In this Appeal from Order filed under Order 43 Rule 1(r) of the Code of Civil Procedure ('the Code' for short), appellants/original defendants seek to challenge the order dated October 5, 2002 recorded below application exhibit-5 in Special Civil Suit No. 343 of 1999 by the learned 5th Joint Civil Judge (SD), Surat by which application exhibit-5 filed under Order 39 Rule 1 & 2 of the Code by the respondent/original plaintiff against the appellants/original defendants restraining them from transferring or alienating the property described in para 6(1) of the prayer clause of the application ('the suit property' for short) during pendency of the suit, came to be allowed and thereby ad-interim injunction which was granted earlier was made absolute till disposal of the suit.
2.The respondent/original plaintiff as a guardian of minor Udaykumar Himanshu Dakoriya has filed suit for declaration, partition and permanent injunction against the appellant in respect of the suit property. It is claimed that the suit property is the ancestral property of the appellants/original defendants and therefore, minor Udaykumar has a right since his birth as suit property are not partition and minor's right must be protected till decision of the suit. Along with the suit application exhibit-5 is also moved by the respondent seeking ad-interim injunction restraining the appellants/original defendants from transferring or alienating the suit property till disposal of the suit.
3.The suit as well as application exhibit-5 is contested by the appellants wherein they have contended that the suit properties are self acquired properties of the appellant No.2 by virtue of the will as well as partition made by his late father Iccharam and, therefore, said properties are not liable to be partitioned as it is not forming a part of the ancestral property and, therefore they have prayed to dismiss the application exhibit-5.
4.The learned Judge after hearing the learned advocates for the parties and on analysis, appreciation and evaluation of the evidence adduced and produced before him, came to the conclusion that, primafacie, suit properties are ancestral properties. Whether the minor has a right from the birth on the suit properties, can be decided at the time of trial only and, therefore, there is a primafacie case in favour of the respondent and resultantly, the Court granted the ad-interim injunction till disposal of the suit as prayed for in the application, which has given rise to the present Appeal from Order at the instance of the original defendants.
5.Mr. D.K.Mehta, learned advocate for the appellant contended that there is no evidence worth consider that the suit properties are ancestral properties, on the contrary there is evidence that appellant No.2 acquired the suit property by virtue of the will as well as by virtue of the partition deed which was made by his late father Iccharam and, therefore, in the hands of appellant No.2 the said properties are the self acquired properties and he can manage the property according to his own will and minor has no right since his birth in the said properties. The learned Judge has ignored these facts which has resulted into miscarriage of justice.
6.In support of his aforesaid contentions he relied upon the Supreme Court judgement in the case of ARUNACHALA V. MURUGANATHA, AIR 1953 SC 495. According to Mr. Mehta there is no primafacie case in favour of the respondent and, therefore, order of granting ad-interim injunction till the disposal of the suit in favour of the respondent are liable to be quashed and set aside by rejecting the application exhibit-5 and, therefore, according to him Appeal from Order requires admission. He, therefore, urged to admit this Appeal from Order.
7.I have considered the submissions advanced by Mr. D.K.Mehta, learned advocate for the appellant. I have perused the averments made in the memo of the Appeal, grounds set out therein and the impugned order which is the subject matter of challenge under Appeal as well as the decision cited at the bar.
8.At the outset, it appears that appellant No.1 is the husband whereas respondent No.2 is father-in-law of Darsanaben who has filed suit for partition on behalf of his minor son Udaykumar Himanshu Dakoriya. It also appears from the record of the case that there is a matrimonial dispute going on between the parties. It has come to evidence vide mark 28/7 and 28/5 which are the partition deed and the will respectively. The appellant No.2 has become the owner of the suit property. The learned Judge has, therefore, observed that the suit properties are liable to be partitioned or not, can be decided at the time of deciding the suit. He, therefore, held that there is a primafacie case in favour of the appellant and granted injunction as prayed for in the application.
9.In the case of ARUNACHALA V. MURUGANATHA (supra), Supreme Court has said that property got under will or by gift by the father does not become ipso facto ancestral property in the hands of legatee or donee.
10.According to my view the judgement in the case of ARUNACHALA V. MURUGANATHA (supra) cannot be made applicable to the facts of the present case at present since the main issue, as to whether, the suit properties are liable to be partitioned or not, is still to be decided and, therefore, according to me the learned Judge has very rightly held that there is primafacie case in favour of the respondent.
11.On overall view of the matter, according to me no infirmity is committed by the learned Judge in holding that there is a primafacie case in favour of the respondent and, therefore, I do not find any valid reason or justifiable ground to interfere with the impugned order, hence Appeal from Order deserves to be dismissed at the inception.
12.For the foregoing reasons, Appeal from Order fail and accordingly it is dismissed at the threshold with no order as to costs.
13.Since the Appeal from Order is dismissed at the threshold, Civil Application No. 2442 of 2002 which is filed for stay of the impugned order does not assume any survival value, hence it is also dismissed with no order as to costs.
(A.M.Kapadia, J) Jayanti*