M S Jawalkar, J.

[1] Heard finally at the stage of admission by consent and at the request of learned Counsel for appellant and the respondents.

[2] Being aggrieved by the order passed by 11th Joint Civil Judge Senior Division, Nagpur below Exh.5, in Special Civil Suit No. 646/2022, dated 17/11/2022 by which Exh.5 came to be rejected. The Exh. 5 application was filed by appellant - plaintiff seeking an order of temporary injunction to restrained the respondent from creating any third party interest in the property and from parting with the possession of the same during the pendancy of the suit for partition.

[3] The brief facts can be summarized as under :

Ramjibhai had obtained on lease the suit plot from Nagpur Improvement Trust, bearing Nagpur Improvement Trust Plot No. 301, City Survey No. 1113, House No. 96, Ward No. 70, admeasuring 891.5 Sq. Mtrs., (9230 sq. Fts) facing West and located and known as "Kothari Building", West High Court Road, Gokulpeth, Mouza Gadga, Nagpur, which is a property of Hindu Undivided Family. It is submitted that the construction consisting of Ground Floor, First Floor and Second Floor came to be raised over the same, which property including land beneath it including the entire plot is the suit property. It is submitted that Shri Ramjibhai had expired on 04/07/1998 leaving behind the appellant and the respondent No.1 and respondent Nos. 2 to 5, the legal heirs of late Dinesh to inherit the said property and as such they became co-owners/joint owners of the same and continues to be so as on date. It is submitted that for effective enjoyment of the respective portions, the parties had executed Release Deeds, which clearly records that the co-owners shall have undivided 1/3rd share each in the same, however, the suit property has not been partitioned by metes and bounds as on date.

[4] It is placed on record that the appellant has 1/3rd undivided share in the suit property, the respondent No.1 has 1/3rd undivided share in the suit property and respondent Nos. 2 to 5 jointly have 1/3rd undivided share in the suit property. It is submitted that Shri Dineshbhai had expired on 01/01/1992 leaving behind respondent Nos. 2 to 5 as his legal heirs and they became the co-owners/joint owners of the subject property and continue to be so.

[5] It is the contention of the appellant that, it would thus appear that till such time the said property is not partitioned by metes and bounds, an individual co-owner has no right to alienate the same and/or to create any third party interest over any portion of the same in any manner whatsoever, apart from the fact that as per the terms of the Lease Deed executed by N.I.T., it is not permissible to alienate the same without the written permission of Nagpur Improvement Trust, which has not been obtained as on date. Even the Deed of Renewal of Lease of the said property has been jointly executed in favour of all the co-owners.

[6] Despite the said clear understanding between the parties, which continued for a period of more than two decades, the respondent No.1 appears to carry an ill intention and attempted to create third party interest of Ground Floor in favour of the respondent No.6 and it is in written statement filed by respondent No.1 that it is claimed that he has entered into an agreement to sale for consideration of Rs.5,25,00,000/-, (Rs. Five Crore Twenty Five Lakhs only) in favour of respondent No.7 on 24/05/2022, which is being done without the knowledge and consent of the appellant and respondent Nos. 2 to 5.

[7] It is further contention of the appellant that it is not permissible for the respondent No.1 to create any third party interest in relation to any portion of the said property. Any transaction in relation thereto shall be grossly illegal and void ab-initio, particularly in which the appellant and the respondent Nos. 1 and 2 to 5 have 1/3rd undivided share and interest in the said property.

[8] There is an additional reason for preventing the respondent No.1 from indulging in such gross illegality, inasmuch as in the eventuality of the parties deciding to demolish the entire structure and/or it coming down of its own by passage of time it being a very old construction. It would be difficult for parties if intend to raise a new construction. In case, respondent No.1 proceeds to dispose off the ground floor portion, it would affect the vital rights of the appellant and respondent Nos. 2 to 5 and that their right and interest to the extent of 1/3rd undivided share in the same shall remain on paper, which cannot be permitted in law and they shall not be in a position to utilize and enjoy the fruits of the same. It is for this reason that the aforesaid documents clearly incorporate that the respective parties shall have 1/3rd undivided share in the entire property including land, else, it would have been a Deed of Partition, which has deliberately not been done for the aforesaid reason. The parties were interested not to partition at the relevant point of time, so that the reputation and prestige of the family is maintained as the relations were cordial.

