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CASE NO.:

Appeal (civil) 4101 of 2006

PETITIONER:

M. Gurudas & Ors.

RESPONDENT:

Rasaranjan & Ors.

DATE OF JUDGMENT: 13/09/2006

BENCH:

S.B. Sinha & Dalveer Bhandari

JUDGMENT:

J U D G M E N T

[Arising out of SLP (Civil) No. 12 of 2006]

WITH

CIVIL APPEAL NO. 4102 OF 2006

[Arising out of SLP (Civil) No. 843-844 of 2006]

S.B. SINHA, J :

Leave granted in S.L.Ps.

These appeals involving common questions of law and fact and

having arisen from a common judgment were taken up for hearing

together and are being disposed of by this common judgment.

One M. Obalappa was the owner of the property. He had three

sons, viz., Nagappa, Obalappa and Kadarappa. M. Obalappa died in

1889. Nagappa separated himself in the year 1913. Obalappa and

Kadarappa were, thus, in joint possession of the properties in suit.

Obalappa died in 1949. He had no issue. The plaintiffs-respondents are

said to be the heirs of the natural daughter of Kadarappa, viz., Nirmala.

Allegedly, she was adopted by Obalappa during his life time. Kadarappa

died in 1961 leaving seven sons and one daughter Nirmala, whose heirs

and legal representatives of the plaintiffs claimed themselves, she died in

the year 1999. The children of Kadarappa, Gurudas and Others, and their

sons, Sagunarthy and Shivarthy, are the Appellants in Civil Appeals

arising out of SLP (C) No. 12 of 2006 and 843-44 of 2006 respectively.

The properties involve Survey No. 97/2 Old No. 46-C,

Doddabylakhana, Lalbagh Road, Bangalore and Survey No. 66 and 75/1,

Sarakki, Uttarhalli Hobli, Bangalore.

The purported adoption of Nirmala by Obalappa is in question in

the suit. It is, however, not in dispute that on or about 12.9.1947,

Obalappa had executed a deed of gift in favour of Nirmala showing her as

daughter of Kadarappa but under his guardianship whereas the heirs of

Nirmala claimed that Nirmala inherited the property on his death, which

as noticed hereinbefore took place in 1949. According to the Appellants,

the joint family property devolved by survivorship to Kadarappa. A

purported partition took place between Kadarappa and his sons on

15.6.1954. Nirmala was not given any share therein. It is stated that she

was not entitled thereto.

The property bearing Survey No. 97/2 is said to have been acquired

by Brahmanandadas by way of a deed of sale executed by Khaja

Ghulam Sheriff from 18.07.1955. It is furthermore not disputed that

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Kadrappa has transferred three properties in favour of Nirmala as a

trustee, referring her to be the foster daughter of Oblappa and describing

the said properties to be held in trust. The Appellants herein contend that

Nirmala, during her life time, never claimed to be an adopted daughter

and she did not have any interest in the joint family properties. In fact in

a writ petition questioning acquisition of some properties which were the

subject matter of writ petition No. 15217-21 of 1987, she had allegedly

admitted that the properties which were subject matter of acquisition were

separate and distinct.

The claim that Nirmala was the adopted daughter, however, was

specifically pleaded by the plaintiffs.

The suit was filed by the Respondents on 7.09.2000 wherein the

following reliefs were prayed for:

"WHEREFOR, the plaintiff prays for a judgment

and decree for partition of their share in the

schedule property:

a) Directing the partition of the suit Schedule

and to allot them in favour of plaintiffs

b) Restrain the defendants, their agents or any

person claiming through from alienating the suit

properties, by granting an order of permanent

injunction.

c) To order directing enquiry into mesne

profits under order XX Rule 12 Code of Civil

Procedure.

d) Awards costs of this suit and

e) Grant such other relief/s, at this Hon'ble

Court deems fit to grant under the facts and

circumstances of the case, in the interest of

justice."

