Virlkumar Natvarlal Patel Vs Kapilaben Manilal Jivanbhai and ors - Citation 747113 - Court Judgment

Judgment:
ORDER

M.R. Shah, J.

1. ADMIT. Mr. A.B. Munshi, learned advocate waives the service of notice of admission on behalf of the respondent No. 1, who is the main contesting party. Though served nobody appears on behalf of the respondent Nos. 3 and 4. The respondent Nos. 2 and 5 have refused to accept the notice. However, the main contesting party is respondent No. 1 herein - original plaintiff.

2. With the consent of the learned advocates appearing on behalf of the respective parties, present Appeal From Order is taken up for final hearing today.

3. Heard Mr. Dhaval Vyas, learned advocate appearing on behalf of the appellant -original defendant No. 5 and Mr. P.C. Kavina, learned Senior Advocate with Mr. A.B. Munshi, learned advocate appearing on behalf of the respondent No. 1 herein - original plaintiff at length and perused the impugned order as well as Paper-Book supplied by the learned advocates.

4. Present Appeal From Order under Order 43, Rule 1 of the Code of Civil Procedure has been preferred by the appellant -original defendant No. 5 to quash and set aside the impugned order dated 1/2/2008 passed by the learned 10th Additional Senior Civil Judge, Surat below application Ex.5 in Special Civil Suit No. 85 of 2007 by which the learned trial court has allowed the application Ex.5 submitted by the respondent No. l herein - original plaintiff, restraining the appellant herein - defendant No. 5 from transferring and/or changing the disputed property till final disposal of the suit.

5. The respondent No. 1 herein - original plaintiff (hereinafter referred to as 'the plaintiff') has instituted Special Civil Suit No. 85 of 2007 in the Court of learned Senior Civil Judge, Surat against the defendants for declaration and permanent injunction and for cancellation of the sale deed in favour of the appellant herein - original defendant No. 5. The plaintiff is the daughter of one Manilal Jivanbhai who has filed the suit against her father - Manilal Jivanbhai - original defendant No. 1 and her two brothers namely Rameshbhai Manilal Patel and Rajubhai Manilal Patel - the original defendant Nos. 2 and 3 herein and against her sister - Pushpaben Manilal Patel - original defendant No. 4. The appellant - original defendant No. 5 is the purchaser of the disputed property who has purchased the same initially from the defendant Nos. 2 and 3 i.e. brothers of the original plaintiff and sons of the original defendant No. 1. It is the case on behalf of the plaintiff in the suit that the father of the plaintiff i.e. defendant No. 1 -Manilal Jivanbhai Patel got disputed land in question by way of partition from his father - Jivanbhai Kalidas Patel in the year 1959 and his name was mutated in the record of rights vide Entry No. 1411, That the defendant No. 1 - father gave two Acres of land from the above property bearing Revenue Survey Nos. 1106 and 1109 of Block No. 1046 situated at village Variyav, District; Surat to her brothers i.e. defendant Nos. 2 and 3 for their livelihood and for the purpose of their maintenance. That the defendant No. 1 had not transferred the rights, title and interest in the property to the defendant Nos. 2 and 3 and the land was given only for the purpose of their maintenance and livelihood and in spite of that they have transferred/sold the disputed lands to the defendant No. 5. It has been averred in the plaint that the defendant Nos. 2 and 3 have no right to transfer the suit property as they were not the absolute owners of suit property and according to the plaintiff, as per the amendment in the Hindu Succession Act amending Section 6 of the said Act, she is having her share in the disputed property and therefore, she has filed the aforesaid suit for a declaration to the effect that the defendant Nos. 2 and 3 have no right to transfer the ancestral property to the defendant No. 5 and also for a declaration that she has got share in the disputed land in question. In the said suit, the plaintiff submitted application Ex.5 for interim injunction restraining the defendant No. 5 (appellant herein) front transferring the disputed property. It was contended on behalf of the original plaintiff that as per the amendment in Section 6 of the Hindu Succession Act, the plaintiff being a daughter has a share in the ancestral property and, therefore, any transaction against the interest of the plaintiff is null and void. Thus, it appears that the original plaintiff has heavily relied upon the amendment to Section 6 of the Hindu Succession Act. On the other hand it was the case on behalf of the appellant - original defendant No. 5 that as such the sale deed executed by the defendant Nos. 2 and 3 in favour of the original plaintiff was challenged by the defendant No. 1 - father by way of Civil Suit No. 207 of 2004 and there was a compromise and consent decree came to be passed and the sale in favour of the defendant No. 5 came to be confirmed vide consent decree dated 22/12/2004. It was also submitted by the appellant - original defendant No. 5 that on the very day on which the consent decree came to be passed i.e. 22/12/2004, both the daughters i.e. plaintiff and the defendant No. 4 relinquished their rights in the property in question by a deed dated 22/12/2004 and the said relinquishment deed was signed by all the parties. Therefore, it was submitted that even considering the amendment to Section 6 to the Hindu Succession Act, as the sale in favour of the defendant No. 5 was prior to 20/12/2004, transaction/sale in favour of the defendant No. 5 is not affected and, therefore, it was requested to dismiss the application Ex.5.

