Dhanalakshmi vs Rajagopal
2021 Latest Caselaw 21247 Mad

                                                                                      C.M.A.No.2183 of 2021


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 25.10.2021

                                                          CORAM

                               THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE

                                                C.M.A.No.2183 of 2021 &
                                                 CMP.No.12104 of 2021

                     1.Dhanalakshmi
                     2.Jeevitha                                                 ...       Appellants

                                                             Vs

                     Rajagopal                                                  ...     Respondent

                     PRAYER: Civil Miscellaneous Appeal filed under Section 104 of CPC read
                     with Order XLIII Rule (r) of CPC against the fair and final order passed in
                     IA.No.78 of 2020 in O.S.No.32 of 2020 on the file of the Principal District
                     Court, Tiruvarur dated 26.02.2021.


                                     For Appellant            : Mr.S.Sounthar
                                     For Respondent 2         : Mr.B.Jawahar

                                                        JUDGMENT

This appeal has been filed challenging the judgment and decree dated

26.02.2021 passed by the learned Principal District Judge, Thiruvarur in

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I.A.No. 78 of 2020 in O.S.No.32 of 2020 under which the application filed

by the Appellants/plaintiffs seeking for injunction against the respondent

was dismissed.

2. The suit O.S.No.32 of 2020 was filed by the Appellants/plaintiffs

seeking for partition against the defendants and the respondent is the first

defendant. The first Appellant/first plaintiff is the wife of late Elango and

the second Appellant/second plaintiff is his daughter. Late Elango is the

brother of the respondent.

3. It is the case of the Appellants that no share has been allotted to the

Appellants by the respondent in the properties belonging to the joint family.

In such circumstances, the suit was filed by the Appellants seeking for

partition on their 1/4th share. Pending the suit, I.A.No.78 of 2020 was filed

by the Appellants/plaintiffs seeking for injunction restraining the

respondent from making any encumbrance in the suit properties till the

disposal of the original suit.

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4. Under the impugned order dated 26.02.2021, the learned Principal

District Judge, Thiruvarur dismissed I.A.No.78 of 2020 on the ground that

no injunction can be granted against a co-owner. Aggrieved by the same,

this appeal has been filed.

5. Learned counsel for the Appellants would submit that the

Appellants are willing to cooperate for the early disposal of the suit

O.S.No.32 of 2021 and till such time, this Court may grant an order of

injunction as prayed for in CMP.No.12104 of 2021.

6. Admittedly, the first Appellant's husband Elango is the brother of

the respondent, as seen from the written statement filed by the respondent

before the trial court. However, it is the contention of the respondent that by

virtue of a will, they are entitled for the entire share in the properties and the

Appellants/plaintiffs are not entitled for any share.

7. Whether the will is a genuine document or not has to be determined

by the trial court. Since the Appellants/plaintiffs have undertaken to

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cooperate with the trial on day to day basis, this court is of the considered

view that injunction can be granted in favour of the Appellants insofar as

the remaining unsold properties for a limited period or till the disposal of

the suit. This Court is of the considered view that since the pleadings are

completed, the trial court can frame the issues and after completion of trial,

can dispose of the suit within a time frame to be fixed by this Court. This

court is of the considered view that the suit can be disposed of within a

period of four months from the date of receipt of a copy of this judgment.

8. In view of the above, this court directs the trial court namely the

Principal District Judge, Thiruvarur, to dispose of the suit O.S.No.32 of

2020 within a period of four months from the date of receipt of a copy of

this Judgment.

9. There shall be an order of interim injunction in favour of the

Appellants in respect of properties in suit A Schedule item-III and suit B

schedule item V (1) & (2) for a limited period of four months from the date

of receipt of a copy of this Judgment or till the disposal of the suit

O.S.No.32 of 2020 whichever is earlier.

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10. In the aforesaid terms, this appeal is disposed of. No costs. In

case the suit is not disposed of due to the non-cooperation of the

Appellants/plaintiffs within four months from the date of receipt of a copy

of this Judgment, the interim injunction granted by this court shall stand

automatically vacated.

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Index: Yes/ No Internet: Yes/No Speaking Order/Non-speaking Order

To

1. The Principal District Court, Tiruvarur

2.The Section Officer, V.R.Section, High Court of Madras.

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ABDUL QUDDHOSE, J.

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C.M.A.No.2183 of 2021

25.10.2021

https://www.mhc.tn.gov.in/judis/