Dismissed

Sri. G. Lakshman Singh v. Kum. Neha @ Rakshita

Karnataka HC13 Sept 2023WP/3449/2016

Case brief

AI extract

What is this about?

A writ petition challenging an execution order directing delivery of possession of a property was dismissed. However, the High Court granted the petitioner three months to vacate the premises subject to filing an affidavit and undertaking conditions regarding subletting and maintenance of the property.

What did the court decide?

Petitioner given three months to deliver vacant possession of the property subject to filing an affidavit, not subletting, and maintaining the property.

Sri. G. Lakshman Singh Vs Kum. Neha @ Rakshita — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:33220 WP No. 3449 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 3449 OF 2016 (GM-FC)

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BETWEEN:

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SRI. G. LAKSHMAN SINGH AGED ABOUT 75 YEARS, S/O LATE GANGARAM SINGH RESIDING AT NO.7/1, NANDANAVANA 'G' STREET, JOGUPALYA, ULSOOR, DIVISION NO.51, BANGALORE - 560 008.

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…PETITIONER

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(BY SRI. SUYOG HERELE E., ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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KUM. NEHA @ RAKSHITA AGED ABOUT 10 YEARS, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN SMT. SANDHYA D., AGED ABOUT 29 YEARS, W/O SHASHIDHARA HOLLA BALEKUDRU, R/O NO. 231, 2^ND CROSS, CAMBRIDGE LAYOUT, ULSOOR, BANGALORE - 560 008. REPRESENTED BY HER GPA HOLDER SRI. B.A.VASUDEVA, S/O LATE B.S.ASHWATHANARAYAN RAO, AGED ABOUT 52 YEARS, R/O NO.364, 1^ST FLOOR, 5^TH MAIN, R.P.C.LAYOUT, VIJAYANAGAR, 2^ND STAGE, BANGALORE - 560 040

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SRI. L. LOHITH SINGH AGED ABOUT 34 YEARS, S/O LAKSHMAN SINGH,

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NC: 2023:KHC:33220 WP No. 3449 of 2016

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RESIDING AT AS PER EXECUTION PETITION NO.7/1, NANDANAVANA 'G' STREET, JOGUPALYA, ULSOOR, DIVISION NO.51, BANGALORE-560 008.

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…RESPONDENTS

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(BY SRI. B.N.MAHESH CHANDRA, ADVOCATE FOR SRI. MOHAN BHAT, ADVOCATE FOR RESPONDENT NO.1;

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NOTICE SERVED ON RESPONDENT NO.2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 19.01.2016 PASSED ON I.A.NO.2 IN EXECUTION CASE NO.125/2015 ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT AT BANGALORE AT ANNEXURE-A AND ALL FURTHER PROCEEDINGS IN EXECUTION CASE NO.125/2015 ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT AT BANGALORE AT ANNEXURE-A.

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

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ORDER

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The petitioner has called in question the correctness of an order dated 19.01.2016 passed by the II Additional Principal Judge, Family Court, Bengaluru (henceforth referred to as 'executing Court') in Execution Case No.125/2015 by which, an application filed in I.A.No.2 was allowed and the possession of the property was ordered to be delivered with police help.

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Briefly stated the facts are that the property bearing No.7/1 (Old No.7) situate at Nandanavanam, G-Street, Jogupalya, Halasur, Bengaluru was owned and possessed by

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3 - NC: 2023:KHC:33220 WP No. 3449 of 2016

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the wife of the petitioner, Smt. Janaki Bai, who had purchased it in terms of a sale deed dated 09.03.1994. The respondent No.2 herein is the son of the petitioner and Smt. Janaki Bai. The respondent No.2 filed M.C.No.754/2007 for dissolution of marriage, while his wife filed a petition for restitution of conjugal rights in M.C.No.1770/2007. Both the petitions were referred to mediation. At the mediation, the wife of the petitioner herein Smt. Janaki Bai offered to gift the schedule property to her granddaughter/respondent No.1 herein so as to bring about a settlement between the respondent No.2 and his wife. Consequently, Smt. Janaki Bai executed a gift deed dated 19.08.2008 in favour of the respondent No.1 herein. As per the terms of the understanding, Smt. Janaki Bai was entitled to reside in the property till her death and in the event, she predeceased her husband/petitioner herein, he was entitled to stay in the house for a period of one year from the date of death of Smt. Janaki Bai. It is stated that Smt. Janaki Bai died on 06.07.2014 and as per the settlement, the petitioner was entitled to stay in the property in question till 05.07.2015. The respondent No.1 after the expiry of the time provided for the stay of the petitioner, filed Execution Case No.125/2015. The

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4 - NC: 2023:KHC:33220 WP No. 3449 of 2016

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petitioner herein filed O.S.No.5846/2015 before the XI Additional City Civil Judge, Bangalore City for perpetual injunction against Sri. H. Dwarakanath and Smt. D. Sandhya i.e., father-in-law and wife of respondent No.2 herein against dispossessing him from the house and that the said suit is now dismissed. The executing Court in terms of an order dated 19.01.2016 directed the delivery of possession of the property with police help.

