Pradip Kumar Ganeriwala vs Rohan Ganeriwala And Ors

For the respondent no.1/plaintiff : Mr. Surajit Nath Mitra, Ld. Sr. Adv.

Mr. Siddhartha Chatterjee, Mr. Abir Lal Ghosh, Mr. Shameek Ray, Mr. Niket Ojha

For the respondent no.5 : Mr. Siddhartha Banerjee, Mr. C.K. Deora, Mr. Balaji Chakraborty Mr. Samriddha Sen Mr. Raja Baliyal

For the respondent no.18 : Mr. Rachit Lakhmani, Mr. Chhandak Dutta, Mr. Vidhya Bhusan Upadhyay Mr. Arindam Banerjee Mr. Rajarshi Ganguly

For the respondent nos.20, 21 & 22 : Mr. Bratin Kumar Dey, Ms. Anjana Banerjee 2

Heard on : 11.02.2025, 18.02.2025, 19.02.2025, 26.02.2025, 03.03.2025, 05.03.2025, 18.03.2025, 26.03.2025, 27.03.2025,

Hearing concluded on : 21.04.2025

Judgment on : 01.05.2025

Sabyasachi Bhattacharyya, J.:-

1. The Defendant no.2, one Pradip Kumar Ganeriwala, has preferred the

present appeal against an order of temporary injunction passed in a

suit filed by the plaintiff/respondent no.1, for declaration that a

purported Deed of Partition and Settlement dated December 2, 2008,

and a Deed of Declaration dated June 1, 2009 are void or voidable and

seeking cancellation of the same, as well as for permanent injunction

restraining the defendant No.2, his agents and assigns from relying on

or taking any step on the basis of the said documents, for permanent

injunction restraining the defendants/respondents from trying to

recover the purported deeds from the office of the Additional District

Sub-Registrar (ADSR), Alipore and for other ancillary reliefs.

2. In the connected temporary injunction application, the

plaintiffs/respondent No.1 sought injunction restraining the defendants

from relying upon the purported deeds and/or parting with possession

or encumbering or removing and/or disposing of the property

mentioned in Schedules A, B, and C of the suit.

3

3. Schedule-A comprises a Mumbai property, situated at Juhu Tara Road,

Juhu, Mumbai 400049, whereas Schedule-B comprises all bank

accounts maintained in the name of Biwanath Ganeriwala HUF

(hereinafter referred to as "BHUF") and Schedule-C comprises all demat

accounts opened for the corpus of BHUF as described therein.

4. The plinth of the plaint case is that the plaintiff is a coparcener in

BHUF and claims title on the basis of such claim.

5. The brief history of the case is that the Biswanath Ganeriwala, the

Karta of BHUF, constituted the HUF in the year 1974 and died on

August 3, 1994, leaving behind his last Will and Testament dated

January 15, 1994, bequeathing all his properties to BHUF, barring two

IBP dealerships. Probate was granted in respect of the said Will in

favour of the executors, namely Pradip Kumar Ganeriwala (defendant

no.2) and Deepak Kumar Ganeriwala (defendant no.3), both sons of

Biswanath.

6. A purported Deed of Partition and Settlement was executed between the

sons of Biswanath, who are defendants in the present suit, allegedly on

the basis of a family arrangement. Pursuant to the said deed, a

purported Deed of Declaration was executed on June 1, 2009, both of

which deeds are challenged in the suit.

7. The plaintiff alleges that he was born on March 13, 1988 and attained

majority on March 12, 2006. However, despite him being a coparcener

and a major on the relevant dates, the deeds of partition and

declaration were executed in the years 2008 and 2009 respectively

without impleading him, giving an impression that his estate was 4

represented by his father, namely Dilip Kumar Ganeriwala, the

defendant no.4 in the suit. It is alleged that defendant nos. 2 and 4

perpetrated fraud by leaving out the plaintiff and entering into such

deeds behind his back, on a false representation that the plaintiff was a

minor on the said dates and his interest was represented by his father,

the defendant no.4.

