Karnataka High Court
Sri Nagappa M vs Smt Jayamma @ Galamma on 5 March, 2024
-1-
NC: 2024:KHC:9320
MFA No. 8796 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 8796 OF 2023 (CPC)
BETWEEN:
SRI. NAGAPPA M.,
S/O. LATE MOTAPPA @ DODDA MATAIAH,
AGED ABOUT 62 YEARS,
RESIDING AT NO.74,
GANDHINAGAR,
KAGGALIPURA VILLAGE AND POST,
BENGALURU SOUTH TALUK
BANGALORE - 560116
...APPELLANT
(BY SMT. NIRMALA M., ADVOCATE FOR
SRI. MANJUNATHA G., ADVOCATE)
AND:
SMT. JAYAMMA @ GALAMMA
W/O LATE RAMAIAH,
D/O LATE MOTAPPA @ DODDA MATAIAH,
AGED ABOUT 64 YEARS,
RESIDING AT NO.112, GANDHINAGAR,
Digitally KAGGALIPURA VILLAGE AND POST,
signed by BS
RAVIKUMAR BENGALURU SOUTH TALUK,
Location: BANGALORE - 560 116
HIGH
COURT OF ...RESPONDENT
KARNATAKA
(BY SMT. SHEELA, ADVOCATE FOR CAVEATOR RESPONDENT )
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ WITH
SECTION 104 OF CPC, AGAINST THE ORDER DATED 06.12.2023
PASSED ON I.A. NO.1 IN O.S.NO.962/2022 ON THE FILE OF THE
VII ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, BENGALURU
RURAL DISTRICT, BENGALURU, ALLOWING THE I.A. NO.1 FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC.
-2-
NC: 2024:KHC:9320
MFA No. 8796 of 2023
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendant in O.S.No.962/2022 on the file of VII
Additional Senior Civil Judge AND JMFC, Bengaluru Rural
District, Bengaluru has filed this petition challenging the
correctness of an order dated 06.12.2023 on I.A.No.I filed by
the plaintiff under Order XXXIX Rules 1 and 2 of Civil Procedure
Code, by which, the said application was allowed granting
interim injunction restraining the defendant from alienating the
suit schedule property.
2. The suit in O.S.No.962/2022 was filed for partition
and separate possession of the plaintiff's share in the suit
schedule property. The plaintiff claimed that the suit schedule
property was granted to her father and that he died intestate.
She claimed that she and the defendant were entitled to an
equal share in the suit schedule property.
3. The defendant on the other hand contended that his
father had executed a Will dated 28.03.2003 in terms of which,
he had bequeathed the entire suit schedule property to the
defendant. He contended that the plaintiff was aware of the
NC: 2024:KHC:9320
execution of the Will dated 28.03.2003 and consequent transfer
of the revenue documents in the name of the defendant. He
further contended that the plaintiff did not take any action to
claim her share for nearly 17 years and therefore, the suit filed
was only to harass the defendant.
4. Along with the plaint, the plaintiff filed an
application for interim injunction restraining the defendant from
alienating the suit schedule properties. The said application was
allowed by the Trial Court and the defendant was restrained
from alienating the suit properties. Being aggrieved by the said
order, the defendant has filed this appeal.
5. The learned counsel for the defendant vehemently
contended that the suit filed by the plaintiff was only to harass
the defendant, as the plaintiff did not lay any claim for the last
17 years after the death of her father. She further contended
that based on the Will dated 28.03.2003 executed by the father
of the defendant, the name of the defendant was entered in the
revenue records and that the mother of the defendant had also
submitted an affidavit admitting the lawful execution of the Will
dated 28.03.2003. She contended that since the plaintiff was
NC: 2024:KHC:9320
aware of the revenue proceedings, she is deemed to be aware
of execution of the Will dated 28.03.2003 by her father in
favour of the defendant and it was within her knowledge. She
further contended that the defendant did everything that a
sibling could do to the plaintiff including performing the
marriage of the daughters of the plaintiff. She contended that
the plaintiff had seen the defendant constructing a house on
the suit schedule property and therefore, she was aware of the
fact that Will dated 28.03.2003 was executed by her father in
favour of the defendant, yet she filed the present suit for
partition.
6. The fact that the suit property was granted to the
father of plaintiff is not in dispute. While, the plaintiff claimed
that her father died intestate, the defendant contended to the
contrary and claimed that his father had executed a Will dated
28.03.2003 bequeathing the suit schedule in his favour.
7. The question whether the Will executed by the
father of the plaintiff and defendant in favour of the defendant
was valid or not, fell for consideration before the Trial Court. In
the absence of the Will, the plaintiff and her elder sister would
NC: 2024:KHC:9320
have succeeded to the suit property as the Class - I heirs of
their deceased father along with the defendant.
8. In that view of the matter, there is no error
committed by the Trial Court in allowing the application
restraining the defendant from alienating the suit schedule
property, pending disposal of the suit warranting interference
by this Court.
Hence the appeal is dismissed.
Sd/-
JUDGE
HJ
