Bangalore District Court
Smt. R. Mallika W/O Late vs Sri. M. Hullurappa on 15 June, 2018
IN THE COURT OF THE II ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AT BANGALORE (C.C.H. No.17)
Dated this the 15th day of June, 2018.
PRESENT:
Shri I.F. Bidari, B.Com., LL.B. (Spl)
II Additional City Civil and Sessions Judge,
Bangalore.
G & WC No.31/2017
Petitioner:
Smt. R. Mallika w/o late.
H. Gopalakrishna, 31 years, residing at
No.17, Church Left Main road,
Vishwanatha Nagenahalli, R.T. Nagar
post, Bengaluru.
(By Sri.AAA, Advocate)
-VERSUS-
Respondent:
Sri. M. Hullurappa, s/o late.
Munivenkatappa, 75 years, residing at
No.14, Vishwanatha Nagenahalli, R.T.
Nagar post, Bengaluru.
(By Sri.KAS Advocate)
ORDERS
The petitioner has filed this I.A. No.1 under order 39 rules 1
and 2 of C.P.C., r/w section 12 of Guardian and Wards Act, 1890,
praying that for the reasons stated in the affidavit accompanying to
the I.A., this court be pleased to grant an ad-interim order of
temporary injunction, restraining the respondent and any persons
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on his behalf, from creating any encumbrances, either by sale or
mortgage etc., of the petition schedule properties.
.2. The petitioner Smt. R. Mallika w/o late. H.
Gopalakrishna, in an affidavit accompanying to the I.A., among
other facts, has stated that her husband H. Gopalakrishna has
died on 30.05.2016. The minor i.e., Master G. Hemanth Kumar
has been born out of their wed-lock. After the death of her
husband, through a registered release deed dated 31.05.2016, she
has relinquished her right in the petition schedule properties, in-
favour of her aforesaid minor son, in appointing the respondent, as
guardian of the said minor son. The petitioner recently learnt that
the respondent is making hectic efforts to sell the petition schedule
properties of the minor son, as such, she has filed the aforesaid
petition, under the circumstances, to protect the interest of her
aforesaid minor son, it is necessary to grant the relief as prayed in
I.A. No.1.
.3. Pursuant to the notice, the respondent has appeared
through his counsel. The respondent through his counsel has filed
objection to the main petition. The respondent through a memo
dated 13.11.2017 adopted the objection filed to the main petition
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as objection to the I.A., filed under order 39 rules 1 and 2 of C.P.C.
The respondent in the objection filed to the main petition, admits
the relationship of the petitioner and her minor son, much less, as
averred in the petition and also admitted the fact of execution of
the release deed by the petitioner, relinquishing her right in the
petition schedule properties, in-favour of the minor, in appointing
him, as a minor guardian, but denied rests of the allegations
leveled against him, specially the alleged efforts of the respondent
in alienating the petition schedule properties, much less, as
averred in the I.A. The respondent in the objection also contended
that after the marriage, the petitioner harassed her husband H.
Gopalakrishna the son of the respondent, due to which, he has
died. It is also contended that on 31.05.2016, the petitioner has
executed an agreement memorandum of understanding (here-in-
after referred as MOU), admitting that because of her harassment,
her husband has died and ultimately, because of intervention of
elders and well wishers, the petitioner has executed the aforesaid
MOU dated 31.05.2016. The respondent pleaded that the aforesaid
MOU is in the interest of minor son of the petitioner and also to
protect the interest of minor in the petition schedule properties and
he will not alienate the petition schedule properties and denied the
averments made in that regard. These main grounds, among
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others, contended in the objection, prayer to dismiss the main
petition.
.4. The re-joinder of the petitioner is being filed to the main
objection filed by the respondent, mainly denying the allegations
leveled against the petitioner, with-regard to the alleged
harassment of the petitioner to her husband, consequently, death
of her husband, because of such harassment and also denied the
fact of execution of MOU, much less, as contended in the objection.
The petitioner in the main petition, as well, in the re-joinder
contended that her minor son is in her custody, she is looking after
the minor, as such, she is seeking the relief as prayed in the
instant petition.
.5. I have heard Sri. AAA the learned counsel for the
petitioner and heard Sri. KAS the learned counsel for the
respondent. Perused the records.
.6. The points that would arise for consideration of this court
are:
1) Whether the petitioner has made out a prima
facie case, at this stage?
2) Whether the balance of convenience lies in-favour
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of the petitioner?
3) Whether interest of minor son of the petitioner
Master G. Hemanth Kumar would suffer
irreparable loss and injury, if T.I. is not granted,
as sought in I.A. No.1?
4) What order?
