Dismissed

Miss. Niharika Chetan v. Smt Saroja S Shetty

Karnataka HC13 Nov 2024MFA/2720/2024

Case brief

AI extract

What is this about?

Minor granddaughters sought injunction restraining alienation of properties allotted under a 2014 registered partition deed, alleging inequitable partition. The High Court found no prima facie case given the eight-year delay and upheld dismissal of the injunction application.

What did the court decide?

Appeal dismissed; trial Court directed to dispose of the suit within one year with parties assisting.

Miss. Niharika Chetan Vs Smt Saroja S Shetty — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:46283 MFA No. 2720 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO.2720 OF 2024 (CPC)

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BETWEEN:

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MISS. NIHARIKA CHETAN D/O LATE B.S.CHETAN KUMAR, AGED ABOUT 14 YEARS,

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MISS. AVANTIKA CHETAN D/O LATE B.S.CHETAN KUMAR, AGED ABOUT 9 YEARS,

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BOTH ARE REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN DR. LAVANYA CHETAN, W/O LATE B.S. CHETAN KUMAR, AGED ABOUT 38 YEARS

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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BOTH ARE R/AT SHIVAGIRI, BINNY LAYOUT, ATTIGUPPE, CHANDRA LAYOUT, BENGALURU-560 040.

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…APPELLANTS

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(BY SRI. KARUNAKARA P., ADVOCATE)

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AND:

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SMT. SAROJA S. SHETTY, W/O LATE SIDDANANJA SHETTY, AGED ABOUT 65 YEARS,

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SRI DEEPAK, S/O LATE SIDDANANJA SHETTY, AGED ABOUT 45 YEARS,

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2 - NC: 2024:KHC:46283 MFA No. 2720 of 2024

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BOTH ARE RESIDING AT SHIVAGIRI, BINNY LAYOUT, ATTIGUPPE, CHANDRA LAYOUT, BENGALURU-560 040.

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…RESPONDENTS

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(BY SRI. SANGAMESH R.B., ADVOCATE FOR R1 AND R2)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 16.12.2023 PASSED ON IA NO.1 IN O.S.NO.6626/2022 ON THE FILE OF THE XLIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-44), DISMISSING IA NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.

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THIS APPEAL COMING ON FOR ADMSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard learned counsel for appellants and also learned

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counsel appearing for respondents.

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The suit is filed for relief of partition claiming

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that the share given in favour of the plaintiffs' mother under the registered partition deed dated 21.08.2014 is inequitable and plaintiffs are entitled for equitable share in

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the property belonging to Siddananja Shetty and hence prayed the Court not to alienate the property.

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3 - NC: 2024:KHC:46283 MFA No. 2720 of 2024

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Per contra learned counsel appearing for respondents would contend that already there was a partition during the lifetime of Siddananja Shetty and the same was registered on 21.08.2014 and he also passed away on 26.10.2019 and also brought to the notice of this Court that equitable partition was made during his lifetime itself and plaintiffs are not entitled for any share and also they kept quite from 2014 to 2022 and only the mother of the plaintiffs got set up these plaintiffs for filing the suit and filed frivolous suit.

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The trial Court having taken note of the pleadings of the parties particularly in paragraph No.13 made an observation that the plaintiffs themselves have purchased the partition deed 21.08.2014 and also taken note of the fact that the said Siddananja Shetty was also died on 26.10.2019 and the fact that partition was effected much prior to death of the said Siddananja Shetty and also contend that defendant No.1 is his wife. Out of the wedlock of Siddananja Shetty and his wife, two

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4 - NC: 2024:KHC:46283 MFA No. 2720 of 2024

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children have begotten viz., B.S.Chethan and B.S.Deepak who is defendant No.2. The plaintiffs are the children of deceased B.S.Chethan.

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The trial Court has also taken note of the fact that during the lifetime of Siddananja Shetty, he has allotted the share in favour of the mother of plaintiffs and if at all the plaintiffs are entitled for the share suit schedule property i.e., out of the share that would have been fallen to the share of B.S.Chethan. The parties have not disputed the registered partition deed dated 21.08.2014. There are many properties in the schedule and some of the properties have been purchased by the family members of the deceased Siddananja Shetty and also the trial Court comes to the conclusion that whether the plaintiffs will succeed in the suit is immaterial at this stage. The suit is also filed after nearly eight years from the date of registered partition.

