Bombay High Court
Harsha Harkant Sodha vs Bharat Gulabrai Vaghani And 6 Ors on 2 September, 2024
Author: N.J.Jamadar
Bench: N.J. Jamadar
2024:BHC-OS:13626
1-ia-1485-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
VISHAL ORDINARY ORIGINAL CIVIL JURISDICTION
SUBHASH
PAREKAR
Digitally signed by
VISHAL SUBHASH INTERIM APPLICATION NO.1485 OF 2020
PAREKAR
Date: 2024.09.04
20:05:21 +0530
IN
SUIT NO.217 OF 2020
Harsha Harkant Sodha ...Applicant
In the matter between
Harsha Harkant Sodha ...Plaintiff
vs.
1. Bharat Gulabrai Vaghani
2. Gita Sharad Vaghani
3. Ami Dhaval Jantia
4. Zarna Vinay Chainani
5. Abhijeet Sharad Vaghani
6. Dushyant Vora
7. Jash Dushyant Vora ...Defendants
Mr. Vivek Kantawala i/b. Mr. Vivek Kantawala & Co., for the
Applicant.
Mr. Sunip Sen a/w. Mr. Neerav Barot i/b. R.V. & Co., for the
Defendants/Respondents.
CORAM : N.J. JAMADAR, J.
RESERVED ON : JULY 8, 2024
PRONOUNCED ON : SEPTEMBER 2, 2024
--------------
ORDER:
1. The Interim Application is preferred seeking appointment of the Court Receiver in respect of the properties set out in Exhibit A/A-1 of the plaint (the suit properties) and for temporary injunction to restrain defendant No. 1 from dealing with, disposing of, liquidating, redeveloping and creating third party rights in the suit properties.
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2. This is a suit for partition of the suit properties. Gulabrai Shamji Vaghani, was the father of the applicant/plaintiff and defendant No. 1. Defendants No. 2 to 5 are the heirs of Sharad Vaghani the predeceased son, and defendant Nos. 6 and 7 are the heirs of Anupama Vora, the predeceased daughter of Gulabrai. Gulabrai was endowed with a number of properties including the suit properties.
3. Gulabrai left behind Jayaben, his widow, the plaintiff, defendant No. 1 and defendant Nos. 2 to 7, the children of predeceased son and daughter.
4. The plaintiff has taken out this application with the assertions that Shamji Vaghani was the grandfather of plaintiff. After the demise of Shamji, the joint family properties devolved on Parvatibai, her grandmother, and Gulabrai, her father. After the demise of Gulabrai, defendant No. 1 with the consensus of the entire family became Karta of HUF which owned several movable and immovable properties. Even after the demise of their mother Jayaben, on 13 th April, 2014, defendant No. 1 continued to act as Karta of HUF. In the said capacity, defendant No. 1, inter alia, collected rental income, operated bank accounts and effected several transfers of the Vishal Parekar 2/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 ::: 1-ia-1485-2020.doc movables, and immovable properties of HUF, on either tenancy or leave and license basis.
5. The plaintiff avers the defendant No. 1 entered into several transactions representing himself as the sole representative of Gulabrai Vaghani family and the said HUF. The plaintiff repeatedly called upon defendant No. 1 to furnish the details of the HUF properties. Defendant No. 1 informed the plaintiff that all the properties have been encumbered and that the plaintiff has no right either as a daughter of Gulabrai or as a member of the said HUF. Repeated requests of the plaintiff to seek details and accounts of the estate of HUF did not materialise.
6. Eventually, defendant No. 1 started to appropriate the HUF properties for his personal benefit and has made a living for himself and his family by using the proceeds of properties and assets of the said HUF. As the defendant No. 1 refused to part with the share of the plaintiff in the HUF as a co-parcener, the plaintiff addressed a hand written communication dated 15th May, 2019 to defendant No. 1, regarding the stand of the parties. Ultimately, the plaintiff was constrained to institute the suit, inter alia, for partition and separate possession of her share in the HUF.
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7. Pursuant to an interim order dated 19 th December, 2019 the defendants have filed disclosure affidavits. Based on the information furnished by defendant No. 1 in the disclosure affidavits, the plaint came to be amended so as to include the properties in the Schedule of joint family properties (Exh.A) and (Exh.A1). Thereafter, the plaintiff has moved for further interim reliefs.
