Karnataka High Court
Sri. Nagaraj. A vs Sri. V. Manjunath on 5 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:692
MFA No. 8069 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.8069 OF 2023 (CPC)
BETWEEN:
1. SRI. NAGARAJ. A.
S/O. APPAJAPPA AND LATE SMT. GOWRAMMA,
AGED ABOUT 49 YEARS,
2. SRI. MOHAN. A
S/O. APPAJAPPA AND LATE SMT. GOWRAMMA,
AGED ABOUT 39 YEARS,
3. SRI. HARISH. A
S/O. APPAJAPPA AND LATE SMT. GOWRAMMA,
AGED ABOUT 35 YEARS,
ALL ARE R/AT KALKERE VILLAGE,
JIGANI HOBLI,
ANEKAL TALUK-560083,
Digitally signed
by SHARANYA T BANGALORE URBAN DISTRICT.
Location: HIGH ...APPELLANTS
COURT OF (BY SRI. SRIDHAR HEGDE A/W
KARNATAKA
SMT. SARITHA A L., ADVOCATES)
AND:
1. SRI. V. MANJUNATH
S/O. LATE T. VENKATASWAMAPPA,
AGED ABOUT 51 YEARS,
2. SRI. V. RAVI KUMAR
S/O. LATE T. VENKATASWAMAPPA,
AGED ABOUT 49 YEARS,
-2-
NC: 2024:KHC:692
MFA No. 8069 of 2023
3. SRI. V. RAMESH
S/O. LATE T. VENKATASWAMAPPA,
AGED ABOUT 44 YEARS,
4. SMT. ROOPA
D/O. LATE T. VENKATASWAMAPPA,
AGED ABOUT 46 YEARS,
RESPONDENT No.1 TO 4 ARE
R/AT KALKERE VILLAGE & POST,
BANNERGHATA ROAD, JIGANI HOBLI,
ANEKAL TALUK,
BANGALORE -560083
5. SMT. RATHANAMMA
D/O. LATE ANNAYAPPA AND
SMT. MUNIYAKKAMMA,
W/O. PUTTARAJU,
AGED ABOUT 58 YEARS,
R/AT NO. 25,
NEAR RAYA HARMITAGE LAYOUT,
BASAVANAPURA, GOTTIGERE POST,
BANNERGHATTA ROAD,
BENGALURU-560 083.
6. SRI. KRISHNAMURTHY. C
S/O. LATE SMT. VAJRAMMA AND CHANNAPPA,
AGED ABOUT 63 YEARS,
7. SRI. MUNIRAJU. C
S/O. LATE SMT. VAJRAMMA AND CHANNAPPA,
AGED ABOUT 60 YEARS,
8. SRI. NARAYANA. C
S/O. LATE SMT. VAJRAMMA AND CHANNAPPA,
AGED ABOUT 57 YEARS,
9. SMT. DEVAMMA
D/O. LATE SMT. VAJRAMMA AND CHANNAPPA,
AGED ABOUT 55 YEARS,
-3-
NC: 2024:KHC:692
MFA No. 8069 of 2023
10. SRI. T. RAMAIAH @ RAMAPPA
S/O. LATE THAYAPPA AND CHOWDAMMA,
AGED ABOUT 70 YEARS,
11. SRI. R. NAGESH
S/O. T. RAMAIAH @ RAMAPPA,
AGED ABOUT 48 YEARS,
12. SRI. R. MANJUNATHA
S/O. T. RAMAIAH @ RAMAPPA,
AGED ABOUT 45 YEARS,
13. SMT. R. LEELAVATHI
S/O. T. RAMAIAH @ RAMAPPA,
AGED ABOUT 53 YEARS,
14. SMT. R. MANJULA DEVI
S/O. T. RAMAIAH @ RAMAPPA,
AGED ABOUT 42 YEARS,
RESPONDENT Nos.6 TO 14 ARE
R/AT KALKERE VILLAGE,
BANNERGHATTA ROAD,
BANGALORE -560083
15. SMT. PUTTAMMA
D/O. LATE THAYAPPA AND
SMT. CHOWDAMMA,
AGED ABOUT 66 YEARS,
C/O. MUNIRAJU,
NO. 1986, 26TH B MAIN,
40 'A' CROSS,
9TH BLOCK, JAYANAGAR,
BANGALORE-560 069.
