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Judgment
B.S. Patil, J.—These two appeals arise out of the common order dated 03.01.2015 passed on IA Nos. 1 & 2 passed in O.S. No. 7109/2014. Hence, they are clubbed, heard together and disposed of by this common judgment.
M.F.A. No. 2096/2015 is filed by the plaintiff and M.F.A. No. 2538/2015 is filed by the 1st defendant.
Plaintiff-appellant herein has filed the suit for partition and separate possession of his 1/9th share in the suit schedule properties. Schedule A properties are the properties purchased in the name of defendants 1, 2 & their children allegedly from out of the joint family funds and include the properties that were allotted to defendants 1 & 2 and late Thimmaiah together in the partition deed dated 02.03.1944. Whereas, Schedule B properties are also allegedly purchased out of the joint family funds, but in the name of G.T. Mariswamy Reddy and those allotted in his favour in the partition deed dated 02.03.1944.
Plaintiff is the son of 1st defendant. Defendants 1 & 2, late G.T. Mariswamy Reddy and Appi Reddy are children of late Thimmaiah. They were all living jointly as coparceners. There was partition in the year 1944 between Thimmaiah, Appi Reddy, defendants 1 & 2 & late G.T. Mariswamy Reddy.
Father of the plaintiff - 1st defendant herein was a minor at the time of partition. He was allotted share along with 2nd defendant and it is the 2nd defendant who represented 1st defendant as guardian. Both were together allotted a single share. According to the plaintiff, defendants 1 & 2, even after partition continued to be joint family members along with other family members. Thus, all the properties allotted in favour of the respective sharers were continued as joint family properties.
It is further alleged by the plaintiff that the joint family started several business out of the joint family funds and from the income earned from the said business, they purchased other properties; some properties were purchased in the name of defendants 1 & 2 and some properties were purchased in the name of G.T. Mariswamy Reddy; the family decided to constitute a partnership firm for running bus services on certain routes; the transport service by name Sri Vinayaka Motor Services was started in the year 1977 with the contribution by all the partners; the partnership business was dissolved in 1985; all the coparceners were allotted 1/10th share in the immovable and movable assets of the firm excluding bus permits.
It is further urged that, in the year 1993, family members of G.T. Mariswamy Reddy i.e., defendants 7 to 9 filed O.S. No. 1408/1993 before the City Civil Court for partition against defendants 1 to 6 and one late Venkatamma; plaintiff was not made a party in the said suit; the said suit was decreed in terms of the compromise petition dated 15.02.1994, but, as the plaintiff was not a party to the said suit, the compromise petition was not binding on the plaintiff; parties therein had agreed that the suit properties were the joint family properties, thereby making it clear that defendants 1 & 2 and late G.T. Mariswamy Reddy constituted joint family.
Plaintiff also asserted that several properties were got allotted to the share of 2nd defendant in the said suit, leaving behind plaintiff and other coparceners, therefore, the said compromise decree was the result of suppression of facts and fraud played against the plaintiff and was also the result of collusion between the parties therein as they did not include all the properties.
After the said compromise decree, 6th defendant executed several release deeds relinquishing his right over some of the items of the properties in favour of some of the defendants, hence the plaintiff alleges that the said release deeds were not binding on the plaintiff. Even the revenue entries got effected in the name of 2nd defendant by virtue of the compromise decree have been alleged to be illegal.
By virtue of the release deed, 14th defendant and his children i.e., defendants 15 & 16 have allegedly executed general power of attorneys on 03.10.2011 in favour of defendants 20 & 21 authorizing them to form housing layout and to sell the properties and defendants 2 & 11 executed a registered joint development agreement dated 24.03.2009 in respect of some of the items. Several other transactions have been referred to in the body of the plaint, which according to the plaintiff, have been entered into by the defendants either inter se or with third parties which he alleged, were not binding on the plaintiff. Plaintiff has sought declaratory relief in respect of these transactions spanning over different period of time from 1994 till 2013-14.
2nd defendant and other defendants have filed separate written statements. They have contested the claim made by the plaintiff denying all the material allegations and averments made by the plaintiff. 2nd defendant has contended that he was working in HAL prior to the partition/settlement deed dated 02.03.1944 and had his separate and independent source of income and that it was he who invested his separate and hard earned money to start the transport business during 1955-56, of which he was the sole proprietor and that the business was his exclusive business. He has also urged that with effect from 02.03.1944, the joint family properties were divided.
Similarly, the other contesting defendants except 1st defendant, have taken up specific stand denying the allegations made by the plaintiff. The application filed by the plaintiff seeking temporary injunction to restrain the defendants from alienating or encumbering or creating any charge over the suit schedule property was contested by the contesting defendants.
The Trial Court after considering the matter, has rejected the application. Aggrieved by the same, the present appeal is filed by the plaintiff.
The main reasons assigned by the Trial Court are, that in the light of the partition of the year 1944, the compromise decree passed in O.S. No. 1408/1993 on 15.02.1994 and the registered documents executed in the form of release deeds, gift deeds and sale deeds, it was clear that the compromise decree and partition had been acted upon; that the subsequent memorandum of partition dated 31.01.1995 made it clear that defendants 12 to 16 were enjoying right over their properties and they had entered into various transactions in respect of the said properties. Therefore, plaintiff had failed to make out a prima facie case and hence, temporary injunction as sought for could not be granted.
