Karnataka High Court
Sri T Chowri Reddy vs Smt. T. Philomena on 29 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 7600 OF 2022 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 7225 OF 2022 (CPC)
MISCELLANEOUS FIRST APPEAL NO. 7432 OF 2022 (CPC)
MISCELLANEOUS FIRST APPEAL NO. 1139 OF 2023 (CPC)
IN MISCELLANEOUS FIRST APPEAL NO. 7600 OF 2022:
BETWEEN:
1. SRI SUDARSHAN KARLE
S/O LATE L.T. KARLE,
AGED ABOUT 66 YEARS
R/AT NO.101, 7TH CROSS,
2ND MAIN I BLOCK
RMV II STAGE
BANGALORE-560094
Digitally signed 2. SRI MAHENDRA KARLE
by SHARANYA T
Location: HIGH S/O LATE L.T.KARLE,
COURT OF AGED ABOUT 64 YEARS,
KARNATAKA
R/AT NO.21, ADITHI
1ST MAIN, RMV II STAGE,
BANGALORE-560094
...APPELLANTS
(BY SRI MANMOHAN P.N., ADVOCATE)
AND:
SMT. T. PHILOMENA
D/O LATE SRI THOMASAPPA
SINCE DEAD BY LRS
-2-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
1. SRI G. VINCENT THOMAS,
S/O LATE GABRIEL A. ALIAS
GABRIEL REDDY,
AGED ABOUT 55 YEARS,
R/AT NO.91,
M.M.REDDY ROAD,
MARIYANNAPALYA,
H.A.FARM POST,
BENGALURU-560024
2. SRI ROMARIO VINCENT THOMAS
S/O SRI VINCENT THOMAS,
AGED ABOUT 25 YEARS,
R/AT NO.91,
M.M.REDDY ROAD,
MARIYANNAPALYA,
H.A FARM POST,
BENGALURU-560024
3. SMT. SUSHEELA
W/O LATE T. ANTHONY REDDY,
AGED ABOUT 73 YEARS,
R/AT 10 CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
4. SMT. A. JACINTHA
D/O LATE T. ANTHONY REDDY,
W/O SRI J. VINCENT,
AGED ABOUT 57 YEARS,
R/AT 10 CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
5. SMT. RAJMARY A
D/O LATE T. ANTHONY REDDY,
W/O JOHN WILLIAM J,
AGED ABOUT 54 YEARS,
R/AT RAHUL KRUPA,
-3-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
NO.177, MARIANNAPALYA,
H.A.FARM POST,
BENGALURU-560024
6. SRI THOMAS KUMAR A.,
S/O LATE T. ANTHONY REDDY,
AGED ABOUT 51 YEARS,
10 CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
7. SMT. JOSEPHINA A.,
D/O LATE T. ANTHONY REDDY,
W/O SRI JAYAKUMAR C,
AGED ABOUT 48 YEARS,
R/AT MARIA KRUPA,
70/1, AROGYA REDDY LAYOUT,
5TH MAIN, 7TH CROSS,
KAMMANAHALLI,
ST.THOMASA TOWN POST,
BENGALURU-560045
8. SRI GEORGE A,
S/O LATE T. ANTHONY REDDY,
AGED ABOUT 46 YEARS,
10 CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
9. SMT. JAYAPRABHA A.,
D/O LATE T. ANTHONY REDDY,
W/O SRI BALARAJ PRAVEEN J,
AGED ABOUT 42 YEARS,
R/AT 89/6, RAYAPPA GARDEN,
RAMAKRISHNA ROAD,
COX TOWN,
BENGALURU-560005
-4-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
10. SRI ROSE MARY
D/O LATE SRI THOMASAPPA,
W/O LATE C. PHILOMENA RAJ,
AGED ABOUT 76 YEARS,
R/AT 11, BACHAMMAL ROAD,
COX TOWN,
BENGALURU-560005
SRI T. AROGYA REDDY
S/O LATE SRI THOMASAPPA
SINCE DEAD BY HIS LRS
SMT. ANTHONY THERESA,
W/O LATE SRI T.AROGYA REDDY
SINCE DEAD BY HER LRS.,
RESPONDENTS NO.11 TO 17
11. SRI A. KANTH RAJ,
S/O LATE T.AROGYA REDDY,
AGED ABOUT 50 YEARS,
R/AT NO.75, 8TH CROSS,
KANAKANAGAR,
R.T. NAGAR POST,
BENGALURU-560032
12. SMT. A. PAVITRA PREMA
D/O LATE T. AROGYA REDDY,
W/O SRI G. ALBERT RAJ,
AGED ABOUT 49 YEARS,
R/AT NO.67, 8TH CROSS,
KANAKANAGAR,
ST.THOMAS TOWN,
R.T. NAGAR POST,
BENGALURU-560032
13. SMT. A. ROSE MARY
D/O LATE T. AROGYA REDDY,
AGED ABOUT 47 YEARS,
R/AT 9, CHURCH MAIN ROAD,
NIRMALA NAGAR,
ERANNA PALYA,
-5-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
ARABIC COLLEGE POST,
BENGALURU-560045
14. SMT. A SAHAYA MARY
D/O LATE T. AROGYA REDDY,
W/O SRI P. ANTHONY BENEDICT,
AGED ABOUT 46 YEARS,
R/AT BETHEL ASD,
68, 8TH CROSS,
KANAKANAGAR,
ST. THOMAS TOWN,
R T NAGAR POST,
BENGALURU-560032
15. SRI A. PRASAD
S/O LATE T. AROGYA REDDY,
AGED ABOUT 45 YEARS,
R/AT ISHWERYA OPAL APARTMENTS,
RAMAKRISHNAPPA ROAD,
COX TOWN,
BENGALURU-560005
16. SMT. A. JYOTHI RITA
D/O LATE T. AROGYA REDDY,
W/O SRI J. JOHN BITTO,
AGED ABOUT 42 YEARS,
R/AT 70, 8TH CROSS,
KANAKANAGAR
ST.THOMAS TOWN,
R.T. NAGAR POST,
BENGALURU-560032
17. SRI A. ULLAS PETER
D/O LATE T. AROGYA REDDY,
AGED ABOUT 35 YEARS,
R/AT 30, MEGHANA PALYA,
CHELIKERE MAIN ROAD,
KALYAN NAGAR,
BENGALURU-560043
-6-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
18. SMT. C. JETHRUTHA
W/O LATE SRI T.CHINNASWAMY REDDY,
AGED ABOUT 67 YEARS,
R/AT 42, CHURCH MAIN ROAD,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
19. SRI C. ALBERT DAVID
S/O LATE SRI T. CHINNASWAMY REDDY,
AGED ABOUT 49 YEARS,
R/AT 42, CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST
BENGALURU-560045
20. SRI PRAKASH PAUL C.,
S/O LATE SRI T. CHINNASWAMY REDDY,
AGED ABOUT 49 YEARS,
R/AT 42, CHURCH MAIN ROAD,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
21. SMT. C. SUNITHA
D/O LATE SRI T. CHINNASWAMY REDDY,
AGED ABOUT 49 YEARS,
R/AT NO.60, JAJAPPA LAYOUT,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
22. SRI T. JOSEPH THYAGARAJ ALIAS
T. JOSEPH REDDY
S/O LATE THOMASAPPA,
AGED ABOUT 70 YEARS,
R/AT 4-5, 5TH CROSS,
HUTCHINS ROAD,
ST. THOMAS TOWN POST,
BENGALURU-560084
-7-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
SRI T. CHOWRI REDDY
S/O LATE THOMASAPPA,
SINCE DEAD BY LRS
THROUGH WILL DATED 03-07-2020
I.E., RESPONDENT NO.19 TO 21,
23. SRI ANAND SURANA
S/O GHEVERCHAND SURANA,
AGED ABOUT 51 YEARS,
R/AT SURANA VILLA,
45/3, FAIRFIELD LAYOUT,
RACE COURSE ROAD,
BENGALURU-560001
24. THE BANGALORE DEVELOPMENT AUTHORITY
A STATUTORY BODY HAVING ITS
OFFICE AT T CHOWDAIAH ROAD,
KUMARA PARK WEST,
BENGALURU-560020
REPRESENTED BY ITS
COMMISSIONER,
...RESPONDENTS
(BY SRI R.I. D'SA &
SMT. SUNITHA H. SINGH, ADVOCATES FOR C/R1 & R2;
VIDE ORDER DATED 11.04.2023,
NOTICE TO R3 TO R9 & R11 TO R24 ARE DISPENSED WITH;
SMT.SUSHEELA S.P., SENIOR COUNSEL FOR
SRI SOMANATHA H., ADVOCATE FOR R10)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 05.08.2022 PASSED ON I.A.
NO.II/2020 IN O.S.NO.1629/2020 ON THE FILE OF THE XXXIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, C/c OF XL
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY (CCH-41), PARTLY ALLOWING THE I.A. NO.II/2020 FILED
UNDER ORDER 22 RULE 10 OF CPC.
