JUDGMENT - MOHTA ANOOP V., J.:---The co-parcenors are battling for the HUF property and suit is pending since 1984 for the same with an interim order. 2. This Notice of Motion has been taken out by the plaintiff against defendants in recently transferred and newly numbered suit in the High Court of Bombay, with basic prayers of appointment of Receiver, injunction and restrainment order from acting in any manner in respect of joint family properties of the deceased Karsandas Haridas Chikhal (the plaintiff and defendant Nos. 1 to 7) including the property described in the schedule annexed as Exhibit A to the plaint and all other related interim reliefs. The prayer Clause (d), which is also claimed, is reproduced as under: "(d) that pending the hearing and final disposal of the above Notice of Motion this Honble Court be pleased to continue the Interim order dated 9th October, 1985 passed by the Honble Bombay City Civil Court at Bombay in Notice of Motion No. 5298 of 1984 in S.C. Suit No. 6653 of 1984;" The extract of the interim order of 9th October, 1985, is reproduced as under: "Shri Dinesh Shah makes a statement on behalf of defendant Nos. 1, 5, 6 and 7. The other parties of the suit through their Advocates also made same statement namely, that they will not sell, alienate, encumber or part with possession of the property described in Exhibit "A" para 11 of the plaint in favour of 3rd person during the pendency of this suit. In view of the statement, Shri Parikh does not press for Prayer (b) of the Motion. As regards prayer (a) the Advocate do not insist on a speaking order. The Court Receiver, High Court, Bombay is appointed for the suit property mentioned in Exhibit "A" para I of the plaint with all powers under Order 40, Rule 1 of without dispossessing any person found in possession of the property." This fresh Notice of Motion is dated 27th January, 2004. From 28th January, 2004, an ad interim order is operative in the above terms. 3. The matter was heard on ad interim reliefs and during the hearing, ad interim order granted as referred above, has been continued. By order dated 21st April, 2004, the ad interim order has been further continued till 5th May, 2004. ISSUE AT AD INTERIM STAGE: 4. 3. The matter was heard on ad interim reliefs and during the hearing, ad interim order granted as referred above, has been continued. By order dated 21st April, 2004, the ad interim order has been further continued till 5th May, 2004. ISSUE AT AD INTERIM STAGE: 4. In view of this undisputed position, therefore, plaintiff has insisted for ad interim prayer is terms of Clause (d), as referred above, pending the final hearing of this Notice of Motion. Therefore, the first and foremost question is whether such interim order should be vacated, which is in existence since October, 1985, at this ad interim stage or it should be continued. 5. Defendant Nos. 8(a) to 8(c) have filed affidavit-in reply to the Notice of Motion dated 11th February, 2004. Defendant No. 11 has filed affidavit-in-reply dated 10th February, 2004. Plaintiffs have filed affidavit in Rejoinder dated 20th February, 2004. No other parties or defendants have filed any affidavit-in-reply to the present Notice of Motion. However, Counsel Mr. Virag Tulzapurkar, on behalf of defendant Nos. 9 to 11, made oral, as well as written submissions and resisted the Notice of Motion including its ad interim prayers. HISTORY OF INTERIM ORDERS: 6. Plaintiff has filed Suit No. 6653 of 1984 on 15th October, 1984 in City Civil Court for partition of the joint family property and for his 1/8th share in the HUF property alongwith prayer of declaration that the agreement of Sale dated 10th April, 1997, is void and not enforceable in law and/or binding on the plaintiff. 7. On 9th October, 1985, Receiver was appointed on the HUF property in Mumbai in Notice of Motion No. 5298 of 1984 in the said suit. The appeal preferred by defendant No. 8 M/s. Majithia Construction Company against the said order had been dismissed. In the result, the appointment of the Receiver has been continued since then. 8. The City Civil Court heard the preliminary issue of pecuniary jurisdiction of the Court and by order dated 2nd August, 2003, held that the suit was beyond the pecuniary jurisdiction and ordered to return the plaint for presentation before the proper Court. Plaintiffs had preferred an appeal against the order dated 2nd August, 2003, which was withdrawn with liberty to present the plaint before the proper Court, by an order dated 17th December, 2003. Plaintiffs had preferred an appeal against the order dated 2nd August, 2003, which was withdrawn with liberty to present the plaint before the proper Court, by an order dated 17th December, 2003. It may be noted here that the ad interim relief appointing the Court Receiver had been continued for a period of six weeks i.e. upto 28th January, 2004, by the City Civil Court. 