8. The plaintiff claims that he came to know about the impugned deeds in

early July, 2003, upon entering appearance in a partition suit filed in

respect of the suit properties by defendant No.5 in the present suit,

namely Manoj Kumar Ganeriwala and being served with a copy of the

pleadings therein. On July 6, 2023, the petitioners issued a letter to the

ADSR, Alipore not to register the partition deed. Since he was not yet

aware of the contents of the deed, he had erroneously stated in the

letter that he was a signatory to the partition deed, although it would

be found from the deed itself that he was not.

9. Upon subsequently getting copies of the deeds and a copy of an

application under Order VII Rule 11 of the Civil Procedure Code filed by

the defendant No.2/appellant herein for rejection of the plaint in the

said partition suit (Title Suit No. 423 of 2003), the plaintiff became

aware of the contents of the deeds and instituted the present suit and

filed the connected injunction application.

10. Learned counsel for the appellant assails the impugned temporary

injunction order on several grounds. First, it is contended that the suit

itself is barred by Section 80 of the Code of Civil Procedure in view of

the non-service of prior notice under the said provision on the proforma 5

defendant no. 25, that is, the Additional District Sub-Registrar (ADSR),

Alipore.

11. Secondly, it is contended by the appellant that the suit is barred by

limitation. Although knowledge of the impugned deeds has been

pleaded by the plaintiff/respondent no. 1 to be from December 1, 2023,

a prior letter dated July 6, 2023 to ADSR issued by the plaintiff, where

he admitted to be a signatory of the partition deed, indicates that the

date of knowledge mentioned in the suit was incorrect. In any event, it

is alleged that the limitation should be counted from the date of

execution of the assailed deeds.

12. Learned counsel appearing for the appellant vehemently raises the

issue that the Trial Court at Alipore did not have territorial jurisdiction

to entertain the suit, which hits at the very maintainability of the suit

and consequentially, the lack of prima facie case to grant injunction. It

is argued that the Mumbai property, described in Schedule-A of the

plaint, is not a part of the schedule of the partition deed. Moreover, the

reliefs sought in the plaint do not pertain to the suit properties at all.

Thus, the plaint does not disclose any cause of action in respect of the

suit properties as well as no relief has been claimed in respect of the

said properties. The Mumbai property squarely lies outside the

jurisdiction of the Trial Court.

13. Moreover, the Deed of Declaration, which deals with the Mumbai

property, was notarized before the Metropolitan Magistrate, Calcutta

which is also beyond the territorial jurisdiction of the Alipore Court.

Hence, it is contended that the impugned injunction order was passed 6

without territorial jurisdiction, particularly in respect of the Mumbai

property.

14. Learned counsel for the appellant next contends that the plaintiff

suppressed material facts, including a letter dated July 6, 2023 where

he admitted to be a signatory to the partition deed and that the

partition deed was acted upon by the parties. By a family arrangement

of August 18, 1998, the five sons of Biswanath agreed that the

defendant No.2 (appellant) Pradip, being the eldest son of Biswanath,

became the Karta of the joint family and had been paying all rates and

taxes and looking after the Mumbai Property and that the signatories to

the family arrangement, executed in the form of an affidavit, had no

objection and accorded their consent if the Mumbai premises be

mutated in the records of the statutory authorities at Mumbai in the

name of defendant No.2/appellant. The partition deed and the Deed of

Declaration were executed subsequently in terms of the said family

arrangement.

15. Learned Counsel relies on the judgment of Kale and Others v. Deputy

Director of Consolidation and Others, reported at AIR 1976 SC 807, for

the proposition that the parties to a family settlement are bound by the

terms of the same, irrespective of the same not being registered,

although compulsorily registrable. The parties thereto, after taking

advantage under the arrangement, are debarred by estoppel to resile

from the same or try to revoke it.

16. Learned counsel next submits that one Sanchaita Investment was the

original owner of the Mumbai property. The same was purchased by 7

Biswanath, on behalf of BHUF, in a court sale. By an order passed by a

Division Bench of this Court on March 1, 1999, Sanchaita Investment

was directed to execute a deed of conveyance in favour of the highest

bidder Biswanath and accordingly, upon concession of the

coparceners/sons of Biswanath, the Mumbai property was registered in

the name of the appellant by a registered Indenture dated July 7, 2009.

Thus, the claims made by the plaintiff in respect of the Mumbai

property are frivolous.

