Dismissed

S. Shreyas v. Smt. D.S. Brindamma

Karnataka HC22 Oct 2021MFA/2210/2016

Case brief

AI extract

What is this about?

In a Miscellaneous First Appeal against the rejection of an application for temporary injunction regarding joint family property, the High Court of Karnataka held that the trial Court did not act arbitrarily or perversely. The High Court dismissed the appeal, finding the plaintiffs' claim stale and lacking prima-facie case as they failed to substantiate allegations of fraud within the limitation p

What did the court decide?

Appeal dismissed with costs; trial Court directed to dispose of pending suit expeditiously; pending Interim Applications disposed of as not warranted.

S. Shreyas Vs Smt. D.S. Brindamma — Partition | Karnataka HC (2021)

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M.F.A.No.2210/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF OCTOBER 2021

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BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

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MISCELLANEOUS FIRST APPEAL NO.2210/2016 (CPC)

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BETWEEN:

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S.SHREYAS S/O LATE S.SREENATHA AGED ABOUT 23 YEARS NOW RESIDING IN U.S.A. BY HIS GPA HOLDER AND MOTHER, THE 2^ND APPELLANT, SMT. PAVITHRA.

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SMT. PAVITHRA W/O LATE S.SREENATHA AGED ABOUT 53 YEARS AT PRESENT R/AT FLAT NO.102 SRISHYLANILAYAM I FLOOR, 8^TH CROSS, DOMLUR BENGALURU – 560 071 …APPELLANTS

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(BY SRI N.RAVINDRANATH KAMATH, ADVOCATE)

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AND:

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SMT. D.S.BRINDAMMA D/O LATE V.SHANKAR REDDY W/O SRI KRISHNA REDDY AGED ABOUT 59 YEARS

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SMT. HEMALATHA AGED ABOUT 34 YEARS D/O SRI KRISHNA REDDY

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SMT. SHWETHA AGED ABOUT 30 YEARS D/O SRI KRISHNA REDDY

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M.F.A.No.2210/2016

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SRI SHASHANK AGED ABOUT 24 YEARS S/O SRI KRISHNA REDDY

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R1 TO R4 ARE R/AT NO.20, EAST END, ‘D’ MAIN ROAD 9^TH BLOCK, JAYANAGAR BENGALURU – 560 069

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SRI M.THIRUPATHI NAIDU S/O SRI. RAMAIAH NAIDU AGED ABOUT 38 YEARS VAJIRAHALLI VILLAGE MANTAPA PANCHAYAT JIGANI HOBLI, ANEKAL TALUK BENGALURU DISTRICT

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SRI JAYARAM S/O NARAYANA SINGH AGED ABOUT 40 YEARS BANNERGHATTA ANEKAL TALUK BENGALURU – 560 083.

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SRI G.SUDHAKAR S/O LATE PULLAIAH NAIDU AGED ABOUT 47 YEARS NO.49, I FLOOR, ARYA NAGAR VYSYA BANK COLONY J.P.NAGAR I PHASE BENGALURU – 560 078

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SMT. T.VIJAYAKUMARI W/O A.NARAYANASWAMY AGED ABOUT 33 YEARS R/AT CHANDAPURA ROAD ANEKAL TOWN BENGALURU – 562 100.

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SRI K.DURGA PRASAD S/O LATE K.VEERAIAH AGED ABOUT 47 YEARS 49, I FLOOR, ARYA NAGAR VYSYA BANK COLONY J.P.NAGAR I PHASE

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BENGALURU – 560 078.

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M.F.A.No.2210/2016

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SRI A.RAJAMANICKAM AGED ABOUT 69 YEARS S/O LATE AATHIYAPPAN R/AT PLOT NO.14 & 15 KRISHNARAJU LAYOUT BILIKEHALLI, IIM POST BENGALURU – 560 076 …RESPONDENTS

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(BY SRI SAGAR G. NAHAR, ADVOCATE FOR SRI S.F.GOUTAM CHAND, ADVOCATE FOR R1 TO R4; R6 & R10 ARE SERVED

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NOTICE TO R7 & R9 D/W V/O DATED 16.10.2020; APPEAL AGAINST R5 ABATED V/O DATED 21.09.2021; NOTICE TO R8 HELD SUFFICIENT V/O DATED 07.10.2021)

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THIS MFA IS FILED UNDER ORDER XLIII RULE 1(r) OF CPC PRAYING TO SET ASIDE THE ORDER DATED 27.02.2016 PASSED BY THE IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (C.C.H.NO.5) IN O.S.NO.5467/2015 ON IA NO.II FILED UNDER ORDER XXXIX RULES 1 AND 2 OF CPC.

