Karnataka High Court
Sri Keshava Rajanna B vs Sri N Rajanna on 23 September, 2019
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
MISCELLANEOUS FIRST APPEAL No.7276 OF 2019 (CPC)
BETWEEN
Sri. Keshava Rajanna B.,
S/o. N.Rajanna,
Aged about 49 years,
R/at No.9, Arna Nilaya,
6th Cross, Sri. Sai Layout,
Cauvery Nagar, Horamavu Agara,
Bengaluru-560033.
...Appellant
(By Sri. S.M.Chandrashekar, Sr. Advocate for
Sri. P.M.Narayanaswamy, Advocate)
AND
1. Sri. N.Rajanna,
S/o. Late Nanjappa @ Nanjundappa,
Aged about 78 years,
(The R1 is being suffering from
Cerebro Vascular Accident and he
is not capable of defending himself
hence he is represented by his wife
Smt Jagadambha, who is the R2 herein),
2. Smt. Jagadambha,
W/o. N.Rajanna,
Aged about 73 years,
2
3. Smt. Pankaja R.,
D/o. N.Rajanna,
W/o. Keshava Murthy,
Aged about 51 years,
R/at No.60, New No.30,
Venky's Sona-Harshi Paradise,
2nd Cross, Mallappa Layout,
Babu Sab Palaya, Kalyana Nagar Post,
Bengaluru-560043.
4. Smt. Gaja Manoj Kumar,
D/o. N.Rajanna,
W/o. Manoj Kumar K.,
Aged about 46 years,
No.10/2, Ramakrishnappa Road,
Cox Town, Bengaluru-560005.
5. Sri. V.Shashikumar,
S/o. Sri. Venkatesh R.,
Aged about 38 years,
R/at No.65,
Malenallasandra Village,
Jigani Hobli, Anekal Taluk,
Bengaluru Urban District.
...Respondents
(By Sri. K.Arunkumar, Sr. Advocate for
Sri. M.V.Sundaraman Advocate for C/R1 & R2,
Sri. Vijay Kashyap S., Advocate for C/R5,
Sri. G.N.Pavan, Advocate for
Smt Latha S. Shetty, Advocate for C/R4)
This MFA is filed under Order 43 Rule 1(r) of the CPC,
against the order dated 17.08.2019 passed on I.A.No.1 in
O.S.No.465/2019 on the file of the XXXVIII Additional City
Civil & Judge, Bengaluru City, dismissing I.A.No.1 filed
under Order 39 Rules 1 & 2 read with Section 151 of CPC.
This MFA coming on for admission, this day, the Court
delivered the following :
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JUDGMENT
This appeal is filed by the plaintiff aggrieved by the order of the trial court on I.A.1 filed in O.S.465/2019.
2. The plaintiff is the son of the 1st and 2nd defendants. Defendants no.3 and 4 are his sisters and defendant no.5 is the purchaser of one of the items of the suit schedule properties. The plaintiff's case is that there was a partition of the ancestral properties among his father and father's two brothers. His father migrated to Bengaluru after partition. He purchased some properties in his name and some other properties in his and plaintiff's names. According to the plaintiff all the properties belonged to joint family and that the 1st defendant is the Karta of the joint family. The 1st plaintiff and the 1st defendant started a dairy called Pankaja Dairy in property No.14/1 at Sarvagna Nagar, Ward No.85, Bengaluru. The plaintiff spared his full time in looking after the dairy and contributed for the earnings of the family and purchase of all the suit properties. The 1st defendant executed a gift deed in the name of the plaintiff in respect of land bearing Sy.No.80/2, Old Sy.No.27/1 measuring 2 acres 4 10 guntas situated at Kyalasanahalli Village, K.R.Puram Hobli, Bengaluru East Taluk on 18.09.2013. The 1st defendant became sick and was suffering from many ailments. He suffered a stroke also. He was suffering from diabetes and because of all these ailments he became mentally imbalanced and lost the understanding capacity. On 6.9.2014, one Rajashekar Mathikere, a totally stranger obtained a cheque from the 1st defendant for Rs.7,40,000/- by luring him that he would cure his disease and thus deceived him. Therefore the 1st defendant filed a complaint at Police Station against Rajashekar Mathikere. Police registered a complaint and secured the presence of Rajashekar Mathikere. He confessed his guilt and returned Rs.7,40,000/-. Giving this background, it is alleged by the plaintiff that taking undue advantage of the health condition of the 1st defendant some unscrupulous persons tried to play fraud on him to grab the properties. The 1st defendant, because of his old age and other ailments has become adamant and tried to create charge on the schedule properties though there was no necessity to alienate them. 5 Defendant no.4 prevailed upon the 1st defendant and lured him to obtain the registered gift deed dated 27.08.2015. The 5th defendant who is another stranger to the family induced the 1st defendant to execute the sale deed in his favour on 24.09.2018 in respect of a property bearing Old Sy.No.51, New Sy.No.51/2 measuring 2 acres. The plaintiff has therefore stated that all these transactions show very clearly that the 1st defendant is wasting the joint family properties even though he has no absolute right to execute sale deed. Therefore the plaintiff filed a suit for partition seeking his 1/4th share and for declaring that the gift dated 27.08.2016 and the sale dated 24.9.2018 are all null and void. Along with the plaint he made an application for temporary injunction to restrain the 1st defendant from alienating the suit properties till disposal of the suit. The trial court dismissed the application. Therefore this appeal.
