Dismissed

K Mohammed Younus v. Shazama Sultana

Karnataka HC1 Aug 2023MFA/3796/2023

Case brief

AI extract

What is this about?

The High Court dismissed a Miscellaneous First Appeal challenging a trial court order granting an injunction against appellants (sons). The trial court directed tenants to deposit rent into the mother's bank account based on a contemporaneous MOU. The High Court found the MOU valid and found merit in the injunction to prevent misutilization of funds.

What did the court decide?

The appeal challenging the injunction order was dismissed; the order directing tenants to deposit rent into the respondent's account was upheld.

K Mohammed Younus Vs Shazama Sultana — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:26743 MFA No. 3796 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO. 3796 OF 2023 (CPC)

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BETWEEN:

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K. MOHAMMED YOUNUS AGED ABOUT 45 YEARS, S/O. K. KHALEEL AHAMED RESIDING AT FLAT NO, 610 NO.232/1, SYCON CRESSIDA, HORAMAVU, DODDA BANASWADI POST, BANGALORE-560 043.

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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TANVEER PASHA K., S/O. K. KHALEEL AHAMED AGED ABOUT 42 YEARS RESIDING AT NO. KV 621, HANIFIYA MASJID ROAD, KUSHAL NAGAR, 8^TH CROSS BANGALORE - 560 045.

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ZAKIR HUSSAIN K., S/O. K. KHALEEL AHAMED AGED ABOUT 40 YEARS RESIDING AT FLAT NO. G-01, NO.232/1, SYCON CRESSIDA, HORAMAVU, DODDA BANASWADI POST, BANGALORE - 560 043.

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K. MOHAMMED JAFFAR S/O. K. KHALEEL AHAMED AGED ABOUT 38 YEARS, RESIDING AT FLAT NO. 202, NO.232/1, SYCON CRESSIDA,

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NC: 2023:KHC:26743 MFA No. 3796 of 2023

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HORAMAVU, DODDA BANASWADI POST, BANGALORE - 560 043.

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MOHAMMED HABEEB K., S/O. K. KHALEEL AHAMED AGED ABOUT 31 YEARS, RESIDING AT FLAT NO. G-06, NO.232/1, SYCON CRESSIDA, HORAMAVU, DODDA BANASWADI POST, BANGALORE - 560 043.

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…APPELLANTS

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(BY SRI SAMPAT ANAND SHETTY, ADVOCATE)

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AND:

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SHAZAMA SULTANA W/O. LATE KHALEEL AHMED AGED ABOUT 62 YEARS, RESIDING AT FLAT NO.708, SYCON CRESSIDA, HORAMAVU ROAD, NEXT TO K. COMPLEX, BANGALORE - 560 043.

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ABDUL KHADAR S/O. K. KHALEEL AHAMED AGED ABOUT 36 YEARS, RESIDING AT FLAT NO. 708, NO.232/1, SYCON CRESSIDA, HORAMAVU, DODDA BANASWADI POST, BANGALORE - 560 043.

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WALARAM MAJOR, PROP. SURAJ MINI MARKET, SHOP NO.1 AND 2, GROUND FLOOR, K. COMPLEX, HORAMAVU MAIN ROAD, BANGALORE - 560 043.

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YOGANAND JOHN MAJOR,

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GLOBAL MISSION TEAKWOOD ACADEMY (KARATE TRAINING INSTITUTE), 3^RD FLOOR, K. COMPLEX, HORAMAVU MAIN ROAD, BANGALORE - 560 043.

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PRADEEP KUMAR MAJOR, PROP. DIGITAL STUDIO, SHOP NO.14, FIRST FLOOR, K. COMPLEX, HORAMAVU MAIN ROAD, BANGALORE-560 043.

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AKHIL MAJOR, PROP. DTDC COURIER SERVICES SHOP NO. 11, FIRST FLOOR, K. COMPLEX, HORAMAVU MAIN ROAD, BANGALORE - 560 043.

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RAMESH G. MAJOR, PROP. EXPERT OPTICALS, SHOP NO.9, GROUND FLOOR, K. COMPLEX, HORAMAVU MAIN ROAD, BANGALORE - 560 043.

