IN THE HIGH COURT OF KARNATAKA BENGALURU DATED THIS THE 27TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD M.F.A.NO. 5707/2018 (CPC) BETWEEN:
KSHAMA S. UDUPA, AGED ABOUT 52 YEARS, W/O H. SURESH UDUPA, D/O DR. RAVINDRANATH KODGI, P25-SECTOR-13, JEEVAN BHIMA NAGAR, OLD KEB ROAD, HAL III STAGE, BENGALURU-560 075.
(BY SRI. P.N. HARISH, ADVOCATE) AND:
- APPELLANT 1. SUKUMAR KODGI, S/O DR. RAVINDRANATH KODGI, AGED ABOUT 54 YEARS, R/O LAXMI AMASEBAIL VILLAGE & POST, KUNDAPURA TALUK-576 201, UDUPI DISTRICT.
2. DIVANANDA ALIAS DEVANANDA KODGI, S/O DR. RAVINDRANATH KODGI, AGED ABOUT 61 YEARS, R/O LAXMI AMASEBAIL VILLAGE & POST, KUNDAPURA TALUK-576 201, UDUPI DISTRICT.
3. SHUBHA ACHARYA, D/O DR. RAVINDRANATH KODGI, AGED ABOUT 59 YEARS, W/O PRAKASH ACHARYA, OHIO, USA.
4. DR. RAVINDRANATH KODGI, S/O LATE SARVOTHAMARAYA KODGI, AGED ABOUT 90 YEARS, R/O LAXMI AMASEBAIL VILLAGE & POST, KUNDAPURA TALUK-576 201, UDUPI DISTRICT.
5. PRANAV KODGI S/O SUKUMAR KODGI, AGED ABOUT 26 YEARS, R/O LAXMI AMASEBAIL VILLAGE & POST, KUNDAPURA TALUK-576 201, UDUPI DISTRICT.
6. P. KRISHNA S/O C. PANEERSELVAM, AGED ABOUT 28 YEARS, GOKULAM, K.K. ROAD, KUNDAPURA TALUK-576 201, UDUPI DISTRICT.
7. GEETHA W/O C. PANNEERSELVAM, AGED ABOUT 41 YEARS, GOKULAM, K.K. ROAD, KUNDAPURA TALUK-576 201, UDUPI DISTRICT.
8. CORPORATION BANK, BRANCH VODERAHOBLI, REPRESENTED BY ITS BRANCH MANAGER, VODERHOBLI POST, KUNDAPURA TALUK-576 201, UDUPI DISTRICT.
9. SYNDICATE BANK, BRANCH SHANKARNARAYANA, REPRESENTED BY ITS BRANCH MANAGER, SHANKARNARAYANA POST, KUNDAPURA TALUK-576 201, UDUPI DISTRICT.
10. M/S MITHRA CASHEW, REGISTERED PARTNERSHIP FIRM, REPRESENTED BY ITS PRESENT PARTNERS DEFENDANTS NO. 1 AND 2 11. SULOCHANA KODGI, W/O DEVANANDA KODGI, AGED ABOUT 59 YEARS, R/O LAXMI AMASEBAIL VILLAGE & POST, KUNDAPURA TALUK-576 201, UDUPI DISTRICT.
12. VEENA KODGI, AGED ABOUT 54 YEARS, W/O SUKUMAR KODGI, R/O LAXMI AMASEBAIL VILLAGE & POST, KUNDAPURA TALUK-576 201, UDUPI DISTRICT.
