A.R. Ashwath Gupta vs A.R. Jayachandra Gupta and Others

B.S. Patil, J—These two appeals are filed by 1st defendant in O.S. No. 2877/2014 challenging the common order dated 23.04.2015, thereby allowing the two applications filed in IA Nos. 1 & 2 under Order XXXIX Rules 1 & 2 read with Section 151 CPC by the plaintiff.

IA No. 1 was filed seeking an order of temporary injunction against the appellant - 1st defendant restraining him from alienating or in any manner creating charge on the plaint schedule property. Whereas, IA No. 2 was filed seeking a restraint order against the 1st defendant from putting up any construction and creating any charge on the plaint schedule property.

The suit has been filed for partition by metes and bounds and for separate possession of the 1/8th share of the plaintiff-1st respondent herein in the suit schedule property which is a site formed by the Karnataka Housing Board at Yelahanka New Township, Bengaluru, measuring 90''x 60''.

The case of the plaintiff is, that one Anna Rathnaiah Shetty - father of plaintiff and defendants 1 & 3 to 7 was allotted the suit schedule site by the Karnataka Housing Board during the year 1990. Upon his death, 1st defendant got the sale deed registered in his name from the Housing Board on 25.05.1993; although the property belonged to the joint family, the 1st defendant taking advantage of the sale deed executed in his favour started asserting his own right over the property and denied the legitimate right of the plaintiff for partition and separate possession, therefore, the plaintiff was constrained to institute the suit seeking partition.

2nd defendant is the son of the daughter of deceased Anna Rathnaiah Shetty. He has filed counter claim and has sought for partition and separate possession of the share to which her mother was entitled.

Along with the plaint, as already noticed, two applications were filed by the plaintiff. These applications were for seeking temporary injunction from alienating the property and from putting up any construction over the suit property. The suit and the applications were resisted by the 1st defendant -appellant herein.

The Trial Court has allowed both the applications and has granted interim order as prayed for. Aggrieved by the two orders, these two separate appeals have been filed. As common questions of law arise for consideration, both the appeals are clubbed, heard together and are disposed of by this common judgment.

Mr. Sampath Kumar, learned Counsel appearing for the appellant submits that the suit property absolutely belongs to the 1st defendant. He invites the attention of the Court to the affidavit dated 12.04.1991 expressing his consent for change of khatha in respect of the suit property in favour of the appellant. The said affidavit is part of the records. This affidavit has been sworn to jointly by the plaintiff and 1st defendant. It is stated therein that their father died on 22.09.1990, that there was no objection by the plaintiff and indeed the plaintiff consents for making over khatha and transferring the property into the name of the 1st defendant and that 1st defendant would alone be responsible to deal with the property in the manner desired by him as if he was the sole owner of the property and it was he who would be liable to pay taxes with respect to the said property and to deal with it as its absolute owner. Based on this affidavit, it is contended by Mr. Sampath Kumar that the plaintiff cannot now claim to have any right over the suit property.

He further points out that the registered sale deed in favour of the 1st defendant has been executed by the Housing Board after collecting substantial sale consideration. It is also his contention that plaintiff had executed a registered release deed dated 28.06.1978 releasing himself from the family and from the properties of the family. He, therefore, contends that even though this release deed is prior to the date of registration of sale deed in favour of the 1st defendant of the suit property, as he had released himself from the entire family, he cannot be prima facie treated as person entitled to any share in the suit property.

It is his next contention that by availing loan from State Bank of Mysore, 1st defendant has constructed huge building over the suit property and he is required to pay monthly installments to discharge the loan, or otherwise, 1st defendant will become a defaulter and the bank will enforce the security treating it as non-performing asset, which would not be in the interest of any of the parties. He further submits that the 1st defendant undertakes not to sell the property till the disposal of the suit and that the 1st defendant will augment resources for discharging the loan by inducting tenants and thereby making use of the property to yield substantial income.

Mr. H.V. Ramachandra Rao, learned Counsel appearing for the 1st respondent vehemently opposes the contentions urged by the Counsel for the appellant. He contends that the affidavit sworn to by the plaintiff cannot have the effect of transferring the vested rights of the plaintiff over the suit property in favour of the appellant without there being any registered document. It is his submission that the release deed executed was in respect of coparcenary property that too prior to the allotment of the suit site in favour of the father of the plaintiff and 1st defendant, and therefore, it had no application to the suit schedule property. He has placed reliance on the judgment of the Apex Court in the case of The Printers (Mysore) Private Ltd. Vs. Pothan Joseph, AIR 1960 SC 1156 : (1960) 3 SCR 713 , to contend that ordinarily this Court will not interfere in the matter of exercise of discretion by the court below while granting interim order.

Mr. Jagadeesh, learned Counsel representing the 2nd respondent adopts the contentions urged by Mr. Ramachandra Rao and reiterates that the suit property being the joint family property, the order of temporary injunction granted by the court below is right and justified.

