Smt v Koushlya Vs Shri v Keshavamurthy

SMT. V. KOUSHLYA DAUGHTER OF LATE SHRI. B.M. VENKATESH, WIFE OF SHRI. K.R. CHANDRABABU, AGED ABOUT 53 YEARS, RESIDING AT NO.1824, NANJAMMA MUDDEGOWDA CHOULTRY ROAD, BEHIND TOWN CLUB, HEMAVATHI, NEW EXTENSION, K.R. PETE, KRISHNARAJAPETE ,MANDYA, KARNATAKA - 571 426.

¶10

…PETITIONER

¶11

(BY SRI. VEERESH M. UPPIN, ADVOCATE FOR SMT. RACHANA P. PISE, ADVOCATE)

¶12

AND:

¶13

Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA

¶14

SHRI. V. KESHAVAMURTHY SON OF LATE SHRI. B.M. VENKATESH, AGED ABOUT 53 YEARS, RESIDING AT NO.11/1, 1^ST CROSS, JALAKANTESHWARA ROAD, ADUGODI, BENGALURU - 560 030.

¶15

ALSO AT S.L.V. MEN'S PARLOR, NO.50, FIELD MARSHAL CARIYAPPA ROAD, BENGALURU - 560 025

¶16

2 - NC: 2025:KHC:41711 WP No. 22854 of 2025

¶17

HC-KAR

¶18

SHRI K. MURTHY

¶19

SON OF LATE SHRI. D.A. KRISHNAPPA, AGED ABOUT 43 YEARS, ARE R/AT NO. 16, 1^ST C CROSS, VINAYAKANAGAR ADUGODI, BENGALURU - 560 030.

¶20

ALSO AT 11/1, 1^ST CROSS, JALAKANTESHWARA ROAD, ADUGODI, BENGALURU - 560 030.

¶21

SMT ROOPA WIFE OF SHRI K MURTHY AGED ABOUT 39 YEARS, R/AT NO. 16, 1^ST C CROSS, VINAYAKANAGAR ADUGODI, BENGALURU - 560 030.

¶22

ALSO AT 11/1, 1^ST CROSS, JALAKANTESHWARA ROAD, ADUGODI, BENGALURU - 560 030.

¶23

…RESPONDENTS

¶24

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO A) SET ASIDE THE ODER DATED 18/07/2025 PASSED BY THE XXV ADDL. CITY CIVIL AND SESSIONS JUDGE BANGALORE (CCH -23) ON IA NO.1/2025 IN OS NO. 5014/2025 (ANNX-H) AND ETC.

¶25

3 -

¶26

NC: 2025:KHC:41711 WP No. 22854 of 2025

¶27

HC-KAR

¶28

THIS PETITION, COMING ON FOR ORDERS, THIS DAY,

¶29

ORDER WAS MADE THEREIN AS UNDER:

¶30

CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

¶31

ORAL ORDER

¶32

Heard learned counsel for the petitioner.

¶33

2. This Court is not inclined to issue notice to

¶34

respondents at this stage as the notice to respondents has not been served before the trial Court.

¶35

It is the grievance of the petitioner who is the plaintiff before the trial Court that he has filed a original suit in O.S No.5014/2025 on the file of the XXV Additional City Civil and Sessions Judge, Bengaluru for the relief of partition and separate possession and also for other consequential reliefs claimed in the suit.

¶36

Along with the plaint, the petitioner/plaintiff

¶37

filed an application under Order 39 Rule 1 and 2 of CPC seeking ad-interim injunction against the

¶38

4 - NC: 2025:KHC:41711 WP No. 22854 of 2025

¶39

HC-KAR

¶40

respondents/defendants, their workmen, servants, agents, henchmen, or any person claiming through or under them from further dealing with the suit schedule property in any manner, including but not limited to alienating, transferring, exercising any right under the sale deed dated 02.12.2021.

¶41

It is the contention of the learned counsel for

¶42

the petitioner who is the plaintiff that his father was the original owner of the property bearing Site No. 21, Khatha No. 11/1, carved out of survey Nos.34/1 and 35, measuring 1200 sq.ft along with a residential building at 1^st Cross Road, Jalakanteshwara Road, Bengaluru. He also

¶43

contended that the father of the petitioner, acquired the property under sale deed dated 18.10.1972. He further contended that petitioner was married and was living with her husband in K.R.Pete and that her father along with the mother and the brother among the defendents herein were in joint possession and enjoyment of the property till the lifetime of her father.

