Bombay HC: Outsider's Alienation Of Joint Family Property Cannot Be Challenged In Partition Suit Between Coparceners

Here, the alienation is not done by a coparcener, but the same is done by an outsider i.e. Khot family. Therefore, the issue of alienation by Khot family to BCT cannot be a subject matter of suit for partition between Patil family members. Whether Khots had title to pass on to BCT is something which cannot be decided in suit for partition of joint family properties of Patils. Knowing this well, the alienation by Khots to BCT is consciously kept out of the scope of the suit by the Plaintiffs. The alienation made by Khot family in favour of BCT is questioned independently by a suit filed by Defendant No. 1. Knowing this difficulty, Plaintiffs have consciously kept the challenge to alienation not only outside the purview of the main suit, but have consciously not included the prayer for challenging the Indentures dated 14 January 1971 and 28 October 2009 even in the proposed amended prayers. Since the issue of permissibility to challenge alienation by a coparcener of joint family property in a partition suit is irrelevant in the facts and circumstances of the present case, it is not necessary to discuss the ratio of the judgment of Calcutta High Court in Ganeshmull Surana and of Madras High Court in Chinnasamy Naidu (supra). {Para 27}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.1918 OF 2016

Arun Narayan Patil and Ors. Vs  Jayshree Jaywant Patil and Ors. 

CORAM : SANDEEP V. MARNE, J.

Dated : 27 August 2026.

Citation:2026:BHC-AS:35171

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Whether Karta Of Hindu Undivided Family Can Alienate HUF Property Even If Minor Has Undivided Interest In It?

The position on the rights of a Karta vis-à-vis an HUF property is well settled. This Court in Sri Narayan Bal v. Sridhar Sutar1 has held that the Karta has the right to sell/dispose of/alienate an HUF property, even if a minor of the family has undivided interest. The reason is that an HUF is capable of acting through its Karta or an adult member of the family in the management of the HUF property.

Thus, the father of the petitioner herein, as the Karta of the HUF, was entitled to mortgage the HUF property. The son(s) or other member(s) of the HUF need not be consenting parties to the mortgage. Post alienation, a coparcener may challenge the act of a Karta, if the alienation is not for legal necessity or for betterment of the estate, which is not the assertion established in the present case. 

IN THE SUPREME COURT OF INDIA 

 Petition(s) for Special Leave to Appeal (C) No(s). 2147621477/2023; 

N.S. BALAJI Vs THE PRESIDING OFFICER DEBT RECOVERY TRIBUNAL & ORS.

Coram: SANJIV KHANNA; J., S.V.N. BHATTI; J.

Dated: 03-10-2023.

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Whether gift/renunciation/relinquishment or alienation by one coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners void?

 Moreover, under Hindu Law, the gift/renunciation/relinquishment or alienation by one coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners is void.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

Read full Judgment here: Click here

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Whether any unauthorized sale made by the agent will tantamount to the Principal parting with possession of immovable property?

 The reasoning given by the High Court for holding that the appellant ought to have challenged the alienations, is that the appellant was out of possession. Here again, the High Court failed to appreciate that the possession of an agent under a deed of Power of Attorney is also the possession of the Principal and that any unauthorized sale made by the agent will not tantamount to the Principal parting with possession. {Para 14}

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION 

Civil Appeal No. 2592 of 2022 

MRS. UMADEVI NAMBIAR Vs THAMARASSERI ROMAN CATHOLIC DIOCESE 

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Whether term in compromise decree restraining alienation of property transferred by it is valid?

 The decision refers to a similar case in Khiali Ram v. Raghunath Prasad (1906) 3 A.L.J. 621, in which Knox, J., held that a term of the compromise embodied in a decree that the party to whom the house was conveyed under it was not at liberty to transfer it without the consent of the other party to that compromise was void as being a restraint upon alienation and that the house could be transferred in spite of that condition. Thus the restraint imposed on the plaintiff and defendants 3 to 6 that if they want to effect a sale etc. they could do so only jointly, but not individually, in respect of their respective shares, is clearly an absolute restraint, which is void under Section 10 of the Transfer of Property Act.

