In a partition suit challenging gift deeds executed by the mother in favour of defendants, defendants appealed against an interim injunction restraining alienation. The High Court held that whether properties were ostensibly bought in the mother's name was triable, found no error in granting injunction, and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 515 OF 2024 (CPC)
BETWEEN:
…APPELLANTS
(BY SRI. SRINIVAS K.B.S., ADVOCATE)
AND:
Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA
…RESPONDENTS THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CODE OF CIVIL PROCEDURE, 1908 AGAINST THE ORDER DATED
NC: 2024:KHC:10082 MFA No. 515 of 2024
09.10.2023 PASSED ON I.A. NO.1 IN O.S.NO.687/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., KANAKAPURA, ALLOWING THE I.A. NO.1 FILED UNDER ORDER XXXIX RULES 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendant Nos.1 and 3 in O.S.No.687/2021 on the file of the Senior Civil Judge and JMFC., Kanakapura, (henceforth referred to as 'the Trial Court') have filed this appeal challenging the correctness of an order dated 09.10.2023 by which an application (I.A. No.1) filed by the plaintiff under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'CPC') was allowed and they were restrained from alienating the suit schedule properties till the disposal of the suit.
they were arrayed before the Trial Court.
share in the suit schedule properties and to declare that a gift deed dated 09.06.2006 said to have been executed by the mother of the plaintiff in favour of the defendant No.1 in respect of item Nos.1 to 4 of the 'B' schedule property is null and void. She also sought for a declaration that the gift deed dated 22.12.2008 executed by her mother in favour of the defendant No.1 in respect of item No.5 of the 'B' schedule was null and void. She also sought for a declaration that the gift deed dated 24.09.2009 executed by her mother in favour of defendant No.3 in respect of suit item No.6 of the 'B' schedule was null and void and the gift deed dated 11.10.2012 executed by her mother in favour of defendant No.3 in respect of item No.7 of the ‘B’ schedule property were null and void.
of various extents of the lands bearing Sy. Nos.37/3, 44/1,
44/3 and 57 of Mallapura village, Kodihalli hobli, Kanakapura Taluk. Likewise, they were in possession of lands bearing Sy. Nos.37/1, 38/1, 42, 43, 24, 39, 30/1 situate at Mallapura village, Kodihalli hobli, Kanakapura Taluk, which were referred to as the suit 'B' schedule
properties. She claimed that her father expired on 13.04.2009 while her mother expired on 22.02.2020 leaving behind the plaintiff and defendant Nos.1 and 2 as their legal heirs. The plaintiff therefore claimed that she, the defendant Nos.1 and 2 were in joint possession and enjoyment of the suit schedule properties. she claimed that her father was a State Government employee working in the Department of Co-operation while her mother was a house wife who had no independent source of income.
She claimed that the suit ‘B’ schedule properties were acquired out of the salary of her father and other income derived from the suit 'A' schedule properties. However, the sale deeds were nominally executed and registered in the name of her mother. She claimed that there was no
partition of the suit schedule properties either during the lifetime of her father or after him during the lifetime of her mother. She claimed that the defendant No.1 being her brother took advantage of the fact that he used to visit the Taluk office and other offices and he concocted and obtained documents styled as 'gift deed' from her mother.
She contended that her mother used to stay with the defendant No.1 and as she was aged and suffering from illness and did not possess sound mind and taking undue advantage of this, the defendant No.1 concocted many gift deeds referred above. She claimed that the defendant Nos.1 and 3 were trying to alienate the suit schedule properties and the intending purchasers were enquiring with the plaintiff whether she had any claim in the suit properties. She claimed that when she demanded the defendants to partition and hand over separate possession of her 1/3rd share in the suit schedule properties, the defendants did not oblige and a panchayat was convened thereafter. However, the defendant Nos.1 and 3 refused to partition the share of the plaintiff. Therefore, the plaintiff
sought for the above reliefs. Along with the plaint, she also filed an application under order XXXIX Rules 1 and 2 read with section 151 of the Code of Civil Procedure. 1908 (for short, 'CPC') for interim injunction to restrain the defendant Nos.1 and 3 from alienating or encumbering or transferring the suit ‘A’ and ‘B’ schedule properties in any manner whatsoever, pending disposal of the suit.
NC: 2024:KHC:10082 MFA No. 515 of 2024
defendant Nos.1 and 3 from alienating the suit schedule properties till disposal of the suit.
defendant Nos.1 and 3 have filed the appeal.
triable case and the Trial Court committed an error in granting an order of injunction.
the plaintiff and defendant Nos.1 and 2, and the real owner of the said properties was Sri Shivaram K.C., the father of the plaintiff and defendant Nos.1 and 2, then the plaintiff along with defendant Nos.1 and 2 were entitled to an equal share in the said properties. It is also relevant to note that the provisions of the Benami Transactions (Prohibition) Act, 1988 would not be applicable in the event of a member of a family purchasing the property in the name of any other person. Therefore, the question whether the suit 'B' schedule properties were purchased benami in the name of Smt. Lakshmamma, the mother of the plaintiff and defendant Nos.1 and 2, and if yes, whether the plaintiff was entitled to a share in the suit 'B' schedule properties or not, are all questions of fact which had to be tried and adjudicated upon by the Trial Court. As rightly held by the Trial Court, in the meanwhile, the defendant Nos.1 and 3 cannot be permitted to alienate the suit schedule properties as that may result in emboldening defendant Nos.1 and 3 to alienate the suit properties which could result in multiplicity of proceedings. There is
NC: 2024:KHC:10082 MFA No. 515 of 2024
no error committed by the Trial Court in granting an order of injunction in favour of the plaintiff and the impugned order does not warrant interference in this appeal. Hence, this appeal lacks merit and is dismissed.
No.1/2024 for stay does not arise for consideration and the same stands dismissed.
Sd/JUDGE
sma
List No.: 1 Sl No.: 36
2 issues framed by the court
Whether the Trial Court rightly restrained defendants from alienating suit properties pending disposal of a partition suit challenging gift deeds.
Whether the question whether properties were benami purchased in the mother's name is a triable issue justifying interim injunction.
3 provisions across 2 enactments
C.S. Srinivas
M.S. Nalina Kumari
Bhagyalakshmi
C.S. Hemavathi
R. Nataraj
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