6. The learned trial court by the impugned order dated 1/2/2008 has allowed the application Ex.5 granting interim injunction as prayed for relying upon amendment to Section 6 of the Hindu Succession Act and by submitting that the original plaintiff has share in the, ancestral property and sale in favour of the defendant No. 5 is against the interest of the plaintiff and without her consent. Being aggrieved by and dissatisfied with the impugned order passed by the learned trial court below application Ex.5, the appellant herein - original defendant No. 5 has preferred present Appeal From Order with Civil Application for interim relief therein.

7. Mr. Dhaval D. Vyas, learned/advocate appearing on behalf of the appellant- original defendant No. 5 has vehemently submitted that the learned trial court has materially erred in granting the interim injunction as prayed for. It is submitted that the learned trial court has not properly appreciated and considered the Proviso to amended Section 6 of the Hindu Succession Act. It is submitted that as per Proviso to Section 6 of the Hindu Succession Act, the amendment to Section 6 shall not affect the transaction prior to Amendment Act 2005 i.e. 20/12/2004. It is submitted that admittedly the sale in favour of the defendant No. 5 is of dated3/3/2004 and therefore, even considering Section 6 of the Hindu Succession Act (Amendment Act 2005), the same shall not affect the transaction in favour of the defendant No. 5 and therefore, the learned trial court has materially erred in granting injunction as prayed for. It is submitted that as such the learned trial court has not considered Proviso to Section 6 of the Hindu Succession Act (Amendment Act 2005). It is submitted that even otherwise the original plaintiff and the defendant No. 4, both the sisters have relinquished their rights in the disputed land in question by deed dated 22/12/2004 which was not only signed by the plaintiff but it was signed by her husband also. It is submitted that the said relinquishment deed is dated 22/12/2004 i.e. on the day on which there was a consent decree in the Civil Suit filed by the defendant No. l. Therefore, it is submitted that the learned trial court has committed an error in granting the injunction as prayed for.

By making above submissions it is requested to allow present Appeal From Order.

8. Present Appeal From Order is opposed by Mr. Kavina, learned Senior Advocate appearing on behalf of the original plaintiff. It is submitted that the sale deed in favour of the defendant No. 5 dated 3/3/2004 was challenged by the defendant No. 1 - father by way of Special Civil Suit No. 207 of 2004 which was filed on 8/9/2004 and the defendant No. 1 - father prayed for cancellation of the sale deed executed by the defendant Nos. 1 and 2 and by way of consent terms/decree dated 22/12/2004, sale in favour of the defendant No. 5 came to be confirmed only on 22/12/2004 i.e. after relevant date 20/12/2004. Therefore, it is submitted that when the title in favour of the defendant No. 5 came to be cleared and/or made perfect only on 22/12/2004, Proviso to Section 6 of the Hindu Sucdesision Act (Amendment Act 2005) will not come in the way of the plaintiff and the plaintiff has a share in the disputed land in question and other ancestral property. It is submitted that therefore, the learned trial court has rightly granted injunction as prayed for, as the sale in favour of the defendant No. 5executed by the defendant Nos. l and 2 is without consent of the plaintiff who has share in the disputed land in question. It is further submitted that as such the so-called deed of relinquishment cannot be accepted as it is the case on behalf of the plaintiff that the same has been obtained by the defendant Nos. 2 and 3 on the blank paper and the signature / thumb impression of the plaintiff has been misused. It is submitted that the aforesaid aspects are required to be considered in detail at the time of trial and therefore, considering the facts and circumstances of the case more particularly Section 6 of the Hindu Succession Act (Amendment Act 2005), the learned trial court has rightly granted injunction which in the facts and circumstances of the case is not required to be interfered with by this Court.

