Mrs Sarabai Yusuf Vs Mr Shibu Hussain Yusuf Arakkal

MR. SHIBU HUSSAIN YUSUF ARAKKAL, AGED ABOUT 50 YEARS S/O MR.YUSUF ARAKKAL, R/AT NO.S01, MAGNOLIA APARTMENTS, NO.170, 5^TH MAIN, DEFENSE COLONY, INDIRANAGAR, BENGALURU-56 038.

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…RESPONDENT

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(BY SRI B.V. NIDHISHREE, ADVOCATE FOR C/RESPONDENT)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC., AGAINST THE ORDER DATED 18.12.2025 PASSED ON I.A.NO.II AND III IN O.S.NO.1402/2025 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE I.A.NO.II AND III FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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THIS APPEAL COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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NC: 2026:KHC:15132 MFA No. 1086 of 2026

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HC-KAR

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ORAL JUDGMENT

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The present miscellaneous first appeal is filed by the defendant in O.S. No.1402/2025, calling in question the legality and correctness of the common order dated 18.12.2025 passed by the IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru on I.A. Nos.II and III filed under Order XXXIX Rules 1 and 2 CPC, whereby the said applications filed by the plaintiff were allowed and defendant was restrained from alienating, exhibiting, showcasing, physically moving or otherwise dealing with artistic works created by late Yusuf Arakkal, pending disposal of the suit.

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Brief facts:

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Late Yusuf Arakkal, a renowned contemporary artist passed away on 04.10.2016, leaving behind valuable artistic works comprising paintings, sculptures, graphics, collages and other works in various mediums along with certain immovable properties.

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The plaintiff and defendant being the son and wife of the deceased respectively, are the only legal heirs. Subsequently, a registered partition deed dated 13.08.2021 came to be executed between the parties. Under the said deed:

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i. The immovable property described as Schedule ‘A’ property was allotted to the share of the plaintiff subject to the defendant having a life interest and a right of residence therein.

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ii. The Schedule ‘B’ property consisting of artistic

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works of late Yusuf Arakkal was allotted exclusively to the share of the defendant.

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It is also the case of the plaintiff that under the terms of the partition deed, the defendant had agreed that whenever an artwork of late Yusuf Arakkal is sold, 25% of the sale proceeds shall be deposited in the bank account of the plaintiff’s daughter and a statement regarding such sale would be furnished periodically. Alleging breach of the said condition by the defendant and contending that

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the defendant was exhibiting and selling artworks without disclosure, the plaintiff instituted O.S. No.1402/2025 seeking a declaration that the partition deed dated 13.08.2021 is null and void and also seeking consequential reliefs. Pending suit, the plaintiff filed I.A. Nos.II and III seeking temporary injunction restraining the defendant from alienating or exhibiting the artworks.

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The Trial Court by the impugned order dated 18.12.2025 allowed the said applications and restrained the defendant from dealing with the artworks pending disposal of the suit.

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Learned counsel for the appellant-defendant

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submits that the Trial Court has committed a grave error in granting the injunction despite the existence of a valid and a binding partition deed dated 13.08.2021, under which the entire ‘B’ schedule property consisting of artworks stood allotted exclusively to the appellant. It is further contended that the plaintiff has consciously

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relinquished his rights over the artworks and the appellant

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is entitled to exhibit and sell the same in terms of the settlement. It is also submitted that the appellant has complied with the obligation under the partition deed by depositing 25% of the sale proceeds of an artwork in the bank account of the plaintiff’s daughter, and therefore, no breach can be alleged. It is further urged that the injunction order virtually deprives the appellant, who is a senior citizen aged about 71 years, of her own livelihood, namely the exhibition and sale of artworks of her late husband. Hence, it is contended that the Trial Court has erred in a law holding that the plaintiff has established a prima facie case and balance of convenience lies in his favour.

