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Judgment
R. Mala, J.—Original Side Appeals arise out of the common order dated 18.11.2010 made in O.A.Nos.298 and 451 of 2006 in
C.S.No.272 of 2006 & O.A.No.1162 of 2008 in C.S.No.75 of 2006, respectively.
One Varadarajan and Nandakumar, who are the father and son filed a suit in C.S.No.75/2006 for specific performance against the defendants
on the basis of the oral sale agreement and other consequential reliefs stating that the first plaintiff Varadarajan''s Mother Kumudhammal got the
property under the registered Settlement deed dated 20.10.1945. She died intestate in the year 1971 and her husband Srinivasan pre-deceased
her. She is having five sons and her first son Kannan died in the year 1971 leaving behind his widow Seetha and daughters Padmini & Meera.
Subsequently, Seetha died and Padmini and Meera as their legal heirs entitled to the share of Kannan. 3. Padmini, who is plaintiff in
C.S.No.272/2006 has relinquished her right in the property in favour of the first plaintiff/Varadarajan. The other co-sharer Padmanaban died as
bachelor, leaving behind the testamentary disposition (i.e.) leaving the Will. Another brother Veeraragavan, who died intestate, leaving behind his
widow and daughters namely, Rajam, Jayanthi and Preethi. The last brother Bashyam and the legal heirs of Veeraragavan entered into a sale
agreement in respect of their 2/5th share in the suit property with Varadarajan and Nandakumar. Hence they filed a suit for specific performance
on the basis of oral sale agreement allegedly to be entered by Bashyam and legal heirs of Veeraragavan. During the pendency of the suit in
C.S.No.75/2006, Padmini has come forward with the suit in C.S.No.272 of 2006 for her 1/40th share in the suit scheduled property, as if she has
inherited the property of Padmanaban.
Along with the suit, S.Varadarajan and V.Nandakumar filed O.A.No.1162/2008 in C.S.No.75/2006 for an ad interim injunction restraining the
defendants 5 to 10, their men, servants, agents and representatives from encumbering, alienating or dealing with the schedule mentioned property
either by way of lease, mortgage, Development Agreement and or by joint venture either by themselves or with any 3rd parties pending disposal of
the suit.
Padmini filed O.A.Nos.298 and 451 of 2006 in C.S.No.272/2006, for interim injunction restraining the defendants/respondents from alienating
the suit property and restraining the respondents 7 to 12 from altering the physical features of the property or dealing with the suit property pending
disposal of the suit respectively.
The learned Single Judge after hearing both sides allowed all the three applications in O.A.Nos.298 and 451 of 2006 in C.S.No.272 of 2006
and O.A.No.1162/2008 in C.S.No.75/2006. Interim Injunction already granted in O.A.No.451/2006 in C.S.No.272/2006 was made absolute,
against which, the present O.S.A.No.323/2011 is preferred by the purchasers of the property alone. Since injunction has been granted in
O.A.No.298 of 2006, against which, the present O.S.A.No.322 of 2011 has been preferred.
Challenging the order, Mr.S.Suresh Kumar, learned counsel for the Appellants would submit that originally the properties belonging to one
Kumudhammal, who died intestate leaving behind five sons and they divided the property under the registered Partition Deed dated 28.3.2005 and
that has been registered only on 3.11.2005 after receipt of the deficit stamp duty of Rs.6,38,500/-. As per the registered partition deed, ''A''
schedule property was allotted to Varadarajan and Nandakumar, ''B'' schedule property was allotted to the share of legal heirs of Veeraragavan
and ''C'' schedule property was allotted to the share of Bashyam. They executed two sale deeds on 29.05.2006 in favour of appellants herein.
Appellants herein had purchased 5208 sq.ft. under two registered sale deeds and they are the bonafide purchasers.
It is further submitted that in the injunction application, Appellants herein had given an undertaking, which is as follows:
We have invested substantial money for the purchase of the property and intend only to put a residential house for our own living. We do not
intend to enter into any joint development agreement or sell any part of the property to any third party. We are going to build our residential house
and live there with our family. We undertake not to claim any compensation for the superstructure we build in the event of the decision in this suit
going against our interest.
