Allowed

Sri Austin Roach v. Smt. L. Rani

Karnataka HC7 Sept 2021MFA/5158/2013

Case brief

AI extract

What is this about?

The High Court allowed appeals against interim injunction orders passed under Order 39 of CPC. The court held that the validity of a General Power of Attorney requires a full trial and the injunction granted solely based on pre-2005 Hindu Succession Act provisions could not stand. The trial suit is directed to be disposed expeditiously.

What did the court decide?

The appeals are allowed, impugned orders set aside, and Interim Applications (IA Nos. 1 & 2) are rejected.

Sri Austin Roach Vs Smt. L. Rani — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07^th DAY OF SEPTEMBER 2021

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BEFORE

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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M. F. A.NO.5157 OF 2013 (CPC)

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C/W

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M.F.A.NO.5158 OF 2013 (CPC)

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IN MFA No.5157/2013

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BETWEEN:

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SRI AUSTIN ROACH S/O LATE P.A. ROACH, AGED ABOUT 57 YEARS, RESIDING AT NO.5, 1^ST MAIN ROAD, DEFENSE COLONY, INDIRANAGAR, BENGALURU – 560 038.

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... APPELLANT

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(BY SRI. L K SRINIVASA MURTHY, ADVOCATE)

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AND:

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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, 11^TH MAIN, 14^TH CROSS,

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BEHIND B.D.A. COMPLEX, H.S.R LAYOUT 6^TH SECTOR, BENGALURU – 560 102.

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2 . SRI K. LAKSHMINARAYANA REDDY AGED ABOUT 62 YEARS, S/O LATE SRI KRISHNA REDDY,

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3 . SRI L. MURALI AGED ABOUT 34 YEARS, S/O SRI K. LAKSHMINARYANA REDDY,

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4 . SRI L. MOHAN AGED ABOUT 32 YEARS, S/O SRI K. LAKSHMINARYANA REDDY,

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RESPONDENTS 2 TO 4 ARE RESIDING AT NO. 407, 23^RD CROSS, 10^TH MAIN, 7^TH SECTOR, H.S.R LAYOUT, BENGALURU -560 102.

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5 . SRI R. NAGARAJ AGED ABOUT 52 YEARS, S/O LATE SRI M.K RADHAKRISHNA REDDY, RESIDING AT NO. 1212, H.A.L. 2^ND STAGE, INDIRANAGAR, BENGALURU – 560 038.

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….. RESPONDENTS

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(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)

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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 28^TH ADDITIONAL CITY CIVIL JUDGE, MAYO HALL, BANGALORE, ALLOWING THE APPLICATION FILED U/O 39, RULE 1 & 2 OF CPC.

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IN MFA No.5158/2013

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BETWEEN:

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SRI AUSTIN ROACH S/O LATE P.A. ROACH, AGED ABOUT 57 YEARS, RESIDING AT NO.5, 1^ST MAIN ROAD, DEFENSE COLONY,

... APPELLANT

INDIRANAGAR,

BENGALURU – 560 038.

(BY SRI. L K SRINIVASA MURTHY, ADVOCATE)

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AND:

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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, 11^TH MAIN, 14^TH CROSS, BEHIND B.D.A. COMPLEX, H.S.R LAYOUT 6^TH SECTOR, BENGALURU – 560 102.

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2 . SRI K. LAKSHMINARAYANA REDDY AGED ABOUT 62 YEARS, S/O LATE SRI KRISHNA REDDY,

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3 . SRI L. MURALI AGED ABOUT 34 YEARS, S/O SRI K. LAKSHMINARYANA REDDY,

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4 . SRI L. MOHAN AGED ABOUT 32 YEARS, S/O SRI K. LAKSHMINARYANA REDDY,

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RESPONDENTS 2 TO 4 ARE RESIDING AT NO. 407, 23^RD CROSS, 10^TH MAIN, 7^TH SECTOR, H.S.R LAYOUT, BENGALURU -560 102.

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5 . SRI R. NAGARAJ AGED ABOUT 52 YEARS, S/O LATE SRI M.K RADHAKRISHNA REDDY, RESIDING AT NO. 1212, H.A.L. 2^ND STAGE, INDIRANAGAR, BENGALURU – 560 038.

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….. RESPONDENTS

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(BY SRI. M.R. KRISHNA MURTHY, ADVOCATE FOR R-5 R-1 TO R-4 SERVED AND UNREPRESENTED)

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THESE APPEALS COMING ON FOR FINAL DISPOSAL THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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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.

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Brief facts leading rise to filing of these appeals are as under:

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That the respondent No.1 filed a suit in O.S.No.25236/2013 against the appellant and others for

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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

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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

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name by Krishna Reddy. The suit properties are in joint possession of respondent No.1 and respondents 2 to 4.

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2.1. In sofar as relationship of respondent No.1 with

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respondents No.2 to 4, it is not in dispute. It is contended that no partition was affected in the suit schedule properties

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among the respondents No.1 to 4 who are in joint possession of the same, wherein the respondent No.1 is having 1/4^th 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

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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.

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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 .

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2.3. It’s denied that respondent No.1 never executed

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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

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applications.

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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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Heard learned counsel for the appellant and learned counsel for respondents.

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Learned counsel for the appellant submits that the Trial Court has committed an error in passing the impugned orders. He further submits that respondent No.1 has executed a General Power of Attorney in favour of respondents No.2 to 4 to represent respondent No.1 and execute a registered Sale Deed in favour of the purchaser. He submits that respondents No.1 to 4 executed a registered Sale Deed in favour of respondent No.4. Respondent No.4 inturn has entered into a Deed of Exchange with the appellant on 28.10.2010. Hence, the appellant is in possession of the suit schedule properties. He further submits that the Trial Court has committed an error in allowing the applications. Hence, on these grounds, he prays to allow the appeals.

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Per contra, learned counsel for the respondent

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No.1 supports the impugned orders and prayed to dismiss the appeals.

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Perused the records and considered the

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submissions made by learned counsel for the parties.

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It is not in dispute that the suit schedule properties were inherited by respondents No.1 to 4 from their grandfather namely Krishna Reddy and also there is no dispute about the relationship of respondent No.1 with respondents No.2 to 4. It is the case of the respondent No.1 that no partition was effected in respect of the suit schedule properties amongst respondents No.1 to 4 and they are in joint possession of the suit schedule properties.

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The appellant has admitted that suit schedule properties were inherited by respondents No.1 to 4 from their ancestors. In order to prove that there was a partition between respondents No.1 to 4, no records has been produced. Further, respondent No.1 is disputing about the

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execution of the General Power of Attorney in favour of respondents No.2 to 4.

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In order to prove whether respondent No.1 has

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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

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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

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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

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not case of the respondents that the appellant has

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undertaken any construction in the suit schedule properties

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during the pendency of the appeal.

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Hence, in view of the above discussion, the

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following order is passed:

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ORDER

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i) The appeals are allowed .

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ii) The impugned orders are set aside.

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iii) I.A.Nos.1 and 2 filed by respondent No.1 are rejected.

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However, as the matter is of the year 2013, the Trial

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Court is directed to dispose of the suit as expeditiously as possible.

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SD/JUDGE

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rs/GRD

Sri Austin Roach v. Smt. L. Rani

Case brief

What is this about?

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Sri Austin Roach v. Smt. L. Rani

Case brief

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