[Cites 2, Cited by 0]
Calcutta High Court
Surendra Agarwala vs Indira Gupta And Ors on 19 December, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
2025:CHC-OS:264-DB
OD-3 wt 4 & 11
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
IN AN APPEAL FROM AN ORDER PASSED IN ITS
ORDINAY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
APO/51/2025
WITH CS/128/2016
IA NO: GA/1/2025
SURENDRA AGARWALA
VS
INDIRA GUPTA AND ORS
WITH
APDT/26/2025
IA NO: GA/1/2025, GA/2/2025
PUSHKAR KUMAR AGARWALA
VS
SURENDRA AGARWALA AND ORS
-AND-
APDT/27/2025
IA NO: GA/1/2025
NARENDRA KUMAR AGARWALA AND ANR
VS
SURENDRA AGARWALA AND ORS
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
-AND-
The Hon'ble JUSTICE MD. SHABBAR RASHIDI
For the Appellant : Mr. Chayan Gupta, Adv.
Mr. Pourush Bandyopadhyay, Adv.
2
2025:CHC-OS:264-DB
Mr. Arun Kr. Mishra, Adv.
For the Respondent No. 5 : Mr. Mainak Bose, Sr. Adv.
Mr. Rishav Karnani, Adv.
Mr. S. N. Pandey, Adv.
For the Respondent No . 2 & 7 : Mr. Aditya Garodiya, Adv.
Mr. Aritra Basu, Adv.
Mr. Pintu Ghosh, Adv.
HEARD ON : 19.12.2025
DELIVERED ON : 19.12.2025
DEBANGSU BASAK, J.:-
1. Three appeals are taken up for analogous hearing as they emanate
out of the same impugned judgment and order dated April 8, 2025
passed in three interlocutory applications filed in CS No. 128 of
2016.
2. By the impugned judgment and order, learned Single Judge
granted relief to the plaintiff to the suit to a certain extent. Plaintiff
is aggrieved by the portion of the relief which was not granted by
the learned Single Judge and therefore, filed an appeal being
APO/51/2025.
3. The next appeal is at the behest of defendant no. 5 in the suit. The
appeal of the defendant no. 5 is registered as APDT/26/2025 while
2025:CHC-OS:264-DB
the appeal of the defendant nos. 2 and 7 is registered as
APDT/27/2025.
4. For the sake convenience, the parties in the present three appeals
are referred to in the manner as they appear in the plaint in the
suit.
5. Plaintiff filed a suit for partition and administration of the assets
and properties of the Agarwala family being CS/128/2016. In such
suit, plaintiff filed three interlocutory applications being
GA/2/2016, GA/5/2017 and GA/12/2021.
6. Essentially, by those three interlocutory applications, the plaintiff
was seeking interim protection relating to the assets involved in
the suit.
7. Plaint case of the appellant is that, the properties described in the
Schedules A, B, C and D to the plaint emanated out of the joint
family business. They are joint family assets and liable to be
partitioned and administered, in accordance with law. In Schedule
A to the plaint, list of immovable properties are described while
Schedule B to the plaint describes bank accounts of the joint
family, Schedule C describes the lockers and Schedule D describes
the Demat/Share accounts.
8. Contention of the plaintiff in its appeal is that, since, assets of
joint family described in the four schedules to the plaint belong to
the joint family, in absence of a partition and administration in
2025:CHC-OS:264-DB
respect thereof, such properties and assets should be protected
and preserved till the disposal of the suit.
9. Learned Advocate appearing for the plaintiff submits that, the
learned Judge erred in not granting the relief of protection and
preservation of the assets and properties described in the four
schedules to the plaint. He submits that, the plaintiff established
at the prima facie level that, the corpus of the assets and
properties emanated out of the joint family with none of the
defendants establishing any independent source of income.
Rather, assets belonging to the joint family were utilized for the
purpose of creating further assets. In particular, he refers to a
partnership firm which subsequently converted into a sole
proprietorship. He submits that, the land admittedly belonged to
the plaintiff and his son, was utilized for the purpose of other
business of the joint family bidding at different auctions.
10. Learned Advocate appearing for the plaintiff submits that, during
the pendency of the suit, the assets and properties described in
the plaint should be adequately preserved.
11. Learned Senior Advocate appearing for the defendant no. 5
submits that, the immovable properties in respect of which the
plaintiff claims the share is at best can sustain a claim of 1/8 for
the plaintiff. Apart from the parties to the suit, such properties are
owned by other persons. Such persons are not parties to the suit.
2025:CHC-OS:264-DB
12. Learned Senior Advocate appearing for the defendant no. 5
submits that, the assets described in the four schedules to the
plaint were not established to be of the joint family. Relying upon
(2003) 10 Supreme Court Cases 310 (D.S. Lakshmaiah and
Another Vs. L. Balasubramanyam and Another), he submits
that, the plaintiff is required to establish and prove the jointness.