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THIS MFA COMING ON FOR DICTATION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Aggrieved by the order of rejection of their application for temporary injunction, plaintiffs have preferred the above appeal.

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The appellants filed O.S.No.5467/2015 before the IX Additional City Civil and Sessions Judge, Bengaluru against respondent Nos.1 to 10 seeking partition and separate possession of their alleged half share in suit schedule A(1), A(2) and B properties. They also sought

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declaration that the judgment and decree passed in O.S.No.244/1995 and O.S.No.897/1995 and subsequent alienation made by first defendant in favour of other defendants do not bind them etc.

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For the purpose of convenience, parties will be referred to henceforth according to the ranks before trial Court.

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Schedule A(1) is land bearing Sy.No.82/2 measuring 2 acres 2 guntas. Schedule A(2) is land bearing Sy.No.82/3 measuring 2 acres 3 guntas situated at Bannerghatta Village, Jigani Hobli, Anekal Taluk. Schedule A2(i) to (v) were portion of Schedule A(2) property which were sold to other defendants in different bits. Schedule B property is residential premises situated at site No.20, East End ‘D’ Main Road, 9^th Block, Jayanagar, Bengaluru. Schedule C 1 to 4 properties are the agricultural lands situated at Bagepalli Taluk and Schedule C5 is the house property situated in Dasaigaripalli, Bagepalli Taluk.

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5. Some of the admitted facts of the case are as

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follows:

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(i) Plaintiff No.1 is the son and plaintiff No.2 is the wife of one Sreenath. Sreenath and defendant No.1 are the son and daughter of Shankar Reddy and Padmamma.

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(ii) Shankar Reddy died on 24.04.1994. Padmamma died on 20.07.1983. Defendant No.1 was married on 23.03.1981. Defendant Nos.2 to 4 are the daughters and son of defendant No.1. Schedule A(1) property bearing Sy.No.82/2 measuring 2 acres 2 guntas was purchased by Shankar Reddy under registered sale deed dated 26.09.1987. Shankar Reddy had entered into an agreement of sale in respect of schedule A(2) property with one Ajjareddy under agreement of sale dated 23.09.1991. In the said sale agreement, defendant No.1 was shown as his nominee. Schedule A2(i) to (v) are portions of Sy.No.82/3 measuring 12 guntas each.

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(iii) Defendant No.1 filed O.S.No.897/1995 against Ajjareddy for specific performance of contract claiming to be the sole surviving heir of Shankar Reddy and the nominee. Parties to that suit filed compromise petition dated 19.12.1995 and the suit was decreed in terms of that compromise petition.

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(iv) Defendant No.1 filed Execution Petition No.113/1996 to execute the decree in O.S.No.897/1995. In Ex.P.No.113/1996 the Court Commissioner executed the sale deed 06.06.1997 in respect of schedule A(2) property in favour of defendant No.1.

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(v) On 31.03.1986, Wilson Garden House Building Co-Operative Society executed the sale deed in respect of schedule-B property in favour of defendant No.1. On 13.01.1989, defendant No.1 mortgaged ‘B’ Schedule property to Government of Karnataka and availed housing loan and constructed a house. In the year 2011, ‘B’ Schedule house was renovated.

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(vi) Plaintiff No.2 and Sreenath were married on 20.09.1990. Plaintiff No.1 was born on 08.07.1993.

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(vii) Shankar Reddy and Sreenath had filed O.S.No.30/1993 before Senior Civil Judge, Chikkaballapura against siblings of Shankar Reddy and their children for partition and separate possession of their share in the family properties.

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(viii) On the death of Shankar Reddy, defendant No.1 came on record in O.S.No.30/1993 as the legal representative of Shankar Reddy. On 22.03.1998 a compromise was entered into between the plaintiffs and defendants in O.S.No.30/1993. In that compromise, the present schedule-C properties were allotted to the share of Sreenath. In the compromise petition, it was stated that defendant No.1 has received valuables, movable in lieu of her share and released her right in the subject matter of that suit. Accordingly, in O.S.No.30/1993 a compromise decree was drawn.

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(ix) On 20.04.1995, defendant No.1 filed

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O.S.No.244/1995 against Sreenath. That also ended in compromise decree on 01.08.1995. In that compromise, Sy.No.85 measuring 4 acres 18 guntas was allotted to the share of Sreenath. Sy.No.82/2 was allotted to the share of present defendant No.1 and Rs.2,00,000/- out of value of schedule-A property was agreed to be paid to her.

