Allowed

Prema v. Kusappa

Karnataka HC8 Nov 2024MFA/5305/2024

Case brief

AI extract

What is this about?

Appeal against rejection of an application for temporary injunction in a property partition suit. The High Court allowed the application, restraining respondents from alienating suit properties until the trial concludes on questions of family property inclusion, daughter's rights under the 1994 amendment, and limitation.

What did the court decide?

I.A.No.2/2024 allowed; respondents restrained from alienating or creating charge over suit schedule properties till disposal of the suit.

Prema Vs Kusappa — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:45439 MFA No. 5305 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO.5305 OF 2024 (CPC)

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BETWEEN:

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PREMA

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W/O PUTTASWAMY, AGED ABOUT 66 YEARS, R/O NO.732, ARKESHWARA NAGAR, GUTTALU MANDYA-571403

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GAYOTHRI

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W/O M.D. TAMANNA, AGED ABOUT 64 YEARS, R/O MADAGAHALLI VILLAGE, BANNURU HOBLI,

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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T. NARASIPURA TALUK, MYSURU DISTRICT-571101

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3. SUDHAMANI

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W/O NANADARAJ, AGED ABOUT 60 YEARS, R/O NO.456, THERINA STREET, GUTTALU, MANDYA-571403

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4. BHARATHI

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W/O DASEGOWDA, AGED ABOUT 40 YEARS, R/O EDIGOWDRU BEEDI, ALURU VILLAGE, CHAMARAJANAGARA TALUK-571312

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2 - NC: 2024:KHC:45439 MFA No. 5305 of 2024

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5. REKHA

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W/O RAMAKRISHNA, AGED ABOUT 46 YEARS, MEGALAHUNDI VILLAGE, BENDRAVADI POST,

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CHAMARAJANAGARA TALUK-571312

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…APPELLANTS

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(BY SRI SYED AKBAR PASHA, ADVOCATE) AND:

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1. KUSAPPA

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S/O LATE MADAPPA, AGED ABOUT 50 YEARS, R/O B MALLAIANAPURA VILLAGE, CHANDAKAVADI,

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CHAMARAJANAGAR TALUK-571312

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PUTTASWAMEGOWDA S/O KULLEGOWDA,

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AGED ABOUT 83 YEARS,

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SHANKAREGOWDA S/O PUTTASWAMEGOWDA, AGED ABOUT 52 YEARS,

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RESPONDENT No.2 AND 3 ARE R/AT MEGHALAHUNDI VILLAGE, BENDARAVADI, CHAMARAJANAGAR TALUK-571312

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…RESPONDENTS

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(BY SRI GIREESHA KODGI, ADVOCATE)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 18.11.2023 PASSED ON I.A. NO. 1 IN O.S.NO. 163/2023 ON THE FILE OF THE SENIOR CIVIL JUDGE AND C.J.M., CHAMARAJANAGAR AND ETC.

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3 - NC: 2024:KHC:45439 MFA No. 5305 of 2024

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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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ORAL JUDGMENT

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This appeal is filed challenging the order dated 18.11.2023 passed on I.A.No.1 in O.S.No.163/2023 by the Senior Civil Judge and CJM, Chamarajanagar.

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Heard the learned counsel appearing for the respective parties on I.A.No.2/2024.

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The factual matrix of the case of the plaintiffs before the Trial Court is that the suit schedule properties are the ancestral properties and defendant Nos.2 and 3 have sold the property in favour of defendant No.1 on 04.03.2004 and they contended that if the property is further alienated, it will leads to multiplicity of proceedings. It is contended that inspite of repeated request made to defendant Nos.2 and 3 for partition and separate possession of their share, they protracted the

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4 - NC: 2024:KHC:45439 MFA No. 5305 of 2024

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same and not heeded to the request made by the plaintiffs. Now the plaintiffs came to know that in the month of April 2023, defendant Nos.2 and 3, concealing their rights, have sold the property to defendant No.1 and defendant No.1 trying to sell the suit schedule properties to third person. Hence, prayed to restrain respondent Nos.1 to 3 from alienating and creating charge in any mode over the suit schedule properties till the disposal of the appeal.