-8-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
IN MISCELLANEOUS FIRST APPEAL NO. 7225 OF 2022:
BETWEEN:
SRI T. CHOWRI REDDY
S/O LATE THOMASAPPA
SINCE DEAD BY LRS THROUGH
WILL DATED 03.07.2020
1. SRI C. ALBERT DAVID
S/O LATE SRI T. CHINNASWAMY REDDY
AGED ABOUT 49 YEARS
RESIDING AT NO.42
CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045
2. SRI PRAKASH PAUL C.,
S/O LATE SRI T. CHINNASWAMY REDDY
AGED ABOUT 49 YEARS
RESIDING AT
42 CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045
3. SMT. C. SUNITHA
D/O LATE SRI T CHINNASWAMY REDDY
AGED ABOUT 45 YEARS
RESIDING AT NO.60
JOJAPPA LAYOUT
CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045
...APPELLANTS
(BY SRI MANMOHAN P.N., ADVOCATE)
-9-
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
AND:
SMT. T. PHILOMENA
D/O LATE SRI. THOMASAPPA
SINCE DEAD BY LRS
1. SRI G. VINCENT THOMAS
S/O LATE GABRIEL A. ALIAS
GABRIEL REDDY
AGED ABOUT 54 YEARS
RESIDING AT NO.91,
M.M. REDDY ROAD
MARIYANNAPALYA
H.A. FARM POST
BENGALURU - 560024
2. SRI ROMARIO VINCENT THOMAS
S/O SRI G. VINCENT THOMAS
AGED ABOUT 24 YEARS
RESIDING AT NO.91,
M.M. REDDY ROAD
MARIYANNAPALYA
H.A. FARM POST
BENGALURU - 560024
3. SMT. SUSHEELA
W/O LATE T. ANTONY REDDY
AGED ABOUT 73 YEARS
RESIDING AT
10 CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045
4. SMT. A. JACINTHA
D/O T. ANTONY REDDY
W/O SRI J. VINCENT
AGED ABOUT 57 YEARS
RESIDING AT
10 CHURCH MAIN ROAD
- 10 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045
5. SMT. RAJMARY A.,
D/O T. ANTONY REDDY
W/O JOHN WILLIAM J
AGED ABOUT 54 YEARS
RESIDING AT RAHUL KRUPA
NO.177, MARIANNAPALYA
H.A. FARM POST
BENGALURU - 560024
6. SRI THOMAS KUMAR A.,
S/O LATE T. ANTONY REDDY
AGE ABOUT 51 YEARS
RESIDING AT
42 CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045
7. SMT. JOSPHINA A
D/O LATE T. ANTONY REDDY
W/O SRI JAYAKUMAR C
AGED ABOUT 48 YEARS
R/AT MARIA KRUPA 70/1
AROGYA REDDY LAYOUT
5TH MAIN, 7TH CROSS
KAMANAHALLI
ST. THOMAS TOWN POST
BENGALURU - 560045
8. SRI GEORGE A.,
S/O LATE T ANTHONY REDDY
AGED ABUT 46 YEARS
RESIDING AT 10 CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045
- 11 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
9. SMT. JAYAPRABHA A
D/O LATE T ANTHONY REDDY
W/O SRI BALARAJ PRAVEEN J
AGED ABOUT 42 YEARS
R/AT 89/6, RAYAPPA GARDEN
RAMAKRISHNA ROAD
COX TOWN
BENGALURU - 560005
10 . SRI ROSE MARY
D/O LATE SRI THOMASAPPA
W/O LATE C. PHILOMENA RAJ
AGED ABOUT 76 YEARS
R/AT 11 BACHAMMAL ROAD
COX TOWN,
BANGALORE - 560005
SRI T. AROGYA REDDY
S/O LATE SRI THOMASAPPA
SINCE DEAD BY HIS LRS
SMT. ANTHONY THERESA
W/O LATE SRI T. AROGYA REDDY
SINCE DEAD BY HER LRS
(RESPONDENT NO.11 TO 17 ARE
THE LRS OF SRI T. AROGYA REDDY AND
SMT.ANTHONY THERESA)
11 . SRI A. KANTH RAJ
S/O LATE T. AROGYA REDDY
AGED ABOUT 50 YEARS
R/AT NO.75, 8TH CROSS
KANAKANAGAR
R T NAGAR POST
BENGALURU - 560032
12 . SMT. A. PAVITRA PREMA
D/O LATE T. AROGYA REDDY
- 12 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
W/O SRI G. ALBERT RAJ
AGE ABOUT 49 YEARS
R/AT NO.75, 8TH CROSS
KANAKANAGAR
R T NAGAR POST
BENGALURU - 560032
13 . SMT. A. ROSE MARY
D/O LATE T. AROGYA MARY
AGED ABOUT 47 YEARS
RESIDING AT NO.9
CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALURU - 560045.
14 . SMT. A. SAHAYA MARY
D/O LATE T. AROGYA REDDY
W/O SRI P. ANTHONY BENEDICT
AGED ABOUT 46 YEARS
R/AT BETHEL ASD
68, 8TH CROSS
KANAKANAGAR
ST. THOMAS TOWN
R.T. NAGAR POST
BENGALURU-560032
15 . SRI A. PRASAD
S/O LATE T. AROGYA MARY
AGE ABOUT 45 YEARS
R/AT ISHWERYA OPAL APARTMENTS
RAMAKRISHNAPPA ROAD, COX TOWN
BENGALURU-560005
16 . SMT. A. JYOTI RITA
D/O LATE T. AROGYA REDDY
W/O SRI J. JOHN BRITTO
AGED ABOUT 42 YEARS
R/AT 70, 8TH CROSS
KANAKANAGAR
- 13 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
ST. THOMAS TOWN
R T NAGAR POST
BENGALURU-560032
17 . SRI A. ULLAS PETER
D/O LATE T AROGYA REDDY
AGED ABOUT 35 YEARS
R/AT NO.30, MEGHANA PALYA
CHELIKERE MAIN ROAD
KALYAN NAGAR
BANGALORE - 560043
18 . SMT. C. JETHRUTHA
W/O LATE SRI T.CHINNASWAMY REDDY
AGED ABOUT 67 YEARS
R/AT NO.42 CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST
BENGALUR - 560045
19 . SRI T. JOSEPH THYAGARAJ
ALIAS T. JOSEPH REDDY
S/O LATE THOMASAPPA
AGED ABOUT 70 YEAR S
R/AT 4-5, 4TH CROSS
HUTCHINS ROAD
ST. THOMAS TOWN POST
BENGALURU - 560084
20 . SRI ANAND SURANA
S/O GHEVERCHAND SURANA
AGED ABOUT 51 YEARS
R/AT SURANA VILLA
45/3 FAIR FIELD LAYOUT
RACE COURSE ROAD
BENGALURU - 560001
21 . SRI SUDARSHAN KARLE
S/O LATE SRI L.T.KARLE
AGED ABOUT 67 YEAR S
- 14 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
R/AT 101, 7TH CROSS,
2ND MAIN, I BLOCK,
RMV II STAGE
BENGALURU - 560094
22 . SRI MAHENDRA KARLE
S/O LATE SRI L.T. KARLE
AGED ABOUT 65 YEARS
R/AT FLAT NO 1-F
CASTLE ROCK APARTMENTS
NO.26, I MAIN ROAD
JAYAMAHAL EXTENSION
BENGALURU - 560046
23 . THE BANGALORE DEVELOPMENT AUTHORITY
A STATUTORY BODY HAVING ITS
OFFICE AT T.CHOWDAIAH ROD
KUMARA PARK WEST
BENGALURU - 560020
REPRESENTED BY ITS COMMISSIONER
...RESPONDENTS
(BY SMT. SUSHEELA S., SENIOR COUNSEL FOR
SRI SOMANATH H., ADVOCATE FOR R10;
SRI R.I.D'SA ADVOCATE FOR CAVEATOR R1 & R2;
NOTICE TO R3 TO R9 & R11 TO R23 IS DISPENSED WITH
VIDE ORDER DATED 11.04.2023)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 05.08.2022 PASSED ON I.A.
NO.II/2020 IN O.S.NO.1629/2020 ON THE FILE OF THE XXXIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, C/C OF XL
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY (CCH-41), PARTLY ALLOWING I.A. NO.II/2020 FILED
UNDER ORDER XXXIX RULES 1 AND 2 OF CPC, 1908.
- 15 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
IN MISCELLANEOUS FIRST APPEAL NO. 7432 OF 2022:
BETWEEN:
1 . ANAND SURANA
S/O GHEVERCHAND SURANA,
AGED ABOUT 51 YEARS,
R/AT SURANA VILLA,
45/3, FAIRFIELD LAYOUT,
RACE COURSE ROAD,
BENGALURU-560 001.
...APPELLANT
(BY SRI K.SHRIHARI, ADVOCATE)
AND:
1. G. VINCENT THOMAS
S/O. LATE GABRIEL A. @ GABRIEL REDDY
AGED ABOUT 57 YEARS,
2. ROMARIO VINCENT THOMAS
S/O G. VINCENT THOMAS,
AGED ABOUT 27 YEARS,
BOTH RESIDING AT NO.91,
M.M. REDDY ROAD,
H.A. FARM POST,
MARIANNAPALYA,
BENGALURU-560 024.
