Karnataka High Court
Sri.Yathievendra Naik vs Sri.T.M.Yathindra on 24 July, 2025
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NC: 2025:KHC:28232
MFA No. 3329 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2025
BEFORE R
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 3329 OF 2025 (CPC)
BETWEEN:
SRI. YATHIEVENDRA NAIK
@ YATHISH
S/O LATE SRI. M.N. NARASIMHAMURTHY NAIK
@ M.N. MURTHY NAIK
AGED ABOUT 47 YEARS
R/AT SUPARTHA APARTMENT
NO.146/8, 5TH CROSS ROAD
RAJMAHAL EXTENSION
ARAMANENAGARA
BANGALORE-560 080
...APPELLANT
(BY SRI. MADHUKUMAR M.D, ADVOCATE)
AND:
Digitally signed 1. SRI. T.M. YATHINDRA
by ANJALI M
Location: High S/O M.N. NARASIMHAMURTHY NAIK
Court of @ M.N. MURTHY NAIK
Karnataka
AGED ABOUT 20 YEARS
R/AT NO.269/A, 8TH MAIN
KANVA SREE SAI HOSPITAL
RAJEEV GANDHI NAGAR
BANGALORE- 560 096
2. SMT. B. MANJULA
W/O. M.N. NARASIMHAMURTHY NAIK
@ M.N. MURTHY NAIK
AGED ABOUT 45 YEARS
R/AT NO.269/A, 8TH MAIN
KANVA SREE SAI HOSPITAL
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NC: 2025:KHC:28232
MFA No. 3329 of 2025
HC-KAR
RAJEEV GANDHI NAGAR
BANGALORE- 560 096
3. MASTER T.M. LOHITH
S/O M.N. NARASIMHAMURTHY NAIK
@ M.N. MURTHY NAIK
AGED ABOUT 12 YEARS
R/AT NO.269/A, 8TH MAIN
KANVA SREE SAI HOSPITAL
RAJEEV GANDHI NAGAR
BANGALORE- 560 096
REPRESENTED BY THE NATURAL
MOTHER NAMELY
SMT. B. MANJULA
4. SRI. CHANDRASHEKAR NAIK
S/O M.N. NARASIMHAMURTHY NAIK
@ M.N. MURTHY NAIK
AGED ABOUT 45 YEARS
R/AT NO.285/13, 5TH MAIN
OPP.TIBETIAN HOSPITAL
MAHALAKSHMI LAYOUT
BANGALORE- 560 079
5. SMT. ASHA RANI
D/O M.N. NARASIMHAMURTHY NAIK
@ M.N. MURTHY NAIK
AGED ABOUT 43 YEARS
R/AT NO.4, K.H.B. COLONY
80 FEET ROAD, 2ND STAGE
BASAVESHWARANAGAR
BANGALORE-560 070
...RESPONDENTS
(BY SRI. B. LINGARAJU, ADVOCATE FOR R1;
VIDE ORDER DTD.09.06.2025 NOTICE TO
R2 TO R5 IS DISPENSED WITH)
THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 21.4.2025 PASSED ON I.A.NO.1 IN OS.NO.
1315/2025 ON THE FILE OF THE I ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH NO.2), ALLOWING THE
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NC: 2025:KHC:28232
MFA No. 3329 of 2025
HC-KAR
I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS MFA HAVING BEEN RESERVED FOR JUDGMENT,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) This Misc.First Appeal is filed under Order 43 Rule 1(r) of the CPC, 1908 challenging the order dated 21.4.2025 passed by the I Addl.City Civil & Sessions Judge, Bengaluru in OS No.1315/2025 whereby, the learned trial Court allowed I.A.No.1 filed by the plaintiff under Order 39 Rule 1 and 2 of CPC and granted an order of temporary injunction `restraining defendants nos. 3 to 5 from alienating or creating any charge over the suit schedule properties pending disposal of the suit'.
2. The appellants being defendant nos. 3 to 5 in the original suit stated supra, now have questioned the correctness, legality and sustainability of the impugned order contending that, the injunction was granted without -4- NC: 2025:KHC:28232 MFA No. 3329 of 2025 HC-KAR the plaintiff establishing a prima facie right over the suit schedule properties thereby, resulting in miscarriage of justice.
