Karnataka High Court
Smt. Uma D/O Dareyappa Wagukar, vs Smt. Narsawwa W/O Dareyappa Wagukar on 26 November, 2013
Bench: Jawad Rahim, B.Manohar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26 T H DAY OF NOVEMBER, 2013
PRESENT
THE HON'BLE DR.JUSTICE JAWAD RAHIM
AND
THE HON'BLE MR.JUSTICE B.MANOHAR
M.F.A. No.22567/2012 c/w
M.F.A. No.4659/2012 and
M.F.A. No.22568/2012 (CPC)
IN M.F.A. No.22567/2012
BETWEEN:
1. SMT. UMA D/ O DAREYAPPA WA GUKAR,
W/O MAJAPPA KARGE, A GE: 50 YEARS ,
OCC.: HOUSEHOLD W ORK , R/ O H.NO.320/B,
CHAVADI GA LLI , ANAND MARG, MADHAVPUR,
VADAGAON, BELGA UM.
2. SMT. MAHADEVI D/ O DAREYAPPA WAGUKAR,
W/O YALLA PPA KAKAR, AGE: 48 YEARS ,
OCC.: HOUSEHOLD, R/ O H.N O. 86,
CHAVADI GA LLI , ANAND MARG, MADHAVPUR,
VADAGAON, BELGA UM.
3. SMT. ANNAPURNA D/ O DAREYA PPA WAGUKAR,
W/O VISHNUKANTH MAKOTI, AGE: 46 YEARS ,
OCC.: HOUSEHOLD, R/ O PLOT NO. 35,
KAMLESHWARI ROAD , MADHAVPUR,
:2:
VADAGAON, BELGA UM.
- APPELLANTS
(BY SMT. HEMALEKHA KULKARNI , ADV OCATE FOR
SRI G.B. SHASTRY, ADV OCATE)
AND:
1. SMT. NARASAWWA W/ O DAREYAPPA WAGUKAR,
AGED 70 YEARS , OCC.: HOUSEHOLD WORK ,
R/O H.NO. 1229, SARAF GA LLI , S HAHAPUR,
BELGA UM.
2. SMT. PARVATHI W/O SURESH BASKARI,
AGED 44 YEARS , OCC.: HOUSEHOLD WROK ,
R/O H.NO. 46/28, SAYADRI COLONY ,
BHAGYA NAGA R, ANGOL ROAD , BELGAUM.
3. SMT. HEMLATHA W/O RAMACHANDRA
WAGUKAR, AGED 55 YEARS , OCC.:
HOUSEHOLD W ORK, R/O H.NO. 1229,
SARAF GALLI, SHAHA PUR, BELGAUM .
4. SMT. MALAPRA BHA W/ O MANOJ RASAL,
AGED 38 YEARS , OCC.: HOUSEHOLD WORK ,
R/O JAWALA VILLAGE, SANGOLA DISTRICT ,
SOLAPUR.
5. SMT. GHATA PRABHA W/O CHANDRAKANTH
METRE, A GED 35 YEA RS, OCC.: HOUSEHOLD
WORK, R/O SANGRAM CHOWK , METRE GALLI ,
TQ.: ICHALAKARANJI , DIST .: K OLHA PUR.
6. SMT. PRA BHAVATHI W/ O HEMANT UNAURE,
AGED 27 YEARS , OCC.: HOUSEHOLD WORK ,
R/O WARUJI PATHA KARAD ,
MAHARASTRA STATE.
:3:
7. SRI GOVIND S/O RAMACHANDRA WAGUKAR,
AGED 22 YEARS , OCC.: STUDENT , R/O
H.NO. 1229, SARAF GA LLI , SHA HAPUR,
BELGA UM.
8. RAVI SONI , A GED: 50 YEARS ,
OCC.: BUSINESS , R/ O REYON TRADERS,
DARIYAPPA COM PLEX, MARGAMMA GALLI,
KHASBAG, BELGA UM.
9. SRI HANUMAN S/ O GOVINDA MANNUR,
AGED: 40 YEARS , OCC.: BUSIN ESS,
R/AT C/O RATION SHOP N O. 255,
DARIYAPPA COM PLEX, MARGAMMA GALLI,
KHASBAG, BELGA UM.
