Smt. Veena G Kamath Vs Smt. Ashwini Kamath

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NC: 2025:KHC:47655 MFA No. 7308 of 2025 C/W MFA No. 7338 of 2025

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF NOVEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.7308 OF 2025 (CPC) C/W MISCELLANEOUS FIRST APPEAL NO. 7338 OF 2025 (CPC)

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IN MFA No. 7308/2025:

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BETWEEN:

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SMT. VEENA G. KAMATH W/O LATE SRI. N. GANESH KAMATH AGED ABOUT 71 YEARS, REP. BY HER GPA HOLDER, SMT. ANURADHA KAMATH, D/O. LATE SRI. N.GANESH KAMATH

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SMT. ANURADHA KAMATH D/O LATE SRI. N. GANESH KAMATH, AGED ABOUT 45 YEARS

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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BOTH ARE RESIDING AT: NO.88, SARASWATHI NARAYAN, 1ST MAIN, 2ND CROSS, DEFENCE LAYOUT, VIDYARANYAPURA, BENGALURU-560 097.

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SMT. RADIKA NAYAK, D/O LATE SRI. N.GANESH KAMATH, AGED ABOUT 43 YEARS,

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REP. BY HER GPA HOLDER, SMT. ANURADHA KAMATH, D/O. LATE SRI. N.GANESH KAMATH RESIDENT OF CLEARWATER CONDO, BLOCK 4, UNIT NO.03-08,

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NC: 2025:KHC:47655 MFA No. 7308 of 2025 C/W MFA No. 7338 of 2025

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HC-KAR

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BEDOK RESERVOIR VIEW, SINGAPORE-479 233.

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ALSO AT NO.88, SARASWATHI NARAYAN, MAIN, 2ND CROSS, DEFENCE LAYOUT, VIDYARANYAPURA, BENGALURU-560 097.

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…APPELLANTS

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(BY SMT. VIJETHA R. NAIK, ADVOCATE)

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AND:

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SMT. ASHWINI KAMATH, W/O SRI.SHUKLAMBARA, VIDHYADHAR PRABHU, AGED ABOUT 38 YEARS,

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SRI. SHUKLAMBARA VIDHYADHAR PRABHU, S/O SRI.VIDHYADHAR PRABHU, AGED ABOUT 38 YEARS,

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BOTH ARE RESIDENTS AT: "SARASWATHI SADANA", SANURU, GUTTU ROAD, SANURU, KARKALA, UDUPI DISTRICT-574 114.

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…RESPONDENTS

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(BY SRI. VEERESH H. UPPIN, ADVOCATE FOR SRI. K. CHANDRANATH ARIGA, ADVOCATE FOR C/R1 AND R2)

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THIS MFA FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 01.09.2025 PASSED ON I.A.NO. 2 IN O.S.NO. 6716/2024 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-8), DISMISSING THE IA NO. 2 FILED U/O.39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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3 - NC: 2025:KHC:47655 MFA No. 7308 of 2025 C/W MFA No. 7338 of 2025

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HC-KAR

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IN MFA NO. 7338/2025:

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BETWEEN:

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SMT. VEENA G. KAMATH W/O LATE SRI N GANESH KAMATH, AGED ABOUT 71 YEARS, REP BY HER GPA HOLDER, SMT. ANURADHA KAMATH, D/O LATE SRI N GANESH KAMATH

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SMT. ANURADHA KAMATH D/O LATE SRI N GANESH KAMATH AGED ABOUT 45 YEARS,

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BOTH ARE RESIDING AT NO. 88 SARASWATHI NARAYAN, 1ST MAIN, 2ND CROSS, DEFENCE LAYOUT, VIDYARANYAPURA, BENGALURU - 560 097.

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SMT. RADIKA NAYAK, D/O LATE SRI N GANESH KAMATH AGED ABOUT 43 YEARS, REP BY HER GPA HOLDER, SMT. ANURADHA KAMATH, D/O LATE SRI N GANESH KAMATH

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RESIDENT OF CLEAR WATER CONDO, BLOCK 4, UNIT NO. 03-08, BEDOK, RESERVOIR VIEW, SINGAPORE - 479 233.

