BALASUBRAMANIAM Vs. NAGALINGAM

JUDGEMENT

(1.) This appeal is against the order of the learned Subordinate Judge, Pattukottai, granting injunction against the appellants, who are the defendants 4 and 5 in the main suit. The respondent herein, as plaintiff, filed the suit O.S. No. 206 of 1993 against his brother, mother and sister, who are the defendants 1 to 3 and the alienees of his brother the appellants herein.

(2.) The respondent herein, who is the plaintiff, contended before the lower Court that the properties mentioned in the schedule are joint family properties in the joint possession of himself and the defendants 1 to 3 that his brother, the first defendant, was evading partition of his one-fourth share though he was demanding on several occasions and the appellants (defendants 4 and 5) were also threatening to interfere with his possession and therefore, he filed the suit for partition of his one fourth share and also for injunction against these appellants, who are threatening to trespass into the suit property. These appellants, who filed the written statement, contended that in the first item of the suit property, they have purchased 50 cents under three sale deeds executed by the first defendant, that the sale was for the joint family necessity and therefore, the sale is binding upon the plaintiff and as they were given possession of this property he is not entitled to injunction. However, the Court below having found that the appellants herein, the purchasers, have obtained documents to the detriment of the interest of the plaintiff has held that he is entitled to the temporary injunction. Hence this appeal.

(3.) The learned counsel for the appellants contended that after the death of the father Muthusamy Ondrier, the first defendant, who is the elder brother of the plaintiff, was acting as the Manager of the family, that as the building started by the father stood unfinished, for the purpose of completing this building loan was raised by the first defendant, for the discharge of which the first item of the suit property was sold, that as the total extent of the joint family property is more, even by equity for the one fourth share of the first defendant, the appellants herein are entitled to have the property purchased by them to be allotted for the share of the first defendant and as already possession has been given to them by the first defendant, the petitioner is not entitled to disturb their possession or seek interim injunction in respect of this property, which is not in his possession. The learned counsel Mr. Jayaraman argued that the decision of this Court in Smt. Gunabhusaniammal v. G. Narasimhan (l995) 1 Mad LW 374 is applicable for this case because the bench of this Court has held that the purchaser of the joint family property, if found in possession of the share purchased by him, can be allowed to enjoy that share without any disturbance to the other shares. But on a reading of that decision, I find that it was contended in that case that the property which was sold by the father, was the self acguired property of the father and even otherwise the father had one fourth share in the joint family property and the property conveyed by him, which is a portion in the house having separate entrance was less than one-fourth share in the family property. As it was found that the portion sold was having separate entrance and the enjoyment of this house portion by the purchaser was not in any way affecting the enjoyment of the other portion by the joint family members and there was dispute as to the joint family character of the property the Bench took the view that the purchaser could be allowed to continue in possession during the pendency of the suit. But in this case, admittedly, the first item of the suit property, which was purchased by the appellants herein, is a joint family property in which the respondent herein is entitled to one-fourth share.