Gujarat High Court
Vishnubhai Babubhai Jhaveri vs Bhupendra Babubhai Jhaveri on 6 May, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/AO/21/2021 JUDGMENT DATED: 06/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 21 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/APPEAL FROM ORDER NO. 21 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VISHNUBHAI BABUBHAI JHAVERI & 1 other(s)
Versus
BHUPENDRA BABUBHAI JHAVERI & 11 other(s)
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Appearance:
MS KJ BRAHMBHATT(202) for the Appellant(s) No. 1,2
MS VARSHA BRAHMBHATT(3145) for the Appellant(s) No. 1,2
MR AS VAKIL(962) for the Respondent(s) No. 10,11,12,13,14,5,6,7,8,9
NOTICE SERVED for the Respondent(s) No. 1,2,4
UNSERVED REFUSED (N) for the Respondent(s) No. 3
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 06/05/2022
ORAL JUDGMENT
1. Being aggrieved and dissatisfied with the order dated 31.8.2020 passed below Exh-5 and Exh-39 in Special Civil Suit No. 342 of 2015 by learned 2nd Additional Senior Civil Page 1 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022 C/AO/21/2021 JUDGMENT DATED: 06/05/2022 Judge, Surat whereby the application filed by the plaintiffs- appellants came to be dismissed, the original plaintiffs have preferred this Appeal from Order under Section 104 r/ w Order 43 Rule 1(r) of CPC.
2. The brief facts of the suit of the plaintiffs is that the Suit property including lands, were originally belonging to Hasmukhgauri Babubhai Jekishandas and it was in her possession and she transferred it to Bhupendra Babubhai Zaveri, Kirit Babubhai Zaveri, Bhadresh Babubhai Zaveri, Jitendra Babubhai Zaveri, Pankaj Babubhai Zaveri, Vishnukumar Babubhai Zaveri and Hiren Mahendrabhai Zaveri by way of registered sale-deed dated 1018 dated 7.7.2006. It is alleged that the property was accepted by the beneficiaries for entire family and all the members have equal shares having one-seventh shares. It is contended that parties are Hindus and they have preemptive right to purchase the shares of other coparcenar if the other coparcenar wants to sell to third party. According to the plaintiffs, though they have preferential right to purchase the share of other co-owners, defendant Nos. 1 and 2 did not make any offer regarding the sale of their undivided share to the plaintiffs and they have sold it i.e. defendant Nos. 1 and 2, their undivided shares in joint family property to defendant Nos. 6 to 11 through registered sale deed No. 9921 dated 4.7.2014 against the consideration worth Rs.3,29,54,100/- and revenue entry was mutated vide entry No. 4528 on 9.9.2014. It is alleged that the plaintiffs along with defendant Nos. 3 and 4 contested the mutation entry Page 2 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022 C/AO/21/2021 JUDGMENT DATED: 06/05/2022 by filing RTS (Dispute Case) No. 73 of 2014 which came to be rejected by Mamlatdar on 29.4.2015. It is also contended by the plaintiff that they have preferred an Appeal against that order before the Deputy Collector and the same is pending.
2.1 It is also alleged by the plaintiffs that even the defendant No.5 has soled his one-seventh share of undivided joint family property vide registered sale-deed No. 10321 dated 11.7.2014 against consideration worth Rs. 99 Lakh in favour of defendant No.12 and that transaction was also made without first offering it to the plaintiffs. Thus, the plaintiffs have challenged all these sale transactions on the ground that they have preferential right to purchase i.e. preemptive right under Section 22 of the Hindu Succession Act.
2.2 It appears that during the pendency of the suit, some other transactions have occurred between defendant Nos. 8 & 13 and 14 of selling of two-seventh share of defendant No.8 vide sale-deed No. 10867 dated 2.7.2015 , which contains open lands along with constructed Bungalow, outhouses, servant quarters, pool, fencing, etc. The plaintiffs have filed the Suit for declaration and injunction as well as for cancellation of all registered sale deed declared to be as null and void and also consequential relief. Along with plaint, the plaintiffs have also preferred application below Exh-5 for temporary injunction.
Page 3 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022C/AO/21/2021 JUDGMENT DATED: 06/05/2022 2.3 It appears from the record that defendant Nos. 3 and 4
have filed their reply at Exh-20 and raised counter claim against the plaintiffs as well as other defendants on the same facts which are narrated in the plaint and also shown their willingness to purchase the share of other defendants and have denied any kind of action by them to sell their shares. They have also filed interim injunction application at Exh-22, which came to be contested by the plaintiffs.
2.4 It also appears that defendant Nos. 6 to 11 have filed their written statement at Exh-25 denying the facts and allegations of the plaintiffs and raised many issues regarding estoppel, delay, laches, etc. They have denied the status of property as joint Hindu family and raised the issue of gift by woman. They have stated that the names of the parties as mentioned in the revenue record, is as per their individual capacity and not as Karta of Hindu Undivided Family (HUF). They have denied having any knowledge of filing of RTS before the Deputy Collector and also demanded separation of their part in the suit property.
