Partly allowed

Sri H S Basavaraju v. Sri H R Sandeep

Karnataka HC16 Nov 2021WP/14863/2021

Case brief

AI extract

What is this about?

The High Court allowed this writ petition in part, modifying impugned orders that rejected an application for temporary injunction. Recognizing suspicious circumstances arising from two conflicting wills executed on the same day, the Court directed a status quo to prevent alienation or creation of third-party interests in suit properties pending the suit's disposal.

What did the court decide?

Impugned orders modified; parties directed to maintain status quo regarding title to suit properties until disposal of the suit; no order for interim injunction granted.

Sri H S Basavaraju Vs Sri H R Sandeep — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF NOVEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.14863/2021 (GM-CPC)

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BETWEEN :

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SRI H S BASAVARAJU S/O LATE SANNANANAJAPPA AGED ABOUT 60 YEARS R/AT DANDINASHIVARA VILLAGE DANDINASHIVARA HOBLI TURUVEKERE TALUK TUMKUR, TUMKUR (DISTRICT) - 572 215.

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... PETITIONER

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(BY SRI. MALLE GOWDA H P, ADVOCATE)

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AND :

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SRI H R SANDEEP S/O LATE RAMEGOWDA AGED ABOUT 32 YEARS R/AT HADAVANAHALLI DANDINASHIVARA HOBLI TURUVEKERE TALUK TUMKUR DISTRICT (DISTRICT) - 572 215.

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... RESPONDENT (BY SRI. S. RAJENDRA, ADVOCATE FOR SRI. S.V. PRAKASH, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 17.07.2020 PASSED BY THE CIVIL JUDGE (JR.DN) JMFC AT TURUVEKERE IN O.S.NO.109/2019 PRODUCED AS ANNEXURE-K ON IA.5

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AND IMPUGNED ORDER DATED 30.09.2020 IN M.A.NO.6/2020 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC AT TURUVEKERE BELOW AT ANNEXURE-L.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-

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O R D E R

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The petitioner, who is the plaintiff in O.S. No.109/2019 on the file of the Civil Judge and JMFC, Turuvekere [for short, ' the civil Court '], has filed this petition impugning the civil Court's order dated 17.07.2020 and the order dated 30.09.2020 in M.A. No.6/2020 on the file of the Senior Civil Judge and JMFC, Turuvekere [for short, 'the appellate Court' ].

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The civil Court by this impugned order dated 17.07.2020 has rejected the petitioner's application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 [for short 'CPC'] for temporary injunction against the respondent from interfering with

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his possession of the suit schedule properties and from creating third party rights therein. The appellate Court by its order dated 30.09.2020 has confirmed the rejection of such application.

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It is undisputed that the suit schedule

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properties were allotted to Sri. Chandraiah in a partition with his brothers, and after this partition, the brothers were residing separately. Sri. Chandraiah died intestate on 12.04.2015 leaving behind his wife Smt. Vanithamma. The petitioner asserts that late Chandraiah has executed the Will dated 19.03.2015, which is registered in No.275/2014-15 with the SubRegistrar, Turuvekere, bequeathing the suit schedule properties in favour of his daughters and he is in possession of these properties. The respondent, on the other hand, contends that Sri. Chandraiah has also executed in his favour the Will dated 19.03.2015 which

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is registered in No.276/2014-15 with the Sub-Registrar, Turuvekere.

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It is seen that these two Wills are presented for registration on the same day and in fact, the Will which is relied upon by the respondent is presented on 4.55.03 pm and the Will relied upon by the petitioner is presented at 5.00.34 pm. Both these Wills are attested by the same witnesses. The petitioner in his suit, has sought for declaration that the Will executed by Sri. Chandraiah in favour of the respondent is illegally created and void.

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The civil Court has rejected the petitioner's application on twin grounds. Firstly, for the reason that though the petitioner disputes the due execution and attestation of the Will 19.03.2015 in favour of the respondent on the ground that late Chandraiah did not keep sound mind, he relies upon the Will 19.03.2015,

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which is also executed by Sri Chandraiah in favour of his daughters on the same date. The civil Court has opined that this demonstrates that the petitioner has not approached the Court with clean hands. Secondly, for the reason that the petitioner has sought for two reliefs in one application, and that would be impermissible in view of the provisions of Rule 23 of the Karnataka Civil Rules of Practice, 1967.

