This Revision is filed under Art. 227 of the Constitution of India against an ex parte order of ad-interim injunction granted by the lower Court.
2. The order of ad-interim injunction was passed in a petition filed by the respondent herein, along with a Guardian O.P to declare and appoint him as the person and property guardian of Minor Varsha Dhanashree, and also for costs of the proceedings.
3. The properties scheduled to that petition belonged to one Mohanraj who died on 23.11.1997 First petitioner herein is his widow, and petitioners 2 and 3 are her parents. Varsha Dhanashree is the daughter born to Mohanraj through the first petitioner, and her date of birth is 23.2.1991 It is the case of the respondent herein in the Guardian O.P that late Mohanraj executed a Will whereby he has appointed the respondent along with the first petitioner herein as joint guardian of person and property of the minor. It is said that the Will came into force on the death to Mohanraj. In the Will, the properties scheduled to the Guardian OP. were allotted to his (Mohanraj's) daughter. The reason for filing the Guardian O.P is stated to be, an alleged attempt by the minor's mother (first petitioner herein) to alienate the properties, and also on the basis of an allegation that she attempts to contract a re-marriage. It is also alleged by the respondent herein that he is in possession of the properties scheduled to the O.P: and that he is collecting the rent. Along with the O.P, he filed an injunction application, to restrain the petitioners herein from disturbing his possession and management of the properties either by alienating or otherwise encumbering the same. An ad-interim injunction was granted, and the same is challenged in this Revision Petition.
4. In the Original Petition, in paragraph 11, it is said that the deceased Mohanraj entrusted the respondent herein with the management of the petition mentioned properties since he was a local resident of Trichy. To that effect, deceased Mohanraj has given a letter also, and the same has been filed along with the Original Petition.
5. According to the respondent herein, of the properties scheduled to the Guardian O.P, the first Item is vacant, and the same is kept under lock and key, and the same is in his custody. Item 2 house has been rented out to one Padmini for Rs. 1,500/- p.m and the rent is collected only by him. It is further said that the respondent herein is thus in possession and management of those properties, for and on behalf of the minor, who is the absolute owner of the same.
6. Regarding residence of the minor, it is said that the first petitioner herein is permanently residing at Madras, and she is employed at Madras, and she is residing with her parents. It is further said that the minor Varsha Dhanashree is at present residing with her mother at Madras.
7. Learned Senior Counsel for petitioners herein submitted that even though the impugned order was passed ex parte, the same is without jurisdiction and, therefore, it will be well within the powers of this Court to interfere, under Art. 227 of the Constitution of India.
8. Learned Senior Counsel brought to my notice Sec. 9 of the Guardian and Wards Act, regarding the tactum of jurisdiction, which reads thus: —
“9. Court having jurisdiction to entertain application. — (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
(2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.
(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the court may return the application if in its opinion the application if could be disposed of more justly or conveniently by any other District Court having jurisdiction.”
9. In this case, the respondent herein has filed the Guardian O.P to declare himself as the person and property guardian of the minor. It is also admitted by him that the minor is residing at Madras with her mother, i.e, first petitioner herein. Under what circumstances the Guardian O.P was filed before the District Court, Tiruchirapalli, is not explained. The only reason stated in that Petition is that the properties mentioned in the Will are situated within the jurisdiction of that Court. If the Application was for appointment of Guardian in respect of the properties alone, I can understand that the Guardian O.P could have been entertained by that Court. In this case, respondent herein wanted himself to be declared as guardian for the person and property of minor Vardha Dhanashree. In such case, the Court at Trichy has no jurisdiction at all.
10. When an order has been passed by a Court having no jurisdiction, the same could be challenged under Art. 227 of the Constitution of India. A duty is cast on the lower Court to verify the relevant provisioas of the Act even if it passes an ex parte order. The Court cannot abdicate its duties merely because the respondent is not heard at that time. When an ad-interim injunction is granted, it is settled law that a prima facie case has to be made out by the applicant. While considering the prima facie case, the jurisdiction of the Court is also one of the matters which requires consideration. The lower Court miserably failed in that regard.
11. The lower Court has also not taken into consideration the averments in the petition. In the Guardian O.P as well as in the affidavit filed in support of the injunction application, it is said that late Mohanraj has entrusted the properties for management. Mohanraj is none other than the younger brother of the respondent herein, i.e, one brother entrusting the property to another brother for the purpose of management. What is the effect of the same even if there is such entrustment? The respondent herein can only be treated as the constituted agent, and he cannot claim exclusive possession, so as to put forward a right to get an order of injunction.
