Judgment:
(Prayer: These MFAs filed U/O 43 Rule 1(r) of CPC, against the order dated 12.12.2014 passed in OS No. 33/2014 on the file of the Senior Civil Judge and ACJM, Karkala, dismissing IA No. 3 filed U/O 39 Rule 1 and 2 of CPC., and etc.)
1. These three appeals arise out of common order dated 12.02.2014 passed by the learned Senior Civil Judge, Karkala, in O.S.No. 33/2014 dismissing I.A.Nos. 3, 4 and 5/2015 filed by the plaintiffs.
2. I.A.No.3 was filed to restrain defendant No. 1 from mortgaging or alienating plaint Aschedule properties or a portion thereof and from inducting any stranger into plaint Aschedule properties including making any alterations. I.A. No. 4 was filed against defendants 1 and 4 to restrain them from dispossessing plaintiff No. 1 from the house situated in plaint Aschedule properties. I.A. No. 5 was filed to restrain defendant No.1 from withdrawing any amount mentioned in plaint Bschedule from defendants 4 and 5 banks.
3. Plaint Aproperties are the immovable properties. Item No. 1 of plaint Aschedule consists of immovable properties that have been allotted to the share of B.M. Raghotama Rao, late husband of plaintiff No. 1 in a partition that took place of 02.11.1966 between himself and his brothers. Item No. 2 of plaint Aschedule are also immovable properties which according to the plaintiffs have been purchased by B.M. Raghotama Rao out of the income derived from item No. 1 of plaint Aschedule property. Item No. 3 of plaint Aschedule property consists of lands in respect whereof occupancy rights have been conferred on B.M. Raghotama Rao by the Land Tribunal. Plaintiffscontention is that occupancy rights have been conferred on B.M. Raghotama Rao as head of the family consisting of plaintiffs and defendants and therefore, plaintiffs had share in the said property as well. All these items are urged by the plaintiffs are joint family properties wherein plaintiffs have got share along with the defendants.
4. So far as plaint Bschedule properties are concerned, they are bank deposits, which according to the plaintiffs reflect the income derived from the joint family properties earned by B.M. Raghotama Rao over which plaintiffs and defendants had rights.
5. Relationship between the parties is not in dispute. Plaintiff No. 1 is the wife of late B.M. Raghotama Rao. Plaintiffs 2, 5 and defendant No. 1 are children of B.M. Raghotama Rao and plaintiff No. 1. Plaintiffs 3 and 4 are the children of plaintiff No. 2. Plaintiff No. 6 is the son of plaintiff No.5. Defendants 2 and 3 are the children of defendant No. 1. Defendant No. 4 is the wife of defendant No.1. Temporary injunction as prayed for in these three applications was sought on the basis of allegation that defendants were trying to disturb the joint and peaceful enjoyment of the house property by plaintiff No. 1 and that defendants were trying to encumber, alienate or dispose of and were dealing with the suit schedule properties.
6. Defendants resisted the suit and the applications. They mainly contended that the suit schedule properties were not the joint family properties; B.M. Raghotama Rao was the absolute owner of the properties as they were allotted to him in the partition of the year 1966; the bank deposits were standing in the joint names of B.M. Raghotama Rao and defendant No. 1 and after the death of B.M. Raghotama Rao, it was transferred in the name of defendant No. 1 and therefore, plaintiffs did not have any right over the same. Defendants have come up with a defence that there was a Settlement Deed executed by B.M. Raghotama Rao in favour of defendant No. 1 whereunder item Nos. 2 and 3 of plaint Aschedule were settled in favour of defendant No.1.
7. The Trial Court has dismissed all the applications. It has held that as regards item No. 1 of plaint Aschedule which was allotted to B.M. Raghotama Rao in a partition that took place on 02.11.1966, as B.M. Raghotama Rao did not have any children at the time when the said partition took place, the properties that fell to his share became his self-acquired and absolute properties and his children or for that matter his widow could not claim any interest in the property treating them as joint family or coparcenery property.
8. Insofar as items 2 and 3 of plaint Aschedule, the Trial Court has held that there was no material placed to hold that item No.2 or for that matter, item No.3 of plaint Aschedule were the joint family properties and that the said question was a matter for trial and hence, temporary injunction could not be granted. As regards bank deposit mentioned in plaint Bschedule, the Trial Court has held that as the amount stood in the joint names of B.M. Raghotama Rao and defendant No. 2 upon his death, defendant No. 1 was entitled to operate the account and enjoy the said amount.