[9] It is submitted that the appellant has a preferential right as per Section 22 of the Hindu Succession Act, to purchase the same and the appellant is ready to purchase the same on the sale consideration for which the Ground Floor portion consisting of four shops, two residential flats and three garages is allegedly agreed to be sold to Shri Ganesh Gudadhe. It would thus appear that the respondent No.1 needs to be restrained from disposing off the same either to defendant No.7 Ganesh Gudadhe or to any third person and an interim relief as prayed in the application at Exh.5 needs to be granted. It cannot be disputed that if respondent No.1 despite the aforesaid position is permitted to dispose off the same in favour of the aforesaid person or anybody else, it would vitally affect the rights of the appellant, particularly when a relief of partition and separate possession is being claimed in the suit and the appellant is agreeable to purchase the same at the same price, coupled with a fact that it would create multiplicity and likelihood of the suit being rendered purposeless. It is submitted that despite the aforesaid position, the learned trial court was pleased to reject the application on absolutely untenable grounds, which is being impugned in the present appeal.

[10] It is contended by the appellant that though the appellant has specifically pointed out to the learned Trial Court that the appellant is ready to purchase the share of respondent No.1 in the suit property on the consideration/rate/price as has been agreed by him for disposal of his share in the suit property in favour of respondent No.7 as per the agreement to sale dated 24/05/2022, the learned Trial Court has conveniently avoived/ignored to consider the said submission, which vitiates the order impugned and the same is therefore liable to be quashed and set aside and consequently the application at Exh.5 needs to be granted.

[11] Learned Senior Counsel for appellant relied on following citations:

1. Babu Ram Vs. Santokh Singh (Deceased) through his L.Rs. And others, 2019 14 SCC 162.

2. Bharat Machindra Parekar and another Vs. Anjanabai W/o Babarao Thaware and another, 2007 6 MhLJ 706.

[12] The Counsel for the respondent supported the order passed by the Trial Court and stated that the Trial Court has rightly taken into consideration the facts and circumstances and evidence placed on record and passed an appropriate order accordingly.

[13] Learned Counsel for respondent relied on following citations:

1. Wander Ltd. And another Vs. Antox India P. Ltd.,1990 Supp SCC 727.

2. Mohd. Mehtab Khan and others Vs. Khushnuma Ibrahim Khan and others, 2013 9 SCC 221.

3. Girijanandini Devi and others Vs. Bijendra Narain Choudhary, 1967 AIR(SC) 1124.

4. G. Vasantha Pai Vs. Special Commissioner and Commissioner (Land Reforms) Chepauk and another, 1998 2 CTC 272 (High Court of Madras)

[14] I have heard both the parties at length considered rival contentions of the parties, impugned order and citations relied on by both the parties. The suit is filed for partition, separate possession, declaration and permanent/prohibitory injunction. There is no dispute that Rambhai Jethabhai Kothari had three sons and three daughters. He died intestate leaving behind plaintiff Harishbhai, defendant No.1 Vinodbhai younger son and Dinesh deceased son. The defendant Nos. 2 to 4 are legal heirs of deceased Dinesh. Thus, plaintiff defendant No.1 and the legal heirs of Dinesh have inherited the said property and are the co-owners of the said property. It is the contention of plaintiff that there were no partition by metes and bounds between the sons of Ramjibhai. The property Kothari building on West High Court Road, Gokulpeth is lease hold property of Hindu Undivided Family. It consist of ground floor, first floor and second floor. After the death of Ramjibhai i.e. in the year 1998, the legal representatives become co-owners. The daughters executed relinquishment deed in favour of brothers. The name of legal representatives of Ramjibhai are recorded in City Survey and Nagpur Municipal Corporation, which is reflecting from property card and N.M.C. tax receipt. The plaintiff, defendant No.1 and defendant Nos. 2 to 5 jointly have 1/3rd each undivided share in the suit property. When Ramjibhai was alive, the property was of Hindu Undivided Family and plaintiff and defendant Nos 1 to 5 were the co-owners. There were no partition by metes and bounds. Though families started residing separately, however, property remains to be a property of Hindu Undivided Family. It is the case of the plaintiff that as plot was not alienable without permission of N.I.T., it was agreed between the parties to maintain healthy relations to enter into memorandum of understanding so that till such time the said property is partitioned by metes and bounds. There should not be any occasion for any friction between the respective parties. In this process parties have executed deeds of release in favour of each other so that the parties possessing respective portion will continue to do so and that individual share holder shall have 1/3rd undivided share in the said property. It is in fact family arrangement in the nature of memorandum of understanding. If prayers in the plaint are seen, partition and separate possession is claimed in the suit property. So also, the plaintiff sought declaration that plaintiff has a preferential right to purchase 1/3rd share of defendant No.1. Further declaration is sought that defendants have no right to create third party interest and they be restrained from creating any third party interest or parting with the possession.

