Karnataka High Court
Mariyappa vs Sri Krishnappa on 4 July, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:25343
MFA No. 2080 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 2080 OF 2024 (CPC)
BETWEEN:
1 . MARIYAPPA,
S/O PERISWAMY,
AGED ABUT 82 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049
2 . SMT PUTTAMMMA
W/O MARIYAPPA
AGED ABUT 77 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049
3 . SRINIVAS M
S/O MARYYAPPA,
Digitally signed by
GEETHAKUMARI AGED ABUT 42 YEARS,
PARLATTAYA S R/AT DINNUR VILLAGE,
Location: High KANNAMANGALA POST,
Court of Karnataka BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049.
4 . SRI SUBRAMANI M
S/O MARYYAPPA,
AGED ABUT 40 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049.
5 . SRI ANANNDA M
S/O MARYYAPPA,
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MFA No. 2080 of 2024
AGED ABUT 37 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049.
6 . SRI KRISHNAPPA M
S/O MARYYAPPA,
AGED ABUT 31 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049.
7 . SRI KIRAN KUMAR
S/O MARYYAPPA,
AGED ABUT 29 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049.
...APPELLANTS
(BY SRI SATHISH S.K., ADVOCATE FOR
SMT. JYOTHI S K., ADVOCATE)
AND:
1 . SRI KRISHNAPPA
S/O LATE GUNDAPPA,
AGED ABOUT 61 YEARS,
BELTHURU VILLAGE,
BIDHARAHALLI HOBLI,
BANGALORE EAST TALUK.
2 . SMT SUMITRA
D/O MARIYAPPA,
AGED ABOUT 41 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049.
3 . SMT CHINNAMMA
D/O MARIYAPPA,
AGED ABOUT 41 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
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MFA No. 2080 of 2024
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049.
4 . SMT RAJAMMA
D/O MARIYAPPA,
AGED ABOUT 41 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049.
5 . SMT VEENA
D/O MARIYAPPA,
AGED ABOUT 35 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049.
6 . SMT SAROJAMMA
D/O LATE PERISWAMY,
AGED ABOUT 54 YEARS,
R/AT NO. 61,
BASAVESWARA NAGARA,
NARASPURA KOLAR DISTRICT.
7 . JAYALAKSHMAMMA
W/O LATE RAMAIH
AGED ABOUT 60 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049
8 . JAYAMMA
D/O LATE SUBRAMANI,
AGED ABOUT 62 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049.
9 . ANANDH
S/O LATE SUBRAMANI
AGED ABOUT 40 YEARS,
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MFA No. 2080 of 2024
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049.
10 . LAKSHMI
D/O LATE SUBRAMANI,
AGED ABOUT 37 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049
11 . SRI SRIRAM
S/O LATE SUBRAMANI
AGED ABOUT 35 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049
12 . SRI JAYALASHAMAMMA
D/O LATE GUNDAPPA,
AGED ABOUT 58 YEARS,
R/AT DINNUR VILLAGE,
KANNAMANGALA POST,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK - 560049
...RESPONDENTS
(BY SRI SRINATH P., ADVOCATE C/R1)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 06.01.2024 PASSED ON I.A. NO. 1 IN
O.S.NO. 1259/2022 ON THE FILE OF THE VIII ADDITIONAL SENIOR
CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU,
ALLOWING THE I.A. NO.1 FILED UNDER ORDER XXXIX RULES 1
AND 2 DATED 13.06.2022.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 2080 of 2024
JUDGMENT
Challenging order dated 06.01.2024 passed by VIII Addl.
Senior Civil Judge, Bengaluru Rural District, Bengaluru, in
O.S.no.1259/2022 on I.A.no.1 filed under order XXXIX Rules 1 and 2
of CPC, this appeal is filed.
