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2023 DIGILAW 759 (BOM)

Deodatta v. Ujwala

2023-03-17

URMILA JOSHI-PHALKE

body2023
JUDGMENT Urmila Joshi-Phalke, J. - Heard. 2. ADMIT. 3. Present appeal is preferred by the appellants under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code' for short) against the order dated 07.12.2022 passed by the 13th Civil Judge, Senior Division, Nagpur in Special Civil Suit No.290 of 2015 by which the application filed by the respondent No.1 under Order XXXIX Rule 1 and 2 of the Code along with Order XXXVIII Rule 1 and 5 of the Code and Section 151 of the Code. By the said order the appellants are restrained from alienating or creating any third party interest in the suit property and from changing the nature of suit property by way of construction till final disposal of the suit. 4. The brief facts which are necessary to decide the issue are as follows : (The parties hereinafter referred as per their original nomenclature.). The plaintiff and the defendant Nos.1 to 3 are the real sisters and daughters of late Shri Madhukarrao Vitthalrao Bobde The defendant No.1 is the eldest daughter who is a Medical Practitioner and was running maternity home on the ground floor of the house at Wazalwar brothers situated at Tilak Road, Mahal, Nagpur. The defendant Nos.2 and 3 are the real sisters of the plaintiff and they are residing at their respective matrimonial house. The father of the plaintiff and defendant Nos.1 to 3 had taken plot No.491 ad-measuring 4857 sq.ft. bearing Sheet No.337, City Survey No.187 situated at Professors Colony, Hanuman Nagar, Nagpur on permanent lease basis from the Nagpur Improvement Trust (hereinafter referred to as 'the NIT' for short). Accordingly, the Lease Deed has been executed by the NIT in his favour on 19.01.1980. Initially, the said lease was for 30 years commencing from 02.02.1956 up to 31.03.1986. Subsequently, the said lease was continued vide Lease Deed dated 14.09.1988 for the period from 01.04.1986 to 31.03.2016. The lease was a registered lease in the office of Sub-Registrar, Nagpur City dated 16.09.1988. On the above said plot, the father of the plaintiff as well as the father of the defendants had constructed a house bearing Municipal Corporation House No.933 of Ward No.10, Professors Colony, Hanuman Nagar, Nagpur. The lease was a registered lease in the office of Sub-Registrar, Nagpur City dated 16.09.1988. On the above said plot, the father of the plaintiff as well as the father of the defendants had constructed a house bearing Municipal Corporation House No.933 of Ward No.10, Professors Colony, Hanuman Nagar, Nagpur. The father of the plaintiff and the defendants was working as a Professor and was retired much prior to the date of deed of renewal of lease registered in his favour in the year 1988. He was also receiving the pension to maintain himself and his wife. He was residing in the said plot along with his wife. 5. It is alleged by the plaintiff that her parents were of a quiet nature having great patience and tolerance. Both the parents have equal love and affection towards all the four daughters and they were also having love and affection towards their parents. Defendant No.1 is a very stubborn and quarrelsome nature. Due to the said nature she could not cope up with her husband and could not maintain cordial relations with him. She started residing along with the father in the above address since the year 1982. The parents of the plaintiff could not succeed in convincing defendant No.1 to return to her matrimonial house and allowed her to reside with him. After retirement the father of the plaintiff and defendant was residing along with defendant No.1. Due to the retirement and old age both the parents were under mental pressure and having disturbed state of mind. Due to the old age both the parents of the plaintiff and defendant were fully dependent on the defendant No.1 who was residing along with them. The plaintiff married with the brother of the husband of defendant No.1 in the year 1980 and in the year 1985 she shifted to Mumbai and was residing at Mumbai. Her other sisters i.e. defendant No.3 is also pathologist and residing along with her husband. Defendant No.2 was also residing along with her husband. Plaintiff as well as defendant Nos.2 and 3 never interfered in the routine affairs in the house of their father. However, they were regularly visiting the parents. Her other sisters i.e. defendant No.3 is also pathologist and residing along with her husband. Defendant No.2 was also residing along with her husband. Plaintiff as well as defendant Nos.2 and 3 never interfered in the routine affairs in the house of their father. However, they were regularly visiting the parents. It is further alleged by the plaintiff that due to the pressure of the defendant No.1 the parents of the plaintiff and defendant No.1 were under influence of defendant No.1 as they were totally dependent on her. It was desire of their father that the movable and immovable properties including the aforesaid residential house and other properties shall be equally distributed between all his four daughters. In the year 2008, mother of the plaintiff and defendants had major health problem and she died. After the death of the mother, father was residing with defendant No.1. When the plaintiff visited her parents in the year 2009, defendant No.1 had also expressed that the house will be divided into four parts. However, she had expressed that she wanted to purchase the entire house from the father and the amount of sale proceeds can be used for the medical expenses of her father. Subsequently, it can be distributed amongst all the daughters. After hearing aforesaid desire of defendant No.1, father of the plaintiff did not oppose for the same. She also relied upon defendant No.1 that defendant No.1 would purchase the house and sale proceeds would be deposited in the Bank. The husband of the defendant No.1 who is the brother-in-law of the plaintiff died in January 2014. At the relevant time, the plaintiff and her husband came to Nagpur for attending the funeral. When she visited her matrimonial house, she inquired about the sale of the aforesaid house of her father. However defendant No.1 had informed that nothing is left in the bank account of her parents and there was dispute between them. The aforesaid behavior of defendant No.1 created apprehension in the mind of the plaintiff, therefore, she inquired with the other relatives. She learnt that the name of the defendant No. 1 was recorded as the owner of the aforesaid property vide mutation entry No.3511 dated 30.01.2013 on the basis of Will executed by the father in favour of the defendant No.1. 