In a partition suit challenging gift deeds and a Will as fraudulent, the plaintiff sought an order directing the defendants to deposit rents from the suit property pending trial. The High Court found no prima facie case made out and dismissed the appeal upholding the trial court's refusal.
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 21ST DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 6782 OF 2023 (CPC)
BETWEEN:
SRI. L.C. KRISHNAMURTHY, S/O LATE CHINNAPPA, AGED ABOUT 56 YEARS, R/AT NO. 132/3C, 2ND MAIN, G.M. PALYA, K.G. COLONY, BANGALORE - 560 075.
…APPELLANT
(BY SMT. GEETHA DEVI M.P., ADVOCATE)
AND:
Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA
BOTH ARE RESIDING AT 1ST MAIN ROAD, JALAKANTESHWARA, MALLESHAPALYA, BANGALORE - 560 075
…RESPONDENTS
(BY SRI. DHANANJAY JOSHI, SENIOR COUNSEL A/W SRI. VAEHAN H.V., ADVOCATE FOR R1 AND R2)
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THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 30.08.2023 PASSED ON I.A.NO.5 IN OS.NO. 9285/2019 ON THE FILE OF THE 17TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-16, DISMISSING THE I.A.NO.5 FILED UNDER 39 RULE 10 R/W SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Being aggrieved by the orders passed by the trial Court on I.A.Nos.5 and 10 dated 30.08.2023 in O.S.No.9285/2019, the plaintiff is before this Court.
other children of late L. Chinnappa and also a sought for mandatory injunction directing defendants Nos.1 and 2 to cancel the entries in the relevant deed duly registered vide documents aforementioned and restored the original entries in the records of the office of the Sub-Registrar and sought for decree of permanent injunction against defendant Nos.1 and 2 , not to cause any act of interference or any act which deprive the legitimate lawful right of the plaintiff in the suit schedule property. It is the specific case of the plaintiff that the property belongs to
late L.Chinnappa and he was married to One Smt. Ramakka. Out of the wedlock, 8 children were born. The father of the plaintiff L.Chinnappa got share of properties by virtue of deed of partition amongst the brother of Sri L. Chinnappa dated 26.06.1984. The father of the plaintiff L. Chinnappa executed a registered Will dated 20.10.1993 bequeathing the properties proportionately in the family to all the children vide document dated 20.10.1993. The partition in the joint family is recognized in different methods. By virtue of the registered partition dated
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20.10.1993, the properties situated in the village G.M. Palya bearing Sy.Nos.65, 66 and house properties are partitioned by metes and bounds given in to effect and the same was acted upon by the parties and relevant revenue records are also produced before the Court. The children have developed the properties allotted in the partition. There are developments by way of multistoried residential apartments in the land and by virtue of joint development, the parties have also got several dwelling houses apportioned to their shares. It is stated that the father L. Chinnappa passed away on 17.3.1996 and the mother Smt. Ramakka passed away on 19.07.2001. The property that fell to the share of one of the brother Sri. G.C. Shekar, who is unmarried and addicted to bad vices, at the instance of defendant Nos.1 and 2 had executed several documents gift deeds in favour of defendant Nos.1 and 2. It is the case of the plaintiff that the said documents are by playing fraud and keeping him in intoxicated state, those documents are obtained. He has no issues, as such the properties will fall to the share of
the other surviving brothers who are the class-II heirs and the documents purported to be executed by Sri G.C. Shekar in favour of defendant Nos.1 and 2 is not binding on them, even the Will that is also not binding. The defendants have filed their written statement. It is the case of the defendants that the documents are executed by G.C. Shekar and in fact a registered Will is executed on 22.01.2018 and the suit filed itself is not maintainable. In the suit, two IAs. were filed by the plaintiff i.e., I.A.No.5 and I.A.No.10. I.A.No.5 is filed under Order XXXIX Rule 10
read with section 151 of CPC to direct defendant Nos.1 and 2 to deposit the rents before the Court and they have also filed another interlocutory application i.e., I.A.No.10 under section 151 of CPC with a prayer to direct defendant Nos.1 and 2 to deposit the rental amount of the suit property in the Court. Along with the application, they have stated who are the tenants residing in the said building and what is the amount that is derived from the said properties. The Court had dismissed the application filed under Order XXXIX Rule 10 observing that such an
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application is not maintainable except in a suit for recovery, when it comes to I.A.No.10 filed under Section 151 of CPC, the Court had considered various judgments that were relied on by the plaintiff that how the application is maintainable and while considering the same the judgment relied on by the plaintiff in W.P. No.109699/ 2017 (GM-CPC), the Court observed that the suit property and the procedure of the cases are different. The judgments are not applicable to the case. The Court observes that the plaintiff has not questioned the gift deeds in the name of defendant No.1. The mesne profit is not sought for in the application. The documents relating to rent and mortgage are not submitted. It was stated in the plea that the registered gift deed was fraudulent. The application filed by the plaintiff cannot be entertained unless and until the said suit is decreed and the Will is cancelled. In the suit, the Court finds it appropriate to frame the issues and examine the parties to the suit. With the said observation, the Court had dismissed the IAs.filed by the plaintiff.