3. SUSHEELA
W/O. LATE T. ANTHONY REDDY,
AGED ABOUT 73 YEARS,
4. A. JACINTHA
D/O. T. ANTHONY REDDY,
AGED ABOUT 57 YEARS,
BOTH ARE RESIDING AT
10, CHURCH MAIN ROAD,
- 16 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560 045.
5. RAJMARY. A
D/O. T. ANTHONY REDDY,
AGED ABOUT 54 YEARS,
R/AT RAHUL KRUPA,
NO.177, MARIANNAPALYA,
H.A.FARM POST,
BENGALURU-560 024.
6. THOMAS KUMAR A,
S/O. LATE T. ANTHONY REDDY,
AGED ABOUT 51 YEARS,
10, CHURCH MAIN ROAD,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560 045.
7. JOSEPHINA. A
D/O. LATE T. ANTHONY REDDY,
AGED ABOUT 48 YEARS,
R/AT MARIA KRUPA,
70/1, AROGYA REDDY LAYOUT,
5TH MAIN, 7TH CROSS,
KAMMANAHALLY,
ST. THOMAS TOWN POST,
BENGALURU-560 045.
8. GEORGE A.,
S/O. LATE T. ANTHONY REDDY,
AGED ABOUT 46 YEARS,
10 CHURCH MAIN ROAD,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560 045.
9. JAYAPRABHA A.,
D/O. T. ANTHONY REDDY,
- 17 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
AGED ABOUT 42 YEARS,
R/AT NO.89/6,
RAYAPPA GARDEN,
RAMAKRISHNA ROAD,
COX TOWN,
BENGALURU-560 005.
10 . ROSE MARY
W/O. C. PHILOMENA RAJ,
AGED ABOUT 76 YEARS,
R/AT 11, BACHAMMAI ROAD,
COX TOWN,
BENGALURU-560 005.
11 . A. KANTH RAJ
S/O. LATE T. AROGYA REDDY,
AGED ABOUT 50 YEARS,
R/O. NO.75, 8TH CROSS,
KANAKANAGAR,
R.T. NAGAR POST,
BENGALURU-560 032.
12 . A. PAVITRA PREMA
D/O. LATE T. AROGYA REDDY,
AGED ABOUT 49 YEARS,
R/O. NO.67, 8TH CROSS,
KANAKANAGAR,
ST. THOMAS TOWN,
R.T. NAGAR POST,
BENGALURU-560 032.
13 . A. ROSE MARY
D/O. LATE T. AROGYA REDDY,
AGED ABOUT 47 YEARS,
R/O. NO.9, CHURCH MAIN ROAD,
NIRMALA NAGAR,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGALURU-560 045.
- 18 -
NC: 2024:KHC:8452
MFA No. 7600 of 2022
C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
14 . A. SAHAYA MARY
D/O. LATE T. AROGYA REDDY,
AGED ABOUT 46 YEARS,
R/O. BETHEL ASD 68,
8TH CROSS, KANAKANAGAR,
ST. THOMAS TOWN,
R.T. NAGAR POST,
BENGALURU-560 032.
15 . A. PRASAD
S/O. LATE T. AROGYA REDDY,
AGED ABOUT 45 YEARS,
R/AT ISHWERYA OPAL APARTMENTS,
RAMAKRISHNAPPA ROAD, COX TOWN,
BENGALURU-560 005.
16 . A. JYOTI RITA
D/O. LATE T. AROGYA REDDY,
AGED ABOUT 42 YEARS,
R/O. NO.70, 8TH CROSS,
KANAKANAGAR,
ST. THOMAS TOWN,
R.T. NAGAR POST,
BENGALURU-560 032.
17 . A. ULLAS PETER
D/O. LATE T. AROGYA REDDY,
AGED ABOUT 35 YEARS,
R/AT NO. 30, MEGHANA PALYA,
CHELIKERE MAIN ROAD,
KALYAN NAGAR,
BENGALURU-560 043.
18 . C. JETHRUTHA
W/O. T. CHINNASWAMY REDDY,
AGED ABOUT 65 YEARS,
19 . C. ALBERT DAVID
S/O. T. CHINNASWAMY REDDY,
AGED ABOUT 49 YEARS,
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MFA No. 7432 of 2022
MFA No. 1139 of 2023
20 . PRAKASH PAUL
S/O. T. CHINNASWAMY REDDY,
AGED ABOUT 48 YEARS,
ALL ARE RESIDING AT
42 CHURCH MAIN ROAD,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560 045.
21 . C. SUNITHA
D/O. T. CHINNASWAMY REDDY,
AGED ABOUT 45 YEARS,
R/AT NO.60, JOJAPPA LAYOUT,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560 045.
22 . T. JOSEPH THYAGARAJ
S/O. LATE THOMASAPPA,
AGED ABOUT 70 YEARS,
R/AT 4-5, 4TH CROSS,
HUTCHINS ROAD,
ST. THOMAS TOWN POST,
BENGALURU-560 084.
23 . T. CHOWRI REDDY @ CHOWREDDY
S/O. LATE THOMASAPPA,
AGED ABOUT 68 YEARS,
RESIDING AT 42,
CHURCH MAIN ROAD,
ERANNAPALYA,
ARABIC COLLEGE POST,
BENGALURU-560 045.
24 . SUDARSHAN KARLE
S/O. LATE L.T. KARLE,
AGED ABOUT 67 YEARS,
R/AT NO. 101, 7TH CROSS,
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MFA No. 7432 of 2022
MFA No. 1139 of 2023
2ND MAIN, I BLOCK,
RMV II STAGE,
BENGALURU-560 094.
25 . MAHENDRA KARLE
S/O. LATE L.T. KARLE,
AGED ABOUT 65 YEARS,
R/AT FLAT NO. 1-F,
CASTLE ROCK APARTMENTS,
NO. 26, I MAIN ROAD,
JAYAMAHAL EXTENSION,
BENGALURU-560 046.
26 . THE BDA
A STATUTORY BODY HAVING ITS
OFFICE AT T. CHOWDAIAH ROAD,
KUMARA PARK WEST,
BENGALURU-560 020,
REPRESENTED BY ITS
COMMISSIONER.
...RESPONDENTS
(BY SMT. S.SUSHEELA, SENIOR COUNSEL FOR
SRI SOMANATHA H., ADVOCATE FOR R10;
SRI R.I.D'SA, ADVOCATE FOR CAVEATOR R1 & R2;
NOTICE TO R3 TO R9 & R11 TO R26 IS DISPENSED WITH
VIDE ORDER DATED 11.04.2023)
THIS MFA IS FILED U/O.43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DT.05.08.2022 PASSED ON IA
NO.2 IN O.S.NO.1629/2020 ON THE FILE OF THE XXXIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, C/C. XL
ADDITIONAL CITY CIVIL JUDGE, BENGALURU, (CCH-41),
PARTLY ALLOWING IA NO.2/2020 FILED U/O.39 RULE 1 AND 2
R/W SECTION 151 OF CPC.
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C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
IN MISCELLANEOUS FIRST APPEAL NO. 1139 OF 2023:
BETWEEN:
1 . SRI T. JOSEPH THYAGARAJ
S/O LATE THOMOSAPPA
AGED ABOUT 72 YEARS,
R/AT NO.4/5, 4TH CROSS,
HUTCHINS ROAD,
ST. THOMAS TOWN POST
BENGALURU-560084
...APPELLANT
(BY SRI JANARDHANA G., ADVOCATE)
AND:
T.PHILOMENA
D/O LATE THOMASAPPA
W/O GABRIEL REDDY,
SINCE DECEASED BY HER
LEGAL REPRESENTATIVES
1. SRI G. VINCENT THOMAS
S/O LATE GABRIEL A.@ GABRIEL REDDY,
BUSINESSMAN
AGED ABOUT 56 YEARS,
2. SRI ROMARIO VINCENT THOMAS
S/O G.VINCENT THOMAS
ADVOCATE
AGED ABOUT 26 YEARS
RESPONDENT NOS.1 & 2 ARE
RESIDING AT NO.91
M.M.REDDY ROAD
MARIYANNAPALYA
H.A.FARM POST
BENGALURU-560024.