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Per contra, learned counsel for the respondent-

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caveator supports the order passed by the Trial Court and submits that the defendant has failed to adhere to the obligation undertaken under the partition deed, particularly with regard to depositing 25% of the sale

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proceeds and furnishing statements regarding the sale of artworks. It is further contended that the defendant has been conducting exhibitions and selling artworks without transparency and without complying with the conditions of settlements. Therefore, it is submitted that unless the defendant is restrained from alienating the artworks, the plaintiff would suffer irreparable loss. Accordingly, it is contended that the Trial Court has rightly exercised its discretion in granting temporary injunction and the same does not warrant any interference.

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This Court has carefully considered the

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contentions urged and perused the material on record.

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9. The point that arises for consideration is:

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“Whether the impugned order passed by the Trial Court warrants any interference by this Court?”

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The origin of the power to grant injunction is

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equity, and it has been the discretion of the Court based on equitable considerations. It can be traced back to the

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equity jurisprudence of England, which in turn borrowed it from Roman law, where injunctions were called as ‘ interdictum’ . There were three types – prohibitory, restitutory and exhibitory. At the time of Henry VI, the injunction developed as a chancery remedy, whereby the Chancellor prohibited the execution of decrees issued by the common law Courts through this remedy. However, the same became a matter of conflict between chancery Court and the common law Courts. Finally, the matter was referred to the then Attorney General, Bacon, who settled the dispute in favour of the Chancellor. As a result, the remedy of injunction was affirmed and turned a strong arm of the Court of equity.

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When irreparable damage is suffered by an individual from the transaction of another individual, the same cannot be remedied through any other means, there arises a need for an injunction in order to stop other individual from doing those certain action. It is necessary for the Courts to grant injunction in order to enforce and

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protect the rights of the people and to prevent the breach of obligations that was in existence. While granting an injunction, the Court must also record reasons and objectives and how the delay would defeat the purpose of law in this regard.

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It is used as a preventive measure by restricting the one who creates a nuisance for others. It is an equitable relief that aims to provide equity under the law to restore the position of both parties.

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Order XXXIX CPC mentioned Rules governing temporary injunction. Rule 1 envisages the circumstances in which the Court can grant temporary injunction i.e., any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or the defendant threatens, or intends, to remove or dispose of his property with a view of defrauding his creditors, the defendant threatens to dispossess, the plaintiff or otherwise cause

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injury to the plaintiff in relation to any property in dispute in the suit.

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Rule 2 of the Code provides that a temporary injunction may be awarded for restraining the defendant from committing the breach of contract or any other breach of any kind to the plaintiff.

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Rule 3 states that the Court shall direct notice of the application to the opposite party before granting injunction to the plaintiff. However, if it seems to the Court that purpose of injunction would be defeated by the delay, it may not provide the notice.

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Rule 4 provides for the vacation of the already granted temporary injunction.

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Rule 5 states that an injunction directed to a corporation is binding not only on the corporation itself, but also on all the members and officers of the corporation whose personal action the injunction seeks to restrain.

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In the case of Shiv Kumar Chadha Vs.

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Municipal Corporation of Delhi¹ ( Shiv Kumar Chadha )

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the Apex Court has observed that the purpose of granting an interim injunction is to maintain the status quo.

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The Apex Court in the case of Gujarat Bottling Co. Ltd. Vs. Coca Cola Co. and others² (Gujarat Bottling) is the landmark judgment as to the guidelines to be followed by the Court while considering application for granting a temporary injunction. The three golden lines have been stated i.e.,

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i. An applicant seeking injunction must establish a prima facie case in his favour.

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ii. The Court must examine the conduct of the applicant, such conduct needs to be examined even at the stage when an application to set aside the order under Order XXXIX Rule 4 of the CPC has been filed .

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1 (1993) 3 SCC 161

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2 (1995) 5 SCC 545

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iii. The Court has to examine the comparative

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balance of loss that may be caused to the applicant and the respondent. If such an order is passed in such a case, the Court must first examine the extent of loss that will be caused to the applicant and also if such loss is repairable by monetary compensation, then the Court must examine the extent of loss that the respondent will incur if such an order is passed. The Court after examining the aforementioned aspects, the Court will see which party would incurs a greater loss, and the party that is likely to suffer greater and irreparable loss would have the balance of convenience in their favour and then, the Court must grant or refute the order accordingly.