IN THE HIGH COURT OF MADRAS

Decided On: 21.11.1969

 P.L.N. Paramasivam Vs.  P.K. Ramaswami Gounder and Ors.

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Whether defendant taking plea of legal necessity can lead evidence to show that property was alienated for discharge of antecedent debt?

Somanath Sahu, the alienor of Ext. D was the manager of the joint family consisting of he himself and his sons, plaintiff and defendants 3 and 4. Plaintiff alleged in the plaint that there was no necessity for the sale in question and the family has not been benefited by the sale. Defendant No. 1 in the written statement never raised specifically that there was any antecedent debt and to discharge that debt sale had been affected. On the other hand, it was averred that there was legal necessity of the family and for the said necessity the sale had been affected. The question that arises for consideration, therefore, is whether in the absence of any pleading with regard to the existence of antecedent debt or that the sale was for discharge of antecedent debt would it be permissible for a party to lead evidence on that score and would it be permissible for a Court to consider that evidence and came to a finding that the sale was for discharge of antecedent debt. The manager of a joint Hindu family has power to alienate for value joint family property, so as to bind the interests of both adult and minor co-parceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate, what would be a legal necessity, had been described by Mulla in Article 243 of the Principles of Hindu Law so as to be within the powers of a Manager of a joint family to make an alienation. When an alienation is made by the Manager of a joint family, the alienee is bound to enquire into the necessity for the sale and the burden lies on the alienee to prove either that there was a legal necessity in fact, or that he made proper enquiry sets the existence of such necessity and he did all that was reasonable to satisfy himself as to the existence of such necessity. A Hindu father has some special powers of alienating co-parcenary property which no other co-parcenar has. He can make a gift of ancestral movable or immovable property as provided under Articles 225 and 226 and he may sell or mortgage ancestral property for payment of his own debt provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes. Apart from this he has no greater power over co-parcenery property than any other manager. Thus the power of sale of any co-parcenery property by the father for payment of an antecedent debt is the special power of the father of a joint Hindu family and if the father makes a sale of the co-parcenery property to discharge a debt contacted by him for his own personal benefit, then such alienation binds the sons, provided the debt was antecedent to the alienation and it was not incurred for an immoral purpose. "Antecedent debt" means antecedent in fact as well as in time, that is to say, that the debt must be truly independent of and not part of the transaction impeached. This being the position, an alienation for legal necessity stands on a footing fundamentally distinct from an alienation by a father for the discharge of antecedent debt. Consequently, the different considerations arise if an alienation is sought to be supported on the ground of legal necessity, these considerations cannot be imported in examining an alienation by a father after the discharge of an antecedent debt. Once it is pleaded that the alienation was for the discharge of antecedent debt, then the person who challenges the alienation can assail the same either by establishing that the debt in question was not antecedent at all or by establishing that the debt had been incurred for any immoral or illegal purposes. It is, therefore, imperative that the party must plead the same in the pleading as otherwise the other side will be greatly prejudiced if without any pleadings a party is permitted to lead evidence on that score and finding is arrived at. Mr. D. Mishra, however, places reliance on a decision of the Karnataka High Court in the case of Fakirappa v. Venkatesh MANU/KA/0086/1977, and contends that no prejudice having been caused to the plaintiff, even if it was not pleaded in the written statement that the alienation was for the discharge of antecedent debt, it would be open for the defendant to lead evidence on that score and the Courts can examine the same and come to their own conclusion. But on examining the aforesaid decision, I do not find anything mentioned therein which supports Mr. Mishra's stand. Further in that case the defendant pleaded in the written statement that the sale deed was executed by the father of the plaintiff for the purpose of discharging two mortgage debts contracted by him earlier, that the consideration paid under the sale deed was actually utilised for discharging those antecedent debts and that, therefore, the sale was binding on the plaintiffs. The aforesaid decision is, therefore, of as assistance to the contention raised by Mr. D. Mishra. Mr. D. Mishra though relies upon the decision of the Supreme Court in the case of Magubai Ammal v. S. Shama Rao MANU/SC/0089/1956, and contends that the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice and, therefore, the plea of antecedent debt can be examined and sustained as in that case. The Supreme Court on examining the provision of Order 6 Rule 2, C.P.C. came to hold that even though no specific pleading had been taken for the sale, the defendant was affected by the doctrine of lis pendens and non-specific issue was raised thereon but the defendants went to the trial with the full knowledge that the question of lis pendens was in issue and had ample opportunity to adduce their evidence thereon and fully availed themselves of the same and, therefore, the absence of specific pleading was treated to be a mere irregularity, but I am unable to apply that ratio to the present case since the plaintiff never knew that the defendants would prove a case of existence of antecedent debt. Such case not having been pleaded in the written statement, it is only at the evidence stage of the defendants some of the witnesses stated about the same. Consequently, the plaintiff had no opportunity to rebut the same and, therefore, it cannot be said that the plaintiff was not-prejudiced in the absence of the specific pleading. I would, therefore, hold that the question of sale being executed for discharge of an antecedent debt not having been pleaded in the written statement, the evidence led on that score by the defendants were without jurisdiction and the Courts had no jurisdiction to come to a finding on that score on the basis of the said evidence. Consequently, the finding that the sale was affected for repayment of an antecedent debt and, therefore, it was for necessity cannot be sustained and is accordingly quashed. No other necessity having been established, it being not established that the sale was for the benefit of the estate and the finding on the question of antecedent debt having been set aside by me, it must be held that the father of the plaintiff had no power to alienate the joint family co-parcenery property under Ext. D while acting as the Manager of the family and the sale deed Ext. D must be held to be invalid and does not confer any title on defendant No. 1.

