Allowed

Mariyappa v. Sri Krishnappa

Karnataka HC4 Jul 2024MFA/2080/2024

Case brief

AI extract

What is this about?

KHC set aside a temporary injunction order in a partition suit. The court held the trial court erred by granting injunction despite clear evidence of defendants' exclusive possession via release deeds and partition, and failure to address plaintiffs' suppression of facts establishing family separation.

What did the court decide?

The impugned order of trial court allowing injunction is set aside; the injunction application filed by plaintiffs is rejected.

Mariyappa Vs Sri Krishnappa — Partition | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:25343 MFA No. 2080 of 2024

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF JULY, 2024 BEFORE

¶3

THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS FIRST APPEAL NO. 2080 OF 2024 (CPC)

¶4

BETWEEN:

¶5

1 . MARIYAPPA, S/O PERISWAMY,

¶6

AGED ABUT 82 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI,

¶7

BANGALORE EAST TALUK - 560049

¶8

2 . SMT PUTTAMMMA W/O MARIYAPPA

¶9

AGED ABUT 77 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049

¶10

3 . SRINIVAS M S/O MARYYAPPA,

¶11

Digitally signed by GEETHAKUMARI PARLATTAYA S

¶12

AGED ABUT 42 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST,

¶13

Location: High Court of Karnataka

¶14

BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049.

¶15

4 . SRI SUBRAMANI M S/O MARYYAPPA, AGED ABUT 40 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049.

¶16

5 . SRI ANANNDA M S/O MARYYAPPA,

¶17

¶18

NC: 2024:KHC:25343 MFA No. 2080 of 2024

¶19

AGED ABUT 37 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049.

¶20

6 . SRI KRISHNAPPA M S/O MARYYAPPA, AGED ABUT 31 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049.

¶21

7 . SRI KIRAN KUMAR S/O MARYYAPPA, AGED ABUT 29 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049.

¶22

…APPELLANTS

¶23

(BY SRI SATHISH S.K., ADVOCATE FOR SMT. JYOTHI S K., ADVOCATE) AND:

¶24

1 . SRI KRISHNAPPA S/O LATE GUNDAPPA, AGED ABOUT 61 YEARS, BELTHURU VILLAGE, BIDHARAHALLI HOBLI, BANGALORE EAST TALUK.

¶25

2 . SMT SUMITRA D/O MARIYAPPA, AGED ABOUT 41 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049.

¶26

3 . SMT CHINNAMMA D/O MARIYAPPA, AGED ABOUT 41 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST,

¶27

3 - NC: 2024:KHC:25343 MFA No. 2080 of 2024

¶28

BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049.

¶29

4 . SMT RAJAMMA D/O MARIYAPPA, AGED ABOUT 41 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049.

¶30

5 . SMT VEENA D/O MARIYAPPA, AGED ABOUT 35 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049.

¶31

6 . SMT SAROJAMMA D/O LATE PERISWAMY, AGED ABOUT 54 YEARS, R/AT NO. 61, BASAVESWARA NAGARA, NARASPURA KOLAR DISTRICT.

¶32

7 . JAYALAKSHMAMMA W/O LATE RAMAIH AGED ABOUT 60 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049

¶33

8 . JAYAMMA D/O LATE SUBRAMANI, AGED ABOUT 62 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049.

¶34

9 . ANANDH S/O LATE SUBRAMANI AGED ABOUT 40 YEARS,

¶35

4 - NC: 2024:KHC:25343 MFA No. 2080 of 2024

¶36

R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049.

¶37

10 . LAKSHMI D/O LATE SUBRAMANI, AGED ABOUT 37 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049

¶38

11 . SRI SRIRAM S/O LATE SUBRAMANI AGED ABOUT 35 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049

¶39

12 . SRI JAYALASHAMAMMA D/O LATE GUNDAPPA, AGED ABOUT 58 YEARS, R/AT DINNUR VILLAGE, KANNAMANGALA POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK - 560049

¶40

…RESPONDENTS

¶41

(BY SRI SRINATH P., ADVOCATE C/R1)

¶42

THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 06.01.2024 PASSED ON I.A. NO. 1 IN O.S.NO. 1259/2022 ON THE FILE OF THE VIII ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE I.A. NO.1 FILED UNDER ORDER XXXIX RULES 1 AND 2 DATED 13.06.2022.

¶43

THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶44

5 - NC: 2024:KHC:25343 MFA No. 2080 of 2024

¶45

JUDGMENT

¶46

Challenging order dated 06.01.2024 passed by VIII Addl.

¶47

Senior Civil Judge, Bengaluru Rural District, Bengaluru, in O.S.no.1259/2022 on I.A.no.1 filed under order XXXIX Rules 1 and 2 of CPC, this appeal is filed.

¶48

Sri Sathish S.K., learned counsel appearing for Smt.Jyothi S.K. learned counsel for appellants submitted, appeal was by defendants in suit filed for partition, separate possession and injunction against alienation of suit schedule properties, mesne profits etc. In said suit, plaintiffs had filed I.A.no.1 seeking for temporary injunction restraining defendants from alienating or creating any encumbrances over suit schedule properties pending disposal of suit. It was submitted, under impugned order, trial Court allowed I.A. on wholly untenable grounds and same was questioned herein.

¶49

It was submitted plaintiffs were grandsons of Sri Periswamy, who had 4 wives i.e. Smt.Yellamma, Smt.Chinnamma @ Chinnathayamma, Smt.Chinnamma and Smt.Annemma. Whereas, second wife and third wife had no issues, plaintiffs were from branch of first wife - Smt.Yellamma,

¶50

¶51

NC: 2024:KHC:25343 MFA No. 2080 of 2024

¶52

while defendant no.1 was son of Smt.Annemma; efendant no.2

¶53

was his wife and Defendants no.3 to 11 were their children.

¶54

At outset, it was submitted that though plaintiffs were guilty of suppressions and misrepresentation which disentitled them from any discretionary reliefs trial Court had without proper consideration granted injunction. Though, plaintiffs were seeking for partition of joint family properties, they had suppressed fact that Periswamy inherited only land bearing Sy.no.24/12 situated at Hoskote taluk, from his father, but same was not included in suit schedule properties. Further, plaintiffs’ father Gundappa, during lifetime of Periswamy had executed registered release deed dated 26.08.1959 in respect of Sy.no.24/12. Under said release deed Gundappa was granted Sy.no.436 and 147 measuring 30 guntas each. Neither of these properties are included in plaint schedule. In fact, Gundappa was in exclusive possession and enjoyment of said properties, sold Sy.no.147 in favour of K.Jaikumar Singh on 10.09.1967.

¶55

Likewise, other son Ramaiah also executed release deed in respect of Sy.no.24/12 in favour of Periswamy and got lands bearing Sy.no.31/2 (new Sy.no.48/4) measuring 39 guntas along with eucalyptus trees and house property, which

¶56

¶57

NC: 2024:KHC:25343 MFA No. 2080 of 2024

¶58

remained in his exclusive possession. Thus, Periswamy being absolute owner of suit properties, executed registered Will on 29.03.1967 in favour of defendant no.1 bequeathing suit properties. After his death defendant no.1 had become absolute owner and revenue records were mutated accordingly. Subsequently, on 20.07.2015 defendants no.1 to 12 had divided suit properties among themselves under registered deed of partition and were in exclusive possession and enjoyment of their respective shares.

¶59

It was further stated that Smt.Chinnamma had purchased Sy.no.454 of Annamari Doddakere of Hoskote. Since she was sister of Smt.Annemma mother of defendant no.1, out of natural love and affection she executed Will on 11.08.1973 bequeathing said property in favour of defendant no.1, while she was in sound disposing mind. It was further submitted plaintiffs had also suppressed fact that Gundappa and Ramaiah had sister by name Smt.Lakshmamma who was not arrayed as party to suit and therefore it was bad for non-joinder. Hence, suit was untenable.

¶60

It was submitted, execution of release deed by Gundappa and Ramaiah indicated their separation and there

¶61

¶62

NC: 2024:KHC:25343 MFA No. 2080 of 2024

¶63

was no existence of joint family. Though, documents produced by defendants corroborated above facts and indicated defendants being in settled and exclusive possession of suit properties, by merely observing whether properties were joint family properties or self-acquired properties would require fullfledged trial and same could not be adjudicated at interlocutory stage, trial Court had granted temporary injunction.

¶64

It was contended, plaintiffs had not included all joint family properties and suit for partial partition was not maintainable; had not challenged Will executed by Periswamy; partition between defendants under registered partition deed; revenue entries standing in name of defendants as well as delay in filing suit, impugned order was in any case wholly untenable and sought interference.

¶65

On other hand, Sri Srinath P., learned counsel for plaintiffs opposed appeal. Though, execution of release deed was not disputed, since release was only in respect of Sy.no.24/12, which was not included in suit schedule properties, contention based on release deed would not hold. Further, since there was no partition amongst joint family, sale by Gundappa would not come in way of plaintiffs seeking

¶66

¶67

NC: 2024:KHC:25343 MFA No. 2080 of 2024

¶68

partition. And since Smt.Annemma did not have any independent source of income, property purchased by her would also be joint family property. It was submitted, though defendants were relying upon Wills , they had to establish due execution of Wills during trial. Likewise, claim of defendant no.1 that item no.1 of suit properties was self-acquired would require to be established by evidence, as burden would lie on person claiming it to be self-acquired. Based on said observations, trial Court held points regarding prima facie case, balance of convenience and irreparable loss and injury, if injunction as sought for is refused in favour of plaintiffs. It was submitted, since order passed by trial Court was after recording due reasons based on material available on record, there was no scope for interference and sought dismissal of appeal.

¶69

Heard learned counsel and perused impugned order.

¶70

From above, it is seen that appeal is mainly on ground of perversity of conclusions and not non-consideration of documents. Hence point that would arise for consideration is:

¶71

“Whether impugned order suffers from untenability or perversity and calls for interference?”

¶72

10 -

¶73

NC: 2024:KHC:25343 MFA No. 2080 of 2024

¶74

This is an appeal against discretionary order passed by trial Court under Order XXXIX Rules 1 and 2 of CPC on I.A.no.1. As per decision of Hon'ble Supreme Court in Mohd.

¶75

Mehtab Ibrahim Khan v. Khushnuma Ibrahim Khan ,

¶76

reported in 2013 (9) SCC 221 , scope for interference in appeal against discretionary order would be limited, unless it were untenable or suffered from perversity etc. It is clarified even if view taken by trial Court on available material were to be one of possible views, there could be no interference.

¶77

From impugned order, it reveals that trial Court while passing impugned order, adverted to contentions of parties, framed necessary points for consideration and assigned reasons.

¶78

Perusal of plaint reveals that there is no pleading regarding execution of release deed by plaintiff's father Gundappa on 26.08.1959. Plaintiff has also not included properties given to plaintiff's father under said deed. Defendant has specifically asserted about execution of release deed by plaintiff's father-Gundappa and his brother-Ramaiah on 26.08.1959. Producing copy of release deed, it was asserted, Gundappa got two properties bearing Sy.nos.436 and 147 of

¶79

11 -

¶80

NC: 2024:KHC:25343 MFA No. 2080 of 2024

¶81

Kannamangala, Hosakote, under said release deed and thereafter he had sold Sy.no.147 on 10.09.1962 independently. After referring to same, trial Court proceeds to hold that same would require trial and until then it was required to preserve properties by order of temporary injunction against alienation.

¶82

It is settled legal position that conduct parties would also be one of important factors while granting injunctions. When defendant has taken specific plea about plaintiffs being guilty of suppression and misrepresentation and also produces material to substantiate same, it would be incumbent upon Court to duly consider it. Observations that, it would be matter for trial amount to brushing aside substantial contention and as such, there would be failure to consider material on record rendering finding untenable.

¶83

Apart from same, defendants not only pleaded that after execution of release deed, name of Periswamy - grandfather of plaintiffs was entered in RoRs and he had executed registered Will on 29.03.1967, bequeathing properties to defendant no.1 and there was partition amongst defendants in respect of suit properties on 20.07.2015, but also

¶84

12 -

¶85

NC: 2024:KHC:25343 MFA No. 2080 of 2024

¶86

substantiated same by production of copies thereof. And said events had occurred several decades ago, it would be hard to presume that they might have escaped knowledge of plaintiffs. As against consistent stand of defendants about release deed causing separation of Gundappa and Ramaiah from joint family, plaintiffs contend that in absence of express partition, there would be continuation of joint family. In absence of reasonable explanation by plaintiffs for having kept quiet such long duration, it would be plaintiffs' assertion that would be matter for trial as documents produced prima facie support defendants' claim. Hence, impugned order would be untenable. Point for consideration is thus answered in affirmative

¶87

Consequently, appeal is allowed, impugned order dated 06.01.2024 passed by VIII Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, in O.S.no.1259/2022 on I.A.no.1 filed under order XXXIX Rules 1 and 2 of CPC, is set aside. IA filed by plaintiffs is rejected.

¶88

Psg /GRD

¶89

Sd/JUDGE

Mariyappa v. Sri Krishnappa

Case brief

What is this about?

What did the court decide?

Mariyappa v. Sri Krishnappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mr Thomas Marian Bernard Vs Mr Rajagopal Krishnaswamy

Fortis Hospitals Limited Vs Mr. Vimal Chordia

Sri P K Narayanan Vs Mr Syed Jaleel Ahmed

Sri B Krishnappa Vs Smt T. Renuka

Sri. Niranjan v Vs Kum.N.Prathiksha

Sri.Naveen D N Vs Sri. Nagesh Rao D S