.7. My findings on the above points are:
Point No.1: In the Affirmative,
Point No.2: In the Affirmative,
Point No.3: In the Affirmative,
Point No.4: As per final order, for the following:
REASONS
.8. Points 1 to 3: These points are inter-related, hence,
taken together for discussion, for convenience, also to avoid
repetition of facts. The petitioner Smt. R. Mallika has filed top-
noted petition against the respondent M. Hullurappa s/o late.
Munivenkatappa u/ss. 39 and 17 of the Guardians and Wards Act,
1890. The Master G. Hemanth Kumar is a minor, who is a son of
petitioner and her husband late. H. Gopalakrishna. The
respondent M. Hullurappa is a father of late. H. Gopalakrishna and
paternal grand-father of the minor G. Hemanth Kumar and father-
in-law of the petitioner. The prayer of the petitioner in the main
petition is to remove the respondent as guardian of the petitioner's
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minor son Master G. Hemanth Kumar, in person and properties of
the minor, as per the registered release deed dated 31.05.2016,
consequently, to appoint the petitioner as Guardian of her minor
son Master G. Hemanth Kumar of his person and his properties
and prayer of the petitioner is also to pass judgment and decree for
permanent injunction restraining the respondent or any persons on
his behalf, from interfering with the petition schedule properties, in
any manner and to grant such other reliefs as deem fit by the
court. The petition schedule properties in the main petition, as
well, the petition schedule properties in I.A. No.1, are (1) All that
piece and parcel of the property bearing Khaneshumari No.16 of
Vishwanthanagenahalli Gramatana, Kasaba Hobli, Bengaluru
North Taluka, now Municipal No.17, PID No.96-293-17, measuring
East to west 31 feet and North to South 45 feet, totally measuring
1395 sq. feet, along with RCC building consisting of ground floor,
1st floor and 2nd floor with all civil amenities, situated within the
boundaries described in the petition; (2) All that piece and parcel of
the property southern portion of Khaneshumari No.07 situated at
Hebbal Gramathana, Kasaba Hobli, Bengaluru North Taluka,
measuring East to west 65 feet and North to South 60 feet, in all
measuring 3900 sq. feet, out of which, East to West 65 feet and
North to South 45 feet, totally measuring 2925 sq.feet, situated
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within the boundaries described in the petition; (3) All that piece
and parcel of the property bearing northern portion of
Khaneshumari No.07, situated at Hebbal Gramatana, Kasaba
Hobli, Bengaluru North Taluka, measuring East to west 65 feet and
North to South 60 feet, in all measuring 3900 sq. feet, out of which,
East to west 65 feet, North to South 15 feet, totally measuring 975
sq. feet, along with RCC building consisting of ground floor, with all
civic amenities, situated within the boundaries described in the
petition; and (4) All that piece and parcel of Khaneshumari
No.1/10, situated at Vishwanathanagenahalli Gramatana, Kasaba
Hobli, Bengaluru North Taluka, within limits of BBMP, Bengaluru,
measuring East to west 40 feet and North to South 30 feet, totally
1200 sq. feet, along with 3 houses, one shop, one floor mill, with all
civic amenities, situated within the boundaries described in the
petition.
.9. The case of the petitioner is that during partition of the
joint family properties, the petition schedule properties were
allotted to the share of her husband late. H. Gopalakrishna,
through a registered partition deed dated 16.02.2012. The item
No.1 and item No.4 were item Nos.1 and 3 in the said partition,
whereas, the item No.2 and item No.3 petition schedule properties
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were comprised in one item described as item No.2 property in the
aforesaid partition deed. Thereafter the partition, the name of her
husband was recorded in the records of the said properties and he
was paying tax and possessing and enjoying the same as owner.
The husband of the petitioner through a registered gift deed dated
22.03.2013 during his lifetime, made a gift of item No.2 and item
No.3 of the immovable properties, allotted to him, through a
registered partition deed dated 16.02.2012, in her favour and by
virtue of the same, she has become an owner of the said properties.
Some mistake was crept in the aforesaid registered gift deed dated
22.03.2013, hence, a rectification deed dated 20.04.2015, has been
executed in that regard. Thus, after the said gift, the petitioner was
possessing and enjoying the petition schedule item Nos.2 to 4
properties, as absolute properties and the petition schedule
property No.1 was the personal property of her late. husband.
These being the facts, H. Gopalakrishna the husband of the
petitioner has died on 30.05.2016, but the respondent and his
family members forced the petitioner to execute a registered release
deed dated 31.05.2016, relinquishing her right in the petition
schedule item Nos.1 to 4 properties, in-favour of her aforesaid
minor son Master G. Hemanth Kumar, in appointing the
respondent as minor guardian of the said minor son. The minor
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son of the petitioner is in her care and custody. Thereafter the
death of husband of the petitioner and in-spite of executing the
release deed dated 31.05.2016, the respondent, at the instance of
his family members, failed to take welfare of the minor Master G.