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Defendant No.1 appeared and filed statement of objection resisting the application contending that properties of suit schedule item Nos.1 and 2 were purchased by defendant No.1 by a registered sale deed dated 04.03.2004, since then, he is in possession of the property and he developed and converted the same as non-agricultural land by making irrigation systems. Defendant Nos.2 and 3 having jealous against defendant No.1 and with an intention to trouble defendant No.1, joined hands with the plaintiffs and filed the suit seeking

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5 - NC: 2024:KHC:45439 MFA No. 5305 of 2024

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the relief of partition and separate possession. It is also contended by defendant No.1 that he is a disabled person and the family of defendant No.1 is depending on the income from item Nos.1 and 2 of the suit schedule properties and defendant No.1 has taken sufficient loan to develop the said properties. Hence, submits that there cannot be any order of temporary injunction. It is also contended that the plaintiffs is immune under Section 6 of the Indian Succession Act since there is an amendment, but amendment came into effect only in the year 2005 and also contended that the suit is also barred by limitation.

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The Trial Court having considered the grounds

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urged in the suit and also considering both oral and documentary evidence placed on record, made an observation in paragraph 10 that RTCs clearly go to show that even there are several other properties in the name of Puttaswamygowda, the same are not included by the plaintiffs. As per Hindu amended Succession Act, 2005 as on 09.09.2005, if the property is not available for

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6 - NC: 2024:KHC:45439 MFA No. 5305 of 2024

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partition, that will not be taken into consideration. The plaintiffs intentionally not included other properties for partition. The plaintiffs suppressing the material facts, filed the suit only to cause wrongful gain to this defendant. Now, with an intention to grab the properties which is developed by defendant No.1, filed the suit excluding some of the properties. Hence, the plaintiffs have not made out prima facie case and rejected the application.

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The learned counsel appearing for the appellants would vehemently contend that the very approach of the Trial Court is erroneous and ought not to have comes to such a conclusion and even if any properties are not included, plaintiffs can add the other properties belongs to the family. The counsel submits that an application is also filed before the Trial Court in this regard and the same is pending for consideration. It is contends that by virtue of the State Amendment of the year 1994, the daughter has given equal right as of son, thus, the plaintiffs are also entitle for equal share.

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NC: 2024:KHC:45439 MFA No. 5305 of 2024

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Defendant Nos.2 and 3 have no exclusive right to sell suit schedule item Nos.2 and 3. Therefore, the impugned order is bad in law.

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Per contra, learned counsel appearing for the respondents would vehemently contend that the Trial Court rightly observed that plaintiffs have not included all family properties and dismissed the application. The counsel would vehemently contend that the suit is barred by limitation since the property was sold in the year 2004 and the suit is filed in the year 2023. The appellants have the knowledge of the sale made by defendant Nos.2 and 3. Hence, the Trial Court rightly rejected the application and it does not require any interference.

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Heard the learned counsel appearing for the respective parties and perused of the material available on record. Taking into note of the fact that if all the properties are not included, suit cannot be adjudicated. Apart from that the counsel for the respondents submit that the suit is barred by limitation. The said fact is a mixed question of

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8 - NC: 2024:KHC:45439 MFA No. 5305 of 2024

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law and fact and whether the plaintiffs have the knowledge

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of the sale made by defendant Nos.2 and 3 in favour of

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defendant No.1 or not is also a matter of trial. The counsel for the appellants brought to notice of this Court that the amendment brought by the Karnataka State gives a right to the daughters also and the same is also subject

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to the restrictions whether amendment of 1994 comes to the aid of the appellants or Section 6 which was amended in the year 2005 is applicable to the case of the appellants is a matter of consideration at the time of trial. The counsel for the appellants submits that the properties are the ancestral properties and whether it is an ancestral property or an individual property of defendant Nos.2 and 3 also to be considered by the Trial Court at the time of trial. Having considered prima facie fact that the plaintiffs are the daughters of the family and whether all of them are entitled under the benefit of 1994 amendment made by the Karnataka State also to be considered during the course of the trial. When such material available on record, Trial Court ought not to have rejected the

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9 - NC: 2024:KHC:45439 MFA No. 5305 of 2024

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application only on the ground that all properties of the family are not included and the same can be included at any time and nothing has been discussed in the order with regard to the right of the plaintiffs is concerned. Hence, the Trial Court committed an error in dismissing the application and it requires interference of this Court. Accordingly, I.A.No.2/2024 is allowed and respondent Nos.1 to 3 are restrained from alienating and creating charge over the suit schedule properties till disposal of the suit. With this observation, the appeal is disposed of.

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Sd/(H.P.SANDESH) JUDGE

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Prema v. Kusappa

Case brief

What is this about?

What did the court decide?

Prema v. Kusappa

Case brief

What is this about?

What did the court decide?

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