17. It is submitted that the claims made in the present suit are contrary to

the reliefs sought in Title Suit No.423 of 2023 by the defendant no.5 in

the present suit, claiming his one/fifth share in the HUF.

18. The delay of about fifteen years in completing the registration of the

partition deed now impugned was due to non-payment of the deficit

stamp duty and registration fees by the defendant no.4, the father of

the plaintiff/respondent no. 1, who had presented it for registration

before the appropriate authorities. Thus, it is argued that the impugned

order should be set aside on the above counts.

19. The respondent No.1, the primary defendant controverts all the above

allegations. Learned senior counsel appearing for the said respondent

contends that the suit has been filed challenging two deeds and as

such is governed by Section 20, and not Section 16, of the Civil

Procedure Code. As such, since all the defendants and the plaintiffs

reside within the territorial jurisdiction of the Alipore Judges‟ Court, the

trial court had ample jurisdiction to take up the same. 8

20. Alternatively, even if suit is deemed to be one in respect of immovable

property, since part of the property is situated at Rowland Road,

Kolkata-700 020, which falls within the territorial jurisdiction of the the

Alipore Judges‟ Court, the said Court has territorial jurisdiction to

entertain the suit. Moreover, the Partition Deed was executed within

the jurisdiction of the trial court. The Deed of Declaration was

purportedly executed by persons, all of whom reside within the

territorial Jurisdiction of the trial court, was executed in Kolkata and at

best, it is an arguable question as to whether the place of execution fell

within the territorial jurisdiction of the trial court. The subsequent

notarization of the same within the jurisdiction of the Metropolitan

Magistrate at Calcutta is immaterial.

21. Regarding limitation, it is argued that as per the plaint, the plaintiffs

first came to know of the impugned deeds in December, 2023. Even if it

is construed that the letter dated July 6, 2023, indicates knowledge of

the plaintiff regarding such deeds, the suit, filed in the year 2024,

comes within the limitation period. Since the plaintiff/respondent no.1

was not a signatory to the impugned deeds, the question of knowledge

arising from the date of execution of the deeds does not arise.

22. In respect of Section 80 of the Code of Civil procedure, learned senior

counsel argues that no relief has been sought against the proforma

defendant no. 25 and, as such, non-service of prior notice under the

said provision is not fatal to the suit.

9

23. The non-disclosure of the letter dated July 6, 2023 by the plaintiff is

not a material fact and, thus, does not tantamount to suppression of

any material fact, it is argued.

24. Although an Indenture by Sanchaita to the appellant‟s HUF

dated July 7, 2009 has been subsequently disclosed by the

defendant no. 2/ appellant, it is argued that the information obtained

from the concerned registration authorities in Mumbai reveals that only

a declaration dated May 4, 2010 was registered, and not the

attachments/annexures thereto, which include the Indenture. In any

event, the Indenture, it is argued, was executed contrary to the order of

the Division Bench of this Court and, as such, did not confer any title

on the appellant.

25. The appellant has alleged that knowledge of the deeds was derived by

the plaintiff from the plaint of the Mumbai suit filed by the appellant.

However, since the plaintiff /respondent no.1 was never a party thereto,

no such question arises. There is nothing on record to show that the

partition deed impugned herein or the consequential deed of

declaration was acted upon by members of BHUF. In fact, the parties

have been residing in the property at Rowland Road, occupying

different portions of the same and there was never any act done by the

parties in terms of the impugned deeds.

26. In any event, the plaintiff was not a party to any of the documents-in-

question or the family arrangement claimed by the appellant. Further,

it has been admitted by the appellant in his stay application before this

Court that BHUF has not yet been dissolved. Thus, the arguments to 10

the effect that the said HUF has since being dissolved by the impugned

deeds is not tenable in the eye of law.

27. The other sets of respondents who are contesting the present appeal

primarily contend that some of them were also major coparceners of

BHUF at the time of execution of the impugned deeds and were

similarly deprived as the plaintiff. However, till date no challenge has

been thrown by the said respondents to the deeds and, as such, much

stress cannot be laid on the stand taken by the said respondents, apart

from the fact that they are supporting the plaintiffs/respondent no.1 in

principle.

