BANDANA DEVI Vs. LAXMI DEVI

JUDGEMENT

(1.) THIS Miscellaneous Appeal has been preferred against the order dated 11.6. 1998 passed by Sri Sayed Firoz Ahmad, Subordinate Judge I, Barh in Title suit No. 85 of 1996 whereby he has been pleased to allow the petition dated 6.9.96 filed by the plaintiffs for grant of temporary injunction and restrained the defendant no.1 from changing the physical features of the suit house or removing the .articles from the suit house till disposal of the suit.

(2.) IT has been submitted by the learned Advocate of the appellant that the impugned order is bad in law as well as on facts. He further submitted that on the admitted facts, it cannot be held that the plaintiffs have got prima face case in their favour what to say about the balance of convenience 1/1/2013 Page 52 Suman Kumar Verma Versus Union Of India and irreparable loss. The learned Advocate of the appellant submitted that admittedly, the plaintiffs being the married daughters of Muso Sao were not coparceners of the family of Muso Sao others and under law the plaintiffs are not entitled to seek partition and, therefore, the very suit of the plaintiffs for partition of the joint property is not maintainable. He further submitted that the plaintiffs being the married daughters of Muso Sao are not the members of joint Hindu family of Muso Sao and as such they have no right to claim right of pre -emption. His submission is that the appellant is bonafide purchaser of the suit land from one of the sons of Muso Sao, namely, Sukhdeo Sao, who has been made party as defendant second set in the suit. He submitted that the said Sukhdeo Sao was in exclusive possession of the suit property and after purchase of the land, the appellant - defendant no.1 is in peaceful possession of the same and has every right to use the property as he likes.

(3.) ADMITTEDLY , the plaintiffs -respondents are the married daughters of Musa Sao and as such, they cannot be coparceners of the joint family of Muso Sao. Under Mitakshara Law, no female member of a joint family is entitled to seek partition and since the plaintiffs are the married daughters of Muso Sao residing in their matrimonial house, as such, I am of the view that they are also not entitled to seek right of pre -emption. Admittedly, the appellant is bonafide purchaser of the suit property from one of the sons of Muso Sao, namely, Sukhdeo Sao and it is claimed that at the time of sale, the said Sukhdeo Sao was in exclusive possession of the suit property, as such balance of convenience lies in favour of the appellant to allow her to remain in possession of the purchased property and use the same as she likes. In such view of the matter, I am of the view that the approach of the learned Subordinate Judge was not according to law. Accordingly, I hold that the impugned order dated 11.6.98 whereby the learned subordinate Judge has granted temporary injunction is not according to law and the same requires interference.