Karnataka High Court
Sri.Yathievendra Naik vs Sri.T.M.Yathindra on 24 July, 2025
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MFA No. 3329 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2025
BEFORE R
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 3329 OF 2025 (CPC)
BETWEEN:
SRI. YATHIEVENDRA NAIK
@ YATHISH
S/O LATE SRI. M.N. NARASIMHAMURTHY NAIK
@ M.N. MURTHY NAIK
AGED ABOUT 47 YEARS
R/AT SUPARTHA APARTMENT
NO.146/8, 5TH CROSS ROAD
RAJMAHAL EXTENSION
ARAMANENAGARA
BANGALORE-560 080
...APPELLANT
(BY SRI. MADHUKUMAR M.D, ADVOCATE)
AND:
Digitally signed 1. SRI. T.M. YATHINDRA
by ANJALI M
Location: High S/O M.N. NARASIMHAMURTHY NAIK
Court of @ M.N. MURTHY NAIK
Karnataka
AGED ABOUT 20 YEARS
R/AT NO.269/A, 8TH MAIN
KANVA SREE SAI HOSPITAL
RAJEEV GANDHI NAGAR
BANGALORE- 560 096
2. SMT. B. MANJULA
W/O. M.N. NARASIMHAMURTHY NAIK
@ M.N. MURTHY NAIK
AGED ABOUT 45 YEARS
R/AT NO.269/A, 8TH MAIN
KANVA SREE SAI HOSPITAL
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MFA No. 3329 of 2025
HC-KAR
RAJEEV GANDHI NAGAR
BANGALORE- 560 096
3. MASTER T.M. LOHITH
S/O M.N. NARASIMHAMURTHY NAIK
@ M.N. MURTHY NAIK
AGED ABOUT 12 YEARS
R/AT NO.269/A, 8TH MAIN
KANVA SREE SAI HOSPITAL
RAJEEV GANDHI NAGAR
BANGALORE- 560 096
REPRESENTED BY THE NATURAL
MOTHER NAMELY
SMT. B. MANJULA
4. SRI. CHANDRASHEKAR NAIK
S/O M.N. NARASIMHAMURTHY NAIK
@ M.N. MURTHY NAIK
AGED ABOUT 45 YEARS
R/AT NO.285/13, 5TH MAIN
OPP.TIBETIAN HOSPITAL
MAHALAKSHMI LAYOUT
BANGALORE- 560 079
5. SMT. ASHA RANI
D/O M.N. NARASIMHAMURTHY NAIK
@ M.N. MURTHY NAIK
AGED ABOUT 43 YEARS
R/AT NO.4, K.H.B. COLONY
80 FEET ROAD, 2ND STAGE
BASAVESHWARANAGAR
BANGALORE-560 070
...RESPONDENTS
(BY SRI. B. LINGARAJU, ADVOCATE FOR R1;
VIDE ORDER DTD.09.06.2025 NOTICE TO
R2 TO R5 IS DISPENSED WITH)
THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 21.4.2025 PASSED ON I.A.NO.1 IN OS.NO.
1315/2025 ON THE FILE OF THE I ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH NO.2), ALLOWING THE
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MFA No. 3329 of 2025
HC-KAR
I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS MFA HAVING BEEN RESERVED FOR JUDGMENT,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
This Misc.First Appeal is filed under Order 43 Rule
1(r) of the CPC, 1908 challenging the order dated
21.4.2025 passed by the I Addl.City Civil & Sessions
Judge, Bengaluru in OS No.1315/2025 whereby, the
learned trial Court allowed I.A.No.1 filed by the plaintiff
under Order 39 Rule 1 and 2 of CPC and granted an order
of temporary injunction `restraining defendants nos. 3 to
5 from alienating or creating any charge over the suit
schedule properties pending disposal of the suit'.
2. The appellants being defendant nos. 3 to 5 in
the original suit stated supra, now have questioned the
correctness, legality and sustainability of the impugned
order contending that, the injunction was granted without
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the plaintiff establishing a prima facie right over the suit
schedule properties thereby, resulting in miscarriage of
justice.
