Karnataka High Court
Anand Surana vs G. Vincent Thomas on 29 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 7600 OF 2022 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 7225 OF 2022 (CPC)
MISCELLANEOUS FIRST APPEAL NO. 7432 OF 2022 (CPC)
MISCELLANEOUS FIRST APPEAL NO. 1139 OF 2023 (CPC)
IN MISCELLANEOUS FIRST APPEAL NO. 7600 OF 2022:
BETWEEN:
1. SRI SUDARSHAN KARLE
S/O LATE L.T. KARLE,
AGED ABOUT 66 YEARS
R/AT NO.101, 7TH CROSS,
2ND MAIN I BLOCK
RMV II STAGE
BANGALORE-560094
Digitally signed 2. SRI MAHENDRA KARLE
by SHARANYA T
Location: HIGH S/O LATE L.T.KARLE,
COURT OF AGED ABOUT 64 YEARS,
KARNATAKA
R/AT NO.21, ADITHI
1ST MAIN, RMV II STAGE,
BANGALORE-560094
...APPELLANTS
(BY SRI MANMOHAN P.N., ADVOCATE)
AND:
SMT. T. PHILOMENA
D/O LATE SRI THOMASAPPA
SINCE DEAD BY LRS
-2-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
1. SRI G. VINCENT THOMAS,
S/O LATE GABRIEL A. ALIAS
GABRIEL REDDY,
AGED ABOUT 55 YEARS,
R/AT NO.91,
M.M.REDDY ROAD,
MARIYANNAPALYA,
H.A.FARM POST,
BENGALURU-560024
2. SRI ROMARIO VINCENT THOMAS
S/O SRI VINCENT THOMAS,
AGED ABOUT 25 YEARS,
R/AT NO.91,
M.M.REDDY ROAD,
MARIYANNAPALYA,
H.A FARM POST,
BENGALURU-560024
3. SMT. SUSHEELA
W/O LATE T. ANTHONY REDDY,
AGED ABOUT 73 YEARS,
R/AT 10 CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
4. SMT. A. JACINTHA
D/O LATE T. ANTHONY REDDY,
W/O SRI J. VINCENT,
AGED ABOUT 57 YEARS,
R/AT 10 CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
5. SMT. RAJMARY A
D/O LATE T. ANTHONY REDDY,
W/O JOHN WILLIAM J,
AGED ABOUT 54 YEARS,
R/AT RAHUL KRUPA,
-3-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
NO.177, MARIANNAPALYA,
H.A.FARM POST,
BENGALURU-560024
6. SRI THOMAS KUMAR A.,
S/O LATE T. ANTHONY REDDY,
AGED ABOUT 51 YEARS,
10 CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
7. SMT. JOSEPHINA A.,
D/O LATE T. ANTHONY REDDY,
W/O SRI JAYAKUMAR C,
AGED ABOUT 48 YEARS,
R/AT MARIA KRUPA,
70/1, AROGYA REDDY LAYOUT,
5TH MAIN, 7TH CROSS,
KAMMANAHALLI,
ST.THOMASA TOWN POST,
BENGALURU-560045
8. SRI GEORGE A,
S/O LATE T. ANTHONY REDDY,
AGED ABOUT 46 YEARS,
10 CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
9. SMT. JAYAPRABHA A.,
D/O LATE T. ANTHONY REDDY,
W/O SRI BALARAJ PRAVEEN J,
AGED ABOUT 42 YEARS,
R/AT 89/6, RAYAPPA GARDEN,
RAMAKRISHNA ROAD,
COX TOWN,
BENGALURU-560005
-4-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
10. SRI ROSE MARY
D/O LATE SRI THOMASAPPA,
W/O LATE C. PHILOMENA RAJ,
AGED ABOUT 76 YEARS,
R/AT 11, BACHAMMAL ROAD,
COX TOWN,
BENGALURU-560005
SRI T. AROGYA REDDY
S/O LATE SRI THOMASAPPA
SINCE DEAD BY HIS LRS
SMT. ANTHONY THERESA,
W/O LATE SRI T.AROGYA REDDY
SINCE DEAD BY HER LRS.,
RESPONDENTS NO.11 TO 17
11. SRI A. KANTH RAJ,
S/O LATE T.AROGYA REDDY,
AGED ABOUT 50 YEARS,
R/AT NO.75, 8TH CROSS,
KANAKANAGAR,
R.T. NAGAR POST,
BENGALURU-560032
12. SMT. A. PAVITRA PREMA
D/O LATE T. AROGYA REDDY,
W/O SRI G. ALBERT RAJ,
AGED ABOUT 49 YEARS,
R/AT NO.67, 8TH CROSS,
KANAKANAGAR,
ST.THOMAS TOWN,
R.T. NAGAR POST,
BENGALURU-560032
13. SMT. A. ROSE MARY
D/O LATE T. AROGYA REDDY,
AGED ABOUT 47 YEARS,
R/AT 9, CHURCH MAIN ROAD,
NIRMALA NAGAR,
ERANNA PALYA,
-5-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
ARABIC COLLEGE POST,
BENGALURU-560045
14. SMT. A SAHAYA MARY
D/O LATE T. AROGYA REDDY,
W/O SRI P. ANTHONY BENEDICT,
AGED ABOUT 46 YEARS,
R/AT BETHEL ASD,
68, 8TH CROSS,
KANAKANAGAR,
ST. THOMAS TOWN,
R T NAGAR POST,
BENGALURU-560032
15. SRI A. PRASAD
S/O LATE T. AROGYA REDDY,
AGED ABOUT 45 YEARS,
R/AT ISHWERYA OPAL APARTMENTS,
RAMAKRISHNAPPA ROAD,
COX TOWN,
BENGALURU-560005
16. SMT. A. JYOTHI RITA
D/O LATE T. AROGYA REDDY,
W/O SRI J. JOHN BITTO,
AGED ABOUT 42 YEARS,
R/AT 70, 8TH CROSS,
KANAKANAGAR
ST.THOMAS TOWN,
R.T. NAGAR POST,
BENGALURU-560032
17. SRI A. ULLAS PETER
D/O LATE T. AROGYA REDDY,
AGED ABOUT 35 YEARS,
R/AT 30, MEGHANA PALYA,
CHELIKERE MAIN ROAD,
KALYAN NAGAR,
BENGALURU-560043
-6-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
18. SMT. C. JETHRUTHA
W/O LATE SRI T.CHINNASWAMY REDDY,
AGED ABOUT 67 YEARS,
R/AT 42, CHURCH MAIN ROAD,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
19. SRI C. ALBERT DAVID
S/O LATE SRI T. CHINNASWAMY REDDY,
AGED ABOUT 49 YEARS,
R/AT 42, CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST
BENGALURU-560045
20. SRI PRAKASH PAUL C.,
S/O LATE SRI T. CHINNASWAMY REDDY,
AGED ABOUT 49 YEARS,
R/AT 42, CHURCH MAIN ROAD,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
21. SMT. C. SUNITHA
D/O LATE SRI T. CHINNASWAMY REDDY,
AGED ABOUT 49 YEARS,
R/AT NO.60, JAJAPPA LAYOUT,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
22. SRI T. JOSEPH THYAGARAJ ALIAS
T. JOSEPH REDDY
S/O LATE THOMASAPPA,
AGED ABOUT 70 YEARS,
R/AT 4-5, 5TH CROSS,
HUTCHINS ROAD,
ST. THOMAS TOWN POST,
BENGALURU-560084
-7-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
SRI T. CHOWRI REDDY
S/O LATE THOMASAPPA,
SINCE DEAD BY LRS
THROUGH WILL DATED 03-07-2020
I.E., RESPONDENT NO.19 TO 21,
23. SRI ANAND SURANA
S/O GHEVERCHAND SURANA,
AGED ABOUT 51 YEARS,
R/AT SURANA VILLA,
45/3, FAIRFIELD LAYOUT,
RACE COURSE ROAD,
BENGALURU-560001
24. THE BANGALORE DEVELOPMENT AUTHORITY
A STATUTORY BODY HAVING ITS
OFFICE AT T CHOWDAIAH ROAD,
KUMARA PARK WEST,
BENGALURU-560020
REPRESENTED BY ITS
COMMISSIONER,
...RESPONDENTS
(BY SRI R.I. D'SA &
SMT. SUNITHA H. SINGH, ADVOCATES FOR C/R1 & R2;
VIDE ORDER DATED 11.04.2023,
NOTICE TO R3 TO R9 & R11 TO R24 ARE DISPENSED WITH;
SMT.SUSHEELA S.P., SENIOR COUNSEL FOR
SRI SOMANATHA H., ADVOCATE FOR R10)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 05.08.2022 PASSED ON I.A.
NO.II/2020 IN O.S.NO.1629/2020 ON THE FILE OF THE XXXIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, C/c OF XL
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY (CCH-41), PARTLY ALLOWING THE I.A. NO.II/2020 FILED
UNDER ORDER 22 RULE 10 OF CPC.