Hemanth Kumar and also the petitioner and ultimately driven out
them from the petition schedule properties. Therefore, the
petitioner is presently residing in a rented house with her minor
son and looking after his welfare and education. Further case of
the petitioner in the main petition, as well, in the I.A. No.1, is that
recently, the petitioner came to know that the respondent is
making hectic efforts to alienate or sell the petition schedule
properties and if he is permitted to do so, then, her minor son will
be put to great hardship, as such, to protect the person and
properties of her minor son, has filed the instant petition and also
filed I.A. No.1 for the relief sought.
.10. The learned counsel for the petitioner through a memo
has filed the copy of registered memorandum of deposit of title deed
dated 31.05.2016. This copy discloses that the petitioner and her
husband H. Gopalakrishna, by depositing the aforesaid registered
partition deed dated 16.02.2012 and other title deeds and the
relevant documents like encumbrance certificates etc., of the
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petition schedule item No.1 of the petition schedule property, have
obtained the loan from Andhra Bank. The certified copy of the
registered partition deed dated 16.02.2012 produced, on behalf of
petitioner discloses that the petition schedule properties were
allotted to the share of H. Gopalakrishna the husband of the
petitioner, during joint family properties of H. Gopalakrishna and
his family members. This partition deed discloses that the
properties partitioned under this partition, are joint family
properties. The pleadings of the parties and this partition deed
disclose that the petitioner and her husband, as well, respondent
and their family members are Hindu governed by Hindu
Mithakshara Law. The petitioner has also produced the gift deed
dated 22.03.2013, where-under, H. Gopalakrishna the husband of
the petitioner has gifted the item Nos.2 and 3 properties, allotted to
him, in the aforesaid partition, in-favour of his wife i.e., petitioner.
The certified copy of the registered rectification deed dated
20.04.2015 has also been produced. These documents make it
clear that husband of the petitioner, during his lifetime, did give
item Nos.2 and 3 of the partition deed properties in gift, in-favour
of his wife. There is no dispute with regard to the relationship of
parties and late. H. Gopalakrishna, much less, as averred in the
petition, rather the said relationship is admitted by the respondent.
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The certified copy of the release deed dated 31.05.2016 is
produced, where-under, the petitioner has relinquished her right in
the petition schedule item Nos.1 to 4 properties in-favour of her
minor son Master G. Hemanth Kumar, where-under, the
respondent M. Hullurappa is appointed as minor guardian of the
minor Master G. Hemanth Kumar, which discloses that the said H.
Gopalakrishna has died on 31.05.2016. The fact of death of H.
Gopalakrishna is also not in dispute. The contents of these
documents, as well, the averments in the pleadings of the parties,
makes it clear that the parties are Hindus, governed by Hindu
Mithakshara Law and provisions of Mithakshara school, is
applicable to them, under the circumstances, as per the provisions
of law, late. H. Gopalakrishna happens to be a natural guardian of
minor G. Hemanth Kumar and admittedly, as on the date of the
petition, he was dead, as such, the petitioner being mother was
happens to be the natural guardian of her minor son G. Hemanth
Kumar, but through a registered release deed dated 31.05.2016,
she herself has appointed and nominated the respondent as
guardian of the minor G. Hemanth Kumar. As already discussed
above, the petitioner, in the instant petition, as well, in the instant
I.A., is coming before the court that the respondent who is
nominated as guardian of the aforesaid minor G. Hemanth Kumar,
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is not taking welfare of the minor, as well, welfare of the petitioner
and making hectic efforts to alienate the petition schedule
properties, as such, in the instant I.A., she is seeking temporary
injunction against the respondent as discussed above. Per contra,
the copy of unregistered MOU dated 31.05.2016 is being filed, on
behalf of the respondent. This MOU discloses that the petitioner
along with her father G. Ramachandrappa, have entered into the
said MOU with respondent M. Hullurappa, with regard to
protecting the person and properties of minor G. Hemanth Kumar,
specially the item Nos.1 to 4 properties. As per this MOU, the
minor should be in the custody of petitioner and father of the
petitioner has to collect the rent of the petition schedule properties
and same be used for repayment of the loan raised for construction
of the buildings in the petition schedule properties and for
education and maintenance of the minor. As already discussed
above, the petitioner has denied the fact of execution of this MOU
and also denied the fact that she has admitted in the said MOU
that because of her harassment, her husband has died. The copy of
the legal notice dated 07.07.2017 got issued by the petitioner to the
respondent and another and copy of reply notice dated 28.07.2017
got issued by the respondent, through his counsel, as reply to the
aforesaid legal notice and copy of postal acknowledgement, are
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produced. These documents show that apart from the petition
schedule properties, the petitioner as a guardian of her aforesaid
minor son, also seeking right in some other alleged joint family
properties left out in the aforesaid partition deed dated 16.02.2012.
