Karnataka High Court
Smt. Swayam Prabha vs Sri K L Ramachandra Sa on 22 September, 2020
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
M.F.A.No.1638/2020
C.W.
M.F.A.No.1849/2020(CPC)
IN MFA No.1638/2020
BETWEEN:
SMT.SWAYAM PRABHA
D/O LATE LAKSHMIDEVI
W/O SRI D G SHANKAR
AGED ABOUT 56 YEARS
OCC:HOUSEHOLD & BUSINESS
R/AT No.140, 6TH CROSS,
2ND FLOOR, BAPUJI LAYOUT,
CHANDRA LAYOUT,
BENGALURU - 560 040.
...APPELLANT
(BY SRI SANDESH CHOUTA, SENIOR COUNSEL FOR
SRI ISMAIL MUNEEB MUSBA, ADVOCATE)
AND:
1 . SRI K L RAMACHANDRA SA
S/O LATE K LAKSHMAN SA
AGED 87 YEARS, OCC:BUSINESS,
2
R/AT No.9, SESHADRI ROAD,
GANDHINAGAR,
BENGALURU - 560 009.
2 . SMT. PADMAVATI
W/O LATE NARAYAN SA,
AGED ABOUT 78 YEARS
OCC:HOUSEHOLD & BUSINESS
KLN HOUSE, No.72/1-5,
CUNNINGHAM ROAD,
NEAR HOODI APARTMENTS,
BENGALURU - 560 001.
3 . SMT. SUVARNA
D/O LATE NARAYAN SA
W/O SRI KRISHNA
AGED ABOUT 65 YEARS,
OCC:HOUSEHOLD & BUSINESS
R/AT NEW No.34, OLD No.27,
2ND MAIN ROAD, 7TH CROSS,
N R COLONY,
BENGALURU - 560 001.
4 . SRI K N ESHWAR
S/O LATE NARAYAN SA
AGED ABOUT 61 YEARS,
OCC: BUSINESS
KLN HOUSE No.72/1-5,
CUNNINGHAM ROAD,
NEAR HOODI APARTMENTS,
BENGALURU - 560 001.
5 . SRI K N VENKUSA
S/O LATE NARAYAN SA
AGED ABOUT 59 YEARS,
OCC:BUSINESS
KLN HOUSE, No.72/1-5,
CUNNINGHAM ROAD,
NEAR HOODI APARTMENTS,
3
BENGALURU - 560 001.
6 . SMT. ANURADHA
D/O LATE NARAYAN SA
W/O SRI AMARNATH,
AGED ABOUT 58 YEARS,
OCC:HOUSEHOLD & BUSINESS ,
R/AT No.30, ANGADI BEEDHI,
NEAR MALLIKARJUN TEMPLE,
BASAVANGUDI,
BENGALURU - 560 004.
7 . SRI K N MADHUSUDHAN
S/O LATE NARAYAN SA
AGED ABOUT 59 YEARS,
OCC: BUSINESS, KLN HOUSE
No.72/1-5, CUNNINGHAM ROAD,
NEAR HOODI APARTMENTS,
BENGALURU - 560 001.
8 . SMT. RAJALAKSHMI
W/O LATE SRI K L SRIHARI,
AGED ABOUT 70 YEARS,
OCC: HOUSEHOLD & BUSINESS,
R/AT No.9, SESHADRI ROAD,
GANDHINAGAR,
BENGALURU - 560 009.
9 . SRI K H GURUNATH
S/O LATE SRI K L SRIHARI,
AGED ABOUT 57 YEARS,
OCC:BUSINESS, R/AT No.9,
SESHADRI ROAD,
GANDHINAGAR,
BENGALURU - 560 009.
10 . SMT. DHANALAKSHMI
D/O LATE SRI K L SRIHARI
W/O SRI KISHAN S MAGAJI
4
AGED ABOUT 55 YEARS
OCC: HOUSEHOLD & BUSINESS
R/AT 603, 6TH 'A' MAIN
11TH CROSS, 3RD PHASE,
J .P NAGAR, BENGALURU-560 078.
11 . SRI K H SRINIVAS
S/O LATE SRI K L SRIHARI,
AGED ABOUT 54 YEARS,
OCC: BUSINESS, R/AT No.9,
SESHADRI ROAD,
GANDHINAGAR,
BENGALURU - 560 009.
12 . SRI K H RADHESHYAM
S/O LATE SRI K L SRIHARI,
AGED ABOUT 52 YEARS,
OCC: BUSINESS, R/AT No.9,
SESHADRI ROAD,
GANDHINAGAR
BENGALURU - 560 009.
13 . SMT. HEMAMALINI
D/O LATE SRI K L SRIHARI
W/O SRI GIRIDHAR JITHURI
AGED ABOUT 42 YEARS,
OCC:HOUSEHOLD & BUSINESS,
R/AT No.405, 10TH CROSS,
5TH MAIN, RMV EXTENSION,
2ND STAGE, DOLLARS COLONY,
NEW BEL ROAD,
BENGALURU - 560 094.
14 . SMT. VIJAYANTHIMALA
W/O LATE SRI K L SRIHARI,
W/O SRI RAGHAVENDRA,
AGED ABOUT 38 YEARS,
OCC: HOUSEHOLD & BUSINESS,
R/AT No.123, RMV EXTENSION,
5
2ND STAGE, 2ND MAIN ROAD
7TH CROSS, DOLLARS COLONY
NEW BEL ROAD,
BENGALURU - 560 094.
15 . SRI K L ANANTHA PADMANABHASA
S/O LATE SRI K LAKSHMANASA,
AGED ABOUT 77 YEARS,
OCC:BUSINESS, R/AT No.9
SESHADRI ROAD, GANDHINAGAR
BENGALURU - 560 009.
AND ALSO R/AT No.11
RACE COURSE ROAD
OPP. RAILWAY DIVISIONAL
OFFICE, BENGALURU - 560 009.
16 . SRI K L SWAMY
S/O LATE SRI K LAKSHMANASA,
AGED ABOUT 71 YEARS,
OCC: BUSINESS, R/AT No.9,
SESHADRI ROAD, GANDHINAGAR,
BENGALURU - 560 009.
AND ALSO R/AT No.17,
7TH MILE, BREWERY HOUSE,
KONANAKUNTE, KANAKAPURA ROAD,
BENGALURU - 560 062.
17 . SMT. GOWRAMMA
D/O LATE K LAKSHMAN SA,
W/O SRI CHANDRAMOHAN,
AGED ABOUT MAJOR,
R/AT RANGARAO ROAD,
OPPOSITE SHILPA APARTMENTS,
SHANKARPURAM,
BENGALURU - 560 004.
18 . SRI M M ANANTHAMURTHY
S/O LATE SMT. LAKSHMIDEVI &
LATE SRI M S MAHAVEERASA,
6
AGED ABOUT 62 YEARS,
OCC:HOUSE HOLD & BUSINESS
R/AT No.360, 1ST MAIN,
7TH CROSS, M .S RAMAIAH
NORTH CITY, THANISANDRA
MAIN ROAD, BENGALURU - 560 077.