-8-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
IN MISCELLANEOUS FIRST APPEAL NO. 7225 OF 2022:
BETWEEN:
SRI T. CHOWRI REDDY
S/O LATE THOMASAPPA
SINCE DEAD BY LRS THROUGH
WILL DATED 03.07.2020
1. SRI C. ALBERT DAVID
S/O LATE SRI T. CHINNASWAMY REDDY
AGED ABOUT 49 YEARS
RESIDING AT NO.42
CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045
2. SRI PRAKASH PAUL C.,
S/O LATE SRI T. CHINNASWAMY REDDY
AGED ABOUT 49 YEARS
RESIDING AT
42 CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045
3. SMT. C. SUNITHA
D/O LATE SRI T CHINNASWAMY REDDY
AGED ABOUT 45 YEARS
RESIDING AT NO.60
JOJAPPA LAYOUT
CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045
...APPELLANTS
(BY SRI MANMOHAN P.N., ADVOCATE)
-9-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
AND:
SMT. T. PHILOMENA
D/O LATE SRI. THOMASAPPA
SINCE DEAD BY LRS
1. SRI G. VINCENT THOMAS
S/O LATE GABRIEL A. ALIAS
GABRIEL REDDY
AGED ABOUT 54 YEARS
RESIDING AT NO.91,
M.M. REDDY ROAD
MARIYANNAPALYA
H.A. FARM POST
BENGALURU - 560024
2. SRI ROMARIO VINCENT THOMAS
S/O SRI G. VINCENT THOMAS
AGED ABOUT 24 YEARS
RESIDING AT NO.91,
M.M. REDDY ROAD
MARIYANNAPALYA
H.A. FARM POST
BENGALURU - 560024
3. SMT. SUSHEELA
W/O LATE T. ANTONY REDDY
AGED ABOUT 73 YEARS
RESIDING AT
10 CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045
4. SMT. A. JACINTHA
D/O T. ANTONY REDDY
W/O SRI J. VINCENT
AGED ABOUT 57 YEARS
RESIDING AT
10 CHURCH MAIN ROAD
- 10 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045
5. SMT. RAJMARY A.,
D/O T. ANTONY REDDY
W/O JOHN WILLIAM J
AGED ABOUT 54 YEARS
RESIDING AT RAHUL KRUPA
NO.177, MARIANNAPALYA
H.A. FARM POST
BENGALURU - 560024
6. SRI THOMAS KUMAR A.,
S/O LATE T. ANTONY REDDY
AGE ABOUT 51 YEARS
RESIDING AT
42 CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045
7. SMT. JOSPHINA A
D/O LATE T. ANTONY REDDY
W/O SRI JAYAKUMAR C
AGED ABOUT 48 YEARS
R/AT MARIA KRUPA 70/1
AROGYA REDDY LAYOUT
5TH MAIN, 7TH CROSS
KAMANAHALLI
ST. THOMAS TOWN POST
BENGALURU - 560045
8. SRI GEORGE A.,
S/O LATE T ANTHONY REDDY
AGED ABUT 46 YEARS
RESIDING AT 10 CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045
- 11 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
9. SMT. JAYAPRABHA A
D/O LATE T ANTHONY REDDY
W/O SRI BALARAJ PRAVEEN J
AGED ABOUT 42 YEARS
R/AT 89/6, RAYAPPA GARDEN
RAMAKRISHNA ROAD
COX TOWN
BENGALURU - 560005
10 . SRI ROSE MARY
D/O LATE SRI THOMASAPPA
W/O LATE C. PHILOMENA RAJ
AGED ABOUT 76 YEARS
R/AT 11 BACHAMMAL ROAD
COX TOWN,
BANGALORE - 560005
SRI T. AROGYA REDDY
S/O LATE SRI THOMASAPPA
SINCE DEAD BY HIS LRS
SMT. ANTHONY THERESA
W/O LATE SRI T. AROGYA REDDY
SINCE DEAD BY HER LRS
(RESPONDENT NO.11 TO 17 ARE
THE LRS OF SRI T. AROGYA REDDY AND
SMT.ANTHONY THERESA)
11 . SRI A. KANTH RAJ
S/O LATE T. AROGYA REDDY
AGED ABOUT 50 YEARS
R/AT NO.75, 8TH CROSS
KANAKANAGAR
R T NAGAR POST
BENGALURU - 560032
12 . SMT. A. PAVITRA PREMA
D/O LATE T. AROGYA REDDY
- 12 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
W/O SRI G. ALBERT RAJ
AGE ABOUT 49 YEARS
R/AT NO.75, 8TH CROSS
KANAKANAGAR
R T NAGAR POST
BENGALURU - 560032
13 . SMT. A. ROSE MARY
D/O LATE T. AROGYA MARY
AGED ABOUT 47 YEARS
RESIDING AT NO.9
CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045.
14 . SMT. A. SAHAYA MARY
D/O LATE T. AROGYA REDDY
W/O SRI P. ANTHONY BENEDICT
AGED ABOUT 46 YEARS
R/AT BETHEL ASD
68, 8TH CROSS
KANAKANAGAR
ST. THOMAS TOWN
R.T. NAGAR POST
BENGALURU-560032
15 . SRI A. PRASAD
S/O LATE T. AROGYA MARY
AGE ABOUT 45 YEARS
R/AT ISHWERYA OPAL APARTMENTS
RAMAKRISHNAPPA ROAD, COX TOWN
BENGALURU-560005
16 . SMT. A. JYOTI RITA
D/O LATE T. AROGYA REDDY
W/O SRI J. JOHN BRITTO
AGED ABOUT 42 YEARS
R/AT 70, 8TH CROSS
KANAKANAGAR
- 13 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
ST. THOMAS TOWN
R T NAGAR POST
BENGALURU-560032
17 . SRI A. ULLAS PETER
D/O LATE T AROGYA REDDY
AGED ABOUT 35 YEARS
R/AT NO.30, MEGHANA PALYA
CHELIKERE MAIN ROAD
KALYAN NAGAR
BANGALORE - 560043
18 . SMT. C. JETHRUTHA
W/O LATE SRI T.CHINNASWAMY REDDY
AGED ABOUT 67 YEARS
R/AT NO.42 CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALUR - 560045
19 . SRI T. JOSEPH THYAGARAJ
ALIAS T. JOSEPH REDDY
S/O LATE THOMASAPPA
AGED ABOUT 70 YEAR S
R/AT 4-5, 4TH CROSS
HUTCHINS ROAD
ST. THOMAS TOWN POST
BENGALURU - 560084
20 . SRI ANAND SURANA
S/O GHEVERCHAND SURANA
AGED ABOUT 51 YEARS
R/AT SURANA VILLA
45/3 FAIR FIELD LAYOUT
RACE COURSE ROAD
BENGALURU - 560001
21 . SRI SUDARSHAN KARLE
S/O LATE SRI L.T.KARLE
AGED ABOUT 67 YEAR S
- 14 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
R/AT 101, 7TH CROSS,
2ND MAIN, I BLOCK,
RMV II STAGE
BENGALURU - 560094
22 . SRI MAHENDRA KARLE
S/O LATE SRI L.T. KARLE
AGED ABOUT 65 YEARS
R/AT FLAT NO 1-F
CASTLE ROCK APARTMENTS
NO.26, I MAIN ROAD
JAYAMAHAL EXTENSION
BENGALURU - 560046
23 . THE BANGALORE DEVELOPMENT AUTHORITY
A STATUTORY BODY HAVING ITS
OFFICE AT T.CHOWDAIAH ROD
KUMARA PARK WEST
BENGALURU - 560020
REPRESENTED BY ITS COMMISSIONER
...RESPONDENTS
(BY SMT. SUSHEELA S., SENIOR COUNSEL FOR
SRI SOMANATH H., ADVOCATE FOR R10;
SRI R.I.D'SA ADVOCATE FOR CAVEATOR R1 & R2;
NOTICE TO R3 TO R9 & R11 TO R23 IS DISPENSED WITH
VIDE ORDER DATED 11.04.2023)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 05.08.2022 PASSED ON I.A.
NO.II/2020 IN O.S.NO.1629/2020 ON THE FILE OF THE XXXIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, C/C OF XL
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY (CCH-41), PARTLY ALLOWING I.A. NO.II/2020 FILED
UNDER ORDER XXXIX RULES 1 AND 2 OF CPC, 1908.
- 15 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
IN MISCELLANEOUS FIRST APPEAL NO. 7432 OF 2022:
BETWEEN:
1 . ANAND SURANA
S/O GHEVERCHAND SURANA,
AGED ABOUT 51 YEARS,
R/AT SURANA VILLA,
45/3, FAIRFIELD LAYOUT,
RACE COURSE ROAD,
BENGALURU-560 001.
...APPELLANT
(BY SRI K.SHRIHARI, ADVOCATE)
AND:
1. G. VINCENT THOMAS
S/O. LATE GABRIEL A. @ GABRIEL REDDY
AGED ABOUT 57 YEARS,
2. ROMARIO VINCENT THOMAS
S/O G. VINCENT THOMAS,
AGED ABOUT 27 YEARS,
BOTH RESIDING AT NO.91,
M.M. REDDY ROAD,
H.A. FARM POST,
MARIANNAPALYA,
BENGALURU-560 024.
3. SUSHEELA
W/O. LATE T. ANTHONY REDDY,
AGED ABOUT 73 YEARS,
4. A. JACINTHA
D/O. T. ANTHONY REDDY,
AGED ABOUT 57 YEARS,
BOTH ARE RESIDING AT
10, CHURCH MAIN ROAD,
- 16 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560 045.
5. RAJMARY. A
D/O. T. ANTHONY REDDY,
AGED ABOUT 54 YEARS,
R/AT RAHUL KRUPA,
NO.177, MARIANNAPALYA,
H.A.FARM POST,
BENGALURU-560 024.
6. THOMAS KUMAR A,
S/O. LATE T. ANTHONY REDDY,
AGED ABOUT 51 YEARS,
10, CHURCH MAIN ROAD,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560 045.