28. In the factual backdrop as discussed above and on the arguments of

the parties, we proceed to decide whether the learned Trial Judge acted

within the parameters of law and facts in granting the temporary

injunction, dealing with the cardinal questions involved as we go along.

Although the extensive arguments made by the parties virtually cover

the panorama of all aspects involved in the suit itself, we are conscious

that the hearing of an injunction application cannot be converted to a

mini-trial of the suit, more so in an appeal preferred against the same,

where the scope of enquiry is further limited to the legality of the

impugned order within the parameters of grant injunction.

Section 80, Code of Civil Procedure

29. No relief has been claimed in the suit against the proforma defendant

No.25, the ADSR (Alipore), which is the only authority involved, the rest

of the parties being arrayed in their individual capacities. The proforma 11

defendant is merely a „proper‟ party and not a „necessary‟ party. As

such, the rigours of Section 80, which mandates prior notice to the

State or its instrumentalities, is not attracted in the present case at all.

Territorial Jurisdiction

30. As rightly contended by the plaintiff/respondent no.1, although certain

properties, movable and immovable, have been mentioned in the

Schedules of the plaint, the principal relief claimed in the suit is

declaration that the Deed of Partition and Deed of Declaration-in-

question are void and/or voidable and seeking cancellation of the same.

The other reliefs are consequential and ancillary thereto.

31. Thus, strictly speaking, the principal relief sought in the suit does not

pertain directly to immovable properties; rather, the same comes within

the residuary provision of Section 20 of the Code of Civil Procedure

and, to determine the jurisdiction, we are to look at the residence of the

defendants, most of whom reside within the territorial jurisdiction of

the Trial Court.

32. Also, the partition deed having been executed within the territorial

jurisdiction of the Trial Court, at least part of the cause of action for the

suit arises within the said jurisdiction.

33. The Deed of Declaration was notarized before the Metropolitan

Magistrate at Calcutta, which is outside the jurisdiction of the Alipore

Court, where the suit has been instituted. However, notarization does

not confer any special status on the document and the challenge

thrown in the suit is to its very execution and effect. The place of 12

execution of the deed is not mentioned specifically therein and it is

possible that since all the signatories thereto reside within the

territorial jurisdiction of the Trial Court, it was executed within such

jurisdiction. The said question is a mixed question of fact and law and

cannot be decided at the outset.

34. Even if the properties prescribed in the Schedules of the suit are not

entirely amenable to the territorial jurisdiction of the Trial Court, the

movable properties mentioned therein, being the bank accounts and

demat accounts, can be operated from the territorial jurisdiction of the

Trial Court, particularly in the modern days of online banking, and as

such, arguably the trial Court also has jurisdiction to decide the suit.

35. Moreover, the suit, as framed, does not seek any primary relief in

respect of the said properties. The properties are brought into the

hotchpot of the suit merely because the impugned deeds cover the said

properties and, thus, the properties are consequentially affected by the

outcome of the suit, although such outcome would directly pertain to

the legality and validity of the documents-in-question.

36. The appellant alleges that the partition deed does not cover the Mumbai

property within its schedule. At first glance, the said argument is

attractive. However, the impugned Deed of Partition and Settlement

dated December 2, 2008 lays down the arrangement between the

parties in various manners. The effect of the same is not restricted to

the properties mentioned in the schedule thereof, but in Clause 16 of

the same, it has been mentioned that on the dissolving and the

dissolution of BHUF, the immovable property in Mumbai "has been 13

allotted to Pradip Ganeriwala (HUF) the second party herein free from all

encumbrances and/or any claims or rights from the first, third, fourth,

fifth, sixth parties hereto and their respective heirs descendants and the

branches of the HUF". Thus, Clause 16 brings the Mumbai property

within the fold of the partition deed and also declares the

relinquishment of the claim regarding such property by the other sons

of Biswanath than defendant no.2/appellant. Thus, rights are

created/extinguished in respect of the Mumbai property as well by

Clause 16 of the partition deed, which is in the nature of a Deed of

Settlement as well.