2. Sri Sathish S.K., learned counsel appearing for
Smt.Jyothi S.K. learned counsel for appellants submitted,
appeal was by defendants in suit filed for partition, separate
possession and injunction against alienation of suit schedule
properties, mesne profits etc. In said suit, plaintiffs had filed
I.A.no.1 seeking for temporary injunction restraining
defendants from alienating or creating any encumbrances over
suit schedule properties pending disposal of suit. It was
submitted, under impugned order, trial Court allowed I.A. on
wholly untenable grounds and same was questioned herein.
3. It was submitted plaintiffs were grandsons of Sri
Periswamy, who had 4 wives i.e. Smt.Yellamma,
Smt.Chinnamma @ Chinnathayamma, Smt.Chinnamma and
Smt.Annemma. Whereas, second wife and third wife had no
issues, plaintiffs were from branch of first wife - Smt.Yellamma,
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while defendant no.1 was son of Smt.Annemma; efendant no.2
was his wife and Defendants no.3 to 11 were their children.
4. At outset, it was submitted that though plaintiffs
were guilty of suppressions and misrepresentation which
disentitled them from any discretionary reliefs trial Court had
without proper consideration granted injunction. Though,
plaintiffs were seeking for partition of joint family properties,
they had suppressed fact that Periswamy inherited only land
bearing Sy.no.24/12 situated at Hoskote taluk, from his father,
but same was not included in suit schedule properties. Further,
plaintiffs' father Gundappa, during lifetime of Periswamy had
executed registered release deed dated 26.08.1959 in respect
of Sy.no.24/12. Under said release deed Gundappa was
granted Sy.no.436 and 147 measuring 30 guntas each. Neither
of these properties are included in plaint schedule. In fact,
Gundappa was in exclusive possession and enjoyment of said
properties, sold Sy.no.147 in favour of K.Jaikumar Singh on
10.09.1967.
5. Likewise, other son Ramaiah also executed release
deed in respect of Sy.no.24/12 in favour of Periswamy and got
lands bearing Sy.no.31/2 (new Sy.no.48/4) measuring 39
guntas along with eucalyptus trees and house property, which
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remained in his exclusive possession. Thus, Periswamy being
absolute owner of suit properties, executed registered Will on
29.03.1967 in favour of defendant no.1 bequeathing suit
properties. After his death defendant no.1 had become absolute
owner and revenue records were mutated accordingly.
Subsequently, on 20.07.2015 defendants no.1 to 12 had
divided suit properties among themselves under registered
deed of partition and were in exclusive possession and
enjoyment of their respective shares.
6. It was further stated that Smt.Chinnamma had
purchased Sy.no.454 of Annamari Doddakere of Hoskote. Since
she was sister of Smt.Annemma mother of defendant no.1, out
of natural love and affection she executed Will on 11.08.1973
bequeathing said property in favour of defendant no.1, while
she was in sound disposing mind. It was further submitted
plaintiffs had also suppressed fact that Gundappa and Ramaiah
had sister by name Smt.Lakshmamma who was not arrayed as
party to suit and therefore it was bad for non-joinder. Hence,
suit was untenable.
7. It was submitted, execution of release deed by
Gundappa and Ramaiah indicated their separation and there
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was no existence of joint family. Though, documents produced
by defendants corroborated above facts and indicated
defendants being in settled and exclusive possession of suit
properties, by merely observing whether properties were joint
family properties or self-acquired properties would require full-
fledged trial and same could not be adjudicated at interlocutory
stage, trial Court had granted temporary injunction.
8. It was contended, plaintiffs had not included all
joint family properties and suit for partial partition was not
maintainable; had not challenged Will executed by Periswamy;
partition between defendants under registered partition deed;
revenue entries standing in name of defendants as well as
delay in filing suit, impugned order was in any case wholly
untenable and sought interference.
9. On other hand, Sri Srinath P., learned counsel for
plaintiffs opposed appeal. Though, execution of release deed
was not disputed, since release was only in respect of
Sy.no.24/12, which was not included in suit schedule
properties, contention based on release deed would not hold.