Contention of appellants is that the learned Single Judge has not considered this aspect and granted an injunction restraining the appellants herein
not to proceed with the construction in the suit property, which was purchased by them from their co-owners. He further submitted that both
respondents/plaintiffs /petitioners, Padmini, Varadarajan and Nandakumar have not come to the Court with clean hands and that they suppressed
the material facts and obtained discretionary relief of injunction. Hence, he prayed for setting aside the order passed by the learned Single Judge.
Resisting the same, Mr.R.Thiagarajan, learned counsel appearing for Varadarajan & Nandakumar would submit that it is true, the properties
originally owned by Varadarajan''s mother Kumudhammal, who died intestate leaving behind five sons. One son by name Padmanaban, who died
bachelor leaving behind the Will. The Will was yet to be probated and in that Will, life interest has been given to Rajam, who is one of his brother''s
wife and vested interest given to one Nandakumar, who is none other than the son of one of his brothers, namely, S.Varadarajan. So without
probating the Will, the appellants are not entitled to maintain the appeal. He further submitted that after filing of the suit in C.S.No.75/2006 by
Varadarajan and Nandakumar, appellants purchased the property and they are ""pendente lite"" purchasers and the appellants herein cannot entitled
to any relief. The learned Single Judge has considered this aspect in a proper perspective and came to the correct conclusion. He further submitted
that after disposal of the application in O.A.No.1162/2008 in C.S.No.75/2006, the appellants herein have filed another suit in O.S.No.7305/2011
before the City Civil Court for damages and for injunction and obtained an interim injunction on 22.09.2011. Hence, he prayed for the dismissal of
the appeals.
Mr.S.Namasivayam, learned counsel appearing for the vendors to the appellants would submit that Varadarajan and Nandakumar have filed
the suit in C.S.No.75/2006 for specific performance on the basis of the oral agreement. But there is no oral agreement for sale. They instigated
Padmini to file a suit for partition, who is neither legal heir of the deceased Padmanaban nor has right under the testamentary disposition. So the suit
filed by Padmini in C.S.No.272/2006 itself is not maintainable. So the injunction granted in the applications in O.A.Nos.298 & 451 of 2006
deserve to be dismissed.
Mr.Yashod Varadan, learned senior counsel appearing for Padmini would submit that she is the grand daughter of original owner
Kumudhammal, who died intestate. The father of Padmini is Kannan, who had inherited 1/5th share in the property. It is true, Padmini and Meera,
who are the daughters of Kannan, executed two release deeds in favour of Varadarajan in the year 1991. Padmanaban, who is one of the sons of
Kumudhammal, had died bachelor. So she is entitled to 1/40th share in the suit property and hence, she constrained to file an application for
injunction not to alienate and encumber the property and also not to alter the physical features of the suit property. Learned Single Judge has
considered this aspect in a proper perspective and came to the correct conclusion and hence, prayed for dismissal of the appeals.
12.Considered the rival submissions made on both sides and materials available on record.
13.The brief history of the litigation between both the parties are necessary for the disposal of the appeals:
The properties acquired by Kumudhammal under the registered settlement deed executed by her father Diwan Bahadur T.Rangachariar on
20.10.1945. Her husband Srinivasa Iyengar pre-deceased her and she died intestate leaving behind five sons. The genealogy between the parties
as follows:
Since Kumudhamma died intestate, her children inherited the property equally. One of the sons of Kumudhammal viz., Padmanaban died as
bachelor. Admittedly, one of the daughters of Kannan (i.e.) Padmini, who is the plaintiff in C.S.No.272/2006 and Meera executed two release
deeds dated 18.03.1991 in respect of their 1/10th each share in the property in favour of Varadarajan. Since Varadarajan got 1/5th share by
succession and 1/5th share under two registered Release deeds. Hence, he is entitled to 2/5th share in the suit property. So there was a partition
between Varadarajan, Nandakumar and heirs of Veeraragavan namely, Rajam, Jayanthi, Preethi and another brother Bashyam on 28.03.2005,
which was presented for registration. On 16.08.2005, the District Registrar has issued proceedings directing the parties to pay the deficit stamp
duty of Rs.6,38,072/-. After hearing both sides, order has been passed on 23.09.2005, directing the parties to pay the deficit stamp duty of
Rs.6,38,072/-. On 28.10.2005, Bashyam and Rajam paid that amount and the challan finds place in page-18 of the typed set of papers filed by
the appellants and the document was registered on 3.11.2005.
