Judgment:
(Prayer: These Writ Petitions Are Filed Under Articles 226 And 227 Of The Constitution Of India Praying To Quash The Order On I.A. No.13 And 26 Dated 6.2.2014 In O.S. No. 8230/2007 Passed By The Learned City Civil Judge At Bangalore Vide Ann-Z.
This Writ Petition Is Filed Under Articles 226 And 227 Of The Constitution Of India Praying To Direct The R-1 / 19th Defendant To Deposit The Amount Of Rs.11 Crores Along With Accrued Interest On The Said Rs.11 Crores From The Date Of Two Mou's August 2006 Till Date Which Is Executed By R-1 / 19th Defendant Mr. Kishanlal Kothari As Per Ann-Af I.E. As Per Orders On I.A. No. 13 and 26 Dated 6.2.2014, In O.S. 8230/2007.)
1. The parties in these writ petitions would be referred to as per their ranking in the court below for the sake of convenience.
2. Writ Petition Nos.38077/2014 and 38460/2014 are filed by the defendant No.19 in O S No.8230/2007 on the file of the VII Addl. City Civil Judge, (CCHNo.19), at Bangalore being aggrieved of the order dated 6.02.2014 passed on I A Nos.13 and 26. W P No.47128/2014 is filed by the plaintiffs No.11 to 13 and 15 to18 in the above suit seeking deposit of the amount with interest.
3. The trial court by the impugned order directed the 19th defendant to deposit Rs.11 crores to the credit of O S No.8230/2007. So far as payment of interest is concerned, it is observed by the court below that the plaintiffs No.11 to 13 and 15 to 18 are at liberty to agitate the same at the time of hearing on main suit on proper enquiry.
4. The facts of the case to be stated in brief are as follows:
The plaintiffs filed the suit for the relief of partition and separate possession, mesne profits and permanent injunction restraining the defendants from alienating or dealing with the same and further restraining them from constructing and changing nature of the suit lands etc., on the ground that the suit schedule properties are the Hindu undivided family properties of the plaintiffs and defendants 1 to 15 and defendants have no exclusive right over the suit schedule properties.
5. The defendant No.19 filed written statement contending inter alia that the suit schedule properties are the properties belonging exclusively to that defendant. The properties are acquired prior and after registration of the society. The said defendant has been in possession and enjoyment of those lands. The plaintiffs have no right whatsoever and they are strangers in respect of the suit lands.
6. I A No.13 was filed by plaintiffs No.11 to 18 on 28.3.2011 under Section 151 CPC praying to direct the 16th defendant to deposit a sum of Rs.11 crores to the credit of O S No.8230/2007 on the file of City Civil Judge, Bangalore City, Bangalore. I.A. No.26 was filed by the plaintiffs No.11 to 13 and 15 to18 on 26.8.2013 under Section 151 CPC seeking to direct the 19th defendant to deposit the aforesaid amount with interest to the credit of O S No.8230/2007. IA No.26 came to be filed after the order passed by this Court in W P No.10097-10101/2012 (GM-CPC) dated 23.07.2013 remanding the matter in I A No.XIII with a direction to afford an opportunity to file objections by defendants 17 and 19 and dispose of the same in accordance with law. In the meantime, defendant No.19 came to be impleaded by the order of the trial court dated 29.1.2013 on I A No.18 filed under Order 1 Rule 10 CPC by the plaintiffs 11 to 18. This Court by the order dated 10.6.2013 in W P No.12120/2013 (GM-CPC) directed to implead the 19th defendant as Secretary of Bangalore Gorakshana Society. Therefore, I A Nos.13 and 26 are filed by the plaintiffs as aforesaid for the relief of direction to the defendant No.19 to deposit the amount with interest.
