ORDER 39 RULE 1 &2 - SUIT FOR CANCELLATION OF REG. GIFT DEED AND ALSO FOR PARTITION - We feel that there is nothing wrong in trial Court looking into the evidence of P.W.1 and deciding the issue without reference to the documents, more particularly, Aadhar card, gas connection, correspondence from Margadarsi finance, renewal of driving licence etc., belonging to the appellant – plaintiff. Probably all these documents were marked only to show that the appellant - plaintiff was residing at the said place. Nonconsideration of these documents, in our view, may not go to the root of the matter, while deciding granting of injunction, in view of the evidence of P.W.1, who is the plaintiff himself. 15. In paragraph 13 of the plaint it has been stated that, the appellant – plaintiff is in possession of the plaint schedule property along with his brother 2nd respondent – 2nd defendant, since the same is a family property. But, in the evidence of P.W.1, it has been elicited that, in the month of November, 2019, he came from U.S.A. He stayed in Gowtham Lodge, Tenali. His own evidence shows that his father is residing in the ground floor portion of the suit property and he also admits that his father gave a report against him in II Town Police Station, Tenali, alleging that the appellant – plaintiff is harassing him. From the above, prima facie, it appears that the plea taken that he is in possession of the property may not be correct. Apart from that it is also elicited in the crossexamination of P.W.1 that, in the first floor of the property, one tenant is residing and the tenant is paying rent to his sister through online banking. The evidence also shows that his sister 9 got mutated her name in municipal records in pursuance of Ex.A1 gift deed. Apart from that, she got mutated her name in electricity service records as well. Therefore, prima facie, the evidence of P.W.1 itself shows that he was not in possession of the property. Even as per recitals of gift deed – Ex.A1, the property stands in the name of the 1st respondent – 1st defendant and the possession of the suit schedule property was delivered to her by Vijaya Lakshmi. 16. Apart from all these things it is also to be noted that, appellant – plaintiff also sought partition of the property and allotment of share to him and other respondents – defendants. As per the averments in the plaint, they are in the joint possession of the property. Such being the position, the question of granting temporary injunction against co-owners would not arise.
AP HIGH COURT
AP HIGH COURT
THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HON’BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI
Civil Miscellaneous Appeal No.157 of 2020
Senithangappa Srinivasa Rao
-VS-
Vemulapalli Roja KishoreJUDGMENT : (per the Hon’ble Sri Justice C.Praveen Kumar)
1. Assailing the order dated 13.2.2020 passed in I.A.No.427
of 2017 in O.S.No.24 of 2017 on the file of the
XI Additional District and Sessions Judge, Tenali, the present
Civil Miscellaneous Appeal is filed under Order 43 Rule 1 C.P.C.
2. The facts, which lead to filing of the appeal, are as under :
The appellant herein who is the plaintiff in the suit filed
the suit against respondents – defendants for cancellation of a
registered sale deed said to have been executed by one Vijaya
Lakshmi, who is the mother of both parties. According to the
appellant – plaintiff, his parents gave Rs.50,00,000/-, gold and
silver jewellery worth Rs.70,00,000/- on the occasion of
marriage of the 1st respondent – 1st defendant in the year 1993
towards Sthridhana. According to him, the said Vijaya Lakshmi,
who is also mother of the appellant, refused to give ‘A’ schedule
property to the 1st respondent – 1st defendant. It is stated that
the 1st respondent – 1st defendant and her daughter, who is a
Doctor, provided treatment to their mother at Guntur, as she fell
sick due to cancer. The daughter of the 1st respondent – 1st
defendant is said to have caused mental agony, physical
sufferance and mental loss to Vijaya Lakshmi. On account of
negligence, misconduct etc., she died on 2.3.2017. It is pleaded
2
that the 1st respondent – 1st defendant, her husband and
daughter kept quiet till their mother became unsound and
unable to acknowledge the worldly affairs and thereafter, got
executed the alleged gift deed in their favour on 22.2.2017.