It is pertinent to note that ''A'' schedule properties measuring 9667.07 sq.ft. were allotted to Varadarajan and Nandakumar who are shown
First Party. ''B'' schedule properties consists of 2604.11 sq.ft. were allotted to the Second party, who are the legal heirs of the deceased
Veeraragavan. ''C'' Shcedule properties comprising of 2604.11 sq.ft. were allotted to the third party, who is Bashyam.
The problem arose after the partition deed dated 28.03.2005 presented before the Registrar for registration. Varadarajan has filed a writ in
W.P.No.35818 of 2005 against the District Registrar(Incharge), Office of Inspector General of Registration and Sub-Registrar, Purasawalkam for
the relief of ''Writ of Mandamus'', ""forbearing the respondents 2 and 3 from releasing the original deed of partition deed dated 28.3.2005
pertaining to the property situate at Door No.84, 85 & 86 Dr.Alagappa road, Chennai-84 or any certified copies in favour of any other person
other than the petitioner till the disposal of the appeal dated 5.11.2005 preferred by the first respondent to the second respondent herein."" On
13.11.2005 in WPMP No.38633/2005 this Hon''ble Court was pleased to order interim injunction and notice to the 2nd and 3rd respondents.
Subsequently, Bashyam, Rajam, Jayanthi and Preethi have filed an application to implead themselves as respondents 3 to 6 in the above writ
petition. Since several proceedings have been initiated between both the parties, we may usefully refer to the details of the proceedings, which are
as follows:
Sl. Suit or Petitioners NameRespondent s Name Nature of the Date of Result/
NoWrit relief filing Remarks
W.P.No. S.Varadarajan 1.The District Writ of 7/11/2005
Mandamus
35818/ Registrar(Incharge),
forbearing the
2005 O/o Inspector
respondents 2
General of and 3
Registration. from releasing
the original
2.The Sub-
deed of partition
Registrar,
deed
Purasawalkam
dated 28.3.2005
[Subsequently
pertaining to the
property
1.S.Bashyam
situate at Door
2.V.Rajam
No.84, 85
3.V.Jayanthi
& 86
4.V.Preethi are Dr.Alagappa
road,
impleaded as
Chennai-84 or
respondents 3 to any
6] certified copies
in favour
of any other
person other
than the
petitioner till the
disposal of the
Appeal
dated 5.11.2005
preferred by the
first
respondent to
the second
respondent
herein. On
13.11.2005 in
WPMP
No.38633/2005
this
Hon''ble Court
was
pleased to order
interim
injunction and
notice to
the 2nd and 3rd
respondents.
O.S.No. S.Varadarajan 1.The District Declaration that 30.1.2006 Dismissed
the
824/2006 Collector, for
defendants have
Chennai. no default
2.The manner of right on
or
Tahsildar, 01.04.2008
authority to issue
Purasawalkam Suit was
patta either suo
-Perambur decreed
motu in respect
Taluk on
of
[Subsequently 27.4.2010
property bearing
1.S.Bashyam
Door
Nos.84,85&86,
2.V.Rajam
Dr.Alagappa
3.V.Jayanthi
Road,
4.V.Preethi
Chennai-84 and
are impleaded
other
as consequential
respondents 3 reliefs.
to 6]
C.S.No. 1.S.Varadarajan1.V.Rajam For specific 6/2/2006 Pending
75/2006 2.V.Nanda 2.V.Jayanthi performance on
the
kumar 3.V.Preethi
basis of the oral
4.R.Padmini (D4 sale
was impleaded agreement
on 30.10.2006)
5.G.Kishore
Kumar
6.G.Anand Kumar
7.G.Pavan Kumar
8.G.Vasantha
Kumar
9.G.Navrathin
10.G.Harish
Kumar(D5 to
D10) were
impleaded on
8.8.2008)
(i) O.A.No. 1.S.Varadarajan1.V.Rajam For ad interim 28.10.2008It was
injunction
1162/20082.V.Nanda 2.V.Jayanthi restraining allowed
respondents 5 to
in kumar 3.V.Preethi on
10, their men,
servants, agents
C.S.No. 4.R.Padmini 18.11.2010
and
75/2006 5.G.Kishore representatives against
from
Kumar encumbering, which,
alienating or
6.G.Anand dealing with the O.S.A.No
schedule
Kumar 324
mentioned
property either
7.G.Pavan /2011 is
by way of lease,
Kumar mortgage, filed.
