Smt Neelakumari vs Smt Sheela Sandesh
2022 Latest Caselaw 9269 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 21ST DAY OF JUNE, 2022

                          BEFORE

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

       MISCELLANEOUS FIRST APPEAL NO.796/2019 (CPC)

BETWEEN:

1.     SMT. NEELAKUMARI
       W/O LATE SRI MAGANAHALLI
       SANGANA BASAPPA
       AGEDA BOUT 67 YEARS,

2.     SRI SANTOSH KUMAR
       S/O LATE SRI MAGANAHALLI
       SANGANA BASAPPA
       AGED ABOUT 46 YEARS,

       APPELLANTS NO. 1 AND 2 ARE
       RESIDING AT #1967/5
       B BLOCK, S S LAYOUT
       RING ROAD
       DAVANAGERE - 577 004.

3.     NAVODAYA VIDYA SAMSTE
       REP. BY ITS SECRETARY
       SRI SANTOSH KUMAR
       #1967/5, 'B' BLOCK
       S S LAYOUT, RING ROAD
       DAVANAGERE - 577 004.
                                    ... APPELLANTS
(BY SRI.L.M. CHIDANANDAYYA, ADVOCATE)

AND:

1.     SMT SHEELA SANDESH
       W/O LATE SRI SANDESH KUMAR
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     AGED ABOUT 32 YEARS
     R/O #1724/1, 3RD MAIN
     3RD CROSS, VINOBHA NAGAR
     DAVANAGERE - 577 004.

2.   KUM SAMBHRAMA
     D/O LATE SRI SANDESH KUMAR
     AGED ABOUT 13 YEARS
     R/AT #1967/5, B BLOCK
     S S LAYOUT, RING ROAD
     DAVANAGERE - 577 004.

3.   KUM SAGARIKA
     D/O LATE SRI SANDESH KUMAR
     AGED ABOUT 11 YEARS
     R/AT #1967/5, B BLOCK
     S S LAYOUT, RING ROAD
     DAVANAGERE - 577 004.

                                     ... RESPONDENTS
(BY SRI.S.Y. SHIVALLI, ADVOCATE FOR R1;
    NOTICE SERVED ON R2 & R3)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE
ORDER DATED 22.10.2018 PASSED ON IA NO.1 IN
O.S.NO.134/2018 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, DAVANGERE, PARTLY
ALLOWING IA NO.1 FILED U/O.39 RULE 1&2 OF CPC.

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

The appellants are the defendants in O.S.

No.134/2018 on the file of the III Additional Senior Civil

Judge and JMFC, Davanagere [for short, 'the civil

Court']. The civil Court by the impugned order dated

22.10.2018 has allowed the respondents' 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 appellants from alienating the different

immovable properties which are described in the

schedule to the plaint and hereinafter referred to as 'the

subject properties'. The civil Court, while restraining the

appellants from alienating the subject properties, has

also directed the parties to follow case flow management

rules for disposal of the suit within twenty-four months.

2. The suit in O.S. No.134/2018 is for partition

by the respondents. The relationship inter-se the parties

is not disputed, and the respondents are wife and

children of Sri Sandesh Kumar who is one of the sons of

the first appellant. The second appellant is the other

son. There is also no dispute that there is a partition in

the family under the registered Partition Deed dated

04.05.2017 during the lifetime of Sri Sanganabasappa,

the first appellant's husband.

3. The gist of the respondents' case is that this

partition is inequitable, and the appellants contend that

Sri Sandesh Kumar, who is a willing party to such

partition, has received cash in lieu of his rights.

Sri.Sanganabasappa after this partition has executed

his Last Will and Testament bequeathing the subject

properties in favour of the first defendant. The civil

Court has restrained the appellants from alienating the

subject properties [except 'C' schedule property] on a

prima facie view that the partition is inequitable, and

the execution of the last Will and Testament dated

05.05.2017 [wrongly mentioned as 05.05.2015 by the

civil Court] immediately after this partition establishes a

prima facie case for grant of temporary injunction.

4. The learned counsels for the parties

unanimously submit that the appeal could be disposed

of continuing the interim order calling upon the civil

Court to dispose of the suit in a time bound manner.

The learned counsels are categorical that all the parties

assist and co-operate with the civil Court in the

expeditious disposal of the suit. This Court is

persuaded to opine that, in the context of the dispute

amongst the family members and the fact that the

injunction has prevailed as against the appellants for

over three years, the appeal must be disposed of

without interference but calling upon the civil Court to

dispose of the suit on merits within a period of nine [9]

months from the date of the receipt of a certified copy of

this order while also calling upon the parties to assist

and co-operate with the civil Court in such time bound

disposal of the suit.

The appeal stands disposed of accordingly.

SD/-

JUDGE

AN/-