IN THE HIGH COURT OF ORISSA

Second Appeal No. 31 of 1981

Decided On: 27.08.1990

 Biranchi Narayan Hadu  Vs.  Smt. Krushnapriya Debi and Ors.

Hon'ble Judges/Coram:

G.B. Pattanaik, J.

 Citation : AIR 1991 Ori 55

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Whether Mother Can Alienate Minor Son's Property When She's Not His Natural Guardian?

 In the light of these facts, it is crystal clear that when the
property inherited and owned by the plaintiff which is not a Hindu
Joint Family property or interest in the joint Hindu Family and when
father was not shown to be not taking care of the minor, mother is
not natural guardian. She as a de facto guardian has no right to
alienate the property of her minor son.
21. When the transaction is voidable, it is voidable at the
option of the minor. Minor's father or natural guardian cannot
exercise the option which a minor alone can exercise. Obviously, the
minor can exercise it after attaining the majority. Therefore, when
the sale is voidable, the ruling in Narayan Gilankar's (supra) would
be applicable but when the sale is void and there was threat of
dispossession or there was actual dispossession, it was not necessary
for minor to wait for attaining majority. His natural guardian could
have filed suit to protect his interest and his civil rights in the
property. Thus, the suit filed by the plaintiff during his minority
through his father a natural guardian as next friend is certainly
maintainable. The period of limitation in such matters will be 12
years and not 3 years as there is no necessity of claiming any
declaration. The question of legal necessity as held in Vishwambhar's
case (supra) is irrelevant. The sale is void and the transfer can be

