Smt. Indrakali Vs. Mst. Sitraniya Devi - Court Judgment

M.A. 705/2012 1 IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR MISCELLANEOUS APPEAL No.705 of 2012 SINGLE BENCH: JUSTICE A.K. SHRIVASTAVA Appellants :

1. Smt. Indrakali, Plaintiffs D/o Ramdhani Ram Bramhan, W/o Satya Prakash Tiwari, R/o Village Bagaiya, Tahsil Chitrangi, District Singrauli, (M.P.) 2. Smt. Chandrakala Devi D/o Ramdhani Ram Bramhan, W/o Radhakrishan Tiwari, Occupation House Work, R/o Village Birhganw, District Snbhadra (U.P.) 3. Smt. Sushila Devi, D/o Ramdhani Ram Bramhan, W/o Rambhuwan Dwivedi, Occupation House Work, R/o. Village Solang, Tahsil & District Singrauli (M.P.) Versus Respondents :

1. Mst. Sitraniya Devi, Defendants W/o Ramdhani Ram Bramhan, Occupation House Work, R/o Village Bagaiya, Tahsil Chitrangi, District Singrauli, (M.P.) 2. Smt. Shyama Devi, W/o Suresh Kumar Dwivedi, Occupation House Work, R/o Village Padri, Tahsil & District Singrauli, (M.P.) 3. Smt. Shanti Devi, W/o Surendra Kumar Chaturvedi, R/o Village Bagiya, M.A. 705/2012 2 At present Village near Pajreh Petrol Pump in the House of Gorelal Sahu, Thana Morwa, District Singrauli (M.P.) 4. Surendra Kumar Chaturvedi, S/o Ramrangile Chaturvedi, R/o Village Bagiya, At present Village near Pajreh Petrol Pump in the House of Gorelal Sahu, Thana Morwa, District Singrauli (M.P.) 5. State of Madhya Pradesh, Through the Collector, Singrauli, (M.P.) --------------------------------------------------------------------------------------- Appellants - Shri A.K. Singh, Advocate Respondents no.1 to 4 - Shri D.N. Shukla, Advocate. Respondent no.5/State Shri Pramod Chaurasiya, P.L. --------------------------------------------------------------------------------------- ORDER

(11/09/2012) Feeling aggrieved by the order dated 30.1.2012 passed by learned Additional District Judge, Singrauli in Civil Suit No.10- A/2011 whereby the application of temporary injunction filed on behalf of the plaintiffs/appellants has been rejected, this appeal has been filed under Order 43 Rule 1(r) CPC.

2. The facts necessary for the disposal of this appeal are that plaintiffs who are the daughters of first defendant Mst. Sitraniya have filed the present suit for a declaration that they are having 1/6th share in the ancestral property and the first defendant is not having exclusive title upon the suit property and, therefore, the sale deed dated 17.10.2011 executed by her his null and void against the plaintiffs; the suit property be partitioned and a decree M.A. 705/2012 3 of separate possession be passed. A decree of injunction has also been sought against defendants no.1 and 4 i.e. Mst. Sitraniya and Surendra Kumar Chaturvedi that the first defendant may not alienate any part of the suit property without getting it partitioned to defendant no.4 or his wife defendant no.3 or to any other person and should not interfere in the possession.

3. In para 3 of the plaint it has been specifically pleaded that while executing a registered family settlement deed dated 8.11.1985 by Brahmaram, the suit land has been given to his son Ramdhani, Ramdhani's wife Sitraniya (defendant no.1), Chandan Kumari and grandson Trilokinath. Further it has been pleaded in the plaint that Ramdhani is having two wives and they are Sitraniya (defendant no.1) and Chandankumari (not arrayed as a party). It is also borne out from the pleadings that Trilokinath was born out of the wedlock of Ramdhani and Chandankumari. Since first defendant does not want to live along with Chandankumari (second wife of her husband Ramdhani) therefore, she started living separately but she is trying to alienate the suit property holding her to be the owner. Hence, the present suit has been filed.