The said reliefs were claimed inter alia on the premise that Nirmala

was the adopted daughter of Obalappa. However, an application for

amendment of plaint was filed on or about 5.08.2002 stating that the

parties being belonging to Brahmo Samaj faith, Nirmala could claim as

natural daughter of Kadarappa. In the said application for amendment,

however it was averred that Nirmala was adopted when she was about

three years old.

It is relevant to mention that in the original plaint the subject matter

thereof was : (i) a self acquired property of Obalappa; (ii) the properties

transferred by Kadarappa; and (iii) new properties acquired by the family.

However, in the amended plaint, the properties allotted to Kadarappa and

joint family purportedly not partitioned in 1954 had also been included as

Schedule D and E of the Plaint.

An application for injunction was filed and by an order dated

16.01.2003, the Appellants herein were restrained in dealing with the

properties directing:

"I.A. No. 1 is allowed. No costs.

Order of temporary injunction is passed in

favour of the plaintiffs restraining defendant No.

25 from putting up any construction on Item No. 1

of Schedule A and further not alienate any portion

thereof in favour of any one by himself or through

hits agents.

I.A. No. XI is allowed. No costs.

Order of temporary injunction is passed in

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favour of the plaintiffs restraining the defendants,

their men, from alienating or altering the nature of

the suit schedule properties."

On or about 18.03.2003, the High Court passed an interim order

directing that no alienation would take place, save and except the share of

the builders.

The said order was modified by an order dated 29.09.2005

directing that the development of the said property would be subject to

restriction in regard to dealing therewith. An application for modification

of the said order was filed which has been dismissed by an order dated

15.11.2005.

Mr. Mukul Rohtagi and Dr. Rajeev Dhawan, learned senior

counsel appearing on behalf of the Appellants, inter alia would submit

that the High Court misdirected itself in passing the impugned order

restraining the Respondents in alienating the property. The learned

counsel would urge that the properties shall be allowed to be utilized as

the constructions thereof had been permitted to be completed.

Mr. Rohtagi, at the outset, offered that the number of apartments

constructed on the disputed land being 59 and the builders having been

permitted to dispose of their share, only 21 flats remain to be sold, and

thus having regard to the claim of the plaintiffs- respondents, the order of

injunction may be confined to only 3 flats.

The submission of Dr. Rajeev Dhawan, on the other hand, was that

the property which was the subject matter of Civil Appeal arising out of

SLP(C) Nos. 843-44 of 2006 being self-acquired property and being

commercial in nature, the same may be allowed to be transferred subject

to the condition that 50% of the rents and other profits arising out of the

same upon deducting the expenses may be directed to be deposited.

The submissions raised on behalf of the Appellants are:

(i) The suit was barred by limitation

(ii) Nirmala having admitted the nature of her interest in writ petition

No. 15217-21 of 1987, the plaintiffs \026 respondents could not take a

stand contrary thereto or inconsistent therewith.

(iii) Adoption of Nirmala by Obalappa has neither been proved nor was

permissible in law.

(iv) The question of there being joint family would not arise, having

regard to the fact that the properties had been transferred in the

year 1954, and, thus, the share of Nirmala would be only 1/64th. In

any event, Nirmala has no interest in the self-acquired properties of

the parties.

Mr. Mahabir Singh, learned senior counsel appearing on behalf of

the Respondents, however, would not agree to the said offer. The learned

counsel contended that both the Trial Judge as also the High Court having

found that the plaintiffs not only have a prima facie case but also balance

of convenience lay in their favour, this Court should not exercise its

discretionary jurisdiction under Article 136 of the Constitution of India.

The learned counsel urged that from a perusal of the records, it would

appear that the learned Trial Judge as also the High Court had taken

serious note of the conduct of the Appellants herein insofar as they

disposed of some properties in violation of the order of status quo passed

by the court. It was argued that the question as regard illegality of

adoption cannot be permitted to be raised for the first time before this

Court. In any event, the Appellants having filed an application for

rejection of the plaint in terms of Order VII, Rule 11 of the Code of Civil

Procedure, the same having been dismissed, they should not be permitted

to raise the said contention once again. It was contended that before the

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appellate court an interim order was passed on the basis of agreement

between the parties, it is, therefore, inequitable to allow the parties to take

a different stand before this Court.