6. She learnt that the name of the defendant No. 1 was recorded as the owner of the aforesaid property vide mutation entry No.3511 dated 30.01.2013 on the basis of Will executed by the father in favour of the defendant No.1. 6. It is contention of the plaintiff that defendant No.1 got executed the said Will by pressurizing her father. The said Will is not binding on her. Defendant No.1 has committed the fraud on the plaintiff and on all other defendants. At the time of executing the Will her father was 83 years of age and was not keeping good health. He had lost all hopes of his survival due to depression. Said fact is never informed by the defendant No.1 to the plaintiff and other defendants. Defendant No.1 also never informed about the alleged Will. It is contention of the plaintiff that she is having 1/4 th share in the suit property. Only to deprive her and other defendants from getting share, the defendant No.1 got executed the said Will, which is not legal and not binding on her, and therefore, she constrains to file the suit for declaration, injunction and for partition. By filing the said suit, she is seeking the declaration that Will dated 20.02.2009 is not binding upon her as it is not genuine and last Will of the executant. She also claimed her 1/4th share in the said property and also claimed the injunction. 7. In response to the notice, defendant No.1 contested the suit by filing written statement. She denied entire allegations. As per her contention, she became the owner of the suit property as the father had executed the Will in her favour. Said Will is a registered Will and in view of the said Will, she is owner of the said property. Defendant Nos.2 and 3 have also filed the written statement. They have admitted the contention of the defendant No.1 that she became the owner of the suit property on the basis of the Will executed by their father in favour of defendant No.1. It is contended by the defendant No.2 that she was very well aware about the execution of the Will by her father in favour of the defendant No.1. She denied that defendant No.1 expressed in their presence that the property will be distributed amongst them. It is contended by the defendant No.2 that she was very well aware about the execution of the Will by her father in favour of the defendant No.1. She denied that defendant No.1 expressed in their presence that the property will be distributed amongst them. As per her contention, the father of the plaintiff and defendants had expressed his intention of making the Will and bequeathing the house property to defendant No.1. He was in a fit condition of mind and in a fit condition of mind he had executed the said Will. She contended that there is no cause of action arise for the said suit and suit deserves to be dismissed. 8. During the pendency of the suit, the defendant No.1 executed the sale-deed in favour of defendant Nos.4 and 5. The Plaintiff has filed an application under Order I Rule 10 of the Code and added defendant Nos.4 and 5 as a party to the suit. Said application was allowed and defendant Nos.4 and 5 who are purchasers, were added as necessary party to the suit. Plaintiff had also filed an application under Order VI Rule 17 of the Code for amending the Plaint. It is contended that during the pendency of the suit the defendant No.1 had sold the suit property to the defendant Nos.4 and 5 accordingly, they were added as a party. The defendant Nos. 4 and 5 have demolished the entire suit house in order to defeat the right of the plaintiff, and therefore, she wants to brought on record the said fact by way of an amendment. The prayer of the amendment was allowed by the Trial Court. 9. During the pendency of the suit, the plaintiff had filed an application under Order XXXIX Rule 1 and 2 of the Code read with Order XXXVIII Rule 1 and 5 and under Section 151 of the Code for temporary injunction restraining the defendant Nos.4 and 5 from dispossessing or creating third party interest in the suit property and from making any construction over the suit property. She had also sought the attachment of the suit property and directions to the defendant Nos. 4 and 5 to furnish security by way of bank guarantee for sum of Rs.4,17,00,000/-. She had also sought the attachment of the suit property and directions to the defendant Nos. 4 and 5 to furnish security by way of bank guarantee for sum of Rs.4,17,00,000/-. As per the contention of the plaintiff in the said application during the pendency of the suit the defendant No.1 sold the suit property to defendant Nos.4 and 5 for consideration of Rs.4,17,00,000/- by sale-deed dated 21.03.2022. The entire consideration has been received by the defendant No.1 and this fact was suppressed by defendant No.1 from the plaintiff. After this fact was brought to the notice of the plaintiff, she had issued notice to defendant Nos.1, 4 and 5 on 02.05.2022 calling upon the defendant No.1 to deposit entire sale consideration in the Court. But the defendant No.1 did not complied to said notice, and therefore, the plaintiff had filed an application vide Exhibit 52 for directing the defendant No.1 to deposit entire sale consideration or to furnish the bank guarantee. Said application is pending. On 03.08.2022, the plaintiff learnt that defendant Nos.4 and 5 have demolished the entire suit house, thus, it is the contention of the plaintiff that defendant Nos.1, 4 and 5 defeated the right of the plaintiff in the suit property, in collusion with each other discard the basic structure of the suit property. Now defendant Nos.4 and 5 are negotiating with Builder for sale of the suit property for construction of multi storied apartment building, and therefore, he had filed an application for restraining the defendant Nos. 4 and 5 from alienating the suit property. 