Further, since there was no partition amongst joint family, sale
by Gundappa would not come in way of plaintiffs seeking
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partition. And since Smt.Annemma did not have any
independent source of income, property purchased by her
would also be joint family property. It was submitted, though
defendants were relying upon Wills, they had to establish due
execution of Wills during trial. Likewise, claim of defendant no.1
that item no.1 of suit properties was self-acquired would
require to be established by evidence, as burden would lie on
person claiming it to be self-acquired. Based on said
observations, trial Court held points regarding prima facie case,
balance of convenience and irreparable loss and injury, if
injunction as sought for is refused in favour of plaintiffs. It was
submitted, since order passed by trial Court was after recording
due reasons based on material available on record, there was
no scope for interference and sought dismissal of appeal.
10. Heard learned counsel and perused impugned
order.
11. From above, it is seen that appeal is mainly on
ground of perversity of conclusions and not non-consideration
of documents. Hence point that would arise for consideration is:
"Whether impugned order suffers from untenability
or perversity and calls for interference?"
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12. This is an appeal against discretionary order passed
by trial Court under Order XXXIX Rules 1 and 2 of CPC on
I.A.no.1. As per decision of Hon'ble Supreme Court in Mohd.
Mehtab Ibrahim Khan v. Khushnuma Ibrahim Khan,
reported in 2013 (9) SCC 221, scope for interference in
appeal against discretionary order would be limited, unless it
were untenable or suffered from perversity etc. It is clarified
even if view taken by trial Court on available material were to
be one of possible views, there could be no interference.
13. From impugned order, it reveals that trial Court
while passing impugned order, adverted to contentions of
parties, framed necessary points for consideration and assigned
reasons.
14. Perusal of plaint reveals that there is no pleading
regarding execution of release deed by plaintiff's father
Gundappa on 26.08.1959. Plaintiff has also not included
properties given to plaintiff's father under said deed. Defendant
has specifically asserted about execution of release deed by
plaintiff's father-Gundappa and his brother-Ramaiah on
26.08.1959. Producing copy of release deed, it was asserted,
Gundappa got two properties bearing Sy.nos.436 and 147 of
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Kannamangala, Hosakote, under said release deed and
thereafter he had sold Sy.no.147 on 10.09.1962 independently.
After referring to same, trial Court proceeds to hold that same
would require trial and until then it was required to preserve
properties by order of temporary injunction against alienation.
15. It is settled legal position that conduct parties
would also be one of important factors while granting
injunctions. When defendant has taken specific plea about
plaintiffs being guilty of suppression and misrepresentation and
also produces material to substantiate same, it would be
incumbent upon Court to duly consider it. Observations that, it
would be matter for trial amount to brushing aside substantial
contention and as such, there would be failure to consider
material on record rendering finding untenable.
16. Apart from same, defendants not only pleaded that
after execution of release deed, name of Periswamy -
grandfather of plaintiffs was entered in RoRs and he had
executed registered Will on 29.03.1967, bequeathing properties
to defendant no.1 and there was partition amongst defendants
in respect of suit properties on 20.07.2015, but also
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substantiated same by production of copies thereof. And said
events had occurred several decades ago, it would be hard to
presume that they might have escaped knowledge of plaintiffs.
As against consistent stand of defendants about release deed
causing separation of Gundappa and Ramaiah from joint family,
plaintiffs contend that in absence of express partition, there
would be continuation of joint family. In absence of reasonable
explanation by plaintiffs for having kept quiet such long
duration, it would be plaintiffs' assertion that would be matter
for trial as documents produced prima facie support defendants'
claim. Hence, impugned order would be untenable. Point for
consideration is thus answered in affirmative
Consequently, appeal is allowed, impugned order dated
06.01.2024 passed by VIII Addl. Senior Civil Judge, Bengaluru
Rural District, Bengaluru, in O.S.no.1259/2022 on I.A.no.1 filed
under order XXXIX Rules 1 and 2 of CPC, is set aside. IA filed
by plaintiffs is rejected.
Sd/-
JUDGE
Psg /GRD