While considering an application for injunction, it is well-settled,

the courts would pass an order thereupon having regard to:

(i) Prima facie

(ii) Balance of convenience

(iii) Irreparable injury.

A finding on 'prima facie case' would be a finding of fact.

However, while arriving at such finding of fact, the court not only must

arrive at a conclusion that a case for trial has been made out but also other

factors requisite for grant of injunction exist. There may be a debate as

has been sought to be raised by Dr. Rajeev Dhawan that the decision of

House of Lords in American Cyanamid v. Ethicon Ltd. [1975] 1 All ER

504 would have no application in a case of this nature as was opined by

this Court in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd.

[(1999) 7 SCC 1] and S.M. Dyechem Ltd. v. Cadbury (India) Ltd. [(2000)

5 SCC 573], but we are not persuaded to delve thereinto.

We may only notice that the decisions of this Court in Colgate

Palmolive (supra) and S.M. Dyechem Ltd (supra) relate to intellectual

property rights. The question, however, has been taken into consideration

by a Bench of this Court in Transmission Corpn. of A.P. Ltd. v. Lanco

Kondapalli Power (P) Ltd. [(2006) 1 SCC 540] stating:

"The Respondent, therefore, has raised triable

issues. What would constitute triable issues has

succinctly been dealt with by the House of Lords

in its well-known decision in American Cyanamid

Co v. Ethicon Ltd. [(1975) 1 AER 504], holding :

"Your Lordships should in my view take

this opportunity of declaring that there is no such

rule. The use of such expression as 'a probability',

'a prima facie case', or 'a strong prima facie case'

in the context of the exercise of a discretionary

power to grant an interlocutory injunction leads to

confusion as to the object sought to be achieved by

this form of temporary relief. The court no doubt

must be satisfied that the claim is not frivolous or

vexatious; in other words, that there is a serious

question to be tried."

It was further observed :

"Where other factors appear to be evenly balanced

it is a counsel of prudence to take such measures as

are calculated to preserve the status quo. If the

defendant is enjoined temporarily from doing

something that he has not done before, the only

effect of the interlocutory injunction in the event of

his succeeding at the trial is to postpone the date at

which he is able to embark on a course of action

which he has not previously found it necessary to

undertake; whereas to interrupt him in the conduct

of an established enterprise would cause much

greater inconvenience to him since he would have

to start again to establish it in the event of his

succeeding at the trial.

* * *

The factors which he took into consideration, and

in my view properly, were that Ethicon's sutures

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XLG were not yet on the market; so that had no

business which would be brought to a stop by the

injunction; no factories would be closed and no

workpeople would be thrown out of work. They

held a dominant position in the United Kingdom

market for absorbable surgical sutures and adopted

an aggressive sales policy."

We are, however, not oblivious of the

subsequent development of law both in England as

well as in this jurisdiction. The Chancery Division

in Series 5 Software v. Clarke [(1996) 1 All ER

853] opined:

"In many cases before American Cyanamid the

prospect of success was one of the important

factors taken into account in assessing the balance

of convenience. The courts would be less willing

to subject the plaintiff to the risk of irrecoverable

loss which would befall him if an interlocutory

injunction was refused in those cases where it

thought he was likely to win at the trial than in

those cases where it thought he was likely to lose.

The assessment of the prospects of success

therefore was an important factor in deciding

whether the court should exercise its discretion to

grant interlocutory relief. It is this consideration

which American Cyanamid is said to have

prohibited in all but the most exceptional case. So

it is necessary to consider with some care what

was said in the House of Lords on this issue."

In Colgate Palmolive (India) Ltd. v.

Hindustan Lever Ltd. [(1999) 7 SCC 1], this Court

observed that Laddie, J. in Series 5 Software

(supra) had been able to resolve the issue without

any departure from the true perspective of the

judgment in American Cyanamid. In that case,

however, this Court was considering a matter

under Monopolies and Restrictive Trade Practices

Act, 1969.