19 . SMT. SURYAPRABHA
D/O LATE SMT.LAKHSMIDEVI,
W/O S D MUNISWAMY,
AGED ABOUT 52 YEARS,
OCC: HOUSEHOLD & BUSINESS,
R/AT No.40/1, 3RD MAIN, 11TH CROSS
LAKSHMINARAYANAPURA
BENGALURU - 560 021.
20 . PRESTIGE ESTATE PROJECTS LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT 1956,
HAVING ITS REGISTERED OFFICE AT
'FALCON HOUSE', No.1,
MAIN GUARD CROSS ROAD,
BENGALURU - 560 001,
REP. BY ITS MANAGING DIRECTOR,
MR. IRFAN RAZACK.
21 . SMT. CHANDRAPRABHA
D/O LATE LAKSHMIDEVI,
W/O H C SHASHIKANTH,
AGED ABOUT 65 YEARS,
OCC:HOUSEHOLD & BUSINESS
R/AT No.16/11, BMK LAYOUT,
VITTAL NAGAR, 2ND MAIN,
9TH CROSS, BENGALURU - 560 026.
22 . SMT. SATHYA PRABHA
D/O LATE LAKSHMIDEVI,
W/O H S RAJAGUNDU,
AGED ABOUT 55 YEARS,
7
OCC:HOUSEHOLD & BUSINESS
R/AT No.7, NHCS LAYOUT,
KAVERI NAGAR,
NAGARBHAVI,
BENGALURU - 560 079.
23 . SMT. SAVITHRI
D/O LATE LAKSHMIDEVI,
W/O S S MANJUNATH,
AGED ABOUT 51 YEARS,
OCC :HOUSEHOLD & BUSINESS
R/AT No.23, 1ST ANJANEYA
TEMPLE STREET, LINK ROAD,
SESHADRIPURAM,
BENGALURU - 560 020.
...RESPONDENTS
(BY SRI ABHINAV R, ADVOCATE FOR R1
SRI D R RAVISHANKAR, ADVOCATE
FOR R 15 AND 22
SRI UDAYA HOLLA, SENIOR COUNSEL FOR
SRI V HARIDAS BHAT, ADVOCATE FOR
C/R 16, R9, 12 & 17.
SRI ABHINAV R, ADVOCATE A/W
SRI V HARIDAS BHAT, ADVOCATE FOR R11
SRI GANAPATHI HEGDE, FOR
DUA ASSOCIATES FOR R20
R2-8, 10, 13, 14, 18, 19, 21 ARE
SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, 1908,
AGAINST THE ORDER DATED 26.09.2019, PASSED ON I.A.
No.1, IN O.S.No.4709/2019, ON THE FILE OF THE XIV
ADDITIONAL CITY CIVIL JUDGE, BENGALURU (CCH.
No.28), DISMISSING THE IA.No.1 FILED UNDER ORDER
39, RULE 1 AND 2 READ WITH SECTION 151 OF CPC.
8
IN MFA No.1849/2020
BETWEEN:
1 . SMT. CHANDRAPRABHA
D/O LATE LAKSHMIDEVI
W/O H C SHASHIKANTH
AGED ABOUT 65 YEARS,
OCC:HOUSEHOLD AND BUSINESS
R/AT No.16/11, BMK LAYOUT,
VITTAL NAGAR, 2ND MAIN,
9TH CROSS, BENGALURU - 560 026.
2 . SMT. SATHYA PRABHA
D/O LATE LAKSHMIDEVI
W/O H S RAJAGUNDU
AGED ABOUT 55 YEARS,
OCC:HOUSEHOLD AND BUSINESS
R/AT No.7, NHCS LAYOUT,
KAVERI NAGAR, NAGARBHAVI
BENGALURU - 560 079.
3 . SMT. SAVITHRI
D/O LATE LAKSHMIDEVI
W/O S S MANJUNATH
AGED ABOUT 51 YEARS,
OCC:HOUSEHOLD AND BUSINESS
R/AT No.23, 1ST ANJANEYA TEMPLE
STREET, LINK ROAD,
SESHADRIPURAM,
BENGALURU - 560 020. ...APPELLANTS
(BY SRI JAYAKUMAR S PATIL SENIOR COUNSEL A/W
SMT. SHOBHA PATIL ADVOCATE)
AND:
1 . SRI K L RAMACHANDRA S A
9
S/O LATE K LAKSHMAN SA
AGED 87 YEARS,
OCC BUSINESS
R/AT No.9, SESHADRI ROAD,
GANDHINAGAR,
BENGALURU - 560 009.
2 . SMT. PADMAVATI
W/O LATE NARAYAN SA
AGED ABOUT 78 YEARS,
OCC:HOUSEHOLD AND BUSINESS
KLN HOUSE, No.72/1-5,
CUNNINGHAM ROAD,
NEAR HOODI APARTMENTS
BENGALURU - 560 001.
3 . SMT. SUVARNA
D/O LATE NARAYAN SA
W/O SRI KRISHNA
AGED ABOUT 65 YEARS,
OCC:HOUSEHOLD AND BUSINESS
R/AT NEW No.34, OLD No.27
2ND MAIN ROAD, 7TH CROSS,
N.R.COLONY
BENGALURU - 560 001.
4 . SRI K N ESHWAR
S/O LATE NARAYAN SA
AGED ABOUT 61 YEARS,
OCC: BUSINESS
KLN HOUSE, No.72/1-5
CUNNINGHAM ROAD,
NEAR HOODI APARTMENTS
BENGALURU - 560 001.
5 . SRI K N VENKUSA
S/O LATE NARAYAN SA
AGED ABOUT 59 YEARS,
OCC:BUSINESS
10
KLN HOUSE, No.72/1-5
CUNNINGHAM ROAD,
NEAR HOODI APARTMENTS
BENGALURU - 560 001.
6 . SMT. ANURADHA
D/O LATE NARAYAN SA
W/O SRI AMARNATH
AGED ABOUT 58 YEARS,
OCC:HOUSEHOLD AND BUSINESS
R/AT No.30, ANGADI BEEDHI,
NEAR MALLIKARJUN TEMPLE,
BASAVANGUDI
BENGALURU - 560 004.
7 . SRI K N MADHUSUDHAN
S/O LATE NARAYAN SA
AGED ABOUT 59 YEARS
OCC: BUSINESS
KLN HOUSE, No.72/1-5
CUNNINGHAM ROAD,
NEAR HOODI APARTMENTS
BENGALURU - 560 001.
8 . SMT. RAJALAKSHMI
W/O LATE SRI K L SRIHARI
AGED ABOUT 70 YEARS,
OCC:HOUSEHOLD AND BUSINESS
R/AT. No.9, SESHADRI ROAD,
GANDHINAGAR
BENGALURU - 560 009.
9 . SRI K H GURUNATH
S/O LATE SRI K L SRIHARI
AGED ABOUT 57 YEARS,
OCC:BUSINESS
R/AT No.9, SESHADRI ROAD
GANDHINAGAR
BENGALURU - 560 009.
11
10 . SMT. DHANALAKSHMI
D/O LATE SRI K L SRIHARI
W/O SRI KISHAN S MAGAJI
AGED ABOUT 55 YEARS,
OCC:HOUSEHOLD AND BUSINESS
R/AT 603, 6TH 'A' MAIN,
11TH CROSS, 3RD PHASE,
J.P.NAGAR, BENGALURU - 560 078.