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(x) Defendant No.1 sold a portion of schedule-A (2) property to defendant Nos.5 to 9 under different sale deeds on 20.09.2004. In turn, defendant Nos.5 to 9 sold them to defendant No.10 under sale deeds dated 06.10.2005, 12.05.2006, 15.05.2006 and 28.03.2008 which are shown in schedule-A2(i) to (v) in the suit.

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(xi) Defendant No.1 gifted schedule-A property i.e. Sy.No.82/2 to her son defendant No.4 under a

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registered gift deed dated 09.01.2012. Schedule-C(5) properties were acquired for Chitravathi River Project. Defendant No.5 received compensation awarded in the said case. Sreenath died on 20.01.2014.

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On 24.06.2015, plaintiffs filed

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O.S.No.5467/2017 against the defendants seeking various reliefs as stated above. They claimed that plaint A and B properties were joint family properties. Sreenath was addicted to alcohol and was not in good terms with plaintiffs. It was alleged that defendant No.1 playing fraud on Sreenath in O.S.No.244/1995 got allotted valuable properties to her share. It was claimed that Shankar Reddy purchased Schedule-B property in the name of defendant No.1 for the benefit of the family. So far as schedule-C property, it was contended that since defendant No.1 had relinquished her rights in those properties, she was not entitled to any share in that. It was alleged that defendant No.1 making false representation that she is the sole surviving heir of Shankar Reddy obtained fraudulent decree in respect of plaintiffs share in schedule-A(2) property. Therefore, they claimed that decree in O.S.No.244/1995 and O.S.No.897/1995 do not bind them and they have equal half share in schedule-A and B properties. It was alleged that, to play fraud on the plaintiffs, defendant No.1 has

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effected several alienations in favour of defendant Nos.2 to 9. Therefore, those alienations and subsequent alienations in favour of defendant No.10 do not bind them.

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Defendant No.1 has contested the suit by filing written statement. Her defence is as follows:

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(i) Allegations of the properties being joint family properties and defendant No.1 acquiring some of the properties by fraudulent decree etc. are all denied. After the decree in O.S.No.30/1993, plaintiff No.2 sold some of C-schedule properties fallen to her share under the very same decree. They have also sold properties allotted to the share of Sreenath in O.S.No.244/1995. Therefore, suit is not maintainable for non joinder of necessary parties.

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(ii) Sreenath during his life time did not challenge the decrees in O.S.Nos.30/1993, 244/1995 or 897/1995 or the sale deeds and gift deed executed by defendant No.1 in favour of other defendants. The purchasers and

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donee are in possession of those properties since the date of those alienations. The suit is barred by limitation since plaintiffs were not in joint possession. The value of the suit is not correct and the Court fee paid is improper. The plaintiffs have not sought cancellation of the sale deed. Therefore, suit is not maintainable.

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(iii) Schedule-B property was purchased from Wilson Garden House Building Co-Operative Society under the registered sale deed dated 31.03.1986. The allegation that Shankar Reddy purchased that in the name of his daughter defendant No.1 are denied. Plaintiffs claim that schedule-A and B properties were acquired by Shankar Reddy out of joint family nucleus was disputed. The allegation that Sreenath was addicted to alcohol and suffering from ill-health, defendant No.1 played fraud on him etc. were all denied.

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(iv) Suit is barred by Section 31 of the Specific Relief Act, 1963 and Article 51 of Limitation Act, 1963. Compensation received in respect of Schedule-C property was remitted to the account of Sreenath.

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In the suit, the plaintiffs filed I.A.No.2 under

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Order XXXIX Rules 1 and 2 of CPC seeking temporary injunction against defendant Nos.1 to 4 to restrain them from alienating the suit schedule ‘A’ and ‘B’ properties or creating any charge on those properties or entering into contract or meddling with the aforesaid properties.

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Defendant Nos.1 to 4 contested the said application. The ground for seeking interim injunction and the ground of the contest of the IA were one and the same. The trial Court on hearing both side by the impugned order rejected the application on the ground that plaintiffs have failed to make out prima-facie case .

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Reiterating the grounds of the appeal, Sri N.Ravindranath Kamath, learned Counsel for the appellants seeks to assail the impugned order on the following grounds:

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(i) The trial Court has not considered all the materials produced by the plaintiffs.

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(ii) The pleadings and judgment in O.S.No.897/1995 clearly show that defendant No.1 had

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played fraud on the Court and on the parties, therefore she was facing criminal proceedings.

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(iii) Plaintiff Nos.1 and 2 being members of the

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joint family are entitled to share in the properties. Therefore until the rival claims are decided, it is necessary to protect the properties from alienation.

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Reiterating the grounds of contest,

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Sri Sagar.G.Nahar, learned Counsel for the respondents submits that the suit was apparently vexatious and barred by time. He further submits that the suit was apparently not maintainable, therefore the trial Court has rightly rejected the application.