By making above submissions it is requested to dismiss present Appeal From Order.

9. Heard the learned advocates appearing on behalf of the respective parties.

10. Few dates and chronological events which are relevant for determination of the present Appeal From Order are as under:

The defendant Nos. 2 and 3 (bothers of the plaintiff) executed sale registered sale deed in favour of the plaintiff on 3/3/2004. The original defendant No. 1 - father of the original plaintiff and the defendant Nos. 2 to 4 instituted Special Civil Suit No. 207 of 1984 on 8/9/2004 for canpellation of the sale deed executed in favour of the plaintiff. On 22/12/2004 consent terms were arrived at and consent decree came to be passed confirming the sale by the defendant Nos. 2 and 3 in favour of defendant No. 5. On the very day i.e. 22/12/2004, there is a relinquishment deed by the original plaintiff and the original defendant No. 4 (sisters) relinquishing their right from the disputed land in question. It is to be noted that the said relinquishment deed is not only signed by the sisters but has been signed by the husband of the plaintiff also. It is required to be noted that the said relinquishment deed is dated 22/12/2004 i.e. the day on which there was a consent terms between the original defendant No. 1 and defendant Nos. 2 and 3 and consent decree in the aforesaid Special Civil Suit No. 207 of 2004 confirming the sale in favour of the defendant No. 5.

11. In the backdrop of the aforesaid facts, present Appeal From Order is required to be considered.

12. The original plaintiff has based her case solely on Section 6 of the Hindu Succession Act (Amendment Act 2005). Section 6 of the Hindu Succession Act as amended by the Act of 2005 reads as under:

Section 6:- Devolution of interest in coparcenary property:

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint family governed by the Mitakshara Law, the daughter or a petitioner coparcener shall:

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener;

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of Sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or other law for the time being in force in, as property capable of being disposed of by her testamentary disposition.

(3) Where a Hindu dies after commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu Family governed by the Mitakshara Law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and:

(a) The daughter is allotted the same share as is allotted to a son;

(b) The share of the predeceased daughter, as they would have got had they been alive at the time of partition shall be allotted to the surviving child of such predeceased son or of such predeceased daughter; and

(c) The share of the predeceased child of a predeceased son or of a predeceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or a predeceased daughter, as the case may be,

Explanation: For the purpose of this subsection, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu Law, of such son, grandson or great-grandson to discharge any such debt.

Provided that in the case of any debt contracted before commencement of the Hindu Succession (Amendment) Act, 2005 nothing contained in this sub-section shall affect,

(a) the right of any creditor to proceed against the son, grandson or great-grandson as the case may be; or

(b) any alienation made in respect of or in sanctification of any, such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same mariner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation: For the purpose of Clause (a), the expression 'son', 'griandson', or 'great-grandson' shall be deemed to refer to the sonlgrandson or great-grandson, as the case may be who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected the 20th day of December, 2004.

Explanation :- For the purpose of this section, 'Partition' means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a Court.