Development
8.G.Vasantha Agreement and
or by joint
Kumar venture either by
themselves or
9.G.Navrathin
with any 3rd
parties pending
10.G.Harish
disposal of the
Kumar suit
11.The
Corporation of
Chennai
12.CMDA,
Chennai-8
C.S.No. R.Padmini 1.S.Varadarajan For partition andMarch
272/2006 2.V.Nandakumar separate 2006
possession
3.V.Rajam
of 1/40th share
4.V.Jayanthi in
5.V.Preethi the suit schedule
6.S.Bashyam property
7.G.Kishore
Kumar
8.G.Anand
Kumar
9.G.Pavan
Kumar
10.G.Vasanth
a Kumar
11.G.Navrathin
12.G.Harish
Kumar
(i) O.A.No. R.Padmini -do- For interim March It was
298/2006 injunction 2006 allowed
in restraining the on
C.S.No. defendants/ 18.11.2010,
272/2006 respondents against
from
which,
alienating the suit
O.S.A.No
property
322/2011
is filed
(ii) O.A.No. R.Padmini -do- For interim 1/6/2006 It was
451/2006 injunction allowed
in restraining the on
C.S.No. respondents 7 18.11.2010
to12
272/2006 Injunction
from altering the
already
physical features
of granted
the property or on
dealing with the 7.6.2006
suit
was
property
made
absolute,
against
which,
O.S.A.No
323/2011
is filed.
C.S.No. 1.S.Varadarajan1.V.Rajam For declaration 16.10.2006It was
2.V.Jayanthi that
788/2006 2.V.Nanda 3.V.Preethi transferred
4.S.Bashyam the partition
kumar 5.G.Kishore Kumar deed to City
6.G.Anand Kumar
dated 28.3.2005 Civil
7.G.Pavan Kumar
is
8.G.Vasantha Court
illegal, invalid
Kumar and
and
renumbered
9.G.Navrathin
non-est in the
as
10.G.Harish eye of
O.S.No.
Kumar law and other
consequential
12171/2010
11.R.Padmini reliefs.
on the
file of III
Additional
City Civil
Court,
Chennai.
O.S.No. 1.G.Vasantha 1.S.Varadarajan For damages September On
and
7305/ Kumar 2.V.Nandakumar 2011 22.9.2011,
injunction
2011 2.G.Navrathin 3.S.Bashyam interim
3.G.Harish 4.V.Rajam injunction
Kumar 5.V.Jayanthi granted
4.G.Kishore 6.V.Preethi
Kumar 7.K.Meera
5.G.Anand 8.R.Padmini
Kumar
6.G.Pavan
Kumar
O.S.A.No.324 of 2011:
O.S.A.No.324 of 2011 arises out of the order dated 18.11.2010 made in O.A.No.1162 of 2008 in C.S.No.75 of 2006 filed by Varadarajan and
Nandakumar seeking interim injunction. Learned Single Judge after considering the arguments of both sides and undertaking given by the
Appellants herein as defendants 5 to 10, granted interim injunction not to alienate or encumber the property. Since the litigation is pending, the
appellants herein have purchased the property from two sharers that too they are ""pendente lite"" purchasers''. By the interim order not to alienate
or encumber the property will not cause any prejudice or loss to the appellants. In such circumstances, we do not find any reason warranting
interference with the findings of the learned Single Judge and hence, it is hereby confirmed.
17.O.S.A.Nos.322 and 323 of 2011:
These two appeals arise out of the order dated 18.11.2010 made in O.A.Nos.298 & 451 of 2006 in C.S.No.272 of 2006 filed by Padmini, in
which, injunction was granted restraining the respondents from alienating the suit property and restraining the respondents 7 to 12 from altering the
physical features of the property. After hearing both sides, interim injunction already granted on 07.06.2006 in O.A.No.451 of 2006 has been
made absolute.
