IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE SRI.S.S.SATHEESACHANDRAN MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 SA.No. 464 of 1996() -------------------- (AS.82/1990 of SUB COURT, OTTAPPALAM OS.93/1988 of MUNI-MAGI.COURT,MANNARKAD) .................... APPELLANTS/APPELLANTS AND RESPONDENTS 5 & 6 / DEFENDANTS): ----------------------------------------------------------------------------------------------------- 1. JANAKI AMMA, W/O.PULIMALA PUTHENVEETTIL KUNHUNNI NAIR, RESIDING AT KADUKKASSERRI AMSOM AND DESOM IN OTTAPPALAM TALUK. 2. HARIDASAN, S/O.JANAKI AMMA, DO. 3. RAMANUNNI,, S/O.JANAKI AMMA, DO. 4. SARASWATHI, D/O. JANAKI AMMA, DO. 5. SAHADEVAN, S/O.JANAKI AMMA, DO. 6. BALAKRISHNA, S/O.JANAKI AMMA, KALLADIKODE AMSOM & DESOM, MANNARGHAT TALUK. ( DIED) 7. JAYARAJAN, S/O.JANAKI AMMA, DO. 8. RAMAKRISHNAN NAIR, S/O.LAKSHMI AMMA, DO. ADDL. APPELLANTS 9 & 10 IMPLEADED --------------------------------------------------------- ADDL. 9TH APPELLANT. GEETHA, D/O.LATE BALAKRISHNAN, KALLADIKODE AMSOM & DESOM, MANNARGHAT TALUK. ADDL. 10TH APPELLANT. LATHA, D/O.BALAKRISHNAN, DO. DO. ADDL. APPELLANT 9 & 10 ARE IMPLEADED AS LR'S OF DECEASED 6TH APPELLANT AS PER ORDER DATED 8.08.09 ON IA.1965/09. BY ADVS. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SRI.M.KRISHNAKUMAR SMT.PRABHA R.MENON SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SA.No. 464 of 1996() ------------------------------- RESPONDENTS/RESPONDENTS 1 TO 4/PLAINTIFFS: ---------------------------------------------------------------------------- 1. PADMINI AMMA, W/O.M.K.CHANDRASHEKARAN, UDARAMPOYIL, KALIKAVE AMSOM & DESOM, MALAPPURAM. 2. SIVASANKARAN, S/O.NANI AMMA, THELPARA, ACHARAMBALAM. 3. KUNHILAKSHMI AMMA, W/O.GOPALAKRISHNAN NAIR, KONGAD AMSOM, CHERAYA DESOM. 4. GOPALAKRISHNAN, S/O.NANI AMMA, PULIMALA PUTHEN VEETTIL, KALLADIKKODE AMSOM AND DESOM IN MANNARGHAT TALUK. (DIED) ADDL.R5 TO 8 IMPLEADED ----------------------------------------- 5. AMBILY W/O.LATE GOPALAKRISHNAN, PULIMALA HOUSE, P.O. KALLIDIKODE, MANNARGHAT TALUK, PALAKKAD DISTRICT. 6. ANEESH, AGED 23, S/O.LATE GOPALAKRISHNAN, R/AT – DO. 7. GIRISH, AGED 21, S/O. LATE GOPALAKRISHNAN, R/AT DO. 8. AISWARYA, AGED 18, D/O. LATE GOPALAKRISHNAN, R/AT DO. ADDL.R5 TO R8 ARE IMPLEADED AS LR'S OF DECEASED 4TH RESPONDENT AS PER ORDER DT. 12.10.10 IN IA.1963/09. R1 TO 4 BY ADV. SRI.ANIL SIVARAMAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29.11.2010 , THE COURT ON 29/11/2010 DELIVERED THE FOLLOWING: VK S.S.SATHEESACHANDRAN, J. ----------------------------------------- S.A NO. 464 OF 1996 ---------------------------------------- Dated this the 29th day of November, 2010. JUDGMENT The defendants in O.S.No.93 of 1988 on the file of Munsiff Magistrate Of Mannartghat are the appellants. Suit is one for declaration and permanent prohibitory injunction. Concurrent decision rendered by the courts below allowing the plaintiffs a decree of injunction, that alone, negativing the other reliefs canvassed, restraining the defendants from interfering with their possession and enjoyment over the suit property, is impeached in this appeal. 2. The disputes canvassed in the present appeal lies within the narrow compass. Before adverting to the question emerging for consideration it may be appropriate to state the facts in a nutshell. Plaintiffs in the suit are the children of one Nani Amma to whom the suit property comprising a building was alloted as her share in the partition effected among the members of the family under Ext.A1 partition deed. Over the building situate in the property some conditions were imposed in the partition deed, by which she was bound to pay Rs.2,000/- each as part of the owelty to her three brothers within a period of 1½ years from Ext.A1 partition deed. A charge was also created over the S.A NO. 464 OF 1996 2 building in respect of the owelty amount fixed as payable to the brothers. Yet another condition was also imposed that if payment of the owelty as fixed is not paid after the expiry of the period of 1½ years then the brothers would also become co-owners of the building. The defendants in the suit are the two brothers and the widow and children of the other brother, who had already passed away. Suit was filed for a declaration that no charge subsisted over the suit property and for a perpetual prohibitory injunction to restrain the defendants from interfering with their possession and enjoyment over the property. The defendants resisted the suit claim contending that they have become co-owners of the house situated in the plaint schedule property on default of payment of owelty amount within the time fixed under Ext.A1 deed. So much so, according to the defendants, the declaration and also injunction applied for cannot be granted. 