16. SRI. KRISHNAPPA. A
S/O. APPAJAPPA AND LATE
SMT. GOWRAMMA,
AGED ABOUT 45 YEARS,
R/AT KALKERE VILLAGE,
-4-
NC: 2024:KHC:692
MFA No. 8069 of 2023
JIGANI HOBLI,
ANEKAL TALUK
BANGALORE URBAN DISTRICT.
17. SMT. A. MANJULA
D/O. APPAJAPPA,
W/O. APPAYANNA,
AGED ABOUT 55 YEARS,
R/AT NO. 10, LIKITH LAYOUT,
KALKERE, BANNERGHATTA ROAD,
BANGALORE-560083.
18. SRI. A. RADHA
D/O. APPAJAPPA,
W/O. RAJU,
AGED ABOUT 44 YEARS,
R/AT NO. 10, LIKITH LAYOUT,
KALKERE, BANNERGHATTA ROAD,
BANGALORE-560083.
19. SRI. VAJRAMUNI
S/O. LATE PUTTARAJU,
AGED ABOUT 45 YEARS,
20. SMT. P. SHOBHAVATHI
D/O. PUTTARAJU,
AGED ABOUT 38 YEARS,
RESPONDENT No.19 AND 20 ARE
R/AT H. NO. 25,
RAYA HARMITAGE LAYOUT,
BASAVANAPURA,
GOTTIGERE POST,
BANGALORE-560 083.
...RESPONDENTS
(BY SRI C M NAGABHUSHANA, ADVOCATE FOR
SRI P V CHANDRASHEKAR, ADVOCATE FOR R1)
-5-
NC: 2024:KHC:692
MFA No. 8069 of 2023
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT.13.10.2023 PASSED ON IA NO.1 IN
O.S.NO.241/2023 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE AND JMFC, ANEKAL AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against the impugned order dated
13.10.2023 wherein rejected the application filed under
Order 39 Rules 1 and 2 of CPC for the prayer to restrain
the defendants from alienating the suit schedule properties
till the disposal of the suit.
2. This matter is listed for admission. Heard the
learned counsel appearing for the respective parties.
3. The factual matrix of the case of the plaintiffs
that they are the grandchildren of Thayappa and
Chowdamma. Thayappa died in the year 1982 and
Chowdamma died in the year 2005 and the plaintiffs are
the children of Gowramma who is the daughter of
Thayappa and Chowdamma. It is the contention of the
plaintiffs that the suit schedule properties are the
NC: 2024:KHC:692
ancestral and joint family properties and there was no
partition between the legal heirs of Thayappa and
Chowdamma and they succeed to the estate of Thayappa
and Chowdamma through their mother Gowramma hence,
they are entitled for a share in the suit schedule
properties. Hence, they have filed the suit for partition and
separate possession. Inter alia, they have also sought for
an order of temporary injunction by filing an application
under Order 39 Rule 1 and 2 of CPC contending that the
defendants are making efforts to alienate the suit schedule
properties. If the properties are alienated, it will leads to
multiplicity of proceedings. Hence, an injunction order has
to be passed against the defendants.