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MFA No. 1139 of 2023
3. SMT. SUSHEELA
W/O LATE T. ANTHONY REDDY
AGED ABOUT 72 YEARS,
R/AT NO.10,
CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
4. SMT. A. JACINTHA
D/O LATE T ANTHONY REDDY
AGED ABOUT 56 YEARS,
R/AT NO.10,
CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGALURU-560045
5. SMT. RAJMARY A,
D/O LATE T. ANTHONY REDDY
AGED ABOUT 53 YEARS,
R/AT RAHUL KRUPA,
NO.177, MARIYANNAPALYA,
H.A. FARM POST
BENGLAURU-560024
6. SRI THOMAS KUMAR A,
S/O LATE T. ANTHONY REDDY,
AGED ABOUT 50 YEARS
R/AT NO.10
CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST
BENGALURU-560045
7. SMT. JOSEPHINA A,
D/O LATE T. ANTHONY REDDY
W/O JAYAKUMAR C
AGED ABOUT 47 YEARS,
R/AT MARIA KRUPA,
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MFA No. 7432 of 2022
MFA No. 1139 of 2023
70/1, AROGYA REDDY LAYOUT,
5TH MAIN, 7TH CROSS,
KAMMANAHALLI
ST. THOMAS TOWN POST
BENGALURU-560084
8. SRI GEORGE A,
S/O LATE T ANTHONY REDDY
AGED ABOUT 45 YEARS,
R/AT NO.10, CHURCH MAIN ROAD
ERANNA PALYA
ARABIC COLLEGE POST,
BENGALURU-560045
9. SMT. JAYAPRABHA A,
D/O LATE ANTHONY REDDY
W/O BALARAJ PRAVEEN J
AGED ABOUT 4 YEARS
R/AT NO.89/6, RAYAPPA GARDEN,
RAMAKRISHNA ROAD
COX TOWN
BENGALURU-560005
10 . SRI ROSE MARY
D/O LATE THOMASAPPA
W/O LATE C. PHILOMENA RAJ
AGED ABOUT 75 YEARS,
R/AT NO.11, BACHAMMAL ROAD
COX TOWN
BENGALURU-560005
T. AROGYA REDDY
S/O LATE THOMAPPA
SINCE DECEASED BY HIS
LEGAL REPRESENTATIVES
SMT. ANTHONY THERESA
W/O LATE T. AROGYA REDDY
(DIED ON 10.05.2021)
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MFA No. 7432 of 2022
MFA No. 1139 of 2023
11 . SRI A. KANTH RAJ
S/O LATE T. AROGYA REDDY
AGED ABOUT 51 YEARS
R/AT NO.75, 8TH CROSS,
KANAKANAGAR
R.T. NAGAR POST
BENGALURU-560032
12 . SMT. A. PAVITRA PREMA
D/O LATE T. AROGYA REDDY
W/O G. ALBERRT RAJ
AGED ABOUT 80 YEARS,
R/AT NO.67, 8TH CROSS,
KANAKANAGAR,
ST. THOMAS TOWN
R.T. NAGAR POST
BENGALURU-560032
13 . SMT. A. ROSE MARY
D/O LATE T. AROGYA REDDY
AGED ABOUT 48 YEARS,
R/AT NO.9, CHURCH MAIN ROAD,
NIRMALA NAGAR, ERANNA PALYA,
ARABIC COLLEGE POST
BENGALURU-560045.
14 . SMT. A. SAHAYA MARY
D/O LATE T. AROGYA REDDY
W/O P. ANTHONY BENEDICT
AGED ABOUT 47 YEARS,
R/AT BETHEL ASD,
68, 8TH CROSS
KANAKANAGAR,
ST.THOMAS TOWN,
R T NAGAR POST
BENGALURU-560032
15 . SRI A. PRASAD
S/O LATE T. AROGYA REDDY
AGED ABOUT 46 YEARS,
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MFA No. 7432 of 2022
MFA No. 1139 of 2023
R/AT ISHWERYA OPAL APARTMENTS
RAMAKRISHNAPPA ROAD, COX TOWN
BENGALURU-560005
16 . SMT. A. JYOTI RITA
D/O LATE T. AROGYA REDDY
W/O J. JOHN BRITTO
AGED ABOUT 43 YEARS,
R/AT NO.70, 8TH CROSS,
KANAKANAGAR,
ST. THOMAS TOWN
R.T. NAGAR POST
BENGALURU-560032
17 . SRI A. ULLAS PETER
D/O LATE T AROGYA REDDY
AGED ABOUT 36 YEARS,
R/AT NO.30, MEGHANA PALYA,
CHELIKERE MAIN ROAD,
KALYAN NAGAR
BENGALURU-560043
18 . SMT. C. JETHRUTHA
W/O LATE T. CHINNASWAMY REDDY
AGED ABOUT 66 YEARS,
R/AT NO.42,
CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST
BENGALURU-560045
19 . SRI C. ALBERT DAVID
S/O LATE T CHINNASWAMY REDDY
AGED ABOUT 48 YEARS,
R/AT NO.42,
CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST
BENGALURU-560045
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C/W MFA No. 7225 of 2022
MFA No. 7432 of 2022
MFA No. 1139 of 2023
20 . SRI PARKASH PAUL C.,
S/O LATE T. CHINNASWAMY REDDY
AGED ABOUT 47 YEARS,
R/AT NO.42, CHURCH MAIN ROAD,
ERANNA PALYA,
ARABIC COLLEGE POST
BENGALURU-560045
21 . SMT. C. SUNITHA
D/O LATE T.CHINNASWAMY REDDY
W/O SHATHAKUMAR S
AGED ABOUT 44 YEARS,
R/AT NO.60, JOJAPPA LAYOUT,
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGLAURU-560045
22 . SRI T. CHOWRI REDDY @ CHOWREDDY
S/O LATE THOMSAPPA
AGED ABOUT 67 YEARS
R/AT NO.42, CHURCH MAIN ROAD
ERANNA PALYA,
ARABIC COLLEGE POST,
BENGLAURU-560045
23 . SRI ANAND SURANA
S/O GHEVERCHAND SURANA
AGED ABOUT 50 YEARS,
R/AT SURANA VILLA
45/3, FAIRFIELD LAYOUT
RACE COURSE ROAD
BENGALURU-560001
24 . SRI SUDARSHAN KARLE
S/O LATE L.T. KARLE
AGED ABOUT 65 YEARS,
R/AT NO.101, 7TH CROSS,
2ND MAIN, I BLOCK
RMV II STAGE
BENGALURU-560094
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MFA No. 7432 of 2022
MFA No. 1139 of 2023
25 . SRI MAHNDRA KARLE
S/O LATE L.T. KARLE
AGED ABOUT 64 YEARS,
R/AT FLAT NO.1-F,
CASTLE ROCK APARTMENTS,
NO.26, I MAIN ROAD,
JAYAMAHAL EXTENSION,
BENGALURU-560046
26 . THE BANGALORE DEVELOPMENT AUTHORITY
A STATUTORY BODY HAVING ITS
OFFICE AT T.CHOWDAIAH ROAD,
KUMARA PART WEST,
BANGALORE-560020
BY ITS COMMISSIONER
...RESPONDENTS
(BY SRI D SA RONALD I &
SMT. SUNITHA H. SINGH, ADVOCATES FOR R1 & R2;
VIDE ORDER DATED 11.04.2023,
NOTICE TO R3 TO R9 & R11 TO R26 ARE DISPENSED WITH;
SMT.SUSHEELA S.P., SENIOR COUNSEL FOR
SRI SOMANATHA H., ADVOCATE FOR R10)
THIS MFA IS FILED U/O.43 RULE 1(r) OF CPC, AGAINST
THE ORDER DT.05.08.2022 PASSED ON IA NO.2/2020 IN
O.S.NO.1629/2020 ON THE FILE OF THE XL ADDITIONAL CITY
CIVIL JUDGE, BENGALURU CITY, (CCH-41), PARTLY ALLOWING
IA NO.2/2020 FILED U/O.39 RULE 1 AND 2 OF CPC.
THESE APPEALS COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 7432 of 2022
MFA No. 1139 of 2023
JUDGMENT
The appeal in M.F.A.No.7600/2022 is filed by the defendant Nos.17 and 18, the appeal in M.F.A.No.7225/2022 is filed by defendant No.15, who is dead and his legal representatives are brought on record as defendant Nos.11, 12 and 13, the appeal in M.F.A.No.7432/2022 is filed by defendant No.16 and the appeal in M.F.A.No.1139/2023 is filed by the defendant No.14, challenging the order passed by the Trial Court on I.A.No.II/2020 filed under Order XXXIX Rule 1 and 2 of CPC seeking an order of temporary injunction restraining the defendants/opponents from alienating, encumbering, creating any third party rights or altering either by putting up any permanent structure or otherwise, the whole or any portion of the schedule 'A' properties, pending disposal of the suit.
2. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of partition of 1/7th share in respect of the suit schedule properties is that the schedule properties consists of 21 items of lands which have been morefully described under Schedule 'A' of the plaint. One Thomasappa and Theresamma are husband and wife interse.
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 The said Thomasappa died intestate on 26.09.1978 and his wife Theresamma died intestate on 27.02.2019. They begotten seven children. The plaintiff is the daughter, who is eldest among their children and the defendants are sons and one other daughter and since some of the defendants are no more, their legal heirs are brought on record and arrayed as defendants.
3. It is the case of the plaintiff before the Trial Court that the said Thomasappa died intestate on 26.09.1978 and his wife Theresamma died intestate on 27.02.2019. Their second son T. Anthony Reddy died intestate leaving behind his wife and children, who are defendant Nos.1 to 7. Thomasappa's another daughter Smt. Rose Mary and son Sri T. Arogya Reddy are defendant Nos.8 and 9 herein. Thomasappa's fifth son Sri Chinnaswamy Reddy died intestate on 06.06.2007 leaving behind him, his wife and children, who are defendant Nos.10 to
13. Thomasappa's sixth and seventh sons i.e., Joseph Reddy and Chowri Reddy are defendant Nos.14 and 15 herein respectively. Subsequent to the death of Chowri Reddy, a memo is filed before the Trial Court stating that defendant
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 Nos.11, 12 and 13 may be treated as his legal heirs. The said Chowri Reddy had executed a Will in their favour. It is also the case of the plaintiff that defendant Nos.16 to 18 are purchasers of some of Thomasappa's properties. The defendant No.19 is a statutory body said to have acquired certain properties of late Thomasappa by way of land acquisition proceedings. The plaintiff and defendant Nos.1 to 15 are Roman Catholic Indian Christians and they are governed by the provisions of Indian Succession Act, 1927 in the matter of succession to intestate the properties. Late Thomasappa was an affluent agriculturist and landlord, who died intestate leaving item Nos.1 to 21 properties described under Schedule 'A' of the properties. During his lifetime, due to making erroneous and illegal demands for partition of the properties as if his sons were all members of the joint Hindu Family, late Thomasappa has earmarked five items of properties to his son Sri T. Anthony Reddy in full settlement of his inheritance from his father. Accordingly, the said T. Anthony Reddy has unilaterally executed a registered release deed dated 28.10.1967 relinquishing all his claims over schedule 'A' properties, after excluding the five items of the properties ear-marked for him.
