53 R, 39/2 admeasuring 0.5 Hectare 9 R and 40/1, admeasuring 00 Hectare 63 R situated at Village-Mhalunge, Taluka Mulshi, District-Pune are concerned, the Trial Court was prima facie of the opinion that the properties was the self acquired property of the Pandurang and hence, refused to grant any injunction.

6. Learned Senior Advocate Shri Damle assailing the order passed by the trial Court submitted that the trial Court was not justified in proceeding on the footing that the properties are self acquired properties of Pandurang. In his submission, once the plaintiff pleaded that property in question was the self acquired property of Pandurang, then it was for the defendants to have dislodged the plea taken by the plaintiff regarding the jointness of the properties. According to Shri Damle, there is nothing on record produced by the defendants to show that the properties are the self acquired properties of Pandurang. It is then submitted by learned Senior Advocate Shri Damle that Pandurang during the lifetime of his son-Yashwant, gifted the suit property in favour of his grandson-Dilip (defendant no.1). Shri Damle submitted that Dilip, at the relevant time, when gift was made in his favour, was a minor. Relying on the provisions of the Hindu Minority and Guardianship Act, 1956 (hereafter referred to as “the said Act”, for short), Shri Damle submitted that the gift deed itself is void as during the existence of natural guardians of Dilip, one Raghu Padale was shown as a guard