Dismissed

Shantilata Behuria v. Basanta Kumar Behuria

Orissa HC10 Jan 2025CMP/926/2024

Case brief

AI extract

What is this about?

In a partition suit by the petitioner's son, the trial court had restrained her husband from alienating suit property; the appellate court set aside that injunction. The High Court held a Karta cannot be so restrained per Sushil Kumar (AIR 1988 SC 576) and dismissed the CMP.

What the court decided

AI extract

Shantilata Behuria Vs Basanta Kumar Behuria — Partition | Orissa HC (2025)

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Signature Not Verified

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Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 13-Jan-2025 13:05:29

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP NO.926 OF 2024

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Shantilata Behuria

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…. Petitioner

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Mr. Maheswar Mohanty, Advocate

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-versus-

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Basanta Kumar Behuria

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…. Opp. Party

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Mr. Subash Chandra Puspakala, Advocate

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

10.01.2025

This matter is taken up through hybrid mode.

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Heard.

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Petitioner in this CMP seeks to assail the order dated 31^st July, 2024 (Annexure-6) passed by learned District Judge, Jajpur in FAO No.11 of 2023, whereby allowing the Appeal, learned Appellate Court set aside the order dated 10^th April, 2023 (Annexure-4) passed by learned Civil Judge, (Senior Division), Jajpur in IA No.89 of 2021 (arising out of CS No.338 of 2020), whereby learned trial Court allowed an application under Order XXXIX Rules 1 and 2 CPC filed by the Petitioner.

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Mr. Mohanty, learned counsel submits that Defendant No.3 is the Petitioner in this CMP. The suit has been filed by the son of the Petitioner, namely, Satyaprakash Behuria claiming partition. The Opposite Party is the Defendant No.1 in the suit.

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It is submitted that during pendency of the suit, Defendant No.3 filed an application under Order XXXIX Rules 1 and 2 CPC to restrain the Defendant No.1 (her husband) from alienating the suit property. The said IA was allowed vide order under Annexure-4. Assailing the same, the Defendant No.1-Opposite Party preferred FAO No.11 of 2023. Learned Appellate Court reversed the order passed under Annexure-4 and vacated the

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Page 1 of 3

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Signature Not Verified

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Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 13-Jan-2025 13:05:29

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temporary order of injunction vide order under Annexure-6. Hence, this CMP has been filed.

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It is his submission that learned trial Court, to protect the suit property during pendency of the suit, restrained the Defendant No.1-Opposite Party from alienating the suit property. Learned Appellate Court proceeding on a misconception that the property stands recorded in the name of the Defendant No.1 and he is the Karta of the family, vacated the temporary order of injunction. If the impugned order is allowed to sustain, the suit will become infructuous. Hence, he prays for setting aside the impugned order under Annexure-6.

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Mr. Puspalaka, learned counsel for the Opposite Party vehemently objects to the same. It is his submission that admittedly the suit property has been recorded in the name of the Defendant No.1-Opposite Party. He is also the Karta of the family. As such, he should not be restrained from enjoying the property independently and dealing with the same. In support of his submission, the relied upon the case of Sushil Kumar and another vrs. Ram Prakash and others, reported in AIR1988 SC 576, in which it is held that a Karta of the joint family cannot be restrained from dealing with the joint family property independently by way of an order under Order XXXIX Rules 1 and 2 CPC. It is his submission that since the property stands recorded exclusively in the name of Defendant No.1-Opposite Party, the same is not a joint family property. If for the sake of argument, it is assumed for a moment that the suit property belongs to joint family, then the Defendant No.1-Opposite Party being the Karta of the family, has a right to deal with the property independently. Thus, learned Appellate Court has committed no error in setting aside the order of temporary injunction.

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Page 2 of 3

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Signature Not Verified

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Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 13-Jan-2025 13:05:29

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Considering the rival contentions of the parties and on perusal of the record, it prima facie appears that the property stands recorded in the name of Defendant No.1-Opposite Party. The Plaintiff is the son born out of the wedlock of Defendant Nos.1 and 3. It is also submitted that taking advantage of the order of temporary injunction passed by learned trial Court under Annexure-4, both the Plaintiff and Defendant No.3 drove out Defendant No.1 from their residential house, who is staying separately in a rented house.

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Be that as it may, if the suit property is assumed to be joint family property, then the Defendant No.1-Opposite Party would be the Karta of the said joint family and cannot be restrained from alienating the suit property by virtue of a temporary order of injunction in view of the decision in the case of Sushil Kumar (supra). Further, it appears that the suit property stands recorded in the name of Defendant No.1-Opposite Party. Thus, the question as to whether the property is joint property or not can only be decided while adjudicating the suit. At this stage, the Defendant No.1-Opposite Party, who is the recorded tenant, should not be restrained from dealing with his property independently. If any alienation is made during pendency of the suit, it will be guided under Section 52 of the Transfer of Property Act, 1882.

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As such, I find no infirmity in the impugned order under Annexure-6.

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Hence, this CMP, being devoid of any merit, stands dismissed.

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(K.R. Mohapatra) Judge

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Rojalin

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Page 3 of 3

Shantilata Behuria v. Basanta Kumar Behuria

Case brief

What is this about?

What the court decided

Shantilata Behuria v. Basanta Kumar Behuria

Case brief

What is this about?

What the court decided

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