SWETA LAXMAN SHETGAONCAR Vs. RATNAKAR SAHADEV SHETGAONCAR

JUDGEMENT

(1.) HEARD Mr. Sarvesh Kamat Malyenkar, learned Counsel appearing for the appellant, Shri S. G. Dessai, learned Senior Counsel appearing for respondent nos. 1 to 3 and Shri D. Shirodkar, learned Counsel appearing for respondent no.4. The learned Counsel appearing for the appellant has essentially assailed the impugned order on the ground that the appellant had made out a prima facie case which would entitled him for an injunction as prayed for in the suit. The learned Counsel further pointed out that the injunction which was sought by the appellant was to the effect that the respondents should not create any third party right during the pendency of the suit. The learned Counsel further submitted that there is no reason for not granting such an injunction as according to him in any event any transfer after the filing of the suit will be hit by lis pendent under Section 52 of the Transfer of Property Act. The learned Counsel as such pointed out that the learned Judge has erroneously exercised its jurisdiction in dismissing the application which deserves to be quashed and set aside.

(2.) ON the other hand, Shri S. G. Dessai, learned Senior Counsel appearing for respondent nos. 1 to 3 has supported the impugned order. The learned Senior Counsel submitted that the whole exercise on the part of the appellant is fraudulent endeavour indulged by the appellant in order to deprive the respondents of their legal right in the suit property. The learned Counsel further pointed out that the inventory proceedings initiated upon the death of the common ancestor have been legally disposed of in accordance with law and as such the question of challenging the allotment in the inventory proceedings would not arise. The learned Counsel further submitted that the suit filed by the appellant is a collusive proceedings as according to him a substantial amount was paid to an interested parties of the inventory proceedings who has not been made party to the above suit. The learned Counsel further disputed that the appellant is the legal wedded wife of any of the interested party in the inventory proceedings No.4/2004. With regard to the contention of the learned Counsel appearing for the appellant to the effect that any future transaction would be hit by the provisions of Section 52 of the Transfer of Property Act, the learned Senior Counsel did not dispute on that aspect but in any event he pointed out that the respondents are entitled to deal with the suit property in the manner they so desired. Having heard the learned Counsel for the parties and on perusal of records, I find that the learned Judge after appreciating the evidence produced by the parties has rightly exercised the discretion in refusing the injunction as prayed for by the appellant. The learned Judge on the basis of material on record has come to the conclusion that the appellant has failed to establish any prima facie case in her favour. Apart from that, considering the submissions advanced by both the Counsel, I find that there are contagious issues raised which will have to be adjudicated only after the trial in the suit. At this stage, it is not possible to come to any plausible conclusion with regard to such contention. The learned Counsel for the appellant was unable to point out any material adduced by the appellant which has not been considered by the learned Judge. The learned Judge prima facie found that the parties had acted upon the final judgment passed in the inventory proceedings and as such the appellant has failed to establish any prima facie case in her favour. Prima facie no case is made out to impugn the judgment in the inventory proceedings. As such, I find that no interference is called for in the impugned order but however with regard to the contention of learned Counsel appearing for the appellant that any future transaction would be hit by the provisions of Section 52 of the Transfer of Property Act, there is no doubt that the appellant would be entitled to claim such protection if she so entitled in accordance with law. As such, the appeal stands dismissed with no order as to costs.