Original Application No. 455 of 2009 · The High Court · 2009

THE HON'BLE MR.JUSTICE K.CHANDRU ORIGINAL APPLICATION NO.455 OF 2009 AND APPLICATION NO.2096 OF 2009 IN C.S.NO.392 OF 2009 ORDER : O.A.No.455 of 2009 and A.No.2096 of 2009 were filed by the applicant, who is the plaintiff in the main suit.

In O.A.No.455 of 2009, the prayer is for granting an order of interim injunction restraining the respondents from in any manner interfering with the peaceful possession of the applicant's 1/4th share in the property at Municipal Door No.24 (Old No.16-L) in Zackaria Colony Main Street, Kodambakkam, Chennai-600 094 being Plot No.E-12, T.S.No.34 of Block No.29, Paimash No.789, 794, 806, 807 of Puliyur, the land measuring 3 grounds and 500 sq.ft. or thereabouts, pending disposal of the suit.

A.No.2096 of 2009 is filed seeking for a direction to the respondents to file monthly statement of accounts of the rental, proceeds received from the suit schedule properties and to deposit the applicant's share thereof towards the suit account pending disposal of the suit.

The suit is filed by the plaintiff for various reliefs directing the second and third defendants to handover the plaintiff's possession in the suit schedule properties, for partitioning item No.4 of suit schedule property and for permanent injunction and also for a direction to defendants to render accounts for rents and profits earned from the plaintiff's properties, etc.

In respect of the present dispute, the present application arose of out item No.4 of schedule relating to Door No.24 (Old No.16-L) in Zackaria Colony Main Street, Kodambakkam, Chennai-94 in the land measuring 3 grounds and 500 sq. ft. The plaintiff and the defendants are the sons of late K.Haji Kamal. While the plaintiff is the resident of the USA, the defendants are residing in the suit schedule property item No.4. The plaintiff and the defendant's father was a trader in perfumes and non-alcoholic chemicals. He started business under the name and style of Kamal Perfumery Company. From and out out of his income, he purchased the property in Zackaria Colony measuring 3 grounds and 500 sq.ft. with a house thereon in the names of the plaintiff's mother, grand mothers and uncle. The plaintiff and the defendant were all residing as a joint family in the said property. Their father had educated them and helped them in establishing their careers. Apart from the perfumery company, he also started an another business in 1980 under the name and style of JRT Aromatics. This was started to facilitate the accounting process. The plaintiff and his brother Jamal, who later died in the USA, pursued their studies abroad, which were funded by their father. After the death of the plaintiff's father, the business was looked after by the defendants.

It was stated that the plaintiff's brother Jamal who had gone to the USA in the year 1992, unfortunately died in the USA due to medical negligence. The plaintiff's uncle helped in filing a suit for medical negligence. The plaintiff had settled in the USA. He executed a power of attorney, dated 21.10.1993 (document No.1102 of 1993 on the file of the Sub Registrar, Kodambakkam) and appointed the first respondent as his power of attorney. Since the plaintiff and the defendants were in the process of getting a property at No.19, Ponnnappa Chetty Street, Chennai, registered in their names, the plaintiff also included the said property in his power of attorney, dated 21.10.1993. The plaintiff who was in the UK since 1993 shifted to the USA in 1996. As a consequences of the legal proceedings in the USA relating to the death of his brother Jamal, a sum of Rs.162 lakhs was received as compensation. The plaintiff's uncle sent the entire money to the plaintiff's family in India. The plaintiff, the defendants, their sisters, father and mother were entitled to a share in the compensation amount. From and out of the amount received as compensation, Rs.32 lakhs was spent for the purchase of a plot of land jointly in the name of five sisters. Each of them were given a flat constructed thereon under a joint development arrangement. From the balance amount of Rs.130 lakhs, the defendants purchased two properties in the year 1996 and 1997 and the undivided shares were registered in the names of the applicant and the respondents and separate portions of the buildings were allocated to each of the brothers as their share. The original title deeds in respect of these properties were in possession of the first respondent.

It was further stated that during 1987, the plaintiff's mother, grandmothers and uncle in whose names the property at Zackaria Colony stood, executed HIBA gifting their respective 1/4th share to the plaintiff and the defendants. The plaintiff and the defendants had become absolute owners of undivided 1/4th share each in the land and building at kodambakkam. The plaintiff and defendants are in joint possession of the property. During 1987, a ground floor building was constructed by the plaintiff's father in front portion of Kodambakkam property from and out of his income from the business. The construction was put up by the plaintiff's father for the use of the family. The old house in the rear portion of Kodambakkam property was demolished in the year 1999 and a new constriction was put up by the plaintiff's father. When the new house was being constructed, for a brief period, the plaintiff's parents shifted to the top floor of the property at Ponnappa Chetty Street. The defendnats were staying in rented premises in Choolaimedu as they had school going children. A three storey building, comprising of six portions, was put up in the rear portion of Kodambakkam property. After construction, the plaintiff's parents as well as the defendants shifted to Kodambakkam property and lived in separate portions of the first floor. The plaintiff's parents and the third defendant were staying in separate portions in the second floor. The plaintiff's parents were staying in the plaintiff's portion as he owned an undivided 1/4th share in the land and building. The two portions in the ground floor were rented out.

