Holding

Adoption of a daughter is invalid under Hindu law, so Nirmala was not a validly adopted daughter of Obalappa, limiting her claim to a share as Kadarappa’s natural daughter and rendering the injunction restraining alienation of the property improper.

Summary

The case concerned a dispute over several properties in Bangalore, where the respondents claimed that Nirmala, a natural daughter of Kadarappa, had been adopted by her uncle Obalappa and therefore inherited his estate. The Supreme Court examined whether a daughter can be validly adopted under Hindu law, concluding that adoption requires a giving‑and‑taking ceremony, the performance of a datta homam, and that only males may be adopted; thus Nirmala’s alleged adoption was invalid. Consequently, her claim was limited to a share as a natural daughter of Kadarappa under Section 8 of the Hindu Succession Act. The Court also reviewed the criteria for granting an interlocutory injunction under Order 39 of the CPC, finding that the lower courts had not properly applied the prima‑facie, balance‑of‑convenience and irreparable‑injury test. The Supreme Court set aside the injunction restraining the appellants from dealing with the properties, allowed the appeals, and issued detailed directions for the sale of flats and letting of commercial property, while directing the trial court to expedite the suit.

Issues considered

The validity of the alleged adoption of Nirmala, a daughter, under Hindu law
Whether a valid Hindu adoption requires a giving‑and‑taking ceremony and performance of datta homam
Whether a daughter can be adopted under Hindu law
The applicability of Section 8 of the Hindu Succession Act to Nirmala’s share
The correct application of the criteria for granting an interlocutory injunction under Order 39 CPC (prima facie case, balance of convenience, irreparable injury)
Whether the adoption issue could be raised for the first time before the Supreme Court
The relevance of the parties’ conduct in deciding the injunction

Legislation cited

Code of Civil Procedure, 1908s. Order 39 Rules 1 & 2, s. Order 41 Rule 27, s. Order VII Rule 11
Hindu Succession Act, 1956s. Section 8

Subjects

adoptionHindu lawinterlocutory injunctionCode of Civil Procedureproperty partitionbalance of convenienceprima facie caseSection 8 Hindu Succession Actdatta homamvalidity of adoption

Judgment

M. GURUDAS AND ORS. A
v.
RASARANJAN AND ORS.

SEPTEMBER 13, 2006

[S.B. SINHA AND DALVEER BHANDARI, JJ.] B

Hindu law:

Hindu ado...tion--Valid adoption--Necessity of-Held: There should be
an actual giving and taking ceremony-Pe1formance ofdatta homm imperative C
to constitute valid adoption subject to exception-Adoption of daughter is
invalid under Hindu law-Person adopted is to be male-On facts, natural
heirs of a female, who is allegedly adopted by her uncle, restraining their
predecessor's natural brothers and sons from alienating the property on the
ground that their predecessor inherited her uncle's property on his death as D
she w~s adopted by her uncle-However, predecessor not being validly adopted
daughter of her uncle nor adoption permissible in law, the female could claim
interest in share of her natural father's property which fell to his share on
partition with his brothers.

Code of Civil Procedure. 1908--0rder 39, rules 1 and 2--/njunction-- E
Conditions for grant of-Held: Court is to consider prima facie case, balance
of convenience and irreparable injury-Plaintiff's contention should be
bonafide--Question to be tried must be se~ious issue and not merely triable--
Conduct of both defendants and plaintiffs is relevant-Court to see whether
plaintiffs have pre-varicated their stand from stage to stage-It would look F
into the documents produced in terms of Order 41, Rule 27-This coun must
not confine itself only to the questions raised before the courts below-It
would consider questions of law, though raised for the first time-On facts,
court erred in granting injunction restraining the party from alienating the
property-Order 41, Rule 27.
G
0 and K were in joint possession of suit properties. 0 died in 1949.
·He had no issue and it is alleged that he adopted N, natural daughter of
K during his life time. 0 had executed gift deed in favour of N shr wing
her as daughter of K but under his guardianship. K died in 1961 leaving

103 H
104 SUPREME COURT REPORTS (20061 SUPP. 6 S.C.R.

A seven sons and daughter N. Respondent-plaintiffs are natural heirs of N.
Respondents claimed that N being adoptPd daughter of 0, inherited
property on the death of 0. Children of K, G and others and their sons
are the appellants. A purported partition took place between K and his
sons in 1954. N was not given any share. However, K transferred three
properties in favour of N as a trustee, referring her to be the foster
B daughter of 0 and describing the said properties to be held in trust.
According to the appellants, the joint family property devolved by
survivorship to K; and that N during her life time, never claimed to be
an adopted daughter and she did not have any interest in the joint f~mily
properties.
c Respondents filed suit for partition of the suit Schedule and allotment
in their favour; and for permanent injunction to restrain the defendants
from alienating the suit properties. Thereafter, amendment application
was filed that since the parties belonged to Brahmo Samaj .faith, N could
claim as natural daughter of K; and that N was adopted when she was
D about three years old. Appellants filed an application for rejection of the
plaint in terms of Order VII, Rule 11 CPC and the same was dismissed.
Thereafter, application for injunction was filed and appellants were
restrained from dealing with the properties. High Court then passed an
interim order directing that no alienation would take place, save and
E except the share of the builders. The said order was modified directing
that the development of the said property would be subject to restriction
in regard to dealing therewith. Further, application for modification of
the order was filed but the same was dismissed. Hence the present appeals.