2.5 It appears that defendant Nos. 13 and 14 have also filed their written statement at Exh-72 and they have somewhat raised the same issue as raised by defendant Nos. 6 to 11, they have claimed to be bonafide purchaser with relevant consideration without knowledge and ask for rejection of the plaint and the application.
3. Heard Ms. K.J.Brahmbhatt, learned advocate for the Page 4 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022 C/AO/21/2021 JUDGMENT DATED: 06/05/2022 appellants and Mr. A.S. Vakil, learned advocate for respondent Nos. 5 to 13 and 14. None has appeared for other respondents. Perused the material placed on record and the decisions relied upon by them.
4. Ms. K.J.Brahmbhatt, learned advocate for the appellants has vehemently submitted that the ownership of the land was of mother, who had purchased the property on the sale deed of 1945. While referring to the various documentary evidence, she has submitted that the land in question was thereafter converted into Final Plot. She has also submitted that vide Gift-deed dated 7.7.2006, shares were given to each one of them i.e. one-seventh to each. She has submitted that as the Gift-deed, the property was quantified as one-seventh but there was no actual division by metes and bounds. She has submitted that her mother has expired on 15.5.2014 and, therefore, thereafter defendant Nos. 1 and 2 sold away their purported share in the joint Hindu family to the private respondent on 4.7.2014. She has submitted that the entire land is old tenure land and as per the sale-deed, only open land was sold. She has submitted that there is also construction made over the land which are reflected from the documentary evidence on record. She has submitted that the revenue entry was mutated regarding the sale-deed of 4.7.2014, which has been challenged by the plaintiff and other defendants by filing RTS Appeal, which is pending before the Deputy Collector.
Page 5 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022C/AO/21/2021 JUDGMENT DATED: 06/05/2022 4.1 Ms. Brahmbhatt has also submitted that thereafter,
defendant No. 5 has also sold his one-seventh share to defendant No. 12 , however, no mutation entry has been recorded in the revenue record in respect of the said sale. She has further submitted that defendant No.8 has sold his share to defendant Nos. 13 and 14 on 1.7.2007. She has submitted that he has sold more that what was given to him. According to her averment, when equal share was given to the members of the Hindu Family and no actual partition was made, the defendant ought not to have sold out their respective shares to third party. She has submitted that under Section 22 of the Hindu Succession Act, there is a preemptive right available to the co-owner of the property. She has submitted that the other defendants before selling their undivided share to the third party, ought to have made offer to the plaintiffs and other members of the joint family, however, in this case, no such exercise has been undertaken by the co-owners and, therefore, the sale-deed in favour of the private respondents needs to be cancelled. She has submitted that since the question of dwelling use is involved, the property needs to be kept intact till the final disposal of the said property. She has submitted that purchasers were knowing the fact that the property is not divided by metes and bounds. She has submitted that even during pendency of the Suit, sale transaction have been happened and, therefore, considering the conduct of the parties, trial Court ought to have granted interim relief restraining the defendants from dealing with the property in any manner, Page 6 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022 C/AO/21/2021 JUDGMENT DATED: 06/05/2022 pending the Suit. She has submitted that the impugned order of the trial Court is not sustainable in the eyes of law and the trial Court has not considered the various documentary evidences in its proper perspective and the order is arbitrary and perverse one and the same needs interference of this Court. She has prayed to allow the present Appeal by quashing and setting aside the impugned order passed by the trial Court, so far as order passed below Exh-5 and Exh-39 are concerned. She has relied upon the following decisions:
1. Dorab Cawasji Warden v. Coomi Sorab Warden and others, reported in AIR 1990 SC 867, wherein Paras 21 to 25 read as under:
"21.We may respectfully state that this is a correct state- ment of the law. There could be no doubt that the ratio of the decisions rendered under section 4 of the Partition Act equally apply to the interpretation of the second paragraph of section 44 as the provisions are complementary to each other and the terms "undivided family" and "dwelling house" have the same meaning in both the sections.
