Karnataka High Court
Smt H V Kalpana Sundari vs Sri Vinay Krishna H V on 23 June, 2022
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.4210/2022 (CPC)
BETWEEN:
SMT. H. V. KALPANA SUNDARI
W/O G. V. SRIDHAR,
AGED ABOUT 64 YEARS,
R/AT NO.B2,
KRISHNA APARTMENTS,
6TH MAIN, 18TH CROSS,
MALLESHWARAM,
BENGALURU - 560 055
... APPELLANT
(BY SRI. SOURABH R. K., ADVOCATE)
AND:
1. SRI VINAY KRISHNA H V
S/O LATE H V NANDAKUMAR,
AGED ABOUT 32 YEARS,
R/AT NO.81, 4TH MAIN ROAD,
BETWEEN 12TH AND 15TH CROSS,
MALLESHWARAM,
BENGALURU - 560 003.
2. M/S NAGA CONSTRUCTIONS
A PROPRIETORSHIP CONCERN,
HAVING ITS OFFICE AT NO.242/3,
18TH CROSS, 7TH MAIN,
SADASHIVANAGARA,
BENGALURU-560080
REPRESENTED BY ITS PROPRIETOR,
SRI G SELVA KUMAR,
S/O SRI M C GURUSAMY.
... RESPONDENTS
(BY SRI.D.R. RAVISHANKAR, SENIOR ADVOCATE FOR
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SRI. T..S. CHANDRAPRABHA, ADVOCATE FOR C/R1;
SRI. B.S. MANJUNATH, ADVOCATE FOR C/R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE
ORDER DATED 30.05.2022 PASSED ON I.A.NO.I IN OS.NO.210/2022
ON THE FILE OF THE XIX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CCH.18, REJECTING THE I.A.NO.1 THE FILED
UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant is the plaintiff in O.S.No.210/2022 on the file of the XIX Additional City Civil and Sessions Judge, Bengaluru City (for short, 'the civil Court'). The appellant calls in question the civil Court's order dated 30.05.2022, and the civil Court by this impugned order has rejected the petitioner's application (I.A.No.1) under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'CPC').
2. This Court must record the circumstances leading to the present suit and the civil Court's conclusions before deciding on whether there should be any -3- interference with the impugned order. Sri. H.V.Krishna Murthy is the undisputed owner of the subject property [the property bearing No.81/2, PID No.7-3-81/2, 4th Main Road between 13th and 15th Cross, Malleshwaram, Bengaluru - 560 003]. On his demise in the year 1967, Smt. H.V.Rajalaxmi (his wife), Sri. H.V.Nanda Kumar (his son and the first respondent's father) and the appellant (his daughter) have entered into a Palu Patti dated 20.01.1971. The appellant was a minor at this time and therefore, her mother has signed the Pallu Patti on her behalf. Admittedly, in this partition, the appellant is given the subject property, and in terms of this partition, the appellant has continued as the owner in possession of the schedule property until the year 2010.
3. On 24.03.2010, the appellant, her mother and her brother (Smt. H.V.Rajalaxmi and Sri. H.V.Nanda Kumar) have executed and registered the Partition Deed, and in this partition, the parties have realigned their rights. -4- For the purposes of these proceedings, it would suffice for this Court to record that the subject property is allotted to Sri. H.V.Nanda Kumar and the appellant is allotted two [2] units in the apartments building constructed in the property allotted in the earlier partition to the appellant's mother and her brother, Sri. H.V.Nanda Kumar. Further, a certain agricultural land in Turahalli Village, Uttarahalli Village, Bengaluru South Taluk is also allotted to Sri. H.V.Nanda Kumar.
4. The Bengaluru Development Authority [BDA] has acquired this land, and this has resulted in certain proceedings before this Court, including the challenge to the acquisition proceedings and a claim for allotment of sites in lieu of compensation in terms of money. The parties have also participated in a reference under Section 18 of the Land Acquisition Act 1894 and the appellant has examined herself as one of the witnesses in such reference proceedings. In her evidence in this reference, the -5- appellant has referred to the Partition Deed without any caveat. She has not stated in her evidence that she had any reservation about the terms of the Partition in the year 2010.
5. In the meanwhile, Sri. H.V.Nanda Kumar has executed Gift Deed dated 08.06.2017 transferring the subject property in favour of the first respondent. The appellant and the first respondent have later signed subsequent agreements i.e., Agreement dated 28.11.2019 and the Supplementary Agreement dated 24.02.2021. In the first agreement, the first respondent has agreed to share the compensation payable in terms of the reference award with the appellant, and he has also agreed to transfer to the appellant two [2] apartments, each measuring 1500 Sq.ft., in the building proposed in the subject property. The first respondent has later signed the Joint Development Agreement with the second respondent on 05.06.2020.
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6. In the subsequent Supplementary Agreement dated 24.02.2021, the appellant and the first respondent have renegotiated the amount payable and the number of apartments to be transferred. The appellant has agreed to receive a sum of Rs.15,00,000/- as against the agreed amount of Rs.40,00,000/- and to receive an additional apartment as against the originally agreed two [2] apartments. The appellant and the first respondent have detailed the facilities that will have to be provided by the first respondent in the three [3] apartments with the first respondent also agreeing that if there is any default in the delivery of possession of the subject three [3] apartments, he would pay a sum of Rs.40,000/- to Rs.60,000/- every month.
7. It is not disputed that as of the date of the suit viz., 07.01.2022, the second respondent (the developer), who has entered into the aforesaid Joint Development -7- Agreement with the first respondent, has started construction and the subject property, though defined as a vacant plot in the plaint schedule, was not so even as of the date of the suit.