- RESPONDENTS (BY SRI. A. MADHUSUDHAN RAO, ADVOCATE FOR C/R1, R4 & R5, NOTICE DISPENSED WITH TO R2, R3, R6 TO R12) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC AGAINST THE ORDER DATED 28.04.2018 PASSED IN I.A. NO. 2 IN O.S. NO. 5/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA, REJECTING I.A. NO. 2 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC & ETC.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD ON 20.12.2018 AT THE PRINCIPAL BENCH, BENGALURU AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, BEFORE DHARWAD BENCH THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is by the plaintiff in a suit for partition and other consequential relief/s in O.S. No. 5/2018 on the file of the Senior Civil Judge, Kundapura (for short, the 'Trial Court'). The appellant’s application under Order XXXIX Rule 1 and 2 (IA No. 2) for temporary injunction restraining the respondent Nos. 1, 2, 5, 8 and 9 from selling or mortgaging or otherwise transferring or alienating the different immovable properties described in the Schedule A and C of the plaint, and the assets of a cashew business under the name and style, "M/s Mithra Cashew Industries" described in Schedule B of the plaint, is rejected by the Trial Court by the impugned order dated 28.4.2018.
2. The appellant is the daughter of respondent No. 4.
The respondents 1 and 2 are her brothers, and respondent No. 3 is her sister. The respondent No.5 is the son of respondent No.1. The respondent Nos. 6 and 7 are purchasers of certain properties described in the plaint schedule A under the sale deeds dated 03.05.2011 and 03.06.2011. The respondent Nos. 8 and 9 are the banks that have lent financial assistance to the respondent No. 1 as against the mortgage of land in Sy No. 65/7B - presently Sy No. 65/20 of Amasebail Village (one immovable properties described in the plaint schedule A), and the assets of the firm, M/s Mithra Cashew Industries. The respondent No.10 is a firm represented by its partners, who are respondents 11 and 12.
3. The appellant filed the suit in O.S. No. 5/2018 arraying these respondents as defendants contending that the immovable properties described in the plaint schedule A, and the business described in schedule B of the plaint, are joint family properties of the appellant and respondents 1 to 4. The plaint schedule A properties were allotted to the branch of the respondent no.4, comprising of himself, the appellant and the respondent Nos. 1 to 3 in the partition as per the Partition Deed dated 01.10.1965. The business described in plaint schedule B is a family business. This business was commenced in the year 1995 by a firm constituted vide Partnership deed dated 02.01.1995 which was later reconstituted as per the Reconstitution deed dated 01.03.1995. The immovable properties described in the schedule C of the plaint are purchased from out of the income from joint family property/ business. There has been no partition of these properties amongst the appellant and respondents 1 to 4. The respondent No.1 is looking after the business only after the demise of the mother. But, mother was managing this business until her demise in the year 2008. The appellant is entitled for 1/5th share in all the properties described in schedule A, B and C of the plaint.
4. The respondents 1 and 2 have prevailed upon the respondent No.4, who is aged about 90 years, to execute different documents in denial of the appellant's share as well as the share of the respondent No.3. The respondent No. 4 is compelled to join in the execution and registration of the Partition Deed dated 31.05.2006 in terms of which all the suit schedule A properties are partitioned excluding the appellant and respondenet No.3. The land in survey No. 65/7B (one of the suit schedule A properties, and in which the cashew business is established and run) is allotted to the exclusive share of respondent No. 1. The other suit schedule A properties are said to be allotted jointly to the respondent No. 1 and 2, and their respective children, and respondent No. 4. But, neither the appellant nor the respondent No. 3 was aware of such partition. Later the respondent No. 4 is forced to execute the release deeds dated 27.12.2012 and 01.03.2013 purporting to release/ relinquish the appellant's, as well as her sister's undivided right and share in the suit schedule A properties in his own favour. But these Release Deeds dated 27.12.2012 and 01.03.2013 are void ab initio inasmuch as the respondent no.4 was never vested with any authority to execute the release deeds, and significantly, the release deeds have not been executed for consideration. Subsequently, the respondents 1 and 2, in culmination of their intent to deny the appellant and respondent no.3 their legitimate share in the schedule A properties, have secured release deeds in their favour purportedly executed by respondent no.4 releasing all his interest and share in the suit schedule A property. Therefore, neither the release deed dated 27.12.2012 nor the release deed dated 01.03.2013, nor the subsequent release deed dated 28.04.2017, are binding on the appellant.