7. JOSEPHINA. A
D/O. LATE T. ANTHONY REDDY,
AGED ABOUT 48 YEARS,
R/AT MARIA KRUPA,
70/1, AROGYA REDDY LAYOUT,
5TH MAIN, 7TH CROSS,
KAMMANAHALLY,
ST. THOMAS TOWN POST,
BENGALURU-560 045.
8. GEORGE A.,
S/O. LATE T. ANTHONY REDDY,
AGED ABOUT 46 YEARS,
10 CHURCH MAIN ROAD,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560 045.
9. JAYAPRABHA A.,
D/O. T. ANTHONY REDDY,
- 17 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
AGED ABOUT 42 YEARS,
R/AT NO.89/6,
RAYAPPA GARDEN,
RAMAKRISHNA ROAD,
COX TOWN,
BENGALURU-560 005.
10 . ROSE MARY
W/O. C. PHILOMENA RAJ,
AGED ABOUT 76 YEARS,
R/AT 11, BACHAMMAI ROAD,
COX TOWN,
BENGALURU-560 005.
11 . A. KANTH RAJ
S/O. LATE T. AROGYA REDDY,
AGED ABOUT 50 YEARS,
R/O. NO.75, 8TH CROSS,
KANAKANAGAR,
R.T. NAGAR POST,
BENGALURU-560 032.
12 . A. PAVITRA PREMA
D/O. LATE T. AROGYA REDDY,
AGED ABOUT 49 YEARS,
R/O. NO.67, 8TH CROSS,
KANAKANAGAR,
ST. THOMAS TOWN,
R.T. NAGAR POST,
BENGALURU-560 032.
13 . A. ROSE MARY
D/O. LATE T. AROGYA REDDY,
AGED ABOUT 47 YEARS,
R/O. NO.9, CHURCH MAIN ROAD,
NIRMALA NAGAR,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGALURU-560 045.
- 18 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
14 . A. SAHAYA MARY
D/O. LATE T. AROGYA REDDY,
AGED ABOUT 46 YEARS,
R/O. BETHEL ASD 68,
8TH CROSS, KANAKANAGAR,
ST. THOMAS TOWN,
R.T. NAGAR POST,
BENGALURU-560 032.
15 . A. PRASAD
S/O. LATE T. AROGYA REDDY,
AGED ABOUT 45 YEARS,
R/AT ISHWERYA OPAL APARTMENTS,
RAMAKRISHNAPPA ROAD, COX TOWN,
BENGALURU-560 005.
16 . A. JYOTI RITA
D/O. LATE T. AROGYA REDDY,
AGED ABOUT 42 YEARS,
R/O. NO.70, 8TH CROSS,
KANAKANAGAR,
ST. THOMAS TOWN,
R.T. NAGAR POST,
BENGALURU-560 032.
17 . A. ULLAS PETER
D/O. LATE T. AROGYA REDDY,
AGED ABOUT 35 YEARS,
R/AT NO. 30, MEGHANA PALYA,
CHELIKERE MAIN ROAD,
KALYAN NAGAR,
BENGALURU-560 043.
18 . C. JETHRUTHA
W/O. T. CHINNASWAMY REDDY,
AGED ABOUT 65 YEARS,
19 . C. ALBERT DAVID
S/O. T. CHINNASWAMY REDDY,
AGED ABOUT 49 YEARS,
- 19 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
20 . PRAKASH PAUL
S/O. T. CHINNASWAMY REDDY,
AGED ABOUT 48 YEARS,
ALL ARE RESIDING AT
42 CHURCH MAIN ROAD,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560 045.
21 . C. SUNITHA
D/O. T. CHINNASWAMY REDDY,
AGED ABOUT 45 YEARS,
R/AT NO.60, JOJAPPA LAYOUT,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560 045.
22 . T. JOSEPH THYAGARAJ
S/O. LATE THOMASAPPA,
AGED ABOUT 70 YEARS,
R/AT 4-5, 4TH CROSS,
HUTCHINS ROAD,
ST. THOMAS TOWN POST,
BENGALURU-560 084.
23 . T. CHOWRI REDDY @ CHOWREDDY
S/O. LATE THOMASAPPA,
AGED ABOUT 68 YEARS,
RESIDING AT 42,
CHURCH MAIN ROAD,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560 045.
24 . SUDARSHAN KARLE
S/O. LATE L.T. KARLE,
AGED ABOUT 67 YEARS,
R/AT NO. 101, 7TH CROSS,
- 20 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
2ND MAIN, I BLOCK,
RMV II STAGE,
BENGALURU-560 094.
25 . MAHENDRA KARLE
S/O. LATE L.T. KARLE,
AGED ABOUT 65 YEARS,
R/AT FLAT NO. 1-F,
CASTLE ROCK APARTMENTS,
NO. 26, I MAIN ROAD,
JAYAMAHAL EXTENSION,
BENGALURU-560 046.
26 . THE BDA
A STATUTORY BODY HAVING ITS
OFFICE AT T. CHOWDAIAH ROAD,
KUMARA PARK WEST,
BENGALURU-560 020,
REPRESENTED BY ITS
COMMISSIONER.
...RESPONDENTS
(BY SMT. S.SUSHEELA, SENIOR COUNSEL FOR
SRI SOMANATHA H., ADVOCATE FOR R10;
SRI R.I.D'SA, ADVOCATE FOR CAVEATOR R1 & R2;
NOTICE TO R3 TO R9 & R11 TO R26 IS DISPENSED WITH
VIDE ORDER DATED 11.04.2023)
THIS MFA IS FILED U/O.43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DT.05.08.2022 PASSED ON IA
NO.2 IN O.S.NO.1629/2020 ON THE FILE OF THE XXXIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, C/C. XL
ADDITIONAL CITY CIVIL JUDGE, BENGALURU, (CCH-41),
PARTLY ALLOWING IA NO.2/2020 FILED U/O.39 RULE 1 AND 2
R/W SECTION 151 OF CPC.
- 21 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
IN MISCELLANEOUS FIRST APPEAL NO. 1139 OF 2023:
BETWEEN:
1 . SRI T. JOSEPH THYAGARAJ
S/O LATE THOMOSAPPA
AGED ABOUT 72 YEARS,
R/AT NO.4/5, 4TH CROSS,
HUTCHINS ROAD,
ST. THOMAS TOWN POST
BENGALURU-560084
...APPELLANT
(BY SRI JANARDHANA G., ADVOCATE)
AND:
T.PHILOMENA
D/O LATE THOMASAPPA
W/O GABRIEL REDDY,
SINCE DECEASED BY HER
LEGAL REPRESENTATIVES
1. SRI G. VINCENT THOMAS
S/O LATE GABRIEL A.@ GABRIEL REDDY,
BUSINESSMAN
AGED ABOUT 56 YEARS,
2. SRI ROMARIO VINCENT THOMAS
S/O G.VINCENT THOMAS
ADVOCATE
AGED ABOUT 26 YEARS
RESPONDENT NOS.1 & 2 ARE
RESIDING AT NO.91
M.M.REDDY ROAD
MARIYANNAPALYA
H.A.FARM POST
BENGALURU-560024.
- 22 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
3. SMT. SUSHEELA
W/O LATE T. ANTHONY REDDY
AGED ABOUT 72 YEARS,
R/AT NO.10,
CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
4. SMT. A. JACINTHA
D/O LATE T ANTHONY REDDY
AGED ABOUT 56 YEARS,
R/AT NO.10,
CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
5. SMT. RAJMARY A,
D/O LATE T. ANTHONY REDDY
AGED ABOUT 53 YEARS,
R/AT RAHUL KRUPA,
NO.177, MARIYANNAPALYA,
H.A. FARM POST
BENGLAURU-560024
6. SRI THOMAS KUMAR A,
S/O LATE T. ANTHONY REDDY,
AGED ABOUT 50 YEARS
R/AT NO.10
CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST
BENGALURU-560045
7. SMT. JOSEPHINA A,
D/O LATE T. ANTHONY REDDY
W/O JAYAKUMAR C
AGED ABOUT 47 YEARS,
R/AT MARIA KRUPA,
- 23 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
70/1, AROGYA REDDY LAYOUT,
5TH MAIN, 7TH CROSS,
KAMMANAHALLI
ST. THOMAS TOWN POST
BENGALURU-560084
8. SRI GEORGE A,
S/O LATE T ANTHONY REDDY
AGED ABOUT 45 YEARS,
R/AT NO.10, CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST,
BENGALURU-560045
9. SMT. JAYAPRABHA A,
D/O LATE ANTHONY REDDY
W/O BALARAJ PRAVEEN J
AGED ABOUT 4 YEARS
R/AT NO.89/6, RAYAPPA GARDEN,
RAMAKRISHNA ROAD
COX TOWN
BENGALURU-560005
10 . SRI ROSE MARY
D/O LATE THOMASAPPA
W/O LATE C. PHILOMENA RAJ
AGED ABOUT 75 YEARS,
R/AT NO.11, BACHAMMAL ROAD
COX TOWN
BENGALURU-560005
T. AROGYA REDDY
S/O LATE THOMAPPA
SINCE DECEASED BY HIS
LEGAL REPRESENTATIVES
SMT. ANTHONY THERESA
W/O LATE T. AROGYA REDDY
(DIED ON 10.05.2021)
- 24 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
11 . SRI A. KANTH RAJ
S/O LATE T. AROGYA REDDY
AGED ABOUT 51 YEARS
R/AT NO.75, 8TH CROSS,
KANAKANAGAR
R.T. NAGAR POST
BENGALURU-560032
12 . SMT. A. PAVITRA PREMA
D/O LATE T. AROGYA REDDY
W/O G. ALBERRT RAJ
AGED ABOUT 80 YEARS,
R/AT NO.67, 8TH CROSS,
KANAKANAGAR,
ST. THOMAS TOWN
R.T. NAGAR POST
BENGALURU-560032
13 . SMT. A. ROSE MARY
D/O LATE T. AROGYA REDDY
AGED ABOUT 48 YEARS,
R/AT NO.9, CHURCH MAIN ROAD,
NIRMALA NAGAR, ERANNA PALYA,
ARABIC COLLEGE POST
BENGALURU-560045.