4. The defendants appeared and filed their written
statement and statement of objections opposing the claim
of the plaintiffs contending that the plaintiffs are not
having any right over the suit schedule properties. It is
also contended that already there was a partition between
the sons of Thayappa and Chowdamma in the year 1979
NC: 2024:KHC:692
itself. The counsel also submits that even other sisters of
the mother of the plaintiffs also have supported the
partition which was effected in the year 1979. It is also
the contention that subsequent to the partition, the parties
have acted upon and mutation entries were also made in
terms of M.R.No.4/1989-90 and properties were sold
subsequent to the said partition and there is a reference in
the registered sale deed stating that there was a partition
in the year 1979 and the parties have acted upon
accordingly. The counsel submits that as on the date of
death of Thayappa, mother of the plaintiffs not having
share in the suit schedule properties and amendment
came into force only in the year 2005 hence, now, they
cannot claim that there was no any partition when already
there was a partition and the parties have acted upon.
5. The Trial Court after considering the pleadings
of the parties, framed the points and answered the same
as negative in coming to the conclusion that the material
clearly discloses that already there was a partition in the
NC: 2024:KHC:692
year 1979 itself and also in pursuance of the partition,
M.R.No.4/1989-90 came into existence and subsequently,
the parties have acted upon and some of the properties
were sold allotted to their respective share hence, there is
no prima facie case in favour of the plaintiffs and balance
of convenience does not lies on the plaintiffs. In view of
the said finding, the present appeal is filed before this
Court.
6. The learned counsel for the appellants would
vehemently contend that the relief is sought in the
application is only for not to alienate the suit schedule
properties. The suit was filed for the relief of partition and
separate possession. The counsel would vehemently
contend that alleged partition of the year 1979 is not a
registered partition deed hence, there is no value to the
said partition deed. Beyond the back of the plaintiffs, if
any documents are created, the same is not binding on
them.
NC: 2024:KHC:692
7. Per contra, the learned counsel appearing for
the respondents would vehemently contend that the Trial
Court taking into note of the pleadings as well as the
documents placed before the Trial Court comes to the
conclusion that the partition is of the year 1979 itself and
thereafter, M.R.No.4/1989-90 also came into existence
and the parties have acted upon and the some of the
properties which was allotted in the partition also sold and
there is a reference in the sale deed that there was a
partition in the year 1979.
8. Heard the learned counsel appearing for the
respective parties and also perused the material available
on record. The Trial Court particularly taking into note of
the pleadings made in the application as well as in the
written statement and also considering the pleadings of
the parties comes to the conclusion that already partition
was effected in the year 1979 and they have divided the
properties according to the said partition deed. Learned
counsel for the respondents would contend that the
- 10 -
NC: 2024:KHC:692
mother-Chowdamma herself effected the partition among
the sons. The fact that property belongs to Thayappa and
Chowdamma is not in dispute. Thayappa died in the year
1982 and Smt. Chowdamma died in the year 2005. When
her husband passed away in the year 1982, she being the
mother is also entitled for a share in the property. But, no
such share was given under the unregistered partition in
favour of mother and daughters also entitle for notional
partition in respect of share of their father.
9. No doubt, the parties have acted upon as per
the earlier partition of the year 1979. The plaintiffs, who
are the legal heirs of the daughter of Thayappa and
Chowdamma, are also having notional share in respect of
the property, though not equally entitled for share along
with them. Even though there was no right in the ancestral
property left by the father, they are entitled for the same
and the said aspect has not been considered by the Trial
Court and the Trial Court only comes to the conclusion
that already there was a partition in the year 1979 and the
- 11 -
NC: 2024:KHC:692
parties have acted upon the same but mother is not the
party to the said partition. However, taking note of the
fact that plaintiffs are the legal heirs of Gowramma and if
they succeed in the suit, the defendants cannot claim that
they are the absolute owners in pursuance of the partition
and their interest also has to be protected. In order to
protect the interest of the appellants, it is appropriate to
modify the order of the Trial Court restraining the
defendants in alienating the property i.e., item No.1 of 'B'
schedule property, till the disposal of the suit to protect
the interest of the appellants herein.
10. With these observations, the appeal stands
disposed of.
11. The Trial Court is directed to dispose of the
matter as expeditiously as possible.
Sd/-
JUDGE
SN/ST
