Allowed

Smt. Komala v. Sri G S Mahendra

Karnataka HC7 Mar 2024MFA/790/2024

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a miscellaneous first appeal against the rejection of an interim injunction application. Setting aside the lower court's order, it permitted the plaintiff to restrain defendants from alienating, encumbering, or transferring suit properties pending the disposal of the main suit, while noting that fraud allegations require a full trial.

What did the court decide?

Impugned order dated 03.01.2024 set aside; application for interim injunction allowing restraint on alienation, encumbrance, or transfer of suit properties until suit disposal allowed.

Smt. Komala Vs Sri G S Mahendra — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:9593 MFA No. 790 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ MISCELLANEOUS FIRST APPEAL NO. 790 OF 2024 (CPC)

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BETWEEN:

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SMT. KOMALA W/O. SRINIVASA, D/O. LATE M. SIDDAIAH AGED ABOUT 65 YEARS, PREMANENT ADDRESS: NO.04, ASHRAYA APARTMENTS, 3^RD MAIN, SAMRAT LAYOUT, BANNERAGHATTA ROAD, ARAKERE, BANGALORE-560076. (BY SMT. LATHA SHETTY, ADVOCATE)

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…APPELLANT

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AND:

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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SRI. G.S. MAHENDRA S/O LATE M. SIDDAIAH AGED ABOUT 61 YEARS, RESIDING AT NO.672/A, 11^TH CROSS, 7^TH BLOCK (WEST), JAYANAGAR BANGALORE-560082.

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SRI. G.S. RAVINDRA S/O LATE M. SIDDAIAH, AGED ABOUT 55 YEARS, NO.314, GROUND FLOOR, 14^TH CROSS, 1^ST FLOOR, 2^ND BLOCK, JAYANAGAR BANGALORE-560011.

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SMT. INDIRA GNANENDRA W/O LATE G.S. GNANENDRA AGED ABOUT 54 YEARS NO.315, 14^TH CROSS, 1^ST FLOOR, 2^ND BLOCK, JAYANAGAR,

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NC: 2024:KHC:9593 MFA No. 790 of 2024

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BANGALORE-560011

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…RESPONDENTS

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(BY SMT. R. RASHMI SAGAR, ADVOCATE FOR SRI. B.S.RAGHU PRASAD, ADVOCATE FOR CAVEATOR RESPONDENT NO.2)

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THIS MFA IS FILED UNDER ORDER XLIII RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 03.01.2024 PASSED ON IA NO.6 IN O.S.NO.439/2022 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-28), REJECTING IA NO.6 FILED UNDER ORDER XXXIX RULE 1 AND 2 OF CPC.

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

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JUDGMENT

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The plaintiff in O.S.No.439/2022 on the file of XIV Additional City Civil and Sessions Judge, Bengaluru has filed this appeal challenging an order dated 03.01.2024 passed therein, by which, an application (I.A.No.6) filed by her for interim injunction restraining the defendants from alienating or transferring the suit properties was rejected.

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Briefly stated, the facts that can be gathered from the plaint are that the plaintiff is the sister of the defendants. The plaintiff claimed that a suit for partition and separate possession was filed in O.S.No.7283/2009, where it was declared that the plaintiff was entitled to

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3 - NC: 2024:KHC:9593 MFA No. 790 of 2024

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1/6^th share in the suit properties. The said judgment and decree was challenged by the defendant Nos.1 to 5 therein in RFA No.552/2014 and the said appeal was dismissed for non-prosecution vide order dated 10.08.2022. The plaintiff contended that when she was severely distressed due to the demise of her husband, the defendants managed to obtain a release deed, whereby, she purportedly released her right, title and interest in suit properties. She contended that she was informed by her son about the release deed executed and therefore, she was advised to file a suit for declaration that the release deed referred above was obtained fraudulently. Along with the plaint, she filed an application for interim injunction to restrain the defendants from alienating or encumbering the suit properties.

