TMI Blog2008 (4) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... t properties were acquired in the year 1912 by a deed of sale dated 22.1.1912. Allegedly, the predecessor in interest of the respondents being the original defendant No. 1 (M. Ramachandra) was adopted by Puttathyamma, widow of late T.M. Thimmaiah. A deed of adoption, therefor, was executed on 13.12.1937. Allegedly, a partition in the family properties took place in the year 1924. One of the questions which arose for consideration in the suit was as to whether the said partition was in respect of all the properties or a partial partition. Appellants contend that even assuming that Puttathyamma adopted M. Ramachandra, from a perusal of a deed of adoption, it will appear that some properties were still been jointly possessed. 5. On 23.5.1938, upon the death of Sri T.M. Chikkaranganna his legal representatives partitioned his self-acquired properties, both moveable and immovable. On 22.2.1954, the children of Muniswamappa executed a registered Partition Deed, by which his share in the properties came to be partitioned. From 1957-1969, a number of transactions mainly in the nature of grant of lease took place in respect of the suit properties. No title came to be created in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt are dismissed. However, it is made clear that any construction that is going to be put up in suit properties shall be subject to the decision in the suit and any alienation or creation of interest by the defendants, shall be subject to the decision of the suit. If any alienation is made or any interest is created in the suit property during the pendency of suit, the defendants shall intimate transferees or concerned person about the transaction being subject to the decision of the suit and shall mention in the concerned document that transaction will be subject to the decision in the suit. Any creation of interest shall be intimated by the defendants to the Trial Court. 10. Mr. Arun Jaitley, learned senior counsel appearing on behalf of the appellant submitted; (i) From a perusal of the deed of adoption dated 13.12.1937, it would appear that the properties, in question, had not been partitioned fully. (ii) Possession of a co-owner would be possession of the others and in that view of the matter, the respondents must be held to have been possessing the lands for the benefits of all the co-sharers. The fact that no mutation of the land has been effected is also a point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injury, if they are not permitted to carry out the constructions. (vi) The Trial Court proceeded to consider the matter only from the angle as to whether the appellants would suffer irreparable injury or not without considering the other factors relevant for grant of injunction, viz., prima facie case and balance of convenience. (vii) In any event, as the respondent No. 7 has spent about three crores of rupees as a developer, the impugned judgment should not be interfered with. 12. The property in question is indisputably a valuable property. It is situated in the heart of the commercial area of the town of Bangalore. The land in question admeasures 1 lakh 70 thousand sq. feet. 13. The principal question which arises for consideration is as to whether the properties in question were the subject matter of partition purported to have taken place in 1924 or subsequently or not? 14. Mr. Jaitley has taken us through various documents filed by the parties to show that the respondents had been taking contradictory stand with regard to the date of oral partition among T.M. Muniswamapa, T.M. Thimmaiah T.M. Chikkaranganna, sons of Mandi Madalappa. It was pointed out that ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty. This may be a point in favour of the defendants in support of their contention that the suit property was already divided in the year 1924 and, therefore, these documents do not contain reference to the suit properties 42. Similarly, the other documents furnished by the counsel for the defendants 1 to 6 in page No. 75 to 293 may establish their contention about their exclusive possession. But, I am afraid that this fact itself will be sufficient to throw away the suit at the threshold. 16. A large number of documents were produced by the respondents to substantiate that the property in question was in exclusive enjoyment of T.M. Thimmaiah being the adopted father of T. Ramachandra from 1924 to 1936. The properties were in possession of T. Puttathaiamma, widow of Thimmaiah from 1937 to 1955 and thereafter the other respondents. 17. Respondents contend that the adoption deed must be read as a whole. The translation of the deed of adoption does not appear to be correct. The deed of adoption categorically establishes that the properties were to belong to T. Puttathyamma during her life time, and thereafter the same was to vest in the adoptive son T. Ramachandra. Alth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yechem Ltd. v. Cadbury (India) Ltd. but we are not persuaded to delve thereinto. 20. Therein, however, the question in regard to valid adoption of a daughter was in issue. This Court held that Nirmala was not a validly adopted daughter. This Court wondered: 34. The properties may be valuable but would it be proper to issue an order of injunction restraining the appellants herein from dealing with the properties in any manner whatsoever is the core question. They have not been able to enjoy the fruits of the development agreements. The properties have not been sold for a long time. The commercial property has not been put to any use. The condition of the properties remaining wholly unused could deteriorate. These issues are relevant. The courts below did not pose these questions unto themselves and, thus, misdirected themselves in law. 21. Emphasis was also laid on the conduct of the parties while granting an order of injunction. 22. In Seema Arshad Zaheer and Others v. Municipal Corpn. Of Greater Mumbai and Others [(2006) 5 SCC 282], this Court held: 30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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