Venkateshappa Vs Sakamma (Dead)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 28.04.2018 ON I.A. FILED UNDER SECTION 151 OF CODE OF CIVIL PROCEDURE IN R.A.NO.23/2017 ON THE FILE OF SENIOR CIVIL JUDGE, MALUR VIDE ANNEXURE-A TO THE W.P., AND CONSEQUENTLY DISMISS THE IA UNDER SECTION 151 OF C.P.C. IN R.A.NO.23/2017 AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL

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NC: 2025:KHC:11033 WP No. 20372 of 2018

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ORAL ORDER

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Petitioner who is the plaintiff in O.S.No.189 of 2005 and respondent No.1 in R.A.No.23/2017 is before this Court being aggrieved by the order dated 28.04.2018 passed by the Senior Civil Judge, Malur (first appellate Court), permitting defendant No.1/respondent No.1 to execute deed of gift in favour of her daughter-in-law -respondent No.4 in respect of one of the items in the suit schedule properties.

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The petitioner herein filed the above suit in O.S.No.189/2005 for partition and separate possession of certain family properties which came to be decreed on 06.02.2017 declaring petitioner herein having 1/6^th share in the suit schedule properties.

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Being aggrieved respondent No.1/defendant No.1 filed above regular appeal in R.A.No.23/2017. During the pendency of said regular appeal respondent No.1/defendant No.1 filed an application under Section 151 of CPC seeking permission of the first appellant Court to execute the registered gift deed in favour of her daughter- in-law -Smt.Gowramma in

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respect of suit item No.2 which is a land measuring 4 acres 10 guntas forming part of Sy.No.216/2A of Sampangere Village, Lakkur Hobli, Malur Taluk, Kolar District. The said application

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came to be allowed by impugned order permitting the respondent No.1/defendant No.1 to execute the deed of gift subject to condition that the said execution would be subject to result of the appeal and the conditions imposed in the body of the order.

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Learned counsel for the petitioner submits that while passing impugned order, the first appellate Court has indeed adjudicated the matter holding the respondent No.1/defendant No.1 to be the absolute owner of the property in terms of Section 14 of the Hindu Succession Act. He submits such a reasoning and finding could not have been arrived at by the first appellate Court while considering application for permission to execute gift deed as the very decree which granted 1/6^th share to the plaintiff is under challenge in the appeal not having been set aside, reversed or varied. Hence, he submits the order is illegal and cannot be sustained.

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In response learned counsel for the respondent No.4 who is the beneficiary of the order, submits that the application filed is one under Section 52 of the Transfer of Property Act which provides for seeking such permission though it is filed in the form of one under Section 151 CPC. He submits in any case the first appellate Court has imposed the condition that execution of such a gift would be subject to outcome of the appeal and with a further condition that the nature of the property shall not be changed. He submits the interest of the petitioner is well protected and there is no room for any apprehension. However he fairly submits the reason assigned to conclude that the respondent No.1/defendant No.1 is the absolute owner of the property is improper at this stage of the proceedings before adjudication of the main matter.

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Heard and perused the records.

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The alienation of property by way of gift is stated to have been already effected pursuant to the impugned order. Further respondent No.1/defendant No.1 also stated to have passed away. To that extent the matter has met with fait accompli.

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However the reasons assigned in the order, even as fairly submitted by the learned counsel for respondent are unsustainable. When the decree which grants 1/6^th share in the suit schedule properties in favour of the petitioner/plaintiff is still under challenge and being adjudicated, the first appellate Court could not have come to the conclusion that the respondent No.1/defendant No.1 is the absolute owner of the property in terms of Section 14 of the Hindu Succession Act. Same would amount to predetermination/pre-conclusion of the matter.

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Though appeal is continuation of a suit any alienation made by the parties thereto is subject to the provisions of Section 52 of the Transfer of Property Act, the reasons assigned are therefore cannot be allowed to remain on the record. Accordingly the reasons assigned at paragraph 5 of the impugned order are set aside. Since respondent No.1/defendant No.1 having executed deed of gift passed away, though there is irregularity in making the application, same could be treated as one under the provisions of Section 52 of the Transfer of Property Act.

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Keeping open all other contentions, the petition is

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disposed of with the above observation.

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Regular appeal is of the year 2017, the first appellate Court shall dispose of the appeal on consideration of merits and in accordance with law as expeditiously as possible within an outer limit of six months from the date of receipt of certified copy of this order.

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Sd/(M.G.S. KAMAL) JUDGE

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SBN

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List No.: 1 Sl No.: 15

Venkateshappa v. Sakamma (Dead)

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Venkateshappa v. Sakamma (Dead)

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