Rau Padma, and ors.Vs. Gayatri Devi, and ors. - Court Judgment

Excerpt:
criminal appeal preferred under sec.374(2) of the code of criminal procedure against the judgment of the magalir neethimandram, chennai, made in s.c.no.8 of 2007 dated 4.3.2010.1. introductory :-these original side appeals are directed against the common order and decretal order dated 26 august 2008 in o.a.nos.523 and 524/2009 and a.nos.2962 to 2964 & 2931 of 2009 in c.s.no.438 of 2009 whereby and whereunder, the learned single judge granted an order of interlocutory injunction restraining the appellants from interfering with the peaceful possession and enjoyment of the suit property by the respondents, besides restraining them from putting up construction or creating third party interest in the suit property.background facts :-2.respondents filed a suit in c.s.no.438/2009 before the original side of this court, against the appellants praying for a decree of partition of the suit property into five shares and to allot four such shares to them and for a decree of declaration to invalidate the sale deed dated 29.05.2006, executed by the first appellant and registered as document nos. 630, 631, 632 and 633/2006 in favour of the appellants 2 to 4.3.in the plaint filed in c.s.no.438/2009, respondents would contend thus:-(a)the property more fully descried in the schedule was part of a larger extent of land measuring about 50 grounds in r.s.no.3847/121. the suit property is situated at plot no.6, (previously plot no.6), cenotaph road, ii land, teynampet, chennai, measuring an extent of 4 grounds. the property originally belonged to mrs.rau indira devi, she having purchased the same as per sale deed dated 17.08.1939. the said mrs.rau indira devi was the first wife of late r.v.m.surya rao, grandfather of respondents 2 to 4. the original owner mrs.rau indira devi expired in the year 1942 leaving behind her husband r.v.m.surya rao and daughter chinnamamba. r.v.m.surya rao had married the first appellant mrs.rau padma in the year 1944. in the said marriage, two children were born to them viz., mrs.rao suhasa and r.v.m.pradeep rao. r.v.m.surya rao executed a will dated 15.11.1911 in respect of his property. the first appellant was appointed as the executor of the will. as per the said will, 50 grounds of land along with a house known as "indira vihar" was bequeathed to r.v.m.pradeep rao, husband of the first respondent and father of respondents 2 to 4. subsequently, r.v.m.surya rao died. the first appellant initiated probate proceedings to probate the will. the daughter of r.v.m.surya rao, born through his first wife objected to the grant of probate. the matter was subsequently mediated and as per the settlement, 12 grounds and 98 sq.ft. of land was given to mrs.chinnamamba besides a sum of rs.1,30,000/-. the application for probate was numbered as o.p.no.16/1963 and ultimately probate was also granted.(b)in view of the will duly probated as per order in o.p.no.16/1963, pradeep rao became the absolute owner of the house known as "indira vihar" along with 50 grounds of land. since pradeep rao was a minor, the property was looked after by the first appellant as his mother as well as in her capacity as the executrix of the will. later, on attaining majority, pradeep rao formed a partnership along with his mother and sister in the year 1981. subsequently, pradeep rao developed a portion of the property by constructing flats. after such construction, only an extent of 4 grounds remained vacant. in the meantime, pradeep rao died on 10.01.1988 and as such, his right in the property devolved on the first appellant being the mother and the respondents being his wife and children.(c)while the matters stood thus, the first appellant sold the suit property in favour of appellants 2 to 5 by way of registered documents dated 29.05.2006. according to the respondents, those sale deeds are sham documents and as such, they are not binding on them. the first appellant has got only 1/5 share in the property and as such, it was not open to her to assign the entire property. in such circumstances, the respondents filed a suit for partition as well as for declaration of nullity in respect of the documents executed by the first appellant in favour of appellants 2 to 5. interlocutory application :-4.the respondents filed interlocutory applications in o.a.nos.523 and 524 of 2009 for an order of injunction to restrain the appellants from creating third party interest in the property. they have also filed o.a.no.524 of 2009 to restrain the appellants from interfering with their peaceful possession and enjoyment of the suit property.5.the appellants have filed an application in o.a.no.2631/2009 for issuing an advocate commission to inspect the suit property and to report about their possession as well as physical features of the property.the case of the appellants :-6.the appellants have filed their counter in answer to the contentions raised in the interlocutory application filed by the respondents.7.the first appellant in her counter affidavit would contend thus :-(a)the respondents have filed a suit in o.s.no.3338/1997 before the learned ii additional city civil court, chennai and in the said suit, the first appellant filed her written statement denying their title as well as possession. therefore, the present suit for partition without a prayer for declaration of title was clearly not maintainable; (b)since the respondents have conceded the fact that the first appellant was also a co-owner, no injunction could be granted against her;(c)she has been in possession and enjoyment of the property since 1963 as executrix as well as residuary legatee;(d)the suit property has already been given on licence basis to m/s.devinarayan housing development (p) ltd. on 30.04.1997. therefore, the respondents were not justified in praying for an interim injunction to protect their possession.(e)the entire estate was not given to her son. it was only the house at d.no.7, cenotaph road, which alone was given and as such, the respondents were not justified in claiming right over the suit property.(f)subsequently, as per sale deed dated 29.05.2006, the property was assigned to the appellants 2 to 5.8.appellants 2 to 5 filed a separate counter affidavit wherein they contended thus:-(a)the first appellant executed a deed of licence on 30.04.1997 and as per the said agreement, the property was given to m/s.devi narayanan housing development (p) ltd. for the purpose of storing granite slabs. accordingly, the property has been in the possession and enjoyment of devi narayanan housing development (p) ltd. (b)respondents made an attempt to trespass into the property and to take possession in the year 1997 which made them to file a suit in o.s.no.6518/1997 before the city civil court, chennai. the civil court was pleased to grant interim injunction originally and the suit itself was decreed exparte subsequently. (c)during the pendency of the licence agreement the first appellant sold the property to them as per registered sale deed dated 29.04.1998. therefore, the property has been in their possession and enjoyment and as such, the respondents are not having any right, title, interest or