Karnataka High Court
Sri. B.K.Chandrashekar vs Sri.B.C.Arun Kumar on 27 February, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
MISCELLANEOUS FIRST APPEAL NO.5428 OF 2017 (CPC)
BETWEEN
1. Sri. B.K.Chandrashekar,
S/o. A.Krishna Murthy,
Aged about 69 years,
Presently R/at No.294, 8th Main,
4th Phase, J.P.Nagar,
Bangalore-560078.
2. Smt. T.P.Hemalatha,
W/o. B.K.Chandrashekar
Aged about 62 years,
Presently R/at No.294, 8th Main,
4th Phase, J.P.Nagar,
Bangalore-560078.
3. Sri. B.C.Kiran Kumar,
S/o. B.K.Chandrashekar,
Aged about 38 years,
Presently R/at No.294, 8th Main,
4th Phase, J.P.Nagar,
Bangalore-560078.
4. Sri. B.C.Praveen Kumar,
S/o. B.K.Chandrashekar,
Aged about 32 years,
Presently R/at No.294, 8th Main,
4th Phase, J.P.Nagar,
Bangalore-560078.
...Appellants
2
(By Sri. S.V.Bhat, Advocate)
AND
1. Sri. B.C.Arun Kumar,
S/o. B.K.Chandrashekar,
Aged about 35 years,
Presently R/at No.44, 4th Cross,
5th 'D' Main, 2nd Block,
HRBR Layout, Kalyana Nagar,
Bangalore-560223.
2. Chandragiri Estate,
Rep. By M.R.Goutham Dev,
S/o. Father name is not known,
Major, R/at No.Vide Flat No.25,
In Sy.No.36, Mallenahallasandra Village,
Jigani Hobli, Anekal Taluk,
Bangalore District.
3. Sri. Mohit Agarwal,
S/o. Vinod Kumar Agarwal,
Aged about 30 years,
4. Sri. Vikas Dhaka,
S/o. Jagadish Singh Dhaka,
Aged about 26 years,
Both are residing at
Flat No.5/302, 3rd Floor,
Manthri Residency Apartment,
Opp-Meenakshi Temple,
Bannerghatta Main Road,
Bangalore-560076.
5. Sri. Sunil Kumar,
S/o. Sanvaramal,
Aged about 28 years,
R/at No.135, Yarandahalli,
Hennagara Post,
3
Jigani Hobli, Anekal Taluk,
Bangalore District.
6. Sri. Anurag Periwal,
S/o. Jagadish Prasad Periwal,
Aged about 36 years,
R/at No. 25/301, 3rd Floor,
Manthri Residency Apartment,
Opp-Meenakshi Temple,
Bannerghatta Main Road,
Bangalore-560076.
7. Sri. Kamlesh Kumar Agarwal,
S/o. Late C.L.Agarwal,
Aged about 57 years,
R/at Flat No.5/302, 3rd Floor,
Manthri Residency Apartment,
Opp-Meenakshi Temple,
Bannerghatta Main Road,
Bangalore-560076.
8. Sri. Manmohan Kothari,
S/o. Rajendra Prasad Kothari,
Aged about 27 years,
R/at Villa No.10,
Himiagiri Meadows,
Gottigere Village,
Bangalore-560083.
...Respondents
(By Sri. Suresh S.Lokre, Advocate, for R1)
This Miscellaneous First Appeal is filed under Order 43 Rule
1(r) of CPC, against the order dated 21.04.2017 passed on I.A.No.1
in O.S.No.25238/2015 on the file of the XIII Additional City Civil
and Sessions Judge, Mayohall Unit, Bengaluru (CCH:22), allowing
I.A.No.1 filed under Order 39 Rule 1 & 2 read with Section 151 of
CPC.