5. The respondents 1 and 2 have also prevailed upon the respondent no.4 to execute the sale deed dated 03.05.2011 transferring the lands in sy. No. 67/8/B3 and 67/9C (which are also described in the schedule A of the plaint) in favour of respondents 6 and 7 respectively under the sale deeds dated 03.05.2011 and 03.06.2011. These sale deeds are executed without any necessity, and such sale deeds insofar as the appellant’s 1/5th share, is illegal and not binding on her.
6. The respondent No.1, acting on the strength of such release deeds/ partition deed, has obtained financial assistance from the respondent No.8 creating charge on the land in sy. No. 65/7B of Village, one of the suit schedule A properties. Similarly, the respondent no.1 has obtained financial assistance from respondent no.9 creating charge over this land. The respondent No. 2 has availed these loans without any necessity. The appellant learnt about the different registered transaction only in the month of October 2017, and as such, she is constrained to file this suit for declaration that the different documents are void and also for declaration of 1/5th share in the suit schedule properties with requisite prayer for account from respondents 1 and 10.
7. The respondents 1, 4, 5 and 10 viz., the appellant's father, one of her brothers, his son and the partnership firm, (referred to as the ‘Contesting Respondents’) have filed their common written statement. They do not dispute the relationship amongst the appellant, respondents 1 to 5 and 11 to 12. Similarly, the sale of certain immovable properties in favour of respondents 6 and 7 and the banking transaction by the respondent No. 1 with respondent Nos. 8 and 9 are also not disputed. However, these respondents have denied that the suit schedule properties are allotted to respondent No.4 and his children in the partition of the year 1965 and that the release deeds and the sale deeds are executed without the knowledge of the appellant. The respondent No.2, who does not contest the suit has filed a separate written statement pleading the existence of the joint family and joint ownership of the suit schedule properties. The respondent No. 2 has requested for partitioning of the suit schedule properties and carving out separate 1/5th share to the appellant and himself.
8. The contesting respondents contend that the suit schedule A properties were part of the properties owned by grandmother of respondent No. 4. After her demise, the father of respondent No. 4, late Sri Sarvothamarao Kodgi, and her other son, succeeded to these properties as Class-1 legal heirs under section 8 of the Hindu Succession Act, 1955. Later, these properties are partitioned vide the Partition Deed dated 01.10.1965. As such, the appellant cannot claim the suit schedule A properties as ancestral properties, nor as joint family properties. The respondents 1, 2 and 4, along with the children of respondents 1 and 2, as members of a joint family have entered into a registered partition deed dated 31.05.2006 dividing the suit schedule A properties amongst them. There is disruption of the joint family inter se with this partition. In this partition, the land in survey No. 65/7 B of Amasebail Village is allotted exclusively to the respondent No. 1, and the other suit schedule A properties are allotted to others.
9. Thereafter, the appellant has executed General Power Of Attorney dated 09.01.2011 in favour of respondent No.4. She has executed this Power of Attorney with the express authority to execute even release deeds inasmuch as it is recited in this Power of Attorney that the members of the family had agreed to transfer the suit schedule properties, and therefore she was conferring the authority to sell or convey or deliver her rights to any of the member of the family and to admit the execution thereof. It is only pursuant to this Power of Attorney, the release deed dated 27.12.2012, and other deeds are executed by the respondent no.4 for release of all her undivided right, title and interest in the plaint A schedule properties.
10. The respondent no.4, along with respondents 1, 2 and 5 have jointly sold certain properties (land in survey No. 67/8B3 of Village measuring 3 cents and land in survey No. 67/9C of Village - the last of the properties described in plaint schedule A) in favour of respondent nos. 6 and 8 respectively, and the sale proceeds received from the sale of these properties are distributed amongst all the family members, including the appellant. Thus, the respondents have paid a sum of Rs.8,09,000/- to the appellant on 06.10.2011 by way of a cheque drawn on Canara Bank. A sum of Rs.2,00,000/- by way of cash is paid on 24.07.2011, and a sum of Rs.23,60,000/- is also paid by way of cash on 18.12.2012. The amounts in cash are paid because the plaintiff wanted to avoid tax liability. The appellant cannot deny the aforesaid transactions and maintain the suit.