repudiated on attaining majority. I therefore find that the learned
first appellate Court committed error in not properly appreciating the
above facts and did not follow the settled principles of law as laid
down in the above rulings. The sale could have been voidable only if
father was neglecting the child and was in care, custody and
maintenance of the mother. In this regard, reliance can be placed on
the judgment of the Apex Court in Githa Hariharan (Ms) Vs.
Reserve Bank of India reported in (1999) 2 SCC 228.
46. In our opinion, the word 'after” shall have to be
given a meaning which would subserve the need of the
situation, viz., the welfare of the minor and having due
regard to the factum that law courts endeavour to retain the
legislation rather than declare it to be void, we do feel it
expedient to record that the word “after” does not necessarily
mean after the death of the father, on the contrary, it depicts
an intent so as to ascribe the meaning thereto as “in the
absence of” be
it temporary or otherwise or total apathy of
the father towards the child or even inability of the father by
reason of ailment or otherwise and it is only in the event of
such a meaning being ascribed to the word “after” as used in
Section 6 then and in that event, the same would be in
accordance with the intent of the legislation, viz., the welfare
of the child.
47. In that view of the matter, the question of ascribing
the literal meaning to the word “after” in the context does not
and cannot arise having due regard to the object of the
statute, read with the constitutional guarantee of gender
equality and to give a full play to the legislative intent, since
any other interpretation would render the statute void and
which situation, in our view, ought to be avoided.

22. There are neither pleadings nor evidence to make out these
situations which could have made the mother as natural guardian.
Hence, the sale effected by mother is void and the suit filed for
challenging the same and for claiming perpetual injunction and later
on for possession was perfectly maintainable.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
SECOND APPEAL NO. 650 OF 2003

Rameshwar Babasaheb Paul, Vs  Shivaji  Eknathrao Paul,

CORAM : A. M. DHAVALE, J.

DATED : 21.01.2019.
Citation: AIR 2019 Bom 77

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When it is permissible for legal heir to alienate property of his deceased relative?

 One cannot dispute a legal proposition that
once a heir becomes the absolute owner of the
property by virtue of a Will then as a necessary
consequence, he/she is entitled to alienate such
property by any mode permissible in law to anyone.
Alamelu Ammal did it when she alienated her share
by executing a Will in favour of the defendant(her
sister). It was legally permissible.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4490 OF 2017

Karunanidhi 
V
Seetharama Naidu & Ors. 
Dated:March 27, 2017

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Supreme Court judgment on grant of injunction to restrain party to change nature of property during pendency of suit

The appellant had filed a Civil Suit No.541 of 2000 for possession of the suit scheduled property with an application under Order 39 Rules 1 and 2 CPC, seeking injunction restraining the respondent herein from alienating the suit property and putting up any construction thereon. The trial court on the interim application filed by the appellant granted an order of temporary injunction, as prayed for.

Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored. The appeal is allowed.

Supreme Court of India

Maharwal Khewaji Trust (Regd.), ... vs Baldev Dass on 15 October, 2004

Bench: N Santosh Hegde, S.B. Sinha

           CASE NO.:
Appeal (civil)  6792 of 2004

Citation:2005(4) BomCR 408

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When alienation of property of joint hindu family will be for legal necessity?

Another contention of plaintiff Deodatta is that there was no legal necessity for his father Shankarrao to execute the sale deed. In this connection, plaintiff submits that Shankarrao embarked upon new ventures without any experience in different trades and suffered losses. He submits that family of Shankarrao was not a trading family. The income from agricultural land and other sources was enough to maintain the joint family, but to satisfy his desires and needs, he, on his own, recklessly entered into grain business, distribution of films and American futures. According to him, the sale was not independent, but correlated to earlier Aywarharik debts and since it was not for antecedent debts, sale was not binding on the plaintiff. Shri Deshpande, learned Counsel placed reliance on the following authorities in support of this challenge:

"(i) The Benares Bank Ltd. v. Hari Narain and others (MANU/PR/0021/1932 : AIR 1932 Privy Council 182).
(ii) Sabhachand Navalchand v. Sambhoo Gyanoba Bhoj (MANU/MH/0123/1936 : ACJ 1936 Bombay Law Reporter 118).
(iii) Ganesh Prasad Singh and another v. Sheogobind Sahu and others (MANU/BH/0195/1937 : AIR 1938 Patna 40).
(iv) Sankaranarayanan and another v. The Official Receiver, Tirunelveli and others (MANU/TN/0297/1977 : AIR 1977 Madras 171)."

