JASHVANTLAL JJIVANLAL Vs. RAVAL HARILAL JIVANLAL

JUDGEMENT

(1.) CHALLENGE in the present appeal under Order 43 Rule 1(r) read with section 104 of the Code of Civil Procedure, 1908 (for short "the Code") is the order dated 9.5.2012 passed by the 7 th Additional Senior Civil Judge, Ahmedabad (Rural) in Special Civil Suit No.775 of 2010, wherein the injunction application preferred by the appellants under the provisions of Order 39 Rule 1 and 2 of the Code came to be rejected praying to restrain the respondents ­ defendants from taking possession of the land bearing survey No.2076/3 and 2086/2 (now it will be referred to as "suit land") situated in Sanand and further prayed not to interfere with the cultivation activities that the appellants ­ plaintiffs are doing in the suit land and further not to transfer the suit land to third party pending final disposal of the suit.

(2.) WITH the consent of learned advocates appearing for the parties, the matter is taken up for final hearing.

(3.) IT is submitted by learned advocate Mr. Tejas P. Satta for the appellants that the appellants are in possession of the suit land since long and the suit is filed for partition by metes and bounds and separate possession as per share as all the properties including suit land are ancestral property. Still, however, deceased Jivanlal gifted the suit land to the wife of deceased Harilal Jivanlal in the year 1942. According to the learned advocate appearing on behalf of the appellants, the said gift deed, though it is registered, is not legal gift deed in light of provisions contained in section 122 of Transfer of Property Act, as it is with consideration and in view of some resolution made to the effect that one Pushpaben (mother of respondent Nos.1/1 and 1/2) would marry with the son of Donor i.e. deceased Jivanlal and in lieu thereof, the suit land was gifted to said Pushpaben by deceased Jivanlal. In support of his submission, learned advocate appearing on behalf of the appellants has pressed into service the decision rendered in case of Thimmaiah and others Vs. Ningamma and another reported in 2000(7) SCC 409 so as to demonstrate that deceased Jivanlal had made gift of the coparcenary property without consent of his two sons, namely Jaswantbhai and Kantibhai and therefore, suit land is subject to partition.