HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T. VINOD KUMAR
Interlocutory Application No.2 of 2019
in
Civil Miscellaneous Appeal No.461 of 2019
and
Civil Miscellaneous Appeal No.461 of 2019
COMMON JUDGMENT: (Per Sri Justice M.S.Ramachandra Rao)
This appeal is filed challenging the order dt.07.02.2019 passed in
Interlocutory Application No.403 of 2018 in O.S.No.612 of 2016 passed
by the IX Additional Chief Judge, City Civil Court, Hyderabad.
2. The appellants herein are plaintiffs in the above suit.
3. The said suit was filed by appellants against respondents for
partition of the plaint schedule property into 280 equal shares, for allotment and possession of 7/288th share each to appellant nos.1 to 4, 28/288th share each to appellant nos.5 to 7, 14/288th share each to respondent nos.1 and 2 and 20/288th share each to respondent nos.3 to 9; and for a perpetual injunction restraining the respondents from alienating the suit schedule property to third-parties, pending disposal of the suit.
4. It is not in dispute that one Rajakonda Balaiahsagar was the father of appellant nos.5 to 7, grand-father of appellant nos.1 to 4, father-in-law of 1st respondent and father of respondent nos.2 to 7.
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5. Admittedly, Rajakonda Balaiahsagar died long back. During his lifetime he married one Balamma and through her he got four daughters, i.e., appellant nos.5 to 7 and one Late Indira. Thereafter, he married Satyamma through whom he got respondent nos.3 to 7, 1st respondent and father of 2nd respondent as children.
6. The said Satyamma died on 09.12.2011.
The case of the appellants/plaintiff in the suit
7. In the said suit, it is the contention of appellants that they and the respondents constituted Hindu Joint Family governed by Hindu Mithakshra Law, and after the death of Rajakonda Balaiahsagar all of them became legal heirs who succeeded to the estate of the deceased, and that they are in joint possession of his estate.
8. The appellants further contended that during the lifetime of Rajakonda Balaiahsagar, he purchased the suit schedule house property from one Jani Begum under a registered Sale Deed dt.05.01.1964; and that he alienated 317 Sq.yds. for family necessity and gifted another 83 sq.yds to a temple, and the remaining extent of 2100 Sq.yds. including a house on it, was in his possession till his death.
9. The appellants further contended that they demanded Satyamma, the second wife of Rajakonda Balaiahsagar, for partition, and subsequent thereto legal notices were issued on 27.07.2014 and 02.04.2016. The appellants contended that then came to know that the respondents had MSR,J & TVK,J ::3:: cma_461_2019 created among themselves a registered partition deed bearing Document No.1059 of 2013 on 02.03.2013 and partitioned the suit schedule property among themselves.
I.A.No.403 of 2018
10. The appellants therefore filed I.A.No.403 of 2018 in the suit to restrain respondents from changing the nature of the suit schedule property, pending disposal of the suit.
11. In the above I.A., the appellants reiterated the contents of the plaint.
The stand of the 4th respondent
12. The 4th respondent filed a counter-affidavit which was adopted by respondent nos.1 to 3 and 5 to 7 admitting the relationship, but denying the rest of the contents of the I.A.
13. They alleged that they have been in exclusive possession of the property; that appellants were never in possession thereof and they have no right to claim a share therein; that Rajakonda Balaiahsagar orally settled all shares of appellants during his lifetime by giving cash and gold including sale proceeds received from the sale of 317 Sq.yds. of the suit schedule property and gave exclusively the suit schedule property to the respondents, and so, they became absolute owners and possessors of the suit schedule property; that they partitioned it among themselves through a registered Partition Deed dt.02.03.2013; that the marriages of MSR,J & TVK,J ::4:: cma_461_2019 appellants and their sisters had been performed by respondents and there is no property available for partition, and therefore, the I.A.No.403 of 2018 should be dismissed.
The order of the court below in IA No.403 of 2018
14. Before the Court below, the appellants marked Exs.P.1 to P.2, and the respondents marked Exs.R.1 to R.4.
15. By order dt.07.02.2019, the Court dismissed I.A.No.403 of 2018.
16. After referring to the contentions of parties, the Court below held that there are facts in issue and trivial issues, and balance of convenience and irreparable loss and injury are more in favour of respondents since it appears from photographs produced by respondents, marked as Ex.R.3 that they have undertaken some construction work.