57. In reply, learned Senior Counsel for respondent Chimotes placed strong reliance on the decision in Venkatesh Dhonddev Deshpande v. Sou. Kusum Dattatraya Kulkarni and others (MANU/SC/0409/1978 : AIR 1978 SC 1791) and would submit that house sold by Shankarrao was for legal necessity and it is equally binding on his legal heirs too.

58. From the evidence brought on record, it can be seen that suit house was ancestral. In 1936, after Shankarrao attained majority, house came to his management. In 1949, he entered into business of cinema and grain shop. It further appears from the evidence that Shankarrao was also dealing in business of American futures. It is also apparent that Shankarrao was required to borrow loan from time to time as he was unsuccessful in businesses. The question is whether loans borrowed by Shankarrao were for the joint family as a Karta or in his individual capacity to satisfy his own desires ? Here it would be relevant to look into the debts with which sale deed is actually concerned. As stated above, agreement to sell was executed on 24/1/1951 when the house was attached in execution of decree filed by Krishna Keole. To get the sale postponed, Shankarrao executed agreement to sell of house in favour of Wasudeo and Ramchandra Chimote. Accordingly, he received Rs. 2000/- from Chimotes, paid the same to Krishna Keole and got the sale postponed. On 9/7/1951 he paid remaining amount of Rs. 6200/- to Krishna Keole in full satisfaction of the decree. He executed sale deed on that day in favour of Chimotes, received Rs. 6200/- and paid to Krishna Keole. Thus, from the sale deed, it is clear that to satisfy the debts received from Krishna Keole, Shankarrao being in need of money was required to sell the house so as to satisfy the decree in favour of Krishna Keole.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Letters Patent Appeal No. 77 of 1995 in First Appeal No. 22 of 1980, 

Decided On: 30.08.2016

Prabhatai and Ors.
Vs.
 Chimote & Sons and Ors.

Hon'ble Judges/Coram:B.P. Dharmadhikari and Indira Jain, JJ.

Citation: 2017(2) MHLJ 83 Bom

Read full judgment here: click here

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Whether it is necessary to maintain status quo of property during pendency of litigation?

The learned counsel for the applicant has
placed reliance on the case reported as AIR 2005 SC 104
(Maharwal Khewaji Trust v. Baldev Dass). The Apex Court
has laid down that ordinarily status-quo of the property
needs to be maintained during pendency of litigation. It is
observed that the ground that legal proceeding is likely to
take long time cannot be an exceptional circumstance to
allow changes by imposing conditions. There cannot be
any dispute over this proportion. Further in view of the
provisions of the Muslim Law and the provisions of the
Wakf Act, the property cannot be allowed to be used for
the purpose other than the purpose for which the property
was dedicated. When the defendant, purchaser, purchased
the property even when there was record of aforesaid
nature, he must blame himself for finding himself in the
present situation. This Court has no hesitation to hold
that the Wakf Tribunal has committed error in refusing to
grant relief of temporary injunction as claimed. The said
order needs to be set aside by allowing the present civil
revision application.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No.57 of 2014

Maharashtra State Board of Wakf,

V
Digvijay S/o Deeliprao Deshmukh,

 CORAM: T.V. NALAWADE, J.

 DATE : 3rd MAY 2014

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When court should grant injunction restraining creation of third party interest in suit property?

Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. 

