K.P.M. ABOOBUCKER Vs. K. KUNHAMOO AND ORS.

JUDGEMENT

(1.) THIS is an appeal against the order of the Additional City Civil Judge, Madras, passed on an application preferred under Order 39, Rule 1, Civil Procedure Code, in O.S. No. 1119 of 1955, refusing to grant the interim injunction asked for by the appellant, the petitioner in the lower Court, against the contesting respondent, the decree -holder in C.S. No. 228 of 1954. It should be convenient to refer to the decree -holder in C.S. No. 228 of 1954 as the respondent in the rest of this judgment.

(2.) I shall first set out the relevant details of what preceded this appeal. Abdulla carried on business in timber. It was common ground that he had business dealings with the respondent for a number of years. Abdulla died in 1939, leaving behind him his widow and six minor children, three daughters and three sons, of whom, the appellant was one. He also left behind a comparatively large extent of properties including the business in timber. Abdulla's brother Ummerkutti claimed that the business in timber that Abdulla carried on was a "partnership concern, in which the brothers were partners. In the arrangements made subsequent to the death of Abdulla, his minor children were represented by their mother as their guardian. It may not be necessary to set out all the details of this arrangement or their validity. They constitute the subject -matter of O.S. No. 1119 of 1955, which still remains to be disposed of. After 1941 the business was carried on by Ummarkutti and Kunhamoo in partnership. Kunhamoo, the eldest of the sons of Abdulla, had by then become sui juris. It should be convenient to refer to Ummarkutti and Kunhamoo as defendants 1 and 2 respectively in the rest of this judgment; they were so arrayed in O.S. No. 1119 of 1955. During the pendency of that suit the first defendant died. The claim of the first defendant in the suit was that in the arrangements that ensued the death of Abdulla; the business and some other assets of Abdulla were allotted to the share of defendants 1 and 2. One of the daughters of Abdulla filed a suit for partition, C.S. No. 271 of 1952, on the Original Side of this Court, which was subsequently transferred to the City Civil Court and numbered as O.S. No. 1119 of 1955. The appellant who was impleaded as defendant 5 supported the claim of the plaintiff in that suit. There the plea was that none of the children of Abdulla who were among his heirs was bound by the arrangements made during their minority by their mother, who was not their legal guardian. The suit was for the partition of the assets of the deceased Abdulla including the business in timber which was claimed to be the sole concern of Abdulla, in which his brother, the first defendant, had no share. On 13th March, 1953, defendants 1 and 2 were appointed Receivers in that suit, among other things to conduct the business which was a running one. I have set out these details, on which the learned Counsel for the appellant relied to support his plea, that there was enough to show prima facie that the appellant has rights, though they have yet to be adjudicated upon, in the properties of Abdulla..

(3.) THOUGH the respondent knew of the pendency of the suit for partition which had been instituted in 1952, itself, he did not have the heirs of Abdulla impleaded in his suit on the mortgage. The appellant was thus not a party to the decree in C.S. No. 228 of 1954 Similarly the respondent even after he obtained a decree in C.S. No. 228 of 1954, was not impleaded as a party defendant in O.S. No. 1119 of 1955. I must make it clear that these are only factual statements, and that I am not concerned now with the question whether they were necessary or even proper parties or not in the respective suits.