all appeals Original Side Appeals preferred under Order XXXVI Rule II of the Original Side Rules read with Clause 15 of Letters Patent against the order of this Court made in O.A.Nos.1088, 1089 and 5183 of 2008 in C.S.No.954 of 2008 dated 17.8.2009.
For Appellants : Mr.T.V.Ramanujun Senior Counsel for Mr.K.Balu For Respondents : Mr.R.Parthasarathy for RR1, 2, 5 to 9 COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) These appeals have arisen from a common order of the learned Single Judge of this Court made in O.A.Nos.1088, 1089 and 5183 of 2008 in C.S.No.954 of 2008, a suit for partition.
2.Pending the suit, the plaintiffs, the respondents 1 to 9 herein, filed these three applications namely (i) O.A.No.1088/2008 for appointment of a receiver to take charge of all the properties and business mentioned in Schedule 'A' to 'F' and collect rents from the tenants in occupation of the said property and deposit the same, (ii) O.A.No.1089/2008 for an interim injunction restraining the respondents therein from dealing with any of the properties mentioned in Schedule 'A' to 'F' and (iii) O.A.No.5183/2008 for appointment of an advocate commissioner to inspect the property at Door Nos.16 and 17, Cart Track Road, Maduvankarai, Velacherry, Chennai, and file a report. The appellants/defendants 1 and 2 on appearance contested the applications by filing a counter.
3.The case of the plaintiffs in the said suit for partition is as follows:
(a) The parties were descendants of Narayanasamy Chettiar and Mallikeswari who had two sons. The first son was by name Kandasamy Chettiar whose wife is the first plaintiff and the other plaintiffs 2 to 5 are their sons, while the second son Palanivel Chettiar is the first defendant. The other defendants are the wife and children of the first defendant respectively. Kandasamy Chettiar died on 27.8.1994 leaving behind him the plaintiffs as the heirs. One of the sons of Kandasamy Chettiar also died on 15.7.2008, and the legal heirs were added as plaintiffs 6 to 9. Narayanasamy Chettiar was a Medical Practitioner. He along with his son Kandasamy Chettiar developed various businesses. There was improvement in the business because of the hard work. All the properties shown in Schedule 'A' to 'F', were acquired from and out of the family business. Narayanasamy Chettiar started a firm by name M/s.B.A.Narayanasamy Chettiar and Sons dealing with the sale of paints and hardwares. On his death, the partnership firm was reconstituted. After the death of his son Kandasamy Chettiar, it was again reconstituted in the year 1994. Apart from that, various businesses were also run by the family. Thus, all the properties were purchased from the income of the joint family business, and they got the character of joint family properties.
(b) The first defendant let out all the properties to various tenants and has been collecting huge rent every month. From the property situated in Mount Road, Madras, a sum of Rs.77500/- is recovered as rent. But, only a sum of Rs.29625/- is paid to the plaintiffs every month. As far as the other properties are concerned, he is collecting more than Rs.5 lakhs per month as rent and appropriating the entire amount. There was an advertisement in Tamil newspaper on 10.8.2008 that certain properties exclusively belonged to the defendants. Under the circumstances, a legal notice was issued, and since the demand made thereat for amicable partition was not met, there arose a necessity for filing the suit. While filing the suit, it became necessary for making these applications for appointment of an advocate commissioner and a receiver and also for interim injunction.
4.All these applications were resisted by the defendants 1 and 2, the appellants herein, stating that the properties were not joint family properties; that all the properties were actually joint properties as found in the list filed by the defendants; that from those properties, the rents are collected from 2004 to 2008; that the total rent collected from those properties for the past four years is only Rs.9,65,500; that the properties were being maintained and also tax has been paid out of the total income in the past four years which was nearly about Rs.10 lakhs; that the surplus was not available to be shared by all the sharers, and hence, the applications were to be dismissed.
5.After hearing the learned Counsel on either side and looking into the materials available, the learned Single Judge took the view that it was not a fit case where neither a receiver nor an advocate commissioner could be appointed; but, it was a fit case where an interim injunction directing the respondents not to encumber or alienate the property mentioned in Schedule 'A' to 'F' to the plaint without seeking prior permission of the Court could be granted. While making the order, the learned Single Judge has directed the first defendant to pay a sum of Rs.15 lakhs towards the advance money received from Ragavendra Educational Trust to the first plaintiff who will in turn deposit in a fixed deposit in any branch of a nationalised bank, and out of Rs.3.50 lakhs collected from the trust and apart from giving credit to the property taxes and maintenance expenses, it was ordered that Rs.1.50 lakhs might be paid to the first plaintiff starting from 1.9.2009 every month till the disposal of the suit. Since the rent was collected from April 2008 and the defendants have already collected 16 months' rent and the arrears of rent collected would come to nearly Rs.54 lakhs, the first defendant was directed to pay Rs.24 lakhs to the first plaintiff who in turn will share it with other plaintiffs according to their share to which each one is entitled to.