12. Two decisions of the Supreme Court explain the said legal position.
13. In (1989) 2 SCC 630 (Smt. Chandrakantaben v. Vadilal Bapalal Modi), in para 19 (at page 643), their Lordships have held thus: —
“…. It is well-settled that the possession of the agent is the possession of the principal and in view of the fiduciary relationship defendant 1 cannot be permitted to claim his own possession. This aspect was well emphasised in David Lyell v. John Lawson Kennedy ((1889) 14 HL (E) 437) where the agent who was collecting the rent from the tenants on behalf of the owner and depositing it in a separate earmarked account continued to do so even after the death of the owner. After more than 12 years of the owner's death his heir's assignee brought the action against the agent for possession and the agent defendant pleaded adverse possession and limitation. The plaintiff succeeded in the first court. But the action was dismissed by the Court of Appeal. The House of Lords reversed the decision of the Court of Appeal and remarked: “For whom, and on whose behalf, were those rents received after Ann Duncan's death? Not by the respondent for himself, or on his own behalf, any more than during her lifetime?” Emphasising the fiduciary character of the agent his possession was likened to that of trustee, a solicitor or an agent receiving the rent under a power of attorney. Another English case of Williams v. Pott (LR 12 Equity Cases 149) arising out of the circumstances similar to the present case was more interesting. The agent in that case was the real owner of the estate but he collected the rents for a considerably long period as the agent of his principal who was his mother. After the agent's death, his heir claimed the estate. The mother (the principal) had also by then died after purporting by her Will to devise the disputed lards to the defendants upon certain trusts. The claim of the plaintiff was dismissed on the plea of adverse possession. Lord Romilly, M.R, in his judgment observed that since the possession of the agent was the possession of the principal, the agent could not have made an entry as long as he was in the position of the agent for his mother, and that he could not get into possession without first resigning his position as her agent which he could have done by saying: “The property is mine; I claim the rents, and I shall apply the rents for my own purposes. The agent had thus lost his tide by reason of his own possession as agent of the principal…. .. .. ..”
14. In (1989) 4 SCC 603 (Southern Roadways Ltd. v. S.M Krishnan), the above legal position was further considered. In that case, an employee, viz., Manager of Southern Roadways, Madurai, who was also the agent of the Employer, was allowed to retain some premises for the purpose of business. When misunderstanding arose between the employer and the agent, the employer wanted vacant possession. The employee filed a suit for injunction to restrain the employer from taking possession of the premises, and the same was granted. Ultimately, the matter went to the Honourable Supreme Court, wherein their Lordships considered the legal status of an agent, and what is the nature of his possession. From paragraph 14 onwards that judgment is relevant for our purpose, and it reads thus: —
“…. An agent who receives property or money from or for his principal obtains no interest for himself in the property. When he receives any such property he is bound to keep it separate from his own and that of others. Long ago, Lord Cottenham, L.C in Foley v. Hill (2 HLC 28:1843-60 All ER (Rep) 16, 19) said:
“…So it is with regard to an agent dealing with property; he obtains no interest himself in the subject-matter beyond his remuneration; he is dealing throughout for another, and though he is not a trustee, according to the strict technical meaning of the word, he is quasi a trustee for that particular transaction for which he is engaged.”
Out of this practice there has emerged a rule, which is a normal incident of agency, that an agent cannot deny principal's title to property nor he can convert it into any other kind or use. Fridman's Law of Agency (5th Edn., page 150) also supports this view:
“Respect of principal's title.: — The agent cannot deny the title of the principal to goods, money, or land possessed by the agent on behalf of the principal. The possession of the agent is the possession of the principal for all purposes, including the acquisition of title under statutes of limitation, even where in fact the agent, though in ignorance of his claim, is entitled to the land, unless the agent possesses not as agent but on his own behalf, in which event his possession will be personal and not for his principal.”
As to the nature of agent's possession in respect of principal's property, this Court in a recent judgment rendered in Smt. Chandrakantaben v. Vadilal Bapalal Modi said: (SCC pp. 643-44, para 19)
“It is well settled that the possession of the agent is the possession of the principal and in view of the fiduciary relationship defendant 1 cannot be permitted to claim his own possession…..”
(Rest of this para (16) is not extracted, as the same has already been extracted in para 14 of this order).
17. We wish to add that it is not every agent who is in a fiduciary position vis-a-vis his principal. For example, if A appoints B to be his agent merely to sign a memorandum and places no particular trust in B, the doctrine of fiduciary relations would not apply; Likewise, where the principal authorises an agent to do particular or specified acts, the doctrine of fiduciary relation may not arise. What we want to emphasise is, in all cases of general agency, the relation may be generally fiduciary, but in other kinds of agencies, the relation may vary with the confidence which the principal chooses to repose in the agent. It may also depend upon the power which the agent exercises over the subject matter under the terms of the contract of agency or by virtue of the incident of law and usage of the business which the relationship implies. Thus the fiduciary element in agency, though the key to much of the law governing this relation, is not the essential element in the relation.
