Karnataka High Court
Smt Ameenamma vs T Mahalaxmi on 7 March, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.61583 OF 2016 (GM-CPC)
BETWEEN:
Smt. Ameenamma
D/o late Abbas
Aged about 62 years
R/o Veeramangala
Shantigodu Village
Puttur Taluk
D.K.District-574202 ... Petitioner
(By Sri K. Ravishankar, Adv.)
AND:
1. T. Mahalaxmi
W/o T. Vishnu Rao
Aged 74 Years
R/o Menala, Ajjavara Village
Sullia Taluk
D.K.District-574239
2. Y. Sharada
W/o T. Annappayya
Aged about 71 years
R/o Kombettu, Puttur,
Puttur Taluk,
D.K.District-574201
2
3. Y. Padmavathi
D/o Yeratadi Shankaranarayappayya
Aged about 69 years
R/o 4th Cross Road,
Bijay, Mangaluru
D.K.District-575001
4. Y. Shridhara Rao
S/o Yeratadi Shankaranarayappayya
Aged about 64 years
R/o 4th Cross Road,
Bijay, Mangaluru
D.K.District-575001
5. The Shree Mahalingeshwara Devara Avabhrata
Snanada Katte Seva Samiti Veeramangala Sarve
Shanthigodu, Puttur, D.K. A Regtd Society
Rep by its Secretary Mohan Gowda
Aged 51 years, S/o Somashekara Gowda
R/o Guttu House, Veeramangala
Shanthigodu, Puttur
D.K.District-574202
6. BeePathumma,
Aged about 86 years
7. Abbunhi
Aged about 64 years
No.6 is the widow and 7 is the son of
Abdulla Rahiman Beary
Both are R/o Veeramangala
Shanthigodu Village,
Puttur Taluk,
D.K.District-574202
8. V. Kasim Haji
S/o Moidu Kutty Haji
3
Aged 61 years
Veeramangala House
Shanthigodu Village
Sarve Post, Puttur
D.K. District-574202 ... Respondents
***
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA WITH A PRAYER
TO QUASH ON I.A.NO.3 THE IMPUGNED ORDER DATED
09.11.2016 PASSED IN O.S.NO.238/2016 (OLD
NO.208/2011) (PRODUCED VIDE ANNEXURE-A) PENDING
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE & JMFC,
PUTTUR.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the 1st defendant against the order dated 09.11.2016 passed by the Civil Judge, at Puttur, D.K., rejecting IA No.3 under Order-I, Rule-10 of CPC filed by the 1st defendant.
2. Respondent Nos. 1 to 5, who are plaintiffs before the trial Court filed in O.S. No.238/2016 (Old No. 208/2011), on the file of the Civil Judge, Puttur, for 4 cancellation of release deed dated 10.03.2000 in respect of 10 cents of immovable property in Survey No.17/1 of plaint 'A' schedule, situated at Shanthigodu Village of Puttur Taluk and also to cancel the release deed dated 20.04.2000 to the extent of 10 cents of immovable property in Survey No.17/1 of plaint 'A' schedule situated at Shanthigodu Village and for permanent and prohibitory injunction restraining the 1st defendant from alienating or encumbering or intermeddling with 'A' schedule property in any manner and also raising various contentions, etc.
3. The petitioners who are defendants in the trial Court had filed the written statement denying the plaint averments and contended that if the plaintiffs are affected by the release deed dated 20.04.2000, they have to file suit for damages against the persons who had executed release deed in favour of Ameenamma for 5 necessary reliefs and not against the Ameenamma and hence, the suit is bad for non-joinder of necessary parties and the suit is liable to be dismissed. Further, it is contended that the release deed was executed on 20.04.2000 and for the last 11 years plaintiffs have not filed any suit seeking reliefs before any Court of Law and the very suit filed by the plaintiffs is liable to be dismissed on the ground of limitation and also on maintainability.
4. It is stated by the learned counsel for the petitioner that there was no interim order granted by the trial Court in favour of the plaintiffs. During the pendency of the proceedings, the present petitioner who is the 1st defendant had executed a registered Gift Deed dated 25.10.2013 in favour of her husband. Therefore, the 1st defendant filed an application I.A. No.3 under 6 Order-I Rule 10 of read with Section 151 of CPC to implead her husband as defendant in the present case.
5. The said application was resisted by the plaintiffs by filing objections and contended that the alleged Gift Deed dated 25.10.2013 executed by the 1st defendant in favour of her husband during the pendency of the suit is against the provisions of Section 52 of Transfer of Property Act. Therefore, sought for dismissal of the application.
6. The trial Court considering the entire material on record, by the impugned order dated 09.11.2016 dismissed the application filed under Order-I, Rule-10 of CPC. Hence, the present writ petition is filed.
7. I have heard the learned counsel for the petitioner. 7
8. Sri K. Ravishankar, learned counsel for the petitioner contended that, when the 1st defendant has executed the Gift Deed in favour of her husband during pendency of the suit on 25.10.2013, her husband is necessary and proper party to the suit. The trial Court rejected the application without assigning any reasons. Therefore, he sought to set aside the impugned order of trial Court.
9. Having heard the learned counsel for the petitioner, the only point that arises for consideration is:
"Whether the impugned order passed by the trial Court rejecting the application filed under Order-I Rule-10 of CPC is justified in the facts and circumstances of the case?"
10. I have given my anxious consideration to the arguments advanced by the learned counsel for the 8 petitioner and perused the entire material on record carefully.
11. It is an undisputed fact that respondent Nos.1 to 5, who are plaintiffs before the trial Court filed the suit O.S.No.238/2016 (Old No.208/2011) for cancellation of the release deed and subsequent reliefs restraining the present petitioner, who is defendant No.1 from alienating or encumbering or intermeddling with the 'A' schedule property in any manner. It is also not in dispute that, when the matter is pending for adjudication between the parties, the petitioener/1st defendant executed a Gift Deed in favour of her husband on 25.10.2013 in respect of suit schedule property. The Gift Deed executed by the petitioner in favour of her husband in respect of suit schedule property during the pendency of the suit is certainly hit by the Provision of Section 52 of Transfer of Property 9 Act. The person who got the Gift Deed has not filed any application to come on record. The plaintiffs who filed a suit for the reliefs sought, has not filed any application under Order-I Rule-10 of CPC for impleading the proposed defendant under Gift Deed. The person, who is aggrieved has to approach the Court to file necessary application if needed. The petitioner/1st defendant having executed the Gift Deed in favour of her husband during the pendency of the proceedings on 25.10.2013 is not an aggrieved party. Therefore, the trial Court was justified in dismissing the application filed by the 1st defendant holding that the transaction took place during the pendency of the suit is breach of Section 52 of Transfer of Property Act. For the reasons stated above, the point raised in this petition is answered in the affirmative holding that the trial Court is justified in rejecting the application. Petitioner has not made out any ground to interfere with the impugned order passed 10 by the trial Court exercising the power under Article 227 of the Constitution of India.
12. Accordingly, writ petition is dismissed with cost of Rs.2,000/-.
Sd/-
JUDGE SBS/-