10. Defendant Nos.4 and 5 who are the purchasers, have opposed the said application by filing say vide Exhibit 77. As per their contention suit property was self acquired property of late Shri Madhukarrao Bobde and in view of the Will executed by Shri Bobde in favour of defendant No.1 dated 20.02.2009, defendant No.1 became the owner. After the execution of the Will defendant No.1 got her name mutated in the suit property and the lease was also renewed in the name of defendant No.1. Since the filing of the suit the plaintiff had not filed any application for temporary injunction nor there was a status-quo against the defendant No.1. The plaintiff had also not registered the lis pendens notice in view of Section 52 of the Transfer of Property Act, 1882. Since the filing of the suit the plaintiff had not filed any application for temporary injunction nor there was a status-quo against the defendant No.1. The plaintiff had also not registered the lis pendens notice in view of Section 52 of the Transfer of Property Act, 1882. After adding them as a party, they came to know about the pendency of the said suit. They are bona fide purchasers for valuable consideration. The plaintiff has not satisfied the three ingredients required for granting temporary injunction and therefore, the application deserves to be rejected. 11. Learned Trial Court after hearing both sides and after perusal of the material came to the conclusion that defendant No.1 had executed the sale-deed in favour of defendant Nos.4 and 5. During the pendency of the suit defendant Nos.4 and 5 have applied for obtaining the loan, which shows that they may commit the construction on the suit property. It is further observed by the Trial Court that if the plaintiff succeeds to show that the Will is not genuine then consequently, the sale-deed which was executed in favour of the defendant Nos. 4 and 5 would not be binding on the plaintiff. To avoid the multiplicity of the litigations, it is held that it is desirable to maintain the status-quo of suit property till final disposal of the suit, and therefore, restrained the defendant Nos.4 and 5 from alienating and creating third party interest in the suit property and from changing the nature of suit property by construction in the suit property. 12. Being aggrieved and dissatisfied with the said order, present appeal is preferred by defendant Nos.4 and 5 on the ground that they are bona fide purchasers and they have purchased the property for valuable consideration. They have purchased the suit property by obtaining housing loan of Rs.3,30,99,000/-. They were not aware about the present litigation pending against the above suit property despite having done due diligence. They have received the legal notice dated 02.05.2022 subsequently, they were added as a party in the suit. The plaintiff has also applied for the amendment and accordingly, she had amended the suit. While incorporating a prayer of 1/4th share, she claimed 1/4th share in the said consideration of the suit property received by the defendant No.1. They have received the legal notice dated 02.05.2022 subsequently, they were added as a party in the suit. The plaintiff has also applied for the amendment and accordingly, she had amended the suit. While incorporating a prayer of 1/4th share, she claimed 1/4th share in the said consideration of the suit property received by the defendant No.1. It is the contention of the defendant Nos.4 and 5 that while allowing the application, the Trial Court has not considered the parameters for grant of temporary injunction under Order XXXIX Rule 1 and 2 of the Code. The first and foremost contention is that there should be a prima facie case and balance of convenience should be in favour of the plaintiff. However, the Trial Court has not considered the hardship of the defendant Nos.4 and 5. So far as the hardship is concerned, by restraining defendant Nos.4 and 5, the Trial Court has not considered the hardship which the defendant Nos.4 and 5 were suffering. The impugned order is extremely inequitable and prejudicial to the interest of the defendant Nos.4 and 5 who are the bona fide purchasers of the suit property and who were completely unaware about the pending dispute in respect thereof, and therefore, they prayed that the order passed by the Trial Court deserves to be set aside. 13. Heard Shri D.V. Chauhan, learned Counsel for the defendant Nos.4 and 5. He submitted that, defendant No.1 became owner on the basis of the Will which is registered Deed executed on 20.02.2009. Defendant Nos. 2 and 3 also supported the claim of the defendant No.1. The execution of the Will shows that it is a valid Deed. Defendant Nos.4 and 5 are the bona fide purchasers, they have purchased the said property by obtaining the loan. They were added as a party in the suit by filing the application under Order I Rule 10 of the Code. The suit was filed in the year 2015. After filing of the Suit, the plaintiff neither applied for injunction nor registered the notice of lis pendens. He submitted that the defendant Nos.4 and 5 will not create any third party interest. Balance of convenience is in favour of the defendant Nos.4 and 5. Defendant No.1 is the owner on the basis of the said Will, which is validly executed in her favour. He submitted that the defendant Nos.4 and 5 will not create any third party interest. Balance of convenience is in favour of the defendant Nos.4 and 5. Defendant No.1 is the owner on the basis of the said Will, which is validly executed in her favour. Admittedly, the sale deed is executed in favour of the defendant Nos.4 and 5. During the pendency of the suit, defendant No.1 was not restrained by the Court from executing the said sale-deed. The hardship of the defendant Nos.4 and 5 is not considered. The Trial Court has not assigned any reason as to the comparative hardship of the defendant Nos. 4 and 5. He submitted that by amending the Plaint, plaintiff has not prayed for setting aside the sale-deed. But by the prayer clause (c) prayed for 1/4th share in the sale proceeds. Thus, the share of the plaintiff can be quantified if she succeeds in the appeal. Thus, he submitted that even the case of the plaintiff is accepted as it is as there is no prayer of setting aside the sale deed no purpose would be served by restraining the present defendants from constructing the suit property. Thus the order passed by the Trial Court is erroneous and against the principles of injunction. He submitted that considering the hardship of the present defendants, the order passed by the Trial Court deserves to be set aside. 