Calcutta High Court
Basant Kumar Kejriwal vs Suman Kejriwal And Ors. on 17 March, 2005
Equivalent citations: AIR2005CAL260, 2005(2)CHN231, AIR 2005 CALCUTTA 260, (2005) 2 CAL HN 231, (2005) 3 ICC 103, (2005) 2 HINDULR 85
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This first miscellaneous appeal is at the instance of defendant No. 2 in a suit for partition and is directed against order dated 17th May, 2004 passed by the learned Civil Judge, Senior Division, Purulia in Title Suit No. 114 of 2003 thereby disposing of an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure filed by the plaintiffs-respondents thereby directing both the plaintiffs and defendant No. 2 to maintain status quo in respect of nature and character of the suit property and also restraining the said defendant from transferring any portion of the property described in the Schedule of the plaint till the disposal of the suit.
2, The plaintiffs-respondents filed the aforesaid suit in the Court of Civil Judge, Senior Division, Purulia, thereby praying for partition of 1/7th share of each of the plaintiffs in the suit property and for separation of possession of the same. The case made out by the plaintiffs-respondents may be summarised thus:
(a) One Hanuman Prasad Kejriwal was the common ancestor of plaintiffs and defendant Nos. 1 to 16 who died in the year 1986 leaving behind his four sons, namely, Saligram, Kishanlal, Arjun Prasad, the defendant No. 1 and Basant Kumar Kejriwal, the defendant No. 2 as his heirs.
(b) Saligram died in the year 1997 leaving behind him his son Praveen Kumar, the defendant No. 10 and six daughters namely, Sushila, Saroj, Sarita, Sunita, Aruna and Kiran, the defendant Nos. 11 to 16 respectively. Kishanlal died in the year 1959 leaving behind his four sons namely, Deepak, the defendant No. 3, Dilip, Suman, the plaintiff No. 1 and Ajoy, the plaintiff No. 2 and widow Parbati, the defendant No. 4. Dilip died in the year 2000 leaving behind his four sons Vineet, Vishal, Varun and Vikram, the defendant Nos. 5 to 8 respectively and widow Kiran, the defendant No. 9 as his heirs.
(c) The premises situated in Mouza Raghabpur, Desbandhu Road, within Purulia Municipality are described in Schedule II and are locally known as "Tower Villa", previously belonging to one Amarendra Krishna Ghosh.
(d) On the death of Amarendra Krishna Ghosh, the property was obtained by his widow Parul Sundari Ghosh and two sons, Anil Krishna Ghosh and Sushil Krishna Ghosh. Parul Sundari Ghosh having released her share in the property to the aforesaid two sons, they became owners of the property. The aforesaid two sons made gift in respect of half of their share in favour of their respective wife namely, Smt. Renuka Ghosh and Smt. Aruna Ghosh for their lives with a stipulation that after their death, their respective shares should devolve upon absolutely on their sons.
(e) While the aforesaid owners of the property in suit were in possession, they having offered to sell the property, Deepak Kumar Kejriwal, the defendant No. 3, on behalf of plaintiffs and/or himself and Dilip Kumar Kejriwal agreed to purchase the same for which consideration was settled at Rs. 2,00,000/-. It was further settled that the sale deed in respect of the property in suit would have to be executed by owners in the name of Deepak Kejriwal or in the names of persons to be nominated or selected by defendant No. 3 and plaintiffs.
(f) Pursuance to the aforesaid agreement, the aforesaid heirs executed sixteen sale deeds i.e. eight deeds by the wife and sons of Anil Krishna Ghosh and eight other by the wife and the sons of Sushil Krishna Ghosh in respect of the property.
(g) For the convenience of transfer and to complete the transfer of the property described in Schedule II, it was divided into eight lots out of which six sale deeds in respect of lots 1,7 and 8 were in the name of defendant Nos. 1 to 3, two sale deeds in respect of lot 2 were in the name of Dilip Kumar Kejriwal, the father of defendant Nos. 5 to 8 or the husband of defendant No. 9, two sale deeds in respect of lot No. 3 were obtained in the name of Basant Kumar Kejriwal, the defendant No. 2, two sale deeds in respect of lot No. 4 were in the name of Saligram Kejriwal, the plaintiff No. 1 in respect of lot No. 5 and two sale deeds in the name of plaintiff No. 2 as the plaintiffs, defendant No. 3 Dilip Kejriwal and the defendant Nos. 1 and 2 and Saligram were members of a Mitakshara Coparcenaries having cordial relation amongst them. The entire consideration was paid by defendant No. 3 Deepak Kejriwal which was shared by the plaintiff and Dilip Kejriwal with defendant No. 3 equally.
