IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 FAO.No. 208 of 2011 ------------------------------------ AGAINST THE ORDER DATED 04/07/2011 IN IA 3075/2011 IN OS.624/2011 of PRL.SUB COURT,TRIVANDRUM .................... APPELLANT (S): 2ND COUNTER PETITIONER: ----------------------------------------------------------------- T.S.DAS, AGED 42 YEARS, SON OF SUBRAMONIAN, RESIDING AT T.C.41/2294, VIDHYADIRAJA LANE, MANACAUD P.O., THIRUVANANTHAPURAM-695 009. BY ADV. SRI.M.RAJASEKHARAN NAYAR SMT.K.N.RAJANI SRI.G.ARUN GOPAN RESPONDENT(S): PETITIONERS & 1ST COUNTER PETITIONER: ----------------------------------------------------------------------------------------- 1. LALITHAMMA, AGED 60 YEARS, W/O.LATE SUBRAMONIA IYER, T.C.37/91, PAZHAVANGADI GRAMAM, VANCHIYOORW RESIDING AT SOUTH AMMAN COIL STREET, NORTH PARAVOOR, ERNAKULAM-683 513. 2. RAMESH, AGED 36 YEARS, S/O.LATE SUBRAMONIA IYER, RESIDING AT -DO- -DO-683 513. 3. RESMY SUBRAMONIA IYER, AGED 34 YEARS, S/O.SUNDARAM RAMANATHAN AND D/O.LALITHAMMA AND HAVING RESIDENCE AT T.C.37/91, PAZHAVANGADI GRAMAM VANCHIYOOR VILLAGE, FORT P.O., THIRUVANANTHAPURAM-695 001. 4. RENJITH, AGED 24 YEARS, S/O.LATE SUBRAMONIA IYER, T.C. 37/91, PAZHAVANGADI GRAMAM, VANCHIYOOR VILLAGE, FORT P.O. THIRUVANANTHAPURAM-695 001. ADV. SRI.BASANT BALAJI FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- F.A.O.NO.208 OF 2011 & CAVEAT PETITION NO.710 OF 2011 ------------------------------------------ Dated this the 10th August, 2011 JUDGMENT K.M. Joseph, J. This First Appeal is filed against the order of the Prl. Sub Court, Thiruvananthapuram restraining the appellant and the fourth respondent herein who are defendants 2 and 1 respectively, from altering the existing structures or inducting any strangers into the plaint schedule property. 2. Case of the appellant, in brief, is as follows: He is an assignee of the undivided 1/4th right of the fourth respondent in the plaint schedule property. Fourth respondent is the son of first plaintiff and brother of plaintiffs 2 and 3. According to the plaintiffs, the plaint schedule property is one cent F.A.O.NO.208/2011 2 with a building jointly owned by the first plaintiff and her children, they being the legal heirs of one late Subramonia Iyer and all legal heirs are entitled to 1/4th share. The first counter petitioner/fourth respondent, it is her case, without any knowledge or permission from the plaintiffs, created a document in respect of 1/4th share, which cannot be separated from the whole of the building. It is the plaintiffs' further case that the appellant is attempting to encroach upon the property and to demolish the building. Injunction is sought. Case of the appellant, on the other hand, is that the Advocate Commission Report obtained by the plaintiffs cannot be relied on, as it was done without making a proper enquiry. Various allegations are raised against the Report of the Commissioner. 3. The court below found that the building in the plaint schedule property is an undivided joint family dwelling house, and that the family members have not effected partition. It is found that there is no satisfactory evidence establishing the fact that the F.A.O.NO.208/2011 3 appellant has got joint possession. It is noted that the specific case of the appellant is that he is running a business from the date of Ext.B1 which is the sale deed dated 23.8.2007 and if that be so, he must have a licence obtained from the Thiruvananthapuram City Corporation and there is no such licence produced. Had there been such a venture, it would have been noted by the Commissioner, it is stated. Reliance is placed on the photographs also. The court below placed reliance on the provisions of Section 4 of the Partition Act, 1893 and Section 44 of the Transfer of Property Act and the court granted injunction as aforesaid. 4. We heard Shri M. Rajasekharan Nayar, learned counsel for the appellant and also Shri Basant Balaji, learned counsel for the first respondent who appeared at the stage of admission. 5. Learned counsel for the appellant would contend that the appellant being an assignee was very much entitled under Section 44 of the Transfer of Property Act to be in joint possession. He would point out that actually the structure in the plaint schedule F.A.O.NO.208/2011 4 property is not a dwelling house. He would further point out that the conditions mentioned in Section 4 of the Partition Act are not satisfied. He would point out that Ext.B11 ration card would establish that the first plaintiff is residing in North Paravoor, Ernakulam and according to him, unless there is actual residence, there cannot be a dwelling house within the meaning of Section 44 of the Transfer of Property Act or Section 4 of the Partition Act. He further referred us to Section 23 of the Hindu Succession Act. He would place reliance on the decision of the Supreme Court in Babu Lal v. Habibnoor Khan (dead) by Lrs. and Others ((2000) 5 SCC 662). Therein, the court held, inter alia, as follows: “One of the basic conditions for applicability of Section 4 is that the stranger-transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned. It is, of course, true that even though the stranger- transferee of such undivided interest moves an execution application for separating his share by metes and bounds, it would be treated to be an F.A.O.NO.208/2011 5 application for suing for partition and it is not necessary that a separate suit should be filed by such stranger-transferee. All the same, however, before Section 4 can be pressed into service by any of the other co-owners of the dwelling house, it has to be shown that the occasion had arisen for him to move under Section 4 because of the stranger-transferee himself moving for partition and separate possession of the share of the other co-owner which he would have purchased.” Next he relied on the decision of the Apex Court in Gautampaul v. Bebi Rani Paul And Others ((2000) 