High Court

Legal Reasoning

1 wp 8011.2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD5 WRIT PETITION NO. 8011 OF 2024MAHEMUDA HASAN BIN KARDUSVERSUSYAHIYA ABDULLA MAKRANI AND OTHERS...Advocate for the Petitioner : Smt. Ansari Asfia NuzhatAdvocate for Respondents No.1 to 5 : Shri N. L. Jadhav... CORAM:ARUN R. PEDNEKER, J.DATE:18th SEPTEMBER, 2024PER COURT:1.Heard with consent finally.2.The petitioner is aggrieved by the order dated 28.03.2024passed by the District Judge, Beed in an appeal under Order 43 of theCPC against the order passed by the trial court granting injunction infavour of the plaintiff restraining the defendants No.1 to 7 and 10 fromcreating third party interest in the suit property.3.The facts leading to the filing of the petition are that theplaintiff is the daughter of the late Abdulla Bin Sayeed Makrani(Makrani), who was the owner of the suit property and the defendantsare the brothers and sisters of late Makrani. The late Makrani was having7 sons i.e. defendants no. 1 to 7 and 3 daughters i.e. plaintiff, defendants 2 wp 8011.2024no.8 and 9, defendant No.10 is the wife of late Makrani. Mr. Makranidied on 01.01.1994. From the record, prima facie, it appears that thedeceased in his lifetime had distributed his properties between the sonsand had kept one share with himself. It also appears from the recordproduced that late Makrani had given certain amounts to the daughtersi.e. 1,40,000/- and the daughters have relinquished their share in theproperty of the late Makrani in his lifetime. The mutation entry had takenplace in the year 1982 and remain unchallenged during the lifetime oflate Makrani. After the demise of late Makrani the plaintiff / daughter hasfiled the suit for partition of the suit properties owned by late Makraniand claimed that after demise of late Makrani the plaintiff and alldefendants became owner, possessor of the suit properties as tenant incommon and that the plaintiff has got 1/17th share in the suit property.She also prayed for injunction not to create any third party interest in thesuit properties. The trial court, on consideration of the material, grantedinjunction in favour of the plaintiff by holding that defendants had notproduced document to show that the daughters have given up their sharein the suit properties and, accordingly, clamped injunction on thedefendants i.e. brothers and mother from creating third party interest inthe suit properties. The said order passed by the trial court is challenged 3 wp 8011.2024before the appellate court in which the status quo order was passed bythe appellate court, which was again challenged before this court in WritPetition No.4137 of 2022 and 5258 of 2022 by both the parties. By orderdated 29.11.2022, this court set aside the order of the District Court andremitted the matter back for consideration by holding that the DistrictCourt has not taken into consideration that under the Muslim Law theproperty would come to the share of the legal heirs after the death of theoriginal owner and that during the lifetime of the original owner isentitled to distribute the properties to the legal heirs of his choice.4.It was also contended before this court in the above writpetitions that the only relief the plaintiff would possibly seek in the suit isin respect of the property, which remained in the name of late Makraniand that the reliefs under the Muslim Law operates entirely in a differentmanner. This aspect has not been taken into consideration by both thecourts below. Considering this position, this court in the above writpetitions set aside the order of the District Court and remitted the matterback for reconsideration.5.When the matter was remitted back to the appellate court,the defendants moved application for amendment of the writtenstatement, which is allowed by the appellate court and that theamendment in written statement was carried out, so also, the documents 4 wp 8011.2024were placed on record, wherein the relinquishment deed by the sistersincluding the plaintiff was also placed on record. After remand,considering the material, the appellate court by the impugned orderdated 28.03.2024, prima facie, held that the late Makrani has distributedthe suit property amongst the sons and has given certain amount ofmoney to the daughters and that they have relinquished the suitproperties and has allowed the appeal and set aside the order grantinginjunction in favour of the plaintiff.Under the Mohammedan Law there is no concept of right bybirth and, as such, the late Makrani was the absolute owner of theproperty and that he could distribute the same during his lifetime to hissons and daughters and his wife.6.Challenging the order passed by the appellate court dated28.03.2024, the learned counsel for the petitioner submits that thedocuments, which are produced along with amended written statementare yet to be established in the trial and that she specifically contendsacross the bar that the plaintiff has not signed the relinquishment deed infavour of the defendants no.1 to 7 and that she has not received anyconsideration as mentioned in the relinquishment deed. She disputes therelinquishment deed in it’s entirety. 