14 . SMT. A. SAHAYA MARY
D/O LATE T. AROGYA REDDY
W/O P. ANTHONY BENEDICT
AGED ABOUT 47 YEARS,
R/AT BETHEL ASD,
68, 8TH CROSS
KANAKANAGAR,
ST.THOMAS TOWN,
R T NAGAR POST
BENGALURU-560032
15 . SRI A. PRASAD
S/O LATE T. AROGYA REDDY
AGED ABOUT 46 YEARS,
- 25 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
R/AT ISHWERYA OPAL APARTMENTS
RAMAKRISHNAPPA ROAD, COX TOWN
BENGALURU-560005
16 . SMT. A. JYOTI RITA
D/O LATE T. AROGYA REDDY
W/O J. JOHN BRITTO
AGED ABOUT 43 YEARS,
R/AT NO.70, 8TH CROSS,
KANAKANAGAR,
ST. THOMAS TOWN
R.T. NAGAR POST
BENGALURU-560032
17 . SRI A. ULLAS PETER
D/O LATE T AROGYA REDDY
AGED ABOUT 36 YEARS,
R/AT NO.30, MEGHANA PALYA,
CHELIKERE MAIN ROAD,
KALYAN NAGAR
BENGALURU-560043
18 . SMT. C. JETHRUTHA
W/O LATE T. CHINNASWAMY REDDY
AGED ABOUT 66 YEARS,
R/AT NO.42,
CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST
BENGALURU-560045
19 . SRI C. ALBERT DAVID
S/O LATE T CHINNASWAMY REDDY
AGED ABOUT 48 YEARS,
R/AT NO.42,
CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST
BENGALURU-560045
- 26 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
20 . SRI PARKASH PAUL C.,
S/O LATE T. CHINNASWAMY REDDY
AGED ABOUT 47 YEARS,
R/AT NO.42, CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST
BENGALURU-560045
21 . SMT. C. SUNITHA
D/O LATE T.CHINNASWAMY REDDY
W/O SHATHAKUMAR S
AGED ABOUT 44 YEARS,
R/AT NO.60, JOJAPPA LAYOUT,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGLAURU-560045
22 . SRI T. CHOWRI REDDY @ CHOWREDDY
S/O LATE THOMSAPPA
AGED ABOUT 67 YEARS
R/AT NO.42, CHURCH MAIN ROAD
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGLAURU-560045
23 . SRI ANAND SURANA
S/O GHEVERCHAND SURANA
AGED ABOUT 50 YEARS,
R/AT SURANA VILLA
45/3, FAIRFIELD LAYOUT
RACE COURSE ROAD
BENGALURU-560001
24 . SRI SUDARSHAN KARLE
S/O LATE L.T. KARLE
AGED ABOUT 65 YEARS,
R/AT NO.101, 7TH CROSS,
2ND MAIN, I BLOCK
RMV II STAGE
BENGALURU-560094
- 27 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
25 . SRI MAHNDRA KARLE
S/O LATE L.T. KARLE
AGED ABOUT 64 YEARS,
R/AT FLAT NO.1-F,
CASTLE ROCK APARTMENTS,
NO.26, I MAIN ROAD,
JAYAMAHAL EXTENSION,
BENGALURU-560046
26 . THE BANGALORE DEVELOPMENT AUTHORITY
A STATUTORY BODY HAVING ITS
OFFICE AT T.CHOWDAIAH ROAD,
KUMARA PART WEST,
BANGALORE-560020
BY ITS COMMISSIONER
...RESPONDENTS
(BY SRI D SA RONALD I &
SMT. SUNITHA H. SINGH, ADVOCATES FOR R1 & R2;
VIDE ORDER DATED 11.04.2023,
NOTICE TO R3 TO R9 & R11 TO R26 ARE DISPENSED WITH;
SMT.SUSHEELA S.P., SENIOR COUNSEL FOR
SRI SOMANATHA H., ADVOCATE FOR R10)
THIS MFA IS FILED U/O.43 RULE 1(r) OF CPC, AGAINST
THE ORDER DT.05.08.2022 PASSED ON IA NO.2/2020 IN
O.S.NO.1629/2020 ON THE FILE OF THE XL ADDITIONAL CITY
CIVIL JUDGE, BENGALURU CITY, (CCH-41), PARTLY ALLOWING
IA NO.2/2020 FILED U/O.39 RULE 1 AND 2 OF CPC.
THESE APPEALS COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
- 28 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
JUDGMENT
The appeal in M.F.A.No.7600/2022 is filed by the
defendant Nos.17 and 18, the appeal in M.F.A.No.7225/2022 is
filed by defendant No.15, who is dead and his legal
representatives are brought on record as defendant Nos.11, 12
and 13, the appeal in M.F.A.No.7432/2022 is filed by defendant
No.16 and the appeal in M.F.A.No.1139/2023 is filed by the
defendant No.14, challenging the order passed by the Trial
Court on I.A.No.II/2020 filed under Order XXXIX Rule 1 and 2
of CPC seeking an order of temporary injunction restraining the
defendants/opponents from alienating, encumbering, creating
any third party rights or altering either by putting up any
permanent structure or otherwise, the whole or any portion of
the schedule 'A' properties, pending disposal of the suit.
2. The factual matrix of the case of the plaintiff before
the Trial Court while seeking the relief of partition of 1/7th share
in respect of the suit schedule properties is that the schedule
properties consists of 21 items of lands which have been
morefully described under Schedule 'A' of the plaint. One
Thomasappa and Theresamma are husband and wife interse.
- 29 -
NC: 2024:KHC:8452
The said Thomasappa died intestate on 26.09.1978 and his wife
Theresamma died intestate on 27.02.2019. They begotten
seven children. The plaintiff is the daughter, who is eldest
among their children and the defendants are sons and one
other daughter and since some of the defendants are no more,
their legal heirs are brought on record and arrayed as
defendants.
3. It is the case of the plaintiff before the Trial Court
that the said Thomasappa died intestate on 26.09.1978 and his
wife Theresamma died intestate on 27.02.2019. Their second
son T. Anthony Reddy died intestate leaving behind his wife
and children, who are defendant Nos.1 to 7. Thomasappa's
another daughter Smt. Rose Mary and son Sri T. Arogya Reddy
are defendant Nos.8 and 9 herein. Thomasappa's fifth son Sri
Chinnaswamy Reddy died intestate on 06.06.2007 leaving
behind him, his wife and children, who are defendant Nos.10 to
13. Thomasappa's sixth and seventh sons i.e., Joseph Reddy
and Chowri Reddy are defendant Nos.14 and 15 herein
respectively. Subsequent to the death of Chowri Reddy, a
memo is filed before the Trial Court stating that defendant
- 30 -
NC: 2024:KHC:8452
Nos.11, 12 and 13 may be treated as his legal heirs. The said
Chowri Reddy had executed a Will in their favour. It is also the
case of the plaintiff that defendant Nos.16 to 18 are purchasers
of some of Thomasappa's properties. The defendant No.19 is a
statutory body said to have acquired certain properties of late
Thomasappa by way of land acquisition proceedings. The
plaintiff and defendant Nos.1 to 15 are Roman Catholic Indian
Christians and they are governed by the provisions of Indian
Succession Act, 1927 in the matter of succession to intestate
the properties. Late Thomasappa was an affluent agriculturist
and landlord, who died intestate leaving item Nos.1 to 21
properties described under Schedule 'A' of the properties.
During his lifetime, due to making erroneous and illegal
demands for partition of the properties as if his sons were all
members of the joint Hindu Family, late Thomasappa has
earmarked five items of properties to his son Sri T. Anthony
Reddy in full settlement of his inheritance from his father.
Accordingly, the said T. Anthony Reddy has unilaterally
executed a registered release deed dated 28.10.1967
relinquishing all his claims over schedule 'A' properties, after
excluding the five items of the properties ear-marked for him.
- 31 -
NC: 2024:KHC:8452
The said registered release deed is a nullity in law and the
same does not divest Thomasappa's title over the said five
items of the properties.
