BABURAO SHIVPUTRA ERANDOLE Vs. KUMAR ADWAIT NIKHIL ERANDOLE

JUDGEMENT

(1.) Challenge in the present appeals is to the order dtd. 4/2/2022 passed by learned 3rd Joint Civil Judge Senior Division, Sangli allowing application at Exhibit-5 for grant of temporary injunction. By its order, the Trial Court has restrained the Defendants from creating third party rights or changing nature of the suit property during pendency of the suit.

(2.) Plaintiff No. 2 is the estranged wife of Defendant No.1. Plaintiff No.1 is her son, who was aged 5 years on the date of filing of the suit. Plaintiffs have filed Special Civil Suit No.387 of 2021 in the Court of Civil Judge, Senior Division, Sangli for partition of the suit properties. As per the family tree pointed out in para 2 of the plaint, Babu had 6 children - two sons named Shivputra and Siddhappa and four daughters. After death of Babu, the suit property would have devolved on the two sons and 4 daughters. However, it appears that the 4 daughters have executed Release Deed releasing their rights in respect of the suit properties. It is Plaintiff's case that on account of release of rights by 4 sisters, the two brothers Shivputra and Siddhappa are entitled to - share each in the suit property. As per the family tree, Shivputra has three sons and Siddhappa has one son. Siddhappa's son Nikhil is the husband of the Plaintiff No.2-Shubhangi. Plaintiff No.1-Adwait is son of Nikhil and Shubhangi. This is how, Plaintiff Shubhangi claims 1/6th share of Adwait in the suit properties. It appears that some of the suit properties have been transferred in favour of various purchasers (Defendant Nos.7 to 23) from time to time. Therefore, in addition to seeking partition of the suit properties by impleading Nikhil, his father Siddhappa as well as the entire branch of Shivputra, Plaintiffs have also challenged various sale deeds executed in favour of Defendant Nos.7 to 23. In that suit, Plaintiff filed Application at Exhibit-5 seeking temporary injunction. It appears that she additionally filed application at Exhibit-92 seeking status-quo in respect of the suit properties. The Trial Court has passed order dtd. 4/2/2022 granting temporary injunction in favour of Plaintiff restraining all the Defendants, from selling or creating any third party rights or changing nature of suit property during pendency of the suit. Defendant No.2 Siddhappa is aggrieved by the decision of the Trial Court and has instituted Appeal from Order No.500 of 2023. Similarly, the branch of Shivputra is also aggrieved by the decision of the Trial Court and they have instituted Appeal from Order No. 484 of 2023. Both the Appeals are taken up for hearing together.

(3.) Mr. Kulkarni would appear on behalf of the Appellant - Siddhappa in Appeal from Order No.500 of 2023. He would draw my attention to the written statement filed by the Defendant No.2-Siddhappa denying existence of joint Hindu family. He has contended that the suit properties have been inherited by Siddhappa towards his hereditary rights from late Babu Erandole. That during the lifetime of Defendant No.2-Siddhappa, no right is yet created in favour of Defendant No.1-Nikhil. That therefore there is no question of his grandson (Plaintiff No.1) seeking partition of the suit properties. Mr. Kulkarni would further submit that, in any case, release of rights of their respective shares by sisters in Siddhappa's favour by execution of release deeds, make those shares self-acquired property of Siddhappa, in which his son or grandson cannot claim any right. That such release is not executed by the sisters in favour of son-Nikhil or grandson-Adwait. Therefore neither Nikhil nor Adwait would have any right in those shares relinquished in Siddhappa's favour. He would submit that the frame of the suit itself is faulty and in such circumstances, no temporary injunction could have been granted in favour of the Plaintiffs. He would further submit that the prayer for setting aside sale deeds is barred by limitation and in such circumstances, there was no question of granting any temporary injunction in Plaintiffs' favour. He would further submit that even if it is assumed that the suit properties are joint family properties, a coparcener cannot be seek any injunctive relief against another coparcener.