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ALSO AT NO. 88, "SARASWATHI NARAYAN", 1ST MAIN, 2ND CROSS, DEFENCE LAYOUT, VIDYARANYAPURA, BENGALURU - 560097.

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...APPELLANTS

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(BY SMT. VIJETHA R NAIK, ADVOCATE)

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HC-KAR

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AND:

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SMT. ASHWINI KAMATH W/O SRI SHUKLAMBARA VIDHYADHAR PRADHU, AGED ABOUT 38 YEARS

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SRI SHUKLAMBARA VIDHYADHAR PRABHU S/O SRI VIDHYADHAR PRABHU AGED ABOUT 38 YEARS,

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BOTH ARE RESIDENTS AT: SARASWATHI SADANA, SANURU, GUTTU ROAD, SANURU KARKALA, UDUPI DISTRICT 574 114

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...RESPONDENTS

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(BY SRI.VEERESH H. UPPIN,ADVOCATE FOR C/R1 AND R2)

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THIS MFA FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 01.09.2025 PASSED ON IA NO.1 IN O.S.NO.6716/2024 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE IA.NO.1 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC, 1908.

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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 HANCHATE SANJEEVKUMAR

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HC-KAR

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ORAL COMMON JUDGMENT

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M.F.A. No.7308/2025 is filed by the plaintiffs questioning

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the order passed on I.A.No.II filed under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC seeking an order of temporary injunction restraining the defendants from taking independent decisions in the day-to-day affairs of the partnership firms namely "Sanoor Cashew" and M/s.Adarsh Industrial Chemicals (R)" contrary to the plaintiffs, in O.S. No.6716/2024 dated 01.09.2025 by the Court of the XI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-8), whereby the trial Court has dismissed the application.

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M.F.A. No.7338/2025 is filed by the plaintiffs

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questioning the order passed on I.A.No.I filed under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC seeking an order of temporary injunction restraining the defendants from alienating or creating third party rights over the suit schedule properties, in O.S. No.6716/2024 dated 01.09.2025 by the Court of the XI

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Addl. City Civil & Sessions Judge, Bengaluru City (CCH-8), whereby the trial Court has dismissed the application.

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HC-KAR

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Between the same parties and in respect of the very same schedule properties, common facts are pleaded but two different applications have been filed for temporary injunction and two different orders were passed. Hence, the matters are clubbed and will pass common order.

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The plaintiffs have filed a suit for partition and separate possession for claiming 1/4^th share in all the suit schedule properties and also to declare that the Will dated 14.07.2023 is not binding on the plaintiffs to have their legitimate share along with other consequential reliefs.

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It is the case of the plaintiffs that plaintiff No.1 is the wife of one late N. Ganesh Kamath and plaintiff Nos.2, 3 and defendant No.1 are the daughters of N.Ganesh Kamath and defendant No.2 is the husband of defendant No.1. It is stated that after the death of N. Ganesh Kamath, the defendants have fraudulently created a partnership deed by enhancing the share of defendant No.1 and also on the basis of a forged Will though it was not executed by Ganesh Kamath but on the said forged

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Will got transferred the suit properties in favor of defendant No.1 and also is acting detrimental to the interest of the

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HC-KAR

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partnership firm. Therefore, the plaintiffs have filed the suit for the reliefs as above stated.

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The defendants appeared through their advocate and filed written statement denying all the averments and contended that N.Ganesh Kamath has executed a Will in favour of defendant No.1 and based on that, the defendants have got transferred their names in the revenue records in the suit schedule properties. Also, the defendants are working partners and have put their own money for developing business and therefore, the defendants acted upon to the interest of partnership firm and therefore, prays to dismiss the suit.