11. A cashew business was commenced initially by Smt.
Sumithra R. Kodagi (mother of the plaintiff and respondents 1 to 3) along with others. This business was commenced in the land in Sy. No. 65/7 (now numbered 65/20) after securing the same on lease from respondents 1, 2 and 4. But, the lease was surrendered on 03.12.1994 and the firm dissolved on 18.12.1994. Thereafter, “M/s Cashew Industries” was incorporated by Smt. Sumithra R. Kodagi and respondents 11, 12 on 02.01.1995 as a partnership firm, and later the respondents 1 and 2 were inducted in this business. The land in Sy No. 65/7 (now numbered 65/20) was leased in favour of this firm, and this firm was rechristened as “M/s Mithra Cashews”. The firm M/s Mithra Cashews became defunct. In the meanwhile, the respondent no.1 had started business in cashew as a proprietary concern under the name “M/s Mithra Cashew Industries” in the year 2003. The then lessee, “M/s Mithra Cashews”, had sub-leased the premises in sy. No. 65/7 (now 65/20) to the respondent no.1 vide Rent Lease dated 22.02.2003. However, simultaneously with the respondent No. 1 becoming the absolute owner of this property in terms of the partition deed dated 31.5.2006, “M/s Mithra Cashews” surrendered the lease of this property vide the registered Surrender Deed dated 31.05.2006 and he has continued his proprietary business in such premises in his own right. The respondent No. 1 has pumped his own money in the business. He has borrowed moneys from Bank as against the charge on this property, which continues. He has been paying taxes as a proprietor. The properties described in the plaint schedule C are purchased by the 5th respondent from out of his own funds and these properties, cannot, by any stretch, be called either ancestral or joint family properties.
12. The Trial Court, by the impugned order, has rejected the appellant's application under Order XXXIX Rule 1 and 2 for injunction against transfer/ alienation of the plaint schedule properties. The Trial Court has concluded that the appellant’s case that schedule A properties are ancestral properties cannot be accepted as the father of the respondent no.4, Sri Sarvothamrao Kodgi, had acquired property from his mother and as such, the suit schedule properties would not be ancestral properties. The partition vide partition deed dated 01.10.1965 is essentially a partition amongst Class 1 legal heirs of Late Sarvothamrao Kodgi under Section 8 of the Hindu Succession Act, 1955. Only those properties which are acquired through three male generations could be construed as ancestral properties in law. The Court after an elaborate discussion of the different decisions of the Hon’ble Supreme Court has concluded that the appellant cannot, given the antecedent title to the property, assert a share in the suit schedule A properties contending that such properties are ancestral in nature. Further, as regards the schedule B and C properties, the learned Trial Court has again referred to the different decisions and concluded that a plaintiff will have to establish by way of legal evidence the existence of a joint family properties in view of the law that there is no presumption that properties could be joint family properties. But, the appellant is not able to establish any circumstance to conclude that the plaint schedule B property, or schedule C properties obtained from a joint family nucleus.
13. This Court in this appeal vide interim order dated 06.09.2018 has granted interim directions directing the contesting respondents viz., the respondent Nos. 1, 4 and 5 not to alienate the suit schedule properties except Item No. 7 of the suit schedule A properties - Sy. No 65/7B (now 65/20) of Amasebail Village of Kundapura Taluk from where the cashew business is operated by the respondent No. 1 and suit schedule B and C schedule properties. The appellant has filed a Memo and sought for dispensation of notice to the respondents other than the contesting respondents (that is respondent No. 1, 4 and 5). Accordingly, notice to the other respondents is dispensed.
14. The learned counsel for the appellant and contesting respondents submitted consequentially, the dispute as of now insofar the prayer for interim injunction is between the appellant and the contesting respondents as regards Item No. 7 of the suit schedule A properties (Sy. No 65/7B (now 65/20) of Amasebail Village of Kundapura Taluk The building, equipment, machineries of the business, and the business, run under the name and style M/s Mithra Cashew against the contesting respondents.
