Karnataka High Court
K Mohammed Younus vs Shazama Sultana on 1 August, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:26743
MFA No. 3796 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 3796 OF 2023 (CPC)
BETWEEN:
1. K. MOHAMMED YOUNUS
AGED ABOUT 45 YEARS,
S/O. K. KHALEEL AHAMED
RESIDING AT FLAT NO, 610
NO.232/1, SYCON CRESSIDA,
HORAMAVU, DODDA BANASWADI POST,
BANGALORE-560 043.
2. TANVEER PASHA K.,
S/O. K. KHALEEL AHAMED
AGED ABOUT 42 YEARS
RESIDING AT NO. KV 621,
HANIFIYA MASJID ROAD,
KUSHAL NAGAR, 8TH CROSS
BANGALORE - 560 045.
Digitally signed
by SHARANYA T
Location: HIGH 3. ZAKIR HUSSAIN K.,
COURT OF
KARNATAKA S/O. K. KHALEEL AHAMED
AGED ABOUT 40 YEARS
RESIDING AT FLAT NO. G-01,
NO.232/1, SYCON CRESSIDA,
HORAMAVU, DODDA BANASWADI POST,
BANGALORE - 560 043.
4. K. MOHAMMED JAFFAR
S/O. K. KHALEEL AHAMED
AGED ABOUT 38 YEARS,
RESIDING AT FLAT NO. 202,
NO.232/1, SYCON CRESSIDA,
-2-
NC: 2023:KHC:26743
MFA No. 3796 of 2023
HORAMAVU, DODDA BANASWADI POST,
BANGALORE - 560 043.
5. MOHAMMED HABEEB K.,
S/O. K. KHALEEL AHAMED
AGED ABOUT 31 YEARS,
RESIDING AT FLAT NO. G-06,
NO.232/1, SYCON CRESSIDA,
HORAMAVU, DODDA BANASWADI POST,
BANGALORE - 560 043.
...APPELLANTS
(BY SRI SAMPAT ANAND SHETTY, ADVOCATE)
AND:
1. SHAZAMA SULTANA
W/O. LATE KHALEEL AHMED
AGED ABOUT 62 YEARS,
RESIDING AT FLAT NO.708,
SYCON CRESSIDA,
HORAMAVU ROAD,
NEXT TO K. COMPLEX,
BANGALORE - 560 043.
2. ABDUL KHADAR
S/O. K. KHALEEL AHAMED
AGED ABOUT 36 YEARS,
RESIDING AT FLAT NO. 708,
NO.232/1, SYCON CRESSIDA,
HORAMAVU, DODDA BANASWADI POST,
BANGALORE - 560 043.
3. WALARAM
MAJOR,
PROP. SURAJ MINI MARKET,
SHOP NO.1 AND 2, GROUND FLOOR,
K. COMPLEX, HORAMAVU MAIN ROAD,
BANGALORE - 560 043.
4. YOGANAND JOHN
MAJOR,
-3-
NC: 2023:KHC:26743
MFA No. 3796 of 2023
GLOBAL MISSION TEAKWOOD ACADEMY
(KARATE TRAINING INSTITUTE),
3RD FLOOR, K. COMPLEX,
HORAMAVU MAIN ROAD,
BANGALORE - 560 043.
5. PRADEEP KUMAR
MAJOR,
PROP. DIGITAL STUDIO,
SHOP NO.14, FIRST FLOOR,
K. COMPLEX,
HORAMAVU MAIN ROAD,
BANGALORE-560 043.
6. AKHIL
MAJOR,
PROP. DTDC COURIER SERVICES
SHOP NO. 11, FIRST FLOOR,
K. COMPLEX,
HORAMAVU MAIN ROAD,
BANGALORE - 560 043.
7. RAMESH G.
MAJOR,
PROP. EXPERT OPTICALS,
SHOP NO.9, GROUND FLOOR,
K. COMPLEX,
HORAMAVU MAIN ROAD,
BANGALORE - 560 043.
8. K. CHANDRAKANTH
MAJOR,
PROP. S.R. BAKERY AND SWEETS,
SHOP NO.7 AND 8, GROUND FLOOR,
K. COMPLEX, HORAMAVU MAIN ROAD,
BANGALORE - 560 043.
9. RANCHHODARAM
MAJOR,
PROP. MAHADEV FANCY
AND GIFT GARDEN,
SHOP. NO. 6, GROUND FLOOR,
-4-
NC: 2023:KHC:26743
MFA No. 3796 of 2023
K. COMPLEX, HORAMAVU MAIN ROAD,
BANGALORE - 560 043.
