IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28.04.2010 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.No.792 of 2009 S.Venkatesh Babu ...Appellant/Defendant Vs. Ms.Swetha ...Respondent/Plaintiff Second appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree of the I Additional City Civil Court, Madras dated 12.02.2009 made in A.S.No.504 of 2007 reversing the judgment and decree of the VI Assistant City Civil Court dated 07.06.2007 made in O.S.No.1385 of 2006. For Appellant : Mr.T.Viswanatha Rao For Respondent : Mr.M.S.Mani J U D G M E N T The defendant in the original suit is the appellant in the second appeal. The appellant in the second appeal is none other than the father of the respondent Swetha. While the respondent was a minor, her maternal grandmother Ponnarasi filed the suit O.S.No.1385/2006 on behalf of Swetha against the appellant herein not to disturb the peaceful possession and enjoyment of the suit property. After trial, the trial court dismissed the suit without cost. As against the judgment and decree dated.07.06.2007 of the trial court dismissing O.S.No.1385/2006, the respondent herein/plaintiff herself filed an appeal in A.S.No.504/2007 on the file of the City Civil Court at Chennai, since by then she had attained majority. The said appeal came to be disposed of by a judgment and decree dated 12.02.2009 by the learned I Additional Judge, City Civil Court, Chennai. The learned I Additional Judge, City Civil Court, Chennai reversed the judgment of the trial court, set aside the decree passed by the trial court and decreed the suit as prayed for without passing any specific order regarding cost. 2. Aggrieved by and challenging the judgment and decree of the lower appellate judge dated 12.02.2009, the appellant herein/defendant has come forward with the present second appeal on https://hcservices.ecourts.gov.in/hcservices/ various grounds set out in the memorandum of grounds of second appeal. 3. The second appeal was admitted on 12.08.2009 citing the following questions as the substantial questions of law involved in it:- a) Whether the Court below is correct in granting injunction in respect of possession and enjoyment of the property against the appellant when he is the co-owner and entitled to ½ share along with the respondent? b) Whether the Court below is correct in granting a decree against the appellant merely on the ground that the respondent was not collecting the rent and maintaining the daughter of the appellant? 4. Subsequently, the matter came to be wrongly listed under the caption "Notice of Motion". On 15.02.2010, noticing the fact that the appeal had already been admitted and wrongly listed under the caption "Notice of Motion", this court directed the Registry to call for the records from the courts below and list the second appeal itself for final hearing on 15.03.2010. Thus, the records of the courts below were sent for, received in this court and after the receipt of the records, the matter came to be listed for final disposal and this court heard the arguments advanced on either side, kept it under its consideration till this date and pronounces the following judgment. 5. The admitted facts are as follows:- i) Respondent (Swetha) is the only daughter of the appellant Venkatesh Babu. T.L.Lalitha, the wife of the appellant/mother of the respondent/plaintiff died intestate on 09.07.2005. The land comprised in R.S.Nos.87/2, 87/3 and 87/6 (six grounds i.e. Equivalent to 14,400 sq.ft.) belonged to T.L.Lakshmana Bupathy, the father of Lalitha. Under a joint venture agreement with M/s.Anubhav Associates, a residential complex named "Ambrosia Apartments" was constructed by M/s.Anubhav Associates (developers). Out of the total number of flats, T.L.Lakshmana Bupathy got six flats together with 10/18th share in the land and sold and conveyed the balance 8/18th share to the nominees of the developers. Thus, all the six flats and the 10/18th undivided share in the land belonged to T.L.Lakshmana Bupathy. The said Lakshmana Bupathy died intestate on 27.09.2007 leaving behind him his wife Ponnarasi, sons Sukumar, Suresh, Ramesh and daughters Shyamala, Lalitha, Shobana. All the seven legal heirs of Lakshmana Bupathy effected a partition of his estate by way of registered Partition Deed dated 20.05.2005 registered on the file of Sub-Registrar, Thousand Lights, Chennai as document No.557/2005. In the said partition, T.L.Lalitha, the wife of the appellant herein and the mother of respondent herein was allotted the flat bearing No.2 on the third floor of "Ambrosia https://hcservices.ecourts.gov.in/hcservices/ Apartments" measuring 1900 sq.ft. with the corresponding 5/54th undivided share in the land over which the residential apartment stands. The same is the subject matter of the suit. ii) The marriage of the appellant with the said Lalitha was a love marriage and out of the