Hence, he pleaded that, alleged gift deed is not valid, illegal and
unenforceable and accordingly, the same is liable to be
cancelled. It is further stated that, the appellant – plaintiff is
entitled to 1/3rd share in the plaint ‘A’ schedule property by way
of partition and that they are in possession and enjoyment of the
same. It is urged that the 1st respondent – 1st defendant and her
men are making every effort to dispossess the appellant –
plaintiff from the plaint schedule property and are making
efforts to alienate the said property to third parties. Under those
circumstances, he sought for a temporary injunction restraining
the 1st respondent – 1st defendant and her men from interfering
with peaceful possession and enjoyment of the rights of the
appellant – plaintiff in plaint ‘A’ schedule property.
3. The 2nd respondent – 2nd defendant remained ex parte,
while the 1st respondent – 1st defendant filed counter denying
the averments in the petition. It has been stated that the
1st respondent – 1st defendant took every care of her mother and
got her treated in best of the hospitals in Vijayawada and
Guntur. In fact, it is stated that, she also took her mother to
Hyderabad and got her treated in KIMS in the month of July,
2016 and an operation was performed by Dr.Jagadishwar Goud.
As the appellant – plaintiff was in U.S.A. at that time, he may
3
not be knowing these facts. It is also stated that, after the
operation, Dr.Jagadishwar Goud advised chemotherapy
treatment to Vijaya Lakshmi, who is the mother of the appellant
– plaintiff and respondents – defendants. After completing check
up, she was brought back to Guntur, where she took treatment
under the supervision of one Dr.Krishna Reddy at Manipal
Hospital, Vijayawada. The serious condition of the mother was
informed to the appellant – plaintiff and the 2nd respondent – 2nd
defendant over phone on 16.1.2017 itself, but, there was no
response. The averments in the counter also show that the suit
property was gifted to the 1st respondent – 1st defendant by
executing a registered gift deed and the allegation that the same
came to be registered when she was in unsound mind is
absolutely false and incorrect. Counter also denies the appellant
– plaintiff being in possession and enjoyment of the suit
property.
4. In support of the petition, Exs.A1 to A8 were marked, while
on behalf of respondents – defendants, Exs.B1 and B2 were
marked. After considering the rival submissions made and the
judgments cited, the trial Court dismissed the said I.A.
Challenging the same, the present Civil Miscellaneous Appeal
came to be filed.
5. Sri M.Chalapathi Rao, learned counsel for the appellant,
mainly submits that, the order under challenge is liable to be set
aside, for the reason that the trial Court did not refer to
documents filed by the appellant, which are placed as Exs.A1 to
4
A8. According to him, when the condition of Vijaya Lakshmi
was serious on 16.1.2017 itself, which is evident from the
counter, the question of she executing a registered gift deed on
22.2.2017 is highly improbable. Having regard to the above, he
pleads that, the order under challenge be set aside and the
matter be remanded for fresh consideration.
6. Sri N.Sriram Murthy, learned counsel for the
1st respondent – 1st defendant, would contend that, when suit
properties are in joint possession, as averred in the plaint and
as contended by the learned counsel for the appellant, the
appellant is not entitled for an equitable relief of temporary
injunction against co-owners. He would further submit that,
suit is of the year 2017 and as such the question of granting
injunction after three years would not arise, more so, when the
trial has commenced and the evidence of P.W.1 is complete. In
any event, he would plead that, the requirements for granting
temporary injunction, in a case of this nature, are not fulfilled.
He took us through the contents of the gift deed, evidence of
P.W.1 and the judgments in support of his plea to show that, the
order of the trial court requires no interference.
7. The point that arises for consideration is, “Whether the
appellant – plaintiff is entitled for temporary injunction?”