14. Per contra, Shri M.D. Samel, learned Counsel for the plaintiff submitted that relationship is not in dispute. The Will which is executed in favour of the defendant No.1 is under challenge. He invited the attention towards the written statement of defendant No.1 and submitted that even the recitals of written statement shows that the father of the plaintiff and defendant was not well, thus, it is sufficient to show that he was not in a fit condition to execute the Will. Defendant No. 3 had not contested the Plaint. All over it seems that she has admitted the contention of the plaintiff. Written statement of defendant No.2 shows that different transactions taken place. The Will is silent about the transactions. The parents of the defendant No.1 and plaintiff were at mercy of defendant No.1. He submitted that the suit property is transferred during the pendency of the suit. All over it seems that she has admitted the contention of the plaintiff. Written statement of defendant No.2 shows that different transactions taken place. The Will is silent about the transactions. The parents of the defendant No.1 and plaintiff were at mercy of defendant No.1. He submitted that the suit property is transferred during the pendency of the suit. While considering the prima facie case fairness of the party to be seen as well as conduct of the parties is also material. As soon as the plaintiff received the information about the alienation of the suit property, she issued the notice not only the defendant No.1 but also to the defendant Nos.4 and 5. He further submitted that there was no declaration in the sale-deed that the suit is pending. He submitted that admittedly, the plaintiff has not registered the notice of lis pendens. But the intention of the defendant No.1 is to be taken into consideration and though she was aware that the suit is pending and the Will is under challenge, hurriedly she disposed of the property to deprive the plaintiff from getting her share. There is no bona fide inquiry by the defendant Nos. 4 and 5. Therefore, their contentions that they are the bona fide purchasers is not acceptable. Moreover, whether they are bona fide purchasers or not is the matter of evidence. If the plaintiff succeeds in the proving that the Will is not genuine one and defendant Nos.4 and 5 completes the constructions, there would be multiplicity of the proceedings. He further denied the contention of the defendant Nos. 4 and 5 that plaintiff had only claimed 1/4th share in the sale proceeds. He submitted that the prayer clause of the Plaint shows that plaintiffs has sought the relief that declaration of the Will executed in favour of the defendant No. 1 be declared as not genuine and not binding on her. She also claimed the declaration that each of the defendants and plaintiff are having 1/4th and undivided share in the suit property. After execution of the sale-deed in favour of the defendant Nos.4 and 5 she amended the prayer clause to the effect that declare the sale-deed dated 21.03.2022 executed by the defendant No. 1 in favour of defendant Nos. 4 and 5 being violative of Sections 52 and 53 of the Transfer of Property Act as null and void. After execution of the sale-deed in favour of the defendant Nos.4 and 5 she amended the prayer clause to the effect that declare the sale-deed dated 21.03.2022 executed by the defendant No. 1 in favour of defendant Nos. 4 and 5 being violative of Sections 52 and 53 of the Transfer of Property Act as null and void. She also sought the relief by filing the amendment application claiming the declaration that each of the defendants and plaintiff are having 1/4th and undivided share in the suit property. share to the extent of sale proceeds and accordingly, money decree for the said amount deserved to be passed in her favour. She also claimed the relief that defendant Nos.4 and 5 have deceitfully and fraudulently demolished the suit house in entirety and having converted the said into open plot No.491 admeasuring 451.230sq.mtr. Thus, he submitted that she had not only claimed the monetary decree but she also prayed for declaration that sale-deed is null and void. He is submitted that if the defendant Nos.4 and 5 are permitted to construct the suit house, then nature of the property would be changed and there would be multiplicity of the proceedings if tomorrow plaintiff succeeds in proving that the Will is not genuine one. He prayed for dismissal of the appeal. 15. Heard rival submissions of the parties. Perused the material on record and following points arise for consideration : (a) Whether prima facie case, balance of convenience is in favour of the plaintiff to grant an injunction? (b) Whether the plaintiff will suffer irreparable loss or more hardship would cause to the defendant Nos.4 and 5, if injunction is granted in favour of the plaintiff? (c) Whether the order passed by the Trial Court calls for any interference? 16. After perusal of the record, it is apparent that relationship between the plaintiff and defendant Nos.1 to 3 is not denied. The plaintiff has filed suit for declaration that the Will dated 20.02.2009 allegedly executed in favour of defendant No.1 be declared as null and void and that defendant does not acquired any title over the suit property by virtue of the Will. The Plaintiff has also claimed her share by filing the suit for partition and separate possession to the extent of 1/4th share in the suit property as well as in either movable and immovable property of late Shri Madhukarrao Bobde. The Plaintiff has also claimed her share by filing the suit for partition and separate possession to the extent of 1/4th share in the suit property as well as in either movable and immovable property of late Shri Madhukarrao Bobde. It is not disputed that the suit property was owned by the father of plaintiff and defendant Nos.1 to 3 Shri Madhukarrao Bobde. As per the contention of the plaintiff after the death of her father, plaintiff as well as defendant Nos.1 to 3 are having 1/4th share each in the suit property. However, the defendant No.1 deceitfully got executed the Will in her favour and on the basis of said Will which is not genuine, got