8. The appellant has filed the present suit for declaration that the Partition Deed dated 24.03.2010, the subsequent Gift Deed dated 08.06.2017 in favour of the first respondent, the Joint Development Agreement and the contemporaneous Power of Attorney in favour of the second respondent are null and void and not binding on the plaintiff. The appellant in fact, seeks declaration that the Partition Deed dated 24.03.2010 is void ab initio. The appellant has asserted that the cause of action for the suit is when she came to know that her deceased brother, Sri. H.V.Nanda Kumar, and the first respondent have played a fraud on her in obtaining the Partition Deed dated 24.03.2010.
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9. The appellant has filed an application under Order XXXIX Rule 1 and 2 of CPC for "temporary injunction restraining the respondents and their agents from alienating, encumbering or altering the nature of the suit schedule property (described as a vacant site)" during the pendency of the suit. The civil Court has rejected this application for three fold reasons: the civil Court has opined that the appellant has not challenged the agreement dated 28.11.2019 or the Supplementary Agreement dated 24.02.2021; the appellant has not approached the Court with clean hands; the appellant has failed to prove the balance of convenience or irreparable hardship. The civil Court, which has recorded certain observations, has also recorded that those observations are only for deciding the application and cannot affect the merits of the case.
10. Sri. Sourabh R.K., the learned counsel for the appellant, submits that the civil Court has failed to consider that a partition cannot be revisited, and if it so -9- revisited, it would be hit by Section 23 of the Indian Contract Act 1872. Therefore, the impugned Partition Deed dated 24.03.2010 is void ab initio. Even if there are repeated references and admissions as regards the Partition Deed dated 24.03.2010 in the Agreement dated 28.11.2019 and the Supplementary Agreement dated 24.02.2021, such references or admissions cannot confer any rights under the Partition Deed. Therefore, the appellant has made out a prima facie case for grant of injunction.
11. Sri. Sourabh R.K further submits that in law, the appellant would be required only to challenge those documents which are used to deprive her title. Therefore, it would suffice for the appellant to challenge the Partition Deed dated 24.03.2010, and she is not required in law to challenge either the Agreement dated 28.11.2019 or the Supplementary Agreement dated 24.02.2021. If the Partition Deed fails, so must these agreements. Even
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otherwise, the appellant need not impugn the agreements given the circumstances of the case.
12. Per contra, Sri. D.R.Ravishankar, the learned Senior counsel for the first respondent, submits that the Partition Deed dated 24.03.2010 and the subsequent agreements constitute a composite transaction. This Partition Deed and the subsequent agreements relate not only to the land acquired by the BDA and the subject property but also to the two [2] apartments allotted to the appellant in the apartments building constructed in the property allotted to her mother and brother in the earlier partition. The appellant is in possession and control of these two [2] apartments for many years. The appellant is elective in her reasons to challenge the Partition Deed dated 24.03.2010 and that would amount to approbating and reprobating. If the appellant is guilty of approbating and reprobating, a proposition that is an offshoot of the rule of equity, the Courts must reject the application for temporary
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injunction. The civil Court has therefore rightly rejected the application.
13. The learned Senior counsel, as regards the reasons for executing the Agreement dated 28.11.2019 and the subsequent Supplementary Agreement dated 24.02.2021, submits that the records would bear out that the appellant, a law graduate, has constrained the appellant to execute these agreements, and the present suit is another effort to constrain the first respondent. He argues that the Agreement dated 28.11.2019 is executed just before an application is filed to bring her on record as a legal representative of the deceased mother in the reference under Section 18 of the Land Acquisition Act, 1894 and the Supplementary Agreement dated 24.02.2021 is executed just a day before she appeared before the reference Court to file her affidavit in lieu of examination in chief. He takes pains to argue that the appellant, who has had detailed the negotiations on the nature of the
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completion of the apartments and the damages to be paid in the event of delay, cannot allege any fraud in execution of the Partition Deed dated 24.03.2010.
14. This Court must, at the outset, record that in exercise of the appellate jurisdiction, this Court will not substitute the civil Court's discretion unless this Court is persuaded to opine that such exercise of discretion is either perverse or contrary to the law. This Court must refer to the decision of the Hon'ble Supreme Court in Wander Ltd. And Anr. vs Antox India P. Ltd., reported in 1990 Supp (1) SCC 727.
15. It is undeniable that the appellant, who is a party to the impugned Partition Deed dated 24.03.2010 as also the subsequent agreements, has not raised any complaint about the execution of these documents until she has filed the present suit and when she files the suit, though she mentions that the construction is commenced
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for building apartments building, she describes the property as a vacant site. The appellant has agreed to receive certain advantages not only under the impugned Partition Deed but also the subsequent agreements. Unless the appellant establishes circumstances to show that these documents would be nebulous notwithstanding the benefits she has accepted, she would not be entitled to any relief. The plaint averments do not suffice to make out a prima facie case in this regard. This Court, at this stage, must opine that, in the facts and circumstances of the case, the appellant cannot renege on different sets of transactions only on the ground that the Partition Deed dated 24.03.2010 is hit by the provisions of Section 23 of the Indian Contract Act, 1872.
16. Further the appellant cannot, even at this stage, cannot dispute that she has not come out with all the circumstances surrounding the execution of the impugned Partition Deed or the subsequent documents. Thus, there is
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undeniable delay and suppression of material facts, and both these circumstances militate against grant of temporary injunction. As such, this Court is of the considered view that the civil Court has not erred in exercise of its jurisdiction in rejecting the appellant's application.
There is no reason for interference, and the appeal stands disposed of accordingly.
SD/-
JUDGE RB