8. An affidavit in reply, has been filed on behalf of defendant No.
1. At the outset, defendant No. 1 contends that late Gulabrai Vaghani was not the Karta or coparcener of HUF. Therefore, the suit premised on the existence of HUF is not tenable. It is contended, the plaintiff is guilty of suppression of facts. Gulabrai passed away on 22nd April, 1993. Resultantly, as Gulabrai was not alive on 9 th September, 2005, the plaintiff is ineligible to take advantage of the provisions contained in Hindu Succession (Amendment) Act, 2005. The plaintiff has also suppressed the fact that her marriage was solemnized in the year 1970. This fact also disentitled the plaintiff from claiming any share in the property of HUF.
9. On the aspect of the entitlement to partition, the defendant No. 1 contends that the plaintiff has failed to discharge the burden to disclose as to when the HUF came into existence. Shamji Vaghani, Vishal Parekar 4/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 ::: 1-ia-1485-2020.doc the grandfather of the plaintiff and defendant No. 1, held all the properties as his self acquired properties. After the demise of Shamji, properties devolved on Gulabrai and Parvatibai, the widow of Shamji, by succession and not by survivorship. Therefore, the suit properties cannot be considered as coparcenary properties in the hands of Gulabrai and would become coparcenary properties only upon his death. Since the plaintiff claims that the properties left behind by Shamji devolved on her grandmother also, the properties cannot be said to be coparcenary or HUF in the hands of Gulabrai.
10. In the alternative it is contended that upon the death of Gulabrai S. Vaghani on 22nd May, 1993 a notional partition took place and shares of each of the coparcener stood crystallized. Consequently, as the properties have already been partitioned, the plaintiff is not entitled to a share in the HUF.
11. The defendant No. 1 contends the suit is also barred by law of limitation. A case of ouster of the plaintiff has been pleaded.
12. Without prejudice to the aforesaid contentions, it is contended that the HUF owns only ½ undivided share in the immovable properties enumerated. Therefore, any injunction restraining HUF Vishal Parekar 5/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 ::: 1-ia-1485-2020.doc from in any manner dealing with its properties would cause grave and irrepealable harm and loss not only to the HUF and its coparceners but will also affect third party rights.
13. In the backdrop of the aforesaid pleadings, I have heard Mr. Vivek Kantawala, learned counsel for the applicant/ plaintiff, and Mr. Sunip Sen, learned counsel for the defendants/respondents. The learned counsel took the Court through the pleadings and documents on record.
14. Mr. Kantawala, learned counsel for the applicant/plaintiff, submitted that the right of the plaintiff to the HUF properties left behind by her deceased father is unquestionable. The defendant No. 1 has endeavored to raise all possible defences with a devilish design to deprive the plaintiff of her legitimate share in the joint family properties. It was further submitted that there are a number of immovable properties and the defendant No. 1 has been wrongfully appropriating the income and benefits out of the joint family property for himself and the members of his family exclusively, whilst the plaintiff has been completely deprived of the benefits. It is, therefore, necessary to appoint a Court Receiver and restrain the defendant No. 1 from creating third party rights in the Vishal Parekar 6/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 ::: 1-ia-1485-2020.doc suit properties, lest there is a clear danger of the suit properties being wasted, damaged or alienated to the grave prejudice of the plaintiff.
15. Mr. Kantawala, further submitted that the ground that the plaintiff is not entitled to a share in the suit properties as a co- parcener as Gulabrai, the father of the plaintiff, passed away before 1994 and the marriage of the plaintiff was solemnized in the year 1970, does not merit any countenance as the position in law has been settled by a three Judge Bench judgment of the Supreme Court in the case of Vineeta Sharma vs. Rakesh Sharma and Ors.1. Neither the fact that the father of the coparcenar was not alive on 9 th September, 2005 nor the fact that plaintiff's marriage was solemnized prior thereto, is of any significance.
16. The other ground of the property having been devolved on Gulabrai, by way of succession, and not as a coparcenary property and, therefore, the plaintiff is not entitled to succeed to the said property in the capacity of a coparcener is equally misconceived. Inviting the attention of the Court to the contentions in the affidavit in reply, especially paragraph 13, Mr. Kantawala submitted that the existence of the joint family property and the status of defendant 1 2020 SCC OnLine SC 641.
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1-ia-1485-2020.doc No. 1 as the Karta of the joint family is rather incontrovertible.
