Karnataka High Court
Prema vs Kusappa on 8 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:45439
MFA No. 5305 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.5305 OF 2024 (CPC)
BETWEEN:
1. PREMA
W/O PUTTASWAMY,
AGED ABOUT 66 YEARS,
R/O NO.732, ARKESHWARA NAGAR,
GUTTALU MANDYA-571403
2. GAYOTHRI
W/O M.D. TAMANNA,
AGED ABOUT 64 YEARS,
R/O MADAGAHALLI VILLAGE,
BANNURU HOBLI,
Digitally signed T. NARASIPURA TALUK,
by DEVIKA M MYSURU DISTRICT-571101
Location: HIGH
COURT OF
KARNATAKA 3. SUDHAMANI
W/O NANADARAJ,
AGED ABOUT 60 YEARS,
R/O NO.456, THERINA STREET,
GUTTALU, MANDYA-571403
4. BHARATHI
W/O DASEGOWDA,
AGED ABOUT 40 YEARS,
R/O EDIGOWDRU BEEDI, ALURU VILLAGE,
CHAMARAJANAGARA TALUK-571312
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MFA No. 5305 of 2024
5. REKHA
W/O RAMAKRISHNA,
AGED ABOUT 46 YEARS,
MEGALAHUNDI VILLAGE,
BENDRAVADI POST,
CHAMARAJANAGARA TALUK-571312
...APPELLANTS
(BY SRI SYED AKBAR PASHA, ADVOCATE)
AND:
1. KUSAPPA
S/O LATE MADAPPA,
AGED ABOUT 50 YEARS,
R/O B MALLAIANAPURA VILLAGE,
CHANDAKAVADI,
CHAMARAJANAGAR TALUK-571312
2. PUTTASWAMEGOWDA
S/O KULLEGOWDA,
AGED ABOUT 83 YEARS,
3. SHANKAREGOWDA
S/O PUTTASWAMEGOWDA,
AGED ABOUT 52 YEARS,
RESPONDENT No.2 AND 3 ARE
R/AT MEGHALAHUNDI VILLAGE,
BENDARAVADI,
CHAMARAJANAGAR TALUK-571312
...RESPONDENTS
(BY SRI GIREESHA KODGI, ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF
CPC, AGAINST THE ORDER DATED 18.11.2023 PASSED
ON I.A. NO. 1 IN O.S.NO. 163/2023 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND C.J.M., CHAMARAJANAGAR AND
ETC.
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MFA No. 5305 of 2024
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
This appeal is filed challenging the order dated
18.11.2023 passed on I.A.No.1 in O.S.No.163/2023 by the
Senior Civil Judge and CJM, Chamarajanagar.
2. Heard the learned counsel appearing for the
respective parties on I.A.No.2/2024.
3. The factual matrix of the case of the plaintiffs
before the Trial Court is that the suit schedule properties
are the ancestral properties and defendant Nos.2 and 3
have sold the property in favour of defendant No.1 on
04.03.2004 and they contended that if the property is
further alienated, it will leads to multiplicity of
proceedings. It is contended that inspite of repeated
request made to defendant Nos.2 and 3 for partition and
separate possession of their share, they protracted the
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same and not heeded to the request made by the
plaintiffs. Now the plaintiffs came to know that in the
month of April 2023, defendant Nos.2 and 3, concealing
their rights, have sold the property to defendant No.1 and
defendant No.1 trying to sell the suit schedule properties
to third person. Hence, prayed to restrain respondent
Nos.1 to 3 from alienating and creating charge in any
mode over the suit schedule properties till the disposal of
the appeal.
4. Defendant No.1 appeared and filed statement of
objection resisting the application contending that
properties of suit schedule item Nos.1 and 2 were
purchased by defendant No.1 by a registered sale deed
dated 04.03.2004, since then, he is in possession of the
property and he developed and converted the same as
non-agricultural land by making irrigation systems.