3. The factual background as submitted by the learned counsel for the appellant reveals that, the plaintiff filed the suit seeking relief of declaration that, the registered partition dated 24.8.2017 is not binding on him and he has claimed 1/5th share in the suit schedule property. The plaintiff asserts that, he is the son of late L.N.Narasimha Murthy Naika and defendant no.1, who according to him, was a second wife of the deceased. It is his case that, the deceased had acquired several immovable and movable properties during has lifetime including business establishment which are jointly referred to A and B Schedule properties. The plaintiff alleged that, the registered partition deed was executed behind his back and without the knowledge or consent of himself or mother, brother defendant no.2 and the said partition suit is not binding on him. The application for temporary -5- NC: 2025:KHC:28232 MFA No. 3329 of 2025 HC-KAR injunction was filed on the allegation that, defendant nos.3 to 5 are making attempts to alienate the suit properties, which would defeat the claimant's claim in the event he were to succeed in the suit.
4. The defendants, who are appellants herein, opposed the application and contended that, the plaintiff is not a legitimate son of the deceased having been born during the subsistence of the deceased's first marriage with one Smt. M L Jaya. They further contended that, the partition deed dated 24.8.2017 was lawfully and validly executed amongst the deceased, his first wife and their children who are the appellants in this appeal and that the plaintiff and his mother had no role or claim in the properties which were partitioned and dealt with. It was their specific contention that, property allotted to the deceased under the partition deed was already alienated by him during his lifetime on 10.2.2021 and that the remaining properties are exclusively held by the appellants as per the registered partition and no claim be entertained -6- NC: 2025:KHC:28232 MFA No. 3329 of 2025 HC-KAR in respect of those properties. They contended that, the trial Court failed to examine these legal issues and plaintiffs' lack of standing before granting the temporary injunction.
5. Having considered the records, pleadings and the arguments advanced, this court finds that, the core question for determination is: whether the plaintiff had made out a sufficient prima facie case and equitable ground to justify the grant of injunction against the appellants.
6. A temporary injunction is not granted as a matter of right but, rather a discretionary equitable relief to preserve the subject matter of suit when there is arguable case on merits and when non-intervention would lead irreparable harm or multiplicity of proceedings.
7. The learned counsel for the appellant Sri Madhukar Deshpande provided the synopsis for the convenience of the Court by showing the calendar of -7- NC: 2025:KHC:28232 MFA No. 3329 of 2025 HC-KAR events. It is not in dispute that, marriage of late M.Narasimhamurthy Naik and late Smt.M.L.Jaya was solemnized on 24.05.1974. These defendant nos.3 to 5 were born in the wedlock in between them on 09.04.1977, 27.06.1978 and 05.09.1980 respectively. The so called second marriage during the subsistence of the first marriage M.N.Narasimhamurthy Naik took place on 26.3.2000 with defendant no.1 Smt. Manjula. The present plaintiff was born on 07.05.2004 from the alleged marriage between late Sri M.L.Narasimha Murthy Naik and defendant No.1 Smt. Manjula.
8. The registered partition deed was effected in between M.N.Narasimha Murthy Naik, his wife M.L.Jaya and their children defendant nos.3 to 5 on 24.8.2017.
9. As per the said partition deed, the deceased M.N.Narasimhamurthy Naik was allotted item No.3 of schedule A property which fell to his share and he sold the said property under a registered sale deed on 10.02.2021. -8-
NC: 2025:KHC:28232 MFA No. 3329 of 2025 HC-KAR M.L.Jaya the first wife of deceased died on 7.5.2021 and M.N.Narasimhamurthy Naik died on 24.03.2024. Now, plaintiff has filed the present suit in the year 2025 seeking the partition and separate possession of his alleged 1/5th share in the suit schedule property and claim that the so called partition deed dated 24.08.2017 is not binding upon his share. On that guise, he filed the suit and sought the interim injunction granted by the court which is impugned in this appeal. These facts stated supra are not disputed by the plaintiff-respondent.
