Karnataka High Court
Smt. Komala vs Sri G S Mahendra on 7 March, 2024
-1-
NC: 2024:KHC:9593
MFA No. 790 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 790 OF 2024 (CPC)
BETWEEN:
SMT. KOMALA
W/O. SRINIVASA,
D/O. LATE M. SIDDAIAH
AGED ABOUT 65 YEARS,
PREMANENT ADDRESS:
NO.04, ASHRAYA APARTMENTS,
3RD MAIN, SAMRAT LAYOUT,
BANNERAGHATTA ROAD,
ARAKERE, BANGALORE-560076.
...APPELLANT
(BY SMT. LATHA SHETTY, ADVOCATE)
AND:
1. SRI. G.S. MAHENDRA
S/O LATE M. SIDDAIAH
AGED ABOUT 61 YEARS,
RESIDING AT NO.672/A,
Digitally 11TH CROSS, 7TH BLOCK (WEST),
signed by BS JAYANAGAR
RAVIKUMAR
BANGALORE-560082.
Location:
HIGH
COURT OF 2. SRI. G.S. RAVINDRA
KARNATAKA
S/O LATE M. SIDDAIAH,
AGED ABOUT 55 YEARS,
NO.314, GROUND FLOOR,
14TH CROSS, 1ST FLOOR,
2ND BLOCK, JAYANAGAR
BANGALORE-560011.
3. SMT. INDIRA GNANENDRA
W/O LATE G.S. GNANENDRA
AGED ABOUT 54 YEARS
NO.315, 14TH CROSS,
1ST FLOOR, 2ND BLOCK,
JAYANAGAR,
-2-
NC: 2024:KHC:9593
MFA No. 790 of 2024
BANGALORE-560011
...RESPONDENTS
(BY SMT. R. RASHMI SAGAR, ADVOCATE FOR SRI. B.S.RAGHU
PRASAD, ADVOCATE FOR CAVEATOR RESPONDENT NO.2)
THIS MFA IS FILED UNDER ORDER XLIII RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 03.01.2024 PASSED ON IA NO.6
IN O.S.NO.439/2022 ON THE FILE OF THE XIV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-28), REJECTING IA
NO.6 FILED UNDER ORDER XXXIX RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISISON, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in O.S.No.439/2022 on the file of XIV
Additional City Civil and Sessions Judge, Bengaluru has
filed this appeal challenging an order dated 03.01.2024
passed therein, by which, an application (I.A.No.6) filed by
her for interim injunction restraining the defendants from
alienating or transferring the suit properties was rejected.
2. Briefly stated, the facts that can be gathered
from the plaint are that the plaintiff is the sister of the
defendants. The plaintiff claimed that a suit for partition
and separate possession was filed in O.S.No.7283/2009,
where it was declared that the plaintiff was entitled to
NC: 2024:KHC:9593
1/6th share in the suit properties. The said judgment and
decree was challenged by the defendant Nos.1 to 5 therein
in RFA No.552/2014 and the said appeal was dismissed for
non-prosecution vide order dated 10.08.2022. The plaintiff
contended that when she was severely distressed due to
the demise of her husband, the defendants managed to
obtain a release deed, whereby, she purportedly released
her right, title and interest in suit properties. She
contended that she was informed by her son about the
release deed executed and therefore, she was advised to
file a suit for declaration that the release deed referred
above was obtained fraudulently. Along with the plaint,
she filed an application for interim injunction to restrain
the defendants from alienating or encumbering the suit
properties.
3. The suit was contested by the defendants who
claimed that the plaintiff was an educated lady and that
she was present before the Sub-Registrar along with
another sister - Smt. Rohini and that they executed a
NC: 2024:KHC:9593
release deed. They contended that they had helped the
plaintiff in meeting the expenses of construction of a
house on a property that stood in the name of her
husband at Shivamogga and that sufficient gold jewellery
was given to her at the time of her marriage. They
therefore, contended that the release deed was executed
by the plaintiff with eyes wide open and that she was
aware of the consequences and hence, she cannot turn
around and claim that the release deed was obtained
fraudulently.
4. The Trial Court after considering the
contentions urged, rejected the application filed by the
plaintiff for interim injunction on the ground that there was
no cogent evidence to establish that the defendants had
obtained the release deed fraudulently. It also held that
the plaintiff had affixed her signature to the release deed
and that the plaintiff being an educated lady who had
appeared before the Sub-Registrar cannot turn around and
claim that the release deed was obtained without her
NC: 2024:KHC:9593
notice and knowledge and by playing fraud. It also held
that the revenue records and other documents stood in
the name of the defendants and that the defendants would
suffer if an injunction order is passed against them. Being
aggrieved by the said order this appeal is filed.
5. The learned counsel for the appellant/plaintiff
submitted that the plaintiff was declared as an undivided
owner in respect of 1/6th share in the suit schedule
properties and that when her husband was on the death
bed, defendants forced her to sign a document as a
witness, which later turned down to be a release deed.
She contended that the plaintiff had no intention to
execute the release deed that too without any
corresponding reward from the defendants. She contended
that whatever mentioned in the release deed regarding the
defendants meeting the expenses of construction of a
house on the property belonging to the husband of the
plaintiff are all concocted. She contended that since the
plaintiff did not execute the release deed voluntarily, the
NC: 2024:KHC:9593
Trial Court ought to have protected the suit properties
from being alienated or transferred so as to protect the
right of the plaintiff.
6. Per contra, the learned counsel for the
defendant submitted that the release deed was not only
executed by the plaintiff, but also by her another sister
and the other sister did not challenge the execution of the
release deed. She submits that in the circumstances, there
was no material to establish that the release deed was
obtained fraudulently. Even otherwise, she contends that
the averments of the plaint did not conform to the
requirement under Order VI Rule 4 of Civil Procedure Code
and therefore, no interim injunction can be granted to the
plaintiff.
7. The grant of an order of interim injunction is
only to maintain status-quo of the suit schedule
properties, pending disposal of the suit before the Court.
Since the plaintiff and the defendants have not disputed
their relationship and also since the defendants do not
NC: 2024:KHC:9593
deny that the plaintiff was entitled to 1/6th share in the
suit schedule properties, pursuant to judgment and decree
passed in O.S.No.7283/2009, the antecedent title of the
plaintiff is proved. The only question that needs to be
considered whether the plaintiff was forced to execute the
release deed in favour of the defendants and whether the
defendants played fraud while obtaining the release deed
from the plaintiff. This being a question of fact has to be
established after full fledged trial.
8. However, during the pendency of the suit, the
defendants cannot be allowed to alienate or transfer or
encumber the suit properties, which would result in
creating third party rights and multiplicity of proceedings.
9. In that view of the matter, this appeal is
allowed. The impugned order dated 03.01.2024 is set
aside and the application (I.A.No.6) filed by the plaintiff
for interim injunction restraining the defendant from
alienating the suit schedule properties is allowed and the
defendants are restrained from alienating, encumbering or
NC: 2024:KHC:9593
transferring the suit schedule properties in favour of any
person, whomsoever until disposal of the suit.
10. It is made clear that the plaintiff shall cooperate
with the Trial Court in early disposal of the suit and shall
not take any adjournment without a reasonable cause. In
case if the Trial Court comes to the conclusion that the
plaintiff is delaying or protracting the proceedings, Trial
Court may take such steps at it may consider expedient.
Sd/-
JUDGE
HJ