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 The said registered release deed is a nullity in law and the same does not divest Thomasappa's title over the said five items of the properties.
4. It is further contended that following the aforesaid arrangement of the year 1957 with Sri T. Anthony Reddy, the other sons of Thomasappa also started mounting pressure on their father to put in the place for them a similar arrangement and as a result, to buy peace and to prevent his son's future interse bickering and misunderstandings, the said Thomasappa had distributed some of the properties under schedule 'A' among his five sons by executing a registered partition deed dated 24.05.1972 giving a go-by to the earlier registered release deed dated 28.10.1967. Under the said registered partition deed dated 24.05.1972, the item Nos.1 to 9 under schedule 'B' were given to Sri T. Anthony Reddy, who died leaving behind his legal heirs defendant Nos.1 to 7. The item Nos.1 to 10 under schedule 'C' were given to Sri T. Arogya Reddy, who is defendant No.9, who also died during the pendency of the suit leaving behind his legal heirs defendant No.9(a) to 9(h). The item Nos.1 to 7 under schedule 'D' were
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 given to Sri Chinnaswamy Reddy, who died leaving behind his legal heirs defendant Nos.10 to 13. The item Nos.1 to 7 under schedule 'E' were given to Sri T. Joseph Thyagaraj, who is defendant No.14. The item Nos.1 to 6 under schedule 'F' were jointly retained for himself along with Sri Chowri Reddy. The item Nos.1 to 3 under schedule 'G' were not included in the aforesaid partition exercise. This partition deed was entered into and the documents were executed on erroneous basis that all the parties thereto had an ownership interest in schedule 'A' properties as co-owners or coparceners under Hindu Law, but in reality, Thomasappa was sole and absolute owner of the said schedule 'A' properties. Further, Thomasappa's wife and daughters were neither parties nor was any provision made for any of them in the said partition deed. Therefore, the said partition deed could not be possibly be legally or validly be construed as of any legal significance or effect be it is an agreement partition, a partition deed or any other conveyance of property to any of the sons of Thomasappa. Hence, it is contended that the said deed, as a partition deed would be an illegal, invalid and void document affecting or altering rights of Thomasappa as the sole and absolute owner of the schedule 'A'
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 properties. Therefore, the schedule 'B', 'C', 'E' and 'F' properties have remained to be absolute properties of Thomasappa throughout his lifetime.
5. It is also contended that as per the Indian Succession Act, 1975, Thomasappa's widow Theresamma inherited an undivided 1/3rd share and each of his seven children got undivided 2/21st share respectively as co-owners of the so divided entire estate of Thomasappa. After the demise of Thomasappa, his widow Theresamma persuaded her daughters i.e., the plaintiff and defendant No.8 herein as not to take any immediate legal action to enforce their inheritance claims, by assuring them that she would be able to ensure that her sons gave their two sisters their fair shares of schedule 'A' properties, in compliance of her and her late husband's wishes. Therefore, the plaintiff and defendant No.8, did not precipitate the matter during their mother's life time. Having regard to the applicable law of intestate succession, Thomasappa's widow, children and the wives and children of his deceased son as his intestate heirs, all became entitled to their specific undivided share of schedule 'A' properties. They inherited and jointly held
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 the same until just prior to 27.02.2019 intestate demand of Theresamma. Following her death, her undivided 1/3rd share in schedule 'A' properties, devolve upon her daughters, surviving sons and the wives and children of her deceased sons, jointly and as co-owners each of them are entitled to their specific undivided shares. Thus, the plaintiff is entitled for partition and separate possession of her undivided 1/7th share in schedule 'A' properties by metes and bounds.
6. The defendant Nos.1 to 7 and 14 filed their written statement contending that already there was a partition in the year 1972 during the life time of their father Thomasappa. When during the life time of their father, he has partitioned the property, daughter cannot seek for any partition and the very contention that partition is of the year 1972 is illegal and not valid cannot be accepted. It is also contended that once deceased Thomasappa during his life time made arrangement for partition, the plaintiff cannot claim any share. The defendants also contend that already when there was partition and made it clear making the property belongs to Thomasappa mentioning in the schedule itself, specific properties were
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 allotted to them, now they cannot contend and seek for any relief of partition which was already settled among the defendants.
7. The defendant No.8 contend that alleged earlier partition was not binding and the same is not valid in the eye of law and the averment made in the plaint i.e., by brother and sons of the said Thomasappa got it partitioned the property and the said partition itself is not valid document and question of partitioning the property which exclusively belongs to Thomasappa does not arise.
8. The Trial Court having considered the defence which have been taken by the defendants and the plaintiff, formulated the points whether the plaintiff has made out a prima facie case, whether there is a balance of convenience in favour of the plaintiff and whether the plaintiff would be put to irreparable loss and injury, if an order of temporary injunction is not granted.
9. The Trial Court, having considered the material on record, answered point No.(i) in the 'affirmative', point No.(ii) partly in favour of the plaintiff and point No.(iii) as partly in the
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 'affirmative' and directed that the defendants, who are holding plaint schedule 'F' and item Nos.1 and 2 of plaint schedule 'G' properties are hereby temporarily restrained from alienating the said properties in any manner whatsoever till final disposal of the suit. Though suit schedule properties are mentioned as schedule 'A' to 'H', the interim-relief is granted in respect of two items of 'F' schedule properties and 'G' schedule properties. The Trial Court comes to the conclusion that while passing such an order in respect of 'G' schedule properties, those properties are not the part of the earlier partition of the year 1972. The claim of the plaintiff is with regard to 'F' schedule properties is concerned and though, earlier there was a partition, those properties are also allotted in favour of the father as well as son Chowri Reddy. Hence, they are also entitled for a share in the said properties. Being aggrieved by the said order, these appeals are filed by the defendants whom I have referred supra.
10. The main contention of the learned counsel appearing for the appellants in M.F.A.No.7600/2022, who have been arrayed as defendant Nos.17 and 18 i.e., the purchasers
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 and learned counsel for the appellants in M.F.A.No.7225/2022, who are defendant Nos.11 to 13, i.e., the legal heirs of defendant No.15 is that the suit is filed for the relief of partition and when already there was a partition in the year 1972 itself, the said partition was effected by the father of the defendants i.e., Thomasappa during his life time. The counsel also would submit that plaint 'A' schedule properties belong to Thomasappa and no dispute with regard to the same. The Plaint schedule 'B' to 'H' properties also belong to Thomasappa is not in dispute. The learned counsel would further contend that Thomasappa died in the year 1978 is not in dispute and interim order is granted in respect of entire 'F' schedule properties and item Nos.1 and 2 of schedule 'G' properties is not in dispute. In respect of item No.3 of schedule 'G' properties, SLP is pending before the Apex Court. The counsel also would vehemently contend that when the registered partition deed came into existence in the year 1972, now they cannot seek for the relief of partition, that too, after lapse of 48 years, since the partition was effected in the year 1972 itself.
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11. Learned counsel also would vehemently contend that the parties are Christians and once the Trial Court comes to the conclusion that parties are Christians, however the finding of Trial Court is in favour of the defendants considering the Hindu Law and the very observation made by the Trial Court that parties are governed by Hindu Succession Act is erroneous taking note of the devolving of the properties under Hindu Succession Act. Learned counsel appearing for the appellants would vehemently contend that supplementary affidavit is filed and the same is not considered by the Trial Court and in Para Nos.3 and 4 of the supplementary affidavit, specific averment is made in respect of entire schedule 'F' properties and the consideration of the affidavit by the Trial Court is not correct which would be half in the averments made in the order. Learned counsel would vehemently contend that suit itself is not maintainable and the conduct of the parties also to be taken note of and the same was not taken note by the Trial Court and the plaintiff has slept over for more than 48 years.
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023
12. Learned counsel also would contend that other suit is pending in respect of item No.1 of 'G' schedule properties and one more suit is also filed and ought to have invoked Order 2 Rule 2 of CPC with regard to the suit filed by the defendant No.9 which is pending. Learned counsel would further submit that the said suit was filed in 2016 and the present suit is filed in 2020 and the Trial Court has not considered the balance of convenience and instead, considered the balance of convenience in favour of the plaintiff. Learned counsel also would vehemently contend that the properties were purchased long back in 2003 itself. Learned counsel would submit that said Chowri Reddy executed some of the sale deeds in favour of defendant No.15 and he is running a school and substantial township is also started and in view of granting the order of temporary injunction, it curtails the right of the defendants.