7. It is stated in the affidavits filed in support of the applications that the defendant No.19 has no exclusive rights or authority to enter into joint development agreement with 17th defendant in respect of the existing rights of plaintiffs. By collusion and connivance with 17th defendant, the defendant has resorted to only fraudulent, deceitful acts and cheated the plaintiffs. The 19th defendant in collusion with the first defendant created a joint developmental agreement with the 17th defendant and entrusted the joint family lands, which are the subject matter of the suit behind the back of the plaintiffs. The 19th defendant is not having any semblance of right in respect of lands in question but created two Memorandum of Understanding in August, 2006 and received an amount of Rs.7,50,00,000/- as interest free security deposit, out of which Rs.2,50,00,000/- is not refundable and Rs.3,50,00,000/- as interest free security deposit out of which Rs.1,15,00,000/- is non refundable. Thus the 19th defendant is enjoying the said huge sum of Rs.11 crores without any claim whatsoever on the lands belonging to the plaintiffs. In Para-28 of the written statement filed by the first defendant, it was stated that he had entered into the joint development agreement with defendant Nos.17 and 18 in the capacity as "kartha" of the family keeping in mind necessity of the family and also the benefit of the family and the said statement made by the 1st defendant is false, baseless and untenable statement as the first defendant had not entered into joint developmental agreement nor for the benefit of the joint family members but for the benefit of first defendant alone. It is contended that the defendant is alone enjoying the said substantial amount in crores dishonestly by withholding the said amounts falsely representing that he is the karta of M/s.Giridharilal and Sons and as a GPA holder of other family members. The 19th defendant has no right or authority to receive the huge amount on the suit schedule ancesatral joint family property of items 1 to 3 that too on the basis of created, manipulated, fabricated and fraudulent two M.O.Us. of August, 2006.
8. It is further contended that the registered sale deeds stand in the name of M/s.Giridharilal and Sons for the years 1934 to 1937 which establish that the suit schedule properties are the ancestral joint family properties and the rights, title, interest and lawful possession of the members of the joint family cannot be disputed by anybody including the 19th defendant. The said landed properties do not belong to M/s.Bangalore Gorakshana Shala and also contends that Giridharilal and Sons were in fact maintaining a Goshala of their own in part of their land much prior to the very existence of 19th defendant and the recitals of some of the sale deeds mention such existence of the Goshala in the joint family property and the said lands were mutated in the revenue records in favour of M/s.Giridharilal and Sons.
9. It is further contended that in the affidavit sworn to by Sri Kishanlal Kothari in support of I A No.7, there is an admission with regard to the registered sale deeds of 1934 to 1937 standing in the name of M/s.Giridharilal and Sons and therefore Sri Kishanlal Kothari cannot be permitted to make a false claim on the suit schedule properties as Secretary of M/s.Bangalore Gorakshana Shala, which exclusively and absolutely belong to joint family members of M/s.Giridharilal and Sons. The alleged representation of Mr..Kishanlal Kothari representing as Secretary of Gorakshana Shala came into existence only in the year 1940. The 19th defendant is enjoying Rs.11 crores along with interest since August, 2006 without any right to retain that amount. Therefore, the plaintiffs filed the aforesaid two interlocutory applications for the reliefs as mentioned above.
10. The defendant No.19 filed objections denying the averments made by the plaintiffs in the affidavits filed in support of the applications. The first defendant has stated in Para-28 of the written statement that he has entered into joint development agreement in the capacity of kartha of the family for necessity and benefit of the family. The plaintiffs have no right over the suit schedule properties. It is not a joint family property and property belongs to him. There are more than 1000 cows requiring lot of money for maintenance. It is contended that the agreement is between the owner of the property and a developer. Moreover, when the agreement has been terminated, question of deposit of money does not arise. Only cheque for Rupees Six crores has been encashed. As the agreement stands terminated, the applications are not maintainable and prays for dismissal of the applications.
