Partly allowed

Sri P M Chowdappa v. Smt P C Latha

Karnataka HC12 Nov 2024MFA/4133/2024

Case brief

AI extract

What is this about?

In a miscellaneous appeal against an order granting an injunction to restrain alienation, the High Court allowed the appeal in part. It held the trial court erred by not sufficiently scrutinizing the source of funds for specific properties, still considering the injunction necessary for those items. The broader order is set aside for the remaining properties.

What did the court decide?

Interim order in respect of items 3 to 5 set aside; broader order dated 14.03.2024 set aside.

Sri P M Chowdappa Vs Smt P C Latha — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:45911 MFA No. 4133 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^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. 4133 OF 2024 (CPC)

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BETWEEN:

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SRI P M CHOWDAPPA S/O LATE MUNIRANGAPPA,

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AGED ABOUT 83 YEARS,

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SMT ANANTHA PRAMILA W/O P M CHOWDAPPA, AGED ABOUT 77 YEARS,

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SRI P C SURESH S/O P M CHOWDAPPA, AGED ABOUT 58 YEARS,

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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APPELLANTS 1 TO 3 ARE RESIDING AT NO.54/5, CHOWDESHWARI NILAYA, 5^TH CROSS, 3^RD MAIN, NEW EXTENSION, SRS ROAD, PEENYA, BENGALURU-560 058.

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SMT.P.C.HEMAMALINI, D/O P.M.CHOWDAPPA, W/O DHANA PALAKSHA, AGED ABOUT 51 YEARS, NO.145, GANDADAGUDI, 3^RD CROSS, KGNSS LAYOUT, RAJAGOPALNAGAR, PEENYA 2^ND STAGE, BANGALORE-560 058.

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(OLD ADDRESS: NO. 54/5 CHOWDESHWARI NILAYA

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2 - NC: 2024:KHC:45911 MFA No. 4133 of 2024

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5^TH CROSS, 3^RD MAIN NEW EXTENSION SRS ROAD, PEENYA BENGALURU – 560 058.)

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SRI.P.C.NARENDRABABU, D/O P.M.CHOWDAPPA, W/O DHANA PALAKSHA, AGED ABOUT 47 YEARS, PRESENTLY RESIDING AT NO.54/5, CHOWDESHWARI NILAYA, 5^TH CROSS, 3^RD MAIN, NEW EXTENSION, SRS ROAD, PEENYA, BENGALURU-560 058 .

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…APPELLANTS (BY SRI. GURUVA REDDY N.,ADVOCATE)

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AND:

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SMT P C LATHA D/O P M CHOWDAPPA, W/O HUCHAPPA, RESIDING AT SAHRUDAYI NILAYA, 7^TH A CROSS, BEHIND VIVEKANANDA ENGLISH HIGH SCHOOL, VIDYANAGARA, TUMKURU-572 103.

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…RESPONDENT

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(BY SRI. SUNIL KUMAR PATEL.,ADVOCATE)

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THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.14.03.2024 PASSED ON IA NO.1 IN O.S.NO.602/2023 ON THE FILE OF THE PRL.SENIOR CIVIL JUDGE AND CJM, TUMAKURU, ALLOWING IA NO.1 FILED U/O.39 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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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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3 - NC: 2024:KHC:45911 MFA No. 4133 of 2024

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ORAL JUDGMENT

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Heard appellants’ counsel and also respondent’s counsel.

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This appeal is filed by the defendants praying to grant injunction not to alienate item Nos.1 to 5 of the suit schedule properties. The main grievance is that defendants are not disputing the fact that item Nos.1 and 2 are ancestral property. The trial Court committed an error in granting the interim order in item Nos.3 to 5. Item Nos.3 to 5 are exclusive property of defendant No.1, who is appellant No.1 in this appeal.