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The plaintiffs have filed applications for temporary injunction for the reliefs as above stated but the trial Court has dismissed the application filed for temporary injunction restraining the defendants from alienating or creating the thirdparty rights over the suit schedule properties. The trial Court has also dismissed the application filed by the plaintiffs for restraining the defendants not to take independent decisions contrary to the interest of the plaintiffs. But the trial Court has ordered to safeguard the plaintiffs interests pending the suit,

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HC-KAR

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the defendants are directed to maintain transparent records of all the transactions and decisions related to the firms and submit quarterly statements to the Court and liberty is given to the plaintiffs to approach the Court with specific evidence of mismanagement of the firm. But the trial court has not granted prayer as made in the application.

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The trial Court has assigned the reasons that the principally the plaintiffs have not specifically pleaded strongly regarding the firm is Hindu Undivided Family (HUF) Firm, the plaintiffs have not provided specific instances of mismanagement of fund or diversion of the fund of the firm and also assigned the reason that the plaintiffs have not established a strong prima facie case and there is no sufficient evidence of forgery or mismanagement. On these reasons, the trial Court has dismissed the applications of the plaintiffs.

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Being aggrieved by the orders passed by the trial Court, the plaintiffs have preferred the above two appeals by raising various grounds and the learned counsel for the appellants/plaintiffs in consonance with the grounds urged in the appeals, submitted that the trial Court is not correct in

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9 - NC: 2025:KHC:47655 MFA No. 7308 of 2025 C/W MFA No. 7338 of 2025

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HC-KAR

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holding that there is no sufficient and strong pleadings regarding the constitution of the firm is HUF but in fact, in the plaint at various places, the plaintiffs have specifically and strongly pleaded the status of the plaintiffs and defendants and firm business as HUF. Further, it is submitted that N.Ganesh Kamath had not executed any Will, but it is forged one and on the basis of forged Will, the defendants have got transferred their names in the revenue records detrimental to the interest of the plaintiffs. Therefore, it is submitted that in this regard, the complaint is lodged before the police and though the police have filed 'B' report, it is challenged before this Court and the same is still pending. Further, it is submitted that the partnership firm has been reconstituted by enhancing the share of the defendants which is detrimental to the interest of the plaintiffs and also the defendants are taking their own decisions in the property without the knowledge of the plaintiffs. It is submitted that when the plaintiffs and defendants are partners in the firm, the defendants are taking unilateral decisions against the interest of the plaintiffs and firm. Therefore, when all these prima facie materials have produced supporting to the pleadings, the trial Court on untenable order, dismissed the

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10 - NC: 2025:KHC:47655 MFA No. 7308 of 2025 C/W MFA No. 7338 of 2025

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HC-KAR

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applications. Therefore, the appellants prays to grant an order of temporary injunction as prayed for.

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On the other hand, learned counsel for the defendants submitted that Ganesh Kamath had executed a Will during his life time in favour of defendant No.1 and accordingly defendants have got their names in the revenue records which is completely valid and legal and further the defendants are carrying out the business in the interest of the plaintiffs and firm. Therefore, the allegations made in the plaint is not correct. Further, it is submitted that the plaintiffs have not challenged the partnership deed and they have only challenged the Will. Therefore, when there is no specific challenge in the suit regarding partnership, the plaintiffs have not made out prima facie case. Therefore, the defendants justified the orders passed by the trial Court. Therefore, prays to dismiss the appeals.

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Having heard the learned counsels on either side and perusal of the materials on record, the following points arise for consideration of this Court are as follows:

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HC-KAR

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(i) Whether, under the facts and circumstances of the case, the plaintiffs make out prima facie case on the basis of the materials produced before the trial court so as to grant an order of temporary injunction?

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(ii) Whether, under the facts and circumstances of the case, the plaintiffs make out case of balance 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 plaintiffs would suffer any irreparable loss or injury?

