IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.SREENIVASE GOWDA W.P.NO.23440/2017 (GM-CPC) BETWEEN:
1. Sri A.N.Krishnappa, S/o. late M.Chikkananjappa, Aged about 70 years Residing at Arasanahalli village, Nandi Hobli, Chikaballapura Taluk & District. 562101.
2. Smt. Parvathamma, W/o. A.N.Krishnappa, Aged about 60 years, 3. Sri A.K.Naveenkumar S/o. A.N.Krishnappa, Aged about 35 years, Appellant Nos.2 and 3 are Residing at No.47/1133, 1st Floor, 3rd Cross, S.L.Byrappa Road, Near M.R.Tennis Court, Telecom Layout, Virupakshapura, Vidyaranyapura Post, Bangalore-560097.
4. Sri K.Chetan, S/o A.N.Krishnappa, Aged about 30 years, Residing at Arasanahalli Village, Nandi Hobli, Chikaballapura Taluk & District. 562101. ... Petitioners (By Sri Raghupathi T.N., Advocate) AND:
1. Smt. K.Sunitha, D/o. A.N.Krishnappa, W/o. Bhanuprakash, Aged about 32 years, Residing at No.34/K, Ground floor, Opp. AKR Memorial School, Horamavu Agara, Horamavu Post, Chikballapura Taluk & District 562101.
2. Sri Patra Murali Mohan, S/o. P.Subba Rayadu, Aged about 36 years, Residing at Yarraguntapalli village & Post, Ananthapur District, Andhra Pradesh-515411. ... Respondents (By Sri C.M.Nagabhushan, Advocate for R.1; Notice to R2 dispensed with v/o dtd.24.10.2017) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to declare that the judgment dated 28.04.2017 passed by the learned Prl.District and Sessions Judge, Chikkaballapura in M.A.6/2017 at Annexure-E is illegal and quash the same and declare that the order on I.A.1 dated 28.3.2017 passed by the learned II Addl. Sr. Civil Judge and JMFC, Chikkaballapura in O.S.No.113/2016 at Annexure-D is illegal and quash the same.
This Writ Petition coming on for dictating the orders, this day, the Court made the following:
ORDER The defendant Nos.1 to 4 in O.S.No.113/2016 on the file of the 2nd Addl. Senior Civil Judge and J.M.F.C, Chikkaballapura have preferred this Writ Petition, seeking for a writ of certiorari to quash the order dated 28.04.2017 passed in M.A.No.6/2017 by the Prl. District and Sessions Judge, Chikkaballapura produced at Annexure-E and the order dated 28.03.2017 passed on I.A.No.1 filed under Order XXXIX Rules 1 & 2 of CPC in O.S.No.113/2016 by the 2nd Addl. Senior Civil Judge & JMFC, Chikkaballapura produced at Annexure-D.
2. Heard Sri. T.N. Raghupathy, learned counsel appearing for the petitioners (defendant Nos.1 to 4) and Sri. C.M. Nagabhushan, for Sri. P.V. Chandrashekar, learned counsel appearing for the contesting respondent No.1 (plaintiff). Perused the writ petition and statement of objections filed by respondent No.1 (plaintiff). Notice to respondent No.2 (defendant No.5) is dispensed with.
3. Sri T.N.Raghupathy, learned counsel appearing for the petitioners (defendant Nos.1 to 4) submits that plaintiff by accepting 1 acre 14 guntas of land in item No.9 of the suit ‘A’ schedule properties towards her share had voluntarily relinquished her right, title and interest over the remaining suit schedule properties in favour of defendant Nos.1 to 4 through a registered release deed dated 26.04.2011. Plaintiff being a doctor is highly educated person and she was aware of the contents of the release deed as on the date of its execution and registration and therefore the suit as brought by the plaintiff in the year 2016 for the relief of declaration of said release deed dated 26.04.2011 is barred by the prescribed period of limitation and is liable to be dismissed on the said ground itself. Consequently, the order of temporary injunction granted by the Trial Court and its confirmation order passed by the First Appellate Court are liable to be set aside.