6.Aggrieved over the said order of the learned Single Judge, the defendants 1 and 2 have brought forth these appeals.
7.Advancing arguments on behalf of the appellants, the learned Senior Counsel Mr.T.V.Ramanujun would submit that pending the suit, the above applications were filed by the plaintiffs; that while the learned Single Judge has taken a view that it is not a fit case where the appointment of either a receiver or an advocate commissioner could be made, a direction was given to the first defendant to make a payment of Rs.24 lakhs to the first plaintiff; that it is in the nature of a decree even without a trial; that it is true that the plaintiffs have asked for rendition of accounts; that even without trial, the learned Single Judge has directed the defendants to pay a huge sum believing the case of the plaintiffs; that it was the case of the appellants that the property mentioned in Schedule 'A' to 'F' were not joint properties; that a memo was also filed before the learned Single Judge showing which were the properties in the joint names and which were the properties in the individual names; but, the learned Single Judge without adverting his attention to the memo, has granted injunction in respect of the properties and in particular, those owned by the defendants also, which was erroneous; that as far as item Nos.9 and 10 of 'A' Schedule are concerned, it is true that an advance of Rs.33 lakhs was received; but the appellants have spent more than Rs.40 lakhs for the purpose of meeting the requirement of the tenants; that apart from that, the said advance of Rs.33 lakhs is refundable at the time when the tenant is vacated and vacant possession is delivered; but the learned Single Judge has issued a direction that the first appellant should pay a sum of Rs.15 lakhs to the first respondent who will in turn deposit in a fixed deposit; that it was not only against law but also against the materials available on record and beyond the scope of the suit; that the learned Single Judge also failed to note that out of the rent of Rs.3.50 lakhs, the tenant was paying only Rs.2,94,872/- after deducting TDS and half yearly tax payable to the property namely Rs.1 lakh; that now the corporation is likely to increase the same; that apart from that, tenanted premises has to be maintained by doing repairs from time to time like doing colour washing, painting and other maintenance work periodically; that water tax and other statutory liabilities were to be met; that apart from all the above, the learned Single Judge has also directed the payment of Rs.24 lakhs to the first plaintiff which was also beyond the scope of the suit; that there was no such relief sought for in the suit, and the same has got to be decided in the suit where the plaintiffs have sought for the relief of rendition of accounts; that the learned Single Judge has committed an error in directing the first defendant to make payment of Rs.1.50 lakhs from 1.9.2009 every month pending disposal of the suit; that it was against law and also materials available; and that if the order is allowed to stand, it would lead to failure of justice and the appellants would be put to irreparable loss and hardship.
8.Added further the learned Senior Counsel that admittedly, there was no joint family and the businesses were only partnership businesses; that most of them were already closed; that the findings given by the learned Single Judge are not sound and absolutely without any basis at all; that onerous conditions were imposed in the order directing the first appellant to pay a sum of Rs.24 lakhs to the first respondent; that even the plaintiffs have not stated what was the quantum of share they were claiming; that the balance of convenience was against the plaintiffs; that no prima facie case was made out to grant injunction, and under the circumstances, the common order of the learned Single Judge has got to be set aside.
9.Contrary to the above, the learned Counsel for the respondents in his sincere attempt of sustaining the order of the learned Single Judge made the very same submissions made before the learned Single Judge.
10.The Court paid its anxious consideration on the submissions made and looked into the materials available.
11.Pending C.S.No.954 of 2008, a suit for partition, the above three applications were filed for (i) appointment of receiver to take charge of the properties and business mentioned in Schedule 'A' to 'F', (ii) an order of interim injunction to restrain the defendants from alienating or dealing with the properties mentioned in Schedule 'A' to 'F' and (iii) appointment of advocate commissioner in respect of the property in Door No.16 and 17, Cart Track Road, Maduvankarai, Velacherry. The learned Single Judge took the view that it is not a fit case where either receiver or advocate commissioner could be appointed and denied the request of the plaintiffs. The plaintiffs have not brought forth any appeal challenging that part of the order.