wedlock, the respondent was born as their only daughter. In the year 2001, due to some misunderstanding between the couple, Lalitha filed a divorce petition on the file of the I Additional Family Court, Chennai in O.P.No.1306/2001, but, subsequently, left the petition to be dismissed for default on 17.06.2002. The above said partition was effected about three years subsequent to the dismissal of the divorce O.P. Thereafter, till her death on 09.07.2005, the suit property, namely the said flat No.2 on the third floor of "Ambrosia Apartments" remained the absolute property of Lalitha. All the above said facts are admitted and not disputed. iii) Contending that the appellant herein/defendant did not properly maintain his wife (Lalitha) and child (the respondent herein) and left them to be in the care and custody of Ponnarasi, the mother of Lalitha; that on the death of Lalitha under Section 15(2)(a) of Hindu Succession Act, 1956, the property devolved upon the daughter (the respondent herein) alone; that the appellant did not get any share in the property left by Lalitha and that the appellant being the natural guardian of the respondent, tried to interfere with the respondent's possession and enjoyment of the suit property and even attempted to sell the same, the suit was filed by Ponnarasi, the maternal grandmother of the respondent on behalf of the respondent for a perpetual injunction restraining the appellant herein from interfering with the plaintiff's peaceful possession and enjoyment of the suit property and from alienating, transferring or encumbering the suit property. iv) The suit was contested by the appellant herein on the ground that the appellant/defendant, as a legal heir of Lalitha became entitled to a common half share in the suit property and that hence the suit for injunction against a co-owner by another co-owner cannot be decreed. It was contended further by the appellant/defendant that even during the life time of Lalitha, the property was not in her direct possession and the same had been let out to a tenant; that the divorce OP was left to be dismissed for default, as there was a conciliation and re-union; that after the death of Lalitha, both the appellant and respondent became co- owners; that the maternal grandmother of the respondent was not competent to file a suit on behalf of the respondent (who was then minor) against the father and lawful guardian, namely the appellant, without the leave of the court and that in any event the appellant could not be excluded from the enjoyment of the suit property or exercise of his right as a co-owner. 6. Based on the above said pleadings, the learned trial judge framed two issues as https://hcservices.ecourts.gov.in/hcservices/ (1)whether the plaintiff is entitled to the permanent injunction as prayed for? and (2)to what relief? In the trial, Ponnarasi, the maternal grandmother of the plaintiff/the respondent herein was examined as the sole witness (P.W.1) and Exs.A1 to A5 were marked on the side of the plaintiff. The appellant/defendant figured as the sole witness (D.W.1) on his side and Exs.B1 to B8 were marked on his side. The learned VI Assistant Judge, City Civil Court, Chennai (trial judge) on a consideration of evidence adduced and after hearing the arguments advanced on either side came to the conclusion that the appellant herein/defendant and the respondent herein/plaintiff were entitled to equal moieties in the suit property and thus they were the co- owners and that the suit by one co-owner against the another co- owner for injunction could not be allowed. The learned trial judge also made an observation that the appellant/defendant being the natural guardian, the suit filed by P.W.1, the maternal grandmother, without the leave of the court, was bad in law. The trial court also observed that, as the plaintiff was then a minor, there was no possibility of the defendant encumbering the property of the plaintiff without the permission of the court. Based on the said reasonings the trial court dismissed the suit without cost. 7. However, the learned I Additional Judge, City Civil Court, Chennai (lower appellate judge), on an appeal preferred against the decree of the trial court in A.S.No.504/2007, without considering the issue as to whether a suit for injunction can be maintained against a co-owner, chose to reverse the judgment of the trial court, set aside the decree of the trial court and decreed the suit as prayed for holding that even during the life time of Lalitha, Lalitha and the respondent herein/plaintiff were deserted by the appellant/defendant. The suit property was in the possession and enjoyment of Lalitha and her daughter, namely the respondent herein during the life time of Lalitha; that after the death of Lalitha, the property continued to be in the exclusive possession and enjoyment of the respondent and her next friend, namely P.W.1; that the appellant/defendant could only initiate legal proceedings for partition and that since the appellant/defendant had omitted to fulfill his obligations towards his wife and minor daughter and since he was not in possession and enjoyment of the suit property at any point of time, the respondent/plaintiff was entitled to the relief of injunction as prayed for. 8. Questioning the correctness of the said decision and challenging the decree of the learned lower appellate judge, the present second appeal has been preferred. 