10. PRAKASH
MAJOR
PROP. PRAKASH HARDWARE,
SHOP NO. 3 AND 4, GROUND FLOOR,
K. COMPLEX, HORAMAVU MAIN ROAD,
BANGALORE - 560 043
11. M.H. NAGARAJU
MAJOR,
PROP. SLR DRIVING SCHOOL,
SHOP NO.12 AND 13
(OLD NOS. 14 AND 15),
1ST FLOOR, K. COMPLEX,
HORAMAVU MAIN ROAD,
BANGALORE - 560 043.
12. GORAMMA
MAJOR, PROPRIETRIX,
PROFESSIONAL MEN'S SALOON,
SHOP NO.15 AND 16
(OLD NOS. 6 AND 7),
FIRST FLOOR, K. COMPLEX,
HORAMAVU MAIN ROAD,
BANGALORE - 560 043.
13. HARI PRASAD
MAJOR, ADVOCATE,
SHOP NO. 14, FIRST FLOOR,
K. COMPLEX, HORAMAVU MAIN ROAD,
BANGALORE - 560 043.
...RESPONDENTS
(BY SMT. SYEDA SHEHNAZ, ADVOCATE FOR
SRI BALAKRISHNA V., ADVOCATE FOR R1;
SRI K.NARAYAN SWAMY, ADVOCATE FOR R2;
SRI SHIVA PRASAD GANTE, ADVOCATE FOR R3 TO R13)
-5-
NC: 2023:KHC:26743
MFA No. 3796 of 2023
THIS MFA IS FILED U/O. 43 RULE 1(r) R/W. SECTION 151
OF CPC, AGAINST THE ORDER DATED 22.05.2023 PASSED ON
I.A.NO.1/2023 IN O.S.NO.863/2023 ON THE FILE OF THE LII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
CCH-53, ALLOWING THE I.A.NO.1/2023 FILED UNDER ORDER
39, RULE 1 AND 2 R/W. SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter was heard in part earlier and today, I have
heard the learned counsel for the appellants and learned
counsel for the respondents.
2. This appeal is filed challenging the order dated
22.05.2023 passed on I.A.NO.1/2023 in O.S.No.863/2023
passed by the Trial Court in granting an order of injunction
against the appellants by allowing the application filed under
Order 39, Rule 1 and 2 read with Section 151 of C.P.C.
directing the tenants, who have been arrayed as defendant
Nos.7 to 17 to deposit the rent pertaining to their tenements in
the suit schedule property to the savings back account of the
plaintiff namely, Mrs. Shazaman Sultana bearing Account
No.1262500100438901 from the date of the order and while
NC: 2023:KHC:26743
MFA No. 3796 of 2023
passing the order, it was also made clear that the amount
deposited by the tenants to the plaintiff's bank account is
subject to other terms and conditions of the Memorandum of
Understanding ('MOU' for short) dated 13.06.2019.
3. The main contention of the respondent No.1-
plaintiff before the Trial Court is that the property belongs to
her and she executed the gift deed in favour of her children
i.e., defendant Nos.1 to 3 on 13.06.2019 and the same is
executed in good faith that the sons will comply with the terms
and conditions of the MOU, since on the date of the execution
of the gift deed, a MOU was also entered into between the
parties with the conditions, wherein a specific averment is
made that the rents which have been collected by the tenants
have to be transferred to the account of the plaintiff and they
failed to comply with the terms and conditions of MOU and
since they failed to deposit the rent to the plaintiff's account as
agreed, there is a clear violation of the terms and condition of
MOU dated 13.06.2019 and sought for declaration that the gift
deed dated 13.06.2019 be revoked and direct the defendant
Nos.7 to 17 to deposit the rent to the plaintiff's bank account
and also sought for the relief of temporary injunction, wherein
NC: 2023:KHC:26743
MFA No. 3796 of 2023
prayed the Court to direct the tenants to deposit the rent and
reiterated the averments of the plaint in the application. In
support of the application, an affidavit is sworn to reiterating
the grounds of the plaint and contend that there is a clear
violation of terms and conditions of the MOU.
4. The defendant Nos.1 to 4 and 6 have filed the
objection statement contending that the very suit itself is not
maintainable. It is contended that, 17 guntas of land in
Sy.No.124/2 totally measuring 2 acres, 22 guntas of land was
gifted to husband of plaintiff by late Khaja Ahmed @ Basha.
