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Srinivasa Aiyangar and anr. Vs. Narayana Aiyangar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in56Ind.Cas.608
AppellantSrinivasa Aiyangar and anr.
RespondentNarayana Aiyangar
Cases ReferredIn Lachmeswar Singh v. Manowar Hossein
Excerpt:
.....grant of. - - this is a well-recognised rule of law in damodaran namboodri v. that the remedy by an injunction should not ordinarily be granted to a member of a hindu family has been well recognised in india. 269 enumerates the many exceptional circumstances which would justify the granting of such a relief. 'it appears to their lordships that, in a case like the present, an injunction is not the proper remedy. in india a large proportion of the lands, including many very large estates, is held in undivided shares, and if one shareholder can restrain another from cultivating a portion of the estate in a proper and husband-like manner, the whole estate may, by means of cross-injunctions, have to remain altogether without cultivation until all the shareholders can agree upon a..........exhibit a series. the material portion of the decree, so far as this suit is concerned, gives the plaintiffs possession of all the family properties for 6 years from july 1904, and directs that at the end of that period the defendants shall be entitled to recover their half share either amicably or through court. plaintiffs did not give possession amicably and according to the plaint they are in sole possession even now. defendants attempted to take possession. there were proceedings under chapter xii of the criminal procedure code. plaintiffs were asked to establish their right in a civil court and hence this, suit for an injunction. the district munsif dismissed if, but the subordinate judge remanded the suit for further enquiry and disposal.2. we think that on the allegations.....
Judgment:

1. This is a suit by a certain members of a Hindu family against others for an injunction. The prior proceedings relied on as enabling the plaintiffs to sustain the suit may be shortly stated. Plaintiffs as representing one branch of the family sued (he defendants representing the other branch for partition. There were minors in both the branches. There was a reference to arbitration pending the suit. On the award of the arbitrators, a decree was passed. Vide Exhibit A series. The material portion of the decree, so far as this suit is concerned, gives the plaintiffs possession of all the family properties for 6 years from July 1904, and directs that at the end of that period the defendants shall be entitled to recover their half share either amicably or through Court. Plaintiffs did not give possession amicably and according to the plaint they are in sole possession even now. Defendants attempted to take possession. There were proceedings under Chapter XII of the Criminal Procedure Code. Plaintiffs were asked to establish their right in a Civil Court and hence this, suit for an injunction. The District Munsif dismissed if, but the Subordinate Judge remanded the suit for further enquiry and disposal.

2. We think that on the allegations contained in the plaint the suit is not maintainable. This is not a case in which the plaintiffs claim that they have acquired title by prescription to the entire property. Nor is this a case in which the decree based on the award sustains plaintiffs' possession until evicted by defendants in due Bourse of law. Mr. Narasimha Aiyangar rightly conceded that the defendants, if they chose to sue or to execute the decree, would be entitled to half the mesne profits from the plaintiffs. It follows from this that since 1910, the parties were placed in status quo ante as tenants-in-common. Each branch had a right to its share in the property in suit; and no branch was entitled to sole possession. In this view the plaintiff, not having alleged sole title to the property, was not entitled to seek the protection of the Court by way of injunction. This is a well-recognised rule of law in Damodaran Namboodri v. Govindan Nair 53 Ind. Cas. 229 . Moreover, under Section 54 of the Specific Belief Act plaintiff must bring his case under one of the 5 clauses enumerated in the second portion of the section, if he claims the discretionary relief. Mr. T. Narasimha Aiyangar suggested that the remedy is necessary to avoid multiplicity of suits. But there is no question of multipilicity at present; all that is alleged is that there is a possibility of defendants breaking the law. For such an offence, there is appropriate remedy elsewhere. No oases have been quoted to show that when the plaintiff is entitled to sole possession and the defendant who has a right to part enjoyment is likely to enter upon property, such an entry can be prevented by injunction. Plaintiff can put an end to this position of affairs by suing for partition. That the remedy by an injunction should not ordinarily be granted to a member of a Hindu family has been well recognised in India. Anant Ramrav v. Gopal Balvant 19 B. 269 enumerates the many exceptional circumstances which would justify the granting of such a relief. The present case is excluded by that enumeration. Illustration (a) to Section 54 also suggests in what cases such a relief is available. Construing these provisions of the law, the Judicial Committee in Watson and Co. v. Ramchund Dutt 17 I.A. 110 say this: 'It appears to their Lordships that, in a case like the present, an injunction is not the proper remedy. In India a large proportion of the lands, including many very large estates, is held in undivided shares, and if one shareholder can restrain another from cultivating a portion of the estate in a proper and husband-like manner, the whole estate may, by means of cross-injunctions, have to remain altogether without cultivation until all the shareholders can agree upon a mode of cultivation to be adopted, or until a partition by metes and bounds can be effected, a work which, in ordinary course, in large estates would probably occupy a period including many seasons. In such a case, in a climate like that of India, land which had been brought into cultivation would probably become waste or jungle, and greatly deteriorated in value. In Bengal the Courts of Justice, in cases where no specific rule exists, are to act according to justice, equity and good conscience, and if, in a case of shareholders holding lands in common, it should be found that one shareholder is in the act of cultivating a portion of the lands which is not being actually used by another, it would scarcely be consistent with the rule above indicated to restrain him from proceeding with his work, or to allow any other shareholder to appropriate to himself the fruits of the other's labour or capital' In Lachmeswar Singh v. Manowar Hossein 9 Ind. Dec. 614 their Lordships reaffirmed this principle. Applying these principles to the present case we are clear that the plaintiff has not shown that he is entitled to this exceptional remedy.

3. The order of the Subordinate Judge must be set aside and the decree of the District Munsif restored with costs here and in the Court below.


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