Allowed

Smt Patalamma v. Sri Anjanappa

Karnataka HC20 Nov 2024MFA/2755/2024

Case brief

AI extract

What is this about?

Sister sought temporary injunction restraining her brother from alienating ancestral joint family properties pending a partition suit; trial court had rejected the application. The High Court allowed the appeal, restored the injunction till disposal of the suit, and directed the trial court to dispose of the suit within one year.

What did the court decide?

Appeal allowed; trial court order set aside; injunction restraining alienation of suit schedule property granted till disposal of suit; suit to be disposed within one year.

Smt Patalamma Vs Sri Anjanappa — Partition | Karnataka HC (2024)

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NC: 2024:KHC:47017 MFA No. 2755 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^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. 2755 OF 2024 (CPC)

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BETWEEN:

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SMT. PATALAMMA WIFE OF CHIKKANRASIMHAPPA DAUGHTER OF LATE DODDAMUDDAPPA AGED ABOUT 58 YEARS RESIDINT AT THIRUMENAHALLI VILALGE MANDUR POST BIDARAHALLI HOBLI BENGALURU EAST TALUK

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…APPELLANT

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(BY SRI. DHANANJAY V. JOSHI, SENIOR COUNSEL FOR SRI. SRIKANTH S., ADVOCATE)

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AND:

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Digitally signed by REKHA R Location: High Court of Karnataka

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SRI. ANJANAPPA SON OF LATE DODDAMUDDAPPA AGED ABOUT 63 YEARS RESIDING AT KATUGOLLAHALLI VILALGE BIDARAHALLI HOBLI, BENGALURU EAST TALUK

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…RESPONDENT

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(BY SRI. JANARDHANA RAO B., ADVOCATE)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED 28.02.2024 PASSED IN OS.NO.2600/2022 ON THE FILE OF THE VII ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE I.A. FILED UNDER ORDER 3 RULE 1 AND 2 OF CPC.

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

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NC: 2024:KHC:47017 MFA No. 2755 of 2024

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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 appellant and also learned counsel appearing for respondent.

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This appeal is filed against the rejection of I.A. filed under Order 39 Rule 1 and 2 of C.P.C, wherein plaintiff has sought for relief restraining the defendant from alienating the suit schedule properties pending disposal of the suit.

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It is the case of the plaintiff that suit schedule properties are ancestral and joint family properties and there was a partition between the father and their uncle and the properties are allotted as per the registered deed dated 05.08.2006. In the said partition, suit schedule properties are allotted to the defendant herein, as the share and their father. Further, house properties are acquired by way of succession and all the revenue records are transferred in the name of defendant. The plaintiff

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contention is that being the younger sister of defendant is in joint possession and enjoyment of the suit schedule properties, which are joint family ancestral properties. The plaintiff has requested to effect the partition and the same was postponed by defendant for one or the other pretext and ultimately, he refused the request and hence, without any alternative the relief for partition and also inter-alia sought for relief for temporary injunction restraining the defendant from alienating the suit schedule properties.

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The defendant appeared and filed written

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statement and took the specific contention that she is sister of defendant and daughter of Late Doddamuddappa. However, contend that mother of plaintiff and defendant is also alive and the said fact has been suppressed. The suit is bad for non-joinder of necessary party and also admitted that partition deed dated 05.08.2006. It is contended that suit is barred by limitation, since she has abandoned her right ever since the time of marriage and also contend that defendant also spent money by raising

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loan. It is also contended that the said Doddamuddappa died and his brother Chikkamuddappa also died and he was not having any issues and his share is also allotted in favour of defendant and also property devolved on the Class-I heirs of Doddamuddappa as per Section 6 of the Hindu Succession Act, 1956. However, it is contended that on the demise of the said Doddamuddappa, plaintiff, defendant and their mother got their share in the property at the rate of 1/3^rd of 1/5^th each and also contend that it is a self-acquired property of defendant.

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The trial Court having considered the grounds urged in the application as well as in the written statement, also taken note of the contention of the parties in paragraph No.12 and comes to the conclusion that there was a partition between the defendant and his uncles and properties are ancestral and joint family properties and also taken note that the said partition deed executed on 06.08.2006. It is also an observation that in view of defence taken by the defendant, she is entitled for any

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share that would be in the notional partition i.e., 1/30^th share of her father Doddamuddappa. Though having given all these aspects, but the trial Court rejected I.A and hence, present appeal is filed.

