Gujarat High Court
Mohanbhai Muljibhai vs Hiteshbhai Chandulal Gajera on 16 January, 2013
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
MOHANBHAI MULJIBHAI SORATHIYAV/SHITESHBHAI CHANDULAL GAJERA C/AO/523/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER NO. 523 of 2012 with CIVIL APPLICATION NO. 14124 OF 2012 ================================================================ MOHANBHAI MULJIBHAI SORATHIYA & 4....Appellant(s) Versus HITESHBHAI CHANDULAL GAJERA & 5....Respondent(s) ================================================================ Appearance: SHRI MEHUL S. SHAH with MR ZALAK B PIPALIA, ADVOCATE for the Appellant(s) No. 1 - 5 MR HRIDAY BUCH ADVOCATE for the Respondent(s) No. 1 - 4 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 16/01/2013 ORAL ORDER
Both the parties have agreed to treat the hearing as final hearing, and therefore, the matter has been finally disposed of.
The present Appeal from Order has been filed by Appellant Nos. 1 to 5 Original Defendants being aggrieved with the impugned judgment and order passed below Exh.5 in Special Civil Suit No.129 of 2010 by the learned Additional Senior Civil Judge, Rajkot below Exh.5 dated 22.10.2012 on the grounds stated in the memo of Appeal from Order.
Heard learned Counsel Shri Mehul S. Shah appearing with learned Advocate Shri Zalak B. Pipalia for the Appellants and learned Counsel Shri Hriday Buch for the Respondents.
Learned Counsel Shri Mehul Shah for the Appellants has referred to the impugned judgment and order and has tried to submit that taking the case of the Plaintiffs as it is from the plaint itself, the claim is made on the basis of the fact that Respondent Nos. 1 to 4, who are the sons / daughters of the Appellant No.1 that it is a HUF property. However, learned Counsel Shri Mehul S. Shah has submitted that whether the daughter can claim partition during the life time of the father without the consent of the father. Learned Counsel Shri Mehul Shah submitted that by the amendment in the Hindu Succession Act, 2005, what is sought to be made is equal right for the female (daughter), but the position would not be changed with regard to the right to claim partition. Learned Counsel Shri Mehul Shah has also referred to and relied upon the judgment of the High Court of Gujarat reported in 1977 GLR 1032 Aher Hamir Duta v. Aher Duda Arjan and he referred to the dates to support his submission that such a claim is made as delayed claim, and therefore, the discretion could not have been exercised by the court below. In support of his submission he has referred to and relied upon the judgment of the High Court of Gujarat reported in 1996 (1) G.L.H. 179 Veetrag Holdings Pvt. Ltd. v. Gujarat State Textile Corporation Ltd..
He submitted that if there is a delay in making any claim, that itself would dis-entitle for any discretionary relief. He submitted that if the Appellants or some of the Appellants were aware of this development or the amendment in the Act of 2005 as well as of 2007, the Suit is filed in 2010, and therefore, the court below has failed to appreciate this material aspect. Learned Counsel Shri Mehul Shah has also submitted that at the most Respondent Nos. 1 to 4 and other Respondents will have 1/7th share in the property, for which, everything cannot be stalled, and therefore, the present Appeal from Order may be admitted and the impugned order may be stayed.
Learned Counsel Shri Mehul Shah has also referred to the provisions of Section 6 of the Hindu Succession Act and made the submissions referring to the aforesaid two judgments and also the judgment of the High Court of Gujarat reported in AIR 1995 SC 1728 Digambar Adhar Patil v. Devram Girdhar Patil (died) and another. He therefore submitted that the present Appeal from order may be admitted.
