IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A No.698 of 2011 Dated:08-12-2011 Between: Valiveti Rama Rao and others. ….Appellants. And Valiveti Madhava Rao and others. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.ANo.698 of 2011 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is directed against the Order and decreetal Order passed in I.A.No.1021 of 2010 in O.S.No.146 of 2010 by the III Additional District Judge (Fast Track Court), Ongole on 02.05.2011. The appellants herein are the respondent Nos.2, 4 to 8. The 1st respondent herein has filed the said petition under Order 39 Rules 1 and 2 and Section 151 CPC for grant of temporary injunction restraining the respondents from making any further alienations/changes in respect of the suit schedule properties in any form till the disposal of the main suit. The parties in the appeal are being referred to as mentioned in the petition before the lower Court. According to the petitioner, himself and respondent Nos.2 to 4 are the sons of 1st respondent and all of them constituted as Hindu undivided joint family under the management of 1st respondent, who is acting as Kartha of their joint family. Though they belong to Vysya community, they also did cultivation of land and with the income derived from joint family including cultivation, 1st respondent used to purchase lands and house properties, which are shown in the plaint schedule. As plaint A and B schedule properties have been acquired with joint family funds including the income derived from family agriculture, the respondent Nos.1 to 4 are in constructive possession and enjoyment of said properties having 1/5th joint share each therein. As the disputes arose among the womenfolk of joint family, the mother of the petitioner and wives of 2nd defendant and 4th defendant acting as one group threatening the other womenfolk including the wife of the petitioner stating how could they would get share in joint family properties. Petitioner and 3rd respondent approached the 1st respondent asking for partition of joint family properties in the year 1998, thereupon, 1st respondent interfered and pacified the matter and requested to protect the family reputation and its integrity during his lifetime. The 1st respondent executed an assurance letter dated 07.10.1998 to the petitioner and 3rd respondent giving assurance to them that they are also equally entitled to a share in the suit schedule properties, similarly 2nd respondent and 4th respondent also executed separate individual assurance letters dated.12.11.1998 and 14.11.1998 addressing the petitioner and 3rd respondent giving same assurance to them. In the month of April, 2010 the 2nd respondent, 4th respondent and their wives secretly forcing old aged father-1st respondent to execute some false documents detrimentally to the right and interest of the petitioner with an intention to knock away the entire suit schedule properties. On enquiry, he came to know that already large extent of family funds had been swallowed at the back of 1st respondent to cause loss and damage to the rights and interest of petitioner and in that process item No.4 of B schedule was kept in the name of Valiveti Satyavani secretly and they have moulded 3rd respondent into their hands and all of them are attempting to alienate further without dividing the schedule properties physically in order to create complicated problems. Petitioner demanded the 1st respondent and other respondents for amicable partition of suit schedule properties, 1st respondent expressed his inability and all other respondents except 1st respondent attempting to shift/withdraw the movable assets of plaint B schedule properties to screen away the same. Hence, he was constrained to file the suit for partition of joint family properties and for temporary injunction restraining the respondents from alienating the suit schedule properties pending disposal of the suit. Common counter was filed on behalf of respondent Nos.1,3,4 and 7 and another common counter filed on behalf of respondent Nos.2,5,6 and 8 admitting the relationship among the parties and also the fact of constituting themselves as members of joint family and 1st respondent being the kartha of said joint family, but opposed the claim of the petitioner for partition. According to them as differences arose among joint family members during the year 1997, all of them decided to partition the family lands and business transactions. Accordingly, in the month of June and July, the petitioner and respondent Nos.1 to 4 effected division of properties that they owned and possessed and taken possession of respective items fell to their shares and the same was reduced into writing on a stamped paper, which was scribed by Kolluri Ramarao Chowdary and attested by Bodavula Subba Rao and Kotapati Bhaskara Rao on 05.07.1997 and Photostat copies of said documents were given to the petitioner, respondent Nos.2 to 4 and the original was kept with the 1st respondent. The petitioner and respondent Nos.1 to 4 having accepted the contents therein subscribed their signatures in token of their acknowledgment. As per the said document, properties listed as A schedule fell to the share of 1st respondent and the properties fell to the share of petitioner, respondent Nos.2 to 4 are shown as B to E schedule respectively. Ever since the date of partition, the petitioner and respondents have been living separately and enjoying their items of respective properties separately. Hence, the present petition is not maintainable. During the course of enquiry, on behalf of the petitioner, Exs.P.1 to P.9 were marked. On behalf of the respondents, Ex.R.1 to R.35 were marked. The lower Court has recorded the submissions made by the respondents and their counsels before it during the course of enquiry as under: “The learned counsel appearing for respondents has submitted that in view of ad-interim injunction restraining the respondents from alienating the plaint schedule properties, petitioner/plaintiff approached the bank authorities with that order asking them not to renew the loans advanced on mortgage of said properties by deposit of title deeds and thereby caused hurdle in transacting the business and in the absence of renewal of loan plaint schedule business concerns are to be closed. The counsel appearing for respondents have submitted that the respondents will undertake not to sell any of the landed properties, house properties and requested this Court to permit them to renew the bank loans obtained under equitable mortgage so as to run the plaint schedule business concerns, when enquired the petitioner in the presence of his counsel, he stated that in case respondents are permitted