3. The factual background as submitted by the
learned counsel for the appellant reveals that, the plaintiff
filed the suit seeking relief of declaration that, the
registered partition dated 24.8.2017 is not binding on him
and he has claimed 1/5th share in the suit schedule
property. The plaintiff asserts that, he is the son of late
L.N.Narasimha Murthy Naika and defendant no.1, who
according to him, was a second wife of the deceased. It is
his case that, the deceased had acquired several
immovable and movable properties during has lifetime
including business establishment which are jointly referred
to A and B Schedule properties. The plaintiff alleged that,
the registered partition deed was executed behind his back
and without the knowledge or consent of himself or
mother, brother defendant no.2 and the said partition suit
is not binding on him. The application for temporary
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injunction was filed on the allegation that, defendant nos.3
to 5 are making attempts to alienate the suit properties,
which would defeat the claimant's claim in the event he
were to succeed in the suit.
4. The defendants, who are appellants herein,
opposed the application and contended that, the plaintiff is
not a legitimate son of the deceased having been born
during the subsistence of the deceased's first marriage
with one Smt. M L Jaya. They further contended that, the
partition deed dated 24.8.2017 was lawfully and validly
executed amongst the deceased, his first wife and their
children who are the appellants in this appeal and that the
plaintiff and his mother had no role or claim in the
properties which were partitioned and dealt with. It was
their specific contention that, property allotted to the
deceased under the partition deed was already alienated
by him during his lifetime on 10.2.2021 and that the
remaining properties are exclusively held by the appellants
as per the registered partition and no claim be entertained
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in respect of those properties. They contended that, the
trial Court failed to examine these legal issues and
plaintiffs' lack of standing before granting the temporary
injunction.
5. Having considered the records, pleadings and
the arguments advanced, this court finds that, the core
question for determination is: whether the plaintiff had
made out a sufficient prima facie case and equitable
ground to justify the grant of injunction against the
appellants.
6. A temporary injunction is not granted as a
matter of right but, rather a discretionary equitable relief
to preserve the subject matter of suit when there is
arguable case on merits and when non-intervention would
lead irreparable harm or multiplicity of proceedings.
7. The learned counsel for the appellant
Sri Madhukar Deshpande provided the synopsis for the
convenience of the Court by showing the calendar of
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events. It is not in dispute that, marriage of late
M.Narasimhamurthy Naik and late Smt.M.L.Jaya was
solemnized on 24.05.1974. These defendant nos.3 to 5
were born in the wedlock in between them on 09.04.1977,
27.06.1978 and 05.09.1980 respectively. The so called
second marriage during the subsistence of the first
marriage M.N.Narasimhamurthy Naik took place on
26.3.2000 with defendant no.1 Smt. Manjula. The present
plaintiff was born on 07.05.2004 from the alleged
marriage between late Sri M.L.Narasimha Murthy Naik and
defendant No.1 Smt. Manjula.
8. The registered partition deed was effected in
between M.N.Narasimha Murthy Naik, his wife M.L.Jaya
and their children defendant nos.3 to 5 on 24.8.2017.
9. As per the said partition deed, the deceased
M.N.Narasimhamurthy Naik was allotted item No.3 of
schedule A property which fell to his share and he sold the
said property under a registered sale deed on 10.02.2021.
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M.L.Jaya the first wife of deceased died on 7.5.2021 and
M.N.Narasimhamurthy Naik died on 24.03.2024. Now,
plaintiff has filed the present suit in the year 2025 seeking
the partition and separate possession of his alleged 1/5th
share in the suit schedule property and claim that the so
called partition deed dated 24.08.2017 is not binding upon
his share. On that guise, he filed the suit and sought the
interim injunction granted by the court which is impugned
in this appeal. These facts stated supra are not disputed
by the plaintiff-respondent.