5 wp 8011.20247.She also submits that until the factum of relinquishment isproved during the course of the trial, injunction should be granted asirreparable loss would be caused to the plaintiff, in the event, third partyinterest is created in the suit properties. She submits that the order of thetrial court be restored during the pendency of the proceedings.8.Per contra, learned counsel for the original defendants, sonsof Mr. Makrani, submits that both the sisters have not filed writtenstatement in the proceedings and have not supported the cause of theplaintiff . He also submits that during the lifetime of the father themutation entries were carried out and that the mutation entries were notdisputed by the plaintiff during the lifetime of the father and that she hasnot challenged the mutation entries. He submits that their late fatherMakrani after the relinquishment of the rights by the daughters in thesuit properties applied for NA permission. Also further expenditureincurred on the suit properties by the defendants (sons of late Makrani)and, now, the suit properties are maintained by the sons of DefendantsNo.1 to 7. In the long passage of time, on account of price rise of theproperties the plaintiff is blackmailing the defendants No.1 to 7. Hesubmits that the document on record would clearly show that thedaughters have relinquished their share in the suit properties. 6 wp 8011.20249.Having considered the rival submissions, prima facie, it canbe seen that the father in his life time has applied for mutation in respectof the suit properties. He has distributed the suit properties in favour ofthe sons during the lifetime and also applied for change in mutationentries in November 1982, which was sanctioned in December 1982 andthe parties were present before the mutation officer. There is no mentionof the relinquishment deed by the daughters in the mutation entry. At the time of registration of the mutation entry in the year1981, the plaintiff Mehmuda was not married, other two sisters weremarried.10.Considering that the other two sisters were married and thatthey have not objected and accepted the claim of the plaintiff, primafacie, it cannot be said that there was no such document in the year 1981relinquishing the share by the daughters in favour of the brothers and thefather having not given anything to the daughters. As such, at this stage,it cannot be said after long passage of time, that the sisters have notrelinquished their share in the suit properties. In any event, under theMuslim Law, the father late Makrani was the absolute owner of the suitproperties and was fully within his right to distribute the suit propertiesirrespective of the fact whether the defendants have relinquished theirshare. The relinquishment would be of no consequence as the father 7 wp 8011.2024himself was competent to distribute his properties in his lifetime. To thisextent the order of the appellate court cannot be faulted with. 11.Further, there is also one more aspect, which needs to beconsidered as the submission made before this court, which is recordedby the order dated 29.11.2022, at para 4, in Writ Petition No.4137 of2022 and 5258 of 2022, wherein defendants no.1 to 7 had made asubmission that the only relief the plaintiff could possibly seek in the suitfor properties which remained in the name of the late Makrani at thetime of his death.While distributing the suit properties to his sons late Makranihad kept some portion of the suit properties to himself. Before hisdemise, he further gifted / transferred some properties left with him tohis wife (defendant no.10).At this moment, it is not possible for me based on thedocument of relinquishment, to hold whether the sisters have entirelygiven up their share in the suit properties left with the late Makrani afterthe distribution of the suit properties to his sons. To the extent of theshare of the late Makrani there would possibly an order of injunction.Thus, this court would grant order of injunction only to the extent of theproperty left in the hands of late Makrani after transfer of the part of suitproperties to sons (Defendants No.1 to 7) and wife (Defendant No.10). 8 wp 8011.202412.As such, the order of the appellate court is partly maintained.Injunction is granted against defendants no.1 to 7 from creating thirdparty interest in the part of the suit properties left with late Makraniafter distribution of the share to the sons (Defendants No.1 to 7) and tohis wife (Defendants No.10) as is reflected from the mutation entriesmade in the year 1982 and 1993.13.All observations made in this proceedings are prima facie forthe purpose of deciding the interim application and the trial court willnot be influenced by this observations while deciding the suit finally.14.The writ petition accordingly stands disposed of. [ARUN R. PEDNEKER, J.]marathe