13. Relying upon Section 6 of the Hindu Succession Act as amended by Amendment Act of 2005, the original plaintiff has claimed that she has a share/right in the ancestral property i.e. disputed land in question. However, considering Proviso to Section 6 of the Hindu Succession Act as amended by Hindu Succession (Amendment) Act, 2005 it shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. Thus, any transaction, disposition or alienation of the ancestral property / coparcenary property prior to 20th December, 2004 has been saved. It can be said that the Hindu Succession (Amendment) Act, 2005 is prospective in nature and as per the Proviso it shall not affect or invalidate any disposition or alienation of the property which had taken place before 20th December, 2004. In the present case, admittedly the property in question has been transferred / alienated / sold by the defendant Nos. 2 and 3 in favour of the defendant No. 5 by registered sale deed dated 3/3/2004 i.e. much prior to the relevant date i.e. 20/ 12/2004. Mr. Kavina, learned Senior Advocate appearing on behalf of the original plaintiff is not disputing that the sale deed in favour of the plaintiff is dated 3/3/2004 i.e. prior to the relevant date 20/12/2004. However, it is the contention on behalf of the plaintiff that in view of filing of the suit by the original defendant No. 1 - father, being Special Civil Suit No. 207 of 2004 on 8/9/2004 for cancellation of the aforesaid sale deed executed by the defendant Nos. 2 and 3 - brothers, in favour of the defendant No. 5, there was no valid title in favour of the defendant No. 5 and in view of the consent decree dated.22/12/2004, the title in favour of the defendant No. 5 became clear and marketable only on and from 22/12/2004 i.e. after the relevant date 22/12/2004 and therefore, Proviso to Section 6 of the Hindu Succession Act as amended by the Act of 2005, shall not be applicable and the plaintiff has a right/share in the said ancestral property. The aforesaid contention seems to be attractive but has no substance at all. By consent terms/decree dated 22/12/2004 the transaction/sale deed in favour of the defendant No. 5 came to be confirmed by the defendant No. 1 i.e. father and the same would relate back to the original sale deed dated3/3/2004. Therefore, merely because the consent terms entered into between the original defendant Nos. l and defendant Nos. 2 and 3 confirming the sale in favour of the defendant Nos. 5 is dated 22/12/2004 it cannot be said that the title in favour of the defendant No. 5 has become clear and marketable only on and from 22/12/2004. Even on fair reading of amended Section 6 of the Hindu Succession Act any disposition or alienation of the ancestral property which had taken place before 20/12/2004 shall not affect or invalidate such disposition in view of amendment to Section 6 of the Hindu Succession Act. Therefore, what is stated is disposition or alienation and not with respect to clear and marketable title. Even otherwise, as stated above, in view of consent terms/decree Dt/.22/12/2004 confirming the sale by the defendant No. 1 confirming sale deed Dated 3/3/2004, it will relate back to the original sale deed dated3/3/2004. Therefore, prima facie it appears that the sale deed dated3/3/2004 in favour of the defendant No. 5 cannot be declared invalidate in view of the Proviso to Section 6 of the Hindu Succession Act. In other words, amendment to Section 6 of the Hindu Succession Act shall not affect the sale deed dated3/3/2004 executed in favour of the defendant No. 5, as the same is prior to relevant date Dated 20/12/2004. It appears that the learned trial court has not considered Proviso to Section 6 of the Hindu Succession Act as amended by Amendment Act of 2005.

14. Even otherwise, it appears that there is relinquishment deed executed by the original plaintiff and original defendant No. 4 (both the sisters) dated 22/12/2004 relinquishing their right from the land in question. The said relinquishment deed dated 22/12/2004 is also signed by the husband of the original plaintiff. It is required to be noted at this stage that the relinquishment deed is executed simultaneously on the consent terms being arrived at between the defendant No. 1 and defendant Nos. 2 and 3, on the basis of which consent decree came to be passed in Civil Suit No. 207 of 2004 on 22/12/2004. Under the circumstances, there is no question of doubting the relinquishment deed dated 22/12/2004. Under the circumstances and in view of the above, the learned trial court has materially erred in granting injunction as prayed for which deserves to be quashed and set aside.

15. For the reasons stated above, present Appeal From Order succeeds. The impugned order dated 1/2/2008 passed by the learned 10th Additional Senior Civil Judge, Surat below application Ex.5 in Special Civil Suit No. 85 of 2007 is hereby quashed and set aside. However, it is observed that the learned trial court to decide and dispose of the suit in accordance with law and on merits and the observations made by this Court in the present order are to be treated as tentative while deciding application Ex.5 only. The Appeal From Order is accordingly allowed. In view of disposal of the Appeal From Order, no order in the Civil Application and the Civil Application is also disposed of accordingly. No costs.

Subject	Civil;Family
Court	Gujarat High Court
Decided On	Aug-10-2009
Case Number	A.F.O. No. 33 of 2008
Judge	M.R. Shah, J.
Reported in	AIR2009Guj184
Acts	Hindu Succession Act, 1956 - Sections 6; Hindu Succession (Amendment) Act, 2005; Registration Act, 1908; Code of Civil Procedure (CPC) - Order 43, Rule 1; Mitakshara Law; Hindu Law
Appellant	Virlkumar Natvarlal Patel
Respondent	Kapilaben Manilal Jivanbhai and ors.
Appellant Advocate	Dhaval D. Vyas, Adv.
Respondent Advocate	P.C. Kavina, Sr. Counsel and; A.B. Munshi, Adv.
Disposition	Appeal allowed

Virlkumar Natvarlal Patel Vs. Kapilaben Manilal Jivanbhai and ors. - Court Judgment