11. I have heard the learned counsel for the parties and perused the entire records.
12. Sri Tarakram, learned Senior Counsel appearing for the petitioner in the first two writ petitions, submitted that the impugned order is illegal. There is non application of mind and non consideration of materials on record by the court below. Many of the documents and many of the orders are not taken into consideration. When the agreement stood terminated, the question of deposit of money does not arise. The plaintiffs are not parties to the Joint Development Agreement. The question of title is in serious dispute. When the serious question of title is involved, the direction to deposit is per se illegal. Anraj does not claim ownership and therefore it is not open for the plaintiffs to claim ownership of the properties. The joint family of Giridharilal and sons were not the owners of the suit schedule property. Anraj Sankhla S/o Giridharilal or Giridharilal did not own these lands. In the various sale deeds it is mentioned that the lands are purchased to look after cows. Hence plaintiffs cannot have any right over these lands. During the life time of Anraj Sankhla he never claimed any right over these lands. The goshala has nothing to do with the family of Giridharilal and/or Anraj. The cheques have been encashed by Bangalore Gorakshana Shala only to the tune of Rs.6 crores. The impugned direction is impossible to be complied.
13. The learned senior counsel has relied upon the decisions in Ramji Gir and others v. Elaichi Devi, reported in AIR 1974 Patna 280 (V.61,C 78) to contend that plaintiff suing for a share in family estate cannot be granted his share before his rights have been determined in the suit brought by him. The learned senior counsel also relied upon another decision in Mulimani Sanna Basavarajappa v. Basavannappa, reported in AIR 1959 Mysore 152 (Vol.46, C.60)(1) to contend that when the claim made in the plaint is contested, the court has no inherent jurisdiction to grant relief until that claim is determined on its merits and that can only be by the final hearing in the suit.
14. On the other hand, the learned counsel for respondents No.11 to 18 submitted to dismiss the writ petition contending that the 19th defendant has received huge sums of money on the suit schedule properties without any manner of right and what the plaintiffs sought was only to deposit the amount to the suit account and not to pay the amount to them and therefore there is no illegality or irregularity in the impugned order. The learned counsel placed reliance on the decision in Syndicate Bank v. Estate Officer and Manaager, A.P.I.I.C. Ltd., and Ors. reported in AIR 2007 SC 3169 Para-44 which reads thus:
"44. There cannot be any doubt whatsoever that in absence of a registered deed of sale, the title to the land does not pass, but then what would not be conveyed is the title of the estate and not the allotment and possession itself".
15. After hearing the learned counsel for the parties, the point that arises for consideration in these writ petitions is, whether the impugned order calls for interference under Article 227 of the Constitution? My answer would be in the negative for the following reasons:
16. The jurisdiction of this Court under Article 227 of the Constitution is a supervisory jurisdiction, which has to be exercised sparingly and only in appropriate cases to keep the subordinate courts within the bounds of their authority. Such a power cannot be exercised to influence subordinate judiciary to pass any order or judgment in a particular manner. Keeping this limitation on scope of interference with the interlocutory orders of the courts below in mind, the impugned order has to be examined.
17. I A No.13 was initially filed against defendant No.16 and as stated earlier, now the 19th defendant Kishanlal Kothari has represented Bangalore Gorakshana Shala as its Secretary. It is the case of plaintiffs No.11 to 13 and 15 to 18 that the schedule landed properties are exclusively belonging to M/s.Giridharilal and Sons. These properties are ancestral properties of plaintiffs. The said landed properties are not belonging to Kishanlal Kothari i.e., defendant No.19. It is also the further case of the plaintiffs that Giridharilal and Sons were maintaining a Gorakshana Shala in the part of their land, which is in existence prior to the one claimed by defendant No.19. The sale deeds are standing in the name of Giridharilal and Sons, which mention the existence of Gorakshana Shala in the family property. The record of rights, mutation entries are in the name of Giridharilal and sons which establish the said landed properties are exclusively belong to Giridharilal and Sons. The RTC entries also disclose that the suit schedule properties are joint family ancestral properties. The sale deeds were obtained during the year 1934 to 1937 boundaries shown in the plaint schedule tally with the boundaries of the sale deeds. The sale consideration was paid by Giridharilal and Sons on behalf of the joint family.
