Madras High Court
Unknown vs Common Order on 21 December, 2010
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21/12/2010 CORAM THE HON'BLE MR. JUSTICE S.RAJESWARAN O.A.No.726 of 2010, A.Nos.4593 and 4594 of 2010 in C.S.No.588 of 2010 and O.A.No.814 of 2010, A.Nos.4760 and 4889 of 2010 in C.S.No.662 of 2010 COMMON ORDER
O.A.No.726 of 2010 has been filed to grant an ad interim injunction restraining all the respondents/defendants 13 to 16 agents, servants, representatives or anybody claiming through them and not to deal with the undivided schedule property in any manner whatsoever from alienating, encumbering, mortgaging or altering the structures, putting up any constructions in the undivided suit schedule property without partition by way of allotting the applicant's share.
2. A.No.4593 of 2010 has been filed by the respondents/defendants 13 to 16 to vacate the injunction granted in O.A.No.726 of 2010 in C.S.No.588 of 2010, pending disposal of the above suit.
3. A.No.4594 of 2010 has been filed by the respondent/16th defendant to vacate the injunction granted in O.A.No.726 of 2010 in C.S.No.588 of 2010, pending disposal of the above suit.
4. O.A.No.814 of 2010 has been filed to grant an interim injunction restraining the respondents/defendants herein from alienating the 3/13 undivided share of the petitioners in the suit property.
5. A.No.4760 of 2010 has been filed by the respondents 11 to 13 to vacate the injunction granted in O.A.No.814 of 2010 in C.S.No.662 of 2010 by order dated 27.07.2010.
6. A.No.4889 of 2010 has been filed to vacate the injunction granted in O.A.No.814 of 2010 in C.S.No.662 of 2010 by order dated 27.07.2010.
7. Parties are referred to as per their ranking in the respective suits for the sake of convenience.
8. As the lis involved and the suit schedule property is one and the same in both the suits a common order is being passed to dispose of all the applications in both the suits.
9. C.S.No.588 of 2010: This suit was filed for the following reliefs
(i)Preliminary decree for partition of the suit schedule mentioned property into 1/4th share from and out of 1/8th of his father's share and over all 1/32nd share in the undivided suit schedule property.
(ii)To appoint an Advocate Commissioner for effecting division of the property by metes and bounds and to allot the specified share to the plaintiff.
(iii)A final decree for partition and separate possession of the plaintiff's 1/4th share and out of 1/8th share of his father and over all 1/32 in the undivided suit schedule property.
(iv)To determine future mesne profits under Order XX Rule 12 & 18 of C.P.C.
10. According to the plaintiff he is the son of first defendant and defendants 2 to 7 are his paternal uncles. Defendants 8 to 10 are the legal heirs of the deceased paternal uncle Vijayakumar. 11th defendant is plaintiff's brother and 12th defendant is his sister.
11. The case of the plaintiff is that a larger extent of the suit schedule property was inherited by his grandfather T.G.Vellaiya Nadar in a decree passed in partition suit filed in C.S.No.528 of 1947 on 02.08.1951. The plaintiff's grandfather had 14 daughters and sons, out of which 2 sons passed away already. The plaintiff is the grandson of late T.G.Vellaiya Nadar and the son of first defendant who is the eldest son of Vellaiya Nadar. T.G.Vellaiya Nadar died intestate on 10.05.2006.
12. The case of the plaintiff is that defendants 3 to 10 herein entered into a sale agreement dated 08.04.2010, with defendants 13 to 15 for the sale of their 6/8th undivided share in the suit schedule property. Similarly defendants 1 and 2 executed a General Power of Attorney in favour of 6th defendant empowering him to deal with the property in any manner he likes including the sale of their 2/8th undivided share of suit schedule property.
13. The plaintiff contends that from his father 1/8th share in the undivided suit schedule property he is entitled to 1/4th share and therefore first defendant cannot execute any Power of Attorney for the entire 1/8th share in favour of 16th defendant. It is very clear that his father and defendants 2 to 10 wanted to alienate the entire suit schedule property without allotting the share of the plaintiff. Further defendants 13 to 16 took possession of the undivided suit schedule property and started demolishing the old building situated there. Hence he filed this suit in C.S.No.588 of 2010 for the aforesaid relief.
14. Along with the suit, the plaintiff filed O.a.No.726 of 2010 for an order of interim injunction and this Court on 30.06.2010 granted an ex-parte order of interim injunction as prayed for for a period of eight weeks and the same is being extended from time to time.