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It is contended that appellant No.1 has acquired the item Nos.1 and 2 under the registered partition deed dated 04.08.2003 effected between himself and his brothers. Appellant had acquired the site bearing Panchyath Khata No.282 measuring East to West 37 ½ ft and North to South 75 ft under the registered sale deed dated 15.03.1978 out of his own earnings and savings. A

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4 - NC: 2024:KHC:45911 MFA No. 4133 of 2024

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portion of the said site was acquired by National Highway Authorities of India in the year 2008 and remaining portion was acquired by KIADB in the year 2010 for formation of metro rail project. Subsequently, appellant Nos.1 and 2/defendant Nos.1 and 2 have purchased item No.3 under the registered sale deed dated 07.12.2015 out of the compensation received from the Special Land Acquisition Office, National Highway Authorities of India and Special Land Acquisition Office, KIADB and also out of the sale proceeds received under the sale deeds dated 27.08.2015 and 27.11.2015 in respect of site Nos.1140 and 40. The trial Court has not considered the above said facts while passing the impugned order on I.A.No.1.

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Learned counsel further submits that if the site

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bearing Khata No.282 was joint family property, it should have been included in the registered partition deed dated 04.08.2003. According to the respondent/plaintiff, the appellant No.1/defendant No.1 has purchased item No.3 out of the compensation received in respect of the site

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5 - NC: 2024:KHC:45911 MFA No. 4133 of 2024

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bearing No.282. The same is self acquired property of the appellant. The said fact has not been considered by the trial Court while passing the impugned order.

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Learned counsel also submits that appellant

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No.1/defendant No.1 was employed in HMT factory from the year 1960 and he retired from the service in the year 1996. Appellant Nos.1 and 2/defendant Nos.1 and 2 have purchased the site bearing Nos.1140 and 40 under two different registered sale deeds dated 28.02.2002 and 23.10.2008 out of their own earnings and savings. Subsequently, they have sold the said sites under two different registered sale deeds dated 27.08.2015 and 27.11.2015. Thereafter, appellant Nos.1 and 2 have purchased item No.3 in their names and item No.4 in the name of appellant No.1/defendant No.1. The respondent/plaintiff has suppressed the above said fact and filed the above suit seeking decree for partition in respect of the properties absolutely belonging to the appellant Nos.1 and 2/defendant Nos.1 and 2 and has not

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6 - NC: 2024:KHC:45911 MFA No. 4133 of 2024

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produced any documents to show that item Nos.3 to 5 are the joint family properties. The trial Court has committed an error in granting such relief and no material is placed on record to show that the properties have been purchased out of the joint family nucleus.

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Learned counsel would vehemently contend that the order passed by the trial Court in coming to the conclusion that item Nos.3 to 5 are also ancestral and joint family property since they are purchased out of joint family nucleus, is erroneous and the trial Court comes to the conclusion that except producing the endorsement given by the bank to the effect that the first defendant availed loan of Rs.6,50,000/- from the bank, no other particulars relating to his avocation and income are placed on record. Under such circumstances, the trial Court held that a full fledged trial is required so as to decide if item Nos.3 to 5 are the self acquired properties of defendant No.1.

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NC: 2024:KHC:45911 MFA No. 4133 of 2024

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Per contra, learned counsel appearing for the respondent would contend that the some portion of the property was acquired by the National Highways Authority of India and compensation was awarded as per Land Acquisition Case No.125/2008. This compensation amount was shared between herself and the first defendant in Execution No.1142/2021 and an amount of Rs.25,00,000/was paid in favour of the appellant.

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Learned counsel would also submit that the it is

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the specific case of the plaintiff/respondent that the said property was purchased in the year 1978 out of the joint family nucleus, wherein the father is the head of the family and karta of the family. Non inclusion of the same in the partition deed cannot be a ground to interfere with the findings of the trial Court and trial Court had given the reasons that it requires full fledged trial and hence, the question of interfering with the order of the trial Court does not arise.