possession in the said property.the judge's reasoning :-9.the learned single judge was of the view that whatever had happened subsequent to the probate proceedings including the sale in favour of the appellants 2 to 5 cannot change the right of the beneficiary to get the bequeathed property to his name. according to the learned single judge, it would be in the interest of all the parties to maintain status quo till the disposal of the suit as otherwise, it would lead to multiplicity of proceedings. accordingly, the original application filed by the respondents were allowed. the application filed by the appellants in o.a.no.2631 of 2009 for appointment of an advocate commissioner was dismissed. feeling aggrieved, the appellants are before us.the arguments on appeal :-10.the learned senior counsel for the appellants made extensive submissions with respect to the prima facie case and balance of convenience. according to the learned senior counsel, the respondents have no consistent case in the plaint. though originally they claimed exclusive possession of the suit property, the said contention was diluted subsequently by claiming joint possession along with the first appellant. according to the learned senior counsel, the learned single judge has committed material error in observing that the defendants in the suit will have to prove their possession by producing necessary records instead of directing the plaintiffs to prove their possession.11.the learned senior counsel further contended that as per order dated 19.04.2010, this court permitted the appellants to complete the construction of the compound wall and as such, they should be permitted to complete the same. the learned senior counsel also submitted that no further construction would be made in the property during the pendency of the suit and as such, possession of the property by the appellants should be protected by modifying the order of injunction.12.the learned counsel for the respondents contended that the first appellant was having only 1/5 share in the property. however, even the share of the respondents were assigned in favour of appellants 2 to 5 and as such, the purchasers would not get any right in the property. according to the learned counsel, the suit property has been in the possession and enjoyment of the respondents and as such, the learned single judge was right in granting interim injunction. the learned counsel would further submit that the respondents have also no intention to put up construction in the property or to create third party interest during the pendency of the suit and as such, the present position has to be continued till the disposal of the suit. the issues on these appeals :-13.the core issue to be decided in these appeals relates to the claim of possession made by the respondents in the light of the rival claim made by the appellants on the basis of revenue records.the resolution of issues :-14.there is no dispute that the suit property was part of a larger extent of land which was in the possession and enjoyment of r.v.m.surya rao. the said r.v.m.surya rao executed a will dated 15.11.1961 and in the said will, there was a specific mention that the estate is due to his son. the will also contains a stipulation that it was his desire that the executor shall transfer the said house to his son. according to the first appellant, what was given to pradeep rao as per the said will was only the house and not the property. however, the respondents maintain that the entire property having an extent of 50 grounds along with the house known as "indira vihar" was given to their predecessor-in-interest by way of the said will.15.we have considered the documents produced by the parties for the purpose of arriving at a prima facie conclusion about the right claimed by the respondents as well as their claim with respect to possession.16.the will dated 15.11.1961 contains a clear statement that the estate is due to the beneficiary of the will. after saying so, the testator has also stated that it is his desire to transfer the house to his son's name. therefore, the issue regarding the nature of bequest made in favour of pradeep rao and more particularly the question as to whether the property itself was given or it was only the house which alone was given, are matters to be decided during trial. however, without reference to those documents, it may not be possible to record a prima facie finding as to whether there is any merit in the claim made by the respondents.17.the first appellant along with her son pradeep rao, predecessor-in-interest of the respondents and mrs.rau suhasa, daughter of the first appellant, executed an agreement with tmt.chandamma, daughter of r.v.m.surya rao, born through his first wife, for the purpose of settling the issues. in the said agreement, there was a clear recital indicating that under the terms of the will dated 15.11.1961, testator has bequeathed the property viz., the site of an extent of 50 grounds with superstructure at cenatoph road to his minor son r.v.m.pradeep rao. the deed also contains an averment that the agreement was executed by the first appellant as executor and as guardian representing her minor children. there was also a recital that the second party to the agreement on payment of rs.1,50,000/- to her and on transfer of the vacant site of the extent of 12 grounds and 98 sq.ft. in her favour, shall execute and register all such deeds as may be necessary to perfect the title of pradeep rao in respect of "indira vihar" consisting of 50 grounds site and bungalow. these recitals in the agreement read along with the stipulation as contained in the will would give a prima facie idea that the entire property having an extent of 50 grounds along with the bungalow, known as "indira vihar" was given to pradeep rao. it is true that the first appellant has taken a contention in her counter that the said agreement was not acted upon. however, the fact remains that the first appellant was also a party to the said agreement. the issue as to whether it was actually acted upon and under what circumstances it was executed, are all matters to be decided in the suit. however, for the purpose of deciding these interlocutory applications, those averments are material as they give a clear indication that the entire property was given only to pradeep rao.18.the first appellant has also taken up a plea of ouster. admittedly, the first appellant was the executor of the will. she was also acting as the guardian of her minor children including pradeep rao. therefore, possession of the property by the first appellant was for and on behalf of her minor son pradeep rao and as such, she cannot take up the plea of ouster or adverse possession against the true owner. possession was not adverse to the real owner. it was in fact possession on behalf of the real owner. in any case, those contentions are again to be decided only at the time of trial.19.the first appellant along with her son pradeep rao executed a sale deed in favour of m/s.dayachand malhotra and savitri devi malhotra as per document dated 06.10.1972 whereby, an extent of 4 grounds and 813 sq.ft. of land which was part of the original