3. On the materials placed which consisted of PW1 and A1 to A6 for the plaintiffs and DW1 for the defendants, the trial court concluded that as the period barring the right of the defendants to claim the owelty amount, on the date of institution, having not been expired, plaintiffs are not entitled to the declaration canvassed in the suit. However, their claim for injunction as S.A NO. 464 OF 1996 3 against the defendants was allowed as it was found that the Clause incorporated in Ext.A1 partition deed that on default in payment of owelty, the brothers of Nani Amma would become co- owners of the property cannot be recognized under law as it is repugnant to the title already vested in favour of Nani Amma over the house but, subject to the charge created for payment of the owelty. Defendants alone impeached the correctness of the decision rendered by the trial court to the extent they were aggrieved by the decree of permanent perpetual injunction granted in favour of the plaintiff. The lower appellate court after re-appreciating the materials concurring with the finding rendered by the trial court upheld the decree of injunction granted to the plaintiffs. Feeling aggrieved the defendants have preferred this appeal. 4. The short question raised for consideration is whether both the courts below erred in granting a decree of injunction to the plaintiffs where the main relief canvassed in their suit for declaration has been found against and negatived. The learned counsel for the appellants urged before me that when the plaintiffs were found ineligible to have the declaration sought for, then, the necessary consequence must follow that they are S.A NO. 464 OF 1996 4 incompetent to claim a decree of injunction against the defendants. Perusing the records of the case including judgments rendered by the courts below, I finds no merit in the submission made by the learned counsel. The decree of injunction was claimed in the suit not as a consequential relief to the declaration canvased for. May be on the date of suit the right of the defendants to enforce the charge for claiming the owelty payable to them in respect of the building situated in the property continued to be available. It is also noticed that in fact they had preferred another suit much earlier, for partition, presumably for enforcing the second Clause under Ext.A1 partition deed when payment of the owelty was not effected within the period fixed. The learned counsel for the appellants is unable to say the fate of the suit for partition so filed by the defendants. Whatever be the stage of that suit for partition, even assuming it is pending, it goes without saying that the decision rendered in the present suit that the term incorporated in Ext.A1 which enable the brothers to claim status of co-owners over the house on default of the payment of owelty can no longer survive for consideration as the issue relating to the same decided in the present case would constitute res judicata barring them in prosecuting such claim. S.A NO. 464 OF 1996 5 Now the only question remaining for consideration is whether those persons, the brothers or their successors in interest, (the defendants herein) could enforce the owelty fixed and payable to them under Ext.A1 partition deed. Though as on the date of such claim was not barred, till date as that claim had not been raised it has become barred. This court cannot be oblivious as to what transpired during the pendency of the suit in moulding the reliefs, which otherwise would result in passing of inconsistent decrees. The claim of the defendants to enforce the charge has now become barred is also a matter to be taken note of to conclude that the decree of injunction granted in favour of the plaintiff as against the defendants by the trial courts concurrently does not warrant interference at all. Even otherwise also, on the facts involved in the case, assuming that the charge is still enforcible for the reason that any claim made thereby by the defendants is still pending consideration before the court, still, the entitlement of the plaintiff to sustain the decree of injunction applied for against the defendants need not be doubted. Plaintiff need only show their apprehension with their legal right to seek the decree of injunction against another when there is a threat or invasion to such legal right to claim that equitable relief from the S.A NO. 464 OF 1996 6 court. On the facts presented in the case where the defendants admittedly had instituted a suit for partition claiming that they are co-owners of the property relying on the clause referred to above in Ext.A1 partition deed, which has been found to be not legally unsustainable, the apprehension raised by the plaintiff for the discretionary relief of injunction establishing their title over the suit property, is sufficient to grant that relief. The decree so granted by the trial court and confirmed by the appellate court is proper and correct. There is no merit in the appeal and it is dismissed directing both sides to suffer their costs. Sd/- S.S.SATHEESACHANDRAN, JUDGE. Mns //true copy// P.A. To Judge