In S.M. Dyechem Ltd. v. Cadbury (India)

Ltd. [(2000) 5 SCC 573], Jagannadha Rao, J. in a

case arising under Trade and Merchandise Marks

Act, 1958 reiterated the same principle stating that

even the comparative strength and weaknesses of

the parties may be a subject matter of

consideration for the purpose of grant of injunction

in trade mark matters stating :

"21\005Therefore, in trademark matters, it is now

necessary to go into the question of "comparable

strength" of the cases of either party, apart from

balance of convenience. Point 4 is decided

accordingly."

The said decisions were noticed yet again in

a case involving infringement of trade mark in

Cadila Health Care Ltd. v. Cadila Pharmaceuticals

Ltd. [(2001) 5 SCC 73]."

While considering the question of granting an order of injunction

one way or the other, evidently, the court, apart from finding out a prima

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facie case, would consider the question in regard to the balance of

convenience of the parties as also irreparable injury which might be

suffered by the plaintiffs if the prayer for injunction is to be refused. The

contention of the plaintiffs must be bona fide. The question sought to be

tried must be a serious question and not only on a mere triable issue. [See

Dorab Cawasji Warden v. Coomi Sorab Warden and Others , (1990) 2

SCC 117, Dalpat Kumar and Another v. Prahlad Singh and Others (1992)

1 SCC 719, United Commercial Bank v. Bank of India and Others (1981)

2 SCC 766, Gujarat Bottling Co. Ltd. and Others v. Coca Cola Co. and

Others (1995) 5 SCC 545, Bina Murlidhar Hemdev and Others v.

Kanhaiyalal Lokram Hemdev and Others (1999) 5 SCC 222 and

Transmission Corpn. of A.P. Ltd (supra)]

Mr. Mahabir Singh may not be right in contending that the

adoption of Nirmala was never in question. In fact, the Trial Court in its

judgment noticed:

"\005Hence, if the family of Obalappa had followed

Brahmo Samaj, Kadarappa could not have get any

property by survivorship and the adoption of

Nirmala Dhari is valid under law. Under the

circumstances, the issue as to the ancient Hindu

Adoption has to be investigated during the trial.

The plaintiffs have established a trivial case i.e.

prima-facie case in my opinion."

While arriving at the said finding, the court referred the following

passage from Mayne's Treatise on Hindu Law and Usage, 13th edition,

pages 429-430:

"Adoption of daughters \026 Nandapandita in his

Dattaka Mimamsa would construe 'putra' (or son)

as including a daughter and he draws the inference

that on failure of a daughter, a daughter of another

could be adopted. He supports his conclusion by

referring to ancient precedents, such as the

adoption of Shanta, the daughter of King

Dasaratha by King Lomapada and the adoption of

Pritha or Kunti, the daughter of Sura by Kunti

Bhoja. This view is sharply criticized by

Nilakantha in the Vyavahara Mayukha. It is now

settled that the adoption of a daughter is invalid

under the Hindu law."

(Underlining is ours for emphasis)

However, it appears that the learned Judge missed the last sentence

of the said passage i.e. "It is now settled that the adoption of a daughter

is invalid under the Hindu law."

Even otherwise prima facie, Nirmala does not appear to have been

adopted by Obalappa which is evident from the deed of gift executed by

him. Even in the transfer deed executed by Kadarappa, Nirmala was

described as a foster daughter of Obalappa and not as an adopted

daughter.

To prove valid adoption, it would be necessary to bring on records

that there had been an actual giving and taking ceremony. Performance

of 'datta homam' was imperative, subject to just exceptions. Above all,

as noticed hereinbefore, the question would arise as to whether adoption

of a daughter was permissible in law.

In Mulla's Principles of Hindu Law, 17th edition, page 710, it is

stated:

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"488. Ceremonies relating to adoption \026 (1) The

ceremonies relating to an adoption are \026

(a) the physical act of giving and receiving,

with intent to transfer the boy from one family into

another;

(b) the datta homam, that is, oblations of

clarified butter to fire; and

(c) other minor ceremonies, such as putresti jag

(sacrifice for male issue).