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The suit was contested by the defendants who claimed that the plaintiff was an educated lady and that she was present before the Sub-Registrar along with another sister - Smt. Rohini and that they executed a

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NC: 2024:KHC:9593 MFA No. 790 of 2024

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release deed. They contended that they had helped the plaintiff in meeting the expenses of construction of a house on a property that stood in the name of her husband at Shivamogga and that sufficient gold jewellery was given to her at the time of her marriage. They therefore, contended that the release deed was executed by the plaintiff with eyes wide open and that she was aware of the consequences and hence, she cannot turn around and claim that the release deed was obtained fraudulently.

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The Trial Court after considering the

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contentions urged, rejected the application filed by the plaintiff for interim injunction on the ground that there was no cogent evidence to establish that the defendants had obtained the release deed fraudulently. It also held that the plaintiff had affixed her signature to the release deed and that the plaintiff being an educated lady who had appeared before the Sub-Registrar cannot turn around and claim that the release deed was obtained without her

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5 - NC: 2024:KHC:9593 MFA No. 790 of 2024

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notice and knowledge and by playing fraud. It also held that the revenue records and other documents stood in the name of the defendants and that the defendants would suffer if an injunction order is passed against them. Being aggrieved by the said order this appeal is filed.

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The learned counsel for the appellant/plaintiff submitted that the plaintiff was declared as an undivided owner in respect of 1/6^th share in the suit schedule properties and that when her husband was on the death bed, defendants forced her to sign a document as a witness, which later turned down to be a release deed. She contended that the plaintiff had no intention to execute the release deed that too without any corresponding reward from the defendants. She contended that whatever mentioned in the release deed regarding the defendants meeting the expenses of construction of a house on the property belonging to the husband of the plaintiff are all concocted. She contended that since the plaintiff did not execute the release deed voluntarily, the

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6 - NC: 2024:KHC:9593 MFA No. 790 of 2024

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Trial Court ought to have protected the suit properties from being alienated or transferred so as to protect the right of the plaintiff.

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Per contra, the learned counsel for the

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defendant submitted that the release deed was not only executed by the plaintiff, but also by her another sister and the other sister did not challenge the execution of the release deed. She submits that in the circumstances, there was no material to establish that the release deed was obtained fraudulently. Even otherwise, she contends that the averments of the plaint did not conform to the requirement under Order VI Rule 4 of Civil Procedure Code and therefore, no interim injunction can be granted to the plaintiff.

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The grant of an order of interim injunction is only to maintain status-quo of the suit schedule properties, pending disposal of the suit before the Court. Since the plaintiff and the defendants have not disputed their relationship and also since the defendants do not

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NC: 2024:KHC:9593 MFA No. 790 of 2024

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deny that the plaintiff was entitled to 1/6^th share in the suit schedule properties, pursuant to judgment and decree passed in O.S.No.7283/2009, the antecedent title of the plaintiff is proved. The only question that needs to be considered whether the plaintiff was forced to execute the release deed in favour of the defendants and whether the defendants played fraud while obtaining the release deed from the plaintiff. This being a question of fact has to be established after full fledged trial.

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However, during the pendency of the suit, the defendants cannot be allowed to alienate or transfer or encumber the suit properties, which would result in creating third party rights and multiplicity of proceedings.

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In that view of the matter, this appeal is allowed. The impugned order dated 03.01.2024 is set aside and the application (I.A.No.6) filed by the plaintiff for interim injunction restraining the defendant from alienating the suit schedule properties is allowed and the defendants are restrained from alienating, encumbering or

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NC: 2024:KHC:9593 MFA No. 790 of 2024

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transferring the suit schedule properties in favour of any person, whomsoever until disposal of the suit.

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It is made clear that the plaintiff shall cooperate

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with the Trial Court in early disposal of the suit and shall not take any adjournment without a reasonable cause. In case if the Trial Court comes to the conclusion that the plaintiff is delaying or protracting the proceedings, Trial

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Court may take such steps at it may consider expedient.

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Sd/JUDGE

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List No.: 1 Sl No.: 36

Smt. Komala v. Sri G S Mahendra

Case brief

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Smt. Komala v. Sri G S Mahendra

Case brief

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