9. The learned lower appellate judge has proceeded on the basis that the appellant/defendant was never in actual or constructive possession of the suit property and that it was under the exclusive possession of the respondent/plaintiff and on the said basis alone, the learned lower appellate judge has chosen to https://hcservices.ecourts.gov.in/hcservices/ reverse the judgment of the trial court and decreed the suit as prayed for. It is an accepted principle of law that one co-owner cannot be granted an injunction against the other co-owner in respect of the enjoyment of the common property unless the other co-owner happens to be a stranger to the family. In this case, the appellant herein/defendant cannot be said to be a stranger to the family. In the very same manner in which the respondent/plaintiff became entitled to inherit the property of her mother, the appellant/defendant has inherited the same, as a legal heir of his wife. Whatever be the reason for leaving the divorce OP filed by Lalitha to be dismissed for default, the fact remains that the matrimonial relationship of the husband and wife i.e., the appellant/defendant and Lalitha continued till the death of Lalitha. Therefore, in the absence of any testament left by Lalitha or any statutory provision making the appellant/defendant not a legal heir of his wife Lalitha or disqualifying him from inheriting the properties of his wife Lalitha, he shall be one of the legal heirs along with his daughter in respect of the suit properties left by Lalitha. 10. It is the case of the respondent/plaintiff that since the appellant/defendant had left the family and deserted his wife and child even during the life time of Lalitha and the plaintiff and her mother Lalitha lived separately under the care of the plaintiff's maternal grandmother Ponnarasi (P.W.1), it should be construed that the appellant/defendant was out of possession in respect of the suit property and that the respondent/plaintiff, who continued to be in possession after the death of her mother shall be entitled to get the relief of injunction against her father, namely the appellant/defendant. Factually, the above said ground alleged by the respondent/plaintiff is unsustainable. Except the ipse dixit of P.W.1, no other evidence, either oral or documentary, has been produced on the side of the respondent/plaintiff to show that Lalitha and her husband, namely the appellant/defendant were living separately. All the documents produced by the plaintiff except Ex.A1. came into existence after the death of Lalitha. 11. Ex.A1 is the receipt issued by the police on 22.06.2005 for the complaint given by P.W.1 against the appellant/defendant to the effect that he was quarreling with his wife daily under the influence of alcohol. No copy of the complaint has been produced. The receipt also shows that no criminal case was registered based on the complaint and the complaint of P.W.1 was treated as a petition. What happened to the enquiry in the petition? what was the result of the enquiry? - has not been stated by the plaintiff. From the said receipt it can be inferred that, as on the date of such complaint, the appellant/defendant and his wife Lalitha were living together and that is why the occasion for P.W.1 to give such a complaint arose. Ex.A2 is the discharge intimation to show that Lalitha had been admitted in Apollo Hospitals on 29.06.2005 and discharged on 09.07.2005. How and in what condition she was discharged, is not found in Ex.A2. On the other hand, it is obvious from Exs.A3 and A4 that Lalitha died at 6.00 a.m on 09.07.2005 at Apollo Hospitals and https://hcservices.ecourts.gov.in/hcservices/ her body was cremated on the same day. Ex.A5 has been produced as the complaint given by the plaintiff against the defendant. In the said complaint itself it has been stated that because of the drinking habit of the appellant, his wife Lalitha sustained mental depression, which ultimately led to her death on 09.07.2005 after a brief treatment in the Apollo Hospitals. It has also been stated that as on the date of the said complaint she was living with P.W.1 at No.63, Aspiran Garden Second street, Kilpauk, Chennai-10. It has also been stated in the said complaint that all her belongings had been kept in the house wherein she and her mother were residing during the life time of her mother; that the said house had been locked by the appellant/defendant and that the police should help her to open the lock to enable her to take her things and to give her protection to live with her maternal grandmother. The relevant portion in the vernacular language is extracted here under. "ehd; xnu kfs; vd;gjhy; jw;rkak; vdJ ghl;o tPlhd No.63. M!;gphpad; fhh;ld;. 