Per contra, learned Counsel Shri Hriday Buch for the Respondents has referred to the provisions of Section 6 of the Hindu Succession Act and pointedly referred to sub Section (1) that by birth the daughter is made coparcener with equal rights. He submitted that it was the purpose or the legislative intent to give a right and avoid discrimination to the female (daughter) the amendment has been made. Learned Counsel Shri Hriday Buch therefore submitted that what has been claimed is that there is already a partition or the family arrangement prior to the 2005 amendment, and therefore, the claim made by the Respondents is not justified. However, learned Counsel Shri Buch referred to sub Section (5) of Section 6 of the Hindu Succession Act and submitted that it has been specifically provided that the partition, which has been duly registered under the Registration Act or has been effected by decree of the court, would be the partition and not any other partition. He therefore submitted that as it has not been done so in the present case, the so called family arrangement or a partition will not have any bearing. He submitted that admittedly, the the Appellant Nos. 1 to 4, who are claiming as the heirs of daughter (mother) will have the right title or interest in the coparcener share of the mother through whom they are claiming share in all the HUF properties. He has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2011) 9 SCC 788 Ganduri Koteshwaramma and Another v. Chakiri Yanadi and Another. He has referred to the observations made in paragraphs 9 and 10. Learned Counsel Shri Buch submitted that as observed in this judgment, the purpose behind the amendment in the Hindu Succession Act by amendment of 2005 is to give equal rights to the daughters (female), which cannot be negated. He also referred to the impugned order to point out the sequence of events that after the notice was given, the registered sale deed has been executed in favour of the sons to defeat the right of the daughter (mother), and therefore, the Suit has been filed. He therefore submitted that when the family arrangement is not valid, again the registered sale deed is sought to be executed to defeat the rights, and therefore, considering the facts and circumstances, the injunction has been granted so as to maintain the property as it is, and to avoid, any third party rights being created. He therefore submitted that the present Appeal from Order may not be entertained.
In view of this rival submissions, it is required to be considered whether the present Appeal from Order could be entertained and whether the impugned order calls for any interference in the present Appeal from order.
The brief facts of the case as referred to in detail in the impugned order would reveal that Respondent Nos. 1 to 4 are claiming as the heirs of deceased daughter who would have a right in the HUF property of the father pursuant to the amendment in the Hindu Succession Act of the year 2005. As it transpires, if the daughter will have the right, title, interest or the share in the HUF property, she would be entitled to claim the said right, is disputed on the basis that before the amendment there is already a family arrangement. However, as it appears, on the one hand the family arrangement is sought to be raised as a defence, the fact remains that it has not been registered as required under the law, which has also been discussed in the impugned order. Further, the observations made in the judgment of the Hon'ble Apex Court in Ganduri Koteshwaramma and Another v. Chakiri Yanadi and Another (supra) clearly provide with regard to the effect of the amendment of 2005 in Hindu Succession Act. It has been clearly provided in Section 6 referring to the partition and the nature of partition, which could be considered as valid for the purpose of Section 6 of the Hindu Succession Act. In other words, it has been clearly provided that the deed of partition has to be duly registered under the Registration Act, 1949, or a partition which has been effected by decree of the court, will have a bearing if it is made prior to the Amendment Act of 2005. Therefore, without any further elaboration, considering the aforesaid rival claims and the fact that on the one hand it is claimed that family arrangement has been made earlier before the amendment Act of 2005 and on the other hand registered sale deed is subsequently executed in favour of sons, would prima faice suggest that the impugned order restraining transfer of the property in question, cannot be said to be erroneous. At the same time it is also required to be mentioned that what would be the effect of amendment in Hindu Succession Act in the year 2005 and whether it could be a retrospective or not. It is also required to be considered, whether by virtue of Amendment Act of 2005, the rights have been crystallized and / or decided, can be examined or reopened by virtue of the Amendment Act in the Hindu Succession Act by Amendment Act of 2005.
However, it is well accepted that the scope of Appeal from Order to interfere with the discretionary order has to be considered with reference to the guidelines laid down by the Hon'ble Apex Court. The Hon'ble Apex Court in a judgment reported in (2010) 1 SCC 689 Kashi Math Samsthan And Another v. Shrimad Sudhindra Thirtha Swamy And Another has clearly observed:
But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, .......................
Moreover, it is also well accepted that mere prima facie case is not sufficient, but what is required to be considered is irreparable injury, which could not be compensated in terms of money and the comparative hardship by grant of injunction and thereby refusal.
Therefore, considering the aforesaid broad principles and when the court below has passed the order keeping in mind the well accepted criteria regarding grant of injunction about prima facie case, balance of convenience and irreparable loss or comparative hardships and has passed the order, it cannot be said that there is any error. Such a discretionary order could be interfered with only when it can be pointed out that the order passed by the court below is without considering the material or is contrary to the well accepted principles and / or it is perverse. Further, it is also well accepted that even if the other view is possible by itself would not be a justification to disturb the discretionary order passed by the court below on the basis of material evidence after considering the relevant aspects as well as the criteria for grant of injunction.
It is in these circumstances it cannot be said that the impugned order passed by the court below calls for any interference and the present Appeal from Order therefore deserves to be dismissed and accordingly stands dismissed.
Civil Application does not survive.
(RAJESH H.SHUKLA, J.) JNW Page 8 of 8