9. The said Original Plaint in Suit No. 6653 of 1984 has been presented in the High Court (Original Side) Bombay and which is now registered as Suit Stamp No. 167 of 2004, sometime in January, 2004. 10. By an order dated 28th January, 2004, this Honble Court directed that the operative part of the interim order passed by City Civil Court to be continued for a period of two weeks i.e. upto 11th February, 2004. The ad interim relief, thereafter, was extended till today by various orders passed from time to time, in the Notice of Motion in question. There is no dispute, therefore, that the order appointing Court Receiver of the property in question has been in operation from 9th October, 1985 for a period of almost about 19 years. FACTS: 11. The relevant facts, for the purpose of deciding the ad interim relief, are as follows. The property in question was purchased by Vasanji Raghavji, the great grandfather of the plaintiff under a registered conveyance dated 29th July, 1914. Sometime in the year 1927, Vasanji Raghavji died intestate leaving his son Haridas as his only heir. Haridas Vasanji died intestate on 13th December, 1950, leaving behind his two sons Bhagwandas and Karsandas and his widow Hirabai as his heirs. Bhagwandas Haridas, Karta of the HUF also died at Bombay sometime in July, 1951. Therefore, the original defendant No. 1 Karsandas became Karta of the HUF. An agreement for sale dated 10th April, 1977, and/or 10th April, 1978, as disputed by the parties, was entered into between the said Karsandas and defendant No. 2 Anil Bhagwandas and defendant No. 3 Hemant Karsandas as vendors and defendant No. 8 Majithia Construction Co. as the purchaser, for the HUF property in question. This agreement which is Exhibit-B to the plaint, is also under challenge in the suit on various grounds. SUBMISSIONS: 12. as the purchaser, for the HUF property in question. This agreement which is Exhibit-B to the plaint, is also under challenge in the suit on various grounds. SUBMISSIONS: 12. The plaintiffs basic case is that there has been no partition of the HUF and the said agreement has been signed under the misconception of law and under undue influence. There was no oral partition of the property in question. Therefore, the said Haribai widow of Haridas had no acquiring or any disposable right, title and interest in the HUF property. Hirabai was never a co-parcenor of the HUF. The purported gift deed making a gift of her alleged 1/3rd share in the HUF property was illegal and void. Therefore, as there was no partition of HUF of Karsandas and Anil Bhagwandas, no party could have transferred or agreed to transfer the HUF property or any part thereof. The said agreement is, therefore, void and bad in law. There is dispute about the date of the agreement and also of the execution of the said agreement on the three different stamp papers purchased by M/s. Pomer Dadachanji Sethna Co. on 28th January, 1978, nine months after the date of agreement. Therefore, the agreement is as alleged not a genuine one. The agreement in question nowhere created any right, as provided in section 54 of the Transfer of Property Act, as that was an agreement to sell only. It has also been contended that in view of section 52 of the Bombay Stamps Act, such agreement of sale, on such stamp papers is bad in law. There is no dispute that the agreement in question was signed by plaintiffs and defendant Nos. 5 to 7, as confirming parties, but as alleged, it was under uninfluence and misrepresentations, on the part of their father Karsandas, Anil Bhagwandas, defendant No. 2, and Hemant Karsandas, defendant No. 3. Allegations are made against defendant No. 8 who is the builder involved in the suit who is alleged to have, for his own benefit, got the said agreement executed in his favour by introducing the false and incorrect averments of the facts and law. 13. The contesting defendants in the present Notice of Motion, basically contended that the plaintiff himself alongwith defendant Nos. 13. The contesting defendants in the present Notice of Motion, basically contended that the plaintiff himself alongwith defendant Nos. 5 to 7, have signed the agreement as confirming parties and, therefore, at this stage, they are bound by the said agreement itself including the contends therein. The suit is barred by limitation as it was filed sometime in the year 1984 and whereby the agreement dated 10th April, 1977/10th April, 1978 has been challenged, apart from the prayer for partition of the HUF property. It has been further contended, therefore, that unless the suit is allowed as prayed, plaintiff has no right, title or interest in the said HUF property and, therefore, no relief whatsoever, as prayed, including ad interim should be granted to the plaintiff. Third party rights have been already created on the property in question as the builder-defendant No. 8-further transferred the said property to defendant Nos. 9 to 11 and thereafter, it was further distributed to the respective flat owners from time to time. No particulars of the alleged coercion or misrepresentation or undue influence, as required under Order VI Rule 4 of the Civil Procedure Code have been placed on record, except vague and bald allegations. The said order of 9th October, 1985 was passed when defendant Nos. 9 to 11 were not present or were not parties to the suit and, therefore, they were not bound by the same. The order passed by the City Civil Court dated 9th October, 1985, is without prejudice. Defendant Nos. 9 to 11 have been joined as a party to the suit only on 28th July, 1995 and therefore, till that date, they had no right to apply to vacate the said order. 