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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 143 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/APPEAL FROM ORDER NO. 143 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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BHAVINI D/O JITENDRABHAI TRIBHOVANDASSURATI (PARMAR) & ANR.
Versus
JAYVEER ENTERPRISES PVT. LTD. & ORS.
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Appearance:
AMRITA A PATEL(7534) for the Appellant(s) No. 1,2
MR.D K.PUJ(3836) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 03/07/2025
ORAL JUDGMENT
1. The present Appeal from Order is filed under Order 43
rule 1(r) of CPC. challenging the judgment and order dated
19.01.2024 passed by the Additional Senior Civil Judge, Surat
below Exh. 5 in Special Civil Suit No. 252 of 2018.
2.0 Learned advocate Ms. Amrita A. Patel for the appellants
would submit that the appellants herein are original
defendants, who filed suit against the respondents herein
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seeking declaration, injunction and partition of the suit
property, wherein an injunction application came to be filed,
which was erroneously rejected by the trial Court. She would
further submit that the appellants are daughter and wife of
respondent No.15 respectively, whereas respondent No.11,
happens to be grand-mother and mother-in-law respectively.
Respondent No.10 happens to be mother of Respondent
No.11. It is submitted that the suit property are ancestral
property wherein right title, interest of appellants/ plaintiffs
would survive by way of succession, they are entitled for
their 1/45 shares, thereby injunction sought for, which ought
to have been granted.
2.1 Learned advocate Ms. Patel would further submit that
sale- deed executed in favour of respondents No. 1 to 3 in
the year 2016 by defendant No.11 along with other legal
heirs, who are also joined as defendants, is as such null and
void, which was challenged in the suit. She would further
submit that the trial Court has erroneously observed that
whether the plaintiffs have a right title interest in the suit
property is a subject matter of evidence and no injunction as
prayed for can be granted.
2.2 Learned advocate Ms. Patel would further submit that
the trial Court has not properly considered the various
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provisions of Hindu Succession Act, which resulted into
miscarriage of justice. So, marking the above submission,
learned advocate Ms. Patel would request to this Court to
allow the present Appeal from Order.
3. Per contra, learned advocate Mr. D.K. Puj for
respondent No.1 would submit that there is no error much
less any gross error of law committed by the trial Court while
rejecting the injunction application filed by the plaintiffs. He
would further submit that this Court having limited
jurisdiction to interfere with the order impugned in the
present appeal while exercising its power under Order 43
rule 1(r) of CPC.
3.1 Learned advocate Mr. Puj would further submit that the
sale deed in question executed in the year 2016, whereas the
suit in question came to be filed in the year 2018, thereby, no
error can be found in the order passed by the trial Court and
as such no injunction as prayed for can be granted. He would
further submit that after execution of sale-deed, during the
pendency of the suit, there are subsequent development
taken place, inasmuch as the suit land is already developed
by the defendant No.1 and there is already existing structure
on the suit land and due to such reason also no injunction
can be granted as prayed for.
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3.2 Learned advocate Mr. Puj would further submit that as
such the plaintiffs have no right to file suit as father and
husband of plaintiffs is alive and joined as defendant No.15
and when grand-mother and mother-in-law of plaintiffs
respectively is also alive, plaintiffs have no right title interest
in the suit property.
3.3 Learned advocate Mr. Puj would further submit that as
plaintiffs have not any right to suit and as such no cause of
action arose to file such suit, defendants have preferred an
application under Order 7 rule 11 of CPC, which is now
pending for its adjudication before this Court in Civil
Revision Application under Section 115 of CPC.
3.4 So, making the above submission, learned advocate Mr.
Puj would request this Court to dismiss the present Appeal
from Order.
Point for determination
Whether the order impugned in the present appeal is
erroneous, perverse and contrary to the provisions of law or
not?
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ANALYSIS
4. At the outset, it is required to be observed that the
present Appeal from Order having filed under Order 43 rule
1(r) of CPC on principle and not on fact, it is well settled legal
position of law that this Court cannot lightly interfered with
the discretionary order passed by the trial Court while
exercising its power under Order 39 of CPC, unless it has
been shown by the appellants that the order impugned in
the present appeal is erroneous, perverse, arbitrary and or
contrary to the settled principle of law, otherwise no
interference can be made by this Court in the present
appeal. [See : (i) Wander Ltd. and another Vs. Antox India P.