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This MFA coming on for admission this day, the court
delivered the following:
JUDGMENT
The order dated 21.4.2017 passed by the XIII Addl. City Civil Judge, Bengaluru on I.A.No.1 filed under Order 39 Rules 1 and 2 CPC in O.S.No. 25238/2015 is challenged by the defendants No.1 to 4. The events leading up to preferring this appeal are as follows:
2. The parties are referred to with respect to the rank of each of them in the suit. The plaintiff is the son of defendants No.1 and 2. The defendants No.3 and 4 are the brothers of the plaintiff. The defendants No. 5 to 11 are said to be the tenants in occupation of some of the suit properties. The plaintiff initiated a suit for partition claiming 1/4th share in the properties described in schedules 'A' to 'H' of the plaint (hereinafter referred to as 'suit properties'). He also made an application under Order 39 Rules 1 and 2 CPC seeking an order of temporary injunction to restrain the defendants No. 1 to 4 from alienating the suit properties pending disposal of the suit.5
3. According to the plaintiff all the suit properties were acquired from the nucleus of joint family. His grandfather A. Krishnamurthy was running a business under the name and style of 'Variety Traders' at Chickpet, Bangalore. He had a flourishing business, not only in Bangalore, but throughout Karnataka. The said Krishnamurthy transferred his business to his son i.e., the 1st defendant who from the profits made from this business started another business concern under the name and style 'Vijayashree'.
Thereafter the 1st defendant converted his proprietaryship concern 'Vijayashree' into a partnership firm by inducting the plaintiff and the defendants No.2 to 4. The defendants No.1 to 4 also demanded the plaintiff's wife to bring money from her parents house and therefore she brought Rs.35,00,000/- from her parents house and gave that money to defendants No.1 to 4. Thus the plaintiff stated that the acquisitions of A to H property by defendants No.1 and 2 are traceable to joint family nucleus. The defendants No.1 to 4 harassed the plaintiff and his wife and they also made attempts to kill the plaintiff's wife. Being unable to continue in the joint family, the plaintiff demanded for partition which was refused by the defendants and therefore he initiated a 6 suit. In the application filed by him for temporary injunction, he stated that the defendants No.1 to 4 were making attempts to alienate the suit properties to deprive him of his legitimate share and for this reason an order of temporary injunction to restrain them from alienating the property was necessary to be issued.
4. The 2nd defendant i.e., the mother of the plaintiff filed written statement denying all the allegations made in the plaint against her, her husband and other sons. She specifically pleaded the 1st defendant i.e., her husband is one of the sons of Krishnamurthy who was doing business in readymade garments under the name and style of 'M/s Raja Dress Manufacturing Company' and 'M/s. Variety Traders'. The 1st defendant was very dynamic and wanted to be self dependent. Recognizing the business talent in the 1st defendant his father took him as a partner in both the business concerns. On 31st March, 1975 these two firms were dissolved and the business concern being run under the name of 'M/s. Variety Traders' was made a partnership concern, the partners of which were the 1st defendant, his father Krishnamurthy and another brother of the 1st defendant viz., B.K. Bhaskar. Since the 1st defendant always wanted to be self reliant, 7 he took over the business concern 'Variety' Traders with its assets and liabilities by paying huge sum of Rs.70,000/- towards the liabilities of 'M/s Raja Dress Manufacturing Company' and settling the accounts of his father and brother by paying Rs.20,000/- and Rs. 15,000/- to them respectively. Thus 'Variety Traders' became the proprietaryship concern of the 1st defendant. When all these transactions took place, the plaintiff was not born at all.