15. The learned counsel for the appellant, opened his submissions contending that the Trial Court, while deciding an application under Order XXXIX Rule 1 and 2 of the CPC, has in effect decided the suit with definite conclusions on the merits of the case. This is impermissible in law. Further, the learned counsel, on the other merits of the application, contended that the recitals of the power of attorney dated 09.01.2011 executed by the appellant in favour of the respondent No.4 is categorical that the family owned certain immovable properties as Hindu Undivided family and that the appellant was executing such power of attorney in view of the decision of the joint family properties to meet family necessities and discharge family debt. If indeed there was no joint family and such joint family did not own immovable property, there was no occasion for the respondents to obtain the Power of Attorney in such terms. Though the partition deed dated 31.05.2006 is executed excluding the appellant, in the subsequent aforesaid Power of Attorney it is admitted schedule A properties are joint family properties; thus, the appellant is unable to establish that all the suit schedule A properties, including the Land in Sy No. 65/7B, presently 65/20 of Amasebail Village of Kundapura Taluk are ancestral properties. But, the Trial Court has not considered these circumstances.
16. The learned counsel further argued that the appellant executed the Power of Attorney only to facilitate better administration of the suit schedule A and B properties and therefore, was only a notarized Power of Attorney. The respondent no.4 was not conferred with the right to execute any transfer deeds, much less the release deeds, to the detriment of the appellant's interest in the suit schedule A properties, including the Land in Sy No. 65/7B, presently 65/20 of Amasebail Village of Kundapura Taluk. There is no consideration for the execution of the Power of Attorney and as such, the respondents could not have relied upon the Power of Attorney to exclude the appellant from the suit schedule A and B properties. Importantly, the Power of Attorney being unregistered under the provisions of the Indian Registration Act, 1908, could not have been relied upon to transfer the appellant’s share in the suit schedule A properties, properties, including the Land in Sy No. 65/7B, presently 65/20 of Amasebail Village of Kundapura Taluk.
17. The learned counsel for the appellant has relied upon the following decision of the Hon'ble Supreme Court:
Suraj lamps and Industries Private Limited versus State of Haryana and another1 in support of the canvas that the respondent No. 4 could not have executed release deed releasing the appellant's share in the suit schedule A properties on the basis of an unregistered power of attorney.
Maharwal Khewaji Trust (regd.) vs. Badev Das2 reported in (2004) 8 SCC page 488 in support of the canvas that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and a further lead to multiplicity of proceedings.
1 (2012) 1 SCC 656 2 (2004) 8 SCC page 488 18. On the other hand, the learned counsel for the contesting respondents relying upon a compilation of documents that were filed before the Trial Court, which includes the Partition Deeds of the years 1939 and 1969 and the Powers of Attorney executed by the appellant as well as the respondent No. 3, argued that the appellant's case that the suit schedule A properties are ancestral properties is wholly misconceived in view of the indisputable fact that late Sarvothamaraya Kodgi - father of respondent No. 4 - acquired the rights to these properties through his mother. The appellant has executed Power of Attorney expressly authorising the respondent No. 4 to execute deeds of transfer, including release deeds in favour of family members; the release deeds have been executed pursuant to such duly constituted Power of Attorney; the appellant has received money in consideration of the release of her rights in the suit schedule properties; the Powers of attorney are secured and monies paid only as an abundant caution; the appellant has received a sum of Rs. 8,90,000 by way of cheque drawn in favour, and this is in addition to the receipt of other amounts by cash. In the light of these undeniable circumstances, the appellant cannot contend that either the Land in Sy No. 65/7B, presently 65/20 of Amasebail Village of Kundapura Taluk or the other suit schedule A properties are ancestral properties.