Appellants contended that the High Court erred in restraining the
p appellants from alienating the property; that the properties should be
allowed to be utilized as the constructions thereof had been permitted to
be completed; that the builders having been permitted to dispose of their
share, only few Oats remains to be sold. thus, having regard to the claim
of the respondents, order of injunction may be confined to only 3 Oats;
that the property which was the subject matter of the other Civil Appeal
G being self-acquired and commercial property, the same may be allowed
to be transferred subject to certain conditions; that N having admitted
the nature of her interest, respondents could not take a stand contrary
thereto or inconsistent therewith; that adoption of N by 0 was neither
proved nor was permissible in law; and that the properties had been
H partitioned in 1954, and, thus, share of N would be only l/64th.
M. GURUDAS v. RASARANJAN 105
Respondents contended that the courts below having found that the A
respondents not only have a prima facie case but also balance of
convenience lay in their favour, this Court should not exercise its
\' discretionary jurisdiction; that the courts below took serious note of the
/
.... conduct of the appellants insofar as they disposed of some properties in
violation of the order of status quo passed by the court; that the question
regarding illegality of adoption cannot be permitted to be raised for the
B
first time before this Court; that the appellants having filed an application
for rejection of the plaint in terms of Order VII, Rule 11 CPC, the same
having been dismissed, they should not be permitte,d to raise the said
contention once again; and that before the appellate court an interim order
was passed on the basis of agreement between the parties, therefore, it is c
inequitable to allow the parties to take a different stand before this Court.

Allowing the appeals, the Court

HELD: 1.1. To prove valid adoption, it would be necessary to bring
on records that there had been an actual giving and taking ceremony. D
Performance of 'datta homam' was imperative, subject to just exceptions.
(115-GJ

1.2. Regarding the question whether adoption of a daughter was
permissible in law, it appears that trial Judge missed the last sentence of
the passage of Mayne's Treatise on Hindu Law and Usage "it is now settled E
that the adoption of a daughter is invalid under the Hindu law." In section
480 of the treatise, it is stated that the person to be adopted must be a
male. [115-C-E; 116-FI
~

Mayne's Treatise on Hindu Law and Usage 13th edition, pp. 429-430
and Mui/a 's Principles of Hindu Law 17th edition, p 710, referred to. F

1.3. Prima facie, N was not validly adopted daughter of 0 which is
evident from the d~ed of gift executed by him. Even in the transfer deed
executed by K, N was described as a foster daughter of 0 and not as an
adopted daughter. If that be so, she would inherit only the property which
G
fell to the share of Kon partition. N as a daughter of K can claim interest
~
_,. in his share in the properties only. In terms of section 8 of the Hindu
Succession Act, as K died in the year 1961, she will have 1/8th share but
what was the extent of K's property would inevitably depend upon the
effect of deed of partition executed by the parties in' the year 1954.
(116-E-G( H
106 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A 2. I. While considering an application for injunction, the courts would
pass an order thereupon having regard to: (i) prima facie (ii) balance of
convenience (iii) irreparable injury. A finding on 'primafacie case' would
be a finding of fact. However, while arriving at such finding of fact, the
court not only must arrive at a conclusion that a case for trial has been
B made out but also other factors requisite for grant of injunction exist. The
contention of the plaintiffs must be bona fide. The question sought to be
tried must be a serious question and not only on a mere triable issue.
[114-E-FI

Transmission Corpn. of A.P. Ltd. v. Lanco Kondapalli Power (P) ltd.,
C 120061 1 SCC 540; Dorab Cawasji Warden v. Coomi Sorab Warden and Ors.,
1199012SCC117; Dalpat Kumar and Anr. v. Prah/ad Singh and Ors., 119921
1 SCC 719; United Commercial Bank v. Bank of India and Ors., 119811 2
SCC 766; Gujarat Bottling Co. Ltd. and Ors. v. Coca Cola Co. and Ors.,
I19951 5 SCC 545 and Bina Murlidhar Hemdev and Ors. v. Kanhaiyalal
lokram Hemdev and Ors., 119991 5 SCC 222, relied on.
D Colgate Palmolive (India) Ltd. v. Hinduswn lever ltd.. I19991 7 SCC
l; S.M. Dyechem ltd. v. Cadbury (India) Ltd., 120001 5 SCC 573, referred
to.