15. After notice, the defendant 13 to 15 entered appearance through their counsel and filed A.No.4593 of 2010 to vacate the order of interim injunction granted on 30.06.2010 in O.A.No.726 of 2010. A similar application in A.No.4594 of 2010 was filed by the 16th defendant.
16. According to the defendants 13 to 15, the interim order was sought only against defendants 13 to 16, but no such order was sought against defendants 1 to 12. They admit that the suit schedule property belongs to T.G.Vellaiya Nadar. Thiru T.G.Vellaiya Nadar got the suit schedule property s his share under partition deed dated 13.12.1956. As per the partition deed dated 13.12.1956, the 'G' schedule property was allotted to T.G.Vellaiya Nadar and the suit property is one of the items in 'G' schedule property. He died on 10.05.2006 and after his death defendants 1 to 10 being his legal heirs are entitled to deal with the property. They admit that defendant s3 to 10 entered into a sale agreement with them on 08.04.2010 for the sale of their 6/8th undivided share. They contend that the sale price was fixed at Rs.1,80,00,000/- and the entire amount was already paid. After the receipt of the entire amount possession was taken by them and therefore they are entitled to deal with the property. It was also mentioned by them that defendants 1 and 2 entered into an agreement of sale dated 13.04.2010 with one Jitendra son of the 13th defendant for a sale price of Rs.60 Lakhs and the entire amount was already paid to them. Thereafter the possession was also parted with. Defendants 1 to 10 have also executed power of attorney at the request of the purchasers and therefore they are legally entitled to the suit schedule property. They invested a huge sum of Rs.2,40,00,000/- for developing the property and at that stage the plaintiff filed the above suit and stalled the process of developing the property. Hence defendants 13 to 15 prayed for vacating the interim order granted.
17. According to the 16th defendant, defendants 1 and 2 entered into an agreement of sale with on Jitendra and after receiving the entire sale consideration, they have not only parted with their possession but executed a general power of attorney. As bonafide purchaser defendants 13 to 16 are entitled to deal with the property and therefore the interim order granted by this Court to be vacated.
18. C.S.No.662 of 2010: This suit has been filed by the plaintiffs dividing and allotting 3/13th share in the suit schedule property. The suit schedule property in the suit is the very same property land and building bearing D.No.57 (Old No.21), Dr.Alagappa Chettiar Road, Purasawalkam, Chennai-84, measuring 4 grounds and 7 sq.ft.
19. The plaintiffs are the daughters of T.G.Vellaiya Nadar and defendants 1 to 10 are the sons and daughters and legal heirs of T.G.Vellaiya Nadar.
20. According to them they have equal rights over the suit schedule property along with defendants 1 to10. However defendants 1 to 10 entered into sale agreement with defendants 11 to 13 for sale of the property in which they have equal rights. After knowing about the sale agreement they sent a notice dated 16.06.2010 requesting partition and allotment of their shares. As there was no response, they filed the above suit for the aforesaid reliefs.
21. Along with the suit they filed O.A.No.814 of 2010 for an order of interim injunction and this Court on 27.07.2010 granted an order of interim injunction as prayed for for a period of eight weeks and the same is being extended from time to time.
22. After notice defendants 11 to 13 entered appearance through their counsel and filed A.No.4760 of 2010 to vacate the order of interim injunction granted on 27.07.2010 in O.A.No.814 of 2010.
23. According to defendants 11 to 13, as per the partition deed dated 13.12.1956, T.G.Vellaiya Nadar and his sons 2 to 7 along are entitled to Schedule J property in which the suit schedule property is also included. The plaintiffs are not entitled to have any share in that property. Further all the male heirs of T.G.Vellaiya Nadar entered into an agreement of sale with defendants 11 to 13 and they have executed a general power of attorney. Therefore they are the absolute owners and the plaintiffs have no share at all to the plaint schedule property. They also referred to a deed of settlement dated 06.03.2006 executed by T.G.Vellaiya Nadar wherein it was clearly mentioned that the daughters have no rights in the suit property. Suppressing the factum of settlement deed, the plaintiffs were able to get an order of injunction and the same is to be vacated.
24. A similar application has been filed in A.No.4889 of 2010 by defendants 2 to 4.
25. According to them the suit itself is not maintainable as the daughters did not have any share in the suit schedule property. They also referred to the Settlement Deed dated 06.03.2006. Hence they also pray for vacating the order of injunction granted on 27.07.2010.
