Gujarat High Court Case Information System
Print
AO/378/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 378 of 2009
With
CIVIL
APPLICATION No. 11715 of 2009
In
APPEAL FROM ORDER No. 378 of 2009
=================================================
KALPANABEN
HASMUKHBHAI PATEL - Appellant(s)
Versus
URVASHIBEN
RAJNIKANT PATEL & 1 - Respondent(s)
=================================================
Appearance :
MS
SHUBHRA ALMOULA for Appellant(s) : 1,
NOTICE SERVED for
Respondent(s) : 1 - 2.
MR SS BELSARE for Respondent(s) :
2,
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 08/07/2010
ORAL
ORDER
The
appellant has filed this appeal challenging the order dated
01.08.2009 passed by the learned Civil Judge (SD), Ahmedabad (Rural)
below Exh. 5 in Special Civil Suit No.94 of 2008. While passing the
impugned order the learned Judge has not believed the prima facie
case, balance of convenience and irreparable loss which cannot be
compensated in terms of money in favour of the plaintiff.
2. The
appellant – plaintiff and the respondent No.1 – defendant No.1 have
jointly purchased a residential house in Nishant Park Cooperative
Society being Final Plot No.47/13 and sub-plot No.47/32 No.2276 of
survey No.75/77 in the Town Planning Scheme No.1, Village Thaltej,
Ahmedabad admeasuring 566 sq. meters by way of registered sale deed
No.2276 dated 15.09.1994 from Smt. Indiraben Vasantlal Salot. Even
as per the share certificate dated 4.1.1998 plaintiff and defendant
No.1 jointly held above property. The contribution towards share of
the society, transfer fee maintenance amount etc. was jointly paid by
them and from the record, it appears that the petitioner herein paid
Rs.51,500/- by way of demand draft dated 16.02.1993 and Rs.1,43,500
was paid by the defendant No.1. Both the above payments were made by
their individual accounts. Besides the appellant – plaintiff also
paid Rs.56,600/- by way of cheque dated 08.10.1992 and Rs.20,000/-
was also paid earlier towards consideration.
3. The
learned Judge after considering the relevant provisions including
section 45 of the Transfer of Property Act, 1882 (for short, `the
Act’) found that the petitioner – plaintiff held 26.42% share while
defendant No.1 has 73.58%. That prayer for restraining the defendant
from carrying out further construction or transferring the property
was rejected.
4. The
above findings of the learned Judge is assailed by the counsel for
the appellant on the ground that apportionment of payment made by the
plaintiff on different dates and different amounts is illegal and any
contribution made towards share of the society, maintenance,
electricity sub-station charges etc. is also part of sale
consideration and when a joint holding is shown in the share
certificate, the defendants ought to have restrained from
transferring the property or altering it in any manner whatsoever.
It is further submitted that interpretation of section 45 of the Act,
as canvassed by the learned Judge is also illegal and the order
impugned deserves to be quashed and set aside and defendants be
restrained from transferring, alienating or parting with the suit
property or at least share of the plaintiff be protected till final
disposal of the suit so as to avoid multiplicity of proceedings.
5. Learned
advocate for the defendants submits that so far as consideration as
shown in the sale deed is concerned, there is no dispute with the
purchase amount of Rs.1,95,000/- as shown in the registered sale deed
dated 15.09.1994. Learned counsel for the respondents also does not
dispute payment of Rs.51,500/- by way of demand draft dated
16.02.1993 by the appellant – plaintiff. However, it is submitted
that the amount of Rs.56,600/- paid by the plaintiff was for
development charges and further Rs.15,400/- was towards electrical
sub-station and not towards administration charges as per the receipt
No.397 dated 08.10.1992 issued by the society. It is further
submitted that in view of the understanding arrived at with the
husband of the plaintiff on 15.02.1993 a registered release deed was
executed by which Kalpanaben has released her share of husband of
defendant No.2 by taking Rs.2,00,000/- from other property and
thereafter there was no share remained to the plaintiff in the
subject property of the suit. Learned counsel further submits that
they are the owners and in possession of the suit property and,
therefore, by declining the interim injunction in favour of the
appellant – plaintiff learned Judge has not committed any error,
which deserves any correction by this Court.
6. Having
heard learned advocates for the parties and perusing the record of
the case and considering the amount of consideration of Rs.1,95,000/-
mentioned in the sale deed dated 15.09.1994, share certificate and
issuance of cheques by the plaintiff and the defendant No.1 from
their individual accounts vis-a-vis the provisions of Section 45 of
the Act, prima facie, determination of the share by the learned Judge
as 26.42% in favour of the plaintiff and 73.58% in favour of the
defendant No.1 cannot be said to be illegal and, therefore, there is
no merit in the appeal. However, it is made clear that subject
property of the suit and share of the plaintiff and defendant No.1
finally to be determined after considering the evidence in detail and
any further transfer, alienation or creating any encumbrance by the
defendants will be subject to the final outcome of the suit.
This
appeal stands disposed of accordingly.
In
view of the order passed in the Appeal from Order, no order on Civil
Application No.11715 of 2009 and accordingly it stands disposed of.
[Anant
S. Dave, J.]
*pvv
Top