37. In Clause 17 of the said Deed, the five sons of Biswanath, who are

defendants in the present suit, represented that for the purpose of

perfecting the Deed of Partition and the act of partition of the BHUF

properties, they acted and represented their respective branches of HUF

consisting of their respective wives, sons, daughters, grandsons and

grand-daughters. Thus, the rights of the plaintiff, who was a major

coparcener at that point of time in respect of BHUF, were purportedly

represented by the signatories to the partition deed not only in respect

of the other properties mentioned in the Schedule of the Deed but also

the Mumbai property.

38. Again, the Deed of Declaration which is impugned in the suit is a tell-

tale document in its own way. In Clause 6 of the said Deed, the

signatories thereto, being only the sons of late Biswanath, recorded

their agreement and consent to the mutation of the name of only the

defendant no.2‟s HUF in respect of the Mumbai property. As per the 14

said clause, such mutation was to be in the capacity of absolute owner

of the said property with Khas possession, in exclusion of defendant

nos.1 to 5, the widow and the sons of Late Biswanath.

39. In Clause 7 thereof, the signatories admitted that defendant no.2 was

and would be the exclusive owner of the Mumbai property and none of

the other signatories would have any right thereto. Since the said

document was notarised in the City of Kolkata, before the Metropolitan

Magistrate, Eighth Court at Calcutta, it cannot be in doubt that it was

executed in the city of Kolkata. The place of execution of the same is

not mentioned anywhere in the document itself but it is seen that all

the parties thereto reside at 16B, Rowland Road, Kolkata, which comes

within the territorial jurisdiction of the Trial Court. The notarisation of

the document does not confer any special status on it, nor is such

notarisation mandatorily required as such by law. Hence, notarisation

is not an important determinant in ascertaining territorial jurisdiction

to challenge the same. It is arguable as to where it was actually

executed and, as such, the said issue cannot be decided at the

injunction stage, being debatable, and has to be left for the trial stage.

40. In such view of the matter, this Court is of the prima facie opinion that

the trial court had territorial jurisdiction to entertain the suit and grant

injunction as it did.

Limitation

41. It is the primarily the plaint which is to be looked into at this stage for

ascertaining limitation. The plaintiff claims that he first came to know 15

of the deeds in December 2023. As per the plaint pleadings, such

averment is plausible. Reading together the averment in the written

objections filed by the appellant and the injunction application of the

respondent no.1, the plaintiff shot off a letter dated July 6, 2022 to the

ADSR, Alipore (proforma defendant no.25) asking the latter not to

register the purported partition deed, which showed knowledge of the

existence of such a partition deed attributable to the plaintiff on such

date. However, mere knowledge of the existence of such deed, in a

nebulous state, might not necessarily be the first date of actual

knowledge of the contents of a document. That the plaintiff/respondent

no.1 had not yet gone through the contents of the deed on that date, is

evident from the statement in the letter that he was a signatory thereto.

Such statement, being patently contrary to the partition deed itself,

which is relied on by none other than the defendant no.2/appellant,

must be construed to be a clear indicator that on the date of writing the

letter dated July 6, 2023, the actual contents of the disputed partition

deed were not within the knowledge of the plaintiff. Subsequently, after

entering appearance in the previous suit filed by the defendant no.5,

being Title Suit No.423 of 2023 and having been served with a copy of

the application under Order VII Rule 11 of the Code filed by the

defendant no.2/appellant, the plaintiff learnt of the contents of the

deed and only thereafter filed the suit.

42. In any event, whether the plaintiff had knowledge of the deeds-in-

question in July or December, 2023, is immaterial, since either way the

suit filed in 2024 would be well within the statutory period of 16

limitation. The deeds themselves show that the plaintiff was not a

signatory in any of them; rather, the defendant no. 4, the father of the

plaintiff, signed on his behalf by giving out that the plaintiff was a

minor on the relevant dates.

43. In the absence of anything to show that the plaintiff had knowledge of

the said deeds before the year 2023, the question of limitation partakes

the character of a mixed question of law and fact at best and, hence, it

cannot be said ex facie that the suit is barred by limitation.

44. Thus, this objection of the defendant no.2/appellant cannot but be

turned down as well.