The khatha of the said property was changed in the name of
husband of the plaintiff namely, Khaja Ahmed @ Basha. He
has got converted the suit schedule property for residential
purpose by obtaining the order from competent authority on
09.12.2009 and he was collecting rents and maintaining all the
household expenses and he became sick and he was unable to
look after the property. The defendant No.5 has demanded for
his share. At the instigation of defendant No.5, husband of
plaintiff has transferred the suit schedule property by way of
Hiba to plaintiff on 23.03.2010 under registered gift deed.
After execution of the gift deed, the defendant No.5 tried to
NC: 2023:KHC:26743
MFA No. 3796 of 2023
transfer the suit property in his name from the name of
plaintiff. After defendant Nos.1, 4 and 6 coming to know about
said illegal acts of defendant No.5, have sought for intervention
of relatives of their father.
5. It is also contended that under the intervention and
instructions of relatives of the father of defendant Nos.1 to 6,
the property has been divided into equal share between the
plaintiff and defendant Nos.1 to 6 and registered gift deed was
executed on 13.06.2019 by the plaintiff. It is also contended
that plaintiff and defendant No.5 were unhappy from that time
and defendant No.5 started to demand more share in the suit
schedule property. The defendant No.5 started to make galata
with the tenants and FIR also came to be registered. It is also
the contention that as per the gift deed, the defendant Nos.1 to
4 and 6 changed khatha in their names and they have pledged
their representative shares with the financier and they have
borrowed loan of Rs.50 lakhs to renovate the suit schedule
property and they have spent more than Rs.80 lakhs for said
renovation. It is further contended that the plaintiff and
defendant No.5 have not shown any interest for any
development of suit property. The defendant Nos.2 and 6 have
NC: 2023:KHC:26743
MFA No. 3796 of 2023
opened joint account in HDFC Bank bearing
No.50100294638116 at Horamavu Branch, all the tenants are
transferring the rents to the said account. The defendant Nos.1
to 4 and 6 are managing the said account and they are jointly
paying loans and spending some amount for other household
expenses. It is also contended that defendant Nos.1 to 4 and 6
paying Rs.3,28,000/- to various lenders from the income of
rent and from their personal income. The plaintiff and
defendant No.5 are taking benefit, but they are not joining their
hands for maintenance or repayments.
6. The Trial Court, having considered the pleadings of
the parties, formulated the points whether the plaintiff proves
that she is entitled for the relief sought in I.A.No.1/2023,
whether the plaintiff proves that the balance of convenience lies
in her favour and whether the plaintiff proves that she would be
put to irreparable hardship, injury and loss, if the interim
injunction order is not granted.
7. The Trial Court, having considered the pleadings in
the application, the statement of objections, the gift deed dated
13.06.2019 and also considering the fact that the plaintiff in
- 10 -
NC: 2023:KHC:26743
MFA No. 3796 of 2023
the plaint contended that on the very same day i.e., on
13.06.2019, a MOU also came into existence and claim that in
terms of the said MOU, even though the sons are having right
to collect the rent, they have to transfer the rents to the
account of the mother. Hence, considering the gift deed and
also the relief sought in the plaint i.e., for a declaration to
revoke the gift deed and also considering the averments made
in the MOU, comes to the conclusion that the plaintiff has made
out a prima facie case and balance of convenience lies in her
favour and if an order of injunction is not granted, the plaintiff
would be put to hardship and irreparable loss. Hence, granted
the relief directing the defendant Nos.7 to 17 to pay the rent
and also comes to the conclusion that, if the interim order of
injunction as prayed for by the plaintiff is not granted, the
tenants of the suit schedule property will go on depositing the
rentals in the bank account of defendant No.1. If the same is
permitted, there is a possibility of misusing the rental amount
by the defendant Nos.1 to 6 and if the interim order is not
granted, it will defeat the rights of the plaintiff under the MOU
to receive the rentals of the suit schedule property. Being
- 11 -
NC: 2023:KHC:26743
MFA No. 3796 of 2023
aggrieved by the said order, the present appeal is filed before
this Court.
