IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 464 of 1996()
1. JANAKI AMMA
... Petitioner
Vs
1. PADMINI AMMA
... Respondent
For Petitioner :SRI.A.P.CHANDRASEKHARAN (SR.)
For Respondent :SRI.ANIL SIVARAMAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :29/11/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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S.A NO. 464 OF 1996
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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 1= 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
1= 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
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P.A. To Judge