Case Note & Summary
The case involves a partition suit filed by Chandrakant Gopal Desale, the son of Muktabai, who was the daughter of Sakharam. Sakharam had three children: two daughters (Narmadabai and Muktabai) and one son (Sadashiv). Both daughters predeceased Sakharam, who died on 4 October 1995. Sadashiv, claiming to be the sole heir, got revenue records mutated in his name. Chandrakant filed a suit claiming a share in the properties of Sakharam, alleging they were ancestral or purchased from proceeds of ancestral properties. Sadashiv contended the properties were self-acquired. The trial court granted an injunction restraining creation of third party interests. The appeals were filed by Sadashiv and other purchasers/developers. The High Court held that the son of a predeceased daughter has a right to claim a share in ancestral properties, and the trial court's injunction was justified to protect the suit property pending final adjudication. The court dismissed the appeals, upholding the injunction.
Headnote
A) Hindu Succession Act - Right of Daughter's Son - Ancestral Property - The son of a predeceased daughter is entitled to claim a share in the ancestral properties of his maternal grandfather, as the daughter would have been a coparcener under the Hindu Succession Act, 1956, and her son inherits her share. (Paras 1-3)
B) Civil Procedure Code - Injunction - Interim Relief - The trial court's order granting injunction restraining creation of third party interests in suit properties pending disposal of the suit is a discretionary order, and the appellate court should not interfere unless the discretion is exercised perversely or arbitrarily. (Paras 4-6)
C) Civil Procedure Code - Appeal from Order - Maintainability - An appeal against an interim order of injunction is maintainable under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908, but the appellate court's interference is limited to cases where the trial court has acted without jurisdiction or has exercised its discretion arbitrarily. (Paras 7-9)
Issue of Consideration
Whether the trial court was justified in granting an injunction restraining the creation of third party interests in the suit properties pending the partition suit filed by the son of a predeceased daughter claiming a share in the ancestral properties of her father.
Final Decision
The High Court dismissed all the appeals, upholding the trial court's order of injunction restraining creation of third party interests in the suit properties pending disposal of the suit.
Law Points
- Right of daughter's son to claim share in ancestral property
- Injunction to protect suit property pending partition suit
- Maintainability of appeal against interim order
- Scope of interference with discretionary order of injunction
Case Details
2011 LawText (BOM) (09) 43
Appeal from Order No. 265 of 2011, Appeal from Order No. 274 of 2011, Appeal from Order No. 518 of 2011, Appeal from Order No. 792 of 2011
Deepak Chitnis – Chiparikar & Co., for Appellants; Mr. Sandesh Patil for Appellant in AO No.265/2011; Mr. P. Sakseria, Sr. Counsel a/w. Mr. Mayur Khandeparkar a/w.Mr. Ranjit Shetty a/w. Mr. Lucky Rai Indorkar, Mr. Aniket Nair i/b. M/s. Hariani & Co., for Respondent No.1 in AO.No.265/2011 AO No.274.2011, AO No.518.2011 & AO No.792/2011; Mr. R.S. Apte, Sr. Advocate a/w. Mr. G. Godre for Appellant in AO No.274/2011 & Respondent No.14 in AO NO.265/2011; Mr. Deepak Chitnis, Advocate for the Appellant in AO No.180.2011; Ms. Sharin Shaikh i/b. M/s. U.M. Jhaveri for Appellant in AO No.792/2011 & for Respondent No.12 in AO No.265/2011; Mr. A.A. Kumbhakoni, Advocate for Original Defendant; Mr. Pradeep Samant & Associates for Respondent Nos.2 to 5 in A.O. No.265/2011.
Sadashiv Sakharam Patil & Ors., M/s. Roma Builder Pvt. Ltd., M/s. Nikhil Construction, M/s. Darshan Enterprises
Chandrakant Gopal Desale & Ors.
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Nature of Litigation
Civil suit for partition and injunction
Remedy Sought
The plaintiff (son of predeceased daughter) sought a declaration of his share in the ancestral properties of his maternal grandfather and an injunction restraining the defendants from creating third party interests in the suit properties.
Filing Reason
The plaintiff claimed that the properties of his maternal grandfather Sakharam were ancestral and that he was entitled to a share through his mother, who predeceased her father. The defendant (son of Sakharam) claimed the properties were self-acquired and that he was the sole heir.
Previous Decisions
The trial court (Second Joint Civil Judge (S.D.) Thane) granted an injunction restraining creation of third party interests in the suit properties by order dated 23rd November 2010.
Issues
Whether the son of a predeceased daughter has a right to claim a share in the ancestral properties of his maternal grandfather?
Whether the trial court's order of injunction was justified and should be upheld?
Whether the appeals against the interim order are maintainable?
Submissions/Arguments
Appellants argued that the properties were self-acquired by Sakharam and Sadashiv, and that the plaintiff had no right to claim a share.
Respondent argued that the properties were ancestral and that the plaintiff, as son of a predeceased daughter, was entitled to a share under Hindu Succession Act.
Ratio Decidendi
The son of a predeceased daughter has a right to claim a share in the ancestral properties of his maternal grandfather, as the daughter would have been a coparcener. The trial court's injunction was a discretionary order and not perverse, hence no interference warranted.
Judgment Excerpts
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 Sakharam had three children: two daughters, Narmadabai and Muktabai and one son, Sadashiv. The two daughters predeceased him. His son succeeded him.
Procedural History
The suit was filed by Chandrakant Gopal Desale (son of Muktabai) claiming a share in the properties of Sakharam. The trial court granted an interim injunction on 23rd November 2010. Appeals were filed by the defendant Sadashiv and other parties claiming interest in the properties. The High Court heard all appeals together and dismissed them on 6th September 2011.
Acts & Sections
- Code of Civil Procedure, 1908: Order 43 Rule 1(r)
- Hindu Succession Act, 1956:
