High Court of Karnataka allowed appeals filed against an order granting temporary injunctions in a partition suit. The Court held that evidence of partition was not recorded and the GPA execution required trial. It set aside the injunctions.
Impugned orders set aside; interim applications (I.A.Nos. 1 & 2) rejected; trial directed to be concluded expeditiously.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07th DAY OF SEPTEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
M. F. A.NO.5157 OF 2013 (CPC)
C/W
M.F.A.NO.5158 OF 2013 (CPC)
IN MFA No.5157/2013
BETWEEN:
SRI AUSTIN ROACH S/O LATE P.A. ROACH, AGED ABOUT 57 YEARS, RESIDING AT NO.5, 1ST MAIN ROAD, DEFENSE COLONY, INDIRANAGAR, BENGALURU – 560 038.
... APPELLANT
(BY SRI. L K SRINIVASA MURTHY, ADVOCATE)
AND:
BEHIND B.D.A. COMPLEX, H.S.R LAYOUT 6TH SECTOR, BENGALURU – 560 102.
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3 . SRI L. MURALI AGED ABOUT 34 YEARS, S/O SRI K. LAKSHMINARYANA REDDY,
4 . SRI L. MOHAN AGED ABOUT 32 YEARS, S/O SRI K. LAKSHMINARYANA REDDY,
RESPONDENTS 2 TO 4 ARE RESIDING AT NO. 407, 23RD CROSS, 10TH MAIN, 7TH SECTOR, H.S.R LAYOUT, BENGALURU -560 102.
5 . SRI R. NAGARAJ AGED ABOUT 52 YEARS, S/O LATE SRI M.K RADHAKRISHNA REDDY, RESIDING AT NO. 1212, H.A.L. 2ND STAGE, INDIRANAGAR, BENGALURU – 560 038.
….. RESPONDENTS
(BY SRI. M N RAVINDRANATH FOR C/R-1 SRI. SRINIVASA REDDY, ADVOCATE FOR R-2 SRI. M.R. KRISHNA MURTHY, ADVOCATE FOR R-5 R-3 AND R-4 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC AGAINST THE ORDER DATED 7.6.2013 PASSED ON APPLICATION IN O.S.NO. 25236/2013 ON THE FILE OF THE 28TH ADDITIONAL CITY CIVIL JUDGE, MAYO HALL, BANGALORE, ALLOWING THE APPLICATION FILED U/O 39, RULE 1 & 2 OF CPC.
IN MFA No.5158/2013
BETWEEN:
SRI AUSTIN ROACH S/O LATE P.A. ROACH, AGED ABOUT 57 YEARS, RESIDING AT NO.5, 1ST MAIN ROAD, DEFENSE COLONY,
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... APPELLANT
INDIRANAGAR,
BENGALURU – 560 038.
(BY SRI. L K SRINIVASA MURTHY, ADVOCATE)
AND:
1 . SMT. L. RANI AGED ABOUT 35 YEARS, D/O SRI K. LAKSHMINARAYANA REDDY, W/O SRI K. NAGMOHAN REDDY, RESIDING AT "JANA BINDU" NO.85/A, 11TH MAIN, 14TH CROSS, BEHIND B.D.A. COMPLEX, H.S.R LAYOUT 6TH SECTOR, BENGALURU – 560 102.
2 . SRI K. LAKSHMINARAYANA REDDY AGED ABOUT 62 YEARS, S/O LATE SRI KRISHNA REDDY,
3 . SRI L. MURALI AGED ABOUT 34 YEARS, S/O SRI K. LAKSHMINARYANA REDDY,
4 . SRI L. MOHAN AGED ABOUT 32 YEARS, S/O SRI K. LAKSHMINARYANA REDDY,
RESPONDENTS 2 TO 4 ARE RESIDING AT NO. 407, 23RD CROSS, 10TH MAIN, 7TH SECTOR, H.S.R LAYOUT, BENGALURU -560 102.
5 . SRI R. NAGARAJ AGED ABOUT 52 YEARS, S/O LATE SRI M.K RADHAKRISHNA REDDY, RESIDING AT NO. 1212, H.A.L. 2ND STAGE, INDIRANAGAR, BENGALURU – 560 038.
….. RESPONDENTS
(BY SRI. M.R. KRISHNA MURTHY, ADVOCATE FOR R-5 R-1 TO R-4 SERVED AND UNREPRESENTED)
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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC AGAINST THE ORDER DATED 7.6.2013 PASSED ON APPLICATION IN O.S.NO. 25236/2013 ON THE FILE OF THE 28TH ADDITIONAL CITY CIVIL JUDGE, MAYO HALL, BANGALORE, ALLOWING THE APPLICATION FILED U/O 39, RULE 1 & 2 OF CPC.
