IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.3411 OF 2015 (CPC) BETWEEN:
CHANDURANGA KANTHRAJ URS, S/O.LATE K.B.RAMACHANDRARAJ URS, AGED ABOUT 42 YEARS, R/AT “LEELA VIHAR”, 22/1, GOKULAM ROAD, JAYALAKSHMIPURAM, MYSURU – 570012, ALSO AT, GAYATRI VIHAR, BANGALORE PALACE GROUND, RAMANA MAHARSHI ROAD, BENGALURU – 560080. …APPELLANT (BY SRI.K.NATARAJ, ADVOCATE) AND:
1. MEENAKSHI DEVI, W/O.LATE SRI.M.R.LAKSHMIKANTH RAJEURS, AGED ABOUT 63 YEARS, R/AT NO.56, DREAM MEADOWS, KUNDALAHALLI POST, BENGALURU – 560037, SINCE DEAD BY LRs.
1(a). MRS.JAYA PALASHRI ANIL, W/O.ANIL ASHWATH, AGED ABOUT 39 YEARS, R/AT NO.41, “CHAITANYA’’, LAGROVE VILLA, KUNDALAHALLI POST, BENGALURU – 560037.
1(b). MR.M.L.VARCHUS VIN S.S.RAJE URS, S/O.LATE M.R.LAKSHMIKANTHRAJ URS, AND LATE MRS.MEENAKSHI DEVI, AGED ABOUT 34 YEARS, R/AT NO.56, DREAM MEADOWS, KUNDALAHALLI POST, BENGALURU – 560037.
2. PRAMODA DEVI WADIYAR, W/O.LATE SRIKANTADATTANARASIMHARAJA WADIYAR, AGED ABOUT 62 YEARS, R/AT THE MYSORE PALACE, MYSURU – 570001.
3. KAMAKSHI DEVI, W/O.ATHMANYA DEV, AGED ABOUT 60 YEARS, R/AT NO.164, CHAMUNDESHWARI KRUPA, 5TH MAIN, DEFENCE COLONY, INDIRANAGAR, BENGALURU – 560038.
4. INDRAKSHI DEVI, W/O.R.RAJACHANDRA, AGED ABOUT 58 YEARS, R/AT NO.241, 15TH MAIN, RMV EXTENSION, BENGALURU – 560080.
5. VISHALAKSHI DEVI, W/O.GAJENDRA SINGH, AGED ABOUT 55 YEARS, R/AT SHEEYUM, BANGALORE PALACE GROUNDS, RAMANAMAHARSHI ROAD, BENGALURU – 560080.
6. TRIPURASUNDARI DEVI, W/O.SWAROOP ANAND, AGED ABOUT 49 YEARS, R/AT NO.17, PRESTIGE DORCHESTER, BEHIND JAKKUR FLYING CLUB, JAKKUR, BENGALURU – 560065.
7. DEEPAMALINI DEVI, W/O.JAIDEEP BHALE RAO, AGED ABOUT 47 YEARS, R/AT NO.304, BRIGADE PARKWAY, NO.2636, 2ND MAIN ROAD, V.V.MOHALLA, MYSURU – 570002.
8. KIRTI MALINI DEVI, W/O.SHAILESH VIKRAM SINGH, AGED ABOUT 45 YEARS, R/AT NO.5, PRESTIGE DORCHESTER, BEHIND JAKKUR FLYING CLUB, JAKKUR, BENGALURU – 560065. ...RESPONDENTS (BY SRI.D.R.RAVISHANKAR , ADVOCATE FOR R1(A&B) & R4, SRI C.K.VENKATESH FOR R2, SMT.B.V.NIDHISHREE, ADVOCATE FOR R3, R5 & R6) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1 (r) OF THE CIVIL PROCEDURE CODE AGAINST THE ORDER DATED 17.04.2015 PASSED ON IA NO.1 IN O.S.NO.25185/2015 ON THE FILE OF THE 28TH ADDITIONAL CITY CIVIL JUDGE, MAYO HALL, BANGALORE, REJECTING IA NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Counsel for the appellant is absent. No representation.
2. Heard the counsel for respondent No.2 and counsel for respondent Nos.3, 5 and 6.
3. The present appeal is of the year 2015. No interim orders are passed on I.A.1 which was filed seeking for temporary injunction restraining second defendant from alienating or otherwise encumbering or creating third party interest over the schedule properties.
4. The plaintiff had filed a suit for partition claiming 1/24th share in the schedule properties by metes and bounds and to declare that the compromise deed dated 7.8.1980 entered into between the family members of the plaintiff in O.S. No.622/1980 is not binding on the plaintiff. The suit filed by the plaintiff seeking partition was numbered as O.S. No.25185/2015 wherein the plaintiff - appellant had filed I.A. under Order XXXIX Rule 1 and 2 CPC restraining the defendant/respondent No.2 from alienating the suit schedule properties or encumbering or creating third party interest.