8. It is to be noted here that, suit is filed for cancellation of a
registered gift deed and also for partition. The fact that the
appellant and respondents are siblings is not in dispute. It is
5
also not in dispute that the said Vijaya Lakshmi died on
2.3.2017. The plea in substance of the appellant is, his mother
Vijaya Lakshmi never executed the gift deed, dated 22.2.2017, in
favour of the 1st respondent – 1st defendant, since her condition
was very serious as on 16.1.2017 itself, which fact was informed
to him over telephone and the same is evident from the counter.
9. But, it is to be noted that, though her condition was not
good in the month of January, 2017, she survived for 40 days
thereafter. The averments in the counter show that on
16.1.2017, the 1st respondent – 1st defendant, took her mother
to Dr.Janardhani and N.Srinivasa Rao, who after verifying the
scanning report found that her condition is very serious and to
avoid urinary problem, advised insertion of stunt. Hence, she
was taken to an Urologist by name Visweswara Rao, who
arranged a stunt and thereafter, she was taken to her house. By
this, prima facie, it does not mean that she was not in a position
to move at all on 16.1.2017. Therefore, at this stage, it may not
be proper for us to give any finding as to whether she was in a
position to execute registered gift deed on 22.2.2017. It is for the
civil court to decide the said issue at the time of trial. But, as
things stand today, there is a registered gift deed executed on
22.2.2017 in favour of the 1st respondent – 1st defendant.
10. It is no doubt true that, there is no specific reference with
regard to Exs.A2 to A8 in the order, but, there is a reference to
Ex.A1, which is C.C. of the registered gift deed, dated 22.2.2017.
But, since the trial has commenced and P.W.1 was examined,
6
the trial Court looked into the evidence of P.W.1 and decided the
I.A.
11. Learned counsel for the appellant relied upon the
judgment of the Apex Court in ‘Seema Arshad Zaheer vs.
Municipal Corporation of Greater Mumbai1’, where in the
Apex Court held as follows:
“Where the lower court acts arbitrarily, capriciously or
perversely in the exercise of its discretion, the appellate court
will interfere. Exercise of discretion by granting a temporary
injunction when there is "no material", or refusing to grant a
temporary injunction by ignoring the relevant documents
produced. When we refer to acting on "no material" (similar to
"no evidence"), we refer not only to cases where there is total
dearth of material, taken as a whole, is not reasonably capable
of supporting the exercise of discretion. In this case, there was
"no material" to make out a prima facie case and therefore, the
High Court in its appellate jurisdiction, was justified in
interfering in the matter and vacating the temporary injunction
granted by the trial court.”
12. In the above judgment the term used is ‘no material’ for
exercise of its discretion for granting a temporary injunction.
The Hon’ble Supreme Court also refers to cases, where there is
total dearth of material, but also to cases where there is no
relevant material or where the material, taken as a whole, is not
reasonably capable of supporting the exercise of discretion.
13. In the present case, the appellant relied upon eight
documents i.e., Exs.A.1 to A.8. Ex.A.1 is the certified copy of
registered gift deed dated 22.02.2017; Ex.A.2 is the certified
copy of gift deed dated 18.06.2010; Ex.A.3 is the certified copy of
1
(2006) 5 SCC 282
7
cancellation of gift deed dated 16.03.2012; Ex.A.4 is the aadhar
card of plaintiff; Ex.A.5 is the gas connection obtained by the
plaintiff dated 28.04.2000; Ex.A.6 is the letter from Margadarsi
Finance Corporation to the plaintiff dated 12.09.2017; Ex.A.7 is
the driving licence of the plaintiff dated 18.10.1986 and Ex.A.8
is the renewal driving licence of the plaintiff dated 18.10.1986.
