Miss Smita Agarwal And Ors. vs Nirmal Kumar Das And Ors. on 7 September, 1977

Patna High Court

Equivalent citations: AIR 1978 Pat 112, 1977 (25) BLJR 311

Author: N P Singh

Bench: N P Singh, P Sahay

JUDGMENT

Nagendba Pbasad Singh, J.

1. This appeal has been filed on behalf of the defendants for setting aside an order dated 12th Jan. 1977, passed by the Subordinate Judge, Purnea, restraining the defendants from settling or harvesting the standing crops from the eight annas share out of the total properties, which are the subject-matter in dispute.

2. The appellants are defendants in the said suit. Appellant No. 1 is a minor, and she has filed this appeal under the guardianship of appellants 2 and 3, who are her maternal grandmother and maternal uncle, respectively.

3. This case has a long history and certain facts have to be stated. On 7-2-1971, in a motor-car accident, one Krishna Kumar Das, his wife Raj Kumari Devi, his son Alok Kumar Agarwal, his daughter-in-law Manju Agarwal, and his grandson Sribardhan Agarwal died. Appellant No. 1 is the minor daughter of the aforesaid Alok Kumar Agarwal and grand-daughter of aforesaid Krishna Das. In order to appreciate the relationship between Appellant No. 1 and the plaintiffs the genealogical table is reproduced below: --

Babu Kumar Das (died in 1932)

Braj Bihari Das (Died in 1955)

__________________________________________

| |

Krishna KUmar Das (dead) Nirmal Kumar Das --Wife Rajkumari Devi (dead) (Plff 1) | |

--Wife Manju |

Agarwal (dead) |

| |

_____________________________ | | | |

Sribardhan (dead) Smita | (minor) |

(deft 1) |

_________________________________

| |

Manoj Kumar Madhulik

Agarwal (Plff 2) Agarwal

--Wife Uma Agarwal (Plff 4)

______________________

| |

Batshala Anurag

(daughter) (son)

Jyoti Kumar Das and Bina Agarwal, who were brother and sister of Alok Kumar Agarwal, however, died before the aforesaid accident. After the death of virtually all the members of the family of Krishna Kumar Das, Appellant No, 1 became the heir of the interest of Krishna Kumar Das, and the properties which were left behind by him and his son were inherited by her as a minor heir. As during the relevant period the minor Appellant No. 1 was residing in Calcutta within the jurisdiction of the City Civil Court at Calcutta, in April 1971, an application was filed in the Court of the Chief Judge, City Civil, Court, Calcutta by appellants 2 and 3, who as already stated above, happened to be her maternal grandmother and maternal uncle, for toeing appointed as the guardian of the minor. A case was registered on that application. Notice of that application was issued to the plaintiffs respondents as well as to Sri-mati Lakshmi Devi, wife of plaintiff-respondent No. 1. That application had been filed under the provisions of the Guardians and Wards Act (hereinafter referred to as the Act), and the details of the properties belonging to the minor had been given. It has been stated that later a petition for amendment was filed making certain amendments in the list of the properties which was allowed by learned Judge of the City Civil Court at Calcutta. Plaintiffs and aforesaid Lakshmi Devi appeared in the aforesaid proceeding before the learned Judge of the City Civil Court, Calcutta.

4. During the pendency of' the proceeding before the City Civil Court, Calcutta, Lakshmi Devi, wife of plaintiff respondent No. 1, filed an application on the 18th Nov. 1971 before the District Judge, Purnea, praying that she should be appointed as guardian of the person and the properties of the minor appellant, falsely stating that the minor was living with her. While the matter was pending consideration at Calcutta, on 18-1-1972 the learned District Judge appointed the said Srimati Lakshmi Devi as guardian of the person and properties of the said minor. On 3rd May 1972 an application for removal of the aforesaid Lakshmi Devi was filed on behalf of the appellants before the District Judge, Purnea, saying that she had practised fraud on the Court and by suppressing the real and correct facts, had secured an order appointing her as guardian. It was brought to the notice of the Court that the minor was living in Calcutta with appellants 2 and 3 and there an application had already been filed for appointment of guardian. The learned Judge, after hearing the parties, however, removed Lakshmi Devi who had been appointed as the guardian of the minor, by order dated 25-9-1973. Against that order Lakshmi Devi filed an appeal before this Court, which was numbered as Miscellaneous Appeal 303 of 1973. It was heard by a Bench presided over by K. B. N. Singh, J. (as he then was) and L.M. Sharma, J. The appeal was dismissed on 9-9-1974 (See Lakshmi Devi v. Chandrakala Saraogi, AIR 1975 Pat 83). This Court, while affirming the order, was of the view that earlier Lakshmi Devi had been appointed as guardian of the minor appellant by concealing the real facts and she had been rightly removed by the learned District Judge. This Court, in para. 27, also observed that a prior proceeding for appointment for guardian being already there at Calcutta nothing was left to be done by the Purnea Court. Regarding the restoration of the properties of the minor, this Court observed as follows (at p. 93):