22. It is not disputed that prior to 1951 the suit dwelling house belonged to the undivided family of the appellant and his father and they were owning the same as joint tenants. The High Court has relied on a letter dated 12th March, 1951 of the appellant to his father in which the appellant had expressed a desire to retain his share separately so as to enable him to dispose of the same in a manner he chooses and also enable his heirs to succeed. In Page 7 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022 C/AO/21/2021 JUDGMENT DATED: 06/05/2022 pursuance of this letter the appellant and his father executed an agreement dated 23rd of August, 1951 by which they declared that they have severed their status as joint tenants and that hence- forth they were holding the said piece of land and building as tenants in common in equal undivided half share. In the view of the High Court this conversion of joint tenancy of an undivided family into a tenancy in common of the members of that undivided family amounts to a division in the family itself with reference to the property and that, therefore, there shall be deemed to have been a partition between the appellant and his father. In support of this conclusion the High Court also relied on the further fact that subsequent to the death of the father and marriage of Sohrab the appellant's family and Sohrab's family were occupying different portions of the suit property and enjoying the same exclu- sively. We are afraid that some notions of co- parcenary property of a Hindu joint family have been brought in which may not be quite accurate in considering section 44; but what is relevant for the purpose of these proceedings was whether the selling house belonged to an undivided family. We have already pointed out that even if the family is divided in status in the sense that they were holding the property as tenants in common but undivided qua the property that is the property had not been divided by metes and bounds it would be within the provisions section 44 of the Act.
23.We had also noticed earlier that Cawasji, the father of the appellant transferred his undivided half share in the suit property in favour of his son Sohrab under a deed dated 16-4-1982. Two questions may arise for consideration whether this transaction is covered by section 44 of the Act and whether after the transfer, the Page 8 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022 C/AO/21/2021 JUDGMENT DATED: 06/05/2022 appellant's brother and the appellant can be said to be holding the property as undivided family. The transfer by the father in favour of Sohrab was a transfer in favour of a member of a family as Sohrab was living with them. Sohrab attained the age of 18 only on 25th December, 1951 and as seen from the other documents he was living with his father and brother till 1968 when he got married. It is only after he was married the appellant and Sohrab were occupying different portions of the suit property and having different mess. In the absence of a document evidencing partition of the suit house by metes and bounds and on the documentary evidence showing that the property is held by the appellant and his brother in equal undivided shares, we are of the view that the plaintiff appellant has shown a prima facie case that the dwelling house belonged to an undivided family consisting of himself and his brother.
24. The two brothers, therefore, shall be deemed to be holding the property as members of an undivided family and in the absence of the partition by metes and bounds qua this property they shall be deemed to have been holding the dwelling house as an undivided family. Prima facie, there- fore, the transfer by defendants 1 to 3 would come within the mischief of second paragraph of section 44 of the Act.
25. The next question for consideration is whether irrepara- ble injury would be caused to the appellant which could not be compensated in terms of money and whether the balance of convenience is in favour of the appellant. While section 44 does not give a transferee of a dwelling house belonging to an undivided family a right to joint possession and confer a corresponding right on the other members of the family to deny the right to joint Page 9 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022 C/AO/21/2021 JUDGMENT DATED: 06/05/2022 possession to a stranger transferee, section 4 of the Partition Act gives a right to a member of the family who has not transferred his share to purchase the transferee's share on a value to be fixed in accordance with law when the transferee filed a suit for partition. Both these are valuable rights to the members of the undivided family whatever may be the object or purpose for which they were conferred on such members. As we have pointed out in some cases it is stated that the right to joint possession is denied to a transferee in order to prevent a transferee who is an outsider from forcing his way into a dwelling house in which the other members of his transferee's family have a right to live. In some other cases giving joint possession was considered to be illegal and the only right of the stranger purchaser is to sue for partition. All these considerations in our opinion would go only to show that denying an injunction against a transferee in such cases would prima facie cause irreparable injury to the other members of the family".
2. Taramati D/o. Rasiklal Radhalal V. Mody Bachubhai Sankalchand, reported in 1982 (2) GLR 731, wherein it was observed that person having no right, title or interest in the property cannot transfer any such right, title or interest to others.
3. Bina Shukla, v. Meena Devi Panch, reported in 2008 (3) CCC (Orissa) 406; and
4. Gulamrasool Sarfuddin Malek and others v.
Dulhanbibi and others, reported in AIR 1980 Gujarat 110;
Page 10 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022C/AO/21/2021 JUDGMENT DATED: 06/05/2022
5. Mr. A.S. Vakil, learned advocate for the respondents has submitted that there was no injunction in operation on the date of the Suit till today. He has submitted that the sale- deed was registered in favour of defendant Nos. 8 to 13 and 14 on 1.7.2015 prior to the date of the Suit and service of the summons and, therefore, transaction in favour of those defendants cannot be said to be a transaction entered into pending the Suit proceedings. He has submitted that suit was filed on 2.7.2015 and summons was issued thereafter and it was received on 7.8.2015. He has also submitted that at present the Suit is at fag end of trial and the evidence of the defendant's side is going on and, therefore, there is no need of any interference with the impugned order, which is just and proper. He has also submitted that there is no incidence of transfer of property pending the Suit and, therefore, there is no question of any need of any injunction in this matter.