14. Mr. Virag Tulzapurkar has relied on various decision in support of his contentions which are as under: (i) A.I.R. 1917 S.C. 776 (Raghubanchmani Prasad Narain Singh v. Ambica Prasad Singh others)1; (ii) 1994(1) S.C.C. 1 (S.P. Chengalvaraya Naidu v. Jagannath others)2; (iii) 1966(3) All.E.R. 847 (Mackender others v. Feldia A.G. others)3; (iv) Vol. XXXV Mad.L.R. (Madras Series), 177 (Kandasami Asari v. Somaskanda Ela Nidhi, Limited)4, and (v) 1999(5) S.C.C. 590 (Hope Plantations Ltd. v. Taluk Land Board, Peermade another)5. Mr. Tulzapurkar has also relied upon the various provisions of the Contract Act. 15(a). XXXV Mad.L.R. (Madras Series), 177 (Kandasami Asari v. Somaskanda Ela Nidhi, Limited)4, and (v) 1999(5) S.C.C. 590 (Hope Plantations Ltd. v. Taluk Land Board, Peermade another)5. Mr. Tulzapurkar has also relied upon the various provisions of the Contract Act. 15(a). Defendant No. 2 has also relied on 1991(3), S.C.C. 647 (S. Sai Reddy v. Narayana Reddy others)6, defendant No. 2s Counsel adopted the arguments and submissions of Mr. Tulzapurkar and in addition to that, he read and referred the written statement filed on record. 15-b. Mr. Thakkar, learned Counsel, appearing for plaintiffs in support of his submissions, relied upon the following authorities. (i) 27 Bom.L.R. 735 (Palani Ammal v. Muthuvenkatachala Moniagar)7; (ii) A.I.R. 1961 Mad. 190 (M.A. Abdul; Malick Saheb v. T.P. Muhammad Yousuf Sahib others)8, and (iii) 30, Madras Series, 169 (Lakshmi Doss v. Roop Laul others)9. He also relied on the document in support of his case. CONSIDERATION: 16. After considering the rival contentions raised by the parties it is necessary to restrict, the details of the respective arguments and submissions. Those details may be gone into, during the trial or may be at the time of final hearing of the present Notice of Motion No. 351 of 2004. At this stage, interim order the question is limited to the extent of grant of ad interim relief as prayed. In view of this, I am proceeding further to pass the ad interim order, as prayed, in terms of prayer Clause (d), which is already reproduced above. The reason for granting prayer Clause (d) is that prima facie, there is an ad interim order, which is continuing since 9th October, 1985 between the parties in respect of the property involved in question and admittedly, the said interim order is still in operation by various orders passed by the City Civil Court, as well as, by this Court, from time to time. 17. All the material facts and material which are placed on record in the suit which has been filed sometime in October, 1985 remained unchanged. Additional parties like defendant Nos. 9 to 11, who admittedly came into picture sometime in the year 1995, cannot insist or pray for revocation of the order dated 9th October, 1985 which is at present, final and binding upon all the parties. Defendant Nos. Additional parties like defendant Nos. 9 to 11, who admittedly came into picture sometime in the year 1995, cannot insist or pray for revocation of the order dated 9th October, 1985 which is at present, final and binding upon all the parties. Defendant Nos. 9 to 11 have no independent right, except through the parties to the proceedings in question i.e. in Suit No. 6653 of 1984. I am of the view that the tip of the balance and equity lies in favour of the plaintiff, specially in view of the fact that interim order dated 9th October, 1985 is still in force. No sufficient reason or cause is made out by defendant Nos. 9 to 11 defendant No. 2 to justify the vacation or revocation of the interim order dated 9th October, 1985. There is no application or case made out to revoke the order dated 9th October, 1985. 18. It has been pointed out on record that the defendant No. 2 himself at the relevant time, by an application, insisted in the same proceedings that the Receiver be appointed. Whatever may be the reason, now the same party cannot request or argue against his own stand which had been taken in the earlier proceedings or at an earlier point of time. 19. The other reasons, apart from the above, to grant the ad interim relief, as prayed, in terms of prayer Clause (d) of the Notice of Motion are as follows. Agreement of sale in question is void or voidable, as contended by the parties, is a matter of detail scrutiny and deliberation. At this stage of the proceedings, those issues cannot be decided at the instance of the defendant Nos. 9 to 11 and/or the newly added defendants. 