Karnataka High Court

Smt A M Hema vs Sri H K Srinivas Reddy on 17 June, 2025

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                                                         MFA No. 2490 of 2025


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                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 17TH DAY OF JUNE, 2025

                                             BEFORE
                            THE HON'BLE MR JUSTICE C.M. POONACHA
                   MISCELLANEOUS FIRST APPEAL NO. 2490 OF 2025 (CPC)
                   BETWEEN:

                   1.    SMT A M HEMA
                         AGED ABOUT 29 YEARS,
                         DAUGHTER OF LATE K.MUNI REDDY
                         NO. 188, 5TH BLOCK, 4TH A CROSS,
                         KORAMANGALA LAYOUT,
                         BENGALURU 560 095.

                   2.    MS A M BRUNDHA
                         AGED ABOUT 25 YEARS,
                         DAUGHTER OF LATE K.MUNI REDDY
                         NO.147/3, 4 AND 5
                         4TH CROSS, 20TH MAIN
                         SECTOR -1 HSR LAYOUT
                         BENGALURU 560 102.
Digitally signed                                                 ...APPELLANTS
by NIRMALA
DEVI               (BY SRI. V B SHIVA KUMAR, ADVOCATE)
Location:
HIGH COURT         AND:
OF
KARNATAKA
                   1.    SRI H K SRINIVAS REDDY
                         AGED ABOUT 60 YEARS
                         SON OF LATE M KRISHNA REDDY
                         NO. 147/1 AND 2, 4TH CROSS
                         20TH MAIN, SECTOR-1
                         HSR LAYOUT
                         BENGALURU -560 102.

                   2.    SMT. RADHAMA,
                         AGED ABOUT 85 YEARS,
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                                                             NC: 2025:KHC:20815
                                                          MFA No. 2490 of 2025


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       WIFE OF LATE M.KRISHNA REDDY
       NO. 147/1 AND 2,
       4TH CROSS 20TH MAIN,
       SECTOR-1, HSR LAYOUT
       BENGALURU 560 102.
                                        ...RESPONDENTS
(BY SRI. M S VARADARAJAN, ADVOCATE FOR R1)

     THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 18.12.2024 PASSED IN
FDP.NO.170/2024 ON THE FILE OF THE XLIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH.NO.44),
REJECTING THE APPLICATION FILED UNDER ORDER 39 RULE 1
AND 2 READ WITH SECTION 151 OF CPC AND ETC.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:          HON'BLE MR JUSTICE C.M. POONACHA

                                   ORAL JUDGMENT

The above appeal is filed calling in question the order

dated 18.12.2024 dismissing the application filed by the

petitioners under Order XXXIX Rule 1 and 2 r/w Section 151 of

Code of Civil Procedure, 19081 in Final Decree Proceedings

No.170/20242 by the XLIII Additional City Civil & Sessions

Judge, Bengaluru3.

Hereinafter referred to as the 'CPC'

Hereinafter referred to as the 'FDP'

Hereinafter referred to as the 'Trial Court'

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2. For the sake of convenience, the parties will be referred

to by their rank before the Trial Court.

3. The relevant facts in a nutshell leading to the present

appeal are that the father of the appellants and the respondent

No.1 instituted a suit in O.S. No.7427/1995 seeking for

partition and separate possession. Vide judgment and decree

dated 31.10.2011, the said suit was partly decreed and the

plaintiffs were held entitled to 1/3rd share each in the suit

schedule item No.2 property. The said decree passed by the

Trial Court in O.S. No.7427/1995 was affirmed by this Court in

RFA No.275/2012. FDP No.170/2024 was filed by the

appellants to draw the final decree in respect of the suit

schedule item No.2 property. In the FDP, the

appellants/petitioners filed an application under Order XXXIX

Rule 1 and 2 r/w Section 151 of CPC to restrain the respondent

No.1 or any one claiming through or under him from changing

the nature/putting up construction of the suit item No.2

property. The respondent No.1 filed objections to the said

application. The Trial Court vide order dated 18.12.2024

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rejected the said application. Being aggrieved, the present

appeal is filed.