[15] It is vehemently argued by learned Counsel for the appellant, the suit itself would frustrate if injunction is not granted as he is claiming preferential right. The suit property being ancestral property in the hands of owners. The learned Senior Counsel S.P. Dharmadhikari drawn my attention to the provisions of the Partition Act, 1893 wherein, if a co-sharer shows his intention to purchase the share, the court has to fix the valuation. Learned Senior Advocate also drawn my attention to Section 44 of the Transfer of Property Act. My attention is also drawn to Section 22 of the Hindu Succession Act, which reads as under :

"22. Preferential right to acquire property in certain cases.-

(1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.

(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred."

[16] It is the contention of the learned Counsel for the appellant that legislature adopted Section 22 of the Hindu Succession Act, deliberately on the backdrop of Section 44 of the Transfer of Property Act and Section 3 and 4 of Partition Act. Section 22 applies to all properties as against Section 44(2) applies in respect of dwelling house only. The learned Counsel relied on Babu Ram (supra), wherein, Hon'ble Apex Court held that the pre-emption laws enacted by the said legislature are examples where preferential rights have been conferred upon certain categories and classes of holders in cases of certain transfer of agricultural lands. It is held in paragraph No.25 as under :

"25.......Since the right itself in certain cases was created for the first time by the provisions of the Act, it was thought fit to put a qualification so that the properties belonging to the family would be held within the family, to the extent possible and no outsider would easily be planted in the family properties. In our view, it is with this objective that a preferential right was conferred upon the remaining heirs, in case any of the heir was desirous of transferring the interest in the property that he received by way of succession under the Act."

[17] Learned Counsel also relied on Bharat Machindra Parekar (supra), wherein it is held by this Court that :

"it is manifest that sub Section (1) confers upon one co-heir a preferential right to purchase the property of the other co-heirs. This right is ackin to the right of pre-emption. The expression "one of such heirs proposed to transfer his or her interest" also include the final transfer of such interest by way of sell, gift or any other mode. The right of pre-emption is not obliterated after transfer of the interest is completed through an instrument like sale deed or gift deed. There is no provision in either of the sub clauses to take away right of the other heirs who are not party to such transfer of interest, to acquire the interest of the heir/heirs who proposed to transfer their interest or actually transferred the same."

[18] The learned Counsel drawn my attention to the clauses of agreement to sell by which consideration was fixed to Rs. 5,25,00000/-. It is vehemently submitted that the plaintiff herein has offered the same amount, however Court has not considered the same nor discussed in the order. The main purpose of filing suit itself will frustrate, if injunction is not granted. The Court has not considered balance of convenience. My attention is also drawn to the indenture of lease renewal, by the said indenture the lessee was put to condition that lessee shall not assign transfer or part with the possession of demised premises so as to cause any sub division therein or otherwise to alter nature of this present demise.

[19] As against this learned Counsel for respondent-defendant relied on Wander limited and another,1990 Supp SCC 727 (supra), in support of his contention that the Appellate Court will not interfere with the exercise of discretion of the Court at first instance and substitute it's own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court have ignored the settled principle of law regulating grants of refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not re-assess the material and seek to reach a conclusion different from the one reached by the Courts below. If the one reached by that Court was reasonably possible on the material. Learned Counsel also relied on Mohd Mehtab Khan (supra), in support of his contention that the Appellate Court should not substitute its view in the matter merely on the ground that in its opinion the facts of the case called for different conclusion. It is contended that Hindu Undivided Family was disrupted and it was no more in existence. Learned Counsel for the respondent also relied on Girijanandini Devi (supra), wherein Patna High Court held as under :

"6. In a Hindu undivided family governed by the Mitakshara law, no individual member of that family, while it remains un- divided, can predicate that he has a certain definite share in the property of the family. The rights of the coparceners are defined when there is partition. Partition consists in defining the shares of the coparceners in the joint property; actual division of the property by metes and bounds is not necessary to constitute partition. Once the shares are defined, whether by agreement between the parties or otherwise, partition is complete. The parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property."

[20] Learned Counsel also relied on judgment of Madras High Court in G Vasantha Pai (supra), wherein it is held as under :

"9. In order to determine this question, it is appropriate to refer the right of co-owner, the concept of family arrangement, its object and the law on these aspects. According to Mistakshara law, partition consists in defining shares of the co-parceners in the joint property and a physical division of the property is not necessary. Once the shares are defined, there is a severance of the joint status. Partition is a right incident to the ownership of property and once the parties are held as co-owners, their to partition cannot be resisted."