American Cyanamid v. Ethicon Ltd., I19751 1 All ER 504, referred to.

E 2.2. An appellate court would not ordinarily interfere with but then
there are certain exceptions thereto. The courts below have not applied
their mind as regards balance of convenience and irreparable injury which
may be suffered by the appellants. 1117-B; 117-E-FI

Transmission Corpn. of A.P. Ltd. v. Lanco Kondapalli Power (P) Ltd.,
F 120061 1 SCC 540; Board of Control for Cricket in India and Anr. v. Netaji
Cricket Club and Ors., 12005) 4 SCC 741, referred to.

2.3. The properties may be valuable but would it be proper to issue
an order of injunction restraining the appellants from dealing with the
properties in any manner whatsoever is the core question. They have not
G been able to enjoy the fruits of the development agreements. The
properties have not been sold for a long time. The commercial property
has not been put to any use. The condition of the properties being
remaining wholly unused could deteriorate. These issues are relevant. The .
courts below did not pose these questions unto themselves and, thus,
H misdirected themselves in law. 1117-F-HI
M. GURUDAS v. RASARANJAN 107
2.4. With regard to the issue whether in a situation·of this nature A
the plaintiffs would be asked to furnish any security in the event of
dismissal of the suit in respect of any of the properties and would the
defendants be sufficiently compensated, response of the respondents was
negative regarding their readiness and willingness of clients to furnish any
security. 1118-A-BI
B
2.5. The conduct of the defendants was indisputably relevant. But,
then conduct of the plaintiffs would also be relevant. Therefore, the court
while granting an order of injunction, would take into consideration as to
whether the plaintiffs have pre-varicated their stand from stage to stage.
Even this question had not been adverted to by the courts below. Further, C
while doing so, the courts would look into the documents produced before
the trial court as also the appellate court in terms of Order 41, Rule 27
CPC but the same would not mean that this Court must confine itself only
to the questions which were raised before the courts below and preclude
itself from considering other relevant questions although explicit on the
face of the records. Questions of la"I in a given case may be considered D
by this Court although raised for the first time. The question as to whether
this Court would permit the parties to raise fresh contentions, however,
must be based on the materials placed on records. (118-G-H; 119-A-Cf

Gujarat Bottling Co. Ltd. and OrS. v. Coca Cola Co. and Ors., 119951 E
5 SCC 545 and Board ofControl for Cricket in India and Anr. v. Netaji Cricket
Club and Ors., (20051 4 SCC 741, relied on.

Dhariwal Industries Ltd and Anr. v. MS.S. Food Products, 120051 3
sec 63, referred to.
F
2.6. At the stage of grant of injunction, howeHr, the effect of
dismissal of an application under Order VII, Rule 11 CPC would not be
of much significance. The plaint in question could not have been rejected
under Order VII, Rule 11 CPC. The Court at that stage could not have
gone into any disputed question of fact but while passing an order on grant
of injunction indisputably it can. While making endeavours to find out a G
prima facie case, the court could take into consideration the extent of
plaintiffs' share in the property, if any. 1116-G-H; 117-A-Bf

2.7. Having regard to the facts and circumstances of this case, in the
interest of justice certain directions are issued. (119-Cf H
108 SUPREME COURT REPORTS (2006] SUPP. 6 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4101 of2006.

From the Judgment anJ Order dated 29.9.2005 of the High Court of
Karnataka at Bangalore in M.F.A. No. 1833/2003 CPC. . __
WITH
B
Civil Appeal No. 4102 of 2006.

Dr. Rajeev Dhawan, Trideep Pais, Pratap Venugopal (for Mis. K.J.
John & Co.), Nikhil Nayyar and Ankit Singhal for the Appellants.

c Mahabir Singh, Anant Mandgi, Ajay Pal, Rakesh Dahiya, Nikhil Jain
and D. Mahesh Babu for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J: Leave granted in S.L.Ps.
D
These appeals involving common questions of law and fact and having
arisen from a common judgment were taken up for hearing together and are
being disposed of by this common judgment.

One M. Obalappa was the owner of the property. He had three sons,
E vi:., Nagappa, Obalappa and Kadarappa. M. Obalappa died in 1889. Nagappa
separated himself in the year 1913. Obalappa and Kadarappa were, thus, in
joint possession of the properties in suit. Obalappa died in 1949. He had no
issue. The plaintiffs-respondents are said to be the heirs of the natural daughter
of Kadarappa, viz., Nirmala. Allegedly, she was adopted by Obalappa during
his life time. Kadarappa died in 1961 leaving seven sons and one daughter
F Nirmala, whose heirs and legal representatives of the plaintiffs claimed
themselves, she died in the year 1999. The children of Kadarappa, Gurudas
and Others, and their sons, Sagunarthy and Shivarthy, are the Appellants in
Civil Appeals arising out of SLP (C) No. 12 of 2006 and 843-44 of 2006
respectively.
G
The properties involve Survey No. 97/2 Old No. 46-C, Doddabylakhana,
~
Lalbagh Road, Bangalore and Survey No. 66 and 75/1, Sarakki, Uttarhalli
Hobli, Bangalore.