Plaintiff also is not making out a case of the assets being blended
into the joint family by the other defendants. In absence of such
proof, the plaintiff is not entitled to any relief.
13. Learned Senior Advocate appearing for the defendant no. 5
submits that, all assets and properties belonging to the defendant
no. 5 are self-acquired. They did not form a part and parcel of the
joint family business. The parties were not living in a separate
mess. They were separate at all material point of time. The
defendant no. 5 commenced and developed his individual
business. Such business cannot come within the four corners of
the suit or the joint family business as erroneously claimed by the
plaintiff.
14. Learned Advocate appearing for the defendant nos. 2 and 7
submits that, the material allegations made against his client were
denied by filing affidavits. He submits that, there is no jointness in
the family for the assets described in four schedules to the plaint
to be considered as joint family assets. Relying upon (2004) 11
2025:CHC-OS:264-DB
Supreme Court Cases 320 (P.S. Sairam and Another Vs. P.S.
Rama Rao Pissey and Others), learned Advocate appearing for
the defendant nos. 2 and 7 submits that, the plaintiff failed to
establish that, there was jointness. He contends that, there is no
presumption under Hindu Law that a business standing in the
name of any member of the joint family is a joint family business,
even if that member is the manager of the joint family.
15. Referring to the facts and circumstances of the present case,
learned Advocate appearing for the defendant nos. 2 and 7
submits that, the fact that the plaintiff worked in some capacity or
the other in one of the businesses enumerated in the schedule to
the plaint does not convert such business into a joint family
business. He submits that, the interim order granted in favour of
the plaintiff by the impugned judgment and order should be
vacated.
16. As noted above, learned Single Judge disposed of three
interlocutory applications filed at the behest of the plaintiff in a
suit for partition and administration of joint family assets.
17. Plaint case is that, the parties to the suit are children of late
Hazari Lal Agarwala. There were various businesses and properties
of late Hazari Lal Agarwala, since deceased, acquired out of his
own funds. Such assets and properties are described in Schedule
A to the plaint.
2025:CHC-OS:264-DB
18. Plaintiff alleges that, there were various joint family businesses of
late Hazari Lal Agarwala which were continued subsequent to his
death. It is alleged that, such businesses were formed and
continued out of the joint family corpus and expenditure and
outgoings in respect of such businesses were all along incurred
from the joint family corpus. The income of the business was
brought into the till of the joint family. Joint family businesses are
described in the plaint.
19. Plaintiff also alleges that, several bank accounts and Demat
accounts were opened as well as bank lockers which belonged to
the joint family.
20. In such suit, from time to time, plaintiff applied for interim relief
by way of three applications.
21. All of the three applications were disposed of by the impugned
judgment and order.
22. D.S. Lakshmaiah and Another (supra) was rendered in a suit
which was decreed. Similarly, P.S. Sairam and Another (supra)
was rendered in a suit where there was a decree passed. The
validity and legality of the decree passed in these two suits were in
question before the Hon'ble Supreme Court in those two
authorities. On an appreciation of the evidence at the trial, the
Supreme Court was pleased to find whether or not, the burden of
proof was adequately discharged.
2025:CHC-OS:264-DB
23. In D.S. Lakshmaiah and Another (supra), the Supreme Court
noted a privy council and is of the view that, the proof of existence
of a joint family does not lead to the presumption that property
held by any member of family is joint. The burden rests upon
anyone asserting that any item or property is joint to establish
such fact. However, where it is established that the family
possessed some joint property which from its nature and relative
value may form the nucleus from which the property in question
may be acquired, the burden shifts to the party alleging self-
acquisition to establish affirmatively that the property was
acquired without the aid of the joint family property.
24. In the facts and circumstances of the present case, on the ratio,
enunciated in D.S. Lakshmaiah and Another (supra), we find
that, there was a joint family business during the lifetime of the
deceased father of the parties to the suit. Father of the parties to
the suit expired on July 26, 1999. Subsequent thereto, there is no
materials on record that, prior to the expiry of the father of the
parties to the suit, the defendants established any business or
acquired any of the properties from their own funds. That is not
the averment in the affidavits filed by the answering defendants,
nor is such a case in the written statement filed by them.
Therefore, we are of the view that the plaintiff is in a position to
establish at least at the prima facie level that, there was a joint
2025:CHC-OS:264-DB
family and that, businesses and properties were acquired out of
the joint family.
25. Learned Single Judge granted a preliminary decree in respect of
some of the immovable properties concerned, on the basis of the
admission of the defendant nos. 2 and 7.
26. It is the contention of the defendant no. 5 that, such admission
was not made by the defendant no. 5 and therefore, no preliminary
decree could be passed as done in paragraph 56 of the impugned
judgment and order.
