Karnataka High Court
Smt A.S. Bharathi vs Sri S Gopinath on 25 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 1606 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 1606 OF 2022 (CPC)
BETWEEN:
1. SMT. A.S. BHARATHI
AGED ABOUT 52 YEARS,
D/O LATE SRI A.M.SURAYANARAYAN GOWDA
R/AT NO.12, FLAT NO.K3,
"KANNADATHI APARTMENT"
19TH CROSS, MALLESHWARAM
BENGALURU-560 003.
2. SMT.A.S. CHANDRIKA
AGED ABOUT 50 YEARS,
D/O LATE SRI A.M.SURYANARAYANA GOWDA
R/AT FLAT NO.308, 4TH B CROSS,
3RD BLOCK, HRBR LAYOUT,
KALYAN NAGAR,
Digitally signed BANGALORE-560033.
by DEVIKA M
Location: HIGH 3. SMT.A.S.KAVITHA
COURT OF AGED ABOUT 48 YEARS,
KARNATAKA D/O LATE SRI A.M.SURYANARAYANA GOWDA
R/AT NO.184/82,
DR. RAJKUMAR ROAD,
2ND BLOCK, RAJAJINAGAR,
BANGALORE-560 010.
...APPELLANTS
(BY SRI. AJAY SHANKAR RAO, ADVOCATE)
AND:
1. SRI S. GOPINATH
AGED ABOUT 54 YEARS,
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MFA No. 1606 of 2022
S/O LATE SRI A.M.SURYANARAYANA GOWDA
R/AT FLAT NO.102, OLEM APARTMENT,
NO.19, LLOYD ROAD, COOKES TOWN
BANGALORE-560 005.
...RESPONDENT
(BY SRI. VIJAY NARAYAN, ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 31.07.2020 PASSED ON I.A. NO.
1 IN O.S.NO.1657/2018 ON THE FILE OF THE XX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY
(CCH-32), ALLOWING I.A. NO.1 FILED UNDER ORDER 39
RULE 1 AND 2 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellants and learned
counsel for the respondent.
2. This miscellaneous first appeal is filed challenging
the order passed by the Trial Court in allowing I.A.No.1 filed
under Order XXXIX Rule 1 and 2 of CPC, wherein the plaintiff
has sought for the relief against the defendants or anybody
acting on their behalf and restrain the defendants not to
alienate the suit schedule properties, till disposal of the suit.
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3. The plaintiff/respondent while seeking the relief of
temporary injunction contend that plaintiff and defendants are
brother and sisters and deceased father acquired the schedule
properties in the name of mother and the schedule properties
are joint family properties of himself and defendants. The
marriages of all the defendants were performed with the help of
joint family funds and he performed all their following
ceremonies and also borne medical expenses of his mother,
since 2003 and after death of his father, he is managing all the
family affairs. It is also contended in the plaint, his mother,
after death of his father went to depression for long time and
became unhealthy and defendants taking undue advantage of
her health condition, induced her to execute GPA in favour of a
builder by name M/s. Manyata Infrastructure Private Limited in
respect of schedule 'A' and 'A1' properties and they further
induced her to execute the gift deed in respect of schedule 'C'
property, thereafter defendants constructed residential and
commercial buildings on the said properties and they sold out
some flats and further leased some premises of the said
property. The said transactions deprived him from his rights of
inheritance in the said property and the defendants got
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succeeded in transferring the khatha of schedule 'C' property in
their names and attempt is made to alienate the suit schedule
properties. If the defendants succeed in alienating the suit
schedule properties, then he will lose his inheritance rights.
Therefore, it is just and necessary to grant an interim order.
4. The defendant No.1 appeared and filed the written
statement and other defendants adopted the said written
statement as their written statement. The defendants also filed
memo stating that contents of their written statement may be
treated as objections to the application. The defendants
resisted the application, but the very contention that suit
schedule properties are joint family properties is false and also
false allegation is made that father had purchased the
properties in the name of their mother. It is contended that
mother inherited properties from their grand-father and also
contended that their marriages were performed with the help of
the joint family funds. It is further contended that the
allegation made that they managed their mother in execution
of GPA in favour of builder and also induced their mother in
execution of the gift deeds in their favour are all false and they
constructed the building on schedule 'C' property six years back
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and plaintiff had no rights in the said property. It is also
contended that schedule properties are absolute properties of
their mother and she being the absolute owner, executed gift
deed bequeathing schedule 'C' property in their favour and
plaintiff has nothing to do with the said property and prayed
the Court to dismiss the application.
5. The Trial Court having considered the grounds
urged in the objection statement, formulated the points
whether the plaintiff has made out a case to allow the
application. The Trial Court having considered the material on
record, particularly the grounds urged in the plaint as well as
the written statement and taking note of the contention that
there is a gift deed and that the properties are absolute
properties of mother and also taking note of the allegations
made in the plaint that the defendants managed and induced
their mother in executing GPA, the Trial Court comes to the
conclusion whether the mother was the absolute owner or not
is a matter of trial and the Court has to look into as to under
what circumstances same came into existence and the same is
also a matter of trial. Hence, the Trial Court passed an order of
temporary injunction not to alienate the suit schedule
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properties, till disposal of the suit. Being aggrieved by the said
order, the present miscellaneous first appeal is filed
6. The very contention of the learned counsel for the
appellants is that the learned Trial Judge failed to notice that
item No.1 and 1A of the suit schedule properties were the
individual properties of Smt. Munirathnamma and the same
having been inherited by her under a registered Will dated
29.11.1978 and as such, it is well within her rights to convey
the said properties and the mother becomes the absolute
owner of the property under Section 14 of the Succession Act.
