Partly allowed

Smt. Sandya v. Smt Kalleswari @ Kalamma

Karnataka HC5 Apr 2023WP/33258/2016

Case brief

AI extract

What is this about?

In this writ petition under Article 227, the High Court modified the lower court's order directing the petitioner to deposit rents for respondents' properties. The Court fixed a monthly payment of Rs. 75,000 and directed arrears of Rs. 8,00,000, subject to pending enquiry on mesne profits and final partition adjudication.

What did the court decide?

Petitioner directed to pay Rs. 75,000/month effective 01.04.2023 and Rs. 8,00,000 arrears by 31.07.2023, subject to final adjudication.

Smt. Sandya Vs Smt Kalleswari @ Kalamma — Property and Title | Karnataka HC (2023)

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WP No. 33258 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF APRIL, 2023

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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. 33258 OF 2016 (GM-CPC)

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BETWEEN:

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SMT. SANDYA W/O SHRI SURESH, AGED 40 YEARS, R/AT NO. 775 (NEAR BUSSTAND) YELAHANKA BANGALORE - 560 064

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…PETITIONER

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(BY SRI. BHANUPRAKASH, ADVOCATE A/W SRI. ADITYA BHAT, ADVOCATE) AND:

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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SMT KALLESWARI @ KALAMMA W/O LATE SRI Y R RAJESH, AGE: 36 YEARS, R/AT NO. 627, 3RD CROSS, MAHALAKSHMI BUS STOP BANGALORE - 560 086.

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KUM. BHUVANESHWARI D/O LATE SRI Y R RAJESH, AGE: 9 YEARS, MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN SMT. KALLESWARI @ KALAMMA

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WP No. 33258 of 2016

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R/AT NO. 627, 3RD CROSS, MAHALAKSHMI BUS STOP, BANGALORE - 560 086.

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3 M/S PYRAMID DEVELOPERS PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 71/1/,71/2 AYYAPPA TEMPLE ROAD BESIDE L&T FACTORY BYATARAYANAPURA BANGALORE - 90 REPRESENTED BY ITS MANAGING PARTNER

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KRISHANAPPA SHOP NO. 1, OPP RAITHARA SANTHE CHIKKAVEERAPPA GARDEN

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JAKKUR ROAD, YELAHANKA OLD TOWN BANGALORE NORTH TALUK.

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SRI. KUMAR, SHOP NO. 2 OPP RAITHARA SANTHE CHIKKAVEERAPPA GARDEN JAKKUR ROAD YELAHANKA OLD TOWN BANGALORE NORTH TALUK

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SRI RAMAIAH SHOP NO. 4-6, OPP RAITHARA SANTHE CHIKKAVEERAPPA GARDEN JAKKUR ROAD, YELAHANKA OLD TOWN BANGALORE NORTH TALUK.

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SRI. BABU, SHOP NO. 7, OPP RAITHARA SANTHE CHIKKAVEERAPPA GARDEN JAKKUR ROAD YELAHANKA OLD TOWN BANGALORE NORTH TALUK.

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WP No. 33258 of 2016

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SRI. MANI

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SHOP NO. 9, OPP RAITHARA SANTHE CHIKKAVEERAPPA GARDEN JAKKUR RAOD, YELAHANKA OLD TOWN BANGALORE NORTH TALUK

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SRI PRAVEEN, SHOP NO. 9 & 10 , OPP RAITHARA SANTHE CHIKKAVEERAPPA GARDEN JAKKUR ROAD, YELAHANKA OLD TOWN BANGALORE NORTH TALUK.

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10 SRI. NAGARAJ

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SHOP NO.11, OPP RAITHARA SANTHE CHIKKAVEERAPPA GARDEN JAKKUR ROAD, YELAHANKA OLD TOWN BANGLAORE NORTH TALUK.

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SRI. KESHI

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SHOOP NO. 12, OPP RAITHARA SANTHE CHIKKAVEERAPPA GARDEN

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JAKKUR ROAD, YELAHANKA OLDE TOWN BANGALORE NORTH TALUK.

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SRI. RAJU SHOP NO. 13, OPP RAITHARA SANTHE CHIKKAVEERAPPA GARDEN JAKKUR ROAD, YELAHANKA OLD TOWN BANGALORE NORTH TALUK.

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…RESPONDENTS

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(VIDE ORDER DATED 30.06.2016 NOTICE TO R3 TO R13 ARE DISPENSED WITH; SRI. M.G. GHORPADE SHEREGAR, ADVOCATE FOR R1 AND R2)

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WP No. 33258 of 2016

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS IN O.S.3370/2011 PENDING BEFORE THE XXX ADDL. CITY CIVIL JUDGE, BANGALORE CITY; QUASH THE ORDER DATED 15.04.2016 IN I.A.17 UNDER SEC. 151 OF CPC IN O.S.3370/2011 PASSED BY THE XXX ADDL. CITY CIVIL JUDGE, BANGALORE CITY VIDE ANNEX-A.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is by the second defendant in O.S. No.3370/2011 on the file of the XXX Additional City Civil Judge, Bengaluru [for short, 'the civil Court' ]. The petitioner has impugned the civil Court's order dated 15.04.2016, and the civil Court by this order has rejected the petitioner's application [I.A. No.17] under Section 151 of the Code of Civil Procedure, 1908 [for short, 'the CPC' ] in the following terms:

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"Defendant No.2 is hereby directed to deposit the rent amount of Rs.65,000/p.m. from 13 shops existed in property No.384, Rs.10,000/- p.m. from the first floor of house No.254/775, Rs.50,000/p.m. from house No.164 and Rs.25,000/-

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each p.m. in 18 flats of property No.109/1/B, to a tune of Rs.4,50,000/and Rs.35,000/- p.m. from shop in the same property in all Rs.6,10,000/- p.m. from the date of suit till disposal of the suit on merit.