19. As regards the business, which is described in schedule B of the plaint, the learned counsel for the contesting respondent contends that the appellant has asked for a share in the business contending that M/s Mythri cashew is a registered partnership firm and this firm is a joint family business, but, the documents produced viz. (i) partnership deed dated 18.10. 1993, (ii) Lease Deed dated 19.02.1994 executed in favour of “M/s Sumitra Cashews”, (iii) Surrender of lease dated 03.12. 1994, (iv) Form - C for “M/s Sumitra Cashews”, (iv) Dissolution of Partnership dated 08.12.1994, (v) Partnership Deed dated 02.01.1995 for the incorporation of “M/s Cashew Industries”, (vi) the Reconstitution Deed dated 13 January 1995, (vi) Agreement of lease executed by “M/s Mithra Cashews” in favour of respondent No. 1 and the subsequent Surrender Deed dated 31 5 2006 and (vii) the different sanctions in favour of “M/s Mithra Cashew Industries”, belie the appellant's case entirely. As such, the appellant is unable to establish either prime facie case or balance of convenience or irreparable loss and injury. Therefore, the impugned order does not suffer from any irregularity or perversity.
20. The learned counsel for respondent relied upon the following Authorities:
Bachchan Singh versus Swaran Singh3, a decision by the Punjab and Haryana High Court and the decision of this court in RSA No. 592 of 20124, disposed of on 10 December 2012, in support of the proposition that a co-owner cannot seek injunction against another co-owner who has been in exclusive possession of the property proposition.
3 AIR 2001 Punjab and Harayana, 112 4 Disposed of on 10.12. 2012 Rajni Tondon Versus Dulal Ranjan Ghosh Dastidar5 in support of the contention that the embargo under section 33 of the Indian Registration Act, 1908 will come into play where person signing the document cannot present the document before the Registering Officer and gives a power of attorney to another to present the document, and it is only in such cases the Power of Attorney has to be necessarily authenticated in the manner provided under section 33 of the Indian Registration Act, 1908.
PS Sairam and another versus PS Ramarao Pisey and others6 to contend that the appellant cannot claim the benefit of any presumption that the business described in schedule B of the plaint is a joint family business and that there must be specific evidence to establish that the joint family nucleus has been utilised for the purposes of establishing and growing the business.
5 (2009) 14 Supreme Court Cases 782 6 2004 SAR (Civil) 199 21. In the light of the dispensation of notice to the other respondents and the respective submissions, the questions that arise for consideration are:
a) Whether the Trial Court has rightly considered the application filed by the appellant for temporary Injunction, and whether any interference is called for in this appeal, and b) If interference is called for, whether the appellant is able to establish prima facie case, balance of convenience and irreparable loss or injury, which are pre-requisites for grant of temporary injunction against the contesting respondents from transferring the Land in Sy No. 65/7B, presently 65/20 of Amasebail Village of Kundapura Taluk and the building, equipment and machineries of the business run under the name and style, “M/s Mithra Cashew Industries”.
22. The appellant’s case that the suit schedule A properties, including the Land in Sy No. 65/7B (presently 65/20) of Amasebail Village of Kundapura Taluk, are ancestral properties is predicated on the assertion that in a partition effected in the year 1969, the schedule A properties were allotted to the entire branch represented by respondent No.4. The appellant is also entitled for a 1/5th share in the cashew business described in schedule B, “M/s Mythri Cashews” because the business was commenced in the year 1995 by her mother, with the other respondents joining her later, with the funds from the ancestral properties and utilizing the land in Sy. No 65/7B (now 65/20), one of the ancestral properties.
23. The appellant relies upon the partition deed executed in the year 1969 as well as recitals in the power of attorney executed in favour of respondent no.4, which, according to the appellant, is purportedly executed to facilitate better management of suit schedule A properties which are ancestral properties. The contesting respondents refute such contentions relying upon the partition deed executed in the year 1939 to assert that the grandmother of respondent No.4 acquired these properties as the absolute owner, and after her demise, her sons including Sri Sarvothamaraya Kodagi (the father of respondent No.4) have partitioned these properties in the year 1969. As it is thus established that the suit schedule A properties are acquired by Sri Sarvothamaraya Kodgi from his mother, the suit schedule A properties cannot be ancestral properties. The appellant has executed power of attorney authorizing respondent No.4 to release all her right, title and interest in the suit schedule A properties in view of the decision of the family to sell these properties, and this power of attorney is obtained as a matter of abundant caution. The contesting respondents also contend that the appellant has also been paid certain consideration, including a sum of Rs.8,96,000/- by way of cheque drawn on Canara Bank and in her favour.