Learned counsel submits that ‘A’ schedule properties were fallen to the share of defendant No.1 under a registered partition deed dated 31.01.2011 effected between him and his brothers and sisters. Similarly, ‘B’ Schedule properties were fallen to the share of defendant No.1 under the Panchayath Parikath dated 31.01.2011 effected between him and his brothers and sisters and ‘C’ schedule properties are self- acquired, individual, exclusive and absolute properties of defendant Nos.2, 3 and 4, as such, they were/are not liable for partition. The Trial Court without considering the said facts has committed an error in granting temporary injunction and the First Appellate Court has committed an error in confirming the said order passed by the Trial Court.
The learned counsel submits that in the event of Trial Court accepting the case of the plaintiff and decreeing her suit, she will be entitled for 1/5th share in the suit properties and therefore, she is not entitled for an order of temporary injunction restraining defendant Nos.1 to 4 from developing the suit properties that too in respect of suit ‘C’ schedule properties which are their self-acquired, individual, exclusive and absolute properties.
Learned counsel submits that item No.24 of the suit ‘C’ schedule property originally belonged to one Krishnappa S/o Munishamappa, who gifted the same in favour of his sister Smt. Sampangamma, upon her death on 09.07.2001, her only daughter, Parvathamma (defendant No.2) succeeded to the same by inheritance and she became the absolute owner of item No.24 of the suit property. Accordingly, khatha of the said item of the suit property was mutated in her name and her name entered in the Kathedar’s column of the RTC and her name with the name of her husband appeared in the cultivator’s column of RTC for the year 2007-08. Subsequently, Parvathamma (defendant No.2) gifted the western side portion of item No.24 in favour of her first son, Naveen Kumar (defendant No.3) and gifted the eastern side portion in favour of her second son, Chethan (defendant No.4) through two separate registered gift deeds for common dated 23.12.2013. Naveen Kumar (defendant No.3) after acquiring western portion of item No.24 of the suit property, constructed a commercial building and leased the same in favour of M/s. Narayana Educational Trust by raising loan from Tata Capital Financial Services Limited, for a period of 30 years through a registered lease deed dated 17.01.2014. Similarly, 4th defendant, Chethan (second son of defendant Nos.1 and 2) after acquiring the eastern portion of item No.24 of the suit property from his mother through a registered gift deed dated 23.12.2013 has undertaken the construction of a multi- storied commercial building by raising hand loan and also by obtaining loan from Tata Capital Financial Services Ltd., When 4th defendant had approached a Bank for availing further financial assistance to complete the construction of building undertaken by him in the portion belonging to him, it was at that stage, the plaintiff had approached the Court and by suppressing the above material facts had obtained the order of temporary injunction, restraining the defendants from alienating or creating charge over the suit schedule properties.
Learned counsel submits that the application I.A.No.1 filed under Order XXXIX Rules 1 and 2 of CPC seeking two kinds of temporary injunction i.e., restraining the defendants from creating charge and restraining them from changing the nature of the suit properties is not maintainable in law.
He submits, though the plaintiff had not sought for the relief of alienation, the Trial Court was liberal in granting the said relief and the First Appellate Court was also liberal in confirming such kind of order of temporary injunction granted by the Trial Court. Thereby, his submission was that relief which was not sought for by the plaintiff was granted by the Courts below.
Learned counsel submits that the Courts below without any application of mind with regard to well- established principles regarding granting an order of temporary injunction and without considering the documents produced by the parties have committed a serious error in granting the order of temporary injunction thereby preventing the defendant Nos.1 to 4 from developing the suit properties.
Learned counsel submits that in order to complete the construction undertaken by defendant No.4 in his portion in item No.24 of the suit ‘C’ schedule property, petitioners (defendant Nos.1 to 4) are agreeable to give an undertaking to the Court that they are not going to alienate or encumber the remaining suit schedule properties which they have not alienated or encumbered so far.
Learned counsel submits that the photographs produced by the defendant Nos.1 to 4 would show the construction of building undertaken by defendant No.4. If the order of temporary injunction granted by the Courts below is not set aside or modified suitably, the entire construction undertaken by defendant No.4 will become standstill and he will not be in a position to discharge the loan already availed from the Tata Capital Financial Services Ltd.
He submits that either by vacating or suitably modifying the order of temporary injunction granted by the Courts below, no prejudice will be caused to the plaintiff. Therefore, he prays for allowing of the writ petition by granting the prayer as sought for.
