Sri H L Yogesh Vs Sri H L Satish

THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.07.03.2025 PASSED ON IA NO.1 IN O.S.NO.148/2024 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MADDUR, MANDYA DISTRICT, PARTLY ALLOWING IA NO.1 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC.

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THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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The appeal is filed by the appellant/plaintiff questioning the order dated 07.03.2025 passed on I.A.No.1 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC in O.S.No.148/2020 pending on the file of Additional Senior Civil Judge and JMFC, Maddur, whereby the application seeking temporary injunction against defendant Nos.1 to 3 restraining them from alienating suit schedule 'A' and 'E' properties till disposal of the suit.

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HC-KAR

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The plaintiff has filed suit for partition and

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separate possession of his 1/3^rd share in the suit schedule 'A' and 'E' properties by contending that the said suit schedule properties are ancestral and joint family properties.

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On contrary, the defendant Nos.1 to 3 have filed detailed written statement by contending that only item No.1 to 9 of the suit schedule 'A' properties are joint family properties and remaining properties are self acquired properties.

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The plaintiff has filed application under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, seeking for temporary injunction restraining the defendant Nos.1 to 3 from alienating suit schedule 'A' and 'E' properties till disposal of the suit.

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The Trial Court has allowed the application by granting temporary injunction against defendant Nos.1 to 3 restraining them from alienating in respect of item Nos.1 to 9 of the suit schedule 'A' properties and dismissed in

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HC-KAR

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respect of item Nos.10 to 25 of the suit schedule 'A' properties and item Nos. 1 and 2 of the suit schedule 'E' properties.

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Being aggrieved by the impugned order of the Trial Court by not granting temporary injunction against defendant Nos.1 to 3 in respect of item Nos.10 to 25 of the suit schedule 'A' properties and item Nos.1 and 2 of the suit schedule 'E' properties, the present appeal is preferred.

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7. Heard arguments on both sides and perused the

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material on record.

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The points that arise for consideration by this Court are as follows:

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(i) Whether, under the facts and circumstances of the case, the plaintiff make out prima-facie case on the basis of the materials produced before the Trial court for grant of an order of temporary injunction?

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(ii) Whether, under the facts and circumstances of the case, the plaintiff make out case of balance

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HC-KAR

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of convenience on the basis of the materials produced before the Trial court so as to grant an order of temporary injunction?

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(iii) Whether, under the facts and circumstances of the case, if an order of temporary injunction is not granted, then the plaintiff would suffer any irreparable loss or injury?

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Learned counsel for the appellant submits that item Nos.10 to 25 of the suit schedule 'A' properties and item Nos.1 and 2 of suit schedule 'E' properties are purchased out of the sale proceeds of joint family properties and place reliance on the sale deeds dated 06.11.2014, 13.01.2014, 06.08.2016 and also 06.11.2019 pertaining to the said properties. He further submits that the item Nos.10 to 25 of the suit schedule 'A' properties and item Nos.1 and 2 of suit schedule 'E' properties are not self acquired properties of defendant Nos.1 and 3, but the Trial Court ought to have considered the same in a proper perspective manner resulting in granting temporary injunction in part. Therefore, prays for granting temporary injunction insofar as item Nos.10 to 25 of suit

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HC-KAR

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schedule 'A' properties and item Nos.1 and 2 of the suit

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schedule 'E' properties.

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On the other hand, learned counsel for respondents/defendant Nos.1 to 3 submits that item Nos.10 to 25 of suit schedule 'A' properties and item Nos.1 and 2 of suit schedule 'E' properties are self acquired properties and the same are not joint family properties. As such, the Trial Court is correct in partly allowing the application seeking temporary injunction and place reliance on the additional documents produced before this Court, such as plan sanction, bank statement, sale deed which is in the name of defendant No.1, residential certificate issued by the competent authority, registered partition deed dated 19.03.2021, certificate of incorporation issued in favour of defendant No.1 by the Government of India, Ministry of Corporate Affairs. Therefore, prays to dismiss the appeal.

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The suit is filed for partition and separate possession of his 1/3^rd share and for account of suit

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HC-KAR

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schedule properties. The defendant No.1 and 3 are the brother and sister of the plaintiff respectively and the defendant No.2 is the son of defendant No.1. It is pleaded and contended that the suit schedule 'A' and 'E' properties are ancestral and joint family properties of the plaintiff and defendant No.1 and 3. The Trial Court has granted temporary injunction only in respect of item Nos.1 to 9 of suit schedule 'A' property. Insofar as item Nos.10 to 25 of suit schedule 'A' property and item Nos.1 and 2 of suit schedule 'E' property, the plaintiff has produced the registered sale deeds dated 06.11.2014, 13.01.2014 and 06.08.2016 which reveals that defendant Nos.1 and 3 and plaintiff have jointly sold the properties by mentioning that the said properties are joint family properties and out of this sale consideration, the plaintiff and the defendant Nos. 1 and 3 have received the amounts of Rs.10,00,000/-, Rs.9,88,000/- and Rs.17,00,000/- respectively. Further, the sale deed dated 06.11.2019 reveals that the plaintiff has sold the property to one Smt. Shobha L for a sale consideration of Rs.18,00,000/-. Admittedly, the said