Mr. Chalapathy, learned Senior Counsel appearing for the plaintiff-appellant has principally contended that whether after the partition of the year 1944, all the three branches continued jointly as asserted by the plaintiff and whether the transport business was the family business or not was a matter that required trial. The fact that second wife of G.T. Mariswamy Reddy and her children had filed O.S. No. 1408/1993 against the first wife and her children showed that the joint family was still in existence and many properties described in the said suit continued to be joint family properties though they had been allotted to the share of Venkataswamy Reddy under the compromise. He contends that the stand taken by 2nd defendant in his written statement and the stand taken by his son are inconsistent. He urges that defendants had not produced any document to show the independent source of income, therefore, in terms of the principles enunciated in the judgment in the case of M/s. Gujarat Bottling Co. Ltd. and others Vs. Coca Cola Company and others, , and as per the judgment in the case of Rachakonda Venkat Rao and Others Vs. R. Satya Bai (D) by Lr. and Another, , the Trial Court ought to have held that plaintiff had made out a prima facie case and temporary injunction ought to have been granted.
Learned Senior Counsel Mr. Jayakumar S.Patil and learned Counsel Mr. Shanmukhappa appearing along with him for the 1st-defendant/appellant in the connected appeal submit that 1st defendant is the father of the plaintiff; 2nd defendant as guardian of the 1st defendant was allotted jointly certain properties; there was nothing to show that any partition had taken place between defendants 1 & 2. There could be joint family of only brothers and materials on record disclosed that Mariswamy Reddy also continued in the joint family. Therefore, question whether suit properties were joint family properties being a serious question to be tried, the properties were required to be maintained in status quo until disposal of the suit.
Learned Counsel Mr. Shaker Shetty for respondents 10 & 11, Mr. Krishna Kumar for respondents 3 & 4, Mr. Sundaresh for respondents 14 to 16, 20 & 21, & Mr. Uday Holla, learned Senior Counsel for respondents 12 & 13, & Mr. Suraj Govindarajan for respondents 17 & 18 have supported the order passed by the Trial Court dismissing the application.
In his reply, Mr. Chalapathy has contended that even if the partition of the year 1944 has been admitted, the facts and circumstances and the conduct of the parties revealed that there was re-union and re-union could be implied. He also submits that if third party interests were to be created by alienating the subject matter of the suit, it will cause irreparable injury to the interest of the plaintiff and hence, while developer''s share of the properties which is subject matter of joint venture could be permitted to be sold, owner''s share even if permitted to be sold, the amount derived therefrom may be ordered to be deposited in court. He has contended that as the Trial Court has not referred to necessary documents while passing the order under challenge, this Court is required to interfere in the matter in the ends of justice.
Having heard the learned Counsel for all the parties and on consideration of the respective contentions of the learned Counsel, prima facie the partition deed executed in the year 1944 shows that it is a settlement deed. In O.S. No. 1408/1993, the plaint averments disclose that each one of the parties enjoyed the properties separately. There was no material to show that after 1944, there was re-union and that properties were purchased out of joint family funds. Even the conduct of the parties, particularly the plaintiff, disclosed that he has kept quiet till 2014 although several transactions have taken place right from 2004 onwards.
Admittedly buildings have been already constructed in the properties. In the sale deeds dated 20.05.1945 executed by defendants 1 & 2 in favour of Mariswamy Reddy and Appi Reddy reference has been made to the settlement deed and title is not traced to any pre-existing right. Prima facie, there is no specific pleading in the plaint regarding re-union with necessary details.
As rightly contended by Mr. Krishna Kumar, learned Counsel for defendants 3 & 4 by relying on the judgment in the case of Paramanand L. Bajaj Vs. Commissioner of Income Tax, Karnataka-II, , if partition has been effected by way of registered deed, then re-union has to be by a registered deed. This aspect of the matter, however, has to be borne in mind for the purpose of holding whether prima facie case has been made out. The fact that sale deed had been executed on 20.05.1945 by defendants 1 & 2 in favour of Mariswamy Reddy and Appi Reddy itself discloses that there was no re-union with Mariswamy Reddy.
It is rightly contended by the Counsel for respondents 3 & 4 commenting on the conduct of the plaintiff that plaintiff went out of the partnership business on 31.10.1985 by virtue of dissolution of partnership and having kept quiet for nearly three decades, has filed the present suit. As regards the conduct of the 1st defendant - Krishna Reddy, it is clear that in his written statement he does not state anything regarding reunion between himself, Mariswamy Reddy and Venkataswamy Reddy. He keeps quiet from 1944 and in the present suit, colludes with his son and has filed a separate appeal challenging the rejection of the application filed.
It also appears from the conduct of the plaintiff that only after the joint development agreement was entered into and the development project was undertaken by forming layout and creating third party interests, the suit has been filed. In such circumstances as the plaintiff has approached the Court seeking relief of partition and declaration by keeping quiet for decades, in the absence of any details of alleged fraud and as to how and when he unearthed the fraud, it cannot be said that prima facie case had been made out by the plaintiff.
It is also relevant to notice here that any alienations made of the suit properties during the pendency of the suit, would be governed by the principles of lis pendens contained in Section 52 of the Transfer of Property Act. Therefore, no case has been made out for grant of temporary injunction. The conclusion reached by the court below in this regard does not require any interference in exercise of appellate jurisdiction, as the same does not suffer from any illegality or perversity.
Hence, both these appeals are dismissed.