17. Mr. Kantawala further submitted that the resistance to the application based on bar of limitation also does not merit acceptance. The applicant has categorically asserted in the plaint that defendant No. 1 denounced the right of the plaintiff in the joint family property on 15th May, 2019. Therefore, the plaintiff cannot be non-suited on the ground of delay or for that matter 'ouster' from the joint family property. To buttress this submission, Mr. Kantawala placed reliance on a judgment passed by this Court in the case of Reshma Zaveri and Anr. vs. Vikram Chandulal Shah and Ors.2.
18. Mr. Sunip Sen, the learned counsel for the respondents/ defendants, submitted that it is a settled law that the onus to establish that a particular property is a joint family property is on the person who asserts the said character of the property. In the case at hand, there is no prima facie material to show that the suit property is a joint family property. To lend support to the submission that burden lies upon the person who alleges the existence of HUF to prove the same, Mr. Sen placed reliance on a decision of the Supreme Court in the case of Bhagwat Sharan (Dead 2 Suit No. 60/2015 Dt.16/07/2019. Vishal Parekar 8/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 ::: 1-ia-1485-2020.doc through LRs) vs. Purushottam and Ors. 3. Secondly, since Gulabrai had inherited the self-acquired properties of Shamji along with Parvatibai, the properties devolved by succession and not by survivorship. Therefore, the suit property can not be considered as a coparcenary property in the hands of Gulabrai. Thirdly, a coparcenary property can not devolve upon a woman by succession. Once Gulabrai inherited the property, it did not retain the character of joint family property. The said property became HUF for the first time in the hand of defendant No.1. Qua defendant No.1, the plaintiff, being a sister, is not a coparcener. Mr. Sen, further submitted that, at any rate, on the own showing of the plaintiff, defendant No. 1 is the Karta of the joint family property. Therefore, no injunctive relief can be granted against the defendant No. 1.
19. Mr. Sen placed a very strong reliance on the decision of the Supreme Court in the case of Commissioner of Wealth Tax, Kanpur and Ors. vs. Chander Sen and Ors. 4, to buttress the submission that under section 8 of the Hindu Succession Act, 1956, the property of a male Hindu who dies intestate devolves on his son in his individual capacity and not as Karta of his own family. It was submitted that the aforesaid decision of the Supreme Court has been followed by 3 (2020) 6 Supreme Court Cases 387.
4 (1986) 3 Supreme Court Cases, 567.
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1-ia-1485-2020.doc this Court in the case of Paresh Damodardas Mahant vs. Arun Damodardas Mahant and Ors.5
20. Lastly, it was urged that, the property that devolves on a woman cannot be a HUF property. Further, the property devolving from a woman can not ever be HUF property. The plaintiff has not pleaded how 50% share in the property which devolved on Gulabrai absolutely, became the HUF property in Gulabrai's hand. Conversely, Parvatibai's property never came to Gulabrai but devolved separately. There is no basis for alleging that the said property devolved on Gulabrai. Therefore, Mr. Sen would urge the tenability of the suit itself is debatable. Resultantly, the plaintiff is not entitled to any interim relief.
21. I have given anxious consideration to the rival submissions canvassed across the bar.
22. The facts are few and rather incontrovertible. The relationship between the parties, is not in dispute. Gulabrai, father of the plaintiff and defendant No. 1, passed away on 22 nd April, 1993. Gulabrai left behind the plaintiff, defendant No. 1 and their mother Jayaben. The later passed away on 13 th July, 2014. 5 NMS No.738/2014 in S. 454/2014 Dt.13/10/2014. Vishal Parekar 10/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 :::
1-ia-1485-2020.doc Defendant Nos. 2 to 5 are the children of Sharad Voghani, the predeceased son of Gulabrai. The defendant Nos. 6 and 7 are the children of Anupama Vora, the predeceased daughter of Gulabrai. There is also not much controversy over the fact that after the demise of Gulabrai, defendant No. 1 continued as Karta of the HUF.
23. The core controversy between the parties revolves around the right of the plaintiff to succeed to the joint family property. As noted above, initially an endeavor was made to throw a cloud of doubt over the entitlement of the plaintiff by asserting that the plaintiff was not entitled to claim the benefit under section 6 of the Hindu Succession Act, 1956, as amended by Hindu Succession (Amendment) Act, 2005 as on 9th September, 2005, the father of the plaintiff was not alive and she was already married.
