Smt Vinodha Lakshmi vs Sri P R Sainath
2022 Latest Caselaw 4976 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 17 T H DAY OF MARCH, 2022

                       BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

            MFA NO.5846 OF 2021 (CPC)

BETWEEN:

Smt Sang eetha
W/o P.R. Sathyaranayana
Aged about 45 years
Residing at No.40, Flat No.201
Comfort Sannidhi, Patalamma Temple Street
Basavangudi, Bang alore-56004.          ...App ellant

(By Sri M.S. Bhagwat, Sr. Counsel for
 Sri Satish K, Ad vocate)

AND:

1. Sri P.R. Sainath
   S/o Late P.M. Ramamurthy
   Aged about 58 years
   Residing at No.652/1
   Pandurang aswamy Temp le Street
   Bang arpet Town-563 114.

2. Sri P.R. Sathyanarayna
   S/o Late P.M Ramamurhy
   Aged about 51 years

3. Smt. Vinodha Lakshmi
   D/o Late P.M. Ramamurthy
   Aged about 67 years

Both respond ent Nos.2 and 3
are residing at NO.40, Flat NO.201
Confort Sannidhi,
                           :: 2 ::


Patalamma Temple Street
Basavangudi, Bang alore-560004.

4. Smt T.P. Saroja
   D/o Late P.M. Ramamurthy
   W/o T.K Prasad
   Aged about 65 years
   Now residing at No.T34 023
   New Haven Riva, Dasanap ura Village
   Near Golden Palms Hotel and Spa
   Dasanap ura Hobli, Dasanapura
   Bang alore Rural-562123.

5. Smt. V Jayasree
   D/o Late P. M Ramamurthy
   W/o P Venkateshana
   Aged about 55 years
   Now R/at No.1, S.V. Road
   Dharamap uri -636701.                  ...Respondents

(By Sri D. Prab hakar, Advocate for R1,
 Notice to R2 to 5 is d ispensed Vide ord er
 d ated 01.12.2021)

      This MFA is filed under Ord er 43 Rule 1(r) R/W
Section 151 of CPC, ag ainst the order dated
19.08.2021 p assed on I.A No.16 in O.S No.43/2015 on
the filed of the Senior Civil Judge and Prl. JMFC, KGF,
Kolar, rejecting the I.A No.16 filed und er order 39
Rule 4 R/w Section 151 of CPC.

      This MFA coming on for dictating the judgment
this d ay, the Court d elivered the following:

                      JUDGMENT

This appeal is filed by the sixth defendant in

O.S.No.43/2015 pending on the file of the Senior

Civil Judge and Principal JMFC, KGF.

:: 3 ::

2. In the suit there is an order of temporary

injunction restraining the defendants from

alienating the suit properties. The sixth defendant

made an application, as per IA No.16, under Order

XXXIX Rule 4 of CPC seeking relaxation of the

order to enable her to dispose of items 4, 6, 10

and 32 as she wanted money for performing the

marriage of her daughter. According to her, items

4, 6, 10 and 32 are her self acquired properties.

3. The Trial Court passed the impugned

order on IA No.16 dismissing the said application

on 19.08.2021, giving reason that the second

defendant had made a similar application as per IA

No.12 and it was rejected on 07.04.2018.

Therefore to entertain the application, IA No.16,

there are no changed circumstances.

4. It is submitted by Sri M.S.Bhagwat,

learned Senior Counsel for the appellant that items

4, 6, 10 and 32 of the suit are standing in the :: 4 ::

name of the sixth defendant/who is appellant

herein. This is not disputed by the plaintiff. IA

No.12 was made by the second defendant and

dismissal of that application would not come in the

way of relaxing the interim order of injunction.

5. Sri M.S.Bhagwat further submitted that,

the appellant has clearly stated that she wants

money to perform the marriage of her daughter

and moreover in the writ petition,

W.P.No.30387/2018, this Court observed that the

petitioner therein could make an application under

Section 52 of the Transfer of Property Act seeking

leave of the Court for the purpose of alienating the

properties. The appellant is the wife of the second

defendant, who was the petitioner in the writ

petition. The same liberty is also available to the

wife. The appellant has also made out a ground

for relaxing the order of temporary injunction

operating against her. In this view, the trial Court :: 5 ::

would have taken a decision to relax the order of

temporary injunction.

6. Sri D.Prabhakar, counsel for first

respondent though admits that items 4, 6, 10 and

32 of the suit properties stand in the name of the

appellant, he further submitted that if alienation is

permitted, it will result in multiplicity of

proceedings and therefore the Trial Court is

justified in rejecting IA No.16.

7. This is a suit for partition. The plaintiff

has included properties which are situated in many

places. But, it is not in dispute that items 4, 6, 10

and 32 stand in the name of the appellant.

Keeping in mind the scope of the partition suit, the

trial Court should have considered the appellant's

application. In a partition suit, if alienation is

permitted, the alienees could be impleaded in

accordance with Order XXII Rule 10 of CPC,

because of devolution of interest and that the :: 6 ::

purchaser or alienee's interest can be worked out

in the final decree proceedings.

8. The appellant wants money for the

purpose of performing marriage of her daughter.

The plaintiff has claimed 1/6 t h share in all the

properties. But the Court has to decide as to how

much share he is entitled to or whether at all he is

entitled to share in all the items of the properties.

The appellant is the wife of second defendant, and

for this reason, in case items 4, 6, 10 and 32 are

held to be amenable for partition, the share that

can be allotted to second defendant can be worked

out in favour of the alienees of the appellant,

subject to valuation of the properties. This being

the position, the Trial Court could have permitted

the appellant to sell or create any kind of

encumbrance in respect of items 4, 6, 10 and 32.

It has simply given the reason that because IA

No.12 is dismissed, IA No.16 cannot be allowed.

This reason cannot be sustained. Therefore I find :: 7 ::

a case that the impugned order is to be set-aside.

Hence the following:

ORDER Appeal is allowed.

The impugned order dated 19.08.2021, passed by the Senior Civil Judge and Prl. JMFC, KGF on IA No.16 in O.S.No.43/2015 is set-aside.

           IA    No.16   filed   by     the     appellant
    under       Order   XXXIX    Rule    4    of     CPC   is

allowed, subject to following conditions:

i) The appellant is permitted to alienate/encumber items 4, 6, 10 and 32;

ii) Before effecting alienation, names of the prospective purchasers or alienees and the consideration for sale or any kind of alienation should be informed to the Court.

iii) The other parties to the suit shall be informed of any kind of alienation that the appellant is going to effect.

:: 8 ::

Since the counsel for the appellant wants for a direction to the Trial Court for time frame disposal of the suit, instead of directing the Trial Court to dispose of the suit within a specified time, the parties are hereby directed to co-operate with the Court in disposal of the suit within a period of one year from today.

Sd/-

JUDGE

Kmv/-