The contents of copy of MOU dated 31.05.2016 and also the
pleadings of the parties, makes it clear that Master G. Hemanth
Kumar the son of petitioner and her husband late. H.
Gopalakrishna, is/was residing with petitioner. Therefore, though
under the registered release deed dated 31.05.2016, the petitioner
on her own accord has executed the said release deed,
relinquishing her right in the petition schedule properties, in-
favour of minor G. Hemanth Kumar, in appointing the respondent
M. Hullurappa, as guardian of the said minor, but the facts
remains is said minor is with the petitioner and she is looking after
education and maintenance of her minor son etc., as there is no
dispute in that regard. The fact as to whether the respondent was
appointed by the petitioner in the registered release deed dated
31.05.2016, as a guardian of the minor G. Hemanth Kumar and
whether he is acting against the interest of the said minor in the
petition schedule properties and failed in taking welfare of the
minor is a matter to be considered on merits, after receiving the
evidence only. The fact whether the petitioner has executed the
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registered release deed dated 31.05.2016 under the pressure of
respondent and his family members, as contended by the petitioner
and whether the petitioner and her father executed the MOU dated
31.05.2016 as contended by the respondent etc., as alleged by the
petitioner and the respondent, each other, shall also to be
adjudicated during disposal of the main petition, on merit, after
recording the evidence. Admittedly, the instant petition is under
sections 39 and 17 of Guardian and Wards Act 1890 and where the
court is expected to consider the paramount welfare and interest of
the minor, in such petition. Therefore, considering the above
discussed facts and circumstances of the case, this court is
expected to protect the interest of minor G. Hemanth Kumar in the
petition schedule properties and if the materials on record shows
that the alleged acts of the respondent are detrimental to the
interest of minor, then, this court shall have to protect the interest
of the said minor in the petition schedule properties. The learned
counsel for the respondent on 09.01.2018 has filed a memo of
understanding, wherein, it is stated that the respondent is not
intending to alienate any of the petition schedule properties. The
reasons discussed above and materials placed on record, at this
stage, leads to the only probability that the minor G. Hemanth
Kumar is with his mother the petitioner, she is looking after the
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welfare and education of the said minor. The petitioner to show
that she is looking after the education of the minor, produced the
receipts for having paid the school fees of the minor. The
respondent who is said to be guardian of the minor G. Hemanth
Kumar as reflected through a copy of registered release deed dated
31.05.2016, but not placed any materials to show that he is taking
welfare of the minor G. Hemanth Kumar, towards his education
and maintenance etc. Per contra, it is the petitioner, who is taking
such welfare of the minor, at the same time, the materials on
record, at this stage, discloses that if the respondent is permitted to
succeed in his alleged acts of alienating or encumbering the
petition schedule properties, wherein, the minor son Master G.
Hemanth Kumar, is having interest in that event, possibility of
causing hardship and irreparable loss and injury to the interest of
minor, cannot be over-ruled. Under the circumstances, this court is
constrained to hold that the petitioner, at this stage, has made a
prima facie case and balance of convenience lies in-favour of the
petitioner, as such, if the respondent and any person on his behalf,
are not restrained, by way of temporary injunction, then possibility
of causing irreparable loss and injury to the interest of the minor
G. Hemanth Kumar, in the petition schedule properties, cannot be
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over-ruled. Hence, I hold points 1 to 3 in the Affirmative, for
consideration.
.11. Point No.4: For the foregoing reasons, I proceed to pass
the following:
ORDER
I.A. No.1 filed under order 39 rules 1 and 2 of C.P.C., r/w section 12 of Guardian and Wards Act, 1890, is allowed.
The respondent and any persons on his behalf, are hereby restrained by way of temporary injunction, from creating any encumbrances either by sale or mortgage etc., of the I.A. schedule properties, during pendency of the main petition.
No order as to cost.
(Dictated to the J.W., computerized by her, revised by me and after corrections, pronounced in open court on this the 15th day of June 2018) (I.F. Bidari), II Addl. C.C. & S. Judge, Bengaluru.
Digitally signed by IBRAHIMIBRAHIM FEERASAB BIDARI
DN: cn=IBRAHIM FEERASAB
FEERASAB BIDARI,ou=HIGH
COURT,o=GOVERNMENT OF
KARNATAKA,st=Karnataka,c= BIDARI IN Date: 2018.06.21 10:22:32 IST Cont'd..