Partition suit by claimants alleging they were first wife and children of deceased propositus Motappa; defendants denied the relationship. The High Court upheld the temporary injunction restraining alienation of suit schedule properties, finding no error in the Trial Court order.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.4969 OF 2024 (CPC)
BETWEEN:
Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA
…APPELLANTS
(BY SRI MANJUNATHA S N, ADVOCATE)
AND:
RESPONDENTS 1 AND 2 ARE R/AT BIJJAWARA VILLAGE AND POST, VIJAYAPURA HOBLI, DEVANAHALLI - 562 110.
RESPONDENTS 3 AND 4 ARE R/AT NO.24, BENSON TOWN, GANGAMMA TEMPLE, N C COLONY, BORE BANK ROAD, BENGALURU NORTH, BENGALURU - 560 046
…RESPONDENTS
(BY SRI S VENUGOPALA, ADVOCATE FOR C/R2)
THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 27.06.2024 PASSED ON I.A.NO.1 IN OS.NO.401/2020 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
This appeal is filed challenging the order dated 27.06.2024 passed on I.A.No.1 in O.S.No.401/2020 by the II Additional Senior Civil Judge, Bengaluru Rural District.
subsistence of the first marriage with his mother – Narayanamma, his father late Motappa married defendant No.1 – Obalamma for the second time and defendant Nos.2 to 5 were born through defendant No.1. It is contended that defendant No.1 is not a wife in the eye of law and defendant Nos.2 to 5 are illegitimate children of the father of the plaintiffs and they are not having any right in the suit schedule properties. It is also contended that the said Motappa passed away on 29.01.2019. During his lifetime, the said Motappa made the family arrangement on 10.02.1986 which is titled as kararu patra to enjoy the suit schedule properties amicable by the plaintiffs and the defendants. Accordingly, they have been in joint possession and enjoyment of the suit schedule properties. When the things stood as above, on 18.08.2006, defendant Nos.2 to 5 have fraudulently filed a suit in O.S.No.1995/2006 against their father-Motappa for partition and separate possession of item No.1 of the suit schedule properties without their knowledge and without impleading them as parties to the said suit. The Court
was pleased to order for issue of suit summons and emergent notice to the defendant– Motappa in the said suit in O.S.No.1995/2006. On 11.09.2006, his father appeared but he has not engaged any counsel. On the same day, the defendants managed to file compromise petition in the said suit.
4. It is further submitted that their father-Motappa
was an illiterate and he was not in a position to understand the things and he was not in a position to read or write either Kannada or English or any other language except to put his signature that too with great difficulty. The defendants managed to file the said suit and without knowledge of his father, they managed to file the compromise petition and fraudulently obtained the compromise decree since the plaintiffs are proper and necessary parties to the suit but they are not made as parties to the suit. Fraudulently, the decree obtained in O.S.No.1995/2006 will not take away the legitimate rights of the plaintiffs. It is also contended that all the joint
family properties are not subject matter of the said suit, particularly, the property which is worth and valuable, a decree was obtained making only said property as suit schedule property. Immediately, after knowing the said fact, the plaintiffs have filed the suit in O.S.No.2631/2006 and the same was decreed in their favour vide order dated 16.10.2010. After the death of their father, against the order dated 16.10.2010, they filed an appeal in R.A.No.232/2012. While allowing the said appeal on 29.11.2019, the Court was pleased to observe that the plaintiffs are at liberty to file any suit claiming their right. Thereafter, though the defendants proposed to settle the issue amicably, but on the one pretext or the other, they had been postponing. On 05.01.2020, through the well wishers, the plaintiffs demanded the defendants to effect the partition and deliver separate possession of their legitimate share in all the suit schedule properties. Hence, filed the suit and also sought for temporary injunction for not to alienate the suit schedule property till the disposal of the suit.
