Karnataka High Court
Sri. R. Ravi vs Sri. Ramappa on 26 February, 2024
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MFA No. 5617 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO.5617 OF 2019 (CPC)
BETWEEN:
SRI. R. RAVI,
S/O. SRI. RAMAPPA,
AGED ABOUT 37 YEARS,
R/AT NO. 89/5, NEW NO. 385,
2ND CROSS, YELLAMMADEVI NILAYA,
BEHIND BBMP OFFICE, BELLANDUR,
BANGALORE - 560 103.
...APPELLANT
(BY SMT. ANUSHA ASUNDI, ADVOCATE FOR
SRI. A. MADHUSUDHANA RAO, ADVOCATE)
AND:
1. SRI. RAMAPPA,
Digitally
signed by BS S/O. LATE MUNIYELLAPPA,
RAVIKUMAR AGED ABOUT 65 YEARS,
Location:
HIGH R/AT NO. 89/5, NEW NO. 385,
COURT OF 2ND CROSS, YELLAMMADEVI NILAYA,
KARNATAKA
BEHIND BBMP OFFICE, BELLANDUR,
BANGALORE - 560 103.
2. SRI. RAJESH,
S/O. SRI. RAMAPPA,
AGED ABOUT 35 YEARS,
R/AT NO. 89/5, NEW NO. 385,
2ND CROSS, YELLAMMADEVI NILAYA,
BEHIND BBMP OFFICE, BELLANDUR,
BANGALORE - 560 103.
-2-
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MFA No. 5617 of 2019
3. SMT. MEENAMMA @ MEENAKSHI
D/O. SRI. RAMAPPA,
AGED ABOUT 39 YEARS,
R/AT NO.55, 1ST CROSS,
YELLAPPA LANE,
MURUGESHPALYA,
HAL POST,
BANGALORE - 560 017.
...RESPONDENTS
(BY SRI. NAGARAJA Y., ADVOCATE FOR R1;
SRI. BALACHANDRA A.T., ADVOCATE FOR R2;
SRI. ANIL KUMAR, ADVOCATE FOR
SRI. H.C. NATARAJ, ADVOCATE FOR C/R3)
THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 16.04.2019 PASSED ON I.A.NO.I IN
OS.NO.1615/2019 ON THE FILE OF THE XLII ADDITIONAL CITY
CIVIL & SESSIONS JUDGE, BENGALURU [CCH-NO.43],
DISMISSING THE I.A.NO.I FILED UNDER ORDER 39 RULE 1 & 2
R/W SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against the order dated 16.04.2019
passed by the XLII Additional City Civil and Sessions Judge,
Bengaluru (CCH-No.431) in OS No.1615/2019, by which an
application under Order 39 Rule 1 and 2 read with Section 151
of CPC., was rejected.
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2. For the sake of convenience, the parties shall
henceforth be referred to as they are arrayed before the Trial
Court.
3. The suit in OS No.1615/2019 was filed for partition
and separate possession of the plaintiff's share in the suit
schedule properties. The plaintiff claimed that the suit item
Nos.1 to 5 properties were allotted to the share of defendant
No.1 at a partition between him and his brothers and the other
items of the suit properties were purchased by defendant No.1
out of the income of the joint family. He contended that his
request for partition and separate possession was not
considered by the defendants, which forced him to sue for
partition. The plaintiff also sought for an order of interim
injunction restraining the defendants from alienating or
encumbering or transferring the suit schedule properties in any
manner till disposal of the suit. This application was contested
by defendant No.1. He claimed that he was employed at a
handloom and out of his own earning, he purchased suit item
Nos.6 to 11 and therefore, claimed that it was his self acquired
properties. He claimed that suit item No.1 was an ancestral
property, suit item No.2 was acquired by the Karnataka
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Industrial Areas Development Board (KIADB) and thus was not
available for partition and suit item Nos.3 to 5 belonged to the
brothers of defendant No.1 and that it was not partitioned
amongst his brothers.
