Smt H V Kalpana Sundari vs Sri Vinay Krishna H V
2022 Latest Caselaw 9442 Kant

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        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 23RD DAY OF JUNE, 2022

                           BEFORE

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

        MISCELLANEOUS FIRST APPEAL NO.4210/2022 (CPC)

BETWEEN:
SMT. H. V. KALPANA SUNDARI
W/O G. V. SRIDHAR,
AGED ABOUT 64 YEARS,
R/AT NO.B2,
KRISHNA APARTMENTS,
6TH MAIN, 18TH CROSS,
MALLESHWARAM,
BENGALURU - 560 055
                                          ... APPELLANT
(BY SRI. SOURABH R. K., ADVOCATE)

AND:
1.     SRI VINAY KRISHNA H V
       S/O LATE H V NANDAKUMAR,
       AGED ABOUT 32 YEARS,
       R/AT NO.81, 4TH MAIN ROAD,
       BETWEEN 12TH AND 15TH CROSS,
       MALLESHWARAM,
       BENGALURU - 560 003.

2.     M/S NAGA CONSTRUCTIONS
       A PROPRIETORSHIP CONCERN,
       HAVING ITS OFFICE AT NO.242/3,
       18TH CROSS, 7TH MAIN,
       SADASHIVANAGARA,
       BENGALURU-560080
       REPRESENTED BY ITS PROPRIETOR,
       SRI G SELVA KUMAR,
       S/O SRI M C GURUSAMY.
                                           ... RESPONDENTS
(BY SRI.D.R. RAVISHANKAR, SENIOR ADVOCATE FOR
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   SRI. T..S. CHANDRAPRABHA, ADVOCATE FOR C/R1;
   SRI. B.S. MANJUNATH, ADVOCATE FOR C/R2)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE
ORDER DATED 30.05.2022 PASSED ON I.A.NO.I IN OS.NO.210/2022
ON THE FILE OF THE XIX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CCH.18, REJECTING THE I.A.NO.1 THE FILED
UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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

                           JUDGMENT

The appellant is the plaintiff in O.S.No.210/2022 on

the file of the XIX Additional City Civil and Sessions Judge,

Bengaluru City (for short, 'the civil Court'). The appellant

calls in question the civil Court's order dated 30.05.2022,

and the civil Court by this impugned order has rejected the

petitioner's application (I.A.No.1) under Order XXXIX Rule

1 and 2 read with Section 151 of the Code of Civil

Procedure, 1908 (for short, 'CPC').

2. This Court must record the circumstances

leading to the present suit and the civil Court's conclusions

before deciding on whether there should be any

interference with the impugned order. Sri. H.V.Krishna

Murthy is the undisputed owner of the subject property

[the property bearing No.81/2, PID No.7-3-81/2, 4th Main

Road between 13th and 15th Cross, Malleshwaram,

Bengaluru - 560 003]. On his demise in the year 1967,

Smt. H.V.Rajalaxmi (his wife), Sri. H.V.Nanda Kumar (his

son and the first respondent's father) and the appellant (his

daughter) have entered into a Palu Patti dated 20.01.1971.

The appellant was a minor at this time and therefore, her

mother has signed the Pallu Patti on her behalf.

Admittedly, in this partition, the appellant is given the

subject property, and in terms of this partition, the

appellant has continued as the owner in possession of the

schedule property until the year 2010.

3. On 24.03.2010, the appellant, her mother and

her brother (Smt. H.V.Rajalaxmi and Sri. H.V.Nanda

Kumar) have executed and registered the Partition Deed,

and in this partition, the parties have realigned their rights.

For the purposes of these proceedings, it would suffice for

this Court to record that the subject property is allotted to

Sri. H.V.Nanda Kumar and the appellant is allotted two [2]

units in the apartments building constructed in the

property allotted in the earlier partition to the appellant's

mother and her brother, Sri. H.V.Nanda Kumar. Further, a

certain agricultural land in Turahalli Village, Uttarahalli

Village, Bengaluru South Taluk is also allotted to Sri.