[21] In my considered opinion, the learned Trial Court failed to appreciate that suit is for declaration that plaintiff is having preferential right in view of Section 22 of the Hindu Succession Act. Moreover, though for the convenience some family arrangement is made, it does not mean that there was partition by metes and bounds. Most important is that the plaintiff was ready and willing to pay the same amount which the defendant No.1 is receiving by proposed sale deed. Definitely ones the sell is confirmed though as held, under Section 22 unlike right of pre-emption the principle of lis pendens will apply. However, at present the learned Trial Court ought to have considered that if such injunction would not be granted the very purpose of filing of suit will frustrate. The intention of impleading Section 22 in the Hindu Succession Act itself is that the properties belonging to the family would be held within the family, to the extent possible and no outsider would easily be planted in the family property. Therefore, such preferential right was conferred upon the remaining heirs.

[22] The learned Counsel for respondent Nos. 2 to 5 Adv. Ms Dave also relied on Babu Ram (supra). It is her contention that whether property inherited or received in partition, co-owners will be having preferential right to purchase from the co-owner. No Court should defeat object of the Act. Since, the right itself in certain cases was created for the first time by the provisions of the Act, it was thought fit to put a qualification so that the properties belonging to the family would be held within the family, to the extent possible and no outsider would easily be planted in the family properties.

[23] The contention of defendant that Hindu Undivided Family disrupted and therefore Section 22 can be applied. This proposition is not supported by Section 22 of the Hindu Succession Act. There is nothing on record to show that the land is partitioned by metes and bounds. The predecessor of the parties acquired leasehold land and died intestate. There was no partition of land, only structure is put in possession to each of the co-owner. All are having their undivided shares in the land which can be seen from application for renewal of lease. At least prima facie it appears like that.

[24] The learned Trial Court further failed to appreciate that in plaint itself in paragraph No.15, plaintiff offered to pay such price as is agreeable to both the parties and he is ready to purchase share of the defendant. There is no discussion at all in the order passed by the learned Trial Court about such offer by the plaintiff. The learned Trial Court appears to be swayed by the fact that due to bank loan, defendant will suffer hardship. However, considering the offer, reason of the said hardship would not exist. More important is that at the end of litigation, if plaintiff succeed and in between the new purchaser carried out any demolition or renovation, it will be difficult for the plaintiff as well as other heirs to make the good loss. The specific offer about Rs.5,25,00,000/- appears to be in paragraph No.19-B, the learned Lower Court has failed to consider the said pleadings of the plaint and came to the conclusion that the defendant will suffer heavy and irreparable loss.

[25] True, in Release Deed it is specifically mentioned that property described in schedule of property given herein after forever and releasor declared that the releasee is the absolute owner of said area including property undivided share in leasehold right in Plot No.301. However, what is the real intention needs to be brought on record by adducing evidence by the parties. They were described releasor and releasee as co-owner of the suit property. As such, till the execution of Release Deed i.e. 20/10/1999, they were co-owners. Prima facie, there was no partition by metes and bounds, the individual co-owner has no right to alienate the property prima facie in view of the condition (m) for renewal of lease of N.I.T. As such, in my considered opinion, these aspects are not taken into consideration by the learned Trial Court while rejecting the application for grant of temporary injunction.

[26] The learned Trial Court held that the particular sharers are in possession by way of said Released Deed since long time. It is also observed by learned Trial Court that the property is leasehold property and the division of said property is not permissible until permission is sought from the N.I.T.

[27] It is also observed that during the pendency of the suit for declaration of preferential right, if any, transaction is done by the purchaser, definitely the concerned person shall be doing this transaction at his own risk. While giving weightage to the loan incurred by the defendant, the learned Trial Court ought to have given consideration to the offer made by the plaintiff as referred above. Ultimately statutory rights under Section 22 of the Hindu Succession Act would be defeated and learned Trial Court has not considered what hardship would suffer other co-owners of the family. What was real intention of Release Deed is matter to be decided after parties will adduce evidence. Prima facie when no Partition Deed is executed at the relevant time suggest that parties may have different intention. As such, the order passed by learned Trial Court below Exhibit 5 is liable to be quashed and set aside. Hence, I proceed to pass the following order:

ORDER

i) The appeal against order is partly allowed.

ii) The order passed by learned 11th Joint Civil Judge Senior Division, Nagpur in Special Civil Suit No.646/2022, dated 17/11/2022, below Exh. 5, is hereby quashed and set aside.

iii) The matter is remanded back for fresh consideration in view of the observations made in this judgment.

iv) Parties to appear before the learned Trial Court on 31/03/2023 at 11.00 a.m.

v) In the meanwhile, parties to maintain status quo as on today.

vi) Learned Trial Court is directed to decide the injunction application Exh.5 as expeditiously as possible within a period of one month from the date of appearance of parties