24. A three Judge Bench of the Supreme Court in the case of Vineeta Sharma (supra) has set at rest the controversy sought to be raised on behalf of defendant No. 1. After an elaborate analysis of the provisions of the Hindu Succession Act, its historical backdrop, and the precedents, the Supreme Court, inter alia, enunciated that,
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the Vishal Parekar 11/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 ::: 1-ia-1485-2020.doc daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
25. Mr. Sen fairly submitted that, in view of the aforesaid position in law, the initial defence sought to be raised by defendant No. 1 to refute the claim of the plaintiff does not survive. Mr. Sen, however, strenuously urged that the fact that on the demise of Shamji, the property devolved upon Gulabrai and his mother Parvatibai by succession and not by way of survivorship, is of material significance. It was urged that, Gulabrai inherited the said property as his separate property and not as joint family property.
26. In the case of Commissioner of Wealth Tax (supra), on which reliance was placed by Mr. Sen, the question that arose for Vishal Parekar 12/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 ::: 1-ia-1485-2020.doc consideration was, "whether the amount standing to the credit of the father of the respondent was inherited, after his death, by respondent in his individual capacity or as a Karta of the assessee's joint family consisting of himself and his sons." The Supreme Court referred to the legal position under uncodified Hindu law and the effect of introduction of section 8 of the Hindu Succession Act, 1956. Thereafter, the Supreme Court formulated the question which arose for consideration, namely:-
When the son as heir of class I of the Schedule inherits the property, does he do so in his individual capacity or does he do so as Karta of his own undivided family ?
27. The Supreme Court answered the aforesaid question as under :-
15] It is clear that under the Hindu law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint family of his son and grandson and other members who form joint Hindu family with him. But the question is; is the position affected by section 8 of the Succession Act, 1956 and if so, how? The basic argument is that section 8 indicates the heirs in respect of certain property and class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. It is this Vishal Parekar 13/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 ::: 1-ia-1485-2020.doc position which has mainly induced the Allahabad High Court in the two judgments, we have noticed, to take the view that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually. Under section 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family. On the other hand, the Gujarat High Court has taken the contrary view.
.... ...... ...
22] In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under section 8 of the Hindu Succession would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under section 8 of the Act included widow, mother, daughter of predeceased son etc."
(emphasis supplied)
28. The aforesaid decision was followed by the Supreme Court in the case of M. Arumugam vs Ammaniammal And Ors.6 6 (2020) 11 SCC 103.
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1-ia-1485-2020.doc 14] In Commissioner of Wealth Tax, Kanpur and Ors. vs. Chander Sen and Ors., the dispute related to a joint family business between a father and son. This business was divided and thereafter, carried by a partnership firm of which both were partners. The father died leaving behind his son, two grandsons and a credit balance in the account of the firm. The issue that arose was whether the credit balance in the account left behind by the deceased was to be treated as joint family property or the property was to be distributed to Class-I legal heirs in accordance with Section 8 of the Succession Act. This Court held that Succession Act supersedes all Mitakshara law. The relevant portion of the judgment reads as follows: (SCC p, 577, para 22) "22.... It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc."
Accordingly, it was directed that the credit balance would be inherited in terms of Section 8 of the Succession Act.
15] In Appropriate Authority (IT Deptt) vs. M. Arifulla the issue which arose was whether the property inherited in terms of Sections 6 and 8 of the Succession Act was to be treated as the property of co-- owners or as joint family property. The Court held as follows : (SCC p. 344, para 3) "3. ... This Court has held in CWT vs. Chander Sen that a property devolving under Section 8 of the Hindu Succession Act, is the individual property of the person who inherits the same and not that of the HUF. In fact, in the special leave petition, it is admitted that respondents 2 to 5 inherited the property in question from the said T.M. Doraiswami. Hence, they held it as tenants in common and not as joint tenants."
16] Applying the principles laid down in the aforesaid cases, it is apparent that after the death of Moola Goundar, his interest in the coparcenary property Vishal Parekar 15/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 ::: 1-ia-1485-2020.doc would devolve as per the provisions of Section 8 since he left behind a number of female Class-I heirs.