13. Learned counsel for the appellants in support of his argument, relied upon the judgment of the Apex Court in KISHORSINH RATANSINH JADEJA VS. MARUTI CORPORATION AND OTHERS reported in (2009) 11 SCC 229 with regard to the conduct and delay and brought to notice
- 40 -
NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 of this Court Para Nos.39 to 41, wherein the Apex Court has discussed with regard to laches. Under such circumstance, when there is an inordinate delay, injunction cannot be granted.
14. The counsel also relied upon the judgment in LIFE INSURANCE CORPORATION VS. BANGALORE L.I.C. EMPLOYEES HOUSING CO-OPERATIVE SOCIETY LTD. reported in ILR 1987 KAR 2817 and brought to notice of this Court Para Nos.40 to 42 and also Para No.21 of the judgment, wherein the Apex Court has discussed with regard to celebrated decision of HOUSE OF LORDS IN AMERICAL CYANAMID CO. VS. ETHICON LTD. reported in ILR KARNATAKA 1976(1) 426 and brought to notice of this Court Para Nos.68 and 23, wherein this Court has observed that very object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainly were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against
- 41 -
NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainly were resolved in the defendant's favour at the trial. The counsel also brought to notice of this Court Para No.40 of the judgment, wherein this Court has observed that balance of convenience is thus not something akin to a tradesman's scales to be manipulated adroitly, but as indicated in the decision supra, it is the resultant anticipation by the Court in an objective manner of the concomitant hardships experienced by the one vis-a-vis advantages secured by the other party subject to there being clear chances of mitigating in some manner the hardship endured pendente lite by one or the other side and the prospect of being adequately compensated should preeminently be the primordial factor guiding exercise of discretion one way or the other.
15. Learned counsel also brought to notice of this Court Para No.42 of the judgment, wherein this Court has observed that in this context, I am bound to note the hazardous result attendant on the grant of the injunction and call attention to
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 the fact that each day the defendant's project gets delayed, it will add to the escalating costs of house construction which is sky-rocketing daily, a factor which is so notorious, that no Court can avoid taking note of.
16. The counsel also relied upon the judgment in SRI GOWRISHANKARA SWAMIGALU VS. SRI SIDDHAGANGA MUTT reported in I.L.R. 1989 KAR 1701. The counsel referring this judgment would vehemently contend that this Court in detail considered the scope of granting of temporary injunction and not only discussed with regard to granting of relief of temporary injunction by the Trial Court but also discussed with regard to the very scope of Appellate Court in considering the miscellaneous appeal, when injunction is granted and brought to notice of this Court Para No.39 of the judgment, wherein it is observed that I need to hardly add that the relief of injunction being a remedy in equity must be bestowed only on those whose reputation and hands are both spotlessly clean. If not anything else, at least this circumstance should over-ride all other considerations and must lead to the
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 affirmation of the order of the Court below in refusing to continue the ex-parte injunction granted by it.
17. The counsel also relied upon the judgment in COTTON CORPORATION OF INDIA LIMITED VS. UNITED INDUSTRIAL BANK LIMITED AND OTHERS reported in (1983) 4 SCC 625 and brought to notice of this Court Para No.10 of the judgment with regard to scope of Order 39 Rule 1 and 2 of CPC being confined to temporary injunction, an unnecessary grey area will develop. It is indisputable that temporary injunction is granted during the pendency of the proceeding so that while granting final relief the Court is not faced with a situation that the relief becomes infructuous or that during the pendency of the proceeding an unfair advantage is not taken by the party in default or against whom temporary injunction is sought. But power to grant temporary injunction was conferred in aid or as auxiliary to the final relief that may be granted. If the final relief cannot be granted in terms as prayed for, temporary relief in the same terms can hardly if ever be granted. If this be the purpose to achieve which power to grant temporary relief is conferred, it is inconceivable that
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 where the final relief cannot be granted in terms sought for because the statute bars granting such a relief ipso facto the temporary relief of the same nature cannot be granted.
18. The counsel also relied upon the judgment of this Court in SMT. GUDUMA VS. SHIKANDAR AND OTHERS reported in ILR 2003 KAR 3913 and brought to notice of this Court Para No.8, wherein it is observed that in view of these settled principles of law, in the opinion of this Court, a civil suit questioning and order of eviction is both expressly and impliedly barred under Section 9 of the Code of Civil Procedure. In other words, the suit as brought is not maintainable in law and this would be a major hurdle for the plaintiff to seek an order of temporary injunction, which is a discretionary relief. It is a settled principle of law that when the suit itself is not maintainable, a party cannot afford to seek an order of temporary injunction. The relief of temporary injunction is a protective relief granted in a judicial proceeding in favour of a party when the Court is satisfied that the fact in issue in the case requires to be examined and scrutinized in a full fledged trial and till the Court of law decides that, the interest of the
- 45 -
NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 party should be protected and only at that stage, an order of temporary injunction could be granted.
19. The counsel also relied upon the judgment in KHATRI HOTELS PRIVATE LIMITED AND ANOTHER VS. UNION OF INDIA AND ANOTHER reported in (2011) 9 SCC 126 and relied upon Para No.30 of the judgment, wherein the Apex Court has discussed with regard to the limitation is concerned and observed that while enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word `first' has been used between the words `sue' and 'accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.
20. The counsel also relied upon the judgment in LALITHA THERESA SEQUERIA (SINCE DEAD) BY LEGAL
- 46 -
NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 REPRESENTATIVES VS. DOLFY A PIAS ALIAS ADOLPHYS JOSEPH PAIS AND ANOTHER reported in (2014) 10 SCC 731 and brought to notice of this Court Para No.10, wherein it is observed that we find no basis to hold that what was claimed by the defendants to have occurred in the year 1962 is a partition of the joint family property as understood in Hindu Law. The property was inherited by the father of the plaintiff from his mother and the parties being Christians, the father must be understood to be absolute owner of such property. In that capacity he was certainly entitled to divide or distribute the property as he considered fit. What had actually happened in the year 1962 is, therefore, an oral division of the property at the instance of the absolute owner thereof i.e. the father in three more or less equal shares. So far as Schedule 'C' property which fell to the share of the father, a part of it was sold by Exhibit D-1 and the remaining devolved on 2 daughters including the plaintiff. The aforesaid arrangement was acknowledged in the Will dated 18.05.1976 though the same has been referred to, and one must understand such reference to be loosely made, as a partition of the property. The execution of the Will dated 18.05.1976 has been proved by one
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 of the attesting witnesses who had been examined in the trial. The counsel referring this judgment would contend that the parties are Christians and in the case on hand, already there was partition in the year 1972 and one of the son of the Chowri Reddy had already executed Will and they are also claiming right based on the Will executed as legatees and the same is pending consideration.
21. Learned counsel appearing for the appellant in M.F.A.No.1139/2023 would vehemently contend that the property i.e., item No.1 of 'G' schedule property i.e., Sy.No.46/5 is to the extent of 5 acres, 14 guntas and out of the same, 1 acre was given to the appellant and the same is not included in the partition and all the members to the partition have given consent for transfer of the property in favour of the appellant and in view of the consent given in the year 1984, the mutation was entered on 20.02.1984 and all the records from 1984 for a period of 34 years stands in the name of the appellant and it clearly discloses that property was given to the appellant and some of the properties have been sold by developing the same. Learned counsel also would vehemently
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 contend that though all these aspects were pleaded before the Trial Court by filing written statement, the Trial Court has committed an error in granting the relief of injunction, though the plaintiff is not having any right and she slept over for a period of almost 40 years. The counsel also would contend that the documents also clearly disclose that the Trial Court not considered the document in respect of 19 guntas of land retained after conversion and school is also run in the said premises.
22. Learned counsel would further contend that in the written statement of the defendants, they have categorically taken such defence and also in the objections filed to the supplementary affidavit filed by the plaintiff, a specific contention was taken that in the year 1984-85 itself, property was given exclusively to the appellant and possession is also with the appellant as a result of consent given in terms of IHC 32/1984-1985. Learned counsel would submit that RTC stands in the name of the appellant from 1984 to 2017 and the sketch produced discloses that there was conversion to the extent of 19 acres, 12 guntas of land. Learned counsel would further
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 contend that the appellant also bequeathed the property on 21.07.2010 in favour of his wife i.e., three sites and khatha is transferred in the name of his wife. The counsel would submit that tax paid receipts clearly disclose that the appellant is in exclusive possession of the land which he has retained and electricity connection is also taken in the year 2010 itself. The counsel would vehemently contend that site No.26 was sold by way of power of attorney in the year 1999 itself and all the documents disclose that khatha stands in the name of the appellant. The counsel would further submit that they have not produced any single document before the Court to claim the relief and without any such document being produced before the Trial Court, the Trial Court has granted an order of injunction and temporary injunction ought not to have been granted. Learned counsel also would submit that plaintiff is in possession of the suit schedule properties and if injunction is continued in favour of the plaintiff, it will cause hardship.
