Deivanai and Palanimurugan (rep. by their mother and next friend Selvi) vs Palanimuthu @ Muthusamy, Palanivelu and Susila

R. Banumathi, J.—This revision arises out of the order of the learned Subordinate Judge, Mettur dated 15.10.2001, passed in

C.M.A.No.11/2001, modifying the order dated 27.4.2001 passed in I.A.No.34/2001 in O.S.No.12/2001, by the District Munsif cum Judicial

Magistrate, Omalur. The Plaintiffs are the Revision Petitioners.

The Plaintiffs are daughter and son of D-1-Palanivelu. Selvi - mother of the Plaintiffs married D-1 ten years prior to the suit. The Plaintiffs have

filed the suit for partition of the suit properties into four equal shares and allot two shares to the Plaintiffs. The case of the Plaintiff is that about ten

years after the marriage, the first Defendant was ill-treating Selvi, demanding for more dowry and jewels. With no other option, the Plaintiffs along

with their mother, took shelter in the house of their mother. Even thereafter, the first Defendant or his father viz., the second Defendant never cared

about the welfare of the Plaintiffs and their mother. The Plaintiffs are unable to maintain themselves. The suit properties are the ancestral properties

of the Plaintiffs and the Defendants. The second Defendant obtained the suit properties by way of Partition Deed dated 8.3.1974. The Plaintiffs are

entitled to 1/4th share each in the suit property. The Defendants 1 and 2 are entitled to 1/4th share each. Hence the Plaintiffs have filed the suit for

partition of their 1/4 + 1/4th share.

I.A.No.34/2001 :-

Along with the suit, the Plaintiffs have filed this application restraining the Defendants from in any way alienating or encumbering the suit property.

According to the Plaintiffs, with a view to defeat their lawful claim, the Defendants 1 and 2 are attempting to sell the suit property. If the suit

property is sold to third parties, the Plaintiff would be subjected to much hardship and inconvenience and facing multiplicity of proceedings. Hence

the application for temporary injunction.

Resisting the Application, Defendants have filed the counter statement contending that D-2 has obtained loan of Rs.50,000/- from Omalur Bank

and the second Defendant has half share in the family properties. The Plaintiffs cannot prevent the second Defendant from alienating his share; nor

the Plaintiffs can prevent the first Defendant from alienating his share.

Upon consideration of the contentions of both parties, the learned District Munsif found that the suit properties being ancestral properties, the

Plaintiffs are entitled to their due share. It was further held that if the properties are alienated, the Plaintiff would be subjected to hardship and there

would be multiplicity of proceedings. Finding that balance of convenience is on the Plaintiffs, the learned District Munsif granted temporary

injunction.

As against the order of grant of temporary injunction, the Defendants have preferred the appeal in C.M.A.No.11/ 2001 on the file of the Sub

Court, Mettur. The lower Appellate Court modified the order of the trial Court finding that there cannot be an order of injunction against the

second Defendant, who is entitled to half share. It was further held that till the disposal of the suit, there cannot be an order of injunction restraining

the Defendants from alienating the properties.

Aggrieved over the order of the Lower Appellate Court made in C.M.A.No.11/2001, the Plaintiffs have preferred this revision. The learned

counsel for the Revision Petitioner has contended that the Defendants have no right to alienate the ancestral properties. It is further contended that

if the suit properties are alienated, the Plaintiffs would be subjected to hardship and would be compelled to implead the purchasers and thereby,

facing multiplicity of judicial proceedings. The learned counsel for the Revision Petitioners prayed to reverse the order of the lower Appellate Court

and sustain the order of the trial Court.

Supporting the findings of the lower Court, the learned counsel for the 1st Respondent/D-2 has contended that there cannot be any order of

injunction as against the first Respondent. It is submitted that even assuming that there is any alienation relating to the undivided share created by

the first Respondent, the same would not affect the rights of the Plaintiffs in the family properties and that equities could be worked out at any time.

Whether the lower Appellate Court was right in modifying the order of the trial Court regarding the share of the first Respondent/D-2 and

whether the impugned order suffers from material irregularity warranting interference is the short point that arises for consideration.

The suit properties relate to S.No.482; 182/2 - total extent of 2.62 acres in Sellapilla Kuttai Village, Omalur Taluk. Admittedly, the suit

properties are the ancestral properties. D-1 father of the Plaintiffs is entitled to half share and D-2 - Grandfather of the Plaintiffs has been entitled

to half share. The Plaintiffs can claim right only through their father. They could seek injunction only against their father and not against their

grandfather and half share of the second Defendant. Coparcener in the Hindu Undivided Family without the consent of the other coparceners can

sell or mortgage or otherwise, his share in the undivided family estate. The coparcener is entitled to alienate his undivided share either in whole or

part or in certain specific item of the property. Of course, he cannot sell the specific property within specific boundaries. D-2 being a coparcener is

entitled to half share in the family property and he has a right to alienate his share and the same cannot be restrained.

The main point urged by the Revision Petitioners is that if the Defendants alienate the suit property, the Plaintiffs would be subjected to much

hardship and the purchasers might have to be impleaded and the Plaintiffs might have to face multiplicity of judicial proceedings. During the

pendency of the suit, in case of alienation by the coparcener, the purchasers might have to be impleaded in the suit. But the purchasers would only

step into the shoes of the coparceners. Equities are to be worked out in the partition suit. Such inconvenience caused to the Plaintiff cannot be a

ground for restraining the second Defendant from alienating the suit property regarding his share.

The lower Appellate Court has rightly appreciated the facts in the light of the well settled proposition of Hindu Law. The Appellate Court has

exercised the discretion judiciously and taken into consideration the relevant factors. Whenever an appeal is filed against the order of granting or

refusing to grant an order of injunction, in deciding the appeal, the appellate Court also shall have to bear in mind the findings recorded by the trial

Court and the reasons given and consider whether the discretion is properly and judiciously exercised. In exceptional cases, where it is shown that

there is going to be irreparable loss or failure of justice, it is open to the appellate Court to modify the order of the trial Court. In this case, the

appellate Court has rightly appreciated the contentions and modified the order. There is no reason calling for interference. This revision is bereft of

materials and is bound to fail.

Therefore, the order of the learned Subordinate Judge, Mettur, passed in C.M.A.No.11/2001, modifying the order passed in I.A.No.34/2001

in O.S.No.12/2001, by the District Munsif cum Judicial Magistrate, Omalur is confirmed and this revision is dismissed.

The suit is of the year 2001. The learned District Munsif, Omalur is directed to expedite the trial and dispose of the same expeditiously. In the

circumstances of the case and relationship of the parties, there is no order as to costs.