Karnataka High Court
Nanjamma vs Sri Shivarudraiah on 6 August, 2024
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MFA No. 6250 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 6250 OF 2023 (CPC)
BETWEEN:
NANJAMMA,
D/O. LATE SRI. NANJAIAH,
W/O. LATE SRI. BASAPPA,
AGED ABOUT 87 YEARS,
RESIDING AT HANUMANTHAPURA VILLAGE,
MARALAVADI HOBLI,
KANAKAPURA TALUK,
RAMANAGAR DISTRICT.
...APPELLANT
(BY SRI. N.S. PRASAD, ADVOCATE)
AND:
SRI. SHIVARUDRAIAH,
S/O. LATE SRI. NANJAIAH,
Digitally
signed by AGED ABOUT 72 YEARS,
MEGHA RESIDING AT GADARANAHALLI VILLAGE,
MOHAN MARALAVADI HOBLI,
Location: KANAKAPURA TALUK,
HIGH COURT RAMANAGAR DISTRICT.
OF ...RESPONDENT
KARNATAKA
THIS MFA IS FILED UNDER SECTION 104 READ WITH
ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED
11.08.2023 PASSED ON I.A.NO.I IN O.S.NO.378/2021 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KANAKAPURA,
PARTLY ALLOWING THE I.A.NO.1 FILED UNDER ORDER XXXIX
RULES 1 AND 2 READ WITH SECTION 151 OF CPC. AND ETC.
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MFA No. 6250 of 2023
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Aggrieved by the order passed in I.A.No.1 in
O.S.No.378/2021 dated 11.08.2023 by the Senior Civil Judge
and JMFC, Kanakapura, the plaintiff is before this Court. The
plaintiff had filed the suit seeking partition and to grant 1/6th
share to the plaintiff. In that she had filed I.A.No.1 seeking
injunction restraining the defendants from alienating the suit
schedule properties till the disposal of the suit.
2. It is the case of the appellant/plaintiff that one Nanjaiah
is the propositus and he had wife by name Mallamma. They got
six children by name Basamma, Nanjamma i.e., plaintiff, N.
Basavaraju i.e., defendant No.1, N. Shivanna i.e., husband of
the defendant No.2 and father of defendants Nos.3 to 6,
Shivarudraiah i.e., defendant No.7 and Neelamma i.e.,
defendant No.8. Plaintiff and defendants constitute Hindu
undivided joint family and that the suit schedule properties are
their joint family properties. Suit schedule properties are item
Nos.1 to 12. It is the case of the appellant/plaintiff that after
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the death of his father the katha is changed to the name of
Smt. Mallamma and her sons. Katha of suit schedule item
Nos.5 to 8 properties is standing in the name of defendant No.1
and item Nos.9 to 13 is in the name of defendant No.7. Now,
the mother of the plaintiff Mallamma and her brother Shivanna
are no more. Plaintiff and defendants are in joint possession
and enjoyment of the suit schedule properties and no partition
has taken place amongst them. Plaintiff has equal right and
share in the suit schedule properties. It is her case that the
defendants are acting detrimental to the interest of the plaintiff
and taking advantage of the katha standing in the name of
defendant No.1 and they are trying to alienate the suit
schedule property as such she had filed the suit. Defendant
Nos.2 to 6 and 8 have filed their written statement and prayed
to decree the suit allotting their legitimate share. Defendant
No.7 had filed separate written statement.
3. It is the case of the respondent/defendant No.7 that
during the lifetime of his father deceased N. Shivanna and
defendant No.7 had jointly sold item Nos.9 to 12 of the suit
schedule properties in favour of one Hucheeregowda under the
registered sale deed dated 15.02.1979. Katha was made out in
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the name of the purchaser. There was severance in the joint
family and as such the defendant decided to live separately and
leave the joint family by settling at Thavarekere, Bengauru. Till
now, he is living at Bangaluru from the year 1974 and also
getting salary of Rs.450/- per week. Out of the said earnings
and savings, he purchased item Nos.9 to 12 properties under
the registered sale deed dated 07.03.1981 and katha is made
out in his name and he is in exclusive possession and
enjoyment of these properties as absolute owner accordingly,
sought for dismissal of the appeal. The Trial Court considering
the fact that as far as suit schedule item Nos.9 to 12 properties
are concerned, defendant No.7 is exercising his right of
ownership for the year 1981, till today and the plaintiff has not
made out a prima facie case and there is no balance of
convenience with respect to these properties. The Trial Court
had further observed that the suit schedule property i.e., item
Nos.9 to 12 was sold on 15.02.1979 and again purchased by
defendant No.7 on 07.03.1981. It is not the case of the plaintiff
that she is unaware of the said transaction and defendant No.7
had prima facie established that though item Nos.9 to 12 of the
suit schedule properties were the joint family properties, the
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same were sold and he had purchased it. On these grounds,
the Trial Court had partly allowed the application filed by the
plaintiff and as far as item Nos.1 to 8 of the properties are
concerned, there was an injunction restraining the defendants
from alienating the suit schedule properties. When it comes to
item Nos.9 to 12 of the suit schedule properties is concerned,
the prayer is rejected. Aggrieved thereby the appellant/plaintiff
is before this Court.
4. Learned counsel appearing for the appellant/plaintiff
submits that the suit schedule properties are the joint family
properties, question of selling the properties will not arise and
the same is not binding on the appellant/plaintiff. According to
her, the partition had never taken place and it still remains to
be a joint family properties. It is submitted that the properties
that is sold in the year 1979 was again purchased in the year
1981 for a lesser price which shows that the said case of
defendant No.7 cannot be considered. It is further submitted
that the Trial Court without considering all these aspects had
dismissed the application as far as item Nos.9 to 12 of the suit
schedule properties are concerned. It is further submitted that
one of the brothers had filed the suit for declaration that the
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sale deeds are not binding which clearly shows that all these
documents are fabricated documents and further that do not
bind the plaintiff.
5. Having heard the learned counsel on either side,
perused the entire material on record. The suit is filed by the
plaintiff seeking partition. The father of the plaintiff died in the
year 1990. According to defendant No.7, the suit schedule item
Nos.9 to 12 properties are sold in the year 1979 and the same
was purchased by the defendant in the year 1981, so there are
two sale deeds, one is of the year 1979, the other is of the year
1981 pertaining to suit schedule item Nos.9 to 13 properties.
The Trial Court had observed that the plaintiff is aware of the
said sale deeds. Till the suit is filed in the year 2021, the
plaintiff neither had taken any steps nor questioned the said
sale deeds. In the year 1979, whether the said suit schedule
properties were sold by the father or not or whether it is valid
or not, whether the subsequent sale of the year 1981 is valid or
not has to be decided by the Trial Court. The fact remains is
that from the year 1981, defendant No.7 is holding the
property as there is a sale deed in his favour. The Trial Court
had rightly granted injunction restraining the defendants from
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alienating the property as far as suit schedule item Nos.1 to 8
properties are concerned, but when it comes to item Nos.9 to
12, the Trial Court had rightly rejected the application as there
is no Prima Facie case and balance of convenience and
irreparable loss in favour of the plaintiff. Hence, this Court finds
no reasons to interfere with the well considered order passed
by the Trial Court. Hence, the following,
ORDER
i. Accordingly, the appeal is dismissed.
ii. All I.As, in the appeal, shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
BN