Suppression of material facts

45. The non-disclosure of the letter dated July 6, 2023 by the plaintiff is

not germane to the adjudication of any of the issues involved in the suit

at all. The defendant no.2/appellant claims that the plaintiff has

suppressed that the Deed of Partition and Settlement and the Deed of

Indenture in question were acted upon by the parties. In the absence

of any prima facie evidence thereof, we cannot come to a conclusion

that those deeds were actually acted upon and such fact was

suppressed by the plaintiff. Hence, we do not find any instance of

suppression of any material fact.

46. The appellant further alleges that the plaintiff‟s father, the defendant

no.4, had signed the document and cannot now deny the same.

However, the fact that defendant no.4, the father of the plaintiff, was a

signatory to the document does not make it binding on the plaintiff. At 17

the relevant point of time, the plaintiff was a major, since his date of

birth has not been disputed by the defendant no.2/appellant. Thus, in

any event, his father could not have represented his estate on the dates

when the impugned deeds were executed. The parties are governed by

the Mitakshara School of Hindu Law and, thus, the plaintiff was a

coparcener in the property the moment Biswanath, the Karta of BHUF,

met his demise.

47. Also, the plaintiff has categorically alleged fraud having been practised

by the defendant no.2 as well as defendant no.4 and the other sons of

Biswanath Ganeriwala by executing the assailed deeds by fraud and

misrepresentation. Thus, the very authority of the plaintiff/appellant‟s

father and the other sons of Biswanath to sign the deeds-in-question

has been categorically challenged in the present suit and there does not

arise any question of suppression on such front. We, accordingly, do

not find the suppression of any material fact by the plaintiff.

Merits

48. On merits, both parties admit certain facts which affect the Mumbai

property.

49. It is an admitted position that there was an auction sale of the Mumbai

property by its original owner Sanchaita Investment. Such sale was

treated to be a Court sale by dint of a Division Bench order of this

Court dated August 8, 1986 passed in Matter No.779 of 1996. In the

said order, the Division Bench recorded that Biswanath Ganeriwala

was a successful bidder and directed the Mumbai Property to be 18

transferred to the successful bidder by execution of a Deed of

Conveyance by the Commissioner, Sanchaita Investment by treating

the same as a court sale. After the sale was concluded, the

Commissioner was directed to deliver the possession of the property to

the purchaser.

50. A Sale Certificate was subsequently issued pursuant thereto. It was

categorically mentioned in the said certificate that Biswanath

Ganeriwala had participated in the auction sale on behalf of his HUF.

By virtue of the Sale certificate, the Mumbai property was transferred to

BHUF (a copy of the Sale Certificate is annexed at Pages 444 to 449 of

the stay application filed in connection with the present appeal).

51. The Sale Certificate itself, in law, is conclusive proof of the title of the

purchaser and as such, there is no denying the fact that by virtue of

the same, BHUF became the absolute and exclusive owner of the

Mumbai property.

52. Meanwhile, Biswanath Ganeriwala had met his demise, leaving a Will,

bequeathing his entire assets, including the Mumbai property, in

favour of BHUF. The said Will was probated on March 26, 1997.

53. Whatever happened subsequently in respect of the Mumbai property

was arguably bad in law, since all the coparceners of BHUF, which was

the owner of the Mumbai property, were not represented in any of the

subsequent germane documents. The Affidavit affirmed on August 18,

1998, annexed at Pages 450 to 452 of the stay application filed in the

present appeal, shows that only the defendant nos.1 to 5 were parties

thereto, being the widow and sons of Late Biswanath. They, among 19

themselves, admitted that they had jointly become the owners of the

property after the death of Biswanath. A very important facet of the

said Affidavit is that the same did not, by itself, purport to transfer

absolute title in any manner in favour of the defendant no.2/appellant,

nor was the same registered. Clause 4 of the same merely recorded

that Pradip, the defendant no.2/appellant, being the elder son of

Biswanath Ganeriwala, had formed his own HUF and became the Karta

of the joint family. The expression "joint family" obviously referred the

BHUF. In such capacity, it was recorded that the defendant

no.2/appellant had been paying all rates and taxes and looking after

the Mumbai property.

54. Clause 5 of the Affidavit recorded that the signatories thereto had no

objection and accorded their consent if the said property was mutated

in the records of the statutory authorities at Mumbai in the name of

Pradip Kumar Ganeriwala.