2tJ bjU. fPH;ghf;fk;. brd;id/10y; trpj;J tUfpnwd;/ nkYk; vdJ jhahh; capUld; ,Ue;j nghJ eh';fs; j';fpapUe;j tPl;oy; v';fsJ clikfs; midj;Jk; m';F cs;sd/ mij vLf;f brd;w ghh;j;j nghJ eh';fs; j';fpapUe;j tPl;od; g{l;od; nky; g{l;L xd;iw vdJ je;ij nghl;L tpl;L brd;W tpl;lhh;/ ehd; ghl;o tPl;oy; j';fpapUf;ft[k;. vdJ clikfis tPl;oy; ,Ue;J vLj;J bfhs;s nky; g{l;il mfw;wpa[k; vdf;F ghJfhg;g[ bfhLf;FkhW ma;ah mth;fis gzpt[ld; nfl;Lf;bfhs;fpnwd;/" The said document itself will negative the contention of the plaintiff found in paragraph 5 of the plaint that the divorce OP was dismissed for default because of Lalitha's inability to attend the court regularly due to her ill health and that after Lalitha got a share in the property, the appellant/defendant used to come to the house of P.W.1 in a drunken mood, created scenes and started to pester Lalitha to transfer the property to his name. The said pleading in the plaint is aimed at showing that Lalitha was not living with her husband and on the other hand she was living with her mother (P.W.1). However, the said contention stands falsified by the particulars found in Ex.A5 itself. 12. In addition, the appellant/defendant has produced documents that came into existence subsequent to the date of dismissal of the divorce OP and prior to the date of death of Lalitha. Ex.B1 is the certified copy of Partition Deed dated 20.05.2005. Ex.B2 is a xerox copy of a latter dated 15.10.2004 written by Lalitha to Income Tax authorities. Ex.B3 is the Pan Card in the name of Lalitha issued by the Income Tax department. Ex.B8 is the copy of Lalitha's income tax return for the assessment year 2004-2005 relating to the accounting year 2003-2004. All these documents will go to show that after the dismissal of the divorce OP, appellant and his wife Lalitha were living together. The said inference gains strength from the particulars found in the documents produced on the side of the plaintiff, namely Exs.A1 and https://hcservices.ecourts.gov.in/hcservices/ A5. The other documents produced on the side of the defendant are legal heir certificate and exchange of notices between him and the tenant. 13. P.W.1 also, in her testimony in cross examination, has admitted that Lalitha was living in the address found in the documents produced by the appellant/defendant, namely old No.93 New No.8, AC Block Second Floor, Second Street, Anna Nagar, Chennai-600 040. Admittedly, the suit property was not in actual possession of Lalitha. The property had been let out for rent and Lalitha was collecting the rent during her life time. In this regard Exs.B5 to B7 evidence that the property had been let out to one Geetha Ramanathan and after the death of Lalitha, the appellant/defendant issued notice under Ex.B5 to the said Geetha Ramanathan calling upon her to pay the rent and amenity charges regularly. A reply was sent under Ex.B7 by the said Geetha Ramanathan through her advocate to the effect that till Lalitha was alive, rent was paid regularly to her and that thereafter she was not able to pay the rent, as she was bereaved due to the sudden demise of her husband; that a sum of Rs.75,000/- was lying with Lalitha as advance and that since rival claims were made by the appellant/defendant on the one hand and by the respondent/plaintiff and her grandmother on the other hand, she had decided to file a petition under Section 9(3) of the Rent Control Act before the Rent Controller for depositing the monthly rent. The said reply notice was dated 06.01.2006. The issuance of such notice was not disputed by the plaintiff. It should also be noticed that, in the legal notice sent by the appellant, he had called upon the tenant to make payment of the arrears of rent by two bifurcated payments, one to be paid to the appellant and the other to be paid to his daughter, the respondent herein. In respect of future rent also he had called upon the tenant to make two separate payments of Rs.7,250/- each. The same has been reflected in the evidence of D.W.1 also. From Ex.B7, it is obvious that from the date of death of Lalitha till the date of issue of Ex.B7, namely 06.01.2006, no rent was paid either to the appellant or to the plaintiff. Therefore, the contention of the respondent that the property was under the exclusive possession and enjoyment of the respondent/plaintiff and his grandmother (P.W.1), could not be factually sustained. On the other hand, the property was in the constructive possession of Lalitha till her life time and thereafter it shall