29. The aforesaid decision in the case of M. Arumugam (supra) was further clarified by the Supreme Court in the case of M.R.Vinoda vs M.S. Susheelamma (deceased by LRs.) and Ors.7 20] In our view this judgment does not lay down a different law, and is not contra the ratio in Sri Narayan Bal (supra). In M. Arumugam (supra), the Court was dealing with the situation governed by pre- amended Section 6 of the Hindu Succession Act, which postulates deemed partition on the death of a coparcener. Under the Hindu Succession Act, inheritance to the estate of the deceased coparcener on a deemed partition is by way of succession, and not by way of survivorship. Therefore, the property inherited is individual and not joint Hindu family property. Consequent to which the plaintiff therein, who was a minor, had inherited the share on her father's death, who was a Karta. The inherited property belonged to the minor. In this context, the Court held that the mother alone would be the natural guardian, and the relinquishment made by her on behalf of her minor daughter, i.e., the plaintiff therein, would not be void.
30. The decision in the case of Chander Sen (supra) was followed by another two Judge Bench judgment in the case of Radha Bai vs. Ram Narayan and Ors.8 and, thereafter, it was enunciated that, "the consistent view of the Supreme Court, including of three Judge Bench, is that the grand son or grand daughter is clearly excluded from heirs in Class-I."
31. The legal position which thus emerges is that, a line of 7 2021 (20) SCC 180.
8 2020 (19) SCC 513.
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1-ia-1485-2020.doc decisions starting from Chander Sen (supra), take the view that under section 8 of Hindu Succession Act, the property which devolves on male would be his separate property and he does not inherit the same as Karta of his own family. This proposition of law, in my considered view, does not govern a situation where the dispute is between the heirs who are entitled to succeed to the property of the male Hindu who died intestate, as Class I heirs.
32. Under the uncodified Hindu Law, if the property is inherited by a Hindu male from his father or father's father or father's father's father, it is ancestral property as regards his male issue. In other words, a person inheriting property from his three immediate paternal ancestors holds it in co-parcenary with his sons, son's sons and son's son's sons. In the case at hand, it is an admitted position that Shamji held the property as his self-acquired properties. By this token, the property held by Shamji devolved on Gulabrai and Parvatibai by succession under section 8 of the Hindu Succession Act, 1956. By the same reckoning, after the demise of Gulabrai, the property would devolve upon his heirs in accordance with the provisions contained in section 8 of Hindu Succession Act, 1956, even if the case of the defendant No. 1 that Gulabrai held the property as his separate property, is taken at par. Conversely, if it is Vishal Parekar 17/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 ::: 1-ia-1485-2020.doc held that the property was held by Gulabrai as a coparcener, the plaintiff, in view of the Hindu Succession (Amendment) Act, 2005 would become a coparcener by birth like that of defendant No. 1.
33. Now the expression "property" in section 8 of the Hindu Succession Act, 1956, it appears, covers in its ambit the entire property of a male Hindu who died intestate. It includes not only his separate or self-acquired property but his interest in co-parcenary property in case he is survived by any of the female heirs or a daughter's son mentioned in Class I of the schedule. With the daughter becoming a coparcener, of course, the position would alter in the case of a coparcenary property as she would be entitled to claim under section 6 like a son.
34. Looked from the aforesaid perspective, the plaintiff and defendant No. 1, being the Class I heirs, would succeed to the property of Gulabrai with the children of predeceased son and daughter simultaneously under section 9 of the Hindu Succession Act, 1956. Therefore, in my considered view, the submission of Mr. Sen that Gulabrai inherited the property of Shamji as the separate property, or for that matter, the property devolved on Gulabrai after the death of Parvatibai ceased to be the HUF property, does not Vishal Parekar 18/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 ::: 1-ia-1485-2020.doc merit countenance as the fact remains that the property of Gulabrai would devolve upon Class I heirs in accordance with the provisions of section 8 read with section 9 of the Hindu Succession Act, 1956.
35. The challenge to the tenability of the suit on the ground of bar of limitation premised on the assertion in the plaint that the plaintiff has been kept away from the affairs of the HUF, implying thereby that there was ouster of the plaintiff, is required to be stated to be repelled. In fairness to Mr. Sen, it must be noted that, the said ground was not seriously canvassed by Mr. Sen during the course of the submissions.
36. Thus, it may be suffice to note that it is well recognized that where one co-heir pleads adverse possession against another co-heir it is not enough to show that one out of them was in sole possession and enjoyment of the profits of the properties. The possession of one co-heir is considered in law as possession of all the co-heirs. The co- heir in possession cannot render his possession adverse to the other co-owners not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs title. It is settled rule of law as between co-heirs that there must be evidence of open assertion of hostile title coupled with exclusive possession Vishal Parekar 19/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 ::: 1-ia-1485-2020.doc and enjoyment by one of them to the knowledge of the other so as to construe ouster.
