Read Order: TRYAMBAK NAMDEV MALI AND ORS Vs. SMT. JIJABAI BHATU SONAR AND ORS. 

LE Correspondent

Aurangabad, June 16, 2022: While clarifying that the petitioners claiming through a purchaser cannot be allowed to obstruct the execution of a decree, the Aurangabad Bench of the Bombay High Court has dismissed a petition  moved by the petitioners assailing the common order whereby their application for seeking temporary injunction against the respondents was rejected.

By placing reliance on the judgment of the Top Court in Hanmandas Ramdayal and others Vs. Vallabhdas Shankardas, the Single-Judge Bench of Justice Mangesh S. Patil said, “The judgment of this Court in the matter of Hanmandas Ramdayal (supra) and particularly the decisions of the Privy Council relied upon in that judgment clearly recognizes the long standing principle of Hindu Law wherein the non alienating coparceners have a right to file a suit for possession against the purchaser who has purchased an undivided share of an alienating coparcener.”

In this case, one Bhatu was the husband of the first respondent-Jijabai and father of the other four respondents. Their ancestral family had properties. Subsequently, Bhatu executed a sale deed through which he sold the land bearing number Gat No. 163/1 to the original petitioner-Tryambak’s father,Namdeo. Tryambak died while the petition was lying pending and it was being carried forward by his legal representatives. Thereafter, the first four respondents instituted civil suit seeking a declaration that they were the co-owners of the property and for impleading Bhatu as the first defendant in the said suit.  The suit was decreed. The petitioners objected to the execution of the decree by preferring an application under  OrderXXI Rule 97 read with Section 151 of the Code of Civil Procedure . The same was rejected and the review petition was also dismissed but it was stated that the sale-deed  executed by Bhatu in favor of Namdeo was declared to be non-binding on the share of the respondents-one to four.

In pursuance of the same, the petitioners filed a suit for general partition against the respondents in respect of all the properties of the joint family of Bhatu.  In the backdrop of such state of affairs, the petitioners claimed temporary injunction restraining the respondents from executing the decree. Whereas, the respondents prayed for issuance of possession warrant. By the common order challenged in this Writ Petition the petitioners’ application had been rejected and the respondents’ application for possession warrant had been allowed.

Noting the concept of a Hindu Joint Family property, the Court stated that a share of a member of the joint family would be ever fluctuating. Bhatu had sold the land Gat No. 163/1 to Namdeo by the sale-deed.The petitioners in their suit for general partition arrayed the respondents claiming them to be Bhatu’s wife (Jijabai) and their daughters and even a son. The share of Bhatu in the circumstances on the date of the sale-deed would depend upon the fact as to which of these children were born and even conceived on the date of the sale-deed,added the Court.

The  Bench also held that though prima facie they would be entitled to have a proportionate share to which Bhatu would be entitled to, but it was premature to conclude that the entire land Gat No. 163/1 would have fallen to his share and to allow the petitioners to retain it. Rather it would cause a serious prejudice and injustice to the respondents inasmuch as in spite of that land being a joint property they would be deprived of having its possession and benefit, clarified the Court.

In view of the aforesaid observations, the Court concluded by observing that in view of the peculiar facts and circumstances of the matter in hand, the petitioners who claim through a purchaser cannot be allowed to obstruct the execution and should wait for a decree for partition to be passed and executed. Thus in view of the provision of Section 41 (a) and (b) of the Specific Relief Act, 1963, no injunction was granted to the execution of the decree. Accordingly, the writ petition was dismissed. 

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