12.Admittedly, the plaintiffs 1 to 5 are the wife and sons of Kandasamy Chettiar, the first son of Narayanasamy Chettiar and Mallikeswari, respectively. The first defendant is the brother of Kandasamy Chettiar. The other defendants are the wife and sons of the first defendant. The consistent case of the plaintiffs is that the said Narayanasamy Chettiar started a firm in the name of M/s.B.A.Narayanasamy Chettiar and Sons. It was a partnership firm and on his death, it was reconstituted, and on the death of Kandasamy Chettiar for the second time, the said business was reconstituted. It is not in controversy that it was a partnership business. The further case of the plaintiffs is that all the immovable properties found in the Schedules to the plaint were purchased from the income of the various businesses run by the family, and they are joint family properties to be divided among the parties. The same was resisted by the defendants stating that those properties are not joint family properties. Admittedly some of the properties are in joint names, and the rest of the properties are in the individual names. In 'A' schedule, item Nos.1, 4, 5, 6, 7, 8, 9, 12 and 13 are in joint names, while item Nos.2, 3, 10 and 11 are in individual names. Equally in 'B' schedule, item Nos.1, 2, 6, 7, 10, 13 and 14 are in the joint names, while item Nos.3 to 5, 8, 9, 11, 12, 15 and 16 are in the individual names. In Schedule 'C' item Nos.1 to 6 and 21 are in joint names, while items 7 to 20 are in the individual names. In Schedule 'D' items 4 to 8 are in joint names while items 1 to 3, 9 and 10 are in the individual names. The property in Schedule 'E' is in the joint names.
13.It is not in controversy that as shown above, the properties are both in joint names and in the individual names of the plaintiffs and defendants respectively. The learned Counsel for the appellants would submit that while the properties stand in the names of the individuals, no question of granting interim injunction pending the suit would arise, and they should be allowed to deal with their respective properties; that insofar as the properties which are in the joint names, there is controversy, and hence till the disposal of the suit, injunction could be granted. On the contrary, the case of the plaintiffs is that all the properties though in the name of individuals, also belonged to the joint family; that when the plaintiffs have filed the suit stating that the family was running a partnership business and other businesses also, and all the properties were purchased out of the income from those family businesses, they are liable to be divided, and under the circumstances, it is a fit case where injunction has to be continued. At this juncture, it is pertinent to point out that admittedly, all the properties are actually in possession of the defendants, and the plaintiffs are not allowed to enjoy any one of the properties, and only a payment of Rs.29000/- and odd out of the rent recovered from item Nos.7 and 8 of 'A' Schedule namely the building situated at Mount Road, Madras, is made. Even though number of properties stand in the name of individual plaintiffs, how the management of these properties continued with the first defendant, no explanation was forthcoming from the appellants' side. It should not be forgotten that since the requests for appointment of receiver and advocate commissioner are denied, it is a fit case where any alienation or encumbrance on the properties by the defendants should be restrained. Under the circumstances, the interim injunction originally granted has got to be sustained. Accordingly, it is sustained.
14.As far as the directions issued by the learned Single Judge as to the payment is concerned, it is not in controversy that item Nos.9 and 10 of 'A' Schedule stand in the individual names of the plaintiffs and the defendants respectively. Both the properties are situated within the same compound, and Ragavendra Educational Trust is being run there. It is also not in controversy that a sum of Rs.33 lakhs was received by the first defendant by way of advance. The defendants in the course of their counter have candidly admitted that out of the amount of Rs.3.50 lakhs per month, the tenant is paying only Rs.2,94,872/- after deducting TDS and also half yearly tax payable to the property to the extent of Rs.1 lakh.
15.Insofar as the direction for making a payment of Rs.15 lakhs by the first defendant towards the share in the advance amount for being deposited by the first plaintiff, it is contended by the appellants' side that it is true that though an advance of Rs.33 lakhs was received from the tenant, a sum of Rs.40 lakhs has been spent by the first defendant for the purpose of raising necessary constructions to run the trust. It is also contended that the said sum of advance was refundable. This Court is at a loss to understand why the first defendant should come forward to raise a construction at a cost of Rs.40 lakhs out of his money while he got an advance of Rs.33 lakhs. This contention on the face of it lacks bonafide while it is admitted that item No.9 of 'A' Schedule is in the individual name of the first plaintiff, and item No.10 stands in the name of the first defendant. It is not the case of the defendants that they got any prior permission from the plaintiffs to raise construction or to lease it out. Admittedly, the said sum of Rs.33 lakhs was received as advance, and hence the learned Single Judge was thoroughly justified in issuing a direction for payment of Rs.15 lakhs to the first plaintiff who in turn has to deposit the same in fixed deposit. In such circumstances, that part of the order has got to be sustained. Accordingly, it is sustained.