23. Learned counsel for the plaintiff in reply to the submissions of learned counsel appearing for the appellant in M.F.A.No.1139/2023 would vehemently contend that injunction
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 is only not to alienate and the same not affects the interest of the appellant and only in order to prevent further multiplicity of proceedings, injunction has been granted and with regard to this appellant is concerned, injunction is granted in respect of item No.1 of the 'G' schedule properties and the same is not the part of the partition. When such being the case, when the said property is not a part of the partition, the plaintiff is entitled for a share in respect of 'G' schedule properties. The counsel also would vehemently contend that the defendants contend that there was consent by the plaintiff and the very consent is disputed and the plaintiff submit that she is not aware of the same and no document is produced with regard to transfer of khatha and if injunction is vacated, it would lead to multiplicity of proceedings. The counsel would vehemently contend that partition is of the year 1972 and wife and daughters are not parties to the said partition. The counsel would further contend that though suit schedule properties were allotted, the same are allotted in favour of the father and last son Chowri Reddy which are shown in the plaint and the Trial Court has rightly appreciated the material on record and granted the relief of temporary injunction in respect of 'F' and
- 51 -
NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 'G' schedule properties and the dispute is only with regard to 'F' and 'G' schedule properties.
24. The counsel also would vehemently contend that the plaintiff is disputing the earlier partition among themselves and contend that the partition deed is not a valid document and there is no correct distribution of the properties. The counsel would further contend that the fact that the father died in the year 1978 is not in dispute and when the father has died, 1/3rd devolves upon wife and the remaining 2/3rd share devolves upon the children. The counsel would vehemently contend that suit itself is barred by limitation and the same is a mixed question of law. The counsel also vehemently contend that his argument is on three counts i.e., the share of the plaintiff is enhanced on account of death of the father and mother in which she was having 1/3rd share and the same is an undisputed share of mother and the plaintiff is also entitled for a share along with other children. It is also contended that on account of death of Chowri Reddy, the share of the plaintiff enlarges and though the defendants claim that they are having Will, the same is subject to mutation. The counsel would
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 contend that accusation was made by filing a writ petition and the same is quashed by this Court and against the said order, an appeal is filed and the same is allowed by the Apex Court and the Apex Court has passed an order to redeliver the property to original owners and if any compensation is awarded, the same also would be recovered. The counsel also would contend in the written statement that they have admitted the fact that the properties belong to Chowri Reddy and the question of purchasing the property from Vyalikaval House Building Cooperative Society Limited does not arise. Learned counsel also would vehemently contend that document itself clearly disclose that properties stand in the name of Chowri Reddy and tax paid receipt disclose the same and hence, the Trial Court has taken note of all these material and the properties stand in the name of Chowri Reddy is also taken note of by the Trial Court while granting the relief.
25. The other contention of the learned counsel for the respondents in M.F.A.No.7225/2022 would contend that no relief is sought by the appellants while filing the appeal and on that ground itself, the appeal is liable to be dismissed. Learned
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 counsel appearing for the respondent No.10, who is the defendant No.8 also contend that they have not made any application before the Trial Court to come on record as legatees of the said Chowri Reddy and when no such application is filed, now they cannot file an appeal on that ground and appeal is liable to be dismissed. Under Section 33 of Indian Succession Act, the mother is entitled for 1/3rd share and partition cannot be looked into and the document of partition deed is not valid and the same will not confer any right.
26. In support of his argument, learned counsel appearing for the respondent Nos.1 and 2 in M.F.A.No.7225/2022 rely upon the judgment in JALADI SUGUNA (DECEASED) THROUGH LRS. SATYA SAI CENTRAL TRUST AND OTHERS reported in (2008) 8 SCC 521, wherein the Apex Court also discussed with regard to when there is a dispute with regard to whether they are legatees or not, an observation is made that postponement of determination of LRs - High Court deciding first appeal on merits prior to determining the LRs of the deceased respondent-plaintiff, held that Court cannot postpone
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 determination of LRs for being decided along with merits. Hence, the counsel would vehemently contend that when they claim that they are the legatees, the same has to be decided.
27. The counsel also relied upon the judgment in SRI ARALAPPA VS. SRI JAGANNATH AND OTHERS reported in ILR 2007 KAR 339 and brought to notice of this Court Para No.14, wherein the Co-ordinate Bench of this Court observed that when the parties are governed by the provisions of the Indian Succession Act and in the property of the father, during his life time the sons do not get any right. The concept of blending known under Hindu Law, is not applicable to them. Therefore, it is clear that the aforesaid Sy.No.47/2 absolutely belongs to Chowrappa and the only mode in which he could have conveyed title to his sons in the said property was by way of registered sale deed or gift deed. However, the recital Ex.P1 shows that they treated themselves as undivided joint family and then 35 guntas in the aforesaid survey number was given to the share of these plaintiffs by their father under the aforesaid partition deed. Even under Hindu Law, if the sons
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 have no pre-existing right, in a partition deed they cannot get right in the property for the first time.
28. The counsel also relied upon the judgment in LALITHA THERESA SEQUERIA (SINCE DEAD) BY LEGAL REPRESENTATIVES VS. DOLFY PIAS ALIAS ADOLPHYS JOSEPH PAIS AND ANOTHER reported in (2014) 10 SCC 731 which I have already mentioned supra referred by the learned counsel for the appellants in other connected appeal and brought to notice of this Court Para No.10, wherein the Apex Court has observed that so far as schedule 'C' property which fell to the share of the father is concerned, a part of it was sold by Ex.D1 and the remaining devolved on 2 daughters including the plaintiff. The learned counsel referring this judgment would vehemently contend that the father died intestate in the year 1978 and the Trial Court has taken note of the fact that the properties were standing in his name and also in the name of the other son.
29. The counsel also relied upon the judgment of Co- ordinate Bench of this Court in KHIRASA AND OTHERS VS. SHANTA AND OTHERS reported in ILR 2023 KAR 137 and
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 brought to notice of this Court Para No.12 with regard to the limitation is concerned and it was held that the legislature has not prescribed any period of limitation for filing a suit for partition because partition an incident attached to the property and there is always a running cause of action for seeking partition by one of the co-sharers if and when he decides not to keep his share joint with other co-sharers.
30. The counsel also relied upon the judgment of Co- ordinate Bench of this Court in S.K. LAKSHMINARASAPPA, SINCE DECEASED BY HIS LRS. VS. SRI B. RUDRAIAH AND OTHERS reported in ILR 2012 KAR 4129 and brought to notice of this Court Para No.71, wherein this Court has discussed with regard to the limitation is concerned and an observation is made that till the partition is effected by metes and bounds, nobody can claim exclusive title to any portion of the property. Therefore, the alienees though they are put in exclusive possession of a portion of the property, as the property is not divided by metes and bounds, they cannot claim exclusive title to the property which is to be in their possession.
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023
31. The counsel also relied upon the judgment of this Court in R.S.A.NO.580/2017 dated 11th April 2023 and brought to notice of this Court Para No.24, wherein this Court has held that even if by virtue of a mutation entry, the name of a person is entered in revenue records in respect of an immovable property, it does not confer any right, title and interest on the said person.
32. Learned counsel appearing for the respondent No.10, in support of her argument, she relied upon the judgment in B. ANJANAPPA AND OTHERS VS. VYALIKAVAL HOUSE BUILDING COOPERATIVE SOCIETY LIMITED AND OTHERS reported in (2012) 10 SCC 184 and brought to notice of this Court Para No.27 of the order, wherein the Apex Court has observed that if respondent No.1 is in possession of the acquired land or any portion thereof, then the same shall be returned to the landowners concerned within a period of two months from today, this direction shall apply not only qua the appellants but other landowners who may not have filed writ appeals or the special leave petition, may be due to poverty, illiteracy or ignorance. However, it is made clear that the above
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 mentioned directions shall not apply to such of the landowners who have withdrawn the special leave petition. If any of the landowners have received compensation from the State, then the latter shall be free to recover the same in accordance with law. The counsel referring this judgment and also relying upon the RTC extract of the year 2022, submits that there is an entry with regard in the M.R. for the year 2015-2016 which stands in the name of Chowri Reddy and mutation extract in respect of 2 acres in Sy.No.49/3 is evident that the property was also released in favour of the original owner and the original owner Chowri Reddy was in possession subsequent to release of property and all records are standing in the name of said Chowri Reddy.
33. The counsel for respondent No.10 also relied upon the judgment of the Apex Court in BHARAT SHER SINGH KALSIA VS. STATE OF BIHAR & ANR. reported in 2024 LIVE LAW (SC) 80 and brought to notice of this Court Para No.30, wherein it is observed that we are of the considered opinion that all three clauses are capable of being construed in such a manner that they operate in their own fields and are not
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 rendered nugatory. That apart, we are mindful that even if we had perceived a conflict between Clauses 3 and 11, on the one hand, and Clause 15 on the other, we would have to conclude that Clauses 3 and 11 would prevail over Clause 15 as when the same cannot be reconciled, the earlier clause(s) would prevail over the later clause(s), when construing a Deed or a Contract.
34. The counsel also relied upon the judgment of the Apex Court in RAMKISHORELAL AND ANOTHER VS. KAMAL NARAYAN reported in 1962 SCC ONLINE SC 113 and brought to notice of this Court Para No.12 of the judgment, wherein it is observed that the golden Rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court had to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration.