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8 - NC: 2024:KHC:45911 MFA No. 4133 of 2024

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9. Having heard learned counsel for the appellant

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and learned counsel for the respondent and a perusal of the material on record, it is contended that if the said property is joint family property, the same would have been included in the registered partition deed between the father of plaintiff and his brothers. The same is self acquired property and hence, the same was not included. Learned counsel also contended that if the same is joint family property, other brothers of defendant No.1 could not have left the property for partition. Learned counsel also submits that the remaining portion of the property

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was acquired. Subsequently, out of the said sale consideration, only item Nos.3 to 5 was purchased. It is not in dispute that when the portion of the property was acquired, earlier, father had given the amount of Rs.25,00,000/- to the respondent. When the plaintiff has filed an application before the executing Court as objector, the main contention of the defendant No.1 is that the same is the self acquired property and document which has been placed before the Court clearly discloses that

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9 - NC: 2024:KHC:45911 MFA No. 4133 of 2024

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item Nos.3 to 5 are purchased after the acquisition and partition of the property. Subsequently, the other portion of property in site bearing khata No.282 was also acquired, the trial Court comes to the conclusion that the matter requires full fledged trial as regards whether the same is ancestral property or not and merely non mentioning of the name in the property partition deed between the father of the plaintiff and other brothers cannot take away the right. The suit is also filed to effect partition and item Nos.1 and 2 are the properties given to the share of the father of the plaintiff is not in dispute in the partition among the brothers.

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Learned counsel for the plaintiff/respondent brought to the notice of this Court the averments made in paragraphs Nos.3 to 5. It is only contended that item Nos.3 to 5 are purchased out of joint family nucleus. In order to substantiate the prima facie case that the property was purchased by appellant/defendant Nos.1 and 2 in the year 1978 with the help of joint nucleus, nothing

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10 - NC: 2024:KHC:45911 MFA No. 4133 of 2024

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is placed on record. Only on the ground that the plaintiff has been paid an amount of Rs.25,00,000/- when the execution petition has been filed, the same cannot be a ground to assume that the property which was purchased by the father on 15.03.1978 is through joint family nucleus and the same was joint family property. Defendant No.1 ought to have made a claim based on material and no such claim was made by the brothers and prima facie defendant No.1 has not made out a case to show that the property was purchased on 15.03.1978 by the father and that the same is an ancestral property. Unless the prima facie case, the trial Court comes to the conclusion that the property was purchased on 15.03.1978 by defendant No.1 out of the joint family nucleus, the question of coming to the said conclusion that the prima facie case is made out is erroneous and it requires interference of this Court in item Nos.3 to 5 are concerned.

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11 - NC: 2024:KHC:45911 MFA No. 4133 of 2024

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Learned counsel for the respondent has also

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brought to the notice of the Court that property which has been purchased i.e., item No.4 has been gifted in favour of one of his son cannot be a ground to come to the conclusion that the said property is an ancestral property and unless prima facie case is made out that the father had purchased the property out of joint family nucleus in the year 1978, the question of granting injunction does not arise.

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The trial Court has committed an error in passing the impugned order. The fact that item Nos.3 to 5 are purchased out of the compensation awarded in subsequent acquisition when remaining area was acquired in site No.282 and the same is not in dispute. But the main moot question before the Court is whether the property which was purchased in the year 1978 is joint family property or not, nothing is placed on record and hence committed an error in granting interim order

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12 - NC: 2024:KHC:45911 MFA No. 4133 of 2024

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against the appellants herein in respect of item Nos.3 to 5 are concerned.

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In the light of the above discussion, I pass the

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following:

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ORDER

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i) Appeal is allowed in part.

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ii) Order dated 14.03.2024 passed in O.S.No.602/2023 passed by the Principal Senior Civil Judge and CJM, Tumakuru is hereby set aside and the interim order granted in respect of item Nos.3 to 5.

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Sd/(H.P.SANDESH) JUDGE

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MDS List No.: 1 Sl No.: 39

Sri P M Chowdappa v. Smt P C Latha

Case brief

What is this about?

What did the court decide?

Sri P M Chowdappa v. Smt P C Latha

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

Coram

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