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Having regard to the rival contentions, the point that arises for consideration of this Court is “whether the impugned order rejecting the injunction of the plaintiffs suffers vice of arbitrariness, capriciousness or perversity”?.

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It is settled principle of law that an order under Order XXXIX Rules 1 and 2 of CPC being

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discretionary order, the Appellate Court cannot interfere with the same unless it is shown that the order suffers vice of perversity, capriciousness or arbitrariness. It is further settled principle of law that to claim the relief of injunction, the applicant has to show that he has prima-facie case and balance of convenience lies in his favour. The applicant has to further show that if the order of interim injunction is not granted, he will be put to irreparable injury.

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In the light of the aforesaid legal position, this Court has to see whether the trial Court was justified in holding that the plaintiffs have not made out prima-facie case.

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The plaintiffs claim that plaint schedule ‘A’ and ‘B’ properties were acquired by Shankar Reddy out of joint family nucleus, therefore Sreenath and plaintiff No.1 being members of joint family were entitled to share in that. As admitted by the plaintiffs themselves Sreenath and Shankar Reddy filed the original suits against other coparceners and family members of Shankar Reddy. If

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plaint schedule ‘A’ and ’B’ properties were acquired out of joint family nucleus, they should have included those properties in O.S.No.30/1993.

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The plaintiffs themselves admitted in the pleadings that plaintiff No.1 along with Sreenath sold some of the properties acquired under the very decree in O.S.No.30/1993 and now they claim that decree was fraudulent one. That is the first circumstance which indicates that the plaintiffs’ claim that they have primafacie case is unacceptable.

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Secondly, the contention of the plaintiffs is that Sreenath was addicted to alcohol and he was not keeping good health, taking advantage of that, defendant No.1 had played fraud on him. The said contentions were refuted by defendant No.1 in her written statement. Defendant Nos.1 to 4 adopted the written statement as objections to I.A.No.2.

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Absolutely, there was no material to substantiate the contentions of the plaintiffs that

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Sreenath was addicted to alcohol and was not keeping good health. It was not the case of the plaintiffs that plaintiff No.2 and Sreenath did not live together, nor there was any material to show that they had any rift or family issues till his death in 2014. Shankar Reddy died on 24.04.1994.

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From 1994 till the date of passing of decree in O.S.No.30/1993 in 1998 or till his death in 2014 Sreenath did not question any of the transactions alleging that defendant No.1 is playing fraud on him. Fraud or undue influence are basically within the personal knowledge of the person so defrauded. During his lifetime, Sreenath did not raise any issue of fraud or undue influence. Even in the present plaint, the particulars of the alleged fraud or undue influence are not forthcoming in accordance with Order VI Rule 4 of CPC.

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Plaintiff No.2 attained majority in the year 2011. The suit was filed on 24.06.2015. Therefore it was beyond three years from the date of plaintiff No.2 attaining majority. The sale deeds and gift deed produced

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by the plaintiffs show that defendant No.1 started alienating the properties from 2004 and the last alienation by way of gift deed was 09.01.2012. According to those sale deeds and gift deed, the purchasers were put in possession of the properties.

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So far as Schedule ‘B’ properties, admittedly, defendant No.1 mortgaging such property to the Government of Karnataka availed housing loan in 1989 and constructed the house. Khata of the properties were standing in the name of defendant No.1 and transferees from her. The above aspects show that claim of the plaintiffs is prima-facie stale. Therefore maintainability of their claim is doubtful.

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So far as the actions of defendant No.1 in O.S.No.897/1995 as per the plaintiffs themselves that is the subject matter of separate criminal proceedings. Mere pendency of those criminal proceedings in no way establishes prima-facie case of the plaintiffs in this case. Considering all the above aspects, the trial Court has rightly held that the plaintiffs have failed to make out

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prima-facie case. The trial Court held that when no primafacie case is made out, the question of considering the balance of convenience or irreparable injury does not arise.

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In the light of the discussion made above by no stretch of imagination, it can be held that the trial Court acted arbitrarily or in perverse manner in rejecting I.A.No.2. There is no merit in the appeal. Therefore the appeal is dismissed with costs.

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Since the matter before the trial Court is more than five years old, the trial Court is hereby requested to dispose of the suit as expeditiously as possible in accordance with law uninfluenced by any of the observations made during the course of this order.

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In view of dismissal of the appeal, pending IAs stood disposed of.

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Sd/JUDGE

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KSR/PGG

S. Shreyas v. Smt. D.S. Brindamma

Case brief

What is this about?

What did the court decide?

S. Shreyas v. Smt. D.S. Brindamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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