Defendant Nos.2 and 3 having jealous against defendant
No.1 and with an intention to trouble defendant No.1,
joined hands with the plaintiffs and filed the suit seeking
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the relief of partition and separate possession. It is also
contended by defendant No.1 that he is a disabled person
and the family of defendant No.1 is depending on the
income from item Nos.1 and 2 of the suit schedule
properties and defendant No.1 has taken sufficient loan to
develop the said properties. Hence, submits that there
cannot be any order of temporary injunction. It is also
contended that the plaintiffs is immune under Section 6 of
the Indian Succession Act since there is an amendment,
but amendment came into effect only in the year 2005 and
also contended that the suit is also barred by limitation.
5. The Trial Court having considered the grounds
urged in the suit and also considering both oral and
documentary evidence placed on record, made an
observation in paragraph 10 that RTCs clearly go to show
that even there are several other properties in the name of
Puttaswamygowda, the same are not included by the
plaintiffs. As per Hindu amended Succession Act, 2005 as
on 09.09.2005, if the property is not available for
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partition, that will not be taken into consideration. The
plaintiffs intentionally not included other properties for
partition. The plaintiffs suppressing the material facts,
filed the suit only to cause wrongful gain to this defendant.
Now, with an intention to grab the properties which is
developed by defendant No.1, filed the suit excluding
some of the properties. Hence, the plaintiffs have not
made out prima facie case and rejected the application.
6. The learned counsel appearing for the
appellants would vehemently contend that the very
approach of the Trial Court is erroneous and ought not to
have comes to such a conclusion and even if any
properties are not included, plaintiffs can add the other
properties belongs to the family. The counsel submits that
an application is also filed before the Trial Court in this
regard and the same is pending for consideration. It is
contends that by virtue of the State Amendment of the
year 1994, the daughter has given equal right as of son,
thus, the plaintiffs are also entitle for equal share.
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Defendant Nos.2 and 3 have no exclusive right to sell suit
schedule item Nos.2 and 3. Therefore, the impugned order
is bad in law.
7. Per contra, learned counsel appearing for the
respondents would vehemently contend that the Trial
Court rightly observed that plaintiffs have not included all
family properties and dismissed the application. The
counsel would vehemently contend that the suit is barred
by limitation since the property was sold in the year 2004
and the suit is filed in the year 2023. The appellants have
the knowledge of the sale made by defendant Nos.2 and 3.
Hence, the Trial Court rightly rejected the application and
it does not require any interference.
8. Heard the learned counsel appearing for the
respective parties and perused of the material available on
record. Taking into note of the fact that if all the properties
are not included, suit cannot be adjudicated. Apart from
that the counsel for the respondents submit that the suit is
barred by limitation. The said fact is a mixed question of
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law and fact and whether the plaintiffs have the knowledge
of the sale made by defendant Nos.2 and 3 in favour of
defendant No.1 or not is also a matter of trial. The
counsel for the appellants brought to notice of this Court
that the amendment brought by the Karnataka State gives
a right to the daughters also and the same is also subject
to the restrictions whether amendment of 1994 comes to
the aid of the appellants or Section 6 which was amended
in the year 2005 is applicable to the case of the appellants
is a matter of consideration at the time of trial. The
counsel for the appellants submits that the properties are
the ancestral properties and whether it is an ancestral
property or an individual property of defendant Nos.2 and
3 also to be considered by the Trial Court at the time of
trial. Having considered prima facie fact that the plaintiffs
are the daughters of the family and whether all of them
are entitled under the benefit of 1994 amendment made
by the Karnataka State also to be considered during the
course of the trial. When such material available on
record, Trial Court ought not to have rejected the
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application only on the ground that all properties of the
family are not included and the same can be included at
any time and nothing has been discussed in the order with
regard to the right of the plaintiffs is concerned. Hence,
the Trial Court committed an error in dismissing the
application and it requires interference of this Court.
Accordingly, I.A.No.2/2024 is allowed and respondent
Nos.1 to 3 are restrained from alienating and creating
charge over the suit schedule properties till disposal of the
suit. With this observation, the appeal is disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
SN