be deemed to be in the constructive possession of both her legal heirs, namely the appellant and the respondent. Even assuming that Lalitha was not living with the appellant for a short while before her death, on her death, both the appellant and the respondent became entitled to the suit property as her legal heirs and hence co-owners and the possession by one of the co-owners shall be on behalf of the other co-owner also. Under such circumstances, it is a well established principle of law that a co-owner cannot seek injunction in respect of enjoyment of the common property against another co-owner unless the other co-owner happens to be a stranger to the family and has purchased a common share. In this regard, the trial court has considered the law in proper perspective and came to a right conclusion that the plaintiff and the defendant being co-owners, https://hcservices.ecourts.gov.in/hcservices/ plaintiff could not seek an injunction in respect of enjoyment of the suit property against the defendant/appellant herein. 14. On the other hand, the learned lower appellate judge, on an erroneous appreciation of law, has arrived at a conclusion that since the appellant herein/defendant was out of possession, the respondent/plaintiff was entitled to an injunction and that the remedy available to the appellant herein is to take legal steps for partition. The learned lower appellate judge has also gone to the extent of stating that the appellant herein/defendant having estranged himself from his wife and child and neglected to maintain them, could be restrained from interfering with the possession of the plaintiff. The said finding apart from being factually incorrect is also perverse. The proposition of law declared by the lower appellate court is totally unsustainable. Therefore, this court does not have any hesitation to come to the conclusion that the lower appellate court has committed an error in granting a decree against the appellant herein/defendant restraining him from interfering with the alleged exclusive possession and enjoyment of the suit property by the respondent herein/plaintiff. This court also comes to the conclusion that the said decision of the lower appellate court is infirm, defective and liable to interfered with by this court in the second appeal. Substantial questions of law 1 and 2 answered accordingly. 15. It shall not be out of place to mention here that the learned counsel who appeared for the respondent herein, having been convinced of the legal position that a co-owner cannot get an injunction against another co-owner in respect of the common property, especially when the defendant is not a stranger to the family, has chosen to confine his arguments with regard to another supposed substantial question of law which was the basis on which the suit itself was filed. The additional substantial question of law suggested by the learned counsel for the respondent is as follows:- "Whether Section 15(2)(a) of the Hindu Succession Act, 1956 shall be applicable in respect of succession to the property of Lalitha, which was admittedly inherited from her father?" The above said legal contention has been raised on behalf of the respondent herein under an erroneous conception of law in this regard. In fact at paragraph 8 of the plaint, the plaintiff has stated as follows:- "(8) The plaintiff states that Section 15(2)(a) of the Hindu Succession Act, 1956 reads as follows: 15(2) Notwithstanding anything contained in sub-section (1):- https://hcservices.ecourts.gov.in/hcservices/ (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs preferred to in sub-section (1) in the order specified therein, but upon the heirs of the father, and; Since the deceased daughter of the plaintiff Tmt.T.L.Lalitha also inherited the suit property from her parents i.e. Father and mother, the suit property is the absolute property of the plaintiff's grand daughter, Shwetha alone." The said plea was taken based on the assumption that section 15(2) (a) or 15(2)(b) shall be attracted irrespective of the fact whether the deceased is survived by a child or pre-deceased child's child. It is a wrong interpretation of the above said provision of law. 16. In this second appeal also the learned counsel for the respondent raised the very same contention, which is totally untenable. Section 15(1) of the Hindu Succession Act, 1956 is the general rule and 15(2) is the exception. 15(2) shall be attracted only in the absence of a child or child of a pre-deceased child. For making it more clear, the entire Section 15 of the Hindu Succession Act, 1956 is extracted here under. 15.General rules of succession in the case of female Hindus.- (1) The property of a female Hindy dying intestate shall devolve according to the rules set out in section 16,- (a) firstly, upon the sons and daughters (including the children of any pre-deceased son