It was further stated that thereafter, two more floors were put up in the front building of Kodambakkam property by the plaintiff's father from the moneys derived from his business. Therefore, there are three portions in the front building and all of them were rented out. Altogether, there are nine portion in the front and rear buildings of Zackaria Colony property (item No.4 in schedule), in which one portion each is occupied by the defendants and the plaintiff's mother, who stayed in the plaintiff's portion. The rents and profits accruing from the other five portions belong in equal share, exclusively to the plaintiff and the defendants. Therefore, the plaintiff is entitled to 1/4th share of rents from those portions. Since the plaintiff's father had become old, the first defendant took charge of the affairs of the family business and properties with the assistance of the second and third defendants. The plaintiff was made to believe that the plaintiff's share in the income derived from the business and the properties was being duly accounted for in the name of the plaintiff. Therefore, the plaintiff never asked for accounts. During December, 2007, when he made a casual queries, discontentment took place and the defendants' behavior become hostile towards the plaintiff. Thereafter, he made independent enquiries and found that they were not willing to furnish any accounts on those two properties, which were purchased as set out in the plaint.

It was further stated that the plaintiff also found that the superstructure and land in the Second Narayanan Street, George Town, Chennai, the plaintiff owns 2/10t undivided share in the land along with three floors superstructure. Likewise, he is entitled to get shares in the property at Venkatramier Street, Chennai-79 and the property at Ponnappa Chetty Street, Park Town, Chennai. Because of the hostility, nobody was allowed to enter Jackaria Colony property. On 2.5.2008, the plaintiff's father died. The plaintiff revoked the power of attorney, dated 21.10.1993 by a deed of revocation. He also demanded for production of true accounts. In the meanwhile, the plaintiff's mother was subjected to cruel treatment and even the electricity and water supply were disconnected. Only after the lodging of a criminal complaint with the Commissioner of Police, they were restored. In August, 2008 when the plaintiff had come to attend the wedding of his niece in Chennai, the plaintiff realized that the defendants were severe in hostility terms. They also started saying that the plaintiff did not own any property in Chennai. It is under these circumstances, the present suit was filed for partition. The suit was admitted on 29.4.2009.

Pending the suit, these two applications were taken out. In respect of O.A.No.455 of 2009, notice was ordered on 30.4.2009. The second application was supported by the affidavit on similar lines that of the original application filed by the plaintiff.

When the matter came up on 20.7.2009, certain urgency were expressed regarding the injunction application. Therefore, since this dispute was between family members, all the parties were directed to appear at the Chambers for effecting conciliation. Accordingly, the parties appeared on 21.7.2009 in the Chamber and each one expressed their own grievances.

A counter affidavit, dated 21.7.2009 was filed by defendants. To which a rejoinder affidavit was filed by the plaintiff. The mother of both plaintiff and defendants had also filed an affidavit, dated 20.7.2009 and a rejoinder, dated 21.07.2009.

It was stated by her that defendants were giving Rs.21000/- per month for her upkeep from the business started by her husband. But as soon as a case was filed, the same was stopped. On 2.7.2009, the applicant had visited the second floor portion. The applicant took her to Ajmer, Haji Ali Durgah and other religious placed and came back on 14.7.2009. When he went to the second floor portion in Zackaria colony on 16.07.2009, it was found that the portion was broken and all her belongings were removed. In the rejoinder also, the same statement has been made. It was stated that she was forced to leave the portion on 2.5.2009 and her belongings were kept in the portion and the portion was locked and the keys are with her. Therefore, she asked for restoration of her possession, which was illegally taken away.

In the counter affidavit filed by the defendants, an explanation was given that she had vacated the premises on 1.5.2009 and removed all her belongings to an another place in Bhajanai Koil Street Lane, opposite to Thangam Street, Choolaimedu and she was trying to re-enter the property for the purpose of claiming the interim order. The injunction application was misconceived and was filed at the instance of the plaintiff.

This court is of the view that the statement made by the applicant, which was supported by his mother's affidavit gives the true picture. Therefore, for the purpose of an interim order, both the applications are required to be allowed. The shares of the applicant/plaintiff is not denied. The details of each share and the respective amount spent in developing the property would have to be gone into the main suit. Pending the suit, the plaintiff has made out a prima facie case and the balance of convenience also is in favour of the plaintiff. It is unthinkable that sons can remove their own mother from her lawful abode without any justification.