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The defendant No.2 is hereby directed to deposit arrears of rent of the top noted properties from the date of the suit till this date within two months from the date of this order."

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The first and second respondents have filed their suit in O.S. No.3370/2011 against the petitioner and certain others contending that Sri Channabasappa is the propositus of the family and on his demise, his wife and two sons succeeded to his estate. One of his sons viz., Y C Rajshekaraiah has died on 12.10.1998 leaving behind his only son, Sri. Y R Rajesh and his wife [the first defendant] and herself [his daughter]. Sri. Y R Rajesh has died on 08.06.2010 and on his demise, they would be entitled

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WP No. 33258 of 2016

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to half share in the different immovable properties mentioned in the plaint.

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These first and second respondents have listed about seventeen immovable properties in the schedule appended to the plaint. The petitioner has resisted the suit contending inter alia that the respondents have listed the properties which are not available and some of the properties have been described multiple times by giving different measurements and boundaries. The respondents have filed the subject application on 13.03.2015 for a direction to the petitioner to deposit into the Court every month the rents collected from different tenants who are in occupation of different immovable properties.

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The civil Court has allowed the application observing that the petitioner does not dispute the respondents' relationship. The civil Court has opined that the question whether the suit must be dismissed

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because of the law of limitation could be decided as part of final adjudication, and insofar as the Gift Deed dated 08.06.2010 relied upon by the petitioner, the civil Court has observed that the validity thereof will have to be examined in the light of the petitioner's case.

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Sri. Bhanuprakash, the learned counsel for the petitioner, relying upon the contents of the memo filed before this Court, had argued that the petitioner receives only a sum of Rs.3,10,000/- as monthly rentals and she incurs a sum of Rs.2,20,300/- out of this amount as monthly expenses, and as such, the petitioner therefore is left with only a sum of Rs.90,700/-. Sri. Bhanuprakash had also proposed to rely upon different material to submit that some of the properties are not rent fetching properties and the petitioner is incurring expenses towards maintenance, refurbishing and repairing of some of the immovable properties.

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Therefore, this Court must interfere with the impugned order.

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However, this Court on the previous occasion had called upon Sri. Bhanuprakash to respond to the respondents' request for some

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payment in the rentals received in the light of the fact that the petitioner cannot dispute the relationship with the respondents and the fact that the second respondent is a young girl pursuing studies. In response, Sri. Bhanuprakash submits that, subject to final decision in the suit and enquiry on mesne profits and without prejudice to her defense in the suit, the petitioner would pay a sum of Rs.50,000/every month and towards arrears that could be said to have accrued at this rate from the date of application, a sum of Rs.8,00,000/- would be paid initially.

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Sri. M G Ghorpade Sheregar, the learned counsel for the first and second respondents, submits

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that the properties that are listed in the plaint are commercial properties which fetch high commercial rentals and in the light of the undisputed relationship, this Court must grant reasonable amount so that the respondents, who face severe financial constraints, are able to sustain themselves.

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On a careful consideration of the submissions and on perusal of the records, this Court must opine that there are questions to be decided before it could be conclusively held that the respondents would be entitled for a definite sum even if it could be assumed that they would be entitled to a shre in the immovable properties because the relationship is disputed. The enquiry must encompass questions such as questions on the returns that the suit schedule properties fetch and the expenses that the petitioner incurs in maintaining these properties and defraying the taxes that have to be paid. With these questions pending,

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there cannot be any definite conclusion on the amount that the respondents would be entitled to. Sri. Bhanuprakash's submissions re examined in this backdrop.

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The petitioner has placed on record material to show that the monthly rental is in a sum of Rs.3,10,700/- seeking deduction of a sum of Rs.1,50,000/- as interest payable for the sum borrowed by the petitioner as a hand loan. If the petitioner's case as presented is accepted, deduction towards interest seems to be tenuous and cannot be accepted at this stage. The other expenses could be true but that requires to be examined as stated earlier in an enquiry. A sum of Rs.50,000/- as offered may not be appropriate and at this stge when enquiry is pending, it could be opined that just amount would be in a sum of Rs.75,000/-.

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For the same reason, the petitioner must be called upon to pay a sum of Rs.8,00,000/-

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WP No. 33258 of 2016

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towards arrears at the earliest to the respondents. These payments must be subject to final adjudication and the enquiry on mesne profits which must ensue if it is ultimately held that the respondents would be entitled for share in the properties that are available for partition inter se. Hence the following:

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ORDER

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[a] The petition is allowed, and the impugned order dated 15.04.2016 in O.S. No.3370/2011 on the file of the XXX Additional City Civil Judge, Bengaluru on the petitioner's application [I.A. No.17] under Section 151 of CPC is modified directing the petitioner to pay a sum of Rs.75,000/every month effective from 01.04.2023 until final decision in the suit.

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[b] The petitioner is also called upon to pay a sum of Rs.8,00,000/- to the respondents on or before 31.07.2023.

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The payment of the aforesaid amounts shall be subject to final adjudication and enquiry into mesne profits. The amounts so directed shall include a sum of Rs.2,50,000/for which instrument is handed over today as recorded in the daily order.

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[c] The parties shall also cooperate and assist with the civil Court in an expeditious disposal of the suit and such disposal shall be on or before 30.03.2024.

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[d] The monthly rentals as indicated above shall be deposited to the first respondent's account.

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Sd/JUDGE

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AN/-

Smt. Sandya v. Smt Kalleswari @ Kalamma

Case brief

What is this about?

What did the court decide?

Smt. Sandya v. Smt Kalleswari @ Kalamma

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

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Case details

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