4. It is further contended that following the aforesaid
arrangement of the year 1957 with Sri T. Anthony Reddy, the
other sons of Thomasappa also started mounting pressure on
their father to put in the place for them a similar arrangement
and as a result, to buy peace and to prevent his son's future
interse bickering and misunderstandings, the said Thomasappa
had distributed some of the properties under schedule 'A'
among his five sons by executing a registered partition deed
dated 24.05.1972 giving a go-by to the earlier registered
release deed dated 28.10.1967. Under the said registered
partition deed dated 24.05.1972, the item Nos.1 to 9 under
schedule 'B' were given to Sri T. Anthony Reddy, who died
leaving behind his legal heirs defendant Nos.1 to 7. The item
Nos.1 to 10 under schedule 'C' were given to Sri T. Arogya
Reddy, who is defendant No.9, who also died during the
pendency of the suit leaving behind his legal heirs defendant
No.9(a) to 9(h). The item Nos.1 to 7 under schedule 'D' were
- 32 -
NC: 2024:KHC:8452
given to Sri Chinnaswamy Reddy, who died leaving behind his
legal heirs defendant Nos.10 to 13. The item Nos.1 to 7 under
schedule 'E' were given to Sri T. Joseph Thyagaraj, who is
defendant No.14. The item Nos.1 to 6 under schedule 'F' were
jointly retained for himself along with Sri Chowri Reddy. The
item Nos.1 to 3 under schedule 'G' were not included in the
aforesaid partition exercise. This partition deed was entered
into and the documents were executed on erroneous basis that
all the parties thereto had an ownership interest in schedule 'A'
properties as co-owners or coparceners under Hindu Law, but
in reality, Thomasappa was sole and absolute owner of the said
schedule 'A' properties. Further, Thomasappa's wife and
daughters were neither parties nor was any provision made for
any of them in the said partition deed. Therefore, the said
partition deed could not be possibly be legally or validly be
construed as of any legal significance or effect be it is an
agreement partition, a partition deed or any other conveyance
of property to any of the sons of Thomasappa. Hence, it is
contended that the said deed, as a partition deed would be an
illegal, invalid and void document affecting or altering rights of
Thomasappa as the sole and absolute owner of the schedule 'A'
- 33 -
NC: 2024:KHC:8452
properties. Therefore, the schedule 'B', 'C', 'E' and 'F' properties
have remained to be absolute properties of Thomasappa
throughout his lifetime.
5. It is also contended that as per the Indian
Succession Act, 1975, Thomasappa's widow Theresamma
inherited an undivided 1/3rd share and each of his seven
children got undivided 2/21st share respectively as co-owners of
the so divided entire estate of Thomasappa. After the demise of
Thomasappa, his widow Theresamma persuaded her daughters
i.e., the plaintiff and defendant No.8 herein as not to take any
immediate legal action to enforce their inheritance claims, by
assuring them that she would be able to ensure that her sons
gave their two sisters their fair shares of schedule 'A'
properties, in compliance of her and her late husband's wishes.
Therefore, the plaintiff and defendant No.8, did not precipitate
the matter during their mother's life time. Having regard to the
applicable law of intestate succession, Thomasappa's widow,
children and the wives and children of his deceased son as his
intestate heirs, all became entitled to their specific undivided
share of schedule 'A' properties. They inherited and jointly held
- 34 -
NC: 2024:KHC:8452
the same until just prior to 27.02.2019 intestate demand of
Theresamma. Following her death, her undivided 1/3rd share in
schedule 'A' properties, devolve upon her daughters, surviving
sons and the wives and children of her deceased sons, jointly
and as co-owners each of them are entitled to their specific
undivided shares. Thus, the plaintiff is entitled for partition and
separate possession of her undivided 1/7th share in schedule 'A'
properties by metes and bounds.
6. The defendant Nos.1 to 7 and 14 filed their written
statement contending that already there was a partition in the
year 1972 during the life time of their father Thomasappa.
When during the life time of their father, he has partitioned the
property, daughter cannot seek for any partition and the very
contention that partition is of the year 1972 is illegal and not
valid cannot be accepted. It is also contended that once
deceased Thomasappa during his life time made arrangement
for partition, the plaintiff cannot claim any share. The
defendants also contend that already when there was partition
and made it clear making the property belongs to Thomasappa
mentioning in the schedule itself, specific properties were
- 35 -
NC: 2024:KHC:8452
allotted to them, now they cannot contend and seek for any
relief of partition which was already settled among the
defendants.
7. The defendant No.8 contend that alleged earlier
partition was not binding and the same is not valid in the eye of
law and the averment made in the plaint i.e., by brother and
sons of the said Thomasappa got it partitioned the property and
the said partition itself is not valid document and question of
partitioning the property which exclusively belongs to
Thomasappa does not arise.
8. The Trial Court having considered the defence
which have been taken by the defendants and the plaintiff,
formulated the points whether the plaintiff has made out a
prima facie case, whether there is a balance of convenience in
favour of the plaintiff and whether the plaintiff would be put to
irreparable loss and injury, if an order of temporary injunction
is not granted.
9. The Trial Court, having considered the material on
record, answered point No.(i) in the 'affirmative', point No.(ii)
partly in favour of the plaintiff and point No.(iii) as partly in the
- 36 -
NC: 2024:KHC:8452
'affirmative' and directed that the defendants, who are holding
plaint schedule 'F' and item Nos.1 and 2 of plaint schedule 'G'
properties are hereby temporarily restrained from alienating
the said properties in any manner whatsoever till final disposal
of the suit. Though suit schedule properties are mentioned as
schedule 'A' to 'H', the interim-relief is granted in respect of two
items of 'F' schedule properties and 'G' schedule properties. The
Trial Court comes to the conclusion that while passing such an
order in respect of 'G' schedule properties, those properties are
not the part of the earlier partition of the year 1972. The claim
of the plaintiff is with regard to 'F' schedule properties is
concerned and though, earlier there was a partition, those
properties are also allotted in favour of the father as well as
son Chowri Reddy. Hence, they are also entitled for a share in
the said properties. Being aggrieved by the said order, these
appeals are filed by the defendants whom I have referred
supra.
10. The main contention of the learned counsel
appearing for the appellants in M.F.A.No.7600/2022, who have
been arrayed as defendant Nos.17 and 18 i.e., the purchasers
- 37 -
NC: 2024:KHC:8452
and learned counsel for the appellants in M.F.A.No.7225/2022,
who are defendant Nos.11 to 13, i.e., the legal heirs of
defendant No.15 is that the suit is filed for the relief of partition
and when already there was a partition in the year 1972 itself,
the said partition was effected by the father of the defendants
i.e., Thomasappa during his life time. The counsel also would
submit that plaint 'A' schedule properties belong to
Thomasappa and no dispute with regard to the same. The
Plaint schedule 'B' to 'H' properties also belong to Thomasappa
is not in dispute. The learned counsel would further contend
that Thomasappa died in the year 1978 is not in dispute and
interim order is granted in respect of entire 'F' schedule
properties and item Nos.1 and 2 of schedule 'G' properties is
not in dispute. In respect of item No.3 of schedule 'G'
properties, SLP is pending before the Apex Court. The counsel
also would vehemently contend that when the registered
partition deed came into existence in the year 1972, now they
cannot seek for the relief of partition, that too, after lapse of 48
years, since the partition was effected in the year 1972 itself.
- 38 -
NC: 2024:KHC:8452
11. Learned counsel also would vehemently contend
that the parties are Christians and once the Trial Court comes
to the conclusion that parties are Christians, however the
finding of Trial Court is in favour of the defendants considering
the Hindu Law and the very observation made by the Trial
Court that parties are governed by Hindu Succession Act is
erroneous taking note of the devolving of the properties under
Hindu Succession Act. Learned counsel appearing for the
appellants would vehemently contend that supplementary
affidavit is filed and the same is not considered by the Trial
Court and in Para Nos.3 and 4 of the supplementary affidavit,
specific averment is made in respect of entire schedule 'F'
properties and the consideration of the affidavit by the Trial
Court is not correct which would be half in the averments made
in the order. Learned counsel would vehemently contend that
suit itself is not maintainable and the conduct of the parties
also to be taken note of and the same was not taken note by
the Trial Court and the plaintiff has slept over for more than 48
years.
- 39 -
NC: 2024:KHC:8452
12. Learned counsel also would contend that other suit
is pending in respect of item No.1 of 'G' schedule properties
and one more suit is also filed and ought to have invoked Order
2 Rule 2 of CPC with regard to the suit filed by the defendant
No.9 which is pending. Learned counsel would further submit
that the said suit was filed in 2016 and the present suit is filed
in 2020 and the Trial Court has not considered the balance of
convenience and instead, considered the balance of
convenience in favour of the plaintiff. Learned counsel also
would vehemently contend that the properties were purchased
long back in 2003 itself. Learned counsel would submit that
said Chowri Reddy executed some of the sale deeds in favour of
defendant No.15 and he is running a school and substantial
township is also started and in view of granting the order of
temporary injunction, it curtails the right of the defendants.
13. Learned counsel for the appellants in support of his
argument, relied upon the judgment of the Apex Court in
KISHORSINH RATANSINH JADEJA VS. MARUTI
CORPORATION AND OTHERS reported in (2009) 11 SCC
229 with regard to the conduct and delay and brought to notice
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of this Court Para Nos.39 to 41, wherein the Apex Court has
discussed with regard to laches. Under such circumstance,
when there is an inordinate delay, injunction cannot be
granted.
14. The counsel also relied upon the judgment in LIFE
INSURANCE CORPORATION VS. BANGALORE L.I.C.
EMPLOYEES HOUSING CO-OPERATIVE SOCIETY LTD.
reported in ILR 1987 KAR 2817 and brought to notice of this
Court Para Nos.40 to 42 and also Para No.21 of the judgment,
wherein the Apex Court has discussed with regard to celebrated
decision of HOUSE OF LORDS IN AMERICAL CYANAMID CO.
