Dismissed

Smt Jayalakshmi Devi v. Sri H Nagesh

Karnataka HC7 Sept 2021MFA/7005/2015

Case brief

AI extract

What is this about?

Appeal against the dismissal of an injunction application seeking to restrain alienation of suit property. The court held that since the mother was the absolute owner under Section 14(1) of the Hindu Succession Act, 1956, her sale of the property was valid and the appeal was dismissed.

What did the court decide?

Appeal dismissed; injunction application set aside; I.A.No.1/2015 disposed of accordingly.

Smt Jayalakshmi Devi Vs Sri H Nagesh — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^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.7005 OF 2015 (CPC)

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BETWEEN:

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SMT. JAYALAKSHMI DEVI, W/O LATE G.L.GOWDA, AGED ABOUT 61 YEARS.

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SMT. LAKSHMI.H, W/O SRI JAVARE GOWDA, AGED ABOUT 49 YEARS.

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BOTH ARE RESIDENTS OF SHARADAMMA BUILDING, KEBBEHALL, SUNKADAKATTE, VISWANEEDAM POST, BANGALORE-560091.

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...APPELLANTS

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(BY SRI.CHETHAN. B., ADVOCATE)

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AND:

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SRI H.NAGESH, S/O LATE HANUMAIAH, AGED ABOUT 45 YEARS.

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SRI H.PRAKASH, S/O LATE HANUMAIAH, AGED ABOUT 47 YEARS.

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SRI H.RAMESH, S/O LATE HANUMAIAH, AGED ABOUT 45 YEARS.

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RESPONDENT 1 TO 3 ARE R/AT NO.94, II BLOCK, THYAGARAJ NAGAR, BANGALORE-560028.

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SRI GOVINDACHARY, S/O LATE DASACHARY, MAJOR, NO.17/1, AMBALIPURA, AGARA POST, SARJAPUR ROAD, BANGALORE-560034.

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M/S ARATTUKULAM DEVELOPER, HAVING ITS OFFICE AT NO.739, BEHIND CITY BANK ATM, HOSUR ROAD, SINGSANDRA, BENGALURU-560068, REP. BY ITS MANAGING DIRECTOR.

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…RESPONDENTS

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(BY SRI. G.H.NAGARAJ, ADV. FOR R4, R1 & R3 SERVED REPRESENTED, R2 & R5 SERVICE OF NOTICE HELD SUFFICENT V/O DTD.25.08.20219)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 14.08.2015 PASSED ON I.A.NO.1 IN O.S.NO.1266/2012 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BENGALURU, DISMISSING I.A.NO.1 FILED U/O 39 RULE 1 AND 2 OF CPC.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellants being aggrieved by the order on

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I.A.No.I dated 14.08.2015 passed in

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O.S.No.1266/2012 by the I Additional Senior Civil Judge, Bangalore Rural District, Bangalore, have filed this appeal.

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The appellants are the plaintiffs and respondents are the defendants before the Trial Court. Parties are referred to as per their ranking before the Trial Court.

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The brief facts leading to the filing of this appeal are that:

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The plaintiffs have filed a suit in O.S.No.1266/2012 for partition, separate possession, declaration and also for mandatory injunction in respect of suit schedule property stating that one Hanumaiah S/o Karigowda i.e., father of the plaintiffs herein married one Lingamma. Out of their said

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wedlock, three sons and two daughters were born. It is contended that the father of the plaintiffs during his life time on 21.10.1982 had purchased the agricultural land in the name of his wife Lingamma i.e., mother of the plaintiffs from H.B.Vasanthi Devi W/o H.R.Basavaraj. It is further contended that the father of the plaintiffs died intestate in the year 1991. Subsequent to his death, the mother have succeeded to the estate of the deceased and they were in joint possession and enjoyment of the same. Subsequent to the death of the father of the plaintiffs, the mother of the plaintiffs also passed away. Hence, the plaintiffs have filed a suit for partition and separate possession. In the said suit, the plaintiffs have filed an application in I.A.No.I under Order XXXIX Rules 1 and 2 of C.P.C., seeking for an order of injunction restraining defendant Nos.4 and 5 from alienating or creating 3rd party interest over the suit schedule property. In support of the said application, the plaintiffs have filed

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an affidavit stating that defendant Nos.4 and 5 are trying to alienate the suit schedule property. Hence, they have filed an application in I.A.No.I seeking for an order of injunction.

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The said application was opposed by defendant Nos.4 and 5 by filing their objections denying the averments made in the plaint as well as in the affidavit enclosed to the application. It is further contended that the mother of the plaintiffs have sold the suit schedule property in the year 2004 itself in favour of defendant No.4 and further contended that the suit is barred by limitation. It is further contended that the plaintiffs have suppressed the fact that the suit schedule property is converted and defendant No.4 has sold an extent of 1 acre 13 guntas in favour of three purchasers and the said purchasers have not been made as a party to the suit. Hence, the suit is not maintainable for non-joinder of necessary parties

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and further contended that defendant No.4 has entered into Joint Development Agreement with defendant No.5. Hence, he prayed to reject the application. The trial Court, after hearing the parties, has dismissed the said application filed by the plaintiffs. The plaintiffs being aggrieved by the same, have filed this appeal.

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Heard the learned counsel for the plaintiffs

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and also the learned counsel for defendant No.4.

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Learned counsel for the plaintiffs submits

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that the suit schedule property is the ancestral property and the plaintiffs have got a share in the suit schedule property. He further submits that defendant Nos.1 to 3 and the mother of the plaintiffs have no right to execute the sale deed in favour of defendant No.4. Hence, he submits that the trial Court without properly considering the materials placed on record, has rejected the application. Hence, he submits that

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the trial Court has committed an error in rejecting the application. Hence, on these grounds, he prays to allow the appeal.

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Per contra , learned counsel for defendant

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No.4 supports the impugned order and prays to dismiss the appeal.

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Heard and perused the records and considered the submission of learned counsel for the parties.

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It is not in dispute that the suit land was purchased in the name of the mother of the plaintiffs on 21.10.1982. The mother of the plaintiffs and defendant Nos.1 to 3 have jointly executed the registered sale deed in favour of defendant No.4 on 12.09.2004. The plaintiffs have filed a suit in the year 2012. The contention of the plaintiffs that the suit schedule property is an ancestral property, cannot be

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accepted as the property was purchased in the name of mother of plaintiffs. In order to appreciate the contention of the parties, it is necessary to consider Section 14(1) of the Hindu Succession Act, 1956, which reads as under:

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‘14. Property of a female Hindu to be

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her absolute property. – (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

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Explanation. – In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

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(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other

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instrument or the decree, order or award prescribe a restricted estate in such property.’

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Section 14(1) contemplates that any property

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possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as a full owner thereof and not as a limited owner. In the instant case, the suit property was possessed by mother of plaintiffs and she becomes the absolute owner. As observed above, she along with defendant Nos.1 to 3 have sold the suit schedule property in favour of defendant No.4. When the mother of plaintiffs have sold their schedule property as she being the absolute owner, the plaintiffs have no right to challenge the sale deed which was in favour of defendant No.4. The trial Court, after considering the materials placed on record, was justified in rejecting the application filed by the plaintiffs.

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I do not find any grounds to interfere with

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the impugned order. Accordingly, the appeal is dismissed.

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In view of the disposal of the main appeal, I.A.No.1/2015 does not survive for consideration and disposed of accordingly.

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Sd/JUDGE

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ssb

Smt Jayalakshmi Devi v. Sri H Nagesh

Case brief

What is this about?

What did the court decide?

Smt Jayalakshmi Devi v. Sri H Nagesh

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

Coram

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