Smt M Sharadamma Vs Smt Rathna

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NC: 2025:KHC:24641 MFA No. 7193 of 2023 C/W MFA No. 7202 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF JULY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 7193 OF 2023 (CPC) C/W MISCELLANEOUS FIRST APPEAL NO. 7202 OF 2023

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IN MFA No. 7193 OF 2023

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BETWEEN:

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SMT. M. SHARADAMMA W/O K. BYRAPPA AGED ABOUT 82 YEARS R/AT NO 1/19, 11^TH CROSS NEXT TO ST. PHILOMENA HOUSE GOVINAYAKAHALLI KUMARASWAMY LAYOUT, 2^ND STAGE BENGALURU-560 078

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Digitally signed by ANJALI M Location: High Court of Karnataka

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REPRESENTED BY HER GPA HOLDER MR R.V. BHARATH BHUSHAN S/O LATE R.B. VENKATARAMANA AGED ABOUT 37 YEARS RESIDING AT NO 730 19^TH CROSS, 17^TH MAIN ROAD NARAYANANAGAR, 1^ST BLOCK DODDAKALLASAMDRA POST BENGALURU-560 062

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…APPELLANT

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(BY SRI. SHANKARAPPA, A/W SRI. VARUN GOWDA, ADVOCATES)

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NC: 2025:KHC:24641 MFA No. 7193 of 2023 C/W MFA No. 7202 of 2023

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HC-KAR

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AND:

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SMT.RATHNA W/O LATE M.RAMASWAMY AGED ABOUT 72 YEARS NO.1285, 8^TH CROSS 27^TH MAIN, J.P NAGAR 1^ST PHASE, BENGALURU-560 78

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SMT. R. SHAKEELA D/O LATE M. RAMASWAMY AGED ABOUT 53 YEARS NO.1285, 8^TH CROSS 27^TH MAIN, J.P NAGAR 1^ST PHASE, BENGALURU-560 78

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SMT. R. PUSHPA D/O LATE M RAMASWAMY AGED ABOUT 51 YEARS NO.10, SVK NILAYAM 19^TH CROSS, 1^ST MAIN ROAD SRIKANTESHWARA COLONY JP NAGAR 5^TH PHASE BENGALURU-560 078

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SMT. R. THEJA D/O LATE M. RAMASWAMY AGED ABOUT 49 YEARS NO.731, SAI KAUSTUBHA 10^TH MAIN ROAD 4^TH BLOCK, JAYANAGAR BENGALURU-560 011

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SRI. RAKESH S/O LATE M. RAMASWAMY AGED ABOUT 47 YEARS NO.1285, 8^TH CROSS 27^TH MAIN, J.P NAGAR 1^ST PHASE, BENGALURU-560 78

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HC-KAR

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SMT. R. RADHA D/O LATE M. RAMASWAMY AGED ABOUT 45 YEARS NO.54, 8^TH CROSS NEXT TO KARTHIK NURSING HOME WILSON GARDEN BENGALURU-560 078

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SMT. R. DIVYA D/O LATE M RAMASWAMY AGED ABOUT 43 YEARS NO.44, 3^RD A CROSS, 4^TH T BLOCK, JAYANAGAR BENGALURU-560 011

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SRI. V. LAKSHMI NARAYAN S/O LATE VENKATAPPA AGED ABOUT 76 YEARS NO 45, 'A', NN NISARGA RESIDENTIAL LAYOUT, KOPPA GATE JIGANI ANEKAL ROAD OPP CORPORATION BANK JIGANI, BENGALURU-560 083

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…RESPONDENTS

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(BY SRI. VISHNU HEGDE, ADVOCATE FOR R1 TO R5 & R7; SRI. M. VEERABHADRAIAH, ADVOCATE FOR R6; NOTICE TO R8 IS HELD SUFFICIENT VIDE ORDER DT:08.04.2025)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 21.09.2023 PASSED ON I.A. NO.1 IN O.S.NO.370/2022 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, ANEKAL, REJECTING I.A. NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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NC: 2025:KHC:24641 MFA No. 7193 of 2023 C/W MFA No. 7202 of 2023

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HC-KAR

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IN MFA NO.7202 OF 2023

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BETWEEN:

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SMT. M. SHARADAMMA W/O K. BYRAPPA D/O LATE K. MUNISWAMAPPA AGED ABOUT 82 YEARS R/AT NO 1/19, 11^TH CROSS NEXT TO ST. PHILOMENA HOUSE GOVINAYAKAHALLI KUMARASWAMY LAYOUT, 2^ND STAGE BENGALURU-560 078

