Dismissed

Seema v. Rameshwar Lal and Ors.

Rajasthan HC26 Feb 2013CMA/1827/2012

Case brief

AI extract

What is this about?

This appeal against rejection of an interim injunction application in a partition suit was dismissed. The High Court held that the appellant failed to produce documents proving the property was ancestral or establishing title. Mere assertion was insufficient for injunction against the family manager.

What did the court decide?

Appeal dismissed. Trial court directed to try suit expeditiously within one year.

Seema Vs Rameshwar Lal and Ors. — Partition | Rajasthan HC (2013)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

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AT JODHPUR

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: J U D G M E N T :

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S.B. CIVIL MISC. APPEAL NO.1827/2012

Seema

Vs.

Rameshwar Lal & Ors.

Date of Judgment :: 26.02.2013

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PRESENT

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HON'BLE MR. JUSTICE ARUN BHANSALI

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Mr. DD Chitlangi, for the appellant. Mr. V.S. Choudhary, for the respondent No.1.

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BY THE COURT:

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This appeal has been filed by the plaintiff-applicant aggrieved by the order dated 30.8.2012, whereby her application under Order XXXIX, Rule 1 & 2 read with Section 151 CPC has been rejected.

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Brief facts of the case are that the minor Seema filed a suit for partition against her grand father, father and uncle inter-alia with the averments that one house and a bada situated at Kuchera was ancestral property and the defendants misbehaving with her mother has turned her out of the house and now seeking to alienate the said property. It was claimed that in view of the amendment of Section 6 of the Hindu Succession Act, 1956 ('the Act') she has right in the said property by birth and, therefore, the property be partitioned by metes and bound and she may be put in possession of her portion.

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Alongwith the suit, an application was filed seeking injunction against the defendant from alienating the property during the pendency of the suit.

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The application was opposed by the defendants and the averments made in the plaint as well as the application were disputed.

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The learned trial court after hearing the parties came to the conclusion that the plaintiff has failed to produce any document which can throw light on the ownership of the property and the basis on which, she claims the same to be ancestral property. It was further of the opinion that her father and grand father are alive and even if the property is ancestral then also only her father would get a share in the said property in terms of the Act. In the opinion of the trial court, the applicant failed to prove any prima facie case in her favour and consequently, dismissed the said application.

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It was contended by learned counsel for the appellant that the learned trial court has not taken into consideration the amendment in Section 6 of the Act and has very cursorily dealt with the issue. The respondents are bent upon alienating the property and if the property is alienated during the pendency of the suit, her suit seeking partition of the property would be rendered infructuous.

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He has relied on the judgment of Hon'ble Supreme Court in Ganduri Koteshwaramma & Anr. Vs. Chakiri Yanadi & Anr. : AIR 2012 SC 169, Nand Kishore & Ors. Vs. Smt. Rukmani Devi & Ors. : AIR 2012 (NOC) 190 (Raj.), Hari Shankar Sharma Vs.

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Puran Singh & Ors. : 2012 (2) CDR 1095 (Raj.).

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On the other hand, learned counsel for the respondent submitted that even if the case of the plaintiff-applicant is accepted still no injunction can be passed in the present case as admittedly respondent No.1 Rameshwar Lal is 'Karta' of the family and coparcener has no right to interfere in the manager's right to manage family property and, therefore, no injunction could be granted in favour of the appellant. Reliance was placed on the judgment of the Hon'ble Supreme Court in Sushil Kumar & Anr. Vs. Ram Prakash & Ors. : AIR 1988 SC 576.

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I have considered the rival submissions made by the parties.

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The suit of the plaintiff-applicant seeking partition as a minor through her mother as a natural guardian against her grand father, father and uncle apparently appears to be a outcome of matrimonial dispute between mother and her father. The suit has been filed seeking injunction against transfer of the property claiming the same to be ancestral property, however, no document showing the status of title of the property was produced by the applicant. Looking to her status, it was obvious that she cannot be in possession of any document, even to prima facie show the chain of title of the said property, however, mere assertion in the plaint without anything more in this regard, cannot suffice as far as grant of injunction is concerned.

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So far as law cited by the learned counsel for the appellant is concerned, the said judgments simply recognise the status of a girl to be a coparcener post 2005 Amendment in Section 6 of

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the Act and nothing beyond it. Whether the plaintiff-applicant has a prima facie case or not has to be judged in the facts and circumstances of the case. Besides the above, the law laid down by the Hon'ble Supreme Court in Sushil Kumar's case (supra) lays down that the coparcener is not entitled to interfere in the manager's right to manage family property and admittedly even as per the plaintiff's own pleadings Rameshwar Lal, the grand father is Karta of HUF of which she is seeking partition.

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In that view of the matter, the learned trial court has not committed any mistake in rejecting the application filed by the appellant.

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Consequently, there is no substance in this appeal and the same is, therefore, dismissed. However, looking to the facts and circumstances of the case, the trial court is directed to try the suit expeditiously and decide the same as far as possible within a period of one year.

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(ARUN BHANSALI), J.

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rm/

Seema v. Rameshwar Lal and Ors.

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Seema v. Rameshwar Lal and Ors.

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