9. Sri Sanath Kumar Shetty, learned counsel for the appellants/plaintiffs places reliance in the case of ROHIT CHAUHAN Vs. SURINDER SINGH AND OTHERS “ AIR 2013 SC 3525 to contend that so long as, on partition, ancestral property remains in the hands of single person, it has to be treated as his separate property and such a person will be entitled to dispose of the property treating it to be his separate property, but if a son is subsequently born, the alienation made before birth cannot be questioned, however, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that property and would become a coparcener. He, further points out by inviting the attention of the Court to the judgment in the case of THAMMA VENKATA SUBBAMMA (DEAD) BY L.R. Vs. THAMMA RATNAMMA and OTHERS “ AIR 1987 SC 1775 that gift of undivided share by a coparcener is void. This judgment is cited in support of the contention that Settlement Deed set up by defendant No. 1 in respect of the property comprised in item Nos. 2 and 3 of plaint Aschedule is prima facie illegal as even those properties are joint family properties.
10. Sri. B.S. Sachin, learned counsel for respondents 1 to 4 strongly supports the impugned order and the conclusion reached by the Trial Court.
11. Having heard the learned counsel for both parties and on careful perusal of the pleadings and the findings recorded by the Trial Court and the judgments cited at the Bar, the only point that arises for consideration is:
Whether the Trial Court was right and justified in rejecting all these applications holding that no prima facie case had been made out by the plaintiffs and balance of convenience was not in their favour? ?
12. It is not in dispute that item No. 1 of Aschedule came to B.M. Raghotama Rao in a partition that took place on 02.11.1966 between himself and his brothers. It is true, at the time when the said partition took place, he had no children. Therefore, it was his separate property and he could have dealt with it in any manner he desired. But, subsequently, children have been born to him. Therefore, once the family of B.M. Raghotama Rao is expanded due to the birth of male members, then the male members, at that time, being coparceners in the family were entitled for a share in the property which came in the hands of B.M. Raghotama Rao by way of partition of ancestral properties. This position is clear from the judgment of the Apex Court in Rohit Chauhan's case referred to supra. Though, the question, when exactly the children were born to B.M. Raghotama Rao is not raised, the fact remains that birth of children to B.M. Raghotama Rao before the properties were disposed of is not in dispute, at least as of now, therefore, it has to be said that prima facie item No. 1 of plaint Aschedule was the joint family property in which children of B.M. Raghotama Rao had got share. Hence, defendants cannot be permitted to alienate or deal with the said property treating them as absolute property of the defendants.
13. Insofar as item Nos. 2 and 3 of plaint Aschedule, item No. 2 is the property which is purchased by B.M. Raghotama Rao, item No. 3 is the property in respect whereof occupancy rights have been conferred in favour of B.M. Raghotama Rao by the Land Tribunal. As there was nucleus in the family in the form of item No. 1 of plaint Aschedule and in the light of the assertions made by plaintiffs, item No.2 was purchased out of income derived from item No. 1, the matter deserves to be tried. When a serious question is raised in this regard, the trial has to take place to resolve the issue and until then the subject matter of the suit has to be maintained in status-quo. If these properties are permitted to be dealt with and sold, it may result in serious and irreparable injury to the plaintiffs. Therefore, it has to be said that prima facie case has been made out by the plaintiffs.
14. Insofar as bank deposits are concerned which are mentioned in Bschedule to the plaint, these deposits were in the joint names of B.M. Raghotama Rao and his son defendant No. 1. Whether these amounts reflect the income derived from their joint family properties or were the self-earnings of B.M. Raghotama Rao are matters to be considered at the time of trial. However, in my view, it is not appropriate to restrain defendant No. 1 from making use of the amount mentioned in Bschedule as it has been in his account after the death of his father B.M. Raghotama Rao. At the same time, plaintiffs cannot be deprived of the amount in case they are able to prove that the said amount was the income derived out of the joint family properties wherein plaintiffs had share. Therefore, as regards Bschedule property, it is just and appropriate to pass a conditional order permitting defendant No. 1 to make use of this amount provided, he gives an undertaking before the court below within four weeks from the date of receipt of a copy of this order, by way of an affidavit expressly stating that he would make good the share of plaintiffs in the amount in deposit described in Bschedule in case plaintiffs succeed in the suit. If such affidavit is not filed within the time stipulated, then there shall be an injunction restraining defendant No. 1 from making use of the amount in deposit as described in Bschedule property.
15. So far as restraint order sought by plaintiff No. 1 in respect of dwelling house described in item No. 1 of plaint Aschedule property, as held above, prima facie, these are joint family properties and plaintiff No. 1 has got a right to have joint possession of the same and reside in the house. Therefore, her joint possession has to be protected. Defendants are, therefore, restrained from dispossessing her or interfering with her joint possession.
16. In terms stated above, appeals are allowed. Order passed by the Court below is set aside. I.As. 3 to 5 filed under Order XXXIX Rules 1 and 2 CPC are allowed in part accordingly.