R.S. Dalvi ORDER
1. The appellants (original plaintiffs) are the daughters of respondent No. 1 (original defendant No. 1). Respondent No. 2 (original defendant No. 2) is the bank from which respondent No. 1 has taken a loan which has not been repaid. Respondent No. 2 has initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Securitisation Act).
2. The appellants have sued to protect the share that they claim in the property mortgaged to the bank by respondent No. 1. They claim 2/3rd share therein as coparceners of the Hindu Undivided Family (HUF) consisting of themselves and respondent No. 1. As the daughters of respondent No. 1 they claim in the capacity as coparcener under the amended Section 6 of the Hindu Succession Act 1956 (HSA) which came to be substituted by the Hindu Succession (Amendment) Act 2005 (39 of 1956) which came into effect from 9 September 2005 (HSA).
3. Upon the creation of the mortgage in respect of the suit property, which is a residential flat of respondent No. 1 by respondent No. 1 alone in favour of respondent No. 2, the provisions of Securitisation Act would apply to respondent No. 1. For the orders passed under Section 14 of the Securitisation Act in respect of the rights of respondent No. 2 as the secured creditor under Section 13(4) of the Securitisation Act the appellants, who claim 2/3rd right, title and interest in the mortgaged property, would not be able to file an appeal under Section 17 thereof. Hence the suit.
4. Under the impugned order the learned Judge has considered what transpired between respondent Nos.1 and 2 in respect of the loan which was secured under the Act. That aspect need not be considered to see whether the appellants have a cause of action to sue i.e., whether the appellants have an enforceable right in the suit property. The arguments in the Appeal have also proceeded only upon the basis of that right. If the appellants are shown to be even prima facie entitled to claim, and hence to protect, their 2/3rd share as coparceners in the HUF stated to be consisting of the appellants and the respondent No. 1, the appellants would have a right to claim an ad-interim injunction in respect of such share. If the appellants cannot show any right in law as coparceners of the HUF of the appellants and respondent No. 1 no ad-interim relief can be granted to the appellants in their suit.
5. The appellants' case for claiming 2/3rd right in the suit property is upon the fact that the suit property is purchased from the nucleus of the HUF initially constituted by their grandfather who in turn acquired a property upon partition with his father (the appellants' great grandfather one Mahadevo).
6. Mahadevo had 3 sons Keshavrao, Vasudeo and Pundalik. Keshavrao is the appellants' grandfather. A partition took place of the properties of Mahadevo in 1959. Keshavrao was given a property at Camp, Amravati consisting of a house of 3 floors known as Khinkhinwale on plot No. 9, Survey No. 56A at Amravati. Keshavrao's family consisted of his wife Taramati and his 4 children amongst whom was the appellants' father, respondent No. 1 herein. Their aforesaid joint family properties under an oral partition between the members of the family and the respondent No. 1 is stated to have been paid a share in the proceeds. From those proceeds respondent No. 1 is stated to have purchased a flat being flat No. 18 in Pankaj Mansion, Dr. Annie Besant Road, Worli, Mumbai-400 025. Respondent No. 1 sold that flat to purchase the suit property. Respondent No. 1 created an equitable mortgage of the suit property for securing a cash-credit facility in respect of the company in which he was a Director being M/s. Sequoia Marketing Pvt. Ltd. The loan was no........