Supreme Court of India

Maharwal Khewaji Trust (Regd.), ... vs Baldev Dass on 15 October, 2004

Bench: N Santosh Hegde, S.B. Sinha

CASE NO. Appeal (civil) 6792 of 2004

Citation:(2004) 8SCC 488

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When court can grant temporary injunction restraining creation of third party interest in suit property?

Merely because Section 52 of the Transfer of
Property Act is existing and operative, it does not mean that the

plaintiff is not entitled to pray for and get interim injunction
when   there   is   clear  prima   facie  case   in   favour   of   the
respondent/plaintiff to protect the suit property pending disposal
of   the   suit.     The   discretionary   relief   of   interim   injunction   is
granted on the basis of prima facie case, balance of convenience,
and consideration of irreparable loss with a view to protect the
suit property as it is and not to allow creation of irreversible
situation whereby legal and valid claim of the plaintiff is likely to
be defeated by transfer/alienation of the suit property by the
defendant in the case.  Dishonesty of litigant intending to defeat
the probable decree, can be prevented by appropriate interim
order, when necessary in the facts and circumstances of the case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.8 OF 2015
Harish Bulchand Tejwani,

V
Nandlal Hakikatrai Motwani,

CORAM : A. P. BHANGALE, J. 
DATE : AUGUST 14, 2015
Citation: 2016 (1) ALLMR 127

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When court can grant temporary injunction restraining defendant from alienating suit property during pendency of suit?

The facts in the present case are different than the facts which appear in the case cited (supra). The interim injunction was granted by the Trial Court in this case to ensure that suit property must not change its hands pending disposal of the special civil suit and the Trial Court was satisfied upon consideration of prima facie case to restrain the appellant/defendant, his agents, servants, representatives or any other persons claiming through him from alienating, transferring or creating third party interest in the suit property pending disposal of the suit. Merely because Section 52 of the Transfer of Property Act is existing and operative, it does not mean that the plaintiff is not entitled to pray for and get interim injunction when there is clear prima facie case in favour of the respondent/plaintiff to protect the suit property pending disposal of the suit. The discretionary relief of interim injunction is granted on the basis of prima facie case, balance of convenience, and consideration of irreparable loss with a view to protect the suit property as it is and not to allow creation of irreversible situation whereby legal and valid claim of the plaintiff is likely to be defeated by transfer/alienation of the suit property by the defendant in the case. Dishonesty of litigant intending to defeat the probable decree, can be prevented by appropriate interim order, when necessary in the facts and circumstances of the case.

Bombay High Court

Harish Bulchand Tejwani vs Nandlal Hakikatrai Motwani on 14 August, 2015

Bench: A.P. Bhangale

Citation:2015(6) MHLJ 597 Bom

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How to value suit for partition along with prayer for setting aside alienation?

It was sought to be contended by the learned counsel for the
Petitioner   that   the   Defendant   Nos.1   and   2   by   playing   a   fraud   and   misrepresenting
the Plaintiff have got the agreement executed from them, and
therefore, it would be unjust if the Plaintiff would have to pay   ad­valorem
court fees on the subsequent agreement executed by the Defendant Nos.1 and
2 in  favour  of  the  Defendant Nos.3 to 5.   In my view, that cannot be  a
consideration for deciding as to whether the suit in question is to be valued in
terms of Section 6(iv)(ha) or 6(iv)(j). The same would have to be considered,
as contended by the learned counsel for the Defendants, in the context of the

reliefs sought in the suit.   The Plaintiff, as can be seen in effect is seeking
avoidance of the sale deed executed by the Defendant Nos. 1 and 2 in favour of
the Defendant Nos.3 to 5, and therefore, the Plaintiff would have to value the
said suit in terms of Section 6(iv)(ha) and not in terms of clause 6(iv)(j) as has
been done by him.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.401 OF 2011
Shri Abdulsattar Gulabbhai Bagwan 
versus
 Shri Vaibhav Lxmangiri Gosawi, 
CORAM : R M SAVANT, J.