The purported adoption of Nirmala by Obalappa is in question in the
H suit. It is, however, not in dispute that on or about 12.9.1947, Obalappa had
M. GURUDAS v. RASARANJAN [S.B. SINHA, J.] 109
executed a deed of gift in favour of Nirmala showing her as daughter of A
Kadarappa but under his guardianship whereas the heirs of Ninnala claimed
that Nirmala inherited the property on his death, which as noticed hereinbefore
took place in 1949. According to the Appellants, the joint family property
devolved by survivorship to Kadarappa. A purported partition took pl~ce
between Kadarappa and his sons on 15.6.1954. Ninnala was not given any B
share therein. It is stated that she was not entitled thereto.

The property bearing Survey No. 97/2 is said to have been acquired by
Brahmanandadas by way of a deed of sale executed by Khaja Ghulam Sheriff
from 18.07.1955. It is furthermore not disputed that Kadrappa has transferred
three properties in favour of Nirmala as a trustee, referring her to be the C
foster daughter of Oblappa and describing the said properties to be held in
trust. The Appellants herein contend that Nirmala, during her life time, never
claimed to be an adopted daughter and she did not have any interest in the
joint family properties. In fact in a writ petition questioning acquisition of
some properties which were the subject matter of writ petition No. 15217-21
of 1987, she had allegedly admitted that the properties which were subject D
matter of acquisition were separate and distinct.

The claim that Nirmala was the adopted daughter, however, was
sp~cifically pleaded by the plaintiffs.

The suit was filed by the Respondents on 7.09.2000 wherein the E
following reliefs were prayed for:

"WHEREFOR, the plaintiff prays for a judgment and decree for
partition of their share in the schedule property:

(a) Directing the partition of the suit Schedule and to allot them in F
favour of plaintiffs.

(b) Restrain the defendants, their agents or any person claiming through
from alienating the suit properties, by granting an order of pennanent
injunction.
G
(c) To order directing enquiry into mesne profits under order XX
Rule 12 Code of Civil Procedure.

(d) Awards costs of this suit and

(e) Grant such other relief/s, as this Hon'ble Court deems fit to grant
H
110 SliPREME COL!RT REPORTS [2006] SUPP. 6 S.C.R.

A under the facts and ciro:u111stances of the case, in the interest of justice."

The said reliefs were claimed inter alia on the premise that Nirmala
was the adopted daughter of Obalappa. However, an application for amendment
of plaint was tiled on or about 5.08.2002 stating that the parties being belonging
to Brahmo Samaj faith, Nirmala could claim as natural daughter of Kadarappa.
B In the said application for amendment, however it was averred that Ninnala
was adopted when she was about three years old.

It is relevant to mention that in the original plaint the subject matter
thereof was : (i) a self acquired property of Obalappa; (ii) the properties
tran~ferred by Kadarappa; and (iii) new properties acquired by the family.
C However, in the amended plaint, the properties allotted to Kadarappa and
joint family purportedly not partitioned in 1954 had also been included as
Schedule D and E of the Plaint.

An application for injunctio·n was filed and by an order dated ~ 6.01.2003,
D the Appellants herein were restrained in dealing with the prope1ties directing:
"I.A. No. I is allowed. No costs.

Order of temporary injunction is passed in favour of the plaintiffs
restraining defendant No. 25 from putting up any construction on
Item No. I of Schedule A and further not alienate any portion thereof
E in favour of any one by himself or through his agents.

I.A. No. XI is allowed. No costs.

Order of temporary injunction is passed in favour of the plaintiffs
restraining the defendants, their men, from alienating or altering the
F nature of the suit schedule properties."

On or about 18.03.2003, the High Court passed an interim order directing
th~t no alienation would take place, save and t>xcept the share of the builders.

The said order was modified by an order dated 29.09.2005 directing
G that the development of the said property would be subject to restriction in
regard to dealing therewith. An application for modification of the said order
was filed which has been dismissed by an order dated 15.11.2005.

Mr. Mukul Rvhtagi and Dr. Rajeev Dhawan, learned senior counsel
appearing on behalf of the Appellants, inter a!ia would submit that the High
H
M. GURUDAS v. RASARANJAN [S.B. SINHA, J.] 111
·- Court misdirected itself in passing the impugned order restraining the A
Respondents in alienating the prope11y. The learned counsel would urge that
the properties shall be allowed to be utilized as the constructions thereof had
been permitted to be completed.