26. First defendant has also filed a counter in O.A.No.814 of 2010. He also maintains that the daughters have no equal shares as claimed by them. He also relies on settlement deed dated 06.03.2006 in support of his contentions.
27. Heard all the learned counsel appeared for the respective parties. I have also gone through the entire documents available on record including the applications, counter and additional affidavits filed by the parties.
28. In the above facts and circumstances the only question that arises for consideration is whether the interim orders granted in both the suits are to be continued or to be vacated.
29. In so far as C.S.No.588 of 2010 is concerned the case of the plaintiff is that the suit schedule property is a joint family property and his father i.e., first defendant has got 1/8th share in it.
30. This fact is not disputed at all and in fact even according to defendants 13 to 16, the plaintiffs father/first defendant had 1/8th share in the property and therefore they entered into a sale agreement with him. It is also not disputed that first defendant received the sale consideration, possession also was given by him. If that being so, especially when the suit schedule property is an undivided one, I am of the considered view that being the son of the first defendant, the plaintiff is definitely entitled to a share in the suit schedule property. It is not anyones case that the 1/8th share of first defendant is his absolute property to alienate the same by excluding the plaintiff. In fact all the parties concur that this property belonged to T.G.Vellaiya Nadar who got the property is a partition deed. Therefore the plaintiff is able to establish prima facie that the suit schedule property is a Joint Family property and he is entitled to a share in 1/8th share of his father/first defendant when it is admitted that the plaintiff's father/first defendant had 1/8th share, defendants 13 to 16 ought to have obtained opinion with regard to the share of the plaintiff in the 1/8th share of first defendant. The defendants 13 to 16 are on record by stating that they purchased the property in its entirety eventhough what was entered into was sale agreement and power of attorneys. It means, whatever share the plaintiff has in the 1/8th share first defendant was also sold and handed over by first defendant as if he owned the entire 1/8th share. Defendants 13 to 16 are admittedly in possession and developing the property when the fact is very clear that the suit schedule property is still undivided and unpartitioned among the eligible joint owners. In such circumstances, if the injunction is not granted the plaintiff would be put to jeopardy especially when his share in the 1/8th share was not identified and allotted to him. I find a prima facie case in favour of the plaintiff and I also find the balance of convenience in his favour.
31. Therefore I have no hesitation in allowing O.A.No.726 of 2010 and making the interim order absolute. Consequently, A.Nos.4593 and 4594 of 2010 are dismissed.
32. In so far as C.S.No.662 of 2010 is concerned, the same was filed by daughters of T.G.Vellaiya Nadar claiming equal shares in the suit schedule property along with their brothers. However the contesting defendants are relying on a settlement deed dated 06.03.2006 executed by T.G.Vellaiya Nadar wherein it was specifically mentioned that the daughters are not entitled to any share in the suit schedule property. This settlement deed dated 06.03.2006 was not mentioned by the plaintiffs in the plaint averments. Therefore it is open to them to establish their equal rights in the suit schedule property in the light of the settlement deed dated 06.03.2006 at the time of trial. At this interlocutory stage, this Court cannot go into the validity or invalidity of the settlement deed dated 06.03.2006. Therefore I don't find a prima facie case in favour of the plaintiffs and the doctrine of lispendens will always protect their interest.
33. Hence I am not inclined to continue the order of injunction granted by this Court and consequently the same is vacated. Accordingly, O.A.No.814 of 2010 is dismissed and the A.Nos.4760 and 4889 of 2010 are allowed.
34. Eventhough a number of judgments were relied on by the learned counsel for the plaintiff in C.S.No.588 of 2010, I am not referring to them as the law with regard to right of a coparcener is well settled and these applications could be disposed of on the basis of accompanying facts alone. Similarly, the argument advanced by the learned counsel for the plaintiff in C.S.No.662 of 2010 by relying on the Hindu Succession Amendment Act, 2005 (39/2005) to submit that the daughters have equal rights could not be gone into at this interlocutory stage and it is open to the daughters to establish their case at the time of trial.
35. Before parting with, I make it clear that the observations made in this order are for the purpose of disposing of above applications alone and it is open to the parties to establish their case uninfluenced by the observations made by me here.
36. In the result, O.A.No.726 of 2010 is allowed, A.Nos.4593 and 4594 of 2010 in C.S.No.588 of 2010 are dismissed; O.A.No.814 of 2010 is dismissed and A.nos.4760 and 4889 of 2010 in C.S.No.662 of 2010 are allowed.
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