VS. ETHICON LTD. reported in ILR KARNATAKA 1976(1)
426 and brought to notice of this Court Para Nos.68 and 23,
wherein this Court has observed that very object of the
interlocutory injunction is to protect the plaintiff against injury
by violation of his right for which he could not be adequately
compensated in damages recoverable in the action if the
uncertainly were resolved in his favour at the trial; but the
plaintiff's need for such protection must be weighed against the
corresponding need of the defendant to be protected against
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injury resulting from his having been prevented from exercising
his own legal rights for which he could not be adequately
compensated under the plaintiff's undertaking in damages if the
uncertainly were resolved in the defendant's favour at the trial.
The counsel also brought to notice of this Court Para No.40 of
the judgment, wherein this Court has observed that balance of
convenience is thus not something akin to a tradesman's scales
to be manipulated adroitly, but as indicated in the decision
supra, it is the resultant anticipation by the Court in an
objective manner of the concomitant hardships experienced by
the one vis-a-vis advantages secured by the other party
subject to there being clear chances of mitigating in some
manner the hardship endured pendente lite by one or the other
side and the prospect of being adequately compensated should
preeminently be the primordial factor guiding exercise of
discretion one way or the other.
15. Learned counsel also brought to notice of this Court
Para No.42 of the judgment, wherein this Court has observed
that in this context, I am bound to note the hazardous result
attendant on the grant of the injunction and call attention to
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the fact that each day the defendant's project gets delayed, it
will add to the escalating costs of house construction which is
sky-rocketing daily, a factor which is so notorious, that no
Court can avoid taking note of.
16. The counsel also relied upon the judgment in SRI
GOWRISHANKARA SWAMIGALU VS. SRI SIDDHAGANGA
MUTT reported in I.L.R. 1989 KAR 1701. The counsel
referring this judgment would vehemently contend that this
Court in detail considered the scope of granting of temporary
injunction and not only discussed with regard to granting of
relief of temporary injunction by the Trial Court but also
discussed with regard to the very scope of Appellate Court in
considering the miscellaneous appeal, when injunction is
granted and brought to notice of this Court Para No.39 of the
judgment, wherein it is observed that I need to hardly add that
the relief of injunction being a remedy in equity must be
bestowed only on those whose reputation and hands are both
spotlessly clean. If not anything else, at least this circumstance
should over-ride all other considerations and must lead to the
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affirmation of the order of the Court below in refusing to
continue the ex-parte injunction granted by it.
17. The counsel also relied upon the judgment in
COTTON CORPORATION OF INDIA LIMITED VS. UNITED
INDUSTRIAL BANK LIMITED AND OTHERS reported in
(1983) 4 SCC 625 and brought to notice of this Court Para
No.10 of the judgment with regard to scope of Order 39 Rule 1
and 2 of CPC being confined to temporary injunction, an
unnecessary grey area will develop. It is indisputable that
temporary injunction is granted during the pendency of the
proceeding so that while granting final relief the Court is not
faced with a situation that the relief becomes infructuous or
that during the pendency of the proceeding an unfair advantage
is not taken by the party in default or against whom temporary
injunction is sought. But power to grant temporary injunction
was conferred in aid or as auxiliary to the final relief that may
be granted. If the final relief cannot be granted in terms as
prayed for, temporary relief in the same terms can hardly if
ever be granted. If this be the purpose to achieve which power
to grant temporary relief is conferred, it is inconceivable that
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where the final relief cannot be granted in terms sought for
because the statute bars granting such a relief ipso facto the
temporary relief of the same nature cannot be granted.
18. The counsel also relied upon the judgment of this
Court in SMT. GUDUMA VS. SHIKANDAR AND OTHERS
reported in ILR 2003 KAR 3913 and brought to notice of this
Court Para No.8, wherein it is observed that in view of these
settled principles of law, in the opinion of this Court, a civil suit
questioning and order of eviction is both expressly and
impliedly barred under Section 9 of the Code of Civil Procedure.
In other words, the suit as brought is not maintainable in law
and this would be a major hurdle for the plaintiff to seek an
order of temporary injunction, which is a discretionary relief. It
is a settled principle of law that when the suit itself is not
maintainable, a party cannot afford to seek an order of
temporary injunction. The relief of temporary injunction is a
protective relief granted in a judicial proceeding in favour of a
party when the Court is satisfied that the fact in issue in the
case requires to be examined and scrutinized in a full fledged
trial and till the Court of law decides that, the interest of the
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party should be protected and only at that stage, an order of
temporary injunction could be granted.
19. The counsel also relied upon the judgment in
KHATRI HOTELS PRIVATE LIMITED AND ANOTHER VS.
UNION OF INDIA AND ANOTHER reported in (2011) 9 SCC
126 and relied upon Para No.30 of the judgment, wherein the
Apex Court has discussed with regard to the limitation is
concerned and observed that while enacting Article 58 of the
1963 Act, the legislature has designedly made a departure from
the language of Article 120 of the 1908 Act. The word `first'
has been used between the words `sue' and 'accrued'. This
would mean that if a suit is based on multiple causes of action,
the period of limitation will begin to run from the date when the
right to sue first accrues. To put it differently, successive
violation of the right will not give rise to fresh cause and the
suit will be liable to be dismissed if it is beyond the period of
limitation counted from the day when the right to sue first
accrued.
20. The counsel also relied upon the judgment in
LALITHA THERESA SEQUERIA (SINCE DEAD) BY LEGAL
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REPRESENTATIVES VS. DOLFY A PIAS ALIAS ADOLPHYS
JOSEPH PAIS AND ANOTHER reported in (2014) 10 SCC
731 and brought to notice of this Court Para No.10, wherein it
is observed that we find no basis to hold that what was claimed
by the defendants to have occurred in the year 1962 is a
partition of the joint family property as understood in Hindu
Law. The property was inherited by the father of the plaintiff
from his mother and the parties being Christians, the father
must be understood to be absolute owner of such property. In
that capacity he was certainly entitled to divide or distribute the
property as he considered fit. What had actually happened in
the year 1962 is, therefore, an oral division of the property at
the instance of the absolute owner thereof i.e. the father in
three more or less equal shares. So far as Schedule 'C' property
which fell to the share of the father, a part of it was sold by
Exhibit D-1 and the remaining devolved on 2 daughters
including the plaintiff. The aforesaid arrangement was
acknowledged in the Will dated 18.05.1976 though the same
has been referred to, and one must understand such reference
to be loosely made, as a partition of the property. The
execution of the Will dated 18.05.1976 has been proved by one
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of the attesting witnesses who had been examined in the trial.
The counsel referring this judgment would contend that the
parties are Christians and in the case on hand, already there
was partition in the year 1972 and one of the son of the Chowri
Reddy had already executed Will and they are also claiming
right based on the Will executed as legatees and the same is
pending consideration.
21. Learned counsel appearing for the appellant in
M.F.A.No.1139/2023 would vehemently contend that the
property i.e., item No.1 of 'G' schedule property i.e.,
Sy.No.46/5 is to the extent of 5 acres, 14 guntas and out of the
same, 1 acre was given to the appellant and the same is not
included in the partition and all the members to the partition
have given consent for transfer of the property in favour of the
appellant and in view of the consent given in the year 1984,
the mutation was entered on 20.02.1984 and all the records
from 1984 for a period of 34 years stands in the name of the
appellant and it clearly discloses that property was given to the
appellant and some of the properties have been sold by
developing the same. Learned counsel also would vehemently
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contend that though all these aspects were pleaded before the
Trial Court by filing written statement, the Trial Court has
committed an error in granting the relief of injunction, though
the plaintiff is not having any right and she slept over for a
period of almost 40 years. The counsel also would contend that
the documents also clearly disclose that the Trial Court not
considered the document in respect of 19 guntas of land
retained after conversion and school is also run in the said
premises.
22. Learned counsel would further contend that in the
written statement of the defendants, they have categorically
taken such defence and also in the objections filed to the
supplementary affidavit filed by the plaintiff, a specific
contention was taken that in the year 1984-85 itself, property
was given exclusively to the appellant and possession is also
with the appellant as a result of consent given in terms of IHC
32/1984-1985. Learned counsel would submit that RTC stands
in the name of the appellant from 1984 to 2017 and the sketch
produced discloses that there was conversion to the extent of
19 acres, 12 guntas of land. Learned counsel would further
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contend that the appellant also bequeathed the property on
21.07.2010 in favour of his wife i.e., three sites and khatha is
transferred in the name of his wife. The counsel would submit
that tax paid receipts clearly disclose that the appellant is in
exclusive possession of the land which he has retained and
electricity connection is also taken in the year 2010 itself. The
counsel would vehemently contend that site No.26 was sold by
way of power of attorney in the year 1999 itself and all the
documents disclose that khatha stands in the name of the
appellant. The counsel would further submit that they have not
produced any single document before the Court to claim the
relief and without any such document being produced before
the Trial Court, the Trial Court has granted an order of
injunction and temporary injunction ought not to have been
granted. Learned counsel also would submit that plaintiff is in
possession of the suit schedule properties and if injunction is
continued in favour of the plaintiff, it will cause hardship.
23. Learned counsel for the plaintiff in reply to the
submissions of learned counsel appearing for the appellant in
M.F.A.No.1139/2023 would vehemently contend that injunction
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is only not to alienate and the same not affects the interest of
the appellant and only in order to prevent further multiplicity of
proceedings, injunction has been granted and with regard to
this appellant is concerned, injunction is granted in respect of
item No.1 of the 'G' schedule properties and the same is not
the part of the partition. When such being the case, when the
said property is not a part of the partition, the plaintiff is
entitled for a share in respect of 'G' schedule properties. The
counsel also would vehemently contend that the defendants
contend that there was consent by the plaintiff and the very
consent is disputed and the plaintiff submit that she is not
aware of the same and no document is produced with regard to
transfer of khatha and if injunction is vacated, it would lead to
multiplicity of proceedings. The counsel would vehemently
contend that partition is of the year 1972 and wife and
daughters are not parties to the said partition. The counsel
would further contend that though suit schedule properties
were allotted, the same are allotted in favour of the father and
last son Chowri Reddy which are shown in the plaint and the
Trial Court has rightly appreciated the material on record and
granted the relief of temporary injunction in respect of 'F' and
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'G' schedule properties and the dispute is only with regard to 'F'
and 'G' schedule properties.