4. Sri V.B. Shivakumar, learned counsel appearing for the

appellants assailing the order passed by the Trial Court

contends that in the suit, the plaintiffs were held as being

entitled to 1/3rd share each in the suit item No.2 property and

to partition the same, the FDP has been filed. That pending

actual division of the property, the relief sought for vide

application to restrain the defendant No.1/respondent No.1

from putting up construction ought to have been granted, as, if

the respondent No.1 is permitted to put up construction, the

same would prejudice the case of the appellants in the FDP. It

is further contended that the reliance placed by respondent

No.1 on the Palupatti dated 06.05.1998 was disbelieved by the

Trial Court in the suit and hence, in the FDP the reliance placed

on the said Palupatti dated 06.05.1998 for the purpose of

rejecting application is erroneous. It is further contended that

the appellants are in possession of a portion of item No.2

property which is the schedule property in the FDP, in respect

of which the acquisition proceedings have been culminated and

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hence, the same cannot be taken into account for the purpose

of adjudication of application and the Trial Court erred in

rejecting the application. Hence, he seeks for allowing of the

appeal and granting of the reliefs as sought for.

5. Per contra, Sri M.S. Varadarajan, learned counsel

appearing for the respondent No.1 contends that the father of

the appellants was already in possession of his 1/3rd share in

the suit item No.2 property which is the subject matter of the

proceedings in the FDP and has already put up construction of a

residential house and the appellants are also earning a huge

amount by way of rent. It is further contended that the parties

having been in possession of their respective portions of the

property that is sought to be divided and the father of the

appellants already having constructed a residential house which

the appellants are in enjoyment of the same, it is not open to

the appellants to object for construction being carried out by

the respondent No.1 in the portion of the property which is his

enjoyment. It is further contended by virtue of a Palupatti

dated 06.05.1998, the father of the appellants and respondent

No.1 are in possession of their respective 1/3rd portions and

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the said Palupatti has been acted upon inasmuch as the

revenue records in respect of the portions of the property under

the respective occupation of the father of the appellants and

the respondent No.1 have been changed. It is also contended

that at the time when the father of the appellants put up

construction in the 1/3rd portion as agreed to be allotted to his

share, due to a dire economic situation, the respondent No.1

could not put up construction and hence, now he is putting up

construction in the 1/3rd portion of the property that has been

allotted to his share under the Palupatti dated 06.5.1998. It is

further contended that the Trial Court having adequately

appreciated the material on record has rightly rejected

application filed by the appellants which order ought not to be

interfered with by this Court in the present appeal. It is further

contended that the respondent No.1 has already put up a major

portion of construction of a residential house for himself and his

family members to reside and has been spent considerable

amount and hence the same ought not to be stopped at the

present stage. That the Trial Court has rightly noticed that

while adjudicating upon the FDP on its merits, the inter se

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rights between the parties could be taken into account while

passing the suitable orders.

6. Both the learned counsel have relied upon the various

documents which were placed on record before the Trial Court

as well as on various judgments, which shall be referred to the

extent that the same are required for adjudication of the

question that arise for consideration in the present appeal.

7. The submissions of both the learned counsels have been

considered and the material on record have been perused. The

question that arises for consideration is:

"Whether the order passed by the Trial Court rejecting the Application filed by the appellant/petitioner is erroneous and liable to be interfered with by this Court?"

8. The relevant factual matrix is undisputed inasmuch as

respondent No.1 and the father of the appellants had instituted

O.S. No.7427/1995 for partition. Vide judgment and decree

dated 31.10.2011 passed in the suit, it is held that the plaintiffs

are entitled 1/3rd share in the item No.2 of the suit property. It

is further undisputed that FDP has been initiated by the

appellants to draw up a final decree in terms of the decree

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passed in O.S. No.7427/1995 and the subject matter of FDP is

the suit item No.2 of property in respect of which it is been

held the plaintiffs are entitled to 1/3rd share each.