5. It is further contended that after the marriage of the first defendant with the second defendant in the year 1973, the first defendant started living separately and continued to do his business. On 1.8.1977 the first defendant executed a deed in favour of his father relinquishing all the rights and interest that he had in the movable and immovable properties of his father. This release thus made by the first defendant is fortified in the Will executed by the first defendant's father on 4.12.1995. In the year 1994 the first defendant started another business under the name and style 'Vijayashree' at premises No. 31, Mamulpet, Bengaluru-
53. At that time the plaintiff who was just a boy of 13 years was inducted as one of the partners along with the fourth defendant who was also a minor at that time. The plaintiff after completing 8 his business, instead of showing interest in the business, was only interested in spending time and money with his friends. To make the plaintiff to realize his responsibilities, his marriage was performed on 20.2.2011. The position did not improve. The first defendant fell ill. To see that the plaintiff would settle in the life independently, on 6.2.2012 memorandums of understanding was executed to be given into effect from 1.4.2012. According to these MOUs, the proprietorship concern 'Variety Traders' was converted into a partnership firm consisting of defendants 1 to 3 partners. Partnership firm 'Vijayashree' was reconstituted after resignation of second and third defendants from the firm. The plaintiff was entrusted with the responsibility of 'Vijayashree' by imposing certain conditions. Even after reconstitution of the firm, the plaintiff evinced no interest in doing business, he continued his wayward life. The first and second defendants tried their best to mend the attitude of the plaintiff. Instead he left their house and went to the house of parents in law and then started obstructing the business of 'Variety Traders' being run by defendants 1 to 3. The plaintiff also filed a suit O.S.25370/2015 against defendants 1 to 3, and obtaining interim order in that suit, he started interfering 9 with the business of 'Variety Traders' although he had no right over the said firm.
6. The second defendant also stated that the immovable property mentioned in schedule 'C' to 'F' belong to her absolutely as it was she who acquired the properties from her own income. With regard to 'G' schedule property it is stated that it is a leased premises, the plaintiff cannot seek any partition in this property.
7. The trial court, after hearing the counsel for the plaintiff and defendant came to the conclusions that only after holding full fledged trial it could be made out whether the business concerns belong to the joint family or not and till such time if injunction was granted, the right, title or interest of defendants 1 to 4 would not be affected. According to the trial court, the plaintiff was able to make out a prima facie case for grant of injunction besides establishing balance of convenience being in his favour and showing that he would be exposed to greater hardship than the defendant.
8. The learned counsel for the appellants/defendants argued that the trial court has committed an error in not making 10 an effort whether the plaintiff's documents would disclose existence of prima facie case in his favour. Acceptance of the plaintiff's case that the first defendant acquired the property through ancestral source is a wrong finding given by the trial court. He argued that the first defendant ran the business as his proprietorship concern and inducted the plaintiff when the latter was a boy of 13 years only for the benefit of the firm. The memorandum of understanding that came into force from 1.4.2012 shows the admission given by the plaintiff that the business concerns belong to the first defendant exclusively and absolutely. The business did not belong to the joint Hindu family. The agricultural lands were acquired by the second defendant from her own income. All the documents stand in her name. The impugned order shows non-application of the mind by the trial court. When there is no semblance of right to claim partition by the plaintiff, the injunction order should not have been granted and thus there is a need for interfering with the trial court order and for allowing the appeal.
9. On the other hand, the learned counsel for the respondent submits that just because the documents stand in the 11 name of the second defendant in respect of agricultural property, it cannot be said that she is the absolute owner. He also further argues that the source for continuation of the business by the first defendant was the business concern that belonged to his father Krishnamurthy. Ancestral nucleus can be thus made out. The plaintiff is entitled to a share. All the contentions taken by the defendants cannot be taken into consideration at the time of deciding the application for temporary injunction. According to him, the trial court has properly exercised discretion for granting an order of temporary injunction. Therefore, appeal cannot be allowed.
10. On hearing both sides and perusing the impugned order, firstly it can be stated that the trial court has just proceeded on the ground that the issue whether suit properties belong to the defendants exclusively or not can be decided only after full fledged trial, or in other words its opinion is that the plaintiff has made out a case for trial. No doubt the averments made in the plaint do indicate that the plaintiff has pleaded some cause of action which according to the trial court shows existence of a case for trial. Indeed it is true that one of the tests or yardsticks applied to find 12 out whether a prima facie case exists or not, is to see whether the plaintiff has made out a serious case for trial or not. If this is the only test applied, invariably in every case the plaintiff pleads cause of action and thus it has to be opined that a case for trial exists. Every case cannot be assessed in the same yardstick. The facts and circumstances play a vital role. The court is also bound to make an exercise to find out as to what impression can be made out apparently from the documents produced by the parties. If the documents project a picture that the plaintiff's case is not frivolous and that he has not come to the court unnecessarily, it can be opined that prima facie case exists.