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023
35. Learned counsel appearing for the appellants also relying upon the very same judgment brought to notice of this Court that in the similar instance of this nature where in an earlier document some property is given absolutely to one person, but later on, other direction in respect of the same property is given, it conflicts with each other and it would take away the right of absolute title given in the earlier document. What is to be done where this happens? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. Both the counsels relied upon this judgment with regard to the interpretation of the document of partition deed of the year 1972 with regard to the allotment of share and the same has to be read in toto with regard to the recitals made in the document.
36. Learned counsel for appellant in M.F.A.No.7432/2022 i.e., the defendant No.16 would vehemently contend that already the defendant No.16 has settled the matter with the plaintiff and defendant No.8, who is
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 another daughter of Thomasappa and application under Order 21, Rule 1 of CPC is filed and the same is considered and accepted by the Trial Court and the Trial Court has not drawn the decree in terms of the settlement between the parties. Hence, direction may be given to the Trial Court to draw the decree in terms of the compromise entered into between the parties.
37. Learned counsel for the appellants in M.F.A.No.7600/2022 and M.F.A.No.7225/2022 in reply to the argument of the learned counsel for the appellant in M.F.A.No.7432/2022 would vehemently contend that the said submission with regard to inter-se compromise between defendant No.16, plaintiff and defendant No.8 cannot be accepted and entertained and the scope of appeal is very limited with regard to granting of temporary injunction i.e., not to alienate the properties and by making an internal arrangement between themselves, they cannot seek such a relief in the present appeal.
38. Having heard the learned counsel for the appellants and learned counsel for the respondents and also having
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 perused the material available on record, it is not in dispute that suit is filed for the relief of partition by one of the daughter of said Thomasappa. It is also not in dispute that property originally belongs to Thomasappa and none of the parties dispute the same. However, the only dispute is with regard to the validity of the partition deed which has taken place in 1972. The very contention of the plaintiff before the Trial Court is that the said partition is not valid and also it is the contention that while partitioning the property, the defendants have excluded the wife as well as two daughters and the same is not a valid distribution of properties among the members of the family. It is also the contention of the appellants before this Court that already there was a partition in the year 1972 and father died in the year 1978 itself. The counsel also would vehemently contend that the plaintiff slept over for a period of 40 years and now they have come up with an application inter-alia seeking the relief of temporary injunction. When the counsel would vehemently contend that the suit itself is not maintainable, the Court has to look into the conduct of the plaintiff as well as the defendant No.8, who have slept over for a period of 40 years,
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 even inspite of cause of action has arisen in the year 1978 itself.
39. Learned counsel would vehemently contend that suit is also filed by the defendant No.8 in the year 2016 and the present suit is filed in 2022 and the Trial Court failed to take note of the said fact into consideration and without looking into the said fact, order of temporary injunction is granted. There is no dispute with regard to the fact that property belongs to Thomasappa and Thomasappa during his life time partitioned the properties in the year 1972 itself among his sons and allotted some of the properties. There is no dispute with regard to the fact that properties which are described in Schedule 'G' of the suit schedule properties were not the part of the records. Hence, it is very clear that in respect of the properties which have been mentioned in 'G' schedule properties, there was no testamentary document or any document during the life time of Thomasappa. When such being the case, I do not find any error in granting the relief of temporary injunction in respect of item Nos.1 and 2 of 'G' schedule properties are concerned.
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023
40. Learned counsel for the appellant in M.F.A.No.1139/2023 would vehemently contend that family members have given consent for transferring the properties and the very consent given by the family members is disputed by the plaintiff and defendant No.8 and when there is a dispute with regard to giving consent, the appellant has relied upon only the revenue documents with regard to the transferring of properties in favour of the appellant. When the plaintiff is claiming share in respect of the suit schedule properties and when there is no legal testamentary document or registered document in favour of the appellant in M.F.A.No.1139/2023 and there is dispute with regard to the consent and no document is placed for having obtained consent from the family members, under such circumstances, the disputed fact whether they have given consent or not has to be adjudicated before the Trial Court during the course of trial.
41. Now the contention of the learned counsel appearing for the appellants in M.F.A.No.7600/2022 and M.F.A.No.7225/2022 is that, I have already pointed out that the properties belong to Thomasappa is not in dispute and the
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 only contention is that suit is filed after a period of 40 years. However, the plaintiff also while filing the suit has given the explanation that after the death of her father, when she insisted her mother to get a share with the defendants, the mother had postponed the same and it has to be noted that with regard to the partition, as rightly pointed out by the learned counsel for the respondents, there is no limitation. The other contention is that suit has to be filed within 12 years and the said contention cannot be accepted. Learned counsel for the appellants would vehemently contend that Article 110 of the Limitation Act attracts only in case of exclusion is concerned and no such exclusion is prima facie found before the Court. However, the plaintiff and defendant No.8 are excluded and the earlier partition is only among the father and five sons and as rightly pointed out by the plaintiff and defendant No.8, their mother was not party to the said partition. Apart from that, when the father died in the year 1978 leaving behind the wife and two daughters, the mother would get 1/3rd share as per Indian Succession Act and no dispute with regard to the same and the remaining 2/3rd has to be distributed among the children of Thomasappa. Now, the
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 mother has passed away and her share also to be divided. But very contention that when partition deed came into effect in the year 1972 itself and recital is made with regard to the allotment of share, even plaintiff and also defendant No.8 not seriously disputed the document. But only their contention is that property is partitioned among the father and the other son Chowri Reddy and Chowri Reddy is no more and the son of said Chowri Reddy has allegedly executed a Will and some of the legatees are claiming in the appeal that they are legatees and they are entitled for a share. It has to be noted that others have filed a memo that they have to be treated as legatees of Chowri Reddy and the memo is objected by the respondents by filing written statement and the Trial Court has not taken any decision on the same.
42. The main contention of the learned counsel for the appellants is that unless the said aspect is determined by the Trial Court that they are legatees, their appeal cannot be entertained. But, the fact that Chowri Reddy passed away and objection is filed and decision is not taken and when there a dispute with regard to the same, it requires enquiry under
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 Order 22 Rule 5 of CPC. When such being the case and already memo is filed, the Trial Court cannot decide the issue on the basis of a memo. Even the appellants filed an application before the Trial Court to come on record as legatees and unless enquiry is conducted with regard to the fact that they are legatees or not, their claim based on the Will also cannot be decided and the only issue before the Court is with regard to granting of temporary injunction not to alienate the properties. The issue with regard to whether they are legatees has to be decided by the Trial Court. Hence, the very appeal filed by the learned counsel for the respondent/plaintiff and defendant No.8 cannot be entertained and they can file necessary application before the Trial Court. When the other side is disputing that they are not the legatees and also dispute the Will, the same has to be proved before the Trial Court by raising an issue with regard to the Will is concerned and there is no dispute with regard to the fact that properties belong to Thomasappa.
43 I have already pointed out that schedule 'G' properties are not the part of the partition and in respect of those properties are concerned, though learned counsel
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 appearing for the appellant in M.F.A.No.1139/2023 claims that already properties are converted and some of the properties are sold and prospective purchasers are in possession, now the relief is only with regard to not to alienate the properties and if any further finding is given, it will lead to multiplicity of proceedings and if any such purchasers come before the Trial Court, the Trial Court also can consider the said aspect while considering the matter on merits. The Trial Court has granted the relief of temporary injunction only with an intention to avoid multiplicity of proceedings in respect of entire schedule 'F' properties are concerned. There is a dispute with regard to the document of partition deed and some of the parties claim that the same is not a valid document.
44. Having considered the recital of the partition deed, no doubt, in the partition deed 'E' schedule properties are shown, wherein reference is made with regard to the name of Chowri Reddy is concerned, on further reading of the said document, it is seen that a reference is made that father as well as Chowri Reddy are treated as one party. When such being the case, it also requires interpretation and as requested
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023 by the learned counsel for the appellants, the matter requires consideration on interpretation of the document of the partition deed whether share allotted in respect of 'E' schedule properties is in respect of father as well as the son. When such being the case, the intention of the parties while executing the document of partition deed in the year 1972 also to be gathered during the course of trial and interpretation can be done after recording the evidence whether 'F' schedule properties are properties of Chowri Reddy or same also belongs to the father and succession is open to the parties in respect of the suit schedule 'F' properties also. When such being the case, I do not find any error committed by the Trial Court in granting the relief of temporary injunction, that too not to alienate the properties and the issue with regard to the partition, apportionment of the share, devolving of their share after the death of their father and mother and also the issue of execution of the Will by said Chowri Reddy also to be examined before by Trial Court during the course of trial. Hence, I do not find any ground to interfere with the findings of the Trial Court.
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NC: 2024:KHC:8452 MFA No. 7600 of 2022 C/W MFA No. 7225 of 2022 MFA No. 7432 of 2022 MFA No. 1139 of 2023
45. In view of the discussion made above, I pass the following:
ORDER
(i) The appeals are dismissed.
(ii) The prayer of the learned counsel for the appellant in M.F.A.No.7432/2022 for drawing up of the decree cannot be considered in the present appeal.
(iii) The observation made by this Court while passing the judgment shall not influence the Trial Court while considering the matter on merits, including the aspect of limitation is concerned.
Sd/-
JUDGE ST List No.: 1 Sl No.: 1