10. MR. IMRAN S/O ABD ULGAFFAR NARGUND,
AGED 35 YEARS , OCC.: BUSIN ESS,
R/O C/ O DA RIYAPPA COMPLEX, MARGAMMA
GALLI , KHAS BAG, BELGA UM.
11. SRI VENKATESH S/O GURUNATH PAWAR,
AGED 55 YEARS , OCC.: BUSIN ESS,
R/AT C/O MUNICI PAL N O.549/A 2,
SONAR GA LLI , BELGAUM.
12. SRI L.C. MALU, AGED 50 YEARS ,
OCC.: BUSINESS , R/AT C/ O
MUNICIPAL NO.549/A2,
SONAR GA LLI , BELGAUM.
13. SRI SACHIN S/O KAYANALAL ZAMWAR,
AGED 35 YEARS , OCC.: BUSIN ESS,
R/AT C/O MUNICI PAL N O.549/A 2,
SONAR GA LLI , BELGAUM.
:4:
14. SRI ANAND S/O CHANDRAKANTH ZANWAR,
AGED 32 YEARS , OCC.: BUSIN ESS,
R/AT C/O MUNICI PAL N O.549/A 2,
SONAR GA LLI , BELGAUM.
15. SRI DONDIBBA S/O RAMACHANDRA
MUCHANDIKAR, AGED 50 YEARS,
OCC.: BUSINESS , R/ O BASWAN GALLI ,
KHASBAG, BELGA UM.
16. SRI MOHAN S/ O VITHA L MUTTANGI ,
AGED 68 YEARS , OCC.: BUSIN ESS,
R/O H.NO. 282/ 1 BASWAN GALLI ,
KHASBAG, BELGA UM.
17. SRI CHIDAMBAR S/ O PRABHAKAR
DESHPANDE, AGED 43 YEARS, OCC.: TRAD E,
R/O H. NO. 327, ROY ROAD,
TILAKWADI, BELGA UM.
- RESPOND ENTS
(BY SRI SACHIN S. MAGAD UM, ADV OCATE FOR R5,
R1 T O R4, R6 T O R8, R10, R13, R14, R16 AND R17
ARE SERV ED,
NOTICE T O R11 & R12 IS DISPENSED WITH,
APPEAL DISMISSED AS A GAINST R9 & R15)
THIS M.F.A. IS FILED UNDER SEC. 43(I)(r) OF
THE CPC AGAINST THE ORDER DATED 12.04.2012
PASSED IN O.S.NO.221/2010 ON THE FILE OF THE
III ADDL. SENIOR CIVIL JUDGE, BELGAUM,
DISMISSING I.A. NOS. I, II & III FILED BY THE
PLAINTIFFS UNDER ORDER 39 RULE 1 AND 2 R/W
SEC. 151 OF CPC.
:5:
IN M.F.A. No.4659/2012
BETWEEN:
1. SMT. UMA D/ O DAREYAPPA WA GUKAR,
W/O MAJAPPA KARGE, A GE: 50 YEARS ,
OCC.: HOUSEHOLD W ORK , R/ O H.NO.320/B,
CHAVADI GA LLI , ANAND MARG, MADHAVPUR,
VADAGAON, BELGA UM.
2. SMT. MAHADEVI D/ O DAREYAPPA WAGUKAR,
W/O YALLA PPA KAKAR, A GE: 48 YEARS ,
OCC.: HOUSEHOLD, R/ O H.N O. 86,
CHAVADI GA LLI , ANAND MARG, MADHAVPUR,
VADAGAON, BELGA UM.
3. SMT. ANNAPURNA D/ O DAREYA PPA WAGUKAR,
W/O VISHNUKANTH MAKOTI, AGE: 46 YEARS ,
OCC.: HOUSEHOLD, R/ O PLOT NO. 35,
KAMLESHWARI ROAD , MADHAVPUR,
VADAGAON, BELGA UM.
- APPELLANTS
(BY SMT. HEMALEKHA KULKARNI , ADV OCATE FOR
SRI G.B. SHASTRY, ADV OCATE)
AND:
1. SMT. NARASAWWA W/ O DAREYAPPA WAGUKAR,
AGED 70 YEARS , OCC.: HOUSEHOLD WORK ,
R/O H.NO. 1229, SARAF GA LLI , S HAHAPUR,
BELGA UM.
