“While making endeavours to find out a prima facie case, the court could take into consideration the extent of plaintiffs’ share in the property, if any”.


[Case Brief] M. Gurudas & Ors. V/s Rasaranjan & Ors.


Case Name: M. Gurudas & Ors. RESPONDENT: Rasaranjan & Ors.
Case Number: C.A. No.-004101-004101 / 2006
Court: The Hon’ble Supreme Court
Bench: S.B. SINHA,DALVEER BHANDARI
Decided on: 13/09/2006
Relevant Act/Sections: Section 8 of the Hindu Succession Act


BRIEF FACTS AND PROCEDURAL HISTORY:
1. One M. Obalappa was the owner of the property. He had three sons, viz., Nagappa, Obalappa and Kadarappa. M. Obalappa died in 1889. Nagappa separated himself in the year 1913. Obalappa and Kadarappa were, thus, in joint possession of the properties in suit. Obalappa died in 1949. He had no issue. The plaintiffs-respondents are said to be the heirs of the natural daughter of Kadarappa, viz., Nirmala. Allegedly, she was adopted by Obalappa during his life time. Kadarappa died in 1961 leaving seven sons and one daughter Nirmala, whose heirs and legal representatives of the plaintiffs claimed themselves, she died in the year 1999
2. The children of Kadarappa, Gurudas and Others, and their sons, Sagunarthy and Shivarthy, are the Appellants in Civil Appeals
3. The purported adoption of Nirmala by Obalappa is in question in the suit. It is, however, not in dispute that on or about 12.9.1947, Obalappa had executed a deed of gift in favour of Nirmala showing her as daughter of Kadarappa but under his guardianship whereas the heirs of Nirmala claimed that Nirmala inherited the property on his death, which as noticed
hereinbefore took place in 1949.
4. According to the Appellants, the joint family property devolved by survivorship to Kadarappa. A purported partition took place between Kadarappa and his sons on 15.6.1954. Nirmala was not given any share therein. It is stated that she was not entitled thereto.
5. In fact in a writ petition questioning acquisition of some properties which were the subject matter of writ petition No. 15217-21 of 1987, she had allegedly admitted that the properties which were subject matter of acquisition were separate and distinct. The claim that Nirmala was the adopted daughter, however, was specifically pleaded by the plaintiffs. On or about 18.03.2003, the High Court passed an interim order directing that no alienation would take place, save and except the share of the builders. The said order was modified by an order dated 29.09.2005 directing that the development of the said property would be subject to restriction in regard to dealing therewith. An application for modification of the said order was filed which has been dismissed by an order dated 15.11.2005.


ISSUES BEFORE THE COURT:
1. Whether this Court would permit the parties to raise fresh contentions, however, must be based on the materials placed on records.
2. Whether the plaintiffs have pre-varicated their stand from stage to stage.
3. Whether in a situation of this nature the plaintiffs would be asked to furnish any security in the event of dismissal of the suit in respect of any of the properties would the defendants be sufficiently compensated?


RATIO OF THE COURT:
1. The submissions raised on behalf of the Appellants were.: (i) The suit was barred by limitation (ii) Nirmala having admitted the nature of her interest in writ petition No. 15217- 21 of 1987, the plaintiffs \026 respondents could not take a stand contrary thereto or inconsistent therewith. (iii) Adoption of Nirmala by Obalappa has neither been proved nor was permissible in law. (iv) The question of there being joint family would not arise, having regard to the fact that the properties had been transferred in the year 1954, and, thus, the share of Nirmala would be only 1/64th. In any event, Nirmala has no interest in the self-acquired properties of the parties.
2. The court observed that apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue.
3. It later added that even otherwise prima facie, Nirmala does not appear to have been adopted by Obalappa which is evident from the deed of gift executed by him. Even in the transfer deed executed by Kadarappa, Nirmala was described as a foster daughter of Obalappa and not as an adopted daughter.
4. The court observed that to prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony. Performance of ’datta homam’ was imperative, subject to just exceptions.
5. The court opined that the courts below have not applied their mind as regards balance of convenience and irreparable injury which may be suffered by the Appellants. The questions that were not considered such as: (i) what would happen if the plaintiffs’ suit is to be dismissed or if their share is found only to be 1/64th ? Prima facie their share is not more than
1/8th in the properties in suit. (ii) would it be proper to issue an order of injunction restraining the Appellants herein from dealing with the properties in any manner whatsoever?


DECISION HELD BY COURT:
The court held and opined that the interest of justice would be subserved if these appeals are disposed of with the following directions:
1. The Appellants in Civil Appeal arising out of SLP (C) No. 12 of 2006 will be permitted to sell 18 flats in their possession. The plaintiffs- respondents would be shown all the 21 flats and they may choose any of the 3 flats, whereupon they may offer to purchase the said flats themselves. In the event such an offer is made, the same shall be sold at the price which is
being offered by the Appellants to any other buyer. (ii) While transferring the flats, however, the Appellants must indicate to the buyer that the same shall be subject to the ultimate result of the suit. (iii) The Appellants may choose, in the event the Respondents fail and/or neglect to exercise their option, to keep 3 flats with themselves. (iv)They, however, may sell the same, if they choose to do so in presence of one of the officers of the court who may be appointed for the purpose of fixing the market price thereof. However, the price fetched by way of sale of three flats shall be invested in a fixed deposit in a nationalized bank and the interest accruing thereupon shall enure to the benefit of successful party in the suit..
2. The Appellants in Civil Appeal arising out of SLP (C) Nos. 843- 44 of 2006 may let out the commercial property in their possession. However, as offered by the Appellants themselves, they shall deposit 50% of the amount after deducting expenditure therefrom and the requisite amount of tax in a fixed deposit in a nationalized bank as may be directed by the learned Trial Judge. (ii) Even for the said purpose, a receiver may be appointed by the learned Trial Judge.

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