& Ors Vs. Rasaranjan & Ors  Insc 585 (13 September 2006)
Sinha & Dalveer Bhandari
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 :
granted in S.L.Ps.
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.
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
died in 1949. He had no issue. The plaintiffs-respondents are said to be the
heirs of the natural daughter of Kadarappa, viz., Nirmala.
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.
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.
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.
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 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.
claim that Nirmala was the adopted daughter, however, was specifically pleaded
by the plaintiffs.
suit was filed by the Respondents on 7.09.2000 wherein the following reliefs
were prayed for:
the plaintiff prays for a judgment and decree for partition of their share in
the schedule property:
partition of the suit Schedule and to allot them in favour of plaintiffs
defendants, their agents or any person claiming through from alienating the
suit properties, by granting an order of permanent injunction.
directing enquiry into mesne profits under order XX Rule 12 Code of Civil
Awards costs of
this suit and
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
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.
relevant to mention that in the original plaint the subject matter thereof was
a self acquired
property of Obalappa;
transferred by Kadarappa; and
acquired by the family.
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.
application for injunction was filed and by an order dated 16.01.2003, the
Appellants herein were restrained in dealing with the properties directing:
No. 1 is allowed. No costs.
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.
No. XI is allowed. No costs.
of temporary injunction is passed in 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.
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.
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.
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.
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.
submissions raised on behalf of the Appellants are:
The suit was
barred by limitation
admitted the nature of her interest in writ petition No. 15217-21 of 1987, the
plaintiffs respondents could not take a stand contrary thereto or inconsistent
Adoption of Nirmala
by Obalappa has neither been proved nor was permissible in law.
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.
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.
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 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.
considering an application for injunction, it is well-settled, the courts would
pass an order thereupon having regard to:
finding on 'prima facie case' would be a finding of fact.
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.  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.
7 SCC 1] and S.M. Dyechem Ltd. v. Cadbury (India) Ltd. [(2000) 5 SCC 573], but we are not persuaded to delve thereinto.
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:
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 :
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
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 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]
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.
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.
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 :
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."
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
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.
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:
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.
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,
of daughters 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.
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
Principles of Hindu Law, 17th edition, page 710, it is stated:
relating to adoption
relating to an adoption are
the physical act
of giving and receiving, with intent to transfer the boy from one family into
the datta homam,
that is, oblations of clarified butter to fire; and
ceremonies, such as putresti jag (sacrifice for male issue).
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.
the other ceremonies, their performance is not necessary to the validity of an
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
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.
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.
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
Board of Control for Cricket in India and Another v. Netaji Cricket Club and Others [(2005) 4 SCC 741], it
has been held:
"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.
contentions raised before us as regards the 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.
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
courts below did not pose these questions unto themselves and, thus,
misdirected themselves in law.
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.
conduct of the defendants was indisputably relevant as has been held by this
Court in Gujarat Bottling Co. Ltd. (supra) in the following terms
"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." In Board of Control for Cricket in India (supra), it is stated:
"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
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.
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:
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
transferring the flats, however, the Appellants must indicate to the buyer that
the same shall be subject to the ultimate result of the suit.
may choose, in the event the Respondents fail and/or neglect to exercise their
option, to keep 3 flats with themselves.
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..
in Civil Appeal arising out of SLP (C) Nos. 843- 44 of 2006 may let out the
commercial property in their possession.
as offered by the Appellants themselves, they shall deposit 50% of the amount
after deducting expenditure there from and the requisite amount of tax in a
fixed deposit in a nationalized bank as may be directed by the learned Trial
Even for the
said purpose, a receiver may be appointed by the learned Trial Judge.
It would be open
to the learned Trial Judge to pass any other or further order if and when any
occasion arises therefore.
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.
appeals are allowed to the extent mentioned hereinabove.
of these appeals shall abide by the result of the suit.