mutated her name in the record of Nagpur Municipal Corporation. The defendant No.1 has resisted the claim of the plaintiff by filing written statement and submitted that she became exclusive owner of the suit property by virtue of the Will dated 20.02.2009 executed by her father in her favour. The defendant Nos.2 and 3 have also supported the claim of the defendant No.1. it is also not disputed that defendant No. 1 has executed the sale-deed in favour of the defendant Nos.4 and 5 during the pendency of the suit. Defendant Nos.4 and 5 came to be added in the suit after the plaintiff came to know about the alienation of the suit property in favour of the defendant Nos.4 and 5. After the execution of the sale-deed the plaintiff has also amended the suit and prayer clause in the Plaint. The defendant Nos.4 and 5 came with a case that they were not aware about the pendency of the suit. They are bona fide purchaser of the suit and purchased the suit property for valuable consideration. It is further contention of the defendant Nos.4 and 5 that no injunction was granted in favour of the plaintiff and therefore, defendant No.1 was not restrained from executing the sale-deed. Even the plaintiff had not registered the notice of lis pendens under Sections 52 and 53 of the Transfer of Property Act. As they were not aware about the pendency of the suit, they purchased the property for valuable consideration after due enquiry. They are bona fide purchaser. Moreover, the plaintiff has claimed the share in the sale proceeds and therefore, no purpose will be served by restraining them from constructing over the suit property. As they were not aware about the pendency of the suit, they purchased the property for valuable consideration after due enquiry. They are bona fide purchaser. Moreover, the plaintiff has claimed the share in the sale proceeds and therefore, no purpose will be served by restraining them from constructing over the suit property. It is submitted by the learned Advocate Shri D.V. Chauhan that admittedly the plaintiff has claimed monetary relief in the sale proceeds. Therefore, no purpose would be served by restraining the defendant Nos.4 and 5 from constructing the structure on the disputed property. It is further submitted that the defendants have incurred huge amount for purchasing the property. They have incurred Rs.4,17,00,000/- for purchasing the said property. For that they have applied for a loan and obtained loan of Rs.3,30,99,000/-. If they are restrained from constructing the structure of the suit property they would be put on irreparable loss for indefinite period i.e. till the disposal of the suit. Thus, the more hardship would cause to them. On the contrary, the plaintiff can be compensated by way of adequate compensation by allowing her to claim the amount of her share from the sale proceeds. It is submitted by the learned Counsel Shri Chauhan that the hardship which will be caused to the defendant Nos.4 and 5 cannot be compensated in terms of money. On the other hand, plaintiff's share which she had claimed in the manner of monetary compensation from the sale proceeds can be adjudicated even though the defendant Nos.4 and 5 permitted to continue the construction in the suit property. Thus, he submitted that prima facie case and balance of convenience is in favour of the defendant Nos.4 and 5 and therefore, the order passed by the Trial Court deserved to be set aside. In support of his contention he placed reliance on the decision of the Hon'ble Supreme Court in case of Lullu Vas (since deceased) through legal representatives Vs. State of Maharashtra and ors. (2019) 9 SCC 175 wherein in paragraph 24 it is held that : "24. The adjudication of the dispute before us has to be based on principles of equity. The party seeking the remedy has to make out a prima facie case on merits, and has to satisfy the court that there is some basis to its claim regarding the existence of his right. The adjudication of the dispute before us has to be based on principles of equity. The party seeking the remedy has to make out a prima facie case on merits, and has to satisfy the court that there is some basis to its claim regarding the existence of his right. Further, the court must balance the comparative hardship or mischief which is likely to occur from withholding the relief, against that which would likely arise from granting it. It has to be further established that non-interference by the court would result in 'irreparable injury' to the party seeking relief and that there is no other remedy available to the party except to grant the relief sought'. 17. He submitted that in the present case, the hardship of the defendant Nos.4 and 5 is not at all considered by the Trial Court. In fact, the present appellant who were the defendant Nos.4 and 5 has to suffer hardship due to the grant of injunction. They had incurred the huge amount for purchasing the plot. They are unable to enjoy the property. Moreover, the Court has not considered that they have purchased the property for valuable consideration and they are the bona fide purchasers. Thus, the hardship of the defendant Nos.4 and 5 is more than the hardship of the plaintiff. Therefore, the injunction granted deserves to be vacated. 18. Shri D.V. Chauhan, learned Counsel also placed reliance on Harish Veljibhai Joshi Vs. Jitendra Veljibhai Joshi, AIR Online 2022 GUJ 1063 wherein Gujarat High Court had considered the aspect of interim injunction and observed that the plaintiff could be compensated in terms of money, and therefore, when there is a remedy available in terms of granting compensation to the plaintiff, there is no question for any prima facie case, restraining the defendant No.10 from putting construction on the land. He further relied upon Best Sellers Retail (India) Private Limited Vs. Adiya Birla Nuvo Limited and ors. (2012) 6 SCC 792 wherein Hon'ble Apex Court had considered the principles of grant of injunction and held that the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in 'irreparable injury' to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages. He further placed reliance on Kamudini Chandrakant Pethkar Vs. Pandurang Shantaram Chikane 2020 SCC OnLine Bom 2784 wherein it is held that it is to be noted that by way of alternative prayer claimed for compensation. Thus, the appellants are well aware of the fact that, no irreparable harm or prejudice would be caused to them, if injunction is not granted. The alleged harm or loss can be compensated in terms of money, as per their own prayer in the plaint. 