2. SMT. PARVATHI W/O SURESH BASKARI,
AGED 44 YEARS , OCC.: HOUSEHOLD WROK ,
R/O H.NO. 46/28, SAYADRI COLONY ,
BHAGYA NAGA R, ANGOL ROAD , BELGAUM.
:6:
3. SMT. HEMLATHA W/O RAMACHANDRA
WAGUKAR, AGED 55 YEARS , OCC.:
HOUSEHOLD W ORK, R/O H.NO. 1229,
SARAF GALLI, SHAHA PUR, BELGAUM .
4. SMT. MALAPRA BHA W/ O MANOJ RASAL,
AGED 38 YEARS , OCC.: HOUSEHOLD WORK ,
R/O JAWALA VILLAGE, SANGOLA DISTRICT ,
SOLAPUR.
5. SMT. GHATA PRABHA W/O CHANDRAKANTH
METRE, A GED 35 YEA RS, OCC.: HOUSEHOLD
WORK, R/O SANGRAM CHOWK , METRE GALLI ,
TQ.: ICHALAKARANJI , DIST .: K OLHA PUR.
6. SMT. PRA BHAVATHI W/ O HEMANT UNAURE,
AGED 27 YEARS , OCC.: HOUSEHOLD WORK ,
R/O WARUJI PATHA KARAD ,
MAHARASTRA STATE.
7. SRI GOVIND S/O RAMACHANDRA WAGUKAR,
AGED 22 YEARS , OCC.: STUDENT , R/O
H.NO. 1229, SARAF GA LLI , SHA HAPUR,
BELGA UM.
8. RAVI SONI , A GED: 50 YEARS ,
OCC.: BUSINESS , R/ O REYON TRADERS,
DARIYAPPA COM PLEX, MARGAMMA GALLI,
KHASBAG, BELGA UM.
9. SRI HANUMAN S/ O GOVINDA MANNUR,
AGED: 40 YEARS , OCC.: BUSIN ESS,
R/AT C/O RATION SHOP N O. 255,
DARIYAPPA COM PLEX, MARGAMMA GALLI,
KHASBAG, BELGA UM.
:7:
10. MR. IMRAN S/O ABD ULGAFFAR NARGUND,
AGED 35 YEARS , OCC.: BUSIN ESS,
R/O C/ O DA RIYAPPA COMPLEX, MARGAMMA
GALLI , KHAS BAG, BELGA UM.
11. SRI VENKATESH S/O GURUNATH PAWAR,
AGED 55 YEARS , OCC.: BUSIN ESS,
R/AT C/O MUNICI PAL N O.549/A 2,
SONAR GA LLI , BELGAUM.
12. SRI L.C. MALU, AGED 50 YEARS ,
OCC.: BUSINESS , R/AT C/ O
MUNICIPAL NO.549/A2,
SONAR GA LLI , BELGAUM.
13. SRI SACHIN S/O KAYANALAL ZAMWAR,
AGED 35 YEARS , OCC.: BUSIN ESS,
R/AT C/O MUNICI PAL N O.549/A 2,
SONAR GA LLI , BELGAUM.
14. SRI ANAND S/O CHANDRAKANTH ZANWAR,
AGED 32 YEARS , OCC.: BUSIN ESS,
R/AT C/O MUNICI PAL N O.549/A 2,
SONAR GA LLI , BELGAUM.
15. SRI DONDIBBA S/O RAMACHANDRA
MUCHANDIKAR, AGED 50 YEARS,
OCC.: BUSINESS , R/ O BASWAN GALLI ,
KHASBAG, BELGA UM.
16. SRI MOHAN S/ O VITHA L MUTTANGI ,
AGED 68 YEARS , OCC.: BUSIN ESS,
R/O H.NO. 282/ 1 BASWAN GALLI ,
KHASBAG, BELGA UM.
17. SRI CHIDAMBAR S/ O PRABHAKAR
:8:
DESHPANDE, AGED 43 YEARS, OCC.: TRAD E,
R/O H. NO. 327, ROY ROAD,
TILAKWADI, BELGA UM.