11 . SRI K H SRINIVAS
S/O LATE SRI K L SRIHARI
AGED ABOUT 54 YEARS,
OCC:BUSINESS
R/AT No.9, SESHADRI ROAD,
GANDHINAGAR
BENGALURU - 560 009.
12 . SRI K H RADHESHYAM
S/O LATE SRI K L SRIHARI
AGED ABOUT 52 YEARS,
OCC:BUSINESS
R/AT No.9, SESHADRI ROAD,
GANDHINAGAR
BENGALURU - 560 009.
13 . SMT. HEMAMALINI
D/O LATE SRI K L SRIHARI
W/O SRI GIRIDHAR JITHURI
AGED ABOUT 42 YEARS,
OCC: HOUSEHOLD AND BUSINESS
R/AT No.405, 10TH CROSS
5TH MAIN, RMV EXTENSION,
2ND STAGE, DOLLARS COLONY
NEW BEL ROAD
BENGALURU - 560 094.
14 . SMT. VIJAYANTHIMALA
12
D/O LATE SRI K L SRIHARI
W/O SRI RAGHAVENDRA
AGED ABOUT 38 YEARS,
OCC: HOUSEHOLD AND BUSINESS
R/AT No.123, RMV EXTENSION
2ND STAGE, 2ND MAIN ROAD,
7TH CROSS, DOLLARS COLONY,
NEW BEL ROAD
BENGALURU - 560 094.
15 . SRI K L ANANTHA PADMANABHASA
S/O LATE SRI K LAKSHMANASA
AGED ABOUT 77 YEARS,
OCC: BUSINESS
R/AT No.9 SESHADRI ROAD
GANDHINAGAR
BENGALURU - 560 009.
AND ALSO R/AT No.11
RACE COURSE ROAD
OPP. RAILWAY DIVISIONAL OFFICE
BENGALURU - 560 009.
16 . SRI K L SWAMY
S/O LATE SRI K LAKSHMANASA
AGED ABOUT 71 YEARS,
OCC: BUSINESS
R/AT No.9, SESHADRI ROAD,
GANDHINAGAR
BENGALURU - 560 009.
AND ALSO R/AT No.17
7TH MILE BREWERY HOUSE,
KONANAKUNTE, KANAKAPURA ROAD,
BENGALURU - 560 062.
17 . SMT. GOWRAMMA
D/O LATE K LAKSHMAN SA
W/O SRI CHANDRAMOHAN
AGED ABOUT MAJOR
R/AT RANGARAO ROAD
13
OPPOSITE SHILPA APARTMENTS
SHANKARAPURAM
BENGALURU - 560 004.
18 . SRI M M ANANTHAMURTHY
S/O LATE SMT.LAKSHMIDEVI
AND LATE SRI M S MAHAVEERASA
AGED ABOUT 62 YEARS,
OCC:HOUSEHOLD AND BUSINESS
R/AT No. 360, 1ST MAIN,
7TH CROSS, M.S.RAMAIAH NORTH CITY
THANISANDRA MAIN ROAD,
BENGALURU - 560 077.
19 . SMT. SURYAPRABHA
D/O LATE SMT. LAKSHMIDEVI
W/O S D MUNISWAMY
AGED ABOUT 52 YEARS,
OCC:HOUSEHOLD AND BUSINESS
R/AT No.40/1, 3RD MAIN,
11TH CROSS, LAKSHMINARAYANAPURA
BENGALURU - 560 021.
20 . PRESITGE ESTATE PROJECTS LTD.,
A COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE
AT 'FALCON HOUSE', No.1,
MAIN GUARD CROSS ROAD,
BENGALURU - 560 001.
REP. BY ITS MANAGING DIRECTOR
MR. IRFAN RAZACK.
21 . SMT. SWAYAM PRABHA
D/O LATE LAKSHMIDEVI
W/O SRI D G SHANKAR
AGED ABOUT 56 YEARS,
OCC: HOUSEHOLD AND BUSINESS
14
R/AT No.140, 6TH CROSS
2ND FLOOR, BAPUJI LAYOUT,
CHANDRA LAYOUT
BENGALURU - 560 040. ...RESPONDENTS
(BY SRI UDAYA HOLLA SENIOR COUNSEL FOR
SRI HARIDAS BHAT V, ADVOCATE FOR C/R 16
R9, 12, & 17, SRI D R RAVISHANKAR, ADVOCATE
FOR R15, SRI ABHINAV RAMANAND, ADVOCATE
A/W SRI HARIDAS BHAT V, ADVOCATE FOR R11
SRI GANAPATHI HEGDE, ADVOCATE FOR DUA
ASSOCIATES FOR R20, R1 TO R8, 10, 13, 14,
18,19 & 21 ARE SERVED AND UNREPRESNTED)
THIS MFA IS FILED U/O 43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DATED 26.09.2019, PASSED ON I.A.
No.1 IN O.S.No.4709/2019, ON THE FILE OF THE XIV
ADDITIONAL CITY CIVIL JUDGE, BENGALURU
(CCH.No.28), DISMISSING THE IA.No.1 FILED UNDER
ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF
CPC.
THESE APPEALS COMING ON FOR FURTHER
DICTATION THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE AT BENGALURU DELIVERED THE
FOLLOWING:
JUDGMENT
These two appeals are directed against the orders passed on I.A.Nos.1, 18, 22 and 24 in O.S.NO.4709/2019 by the learned XIV Additional City Civil Judge, Bengaluru, CCH 28, wherein, the learned 15 trial judge rejected I.A.No.1 filed by the plaintiffs under Order 39 Rules 1 and 2 read with Section 151 of CPC and ad interim order of temporary injunction granted exparte was vacated.
2. Insofar as I.A.Nos.18, 22 and 24 are concerned, they are the applications filed under order 39 Rule 4 read with 151 CPC for vacating the exparte order. Regard being had to the fact that the operative portion of the impugned order tells the order is on I.A.No.1 only.
3. M.F.A.No.1638/2020 is filed by plaintiff No.2-Swayamprabha and M.F.A.No.1849/2020 is filed by plaintiff Nos.1, 3 and 4 viz., Chandraprabha, Sathyaprabha and Savithri.
4. In order to avoid confusion and overlapping, the parties are referred hereinafter in 16 accordance with the ranks and status as held by them before the trial court.
5. The background of the case is that original suit in O.S.No.4709/2019 was filed by (1)Smt.Chandraprabha; (2)Swayamprabha; (3) Sathyaprabha and (4)Smt. Savithri. All are the daughters of one Lakshmidevi. Plaintiffs claim that the schedule properties mentioned in schedule `A' consists of as many as 40 immoveable properties; three items of moveable properties as mentioned in Schedule `B' and the Business, Firms and Companies and Trusts as mentioned in Schedule `C'.
6. The plaintiffs are claiming under one Smt.Lakshmidevi who is the mother of the plaintiffs 1 to 4. The prime claim of the plaintiffs is that, one K. Lakshman Sa is the husband of Smt.Gangamma. They had five sons and two daughters. They are: 17
(i)K.L.Ramachandra Sa; (ii)K.L.Narayan Sa;
(iii)Lakshmidevi; (iv)K.L.Srihari; (v)K.L.Ananta-
padmanabha Sa; (vi)K.L.Swami and (vii)Gowramma. K.Lakshman Sa died on 30.7.1973 and Smt.Gangamma died in the month of September 1978. Lakshmidevi who is the mother of the plaintiffs died on 28.12.2006.