24. The counsel also would vehemently contend that
the plaintiff is disputing the earlier partition among themselves
and contend that the partition deed is not a valid document and
there is no correct distribution of the properties. The counsel
would further contend that the fact that the father died in the
year 1978 is not in dispute and when the father has died, 1/3rd
devolves upon wife and the remaining 2/3rd share devolves
upon the children. The counsel would vehemently contend that
suit itself is barred by limitation and the same is a mixed
question of law. The counsel also vehemently contend that his
argument is on three counts i.e., the share of the plaintiff is
enhanced on account of death of the father and mother in
which she was having 1/3rd share and the same is an
undisputed share of mother and the plaintiff is also entitled for
a share along with other children. It is also contended that on
account of death of Chowri Reddy, the share of the plaintiff
enlarges and though the defendants claim that they are having
Will, the same is subject to mutation. The counsel would
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contend that accusation was made by filing a writ petition and
the same is quashed by this Court and against the said order,
an appeal is filed and the same is allowed by the Apex Court
and the Apex Court has passed an order to redeliver the
property to original owners and if any compensation is
awarded, the same also would be recovered. The counsel also
would contend in the written statement that they have
admitted the fact that the properties belong to Chowri Reddy
and the question of purchasing the property from Vyalikaval
House Building Cooperative Society Limited does not arise.
Learned counsel also would vehemently contend that document
itself clearly disclose that properties stand in the name of
Chowri Reddy and tax paid receipt disclose the same and
hence, the Trial Court has taken note of all these material and
the properties stand in the name of Chowri Reddy is also taken
note of by the Trial Court while granting the relief.
25. The other contention of the learned counsel for the
respondents in M.F.A.No.7225/2022 would contend that no
relief is sought by the appellants while filing the appeal and on
that ground itself, the appeal is liable to be dismissed. Learned
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counsel appearing for the respondent No.10, who is the
defendant No.8 also contend that they have not made any
application before the Trial Court to come on record as legatees
of the said Chowri Reddy and when no such application is filed,
now they cannot file an appeal on that ground and appeal is
liable to be dismissed. Under Section 33 of Indian Succession
Act, the mother is entitled for 1/3rd share and partition cannot
be looked into and the document of partition deed is not valid
and the same will not confer any right.
26. In support of his argument, learned counsel
appearing for the respondent Nos.1 and 2 in
M.F.A.No.7225/2022 rely upon the judgment in JALADI
SUGUNA (DECEASED) THROUGH LRS. SATYA SAI
CENTRAL TRUST AND OTHERS reported in (2008) 8 SCC
521, wherein the Apex Court also discussed with regard to
when there is a dispute with regard to whether they are
legatees or not, an observation is made that postponement of
determination of LRs - High Court deciding first appeal on
merits prior to determining the LRs of the deceased
respondent-plaintiff, held that Court cannot postpone
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determination of LRs for being decided along with merits.
Hence, the counsel would vehemently contend that when they
claim that they are the legatees, the same has to be decided.
27. The counsel also relied upon the judgment in SRI
ARALAPPA VS. SRI JAGANNATH AND OTHERS reported in
ILR 2007 KAR 339 and brought to notice of this Court Para
No.14, wherein the Co-ordinate Bench of this Court observed
that when the parties are governed by the provisions of the
Indian Succession Act and in the property of the father, during
his life time the sons do not get any right. The concept of
blending known under Hindu Law, is not applicable to them.
Therefore, it is clear that the aforesaid Sy.No.47/2 absolutely
belongs to Chowrappa and the only mode in which he could
have conveyed title to his sons in the said property was by way
of registered sale deed or gift deed. However, the recital Ex.P1
shows that they treated themselves as undivided joint family
and then 35 guntas in the aforesaid survey number was given
to the share of these plaintiffs by their father under the
aforesaid partition deed. Even under Hindu Law, if the sons
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have no pre-existing right, in a partition deed they cannot get
right in the property for the first time.
28. The counsel also relied upon the judgment in
LALITHA THERESA SEQUERIA (SINCE DEAD) BY LEGAL
REPRESENTATIVES VS. DOLFY PIAS ALIAS ADOLPHYS
JOSEPH PAIS AND ANOTHER reported in (2014) 10 SCC
731 which I have already mentioned supra referred by the
learned counsel for the appellants in other connected appeal
and brought to notice of this Court Para No.10, wherein the
Apex Court has observed that so far as schedule 'C' property
which fell to the share of the father is concerned, a part of it
was sold by Ex.D1 and the remaining devolved on 2 daughters
including the plaintiff. The learned counsel referring this
judgment would vehemently contend that the father died
intestate in the year 1978 and the Trial Court has taken note of
the fact that the properties were standing in his name and also
in the name of the other son.
29. The counsel also relied upon the judgment of Co-
ordinate Bench of this Court in KHIRASA AND OTHERS VS.
SHANTA AND OTHERS reported in ILR 2023 KAR 137 and
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brought to notice of this Court Para No.12 with regard to the
limitation is concerned and it was held that the legislature has
not prescribed any period of limitation for filing a suit for
partition because partition an incident attached to the property
and there is always a running cause of action for seeking
partition by one of the co-sharers if and when he decides not to
keep his share joint with other co-sharers.
30. The counsel also relied upon the judgment of Co-
ordinate Bench of this Court in S.K. LAKSHMINARASAPPA,
SINCE DECEASED BY HIS LRS. VS. SRI B. RUDRAIAH AND
OTHERS reported in ILR 2012 KAR 4129 and brought to
notice of this Court Para No.71, wherein this Court has
discussed with regard to the limitation is concerned and an
observation is made that till the partition is effected by metes
and bounds, nobody can claim exclusive title to any portion of
the property. Therefore, the alienees though they are put in
exclusive possession of a portion of the property, as the
property is not divided by metes and bounds, they cannot claim
exclusive title to the property which is to be in their possession.
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31. The counsel also relied upon the judgment of this
Court in R.S.A.NO.580/2017 dated 11th April 2023 and
brought to notice of this Court Para No.24, wherein this Court
has held that even if by virtue of a mutation entry, the name of
a person is entered in revenue records in respect of an
immovable property, it does not confer any right, title and
interest on the said person.
32. Learned counsel appearing for the respondent
No.10, in support of her argument, she relied upon the
judgment in B. ANJANAPPA AND OTHERS VS. VYALIKAVAL
HOUSE BUILDING COOPERATIVE SOCIETY LIMITED AND
OTHERS reported in (2012) 10 SCC 184 and brought to
notice of this Court Para No.27 of the order, wherein the Apex
Court has observed that if respondent No.1 is in possession of
the acquired land or any portion thereof, then the same shall
be returned to the landowners concerned within a period of two
months from today, this direction shall apply not only qua the
appellants but other landowners who may not have filed writ
appeals or the special leave petition, may be due to poverty,
illiteracy or ignorance. However, it is made clear that the above
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mentioned directions shall not apply to such of the landowners
who have withdrawn the special leave petition. If any of the
landowners have received compensation from the State, then
the latter shall be free to recover the same in accordance with
law. The counsel referring this judgment and also relying upon
the RTC extract of the year 2022, submits that there is an entry
with regard in the M.R. for the year 2015-2016 which stands in
the name of Chowri Reddy and mutation extract in respect of 2
acres in Sy.No.49/3 is evident that the property was also
released in favour of the original owner and the original owner
Chowri Reddy was in possession subsequent to release of
property and all records are standing in the name of said
Chowri Reddy.
33. The counsel for respondent No.10 also relied upon
the judgment of the Apex Court in BHARAT SHER SINGH
KALSIA VS. STATE OF BIHAR & ANR. reported in 2024
LIVE LAW (SC) 80 and brought to notice of this Court Para
No.30, wherein it is observed that we are of the considered
opinion that all three clauses are capable of being construed in
such a manner that they operate in their own fields and are not
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rendered nugatory. That apart, we are mindful that even if we
had perceived a conflict between Clauses 3 and 11, on the one
hand, and Clause 15 on the other, we would have to conclude
that Clauses 3 and 11 would prevail over Clause 15 as when
the same cannot be reconciled, the earlier clause(s) would
prevail over the later clause(s), when construing a Deed or a
Contract.
34. The counsel also relied upon the judgment of the
Apex Court in RAMKISHORELAL AND ANOTHER VS. KAMAL
NARAYAN reported in 1962 SCC ONLINE SC 113 and
brought to notice of this Court Para No.12 of the judgment,
wherein it is observed that the golden Rule of construction, it
has been said, is to ascertain the intention of the parties to the
instrument after considering all the words, in their ordinary,
natural sense. To ascertain this intention the Court had to
consider the relevant portion of the document as a whole and
also to take into account the circumstances under which the
particular words were used. Very often the status and the
training of the parties using the words have to be taken into
consideration.
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35. Learned counsel appearing for the appellants also
relying upon the very same judgment brought to notice of this
Court that in the similar instance of this nature where in an
earlier document some property is given absolutely to one
person, but later on, other direction in respect of the same
property is given, it conflicts with each other and it would take
away the right of absolute title given in the earlier document.