4. Defendant No.2 also objected to the application
contending that he was vending spinach and flowers and was
distributing milk and paper and that out of his own income he
had purchased suit item Nos.8 to 11 and therefore, it was his
self acquisition. He claimed that the plaintiff is not entitled for
any share in the said properties. The defendant No.3 contended
that suit item Nos.7 to 11 were the self acquired properties of
defendant Nos.1 and 2 and that the said properties were gifted
to her and therefore, she had acquired title over the said
properties. Based on these contentions, the Trial Court rejected
the application filed by the plaintiff for interim injunction on the
following grounds;
i. That there was a dispute regarding the nature of
the properties.
ii. The defendants had produced the sale deeds which
indicate that some of the properties stood in their
individual names.
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iii. That the defendants claimed that suit item Nos.3 to
5 were not partitioned between the defendant No.1
and his brothers.
iv. The existence of the joint family or otherwise and
whether the suit properties is the joint family or not
and whether the plaintiff received his share or not
and whether the suit is bad for non-joinder of
necessary parties or not, could be adjudicated only
after the full fledged trial.
v. That the injunction cannot be granted against
owners.
5. The learned counsel for the plaintiff submits that
the suit is for a substantive relief of partition. He contends that
admittedly, suit item Nos.3 to 5 are the properties of the joint
family and admittedly were not partitioned. He therefore
contends that there is an initial presumption that when the joint
family possessed sufficient properties, the property purchased
by the family or any of its members are acquired out of income
from joint estate. The question whether those properties that
were purchased by the defendants were out of their own
income or out of the income of the joint family was a question
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of fact which has to be established only after a trial. He
therefore, contends that the Trial Court must have protected
the properties from being frittered away by the respondents,
which could lead to multiplicity of proceedings.
6. Learned counsel for the respondents on the other
hand, contended that the Trial Court has carefully gone through
the records and has held that the issue whether the plaintiff is
entitled to a share or not is a question of fact that has to be
decided only after full fledged trial and therefore, no injunction
should be granted against the defendants.
7. I have considered the submissions made by the
learned counsel for the appellant as well as the learned counsel
for the respondent No.3.
8. The grant of an order of injunction more
particularly, restraining the defendants from alienating the suit
schedule properties is very onerous and is granted only to
maintain status-quo of the properties until the disposal of the
suit. This is subject to the plaintiff making out a prima-facie
triable case and also establishing the fact that refusal to grant
injunction would result in incalculable hardship and that the
defendants would not suffer any inconvenience. In the case on
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hand, admittedly the family possessed suit item Nos.3 to 5,
which possibly generated some income. If that be so, then a
presumption could be drawn that the funds of the family and its
members were utilized to purchase the other properties. The
defendants could always rebut the presumption and establish
that the properties were purchased out of their own funds.
However, the defendants cannot be allowed to sell the suit
properties, as that would result in multiplicity of proceedings
and delay in deciding the suit of the defendants and desire to
sell the suit properties, they are always at liberty to approach
the Court for permission to sell. Though the learned counsel for
the defendants undertook they would not alienate, this Court
considers it appropriate to restrain the defendants from
alienating the suit properties until disposal of the suit before
the Trial Court.
9. In that view of the matter, the appeal is allowed.
The impugned order dated 16.04.2019 before the Court of XLII
Additional City Civil and Sessions Judge, Bengaluru in
OS No.1615/2019 is set aside and the application filed by the
plaintiff in I.A.No.1/2019 is allowed and the defendants are
restrained from alienating, encumbering or transferring or
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parting with possession of any portion of the suit schedule
properties in any manner what so ever in favour of any person
whosoever, until disposal of the suit before the Trial court.
10. It is open for the appellant to submit a copy of this
order before the concerned Sub Registrar, who shall take steps
to give effect to this order.
Sd/-
JUDGE
KBM
CT:SNN
