Allowed

Sri. R. Ravi v. Sri. Ramappa

Karnataka HC26 Feb 2024MFA/5617/2019

Case brief

AI extract

What is this about?

In a partition suit, the High Court allowed an appeal against the dismissal of an interim injunction application. The court held that prima facie triable case existed regarding property nature and granted stay on alienation to prevent multiplicity of proceedings. The defendants are restrained from transferring suit properties until trial conclusion.

What did the court decide?

Order of 16.04.2019 set aside; injunction granted restraining defendants from alienating, encumbering, transferring or parting possession of suit properties until suit disposal.

Sri. R. Ravi Vs Sri. Ramappa — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:7920 MFA No. 5617 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ MISCELLANEOUS FIRST APPEAL NO.5617 OF 2019 (CPC)

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BETWEEN:

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SRI. R. RAVI, S/O. SRI. RAMAPPA, AGED ABOUT 37 YEARS, R/AT NO. 89/5, NEW NO. 385, 2ND CROSS, YELLAMMADEVI NILAYA, BEHIND BBMP OFFICE, BELLANDUR, BANGALORE - 560 103.

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…APPELLANT

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(BY SMT. ANUSHA ASUNDI, ADVOCATE FOR SRI. A. MADHUSUDHANA RAO, ADVOCATE)

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AND:

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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SRI. RAMAPPA, S/O. LATE MUNIYELLAPPA, AGED ABOUT 65 YEARS, R/AT NO. 89/5, NEW NO. 385, 2ND CROSS, YELLAMMADEVI NILAYA, BEHIND BBMP OFFICE, BELLANDUR, BANGALORE - 560 103.

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SRI. RAJESH, S/O. SRI. RAMAPPA, AGED ABOUT 35 YEARS, R/AT NO. 89/5, NEW NO. 385, 2ND CROSS, YELLAMMADEVI NILAYA, BEHIND BBMP OFFICE, BELLANDUR, BANGALORE - 560 103.

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2 - NC: 2024:KHC:7920 MFA No. 5617 of 2019

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SMT. MEENAMMA @ MEENAKSHI D/O. SRI. RAMAPPA, AGED ABOUT 39 YEARS, R/AT NO.55, 1ST CROSS, YELLAPPA LANE, MURUGESHPALYA, HAL POST, BANGALORE - 560 017.

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…RESPONDENTS

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(BY SRI. NAGARAJA Y., ADVOCATE FOR R1; SRI. BALACHANDRA A.T., ADVOCATE FOR R2; SRI. ANIL KUMAR, ADVOCATE FOR SRI. H.C. NATARAJ, ADVOCATE FOR C/R3)

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THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 16.04.2019 PASSED ON I.A.NO.I IN OS.NO.1615/2019 ON THE FILE OF THE XLII ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU [CCH-NO.43], DISMISSING THE I.A.NO.I FILED UNDER ORDER 39 RULE 1 & 2 R/W SECTION 151 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed against the order dated 16.04.2019 passed by the XLII Additional City Civil and Sessions Judge, Bengaluru (CCH-No.431) in OS No.1615/2019, by which an application under Order 39 Rule 1 and 2 read with Section 151 of CPC., was rejected.

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NC: 2024:KHC:7920 MFA No. 5617 of 2019

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For the sake of convenience, the parties shall henceforth be referred to as they are arrayed before the Trial Court.

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The suit in OS No.1615/2019 was filed for partition and separate possession of the plaintiff's share in the suit schedule properties. The plaintiff claimed that the suit item Nos.1 to 5 properties were allotted to the share of defendant No.1 at a partition between him and his brothers and the other items of the suit properties were purchased by defendant No.1 out of the income of the joint family. He contended that his request for partition and separate possession was not considered by the defendants, which forced him to sue for partition. The plaintiff also sought for an order of interim injunction restraining the defendants from alienating or encumbering or transferring the suit schedule properties in any manner till disposal of the suit. This application was contested by defendant No.1. He claimed that he was employed at a handloom and out of his own earning, he purchased suit item Nos.6 to 11 and therefore, claimed that it was his self acquired properties. He claimed that suit item No.1 was an ancestral property, suit item No.2 was acquired by the Karnataka

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4 - NC: 2024:KHC:7920 MFA No. 5617 of 2019

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Industrial Areas Development Board (KIADB) and thus was not available for partition and suit item Nos.3 to 5 belonged to the brothers of defendant No.1 and that it was not partitioned amongst his brothers.