"It has already been found that the respondents have custody of the minor and it were they who were dealing with her properties. In such a situation, it was only just and! proper, in the interest of the welfare of the minor that the Court, while removing a guardian should direct the restoration of the properties to a person who had custody of the minor and her properties also before the appointment of appellant as guardian by Purnea Court. After the Court found-that the appellant's interest was adverse to that of the minor, she had misused the trust reposed in her and she was not capable of discharging the trust reposed in her, the order in question for return of the properties with accounts was a consequential one, which the Court had inherent jurisdiction to pass."

Thereafter, the City Civil Court at Calcutta heard the question regarding the appointment of appellants 2 and 3 as guardians of appellant No. 1 and,, by order dated 6-6-1975. appointed, the Collector, Purnea, as guardian in respect of the immovable properties of the minor and appellants 2. and 3 as guardian of the person of the minor as well as her moveable properties. Thereafter, on 26-11-1976 a suit was filed by the plaintiffs respondents along with the aforesaid Lakshmi Devi for a declaration that the properties set out in Part I of Schedule C are joint family properties belonging to the plaintiffs and defendant No. 1, that is, the minor, and also for a declaration that the movables and the bank accounts in Part II of Schedule C derived from the income of the joint family estate are joint family properties. When the plaint of the suit was filed, an application for injunction was also filed on behalf of the plaintiffs. In the plaint as well as in the injunction application it was stated that the aforesaid Krishna Kumar Das, who was the grandfather of the minor appellant, was the brother of plaintiff No. 1, and they were members of a joint Hindu Mitakshara family. As such plaintiff No. 1 along with his own sons was entitled to eight annas interest in the properties, details whereof have been given in the schedules of the plaint. In the petition for injunction it was stated that the City Civil Court Judge, Calcutta, on the basis of a petition filed lay the defendants second party, that is appellants 2 and 3, had appointed the Collector of Puroea as the guardian of the mirror in respect of the immovable properties and had appointed the defendants second party as the guardian of the movable properties of the minor, and this has caused irreparable loss to the plaintiffs. It was further stated that the Collector of Purnea was about to settle the lands and to harvest the standing crops, from which he should be injuncted till the disposal of the suit. It appears that the learned Subordinate Judge granted an ad interim Injunction on the same day , restraining the respondents, including the Collector of Purnea, from settling the lands and harvesting the standing crops. Later, on appearance of the appellants, the matter was finally heard, and by the impugned order dated 12-1-1977 the learned Subordinate Judge has held that as the plaintiffs were entitled to eight annas share in the properties set out in the schedules of the plaint, the defendants, including the Collector of Purnea, had no right to deal with those properties, and as such they should be injuncted from dealing with the eight annas share in all the aforesaid properties. He, however, observed that the guardian appointed by the City Civil Court, Calcutta, may deal with the minor's share in accordance with law.

5. It may be mentioned that before the impugned order was passed, for reasons best known to the plaintiffs, the name of the aforesaid Lakshmi Davi, the wife of plaintiff No. 1, Who was one of the plaintiffs, was deleted on a prayer being made on behalf of the plaintiffs.

6. The learned counsel appearing for the appellants has submitted that in the facts and circumstances of the present case the order of injunction amounts to abuse of the process of the Court. In that connection, the learned counsel has placed the different orders passed by the learned Judge of the City Civil Court, Calcutta, the order passed by the learned Subordinate Judge and the order passed by this Court. The learned Subordinate Judge, after setting out the relationship of the parties and the case of the plaintiffs, had purported to consider the question as to whether there is a prima facie case in favour of the plaintiffs; and in that connection he has observed as follows:

"Several documents including Khatian and report of the Public Officers have been produced on record on behalf of the plaintiffs to show that the properties are joint family properties and that the plaintiffs and defendant No. 1 have got joint interest. But it is needless to go into the merits or the demerits of the case at this stage."