Exs.A.1 to A.3 are only copies of the gift deeds. Ex.A.4 is the
aadhar card of the plaintiff; Exs.A.7 and A.8 are the copies of
driving licences of the year 1986; Ex.A.5 is the gas connection is
of the year 2000 and Ex.A.6, is the letter of Margadarsi Finance
Corporation is of the year 2017. All these documents do not
prima facie establish possession of the petitioner with the
subject property. Even according to the plaint filed by the
appellant, the appellant is an NRI, working as a Software
Engineer in US for the last 16 years. He further averred that he
used to visit India in alternative years to take care of his
parents. As per the averments of the plaint, after admitting her
mother in KIMS Hospital, in March, 2016, got her treated and
then went back to USA. According to the plaint averments,
plaintiff came to India again on 02.03.2017 i.e., four days prior
to the death of his mother which was on 06.03.2017. In view of
the said averments in the plaint, the documents relied upon by
the plaintiff are not relevant material. Even if they are taken into
consideration, they are not supporting the case of the appellant
and hence, the judgment relied upon by the appellant does not
come to the rescue of the appellant.
8
14. We feel that there is nothing wrong in trial Court looking
into the evidence of P.W.1 and deciding the issue without
reference to the documents, more particularly, Aadhar card, gas
connection, correspondence from Margadarsi finance, renewal of
driving licence etc., belonging to the appellant – plaintiff.
Probably all these documents were marked only to show that the
appellant - plaintiff was residing at the said place. Nonconsideration of these documents, in our view, may not go to the
root of the matter, while deciding granting of injunction, in view
of the evidence of P.W.1, who is the plaintiff himself.
15. In paragraph 13 of the plaint it has been stated that, the
appellant – plaintiff is in possession of the plaint schedule
property along with his brother 2nd respondent –
2nd defendant, since the same is a family property. But, in the
evidence of P.W.1, it has been elicited that, in the month of
November, 2019, he came from U.S.A. He stayed in Gowtham
Lodge, Tenali. His own evidence shows that his father is
residing in the ground floor portion of the suit property and he
also admits that his father gave a report against him in II Town
Police Station, Tenali, alleging that the appellant – plaintiff is
harassing him. From the above, prima facie, it appears that the
plea taken that he is in possession of the property may not be
correct. Apart from that it is also elicited in the crossexamination of P.W.1 that, in the first floor of the property, one
tenant is residing and the tenant is paying rent to his sister
through online banking. The evidence also shows that his sister
9
got mutated her name in municipal records in pursuance of
Ex.A1 gift deed. Apart from that, she got mutated her name in
electricity service records as well. Therefore, prima facie, the
evidence of P.W.1 itself shows that he was not in possession of
the property. Even as per recitals of gift deed – Ex.A1, the
property stands in the name of the 1st respondent – 1st
defendant and the possession of the suit schedule property was
delivered to her by Vijaya Lakshmi.
16. Apart from all these things it is also to be noted that,
appellant – plaintiff also sought partition of the property and
allotment of share to him and other respondents – defendants.
As per the averments in the plaint, they are in the joint
possession of the property. Such being the position, the
question of granting temporary injunction against co-owners
would not arise.
17. The issue is no more res integra in view of the judgment of
this Court in Ranukanta Mullaiah v. Sircilla Rajamma and
Anr.2 wherein this Court held as under:
“11. It is not in dispute that the father of the appellant and
father of the 1st respondent are the sons of Rajaram, and both of
them have succeeded to the entire suit schedule property, except
for one item, and almost an equivalent extent of property held by
the appellant herein. For all practical purposes, the appellant
wanted to exclude the succession of the respondents herein, to
the estate of late Durgaiah. For that, he has taken shelter under
the extension of the 1937 Act, to the Hyderabad State, and the
allegation that Durgaiah died before the said date. By its very
nature, a suit for injunction simplicitor does not permit of an
2
2006 (6) ALD 113
10
adjudication of such important questions, involving the
determination of certain jurisdictional facts, interpretation of the
provisions and expression of view upon the operation of the
provisions also. Having regard to the relationship of the parties, a
presumption needs to be drawn that both of them are co-owners,
if not coparceners, vis-a-vis the suit schedule property, even
assuming that the plea of the 1st respondent as to prior partition
has not been proved. That being the case, the 1st respondent
answered the description of a co-owner, and there was no basis,
on which the relief of perpetual injunction could have been
granted in favour of the appellant.”