16.The direction issued by the learned Single Judge that the first defendant should pay a sum of Rs.1.50 lakhs towards the share in the land every month from 1.9.2009 and apart from that, he should also pay Rs.24 lakhs towards the share of the plaintiffs in the rent collected by the first defendant for a period of 16 months, is assailed by the appellants' side that it was beyond the scope of the civil action in the suit. As could be seen above, all the properties mentioned in Schedule 'A' to 'F' irrespective of the fact whether they stand in joint names or in the names of the parties and whether they collected rent or otherwise are under the exclusive possession and enjoyment of the defendants excepting the fact that the first defendant is making a payment of Rs.29000/- and odd towards the share of rental from the building situated in item Nos.7 and 8 of Schedule 'A' situated at Mount Road, Madras. It should not be forgotten for a while that it is a case where the interim receiver was not appointed by the Court. In such circumstances, if the contention of the appellants' side has got to be accepted, the plaintiffs if entitled to their share, as decided by the Court at the time of trial in the partition suit, should wait all along the years without getting anything from the property. At no stretch of imagination, such a situation could be allowed to continue. It is brought to the notice of the Court that items 7 and 8 of Schedule 'A' consist of ground floor and other floors with the plinth area of 10000 sq.ft. on a site measuring 2400 sq.ft. It is admitted by the parties that except 1200 sq.ft. in the ground floor, the remainder of the entire building namely 8800 sq.ft. is rented out, and a sum of Rs.77500/- is being received by the first defendant as rent from different tenants out of which Rs.29625/- is being paid to the plaintiffs every month. It is pertinent to point out that this 1200 sq.ft. in that item if rented out, would also yield rent.
17.It is not in controversy that from all the properties whether they are in joint names or in the names of the individuals, the first defendant is recovering rent from the tenants, and the payment made to the first plaintiff is only Rs.29625/- out of the entire rental income. In such circumstances, the learned Single Judge has taken into consideration the same and has ordered Rs.1.50 lakhs to the first plaintiff from 1.9.2009 onwards till the disposal of the suit.
18.It is true that the plaintiffs have asked for rendition of accounts. It is also true that the direction was not given by deciding the issue on rendition of accounts. But, it was a case where the Court was called upon to issue a direction to the first defendant to make payment of a reasonable sum which, in the considered opinion of the Court, should be ordered while the rental collection from all the properties is being made by the first defendant. It is admitted by the defendants that from Ragavendra Educational Trust, out of the monthly rental of Rs.3.50 lakhs after making the statutory deductions, the first defendant is getting Rs.2,94,872/-. Apart from the said sum, the first defendant is getting Rs.77500/- from item Nos.7 and 8 of 'A' Schedule and also making rental collections from all the tenants in the property. In such circumstances, the learned Single Judge thought it fit not to appoint a receiver, but issued a direction to the first defendant to make payment of Rs.1.50 lakhs every month from 1.9.2009 onwards which, in the considered opinion of the Court, does not require to be disturbed. Accordingly, it is sustained. It is also made clear that this payment of Rs.1.50 lakhs is inclusive of Rs.29625/- which is now being paid by the first defendant to the first plaintiff.
19.Insofar as the next direction that the first respondent should pay a sum of Rs.24 lakhs to the first plaintiff since the first defendant has collected 16 months' rent which would come to Rs.54 lakhs, even according to the first defendant, he was collecting nearly Rs.3 lakhs per month from items 9 and 10 of Schedule 'A' from the said Educational trust. But, out of the same, the expenses to be borne by the first defendant by way of property tax and maintenance of the building have got to be taken into consideration. In such circumstances, a direction to the first defendant to make a payment of Rs.16 lakhs instead of Rs.24 lakhs as directed by the learned Single Judge, towards the rental collection made from April 2008 could be issued.
20.In the result, O.S.A.No.260 of 2009 is dismissed confirming the order of the learned Single Judge granting injunction.
21.The order made by the learned Single Judge directing a payment of Rs.24 lakhs by the first defendant to the first plaintiff is modified to the extent that the first defendant should pay Rs.16 lakhs (Rupees sixteen lakhs only) to the first plaintiff towards the rental collection made from April 2008, within a period of two months herefrom. OSA Nos.259 and 261 of 2009 are, accordingly, disposed of. The parties shall bear their own costs. Consequently connected MPs are closed.
(M.C.,J.) (R.P.S.,J.) 24-8-2009 Index: yes Internet: yes nsv M.CHOCKALINGAM, J.
AND R.SUBBIAH, J.
nsv OSA Nos.259 to 261/2009 Dt: 24-8-2009