55. It is trite law that mere mutation does not translate into conferment or

transfer of title. Hence, nothing in the said Affidavit dated August 18,

1998 amounted to transfer of any title to the Mumbai property in

favour of the present appellant. In any event, the said Affidavit was a

notarised document on a Rupees Ten non-judicial stamp paper and

could not confer any title in law.

56. The next chapter in the saga is an order dated March 1, 1999, whereby

another Division Bench of this Court proceeded on the premise that by

the Sale Certificate mentioned above, the Commissioner of Sanchaita

Investment had sold in auction the property-in-question in favour of 20

BHUF. It was submitted by the defendant no.1 to 5 herein before the

court that the present appellant was then the Karta of BHUF, which

was then said to exist under the nomenclature "Pradeep Kumar

Ganeriwala HUF". Thus, it is clear from the order dated March 1, 1999

that it was represented by the defendant no.2‟s HUF, which was the

petitioner therein, that the defendant no.2 acted as the Karta of BHUF

itself, which was existing till then, albeit under the nomenclature of the

HUF of defendant no.2. Thus, the court did not proceed on the premise

that Pradip or his HUF had any manner of right in the property but on

the premise that the Sale Certificate conclusively conveyed the title in

the Mumbai property in favour of BHUF, which itself was subsisting,

but in a different name. In the above backdrop, the court directed the

name of Pradip Kumar Ganeriwala HUF to be mutated in respect of the

Mumbai property. The Division Bench, in its order dated March 1,

1999, in fact reiterated that since the property was undoubtedly sold

in public auction and the Sale Certificate was also issued by the

Commissioner (in the name of BHUF), the court need not enter into the

question as to the status of the claimant therein and only directed to

other respondents therein to give effect to the Sale Certificate issued by

the Commissioner of Sanchaita Investment, which was an annexure to

the writ petition before the court, by making necessary mutation "in

accordance with law after giving an opportunity of hearing to all

interested parties", including the petitioner. Thus, the expression "in

accordance with law" mandated that the mutation would be in line with

the Sale Certificate, by virtue of which BHUF was the owner of the 21

Mumbai property, and the property was merely to be mutated in the

name of the defendant no.2/appellant.

57. Thus, on the prima facie premise of the documents which have been

placed before this Court and the Trial Court as discussed above, the

position till that date was that BHUF was the undisputed owner of the

Mumbai property and it was merely to be mutated in the name

defendant no.2‟s HUF for taking appropriate steps in respect of the said

property on behalf of the BHUF. After the execution of the Sale

Certificate, there could not in any event be any further transfer unless

all the coparceners of BHUF were parties to such transfer.

58. However, in the teeth of such legal position and apparently flouting the

order of the Division Bench, which mandated the mutation to be done

in accordance with law, the purported notarized Deed of Declaration

was executed on August 3, 2009 whereby, in a twist given to the facts,

the sons of Late Biswanath expressed "no objection" to the mutation of

the property in the name of Pradip Kumar Ganeriwala HUF "as being

the absolute owner of the said property with khas possession", to the

exclusion of the widow and sons of Late Biswanath, in the process

excluding the other coparceners of the property, including the

plaintiff/appellant as well, behind their back.

59. Thus, apart from the fact that the widow and sons of Late Biswanath,

by themselves and in exclusion of the other coparceners of BHUF did

not have the locus standi to transfer absolute title in the property in the

absence of the other coparceners, including the plaintiff, the notarised

but unregistered Deed of Declaration could not even purport to operate 22

as an agreement for sale, let alone an instrument of transfer of the

Mumbai property in the eye of law.

60. The impugned Deed of Partition and Settlement is vitiated by the same

legal flaws as the Deed of Declaration. In the said document, the only

signatories were the widow and the sons of Late Biswanath, although

on such date, the plaintiff and the other coparceners of the BHUF of the

plaintiff‟s generation were left out. The parties therein went so far as to

mention the plaintiff as "Master Rohan Ganeriwala" thereby giving an

impression that he was a minor who was represented by his father

Dilip Kumar Ganeriwala, the present defendant no.4, although he had

already attained majority then. On the basis of the facts which are

before the court, prima facie such statement was a gross

misrepresentation of the actual facts and accordingly, a strong prima

facie case of fraud and misrepresentation has been made out, sufficient

to taint the said Partition Deed.