(h) The defendant No. 2 Basant Kejriwal was a Mining Engineer and was in service. His cost of education was borne out from the joint family income and since defendant No. 2 obtained his service, he used to visit Purulia only on the occasions of marriage and other ceremonial occasions in the family. The defendant No. 2 used to stay at the place of service and after his retirement from service, the defendant No. 2 used to reside at Delhi and thereafter, is settled at Kanpur.
(i) Since 1990, the plaintiffs and their brothers under the guardianship of defendant No. 3 started living separately and having separate kitchen with defendant No. 1 and Saligram, the father of defendant Nos. 10 to 16.
(j) The defendant Nos. 1 and 2 and Saligram though not paid a farthing, for convenience of purchase the property was acquired in the manner aforesaid. But the property acquired by different deeds was residential house surrounded by compound wall and does not denote any specific portion belonging to any particular person in whose names the deeds stand. The property in suit was thus joint property of plaintiffs and defendant Nos. 1 to 16.
(k) Although entire amount of consideration was paid by and on behalf of the plaintiffs, Dilip Kejriwal and defendant No. 3, yet the property in suit had been treated as the joint property of the plaintiffs, the defendant Nos. 1 to 4 and Dilip, the father of defendant Nos. 5 to 8.
(l) In the property in suit plaintiffs, Dilip Kumar Kejriwal and the defendant No. 3 each had 1/7th share. The defendant Nos. 1 and 2 and Saligram each had 1/7th share and at the death of Saligram his share has devolved upon his son, Praveen, the defendant No. 10 and six daughters, the defendant Nos. 11 to 16 in equal share.
(m) After the purchase in the manner aforesaid, the boundary wall has been reconstructed by the plaintiffs, the defendant No. 3 and Dilip Kejriwal as the compound wall was considerably damaged for which the plaintiffs and their brothers spent Rs. 3,60,000/-. The defendant Nos. 17 to 24 being the transferees in respect of the portion of the property in suit were impleaded in the suit as defendants.
(n) The defendant Nos. 25 to 30 were claiming over a portion of the property in suit on the basis of alleged purchase from the defendant No. 1 in respect of portion of the property in suit.
(o) The sale deed executed by defendant No. 1, if any, in favour of the defendant Nos. 25 to 30 is absolutely illegal, fraudulent, and collusive and not binding and never given effect to and by virtue of such deed executed in favour of defendant Nos. 25 to 30, they could not acquire any manner of right, title and interest over the property. As the parties feel inconvenience in using the same, hence the suit.
3. In connection with the aforesaid suit, the plaintiffs filed an application for temporary injunction restraining the defendant No. 2 from transferring any portion of the suit property till the disposal of the suit on allegation that the defendant No. 2 was trying to transfer the suit property by taking advantage of the fact that the deed in respect of lot No. 3 is exclusively in his name.
4. The aforesaid application for injunction was opposed by the appellant, the defendant No. 2, by filing written objection thereby denying the material allegations made in the application and the plaint and the specific defence of appellant was that the property is a self-acquired property and money was spent by defendant No. 2/ appellant in respect of lot No. 3 from his own pocket. It is further asserted that all the deeds were executed at the price paid by respective purchasers as shown in the deed. It was further stated that Arjun Prasad Kejriwal along with Deepak Kejriwal who were owners of lot Nos. 1, 7 and 8 jointly sold the portion of their purchased property to Dr. Pakrashi and his wife and one Arindam Sarkar and they also sold portion of their property to Mr. Omkarananda Mondal and Smt. Manju Mahato by different registered deeds. It is further stated that Arjun Prasad Kejriwal also sold his portion to Sagar Mahato. It was further alleged that different owners including defendant No. 2 got their names mutated separately in the local municipality and separate holding number has been allotted in their names in respect of their specified portion and Holding No. 417 stands in the name of defendant No. 2 and lot No. 3 is not the best and major portion as alleged. It was further contended that parties were in separate possession since long in different portion and as such, the prayer for partition and injunction were not maintainable. The lot No. 3 measuring an area of 1 bigha, 3 cottahs and 1 chittak was in possession of defendant No. 2 and he, prior to the filing of the suit executed an agreement for sale on 19th November, 2003 in favour of one Partha Pratim Banerjee, Krishna Kumar Rajgoria and Mohanlal Sharma and delivered possession in their favour. The defendant No. 2, thus, prays for dismissal of the application.
5. The learned Trial Judge on consideration of the materials on record came to the conclusion that the plaintiffs proved prima facie case to get an order of injunction. The learned Trial Judge specifically found that money was paid by defendant No. 3 from joint family fund being karta and deeds were executed in favour of members of Kejriwal family. He was, thus, of the view that transfer relating to the property would be prejudicial to the plaintiffs and to avoid multiplicity of proceedings, there should be an order of injunction by restraining the defendant No. 2 from transferring the property as plaintiff will be deprived of the best portion of the property. The learned Trial Judge has further directed the parties to maintain status quo as regards the nature and character of the suit property till the disposal of the suit.