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K. CHANDRAKANTH MAJOR, PROP. S.R. BAKERY AND SWEETS, SHOP NO.7 AND 8, GROUND FLOOR, K. COMPLEX, HORAMAVU MAIN ROAD, BANGALORE - 560 043.

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RANCHHODARAM MAJOR, PROP. MAHADEV FANCY AND GIFT GARDEN, SHOP. NO. 6, GROUND FLOOR,

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NC: 2023:KHC:26743 MFA No. 3796 of 2023

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K. COMPLEX, HORAMAVU MAIN ROAD, BANGALORE - 560 043.

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PRAKASH MAJOR PROP. PRAKASH HARDWARE, SHOP NO. 3 AND 4, GROUND FLOOR, K. COMPLEX, HORAMAVU MAIN ROAD, BANGALORE - 560 043

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M.H. NAGARAJU MAJOR, PROP. SLR DRIVING SCHOOL, SHOP NO.12 AND 13 (OLD NOS. 14 AND 15), 1^ST FLOOR, K. COMPLEX, HORAMAVU MAIN ROAD, BANGALORE - 560 043.

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GORAMMA MAJOR, PROPRIETRIX, PROFESSIONAL MEN’S SALOON, SHOP NO.15 AND 16 (OLD NOS. 6 AND 7), FIRST FLOOR, K. COMPLEX, HORAMAVU MAIN ROAD, BANGALORE - 560 043.

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HARI PRASAD MAJOR, ADVOCATE, SHOP NO. 14, FIRST FLOOR, K. COMPLEX, HORAMAVU MAIN ROAD, BANGALORE - 560 043.

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…RESPONDENTS

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(BY SMT. SYEDA SHEHNAZ, ADVOCATE FOR SRI BALAKRISHNA V., ADVOCATE FOR R1; SRI K.NARAYAN SWAMY, ADVOCATE FOR R2; SRI SHIVA PRASAD GANTE, ADVOCATE FOR R3 TO R13)

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NC: 2023:KHC:26743 MFA No. 3796 of 2023

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THIS MFA IS FILED U/O. 43 RULE 1(r) R/W. SECTION 151 OF CPC, AGAINST THE ORDER DATED 22.05.2023 PASSED ON I.A.NO.1/2023 IN O.S.NO.863/2023 ON THE FILE OF THE LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, CCH-53, ALLOWING THE I.A.NO.1/2023 FILED UNDER ORDER 39, RULE 1 AND 2 R/W. SECTION 151 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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This matter was heard in part earlier and today, I have heard the learned counsel for the appellants and learned counsel for the respondents.

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This appeal is filed challenging the order dated 22.05.2023 passed on I.A.NO.1/2023 in O.S.No.863/2023 passed by the Trial Court in granting an order of injunction against the appellants by allowing the application filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C. directing the tenants, who have been arrayed as defendant Nos.7 to 17 to deposit the rent pertaining to their tenements in the suit schedule property to the savings back account of the plaintiff namely, Mrs. Shazaman Sultana bearing Account No.1262500100438901 from the date of the order and while

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NC: 2023:KHC:26743 MFA No. 3796 of 2023

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passing the order, it was also made clear that the amount deposited by the tenants to the plaintiff’s bank account is subject to other terms and conditions of the Memorandum of Understanding (‘MOU’ for short) dated 13.06.2019.

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The main contention of the respondent No.1plaintiff before the Trial Court is that the property belongs to her and she executed the gift deed in favour of her children i.e., defendant Nos.1 to 3 on 13.06.2019 and the same is executed in good faith that the sons will comply with the terms and conditions of the MOU, since on the date of the execution of the gift deed, a MOU was also entered into between the parties with the conditions, wherein a specific averment is made that the rents which have been collected by the tenants have to be transferred to the account of the plaintiff and they failed to comply with the terms and conditions of MOU and since they failed to deposit the rent to the plaintiff’s account as agreed, there is a clear violation of the terms and condition of MOU dated 13.06.2019 and sought for declaration that the gift deed dated 13.06.2019 be revoked and direct the defendant Nos.7 to 17 to deposit the rent to the plaintiff’s bank account and also sought for the relief of temporary injunction, wherein

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NC: 2023:KHC:26743 MFA No. 3796 of 2023

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prayed the Court to direct the tenants to deposit the rent and reiterated the averments of the plaint in the application. In support of the application, an affidavit is sworn to reiterating the grounds of the plaint and contend that there is a clear violation of terms and conditions of the MOU.

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The defendant Nos.1 to 4 and 6 have filed the objection statement contending that the very suit itself is not maintainable. It is contended that, 17 guntas of land in Sy.No.124/2 totally measuring 2 acres, 22 guntas of land was gifted to husband of plaintiff by late Khaja Ahmed @ Basha. The khatha of the said property was changed in the name of husband of the plaintiff namely, Khaja Ahmed @ Basha. He has got converted the suit schedule property for residential purpose by obtaining the order from competent authority on 09.12.2009 and he was collecting rents and maintaining all the household expenses and he became sick and he was unable to look after the property. The defendant No.5 has demanded for his share. At the instigation of defendant No.5, husband of plaintiff has transferred the suit schedule property by way of Hiba to plaintiff on 23.03.2010 under registered gift deed. After execution of the gift deed, the defendant No.5 tried to

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transfer the suit property in his name from the name of plaintiff. After defendant Nos.1, 4 and 6 coming to know about said illegal acts of defendant No.5, have sought for intervention of relatives of their father.

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It is also contended that under the intervention and instructions of relatives of the father of defendant Nos.1 to 6, the property has been divided into equal share between the plaintiff and defendant Nos.1 to 6 and registered gift deed was executed on 13.06.2019 by the plaintiff. It is also contended that plaintiff and defendant No.5 were unhappy from that time and defendant No.5 started to demand more share in the suit schedule property. The defendant No.5 started to make galata with the tenants and FIR also came to be registered. It is also the contention that as per the gift deed, the defendant Nos.1 to 4 and 6 changed khatha in their names and they have pledged their representative shares with the financier and they have borrowed loan of Rs.50 lakhs to renovate the suit schedule property and they have spent more than Rs.80 lakhs for said renovation. It is further contended that the plaintiff and defendant No.5 have not shown any interest for any development of suit property. The defendant Nos.2 and 6 have

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opened joint account in HDFC Bank bearing No.50100294638116 at Horamavu Branch, all the tenants are transferring the rents to the said account. The defendant Nos.1 to 4 and 6 are managing the said account and they are jointly paying loans and spending some amount for other household expenses. It is also contended that defendant Nos.1 to 4 and 6 paying Rs.3,28,000/- to various lenders from the income of rent and from their personal income. The plaintiff and defendant No.5 are taking benefit, but they are not joining their hands for maintenance or repayments.

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The Trial Court, having considered the pleadings of the parties, formulated the points whether the plaintiff proves that she is entitled for the relief sought in I.A.No.1/2023, whether the plaintiff proves that the balance of convenience lies in her favour and whether the plaintiff proves that she would be put to irreparable hardship, injury and loss, if the interim injunction order is not granted.

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The Trial Court, having considered the pleadings in

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the application, the statement of objections, the gift deed dated 13.06.2019 and also considering the fact that the plaintiff in

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the plaint contended that on the very same day i.e., on 13.06.2019, a MOU also came into existence and claim that in terms of the said MOU, even though the sons are having right

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to collect the rent, they have to transfer the rents to the account of the mother. Hence, considering the gift deed and also the relief sought in the plaint i.e., for a declaration to revoke the gift deed and also considering the averments made in the MOU, comes to the conclusion that the plaintiff has made out a prima facie case and balance of convenience lies in her favour and if an order of injunction is not granted, the plaintiff would be put to hardship and irreparable loss. Hence, granted the relief directing the defendant Nos.7 to 17 to pay the rent and also comes to the conclusion that, if the interim order of injunction as prayed for by the plaintiff is not granted, the tenants of the suit schedule property will go on depositing the rentals in the bank account of defendant No.1. If the same is permitted, there is a possibility of misusing the rental amount by the defendant Nos.1 to 6 and if the interim order is not granted, it will defeat the rights of the plaintiff under the MOU to receive the rentals of the suit schedule property. Being

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NC: 2023:KHC:26743 MFA No. 3796 of 2023

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aggrieved by the said order, the present appeal is filed before this Court.