61. The appellant also seeks to rely on a subsequent Deed of Indenture

executed in his favour by the Sanchaita Investment. However, once the

Sale Certificate was issued by the Sanchaita Investment, pursuant to

the direction of the Division Bench of this Court dated August 8, 1986,

the transfer of property in favour of BHUF became conclusive and the

Sale Certificate, in law, became conclusive proof of such title of the

transferee. Hence, as on the date of execution of the purported

Indenture in favour of the appellant dated July 7, 2009, Sanchaita

Investment, the transferor, had already been divested of title in the 23

property and the said Deed of Indenture could not operate to convey or

transfer any title whatsoever in favour of the HUF of the appellant.

62. The information obtained by the appellant regarding the Deed of

Indenture allegedly not being registered, however, does not evoke much

confidence. If looked at properly, the same refers to a declaration. The

Marathi transcript of the information slip, read with its English version,

indicates that what was registered was not only a Deed of Declaration

("Ghoshana Patra") but also a Deed of Conveyance

("Kharedadarakarun") which was unilateral ("Ektarfi"). The annexures

thereto were not duly stamped. We are not sure about what was

annexed to the said document but the Marathi transcript, which is

somewhat similar to Hindi, indicates that the declaration itself also was

a Deed of Conveyance of sorts, although unilaterally executed.

63. Be that as it may, such information becomes irrelevant, since we have

concluded above that even if an Indenture was executed and registered

on July 7, 2009, the transferor Sanchaita Investment did not have title

in the property and as such, could not convey what it itself did not

have. Thus, the reliance of the appellant on the purported Deed of

Indenture in his favour dated July 7, 2009 is toothless and immaterial.

64. That apart, such Indenture, even if executed, was vitiated in law, being

contrary to the Sale Certificate which was itself purportedly a basis of

the said Indenture, as well as in contravention of the orders of the

Division Benches of this Court dated August 8, 1986 and March 1,

1999, apart from being tainted by fraud and misrepresentation. 24

65. In view of the above observations, we are of the opinion that a strong

prima facie case to go for trial has been made out by the

plaintiff/respondent no.1, justifying the grant of injunction. The very

activities of denial of title of the plaintiff on the part of the defendant

no.2/appellant itself furnishes urgency and apprehension of irreparable

injury if the injunction as prayed for is not granted.

66. The reliance of the appellant on Kale's Case is irrelevant in the present

context, since the so-called family arrangement relied on by the

appellant was tainted by the non-joinder of all coparceners of BHUF as

well as vitiated by fraud insofar as the plaintiff was made out to be a

minor, represented by his father, despite the plaintiff having attained

majority on the relevant date.

67. The scope of the appellate court is limited while sitting in judgment

over an injunction order and the appellate court cannot substitute its

own views, even if an alternative view is possible, if the Trial Court does

not commit any legal or factual error.

68. On the basis of the conclusions arrived at by us above, we find that a

strong prima facie case of injunction has been made out by the plaintiff

and the other legal parameters of grant of injunction have also been

fully satisfied. Accordingly, we do not find any reason to interfere with

the impugned order.

69. Hence, FMAT No. 42 of 2025 is dismissed on contest thereby affirming

the impugned Order dated January 27, 2025 passed by the Learned

Senior Judge (Senior Division), Second Court at Alipore, District: South

24 Parganas in Title Suit No. 1225 of 2024.

25

70. CAN No. 1 of 2025 is accordingly dismissed as well.

71. There will be no order as to costs.

72. It is made clear that the merits of the issues involved in the suit have

not been entered into by this Court, and the above findings are

tentative in nature, confined to the adjudication of the appeal against

the temporary order of injunction, and shall not be binding on the

learned Trial Judge at the stage of final hearing of the suit. It will be

open to the learned Trial Judge to decide the suit on its own merits

without being unduly influenced by the tentative observations made

above.

73. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

(Sabyasachi Bhattacharyya, J.)

I agree.

(Uday Kumar, J.)