Karnataka High Court
Smt. Ramya H R vs Smt. Hemavathi on 25 May, 2023
Bench: H.P.Sandesh
-1-
MFA No. 8468 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.8468 OF 2022 (CPC)
BETWEEN:
1. SMT. RAMYA H R
W/O LATE MANJUNATHASWAMY
AGED ABOUT 29 YEARS
2. MOHITH GOWDA M
S/O LATE MANJUNATHASWAMY
AGED ABOUT 8 YEARS
3. YAJATH GOWDA M
S/O LATE MANJUNATHASWAMY
AGED ABOUT 8 YEARS
R/AT HAROKOPPA VILLAGE
VIRUPAKSHAPURA HOBLI
Digitally signed CHANNAPATNA TALUK
by SHARANYA T
Location: HIGH
RAMANAGARA DISTRICT
COURT OF
KARNATAKA
APPELLANTS No.2 AND 3 ARE MINORS
REP BY THEIR MOTHER AND
NATURAL GUARDIAN, NEXT FRIEND
SMT RAMYA, APPELLANT NO 1
W/O LATE MANJUNATHASWAMY
APPELLANTS ARE R/AT HAROKOPPA VILLAGE,
VIRUPAKSHAPURA HOBLI
CHANNAPATNA TALUK
RAMANAGARA DISTRICT
...APPELLANTS
(BY SRI RAJA L, ADVOCATE)
-2-
MFA No. 8468 of 2022
AND:
1. SMT. HEMAVATHI
D/O PUTTARAMU
W/O KESHAVAMURTHY
AGED ABOUT 33 YEARS
R/AT AGSANAPURA VILLAGE
KASABA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT 571401
NOW R/O BEHIND MAHADESWARA CHOULTRY
KANAKPURA ROAD, MALAVALLI TOWN
MALAVALLI TALUK,
MANDYA DIST.-577401
2. SRI PUTTARAMU
S/O LATE BASAVEGOWDA
AGED ABOUT 55 YEARS
3. SMT. KEMPAMMA @ BEBAMMA
W/O PUTTARAMU
AGED ABOUT 50 YEARS.
RESPONDENTS No.2 & 3 ARE
R/AT AGASANAPURA VILLAGE
KASABA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT 571401
...RESPONDENTS
THIS M.F.A IS FILED UNDER ORDER 43 RULE 1(R) OF
CPC AGAINST THE ORDER DATED 26.09.2022 PASSED IN
O.S.No.34/2022 ON I.A.NO.III ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, MALAVALLI AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-3-
MFA No. 8468 of 2022
JUDGMENT
This appeal is filed by the appellants/defendant Nos.3
to 5 challenging the order dated 26.09.2022 passed in
O.S.No.34/2022 on I.A.No.III on the file of the Senior Civil
Judge and JMFC, Malavalli.
2. Heard the learned counsel appearing for the
appellants.
3. The appellants are the defendant Nos.3 to 5 who
have suffered the order of injunction wherein they have
been restrained from alienating the suit schedule
properties in favour of third party and also creating
encumbrance on the said properties till the disposal of the
suit.
4. The claim of the plaintiff before the Trial Court
is that the suit is filed for the relief of partition and the
defendants are making efforts to create a third party right.
It is also contended that the suit schedule properties are
the ancestral and joint family properties and the plaintiff
MFA No. 8468 of 2022
and defendant Nos.1 to 5 are in joint possession and
enjoyment of the said properties and they are in undivided
Hindu joint family. It is also contended that some of the
suit schedule properties are standing in the name of
defendant No.1 and some of the suit schedule properties
and vehicles are purchased out of the joint family income
and the same are registered in the name of
Manjunathaswamy i.e., the brother of plaintiff. The katha
and RC of the vehicle are standing in his name. After the
death of said Manjunathaswamy, the katha has been
changed in the name of defendant No.3 by way of pouthi
katha and all the revenue documents are standing in the
name of defendant Nos.1 and 3 and they have are making
an attempt to dispose of the property and there is no
partition among the family members in respect of the suit
schedule properties. Hence, prayed this Court to restrain
them from alienating the suit schedule properties.
5. Per contra, defendant Nos.1 and 2 have filed
the written statement supporting the application filed by
MFA No. 8468 of 2022
the plaintiff and they have also admitted that the suit
schedule properties are the ancestral and joint family
properties. The defendant Nos.3 to 5 also filed a memo
and prayed to treat the written statement as objection to
I.A.No.3. The Trial Court having considered the pleadings
of both the parties, considered the material available on
record, particularly item Nos.1 to 3 which are standing in
the name of defendant No.1, who is father of the plaintiff
and deceased Manjunathaswamy. The Trial Court also
taken note of the denial made by defendant Nos.3 to 5
regarding acquisition of suit item Nos.4 to 17 out of the
joint family income and also taken note of those properties
are not self-acquired properties of the deceased and in
order to ascertain whether the suit item Nos.4 to 17 are
joint family properties or self-acquired properties of
deceased Manjunathaswamy, it requires full-pledged trial.
Having considered the material on record, the Trial Court
comes to the conclusion that if injunction is not granted, it
leads to multiplicity of proceedings and hence comes to
the conclusion that prima facie case has been made out.
MFA No. 8468 of 2022
The Trial Court also taken note of item Nos.9 to 13 are the
vehicles and if they are sold to third parties, it will be very
difficult to secure those vehicles. Hence, answered point
Nos.1 to 3 as affirmative in coming to the conclusion that
a prima facie case is made out and there is a balance of
convenience and if injunction is not granted, the plaintiff
will be put to irreparable loss. Being aggrieved by the
order, the present appeal is filed.
6. The learned counsel for the appellants would
contend that the Trial Court has committed an error in
passing the impugned order without taking into
consideration the very contention of defendant Nos.3 to 5
and suit item Nos.4 to 17 are the self-acquired properties
and there was absolutely no material before the Court that
they are available for partition. The learned counsel would
contend that in view of the granting of injunction order,
possession of the vehicles is taken which is shown in item
Nos.9 to 13 in the plaint and the very passing of an order
restraining them from alienating and changing the nature
MFA No. 8468 of 2022
of the property is erroneous and hence it requires
interference of this Court.
7. Having heard the learned counsel for the
appellants and also on perusal of the material available on
record, particularly taking note of the relief sought for in a
suit filed for partition, admittedly item Nos.1 to 3 are the
properties belonging to the father and it is their case that
all the properties are acquired out of joint family nucleus.
Whether it is acquired out of joint family nucleus or not
has to be considered only during the course of trial. The
Trial Court also taken note of the said fact into
consideration and comes to the conclusion that it leads to
multiplicity of proceedings if the properties are alienated
during the pendency of the suit. Having considered the
reasoning given by the Trial Court, I do not find any error
committed by the Trial Court in granting an order of
injunction restraining them from alienating the suit
schedule properties in favour of any third parties and
creating any encumbrance. The learned counsel would
MFA No. 8468 of 2022
contend that in view of the order passed by the Trial
Court, item Nos.9 to 13 are taken to their custody forcibly.
This Court in this appeal cannot decide the same and it is
left to the appellants to take proper course of action with
regard to the said submission.
8. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
SN/MD