to take bank loans, they would show loss in the business, thereby affecting his share in the plaint schedule properties. Respondent Nos.2 to 4 have submitted in the presence of their respective counsel before this Court at the time of hearing this interlocutory application that they are prepared to bear the loss, if any, and prayed to allow them to renew the bank loans obtained by equitable mortgage of some of the suit schedule items by deposit of title deeds.” The lower Court by taking into consideration of the submissions of the respondents’ counsels modified the ad-interim injunction granted on 28.12.2010 by permitting the respondents to renew bank loans relating to plaint B schedule business concerns not exceeding the value of the share of respective parties in the suit schedule items on further condition that the petitioner is not liable to bear the loss, if any, shown in those business concerns and the said interim order with such modification made absolute directing the petitioner and respondents to get ready with the trial of the suit. Respondents are directed to file profit and loss account statements by giving copy to the petitioner before the Court in respect of plaint B schedule business concerns at the end of every financial year till the disposal of the suit. Aggrieved by the said Order, the respondent Nos.2, 4 to 8 have filed the present appeal. Appellants’ counsel has pleaded that the joint family properties are partitioned between the petitioner and respondents on 05.07.1997 and they are enjoying their respective share separately since then, as such the suit itself is not maintainable and the present application for interim injunction is liable to be dismissed. The next contention of the appellants’ counsel is that when the 2nd respondent had given undertaking to the Court to the effect that they may be permitted to renew their loans by mortgaging the properties to the banks and the petitioner is not liable for the business losses if any and both parties agreed to the same, the lower Court has passed the Order permitting the respondents/appellants to renew the loans by mortgaging the schedule – B properties not exceeding the value of the share of the respective parties. He further pleaded that by imposing such condition the banks are not agreeing for renewal of their loans by mortgaging property limiting the liability to the respective shares only. Therefore, such condition is liable to be deleted from the Order passed by the lower Court. The 1st respondent/petitioner’s counsel on the other hand has pleaded that if they are permitted to mortgage the properties without such condition, the petitioner will be put to loss and he may not be able to recover his 1/5th share in the said properties. There is no dispute between the parties that the suit schedule properties are joint family properties. According to the appellants/ respondents the partition was already affected on 05.07.1997 and they are in enjoyment of their respective shares, but the same is denied by the 1st respondent/ petitioner. The appellants/respondents have relied upon the Ex.R.27, a document evidencing the partition of the joint family properties and allotment of specified items therein to the members of joint family. The lower Court has examined the admissibility of the said document and held that the said document is liable for deficient stamp duty and penalty and the correctness of the said document cannot be decided at the interlocutory stage. On the other hand, the petitioner has relied upon Exs.P.1 to P.4, P.8 and P.9, which are assurance letters said to have been executed by 1st respondent and respondent Nos.2 to 4, but the respondents denied the said documents and pleading that they are forged and fabricated documents and the same has to be decided during the course of trial after adducing necessary evidence in that regard. Therefore, the contention of the appellants/respondents’ counsel that the suit and present petition are not maintainable in view of prior partition on 05.07.1997 cannot be accepted at this stage. With regard to deleting the condition imposed by the lower Court “not exceeding the value of the share of respective parties” in the impugned Order, the appellants’ counsel has pleaded that by imposing such condition the banks are not willing to renew the loans granted to them, thereby they will be compelled to closedown the business and when they given undertaking not to sell any of the landed properties, house properties and when they specifically undertake to bear the losses, if any, incurred in the business, no harm is going to be caused to the petitioner by deleting such condition. The respondents’ counsel on the other hand has pleaded that if such condition is deleted, the entire properties will be mortgaged for obtaining loans and thereby his share in the said property will be deprived of and it will not be possible for him to recover his share. Respondent Nos. 2 to 4 in the presence of their counsels, during the course of arguments, before the lower Court have agreed that they are not going to sell any of the landed properties or house properties and requested the Court to permit them to renew the bank loans obtained under equitable mortgage so as to run the plaint schedule business concerns. They also agreed to bear the losses, if any, sustained in the said business. The appellants are only seeking for renewal of the loans obtained equitable mortgage for the purpose of running the business and as the appellants have specifically agreed that they will bear the losses, if any, sustained in the said business the interest of the petitioner/ 1st respondent is well protected by permitting them to renew the loans. Simply because the appellants are permitted to renew the loans obtained under equitable mortgages, it cannot be said that the petitioner’s rights will be deprived of in getting his share since there are number of properties, which are liable to be partitioned if the petitioner succeeds in the suit. Therefore, no loss is going to be caused to the petitioner, but on the other hand, by imposing such condition the appellants have to closedown their businesses as the Banks are not willing to renew their loans. Therefore, in the above circumstances, the appellants are entitled for deletion of the condition “not exceeding the value of the share of respective parties in the suit schedule items.” In the result, the appeal is partly allowed only to the extent of deleting the words “not exceeding the value of the share of respective parties in the suit schedule items” from the impugned Order and the rest of the impugned Order is confirmed. No costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:08-12-2011 Ksp