extent of 50 grounds was sold. there is a crucial averment in the said document which reads thus :- "3.whereas the rajkumar of pithapuram left a will dated 15.11.1961 bequeathing the aforesaid property known as "indira vihar" bearing d.no.7, cenotaph road, teynampet, madras 18, to his son r.v.m.pradeep rau, the first vendor herein and directing smt.rau padma, the executrix under the said will, to transfer the said property in favour of his son and as a bequest to him."20.the above referred recital in the sale deed also gives an indication that the property known as "indira vihar" was given to pradeep rao and the first appellant was acting only as the executrix of the will. the second appellant in his capacity as the managing director of m/s.devinarayan housing (p) ltd. entered into an agreement with the first appellant on 29.04.1998 in and by which, he has agreed to purchase the suit property. the said agreement also gives an indication that there was a serious cloud on the title of the first appellant in respect of the suit property. the following recitals as contained in the agreement would make the position more clear. 3.this agreement is subject to the title being decided by the courts and shall take effect only after final orders are passed by the courts. this agreement is also subject to the interim orders passed in i.a.no.9842/1997 dated 14.05.1997 mentioned supra. 4.the parties herein agree that the ultimate sale will be subject to the vendor's share in the property and the total consideration of the sale shall be fixed depending on the vendor's share.7.the purchasers agreed to complete the sale within one year of the title being declared in favour of the vendor. if, however, the title is declared against the vendor, the advance of rs.5 lakhs paid shall be returned without any interest.21.the sale agreement dated 29.04.1998 gives a clear idea that the second appellant was not fully convinced about the title of the first appellant to the property and it was only in such circumstances, nominal amount was given as advance.22.respondents have claimed possession of the suit property under the premise that the property originally belonged to pradeep rao as per the will and subsequently, it devolved on them. it was also their contention that first appellant got 1/5 share in the property and they are entitled to the remaining 4/5 share. the first appellant claims title on the ground that she was a residuary legatee and as such, she was entitled to deal with the property. appellants 2 to 5 purchased the property knowing very well about the dispute. they have also contended that patta was transferred in their name consequent to the transfer of ownership. however, the fact remains that neither the appellant nor the respondents have marked any documents in support of their respective possession of the suit property. the parties have also not adduced any oral evidence in support of their respective claims. therefore, the materials before the learned single judge was only the pleadings. the learned single judge found that the will was probated and as such, the title of pradeep rao over the property cannot be disputed lightly.23.though the parties have not marked documents in support of their respective contentions, we have perused the documents produced in the typed set of papers to arrive at a prima facie conclusion as to whether the respondents have made out a case for granting interlocutory injunction.24.the patta of the property originally stood in the name of the first appellant. admittedly, she was acting in dual capacity being the guardian of pradeep rao as well as executrix of the will. the fact that the patta stood in her name would not make her the title holder of the property. therefore, prima facie, we are of the opinion that the respondents are also having share in the suit property and the property has been in the joint possession and enjoyment of the first appellant as well as the respondents being the legal heirs of the deceased pradeep rao. the legal principles :-25.the right of a purchaser of coparcerner's undivided interest in joint family property was considered by the supreme court in m.v.s. manikayala rao v. m. narasimhaswami [air 1966 sc 470]. the supreme court observed thus :-"now, it is well settled that the purchaser of a coparcerners undivided interest in joint family property is not entitled to possession of what he has purchased. his only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. his right to possession would date from the period when a specific allotment was made in his favour".26.there is no dispute that the subject property is a vacant site. therefore, the question of title assumes importance even to decide the issue regarding possession in view of the settled position that possession follows title.27.in anathula sudhakar v. p. buchi reddy, (2008) 4 scc 594, supreme court observed that in the case of vacant site, the issue of title would substantially arise for consideration, as without a finding on such issues, it would be impossible to decide the issue of possession. the relevant observation reads thus :-16. but what if the property is a vacant site, which is not physically possessed, used or enjoyed? in such cases the principle is that possession follows title. if two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. this means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. in such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction.28.the difference between a suit for injunction simplicitor and other suits where possession has to be established on the basis of title to the property, was indicated in anathula sudhakar's case [cited supra]. the supreme court said :21. (b) as a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. the prayer for injunction will be decided with reference to the finding on possession. but in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.29.in m.gurudas & ors. vs. rasaranjan & ors. [2006(9) scale 275], the supreme court indicated the necessity of considering the plaintiff's share for deciding prima facie case thus :-"31. ... in other words, while making endeavours to find out a prima facie case, the court could take into consideration the extent of plaintiff's share in the property, if any".30.in ramdas v. sitabai and ors. [2009(8) scale 654], the supreme court quoting the earlier decision in m.v.s.mnikayala rao vs. m.narasimhaswami & ors. [(2009) 7 scc 444 = air 1966 sc 470], indicated the nature of right of a co-sharer in respect of an undivided land thus :- 15.without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. reliance in this regard may be placed to a decision of this court in m.v.s. manikayala rao v. m. narasimhaswami [air 1966 sc 470] wherein this court stated as follows: 5. now, it is well settled that the purchaser of a coparceners undivided interest in joint family property is not entitled to possession of what he has purchased. his only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. 