(2) They physical act of giving and receiving is

essential to the validity of an adoption;

As to datta homam it is not settled whether

its performance is essential to the validity of an

adoption in every case.

As to the other ceremonies, their

performance is not necessary to the validity of an

adoption.

(3) No religious ceremonies, not even datta

homam, are necessary in the case of Shudras. Nor

are religious ceremonies necessary amongst Jains

or in the Punjab."

In Section 480 of the said treatise, it is categorically stated that the

person to be adopted must be a male.

Prima facie, therefore, Nirmala was not validly adopted daughter

of Obalappa. If that be so, she would inherit only the property which fell

to the share of Kadarappa on partition. Nirmala as a daughter of

Kadarappa can claim interest in his share in the properties only. In terms

of Section 8 of the Hindu Succession Act, as Kadarappa died in the year

1961, she will have 1/8th share but what was the extent of Kadarappa's

property would inevitably depend upon the effect of deed of partition

executed by the parties in the year 1954. However, as the matter is

required to be dealt with by the Trial Court finally, we do not intend to

say anything further at this stage lest we may be understood to have

expressed our views one way or the other.

At the stage of grant of injunction, however, the effect of dismissal

of an application under Order VII, Rule 11 of the Code of Civil Procedure

would not be of much significance. The plaint in question could not

have been rejected under Order VII, Rule 11 of the Code of Civil

Procedure. The Court at that stage could not have been gone into any

disputed question of fact but while passing an order on grant of injunction

indisputably it can. In other words, while making endeavours to find out

a prima facie case, the court could take into consideration the extent of

plaintiffs' share in the property, if any.

It is no doubt true in view of several decisions of this Court, some

of which has been referred to in Transmission Corpn. of A.P. Ltd (supra)

that an appellate court would not ordinarily interfere with but then there

are certain exceptions thereto.

In Board of Control for Cricket in India and Another v. Netaji

Cricket Club and Others [(2005) 4 SCC 741], it has been held:

"95. Furthermore, the impugned order is

interlocutory in nature. The order is not wholly

without jurisdiction so as to warrant interference of

this Court at this stage. The Division Bench of the

High Court had jurisdiction to admit the review

application and examine the contention as to

whether it can have a relook over the matter. This

Court, it is trite, ordinarily would not interfere with

an interlocutory order admitting a review petition.

The contentions raised before us as regards the

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justification or otherwise of the Division Bench

exercising its power of review can be raised before

it. Furthermore, the Court having regard to clause

(ii) of its order dated 29-9-2004 may have to

consider as to whether the election was held in

accordance with the constitution of the Board and

the Rules and Bye-laws framed by it."

In this case, in our opinion, the courts below have not applied their

mind as regards balance of convenience and irreparable injury which may

be suffered by the Appellants. The question which may be posed is what

would happen if the plaintiffs' suit is to be dismissed or if their share is

found only to be 1/64th ? Prima facie their share is not more than 1/8th in

the properties in suit.

The properties may be valuable but would it be proper to issue an

order of injunction restraining the Appellants herein from dealing with

the properties in any manner whatsoever is the core question. They have

not been able to enjoy the fruits of the development agreements. The

properties have not been sold for a long time. The commercial property

has not been put to any use. The condition of the properties being

remaining wholly unused could deteriorate. These issues are relevant.

The courts below did not pose these questions unto themselves and, thus,

misdirected themselves in law.

Another question of some importance which was required to be

posed and answered was as to whether in a situation of this nature the

plaintiffs would be asked to furnish any security in the event of dismissal

of the suit in respect of any of the properties would the defendants be

sufficiently compensated? We have asked Mr. Mahabir Singh as to

whether his clients were ready and willing to furnish any security. He

responded in the negative.