7. Plaintiffs herein are claiming their share to the extent of 1/7th in the suit schedule properties under the branch of Smt.Lakshmidevi @ Lakshmidevamma, daughter of K.Lakshman Sa and Gangamma. The properties mentioned in the schedule A and B are claimed to be earned by the said K. Lakshman Sa and the business carried on by him in various facets and schedule properties belonged to him.
18
8. The parties are not claiming rights as members of joint family. On the other hand plaintiffs are claiming under said Lakshmidevi @ Lakshmidevamma. Further claim of the plaintiffs is that schedule properties that are referred in the schedule originally belonged to K.Lakshman Sa who was the maternal grand father of plaintiffs No.1 to 4.
9. K.L.Ramachandra Sa; K.L.Narayan Sa; K.L.Srihari; K.L.Anantapadmanaba Sa and K.L.Swamy are the sons of Lakshman Sa. At the same time, K.L.Narayana Sa, deceased son of K. Lakshman Sa is survived by defendant No.2 Padmavathi-wife; defendant No.3 Suvarna; defendant No.4 K.N.Eshwar; defendant No.5 K.N.Venkusa; defendant No.6 Anuradha; defendant No.7 K.N.Madhusudhan. Similarly, K.L.Srihari deceased son of K. Lakshman Sa dead survived by defendant No. 8 Smt. Rajalakshmi
-wife; defendant No.9 K.H. Gurunath; defendant 19 No.10 Dhanalakshmi; defendant No.11 K.H.Srinivas; defendant No.12 K.H.Radheshyam; defendant No.13 Hemamalini and defendant No.14 Vijayanthimala.
10. Insofar as defendant No.20-Prestige Estate Projects Limited is concerned it is not a family member of K.Lakshman Sa, but it is a Company incorporated under Companies Act of 1956.
11. Thus, the main reckoning is that plaintiffs who claim partition and urge for 1/7th share at par with the children of K. Lakshman Sa and Gangamma.
12. Defendant No.18- M.M.Ananthamurthy and Defendant No.19-Suryaprabha are also the children of Lakshmidevi, who is the daughter of K. Lakshman Sa and Gangamma. It appears that they did not join the plaintiffs.
20
13. The claim of the plaintiffs would be that, K. Lakshman Sa who died on 30.7.1973 did not make any document of disposal of the schedule properties during his lifetime and he died intestate which is not disputed. They along with defendant Nos.18 and 19 being the children of Lakshmidevi are entitled for 1/7th share in the suit schedule properties. It is further claimed that defendants played foul play and mis- representation over the plaintiffs and kept them under false promise got divided the schedule properties to their whims and fancies, but to the maximum unfair advantage and prejudice to the plaintiffs.
14. The plaintiffs were kept in dark about the developments which was executed in accordance with the plan and strategy of the defendants and that was not known to the plaintiffs till they came to know about the same in the last week of April 2019. 21
15. Plaintiffs further claim that defendant No.16 purported to be the power of attorney holder of the plaintiffs and also the partition deed claiming to have been signed by the plaintiffs wherein, the plaintiffs are stated to have been marked a trivial and meaningless property against substantial and bulk portion claimed by the defendants.
16. Plaintiffs further claim that they are not bound by the documents relied upon by the defendants dated 14.8.2015 arrangement dated 13.8.2015 or the document dated 14.8.2015 and 23.12.2015 (which came to be registered on 16.3.2016) which are bearing nomenclature as Power of Attorney, Partition Deed are neither entered into nor have legal efficacy nor reflect the true legal element of partition. On the other hand, they are destitute of legalities. It is in this direction, plaintiffs seek the decree for partition granting 1/7th share to 22 them in the schedule properties and also to declare the document dated 23.12.2015 registered on 16.3.2016 numbered as document No. 8616/2015-16 in the office of the Sub-Registrar, Jayanagar, as void.
17. The defendants who were served of process in the case entered appearance. They are: defendant Nos.1 (son of K. Lakshman Sa), 2, 3, 4, 5, 6 and 7 being the family members of K.L.Narayan Sa, defendant Nos. 8, 9, 10, 11, 12, 13 and 14 family members of Sri. K.L. Srihari, defendant No.15 son of K. Lakshman Sa and defendant No.16 another son of K.Lakshman Sa, defendant No.17, another daughter of K.Lakshman Sa. So far as defendant Nos.18 and 19 are concerned, as I have already stated they are the children of Lakshmidevi.
23
18. The written statements are filed by defendant No.11, 16, 17 and 18. Defendant Nos.11 and 16 are the contesting defendants.
19. The contentions of the defendants apart from denial of the plaint averments are that the plaintiffs have engineered the scheme of the suit as a counter blast to O.S.No.2035/2019 filed by defendant No.18-M.M.Ananthamurthy. Thus, they contend that in the light of similar suit between the same parties, the present one is liable to be dismissed at the preliminary stage. The relationship between the plaintiffs and family members/defendants is admitted. The defendants denies K.Lakshman Sa as the common propositus.
20. They deny devolution of rights on Lakshmidevi, daughter of K. Lakshman Sa, for the reason Lakshmidevi did not inherit any rights over the 24 schedule properties. The said Lakshmidevi according to these defendants is the mother of plaintiffs as well of defendant Nos.18 and 19. There is no question of joint possession of the plaintiffs over the schedule properties. They further deny assertion that the plaintiffs and the defendants are in joint possession and enjoyment of the properties. The quantum of 1/7th share as claimed by the plaintiffs to the branch of Lakshmidevi is not admitted.
21. The averments in the plaint regarding concocting and fabricating the documents by the defendants using the documents as Memorandum of Partition after getting the signatures of the plaintiffs on some blank papers are all denied. According to the defendants, plaintiffs are absolutely in know of the partition deed that was executed on 14.8.2015 and the formalities of registration being completed on 16.3.2016. It is further contended that the plaintiffs 25 whole heartedly meant and intended it as partition. However, after subsequent thought and as a counter blast to the suit in O.S.No.2035/2019 have come in the present suit.
22. According to these defendants, Lakshmidevi and Maheswarsa are spouses and there existed no property in the name of K. Lakshman Sa either individually or jointly. Defendant No.16 in his written statement stoutly deny the contentions of plaint, their assertions regarding intestate succession of inheritance of undivided share that belonged to Lakshmidevi wife of Maheswar Sa.
23. The contentions in substance of either defendant No.11 or defendant No.16 is that, the schedule properties mentioned in the plaint includes several properties which did not belong to K. Lakshman Sa or devolved from him and that the 26 schedule properties which get fortified. Further suit is bad for inclusion of other properties as those properties belong to unnatural person and joint stock companies, trust are included in the schedule and that the claim of the plaintiffs is untenable either in law or on facts.
24. Insofar as IA 1 filed by the plaintiffs under Order 39 Rules 1 and 2 before the trial court is concerned, objections are filed by the contesting defendants. They also filed applications under order 39 Rule 4 for vacating exparte order would reiterate the substance of the pleadings of the plaintiffs and the contentions of the defendants.