16.it may be mentioned herein that the aforesaid findings and the conclusions were recorded by the supreme court by placing reliance upon an earlier judgment of this court in sidheshwar mukherjee v. bhubneshwar prasad narain singh [air 1953 sc 487] wherein this court held as under: 11. all that [vendee] purchased at the execution sale was the undivided interest of the coparceners in the joint property. he did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. he could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour.[emphasis supplied].31.the question of ouster of the non-possessing co-heir by the co-heir in possession was considered by the supreme court in bonder vs.hem singh (dead) by lrs. and others [2009 12 scc 310]. the supreme court following the earlier judgment in p.lakshmi reddy vs. l.lakshmi reddy [air 1957 sc 314], which was again a decision following the privy council in corea v. appuhamy [1912 ac 230(c)], observed thus :- 11.the first appellate court relied upon the decision in p. lakshmi reddy v. l. lakshmi reddy, wherein this court referred to the decision in corea v. appuhamy. in the said case the principle of law has been clearly enunciated. the relevant portion of the said judgment reads as under: 4. it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. the possession of one co-heir is considered, in law, as possession of all the co-heirs. the co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs title. it is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.this principle has been consistently applied by the indian courts."32.in md. mohammad ali v. jagadish kalita, (2004) 1 scc 271, the supreme court considered the legal position regarding adverse possession claimed by a co-owner. the supreme court observed that a co-sharer becomes a constructive trustee of other co-sharer and as such, even a long possession by such parties would not constitute adverse possession. the supreme court observed thus :-19. long and continuous possession by itself, it is trite, would not constitute adverse possession. even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. a co-sharer, as is well settled, becomes a constructive trustee of other co-sharer and the right of the appellant and/or his predecessors-in-interest would, thus, be deemed to be protected by the trustees. 25.possession of a property belonging to several co-sharers by one co-sharer, it is trite, shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that the title of the other co-sharers was denied and disputed.33.in p.lakshmi reddy vs. l.lakshmi reddy [air 1957 sc 314] supreme court held that the possession of one co-heir is considered in law as possession of all the co-heirs. the supreme court held as under:- "but it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. the possession of one co-heir is considered, in law, as possession of all the co-heirs. when one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. the coheir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs title. it is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."34.according to the appellants 2 to 5, they made an application before the statutory authority for issuance of building plan. such a building plan was also issued in their favour and it appears that they have commenced construction in the suit property which was stopped subsequently in view of the objection raised by the respondents. the neighbouring plot owners have filed an application in m.p.no.1/2010 for impleading them in the appeal on the ground that pits taken for basement construction in the suit property is a source of danger to the adjacent building. it was only in such circumstances, the division bench was pleased to permit the appellants 2 to 5 to complete the construction of the compound wall in the property as per order dated 29.04.2010. however, they failed to complete the construction. 35.the learned senior counsel for the petitioner in m.p.no.1/2010 made a request to direct appellants 2 to 5 to complete the work relating to caved/ excavated portion, as according to him, stagnation of water in the excavated portion is a source of danger to the adjoining apartment complex. the learned senior counsel for appellants 2 to 5 submitted that appellants 2 to 5 require some more time to comply with the order passed by this court on 29.04.2010. therefore, we direct appellants 2 to 5 to complete the work of filling up the excavated/caved portion and the construction of compound wall on the side of the apartment complex of the petitioner in m.p.no.1/2010. the work should be completed within a period of two months from the date of receipt of a copy of this order. no other construction should be made in the property either by the appellants or by the respondents, till the disposal of the suit.36.the appellants 2 to 5 being the purchasers of the property from the first appellant would get only her subsisting right in the suit property. documents referred to in the earlier paragraphs of this judgment indicates that the first appellant was having only a fraction of share in the property. therefore, appellants 2 to 5 cannot be permitted to put up construction as per the sanctioned plan during the pendency of the appeal. in fact, it is in the interest of all the parties to maintain status quo as otherwise third party interest would crept in and it would be difficult to divide the property by metes and bounds in the event of passing a decree for partition and separate allotment. therefore, we are of the view that the learned single judge was perfectly correct in his observation that no construction should be made in the property during the pendency of the appeal.37.the next question is as to whether the respondents have made out a case for injunction to preserve their possession. admittedly, the first appellant is a co-owner of the property. therefore, no injunction could be granted against the first appellant. appellants 2 to 5 are subsequent purchasers and they have stepped into the shoes of the first appellant. it is true that the assignee of an undivided share would get his share only after separate allotment on the basis of a decree for partition. however, the fact remains that the appellants 2 to 5, after mutation of records, obtained planning permission. therefore, in view of rival claims, we are of the opinion that the suit property should continue to be in the joint possession of the appellants and respondents during the pendency of the suit.disposition :-38.in the light of the above discussion, we pass the following :-"(i)the suit property will be in the joint possession of the appellants and respondents pending disposal of the suit.(ii)in view of our finding that the parties are in joint possession of the suit property, the interlocutory injunction granted by the learned single judge is set aside.(iii)the interim injunction granted by the learned single judge against putting up construction in the suit property during the pendency of the civil suit is confirmed.39.it is made clear that the observations as contained in this judgment with respect to title and possession were made only to decide the interlocutory applications and as such, the learned single judge is requested to dispose of the suit purely on merits and as per law, without in any way being influenced by such observations.40.the original side appeals are disposed of as indicated above.