Challenging that order, learned counsel appearing for the appellants would submit that neither Padmini is legal heir of the deceased
Padmanaban under Hindu Succession Act nor she is the legatee under the testamentary disposition alleged to be made by the deceased
Padmanaban and no prima facie case has been made out. He further submitted that since Padmini has filed a suit for partition of 1/40th share in the
suit property, it is only miniscule share and the same cannot be used as bar for development of the property over which the appellants have spent
nearly Rs.1 crore. The applicant is indulging in a speculative litigation. Hence he prayed for allowing of the appeals and dismissal of applications.
It is pertinent to note while perusing counter affidavit filed in O.A.No.298 of 2006, one of the respondents by name Navarathin has specifically
stated as follows:
... We have invested substaicial money for the purchase of the property and intend only to put up a residential house for our own living. We do not
intend to enter into any joint development agreement or sell any part of the property to any third party. We are going to build our residential house
and live there with our family. We undertake not to claim any compensation for the superstructure we build in the event of the decision going
against our interest.
But he has not given such undertaking in O.A.No.451 of 2006.
At this juncture, it is appropriate to consider the following facts: Admittedly, Padmini is a daughter of Kannan, who is predeceased son of the
original owner Kumudhammal. Padmini and her sister Meera have released their 1/5th share in favour of Varadarajan vide two Release deeds
dated 18.03.1991. He kept quite for long time and the partition deed entered on 28.03.2005, which was registered on 3.11.2005. The suit in
C.S.No.272 of 2006 was filed by Padmini in March 2006. Even though Varadarajan and Nandakumar filed a suit in C.S.No.75/2006 for specific
performance on 6.2.2006, admitting the partition deed and they filed another suit in C.S.No.78/2006 for declaration that the partition deed dated
28.3.2005 is illegal, invalid and non-est in the eye of law and other consequential reliefs, in which, it was specifically stated that one of the sons of
the deceased Kumudhammal (i.e.) Padmanaban died as bachelor. In para-6 of the plaint in C.S.No.75/2006, it is stated as follows:
6.The plaintiffs state that after the demise of S.Padmanabhan, his undivided 1/5th share in all the piece and parcel of land with a building thereon
situate at Old Nos.84, 85 and 86 corresponding to New Nos.48, 46 and 44, Dr.Alagappa Road, Purasawalkam, Chennai-600 084 were
devolved upon V.Nandakumar, the second plaintiff and Smt.V.Rajam respectively. In and by the Testamentary Disposition, the deceased
S.Padmanabhan had bequeathed life interest in favour of V.Rajam and absolute interest in favour of V.Nandakumar thereafter.
The above paragraph would show that as per the testamentary disposition, Padmini is not entitled to any share in the property of Padmanaban,
who died as bachelor. If the Will is not produced, proved and probated as per Section 213 of Indian Succession Act. As per Section 8 of Hindu
Succession Act, Padmini is not entitled to any share in the property, since brothers of the deceased Padmanaban are alive. So Padmini has not
proved prima facie case that she is having share in the property of 1/5th share of Padmanaban. Since she has not proved the prima facie case, she
is not entitled any injunction.
One more adding circumstance is that already Padmini has executed the release deed in favour of Varadarajan on 18.3.1991 for 1/10th share,
she is not having prima facie title to the suit property and she is not entitled to any share in the suit property. Now it is appropriate to consider the
counter affidavit filed by the appellants herein. In para-22 of O.A.No.451 of 2006, it was stated as follows:
22.I state that in a suit for partition, the purchasers are not proper and necessary parties as even if the suit succeeds, we would be entitled for
adjustment of equities in the portions which falls to the share of our vendors. We are not proper parties in a proceeding where the shares of
respective sharers are going to be decided. Moreover, at best, the plaintiff''s claim is only to 1/40th share. A claim of an infinitesimally miniscule
sharer cannot be used as bar for development of the property over which we have spent nearly Rs.1 crore. The applicant is indulging in a
speculative litigation...