25. Plaintiffs have produced the documents and relied upon them so also defendants.
26. The learned trial judge dismissed IA No.1 filed by plaintiffs under order 39 Rules 1 and 2 read 27 with Section 151 of CPC and ad interim exparte temporary injunction granted in favour of the plaintiffs on 2.7.2019 was vacated against which plaintiffs have come up in these appeals.
27. Learned Senior Counsel Sri. Jayakumar S. Patil for Smt. Shoba S. Patil for plaintiffs 1,3 and 4 submitted that the attendant circumstances under which the partition is relied upon by the defendants would itself tells how false is their claim of partition dated 14.8.2015.
28. Learned counsel would further submit that the circumstances projected by the defendants to explain the circumstances of coming into existence of the document of partition dated 14.8.2015 be it in terms of Power of Attorney or Memorandum of Partition, shows the suppression of truth and projection of false.
28
29. It is contended by the defendants that suit is barred by time. Learned counsel for plaintiffs would submit that it is a suit for partition of properties that belonged to the maternal grandfather of the plaintiffs and it is well within the period of limitation.
30. Learned Senior counsel Sri. Jayakumar S. Patil for Smt. Shobha Patil and Sri. Sandesh Chouta, Senior Counsel for respective plaintiffs appearing in both the cases would submit that efforts made by the defendants to deprive plaintiffs of their legal and legitimate share is apparent on the face of the documents. But fortunately, chronology of events and the legal position are in favour of plaintiffs. It is also stated the contextual reading of documents be it power of attorney as referred above or the affidavits or circumstances of the execution, absence of legality clearly expose the defendants. Learned Senior counsel 29 would submit that the amount of facts or circumstances or documents as pleaded by the defendants cannot demote the plaintiffs from their absolute and vested rights of ownership in common.
31. It was commonly submitted by all the learned counsel for plaintiffs that apart from questionable nature of the documents, it is apparent that there is no equality in the partition as claimed by the defendants. Equality is not maintained under equal circumstances and that has caused inequality which is against the fundamental principles of partition wherein the allotment or sharing must be equitable.
32. Learned Senior counsel Sri. Uday Holla (along with Sri. V. Haridas Bhat) for respondents 16,9,12 and 17 would submit the suit of the plaintiffs faces threshold bar and is not maintainable as all the necessary parties are not impleaded in the suit. There 30 was no existence of a joint family or joint family property nor there existed an occasion for sharing any other properties. Plaintiffs have been satisfied in a legal and equitable manner. Learned Senior counsel would further submit that plaintiffs cannot claim the joint possession. It is also submitted that claims and contentions of the plaintiffs are against the mandatory provisions of Section 91 and 92 of the Indian Evidence Act. The plaintiffs cannot raise their voice for second or additional partition when no properties are left over for the same neither there are partable properties. It was also contended that suit is not for reopening of partition on legal and legitimate ground hence it is not maintainable and it is hopelessly barred by limitation.
33. The unanimous submission of learned counsel for plaintiffs has been against the partition and it has illegally deprived the plaintiffs or the share which they are legally entitled as per law. 31
34. Insofar as defendants are concerned, they contend that partition whatever was required has been effected and the suit is filed as a second thought and it is not maintainable.
35. Learned counsel for plaintiffs submits that the Power of Attorney and the Partition Deed do not bear nexus between them.
36. The matter that came up before the trial court is for disposal of interim application filed under order 39 Rules 1 and 2 of CPC. The exparte order that was granted to the plaintiffs which includes the appellants in both the cases came to be vacated though there is no specific observation regarding IAs filed for vacating the interim order.
37. The undisputed facts regarding the relationship of plaintiffs and defendants are as under: 32
The original or the senior most propositus/ ancestor are: K. Lakshman Sa and Gangamma. They are spouses. Their children are five sons and two daughters as stated above. Among the children of K. Lakshman Sa and Gangamma, Lakhmidevi is one of the daughters. The plaintiff No.1 Chandraprabha is the daughter of Lakshmidevi so also Swayamprabha, plaintiff No.2, plaintiff No.3 Sathyaprabha and plaintiff No.4 Savithri. They have sought for 1/7th share in the properties mentioned morefully in the schedule that contains a long list of immoveable and moveable properties.
Their prayer is for 1/7th share in all the suit schedule properties and to declare the Memorandum of Recording Family Arrangement
-Cum- Partition dated 23.12.2015 registered on 16.3.2016 as null and void.
The defendants herein consists of brothers of Lakshmidevi and children of her deceased siblings i.e. K.L.Narayan Sa, and Sri. K.L. Srihari. It is necessary to clarify at this juncture that the 33 defendant No.18 M.M.Ananthamurthy and defendant No.19 Suryaprabha are also the children of Lakshmidevi. Thus, it is not only the plaintiffs who are the children of Lakshmidevi. The blood relationship between the parties is not disputed right from the top commencing from K.Lakshman Sa and Gangamma. Substantial numbers of schedule properties are also not disputed.
38. The contentions of the defendants is that the partition was effected to the full satisfaction and settlement of the parties and there are no properties left out which are available for partition. It is also stated that defendant No.18 has filed a suit for partition in O.S.No.2035/2019 and the plaintiffs are also parties in the said suit. The present suit is filed only to circumvent the scope of the said suit.
39. Other confusion that surfaces the suit is that, plaintiffs claim their share simplicitor on the 34 basis of succession intestate under Hindu Succession Act. Insofar as siblings defendants are concerned, they deny the existence of joint family properties. However, they state that plaintiffs have no right in the properties.
40. Thus, the question is, whether they are claiming intestate succession or from joint family has to be decided during the trial of the case. The plaintiffs have pleaded fraud from the defendants. The contesting defendants includes none other than the maternal uncles of plaintiffs 1, 2 3 and 4 as their mother Lakshmidevi is the sister of the defendants.
41. Present stage of the suit may not include finally determining the nature of the documents as to fraud or nullity. However, the scope of the appeals would be to analyze the prima-facie case, balance of convenience and comparative hardship. The 35 impression of the documents and rights claimed by the plaintiffs are to be measured from the surrounding circumstances, contents of the documents, existing relationship between the parties impact of the documents as whether they unsettle the settled position of law or the facts.
42. The task of the Court is to view from the independent angle as to whether there is a serious question to be investigated on the basis of the pleadings, documents, facts and applicable legal position. Regard being had to the fact that legal position or impact cannot be disturbed.
43. The effort of the court is to find out prima facie case and balance of convenience. On the other hand, it is not agreeing or disagreeing with the views or finding of the trial court, rather, it is as to what would happen if the decision of the trial judge on the 36 application whether it is allowed or not allowed to exist. The factors of prima facie case and balance of convenience are not the requirements in the alternative. On the other hand, both the factors are to be present and there cannot be unnecessary hardship or unfair disadvantage to either of parties.
44. Regarding the contention of the defendants' counsel on non impleading of the necessary parties, there is no clear details and moreover, there is no impediment for adjudicating application for temporary injunction.
45. Another legal plea taken up is, the suit filed by the defendant No.18 M.M.Anantha Murthy. Insofar as that suit is concerned, the present plaintiffs are the defendants. The rights of the plaintiffs are agitated as the defendants in the said suit. A mere pendency of 37 the said suit in O.S.No.2035/2019 cannot be a bar to file and contest the present suit.