8. Learned counsel for the appellants would
vehemently contend that the very execution of the MOU dated
13.06.2019 which is produced as plaint Annexure-E is not a
registered document and as such, the same cannot override the
absolute convenience made by the plaintiff in favour of the
appellants by means of the said registered gift deed. In other
words, the alleged non-compliance of condition stipulated in the
said MOU would not confer any right on the plaintiff to revoke
the registered gift deed executed by her in favaour of the
appellants on the very same day. The counsel also would
vehemently contend that the aforesaid MOU relied upon by the
plaintiff evidently is a created document inasmuch as there is
insertion of account number on the copy of the document. The
counsel, in support of his argument, placed the true copy of
MOU as document No.3, wherein account number is mentioned
and also placed Notarized copy of the MOU as document No.4,
wherein no account number is mentioned and also placed the
original documents before this Court, wherein no such
mentioning of the account number is found.
- 12 -
NC: 2023:KHC:26743
MFA No. 3796 of 2023
9. The counsel would vehemently contend that, in
view of the execution of the gift deed, tenants are making
payment in favour of the appellants. The counsel also would
vehemently contend that some of the tenancy is also renewed
subsequent to the execution of the gift deed and the appellants
are also paying the housing loan and car loan from out of the
account maintained by the defendant No.2 in the HDFC Bank till
April, 2023 and the Trial Court not considered the same, even
though all the details were given before the Trial Court while
considering the application filed under Order 39, Rule 1 and 2
read with Section 151 of C.P.C. The counsel also brought to
notice of this Court document No.7 i.e., statement of account
maintained in Karnataka Bank, wherein periodically the
payments are made in favour of the plaintiff. The counsel
would vehemently contend that the very approach of the Trial
is erroneous and the gift deed executed is a registered
document and there is no recital in the gift deed as to the
revocation and the same is not a conditional gift deed. Hence,
the order passed by the Trial Court requires to be set aside.
10. Per contra, learned counsel for the respondents
would vehemently contend that the amount of rent collected is
- 13 -
NC: 2023:KHC:26743
MFA No. 3796 of 2023
Rs.3,50,000/- per month and almost 49 months have elapsed
and it amounts to Rs.1,71,00,000/-. But, in terms of the
grounds urged in the appeal memo, it is specifically pleaded
that an amount of Rs.16 lakhs was paid and the Court has to
take note of the amount of Rs.1,71,00,000/- but, only Rs.16
lakhs is admitted by them in Para No.7 of their own appeal
memorandum. The counsel also would vehemently contend
that though the appellants deny the very execution of MOU, the
same came into existence on 13.06.2019 itself i.e., on the date
of execution of the gift deed and the same also to be
considered. It is also contended that the MOU contains the
signature of the appellants as well and when conditions are
imposed in the MOU with regard to the receipt and payment of
rents, the same has to be transferred to the account of the
mother and the very appellants, who are none other than the
sons of the respondent No.1-mother, not complied with the
conditions of the MOU and they are making their self-
enrichment by collecting the rents. The counsel also would
vehemently contend that the other son also filed a memo
stating that he is not having any objection to transfer the
amount in terms of the MOU and now, the counsel for the
- 14 -
NC: 2023:KHC:26743
MFA No. 3796 of 2023
appellants has filed the affidavit bringing the details of the
other properties and flat numbers and the same is not the issue
herein and now the only issue is with regard to the execution of
the gift deed and seeking the relief of declaration to revoke the
gift deed.
11. In reply to the arguments of the learned counsel for
the respondents, learned counsel for the appellants would
submit that, on the last occasion, the memo was filed stating
that the gift deed came into existence only in duress and
hence, additional affidavit is filed before the Court to
substantiate that the same is not executed under duress and no
such condition was imposed while executing the gift deed.
Hence, it requires interference of this Court to set aside the
order passed by the Trial Court.
12. Having heard the learned counsel for the appellants
and learned counsel for the respondents and the very
contentions urged in the appeal as well as the oral submissions
of the respective counsel, the points that would arise for
consideration of this Court are:
- 15 -
NC: 2023:KHC:26743
MFA No. 3796 of 2023
(1) Whether the Trial Court has committed an
error in allowing the application filed under
Order 39, Rule 1 and 2 read with Section 151
of C.P.C. in directing the tenants i.e.,
defendant Nos.7 to 17 to deposit the rent and
whether it requires interference of this Court?
(2) What order?