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REPRESENTED BY HER GPA HOLDER MR R.V. BHARATH BHUSHAN S/O LATE R.B. VENKATARAMANA AGED ABOUT 37 YEARS RESIDING AT NO.730 19^TH CROSS, 17^TH MAIN ROAD NARAYANANAGAR 1^ST BLOCK DODDAKALLASAMDRA POST BENGALURU-560 062

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…APPELLANT

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(BY SRI. SHANKARAPPA, A/W SRI. VARUN GOWDA, ADVOCATES)

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AND:

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SMT.RATHNA W/O LATE M.RAMASWAMY AGED ABOUT 72 YEARS NO.1285, 8^TH CROSS 27^TH MAIN, J.P NAGAR 1^ST PHASE, BENGALURU-560 78

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SMT. R. SHAKEELA D/O LATE M. RAMASWAMY

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HC-KAR

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AGED ABOUT 53 YEARS NO.1285, 8^TH CROSS 27^TH MAIN, J.P NAGAR 1^ST PHASE, BENGALURU-560 78

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SMT. R. PUSHPA D/O LATE M. RAMASWAMY AGED ABOUT 51 YEARS NO.10, SVK NILAYAM 19^TH CROSS, 1^ST MAIN ROAD SRIKANTESHWARA COLONY JP NAGAR 5^TH PHASE BENGALURU-560 078

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SMT. R. THEJA D/O LATE M. RAMASWAMY AGED ABOUT 49 YEARS NO.731, SAI KAUSTUBHA 10^TH MAIN ROAD 4^TH BLOCK, JAYANAGAR BENGALURU-560 011

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SRI. RAKESH S/O LATE M. RAMASWAMY AGED ABOUT 47 YEARS NO.1285, 8^TH CROSS 27^TH MAIN, J.P NAGAR 1^ST PHASE, BENGALURU-560 78

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SMT. R. RADHA D/O LATE M. RAMASWAMY AGED ABOUT 45 YEARS NO.54, 8^TH CROSS NEXT TO KARTHIK NURSING HOME WILSON GARDEN, BENGALURU-560 078

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SMT. R. DIVYA D/O LATE M RAMASWAMY AGED ABOUT 43 YEARS NO.44, 33^RD A CROSS

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NC: 2025:KHC:24641 MFA No. 7193 of 2023 C/W MFA No. 7202 of 2023

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HC-KAR

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4^TH T BLOCK, JAYANAGAR BENGALURU-560 011

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SRI. V. LAKSHMI NARAYAN S/O LATE VENKATAPPA AGED ABOUT 76 YEARS NO.45, 'A', NN NISARGA RESIDENTIAL LAYOUT, KOPPA GATE JIGANI ANEKAL ROAD OPP CORPORATION BANK JIGANI, BENGALURU-560 083

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…RESPONDENTS

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(BY SRI. VISHNU HEGDE, ADVOCATE FOR R1-R5 & R7; SRI. M. VEERABHADRAIAH, ADVOCATE FOR R6; NOTICE TO R8 IS HELD SUFFICIENT VIDE ORDER DT:08.04.2025)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 21.09.2023 PASSED ON I.A. NO.II IN O.S.NO.370/2022 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, ANEKAL, REJECTING I.A. NO.II FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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HC-KAR

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ORAL JUDGMENT

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These two Misc.First appeals are filed under Order 43

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Rule 1(r) of CPC challenging the common order dated 21.09.2023 passed by the II Addl.Sr.Civil Judge and JMFC, Anekal in OS No.370/2022, whereby the learned trial Court dismissed the IAs filed by the appellant-plaintiff seeking an order of temporary injunction filed under Order 39 Rule 1 and 2 of CPC.

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The appellant, who is the plaintiff in the suit for partition and separate possession had sought to restrain the respondents-defendants from alienating or creating third party interest over the suit schedule property during the pendency of the suit. The trial Court, after hearing the parties, and examining the documents on record declined to grant the relief sought which lead to the filing of the present appeals. As both appeals arise out of the common order, they are now tagged and common argument is heard therefore, common judgment is passed.

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NC: 2025:KHC:24641 MFA No. 7193 of 2023 C/W MFA No. 7202 of 2023

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HC-KAR

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According to the appellant/plaintiff, one

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Smt.M.Sharadamma aged about 82 years represented by her GPA holder claims that, she is entitled to half share in the suit schedule properties which are stated to have been

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inherited from her father late Sri Muniswamappa who passed away in the year 1976. It is her case before the trial Court that, the said properties are joint family and ancestral in nature and that there was no partition following the death of her father. She categorically contends that, her brother late M.Ramaswamy, who was the husband of respondent no.1 and father of respondents 2 to 7, unilaterally mutated the properties in his name and subsequently entered into a Joint Development Agreement on 29.03.2008 with a builder by name M/s.Classic Enterprises. It is further alleged by the appellant that, the respondents without any legal authority or consent have

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been executing sale deeds and entering into transactions with respect to the suit schedule property, thereby prejudicing her legitimate rights as a co-sharer. The

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HC-KAR

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appellant also refers to the partition deed dated 27.11.1963 in support of her claim stating that, the properties originally devolved upon her father and that she is one of the legal heirs and has undivided interest therein.