THESE APPEALS COMING ON FOR FINAL DISPOSAL THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant being aggrieved by the order dated 07.06.2013 passed in O.S.No.25236/2013 by the XXVIII Addl. City Civil Judge, Mayohall, Bengaluru (CCH-29), has filed the present appeals.
That the respondent No.1 filed a suit in O.S.No.25236/2013 against the appellant and others for
partition and separate possession and also declaration. In the said suit, respondent No.1 filed an application seeking for an order of temporary injunction restraining the appellant from alienating the suit schedule properties and further
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putting up any construction over the suit schedule
properties. The respondent No.1 in support of the application has filed an affidavit contending that the suit schedule properties are Hindu Undivided Family properties having inherited the same from the grandfather of respondent No.1
name by Krishna Reddy. The suit properties are in joint possession of respondent No.1 and respondents 2 to 4.
2.1. In sofar as relationship of respondent No.1 with
respondents No.2 to 4, it is not in dispute. It is contended that no partition was affected in the suit schedule properties
among the respondents No.1 to 4 who are in joint possession of the same, wherein the respondent No.1 is having 1/4th share. It is contended that in the first week of January 2013, respondent No.1 demanded her share in the suit schedule properties to respondent No.2. He has refused to effect partition. On enquiry, respondent No.1 came to know that respondents No.2 to 4 have sold the suit schedule
properties in favour of Respondent No.5 under registered Sale Deed dated 22.06.2004. The appellant along with R-5
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were attempting to put up construction of compound wall in the suit schedule properties and trying to alienate the suit schedule properties. Hence, respondent No.1 has filed applications in I.A.Nos.1 and 2.
2.2 The appellant and respondent No.5 have opposed the said applications by filing objection. The appellant has denied the contentions of respondent No.1 that the suit schedule properties were inherited from the grandfather of respondents No.1 to 4 and no partition was effected in respect of the same .
2.3. It’s denied that respondent No.1 never executed
any General Power of Attorney in favour of respondent No.2 However, they have contended that the suit schedule properties were inherited by respondent No.2 and his family members including respondent No.1 and further contended that respondent No.1 has executed a General Power of Attorney on 21.06.2004 in favour of the respondent No.2 conferring the power with her share in the suit schedule
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properties. They have further denied the contention that respondent No.1 never executed any GPA in favour of respondent No.2. Respondents No.2 to 4 representing respondent No.1 as a General Power of Attorney holder sold the suit schedule properties in favour of the respondent No.5 on 22.06.2004. Later on the appellant entered into a Deed of Exchange with respondent No.5 on 28.10.2010 in respect of suit schedule properties. It is contended that the respondent No.1 is claiming as a coparcener under Section 6 of the Hindu Succession (Amendment) Act, 2005. It is further contended that any alienation made before 20.04.2004 by a member of joint family cannot be questioned by a co-parcener daughter. Hence, prayed to reject the
applications.
2.4. The Trial Court, after hearing the parties on the applications filed by respondent No.1, has passed the impugned orders allowing the applications filed by respondent No.1 vide order dated 07.06.2013. The appellant
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being aggrieved by the order passed on I.A.Nos.1 and 2 dated 07.06.2013, has filed these appeals.
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No.1 supports the impugned orders and prayed to dismiss the appeals.
submissions made by learned counsel for the parties.
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execution of the General Power of Attorney in favour of respondents No.2 to 4.
executed a General Power of Attorney in favour of respondents No.2 to 4 is a matter which requires trial. At this stage, this Court cannot record a finding in regard to the execution of the alleged General Power of Attorney by respondent No.1 in favour of respondents No.2 to 4. ` The
Trial Court has granted injunction in favour of the respondent No.1 solely on the ground that the sale transaction took place prior to coming into force of the amended Hindu Succession Act 2005 on 20.12.2004 as the said sale transaction is saved under the provisions of Section
6 of the Hindu Succession Act. This Court vide order dated 19.06.2013 stayed the impugned order. Since from 20.06.2013, there is no injunction order against the appellant. The appellant has not alienated the suit schedule properties since from the year 2013 till today. Further, it is
not case of the respondents that the appellant has
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undertaken any construction in the suit schedule properties
during the pendency of the appeal.
following order is passed:
ORDER
iii) I.A.Nos.1 and 2 filed by respondent No.1 are rejected.
However, as the matter is of the year 2013, the Trial
Court is directed to dispose of the suit as expeditiously as possible.
SD/JUDGE
rs/GRD
3 issues framed by the court
Whether the Appeals filed under Order 43 Rule 1(r) CPC are maintainable and require allowance.
Whether the injunction granted in favour of Respondent No.1 was justified given the lack of partition evidence and the status of the GPA.
Whether the Trial Court order should be set aside and the injunction applications rejected.
3 provisions across 2 enactments
Sri Austin Roach
Smt. L. Rani
Sri K. Lakshminarayana Reddy
Sri L. Murali
Sri L. Mohan
Sri R. Nagaraj
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