10. The learned counsel for the appellant submits that, the present respondent-plaintiff being the son born to the second wife, by virtue of Section 16 of Hindu Marriage Act, he has to claim his alleged share in the property of his father and not from the joint family property. In support of his submission, he relied upon a landmark judgment of the Hon'ble Apex Court in Revanasiddappa and another v. Mallikarjun and others, reported in (2023) 10 SCC 1. He relied upon -9- NC: 2025:KHC:28232 MFA No. 3329 of 2025 HC-KAR paragraph nos. 77, 79, 80, 81 and 9 and 10. So also, he relief upon the judgment of co-ordinate bench of this Court in Kenchegowda v. K.B. Krishnappa, reported in ILR 2008 Kar 3453.
11. On perusal of these judgments, when the relationship is not denied and plaintiff is born to the second wife, the principles so laid down in the aforesaid judgments squarely can be applied to the present case. In para.77.9 and para.79 in Revanasiddappa supra, the Hon'ble Apex Court observed as under:
"77.9. In the case of joint family property such children would be entitled to a share only in the property of their parents but cannot claim it in their own right. On the partition of ancestral property, the property falling to the share of the parents of such children is regarded as their self-acquired and absolute property, and there is no reason why such children will have no share in such property since such children are equated under the amended law with legitimate offspring of a valid marriage. However, the only limitation is that during the lifetime of their parents such children cannot ask for partition but they can exercise this right only after the death of the parent;
79. From the above observations it appears that the Court in Revanasiddappa [Revanasiddappa v. Mallikarjun,
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NC: 2025:KHC:28232 MFA No. 3329 of 2025 HC-KAR (2011) 11 SCC 1 : (2011) 3 SCC (Civ) 581] , has recognised that while conferring legitimacy in terms of sub-section (1) or sub-section (2) of Section 16 to children born from void or voidable marriages, Parliament has circumscribed the entitlement to the property of such children by observing that nothing contained in those provisions shall be construed as conferring a right in or to the property of any person other than the parents. Having noticed this, the Court has also observed that in the case of joint family property such children will be entitled only to a share in their parent's property but cannot claim it of their own right as a consequence of which they cannot seek partition during the lifetime of their parents. However, the Court has also observed that once such children are declared as legitimate, they will be on a par with other legitimate children. The observation in para 29 of the referring judgment in Revanasiddappa [Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1 : (2011) 3 SCC (Civ) 581] , that a child who is conferred with legitimacy under sub-
section (1) and sub-section (2) of Section 16 will be on a par with other legitimate children is in the context of recognising the entitlements of such a child in the property of their parents and not qua the property of a third person."
12. Thus, the amended Section 16 alters the common law position that, a child of a marriage which void or voidable is illegitimate if so jure but, that benefit is available when there is a marriage and when it is void or voidable in view of the provisions of Hindu Marriage Act, 1955. In conclusion, the Hon'ble Apex Court in the said judgment, categorically observed that, "in terms of Sub-
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NC: 2025:KHC:28232 MFA No. 3329 of 2025 HC-KAR section (1) of 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether i) Such a child is born before or after commencement of amending Act: ii) A decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void other wise that on a petition under the enactment. Thus, in terms of Section 16(2) of Hindu Marriage Act, the rigor that such a son is entitled for a share in his father's property. To this effect, Apex Court in para. 81.10, held as under:
"81.10. The provisions of the HSA, 1956 have to be harmonised with the mandate in Section 16(3) of the HMA, 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub-
section (3), as interpreted above."
13. So also, in the second judgment stated supra, the co-ordinate bench of this Court have succinctly
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NC: 2025:KHC:28232 MFA No. 3329 of 2025 HC-KAR discussed with regard to the devolution of interest in the coparcenery property and also such a son who is not succeeding to the share under the provisions of Hindu Succession Act (Sec.8), such a son cannot file a suit for partition against the parents during their lifetime, in respect of separate self-acquired property of parents. The illegitimate son is not a coparcener and has no right in the coparcenery property. However, he has right in the share of his father in coparcenery property. That right he can exercise only on his father dying intestate.