4. Sri C.M.Nagabhushan, learned counsel appearing for contesting respondent No.1 (plaintiff) submits that few days prior to the marriage of the plaintiff, she was taken by defendant Nos.1 to 4 to the office of the Sub-Registrar and obtained her signature to a document now disclosed as release deed as if she by accepting 1 acre 14 guntas of land in Sy.No.28/1 (item No.9) of the suit property towards her share had voluntarily released her right, title and interest in respect of the remaining suit properties in favour of defendant Nos.1 to 4.
Learned counsel submits that the registered partition deed dated 31.1.2011 effected in respect of ‘A’ schedule properties and Panchayath Parikath dated 31.1.2011 effected in respect of ‘B’ schedule properties would clearly indicate that suit schedule properties were fallen to the share of defendant No.1 under partition effected between him and his brothers and sisters.
Learned counsel submits that the release deed said to have been executed by plaintiff in favour of defendant Nos.1 to 4 is obtained by playing fraud upon her and by misleading her that they need money to meet their family legal necessities and to meet her marriage expenses by selling some of the items of the suit properties. She did not know that she executed the release deed as contended by the defendant Nos.1 to 4.
Learned counsel submits that by reading of the release deed, it is clear that it is a created one and plaintiff had not voluntarily released her right, title and interest in the suit properties in favour of defendant Nos.1 to 4.
Learned counsel submits that admittedly suit ‘A’ and ‘B’ schedule properties are properties, which were fallen to the share of defendant No.1 under the partition deed and Panchayath Parikath effected between him and his brothers and sisters. Defendant Nos.2, 3 and 4 had no independent income to acquire the suit ‘C’ schedule properties and therefore they acquired the same from the income and nucleus of ‘A’ and ‘B’ schedule properties and therefore they are also to be declared as joint family properties of the plaintiff and defendant Nos.1 to 4 and plaintiff has got 1/5th share in all the suit schedule properties. Therefore, if defendants are not restrained from alienating or encumbering the suit schedule properties in favour of any third party and if suit properties are not preserved even if she succeeds in the suit, she cannot enjoy the fruits of the decree. Considering the same, the Trial Court was justified in granting the order of temporary injunction restraining the defendants from alienating or encumbering the suit properties in favour of any third party.
Learned counsel submits that the First Appellate Court after reconsidering the matter and the documents produced by the parties has confirmed the order of temporary injunction granted by the Trial Court and there is no irregularities or infirmities in the order passed by the Trial Court and in the confirmation order passed by the First Appellate Court warranting interference.
He submits that this Court by exercising its power under Article 226 of the Constitution of India, cannot interfere with the orders passed by the Courts below unless they are found to be illegal. Further, learned counsel referring to Section 3 of the Transfer of Property Act and Section 17 of the Limitation Act submits that the suit is not barred by time. With the above submissions, he prayed for dismissal of the writ petition.
5. The 1st respondent (plaintiff) has instituted a suit in O.S.No.113/2016 against the petitioners (defendant Nos.1 to 4) and another (defendant No.5) seeking for the following reliefs:-
i) “For equitable partition holding that the plaintiff is entitled for one fifth share in the suit schedule properties by metes and bounds, ii) declaring that the alleged release deed dated 26.04.2011 registered as document No.CKB.I.290-2011-12 is obtained by the defendants 1 to 4 by playing fraud and misrepresentation and the same is void document, iii) and the sale deed dated 11.2.2013 which is registered as document no.CKB.I. 5292-2012-13 executed in favour of defendant No.5 is not binding on the plaintiff’s 1/5th share, iv) award cost of the suit, v) grant such other relief or reliefs as deemed fit and proper to grant in the circumstance of the case to meet the ends of justice.”
6. Along with the suit, an application (I.A.No.I) under Order XXXIX Rules 1 & 2 of CPC was filed praying to grant the order of temporary injunction as under:-
“To pass an ex-parte order of temporary injunction restraining the defendants not to create a charge and not to change the nature of the schedule properties in any manner during the pendency of the suit and due to the urgency and importance of the matter, this Hon’ble Court be pleased to issue an Ad- interim order on like terms, pending disposal of this application, in the interest of justice.”
7. Defendant Nos.1 and 4 have filed their common written statement and filed a memo praying the Trial Court to treat the same as statement of objections to I.A.No.1 denying the case of the plaintiff and resisting the suit and the nature of temporary injunction sought under I.A.No.1.
Defendant Nos.2 and 3 have filed a memo adopting the written statement filed by defendant Nos.1 and 4.