18. It is further case of the plaintiffs that 19th defendant falsely represented and without having any authority has executed memorandum of understanding in August, 2006 in favour of 17th defendant relating to joint family lands of plaintiffs and other sharers and received Rs.11 crores. The said act is fraudulent and would cause wrongful loss to the plaintiffs and he has collected non-refundable deposits stating that he (Kishanlal Kothari) is competent to execute MOUs. as owner of Bangalore Gorakshana Shala and collected the amounts without documents of title in favour of M/s.Bangalore Gorakshana Shala on the suit schedule properties.
19. The 19th defendant contends that Gorakshana Shala is claiming rights through document of Kishanlal S/o Jawarmel to Misrilal S/o Herachand and Deelraj S/o Charanraj as transferors and Bangalore Gorakshana Shala Nekkondi as transferee vide transfer deed dated 7.4.1941. According to the plaintiffs, this deed is created document fraudulently, no such registered conveyance title deeds existed in favour of 19th defendant. The registered sale deeds of 1934 to 1939 of Giridharilal and sons prevail over the transfer deed dated 7.4.1941.
20. It is submitted that the 19th defendant has made another MOU in August, 2006 with false representation that Gorakshana Shala is the absolute owner of Sy.Nos.64, 108 and 109 measuring 12 acres and taken Rs.7.5 crores on the suit lands.
21. Thus the defendant No.19 claims right on the basis of transfer deed dated 7.4.1941. It could be gathered from the records that claim of Kishanlal Kothari was rejected by the Tahsildar in RRT proceedings and the same was confirmed in revision petition, which has become final, not being challenged further. On the transfer deed there is no trace of title as there is no registered sale deed in favour of defendant No.19. Therefore, the joint development agreement and MOUs. are without authority of law as Kishanlal Kothari has not shown his right over suit schedule properties through proper conveyance deed.
22. It is the case of the 19th defendant that there is rescinding of contract or altering the terms of original contract. In the absence of proper document in this regard between the parties who were earlier entered into contract, such a contention of the 19th defendant as to cancellation of contract cannot be believed, which view is well supported by the decision in AIR 2007 SC 3169 referred to supra.
23. It is the contention of the petitioner - 19th defendant that when the title itself is in dispute, the plaintiffs are not entitled for any interim relief. The agreement is between the owner of the property and developer, the plaintiffs have no right to seek deposit of the amount. The 19th defendant has failed to prove prima facie at least, his right over the suit schedule properties. The court below has considered the documents placed on record such as sale deeds dated 1.5.1935, 2.10.1936, 27.7.1936, 5.9.1934, 5.9.1934, 21.9.1933, 10.7.1936, 30.1.1939, 16.10.1937, 7.2.1934, 18.10.1935 and also the record of rights with reference to suit schedule Sy.Nos.42/4, 51, 52, 53, 55, 57, 64, 65, 66, 96, 98/1-2, 99, 100, 101/1-2-3, 108, 109 and found that RTCs in respect of Sy.No.57 and Sy.No.64 are standing in the name of Giridharilal and Sons and Sy.No.108 is standing in the name of Gorakshna Sabhe Kartha S Giridharilal and Sons and Sy.No.109 is also standing in the name of S Giridharilal and Sons Gorakshana Sabhe Kartha. In the MOUs. the 19th defendant is referred as its Secretary and Chairman of sub committee as owners. The properties involved are Sy.Nos.108, 109 of Mahadevapura and Sy.No.64 of Doddanekkundi approximately measuring 12 acres. The said properties are offered for development and developer has agreed to develop by constructing a multi storied commercial complex. The recitals in the said MOUs. showed receipt of Rs.11 crores by the 19th defendant representing as secretary and Chairman of Sub-Committee pertaining to M/s.Bangalore Gorakshana Shala through cheques out of which certain amount is refundable and certain amount is non-refundable.