The crux of the matter is that an agent holds the principal's property only on behalf of the principal. He acquires no interest for himself in such property. He cannot deny principal's title to property. Nor he can convert it into any other kind or use. His possession is the possession of the principal for all purposes. As the Kerala High Court in Narayani Amma v. Bhaskaran Pillai observed: (AIR p. 217, para 6)
“The agent has no possession of his own. What is called a caretaker's possession is the possession of the principal.”
15. In a similar case, the High Court of Kerala has considered as what is the nature of possession of a brother who was just looking after the sister's property. In K.U.C 522 (Matha v. Ambhuni), it has been held thus: —
“A brother who is just looking after the sister's property cannot claim to be in possession of such property. This can be treated as an arrangement arising more out of familial nexus. Familial nexus is matter of status as contrasted from contract. The origin and dominant motivation of the arrangement are integrally linked with that status and family relationship - an arrangement of mere convenience. A unilateral manifestation of willingness to be bound, which is the justification for the whole concept of agency has no application to the aforesaid dealings between a brother and sister in India. The brother who looks after the sister's property can have no higher rights than a licensee - not even those of a licensee coupled with interest. He cannot claim any possession over the property of the sister.”
16. In this case, respondent who claims to be the caretaker of Mohanraj, even after his death, can claim only that status. That means, he is an agent of the real owner. He cannot claim that he is in possession on his own. Injunction could be granted only in favour of a person who is in exclusive possession, and the claim of possession must be in his own right. Otherwise, the granting of injunction will have an adverse effect. The real owners will be prevented from entering into the property or dealing with the property.
17. In this case, respondent herein, claims to be the testamentary guardian. I do not think such a claim could be entertained when the parties are governed by Hindu Minority and Guardianship Act. Sub-sections (1) and (2) of Sec. 9 of that Act reads thus:
“Testamentary guardians and their powers. — (1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by Will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in Section 12) or in respect of both.
(2) An appointment made under sub-sec.(1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by Will, any person as guardian.”
(Rest of that Section is not necessary for our purpose). A reading of the above provision makes it clear that so long as the mother is alive, she alone can be the guardian, and, even if the father has a power to appoint a testamentary guardian, it will not have any effect so long as the mother is alive. In this case, the first petitioner herein is the mother, and under the Act, she is the natural guardian of the minor child after the death of her husband Mohanraj.
18. In N.R Raghavachariar's Hindu Law - Principles and Precedents’, commenting on this Section, at page 1032, it has been said thus: —
“The father including the adoptive father can appoint a testamentary guardian in respect of the person and property of his minor child and the testamentary guardian can function as such after the father's death provided the mother is not alive. If the mother survives the father and is competent to act as the natural guardian, the testamentary guardian appointed by the father cannot function during her lifetime, but if she subsequently dies without leaving a Will appointing a testamentary guardian the testamentary guardian appointed by the father can function as such guardian. But if the mother who has survived the father has herself appointed a testamentary guardian for the minor child, it is this testamentary guardian who can competently function and not the testamentary guardian appointed by the father. ……”
19. Taking into consideration these facts, I do not think that the Court below was justified in granting an ad-interim injunction. It has been repeatedly held by this Court as well as by the Honourable Supreme Court that the granting of injunction is an extraordinary remedy, and it should not be granted as a matter of course. The Court must be satisfied whether there was a prima facie case and balance of convenience in favour of the petitioner, and whether any hardship will be caused to the petitioner if injunction is not granted. Without satisfying himself regarding any of these ingredients, the District Judge has simply passed the following order: —
“Heard counsel. Perused records. Ad-interim injunction till 22.1.98 and notice to respondent by then.”
It is most improper on the part of the District Judge to pass such order. The grant of injunction is governed by Order 39, Rule 1, C.P.C Even if the Court feels that urgent relief is required, reasons therefor must be recorded before granting the same. It is really unfortunate that a District Judge has passed the order extracted above, without looking into the relevant provision of law.
20. In the result, the Revision Petition is allowed with costs. Counsel's fee Rs. 1,500/-. The impugned order is set aside. I.A 3052 of 1997 in Guardian O.P No. 83 of 1997 before the lower court is dismissed.
21. On receipt of a copy of this order, the lower Court shall consider about the maintainability of the Guardian O.P before that Court before proceeds further with the matter.
22. C.M.P 18635 of 1997 for interim suspension of the impugned Order is closed.
RR/VCS