Defendant No.5-purchaser of item Nos.3 and 4 of the suit ‘A’ schedule properties has filed a separate written statement denying the case of the plaintiff interalia contending that he is the bonafide purchaser of item Nos.3 and 4 of the suit ‘A’ schedule property having purchased the same for valuable consideration without having knowledge and notice about the alleged right of the plaintiff over the same. He has filed a memo praying the Trial Court to treat the written statement filed by him as statement of objection to I.A.No.1.
8. The Trial Court by order dated 28.03.2017, partly allowed the application (I.A.No.1) filed by the plaintiff under Order XXXIX Rules 1 and 2 of CPC and granted temporary injunction restraining the defendants from alienating or creating charge over the suit schedule properties till the disposal of the suit.
9. The First Appellate Court by order dated 28.04.2017, dismissed the Miscellaneous Appeal filed by defendant Nos.1 to 4 in M.A.No.6/2017 and confirmed the order passed by the Trial Court subject to an observation made in the concluding paragraph No.29 of its order that “if 1/5th share of the plaintiff is kept intact, that will not cause any irreparable loss or injury to anybody”.
10. Defendant Nos.1 to 4 in the suit aggrieved by the above orders of the Courts below have preferred this writ petition seeking for a writ of certiorari to quash these two orders.
11. Relationship between the plaintiff and defendant Nos.1 to 4 that defendant Nos.1 and 2 are husband and wife. Plaintiff, defendant Nos.3 and 4 are children of defendant Nos.1 and 2 is not in dispute.
12. As per the averments made in the plaint as well as in the written statement of defendant Nos.1 to 4, there is no dispute as to the source of acquisition of ‘A’ and ‘B’ schedule properties. According to which, ‘A’ schedule properties were fallen to the share of defendant No.1 under the registered partition deed dated 31.01.2011 effected between defendant No.1 and his brothers and sisters and ‘B’ schedule properties were also fallen to the share of defendant No.1 under the Panchayath Parikath dated 31.01.2011 effected between defendant No.1 and his brothers and sisters. Even perusal of the registered partition deed dated 31.01.2011 and Panchayath Parikath dated 31.01.2011 would support the said pleadings.
13. But there is serious dispute between the plaintiff and defendant Nos.1 to 4 and defendant No.5 as to the source of acquisition of ‘C’ schedule properties is concerned. According to the plaintiff, ‘C’ schedule properties were acquired by the joint family of plaintiff and defendant Nos.1 to 4 in the name of defendant Nos.2, 3 and 4 from the nucleus and income of the suit ‘A’ and ‘B’ schedule properties. Whereas, according to the defendant Nos.1 to 4 and defendant No.5;-
Item Nos.22 and 23 of suit ‘C’ schedule properties were self-acquired properties of defendant No.3 having acquired by him from his self efforts and earnings through the registered sale deeds dated 19.12.2007 and 23.02.2011 respectively;
Item No.24 was owned by one Krishnappa S/o Munishamappa and he gifted it in favour of his sister Sampangamma. Upon her death, which occurred on 09.07.2001, her only daughter-Parvathamma (defendant No.2 in the suit) became the absolute owner of the said property having acquired it under inheritance and she gifted western portion in favour of her first son Naveen Kumar (defendant No.3) and eastern portion in favour of her second son Chetan (defendant No.4) through two separate registered gift deeds for common dated 23.12.2013 and they are absolute properties of defendant Nos.3 and 4;
Item Nos.25, 27 and 28 of suit ‘C’ schedule properties are the self-acquired properties of defendant No.2 having purchased from her own efforts and earnings through the registered sale deeds dated 22.09.2003, 09.03.2001 and 31.12.2004 respectively;
Item No.26 is the absolute property of defendant No.2 acquired by inheritance.
Thus, defendant Nos.1 to 4 claim that item Nos.22 to 28 of the suit ‘C’ schedule properties are the self-
acquired, individual, exclusive and absolute properties of defendant Nos.2, 3 and 4.
14. From the above narration of facts, it is crystal clear that entitlement of plaintiff to her 1/5th share in the suit ‘A’ and ‘B’ schedule properties depends upon following two contingencies:-
i) Whether the plaintiff by accepting 1 acre 14 guntas of land in Sy.No.28/4 in item No.9 of the suit ‘A’ schedule properties towards her share had released her right, title and interest over the remaining suit schedule properties in favour of defendant Nos.1 to 4 through registered release deed dated 26.04.2011?
ii) Whether the release deed dated 26.04.2011 is created one and obtained by playing fraud upon the plaintiff and the suit as filed by the plaintiff seeking for declaration of the release deed dated 26.04.2011 as null and void is barred by the prescribed period of limitation?