~ Mr. Rohtagi, at the outset, offered that the number of apartments
constructed on the disputed land being 59 and the builders having been B
permitted to dispose of their share, only 21 flats remain to be sold, and thus
having regard to the claim of the plaintiffs-respondents, the order of injunction
may be confined to only 3 flats.

The submission of Dr. Rajeev Dhawan, on the other hand, was that the
property which was the subject matter of Civil Appeal arising out of SLP(C) C
Nos. 843-44 of 2006 being self-acquired property and being commercial in
nature, the same may be allowed to be transferred subject to the condition
that 50% of the rents and other profits arising out of the same upon deducting
the expenses may be directed to be deposited.
D
· The submissions raised on behalf of the Appellants are:

(i) The suit was barred by limitation.
(ii) Nirmala having admitted the nature of her interest in writ petition
No. 15217-21of1987, the plaintiffs-respondents could not take
a stand contrary thereto or inconsistent therewith. E
(iii) Adoption of Nirmala by Obalappa has neither been proved nor
was permissible in law.
(iv) The question of there being joint family would not arise, having
regard to the fact that the properties had been transferred in the F
year 1954, and, thus, the share ofNirmala would be only 1/64th.
In any event, Ninnala has no interest in the self-acquired
properties of the parties.

Mr. Mahabir Singh, learned senior counsel appearing on behalf of the
Respondents, however, would not agree to the said offer. The learned counsel G
contended that both the Trial Judge as also the High Court having found that
the plaintiffs not only have a primafacie case but also balance of convenience
lay in their favour, this Court should not exercise its discretionary jurisdiction
under Article 136 of the Constitution of India. The learned counsel urged that
from a perusal of the records, it would appear that the learned Trial Judge as
also the High Court had taken serious note of the conduct of the Appellants H
112 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A herein insofar as they disposed of some properties in violation of the order
of status quo passed by the court. It was argued that the question as regard
illegality of adoption cannot be permitted to be raised for the first time before
this Court. In any event, the Appellants having filed an application for rejection
of the plaint in terms of Order Vil, Rule 11 of the Code of Civil Procedure, .., -
B the same having been dismissed. they should not be permitted to raise the
said contention once again. It was contended that before the appellate court
an interim order was passed on the basis of agreement between the parties.
it is, therefore, inequitable to allow the parties to take a different stand before
this Court.

C While considering an application for injunction, it is well-settled, the
courts would pass an order thereupon having regard to:

(i) Prima facie
(ii) Balance of convenience
D (iii) Irreparable injury.

A finding on 'prima facie case' would be a finding of fact. However,
while arriving at such finding of fact. the court not only must arrive at a
conclusion that a case for trial has been made out but also other factors
requisite for grant of injunction exist. There may be a debate as has been
E sought to be raised by Dr. Rajeev Dhawan that the decision of House of
Lords in American Cyanamid v. Ethicon Ltd., [1975] I All ER 504 would
have no application in a case of this nature as was opined by this Court in·
Colgate Palmolive (India) ltd. v. Hindustan Lever ltd. [1999] 7 SCC I and
S.M. Dyechem Ltd. v. Cadbury (India) ltd., [2000] 5 SCC 573, but we are
not persuaded to delve thereinto.
F
We may only notice that the decisions of this Court in Colgate Palmolive
(supra) and S. M Dyechem ltd. (supra) relate to intellectual property rights.
The question, however, has been taken into consideration by a Bench of this
Court in Transmission Corpn. of A.P. ltd. v. lanco Kondapalli Power (P)
G ltd., [2006] I sec 540 stating:

"The Respondent, therefore, has raised triable issues. What would
constitute triable issues has succinctly been dealt with by the House
of Lords in its well-known decision in American Cyanamid Co v.
Ethicon ltd., ( 1975) I AER 504, holding :
H "Y0ur Lordships should in my view take this opportunity of
M. GURUDAS 1·. RASARANJAN [S.B. SINHA • .I.] 113

declaring that there is no such rule. The use of such expression as 'a A
probability', 'aprimafacie case', or 'a strongprimafacie case' in the
context of the exercise of a discretionary power to grant an
interlocutory injunction leads to confusion as to the object sought to
be achieved by this form of temporary relief. The court no doubt
must be satisfied that the claim is not frivolous or vexatious; in other
words, that there is a serious question to be tried." B
It was further observed :

"Where other factors appear to be evenly balanced it is a counsel of
prudence to take such measures as are calculated to preserve the
status quo. If the defendant is enjoined temporarily from doing C
something that he has not done before, the only effect of the
interlocutory injunction in the event of his succeeding at the trial is
to postpone the date at which he is able to embark on a course of
action which he has not previously found it necessary to undertake;
whereas to interrupt him in the conduct of an established enterprise D
would cause much greater inconvenience to him since he would have
to start again to establish it in the event of his succeeding at the trial.