19. On the other hand, learned Counsel Shri Samel placed reliance on the decision of this Court in case of Dr. Farukh Fakruddin Motiwala Vs. Vimalchand Ghevarchand Jain and ors. 2021(5) ALL MR 655 wherein this Court has held that entry in revenue record about pendency of proceedings, absence of title verification cannot give benefit to the petitioner as that of purchaser for value without notice. The petitioner no where demonstrated that before purchasing the property he or his vendor at any time has called objections of the persons interested, thereby issuing public notice. He further placed reliance on the decision of the Supreme Court in case of Aarati Mishra Vs. Shanti Lata Mishra (since dead) through legal heirs, 2022 AIR CC 1842(CHH) wherein the issue regarding the bona fide purchaser is discussed and held that no paper publication of notice was given before execution of sale-deed, which shows that they have not acted in good faith and knowing fully about ongoing litigation, they have purchased the property, therefore, they cannot get any protection under Section 43 of the Act. He further placed reliance on the decision of the Gujarat High Court in case of Natwarlal Ranchhoddas Patel and ors. He further placed reliance on the decision of the Gujarat High Court in case of Natwarlal Ranchhoddas Patel and ors. vs. Harendrabhai Somjibhai Patel and ors 2022 (2) Civil LJ 72 wherein the Gujarat High Court has observed that it is the indisputable fact that the entire property is undivided and partition between the original owners appears to have yet not taken place and in the circumstances, in the considered opinion of this Court, and as observed by the learned trial Judge, if the status quo qua the entire property is not granted, the original plaintiffs might have suffered irreparable loss. 20. He further placed reliance on the decision of the Andhra Pradesh High Court in case of K Ravi Prasad Reddy vs. G. Giridhar dated 25.01.2022 (Civil Misc. Appeal No.43 and 45 of 2021), while deciding the said case the Hon'ble Andhra Pradesh High Court has held that the effect of Section 52 of the Transfer of Property Act for the purpose of the present case would only be that the said sale transactions in favour of the appellants shall have no adverse effect on the rights of the plaintiffs and shall remain subject to the final outcome of the suit in question. It is further held that, if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary inunction is, thus, to maintain the status quo. It is further held that notwithstanding Section 52 of the Transfer of Property Act making the transfers during pendency of the suit subject to the ultimate decree that may be passed in the suit, the court may, pass an order of temporary injunction, if all the requisite pre-conditions for such grant are satisfied. 21. He submitted that, in the present case, the trial Court while granting temporary injunction had discussed that during the pendency of the suit, the defendant No.1 transferred the suit property in favour of defendant Nos. 4 and 5. 22. After hearing the rival submissions of the parties and after perusal of the record, undisputedly the suit property was owned by the father of plaintiff No.1 and defendant No.1 on lease. 4 and 5. 22. After hearing the rival submissions of the parties and after perusal of the record, undisputedly the suit property was owned by the father of plaintiff No.1 and defendant No.1 on lease. The fact that the defendant No.1 was residing along with parents and father had executed a Will in her favour is undisputed. The plaintiff has challenged the genuineness of the Will. On perusal of the record, it is apparent that, the plaintiff has filed the suit for declaration that the Will dated 20.02.2009 allegedly executed in favour of defendant No.1 be declared as null and void and that defendant No.1 does not acquire any title over the suit property by virtue of the Will. The plaintiff has also sought partition and separate possession of her 1/4th share in the suit property and on the movable and immovable properties of late Shri Madhukarrao Bobde and also for injunction. It is not disputed that the plaintiff and defendant Nos.1 to 3 are the real sisters. As already observed that the suit property was owned by her father Shri Madhukarrao and after his death, the plaintiff along with defendant Nos.1 to 3 are having 1/4th share each in the suit property. The defendant No.1 has resisted the claim of the plaintiff by filing written statement and contended that she become an exclusive owner of the suit property by virtue of the Will dated 20.02.2009, executed by their father in her favour. It is submitted by the learned Advocate of the appellant that temporary injunction application was not initially filed and after 7 years from filing of the suit this application is filed. It is apparent that at the time of filing of the suit, the plaintiff had not filed any application for temporary injunction. The written statements were filed by defendant Nos. 1 and 2. Thereafter, plaintiff came to know that defendant No.1 has alienated the suit property to the defendant Nos.4 and 5. Immediately, she had filed an application under Order I Rule 10 of the Code for adding the appellants as necessary party. She had also applied for amendment of the Plaint. She sought the amendment in the prayer clause. It is vehemently submitted by the learned Advocate for the appellants that initially, she had not filed any injunction application. Immediately, she had filed an application under Order I Rule 10 of the Code for adding the appellants as necessary party. She had also applied for amendment of the Plaint. She sought the amendment in the prayer clause. It is vehemently submitted by the learned Advocate for the appellants that initially, she had not filed any injunction application. If the prayer clause of the Plaint is seen, she had prayed the injunction against the defendant No.1. By the said prayer in terms of prayer clause (3) that the plaintiff further claims injunction against the defendant No. 1, her