20. Coercion or undue influence or misrepresentation or mistaken understanding of law are all issues which also cannot be decided at this ad interim stage, specially when admittedly property involved is a HUF property of co parcenor members like plaintiffs and other defendants, except defendant Nos. 8 to 11, being third parties. The suit in question and prayers made therein are for partition of HUF property and declaration that the agreement of sale in question is void or nullity and that itself is a basic subject matter, which is pending since 1985. Co parcenors inherent rights to the HUF property cannot be disputed. 8 to 11, being third parties. The suit in question and prayers made therein are for partition of HUF property and declaration that the agreement of sale in question is void or nullity and that itself is a basic subject matter, which is pending since 1985. Co parcenors inherent rights to the HUF property cannot be disputed. Oral partition and related rights arising out of the same, if disputed and/or challenged, cannot be decided at this ad interim stage. Except contesting defendants, other defendants are supporting the plaintiffs case. Various issues like suppression of facts and documents, rights of third parties created at the relevant time by valid and relevant documents or documents are void or voidable Raghubanchmani Prasad, Mackender others (supra) and there is no cause of action, cannot be decide at this stage. As relied M.A. Abdul, Alumni Doss (supra) presumption of undue influence or influence, in fiduciary relationship or relationship of parents or guardians in HUF family is still dominant and has different aspects to judge and decide, but not at this ad interim stage. Ordinary principle of presumption of undue influence or misrepresentation cannot be made applicable in such cases or in case of such finduciary relationship between the parties. Delay and/or acquiescence or such related issues also require deliberation. At this stage, it is difficult to accept any case of fraud and/or non disclosure of relevant and material documents as contended by the defendant by relying on S.P. Chengalvaraya Naidu (supra). The facts of that case are totally different and distinguishable and cannot be made applicable to the present case. In this background, the cases cited by defendants, opposing the ad interim relief, are, therefore, distinguishable on the facts and circumstances of the cases itself. 21. Unvacated and existing ad interim order dated 9th October, 1985 is continued since more than 19 years. The Appeal against the same order was dismissed long back. Even though there is no estoppel on a pure question of law like jurisdiction as held in Hope Plantation (supra), undisputed facts in this case do not support the defendant at this stage. Therefore, no prejudice or injury or injustice can be said to be caused to any of the defendants, if the same order is continued, whereby, admittedly there will be no disturbance or dispossession of the property in question. Therefore, no prejudice or injury or injustice can be said to be caused to any of the defendants, if the same order is continued, whereby, admittedly there will be no disturbance or dispossession of the property in question. On the contrary, in such circumstances, Receiver is a must which will be in the interest of all the parties, including the property in question. Defendant No. 8, through whom defendant Nos. 9 to 11 are in picture, cannot object against the appointment of the Receiver in respect of joint family property in question. Merely because subsequent and further rights have been created in favour of third parties, that itself cannot be the reason to discontinue or refuse to grant ad interim relief, as prayed for by the plaintiffs. 22. The joint family in question was separated and partitioned orally or even otherwise. That issue itself is in dispute. The parties are not agreeing on record or even otherwise that there was valid partition of the property of HUF in question. The suit in question is also a suit for partition on of the joint family property. 23. In view of the above circumstances, the material and documents on record on record are, prima facie, in favour of the plaintiff to continue the interim order, as prayed, at least in terms of prayer Clause (d). At this ad interim stage, as pointed out earlier, plaintiffs have made out prima facie case. Great injustice, injury and hardship will be caused to the plaintiffs if the existing interim order is vacated or refused. RESULT: 24. In view of the above, ad interim relief is granted in terms of prayer Clause (d). Notice of Motion is made returnable after six weeks. Parties to act on an ordinary copy of this order, duly authenticated by the Chamber Registrar of this Court. Order accordingly. -----