* * *
The factors which he took into consideration, and in my view properly,
were that Eth icon's sutures XLG were not yet on the market; so that E
had no business which would be brought to a stop by the injunction;
no factories would be closed and no workpeople would be thrown out
of work. They held a dominant position in the United Kingdom market
for absorbable surgical sutures and adopted an aggressive sales policy."

We are, however, not oblivious of the subsequent development of F
law both in ::::'~land as well as in this jurisdiction. The Chancery
Division in Series 5 Sojf\lu;·:: v. Clarke, [ 1996] I All ER 853 opined:

"In many cases before American Cyanamid the prospect of success
was one of the important factors taken into account in assessing the G
.balance of convenience. The courts would be less willing to subject
the plaintiff to the risk of irrecoverable loss which would befall him
if an interlocutory injunction was refused in those cases where it
thought he was likely to win at the trial than in those cases where it
thought he was likely to lose. The assessment of the prospects of
success therefore was an important factor in deciding whether the H
114 SUPREME COURT REPORTS [20061 SUPP. 6 S.C.R.

A court should exercise its discretion to grant interlocutory relief. It is
this consideration which American Cyanamid is said to have prohibited
in all but the most exceptional case. So it is necessary to consider
with some care what was said in the House of Lords on this issue."

In Colgate Pa/mulive (India} Ltd. v. Hindus/an Lever Ltd, [ 1999]
B 7 SCC I, this Court observed that Laddie, J. in Series 5 Software
(supra) had been able to resolve the issue without any departure from
the true perspective of the judgment in American Cyanamid. In that
case, howev>!r, this Court was considering a matter under Monopolies
and Restrictive Trade Practices Act, 1969.

c In S. M. Dye::hem Ltd. v. Cadbury (India) Ltd., [2000] 5 SCC 573,
Jagannadha Rao, J. in a case arising under Trade and Merchandise
Marks Act, 1958 reiterated the same principle stating that even the
comparative strength and weaknesses of the parties may be a subject
matter of consideration for the purpose of grant of injunction in trade
mark matters stating :
D
"21 ..... Therefore, in trademark matters, it is now necessary to go into
the question of "comparable strength" of the cases of either party,
apart from balance of convenience. Point 4 is decided accordingly."

The said decisions were noticed yet again in a case involving
E infringement of trade mark in Cadi/a Health Care Ltd. v. Cadila
Pharmaceuticals Ltd., [2001] 5 SCC 73."

While considering the question of granting an order of injunction one
way or the other, evidently, the court, apart from finding out a prima facie
case, wou Id consider the question in regard to the balance of convenience of
F the parties as also irreparable injury which might be suffered by the plaintiffs
if the prayer for injunction is to be refused. The contention of the plaintiffs
must be bona fide. The question sought to be tried must be a serious question
and not only on a mere triable issue. [See Dorab Cawasji Warden v. Coomi
Sorab Warden and Ors., [1990] 2 SCC 117, Dalpat Kumar and Anr. v.
G Prahlad Singh and Ors., [1992] I SCC 719, United Commercial Bank v.
Bank of India and Ors., [ 1981] 2 SCC 766, Gujarat Bouling Co. Ltd. and
Ors. v. Coca Cola Co. and Ors., [1995] 5 SCC 545, Bina Murlidhar Hemdev
and Ors. v. Kanha~ralal lokram Hemdev and Ors., [1999] 5 SCC 222 and
Transmission Corpn. of A.P. ltd. (supra)]

H
M. GURUDAS 11. RASARAN.TAN [S.B. SINHA . .I.] 115
Mr. Mahabir Singh may not be right in contending that the adoption of A
Nirmala was never in question. In fact, the Trial Court in its judgment noticed:

" ... Hence, if the family of Obalappa had followed Brahmo Samaj,
Kadarappa could not have get any property by survivorship and the
adoption ofNirmala Dhari is valid under law. Under the circumstances,
the issue as to the ancient Hindu Adoption has to be investigated B
during the trial. The plaintiffs have established a trivial case i.e. prima-
facie case in my opinion."

While arriving at the said finding, the court referred the following
passage from Mayne's Treatise on Hindu Law and Usage, 13th edition, pages
429-430: c
"Adoption of daughters Nandapandita in his Dattaka Mimamsa would
construe 'putra' (or son) as including a daughter and he draws the
inference that on failure of a daughter, a daughter of another could
be adopted. He supports his conclusion by referring to ancient D
precedents, such as the adoption of Shanta, the daughter of King
Dasaratha by King Lomapada and the adoption of Pritha or Kunti, the
daughter of Sura by Kunti Bhoja. This view is sharply criticized by
Nilakantha in the Vyavahara Mayukha. ft is now settled that the
adoption of a daughter is invalid under the Hindu law."
E
(Underlining is ours for emphasis)

However, it appears that the learned Judge missed the last sentence of
the said passage i.e. "It is now settled that the adoption of a daughter is
invalid under the Hindu law."
F
Even otherwise prima facie, Nirmala does not appear to have been
adopted by Obalappa: which is evident from the deed of gift executed by him.
Even in the transfer deed executed by Kadarappa, Nirmala was described as
a foster daughter of Obalappa and not as an adopted daughter.