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Smt. Geethadevi M.P. submits that when they are claiming
that the gift deeds that were executed are fraudulent and it is the case that all the parties are entitled for partition of the said properties, in the meantime, the defendant Nos.1 and 2 are permitted to derive the rents from the said properties, even in the event, if they succeed in the suit, they will not be able to realize the said amount and for protecting the interest of the parties, the Court ought to have passed an order. It is submitted that the Court went
on a premise that when they have not sought for mesne profits, such an application is not maintainable. It is submitted that the same is contrary to the judgments of various Courts. She had relied on the judgment of the Patna High Court in the case of Ram Narain Prasad Sah vs. Ramji Prasad Sah and others reported in 1956 SSC Online Pat 10 , wherein she has relied on paragraph Nos.36 to 38, which reads as under:
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"36. A member of a Hindu family suing for partition and for the profits on his share is really suing for an account of profits received by the manager, or the person, in possession, so that the proceeds so received by the latter, which are also divisible property, may be divided and his share therein also given to him. Such a sharer has a clear right to an account of the profits received by the person in possession of the whole, and to be awarded his share thereof, not as mesne profits received by a person in wrongful possession, but as appurtenant to the plaintiff's right in his share of the lands.
37. To treat the claim for an account of the proceeds of the family estate as a claim for mesne-profits is entirely wrong. 'Mesne profits', according to the definition given in Section 2(12) of the CPC) means those profits, which "the person in wrongful possession actually received, etc." These provisions are intended for and are applicable to suits for land or other property, in which the plaintiff has a specific interest, and not to a suit for partition, where he has no specific interest until decree.
38. In a partition suit, brought by a member of a Hindu family, the plaintiff is not
ordinarily entitled to claim an account of past profits, but he is entitled to have an account taken of the profits, of the properties subsequent to the date of the suit. The fact that the plaint in a partition suit does not contain a specific prayer for profits from the date of the suit does not preclude the Court from entertaining the plaintiff's claim for such profits, and from determining the liability for such profits at the time of the preliminary decree."
Relying on this judgment, learned counsel submits that the Court in the interest of the parties, can always pass an order. She had also relied on the judgment of this Court in the case of Sri. Manjunath v. Mohan in Writ Petition No.109699/2017 (GM-CPC) and another judgment of the Delhi High Court in the case of M/s. Jwala Pershad Ashok Kumar Chopra H.U.F. and another vs. M/s. Nath Tubes Pvt. Ltd. and others reported in 1994 SCC Online Del 342 , wherein she relied on paragraph No.5, which reads as under:
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"5. The question of passing orders for payment of the amount equal to the rent has come up for decision before various courts. Counsel for the defendants had relied upon the decisions of this court in the case of Brig. S.S. Suri (AVSM) (Retd) v. R. Chander Shekar reported as 1994 (1) Apex Decisions (Delhi) 98 (Paras 1). I am unable to appreciate as to how this ruling helps the defendants because it has been clearly held in the said case that an order for deposit of rent can be by the Court in fair exercise of its judicial discretion. The court in that case has examined the provisions of Order 39, Rule 10, C. P.C. which reads as under :-
"Where the subject matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the court may order the same to be deposited in court or delivered to such last named party with or without security, subject to the further direction of the court."
and also Order 12, Rule 1, C.P.C. and Section 151, C.P.C. can be involved to cover all such
cases. The Court had clearly held in that case that the court can in a case of this kind in fair exercise of its judicial discretion order for deposit of money pending the decision of the suit."