Point No.(1)
13. Having heard the respective counsel and also on
perusal of the averments made in the plaint, the prayer made
is for a declaration to revoke the registered gift deed dated
13.06.2019 and relief is also sought for a direction to the
defendant Nos.7 to 17 to deposit the rent to the bank account
of the plaintiff. The learned counsel for the appellants would
contend that the granting of relief by the Trial Court nothing
but a mandatory injunction as sought in prayer (b) of the plaint
and the Trial Court ought not to have granted the interim-relief,
since the registered document of gift deed is not a conditional
gift deed. The contention of the respondents is that, as on the
date of execution of the gift deed i.e., on 13.06.2019, a
document of MOU also came into existence and in terms of the
MOU, a clause is made that the first parties has to declare that
- 16 -
NC: 2023:KHC:26743
MFA No. 3796 of 2023
the second parties shall be liable to receive all the benefits and
rentals which arise from the building till their will and wish and
C.K. Mohammed Younus, shall be sole responsible to interact
with tenant of the building and no other brothers shall interfere
with the building occupants and the rental shall be transferred
to one particular account. But, there are two documents
produced before the Court by the learned counsel for the
appellants and one bears the account with IFSC code and the
other one is blank. Learned counsel for the appellants also
placed the true copy of document of MOU and also notarized
copy of MOU, but in the original document, no account number
is mentioned and the same is blank. But, on perusal of the
documents, it is seen that all the parties have signed the
documents as first parties and second parties, including the
plaintiff and another son and the same consists the signature of
the plaintiff and the husband of the plaintiff as second parties
and the children are the first parties in the said document.
14. Learned counsel for the appellants would
vehemently contend that no such document of MOU came into
existence and the document is not a registered document. But,
the original is placed before the Court which evidences the fact
- 17 -
NC: 2023:KHC:26743
MFA No. 3796 of 2023
that on the day of execution of the gift deed, a document of
MOU also came into existence which contains the signature of
all the parties and prima facie, right is given to the mother as
well as the father for collecting the rents and the appellant No.1
is given right to interact with the tenants of the building and no
other brothers shall interfere with the building occupants and
the rentals shall be transferred to one particular account. Now,
it is the contention of the respondent No.1 that rents are not
transferred. However, learned counsel for the appellants
brought to notice of this Court document No.7-statement of
bank account that some of the amounts are transferred to the
respondent No.1-mother. Learned counsel for the respondents
disputes that the same is a separate account created by
themselves, but in the order passed by the Trial Court, the
Court directed the defendant Nos.7 to 17 to deposit the rent
from the date of the order and whether the earlier amount is
paid to the plaintiff by the appellants or not has to considered
at the time of considering the matter on merits, since the
appellants have relied upon the document No.7 for having
made the payment and the direction given by the Trial Court is
- 18 -
NC: 2023:KHC:26743
MFA No. 3796 of 2023
to the tenants to deposit the rent and transfer the same to the
account of the mother in terms of the MOU.
15. No doubt, the said document is denied by the
appellants, on the very same day of execution of the gift deed,
the document of MOU came into existence and in the gift deed,
no condition was imposed with regard to the payment of rent.
But, on perusal of the document, with regard to the rentals is
concerned, the right is given to the respondent No.1/plaintiff
and her husband to receive the same and very contention of
the plaintiff is also that terms and conditions of the MOU was
not acted upon though, the very MOU was placed before the
Trial Court. No doubt, there is a discrepancy in mentioning the
account number and when the terms and conditions of the MOU
are very clear that amount has to be transferred to the account
of the mother and bank loans are also in the name of the
mother, including the car loan as admitted by the appellants
and appellants also contend that they are making arrangement
for clearing loan, when such averment is made by the
appellants and the document of MOU came into existence on
the very same day of execution of the gift deed on 13.06.2019
and also the plaintiff in the plaint sought for the relief of
- 19 -
NC: 2023:KHC:26743
MFA No. 3796 of 2023
declaration to revoke the gift deed, the same also to be
considered after trial and conclusion of the evidence and
arguments of respective parties. Hence, the Trial Court rightly
comes to the conclusion that there is a prima facie case in
favour of the plaintiff in view of the MOU which came into
existence on the very same day between the parties of the gift
deed and all of them have signed the same. Even though the
appellants dispute the same, the same has to be considered
while considering the matter on merits.
16. Having considered the prima facie case and balance
of convenience in favour of the respondent No.1-plaintiff, the
Trial Court comes to the conclusion that, if the injunction is not
granted, there are chances of misutilization of rentals amount
collected by the appellants. Hence, I do not find any merit in
the appeal to set aside the order directing the defendant Nos.7
to 17 to deposit the rent in the account of the respondent No.1-
mother. Therefore, there is no merit in the appeal to interfere
with the findings of the Trial Court to reverse the same.
Accordingly, I answer point No.(1) as 'negative'.
- 20 -
NC: 2023:KHC:26743
MFA No. 3796 of 2023
Point No.(2)
17. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
ST