14. As in this case, the appellant is born to second wife i.e. defendant no.1. But, in the present case, the trial Court proceeded primarily on the basis, the plaintiff had produced some documents in support of his claim of his relationship with the deceased. They include adhaar, pancard, photographs showing ceremonial functions and registered gift deed, wherein the deceased described as defendant no.1 as his wife. This relationship so stated by plaintiff is not denied by the defendants. The learned trial
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NC: 2025:KHC:28232 MFA No. 3329 of 2025 HC-KAR Court overlooked the critical legal requirement that, a person claiming inheritance or co-ownership in specific properties must demonstrate atleast prima facie, a legally recognizable interest or title over the properties sought to be protected by injunction.
15. Partition deed 24.08.2017 was document by deceased along with his first wife and his children under which the specific properties were divided and allotted to each party. It is not disputed that, the deceased had been allotted a specific property under the said partition which he sold in his life time under the registered sale deed stated supra. the plaintiff has not sought to challenge alienation or laid any legal claim over the properties that were expressly allotted to defendant nos. 3 to 5 under the registered partition deed. There is no documentary evidence or cogent pleadings suggesting that, the said properties were ancestral or they formed part of Hindu joint family nucleolus to which the plaintiff had any inherent right by birth. On the contrary, the defendants
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NC: 2025:KHC:28232 MFA No. 3329 of 2025 HC-KAR have consistently maintained that, the said properties are their self-acquired properties or were allotted under the said partition, and there is nothing on record to prima facie dislodge that claim of the defendants.
16. While the plaintiff's status as a biological son may entitle him to claim a share in the estate of his father, the foundational facts regarding the nature of the estate left behind, and whether any of the properties presently held by the appellants form part of father's estate etc., are to be adjudicated in the course of the trial. Prima facie as the properties were the subject matter of partition, which is not seriously disputed by the plaintiff, the trial Court misdirected itself by presuming that, the suit schedule property require protection merely because they are claimed in the plaint without first determining whether the plaintiff had shown prima facie entitlement to the properties in question. Grant of injunction on such basis is unwarranted and results in undue hardship to the appellants who are thereby restraining from exercising
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NC: 2025:KHC:28232 MFA No. 3329 of 2025 HC-KAR their lawful right over the properties validly acquired and possessed by them.
17. This Court is therefore, is of the considered opinion that, the plaintiff has not made out any legal right or prima facie claim over the properties held by the appellants that would warrant restraint orders. The trial Court's order is based mere on conjecture than on substantiated legal or factual grounds. The observation that, the properties need to be preserved till adjudication of the suit, although well intentioned, cannot override the requirement of proving prima facie entitlement. Equity follows law and when a plaintiff fails to establish a basic legal standing, equitable relief in the form of injunction cannot be granted merely to prevent hypothetical injury.
18. For these reasons stated supra, this Court finds that, the trial Court committed a clear error in allowing the interim application and in granting injunctive relief against defendant nos.3 to 5. Impugned order deserves to be set
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NC: 2025:KHC:28232 MFA No. 3329 of 2025 HC-KAR aside. However, it is made clear that, the present order is confined solely to the legality and propriety of the interim relief granted and shall not be construed as a final pronouncement on the merits of the suit. The trial Court shall proceed to adjudicate the matter uninfluenced by any of the observation made in the judgment and base strictly on the evidence that may be adduced by the parties during the course of trial.
19. Resultantly, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The order on IA No.I dated 21.4.2025 passed by the I Addl.City Civil and Sessions Judge, Bengaluru in OS No.1315/2025 is hereby set aside.
(iii) Consequentially IA No.I filed under order 39 rule 1 and 2 stands dismissed.
(iv) It is made explicitly clear that, the observations made in the judgment are
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NC: 2025:KHC:28232 MFA No. 3329 of 2025 HC-KAR confined only to the adjudication of the interim application and shall not influence or bind the trial Court in deciding the suit on merits. All issues including the status of the plaintiff, the nature of the property, and validity of partition deed shall remain open to be decided independently in accordance with law.
Under the peculiar circumstances, costs made easy.
Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE SK List No.: 1 Sl No.: 41