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Learned counsel appearing for appellant would contend that when there is a partition between the 1^st defendant and his uncles, also when there is no dispute between the relationship between the parties and nature of the properties and also when there is fair admission on the part of the defendant in the written statement itself that she is entitled for 1/3^rd share out of 1/5^th share of their father, the trial Court ought not to have rejected the application and prayer is also sought only to protect the property, in order to avoid multiplicity of proceedings. Hence, trial Court has committed an error and also learned counsel for appellant brought to the notice of this Court the observation made in paragraph No.12 of the order of the trial Court.

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Per contra learned counsel appearing for

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respondent would contend that defendant No.1 not disputed the relationship between the parties. However, he contend that earlier partition was in the year 2006 with regard to another uncle, who is not having any issues and his property was allotted to the 1^st defendant, since he had taken care of the uncle and plaintiff not entitled for any share in that property. Learned counsel would contend that she kept quite even though father died in the year 1965 itself and now making claim and hence, the suit is also barred by limitation.

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Learned counsel has relied upon the decision in V.Anil Reddy Vs. K.Venkataramana Reddy and Ors.¹

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and brought to the notice of this Court regarding rejection of I.A., wherein an observation is made that certain transaction among members of the family was taken place and there is no any specific details and absence of any challenge to the alleged registered documents and

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1 2017(5) KCCR 578

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absence of any prayer to that effect; it is not possible to grant temporary injunction. Learned counsel relying upon the decision would contend that when there is already a partition, wherein defendant was a party to the said partition and the same has not been challenged, question of granting any temporary injunction does not arise.

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Having heard the learned counsel for appellant and also learned counsel appearing for respondent and also taking note of the material available on record, it is not in dispute that there was a partition between the 1^st defendant and his uncles. It is also not in dispute that plaintiff is also sister of 1^st defendant and also it is the contention that mother has not been made as party to the proceedings. It is also not in dispute that suit is filed for relief for partition and also very contention taken was nonjoinder of necessary party, but relief is also sought not to alienate the property during the pendency of the suit or otherwise it will lead to multiplicity of proceedings and

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even mother not made as party. She can be added as party at any time.

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Having perused the defence taken in the written statement itself that the the plaintiff is entitled for notional partition of the property and not in entirety as claimed and not entitled for the relief as sought for and the same is a matter of trial whether she is entitled for share or not, but admittedly, there is an admission with regard to the property which was accrued in a partition, wherein the plaintiff is not party to the said partition and defendant No.1 is made as party to the said partition, but which discloses dividing the property of the share of the father as 1/5^th share out of the entire property.

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There is a reference by the trial Court that properties as ancestral properties and there is also defence in the written statement that the property devolves under Section 6 of the Hindu Succession Act, 1956. When such admission is given in the written statement as well as trial Court in paragraph No.12

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NC: 2024:KHC:47017 MFA No. 2755 of 2024

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discussed in each aspect and also comes to the conclusion that matter requires trial and in the written statement it is contended that plaintiff, defendant and their mother got 1/3^rd share of 1/5^th share of Doddamuddappa. When such contention is being taken and also when the trial Court comes to the conclusion that plaintiff is entitled for the share in the property also, it ought not to have rejected the application wherein relief has been sought not to alienate. Rejection of the application, it leads to multiplicity of proceedings when properties are sold and hence trial Court committed an error in rejecting the application and it requires interference 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 allowed.

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(ii) The order passed by the trial Court on I.A. is set aside and consequently I.A. filed by the appellant is allowed, restraining the defendant not to alienate the suit schedule

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NC: 2024:KHC:47017 MFA No. 2755 of 2024

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property as sought in the I.A till the disposal of the suit.

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(iii) 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 appellant and respondent 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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RR List No.: 1 Sl No.: 47

Smt Patalamma v. Sri Anjanappa

Case brief

What is this about?

What did the court decide?

Smt Patalamma v. Sri Anjanappa

Case brief

What is this about?

What did the court decide?

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