- (1.)AS issue involved in both aforesaid Appeals are arising out of the same impugned order and as the Appeals are also arising from the same order, they are being heard together and are being decided by this common judgment.
(2.)THE Appeal from Order No.386 of 2011 by the appellantoriginal defendant no.6 and Appeal from Order No.413 of 2011 by the appellantsoriginal defendant nos.1 to 5 have been filed being aggrieved with the order passed below Exh.5 in Special Civil Suit No.123 of 2010 dated 2 nd August, 2011 partly allowing the application, Exh.5 for injunction restraining the defendants that they shall not sale or transfer the suit property till the final disposal of the suit.
Learned counsel, Shri Vimal Patel appearing for the appellant of Appeal from Order No.386 of 2011 has submitted that the appellant was not aware about the institution of the suit and the land bearing survey no.451 was purchased by the appellant from the respondent no.7 by registered sale deed dated 20.10.2010 and when these facts have been disclosed by the respondent no.7, the respondent nos.1 to 4original plaintiffs have filed necessary applications, Exh.21 and 28 for the amendment of the plaint and for joining the appellants as party respondents, which has been granted. It is in these circumstances, learned counsel, Shri Vimal Patel submitted that inspite of the fact that land bearing survey no.451 was personal property of the respondent no.5, which came to his share on account of partition, which took place in the year 1970, it could not be treated as joint family property, however, the Court below has committed an error and granted injunction partly, which is assailed in the present appeal. He has also referred to the papers particularly revenue entries to support his submission. Learned counsel, Shri Vimal Patel therefore submitted that from the background of the facts and the pedigree, it is evident that Parshottambhai was the absolute owner and claim made by the original plaintiffsrespondent nos.1 to 4 herein that it is a HUF property is without any basis. He referred to the provision the Hindu Succession Act, particularly, Section 6 of the said Act. He referred to the proviso to emphasis that it will not attract in respect of the transactions, which are prior to 20.12.2004. In support of his submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Ganduri Koteshwaramma & Anr. Vs. Chakiri Yanadi & Anr., reported in (2011) 9 SCC 788 and pointedly referred to the observations made in para no.11. He has also referred to the averments in the plaint being Special Civil Suit No.123/2010 for the background of the facts to make his submission that the contention has been raised challenging the sale deed, which is stated to have been made in collusion, however, the said aspect could be considered on the basis of evidence. He has referred and relied upon the judgment of the Hon'ble Apex Court in case of Bhanwar Singh Vs. Puran & Ors., reported in (2008) 3 SCC 87 and also judgment in case of Hardeo Rai Vs. Sakuntala Devi & Ors., reported in (2008) 7 SCC 46 and submitted that the observations make it very clear that the share of undivided property by a coparcener can be transferred subject to the condition that the purchaser without consent of other coparcener cannot get the possession. He has also made reference to Head Note B.

(3.)LEARNED counsel, Shri Anuj Trivedi appearing for the appellants of Appeal from Order No.413 of 2011 has also supported the submission made by learned counsel, Shri Vimal Patel appearing for the appellantoriginal defendant no.6 of Appeal from Order No.386 of 2011 and submitted that very basis that it was HUF has not been appreciated, for which, he referred to the pedigree and details as to how the property could pass on referring to the Hindu Succession Act. He therefore submitted that the Court below has failed to appreciate about the nature of property that it is a HUF property. Learned counsel, Shri Trivedi has also submitted that it was a joint HUF property and it is required to be noted that the respondent nos.1 to