11. If applying the above tests, the plaintiff's case is examined, all that can be stated is that the business concern belonged to plaintiff's father, i.e., first defendant. Merely because the partnership concern 'Variety Traders' was dissolved by the first defendant's father Krishnamurthy and thereafter the first defendant ran that business under his proprietorship concern, it is difficult to say that the said business in his hand acquired the features of a business being run by a joint Hindu family. All this happened before the plaintiff was born. The further developments, 13 i.e., induction of the partner in the year 1984 to the business shows that proprietorship business again became a partnership business. If the first defendant started another business under the name and style 'Vijayashree' it is difficult to say that nucleus for the said business was also from the business that his father was doing. The memorandum of understanding dated 6.2.2012 which was given to effect from 1.4.2012 shows that the business concern 'Vijayashree' was completely entrusted to the plaintiff and another firm 'Variety Traders' was entrusted to the plaintiff's elder brother Kiran Kumar by putting them on certain riders. The net effect of coming into being of MOU was reconstitution of the firms with the first defendant continuing as one of the partners but showing less involvement in the business due to his old age. All these transactions only show that the businesses were run independently of the joint family. Therefore, if the plaintiff had any grievance in the sharing of the profit and loss of the firm, or the property of the partnership firm, the remedy open to him was to proceed under the provisions of the Partnership Act. He cannot picturize that the entire property belonged to the joint family. Hindu Undivided Family doing business is entirely different from 14 the existence of a partnership firm between or among the members of the joint family. If the business belongs to HUF suit for partition can be filed. This is not the case here.
12. It is true that in the written statement it is stated that the first defendant executed a release deed about which the respondents' counsel argued vehemently that this release made by the first defendant proves the existence of ancestral nucleus. It is very difficult to accept this argument, rather what this contention shows is that the first defendant gave up his interest in his father's property after being entrusted with business in 'Variety Traders'. Moreover, there is one document, i.e., the certified copy of the order of this court in MFA 5649/2015. This was an appeal filed by the plaintiff challenging the rejection of his application for temporary injunction in O.S.25370/2015 filed by him against his brother Kiran Kumar. If this order is read, two things that can be gathered are (1) that there is already a finding by this court it was the father, i.e., the first defendant who established his business 'Vijayashree' and (2) in the MOU the father was given full powers to dissolve the firm if it was found that the plaintiff failed to carry out the business profitably. It has also been observed that the 15 partnership business was dissolved in terms of MOU, which is not a disputable document.
13. So far as the agricultural properties are concerned, they appear to have been acquired by the plaintiff's mother from her self exertion and efforts. At the stage of considering the application for temporary injunction, microscopic examination of the scope for acquisition is not permitted.
14. Thus seen, the plaintiff has not made out a prima facie case at all. It is true that usually in a suit for partition, order of temporary injunction restraining the defendants from creating third party interests is granted to avoid multiplicity of proceedings and future litigations. Even to grant this type of an order the plaintiff must show that on facts he is entitled to bring a suit for partition. The interim order should not be a weapon in the hands of the plaintiff to compel partition of a property which may not appear to be amenable for partition. The impugned order passed by the trial court clearly shows non-application of mind. It is arbitrary to grant an injunction in the set of circumstances 16 pleaded by the plaintiff. Hence, there is a need to interfere with the impugned order. Consequently, the following order : -
(i) Appeal is allowed.
(ii) The order dated 21.4.2017 on I.A.No.1 filed under
Order XXXIX Rules 1 and 2 CPC in
O.S.25238/2015 is vacated. The said application is dismissed.
(iii) There is no order as to costs.
Sd/-
JUDGE sd/ckl