He has, however, not mentioned the details of those documents on the basis of which he was prima facie satisfied that the properties, which are the subject-matter in suit, are joint family properties. The learned counsel appearing for the appellants has pointed out that in the plaint itself the plaintiffs have sought for declaration of title to the properties and have challenged the decree in an earlier partition suit, being Title Suit No. 34 of 1954, which had been filed by the father of the minor appellant No. 1 for partition of properties of the family, impleading plaintiff No. 1 and others, still no ad valorem court-fee had been paid. The learned counsel further submitted that in substance the plaintiffs are challenging the order which was passed by the learned Judge of the City Civil Court, Calcutta, appointing appellants 2 and 3 and the Collector, Purnea, as guardian of the properties of the minor although they were parties to that proceeding and were heard and order in question had been passed with their consent. In support of this contention, a certified copy of the order dated 6-6-1975 was placed, a copy whereof is also in the paper-book. From that it does appear that the Collector had been appointed guardian in respect of the immovable properties of the minor and appellants 2 and 3 guardians of the movable properties of the minor by consent of both parties. In this background, in my opinion, it is difficult to appreciate the stand taken on behalf of the plaintiffs. By virtue of the order passed by the learned Judge of the Civil Court, Calcutta, the Collector, Purnea, as well as appel-lants 2 and 3 can deal with the proper-ties of the minor in accordance with the provisions of the Act. Section 27 of the Act prescribes the manner in which such, guardian has to deal with the property of a ward. The learned Subordinate Judge could not have ignored that order which was passed by a Court of competent jurisdiction and restrained the Collector as well as appellants 2 and 3 from dealing with the properties of appellant No. 1.

7. The learned counsel appearing for the plaintiffs-respondents then submitted that the learned Judge of the Civil Court at Calcutta had no jurisdiction to Appoint a guardian in respect of the properties which are joint family properties; and in that connection the learned counsel has drawn our attention to Section 12 (3) (b) of the Act Which says that nothing in that section shall authorise any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property. The learned counsel has also referred to the decisions of this Court in Mahanand Missir v. Dasrath Missir 46 Ind Cas 815: (AIR 1918 Pat 609 (1)) and Firm Ramlochan Ram Lakshmi Prasad v. Maikha Sethani (AIR 1960 Pat 271) in support of his contention that a guardian cannot be appointed in respect of the property of a minor when the property is a joint family property and some adult member of the family of the minor is in charge of the property in question on behalf of the whole family. In my opinion, this contention is completely misconceived. The learned Judge of the City Civil Court, Calcutta, had appointed the Collector as well as appellants 2 and 3 as guardians of the properties of the minor after hearing the plaintiffs and by their consent. They cannot challenge those very orders in the present suit and get an injunction from the learned Subordinate Judge, the effect whereof is to nullify in whole or in part the order passed by the City Civil Court at Calcutta. If necessary, the plaintiffs should have pointed out to the Civil Court Judge at Calcutta that the list which had been furnished on behalf of appellants 2 and 3 contained properties belonging to them. No such stand ap-pears to have been taken.

8. This Court in the earlier case of Lakshmi Devi v. Chandrakala Saraogi (AIR 1975 Pat 83) had condemned the attitude of the wife of plaintiff No. 1, for the way in which she secured an order getting herself appointed as the guardian of the minor, and the finding of fraud and concealment was also affirmed by this Court. At no stage, the case that the properties were joint family properties was set up; this case was pleaded only in the year 1976. Apart from that, a plaintiff, merely after filing a suit for declaration of his title to properties which are subject-matter of the suit, is not entitled to injunction as a matter of course, and that also when the suit is filed without paying ad valorem court-fee. Injunction can be granted only when plaintiff makes out a good prima facie case, when the balance of convenience is in his favour and there is likelihood of irreparable injury. In Brajendra Nath v. Smt. Kashi Bai (AIR 1946 Pat 177), a Bench of this Court pointed out that in order to obtain an interlocutory injunction, it is not enough for the plaintiff to show that he has a prima facie case. He must further show that (1) in the event of withholding the relief of temporary injunction he will suffer an irreparable injury; and (2) in the event of his success in the suit in establishing his alleged legal right, he will not have the proper remedy in being awarded adequate damages. It was also pointed out that in such a situation the plaintiff must show a clear necessity for affording immediate protection to his alleged right or interest which would otherwise be seriously injured or impaired. In the instant case, the Collector has been appointed as the guardian so far as the immovable properties o1 the minor are concerned. It cannot be expected that he will act in a manner which will be in contravention of the provisions of the Act. If he or appellants 2 and 3 transgress any of the powers vested in them as guardian, it will always be open to the plaintiffs to move the City Civil Court, Calcutta, for appropriate direction. In my opinion the learned Subordinate Judge has completely misconceived the scope of the suit, and the relief to which the plaintiffs were entitled. He has granted an injunction by passing a most cryptic order, without considering the issues which are relevant for the purpose ei passing an order of injunction.

9. Accordingly, I allow the appeal and set aside the order of injunction passed by the learned Subordinate Judge. In the circumstances of the case, however, there will be no order as to costs.

P.S. Sahay, J.

10. I agree.