Ltd. reported in 1990 (supp) SCC 727, (ii) Ramakant
Ambalal Choksi Vs. Harish Ambalal Choksi and others
recorded in Civil Appeal No. 13001 of 2024 dated 22 nd
November, 2024 reported in 2024 SCC Online SC 3438].
5. Now adverting back to the facts of the case, it is remain
undisputed that plaintiffs during life time of their
predecessor i.e. defendant No.15 & 11 who happens to be
father and husband of plaintiffs and grand-mother and
mother-in-law of plaintiffs respectively have chosen to file
suit for partition and also sought declaration.
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6. It appears that due to disturb relationship between the
plaintiffs with defendant no.15 might be residing separately
and due to such reason, the suit in question was filed.
Nonetheless, fact remains that predecessor of plaintiffs i.e.
defendant No. 15, defendant no. 11 and her predecessor
defendant No.10 who happens to be grand-mother of
defendant No.15 are all alive at the time of filing of suit.
Further, defendant No.11 happens to be daughter of late
Chhaganbhai, who died on 18.03.1984 being one of co-sharer
of suit property along with her mother defendant No.10 and
other branch of legal heirs of her father, entitled to sell suit
property in question as properties received by them on
demise of late Chhaganbhai would become their own
property.
7. Prima-facie, plain reading of Section 8 read with Section
4 of the Hindu Succession Act, 1956, would indicate that on
demise of Hindu dying intestate then his class-I legal heirs
would inherit such property by way of inheritance. As per
settled legal position of law in such a situation, class-I legal
heirs of Hindu dying intestate become absolute owner of
property left by him after his/her predecessor.
8. As such, this issue is no longer remain res-integra
having already answered by this Hon'ble Apex Court in the
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case of Commissioner Of Wealth-Tax, Kanpur versus
Chander Sen reported in AIR 1987 SC 1752 : 1986 (3) SCC
567, wherein in it has been held as under:-
“[10] The question here, is, whether the income or asset which a son
inherits from his father when separated by partition the same should be
assessed as income of the Hindu undivided family of son or his
individual income. There is no dispute among the commentators on
Hindu Law nor in the decisions of the Court that under the Hindu Law
as it is, the son would inherit the same as karta of his own family. But
the question, is, what is the effect of S. 8 of the Hindu Succession Act,
1956? The Hindu Succession Act, 1956 lays down the general rules of
succession in the case of males. The first rule is that the property of a
male Hindu dying intestate shall devolve according to the provisions of
Chapter II and Class I of the Schedule provides that if there is a male
heir of Class I then upon the heirs mentioned in Class I of the
Schedule. Class I of the Schedule reads as follows :
"Son; daughter; widow; mother; son of a predeceased son;
daughter of, a predeceased son; son of a predeceased
daughter, daughter of a predeceased daughter; widow of a pre-
deceased son; son of a predeceased son of a pre-deceased
son; daughter of a predeceased son of a pre-deceased son;
widow of a pre-deceased son of a predeceased son."
[11] The heirs-mentioned in Class I of the Schedule are son,
daughter etc. including the son of a predeceased son but does not
include specifically the grandson, being a son of a son living.
Therefore, the short question, is, 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?
[14] 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
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or not, his sonshould have a share in that and it will become part of the
joint Hindu 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 S. 8 of the Succession Act, 1956 and if so, how? The basic
argument is that S. 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 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
S. 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 Courthas
taken the contrary view.
[21] It is necessary to bear in mind the preamble to the Hindu
Succession Act, 1956. The preamble states that it was an Act to
amend and codify the law relating to intestate succession among
Hindus.
[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, ifaccepted, would mean that though
the son of a predeceased son and not the son of a son who is intended
to he 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 Act
would be HUF in his hand vis-à-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-à-vis
son and female heirs with respect to whom no such concept could be
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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.
[23] Before we conclude we may state that we have noted the
observations of Mulla's Commentary on Hindu Law, 15th Edn. dealing
with Section 6 of the Hindu Succession Act at pp. 924- 26 as well as
Mayne's on Hindu Law, 12th Edn., pp. 918-19.