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The appellate Court, though has opined that

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the civil Court could not have rejected the application on the technical ground that the two reliefs are sought for in one application, has affirmed the rejection of the petitioner’s application for temporary injunction observing that the petitioner has not placed on record any circumstance or document to explain how he entered possession of the subject property after the demise of Sri. Chandraiah. On the question of injunction against alienation, the appellate Court has

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considered the petitioner's prayer in the light of the new ground urged before it for the first time in the appeal without necessary pleadings before the civil Court.

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The petitioner, for the first time before the appellate Court, has contended before the civil Court that Sri. Chandraiah has executed the Will dated 19.03.2015 in favour of the respondent for the properties allotted to him in partition by changing the boundaries of the properties. The appellate Court has opined that the petitioner without necessary pleading and declaration in this regard would not be entitled even for temporary injunction against alienation. The appellate Court for these reasons has affirmed that the petitioner has failed to establish prima facie case for the grant of temporary injunction.

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This Court, in the facts and circumstances of

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the case, and the reasons assigned by both the civil and

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the appellate Courts, is not persuaded to interfere with the rejection of the petitioner’s application for injunction against alleged interference by the respondent. Sri. Chandraiah admittedly died in the month of April 2015 i.e., within a period of one month from the date of the execution of the subject Wills and the suit is filed in the year 2019. The petitioner should have placed some material on record either as circumstances or documents to explain how he entered possession of the subject property. This failure has rightly been considered in rejecting the petitioner's application for injunction against interference with his alleged possession of the suit schedule properties.

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However, insofar as the temporary injunction

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against alienation of the suit schedule properties, it is obvious from the reasoning by the civil Court and the appellate Court that both of them have failed to consider that the petitioner and the respondent rely upon the respective Wills executed on the same day and

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attested by same set of witnesses. The respondent's Will is presented earlier for registration and the petitioner's Will is presented a few minutes later. The petitioner has indeed challenged the Will executed in favour of the respondent alleging that the Executor, late Sri. Chandraiah was not of sound mind. If this is true, even the Will dated 19.03.2015 relied upon by him will be tainted. But, at this point of time when the parties are still to lead evidence, and they must demonstrate that the Will is free of suspicious circumstance, this Court is of the considered view that the civil Court and the appellate Court could not have overlooked the proximity in the time of the execution and presentation of the two Wills. This leads to serious questions that will have to be decided based on the evidence that would be placed on record.

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Therefore it would not be entirely reasonable to conclude that the petitioner has not made out a

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prima facie case for the grant of interim order against alienation or that balance of convenience or irreparable injury would not be in favour of the petitioner. With serious questions pending consideration, if there is any alienation of the suit schedule properties by either the petitioner or by the respondent claiming under the respective Wills, there would be multiplicity of proceedings and third party interest involved.

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As such, this Court is of the considered view that both the civil Court and the appellate Court have erred in overlooking the material circumstances and in concluding that the petitioner has not made out a case for grant of interim order as against alienation. There must be an interim order directing both the petitioner and the respondent not to create any third party interest in the suit schedule properties until the disposal of the suit. Therefore the following:

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ORDER

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[a] The petition is allowed in part, and the impugned order dated 17.07.2020 in O.S. No.109/2019 on the file of the Civil Judge and JMFC, Turuvekere and the order dated 30.09.2020 in M.A. No.6/2020 on the file of the Senior Civil Judge and JMFC, Turuvekere are modified.

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[b] The parties viz ., the petitioner and the respondent are directed to maintain status quo as regards the title to the suit schedule properties until the disposal of the suit.

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SD/- JUDGE

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AN/-

Sri H S Basavaraju v. Sri H R Sandeep

Case brief

What is this about?

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Sri H S Basavaraju v. Sri H R Sandeep

Case brief

What is this about?

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