Mr. S.P. Satisha, learned Counsel appearing for respondents 3 to 7 supports the case of the appellant - 1st defendant. He invites the attention of the Court to the memo filed on 07.07.2015 in M.F.A. No. 4028/2015 to contend that respondents 3 to 7 who are the sisters of the appellant have indeed adopted the written statement filed by the appellant in the court below and they do not have any claim in respect of the suit schedule property. He submits that the appeal filed by the appellant may be allowed.

Upon hearing the learned Counsel for all the parties, the only point that arises for consideration is,

"whether the order under challenge in these two appeals suffers from any illegality warranting interference in exercise of the appellate jurisdiction?"

The court below has not considered the effect of the affidavit filed. It has noticed the fact that originally the suit site was allotted in favour of the father of the plaintiff and defendants (grandfather of 2nd defendant) and upon his death, the sale deed is executed in the name of 1st defendant. Based on the same, the Trial Court has made an inference that in the absence of any other material, the property prima facie has to be treated as joint family property, wherein the plaintiff will have her share, and therefore, it was necessary to maintain the property in status quo. The Trial Court has opined that if the 1st defendant were to put up construction over the suit schedule property denying any share to the plaintiff, the plaintiff would be put to irreparable loss, and therefore, pending disposal of the suit, temporary injunction to restrain him from putting up any construction over the suit schedule property had to be granted. Similarly, it has persuaded itself to issue an order of temporary injunction to restrain the 1st defendant from alienating, creating charge or in any other manner disposing of the property.

The glaring mistake committed by the court is in not noticing the fact that the plaintiff himself had sworn to an affidavit stating that it shall be the 1st defendant who shall have all rights over the property and that he had no objection for getting the khatha entered in his name and developing the property or dealing with it in any manner he desired. This affidavit is glossed over by the court below observing that it would be a matter of evidence. For the purpose of preventing further construction over the property and for the purpose of granting temporary injunction placing restraint and restriction on the 1st defendant from putting the property to use, the conduct of the plaintiff discernable by the affidavit sworn to by him would become relevant. In addition, it can be seen that 1st defendant has paid the sale consideration to the property and got it registered in his name. Though the deed was registered in 1993, the present suit is filed in the year 2014 that too only by the brother of the 1st defendant. The other surviving children of Anna Rathnaiah Shetty have all supported the case of the 1st defendant and have adopted the written statement filed by the 1st defendant. The dispute appears to have arisen in the background of the fact that plaintiff and the mother of 2nd defendant are the children of the first wife of Anna Rathnaiah Shetty.

Be that as it may, for the purpose of finding out the prima facie case, the overwhelming material in the form of registered sale deed, payment of consideration by the 1st defendant, affidavit filed by the plaintiff, khatha having been transferred in the name of 1st defendant and the long gap between the registration of the sale deed and institution of the suit have not been taken into consideration by the court below while granting the interim injunction. The balance of convenience was not in favour of the plaintiff. Thus, prima facie case is not made out by the plaintiff.

So far as the irreparable injury is concerned, the fact remains, as is discernable from the findings and the pleadings that 1st defendant has already put up construction over the property. He has availed loan from the nationalized bank. He is required to discharge the loan. If the building constructed is not put to use and the 1st defendant is not permitted to augment resources by making use of it, the mounting dues to the bank would endanger the interest of all the parties including the plaintiff because the bank may resort to measures under the Securitization Act. Therefore, in my view, the Trial Court has failed to properly appreciate the pleadings and the documents while allowing the applications.

It is true interest of the plaintiff and also the 2nd defendant has to be protected because if the property is allowed to be alienated or dealt with in any manner, 1st defendant chose, then it will certainly prejudice their interest. Therefore, the best course is to permit the 1st defendant to augment resources from the huge building that has been constructed by inducting tenants, but at the same time, he has to be restrained from selling or in any other manner disposing of the property pending disposal of the suit. He has to be also directed to submit periodical accounts to the court below once in two months showing the actual rents received and the amount paid towards discharge of the loan obtained over the suit schedule property. This, in my view, will sub-serve the ends of both parties and would mitigate the hardship that would be caused to the 1st defendant and to a certain extent to the other parties by virtue of the temporary injunction now granted by the court below.

Hence, these appeals are allowed in part. The order of temporary injunction restraining the 1st defendant from alienating the property by way of sale is confirmed. The restraint order of injunction granted prohibiting to put up construction or disposing of the property by way of lease is vacated. The 1st defendant is permitted to make use of the suit property by inducting tenants subject to the condition that the rent received periodically, the amount of advance paid and installments paid to the bank shall be periodically submitted to the court by way of statement of accounts once in three months.

Having regard to the nature of suit and the relationship between the parties, the Trial Court is directed to dispose of the suit, as expeditiously as possible, at any rate within a period of one year from the date of receipt of a copy of this judgment. It is made clear that the observations made in this judgment shall not affect the consideration of the suit on merits.