To prove valid adoption, it would be necessary to bring on records that G
there had been an actual giving and taking ceremony. Performance of 'datta
homam' was imperative, subject to just exceptions. Above all, as noticed
herein before, the question wou Id arise as to whether adoption of a daughter
was permissible in law.

In Mulla 's Principles of Hindu Law, 17th edition, page 710, it is stated: H
116 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A "488. Ceremonies relating to adoption - (I) The ceremonies relating
to an adoption are

(a) the physical act of giving and receiving, with intent lo transfer the
boy from one family into another;

(b) the dalla homam, that is, oblations of clarified butter to fire; and
B
(c) other minor ceremonies. such as putresti jag (sacrifice for male
issue).

(2) The physical act of giving and receiving is essential to the validity
of an adoption;
c
As to datta homam it is not settled whether its perfonnance is
essential to the validity of an adoption in every case.

As to the other ceremonies, their performance is not necessary to
the validity of an adoption.
D
(3) No religious ceremonies. not even datta homam, are necessary in
the case of Shudras. Nor are religious ceremonies necessary amongst
Jains or in the Punjab."

In Section 480 of the said treatise, it is categorically stated that the
E person to be adopted must be a male.

Prima facie, therefore, Nirmala was not validly adopted daughter of
Obalappa. If that be so, she would inherit only the property which fell to the
share of Kadarappa on partition. Nirmala as a daughter of Kadarappa can
claim interest in his share in the properties only. In tenns of Section 8 of the
F Hindu Succession Act, as Kadarappa died in the year 1961, she will have
I/8th share but what was the extent of Kadarappa's property would inevitably
depend upon the effect of deed of partition executed by the parties in the year
1954. However, as the matter is required to be dealt with by the Trial Court
finally, we do not intend to say anything further at this stage lest we may be
G understood to have expressed our views one way or the other.

At the stage of grant of injunction, however, the effect of dismissal of
an application under Order Vil, Rule 11 of the Code of Civil Procedure
would not be of much significdnce. The plaint in question could not have
been rejected under Order VII, Rule I I of the Code of Civil Procedure. The
H Court at that stage could not have gone into any disputed question of fact but
M. GURUDAS v. RASARANJAN [S.B. SINHA, J.] 117

while passing an order on grant of injunction indisputably it can. Jn other A
words, while making endeavours to find out a prima facie case, the court
could take into consideration the extent of plaintiffs' share in the property,
if any.

It is no doubt true in view of several decisions of this Court, some of
which has been referred to in Transmission Corpn. of A.P. ltd. (supra) that B
an appellate court would not ordinarily interfere with but then there are
certain exceptions thereto.

In Board of Control for Cricket in India and Anr. v. Netaji Cricket
Club and Ors., [2005] 4 SCC 741, it has been held:
c
"95. Furthermore, the impugned order is interlocutory in nature. The
order is not wholly without jurisdiction so as to warrant interference
of this Court at this stage. The Division Bench of the High Court had
jurisdiction to admit the review application and examine the contention
as to whether it can have a retook over the matter. This Court, it is D
trite, ordinarily wou Id not interfere with an interlocutory order
admitting a review petition. The contentions raised before us as regards
the justification or otherwise of the Division Bench exercising its
· power of review can be raised before it. Furthermore, the Court having
regard to clause (ii) of its order dated 29-9-2004 may have to consider
as to whether the election was held in accordance with the constitution E
of the Board and the Rules and Bye-laws framed by it."

In this case, in our opinion, the courts below have not applied their
mind as regards balance of convenience and irreparable injury which may be
· suffered by the Appellants. The question which may be posed is what would
happen ifthe plaintiffs' suit is to be dismissed or iftheir share is found only F
to be l/64th? Primafacie their share is not more than I/8th in the properties
in suit.

The properties may be valuable but would it be proper to issue an order
of injunction restraining the Appellants herein from dealing with the properties G
in any manner whatsoever is the core question. They have not been able to
enjoy the fruits of the development agreements. The properties have not been
sold for a long time. The commercial property has not been put to any use.
The condition of the properties being remaining wholly unused could
deteriorate. These issues are relevant. The courts below did not pose these
questions unto themselves and, thus, misdirected themselves in law. H
118 SUPREME COURT REPORTS [2006) SUPP. 6 S.C.R.