3. Defendants 3 and 4 filed written statement and defendant no.1 filed statement of objections to I.A.No.1 and contended that the suit properties belonged to him absolutely as they are all self acquisitions. He asserted that 6 he is mentally fit and sane. He further stated that he executed the gift deed in favour of the plaintiff in respect of one item of the suit property and in the same manner he gifted other properties to his daughters. His plea is that the plaintiff has no right to seek partition in the properties which are all his self acquired and therefore he cannot maintain the application for temporary injunction also.
4. The learned counsel for the appellant argues that the plaintiff's suit is for partition and declaration that the gift deeds and sale deed are null and void. The plaintiff has clearly stated that all the suit properties were purchased by the 1st defendant after alienating ancestral properties situated at his village. Therefore there is ancestral nucleus. Moreover the plaintiff also contributed for acquisition of some of the properties by managing the dairy. The plaintiff has clearly alleged that his father has become sick and is mentally insane. This is evidenced by his issuance of cheque for a stranger for Rs.7,40,000/-. Subsequent registration of FIR and repayment of money by the stranger to the 1st defendant shows the mental condition of the 1st defendant. 7 This being the sate of affairs, if the 1st defendant alienates the properties which are all the subject matter of the suit during pendency of the suit, the interest of the plaintiff will be affected. 3rd party interest will be created and it will lead to multiplicity of proceedings. The trial court has not at all applied its mind while passing the impugned order.
5. On the other hand, the learned counsel for the 1st respondent argues that all the properties were acquired by the 1st defendant. The plaintiff has no right to seek partition in the self acquired properties. There is already a gift in favour of the plaintiff. He accepted the gift and this acceptance shows that the properties were acquired by the 1st defendant. The plaintiff was born in the year 1970 and some of the properties were acquired before his birth. Though some items were purchased after the birth of the plaintiff, it cannot be said that the source for acquiring all the properties was from the proceeds of sale of the ancestral properties. Absolutely there is no material to come to this conclusion. The plaintiff has made false allegations that he is insane. Before filing the statement of objections he got 8 himself examined at Bowring Hospital. The doctor certified that he is physically and mentally fit. This medical certificate shows that plaintiff has made false allegations. Rightly the trial court has arrived at right conclusion not to grant injunction. The trial court has exercised its discretion properly and there cannot be interference with the impugned order in this appeal.
6. The learned counsel for respondent no.4 supported the impugned order.
7. I have perused the plaint and impugned order, the statement of objections filed by the 1st defendant to the application and the impugned order. The trial court has assigned the reasons that the 1st defendant started Pankaja Dairy in the year 1957. He was a corporator and was also elected to legislative assembly. All the properties were acquired by the 1st defendant before the birth of the plaintiff and some other properties during his minority. In these circumstances question of contribution by the plaintiff for purchasing the suit properties does not arise. The 9 averments in the plaint that the plaintiff has made contribution for purchasing the suit properties can be thrashed out after recording evidence. There is also a gift in favour of the plaintiff and therefore all these circumstances put together show that the injunction as sought by the plaintiff cannot be granted.
8. In a suit for partition, whenever an application is made by the plaintiff to restrain the defendant from alienating the properties, temporary injunction will generally be granted to avoid multiplicity of proceedings and creation of 3rd party interest. Here is a case filed by the plaintiff against the father, mother and sisters. He does not say that the gift made by his father in his favour is bad. But he challenges the gift made in favour of his two sisters. He has given one instance to show his father is mentally insane. It is stated that he issued a cheque for Rs.7,40,000/- to a stranger to take treatment for his ailments. Registration of FIR and subsequent recovery of Rs.7,40,000/- is also pleaded by the plaintiff to show the mental condition of 1st defendant. It is to be noted here that this allegation is not 10 denied by the 1st defendant, and of course this allegation alone does not indicate the mental condition of the 1st defendant, but it cannot be ignored at the stage of deciding application for temporary injunction. The plaintiff has clearly stated that there was a partition among the 1st defendant and his two brothers and after the partition, the 1st defendant sold the share allotted to him and then migrated to Bengaluru. From the proceeds of sale, he acquired properties which are all subject matter of the suit. Therefore it is his contention that all the suit properties belong to joint family. It is also stated by the plaintiff that he too worked in the dairy and earned money. His contribution may also be there in acquisition of some of the items of suit properties, but this is to be proved by the plaintiff, as no decision can be taken at this stage of deciding the application for temporary injunction. The 1st defendant asserts that all the properties belong to him absolutely and therefore the burden is also on him to show that the properties are all his self acquisitions. The factual position being so, the only course open to the court is to see that the properties remain in the hold of the 11 family to prevent creation of 3rd party interest. The trial court has not dealt with the aspect as to what happens if 3rd party interests are created during the pendency of the suit. If it comes to conclusion that the plaintiff has to prove that he too made contributions for acquisition of the property and thus there exists a case for trial, the best way open to the trial court was to direct the 1st defendant not to sell the properties. The purpose of granting injunction is to see that subject matter of the suit is not wasted or alienated. Thus seen, I am of the opinion that the trial court has not exercised its discretion properly. The interest of the 1st defendant will not be affected in any way if he is directed not to sell the properties. His mere assertion of absolute right over the properties cannot be a ground for denying temporary injunction. In these circumstances I come to conclusion that the appeal deserves to be allowed. Hence the following:
ORDER i. Appeal is allowed.
ii. The impugned order is set aside 12 iii. I.A.1 stands allowed. The defendants are restrained from alienating the suit properties till disposal of the suit.
SD/-
JUDGE sd