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The suit is filed for partition and separate possession for claiming 1/4^th share in the suit schedule properties and to liquidate the properties in schedule item No.2 properties and to bring about partition and allot 1/4^th share to the plaintiffs and put the plaintiffs in lawful possession of the said allotted equal shares of the plaintiffs by metes and bounds and also the prayer of the plaintiffs that the Will dated 14.07.2023 alleged to have been executed, is created and

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HC-KAR

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concocted one and is not binding on the plaintiffs to have their legitimate share over the suit schedule properties.

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Upon considering the reasons assigned by the trial Court the principal reason assigned by the trial Court is that there is no sufficient pleading in the plaint regarding constitution of partnership as HUF Firm. Here, the plaintiffs have produced several documents viz., the profit and loss accounts of the firms and accounts of firms showing that the firm is partnership firm as HUF Firm constituent. Also, in the plaint at several paragraphs, the plaintiffs have pleaded that the partnership firm business is HUF business. Therefore, there is sufficient prima facie pleadings and also it is strongly contended in the plaint that N Ganesh Kamath constituted a Hindu Undivided Family (HUF) being a Kartha by himself and pooled in immovable properties. In the plaint, it has come in several places that N Ganesh Kamath has constituted a partnership firm as Hindu Undivided Family (HUF) business. Therefore, the trial Court observation that there is no sufficient prima facie materials is contrary to the pleadings and

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HC-KAR

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documents produced by the plaintiffs. Therefore, this finding of the trial Court is perverse.

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The income tax return submitted by the N. Ganesh Kamath are prima facie showing the status as HUF and also the obtaining PAN number on the status as Hindu Undivided Family (HUF). Therefore, the firms namely "M/s. Sanoor Cashew" and "M/s.Adarsh Industrial Chemicals" are having status as Hindu Undivided Family (HUF). When this being the prima facie materials produced, the observation made by the trial Court to the contrary is perverse.

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Though regarding creation and forgery of the documents by creating Will, it is subject matter of trial and though the 'B' report is filed, challenged the same before this Court and is pending before this Court on criminal side subject. Therefore, in this regard, the plaintiffs have made out prima facie and balance of convenience and also the relationship between the plaintiffs and defendants are not dispute. Therefore, in order to protect the interest of the plaintiffs, it is necessary to pass an order of temporary injunction. Furthermore, the revenue record of rights produced as prima

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HC-KAR

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facie material show that on the basis of the alleged Will, defendant No.1 has got transferred her name in the revenue records. Therefore, there is a threat of alienation by defendant No.1 and to create third-party rights and encumbrances towards the suit schedule properties. If such acts are permitted, there would be multiplicity of proceedings and also interest of the plaintiffs is much affected. Therefore, it is necessary to grant an order of temporary injunction. If such an order of temporary injunction is not granted, the plaintiffs would put to irreparable loss and injury. Therefore, it is necessary to pass an order of temporary injunction as prayed for by the plaintiffs. Accordingly, my answer to point Nos. 1 to 3 in the affirmative . Therefore, I proceed to pass the following:

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ORDER

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i) The appeals are allowed .

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ii) The order dated 01.09.2025 passed on I.A.Nos.I & II filed under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC in O.S. No.6716/2024, by the Court of the XI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-8), is hereby set aside .

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NC: 2025:KHC:47655 MFA No. 7308 of 2025 C/W MFA No. 7338 of 2025

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iii) An order of temporary injunction is granted restraining the defendants from taking independent decisions in the day-to-day affairs of the partnership firms "Sanoor Cashew" and "M/s.Adarsh Industrial Chemicals (R)" contrary to the plaintiffs' interest, pending disposal of the suit.

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iv) Also, an order of temporary injunction is granted restraining the defendants from alienating or creating third-party rights over the properties listed in schedule item Nos.1 and 2 of the suit, pending disposal of the suit.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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DS/KA CT:TSM List No.: 1 Sl No.: 22

Smt. Veena G Kamath v. Smt. Ashwini Kamath

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Smt. Veena G Kamath v. Smt. Ashwini Kamath

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