NC: 2024:KHC:48431 MFA No. 4969 of 2024
5. Per contra, the defendants appeared and filed
the written statement contending that the plaintiffs are not related to the defendants and also contended that the plaintiffs only produced self style genealogical tree and no single piece of material is placed before the Trial Court to establish the relationship. Thus, in the absence of conclusive proof, the claim of the plaintiffs is devoid of merits and the Trial Court fails to consider this aspect and passed an order not to alienate the same. It is contended that when the plaintiffs are not having right in the suit schedule property, the question of granting temporary injunction does not arise.
of the parties, formulated the points regarding cardinal principles for grant of temporary injunction. The Trial Court after considering the pleadings of the parties, regarding relationship between the parties is concerned comes to the conclusion that it requires full fledged trial. Taking note of the material available on record, the Trial
Court observed that the appellants claimed that the property belongs to the Motappa and the said Motappa had made a provision to his both first and second wives and they have relied upon the document of distributing the properties to the first and second wives and held that prima facie case is made out by the plaintiffs and if the properties are sold during the pendency of the suit, it will create multiplicity of proceedings. Being aggrieved by the said order, the present appeal is filed.
is placed on record before the Trial Court to establish that they are the first wife and children of said Motappa. Hence, it requires interference since the Trial Court committed an error making an observation that it requires full fledged trail to establish the relationship between the parties.
No.2 would vehemently contend that the Trial Court taken
note of the fact that the said Motappa had two wives i.e., Narayanamma and Obalamma. It is also contend that the First Appellate Court while entertaining R.A., liberty was given to seek the appropriate relief. Hence, the suit is filed for the relief of partition. The counsel in support of his arguments relied upon the documents i.e., order sheet and compromise petition in O.S.No.1995/2006 and also relied upon the agreement and judgment and decree passed in O.S.No.2631/2006 and order passed in R.A.No.382/2012. The counsel also brought to notice of this Court the order passed in R.A.No.382/2012 wherein
the plaintiffs are given liberty to file any suit claiming their right, if according to them they are having share in the suit schedule property, if so advised. Hence, in view of the said observation only, the present suit is filed and temporary injunction has been sought.
the present suit is filed and sought the relief of temporary injunction. No doubt, O.S.No.2631/2006 was filed and the same was decreed in favour of the plaintiffs and against the said judgment and decree, an appeal was filed in R.A.No.382/2012 and the said appeal was disposed of on 29.11.2019 and immediately after the disposal of the appeal, the present suit is filed contending that the plaintiffs are the first wife and children of said Motappa. On the other hand, the appellants who are the defendants have filed their written statement denying the very relationship between the parties. But the fact that both the parties are claiming that Motappa is propositus of the family. The counsel for the appellants would vehemently contend that except producing self styled genealogical tree, no other documents are placed before the Trial Court to establish the relationship between the parties. But the fact that earlier also two suits were filed i.e., one in O.S.No.1995/2006 wherein compromise was also entered and also another suit was filed in O.S.No.2631/2006 wherein also the plaintiffs/respondents claims that they
are the children of Motappa and in O.S.No.1995/2006 also
the appellants/defendants claims that they are the children of Motappa. When such being the case, the present suit is filed for the relief of partition since the earlier alleged agreement making provision to both the wives is not the registered document but the and document depicts the signature of the said Motappa. Under such circumstances, the matter requires full fledged trial in respect of relationship is concerned when both the plaintiffs and defendants claim that the said Motappa is their father. When the interim relief is sought for not to alienate the suit schedule property, the very object of the Court is to prevent multiplicity of proceedings. Having considered the reasoning given by the Trial Court, I do not find any error committed by the Trial Court to come to such a conclusion and injunction is granted in order to prevent multiplicity of proceedings that too only for not to alienate the suit schedule property. Hence, I do not find any error committed by the Trial Court by passing such an order and the said order is passed to protect the property
NC: 2024:KHC:48431 MFA No. 4969 of 2024
from further litigation. Hence, there is no merit in the
appeal.
the following:
ORDER
The miscellaneous first appeal is dismissed.
Sd/(H.P.SANDESH) JUDGE
SN
1 issue framed by the court
Whether the Trial Court correctly granted temporary injunction restraining alienation of suit schedule properties in a partition suit where the relationship of the plaintiffs to the deceased propositu
1 provisions across 1 enactments
M Narasimhaiah
Muniswamy
Narayanaswamy
Nagarathna
Narayanamma
Narayanaswamy
H.P.Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