27. With the deepest of respect, we are not in a position to accept of
the contention of the defendant no. 5. Defendant nos. 2 and 7 in
the appeal, is not contending that, the learned Single Judge
recorded paragraph 56 wrongly. Learned Single Judge proceeded
to pass the preliminary decree in respect of four of the immovable
properties concerned on the basis of the admission made by the
defendant nos. 2 and 7 before such Court.
28. Properties in respect of which, preliminary decree was passed by
the learned Trial Judge in the impugned judgment and order,
therefore, can safely be considered to be joint family properties.
Preliminary decree passed in respect thereof, need not be upset.
29. Apart from such reasoning, we find from the records that, the
averments made in the plaint as also in the injunction petition are
that, late Hazari Lal Agarwala died, seized and possessed of
2025:CHC-OS:264-DB
various immovable properties and various family businesses. The
case of the answering defendants is that neither the immovable
properties, nor the businesses were joint.
30. Significantly, late Hazari Lal Agarwala expired on July 26, 1999.
As on the date of death of late Hazari Lal Agarwala, each of the
parties to the suit were adults. The contesting defendants were in
excess of 30 years of age on the date of death of their father.
31. Nothing is placed on record to suggest that, the immovable
properties, businesses, bank accounts, Demat accounts and
lockers, spoken of in the plaint, were acquired or established by
any of the answering defendants from out of their own funds.
32. Today, the interlocutory Court is faced with the proposition of
assessing three injunction petitions on the principles of prima
facie case, balance of convenience, irreparable loss and injury. The
interlocutory Court is also concerned with the protection and
preservation of the properties both movable and immovable,
comprised in the suit till the disposal of the suit.
33. Respective assertion made by the parties to the suit, in the
interlocutory stage, does not permit a Court to return a conclusive
finding that, none of the properties involved are joint family
properties. Rather, there is a concession made by the defendant
nos. 2 and 7 in respect of at least four of the immovable properties
2025:CHC-OS:264-DB
as recorded by the learned Single Judge in the impugned judgment
and order in paragraph 56 thereof.
34. Apart therefrom, we do not find that, the assertion of the plaintiff
that, the properties both movable and immovable described in
Schedules A to D of the plaint, were adequately dislodged by the
answering defendant. They do not specify the dates on which the
individual businesses were commenced, the source of funds for
commencing such individual businesses as also the date of
acquisition of the immovable properties concerned. In absence of
such particulars, we are of the view that, the plaintiff is able to
make out a prima facie case to go to trial. Plaintiff is also able to
make a prima facie case warranting consideration of the reliefs as
prayed for in the injunction application. Balance of convenience
and inconvenience lies overwhelmingly in favour of the plaintiff in
granting the interim reliefs as the plaintiff prayed for.
35. Protection and preservation of the assets and properties involved
in the suit are of paramount importance. Unless they are protected
and preserved, the same is likely to give rise avoidable litigation
and is likely to prejudice the parties on a final decision at the suit.
Plaintiff will suffer irreparable loss and injury, unless interim
protections are granted.
2025:CHC-OS:264-DB
36. Learned Single Judge granted interim protection to the plaintiff.
Adequacy and sufficiency of such interim protection is questioned
by the plaintiff in its appeal.
37. We find from the record that, the learned Single Judge granted
protection with regard to some of the properties involved. We are of
the view that, since, the plaintiff made out a prima facie case for
grant of interim protection and that, the properties involved in the
suit require protection and preservation till disposal of the suit, we
add to the interim protection granted by the learned Single Judge
in the impugned judgment and order.
38. Parties to the suit are injuncted from dealing with, disposing of,
encumbering and/or changing the nature and character of any of
the immovable properties described in Schedule A to the plaint till
the disposal of the suit. So far as the Schedule B to the plaint is
concerned, the defendant shall submit monthly statement of
accounts with the Advocate-on-record of the plaintiff. In default,
the defendants are restrained from operating any of the bank
accounts described in Schedule B to the plaint.
39. Inventory of the lockers described in Schedule C to the plaint was
made before the learned Single Judge. The parties to the suit are
restrained from disposing of, dealing with and/or creating any
third party interest, in any manner whatsoever and any of the
items inventorised in respect of Schedule C of the plaint.
2025:CHC-OS:264-DB
40. So far as Schedule D to the plaint is concerned, the defendants
will submit statement as directed by the learned Single Judge to
the Advocate-on-record of the plaintiff.
41. We are conscious of the fact that, we are returning finding with
regard to the jointness of the family, its businesses and assets, at
an interlocutory stage. We clarify that our findings are prima facie
in nature and for the purpose of adjudicating the rights of the
parties at the interlocutory stage. Needless to say that these
findings of ours should not be read as final findings at the trial of
the suit.
42. Three appeals along with connected applications are disposed of
accordingly, without any order as to costs.
(DEBANGSU BASAK, J.)
43. I agree.
(MD. SHABBAR RASHIDI, J.)
Sp3 /KB
AR(CR)