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The petitioner who claimed that he is residing in the

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property, has filed this petition challenging the order dated 19.01.2016 passed by the executing Court.

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The learned counsel for the petitioner submitted that the property in question was in fact purchased by the petitioner in the name of his wife Smt. Janaki Bai and that his wife therefore was only an ostensible owner of the property, while the petitioner was real owner. Therefore, he contended that the petitioner was entitled to reside in the premises notwithstanding the gift deed executed by his wife Smt. Janaki Bai in favour of the respondent No.1 herein. He therefore, submitted that the petitioner had an independent right in

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NC: 2023:KHC:33220 WP No. 3449 of 2016

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respect of property in question and the executing Court without resorting to Order XXI Rule 97 of CPC cannot direct delivery of the property to the respondent No.1.

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Per contra, the learned counsel for the respondent

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No.1 submitted that the respondent No.1 is merely enforcing the order passed in M.C.No.754/2007 and M.C.No.1770/2007 by virtue of which, Smt. Janaki Bai had undertaken to handover the possession of the property belonging to her as per the settlement to dissolve the marriage between the respondent No.2 and his wife. He submitted that Smt. Janaki Bai died on 06.07.2014 and the petitioner was entitled to reside in the premises till 05.07.2015 and thereafter, respondent No.1 was entitled to recover the possession of the petitioner through the due process of law. He submitted that the executing Court has therefore, rightly directed the delivery of the possession of the property to the respondent No.1.

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I have considered the submissions made by the learned counsel for the petitioner as well as the learned counsel for the respondent No.1. I have also perused the material placed on record.

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NC: 2023:KHC:33220 WP No. 3449 of 2016

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It is not in dispute that the respondent No.2 and his wife Smt. D. Sandhya had locked horns in M.C.No.754/2007 and M.C.No.1770/2007 before the Family Court, Bengaluru. It is also not in dispute that the said marital dispute was settled between them in terms of a settlement filed before the Court on 02.07.2008. According to the said settlement, mother of the respondent No.2 had agreed to convey the property belonging to her to respondent No.1 herein. Following the settlement, the mother of the respondent No.2 had executed a deed of gift dated 19.08.2008 in favour of the respondent No.1. The petitioner who was entitled to reside in the said house for a period of one year in the event of his wife Smt. Janaki Bai predeceasing him, did not vacate the premises even after the expiry of one year, which prompted the respondent No.1 to file execution petition to recover the possession of the property. The executing Court therefore, merely executed the settlement entered into between the parties and directed the possession of the property to be delivered to the respondent No.1 with police help. The contention of the learned counsel for the petitioner that the property was ostensibly owned by Smt. Janaki Bai and that he was the real owner, cannot be urged in the execution

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NC: 2023:KHC:33220 WP No. 3449 of 2016

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petition as he was not a party to the proceedings in M.C.No.754/2007 and M.C.No.1770/2007. It is for the petitioner to establish the said claim before the competent Court of law. He cannot stop the execution of the decree granted by the Family Court on that ground.

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In that view of the matter, this petition is dismissed . However, the petitioner is granted three months time from today to quit and deliver vacant possession of the property to the respondent No.1 which shall however be subject to following conditions:-

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1. The petitioner shall file an affidavit within ten days from today stating that he shall quit and deliver vacant possession of the property to the respondent No.1 within three months from today.

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1. The petitioner shall undertake that he shall not underlet or sublet any person into the premises or any portion thereof.

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1. The petitioner shall not damage or destroy the standing structures in the property and shall keep it in a habitable condition.

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NC: 2023:KHC:33220 WP No. 3449 of 2016

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List this petition for filing an affidavit on 22.09.2023.

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Sd/JUDGE

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PMR

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List No.: 1 Sl No.: 13

Sri. G. Lakshman Singh v. Kum. Neha @ Rakshita

Case brief

What is this about?

What did the court decide?

Sri. G. Lakshman Singh v. Kum. Neha @ Rakshita

Case brief

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What did the court decide?

What the court decided

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