8 SCC 330). He also relied on the decision in Mandali Ranganna And Others v. T. Ramachandra And Others ((2008) 11 SCC 1) wherein the court was dealing with the principle that court will take into consideration the conduct of the parties in the matter of injunction, it being an equitable relief. The Court, inter alia, held as follows: F.A.O.NO.208/2011 6 “A person who had kept quiet for a long time and allowed another to deal with the property exclusively, ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequence depending upon the nature thereof. The courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the courts is imperative. Contentions raised by the parties must be determined objectively.” In this context, learned counsel for the appellant would point out that the Suit was filed only in 2011 and the appellant was in occupation since 2007 for which contention, he has produced tax receipts and he also contends that the plaintiffs have only produced tax receipt dated 1.6.2011 which is the date of filing the Suit. Next, he would rely on the decision in Abinash Chandra F.A.O.NO.208/2011 7 Chakravarty v. Smt. Kamala Devi (AIR 1953 Patna 344) for the proposition that under Section 4 of the Partition Act or Section 44 of the Transfer of Property Act, a house which is completely let out to tenants cannot be said to be a dwelling house. In fact, the court noted that the very concept of joint family living in one house has disappeared. He also relied on the following passage from Woodrofe and Ali on Law Relating to Injunctions: “Joint enjoyment of the property in its actual condition being the right of all, none may disturb that enjoyment either by directly excluding others, or by the commission of acts which have that effect, (1) or by acts which injuriously affect the position of the sharers by reason of material alterations (2) of the character and condition of the property enjoyed, made without the consent of the co-sharers.” 6. Per contra, Shri Basant Balaji, learned counsel for the first respondent would submit that the Suit was filed for partition and for injunction and also for pre-emption. He would submit that the F.A.O.NO.208/2011 8 appellant was attempting to trespass and that provided the cause of action for the Suit. He would point out that the ex parte Commissioner inspected the property and a Report was filed and the Report would show that the building is a dwelling house. He would also point out that one Sarada, a relation of the plaintiff was found in possession of the building. He would point out that under Ext.B1 document, what is transferred, is an undivided right of the first defendant and the appellant has never obtained possession as such. He would also point out the actual order of injunction which has been passed, which has been referred to by us. He would also contend that an undivided family within the meaning of Section 44 of the Transfer of Property Act means undivided dwelling house, so that the family which owns the house, has not divided it by metes and bounds. He also relied on the decision in Ghantesher Ghosh v. Madan Mohan Ghosh and Others (AIR 1997 SC 471), which is a case decided under the Partition Act, wherein the Apex Court, inter alia, held as follows: F.A.O.NO.208/2011 9 “10. We have also to keep in view the avowed beneficial object underlying the said provision. Section 4 of the Partition Act read with Section 44 of the T.P. Act represents a well knit legislative scheme for insulating the domestic peace of members of undivided family occupying a common dwelling house from the encroachment of a stranger transferee of the share of one undivided co-owner as the remaining co-owners are presumed to follow similar traditions and mode of life and to be accustomed to identical likes and dislikes and identical family traditions. This legislative scheme seeks to protect them from the onslaught on their peaceful joint family life by stranger-outsider to the family who may obviously be having different outlook and mode of life including food habits and other social and religious customs. Entry of such outsider in the joint family dwelling house is likely to create unnecessary disturbances not germane to the peace and tranquility not only of the occupants of the dwelling house but also of neighbours residing in the locality and in the near vicinity. With a view to seeing that such homogeneous life of co-owners belonging to the same joint family and residing in the joint family dwelling house is not F.A.O.NO.208/2011 10 adversely affected by the entry of a stranger to the family, this statutory right or pre-emption is made available to the co-owners who undertake to buy out such undivided share of the stranger co-owner.” 7. Learned counsel for the appellant does not dispute that there is an undivided family, that the first defendant was a member of such undivided family, and that the appellant has purchased the 1/4th undivided right from the first defendant. There is a commission report which has been referred to by the trial court to come to the conclusion that the building is a dwelling house. No doubt, as already noted, the appellant would point out that it cannot be treated as a dwelling house, as there is no actual dwelling. We have already referred to the actual injunction order which has been passed by the trial court. The main grievance of the learned counsel for the appellant is the fact that the court below has proceeded on the basis that the property is a dwelling house. 8. Having regard to the circumstances of the case, we would think that interests of justice would be subserved, if we direct that F.A.O.NO.208/2011 11 the Suit be disposed of at the earliest, totally untrammeled by any of the observations contained in the order including the observation that the property is a dwelling house. It is ordered accordingly. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. //True Copy// PS to Judge