And also, she relied on another judgment in case of Sangeeta Prints vs. Hemal Prints and others reported in 1985 SCC Online Bom 103, wherein she relied on paragraph Nos.10 and 14, which reads as under:
"10. It is, however, contended by Mr. Rane, learned advocate for the petitioner, that Bower under O. XVA, to order the defendant to deposit arrears of rent and to deposit rent for each month pending the disposal of the suit, in the interest of justice, should be extended to cases between a licensor and licensee. It is pointed out by Mr. Rane that under S. 151. Civil P.C. the court can pass an order, similar to that under O. XVA, ex debito justitiae and in order to avoid abuse of the process of court. There is much force in this contention.
14. In the case of Chandrakant Shankarrao Deshmukh v. Haribhau Tukaramji
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Kathane reported in 1983 Mah LJ 88 a Division Bench of this High Court considered the case of a landlord who had filed a suit against his tenant for delivery of possession. The court held that under S. 151, C.P.C. read with O. XXXIX R. 10, the court had power to require the tenant to deposit or pay rent during the pendency of the suit. This case was decided prior to the introduction of O. XV-A in the Code of Civil Procedure. The Division Bench of this court overruled an earlier judgment of a single Judge of this court reported in the case of Suresh Haribhau Admane v. Purushottam Shankarrao Purohit reported in 1982 Mah LJ 99 In this case a learned single Judge of this court had held that an order of interim deposit of rent could not be passed by the court under S. 151 Civil P.C. during the Pendency of the suit. This decision was expressly overruled by the Division Bench which held that the court had such a power under S. 151, Civil P.C. The Division Bench observed that in many cases landlords depend for their livelihood upon the income from the properties. It would be a hardship in the circumstances if the landlord has the misfortune of having to file suits against his tenants who cannot be ordered to pay any amount on account of their use and
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occupation of their premises while the landlord is required to meet his responsibilities."
Relying on these judgments, learned counsel submits
that the Court failed to consider the application filed by the parties and failed to safeguard the interest of the plaintiff. The order impugned has to be set-aside and the IA No.10 has to be allowed.
that the suit itself is not maintainable. It is submitted that in the written statement, they have submitted that the registered Will is executed by the brother and now the matter is set up for trial. Even till now they have not sought for cancellation of that Will unless and until the cancellation is sought, the suit itself is not maintainable. Further, he submits that even to claim
such a relief from the Court, they have to make out a prima facie case. Learned Senior Counsel had relied on an order passed by the Co-Ordinate bench of this Court in
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WP No. 16170/2017 (GM-CPC) dated 07.06.2017 in case of Smt.K.Neerajakshi and others vs. Sri.
K.Vijaya Prakash and others . He relied on paragraph No.5, which reads as under:
"5. Having heard the learned Advocates appearing for parties and on perusal of records, it would disclose that trial Court while considering the claim of plaintiffs to direct defendants-4 to 7 to deposit the rents has perused the gift deed dated 15.06.2009 which. related to item No. 1 of suit property and has opined that it relates to an extent of 12133 sq.ft. and other registered gift deed dated 24.05.2006 relates to item No.3 of suit property and both these gift deeds are also executed by plaintiffs themselves. As such, in respect of claim for depositing of rents relating to these two properties, trial Court has rightly held that plaintiffs have not made out prima facie. Insofar as item No.2 of the property is concerned when it was the specific contention of defendant No.1 that father of plaintiffs had executed a Will in favour of plaintiffs and defendants-1 and 2 on 07.07.2014 excluding second plaintiff granting 1/6th share to all the children. including his wife i.e., second
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defendant and parties namely, defendants-1 and 2 are receiving rents in respect of item No.2 of the property. In the light of the said contention raised in the written statement and trial Court having examined these three documents has arrived at a conclusion that there is no prima facie case in favour of plaintiffs. Even otherwise, when the plaintiffs have claimed the relief of mesne profits, their claim would be covered and in the event of plaintiffs succeeding in the suit, they will not be left in the lurch. In that view of the matter, this Court finds there is no merit in this writ petition. Hence, writ petition is hereby dismissed.