A Another question of some importance which was required to be posed
and answered was as to whether in a situation of this nature the plaintiffs
would be asked to furnish any security in the event of dismissal of the suit

B
in respect of any of the properties would the defendants be sufficiently
compensated? We have asked Mr. Mahabir Singh as to whether his clients
were ready and willing to furnish any security. He responded in the negative.
-
The conduct of the defendants was indisputably relevant as has been
held by this Court in Gujarat Bo/fling Co. Ltd. (supra) in the following tern1s

"47. In this context, it would be relevant to mention that in the instant
case GBC had approached the High Court for the injunction order,
c granted earlier, to be vacated. Under Order 39 of the Code of Civil
Procedure, jurisdiction of the Court to interfere with an order of
interlocutory or temporary injunction is purely equitable and, therefore,
the Court, on being approached, will, apart from other considerations,
also look to the conduct of the party invoking the jurisdiction of the
D Court, and may refuse to interfere unless his conduct was free from
blame. Since the relief is wholly equitable in nature, the party invoking
the jurisdiction of the Court has to show that he himself was not at
fault and that he himself was not responsible for bringing about the
state of things complained of and that he was not unfair or inequitab 1e
in his dealings with the party against whom he was seeking relief. His
E conduct should be fair and honest. These considerations will arise not
only in respect of the person who seeks an order of injunction under
Order 39 Rule I or Rule 2 of the Code of Civil Procedure, but also
in respect of the party approaching the Court for vacating the ad
interim or temporary injunction order already granted in the pending
F suit or proceedings."

In Board of Control for Cricket in India (supra), it is stated:

"96. The conduct of the Board furthermore is not above board. The
manner in which the Board had acted leaves much to desire."

G But, then conduct of the plaintiffs would also be relevant. The court
while granting an order of injunction, therefore, would take into consideration
as to whether the plaintiffs have pre-varicated their stand from stage to stage.
Even this question had not been adverted to by the learned courts below.

While doing so, the courts, as has been noticed in Dhariwa/ lnduslries
H
M. GURUDAS v. RASARANJAN [S.B. SINHA, J.] 119
Ltd. and Anr. v. M.S.S. Food Products, [2005) 3 SCC 63 whereupon Mr. A
Mahabir Singh relied upon, would look into the documents produced before
the Trial Court as also the Appellate Court in terms of Order 41, Rule 27 of
the Code of Civil Procedure but the same would not mean that this Court
· must confine itself only to the questions which were raised before the courts
below and preclude itself from considering other relevant questions although B
explicit on the face of the records. Questions of law in a given case may be
considered by this Court although raised for the first time. The question as
to whether this Court would permit the parties to raise fresh contentions,
however, must be based on the materials placed on records.

Having regard to the facts and circumstances of this case, we are of the C
opinion that the interest of justice would be subserved if these appeals.are
disposed of with the following directions:

I. (i) The App~llants in Civil Appeal arising out of SLP (C) No. 12
of 2006 will be permitted to sell 18 flats in their possession. The
plaintiffs-respondents would be shown all the 21 flats and they D
may choose any of the 3 flats, whereupon they may offer to
purchase the said flats themselves. In the event such an offer is
made, the same shall be sold at the price which is being offered
by the Appellants to any other buyer. (ii) While transferring the
flats, however, the Appellants must indicate to the buyer that the
same shall be subject to the ultimate result of the suit. (iii) The E
Appellants may choose, in the event the Respondents fail and/or
neglect to exercise their option, to keep 3 flats with themselves.
(iv) They, however, may sell the same, if they choose to do so
in presence of one of the officers of the court who may be
appointed for the purpose of fixing the market price thereof. F
However, the price fetched by way of sale of three flats shall be
... invested in a fixed deposit in a nationalized bank and the interest
accruing thereupon shall enure to the benefit of successful party
in the suit.
II. (i) The Appellants in Civil Appeal arising out of SLP (C) Nos. G .
843-44 of 2006 may let out the commercial property in their
possession. However, as offered by the Appellants themselves,
they shall deposit 50% of the amount after deducting expenditure
therefrom and the requisite amount of tax in a fixed deposit in
a nationalized bank as may be directed by the learned Trial
Judge. (ii) Even for the said purpose, a receiver may be appointed H
120 SUPREME COURT REPORTS (2006) SUPP. 6 S.C.R.

A by the learned Trial Judge.
III. It would be open to the learned Trial Judge to pass any other or
further order if and when any occasion arises thtrefor.
IV. We are informed that the plaintiffs have filed affidavits of their
witnesses. The learned Trial Judge may complete the hearing of
B the suit as expeditiously as possible. Save and .except for cogent
reasons, the hearing of the suit may not be adjourned. We would
request the learned Trial Judge to dispose of the suit expeditiously
and preferably within six months from the date of receipt of a
copy of this order.
c The appeals are allowed to the extent mentioned hereinabove. Costs of
these appeals shall abide by the result of the suit.

N.J. Appeals allowed.