46. The following are the decisions relied upon by the respondent No.15.
1. AIR 1994 1 SCC 1
2. 2020 SCC Online SC 1
3. 1994 SCC (4) 225
4. (1906) 8 BOMLR 375 5. AS No.973/1990
6. MANU/DE/3198/2018
7. AIR 1966 AP 192
8. AIR 1966 SC 1300
9. (1983) 142 ITR 706 AP
10. AIR 1951 CAL 69
11. 2009(4) BOM CR 645
12. MANU/DE/4784/2012
13. MANU/DE/0795/2014
14. MANU/SC/0316/1999
15. 1993 (3) ALT 76
16. (2008) 11 SCC 1 The following are the decisions relied upon by the respondent No.16.
1. ILR 1989 KAR 1701
2. 2012 (1) SCC 35
3. 2008 (12) SCC 281
4. 1999 (1) KAR L J 577
5. 2008 (15) SCC 673
6. AIR 2006 J & K 29 38
7. AIR 1968 SC 1276
8. 2004 (11) SCC 320
9. 2016 (2) SCC 36
10. (2016) 1 SCC 743
11. C.A.No.7209-7210 of 2015.
47. Bone of contention between the parties at this stage is, plaintiffs claimed that all the properties belonged to K. Lakshman Sa and Smt.Gangamma and by virtue of intestate succession being the Class-I heirs the plaintiffs stand at par with defendants/siblings of Lakshmidevi. At the same time, brother-defendants 1, 15 and 16 claimed that only five items of property belonged to Eshwar Sa and two items are purchased by K. Lakshman Sa.
48. Another contention of defendants is that the plaintiffs have added properties as per their discretion. The plaintiffs assert that all of them are the properties of Lakshman Sa and those earned from his income.
39
49. The rule of accretion to joint family property through the income from existing joint family properties is equally applicable to the estate of a person dying intestate. Incidentally, the rule is recognized under the Indian Contract Act, 1872, which also deals with obligations similar to contractual ones and quasi contractual obligation.
50. It is the contention between the parties that properties held under joint development agreement by defendant No.20 was earlier purchased from land owners and belong to entities, trust or companies or partnership firm. As such it is out of bound for the plaintiffs to claim share in it. In this connection matter will have to be considered during the trial of the case as it is claimed by plaintiffs that those properties also belong to them and they are also having interest in those properties. 40
51. In this connection learned counsel Sri.Ganapathy Hegde for M/s.Dua Associates appearing for defendant No.20 would submit that plaintiffs by themselves have stated that they have no claim over the property or extent of share of defendant No.20 is concerned. In this connection it is a well established principle that doctrine of quantum meruit prevail wherein party is entitled as much as merited depending on the nature of transfer and law applicable to holdings of property.
52. The further submissions of defendant No.20 is that properties which do not belonged to the defendants or the plaintiffs are also included in the suit schedule that has the lack of fair approach on the part of the plaintiffs. In this connection, memo filed on 20.3.2020 by plaintiffs and on 13.2.2020 filed by 16th respondent are as under:
41
Schedule Survey Owner's Name Doc.No.p Page Nos. No. roduced No.in by the the plaintiff Paper Book A-1 M/s.Khoday 9 192 Eshwarsa and sons.
A-3 L K Trust 11 194- 260 A-4 1.Khoday RCA 12 261- Industries 279 2.Khoday Distrilleries Ltd. 3.Khoday JD dated 280- Industries Pvt Ltd. 30.3.201 337 4. Prestige Notting 1 (with Hill investments. 70% right over the Develope d property A-5 1.Sri K R Nithyananda JD dated 339- I have 2.Sri K R Dayanada 19.4.2006 384 Produced 3.Sri Jannu Srinivas. Sale Deed dated the sale 30.7.2008 deed vide Doc.No.17. A-6 1.Acqua Bore wells Pvt JD dated 398- Ltd. 21.7.2010 444 2.Khoday RCA The Industries. developer/ 3.Khoday Eshwarsa D-20 has and sons. 55% of developed area. A-7 17 Vora Reality Pvt Ltd. JD dated 505- 29.04.201 563 4 The developer/ D-20 has 50% of developed area. A-8 Spring Bore Wells Pvt. (See Doc. Ltd. No.20 & 21 42 produced by me) No document produced by plaintiffs. The Khatha at Page No.580 pertains to Item No.A- 5, purchased by K L Ramachan dra under Doc.No.13 at pages 385-397. A-9 M/s.Lakshmansa and 17 581 Company A-10 Sri Nithyananda 18 582- 592 A-11 1.Khoday RCA I have Industries. produced 8 2.Khoday Sale Deeds Distileries Ltd. vide 3.Srikanta Dutta Doc.Nos.22 Narsimharaja to 29 Wodeyar Trust. 4.Bettaiah 5.M G Padma 6.Papanna 7.S Lingaiah 8.Javaraiah 9DL Varadaraju (Smt.Lakshmideva mma, mother of the plaintiffs sold the property to M/s.Khoday RCA Industries under 8 registered sale deeds) A-14 1.Khoday RCA 22 621- Industries 43 2.Chikka 633 Kenchappa 3.Hanumanthappa A-17 Smt.Parvathi Bai 25 636- 639 A-20 No.24 Sri Shreyas, Tejas, I have Yashas. produced Kahta certificate vide Doc. Nos.30 to 31 A-22 Sri K H Srinivas 30 650- (1/4th share) 668 A-23 Sri K H 30 650- Srinivas(1/4th 668 share) A-24 Khoday RCA 32 669- Industries 671 A-25 Khoday India Ltd. 33 672- 692 A-26 Khoday India 34 693- Ltd. 712 A-27 K S Brij Mohan, K 35 714, S Giridhar, K P 720- Vasudev, K R 724, Nithyanand, 727, Khoday 734- Distrilleries Ltd. 737 A-28 M/s.L K Trust, Sri 36 738- Jagadeesh Reddy 742 Sri Nagabhushana Reddy, Sri Shankara Reddy A-29 98 1.Smt.Puttamma 745/7 2.Sri Ghanashyam 46 3.Sri Dwarakanath 138/1 1.Smt.Prameela B Naidu 2.Smt. 747 Lalithamma 44 1.Vasudas 2.V Manjunath 3.Shanmukha 752 151/1 Gowda 4.Narayanappa 5.Venkataramana ppa 6.N Shabeer 7. V Govindaraju 8.Inshrath 9.Prameela Naidu 1.Sri K P Prakash 168 2.Sri Keshava 3.Indira Kuravilla 4.Prakash 756- Kuravilla 760 5.Ranajith Kuravilla 6.Shobha Abraham 7.Pradeep Kuravilla 8.E Mathai 9.E Vinay 10.Shrink Thomas 11.Priya Vatsa 12.Government (93 acres 16 guntas) 14.Jayalakshmi 15.Padmavathi A-30 M/s.Lakshmansa and Company. A-31 M/s.K Lakshman Swamy and 88 company. 