- RESPOND ENTS
(BY SRI SACHIN S. MAGAD UM,
ADVOCATE FOR R1 to 3 & 7,
R5, R6, R8, R10, R11, R13, R16 AND R17
ARE SERV ED,
NOTICE T O R12 & R14 IS DISPENSED WITH,
APPEAL DISMISSED AS A GAINST R9 & R15)
THIS M.F.A. IS FILED UNDER SEC. 43(I)(r) OF
THE CPC AGAINST THE ORDER DATED 12.04.2012
PASSED IN O.S.NO.221/2010 ON THE FILE OF THE
III ADDL. SENIOR CIVIL JUDGE, BELGAUM,
DISMISSING I.A. NOS. I, II & III FILED BY THE
PLAINTIFFS UNDER ORDER 39 RULE 1 AND 2 R/W
SEC. 151 OF CPC.
IN M.F.A. NO. 22568/2012:
BETWEEN:
1. SMT. UMA D/ O DAREYAPPA WA GUKAR,
W/O MAJAPPA KARGE, A GE: 50 YEARS ,
OCC.: HOUSEHOLD W ORK , R/ O H.NO.320/B,
CHAVADI GA LLI , ANAND MARG, MADHAVPUR,
VADAGAON, BELGA UM.
2. SMT. MAHADEVI D/ O DAREYAPPA WAGUKAR,
W/O YALLA PPA KAKAR, A GE: 48 YEARS ,
OCC.: HOUSEHOLD, R/ O H.N O. 86,
CHAVADI GA LLI , ANAND MARG, MADHAVPUR,
VADAGAON, BELGA UM.
:9:
3. SMT. ANNAPURNA D/ O DAREYA PPA WAGUKAR,
W/O VISHNUKANTH MAKOTI, AGE: 46 YEARS ,
OCC.: HOUSEHOLD, R/ O PLOT NO. 35,
KAMLESHWARI ROAD , MADHAVPUR,
VADAGAON, BELGA UM.
- APPELLANTS
(BY SMT. HEMALEKHA KULKARNI , ADV OCATE FOR
SRI G.B. SHASTRY, ADV OCATE)
AND:
1. SMT. NARASAWWA W/ O DAREYAPPA WAGUKAR,
AGED 70 YEARS , OCC.: HOUSEHOLD WORK ,
R/O H.NO. 1229, SARAF GA LLI , S HAHAPUR,
BELGA UM.
2. SMT. PARVATHI W/O SURESH BASKARI,
AGED 44 YEARS , OCC.: HOUSEHOLD WROK ,
R/O H.NO. 46/28, SAYADRI COLONY ,
BHAGYA NAGA R, ANGOL ROAD , BELGAUM.
3. SMT. HEMLATHA W/O RAMACHANDRA
WAGUKAR, AGED 55 YEARS , OCC.:
HOUSEHOLD W ORK, R/O H.NO. 1229,
SARAF GALLI, SHAHA PUR, BELGAUM .
4. SMT. MALAPRA BHA W/ O MANOJ RASAL,
AGED 38 YEARS , OCC.: HOUSEHOLD WORK ,
R/O JAWALA VILLAGE, SANGOLA DISTRICT ,
SOLAPUR.
5. SMT. GHATA PRABHA W/O CHANDRAKANTH
METRE, A GED 35 YEA RS, OCC.: HOUSEHOLD
WORK, R/O SANGRAM CHOWK , METRE GA LLI ,
TQ.: ICHALAKARANJI , DIST .: K OLHA PUR.
: 10 :
6. SMT. PRA BHAVATHI W/ O HEMANT UNAURE,
AGED 27 YEARS , OCC.: HOUSEHOLD WORK ,
R/O WARUJI PATHA KARAD ,
MAHARASTRA STATE.
7. SRI GOVIND S/O RAMACHANDRA WAGUKAR,
AGED 22 YEARS , OCC.: STUDENT , R/O
H.NO. 1229, SARAF GA LLI , SHA HAPUR,
BELGA UM.
8. RAVI SONI , A GED: 50 YEARS ,
OCC.: BUSINESS , R/ O REYON TRADERS,
DARIYAPPA COM PLEX, MARGAMMA GALLI,
KHASBAG, BELGA UM.
9. SRI HANUMAN S/ O GOVINDA MANNUR,
AGED: 40 YEARS , OCC.: BUSIN ESS,
R/AT C/O RATION SHOP N O. 255,
DARIYAPPA COM PLEX, MARGAMMA GALLI,
KHASBAG, BELGA UM.