H.V.Nanda Kumar.

4. The Bengaluru Development Authority [BDA]

has acquired this land, and this has resulted in certain

proceedings before this Court, including the challenge to

the acquisition proceedings and a claim for allotment of

sites in lieu of compensation in terms of money. The

parties have also participated in a reference under Section

18 of the Land Acquisition Act 1894 and the appellant has

examined herself as one of the witnesses in such reference

proceedings. In her evidence in this reference, the

appellant has referred to the Partition Deed without any

caveat. She has not stated in her evidence that she had

any reservation about the terms of the Partition in the year

2010.

5. In the meanwhile, Sri. H.V.Nanda Kumar has

executed Gift Deed dated 08.06.2017 transferring the

subject property in favour of the first respondent. The

appellant and the first respondent have later signed

subsequent agreements i.e., Agreement dated 28.11.2019

and the Supplementary Agreement dated 24.02.2021. In

the first agreement, the first respondent has agreed to

share the compensation payable in terms of the reference

award with the appellant, and he has also agreed to

transfer to the appellant two [2] apartments, each

measuring 1500 Sq.ft., in the building proposed in the

subject property. The first respondent has later signed the

Joint Development Agreement with the second respondent

on 05.06.2020.

6. In the subsequent Supplementary Agreement

dated 24.02.2021, the appellant and the first respondent

have renegotiated the amount payable and the number of

apartments to be transferred. The appellant has agreed to

receive a sum of Rs.15,00,000/- as against the agreed

amount of Rs.40,00,000/- and to receive an additional

apartment as against the originally agreed two [2]

apartments. The appellant and the first respondent have

detailed the facilities that will have to be provided by the

first respondent in the three [3] apartments with the first

respondent also agreeing that if there is any default in the

delivery of possession of the subject three [3] apartments,

he would pay a sum of Rs.40,000/- to Rs.60,000/- every

month.

7. It is not disputed that as of the date of the suit

viz., 07.01.2022, the second respondent (the developer),

who has entered into the aforesaid Joint Development

Agreement with the first respondent, has started

construction and the subject property, though defined as a

vacant plot in the plaint schedule, was not so even as of the

date of the suit.

8. The appellant has filed the present suit for

declaration that the Partition Deed dated 24.03.2010, the

subsequent Gift Deed dated 08.06.2017 in favour of the

first respondent, the Joint Development Agreement and the

contemporaneous Power of Attorney in favour of the second

respondent are null and void and not binding on the

plaintiff. The appellant in fact, seeks declaration that the

Partition Deed dated 24.03.2010 is void ab initio. The

appellant has asserted that the cause of action for the suit

is when she came to know that her deceased brother, Sri.

H.V.Nanda Kumar, and the first respondent have played a

fraud on her in obtaining the Partition Deed dated

24.03.2010.

9. The appellant has filed an application under

Order XXXIX Rule 1 and 2 of CPC for "temporary injunction

restraining the respondents and their agents from alienating,

encumbering or altering the nature of the suit schedule

property (described as a vacant site)" during the pendency

of the suit. The civil Court has rejected this application for

three fold reasons: the civil Court has opined that the

appellant has not challenged the agreement dated

28.11.2019 or the Supplementary Agreement dated

24.02.2021; the appellant has not approached the Court

with clean hands; the appellant has failed to prove the

balance of convenience or irreparable hardship. The civil

Court, which has recorded certain observations, has also

recorded that those observations are only for deciding the

application and cannot affect the merits of the case.

10. Sri. Sourabh R.K., the learned counsel for the

appellant, submits that the civil Court has failed to

consider that a partition cannot be revisited, and if it so

revisited, it would be hit by Section 23 of the Indian

Contract Act 1872. Therefore, the impugned Partition Deed

dated 24.03.2010 is void ab initio. Even if there are

repeated references and admissions as regards the Partition

Deed dated 24.03.2010 in the Agreement dated 28.11.2019

and the Supplementary Agreement dated 24.02.2021, such

references or admissions cannot confer any rights under

the Partition Deed. Therefore, the appellant has made out

a prima facie case for grant of injunction.