Judgment:
1. Introductory :-

These original side appeals are directed against the common order and decretal order dated 26 August 2008 in O.A.Nos.523 and 524/2009 and A.Nos.2962 to 2964 & 2931 of 2009 in C.S.No.438 of 2009 whereby and whereunder, the learned Single Judge granted an order of interlocutory injunction restraining the appellants from interfering with the peaceful possession and enjoyment of the suit property by the respondents, besides restraining them from putting up construction or creating third party interest in the suit property.

Background facts :-

2.Respondents filed a suit in C.S.No.438/2009 before the original side of this Court, against the appellants praying for a decree of partition of the suit property into five shares and to allot four such shares to them and for a decree of declaration to invalidate the sale deed dated 29.05.2006, executed by the first appellant and registered as Document Nos. 630, 631, 632 and 633/2006 in favour of the appellants 2 to 4.

3.In the plaint filed in C.S.No.438/2009, respondents would contend thus:-

(a)The property more fully descried in the schedule was part of a larger extent of land measuring about 50 grounds in R.S.No.3847/121. The suit property is situated at Plot No.6, (previously plot No.6), Cenotaph Road, II land, Teynampet, Chennai, measuring an extent of 4 grounds. The property originally belonged to Mrs.Rau Indira Devi, she having purchased the same as per sale deed dated 17.08.1939. The said Mrs.Rau Indira Devi was the first wife of late R.V.M.Surya Rao, grandfather of respondents 2 to 4. The original owner Mrs.Rau Indira Devi expired in the year 1942 leaving behind her husband R.V.M.Surya Rao and daughter Chinnamamba. R.V.M.Surya Rao had married the first appellant Mrs.Rau Padma in the year 1944. In the said marriage, two children were born to them viz., Mrs.Rao Suhasa and R.V.M.Pradeep Rao. R.V.M.Surya Rao executed a Will dated 15.11.1911 in respect of his property. The first appellant was appointed as the executor of the Will. As per the said Will, 50 grounds of land along with a house known as "Indira Vihar" was bequeathed to R.V.M.Pradeep Rao, husband of the first respondent and father of respondents 2 to 4. Subsequently, R.V.M.Surya Rao died. The first appellant initiated probate proceedings to probate the Will. The daughter of R.V.M.Surya Rao, born through his first wife objected to the grant of probate. The matter was subsequently mediated and as per the settlement, 12 grounds and 98 sq.ft. of land was given to Mrs.Chinnamamba besides a sum of Rs.1,30,000/-. The application for probate was numbered as O.P.No.16/1963 and ultimately probate was also granted.

(b)In view of the Will duly probated as per order in O.P.No.16/1963, Pradeep Rao became the absolute owner of the House known as "Indira Vihar" along with 50 grounds of land. Since Pradeep Rao was a minor, the property was looked after by the first appellant as his mother as well as in her capacity as the executrix of the Will. Later, on attaining majority, Pradeep Rao formed a partnership along with his mother and sister in the year 1981. Subsequently, Pradeep Rao developed a portion of the property by constructing flats. After such construction, only an extent of 4 grounds remained vacant. In the meantime, Pradeep Rao died on 10.01.1988 and as such, his right in the property devolved on the first appellant being the mother and the respondents being his wife and children.

(c)While the matters stood thus, the first appellant sold the suit property in favour of appellants 2 to 5 by way of registered documents dated 29.05.2006. According to the respondents, those sale deeds are sham documents and as such, they are not binding on them. The first appellant has got only 1/5 share in the property and as such, it was not open to her to assign the entire property. In such circumstances, the respondents filed a suit for partition as well as for declaration of nullity in respect of the documents executed by the first appellant in favour of appellants 2 to 5. Interlocutory application :-

4.The respondents filed interlocutory applications in O.A.Nos.523 and 524 of 2009 for an order of injunction to restrain the appellants from creating third party interest in the property. They have also filed O.A.No.524 of 2009 to restrain the appellants from interfering with their peaceful possession and enjoyment of the suit property.

5.The appellants have filed an application in O.A.No.2631/2009 for issuing an Advocate Commission to inspect the suit property and to report about their possession as well as physical features of the property.

The case of the appellants :-

6.The appellants have filed their counter in answer to the contentions raised in the interlocutory application filed by the respondents.

7.The first appellant in her counter affidavit would contend thus :-

(a)The respondents have filed a suit in O.S.No.3338/1997 before the learned II Additional City Civil Court, Chennai and in the said suit, the first appellant filed her written statement denying their title as well as possession. Therefore, the present suit for partition without a prayer for declaration of title was clearly not maintainable; (b)Since the respondents have conceded the fact that the first appellant was also a co-owner, no injunction could be granted against her;

(c)She has been in possession and enjoyment of the property since 1963 as executrix as well as residuary legatee;

(d)The suit property has already been given on licence basis to M/s.Devinarayan Housing Development (P) Ltd. on 30.04.1997. Therefore, the respondents were not justified in praying for an interim injunction to protect their possession.

(e)The entire estate was not given to her son. It was only the house at D.No.7, Cenotaph Road, which alone was given and as such, the respondents were not justified in claiming right over the suit property.

(f)Subsequently, as per sale deed dated 29.05.2006, the property was assigned to the appellants 2 to 5.