15. Similarly, the entitlement of the plaintiff to her 1/5th share in the suit ‘C’ schedule properties depends upon one more contingency in addition to the above two contingencies viz., “Whether item Nos.22 to 28 of the suit ‘C’ schedule properties are the self-acquired, individual, exclusive and absolute properties of defendant Nos.2, 3 and 4?”
16. Plaintiff denies the execution of the registered release deed dated 26.04.2011 by contending that she had not voluntarily executed it and just 11 days before her marriage she was taken to the Office of the Sub-Registrar and her signatures were obtained to a document now described as release deed by informing her that some of the suit properties are required to be sold to meet the legal necessities of the family and her marriage expenses and it was created one and obtained by playing fraud upon her.
17. Learned counsel for the plaintiff contends that looking at the release deed, one can say it is unnatural and obtained by playing fraud upon the plaintiff. Whereas, learned counsel for defendant Nos.1 to 4 without prejudice as to their contentions stated above submits that though defendant Nos.1 to 4 are clear and confident about their stand that the suit as brought by the plaintiff is not maintainable and liable to be dismissed on the ground of law of limitation and plaintiff is not entitled for any share in the suit properties, that too in item Nos.22 to 28 of the suit ‘C’ schedule properties as they are their self-acquired, individual, exclusive and absolute properties, still they submitted before the First Appellate Court and repeating the same before this Court that they are agreeable to give an undertaking that they are not going to alienate the suit schedule properties which they have not alienated or encumbered so far if they are permitted to raise loan from a bank for the purpose of completing the construction that defendant No.4 has undertaken in the eastern portion of item No.24 which was gifted in his favour by his mother-Parvathamma (defendant No.2).
18. The First Appellate Court though had not referred to the above undertaking given by the defendant Nos.1 to 4 through their counsel, however it has dismissed the Miscellaneous Appeal and confirmed the order passed by the Trial Court subject to an observation made in the concluding paragraph No.29 of its order that “if 1/5th share of the plaintiff is kept intact, it will not cause irreparable loss or injury to anybody”. But it has committed an error in not allowing the appeal preferred by defendant Nos.1 to 4 and modifying the order passed by the Trial Court by incorporating the said observation in the operative portion of its order. Therefore, it has become necessary to examine the orders passed by the Courts below in the light of the undertaking proposed to be given by defendant Nos.1 to 4 and in the light of the observations made by the First Appellate court in concluding paragraph No.29 of its order.
19. Defendant Nos.1 to 4 are agreeable for confirming the orders passed by the Courts below restraining them from alienating or encumbering the suit schedule properties which they have not alienated or encumbered so far, if they are permitted to encumber eastern portion of item No.24 of the suit ‘C’ property gifted by Parvathamma (defendant No.2) in favour of her son Chetan (defendant No.4). In fact, it is more beneficial to the plaintiff than the observation made by the First Appellate Court in its concluding paragraph No.29 of its order. As per the said observation of the First Appellate Court, defendant Nos.1 to 4 by preserving 1/5th share of the plaintiff in the suit properties can deal with the rest of the suit schedule properties in any manner they desire. Item No.24 of ‘C’ schedule properties in all measures 37.08 guntas. So, 1/5th of it comes to 7.06 guntas. As could be seen from the recital of the gift deed dated 17.07.1962, it was owned by one Krishnappa S/o Munishamappa and under the said gift deed dated 17.07.1962 he gifted it in favour of his younger sister Sampangamma who was none other than the mother of defendant No.2- Parvathamma. As could be seen from the revenue records produced by the defendants, katha which was standing in the name of Sampangamma, upon her death it was transferred into the name of her daughter- Parvathamma (defendant No.2) as per law of inheritance and name of Parvathamma (defendant No.2) appeared in the Kathedar’s column and her name along with the name of her husband-A.N. Krishnappa appeared in the cultivator’s column of the RTC. It is the case of defendant Nos.1 to 4 that defendant No.2-Parvathamma gifted western portion measuring 0.20 guntas in favour of her first son Naveen Kumar and eastern portion measuring 0.17 guntas in favour of her second son Chetan under two separate registered gift deeds for common dated 23.12.2013. It is the further