17. It also noted that respondents claimed exclusive ownership over the suit schedule property on the basis of a registered Partition Deed dt.02.03.2013 and though the appellants disputed the said document as a created one, the matter has to be tried. It also held that no injunction can be granted against a co-owner and the appellants can have their rights decided in the main suit.
18. Challenging the same, the present Civil Miscellaneous Appeal is filed.
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I.A.No.1 of 2019 in Civil Miscellaneous Appeal No.461 of 2019:
19. On 30.09.2019, in I.A.No.1 of 2019 in Civil Miscellaneous Appeal No.461 of 2019, this Court granted interim injunction restraining respondents from changing the nature of the suit schedule property. I.A.No.2 of 2019 in Civil Miscellaneous Appeal No.461 of 2019:
20. The respondent nos.1 to 7 filed I.A.No.2 of 2019 in Civil Miscellaneous Appeal No.461 of 2019 to vacate the order dt.30.09.2019 passed in I.A.No.1 of 2019 in Civil Miscellaneous Appeal No.461 of 2019.
Consideration by the Court
21. Heard the counsel for appellants and the counsel for respondents.
22. The counsel for appellants contended that when the property is joint, the respondents cannot be allowed to proceed with the construction in the suit schedule property, and any change in the nature of property would further complicate the case. He also contended that the observations of the Court below that no injunction can be granted against a co-owner, is not correct and sustainable in law.
23. On the other hand, the counsel for respondent nos.1 to 7 supported the order passed by the Court below and refuted the above contentions.
24. The counsel for respondent nos.1 to 7 further contended that the suit schedule property was in exclusive possession of respondents; that it MSR,J & TVK,J ::6:: cma_461_2019 was given to them exclusively by Rajakonda Balaiahsagar and they were entitled to partition it among themselves under a registered Partition Deed dt.02.03.2013, and that the appellants have no share therein.
25. Admittedly, there is no dispute that the suit schedule property was purchased by Rajakonda Balaiahsagar under a registered Sale Deed dt.05.01.1964. Therefore, prima facie it is his self-acquired property.
26. It is not in dispute that Rajakonda Balaiahsagar is the father of appellant nos.5 to 7 and grand-father of appellant nos.1 to 4, father-in- law of 1st respondent, grand-father of 2nd respondent; and father of respondent nos.3 to 7.
27. While appellant nos.1 to 7 are children and grand-children born to Rajakonda Balaiahsagar through Balamma, the respondent nos.3 to 7 are children born to him through the second wife, Satyamma.
28. While Rajakonda Balaiahsagar died in 1989, Satyamma died on 09.12.2011. The marriage of Rajakonda Balaiahsagar to Balamma took place prior to his marriage to Satyamma. Therefore, prima facie as per Section 8 of the Hindu Succession Act, 1956 all the appellants and respondents would jointly inherit the property.
29. Admittedly, there was no partition of the suit schedule property during the lifetime of Rajakonda Balaiahsagar, and the property continued to be joint property and all the parties were co-owners.
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30. In T. Lakshmipathi and others vs. P. Nityananada Reddy and others1 the Supreme Court held that where any property is held by several co-owners, each co-owner has interest in every inch of the common property, but his interest is qualified and limited by similar interest of other co-owners; and one co-owner cannot take exclusive possession of the property nor commit an act of waste, ouster or illegitimate use, and if he does so, he may be restrained by an injunction.
31. Therefore, the view expressed by the Court below that in no circumstances can an injunction be granted in favour of one co-owner against another co-owner is prima facie incorrect.
32. In the instant case, the respondents are trying to contend that they are in exclusive possession, and they have divided the property among themselves under a registered Partition Deed dt.02.03.2013.
33. It was not open prima facie for respondents to oust the appellants from the joint possession and enjoyment of the suit schedule property by executing the said document and by further trying to change the nature of the property without the consent of the appellants.
34. Therefore, the appeal is allowed; the order dt.07.02.2019 passed in Interlocutory Application No.403 of 2018 in O.S.No.612 of 2016 passed by the IX Additional Chief Judge, City Civil Court, Hyderabad is set aside; and the said I.A. is allowed.
1
(2003) 5 S.C.C. 150
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35. Consequently, I.A.No.2 of 2019 in Civil Miscellaneous Appeal No.461 of 2019 is dismissed.
36. No order as to costs.
37. As a sequel, miscellaneous petitions pending if any in this Appeal, shall stand closed.
____________________________ M.S.RAMACHANDRA RAO, J _______________________ T.VINOD KUMAR, J Date: 02.06.2021 Ndr