770 93/1 1.Sri K S Giridhar 773 1. K S Giridhar 93/2 1.Byatappa 774 45 2.K S Giridhar A-32 59/3 1.M/s.K Lakshmansa & Co. 2.M/s.L K Trust. 60/1 1. L K Swamy 775 60/2 Trust 60/3 1. L K Swamy 776 Trust 60/4 778 1.L K Swamy 60/5 Trust 779 1.L K Swamy 61/1 Trust 780 1.L K Swamy 781 61/2 Trust 782 129/1 1.L K Swamy Trust 783 129/2 K S Giridhar 785 129/3 K S Giridhar 786 129/4 1.L K Swamy Trust 787 145 1.L K Swamy 788 Trust 790 1.L K Swamy Trust 1.L K Swamy 147 Trust 2.Suryanarayana 148 Rao 793 2.Sampangi 150/1 3.Narsimha 4.Munikrishna 5.Mylamma 796 6.Kanthamma 7.Chinnappa 799, 46 803 1.Sunitha 151 2.Vanaja Kumari Padmavathi 805 1.Ghanashyam 152 2.Maheshwari 3.Padmavathi 4.Raveendra 154 5.Dwarakanath 1.Muniyappa 155 2.Chinnappa 807 3.Muninarsappa 182 4.Jayalakshmi 809 5.Padmavathi 811 183 6.Shanthamma 815 7.Somashekar 817 189 1.Jayalakshmi 2.Padmavathi 821 Giridhar 189/2 Giridhar 190/1 Narasimhaiah 822- 823 Government 1.K 826 191 Lakshmanswamy & Company 830 2.Munirathnamma 196/6 1.Government 200 2.Sarojamma 832 201 M/s. K Lakshman 835 swamy and 202 company 837 47 203 1.J S Gangadhara 840 2.Chikka 842 Narasimhaiah 204/1 3.A Jayaramaiah 4.A Channappa 846 204/2 5.A Ramakrishna A 6.Kishan 849 Sunithat 204/2 Umamaheshwari 850 B 851 Sunitha 205/1 1.Jayalakshmi 852 205/2 2.Padmavathi 853 205/3 1.Jayalakshmi 854 2.Padmavathi 206/1 Sunitha Sunitha Maheshwari Sunitha Maheshwari Maheshwari Umamaheshwari A-33 42 Sri Giridhar 865 A-34 28 1.Vinayraj 867 2.Sri Sahasrarjun 3.Bhagwan Venkatapura 4.BDA 5.Sri K P Ghanashyam 1.Ghanshyam 48 30/1 871 1.M/s.Khoday RC 32/1 Industries, 872 33/1 Ghanshyam 873 34/1 Khoday RCA Industries 874 36/1A Khoday Distilleries 875 36/1B Pvt Ltd. 876 Khoday Distilleries Pvt Ltd. M/s.Khoday RCA 36/2A Industries 877 Khoday Distilleries 878 Pvt Ltd. 36/2B Khoday Industries Pvt. Ltd. 879 36/1C A-35 15, 16, 1.M/s.Khoday 17, Breweries Ltd. 22/A 2.Government 22/2 1.Sri Venkata Ramanappa 2.M/s.Khoday 24/1A Breweries Ltd. 1.Appaiah 25/1 2.S P Shankar Rao 25/3 3.Doreswamy 4.M/s.Khoday 49 25/4 Breweries Ltd. M/s.Khoday 25/5 Breweries Ltd. 25/6 M/s.Khoday Breweries Ltd. 27/2 M/s.Khoday Breweries Ltd. to M/s.Khoday Breweries Ltd. Sahasrarjun 27/8 and 28/1 A-37 Get Khatha A-38 M/s.L K Trust 966 A-39 1.Sri K R 968 Nithyananda 2.Sri Dayananda 3.Sri Giridhar(Mortgaged to India Bulls Commercial Credit Ltd for Rs.10,10,00,000/-) A-40 Khoday Control 970 Systems Pvt Ltd. Memo dated 13.2.2020
"It is respectfully submitted that the Sharing Ratio between the owners/family members and the Developer/builder i.e., Defendant/Respondent No.20 of the Schedule Properties mentioned herein herein below are as mentioned below:
SL No. SCHEDULE SHARE SHARE DATE OF PROPERTY ALLOTED TO ALLOTTED TO EXECUTION OF 50 UNDER JOINT DEFENDANT MEMBERS OF THE JOINT DEVELOPMENT No.20 JOINT FAMILY DEVELOPMENT WITH DEVELOPER UNDER THE AGREEMENTS DEFENDANT JOINT No.20 DEVELOPMENT AGREEMENT
1. A3-PRESTIGE 45% 55% 21.07.2010 TRADE TOWER
2. A4-PRESTIGE 70% 30% 30.03.2011 FALCON CITY
3. A5-PRESTIGE 45% 55% 19.4.2006 KHODAY TOWER
4. A6-PRESTIGE 45% 55% 21.07.2010 FALCON TOWERS
5. A7 - PRESTIGE 50% 50% 29.04.2014 WOODLAND PARK It is respectfully submitted that the plaintiffs/Appellants are making it clear that they are seeking Interim Order/Injunction restraining the defendants/Respondents from alienating/creating any charge or third party interests only against the owners share and not in the builders/Developers share i.e., the defendant/Respondent No.20's share in the above mentioned suit schedule properties. All the Joint Development Agreements were executed prior to 2015 and were executed for the benefit of the family members. In view of this, the plaintiffs / Appellants restrict their claim only with respect to 1/7th share in the owner's share under the respective Joint Development Agreements pertaining to the suit schedule properties mentioned herein above."
53. It is necessary to make a mention of the memo filed by one K.L.Ananthapadmanabha Sa who is 51 15th respondent/15th defendant. The contents of the said memo is as under:
"It is respectfully submitted that in the above matter the arguments on both sides have concluded and dictation of final orders was commenced on 20.03.2020. The matter is listed today for further dictation of the Order.
It is submitted that I am the Respondent No.15 and I have filed my objections in the above appeal.
I submit that Sri Khoday Lakshman Sa, my beloved father died intestate on 30.07.1973 leaving behind my mother Smt.Gangamma, Five Sons and Two Daughters namely 1. Sri K L Ramachandra Sa; 2. Sri Narayan Sa; 3. Sri K L Srihari; 4. Sri K L Ananthapadmanabha Sa, i.e., myself; 5. Sri K L Swamy and two daughters namely Smt.Lakshmidevi and Smt.Gowramma. I further submit that in September 1978, my mother Smt.Gangamma has also died and her share in the Joint Family Property is devolved upon us.
I submit that I have bonafidely supported my younger brother Sri K L Swamy Respondent No.16 herein and at his behest, I have signed all the papers sent across to me with the sole objective of resolving the family disputes. My Objections filed in the proceedings were under this bonafide belief.
I further submit that my objections in the above matter may be read along with a letter of instructions given to Sri Abhinav Ramanand dated 18.09.2020.52
It is respectfully submitted that I have 1/4th share in the suit schedule properties. There are other family properties which are not mentioned in OS No.4709/2019. I submit that I shall take appropriate steps to add other family properties and also file additional written statement in the pending suit in the due course of the proceedings.