37. A profitable reference, in this context, can be made to a decision of the Supreme Court in the case of Md. Mohammad Ali (dead) by LRs vs. Jagadish Kalita and others 9, after a survey of the precedents, the Supreme Court enunciated the law as under:
"19. Long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non- participation in the rent and profits of the land to a co- sharer does not amount to ouster so as to give title by prescription. A co-sharer, as is well settled, becomes a constructive trustee of other co-sharer and the right of the appellant and/or his predecessors in interest would, thus, be deemed to be protected by the trustee. As noticed hereinbefore, the respondents in their written statement raised a plea of adverse possession only against the third set of the defendants. A plea of adverse possession set up by the respondents, as reproduced hereinbefore, do not meet the requirements of law also in proving ouster of a co-sharer. But in the event, the heirs and legal representatives of Gayaram Kalita and Kashiram Kalita partitioned their properties by meets and bounds, they would cease to be co-sharers in which event a plea of adverse possession as contra distinguished from the plea of ouster could be raised. The courts in a given situation may on reading of the written statement in its entirety come to the conclusion that a proper plea of adverse possession has been raised if requisite allegations therefor exist. In the event the plaintiff proves his title, he need not prove that he was in possession within 12 years from the date of filing of suit. If he fails to prove his title, the suit fails.
20. By reason of Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Art. 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years 9 (2004) 1 SCC 271.Vishal Parekar 20/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 :::
1-ia-1485-2020.doc preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff's claim to establish his title by adverse possession.
............
25. Possession of a property belonging to several co- sharers by one co-sharer, it is trite, shall be deemed that he possesses the property on behalf of the other co- sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharers would not amount to ouster unless there is a clear declaration that the title of the other co-sharers was denied and disputed. No such finding has been arrived at by the High Court."
(emphasis supplied)
38. Applying the aforesaid principles to the facts of the case, the challenge to the claim of the plaintiff as being barred by limitation on the premise of ouster, in a sense, constitutes prima facie unjustified and unsustainable denial of the rights of the plaintiff in the property which, upon the demise of Gulabrai, devolved on her alongwith the other heirs including the defendants. That constitutes a strong prima facie case in favour of the plaintiff.
39. In a situation of the present nature, where defendant No.1 categorically denies right, title and interest of the plaintiff in suit property, the balance of convenience tilts in favour of the plaintiff. If interim relief is not granted, there is an imminent risk of the joint family properties being alienated, disposed or third party rights created therein to the prejudice of the rights of the plaintiff. Thus, Vishal Parekar 21/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 ::: 1-ia-1485-2020.doc the plaintiff would suffer irreparable loss.
40. The prayer to appoint a Court Receiver, in the facts of the case, does not seem warranted. Admittedly, defendant No.1 has been in possession of the suit properties, either physical or constructive, in the capacity of a co-heir. In fact, the plaintiff asserts in the plaint that defendant No.1 has acted as karta of the HUF. Thus, the Court does not find any justification to appoint a Court Receiver in respect of the suit properties. However, since defendant No.1 has professed to deny the right, title and interest of the plaintiff in the suit properties, defendant No.1 deserves to be restrained from alienating, disposing of or liquidating or otherwise creating third party rights and/or interest in respect of, the suit properties, till the disposal of the suit. Since a number of suit properties are stated to be in the possession of the tenants and/or licensees, it may be appropriate to direct that defendant No.1 shall not create or renew any tenancy or give any of the suit properties on Leave and Licence basis, without the leave of the Court, so that the equities could be balanced and appropriate orders could be passed at the final disposal of the suit.
Hence, the following order.
Vishal Parekar 22/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 :::
1-ia-1485-2020.doc ORDER 1] The application sands partly allowed.
2] The defendant No. 1 and his agents, assigns and servants are hereby restrained from alienating, disposing of, liquidating, or otherwise creating third party rights and/or interest in respect of, the suit properties more particularly described in Exhibits A and A1 to the plaint, till the disposal of the suit. 3] The defendant No. 1 shall not create or renew any tenancy or give any of the suit properties on leave and licence basis without the leave of the Court.
4] Application disposed.
5] Costs in cause.
(N.J.JAMADAR, J.) Vishal Parekar 23/23 ::: Uploaded on - 04/09/2024 ::: Downloaded on - 04/09/2024 23:55:18 :::