5. On hearing both the parties the trial Court has passed an order in IA No.1 rejecting the IA 1 filed under Order XXXIX Rule 1 and 2 filed by the plaintiff.
6. The counsel for the appellant would strenuously contend that in W.P.No.8192/2015 there was an interim order of status quo. In the said writ petition the respondent No.2 had undertaken that the suit schedule property will not be alienated till disposal of the IA before the trial Court. Thereafter one Mr.
Srikantadatta Wadiyar has sold one of the schedule properties in favour of Surabhi Dairy. Despite there being valid grounds for granting the interim order, the I.A. No.1 was rejected. The recitals in the settlement deed discloses that it was only a settlement between the family members in respect of Bengaluru palace property but whereas according to the averments made in the plaint there are 58 properties including the Bengaluru palace property. In the event of alienation the plaintiff appellant will be put to hardship and injustice.
7. As could be seen from the relevant portion of the order passed on I.A. in paragraphs 8 and 9, the trial Court has observed as under:
“ 8. xxxxxxxxxxxxx It is also an admitted fact that the suit properties were belonging to HH Jayachamaraja Wadiyar. The relationship between the parties is also not under dispute. The plaintiff has claimed only 1/24th share in the suit properties. It is an admitted fact that Srikantadatta Narasimharaja Wadiyar had filed a suit for partition against his father and against his sisters. That suit has ended in compromise, but no partition was effected except settling the first wife of HH Jayachamaraja Wadiyar. It is also admitted fact that there was a family settlement between Srikantadatta Narasimharaja Wadiyar and his sisters during the year 1984. It is the contention of the plaintiff that at that time he was a minor and represented by his father Sirdar Ramachandraraj Urs. That family settlement is unjust and unequal and unconscionable family settlement was imposed. Under the said settlement some properties have been given to the sisters of Srikantadatta Narasimharaja Wadiyar and as the plaintiff’s mother pre-deceased some properties were also given to the plaintiff and his sisters and that family settlement has been acted upon.
9. On careful perusal of the affidavit of the plaintiff he contended that he reliably learnt that defendant No.2 is trying to alienate some of the suit properties, but nowhere the plaintiff contended that the defendant No.2 is trying to alienate the entire suit properties. Except a bare allegation that the second defendant is trying to alienate some of the properties, no specific act of the second defendant to sell any of the suit properties has been referred in the affidavit. No material has been produced before the Court prima-facie which goes to show that defendant No.2 is trying to alienate some of the suit properties. Even if the defendant No.2 has sold some properties during the pendency of suit, lispendens is applicable. The plaintiff has claimed only 1/24th share in the suit properties, if he proves that he is entitled for 1/24th share, he will get his share. The defendant No.2 also contended that HH Jayachamaraja Wadiyar out of natural love and affection towards his daughters including the mother of the plaintiff created individual Trust for all his children with substantial landed properties/buildings at various locations and the daughters of Maharaja of Mysore Sri.Jayachamaraja Wadiyar have taken possession of the properties held under the Trust and the beneficiaries i.e. their legal heirs continue to hold and enjoy the properties till this day. The pre-deceased Gayathri Devi was also one of the beneficiaries. The plaintiff happens to be her son who has succeeded along with his sisters to the properties held by his mother and in addition to the properties made over through the Trust, created by HH Jayachamaraja Wadiyar in favour of his daughters, his son late Srikantadatta Narasimharaja Wadiyar has given additional grant in the form of maintenance by family settlement deed in the year 1984. The defendant No.2 further contended that after the death of her husband she has not made any attempt to alienate any of the properties of her husband. There is no any sufficient material prima-facie to show that the defendant No.2 is trying to alienate the suit properties. Considering all these aspects, I hold that the plaintiff has not made out a prima-facie case to allow I.A.1. The balance of convenience does not lie in favour of the plaintiff and if temporary injunction is not granted the plaintiff will not be put to greater hardship. Accordingly I answer point No.1 and 2 in the negative.”
8. The present appeal is preferred against the interim order dated 17.04.2015. Since then no interim orders are passed in this appeal. At this stage no grounds are made out to show that the respondent No.2 or other respondents have made attempts or trying to alienate the suit schedule properties. Any alienation of suit schedule properties during the pendency of suit or appeal are hit by ‘Lis Pendens’ as the Section 52 of the Transfer of Properties Act comes into operation and the parties are bound by that. The present appeal do not require detail consideration as no grounds made out to show that the findings given in the impugned order are erroneous. In view of the reasons assigned in the interim order and submission of the counsel for the appellant, there are no valid grounds to admit the appeal. Accordingly, the appeal is dismissed.
IA 1/2015 for temporary injunction do not survive for consideration and the same stands dismissed.
Sd/- JUDGE ykl