[24] The express words of Section 8 of the Hindu Succession Act,
1956 cannot be ignored and must prevail. The preamble to the Act
reiterates that the Act is, inter alia, to “amend” the law, with that
background the express language which excludes son's son but
includes son of a predeceased son cannot be ignored.
[25] In the aforesaid light the views expressed by the Allahabad High
Court, the Madras High Court, Madhya Pradesh High Court and the
Andhra Pradesh High Court, appear to us to be correct. With respect
we are unable to agree with the views of the Gujarat High Court noted
hereinbefore.”
(emphasis supplied)
9. Furthermore, the suit is filed for seeking partition of
Hindu undivided family property at the instance of daughter
of defendant no. 15 and grand-daughter of defendant No.11
respectively. It appears from the pleading of the parties that
defendant no.15 happens to be father of plaintiff no.1, has
not sought for any partition and also having any objection as
regards the execution of sale-deed by his mother i.e.
defendant no.11. When predecessor of plaintiff no.1 i.e. her
father and grandmother and so also mother of her
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grandmother are alive, no right accrued in favour of plaintiff
no.1 to claim such partition. The plaintiff no.2 happens to be
wife of defendant no.15 and daughter-in-law of defendant
no.11 would not have such right in property. The issue is no
longer remain res-integra as its covered by the decision of
the Division Bench of this Court in the case of AHER HAMIR
DUDA Vs. AHER DUDA ARJAN reported in 1977 GLR 1032,
wherein held thus:-
“[9] The right of the appellant, a coparcener, by birth to a share in
the ancestral property is not in dispute. Every coparcener is entitled to
a share on partition. His right to seek partition or to enforce partition is
also not denied. What is put against him is only this. That right which
he has, so far as the erstwhile Presidency of Bombay is concerned,
cannot be exercised or enforced without the consent of the father,
where the coparcenary consists of collaterals like uncles and others.
He cannot ask for severance of status without the father giving assent
thereto. Admittedly in this case the father of the appellant had not
given his assent and in fact he has been throughout contesting the
right of his son, the appellant, to enforce his right for partition. Mr. Vyas
invited our attention to the written statements to contend that both the
father and uncle of the appellant had pleaded that the father of the
appellant had separated from the rest of the family. That case was not
accepted by the first appellate or the second appellate Court. The
specific case of the plaintiff throughout has been that he is a member
of the undivided family and that he is entitled to ask for partition and
separate possession of his share. Findings of fact have been recorded
by the District Court and by the learned Single Judge that there was no
severance of status and that the coparcenary remained intact In other
words, the learned Single Judge and the first appellate Court rejected
the defence of the respondents that the father of the appellant had
separated himself from his father about forty years ago. That finding of
fact recorded by the first appellate Court and by the learned Single
Judge of this Court cannot be disturbed by us.”
(emphasis supplied)
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10. Thus, the conjoint reading of the ratio laid down by the
Hon'ble Apex Court and this Court in above referred cases, it
would be clear that defendant No.11 who happens to be
grand-mother and mother-in-law of plaintiffs would entitle
to execute sale-deed in relation to suit property inherited by
her father dying intestate. Further, when defendant No.15,
who happens to be father and husband of plaintiffs
respectively is still alive, then plaintiffs cannot sought any
injunction against defendant No.11 and other defendant
who are legal heirs of other branch of father of defendant
No.11.
11. In the light of the aforesaid, I do not find any error
committed by the trial Court while rejecting the impugned
application. I do not find any perversity in the order
impugned in the present appeal. So, this Court would not like
to interfere with the discretionary order passed by the trial
Court while exercising its power under Order 43 rule 1(r) of
CPC.
12. Before parting, it is made clear that any observation
either made by the trial Court in the impugned order or
made by this Court in the present order herein would not
come in the way of any of the parties to the suit proceedings
in future and in any pending litigation. The suit is required to
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be decided on its own merit as per the evidence coming on
record of the suit, the same shall be decided without being
influenced by such observations made by either trial court or
this Court in the present order.
13. In view of the above, the present Appeal from Order
lacks merit, requires to be dismissed which is hereby
dismissed. No order as to costs. Rule is discharged.
14. Civil Application would not survive and disposed of
accordingly.
(MAULIK J.SHELAT,J)
SALIM/
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