4. An application for temporary injunction has also been filed on the same averments and it has been prayed that till the decision of the suit, the first defendant Mst. Sitraniya should not alienate any of the part of the suit land. M.A. 705/201”

5. The written-statement as stated by learned counsel for the parties is yet to be filed. Although a reply of temporary injunction application has been filed be defendants no.1 to 3. In para 10 of the reply it has been averred by them that at present they are not selling any part of the suit property. The other averments made in the plaintiff's application have been denied.

6. The learned Trial Court by passing the impugned order has rejected the application of plaintiffs. In this manner this appeal has been filed by them.

7. The contention of Shri Singh, learned counsel for the appellants is that plaintiffs are banking upon a registered family settlement deed dated 8.11.1985 and because the property in question is ancestral and was of their grandfather, therefore, they are having equal share in it in terms of Section 6 of the Amended Hindu Succession Act, 1956 and, therefore, in case the suit property is alienated by the first defendant, the plaintiffs shall suffer irreparable loss and, therefore, by allowing this appeal the impugned order be set aside and first defendant be restrained from alienating the suit property.

8. On the other hand, Shri Shukla, learned counsel appearing for the respondents argued in support of the impugned order and submitted that the suit itself is not maintainable for the simple reason that indeed the property in question was given to first defendant Sitraniya Devi by her father-in-law Brahmaram for M.A. 705/2012 5 maintenance although the document has been named as family settlement deed. Thus, Sitraniya after the death of Brahmaram has become the absolute owner of the suit property and, therefore, in the life time of mother, the daughters/plaintiffs have no right to file suit for partition. Hence, according to learned counsel, there is no prima facie case in favour of plaintiffs and therefore when there is no prima-facie case, learned Trail Court has rightly refused to grant temporary injunction and, therefore, this appeal be dismissed.

9. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed.

10. Whether a suit is maintainable or not, this question can be decided after the evidence is recorded at the time of passing of the judgment. However, at present there appears to be prima- facie case in favour of plaintiffs because categorically they have pleaded in para 3 of the plaint setting up their title in the suit property on the basis of registered family settlement deed dated 08.11.1985 . Indeed it is the deed of grant of maintenance given by Brahmaram to her daughter-in-law Sitraniya or it is a family settlement deed, it is yet to be decided by the learned Trial Court and, therefore, I am of the view that serious questions of fact and law have been raised by the plaintiffs which require determination and, therefore, plaintiffs are having prima facie case in their favour. M.A. 705/201”

11. The present suit has been filed for declaration of their rights by the plaintiffs in the suit property and further for partition and separate possession and, therefore, in case first defendant alienates the property in question, certainly the plaintiffs shall suffer irreparable loss. In reply to the temporary injunction application para 10, it has been specifically averred by the defendants that at present they are not alienating any part of the suit property. I find much substance in the submission of Shri Shukla, learned counsel for the respondents that there cannot be any temporary injunction in regard to that part of disputed property which has already been sold prior to filing of the suit by defendant no.1. Since prima facie case has been made out by the plaintiffs and further on going through para 10 of the reply of defendants against plaintiffs' application for issuance of temporary injunction, it is gathered that defendants are not alienating the suit property even otherwise if it is sold the plaintiffs shall suffer irreparable loss, therefore, I am of the view that till the decision of the suit, defendant no.1 is hereby restrained from alienating any other more property in question. It is further made clear that if in future defendant no.1 is of the view to sell any part of the property in question, she may file necessary application to the Court below which shall be decided absolutely on the basis of the merit of that application independently by learned Trial Court. Further it is made clear that this Court has M.A. 705/2012 7 not at all expressed any opinion and has also not given any finding whether if such an application is filed it is to be allowed or not and the learned Trial Court shall be absolutely free to decide the application.

12. Resultantly, this appeal succeeds and is hereby allowed. The impugned order is hereby set aside and the temporary injunction application of plaintiffs is hereby allowed to the extent that respondent no.1/defendant no.1 is hereby restrained from alienating the suit property. No costs. (A.K. Shrivastava) Judge rao