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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.