case of the defendant Nos.1 to 4 that they have constructed a multi-storied building in the western portion measuring 0.20 guntas gifted to defendant No.3-Naveen Kumar and it was leased in favour of M/s. Narayana Educational Trust through registered lease deed dated 17.01.2014 much prior to filing of the suit by the plaintiff, defendant No.4 has undertaken construction in the eastern portion measuring 0.17 guntas gifted in his favour by his mother (defendant No.2) and it is their case that they are unable to complete the construction for want of fund. Therefore, defendant Nos.1 to 4 are praying for modification of the orders passed by the Courts below by permitting defendant No.4 to raise loan and complete the construction undertaken by him in the eastern portion measuring 0.17 guntas gifted in his favour of by his mother. In respect of item No.24, it is the contention of the plaintiff that Sampangamma and her daughter Parvathamma (defendant No.2) through their general power of attorney holder Krishnappa sold the said item in favour of a third party and after the death of Sampangamma, plaintiff and defendant Nos.1 to 4 from the nucleus of the joint family properties got the said sale deed cancelled. Accordingly, name of Parvathamma continued in the revenue records and it is the joint family properties of the plaintiff and defendant Nos.1 to 4. As already stated, right of the plaintiff to her 1/5th share in item No.22 to 28 of the ‘C’ schedule properties depends upon three contingencies stated above. Defendant Nos.1 to 4 are agreeable to refrain themselves from alienating or encumbering the remaining suit schedule properties, which they have not alienated or encumbered so far provided, they are permitted to raise loan and complete the construction undertaken by defendant No.4 in the eastern portion of item No.24 of the suit ‘C’ schedule property measuring 0.17 guntas gifted in his favour by his mother (defendant No.2) by encumbering the said portion. As already stated, 1/5th share of plaintiff in item No.24 which totally measures 37.08 guntas comes to 7.6 guntas. The undertaking offered by defendant Nos.1 to 4 would preserve more than the alleged 1/5th share of the plaintiff even in respect of item No.24 of the suit schedule property. Plaintiff who has not chosen to prefer any appeal challenging the observation made by the First Appellate Court in concluding paragraph No.29 of its order cannot oppose for modification of the orders passed by the Courts below thereby restraining the defendants from alienating or encumbering the suit schedule properties which they have not alienated or encumbered so far excluding eastern portion of item No.24 of the suit schedule property measuring 0.17 guntas. It is also to be noted that plaintiff has not prayed for an order of temporary injunction restraining the defendants from alienating the suit schedule property. Nevertheless, it was granted by the Trial Court and confirmed by the First Appellate Court. On the other hand, the plaintiff has sought for an order of temporary injunction restraining the defendants from encumbering or changing the nature of the suit schedule properties. Prayer restraining the defendants from changing the nature of suit property was not granted by the Trial Court and plaintiff has not preferred any appeal challenging the order of the Trial Court. In view of the above, following ORDER The writ petition filed by the petitioners is allowed in part.
The order of temporary injunction granted by the Trial Court at Annexure-D and the order passed by the First Appellate Court as per Annexure-E subject to observation made in the concluding paragraph No.29 of its order stands modified as under:-
a) Petitioners (Defendant Nos.1 to 4) are hereby restrained from alienating or encumbering suit schedule properties in favour of any third parties which they have not alienated or encumbered so far except eastern portion of item No.24 of suit ‘C’ schedule property as undertaken by them.
b) Petitioners (defendant Nos.1 to 4) are hereby restrained from alienating the eastern portion of item No.24 of the suit properties measuring 0.17 guntas to any third party till the disposal of the suit, however, they are permitted to complete the construction undertaken by defendant No.4 by raising loan on the security of the said portion, subject to following conditions:
(i) Availing of loan by defendant Nos.1 to 4 on the security of eastern portion item No.24 of the suit properties will be subject to the result of the suit and at the risk of the defendant Nos.1 to 4.
(ii) Defendant Nos.1 to 4 shall furnish statement of accounts regarding availing of loan on the security of eastern portion of item No.24 of the suit properties and furnish account as to income that they are going to derive by leasing or by renting in favour of any third party.
Sd/- JUDGE Mkm/pmr*