Partly allowed

Sri N Janardhan v. Smt Swetha N

Karnataka HC1 Jul 2022MFA/2661/2022

Case brief

AI extract

What is this about?

In an appeal against an order granting an injunction to restrain alienation of property, the High Court found no prima facie case barring the appellant from dealing with the property. The court modified the injunction to allow leasing but prohibited absolute transfer.

What did the court decide?

The injunction restraining absolute transfer of the suit schedule 'B' property was modified to permit leasing and other management without leave, pending the suit.

Sri N Janardhan Vs Smt Swetha N — Execution and Attachment | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 01^ST DAY OF JULY, 2022

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BEFORE

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

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MISCELLANEOUS FIRST APPEAL NO.2661/2022 (CPC)

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BETWEEN:

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SRI. N. JANARDHAN AGED ABOUT 39 YEARS S/O LATE NAGAPPA R/AT NO.88, 5^TH CROSS 1^ST MAIN ROAD MUNESHWARASWAMY TEMPLE STREET HOODI LAYOUT AMRUTHAHALLI BANGALORE - 560 092.

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... APPELLANT

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(BY SRI. P.B. RAJU, ADVOCATE)

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AND:

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SMT. SWETHA N AGED ABOUT 27 YEARS W/O SRI VINOD KUMAR R/AT NO.5, 3^RD CROSS POOJA GARDEN K CHANNASANDRA, HORAMAVU BANGALORE - 560 043.

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SMT. ANUSUYA AGED ABOUT 48 YEARS W/O LATE NAGAPPA R/AT WARD NO.22 H S GARDEN

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CHIKKABALLAPURA DISTRICT CHIKKABALLAPURA - 562 101.

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... RESPONDENTS

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(BY SRI. C.T. PARAMESHWARAPPA, ADVOCATE FOR R1; NOTICE TO R2 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 02.02.2022 PASSED ON I.A.NO.1 IN OS.NO.25194/2020 ON THE FILE OF THE 74^TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU, CCH-75, ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.

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

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JUDGMENT

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The appellant is the first defendant in O.S.No.25194/2020 on the file of the LXXIV Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru ([for short, ‘ the civil Court’ ]. The civil Court by this impugned order dated 02.02.2022 has allowed the plaintiff - first respondent's application [I.A. No.1] under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 [for short, ‘the CPC’ ] restraining the

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appellant from alienating or encumbering the two immovable properties mentioned in the plaint for a period of six months while also directing the parties to co-operate with the Court for early disposal.

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The relationship amongst the parties is not disputed. The appellant is the son of Sri Nagappa through his first wife Smt. Rathnamma and the second respondent is his second wife and the first respondent is their daughter. The first respondent has filed the suit in O.S.No.25194/2020 for declaration that she has a full legitimate share in suit schedule 'A' property and one-third undivided share in suit schedule 'B' property and for partition of these two properties by metes and bounds as also for declaration that Gift Deed dated 4.4.2015 executed in favor of the appellant by his mother - Smt. Rathnamma is not binding on her.

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It is undisputed that the suit schedule 'A' property is purchased in the joint names of Sri Nagappa

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and Smt.Rathnamma. However, the controversy is because of the rival claims between the appellant and the first respondent. The first respondent contends that this property, though purchased in the joint names, Sri Nagappa absolutely owned the same and as such, he has executed his last Will and Testament dated 9.3.2018 bequeathing this property in her favor. The appellant contends that Smt.Rathnamma purchased this property from out of the sale proceeds received by the sale of her property and she has executed the impugned Gift Deed dated 4.4.2015 in his favor.

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The controversy between the appellant and the first respondent insofar as the Schedule-B property is also because of the rival claims. The first respondent contends that though this property is purchased in the name of the appellant, the sale consideration is paid only by Sri. Nagappa and on his demise on 11.07.2019, she has succeeded to this property along with the

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appellant and the second respondent. The appellant contends that Smt. Rathnamma's brother absolutely owned this property, and he has purchased this property from him for valuable consideration. The Vendor, his maternal uncle, had constituted his father as the Power of Attorney and therefore, his father has executed the sale deed, but his maternal Uncle has himself executed the later documents.

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Sri. P.B. Raju, the learned counsel for the appellant, submits that the appellant is aggrieved by the entire impugned order but would confine this appeal to the order insofar as it restrains the appellant from dealing with his own property viz., the suit schedule 'B' property. The learned counsel submits that though there is some discussion on the merits of the respective claims insofar as the schedule-A property, there is no discussion or reasoning in restraining the appellant from dealing with the Schedule-B property. The

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appellant does not propose to transfer Schedule-B property, but the injunction order can be construed as restraining the appellant from even leasing or otherwise dealing with the same. Therefore, this Court must intervene in the matter.

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Parameshwarappa, the learned counsel for the first respondent, submits that the appellant cannot assert that the suit schedule 'B' property is his absolute property because he cannot deny that Sri Nagappa has paid the entire consideration. However, the learned counsel cannot controvert that no document is placed on record at this point of time to establish that Sri.Nagappa has furnished the consideration for the purchase of this property. The first respondent to succeed in her claim would have to place on record necessary materials to establish that notwithstanding the title deeds being in the name of the appellant, this

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property should be construed as the property held by her father as his own. Until then, it cannot be said that there would be prima facie case in her favour.

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With the first respondent failing to establish a prima facie case, there cannot be a blanket restriction on the appellant dealing with the suit schedule-B Property. The learned counsel for the appellant is categorical that the appellant does not propose to sell the suit schedule 'B' property, but he may have to lease the same depending on the circumstances. The balance of convenience and irreparable injury could be balanced between the appellant and the first respondent modifying the impugned order permitting the appellant, without the leave to absolutely transfer the suit schedule 'B' property, to grant lease or otherwise manage the same without the interference by the first respondent. Hence the following:

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O R D E R

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[a] The appeal is allowed in part;

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[b] The impugned order dated 02.02.2022 [I.A. No.1/2021] in O.S. No.25194/2020 of the 74^th Additional City Civil Judge, Mayohall Unit, Bengaluru, is modified, observing that the appellant could grant lease or otherwise deal with the suit schedule 'B' property but without absolutely transferring the same in favour of a third party during the pendency of the suit;

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[c] The parties, as directed by the civil Court, must assist in expeditious disposal.

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SD/JUDGE

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SA, AN/-

Sri N Janardhan v. Smt Swetha N

Case brief

What is this about?

What did the court decide?

Sri N Janardhan v. Smt Swetha N

Case brief

What is this about?

What did the court decide?

What the court decided

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