10. The learned counsel for the appellant submits
that, the present respondent-plaintiff being the son born
to the second wife, by virtue of Section 16 of Hindu
Marriage Act, he has to claim his alleged share in the
property of his father and not from the joint family
property. In support of his submission, he relied upon a
landmark judgment of the Hon'ble Apex Court in
Revanasiddappa and another v. Mallikarjun and
others, reported in (2023) 10 SCC 1. He relied upon
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paragraph nos. 77, 79, 80, 81 and 9 and 10. So also, he
relief upon the judgment of co-ordinate bench of this Court
in Kenchegowda v. K.B. Krishnappa, reported in ILR
2008 Kar 3453.
11. On perusal of these judgments, when the
relationship is not denied and plaintiff is born to the
second wife, the principles so laid down in the aforesaid
judgments squarely can be applied to the present case. In
para.77.9 and para.79 in Revanasiddappa supra, the
Hon'ble Apex Court observed as under:
"77.9. In the case of joint family property such
children would be entitled to a share only in the
property of their parents but cannot claim it in their
own right. On the partition of ancestral property,
the property falling to the share of the parents of
such children is regarded as their self-acquired and
absolute property, and there is no reason why such
children will have no share in such property since
such children are equated under the amended law
with legitimate offspring of a valid marriage.
However, the only limitation is that during the
lifetime of their parents such children cannot ask
for partition but they can exercise this right only
after the death of the parent;
79. From the above observations it appears that
the Court
in Revanasiddappa [Revanasiddappa v. Mallikarjun,
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(2011) 11 SCC 1 : (2011) 3 SCC (Civ) 581] , has
recognised that while conferring legitimacy in terms
of sub-section (1) or sub-section (2) of Section 16
to children born from void or voidable marriages,
Parliament has circumscribed the entitlement to the
property of such children by observing that nothing
contained in those provisions shall be construed as
conferring a right in or to the property of any
person other than the parents. Having noticed this,
the Court has also observed that in the case of joint
family property such children will be entitled only to
a share in their parent's property but cannot claim
it of their own right as a consequence of which they
cannot seek partition during the lifetime of their
parents. However, the Court has also observed that
once such children are declared as legitimate, they
will be on a par with other legitimate children. The
observation in para 29 of the referring judgment
in Revanasiddappa [Revanasiddappa v. Mallikarjun,
(2011) 11 SCC 1 : (2011) 3 SCC (Civ) 581] , that a
child who is conferred with legitimacy under sub-
section (1) and sub-section (2) of Section 16 will be
on a par with other legitimate children is in the
context of recognising the entitlements of such a
child in the property of their parents and not qua
the property of a third person."
12. Thus, the amended Section 16 alters the
common law position that, a child of a marriage which void
or voidable is illegitimate if so jure but, that benefit is
available when there is a marriage and when it is void or
voidable in view of the provisions of Hindu Marriage Act,
1955. In conclusion, the Hon'ble Apex Court in the said
judgment, categorically observed that, "in terms of Sub-
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section (1) of 16, a child of a marriage which is null and
void under Section 11 is statutorily conferred with
legitimacy irrespective of whether i) Such a child is born
before or after commencement of amending Act: ii) A
decree of nullity is granted in respect of that marriage
under the Act and the marriage is held to be void other
wise that on a petition under the enactment. Thus, in
terms of Section 16(2) of Hindu Marriage Act, the rigor
that such a son is entitled for a share in his father's
property. To this effect, Apex Court in para. 81.10, held as
under:
"81.10. The provisions of the HSA, 1956 have
to be harmonised with the mandate in Section
16(3) of the HMA, 1955 which indicates that a child
who is conferred with legitimacy under sub-sections
(1) and (2) will not be entitled to rights in or to the
property of any person other than the parents. The
property of the parent, where the parent had an
interest in the property of a joint Hindu family
governed under the Mitakshara law has to be
ascertained in terms of the Explanation to sub-
section (3), as interpreted above."
13. So also, in the second judgment stated supra,
the co-ordinate bench of this Court have succinctly
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discussed with regard to the devolution of interest in the
coparcenery property and also such a son who is not
succeeding to the share under the provisions of Hindu
Succession Act (Sec.8), such a son cannot file a suit for
partition against the parents during their lifetime, in
respect of separate self-acquired property of parents. The
illegitimate son is not a coparcener and has no right in the
coparcenery property. However, he has right in the share
of his father in coparcenery property. That right he can
exercise only on his father dying intestate.