9. The appellants filed I.A. No.1 in the FDP to restrain the 1st

respondent or anybody through claiming him from changing the

nature/putting up further construction in the schedule property.

It is deposed in the affidavit accompanying the application that

respondent No.1 started putting up permanent construction in

the schedule property before partitioning of the said property

and hence, the appellants have lodged a police complaint with

regard to the same and filed the application for suitable reliefs.

It is deposed that if respondent No.1 continuous with the

construction in the undivided share, it will lead to unnecessary

litigation in future and the other sharers will be put to

irreparable loss and injury.

10. Respondent No.1 filed detailed objections to application

filed by the appellants in the FDP wherein, it is specifically

contended that by virtue of the Palupatti dated 06.5.1998, it

was agreed that site Nos.1 and 2 in the property in question

totally measuring 9786 sq.ft was allotted to the share of

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respondent No.1 and site Nos.3, 4 and 5 totally measuring

9503 sq.ft was allotted to the share of the father of the

appellants. That site Nos.6 and 7 were also allotted to the

share of M. Krishna Reddy and H.V.Radhamma respectively. It

is further contended that pursuant to the division made vide

the said Palupatti dated 06.05.1998, the father of the

appellants during his lifetime put up buildings over the site

No.4 about 20 years ago and site No.5 about 13 years ago and

that said portion is fully developed. That the father of the

appellants had also applied for khatha and paid the requisite

betterment charges with respect to the said site Nos.3, 4 and 5

and the revenue records in respect of the said properties have

been changed in favour of the father of the appellants. The

electricity bills pertaining to the buildings constructed by the

father of the appellants have also been produced. It is further

contended that respondent No.1 vide registered Gift Deed

dated 16.6.2024 gifted site No.1 in favour of his wife

Smt. H.S. Jyothi and pursuant to execution of the said Gift

Deed, khatha of the property was transferred to her name.

That after obtaining building plan and licence for construction of

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a residential house, construction is being put up for their family

use.

11. The Trial Court while considering the application, has

noticed that in the suit, the father of the appellants and

respondent No.1 have been held as being entitled to 1/3rd

share each in the schedule property. It is further held that in

the FDP, the Palupatti dated 06.05.1998 could be considered as

a family arrangement. Hence, it has been held by the Trial

Court that the appellants/plaintiffs have made out a prima-facie

case. However, while considering point Nos.2 and 3 with

regard to the balance of convenience and comparative

hardship, the Trial Court after appreciating the material on

record has noticed that the buildings have been constructed in

site Nos.3, 4 and 5 and the appellants/petitioners have not

denied the assertions by respondent No.1 in that regard. The

Trial Court has further noticed that the position of the parties

during the pendency of the suit can be considered at the time

of drawing up of final decree and hence, recorded a finding that

the balance of convenience does not lie in favour of the

petitioners.

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12. It is forthcoming that the division, by virtue of the

Palupatti dated 06.5.1998, is sought to be denied by the

appellants. However, it is apparent from the material on record

that site Nos.3, 4 and 5 of Sy.No.147 have been earmarked to

the share of the father of the appellants and buildings have

been constructed in the said portion of the property. That the

father of the appellants has also got the revenue records

changed in his name in respect of the said property which he

was enjoying possession of and after putting up construction,

electricity connection to the said property has been given.

13. Reliance is placed by the learned counsel for appellants

on the deposition recorded in the suit for the purpose of

demonstrating that no finding has been recorded in the said

suit that the property has been divided between the parties in

terms of the Palupatti dated 06.05.1998. However, it is

relevant to note from the material on record, as has been

rightly noticed by the Trial Court that the appellants are in

possession of portion of the property. That the revenue records

in respect of the said property has been changed as also

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construction in the said portion has been put up and electricity

connection has also been obtained with respect to the same.