It is further respectfully submitted that Respondent No.16 who is my younger Brother is trying to dominate me by causing harassment by way of pressurizing/intimidating me to thereaten the Appellants and more specifically the Defendant No.18 Sri M M Ananthamurthy who is also my son-in-law to withdraw the cases. He is also trying to take control of the factory which is under my supervision. The accounting system/mechanism is being changed to cause inconvenience to me. This is against to the interest of the family and the business. An appropriate direction to enable me to maintain my authority over the business needs to be granted to protect the interest of the family members, employees and myself.
I further submit that since my very childhood, I have been involved in the family businesses and since the past 60 years, I have had my place and seat in the factory (Known as City Factory). The family businesses being vast need to be run as they were running and managed by the respective members. I submit that the affairs of the factory that I am taking care (Khoday RCA Industries - No.11 Race Course Road, Near City Railway Station, Bangalore-9) where several employees are employed needs to be under me and my authority in this regard and my signing authority and the financial mechanism 53 needs to be maintained in order to protect the interest of the family members and also the several employees working under me/us. An appropriate direction in this regard inclusive of an order of protection of the suit schedule properties by this Hon'ble Court is required to protect the interest of the family members and in the interest of Justice and Equity.
Wherefore, it is respectfully prayed that this Hon'ble Court be pleased to take this Memo on record and pass appropriate orders granting an Order of protection of the suit schedule properties/allow the appeal by passing an Order of Injunction in the interest of Justice and Equity.
The said letter aims at preservation of suit schedule properties reasonably connecting to Order XXXIX Rule 7 CPC, which is as under:
"7. Detention, preservation, inspection, etc., of subject matter of suit.- (1) The court may, on the application of any party to a suit and on such terms as it thinks fit,--
(a) make an Order for the detention, preservation or inspection of any property which is the subject matter of such suit, or as to which any question may arise therein;
(b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and 54 (C) for all or any of the purposes aforesaid authorise any samples to be taker, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.
(2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this rule."
54. Insofar as memorandum of partition which is sought to be declared as void and to grant 1/7th share to the plaintiffs is concerned, at this stage, as I have already mentioned, job is not for declaring it as void or we are at the disposal of matter as it stands to whether prima facie case is made out by the plaintiffs for an interlocutory order keeping in mind the nature of pleadings of the parties and balance of convenience. It is an arrangement to safeguard the rights of parties and preserve the subject matter. Keeping in mind that rights of either parties do not get frustrated. 55
55. Further, the earlier partition irrespective of any form shall stand for reasonability, equity and free from clouds. The tone and tenor of the document claiming partition should appear transparent and it should stand to establish all its ingredients at first look.
56. In this connection, I refer the decision in the case of 1.Siromani (In C.A.No.749 of 1965),
2.Siromani and another (In C.A.No.750 if 1965), Appellant V.1.Hemkumar and others (In C.A.No.749 IF 1965), 2.Dinamani (In C.A.No.750 OF 1965), Respondents - reported in AIR 1968 Supreme Court 1299 (V 55 C 249) (From Madhya Pradesh). Said decision highlights the Principles of equality and their applicability under Mitakashara Hindu law, with reference to commentary by Vignaneshwara on Yajnavalkya.
56
"Unequal division though found in the sastras (e.g., Manu IX. 105, 112, 116, 117, Yaj. Ii. 114) should not be practiced because it has come to be condemned (or has become hateful to) by the people, since there is the prohibition (in Yaj. I.156) that an action, though prescribed in the sastras, should not be performed when it has come to be condemned by the people, since such an action does not lead to the attainment of Heaven. For example, though Yaj. I 109 prescribes the offering of a big ox or a goat to a learned brahmana guest, it is not now practised because people have come to hate it; or just as, although there is a Vedic text laying down the sacrificing of a cow 'one should sacrifice a barren cow called anubandhya for Mitra and Varuna'. Still it is not done because people condemn it. And it has been said 'just as the practice of niyoga or the killing of the anubandhya cow is not now in vogue, so also division after giving a special share (to the eldest sone) does not now exist."
57. Insofar as the documents which are defended by the defendants and attacked by the plaintiffs when considered as reference to the circumstances, claims and contentions, quantum of properties, pattern of shares, the extent of 57 accommodation to parties are to be considered carefully and also seriously. The final out come of the suit is the main product from the trial court. Any interim order made on application must be in the aid to the final reliefs sought. I do not find transparency or the principles of equity or equality and expression of true intention.
58. The claim of plaintiffs is not seeking permission to sell the properties. There is vast difference between seeking permission to sell the properties and the one not to sell the same by the other side. First one may be a risky but not the second one that too to a particular extent.
59. It is not the case of legal necessity being claimed contended, debts/liability and the related as found in regular orthodox partition suit. The share claimed by the plaintiffs is 1/7th regard being had to 58 the fact that 18th and 19th defendant are also claiming under Lakshmidevi.
60. In the circumstances as I have stated above, in order to grant the relief of injunction, the prima facie case and balance of convenience cannot be stated to be required in alternative. Per contra, both are to be present. Further the cause of irreparable injury, damage and well established principles of joint family also to be looked into.
61. In all probability, I find there is every just, proper and good reason to direct the defendants to keep on hold the properties to the extent of 1/7th share among the plaint schedule properties. However, the properties and calculation of 1/7th share of the present suit schedule properties are to be kept on hold and, if the defendants are restrained to the said 59 extent, I do not find any prejudice would be caused to the ends of justice.
62. The frame of the order itself disclose that there was no proper bifurcation of the provisions of law by the learned trial judge in passing the order exparte, when it was allowed he has gone to the extent of allowing IA No.1/2020 in tandom by virtue of rejection of application it provides that IA Nos 18, 20 and 22 were allowed.
63. The learned trial judge has not passed orders on application filed under order 39 Rule 4 CPC which provides for variance or alternative in the order of temporary injunction. However, rejection of application under order XXXIX Rules 1 and 2 CPC means application under order XXXIX Rule 4 CPC is allowed.
60
64. I do not agree with the principles applied by the learned trial judge. The restraint order must prevail to the extent of 1/7th share of the plaint schedule properties.
65. Accordingly, MFA No.1638/2020 filed by plaintiff No.2- Swayamprabha and MFA No.1849/2020 filed by Smt. Chandraprabha and others are allowed in part.
Impugned order dated 26-9-2019 passed in O.S.No.4709/2019 on IA Nos.1, 18, 22 and 24 by the learned trial judge is set aside.
Order on IA Nos.1, 18, 22 and 24 are modified to the effect that restraint order against alienation shall be in force on the defendants only to the extent of 1/7th share in the total plaint schedule properties till the disposal of the case.
61
Insofar as activities such as construction, improvements whether fresh or modification are conducted over the schedule properties, the party doing so shall be doing it at his risk and shall not be entitled to claim equity at the end.
Insofar as memo dated 13.2.2020 filed by plaintiffs is concerned, there are 5 properties which are stated to be the apartments constructed under joint development wherein the shares of defendant No.20 and that of defendants brothers are mentioned.
In the light of the admission by the plaintiffs in respect of the percentage of share mentioned therein for reckoning 1/7th share, the share of defendant No.20 shall be excluded.
62
Further, the learned counsel for plaintiffs submits that they want to make a stand in respect of property at A34.
It is left to their wisdom to file the same before the trial court if they chose to file a memo or statement as the case may be.
Sd/-
JUDGE SBN/tsn*