Mrs M Tejeswini vs Smt Muniyamma Since Deceased Lrs ...
2022 Latest Caselaw 8872 Kant

                               -1-



            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 15TH DAY OF JUNE, 2022


                           BEFORE

        THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

     MISCELLANEOUS FIRST APPEAL NO.5352/2021 (CPC)

BETWEEN:

1.     MRS M TEJESWINI
       D/O S MANJUNATH,
       AGED ABOUT 25 YEARS,

2.     MRS M SOWMYA
       D/O S MANJUNATH,
       AGED ABOUT 21 YEARS,

       BOTH ARE RESIDING AT 169,
       NAGAVARAPALYA,
       YELLAMMA TEMPLE ROAD,
       CV RAMANAGAR POST,
       BANGALORE 560093.
                                          ... APPELLANTS
(BY SRI. S RAMA MURTHY, ADVOCATE)

AND:

SMT MUNIYAMMA
SINCE DECEASED (LRS ARE ALREADY ON RECORD)

       1.     MRS MANJULA
              AGED ABOUT 51YEARS,
                          -2-



        WIFE OF SRINVIAS,
        D/O LAET DODDANNA,
        RESIDING AT PORTION NO. 428,
        MOTAPPANAPALYA INDIRNAGAR,
        BANGALORE 560038.

   2.   SRI RAJESH
        SON OF SRINIVAS,
        AGED ABOUT 32 YEARS,

   3.   KAVYA
        D/O SRINIVAS,
        AGED ABOUT 24 YEARS,
        RESPONDENTS 3 AND 4 ARE
        RESIDING AT NO.428,
        MOAPPANAPALYA,
        BANGALORE 560038.

   4.   SRI S MANJUNATH
        AGED ABOUT 54 YEARS,
        SON OF LATE SHAMANNA,
        169, NAGAVARA PALYA,
        YELLAMMATEMPLE ROAD,
        C.V.RAMAN NAGAR POST,
        BANGALORE 560093

                                 ... RESPONDENTS
(BY SRI. AMARESH A ANGADI, ADVOCATE FOR R1 TO R3)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(s) OF THE CPC, PRAYING TO
SET ASIDE THE ORDER DATED 17.03.2021 ON
I.A.NO.1/2021 UNDER ORDER XL RULE 1 READ WITH
SECTION 151 OF CPC BY DEFENDANTS 2 AND 3 IN
O.S.NO.25881/2013 ON THE FILE OF THE LEARNED
                                   -3-



LXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
MAYO HALL (CCH73) BANGALORE AND ETC.

    THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                           JUDGMENT

The defendants in O.S.No.25881/2013 on the file of

the LXXII Additional City Civil and Sessions Judge, Mayo

Hall, Bengaluru (for short, 'the civil Court'), have impugned

the civil Court's order dated 17.03.2021. The civil Court by

this impugned order has rejected the appellants'

application (I.A.No.1/2021) under Section XL Rule 1 read

with 151 of the Code of Civil Procedure, 1908. The

appellants have filed this application for directions to the

first respondent (the first plaintiff) to deposit the rents

received by her from the tenants in possession of the

different tenements in the immovable properties described

in the plaint schedule.

2. The first to third respondents [the first plaintiff

and her children] in filing the present suit for partition have

asserted 1/3rd share in the suit schedule properties and

seek declaration that the gift deed executed by

Smt. Muniyamma (the deceased first defendant) on

03.11.2010 in favour of the appellants as null and void.

The relationship between the parties are not disputed. The

deceased first defendant, Smt. Muniyamma and Sri.

Doddanna are the parents, and the first respondent and

Late Hemavathi are their daughters. The appellants and

the fourth respondent are the legal heirs of the deceased

daughter.

3. According to the respondents - plaintiffs, the

suit schedule properties were purchased by the father in

the name of the mother and the mother, after the demise of

their father, could not have executed the gift deed

transferring the suit schedule properties in favour of the

appellants [the children of the predeceased daughter]. The

appellants have contested the suit denying these assertions

but admitting that the first plaintiff [the first respondent] is

collecting rents from the tenants.

4. The civil Court has rejected the application

referring to the principles that will have to be considered for

appointment of an arbitrator. The civil Court has also

observed that one of the factors which will have to be

considered is whether in appointing a receiver, there would

be deprival of de facto possession of the defendants. The

civil Court, in exercising its discretion to reject the

appellants' application, has also considered certain facts

asserted by the first respondent such as, she was looking

after the deceased mother during her last days incurring

medical expenses and some of the premises are vacant.

5. Sri. S.Rama Murthy, the learned counsel for the

appellants, submits that presently, the first respondent has

examined herself as PW.1 and it has come out in her cross

examination that she has not filed her suit for partition for

a share in the subject property to herself but to secure a

share for children. This would demonstrate that the first

respondent has initially filed the suit without justifiable

ground and this must be one of the circumstances that

should be considered.

6. Be that as it may, it is now undisputed that the

respondents have completed the chief examination of their

witness/es and such witness/es must be cross examined

on behalf of the appellants. The application for

appointment of a receiver is filed much after the

commencement of the suit, and the first respondent, in all

events, will have to render the accounts. In the light of

these circumstances, this Court is not persuaded to opine

that the civil Court has erred in rejecting the appellants'

application.

7. The suit is pending for about ten years and the

parties must co-operate with the civil Court in expeditious

disposal of the suit. This Court has issued directions for

expeditious disposal of the suit that are pending for more

than ten years. The civil Court is therefore, called upon to

identify the present case as one of the long pending matters

and ensure there is speedy disposal.

The appeal stands disposed of accordingly.

SD/-

JUDGE

RB