24. From the documents, the court below prima facie found that the suit schedule properties are the joint family properties of plaintiffs and other sharers and the said properties are purchased by S Giridharilal and Anraj in the years 1934, 1936 and 1939. The said sale deeds are acted upon and entries are mutated in the name of Giridharilal and Sons in the Record of Rights. The plaintiffs have filed the suit for partition and separate possession. The schedule properties are not standing in the name of defendant No.19. The transfer deed claimed by the 19th defendant is disputed by the plaintiffs. The contention of the plaintiffs is that M/s.Giridharilal and Sons had established Goshala in the land prior to the existence of M/s.Bangalore Gorakshana Shala. M/s.Bangalore Gorakshana Shala have no right, claim or interest on any inch of the land in Sy.No.57, 64, 108 and 109. In the circumstances, it is clear that defendant No.19 is not entitled to retain Rs.11 crores received by him under the two MOUs. on the suit schedule properties. According to the plaintiffs they have undivided shares in the suit schedule properties whereas 19th defendant contends that the suit schedule properties are not belonging to the said Giridharilal and Sons or Anraj Shankla and properties are exclusively belong to Bangalore Gorakshana Shala, which has to be thrashed out at the full-fledged trial of the suit.
25. The defendant No.19 has not produced any material to show that he is authorized to receive the said money and to retain and enjoy the same to others' exclusion. It seems the defendant No.1 in collusion with his daughter and sons for their illegal gain in collusion with defendant No.19 created two MOUs. for which the plaintiffs are not the signatories.
26. The plaintiffs No.11 to 13 and 15 to 18 are able to show prima facie that the lands involved in the two MOUs. are some of the suit schedule properties and the defendant No.19 has not made it clear at this stage as to how he is entitled to retain the sum received there under to himself for the exclusion of others. It is also noticed that the 19th defendant has issued cheque in favour of M/s.Bagmani Constructions on 1.9.2013 for Rs.20 lakhs, which further evidences receipt of Rs.11 crores by the 19th defendant.
27. In the circumstances, I am of the considered view that the court below has considered the entire matter in proper perspective and directed the 19th defendant to deposit Rs.11 crores to the suit account, which does not suffer from any illegality or any material irregularity so as to call for interference of this court under Article 227 of the Constitution.
28. The connected writ petition No.47128/2014 (GM- CPC) is filed by the plaintiffs being aggrieved of that portion of the impugned order which directed prayer relating to payment of interest on the aforesaid deposit amount has to be agitated at the time of hearing on the main suit by the plaintiffs. It is to be mentioned here that no person can be allowed to enrich himself wrongfully on the amount of others. For the period for which the 19th defendant held the amount, he is liable to pay interest, which can be worked out at the time of final adjudication of rights of the parties. In that view of the matter, the court below is justified in reserving liberty to the plaintiffs to agitate the same at the final hearing of the suit. Therefore, that part of the impugned order also cannot be faulted to call for interference by this Court and accordingly this writ petition is to be disposed of reserving liberty to the parties to agitate the same at the time of final hearing of the suit.
29. The reliance placed by the learned senior counsel appearing for the petitioner in the first two writ petitions on the two decisions in AIR 1974 Patna 280 (V.61,C 78) and AIR 1959 Mysore 152 (Vol.46, C.60)(1), though there is no dispute as to the ratio laid down therein, the said decisions cannot be pressed into service to the facts of the case on hand for the simple reason that no share in favour of any party is granted and it is only a direction to deposit the amount to the suit account in order to make sure that the said amount with interest is available when the rights are settled at the final disposal of the suit by the court below.
30. The learned counsel for the defendants also submitted that certain amount is already in Fixed Deposit. Therefore, it makes no difference to keep the amount in the suit account.
Accordingly, for the aforesaid reasons, W P Nos.38077/2014 and 38460/2014 (GM-CPC) are rejected and W P No.47128/2014 (GM-CPC) is disposed of. The 19th defendant is granted four weeks time to deposit the amount of Rs.11 crores to the suit account, which shall be kept in Fixed Deposit initially for one year and thereafter extend the same from time to time till disposal of the suit.