Judgment:
The Court : The application is by the third and fourth defendants in a partition suit. The applying defendants claim that in addition to the joint properties that have been referred to by the plaintiff, there are two further properties at 20/210, Dwarkadhish Road, Kanpur and 25, Baranasi Ghosh Street, Calcutta which also belong to the family.
The applying defendants aver at paragraph 12 of the petition that the said two properties were acquired out of the funds of the HUF.
On the plaintiffs earlier interlocutory application an order of injunction was made in respect of the immovable properties. At the behest of the defendant nos.3 and 4 the two properties referred to above were also included as part of the joint family properties and a similar order of injunction was passed in respect thereof on concession made on behalf of the plaintiff. The plaintiff subsequently applied for the injunction in respect of the aforesaid two properties to be vacated on the ground that the concession had been made by counsel without any authority.
In such circumstances, the entirety of the order of injunction, covering both the admitted joint properties and the two aforesaid properties, was vacated. The applying defendants say that taking advantage of the order of injunction having been lifted, the plaintiff is purporting to deal with the aforesaid two properties and alienate them from the family. The plaintiff denies that the two properties were acquired out of the HUF funds or that the two properties should be included in the schedule appended to the plaint.
Affidavit-in-opposition be filed within three weeks; reply thereto, if any, may be filed within two weeks thereafter. The matter will appear as an adjourned motion in the monthly list of January, 2011. Any steps taken by the plaintiff, whether to transfer or otherwise create any right in respect of either of the aforesaid properties, will abide by the result of this application and the suit. It will also be incumbent on the plaintiff to make the third party in whose favour any rights are attempted to be created in respect of either of the properties aware of this order having been made.
Any damages that the third party may subsequently be entitled to claim on account of alleged lack of knowledge of this order would be to the account of the plaintiff. There will also be an order of injunction restraining the parties whether by themselves or by their servants or agents or assigns or otherwise howsoever from dealing with or disposing of or alienating or encumbering or otherwise parting with possession of any of the joint family properties referred to in Schedules B, C and D to the plaint. Such order is made in view of the averments at paragraph 13 of the petition.
It will also be open to the defendant nos.3 and 4 to publish any suitable notice bearing an accurate representation of this order.
Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.