8.Appellants 2 to 5 filed a separate counter affidavit wherein they contended thus:-

(a)The first appellant executed a deed of licence on 30.04.1997 and as per the said agreement, the property was given to M/s.Devi Narayanan Housing Development (P) Ltd. for the purpose of storing granite slabs. Accordingly, the property has been in the possession and enjoyment of Devi Narayanan Housing Development (P) Ltd. (b)Respondents made an attempt to trespass into the property and to take possession in the year 1997 which made them to file a suit in O.S.No.6518/1997 before the City Civil Court, Chennai. The Civil Court was pleased to grant interim injunction originally and the suit itself was decreed exparte subsequently. (c)During the pendency of the licence agreement the first appellant sold the property to them as per registered sale deed dated 29.04.1998. Therefore, the property has been in their possession and enjoyment and as such, the respondents are not having any right, title, interest or possession in the said property.

The Judge's reasoning :-

9.The learned Single Judge was of the view that whatever had happened subsequent to the probate proceedings including the sale in favour of the appellants 2 to 5 cannot change the right of the beneficiary to get the bequeathed property to his name. According to the learned Single Judge, it would be in the interest of all the parties to maintain status quo till the disposal of the suit as otherwise, it would lead to multiplicity of proceedings. Accordingly, the original application filed by the respondents were allowed. The application filed by the appellants in O.A.No.2631 of 2009 for appointment of an Advocate Commissioner was dismissed. Feeling aggrieved, the appellants are before us.

The Arguments on Appeal :-

10.The learned Senior Counsel for the appellants made extensive submissions with respect to the prima facie case and balance of convenience. According to the learned Senior Counsel, the respondents have no consistent case in the plaint. Though originally they claimed exclusive possession of the suit property, the said contention was diluted subsequently by claiming joint possession along with the first appellant. According to the learned Senior Counsel, the learned Single Judge has committed material error in observing that the defendants in the suit Will have to prove their possession by producing necessary records instead of directing the plaintiffs to prove their possession.

11.The learned Senior Counsel further contended that as per order dated 19.04.2010, this court permitted the appellants to complete the construction of the compound wall and as such, they should be permitted to complete the same. The learned Senior Counsel also submitted that no further construction would be made in the property during the pendency of the suit and as such, possession of the property by the appellants should be protected by modifying the order of injunction.

12.The learned counsel for the respondents contended that the first appellant was having only 1/5 share in the property. However, even the share of the respondents were assigned in favour of appellants 2 to 5 and as such, the purchasers would not get any right in the property. According to the learned counsel, the suit property has been in the possession and enjoyment of the respondents and as such, the learned Single Judge was right in granting interim injunction. The learned counsel would further submit that the respondents have also no intention to put up construction in the property or to create third party interest during the pendency of the suit and as such, the present position has to be continued till the disposal of the suit. The issues on these appeals :-

13.The core issue to be decided in these appeals relates to the claim of possession made by the respondents in the light of the rival claim made by the appellants on the basis of revenue records.

The resolution of issues :-

14.There is no dispute that the suit property was part of a larger extent of land which was in the possession and enjoyment of R.V.M.Surya Rao. The said R.V.M.Surya Rao executed a Will dated 15.11.1961 and in the said Will, there was a specific mention that the estate is due to his son. The Will also contains a stipulation that it was his desire that the executor shall transfer the said house to his son. According to the first appellant, what was given to Pradeep Rao as per the said Will was only the house and not the property. However, the respondents maintain that the entire property having an extent of 50 grounds along with the house known as "Indira Vihar" was given to their predecessor-in-interest by way of the said Will.

15.We have considered the documents produced by the parties for the purpose of arriving at a prima facie conclusion about the right claimed by the respondents as well as their claim with respect to possession.

16.The Will dated 15.11.1961 contains a clear statement that the estate is due to the beneficiary of the Will. After saying so, the Testator has also stated that it is his desire to transfer the house to his son's name. Therefore, the issue regarding the nature of bequest made in favour of Pradeep Rao and more particularly the question as to whether the property itself was given or it was only the house which alone was given, are matters to be decided during trial. However, without reference to those documents, it may not be possible to record a prima facie finding as to whether there is any merit in the claim made by the respondents.

17.The first appellant along with her son Pradeep Rao, predecessor-in-interest of the respondents and Mrs.Rau Suhasa, daughter of the first appellant, executed an agreement with Tmt.Chandamma, daughter of R.V.M.Surya Rao, born through his first wife, for the purpose of settling the issues. In the said agreement, there was a clear recital indicating that under the terms of the Will dated 15.11.1961, testator has bequeathed the property viz., the site of an extent of 50 grounds with superstructure at Cenatoph Road to his minor son R.V.M.Pradeep Rao. The deed also contains an averment that the agreement was executed by the first appellant as executor and as guardian representing her minor children. There was also a recital that the second party to the agreement on payment of Rs.1,50,000/- to her and on transfer of the vacant site of the extent of 12 grounds and 98 sq.ft. in her favour, shall execute and register all such deeds as may be necessary to perfect the title of Pradeep Rao in respect of "Indira Vihar" consisting of 50 grounds site and Bungalow. These recitals in the agreement read along with the stipulation as contained in the Will would give a prima facie idea that the entire property having an extent of 50 grounds along with the bungalow, known as "Indira Vihar" was given to Pradeep Rao. It is true that the first appellant has taken a contention in her counter that the said agreement was not acted upon. However, the fact remains that the first appellant was also a party to the said agreement. The issue as to whether it was actually acted upon and under what circumstances it was executed, are all matters to be decided in the suit. However, for the purpose of deciding these interlocutory applications, those averments are material as they give a clear indication that the entire property was given only to Pradeep Rao.