14. The Hon'ble Supreme Court, in the case of M.L.

SUBBARAYA SETTY AND OTHERS V. M.L. NAGAPPA SETTY

AND OTHERS4, relied upon by the learned counsel for

respondent No.1 which has also been noticed by the Trial Court

has been held as follows:

"29. Another question to be determined is as to the date of valuation of the properties in a suit for partition. Ordinarily, it has to be the date of the passing of the final decree and not the date of filing of the suit for partition. In a given case, however, there may be exception of this general rule. It is a matter of common knowledge that such suits for partition take considerable time for disposal. There is a big time lag between date of filing of the suit and date of the decision thereof. There is also considerable lapse of time between passing of preliminary decree and passing of final decree. Take the present case, suit was filed in the year 1948, preliminary decree proceedings were finalized in 1971 by decision of this Court. Thereafter more than 30 years have lapsed, the parties are still no way near the final partition. It would be absurd if it was to be held that the valuation of 1940 or 1948 should be taken. It is also possible that in a given case, the value of one property may appreciate drastically while not so in the case of other properties or it may even decline and some of the parties may possession of those properties. It has been the endeavour of the Courts in such suits to protect, preserve and respect the possession of the parties as far as possible. While so protecting, there the has to be equalization of shares which has been recognized in law "by making a provision for payment of Owelty".

(emphasis supplied)

"AIR 2002 SCC 2066"

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15. In the case of T.S SWAMINATHA ODAYAR V/S

OFFICIAL RECEIVER OF WEST TANJORE5 the Hon'ble

Supreme Court considering the aspect of the division of the

properties where properties of larger value may go to one party

and properties of smaller value to another, has held as follows:

"14. It must be remembered that the decree was one for partition of the properties belonging to the joint family of which the defendant No. 3 and the appellant were coparceners. While effecting such a partition it would not be possible to divide the properties by metes and bounds there being of necessity an allocation of properties of unequal values amongst the members of the joint family. Properties of a larger value might go to one member and Properties of a smaller value to another and therefore there would have to be an adjustment of the values by prodding for the payment by the former to the latter by way of equalisation of their shares. This position has been recognized in law and a provision for such Payment is termed "a provision for owelty or equality of partition"

18. It therefore follows that when an owelty is awarded to a member on partition for equalization of the shares on an excessive allotment of immovable properties to another member of the joint family, such a provision of owelty ordinarily creates a lien or a charge on the land taken under the partition. A lien or a charge may be created in express terms by the provisions of the partition decree itself. There would thus be the creation of a legal charge in favour of the member to whom such owelty is awarded. If, however, no such charge is created in express terms, even so the lien may exist because it is implied by the very terms of the partition in the absence of an express provision in that behalf. The member to whom excessive allotment of property has been made on such partition cannot claim to acquire properties falling to his share irrespective of or

"AIR 1957 SCC 5777"

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discharged from the obligation to pay owelty to the other members. What he gets for his share is therefore the properties allotted to him subject to the obligation to pay such owelty and there is imported by necessary implication an obligation on his part to pay owelty out of the properties allotted to his share and a corresponding lien in favour of the members to whom such owelty is awarded on the properties which have fallen to his share.

19. Not only is this the normal position on a partition decree where there is an unequal distribution of properties among the members of the joint family but even where an encumbrance has been created on a member's share before the partition is effected, the encumbrance is postponed to the member to whom such owelty is awarded under the partition decree. A lien or a charge created in favour of a member in regard to such owelty obtains precedence over an encumbrance and there are authorities to show that such lien of charge has priority over an earlier mortgage."

(emphasis supplied)

16. Learned counsel for the appellants contends that the

properties in which the father of the appellants has put up

construction is the subject matter of the acquisition

proceedings and possession of the appellants over the said

properties is contingent upon the said acquisition proceedings.

However, it is relevant to note that there is no averment made

in the application filed by the appellants before the Trial Court

as well as the present memorandum of appeal with regard to

the possession of the appellants being subject matter of

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