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The Court has power to direct the party to deposit security or undertaking for payment of compensation if ordered. The Apex Court in Seema Arshad Zaheer and others Vs. Municipal Corporation

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of Greater Mumbai³ (Seema Arshad Zaheer) has held

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3 (2006) 5 SCC 282

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that salient features of prima facie case, the discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff.

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i. Existence of a prima facie case, as pleaded, necessitating protection of the plaintiff’s rights by issuance of a temporary injunction.

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ii. When the need for protection of the plaintiff’s rights is compared with or weighed against the need for protection of defendant’s rights or likely infringement of defendant’s rights, the balance of convenience tilting in favour of the plaintiff and

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iii. There must be a clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted.

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In addition, since a temporary injunction being an equitable relief, the discretion to grant such relief must be exercised only when the plaintiff's conduct is free from blame and he approaches the Court with clean hands.

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The Apex Court in Best Sellers Retail (India)

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Private Limited Vs. Aditya Birla Nuvo Limited and

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others⁴ (Aditya Birla Nuvo) has observed that a prima facie alone is not sufficient to grant a temporary injunction, if the injury is not irreparable, the grant of an injunction is not warranted.

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In the present case, the Trial Court, upon consideration of the pleadings, documents and rival submission, framed the usual three considerations governing the grant of a temporary injunction namely,

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a. Whether the plaintiff has established a prima facie case?

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b. Whether the balance of convenience lies in favour of the plaintiff?

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c. Whether the plaintiff would suffer irreparable loss and injury?

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The Trial Court observed that the defendant had

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not satisfactorily demonstrated compliance with the 4 (2012) 6 SCC 792

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obligation arising under the partition deed, particularly with regard to depositing the stipulated percentage of sale proceeds and furnishing statements relating to the sale of artworks. On that basis, the Trial Court held that the plaintiff has made out a prima facie case and that the balance of convenience was in his favour. Consequently, the Trial Court allowed I.A. Nos.II and III and restrained the defendant from alienating or exhibiting the artworks pending disposal of the suit.

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The dispute between the parties arises out of a partition deed dated 13.08.2021, which governs the rights of the parties in respect of the estate of late Yusuf Arakkal. It is not in dispute that under the said deed, the artistic works of late Yusuf Arakkal forming Schedule ‘B’ property were allotted exclusively to the share of the appellant, subject to the condition that 25% of the sale proceeds of the artwork shall be deposited into the account of the plaintiff’s daughter. The grievance of the plaintiff essentially relates to the alleged non-compliance with the

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said conditions. Whether the defendant has complied with the obligation under the partition deed or has committed breach thereof, are the matters which require evidence and adjudication before the Court during the course of trial. At the stage of considering an appeal against an order granting temporary injunction, this Court would not ordinarily interfere with the discretionary power of the Trial Court unless the same is shown to be arbitrary or perverse of the impugned order and it cannot be said that the trial Court has exercised its discretion in an arbitrary manner.

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The Trial Court has considered the terms of the partition deed and allegation regarding breach thereof and has recorded a prima facie finding for the limited purpose of granting interim protection pending trial. However, the order passed by the Trial Court does not warrant any interference and the point framed for consideration is answered and this Court pass the following:

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ORDER

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i. The miscellaneous first appeal stands dismissed . However, it is clarified that if the appellant files an affidavit before the Trial Court undertaking to deposit 25% of the sale proceeds of the artworks in terms of

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the partition deed, the Trial Court may consider modification of the interim order suitably and pass appropriate orders in accordance with law.

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ii. All the observations which are made herein are only for the purpose of deciding the present appeal and shall not influence the Trial of the suit on its merits.

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Sd/-

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_____________________ JUSTICE K.S. HEMALEKHA

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MBM

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List No.: 1 Sl No.: 51

Mrs Sarabai Yusuf v. Mr Shibu Hussain Yusuf Arakkal

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Mrs Sarabai Yusuf v. Mr Shibu Hussain Yusuf Arakkal

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