Karnataka High Court
Sri N Janardhan vs Smt Swetha N on 1 July, 2022
Bench: B.M.Shyam Prasad
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF JULY, 2022
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.2661/2022 (CPC)
BETWEEN:
SRI. N. JANARDHAN
AGED ABOUT 39 YEARS
S/O LATE NAGAPPA
R/AT NO.88, 5TH CROSS
1ST MAIN ROAD
MUNESHWARASWAMY
TEMPLE STREET
HOODI LAYOUT
AMRUTHAHALLI
BANGALORE - 560 092.
... APPELLANT
(BY SRI. P.B. RAJU, ADVOCATE)
AND:
1. SMT. SWETHA N
AGED ABOUT 27 YEARS
W/O SRI VINOD KUMAR
R/AT NO.5, 3RD CROSS
POOJA GARDEN
K CHANNASANDRA,
HORAMAVU
BANGALORE - 560 043.
2. SMT. ANUSUYA
AGED ABOUT 48 YEARS
W/O LATE NAGAPPA
R/AT WARD NO.22
H S GARDEN
-2-
CHIKKABALLAPURA DISTRICT
CHIKKABALLAPURA - 562 101.
... RESPONDENTS
(BY SRI. C.T. PARAMESHWARAPPA, ADVOCATE FOR R1;
NOTICE TO R2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC,
AGAINST THE ORDER DATED 02.02.2022 PASSED ON
I.A.NO.1 IN OS.NO.25194/2020 ON THE FILE OF THE 74TH
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO
HALL UNIT, BENGALURU, CCH-75, ALLOWING THE
I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant is the first defendant in
O.S.No.25194/2020 on the file of the LXXIV Additional
City Civil and Sessions Judge, Mayohall Unit,
Bengaluru ([for short, 'the civil Court']. The civil Court
by this impugned order dated 02.02.2022 has allowed
the plaintiff - first respondent's application [I.A. No.1]
under Order XXXIX Rules 1 and 2 of the Code of Civil
Procedure, 1908 [for short, 'the CPC'] restraining the
appellant from alienating or encumbering the two
immovable properties mentioned in the plaint for a
period of six months while also directing the parties to
co-operate with the Court for early disposal.
2. The relationship amongst the parties is not
disputed. The appellant is the son of Sri Nagappa
through his first wife Smt. Rathnamma and the second
respondent is his second wife and the first respondent
is their daughter. The first respondent has filed the suit
in O.S.No.25194/2020 for declaration that she has a
full legitimate share in suit schedule 'A' property and
one-third undivided share in suit schedule 'B' property
and for partition of these two properties by metes and
bounds as also for declaration that Gift Deed dated
4.4.2015 executed in favor of the appellant by his
mother - Smt. Rathnamma is not binding on her.
3. It is undisputed that the suit schedule 'A'
property is purchased in the joint names of Sri Nagappa
and Smt.Rathnamma. However, the controversy is
because of the rival claims between the appellant and
the first respondent. The first respondent contends that
this property, though purchased in the joint names, Sri
Nagappa absolutely owned the same and as such, he
has executed his last Will and Testament dated
9.3.2018 bequeathing this property in her favor. The
appellant contends that Smt.Rathnamma purchased
this property from out of the sale proceeds received by
the sale of her property and she has executed the
impugned Gift Deed dated 4.4.2015 in his favor.
4. The controversy between the appellant and
the first respondent insofar as the Schedule-B property
is also because of the rival claims. The first respondent
contends that though this property is purchased in the
name of the appellant, the sale consideration is paid
only by Sri. Nagappa and on his demise on 11.07.2019,
she has succeeded to this property along with the
appellant and the second respondent. The appellant
contends that Smt. Rathnamma's brother absolutely
owned this property, and he has purchased this
property from him for valuable consideration. The
Vendor, his maternal uncle, had constituted his father
as the Power of Attorney and therefore, his father has
executed the sale deed, but his maternal Uncle has
himself executed the later documents.
5. Sri. P.B. Raju, the learned counsel for the
appellant, submits that the appellant is aggrieved by the
entire impugned order but would confine this appeal to
the order insofar as it restrains the appellant from
dealing with his own property viz., the suit schedule 'B'
property. The learned counsel submits that though
there is some discussion on the merits of the respective
claims insofar as the schedule-A property, there is no
discussion or reasoning in restraining the appellant
from dealing with the Schedule-B property. The
appellant does not propose to transfer Schedule-B
property, but the injunction order can be construed as
restraining the appellant from even leasing or otherwise
dealing with the same. Therefore, this Court must
intervene in the matter.
6. On the other hand, Sri. C.T.
Parameshwarappa, the learned counsel for the first
respondent, submits that the appellant cannot assert
that the suit schedule 'B' property is his absolute
property because he cannot deny that Sri Nagappa has
paid the entire consideration. However, the learned
counsel cannot controvert that no document is placed
on record at this point of time to establish that
Sri.Nagappa has furnished the consideration for the
purchase of this property. The first respondent to
succeed in her claim would have to place on record
necessary materials to establish that notwithstanding
the title deeds being in the name of the appellant, this
property should be construed as the property held by
her father as his own. Until then, it cannot be said that
there would be prima facie case in her favour.
7. With the first respondent failing to establish
a prima facie case, there cannot be a blanket restriction
on the appellant dealing with the suit schedule-B
Property. The learned counsel for the appellant is
categorical that the appellant does not propose to sell
the suit schedule 'B' property, but he may have to lease
the same depending on the circumstances. The balance
of convenience and irreparable injury could be balanced
between the appellant and the first respondent
modifying the impugned order permitting the appellant,
without the leave to absolutely transfer the suit
schedule 'B' property, to grant lease or otherwise
manage the same without the interference by the first
respondent. Hence the following:
ORDER
[a] The appeal is allowed in part;
[b] The impugned order dated 02.02.2022
[I.A. No.1/2021] in O.S. No.25194/2020 of
the 74th Additional City Civil Judge,
Mayohall Unit, Bengaluru, is modified,
observing that the appellant could grant
lease or otherwise deal with the suit
schedule 'B' property but without absolutely
transferring the same in favour of a third
party during the pendency of the suit;
[c] The parties, as directed by the civil
Court, must assist in expeditious disposal.
SD/-
JUDGE
SA, AN/-