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Learned counsel for the appellants would vehemently contend that the very execution of the MOU dated 13.06.2019 which is produced as plaint Annexure-E is not a registered document and as such, the same cannot override the absolute convenience made by the plaintiff in favour of the appellants by means of the said registered gift deed. In other words, the alleged non-compliance of condition stipulated in the said MOU would not confer any right on the plaintiff to revoke the registered gift deed executed by her in favaour of the appellants on the very same day. The counsel also would vehemently contend that the aforesaid MOU relied upon by the plaintiff evidently is a created document inasmuch as there is insertion of account number on the copy of the document. The counsel, in support of his argument, placed the true copy of MOU as document No.3, wherein account number is mentioned and also placed Notarized copy of the MOU as document No.4, wherein no account number is mentioned and also placed the original documents before this Court, wherein no such mentioning of the account number is found.

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The counsel would vehemently contend that, in view of the execution of the gift deed, tenants are making payment in favour of the appellants. The counsel also would vehemently contend that some of the tenancy is also renewed subsequent to the execution of the gift deed and the appellants are also paying the housing loan and car loan from out of the account maintained by the defendant No.2 in the HDFC Bank till April, 2023 and the Trial Court not considered the same, even though all the details were given before the Trial Court while considering the application filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C. The counsel also brought to notice of this Court document No.7 i.e., statement of account maintained in Karnataka Bank, wherein periodically the payments are made in favour of the plaintiff. The counsel would vehemently contend that the very approach of the Trial is erroneous and the gift deed executed is a registered document and there is no recital in the gift deed as to the revocation and the same is not a conditional gift deed. Hence, the order passed by the Trial Court requires to be set aside.

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Per contra, learned counsel for the respondents

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would vehemently contend that the amount of rent collected is

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Rs.3,50,000/- per month and almost 49 months have elapsed and it amounts to Rs.1,71,00,000/-. But, in terms of the grounds urged in the appeal memo, it is specifically pleaded that an amount of Rs.16 lakhs was paid and the Court has to take note of the amount of Rs.1,71,00,000/- but, only Rs.16 lakhs is admitted by them in Para No.7 of their own appeal memorandum. The counsel also would vehemently contend that though the appellants deny the very execution of MOU, the same came into existence on 13.06.2019 itself i.e., on the date of execution of the gift deed and the same also to be considered. It is also contended that the MOU contains the signature of the appellants as well and when conditions are imposed in the MOU with regard to the receipt and payment of rents, the same has to be transferred to the account of the mother and the very appellants, who are none other than the sons of the respondent No.1-mother, not complied with the conditions of the MOU and they are making their selfenrichment by collecting the rents. The counsel also would vehemently contend that the other son also filed a memo stating that he is not having any objection to transfer the amount in terms of the MOU and now, the counsel for the

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NC: 2023:KHC:26743 MFA No. 3796 of 2023

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appellants has filed the affidavit bringing the details of the other properties and flat numbers and the same is not the issue herein and now the only issue is with regard to the execution of the gift deed and seeking the relief of declaration to revoke the gift deed.

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In reply to the arguments of the learned counsel for the respondents, learned counsel for the appellants would submit that, on the last occasion, the memo was filed stating that the gift deed came into existence only in duress and hence, additional affidavit is filed before the Court to substantiate that the same is not executed under duress and no such condition was imposed while executing the gift deed. Hence, it requires interference of this Court to set aside the order passed by the Trial Court.

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Having heard the learned counsel for the appellants and learned counsel for the respondents and the very contentions urged in the appeal as well as the oral submissions of the respective counsel, the points that would arise for consideration of this Court are:

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(1) Whether the Trial Court has committed an error in allowing the application filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C. in directing the tenants i.e., defendant Nos.7 to 17 to deposit the rent and whether it requires interference of this Court?

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(2) What order?