Considering the same, if at all Padmini is entitled to 1/40th share, it is only a miniscule sharers and purchasers are entitled equity and that factum
has not been considered by the learned Single Judge.
It is pertinent to note that the learned Single Judge has considered that already interim injunction has been granted, which was subsequently set
aside after full-fledged enquiry on 30.10.2006, vacating the interim injunction granted. Thereafter, an appeal was preferred in O.S.A.No.327 of
2006 and it was disposed of by the Bench of this Court along with the other connected appeals and the same was set aside and it was remanded
to the learned Single Judge for fresh disposal.
It is true that appellants are ""pendente lite"" purchasers. But they had invested the amount. As already discussed that Padmini has not proved
her prima facie title in the property or share in the property and therefore she is not entitled to any injunction. Once a party claiming injunction, he
ought to have proved his prima facie case, balance of convenience in his favour and irreparable loss, if no injunction is granted. Admittedly,
Padmini has not proved her prima facie case (i.e.) already she has executed the release deed of her 1/10th share in the suit property as per Hindu
Law, she is not entitled to any share in the property of deceased Padmanaban. We are of the considered view that Padmini has not proved prima
facie title to the suit property.
The argument that there are five proceedings pending between both the parties, if the Appellants herein are permitted to construct the building,
it will cause irreparable loss to the respondents herein, is does not hold good. Because, Varadarajan and Nandakumar filed a suit for specific
performance, after accepting the partition deed. Subsequently they filed a suit to declare the partition deed dated 28.03.2005 as null and void. In
such circumstances, even though the appellants are ""pendente lite"" purchasers, they had given an undertaking in their counter affidavit filed in their
applications in O.A.No.1162 of 2008 in C.S.No.75 of 2006 and O.A.No.298 of 2006 in C.S.No.272 of 2006, in which, they had specifically
mentioned that they will not claim any compensation and they undertake not to claim any compensation for superstructures they intended to build,
in that event, the suit ends against their interest. Recording the same, we are of the view that if the application for injunction not to alter the physical
feature is dismissed, no serious prejudice would be caused to Padmini. Hence, we are of the view that learned Single Judge has not considered this
aspect in the legal position that Padmini has not inherited any share in the property of Padmanaban, who inherited 1/5th share of his mother''s
property. Hence we are of the view that Padmini has not proved prima facie case. Hence she is not entitled to injunction that restraining the
appellants herein not to alter the physical features of the suit property and not to alienate the suit property.
Learned counsel Mr.R.Thiagarajan, appearing for R2 and R3 in O.S.A.Nos.322 and 323 of 2011, relied upon the decision reported in
Wander Ltd. and Another Vs. Antox India P. Ltd., in para-14, it is held as follows:
The appellate Court will not interfere with the exercise of discretion of the Court of first instance and 23 substitute its own discretion except where
the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled
principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle.
Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below solely on the
ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the
trial Court reasonably and in a judicial manner the fact that the Appellate Court would have taken a different view may not justify interference with
the trial Court''s exercise of discretion.
There is no quarrel over the above said well settled principle.
Whenever an appeal is filed against an order of granting or refusing to grant an order of injunction, the Appellate Court will not interfere with
the exercise of discretion of the Court of first instance and substitute its own discretion except where the finding is perverse or arbitrary or the
Court has ignored the settled principle of law. However, in cases where the Appellate Court is satisfied that the findings of the trial Court was
arrived at ignoring the material evidence the Appellate Court can certainly interfere with the order passed by the trial Court. In the case on hand,
we find that the first respondent- Padmini has not established a prima facie case/prima facie right in the suit property, which was not kept in view in
a proper perspective. Therefore, the order passed in O.A.Nos.298 of 2006 and 451 of 2006 in C.S.No.272 of 2006 deserves to be set aside.
In the result, setting aside the order dated 18.11.2010 made in O.A.Nos.298 & 451 of 2006, O.S.A.Nos.322 and 323 are allowed.
Confirming the order dated 18.11.2010 made in O.A.No.1162 of 2008, O.S.A.No.324 of 2011 is dismissed. Both the parties are directed to
bear their own costs. Consequently, connected Miscellaneous Petitions are closed.