18.The first appellant has also taken up a plea of ouster. Admittedly, the first appellant was the executor of the Will. She was also acting as the guardian of her minor children including Pradeep Rao. Therefore, possession of the property by the first appellant was for and on behalf of her minor son Pradeep Rao and as such, she cannot take up the plea of ouster or adverse possession against the true owner. Possession was not adverse to the real owner. It was in fact possession on behalf of the real owner. In any case, those contentions are again to be decided only at the time of trial.

19.The first appellant along with her son Pradeep Rao executed a sale deed in favour of M/s.Dayachand Malhotra and Savitri Devi Malhotra as per document dated 06.10.1972 whereby, an extent of 4 grounds and 813 sq.ft. of land which was part of the original extent of 50 grounds was sold. There is a crucial averment in the said document which reads thus :- "3.WHEREAS the Rajkumar of Pithapuram left a Will dated 15.11.1961 bequeathing the aforesaid property known as "Indira Vihar" bearing D.No.7, Cenotaph Road, Teynampet, Madras 18, to his son R.V.M.Pradeep Rau, the first vendor herein and directing Smt.Rau Padma, the executrix under the said Will, to transfer the said property in favour of his son and as a bequest to him."

20.The above referred recital in the sale deed also gives an indication that the property known as "Indira Vihar" was given to Pradeep Rao and the first appellant was acting only as the executrix of the will. The second appellant in his capacity as the Managing Director of M/s.Devinarayan Housing (P) Ltd. entered into an agreement with the first appellant on 29.04.1998 in and by which, he has agreed to purchase the suit property. The said agreement also gives an indication that there was a serious cloud on the title of the first appellant in respect of the suit property. The following recitals as contained in the agreement would make the position more clear. 3.This agreement is subject to the title being decided by the Courts and shall take effect only after final orders are passed by the Courts. This agreement is also subject to the interim orders passed in I.A.No.9842/1997 dated 14.05.1997 mentioned supra. 4.The parties herein agree that the ultimate sale Will be subject to the vendor's share in the property and the total consideration of the sale shall be fixed depending on the vendor's share.

7.The purchasers agreed to complete the sale within one year of the title being declared in favour of the vendor. If, however, the title is declared against the vendor, the advance of Rs.5 lakhs paid shall be returned without any interest.

21.The sale agreement dated 29.04.1998 gives a clear idea that the second appellant was not fully convinced about the title of the first appellant to the property and it was only in such circumstances, nominal amount was given as advance.

22.Respondents have claimed possession of the suit property under the premise that the property originally belonged to Pradeep Rao as per the Will and subsequently, it devolved on them. It was also their contention that first appellant got 1/5 share in the property and they are entitled to the remaining 4/5 share. The first appellant claims title on the ground that she was a residuary legatee and as such, she was entitled to deal with the property. Appellants 2 to 5 purchased the property knowing very well about the dispute. They have also contended that patta was transferred in their name consequent to the transfer of ownership. However, the fact remains that neither the appellant nor the respondents have marked any documents in support of their respective possession of the suit property. The parties have also not adduced any oral evidence in support of their respective claims. Therefore, the materials before the learned Single Judge was only the pleadings. The learned Single Judge found that the Will was probated and as such, the title of Pradeep Rao over the property cannot be disputed lightly.

23.Though the parties have not marked documents in support of their respective contentions, we have perused the documents produced in the typed set of papers to arrive at a prima facie conclusion as to whether the respondents have made out a case for granting interlocutory injunction.

24.The patta of the property originally stood in the name of the first appellant. Admittedly, she was acting in dual capacity being the guardian of Pradeep Rao As well as executrix of the Will. The fact that the patta stood in her name would not make her the title holder of the property. Therefore, prima facie, we are of the opinion that the respondents are also having share in the suit property and the property has been in the joint possession and enjoyment of the first appellant as well as the respondents being the legal heirs of the deceased Pradeep Rao. The Legal Principles :-

25.The right of a purchaser of coparcerner's undivided interest in joint family property was considered by the Supreme Court in M.V.S. Manikayala Rao v. M. Narasimhaswami [AIR 1966 SC 470]. The Supreme Court observed thus :-

"Now, it is well settled that the purchaser of a coparcerners undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. His right to possession would date from the period when a specific allotment was made in his favour".

26.There is no dispute that the subject property is a vacant site. Therefore, the question of title assumes importance even to decide the issue regarding possession in view of the settled position that possession follows title.

27.In Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594, Supreme Court observed that in the case of vacant site, the issue of title would substantially arise for consideration, as without a finding on such issues, it would be impossible to decide the issue of possession. The relevant observation reads thus :-

16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction.

28.The difference between a suit for injunction simplicitor and other suits where possession has to be established on the basis of title to the property, was indicated in Anathula Sudhakar's case [cited supra]. The Supreme Court said :

21. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

29.In M.Gurudas & Ors. vs. Rasaranjan & Ors. [2006(9) Scale 275], the Supreme Court indicated the necessity of considering the plaintiff's share for deciding prima facie case thus :-

"31. ... In other words, while making endeavours to find out a prima facie case, the Court could take into consideration the extent of plaintiff's share in the property, if any".