10. MR. IMRAN S/O ABD ULGAFFAR NARGUND,
AGED 35 YEARS , OCC.: BUSIN ESS,
R/O C/ O DA RIYAPPA COMPLEX, MARGAMMA
GALLI , KHAS BAG, BELGA UM.
11. SRI VENKATESH S/O GURUNATH PAWAR,
AGED 55 YEARS , OCC.: BUSIN ESS,
R/AT C/O MUNICI PAL N O.549/A 2,
SONAR GA LLI , BELGAUM.
12. SRI L.C. MALU, AGED 50 YEARS ,
OCC.: BUSINESS , R/AT C/ O
MUNICIPAL NO.549/A2,
SONAR GA LLI , BELGAUM.
: 11 :
13. SRI SACHIN S/O KAYANALAL ZAMWAR,
AGED 35 YEARS , OCC.: BUSIN ESS,
R/AT C/O MUNICI PAL N O.549/A 2,
SONAR GA LLI , BELGAUM.
14. SRI ANAND S/O CHANDRAKANTH ZANWAR,
AGED 32 YEARS , OCC.: BUSIN ESS,
R/AT C/O MUNICI PAL N O.549/A 2,
SONAR GA LLI , BELGAUM.
15. SRI DONDIBBA S/O RAMACHANDRA
MUCHANDIKAR, AGED 50 YEARS,
OCC.: BUSINESS , R/ O BASWAN GALLI ,
KHASBAG, BELGA UM.
16. SRI MOHAN S/ O VITHA L MUTTANGI ,
AGED 68 YEARS , OCC.: BUSIN ESS,
R/O H.NO. 282/ 1 BASWAN GALLI ,
KHASBAG, BELGA UM.
17. SRI CHIDAMBAR S/ O PRABHAKAR
DESHPANDE, AGED 43 YEARS, OCC.: TRAD E,
R/O H. NO. 327, ROY ROAD,
TILAKWADI, BELGA UM.
- RESPOND ENTS
(BY SRI SACHIN S. MAGAD UM,
ADVOCATE FOR R1 & R3 TO R7,
R2, R8, R10, R13, R14, R16 AND R17
ARE SERV ED)
THIS M.F.A. IS FILED UNDER SEC. 43(I)(r) OF
THE CPC AGAINST THE ORDER DATED 12.04.2012
PASSED IN O.S.NO.221/2010 ON THE FILE OF THE
III ADDL. SENIOR CIVIL JUDGE, BELGAUM,
DISMISSING I.A. NOS. I, II & III FILED BY THE
: 12 :
PLAINTIFFS UNDER ORDER 39 RULE 1 AND 2 R/W
SEC. 151 OF CPC.
THESE MISCELLANEOUS FIRST APPEALS
COMING FOR ADMISSION ON THIS DAY, DR.JAWAD
RAHIM, J, DELIVERED THE FOLLOWING:
JUDGMENT
1. Plaintiffs in these Miscellaneous First Appeals are questioning rejection of their applications, i.e., I.A. Nos.1, 2 and 3 filed under Order 39 Rule 1 and 2 CPC by the learned Civil Judge (Sr. Dn.) vide dated 12.04.2012 in O.S. No.221/2010, seeking injunctive orders as prayed for.
2. Heard learned counsel for the appellants and counsel for respondents.
Records reveal appellants filed a suit for partition of the properties described in the schedule to the plaint to assign and allocate to them share therein on assertive contention that the schedule properties were owned by one Dhareppa Govindappa Wagukar. He was the propositus who died intestate survived by his wife Narasavva, defendant no.1 in the suit and other heirs. : 13 : According to plaintiffs/appellants, Dhareppa Govindappa Wagukar had acquired the properties from and out of the income of business carried out by him but in the name of their brother Ramachandra. Ramachandra predeceased his father on 04.04.2003. Thus the properties are not individually acquired properties of Ramachandra but joint family properties acquired by the propositus and therefore divisible amongst his heirs which includes Ramachandra.
3. It is also alleged that though the properties were purchased by the propositus from the income of the joint family the documentation was done in favour of Ramachandra who was the son, yet other properties stood in the name of Dhareppa.
4. It is alleged taking advantage of documenets being in the name of Ramachandra (their brother) they have been deprived of their legitimate share.