6. Being dissatisfied, the defendant No. 2 has preferred the present appeal.
7. Mr. Roy Chowdhury, the learned Senior Counsel appearing on behalf of defendant No. 2, has attacked the findings of the learned Trial Judge by pointing out that the suit property being purchased by different persons through sixteen different deeds in eight lots, it was for the plaintiffs to prove that what was apparent was not the reality and that the property was really the joint property. Mr. Roy Chowdhury contends that the learned Trial Judge wrongly placed the onus upon the appellant to show that it was purchased by him. Mr. Roy Chowdhury submits that the defendant No. 3, the alleged karta of the joint family, has not even filed any suit and it would appear from different deeds produced by his client in the Trial Court that the recorded owners of the different lots treated those as their self-acquired property and even some of them including the defendant No. 3, the alleged karta himself, transferred a portion of the suit property to third parties as if it is not a joint family property. By referring to those deeds, Mr. Roy Chowdhury contends that if the property was really the joint family property, in that case, in those deeds, there would have been specific averments that those are joint family property but was acquired in the name of one of co-sharers. Mr. Roy Chowdhury further contends that the plaintiffs are even witnesses to two of the deeds where the alleged co-sharers have transferred the property by showing themselves as sole owners of the property. Mr. Roy Chowdhury, thus, submits that finding of prima facie case recorded by the learned Trial Judge was really a perverse finding of fact.
8. As regards balance of convenience and inconvenience, Mr. Roy Chowdhury contends that in the past, many of the defendants have transferred their property to outsiders and at that point of time neither the alleged karta nor the plaintiffs felt the necessity of restraining them from completing those transaction but the moment defendant No. 2 decided to transfer the property, the plaintiffs came forward with this frivolous suit only for the purpose of creating pressure upon the defendant No. 2. Mr. Roy Chowdhury submits that even if any transfer is made by his client, such transfer will be subject to the provision contained in Section 52 of the Transfer of Property Act and the plaintiffs will not be prejudiced in any way. Mr. Roy Chowdhury further contends that this is not a case of irreparable loss and injury to the plaintiffs so as to justify grant of injunction against a rightful owner from dealing with his property. Mr. Roy Chowdhury lastly points out that although the plaintiff prayed for injunction restraining transfer or alienation, yet, the learned Trial Judge has also passed an order of status quo as regards the nature and character of the property which was not even prayed for by plaintiffs. He, thus, prays for setting aside the order impugned.
9. The aforesaid contentions of Mr. Roy Chowdhury are seriously disputed by Mr. Abhijit Kumar Banerjee, the learned Senior Counsel appearing on behalf of the plaintiffs-respondents. Mr. Banerjee contends that merely because his clients were witnesses to the two deeds executed by two of the defendants, such fact does not lead to an inference that his clients knew the contents of those deeds and in support of such contention, he places strong reliance upon the decisions of the Privy Council in the case of Banga Chandra v. Jagat Kishore, reported in 43 Indian Appeal page 249 and the other in the case of Pandurang Krishanji v. Markandeya Tukaram and Ors., reported in 49 Indian Appeal page 16.
10. Mr. Banerjee further contends that the learned Trial Judge on consideration of the materials on record having found prima facie case of the plaintiffs and consequently, granted temporary injunction, this Court should not interfere with such discretion exercised by the learned Trial Judge. Mr. Banerjee contends that the order impugned can not be said to be perverse so as to justify interference in a first miscellaneous appeal. He, thus, prays for dismissal of appeal.
11. Mr. Bidyut Kumar Banerjee, the learned Senior Counsel appearing on behalf of defendant No. 3 adopts the contentions of Mr. Abhijit Banerjee, learned Counsel for the plaintiffs and Mr. Mukherjee appearing on behalf of the defendant No. 4 also supports the claim of plaintiffs-respondents.
12. After hearing the learned Counsel for the parties and after going through the aforesaid materials on record, we find that in this case the suit property was purchased through sixteen different deeds in eight different lots in the names of plaintiffs and defendant Nos. 1 to 16 separately showing the respective purchaser to be the 16 annas owner. Therefore, prima facie, the property should be presumed to be separately owned by the parties to the extent indicated in the respective deeds. If the plaintiffs want to assert that what are stated in the deeds are not the real affairs, onus lies upon them to prove such fact. In this case it has come in evidence that even after purchase, the respective purchasers mutated their names separately in the municipality. If the property was really joint family property, there was no reason why individual members separately mutated their names in the municipality as if they are owners not as a member of the joint family taking responsibility of payment tax and asserting their possession as full owner thereof. We have already indicated that in the past, there were several transactions in respect of part of the properties and respective deed holders have transferred their interest to the outsiders showing themselves as sixteen annas owner of the property. Even at that stage, the plaintiffs did not come forward opposing such transfer. The defendant No. 3, the alleged karta, has also sold away property by treating the same as his own and defendant No. 3 has not come forward disclosing that the consideration money paid was the money of the joint family. No such document has been produced showing that defendant No. 3 really paid the money out of joint family fund. If we accept the contention of the plaintiffs that all the members did not contribute for the purchase of the property and some of them really contributed, in such a case, the plaintiff must disclose the object and reason for such peculiar behaviour.