11. Sri. Sourabh R.K further submits that in law,

the appellant would be required only to challenge those

documents which are used to deprive her title. Therefore, it

would suffice for the appellant to challenge the Partition

Deed dated 24.03.2010, and she is not required in law to

challenge either the Agreement dated 28.11.2019 or the

Supplementary Agreement dated 24.02.2021. If the

Partition Deed fails, so must these agreements. Even

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otherwise, the appellant need not impugn the agreements

given the circumstances of the case.

12. Per contra, Sri. D.R.Ravishankar, the learned

Senior counsel for the first respondent, submits that the

Partition Deed dated 24.03.2010 and the subsequent

agreements constitute a composite transaction. This

Partition Deed and the subsequent agreements relate not

only to the land acquired by the BDA and the subject

property but also to the two [2] apartments allotted to the

appellant in the apartments building constructed in the

property allotted to her mother and brother in the earlier

partition. The appellant is in possession and control of

these two [2] apartments for many years. The appellant is

elective in her reasons to challenge the Partition Deed dated

24.03.2010 and that would amount to approbating and

reprobating. If the appellant is guilty of approbating and

reprobating, a proposition that is an offshoot of the rule of

equity, the Courts must reject the application for temporary

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injunction. The civil Court has therefore rightly rejected

the application.

13. The learned Senior counsel, as regards the

reasons for executing the Agreement dated 28.11.2019 and

the subsequent Supplementary Agreement dated

24.02.2021, submits that the records would bear out that

the appellant, a law graduate, has constrained the

appellant to execute these agreements, and the present suit

is another effort to constrain the first respondent. He

argues that the Agreement dated 28.11.2019 is executed

just before an application is filed to bring her on record as

a legal representative of the deceased mother in the

reference under Section 18 of the Land Acquisition Act,

1894 and the Supplementary Agreement dated 24.02.2021

is executed just a day before she appeared before the

reference Court to file her affidavit in lieu of examination in

chief. He takes pains to argue that the appellant, who has

had detailed the negotiations on the nature of the

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completion of the apartments and the damages to be paid

in the event of delay, cannot allege any fraud in execution

of the Partition Deed dated 24.03.2010.

14. This Court must, at the outset, record that in

exercise of the appellate jurisdiction, this Court will not

substitute the civil Court's discretion unless this Court is

persuaded to opine that such exercise of discretion is either

perverse or contrary to the law. This Court must refer to

the decision of the Hon'ble Supreme Court in Wander Ltd.

And Anr. vs Antox India P. Ltd., reported in 1990 Supp

(1) SCC 727.

15. It is undeniable that the appellant, who is a

party to the impugned Partition Deed dated 24.03.2010 as

also the subsequent agreements, has not raised any

complaint about the execution of these documents until

she has filed the present suit and when she files the suit,

though she mentions that the construction is commenced

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for building apartments building, she describes the

property as a vacant site. The appellant has agreed to

receive certain advantages not only under the impugned

Partition Deed but also the subsequent agreements. Unless

the appellant establishes circumstances to show that these

documents would be nebulous notwithstanding the benefits

she has accepted, she would not be entitled to any relief.

The plaint averments do not suffice to make out a prima

facie case in this regard. This Court, at this stage, must

opine that, in the facts and circumstances of the case, the

appellant cannot renege on different sets of transactions

only on the ground that the Partition Deed dated

24.03.2010 is hit by the provisions of Section 23 of the

Indian Contract Act, 1872.

16. Further the appellant cannot, even at this stage,

cannot dispute that she has not come out with all the

circumstances surrounding the execution of the impugned

Partition Deed or the subsequent documents. Thus, there is

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undeniable delay and suppression of material facts, and

both these circumstances militate against grant of

temporary injunction. As such, this Court is of the

considered view that the civil Court has not erred in

exercise of its jurisdiction in rejecting the appellant's

application.

There is no reason for interference, and the appeal

stands disposed of accordingly.

SD/-

JUDGE

RB