18. The Hon’ble Madhya Pradesh High Court in Roop Chand
v. Indradevi and Ors. 3 held as under :
“16. The result is that, the trial Court simply assumed merely on
the basis of the separate living of the co-sharers that there was a
family settlement between the parties, without any evidence. On
the other hand, the mortgage-deed on record clearly shows that
the house was never partitioned nor there was any family
settlement to give independent portions to the co-sharers for their
independent business and dealing with. Mere separate living did
not raise any presumption for family settlement. As earlier
pointed out, the mortgage-deed is admitted on record and para 8
of the mortgage-deed clearly demolishes the theory of any family
settlement. As such, it is established on record that the house
was never partitioned between the co-sharers. Also there was no
family settlement for independent dealing with the portions given
to the four brothers for living, and therefore, the suit for partition
was maintainable and decree for partition ought to have been
passed by the trial Court. The injunction granted by the trial
Court is also uncalled for in view of the fact that no injunction
could be granted in favour of one of the co-sharers against the
other, unless there was a finding that the share of one of the cosharers was either partitioned or made separate by family
arrangement. In this case, there is no proof for either partition or
family settlement, and therefore, no injunction could be granted
to any of the co-sharers against others.”
3
AIR 1997 MP 200
11
19. In Jail Singh & Ors. v. Gurmej Singh 4 the Apex Court
held as under :
“7. The principles relating to the inter-se rights and liabilities of
co- sharers are as follows:
(l) A co-owner has an interest in the whole property and also
in every parcel of it.
(2) Possession of joint property by one co-owner is in the eye
of law, possession of all even if all but one are actually out of
possession.
(3) A mere occupation of a larger portion or even of an entire
joint property does not necessarily amount to ouster as the
possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is
ouster of a co-owner by another. But in order to negative the
presumption of joint possession on behalf of all, on the
ground of ouster, the possession of a co-owner must not
only be exclusive but also hostile to the knowledge of the
other as, when a co-owner openly asserts his own title and
denies, that of the other.
(5) Passage of time does not extinguish the right of the coowner who has been out of possession of the joint property
except in the event of ouster or abandonment.
(6) Every co-owner has a right to use the joint property in a
husband like manner not inconsistent with similar rights of
other co-owners.
(7) Where a co-owner is in possession of separate parcels
under an arrangement consented by the other co-owners, it
is not open to any body to disturb the arrangement without
the consent of others except by filing a suit for partition.
8. It is thus evident that when a co-sharer is in exclusive
possession of some portion of the joint holding he is in possession
thereof as a co-sharer and is entitled to continue in its possession
if it is not more than his share till the joint holding is partitioned.
Vendor cannot sell any property with better rights than himself.
As a necessary corollary when a co-sharer sells his share in the
joint holding or any portion thereof and puts the vendee into
possession of the land in his possession what he transfers is his
4
2009 (1) SCJ 714
12
right as a co-sharer in the said land and the right to remain in its
exclusive possession till the joint holding is partitioned amongst
all co-sharers.”
20. In view of the judgments referred to above and having
regard to answers elicited in the evidence of P.W.1, and the
averments in the plaint, prima facie, this Court is of the opinion
that, the appellant – plaintiff is not in possession of the property,
and as there cannot be an injunction against co-owners,
the question of granting an injunction as sought for would not
arise.
21. Accordingly, the Civil Miscellaneous Appeal is dismissed.
Since the suit is of the year 2017, and as the examination of
P.W.1 is over, the trial Court may take steps for disposal of the
suit as early as possible, uninfluenced by the observations,
made if any, in the order. No order as to costs.
_______________________________
JUSTICE C.PRAVEEN KUMAR
________________________________________
JUSTICE KONGARA VIJAYA LAKSHMI
Date : 07.10.2020
skmr
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