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Point No.(1)

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Having heard the respective counsel and also on perusal of the averments made in the plaint, the prayer made is for a declaration to revoke the registered gift deed dated 13.06.2019 and relief is also sought for a direction to the defendant Nos.7 to 17 to deposit the rent to the bank account of the plaintiff. The learned counsel for the appellants would contend that the granting of relief by the Trial Court nothing but a mandatory injunction as sought in prayer (b) of the plaint and the Trial Court ought not to have granted the interim-relief, since the registered document of gift deed is not a conditional gift deed. The contention of the respondents is that, as on the date of execution of the gift deed i.e., on 13.06.2019, a document of MOU also came into existence and in terms of the MOU, a clause is made that the first parties has to declare that

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the second parties shall be liable to receive all the benefits and rentals which arise from the building till their will and wish and C.K. Mohammed Younus, shall be sole responsible to interact with tenant of the building and no other brothers shall interfere with the building occupants and the rental shall be transferred to one particular account. But, there are two documents produced before the Court by the learned counsel for the appellants and one bears the account with IFSC code and the other one is blank. Learned counsel for the appellants also placed the true copy of document of MOU and also notarized copy of MOU, but in the original document, no account number is mentioned and the same is blank. But, on perusal of the documents, it is seen that all the parties have signed the documents as first parties and second parties, including the plaintiff and another son and the same consists the signature of the plaintiff and the husband of the plaintiff as second parties and the children are the first parties in the said document.

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Learned counsel for the appellants would vehemently contend that no such document of MOU came into existence and the document is not a registered document. But, the original is placed before the Court which evidences the fact

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that on the day of execution of the gift deed, a document of MOU also came into existence which contains the signature of all the parties and prima facie, right is given to the mother as well as the father for collecting the rents and the appellant No.1 is given right to interact with the tenants of the building and no other brothers shall interfere with the building occupants and the rentals shall be transferred to one particular account. Now, it is the contention of the respondent No.1 that rents are not transferred. However, learned counsel for the appellants brought to notice of this Court document No.7-statement of bank account that some of the amounts are transferred to the respondent No.1-mother. Learned counsel for the respondents disputes that the same is a separate account created by themselves, but in the order passed by the Trial Court, the Court directed the defendant Nos.7 to 17 to deposit the rent from the date of the order and whether the earlier amount is paid to the plaintiff by the appellants or not has to considered at the time of considering the matter on merits, since the appellants have relied upon the document No.7 for having made the payment and the direction given by the Trial Court is

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to the tenants to deposit the rent and transfer the same to the account of the mother in terms of the MOU.

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No doubt, the said document is denied by the appellants, on the very same day of execution of the gift deed, the document of MOU came into existence and in the gift deed, no condition was imposed with regard to the payment of rent. But, on perusal of the document, with regard to the rentals is concerned, the right is given to the respondent No.1/plaintiff and her husband to receive the same and very contention of the plaintiff is also that terms and conditions of the MOU was not acted upon though, the very MOU was placed before the Trial Court. No doubt, there is a discrepancy in mentioning the account number and when the terms and conditions of the MOU are very clear that amount has to be transferred to the account of the mother and bank loans are also in the name of the mother, including the car loan as admitted by the appellants and appellants also contend that they are making arrangement for clearing loan, when such averment is made by the appellants and the document of MOU came into existence on the very same day of execution of the gift deed on 13.06.2019 and also the plaintiff in the plaint sought for the relief of

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declaration to revoke the gift deed, the same also to be considered after trial and conclusion of the evidence and arguments of respective parties. Hence, the Trial Court rightly comes to the conclusion that there is a prima facie case in favour of the plaintiff in view of the MOU which came into existence on the very same day between the parties of the gift deed and all of them have signed the same. Even though the appellants dispute the same, the same has to be considered while considering the matter on merits.

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Having considered the prima facie case and balance of convenience in favour of the respondent No.1-plaintiff, the Trial Court comes to the conclusion that, if the injunction is not granted, there are chances of misutilization of rentals amount collected by the appellants. Hence, I do not find any merit in the appeal to set aside the order directing the defendant Nos.7 to 17 to deposit the rent in the account of the respondent No.1mother. Therefore, there is no merit in the appeal to interfere with the findings of the Trial Court to reverse the same. Accordingly, I answer point No.(1) as ‘negative’.

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NC: 2023:KHC:26743 MFA No. 3796 of 2023

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Point No.(2)

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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Sd/JUDGE

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ST List No.: 1 Sl No.: 40

K Mohammed Younus v. Shazama Sultana

Case brief

What is this about?

What did the court decide?

K Mohammed Younus v. Shazama Sultana

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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