30.In Ramdas v. Sitabai and ors. [2009(8) Scale 654], the Supreme Court quoting the earlier decision in M.V.S.Mnikayala Rao vs. M.Narasimhaswami & Ors. [(2009) 7 SCC 444 = AIR 1966 SC 470], indicated the nature of right of a co-sharer in respect of an undivided land thus :- 15.Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. Manikayala Rao v. M. Narasimhaswami [AIR 1966 SC 470] wherein this Court stated as follows: 5. Now, it is well settled that the purchaser of a coparceners undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. 16.It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh [AIR 1953 SC 487] wherein this Court held as under: 11. All that [vendee] purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour.[emphasis supplied].

31.The question of ouster of the non-possessing co-heir by the co-heir in possession was considered by the Supreme Court in Bonder vs.Hem Singh (Dead) by Lrs. And others [2009 12 SCC 310]. The Supreme Court following the earlier judgment in P.Lakshmi Reddy vs. L.Lakshmi Reddy [AIR 1957 SC 314], which was again a decision following the Privy Council in Corea v. Appuhamy [1912 AC 230(C)], observed thus :- 11.The first appellate court relied upon the decision in P. Lakshmi Reddy v. L. Lakshmi Reddy, wherein this Court referred to the decision in Corea v. Appuhamy. In the said case the principle of law has been clearly enunciated. The relevant portion of the said judgment reads as under: 4. it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.This principle has been consistently applied by the Indian courts."

32.In Md. Mohammad Ali v. Jagadish Kalita, (2004) 1 SCC 271, the Supreme Court considered the legal position regarding adverse possession claimed by a co-owner. The Supreme Court observed that a co-sharer becomes a constructive trustee of other co-sharer and as such, even a long possession by such parties would not constitute adverse possession. The Supreme Court observed thus :-

19. Long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. A co-sharer, as is well settled, becomes a constructive trustee of other co-sharer and the right of the appellant and/or his predecessors-in-interest would, thus, be deemed to be protected by the trustees. 25.Possession of a property belonging to several co-sharers by one co-sharer, it is trite, shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that the title of the other co-sharers was denied and disputed.

33.In P.Lakshmi Reddy vs. L.Lakshmi Reddy [AIR 1957 SC 314] Supreme Court held that the possession of one co-heir is considered in law as possession of all the co-heirs. The Supreme Court held as under:- "But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The coheir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."

34.According to the appellants 2 to 5, they made an application before the Statutory authority for issuance of building plan. Such a building plan was also issued in their favour and it appears that they have commenced construction in the suit property which was stopped subsequently in view of the objection raised by the respondents. The neighbouring plot owners have filed an application in M.P.No.1/2010 for impleading them in the appeal on the ground that pits taken for basement construction in the suit property is a source of danger to the adjacent building. It was only in such circumstances, the Division Bench was pleased to permit the appellants 2 to 5 to complete the construction of the compound wall in the property as per order dated 29.04.2010. However, they failed to complete the construction.

35.The learned Senior Counsel for the petitioner in M.P.No.1/2010 made a request to direct appellants 2 to 5 to complete the work relating to caved/ excavated portion, as according to him, stagnation of water in the excavated portion is a source of danger to the adjoining apartment complex. The learned Senior Counsel for appellants 2 to 5 submitted that appellants 2 to 5 require some more time to comply with the order passed by this Court on 29.04.2010. Therefore, we direct appellants 2 to 5 to complete the work of filling up the excavated/caved portion and the construction of compound wall on the side of the apartment complex of the petitioner in M.P.No.1/2010. The work should be completed within a period of two months from the date of receipt of a copy of this Order. No other construction should be made in the property either by the appellants or by the respondents, till the disposal of the suit.

36.The appellants 2 to 5 being the purchasers of the property from the first appellant would get only her subsisting right in the suit property. Documents referred to in the earlier paragraphs of this Judgment indicates that the first appellant was having only a fraction of share in the property. Therefore, appellants 2 to 5 cannot be permitted to put up construction as per the sanctioned plan during the pendency of the appeal. In fact, it is in the interest of all the parties to maintain status quo as otherwise third party interest would crept in and it would be difficult to divide the property by metes and bounds in the event of passing a decree for partition and separate allotment. Therefore, we are of the view that the learned Single Judge was perfectly correct in his observation that no construction should be made in the property during the pendency of the appeal.

37.The next question is as to whether the respondents have made out a case for injunction to preserve their possession. Admittedly, the first appellant is a co-owner of the property. Therefore, no injunction could be granted against the first appellant. Appellants 2 to 5 are subsequent purchasers and they have stepped into the shoes of the first appellant. It is true that the assignee of an undivided share would get his share only after separate allotment on the basis of a decree for partition. However, the fact remains that the appellants 2 to 5, after mutation of records, obtained planning permission. Therefore, in view of rival claims, we are of the opinion that the suit property should continue to be in the joint possession of the appellants and respondents during the pendency of the suit.

Disposition :-

38.In the light of the above discussion, we pass the following :-

"(i)The suit property will be in the joint possession of the appellants and respondents pending disposal of the suit.

(ii)In view of our finding that the parties are in joint possession of the suit property, the interlocutory injunction granted by the learned Single Judge is set aside.

(iii)The interim injunction granted by the learned Single Judge against putting up construction in the suit property during the pendency of the civil suit is confirmed.

39.It is made clear that the observations as contained in this judgment with respect to title and possession were made only to decide the interlocutory applications and as such, the learned Single Judge is requested to dispose of the suit purely on merits and as per law, without in any way being influenced by such observations.

40.The Original Side Appeals are disposed of as indicated above.