13. From the above fact, we are unable to accept the contention of the plaintiffs and other defendants than the appellant that the property was joint family property. Under the Mitakshara School of Hindu Law there was no scope of acquiring property separately in the name of individual member and when any transaction has taken place separately in the name of individual owners, the presumption is that they acquired not in the capacity of members of undivided family but in their personal capacity. We have already pointed out that in the past, some of the defendants even sold away part of the property to outsiders by declaring themselves to be full owner of the property and plaintiffs are witnesses to such deeds. We agree that mere attestation without anything else cannot justify inference that the attester knew the contents of the deed as pointed out by Privy Council in the two decisions cited by Mr. Abhijit Kumar Banerjee, but in the fact of the present case, where plaintiffs are claiming to have contributed the amount for purchasing the property in such a peculiar fashion and claiming to be co-sharers, prima facie, it is very difficult to believe that they did not know the contents of the deeds although they are witnesses to the deeds by which the executants of the deeds are denying the title of the plaintiffs in the property conveyed by those deeds. If at the time of final hearing, it appears from the evidence on record that the plaintiffs really did not know that they were attesting the deeds by which their property were conveyed to others jeopardising their interest, the Court will not apply the doctrine of estoppel against the plaintiffs as the provisions of Section 115 of the Evidence Act is not attracted from the mere fact of attestation of such a deed without knowledge of the contents as held in those Privy Council decisions. But at this stage, if we take into consideration other facts, namely, the conducts of all the alleged co-sharers including that of the plaintiffs in dealing with property it will be clear that they never treated the property as joint. They even paid separately the municipal taxes after separately mutating their names.
14. We, therefore, find that no reasonable individual having regard to Section 3 of the Indian Evidence Act would come to the finding that the plaintiffs have proved strong prima facie case to get an order of temporary injunction as arrived at by the learned Trial Judge in the fact of the present case. Therefore, we are constrained to hold that finding of prima facie case arrived at by the learned Trial Judge was really a perverse one.
15. As regards balance of convenience and inconvenience, we find substance in the contention of Mr. Roy Chowdhury that if the defendant No. 2 is restrained by an order of injunction from transferring or alienating the property and ultimately the suit fails, his client will suffer more than that will be suffered by the plaintiffs if the injunction is refused and suit ultimately succeeds. We also agree with Mr. Roy Chowdhury that the plaintiffs cannot suffer irreparable loss and injury if the defendant No. 2 is permitted to transfer the property as Section 52 of the Transfer of Property Act will sufficiently protect the interest of the plaintiffs. We are quite alive to the decision of the Division Bench of this Court in the case of Muktakesi Dawn v. Haripada Mazumdar, , where the Bench while considering a case of ad interim injunction in a suit for specific performance of contract held that Section 52 of the Transfer of Property Act is not sufficient to protect the interest of the plaintiff in such a case, because if the subsequent purchaser constructs on the building bona fide by spending huge amount of money, the Court may ultimately refuse to grant the relief of specific performance of contract, such relief being discretionary. The present case being one for partition, the principles laid down therein cannot have any application to the fact of the present case. Moreover, it was pointed out in the said decision that the Court can, notwithstanding the provision contained in Section 52 of the Transfer of Property Act, grant injunction restraining transfer provided that the provisions contained in Order 39 Rules 1 and 2 of the Code are satisfied. In this case, we have already pointed out that the plaintiffs have failed to prove prima facie case and as such, the plaintiffs cannot be benefited by the said decision. We also find substance in the contention of Mr. Roy Chowdhury that there was no sufficient reason for granting an order of status quo as regards the nature and character of the property when such injunction was not even prayed for by the plaintiff.
16. We, therefore, find that the learned Trial Judge while passing the order of injunction did not follow the well-accepted principles which are required to be considered while disposing of an application for temporary injunction. We, thus, set aside the order impugned and dismiss the application for injunction filed by the plaintiffs. This order, however, is restricted to lot No. 3 standing in the name of defendant No. 2 alone as he has alone preferred appeal against the order of the learned Trial Judge. The appeal is, thus, allowed. In the facts and circumstances, there will be, however, no order as to costs.
Rajendra Nath Sinha, J.
17. I agree.