agents, assignees, nominees, representatives etc. restraining them from prohibiting or obstructing the plaintiff and the other defendants Nos.2 and 3 from entering into and residing in the aforesaid residential house left behind by their deceased father and further restrain the defendant No.1 from alienating or transferring the aforesaid house property or creating any third party interest thereon as well as other movable and immoveable properties and the amount found under the saving bank accounts. Thus by filing the suit, she made a prayer to the Court to restrain the defendant No.1 from alienating or transferring the aforesaid house property or creating third party interest. Admittedly, the injunction was not granted and defendant No.1 was not restrained from alienating the suit property but defendant No.1 was very well aware about the filing of the suit as she appeared and filed her written statement in the suit. Though she was aware that suit is filed against her and the plaintiff has made a prayer against her for restraining her from alienating or creating third party interest, she entered into an agreement with the defendant Nos. 4 and 5 and sold out the suit property. 23. It is vehemently submitted by learned Advocate Shri Chauhan that the defendant Nos. 4 and 5 are the purchasers who were not aware about the pendency of the suit and they are bona fide purchasers as they have purchased the property by paying consideration amount. The defendant Nos.4 and 5 are claiming that they have bona fide purchasers, but prima facie they have to show that they have made reasonable inquiry. Admittedly, they have not issued any public notice or called any objections. The bona fide inquiry contemplates the reasonable inquiry, which is not carried out by the defendant Nos. 4 and 5. Defendant Nos. The defendant Nos.4 and 5 are claiming that they have bona fide purchasers, but prima facie they have to show that they have made reasonable inquiry. Admittedly, they have not issued any public notice or called any objections. The bona fide inquiry contemplates the reasonable inquiry, which is not carried out by the defendant Nos. 4 and 5. Defendant Nos. 4 and 5 not only purchased the property but they have demolished the house. Thus, the structure of the property is already changed by the defendant Nos.4 and 5. It is further submitted by the learned Advocate Shri Chauhan that the plaintiff has claimed the share in the sale proceeds and therefore, there is no reason to restrain the defendant Nos.4 and 5 from constructing the house. If the plaintiff succeeds in establishing her right as to the partition and subject to the result of the suit, she would get her share from the sale proceeds. But the plaintiff has not only claimed her share in the sale proceeds but it is apparent that it is her alternative prayer. She had prayed that the sale deed executed by the defendant No.1 in favour of the defendant Nos.4 and 5 dated 21.03.2022 registered before the Joint Sub-Registrar, Nagpur be declared as null and void and the same be quashed and set aside. She further prayed that a declaration be issued in her favour to the extent that the sale deed dated 21.03.2022 executed by the defendant No. 1 in favour of defendant Nos.4 and 5 being violative of Section 52 and 53 of the Act. The same does not create any right, title or interest over the suit property. She further prayed that the sale consideration of the suit house amount Rs.4,17,00,0000/- wherein she had 1/4th share. Thus, the prayer of the plaintiff not only to the extent of 1/4th share in the sale proceeds, but she had also prayed that the sale deed be declared as null and void. 24. Admittedly, the defendant No.1 claimed that she is the owner of the house as her father has executed the Will in her favour. In view of Section 63 of the Indian Succession Act, 1925, which requires a Will to be attested, it cannot be used as an evidence until at least one of the attesting witnesses is examined, if available. Admittedly, the defendant No.1 claimed that she is the owner of the house as her father has executed the Will in her favour. In view of Section 63 of the Indian Succession Act, 1925, which requires a Will to be attested, it cannot be used as an evidence until at least one of the attesting witnesses is examined, if available. It further states that unlike other documents, the Will speaks from the death of the testator and therefore, the maker of the Will is never available for deposing as to the circumstances in which the Will was executed. That circumstance introduces a certain amount of solemnity in proof of testamentary instruments. Herein the present case, as per the contention of the plaintiff, the defendant No.1 was only residing along with the parents. Her parents under the pressure of defendant No.1. Thus, she alleged that the Will has been executed under the suspicious circumstances. Cases in which the execution of the Will is surrounded by the suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of the property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the propounder to prove that the Will executed is a genuine Will. Thus, whether the defendant No. 1 is exclusive owner of the suit property depends upon the circumstances and proof of the circumstances in which the said Will was executed. If the plaintiff succeeds in proving that the Will executed by the father was not a free Will and defendant No.1 fails to prove that Will was free Will then definitely the defendant No. 1 has no right to dispose of the said property. If the plaintiff succeeds in proving that the Will executed by the father was not a free Will and defendant No.1 fails to prove that Will was free Will then definitely the defendant No. 1 has no right to dispose of the said property. Thus, whether the defendant No.1 is having the title over the suit property and has right to dispose of the property depends upon the genuineness of the Will and the genuineness of the Will is a matter of evidence. At this stage it is necessary to protect the interest of the plaintiff and other defendants i.e. defendant Nos.2 and 3. Admittedly, the defendant Nos.2 and 3 supported the case of defendant No.1. It is the propounder i.e. defendant No. 1 who has to prove that the Will was executed in her favour without undue influence without any coercion and it is free Will and genuine Will. Thus the title over the property is subject to the proof of genuineness of the Will. As already observed that she was very well aware that the suit is filed by the plaintiff. She appeared in the suit and filed the written statement. It is apparent that to deprive the plaintiff from her right, she had sold out the suit property. It is also apparent at this stage that, defendant Nos.4 and 5 have not made any due and reasonable inquiry at the time of purchasing the property. These all aspects were considered by the Trial Court and defendant Nos.4 and 5 were restrained from alienating the property as well as from making any construction over the suit property. 