It is also contended that learned Trial Judge failed to notice
that item No.'C' of he suit schedule properties had fallen to her
share at the partition between herself and her siblings under
registered partition deed dated 08.10.1987 and as such, the
said property constituted her exclusive property and it cannot
be termed as joint family property. The Trial Court failed to
take note of nature of the properties and properties are derived
by their mother and erroneously comes to the conclusion that
matter requires trial with regard to execution of gift deed.
Hence, the documents which have been produced have not
been considered. Learned counsel also would vehemently
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contend that even though no documents before the Trial Court,
the Trial Court committed an error in coming to the conclusion
that there is a prima facie case in favour of the plaintiff and the
very approach of the Trial Court is erroneous. Hence, it
requires interference.
7. Per contra, learned counsel for the respondent
would contend that specific pleading is made in the plaint,
particularly in Paragraph No.9 that father was also a successful
businessman and regularly purchased properties out of his
savings. The properties mentioned in the schedule were
purchased by him through his income in the name of his wife
late Smt. V. Munirathnamma. The plaintiff submits that from
the day of his father's death, the plaintiff has been taking care
of his mother. The plaintiff further submits that, as averred
above, by this time, his sisters i.e., defendant Nos.1 to 3 were
married and were residing separately at their matrimonial
homes and plaintiff has been taking care of the mother and was
also managing the join family properties, since 1983. Learned
counsel also would vehemently contend that in Paragraph
No.15 also pleaded that the mother of the plaintiff was
forcefully taken by the defendants to their house and was not
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given proper treatment. The defendants have from the date of
forcible confinement of late Smt. V. Munirathnamma in their
hands have induced her to execute several documents. The
documents are not in the possession of the plaintiff and the
plaintiff reserves his rights to call for the said documents from
the defendants. The plaintiff further submits that when his
mother was sick and was mentally unstable, she was induced
by the defendants to execute the documents pertaining to the
suit schedule properties which are joint family properties. The
Trial Court taking note of the averments made in the plaint,
wherein it is specifically pleaded with regard to the
circumstances under which the documents came into existence,
rightly passed an order and matter requires trial. Hence, not
committed any error in passing such an order.
8. Having heard the learned counsel for the appellants
and learned counsel for the respondent, the Court has to take
note of relief sought in I.A.No.1, wherein prayer is sought to
restrain the defendants from alienating the suit schedule
properties, till disposal of the suit. The main contention of the
learned counsel appearing for the appellants i.e., the
defendants is that the very order impugned is erroneous and
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the Trial Court failed to take note of the fact that the properties
belongs to their mother. No doubt, having considered the
pleadings of the plaintiff and the defendants, it is clear that
properties were standing in the name of the mother and it is
the very pleading of the plaintiff in Paragraph No.9 that
properties were purchased in the name of the mother. Learned
counsel appearing for the appellants would vehemently contend
that Will was executed in favour of the mother long back in the
year 1978 and the mother got the properties through a
partition along with her brothers. When such being the case,
properties exclusively belongs to the mother and she becomes
the absolute owner under Section 14 of the Succession Act.
9. The very contention of the appellants is denied by
the learned counsel for the respondent and contend that in
Paragraph No.9 of the plaint, it is specifically pleaded with
regard to purchase of the properties by the father out of his
business savings and also contend that the mother was not
having any independent income to purchase the properties. The
counsel would vehemently contend that specific averment is
made in the plaint in Paragraph No.15 of the plaint that taking
advantage of the sickness of his mother, got the documents in
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their favour. No doubt, learned counsel appearing for the
appellants would contend that relief is sought only for partition
and not sought for any declaration with regard to execution of
the gift deed, the question of granting the interim relief does
not arise.
10. Having considered the material on record, there is a
specific pleading in Paragraph Nos.9 and 15 of the plaint with
regard to purchase of the properties by the father as well as
obtaining the documents by the defendants taking advantage of
her sickness and induced her to execute the documents. There
is no dispute with regard to the fact that properties stand in the
name of the mother and none of the properties stand in the
name of the father. But, the fact that the plaintiff and the
defendants are brother and sisters is not in dispute and there is
no dispute with regard to the relationship between the parties.
When the claim is made with regard to the properties
purchased in the name of the mother and also learned counsel
appearing for the appellants not disputes the fact that the
mother was not having any avocation and independent income.
But, the main contention is that some of the properties are
derived through their father and also in a partition and the
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dispute is with regard to the execution of gift deed in favour of
the defendants and specific pleading is also made in the plaint
that taking advantage and sickness of the mother, got the
document of gift deed. Whether the document of gift deed is
valid or whether the properties exclusively belongs to mother
requires trial before the Trial Court. The Trial Court also while
granting the relief of temporary injunction ordered not to
alienate the suit schedule properties safeguarding the interest
of the plaintiff, since the plaintiff has specifically pleaded with
regard to how the document of gift deed came into existence
and also specific pleading is made that properties were
purchased in the name of the mother and suit is filed for the
relief of partition. Hence, the Trial Court has not committed any
error in granting the relief not to alienate the suit schedule
properties, till disposal of the suit and such an order is passed
only to protect the interest of the parties, those who are before
the Court seeking the relief and whether it is the properties of
mother is a matter of trial. Therefore, the Trial Court has not
committed any error in passing an order of temporary
injunction not to alienate the suit schedule properties, till the
disposal of the suit and it does not require any interference.
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11. In view of the discussion made above, I pass the
following:
ORDER
(i) The appeal is dismissed.
(ii) The Trial Court is directed to dispose of the suit
within a time bound period of one year and both the
learned counsel for the appellants and learned
counsel appearing for the respondent to assist the
Trial Court in disposal of the case within a time
bound period.
Sd/-
(H.P.SANDESH)
JUDGE
ST