Relying on the said judgment, learned Senior Counsel submits that no prima facie case is made out for granting such a relief to the plaintiff and the Court had rightly dismissed the applications and no grounds are made out seeking interference with the said order passed by the Court. He also submits that when they have sought for relief of injunction, the trial court had exercised the discretion in a judicious manner. This Court exercising jurisdiction under article 227 cannot interfere with an
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order unless and until this Court comes to the conclusion that such a discretion exercised by the Court is not in consonance with the settled law.
side, perused the material on record. The undisputed facts in this case are that properties are partitioned among the family members and suit schedule properties fell to the share of the deceased brother of the plaintiff. The deceased brother had executed gift deed and also a Will in favour defendant Nos.1 and 2. One document is as old
as of the year 2013 and the other document is of the year 2016 and the Will is of the year 2017. The suit is filed in the year 2019. It is the case that there is no dispute that the properties belongs to the deceased brother. It is the
case of the plaintiff that those documents were fraudulent documents when the brother was not in a fit state of mind, defendants have obtained these documents and they are not binding on them and that property has to devolve upon all other class – II heirs. Whether such an application
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is maintainable or not, this Court is not going into that issue, when an application is filed under Section 151 CPC with the powers inherent to the Court in the interest of parties when a particular order needs to be passed, Court can always consider the same and pass orders in the interest of justice. In the facts and circumstances, whether such an order needs to be passed is the question that has
to be decided by this Court. There are documents right from the year 2016, which were questioned only in the year 2019. Unless and until the Court comes to the conclusion that those documents as alleged by the plaintiff are obtained by fraud and they are not binding on the plaintiff, there cannot be an order directing the defendants to deposit the rents before the Court. Even if it is a Joint family property and they are seeking partition among the family members, even in that case also the Court can interfere and pass an order so that the interest of the parties are protected. But it is a case where the property is absolute property of the deceased brother and the documents that are executed by him are is questioned by
one of the brother saying that it is a fraudulent document. In those circumstances, this Court is of the view that there
is no prima facie case that is made out by the plaintiff and at this stage, on order of such nature as sought for by the plaintiff cannot be passed. Hence, in that view of the matter, this Court finds no reasons to interfere with the well considered order passed by the trial Court. Accordingly, this Court is passing the following:
ORDER
(i) The appeal is dismissed . (ii) The observations made by this Court are only for the purpose of deciding this Interlocutory Application and the trial Court shall not construe any of these observations as expression of the Court and shall independently decide the suit uninfluenced by any of the observations.
(iii) All IAs. in the appeal shall stand closed.
SD/(LALITHA KANNEGANTI) JUDGE
KA, List No.: 1 Sl No.: 9
2 issues framed by the court
Can defendants be directed to deposit rents from suit schedule properties pending a partition suit challenging gift deeds and a Will as fraudulent?
Did the plaintiff make out a prima facie case for such an interim deposit order?
Colour shows how this judgement treated each authority
Ram Narain Prasad Sah vs. Ramji Prasad Sah and othersReferred¶3
1956 SSC Online Pat 10
Sri. Manjunath v. MohanReferred¶3
Writ Petition No.109699/2017 (GM-CPC)
M/s. Jwala Pershad Ashok Kumar Chopra H.U.F. and another vs. M/s. Nath Tubes Pvt. Ltd. and othersReferred¶3
1994 SCC Online Del 342 · Who else cites this
Sangeeta Prints vs. Hemal Prints and othersReferred¶3
1985 SCC Online Bom 103 · Who else cites this
Smt. K. Neerajakshi and others vs. Sri. K. Vijaya Prakash and othersReferred¶4
WP No. 16170/2017 (GM-CPC) dated 07.06.2017
3 provisions across 1 enactments
Sri. L.C. Krishnamurthy
Smt. Kalpana
Sri. Sampangirama
Lalitha Kanneganti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