The conduct of the defendants was indisputably relevant as has

been held by this Court in Gujarat Bottling Co. Ltd. (supra) in the

following terms

"47. In this context, it would be relevant to

mention that in the instant case GBC had

approached the High Court for the injunction

order, granted earlier, to be vacated. Under Order

39 of the Code of Civil Procedure, jurisdiction of

the Court to interfere with an order of interlocutory

or temporary injunction is purely equitable and,

therefore, the Court, on being approached, will,

apart from other considerations, also look to the

conduct of the party invoking the jurisdiction of

the Court, and may refuse to interfere unless his

conduct was free from blame. Since the relief is

wholly equitable in nature, the party invoking the

jurisdiction of the Court has to show that he

himself was not at fault and that he himself was

not responsible for bringing about the state of

things complained of and that he was not unfair or

inequitable in his dealings with the party against

whom he was seeking relief. His conduct should

be fair and honest. These considerations will arise

not only in respect of the person who seeks an

order of injunction under Order 39 Rule 1 or Rule

2 of the Code of Civil Procedure, but also in

respect of the party approaching the Court for

vacating the ad interim or temporary injunction

order already granted in the pending suit or

proceedings."

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In Board of Control for Cricket in India (supra), it is stated:

"96. The conduct of the Board furthermore is not

above board. The manner in which the Board had

acted leaves much to desire."

But, then conduct of the plaintiffs would also be relevant. The

court while granting an order of injunction, therefore, would take into

consideration as to whether the plaintiffs have pre-varicated their stand

from stage to stage. Even this question had not been adverted to by the

learned courts below.

While doing so, the courts, as has been noticed in Dhariwal

Industries Ltd. and Another v. M.S.S. Food Products [(2005) 3 SCC 63]

whereupon Mr. Mahabir Singh relied upon, would look into the

documents produced before the Trial Court as also the Appellate Court in

terms of Order 41, Rule 27 of the Code of Civil Procedure but the same

would not mean that this Court must confine itself only to the questions

which were raised before the courts below and preclude itself from

considering other relevant questions although explicit on the face of the

records. Questions of law in a given case may be considered by this

Court although raised for the first time. The question as to whether this

Court would permit the parties to raise fresh contentions, however, must

be based on the materials placed on records.

Having regard to the facts and circumstances of this case, we are of

the opinion that the interest of justice would be subserved if these appeals

are disposed of with the following directions:

I. (i) The Appellants in Civil Appeal arising out of SLP (C) No. 12

of 2006 will be permitted to sell 18 flats in their possession. The

plaintiffs- respondents would be shown all the 21 flats and they

may choose any of the 3 flats, whereupon they may offer to

purchase the said flats themselves. In the event such an offer is

made, the same shall be sold at the price which is being offered by

the Appellants to any other buyer. (ii) While transferring the flats,

however, the Appellants must indicate to the buyer that the same

shall be subject to the ultimate result of the suit. (iii) The

Appellants may choose, in the event the Respondents fail and/or

neglect to exercise their option, to keep 3 flats with themselves.

(iv) They, however, may sell the same, if they choose to do so in

presence of one of the officers of the court who may be appointed

for the purpose of fixing the market price thereof. However, the

price fetched by way of sale of three flats shall be invested in a

fixed deposit in a nationalized bank and the interest accruing

thereupon shall enure to the benefit of successful party in the suit..

II. (i) The Appellants in Civil Appeal arising out of SLP (C) Nos. 843-

44 of 2006 may let out the commercial property in their possession.

However, as offered by the Appellants themselves, they shall

deposit 50% of the amount after deducting expenditure therefrom

and the requisite amount of tax in a fixed deposit in a nationalized

bank as may be directed by the learned Trial Judge. (ii) Even for

the said purpose, a receiver may be appointed by the learned Trial

Judge.

III. It would be open to the learned Trial Judge to pass any other or

further order if and when any occasion arises therefor.

IV. We are informed that the plaintiffs have filed affidavits of their

witnesses. The learned Trial Judge may complete the hearing of

the suit as expeditiously as possible. Save and except for cogent

reasons, the hearing of the suit may not be adjourned. We would

request the learned Trial Judge to dispose of the suit expeditiously

and preferably within six months from the date of receipt of a copy

of this order.

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The appeals are allowed to the extent mentioned hereinabove.

Costs of these appeals shall abide by the result of the suit.