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Defendant No.2 also objected to the application contending that he was vending spinach and flowers and was distributing milk and paper and that out of his own income he had purchased suit item Nos.8 to 11 and therefore, it was his self acquisition. He claimed that the plaintiff is not entitled for any share in the said properties. The defendant No.3 contended that suit item Nos.7 to 11 were the self acquired properties of defendant Nos.1 and 2 and that the said properties were gifted to her and therefore, she had acquired title over the said properties. Based on these contentions, the Trial Court rejected the application filed by the plaintiff for interim injunction on the following grounds;

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i. That there was a dispute regarding the nature of the properties.

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ii. The defendants had produced the sale deeds which indicate that some of the properties stood in their individual names.

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5 - NC: 2024:KHC:7920 MFA No. 5617 of 2019

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iii. That the defendants claimed that suit item Nos.3 to 5 were not partitioned between the defendant No.1 and his brothers.

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iv. The existence of the joint family or otherwise and whether the suit properties is the joint family or not and whether the plaintiff received his share or not and whether the suit is bad for non-joinder of necessary parties or not, could be adjudicated only after the full fledged trial.

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v. That the injunction cannot be granted against owners.

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The learned counsel for the plaintiff submits that the suit is for a substantive relief of partition. He contends that admittedly, suit item Nos.3 to 5 are the properties of the joint family and admittedly were not partitioned. He therefore contends that there is an initial presumption that when the joint family possessed sufficient properties, the property purchased by the family or any of its members are acquired out of income from joint estate. The question whether those properties that were purchased by the defendants were out of their own income or out of the income of the joint family was a question

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6 - NC: 2024:KHC:7920 MFA No. 5617 of 2019

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of fact which has to be established only after a trial. He therefore, contends that the Trial Court must have protected the properties from being frittered away by the respondents, which could lead to multiplicity of proceedings.

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Learned counsel for the respondents on the other

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hand, contended that the Trial Court has carefully gone through the records and has held that the issue whether the plaintiff is entitled to a share or not is a question of fact that has to be decided only after full fledged trial and therefore, no injunction should be granted against the defendants.

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I have considered the submissions made by the learned counsel for the appellant as well as the learned counsel for the respondent No.3.

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The grant of an order of injunction more particularly, restraining the defendants from alienating the suit schedule properties is very onerous and is granted only to maintain status-quo of the properties until the disposal of the suit. This is subject to the plaintiff making out a prima-facie triable case and also establishing the fact that refusal to grant injunction would result in incalculable hardship and that the defendants would not suffer any inconvenience. In the case on

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NC: 2024:KHC:7920 MFA No. 5617 of 2019

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hand, admittedly the family possessed suit item Nos.3 to 5, which possibly generated some income. If that be so, then a presumption could be drawn that the funds of the family and its members were utilized to purchase the other properties. The defendants could always rebut the presumption and establish that the properties were purchased out of their own funds. However, the defendants cannot be allowed to sell the suit properties, as that would result in multiplicity of proceedings and delay in deciding the suit of the defendants and desire to sell the suit properties, they are always at liberty to approach the Court for permission to sell. Though the learned counsel for the defendants undertook they would not alienate, this Court considers it appropriate to restrain the defendants from alienating the suit properties until disposal of the suit before the Trial Court.

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In that view of the matter, the appeal is allowed. The impugned order dated 16.04.2019 before the Court of XLII Additional City Civil and Sessions Judge, Bengaluru in OS No.1615/2019 is set aside and the application filed by the plaintiff in I.A.No.1/2019 is allowed and the defendants are restrained from alienating, encumbering or transferring or

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NC: 2024:KHC:7920 MFA No. 5617 of 2019

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parting with possession of any portion of the suit schedule properties in any manner what so ever in favour of any person whosoever, until disposal of the suit before the Trial court.

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It is open for the appellant to submit a copy of this order before the concerned Sub Registrar, who shall take steps to give effect to this order.

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Sd/JUDGE

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KBM List No.: 1 Sl No.: 41 CT:SNN

Sri. R. Ravi v. Sri. Ramappa

Case brief

What is this about?

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Sri. R. Ravi v. Sri. Ramappa

Case brief

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