: 14 :
5. While the suit was pending they filed 3 applications referred to above. I.A. No.1 is filed under Rule 1 and 2 of CPC seeking an order of interim injunction against respondent nos.1 to 7 ad 17 from alienating the schedule properties by way of sale, gift mortgage or encumbering it in any manner. I.A. No.2 is filed seeking an order of interim injunction against the same defendants or anyone claiming under them from altering the nature of the suit property or carrying on any construction work thereon. I.A. No.3 is filed under the same provision seeking mandatory injunction against defendant nos.8 to 16 to deposit in Court the rent payable by them in respect of the leased portion in their occupation pending further orders.
6. The defendants have resisted the applications consequent to which the learned trial Judge has heard and passed order impugned by which he has rejected the applications.
: 15 :
7. Appellants' counsel would submit the appellants are daughters of the propositus who were married in the year 1973. They shared very cordial and good relationship with their father and did not suspect any foul play but have reasons to believe that the properties, are mischievously acquired by the propositus in the name of their brother Ramachandra. It is further alleged Ramachandra, their brother taking undue advantage of documentation in his favour and has refused to partition the properties despite requests and demands. They thus contend schedule properties are to be put in the hotchpotch of the joint family for division. It is further alleged during pendency of the suit their brother and the respondents are attempting to encumber the property so as to defeat their rights and to defeat realizing fruit of the decree that may ultimately be passed. Such a transaction if allowed, may lead to multiplicity of the proceedings.
: 16 :
8. Respondents/defendants opposed all grounds so urged. We have examined the nature of lis between the parties and the averments in the plaint supporting the claim. Prima facie it could be seen that plaintiffs were married somewhere in the year 1973 and have settled in the married life. The suit was filed for partition in the year 2010 after their father expired in the year 2008. It is further to be noticed, all the properties described in the schedule are not in the name of the propositus. Substantial number of properties are in the name of Ramachandra, their brother, who also is no more. The documentation in favour of Ramachandra prima facie shows him to be the owner of the properties in question unless decided in a full-fledged enquiry. Besides the plaintiffs have on their own volition referred to the transactions in respect of some of the properties described in the schedule of the year 1986, 1993 and 1996. That itself would show that most of the properties are subjected to several transactions and a new interest has been : 17 : created. It is not necessary to go into as to who is the transferee or who has substantial interest in the property, suffices it to say that prima facie it shows the properties are individual properties, unless proved to be joint family assets in the manner known to law. In such a fact situation the trial Court opine any order of restraint.
9. We are also satisfied the plaintiffs by their conduct show they were keeping inactive for a period of 40 years in approaching the Court and seeking a relief of partition. In such belated action now they are seeking discretionary relief of injunction. Provisions of Order 39 Rule 1 and 2 of CPC is intended to grant an protective order for preservation of the subject matter of suit till final adjudication on proof of impending danger of waste or loss.
10. The fact that there has been no claim from the plaintiffs for over 40 years would show that there is no imminent threat of liquidation of the assets. It is well : 18 : settled to grant injunctive order power conferred by Order 39 Rule 1 and 2 court would consider the balance of convenience and ultimate hardship that will result apart from considering the prima facie case.
11. Given the fact situation we are satisfied that the statements made by the plaintiffs does not make out a prima facie case showing utmost urgency requiring any preventive order. If such an order is granted, it may become punitive order, which is At this stage we notice from submission of learned counsel for the respondents/ defendants they are not contemplating any alienation of the schedule properties, thus it would suffice if we observe, they shall not aggravate the dispute. Thus, we desire to make an observation that any transaction in respect of schedule property will be subject to the result of the suit.
12. The order passed by the trial Court is a discretionary order and we find no grounds to interfere with the same. : 19 : As far as I.A. No.3 is concerned, the appellants have used Order 39 Rule 1 and 2 to issue a mandatory injunction to direct the tenants to deposit rent to the Court, which is a misconceived attempt. To seek relief they should have resort to seeking appointment of a Receiver.
In the result, the appeals are dismissed. However, it is desirable that the trial Court be directed to expedite the disposal of the suit preferably within the outer limit of six months from the date of receipt of a copy of this judgment.
SD/-
JUDGE SD/-
JUDGE bvv