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The appellant's application for temporary injunction was based on the apprehension that, if the respondents continued to alienate or develop the properties, her lawful share would be lost or rendered illusory. It was her contention that, the balance of convenience was in her favour and that respondents would not suffer any hardship if an order of injunction is ordered to maintain status quo during the pendency of the suit.

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It is further stated that, she had never

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relinquished her rights and her participation as a confirming party in certain sale deeds, did not amount to a

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waiver of her entitlements under the law. It was also contended that, the respondents own versions with respect to the alleged relinquishment were inconsistent

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HC-KAR

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and self contradictory - asserting that she gave up her

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rights at the time of her marriage in the year 1955 alleging that, a family settlement took place in the year 2003 or 2005. This inconsistency, according to the appellant, undermines the credibility of respondent's case.

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As against this pleadings of the appellant and submission, the respondents contended that, appellant's suit was highly belated having filed in the year 2022 i.e. after nearly 14 years of the execution of the joint development agreement and a decade after the demise of her father. They further contend that, the properties in question were either - self acquired by late M.Ramaswamy or had been validly settled among the family members through a registered family arrangement in the year 2003 under which the appellant had received monetary consideration of Rs.10 lakhs. The respondents produced documents including the sale deeds and revenue records to show that, the appellant had actually participated in the execution of the transaction as a consenting or confirming

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HC-KAR

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party and had thereby relinquished any notional claim she may have had. It is pointed out by the respondents that, the developer M/s.Classic Enterprises to whom development rights have been transferred have not been impleaded in the suit and that such non-joinder of necessary parities rendered the suit defective. The respondents asserted that, they had already undertaken substantial development and construction activities based upon the joint development agreement and that any interim restraint would cause irreversible hardship and injury to them and to the third parties.

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Having heard the learned counsel for both parties and on careful perusal of pleadings and the documents placed on record, this Court is of considered view that the impugned order passed by the trial Court does not warrant interference for the following reasons:

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The appellant had failed to demonstrate a strong prima facie case in her favour. While she relies on the partition deed of 1963, there is no evidence to show that

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HC-KAR

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the properties remained undivided or that she continued in joint possession thereof. Her conduct over the past decades, including her role in consenting to sale transitions and the absence of any protest or assertion of her rights militates against the present claim of joint ownership. The inconsistencies in the respondents' defence while noticeable, are not sufficient to tilt the balance in the appellants favour especially when she has not discharged her initial burden of establishing her continued interest in the properties.

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Moreover, the material produced by the respondents, including the joint development agreement and the various sale deeds, clearly show that, third party rights have accrued and that substantial developments have been carried out. The delay for a decade in approaching the Court without any explanation for such inaction and further receipt of 10 lakhs by her further disentitles the appellants from seeking equitable relief. The appellant's failure to implead the developer in whose

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HC-KAR

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favour binding contractual rights have been created also rendered the suit for partition and the present appeals are defective. The law is well settled that, in case where third party interests have been arisen, third party seeking injunction must come to the Court with clean hands without any delay and with the substantial evidence of existing legal right which is evidently absent in this case.

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This Court is also satisfied that, the balance of convenience lies with the respondents who have acted upon the arrangements and have undertaken development activities for several years. The grant of injunction at this belated stage would disrupt their settled rights and contractual obligations. As the appellants alleged share if any, would be adequately compensated in monetary terms in the event of success in the main suit there is no irreparable injury shown to justify the grant of interim injunction.

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HC-KAR

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Even if any further alienations take place, the

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appellant- plaintiff can very well take the assistance of doctrine of lispendens as defined under Sec.52 of Transfer of Property Act and such alienations are hit under the 'Doctrine of Lispendens' therefore, this Court finds no infirmity in the reasons and conclusions reached by the trial Court in rejecting the temporary injunction applications. As the appellant has failed to satisfy the legal requirements for grant of temporary injunction i.e. prima facie case, balance of convenience and hardship, then the appeals fail as devoid of merit and accordingly, they liable to be dismissed. Resultantly I pass the following:

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ORDER

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(i) Misc. Appeal 7202/2023 and 7193/2023 of

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stand dismissed .

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(ii) The common order dated 21.09.2023 passed by the II Addl.Sr.Civil Judge and JMFC, Anekal in OS No.370/2022 is hereby confirmed.

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