Pronounced on : 01st December 2011
Citation: 2012(2) ALLMR310

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How to ascertain limitation in suit for setting aside alienation of ancestral property?

It is not in dispute that the suit land is the ancestral property

and the plaintiffs are Hindu governed by Mitakshara Law.   It is also not

disputed that alienation is made by defendant No. 1 Bhikarchand who is

father of plaintiffs No. 1 to 5.  Article 109 of the Limitation Act lays down
period of 12 years and the time from which period begins to run is when
the alienee takes the possession of the property.     In the instant case, in
pursuance   to   the   sale   deed   dated   08/04/1969,   defendant   No.   2   took
possession on 08/04/1969.  The Suit is instituted in the year 1980, which is
well   within   12   years   and,   therefore,   can   not   be   said   to   be   barred   by
limitation.     I,   therefore,   do   not   find   that   the   learned   District   Judge

committed any error in decreeing the Suit.

  

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.103 OF 1990

Basheer s/o. Amir Patel v. Dnyaneshwar S/o. Bhikarchand

 
CORAM : R.G.KETKAR, J.
DATE OF JUDGMENT : 24th NOVEMBER,2014.
Citation; 2015(5) MHLJ 853

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Whether alienation which took place after commencement of Hindu Succession Amendment Act dated 9.9.2005 are void?

 In the present case, so called alienation took place
after 9.9.2005, the date fixed for giving effect to the Act. The
provision of section 6 shows that such transaction is not protected
by the Act.

IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 47 OF 2013

 Babu Dagadu Awari, Vs  Baby w/o. Namdev Lagad,

Citation; 2014(4) MHLJ 608 Bom

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Whether it is mandatory for court to grant injunction in suit for specific performance of contract?

Code of Civil Procedure, 1908 - Order XXXIX, Rules 1 and 2--Temporary injunction--Nature of property should not be permitted to be changed unless case of irreparable injury made out--Trial court justified in directing status quo to be maintained--First appellate court and High Court not justified in disturbing same--Impugned orders set aside.

Unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case, no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. The lower appellate court and the High Court were not justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the, alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the Court may itself award damages for the loss suffered, if any, in this regard.1

Supreme Court of India

Maharwal Khewaji Trust (Regd.), ... vs Baldev Dass on 15 October, 2004

Bench: N S Hegde, S Sinha

Citation;

AIR2005SC104, 2005(5)ALLMR(SC)3, 2005(1)ARC453, 2004 4 AWC(Supp)3717SC, 2004(3)BLJR2207, 2005(4)BomCR408, JT2004(9)SC216, 2005(1)MhLj1043, 2005(1)MhLJ1043(SC), 2005MPLJ447(SC), 2005(1)PLJR94, (2005)139PLR399, RLW2005(1)SC102, 2004(8)SCALE862, (2004)8SCC488

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Court can treat the alienation/assignment as having not taken place at all for it purposes if alienation is made in defiance of restraint order

Reliance has been placed by Mr. Gupta on Surjit Singh v. Harbans Singh [AIR 1996 SC 135 : (1995) 6 SCC 50] wherein this Court opined: "4...In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes..."

 There cannot be any dispute with regard to the aforementioned proposition of law. 

Supreme Court of India

Arjan Singh vs Punit Ahluwalia & Ors on 14 May, 2008
Citation: AIR2008SC2718,2009(2)MhLj13, (2008)8SCC348

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When lis pendese will not affect alienated property?

one acquiring interest pendente lite in a proceeding which is lit pendens is bound by the decree without regard to its form, or whether it is erroneous, and it is immaterial that the relief granted in the suit is the result of agreement or compromise, except where it is the result of fraud or collusion between the parties.

Calcutta High Court

Bharat Ramanuja Das Mohant vs Sarat Kamini Dasi And Ors. on 14 April, 1921

Equivalent citations: 66 Ind Cas 273

Bench: A Mookerjee, Buckland

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