24. It is from these conflicting canvasses that the Trial Court was required to discern, and conclude, whether the appellant had made out a prima facie case, balance of convenience and irreparable loss and injury. However, the trial Court has considered neither the specific pleas by the respective parties or the documents relied upon by them from such perspective. The Trial Court, as rightly pointed out by the learned counsel for the appellant, has tangentially concluded on merits of the respective claims. Therefore, the question formulated as regards consideration by the Trial Court and interference with the impugned order in the appeal is answered in the affirmative holding that the merit of the respective pleas could be adjudicated upon at the time of final adjudication after trial.
25. It is settled law that prima facie case required to be established to succeed in an application under Order XXXIX Rule 1 and 2, means establishing questions for adjudication after a trial. The appellant is relying upon the partition deed of the year 1969 and the power of attorney executed by her, which is acted upon by the contesting respondents, to buttress/ support her case that the schedule A properties, including the Land in Sy No. 65/7B, presently 65/20 of Amasebail Village of Kundapura Taluk are ancestral properties. On the other hand, the contesting respondents rely on the partition deed executed in the year 1939 to contend that the grandmother of the respondent No.4 was the owner of the suit schedule A properties (including the Land in Sy No. 65/7B, presently 65/20 of Amasebail Village of Kundapura Taluk) and the other properties, and the respondent No. 4 and other son succeeded to the suit schedule A properties as Class-1 heirs under the provisions of the Hindu Succession Act, 1956. Therefore, the suit schedule A properties, including the Land in Sy No. 65/7B, presently 65/20 of Amasebail Village of Kundapura Taluk, cannot be called ancestral properties. They also rely upon the power of attorney to assert that the appellant, after the execution of such power of attorney, cannot call in question either the release deed or the subsequent transfers.
26. These are bundle of facts that calls for evidence and adjudication in the light of evidence recorded by both the parties in support of their respective contentions, neither of the contentions can be accepted at this stage. Therefore, the parties will have to lead evidence in a trial to substantiate their respective pleas before they are accepted or rejected; in other words, the appellant has made out a “prima facie case” as regards the nature of the suit schedule A properties, including the Land in Sy No. 65/7B, presently 65/20 of Amasebail Village of Kundapura Taluk 27. It is obvious from the respective pleadings, though diametrically different in many ways, that cashew business is commenced and set up in the land in Sy. No. 65/7B (as of now 65/20) of Amasebail Village of Kundapura Taluk and allotted exclusively to the respondent No.1 under the impugned partition deed dated 31.05.2006 without the appellant being a party to such partition. The antecedent circumstances are that a similar business was commenced by Smt. Sumitra Kodgi, (the wife of respondent No.4 and mother of appellant and respondents 1 to 3) in the year 1993 with the family members and outsiders. This firm obtained the land in Sy. No. 65/7B (as of now 65/20) of Amasebail Village of Kundapura Taluk on lease for the purpose of business for a period of 30 years. However, the firm was dissolved, and the land was surrendered. Another firm was incorporated by Smt. Sumitra Kodgi and her daughters-in-law under the name and style “M/s Cashew Industries”. This firm was also reconstituted. This firm M/s Cashew Industries, later reconstituted as M/s Mithra Cashews, continued its business from the same premises in the land in Sy. No. 65/7B (as of now 65/20) of Amasebail Village of Kundapura Taluk. This business is described as a continuing business in suit Schedule B by the appellant.
28. However, the contesting respondents contend that this firm, “M/s Mythri Cashews”, stopped its operations. The premises in the land in Sy. No. 65/7B (as of now 65/20) of Amasebail Village of Kundapura Taluk was sub leased in favour of respondent No.1, who by then had commenced business under the name style, “M/s Mythri Cashew Industries” as its proprietor. “M/s Mythri Cashews” surrendered the lease of the premises in the Sy. No. 65/7B (as of now 65/20) of Amasebail Village of Kundapura Taluk vide the lease deed dated 31.05.2006 simultaneously with this land being allotted in favour of respondent no.1 under the partition deed dated 31.05.2006.