14. As in this case, the appellant is born to second
wife i.e. defendant no.1. But, in the present case, the trial
Court proceeded primarily on the basis, the plaintiff had
produced some documents in support of his claim of his
relationship with the deceased. They include adhaar,
pancard, photographs showing ceremonial functions and
registered gift deed, wherein the deceased described as
defendant no.1 as his wife. This relationship so stated by
plaintiff is not denied by the defendants. The learned trial
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Court overlooked the critical legal requirement that, a
person claiming inheritance or co-ownership in specific
properties must demonstrate atleast prima facie, a legally
recognizable interest or title over the properties sought to
be protected by injunction.
15. Partition deed 24.08.2017 was document by
deceased along with his first wife and his children under
which the specific properties were divided and allotted to
each party. It is not disputed that, the deceased had been
allotted a specific property under the said partition which
he sold in his life time under the registered sale deed
stated supra. the plaintiff has not sought to challenge
alienation or laid any legal claim over the properties that
were expressly allotted to defendant nos. 3 to 5 under the
registered partition deed. There is no documentary
evidence or cogent pleadings suggesting that, the said
properties were ancestral or they formed part of Hindu
joint family nucleolus to which the plaintiff had any
inherent right by birth. On the contrary, the defendants
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have consistently maintained that, the said properties are
their self-acquired properties or were allotted under the
said partition, and there is nothing on record to prima
facie dislodge that claim of the defendants.
16. While the plaintiff's status as a biological son
may entitle him to claim a share in the estate of his father,
the foundational facts regarding the nature of the estate
left behind, and whether any of the properties presently
held by the appellants form part of father's estate etc., are
to be adjudicated in the course of the trial. Prima facie as
the properties were the subject matter of partition, which
is not seriously disputed by the plaintiff, the trial Court
misdirected itself by presuming that, the suit schedule
property require protection merely because they are
claimed in the plaint without first determining whether the
plaintiff had shown prima facie entitlement to the
properties in question. Grant of injunction on such basis is
unwarranted and results in undue hardship to the
appellants who are thereby restraining from exercising
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their lawful right over the properties validly acquired and
possessed by them.
17. This Court is therefore, is of the considered
opinion that, the plaintiff has not made out any legal right
or prima facie claim over the properties held by the
appellants that would warrant restraint orders. The trial
Court's order is based mere on conjecture than on
substantiated legal or factual grounds. The observation
that, the properties need to be preserved till adjudication
of the suit, although well intentioned, cannot override the
requirement of proving prima facie entitlement. Equity
follows law and when a plaintiff fails to establish a basic
legal standing, equitable relief in the form of injunction
cannot be granted merely to prevent hypothetical injury.
18. For these reasons stated supra, this Court finds
that, the trial Court committed a clear error in allowing the
interim application and in granting injunctive relief against
defendant nos.3 to 5. Impugned order deserves to be set
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aside. However, it is made clear that, the present order is
confined solely to the legality and propriety of the interim
relief granted and shall not be construed as a final
pronouncement on the merits of the suit. The trial Court
shall proceed to adjudicate the matter uninfluenced by any
of the observation made in the judgment and base strictly
on the evidence that may be adduced by the parties
during the course of trial.
19. Resultantly, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The order on IA No.I dated 21.4.2025
passed by the I Addl.City Civil and
Sessions Judge, Bengaluru in OS
No.1315/2025 is hereby set aside.
(iii) Consequentially IA No.I filed under order
39 rule 1 and 2 stands dismissed.
(iv) It is made explicitly clear that, the
observations made in the judgment are
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confined only to the adjudication of the
interim application and shall not influence
or bind the trial Court in deciding the suit
on merits. All issues including the status
of the plaintiff, the nature of the property,
and validity of partition deed shall remain
open to be decided independently in
accordance with law.
Under the peculiar circumstances, costs made
easy.
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK