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Hence, the trial Court comes to the conclusion

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by referring to the judgment of Hon'ble Apex Court in the

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5 - NC: 2024:KHC:46283 MFA No. 2720 of 2024

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case of M/s Gujarat Bottling Co.Ltd and Ors. Vs. the

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Coca Cola and Ors¹ , wherein an observation is made that

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"factors to be considered in exercise of discretion. The injunction being an equitable relief, conduct of parties seeking the injunction has to be looked into" and dismissed the application in coming to the conclusion that the plaintiffs have not made any prima facie case for granting the order of injunction. Being aggrieved by the said order, the present appeal is filed.

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7. Learned counsel for the appellants vehemently

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contend that the trial Court has committed an error in taking note of the fact that the father of the plaintiffs died prior to the partition and taking advantage of their mother was under distress have discussed on account of death of their father, partition was made in the year 2014 within a span of one year of the death of plaintiffs' father i.e., on 21.08.2014. Learned counsel also brought to the notice of this Court that there is unequitable partition and only 2

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1 (1995) 5 SCC 545

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6 - NC: 2024:KHC:46283 MFA No. 2720 of 2024

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properties are given at the time of partition and even contend that 5 properties are given to the other son and hence matter requires interference of this Court.

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Per contra learned counsel appearing for the respondent contend that in the plaint itself they have specifically stated that property belongs to Siddananja Shetty and also specific pleading is made that the properties are purchased by Siddananja Shetty and he had already partitioned the properties during the lifetime and partition had also taken place in 2014 and after lapse of 8 years suit was filed. The trial Court has assigned the reason by dismissing the application and nothing requires for consideration.

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Having heard the learned counsel for appellants

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and also learned counsel appearing for respondents, admittedly there is a registered partition dated 21.08.2014 and the suit is filed during 2022 and material discloses that plaintiffs' father died prior to 2014 and subsequent to the partition also, not challenged the same and only

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7 - NC: 2024:KHC:46283 MFA No. 2720 of 2024

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challenged in the year 2022 after lapse 8 years. The learned counsel appearing for respondent would contend that after the partition also some of the properties are also sold by the plaintiffs and the same has been disputed by the learned counsel appearing for the appellant that no such sale was made.

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The only ground urged before the Court is that there is inequitable partition. The matter once again required full fledged trial and the Court has to take note of value of the property allotted and not the number of the property and also the matter has to be decided whether the plaintiffs are entitled for share of the property and specific pleading is also made that the property exclusively belongs to Siddananja Shetty and Siddananja Shetty has made a provision during his lifetime making the allotment of share in favour of legal heirs to one of the son i.e., plaintiffs father as well as other son and also the Court has to take note whether the share allotted in favour of Siddananja Shetty, whether he has made any

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8 - NC: 2024:KHC:46283 MFA No. 2720 of 2024

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testamentary document before his death also to be taken

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note by the trial Court by considering the matter on merits. Hence, I do not find any error committed by the trial Court in dismissing the application. Taking note of registration of the partition in the year 2014 and also the

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suit is filed after lapse of 8 years and plaintiffs have not made out any ground to interfere by this Court. In view of the discussions made above, I pass the following:

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ORDER

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(i) Appeal is hereby dismissed.

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(ii) However, the trial Court is directed to dispose of the suit within a time bound period of one year.

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(iii) The respective appellants and respondents and their respective counsel are directed to assist the trial Court in disposal of the suit within time bound period of one year.

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Sd/(H.P.SANDESH) JUDGE

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List No.: 1 Sl No.: 38

Miss. Niharika Chetan v. Smt Saroja S Shetty

Case brief

What is this about?

What did the court decide?

Miss. Niharika Chetan v. Smt Saroja S Shetty

Case brief

What is this about?

What did the court decide?

What the court decided

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