¶44

5 - NC: 2025:KHC:41711 WP No. 22854 of 2025

¶45

HC-KAR

¶46

It is further contended by the learned counsel

¶47

for the petitioner that the father of the petitioner passed away on 04.11.2023 pursuant to which with an intention to usurp the suit schedule property, petitioner's brother took her mother to the office of Sub Registrar and got release deed executed.

¶48

It is the contention of the learned counsel for the petitioner/plaintiff that no such release deed is maintainable and the same is an illegal and fraudulent one. He also contended that since the father had not written any will or bequeathed the property, petitioner/plaintiff succeeds to the property of the father.

¶49

It is the contention of learned counsel for the petitioner that the petitioner/plaintiff is entitled to share in the property and therefore she has filed a suit for partition. Along with the said suit, an application is filed for an ad-interim order of temporary injunction against the defendants to not alienate, encumber the suit schedule

¶50

6 -

¶51

NC: 2025:KHC:41711 WP No. 22854 of 2025

¶52

HC-KAR

¶53

property. If the same is not granted, the purpose of filing a suit for partition will be defeated and lead to a multiplicity of proceedings.

¶54

The trial Court has issued emergent notice to the respondents/defendants on IA and on the suit and has not passed any orders on the application filed under Order 39 Rule 1 and 2 of CPC. Aggrieved by the same, the petitioner/plaintiff is before this Court.

¶55

Learned counsel for the petitioner contends that she has a prima facie case, as the property belongs to her father, and any document that was executed after the death of the father is not binding, as the petitioner gets a share in the property along with the other family members. The same has not been considered by the trial Court in the application under Order 39 Rule 1 and 2 of CPC and a mere order of emergent notice is issued, which is arbitrary and illegal as the suit gets frustrated in case

¶56

7 - NC: 2025:KHC:41711 WP No. 22854 of 2025

¶57

HC-KAR

¶58

the respondents/defendants alienates and encumbers the

¶59

suit schedule property.

¶60

If an application is filed under 39 Rule 1 and 2 of CPC, it becomes the obligation and duty of the trial Court to look into the merits of the matter and satisfy itself with regard to the prima facie case, balance of convenience and the hardship that would be caused in rejecting the prayer sought by the plaintiff, and not deal with it in a mechanical manner without applying its mind.

¶61

On the basis of the averments made by the petitioner/ plaintiff, it appears that the property was secured by the father by virtue of registered sale dated 18.10.1972 and he has died intestate on 04.11.2003. Therefore, the matter is a triable matter, issues have to be considered before the court.

¶62

Under the circumstances, the prayer sought on application to not alienate or encumber or transfer the suit schedule property to the third party, during the pendency

¶63

8 - NC: 2025:KHC:41711 WP No. 22854 of 2025

¶64

HC-KAR

¶65

of the suit, this Court is of the opinion that the petitioner/plaintiff has made out a prima facie case and balance of convenience lies in his favour so also hardship would be caused to the petitioner/plaintiff if an ad-interim order is not granted.

¶66

The trial Court is at liberty to proceed further in the matter thereafter. The respondents/defendants is at liberty to approach the Court on receipt of summons, file necessary objections thereafter, the trial Court would hear the matter on merits and decide in accordance with law.

¶67

But for the time being, it would be necessary and expedient in the interest of justice that an ad-interim order requires to be granted to protect the property from being alienated, encumbered or damaged or the personal right of petitioner/plaintiff being effected in view of any meddling with the property by way of alienation by the respondents/defendants.

¶68

9 - NC: 2025:KHC:41711 WP No. 22854 of 2025

¶69

HC-KAR

¶70

Under the circumstances, I pass the following

¶71

order.

¶72

ORDER

¶73

The petition is disposed of.

¶74

An ad-interim order of injunction is granted in

¶75

favour of the petitioner/plaintiff by restraining the respondents/defendants, workmen, henchmen, agents and any person claiming who are under him from alienating or transferring or encumbering the suit schedule property till the next date of hearing before the trial Court.

¶76

It is made clear that the trial Court shall deal

¶77

with the matter in accordance with law without being influenced by the order passed by this Court which is an ad-interim measure for the purpose of protection of property from being alienated. Upon the defendants filing objections, the trial Court shall deal with the matter

¶78