25. Grant of refusal of injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed while granting or refusing the injunction. In the broad category of the prima facie case, it is imperative for the Court to carefully analysed the pleadings and the documents on record and only on that basis, the prima facie case must be governed. In grant and refusal of injunction, the pleading and documents plays vital role. Ordinarily, three main principles governs the grant or refusal of injunction i.e. prima facie case, balance of convenience and irreparable injury. The defendant No.1 has sold out the property during the pendency of the Suit. Admittedly, lis pendens was not registered by the plaintiff. In grant and refusal of injunction, the pleading and documents plays vital role. Ordinarily, three main principles governs the grant or refusal of injunction i.e. prima facie case, balance of convenience and irreparable injury. The defendant No.1 has sold out the property during the pendency of the Suit. Admittedly, lis pendens was not registered by the plaintiff. Admittedly, the injunction was also not obtained against the defendants by the plaintiff. She had already made a prayer in her Plaint to restrain the defendants from alienating the suit property. It is vehemently submitted by the learned Advocate of the Appellant that as lis pendens was not registered, therefore, the defendant No.1 had sold out the suit property. So no illegality is committed by the defendant No.1 and therefore, the act of the defendant No.1 would not be affected by Section 52 of the Transfer of Property Act. The principle underlying Section 52 of the Transfer of Property Act is settled and well defined. If during the pendency of any suit in a Court of competent jurisdiction which is not collusive, in which any right to an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld as valid in regard to the transferred property, the transferee's title will not be affected. But if the title of the pendente lite transferor is recognized or accepted valid only in regard to a part of the transferred property, then the transferee's title will be protected only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted entirely to some other party or parties to the suit or if the transferor is held to have no right or title to convey that property, the transferee will not have any title to the property. If the property transferred pendente lite, is allotted entirely to some other party or parties to the suit or if the transferor is held to have no right or title to convey that property, the transferee will not have any title to the property. Admittedly, in the present case defendant No.1 has executed the sale deed during the pendency of the partition suit and the ownership of the defendant No.1 depends upon the genuineness of the Will. If the plaintiff succeeds to prove that the Will is not genuine one then definitely the defendant No. 1 has no title over the suit property and she is not entitled to sale out the said property. Resultantly, the sale deed of the property executed in favour of defendant Nos.4 and 5 is to be declared as null and void. Thus, the validity of the sale deed is subject to the final decision in the partition suit. 26. I have perused the facts stated in the present appeal. The principle underlying Section 52 of the Transfer of Property Act is certain and well defined. Thus, the title of the defendant No.1 is depend upon the two factors i.e. if Will is declared to be genuine one then she had a title to sale out the property, but if Will is declared as illegal and not genuine one then she has no title to sale out the property. Thus, the transaction entered by defendant No.1 and defendant Nos.4 and 5 depends upon the genuineness of the Will. Thus, the title of the defendant No.1 got clouded and subject to the result of the suit. In such circumstances, if the stay granted is vacated and defendant Nos.4 and 5 are permitted to continue with the construction the entire nature of the suit would change and there would be multiplicity of the proceedings. I have also considered the fact that suit is filed in the year 2015, now the trial Court has already framed the issues and the suit is ready for the hearing. 27. Considering that defendant Nos.4 and 5 have incurred huge expenses for purchasing the said property, it is desirable to expedite the suit instead of vacating the injunction. I have also considered the fact that suit is filed in the year 2015, now the trial Court has already framed the issues and the suit is ready for the hearing. 27. Considering that defendant Nos.4 and 5 have incurred huge expenses for purchasing the said property, it is desirable to expedite the suit instead of vacating the injunction. As already observed that the suit filed is for the partition, the title of the defendant No.1 depends upon the genuineness of the Will, therefore, the sale-deed which is executed by defendant No.1 in favour of defendant Nos.4 and 5 and its validity is also dependant upon the result of the suit. Prima facie it appears that defendant Nos.4 and 5 have not made reasonable enquiry before execution of the sale-deed. Moreover, the issue regarding whether they are bona fide purchaser or not is the matter of evidence. At this stage, it would not be desirable and just and proper to vacate the injunction granted in favour of the plaintiff. 28. In the above circumstances, the appeal is devoid of merits and liable to be dismissed. Considering the suit is more than five years old, same is expedited with direction that the trial Court shall dispose of the suit within six months.