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HC-KAR

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properties are joint family properties. Therefore, it is the contention of the plaintiff that out of the sale proceeds of joint family properties, the defendant Nos.1 and 3 have purchased item Nos.10 to 25 of suit 'A' schedule properties and item Nos.1 and 2 of suit 'E' schedule properties and the same is considered as joint family properties by raising presumption that those are joint family properties. The status of joint family members is perspective factor, but it cannot be so with regard to properties acquired by members of the joint family. Hence, the plaintiff has to prima-facie show relevant documents so as to prove the purchase of the said properties out of sale proceeds of joint family properties. In this regard, the plaintiff has produced the sale deeds out of which the properties at item Nos.10 to 25 of suit 'A' schedule properties and item Nos.1 and 2 of suit 'E' schedule properties are purchased. Thus, the properties purchased out of sale proceeds of joint family properties are deemed to be joint family properties. There is no dispute with regard to item Nos.1 to 9 of the suit 'A' schedule properties but the dispute is

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HC-KAR

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with regard to item Nos.10 to 25 of suit 'A' schedule properties and item Nos.1 and 2 of suit 'E' schedule properties.

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On the other hand, learned counsel for respondent/defendant Nos.1 to 3 place reliance on the documents produced by him such as copy of proceedings dated 19.05.2001 with regard to transfer of private bus, certificate of incorporation dated 15.02.2021, bank statement, sale deed and other relevant documents to show that defendant No.1 has sufficient income for purchasing the said properties.

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Admittedly, prior to filing of the suit, there was no partition in the family. There was no initial presumption that the properties at item Nos.10 to 25 in the suit 'A' schedule properties and item Nos.1 and 2 of the suit 'E' schedule properties are joint family properties which are purchased by defendant No.1 and 3. Therefore, such presumption is carried till the date of possession of the properties. Having considered all these

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HC-KAR

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documents, it is evident that even the above said properties are joint family properties which are purchased out of the sale proceeds of joint family properties. But the

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Trial Court has only observed that properties at item Nos.10 to 14, 16, 17, 19 to 25 properties are standing in the name of defendant No.1, the properties at item Nos.1 and 2 of suit 'E' schedule properties are standing in the name of defendant No.3 and as such, the plaintiff failed to prove the prima-facie case. But upon considering the documentary evidence on record, the question that arise for consideration is that whether the properties at item Nos.10 to 25 at suit 'A' schedule properties and item Nos.1 and 2 of suit 'B' schedule properties are purchased from sale proceeds of joint family properties or not? This being the question for consideration before the Trial Court as the plaintiff has not produced documents to show the same. But the plaintiff has produced some additional documents before this Court like sale deeds and other relevant documents to show that the properties that are in dispute

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HC-KAR

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are purchased out of sale proceeds of joint family properties.

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It is relevant to mention here the judgment rendered by the Hon'ble Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma and Ors¹ ., wherein it is held that the interest of coparceners and members of joint family has to be protected. Therefore, in order to avoid multiplicity of proceedings, this Court is of the view that plaintiff has made out prima-facie case and temporary injunction shall be granted in respect of item Nos.10 to 25 of suit 'A' schedule properties and item Nos.1 and 2 of suit 'E' schedule properties in favour of plaintiff restraining defendant Nos.1 to 3 from alienating the said properties. As observed by the Trial Court, just because the properties at item Nos. 10 to 25 of suit 'A' schedule properties and item Nos.1 and 2 of suit 'E' schedule properties are standing in the name of defendant Nos.1 and 3, they cannot be considered as self acquired

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1 AIR 2020 SC 3717

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HC-KAR

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properties at this stage, as they are purchased from the sale proceeds of joint family properties as per prima-facie

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materials. This issue ought to have considered by the Trial Court at the time of hearing the application itself. Therefore, my answer to point Nos.1 to 3 are in the affirmative .

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Therefore, the appeal is liable to be allowed and the defendant Nos.1 to 3 are restrained from alienating item Nos.10 to 25 of the suit 'A' schedule properties and item Nos.1 and 2 of suit schedule 'E' properties till disposal of the suit. Hence, I proceed to pass the following:

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ORDER

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i. The appeal is allowed .

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ii. The order dated 07.03.2025 passed on I.A.No.1 in O.S.No.148/2024 by the Court of the Additional Senior Civil Judge and JMFC, Maddur, is hereby set aside .

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iii. The defendant Nos.1 to 3 are restrained from alienating properties at item Nos.10 to 25 of suit 'A' schedule properties and item

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HC-KAR

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Nos.1 and 2 of suit 'E' schedule properties until the disposal of the suit.

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iv. However, whatever observations made above are only for the purpose of considering the appeal on the submissions made by both learned counsels and the Trial Court shall not be influenced by the above observations. The Trial Court shall consider the suit independently on its merits according to the evidence led before the Trial Court.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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SSD List No.: 1 Sl No.: 16

Sri H L Yogesh v. Sri H L Satish

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Sri H L Yogesh v. Sri H L Satish

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