What is to be done where this happens? It is well settled that in
case of such a conflict the earlier disposition of absolute title
should prevail and the later directions of disposition should be
disregarded as unsuccessful attempts to restrict the title
already given. Both the counsels relied upon this judgment
with regard to the interpretation of the document of partition
deed of the year 1972 with regard to the allotment of share
and the same has to be read in toto with regard to the recitals
made in the document.
36. Learned counsel for appellant in
M.F.A.No.7432/2022 i.e., the defendant No.16 would
vehemently contend that already the defendant No.16 has
settled the matter with the plaintiff and defendant No.8, who is
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another daughter of Thomasappa and application under Order
21, Rule 1 of CPC is filed and the same is considered and
accepted by the Trial Court and the Trial Court has not drawn
the decree in terms of the settlement between the parties.
Hence, direction may be given to the Trial Court to draw the
decree in terms of the compromise entered into between the
parties.
37. Learned counsel for the appellants in
M.F.A.No.7600/2022 and M.F.A.No.7225/2022 in reply to the
argument of the learned counsel for the appellant in
M.F.A.No.7432/2022 would vehemently contend that the said
submission with regard to inter-se compromise between
defendant No.16, plaintiff and defendant No.8 cannot be
accepted and entertained and the scope of appeal is very
limited with regard to granting of temporary injunction i.e., not
to alienate the properties and by making an internal
arrangement between themselves, they cannot seek such a
relief in the present appeal.
38. Having heard the learned counsel for the appellants
and learned counsel for the respondents and also having
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perused the material available on record, it is not in dispute
that suit is filed for the relief of partition by one of the daughter
of said Thomasappa. It is also not in dispute that property
originally belongs to Thomasappa and none of the parties
dispute the same. However, the only dispute is with regard to
the validity of the partition deed which has taken place in 1972.
The very contention of the plaintiff before the Trial Court is that
the said partition is not valid and also it is the contention that
while partitioning the property, the defendants have excluded
the wife as well as two daughters and the same is not a valid
distribution of properties among the members of the family. It
is also the contention of the appellants before this Court that
already there was a partition in the year 1972 and father died
in the year 1978 itself. The counsel also would vehemently
contend that the plaintiff slept over for a period of 40 years and
now they have come up with an application inter-alia seeking
the relief of temporary injunction. When the counsel would
vehemently contend that the suit itself is not maintainable, the
Court has to look into the conduct of the plaintiff as well as the
defendant No.8, who have slept over for a period of 40 years,
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even inspite of cause of action has arisen in the year 1978
itself.
39. Learned counsel would vehemently contend that
suit is also filed by the defendant No.8 in the year 2016 and the
present suit is filed in 2022 and the Trial Court failed to take
note of the said fact into consideration and without looking into
the said fact, order of temporary injunction is granted. There is
no dispute with regard to the fact that property belongs to
Thomasappa and Thomasappa during his life time partitioned
the properties in the year 1972 itself among his sons and
allotted some of the properties. There is no dispute with regard
to the fact that properties which are described in Schedule 'G'
of the suit schedule properties were not the part of the records.
Hence, it is very clear that in respect of the properties which
have been mentioned in 'G' schedule properties, there was no
testamentary document or any document during the life time of
Thomasappa. When such being the case, I do not find any
error in granting the relief of temporary injunction in respect of
item Nos.1 and 2 of 'G' schedule properties are concerned.
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40. Learned counsel for the appellant in
M.F.A.No.1139/2023 would vehemently contend that family
members have given consent for transferring the properties
and the very consent given by the family members is disputed
by the plaintiff and defendant No.8 and when there is a dispute
with regard to giving consent, the appellant has relied upon
only the revenue documents with regard to the transferring of
properties in favour of the appellant. When the plaintiff is
claiming share in respect of the suit schedule properties and
when there is no legal testamentary document or registered
document in favour of the appellant in M.F.A.No.1139/2023 and
there is dispute with regard to the consent and no document is
placed for having obtained consent from the family members,
under such circumstances, the disputed fact whether they have
given consent or not has to be adjudicated before the Trial
Court during the course of trial.
41. Now the contention of the learned counsel
appearing for the appellants in M.F.A.No.7600/2022 and
M.F.A.No.7225/2022 is that, I have already pointed out that
the properties belong to Thomasappa is not in dispute and the
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only contention is that suit is filed after a period of 40 years.
However, the plaintiff also while filing the suit has given the
explanation that after the death of her father, when she
insisted her mother to get a share with the defendants, the
mother had postponed the same and it has to be noted that
with regard to the partition, as rightly pointed out by the
learned counsel for the respondents, there is no limitation. The
other contention is that suit has to be filed within 12 years and
the said contention cannot be accepted. Learned counsel for
the appellants would vehemently contend that Article 110 of
the Limitation Act attracts only in case of exclusion is
concerned and no such exclusion is prima facie found before
the Court. However, the plaintiff and defendant No.8 are
excluded and the earlier partition is only among the father and
five sons and as rightly pointed out by the plaintiff and
defendant No.8, their mother was not party to the said
partition. Apart from that, when the father died in the year
1978 leaving behind the wife and two daughters, the mother
would get 1/3rd share as per Indian Succession Act and no
dispute with regard to the same and the remaining 2/3rd has to
be distributed among the children of Thomasappa. Now, the
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mother has passed away and her share also to be divided. But
very contention that when partition deed came into effect in the
year 1972 itself and recital is made with regard to the allotment
of share, even plaintiff and also defendant No.8 not seriously
disputed the document. But only their contention is that
property is partitioned among the father and the other son
Chowri Reddy and Chowri Reddy is no more and the son of said
Chowri Reddy has allegedly executed a Will and some of the
legatees are claiming in the appeal that they are legatees and
they are entitled for a share. It has to be noted that others
have filed a memo that they have to be treated as legatees of
Chowri Reddy and the memo is objected by the respondents by
filing written statement and the Trial Court has not taken any
decision on the same.
42. The main contention of the learned counsel for the
appellants is that unless the said aspect is determined by the
Trial Court that they are legatees, their appeal cannot be
entertained. But, the fact that Chowri Reddy passed away and
objection is filed and decision is not taken and when there a
dispute with regard to the same, it requires enquiry under
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Order 22 Rule 5 of CPC. When such being the case and already
memo is filed, the Trial Court cannot decide the issue on the
basis of a memo. Even the appellants filed an application
before the Trial Court to come on record as legatees and unless
enquiry is conducted with regard to the fact that they are
legatees or not, their claim based on the Will also cannot be
decided and the only issue before the Court is with regard to
granting of temporary injunction not to alienate the properties.
The issue with regard to whether they are legatees has to be
decided by the Trial Court. Hence, the very appeal filed by the
learned counsel for the respondent/plaintiff and defendant No.8
cannot be entertained and they can file necessary application
before the Trial Court. When the other side is disputing that
they are not the legatees and also dispute the Will, the same
has to be proved before the Trial Court by raising an issue with
regard to the Will is concerned and there is no dispute with
regard to the fact that properties belong to Thomasappa.
43 I have already pointed out that schedule 'G'
properties are not the part of the partition and in respect of
those properties are concerned, though learned counsel
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appearing for the appellant in M.F.A.No.1139/2023 claims that
already properties are converted and some of the properties
are sold and prospective purchasers are in possession, now the
relief is only with regard to not to alienate the properties and if
any further finding is given, it will lead to multiplicity of
proceedings and if any such purchasers come before the Trial
Court, the Trial Court also can consider the said aspect while
considering the matter on merits. The Trial Court has granted
the relief of temporary injunction only with an intention to
avoid multiplicity of proceedings in respect of entire schedule 'F'
properties are concerned. There is a dispute with regard to
the document of partition deed and some of the parties claim
that the same is not a valid document.
44. Having considered the recital of the partition deed,
no doubt, in the partition deed 'E' schedule properties are
shown, wherein reference is made with regard to the name of
Chowri Reddy is concerned, on further reading of the said
document, it is seen that a reference is made that father as
well as Chowri Reddy are treated as one party. When such
being the case, it also requires interpretation and as requested
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by the learned counsel for the appellants, the matter requires
consideration on interpretation of the document of the partition
deed whether share allotted in respect of 'E' schedule
properties is in respect of father as well as the son. When such
being the case, the intention of the parties while executing the
document of partition deed in the year 1972 also to be
gathered during the course of trial and interpretation can be
done after recording the evidence whether 'F' schedule
properties are properties of Chowri Reddy or same also belongs
to the father and succession is open to the parties in respect of
the suit schedule 'F' properties also. When such being the
case, I do not find any error committed by the Trial Court in
granting the relief of temporary injunction, that too not to
alienate the properties and the issue with regard to the
partition, apportionment of the share, devolving of their share
after the death of their father and mother and also the issue of
execution of the Will by said Chowri Reddy also to be examined
before by Trial Court during the course of trial. Hence, I do not
find any ground to interfere with the findings of the Trial Court.
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45. In view of the discussion made above, I pass the
following:
ORDER
(i) The appeals are dismissed.
(ii) The prayer of the learned counsel for the
appellant in M.F.A.No.7432/2022 for drawing
up of the decree cannot be considered in the
present appeal.
(iii) The observation made by this Court while
passing the judgment shall not influence the
Trial Court while considering the matter on
merits, including the aspect of limitation is
concerned.
Sd/-
JUDGE
ST