29. If the contesting respondents are able to establish the antecedent circumstances as pleaded by them, and the subsequent loan transactions with respondents 8 and 9, perhaps, they could establish that the business in the premises in the land Sy. No. 65/7B (as of now 65/20) of Amasebail Village of Kundapura Taluk under the name and style “M/s Mythri Cashew Industries” is the absolute property of the respondent no.1. However, the land in Sy. No. 65/7B (as of now 65/20) of Amasebail Village of Kundapura Taluk, being part of the schedule A properties acquired by the respondent no.4 under the partition deed in the year 1969 and allotted to the respondent No. 1 subsequently in the partition in the year 2006, and for which Power of Attorney as referred is obtained from the appellant, the appellant is able to establish that the title of the respondent no.1 to this property in Sy. No. 65/7B (as of now 65/20) of Amasebail Village of Kundapura Taluk is also a Triable Issue. Therefore, even as regards the Cashew Business, prima facie case is established.
30. It is settled law that a court is required to consider three basic principles, namely, (i) prima facie case (ii) balance of convenience, and (iii) irreparable loss and injury. In addition to the above mentioned three basic principles, a court while granting injunction must also take into consideration the conduct of the parties. The courts should not interfere only because prima facie case is established and the property is valuable, as grant of injunction could have serious consequences depending upon the nature of the property, and court should make endeavours to protect the interest of the parties. As contended even by the learned counsel for the appellant, placing reliance upon the decision in Maharwal Khewaji Trust (regd.) vs. Badev Das7 if irreparable loss or damage is made out by a party to the suit in the event of grant of temporary injunction, the court should not grant injunction.
31. It is rather indisputable that the respondent No. 1 for a long time has been in the management of the business under the name and style “M/s Mythri Cashews Industries” in the property in Sy No. 65/7B (as of now 65/20) of Amasebail Village of Kundapura Taluk. The documents relied upon by the contesting respondents demonstrate that a wide range of facilities have been availed by the respondent No. 1 for the conduct of the business under the name and style “M/s Mythri Cashew Industries” as against the charge on the assets/ property in Sy No. 65/7B (as of now 65/20) of 7 (2004) 8 SCC page 488 Amasebail Village of Kundapura Taluk. If by way of an injunction the power to manage the business by taking necessary and exigent decisions, including the manner and mode in which the funds must be mobilized and applied, is curtailed, it could stifle the business and be deleterious to all the parties. The appellant, at this stage, has not been able to make out any exceptional circumstances that would justify imposition of fetters on the conduct of the business, including the right to mortgage or re-mortgage the assets of the firm including the property in Sy No. 65/7B (as of now 65/20) of Amasebail Village of Kundapura Taluk. On the other hand, the contesting respondents are able to establish irreparable loss and hardship if the conduct of the business, because of the charge in favour of the Banks, are fettered.
32. Therefore, the balance of convenience would not lie in granting injunction either with regard to the Land in Sy No. 65/7B, presently 65/20 of Amasebail Village of Kundapura Taluk or the building, equipment and machineries of the business run under the name and style “M/s Mithra Cashew Industries”. The contesting respondents, though not fettered by an order of injunction against alienation of the Land in Sy No. 65/7B, presently 65/20 of Amasebail Village of Kundapura Taluk or the building, equipment and machineries of the business run under the name and style “M/s Mithra Cashew Industries”, cannot but be liable to render accounts and to ensure that there is no diminution in the value of the business or the asset. The other question formulated is also answered in the affirmation. Therefore, the following order:
The appeal is disposed of with the observation that the respondent No. 1 shall be liable for all consequences in law if the Land in Sy No. 65/7B, presently 65/20 of Amasebail Village of Kundapura Taluk or the building, equipment and machineries of the business run under the name and style “M/s Mithra Cashew Industries” is not available until the final adjudication in the pending suit with liberty to the appellant to seek all remedies in that regard if necessitated. No costs.
bvv Sd/- JUDGE