5.1 Mr. Vakil, learned advocate for the respondents has also submitted that it was Mother's acquired property and, therefore, it cannot be treated as joint Hindu Family property. He has submitted that the entire plaint is raised on Section 22 of the Hindu Succession Act, which is not applicable to the facts of the case. He has submitted that the plaintiff has only sought for relief of declaration and injunction but has not sought any prayer for partition of the property, which is alleged to be joined between them. He has submitted that property was gifted by Mother to the plaintiffs and defendants. According to him, under Section Page 11 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022 C/AO/21/2021 JUDGMENT DATED: 06/05/2022 14 of the Hindu Succession Act, the property being of a woman, there is no question of applicability of Section 22 of the Hindu Succession Act as property cannot be treated as Hindu Joint Family property. He has submitted that pleading in the plaint of making of construction of Bungalow and other construction in the Suit property. He has submitted that the impugned order of the trial Court is just and proper and it does not require any interference at this stage as now the trial is at the fag end. He has prayed to dismiss the present Appeal and has relied upon the following decision:
1. Mohd. Mehtab Khan and Others v. Khushnuma Ibrahim Khan, reported in (2013) 9 SCC 221.
During the argument, Mr. Vakil has submitted a simple copy of the deposition recorded by the trial Court to show that the trial is at the fag end.
6. In rejoinder, Ms. Brahmbhatt, learned advocate for the appellants has submitted that so far as question of construction of Bungalow and other constructions is concerned, it is already described in the sale-deed which is already executed in favour of the plaintiffs' Mother in 1945. She has also submitted that the entire property is of co- ownership of all the parties and, therefore, the third party, who are not family members of the plaintiffs and the defendants, must be restrained from entering into Bungalow and other properties. She has prayed to pass Page 12 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022 C/AO/21/2021 JUDGMENT DATED: 06/05/2022 order in favour of the plaintiffs-appellants of restraining the private respondents from entering into the joint family property and restraining the other co-owners from selling their undivided share to anybody else.
7. Having considered the submissions on behalf of both the sides, coupled with the material placed on record and the decisions relied upon, there is no dispute regarding the fact that the property was originally belonging to the Mother of the plaintiffs and other defendants, except the private defendants. It also reveals that the property was purchased by the Mother of the parties and, therefore, it was her self- acquired property. It reveals from the sale-deed in favour of the Mother of the plaintiffs that even at that time, there were constructions over the land in question. It emerges from the record that Mother has gifted the entire property vide Gift-deed to the plaintiffs and defendants, and as per their version, everyone has one-seventh share. It also emerges that certain family members have sold the property to private respondents by registered sale-deed, out of which, revenue entry has been mutated in one of the sale transaction and the same has been challenged by RTS proceedings by the plaintiffs wherein initially it has been rejected and against that rejection, the plaintiff has preferred Appeal before the Deputy Collector pertaining to the revenue entry.
8. The Plaintiffs and the defendant Nos. 3 and 4 have based their submissions on the ground that they have preferential Page 13 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022 C/AO/21/2021 JUDGMENT DATED: 06/05/2022 right to purchase from the share of the other co-owners property. The question of such preemptive right needs to be decided at the trial. It appears that the sale transaction have been entered into between co-owners and the private defendants. It reveals that there is no actual partition of the property by metes and bounds and, therefore, if there is no actual partition of the property by metes and bounds, the seller who might be bonafide purchaser, will not get automatically the possession of the property. Under the circumstances, if there is no actual partition by metes and bounds, then either of the parties have to ask for partition of the property. Now, this fact is also required to be decided on the evidence led by both the sides in the trial. It appears from the simple copy of the deposition submitted by learned advocate for the respondent for perusal of this Court during the course of argument, it transpires that the Suit is at the fag end and the evidence of the defendant's side is going on. It is admitted fact that there was no injunction in force till today, since the Suit is at the fagend and considering the fact that the question involved herein needs evidence on record and there is no further transaction pending the suit, this Court is of the opinion that considering the facts and circumstances of the case, there is no need to interfere with the impugned order of the trial court, rejecting the application Exh-55 and Exh-39. Otherwise also, considering the observations made by the trial Court, the observation of the trial Court is plausible one in the facts and circumstances of the case. Therefore, considering the limited jurisdiction of this Court to Page 14 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022 C/AO/21/2021 JUDGMENT DATED: 06/05/2022 interfere in a discretionary order passed by the trial Court and the fact that view taken by the trial Court is plausible one, this Court does not see any reason to interfere with the same.
9. Hence, in view of the above, the Appeal from Order needs to be dismissed. Accordingly, it is dismissed. Since the matter is at the fag end of the trial, no direction is required to be issued to the trial Court for expediting disposal of the trial. No order as to costs. Direct service permitted.
The Civil Application also stands disposed of accordingly.
(DR. A. P. THAKER, J) SAJ GEORGE Page 15 of 15 Downloaded on : Fri May 06 20:58:19 IST 2022