Urmila Devi @ Nirmala Devi vs Janak Dulari Devi & Ors on 15 May, 2009

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Patna High Court - Orders

Urmila Devi @ Nirmala Devi vs Janak Dulari Devi & Ors on 15 May, 2009

The plaintiff-appellant is aggrieved by the impugned order of the court below rejecting the prayer of injunction. The court below has in the impugned order held the plaintiff had no prima facie case because she had no share in the family property after the death of her father in the year 1953. Proceeding further the court below has held that though the plaintiff wanted an injunction confined to part of the suit property which was given in gift to defendant no.3, no separate schedule was made for the same or no prayer was made specifically in this regard in the plaint. The court below has also analyzed the materials on record for recording a finding on the issue of prima facie case, balance of convenience and irreparable loss and having 3 held against the plaintiff appellant on all three scores has refused the prayer for injunction.

Mr. Umakant Shukla, learned counsel for the plaintiff appellant, would submit that the court below has proceeded on a wholly incorrect presumption and in fact has recorded a finding against the appellant even by committing error of record. In this context he would submit that there is no dispute from the family tree given in paragraph 6 of the plaint that the plaintiff was the daughter of Subansh Singh who was married to one Saraswati Devi. He would accordingly submit that though there may be a controversy as to whether Subansh Singh died in the year 1959 as per the version of the plaintiff or in the year 1953 as asserted by defendant no.3, but there is no dispute that the plaintiff's mother Saraswati Devi died in the year 2002. If that be so, Mr. Shukla would contend that the mother of the plaintiff even after the death of Subansh Singh in the year 1953 would be absolute owner till 1956 and thereafter absolute owner under section 6 of 4 the Hindu Succession Act. Mr. Shukla on the aforesaid premises would further proceed to contend that there being no dispute that the plaintiff was the sold surviving heir of Subansh Singh and Saraswati Devi, she had inherited a definite share in the family property which was described by her to be 8/15 in the suit property. Mr.Shukla, therefore, would submit that once it is found that the plaintiff had a define share in the joint family property and any person including defendant no.3 came out to displace it on the basis of deed of gift allegedly executed by the grand mother of the plaintiff, the court below for the purposes of injunction in a partition suit had to decide on the basis that there was undisputed position as with regard to the right of the plaintiff as a co-sharer seeking to protect herself at least in respect of the suit property.

Counsel for the contesting respondent no.3, on the other hand, would submit that the finding of the court below as with regard to the plaintiff having no share in the family property does not suffer 5 from any error and would further proceed that the plaintiff had full knowledge of the deed of gift right from the year 1986 but she did not challenge the same and found out a circuitous way in form of the partition suit in hand for indirectly questioning the said deed of gift of 1986. He would accordingly submit that the suit itself is barred by limitation as a deed of gift of 1986 could not have been assailed in the year 2006 by way of seeking of an amendment in the plaint.

After hearing the parties and perusing the records of the court below this Court is satisfied that there has been an apparent error in whole approach of the court below in recording a finding on the issue of plaintiff having no defined share in the suit property. The court below even if it had taken into account that the father of the plaintiff died in the year 1953 it had to find out whether the mother of the plaintiff was alive in the year 1956 so as to get her right in the joint family property. To that extent the uncontroverted fact in paragraph 6 of the plaint about the 6 date of death of Saraswati Devi in the year 2002 would in fact leave nothing for speculation that the plaintiff was entitled to a share in the family property as even after the death of Subansh Singh in the year 1953, Saraswati Devi had continued with the interest of her husband till her death in 2002 and thereafter the same was definitely inherited by the sole daughter, the plaintiff appellant. In that view of the matter, the finding of the court below even though prima facie, with regard to the plaintiff having no share in the suit property seems to be against the weight of materials on record.

Once this position becomes clear that the plaintiff had a defined interest in the suit property and the suit is one for partition, the whole approach while examining the prayer of injunction would be as to whether by the alienation or changing the nature of the suit property the plaintiff would suffer irreparable loss. It is not in doubt that the major share of the suit property, 8/15 is being claimed by the plaintiff whereas the defendant no.3 is said 7 to have only 1/15 in the suit property. In that view of the matter, defendant no.3 could not have been given the absolute freehand to alienate the entire suit property creating a third party right and further riddles for the plaintiff.

This Court in fact would find that so par the land involved in the deed of gift dated 2.6.1986 is concerned, defendant no.3 in his written statement had already explained that same had been mortgaged by him to a Bank for getting a loan. Once that mortgaged property to the Bank was not capable of being alienated, the court below at best could have passed only a limited order in respect of the portion of the land covered by the deed of gift by restraining defendant no.3 to sale the same to any person. That in fact would have easily avoided the technical plea on which the court below had proceeded for refusing injunction by holding that the plaintiff had not made the separate schedule for the gifted property. As a matter of fact from paragraph 10 of the rejoinder of defendant no.3 to the injunction petition it would 8 also become clear that there was a clear unequivocal statement before the Court below that he did not intend to sale any land during the pendency of the suit. The court below in fact should have also noted this undertaking and disposed of the injunction petition by recording it therein.

Before this Court also counsel for defendant no.3 has reiterated his stand that defendant no.3 is not going to alienate the suit land but the limited interest created in the gifted land by way of mortgage should not be disturbed in any manner.

In the opinion of this Court when the grievance of the plaintiff appellant is only confined against defendant no.3 and he would only like defendant no.3 to be restrained in alienating the suit property and the defendant no.3 has already conveyed in his show cause that he did not intend to transfer the suit property, there would be no difficulty in reversing the order of the court below and substituting it by a direction that during the pendency of the suit defendant no.3 will not alienate any part of the suit property.

It is, however, made clear that if there would be imminent need for defendant no.3 to alienate any portion of the suit property he would obtain prior permission from the court below and such prayer of the defendant no.3 would be considered on its own merits. It is, however, made clear that the plaintiff would also do nothing which may change the status of already partly alienated land, the gifted land in mortgage to the Bank, but then defendant no.3 also will not alienate it to any person including the Bank.

With the aforementioned observation and direction, this appeal is finally disposed of.

Let the records of the court below be sent back.

(Mihir Kumar Jha,J.) Surendra/

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Patna High Court - Orders