IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.61821/2016 (GM-CPC) BETWEEN:
1. DR. SATHYANARAYANA.S S/O SRINIVASA RAO, AGED ABOUT 50 YEARS, RESIDING AT NO 193/28, 5TH MAIN ROAD, VYALIKAVAL, BENGALURU – 560003.
2. KUM. SANJEEVINI. S., D/O DR. SATHYANARAYANA S., AGED ABOUT 14 YEARS, RESIDING AT NO 193/28, 5TH MAIN ROAD, VYALIKAVAL, BENGALURU – 560003.
SINCE MINOR REPRESENTED BY HER FATHER NATURAL GUARDIAN DR. SATHYANARAYANA S., S/O SRINIVASA RAO.
... PETITIONERS (BY SRI KRISHNAMURTHY, M.R., ADVOCATE FOR SRI SWAMY SHIVA PRAKASH H., ADVOCATE) AND:
1. SRI. ANJANEYALU K, S/O NARAYANA K, AGED ABOUT 60 YEARS, 2. SMT. LALITHAAKUMARI, W/O ANJANEYALU K, AGED ABOUT 54 YEARS BOTH WORKING AT KENDRIYA VIDYALAYA, INDIAN INSTITUTE OF SCIENCE, C. V. RAMAN ROAD, SUBEDAR PALYA, BENGALURU – 560012.
3. SRI D. GOPAL RAO, S/O S DEVA RAO, AGED ABOUT 78 YEARS, RESIDING AT NO. 74, 6TH CROSS, MALLESWARAM, BANGALORE – 560003.
... RESPONDENTS …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 3.9.2016 PASSED BY 28TH ADDITIONAL CITY CIVIL JUDGE MAYO HALL, BENGALURU IN O.S.No.26228/2013 ON I.A.1/2016 VIDE ANNEXURE-K.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendants 2 and 3 in O.S.No.26228/2013 on the file of the XXVIII Addl. City Civil and Sessions Judge (CCH-29), Mayo Hall, Bengaluru, have filed the present writ petition praying to quash the order dated 03.09.2016 allowing I.A.No.1/2016 filed by defendants 2 and 3, but not granting permission to withdraw the amount of `2,40,300/- deposited by the plaintiffs and directing the amount in deposit to be kept in fixed deposit initially for a period of one year renewable for a further period of six months in any nationalized bank, till disposal of the suit. It was observed in the order that the final order regarding the entitlement or disbursement of the said amount with interest will be passed at the time of final disposal of the suit.
2. The respondent Nos.1 and 2 herein are the plaintiffs in O.S.No.26228/2013 filed suit for perpetual injunction against the defendants contending that they were the tenants in the suit schedule property under one Smt.Sandhya Sathyanarayana, as per agreement dated 01.11.2008. In terms of the agreement, the plaintiffs are residing in the suit schedule property by paying monthly rent of `7,500/- along with refundable security deposit of `60,000/-, without any default. The terms of the agreement provided for renewal of the rent agreement at mutual consent of the parties. However, plaintiffs continued as tenants and paid monthly rent of `7,500/- to Smt.Sandhya Sathyanarayana until her death on 22.06.2010.
3. After the death of Smt.Sandhya Sathyanarayana, the first defendant/father of late Smt.Sandhya Sathyanarayana, issued a letter dated 05.08.2010 stating that he had gifted the suit schedule property to his daughter i.e. Smt.Sandhya Sathyanarayana out of love and affection and also stated that 3rd defendant is none other than his daughter’s husband who is suspected to have played a foul play in the tragic death of his daughter and in that connection, a complaint has been registered against him before Yeshwanthpur police station and the said police have registered FIR and investigation is in process. In fact, 1st defendant also stated that he is the guardian of his grand daughter/ 2nd defendant who is in his custody and the said 1st defendant has requested to give rent to him to meet the educational expenses of 2nd defendant.
4. The plaintiffs further contended that they are currently residing in the suit schedule property as tenants and 1st defendant has also entered into an agreement dated 28.09.2011 with the 1st defendant for monthly rent of `8,500/- along with refundable security deposit of `60,000/-. The plaintiffs also agreed to pay enhanced rent after renewal of the agreement on 28.09.2012 at `8,900/- per month. The third defendant for himself and on behalf of the second defendant as guardian, issued a legal notice dated 15-24/04/2013 to the plaintiffs stating that from July 2012 the monthly rent payable by the plaintiffs is `10,980/-. In the said notice, it was also averred that, pursuant to the death of Smt.Sandhya Sathyanarayana, the second and third defendants have succeeded to the suit schedule property and also contended in the legal notice that defendants 2 and 3 have terminated the tenancy of the plaintiffs and also asked the plaintiffs to quit and deliver the vacant possession of the suit schedule property to defendants 2 and 3.
5. The plaintiffs issued reply on 06.06.2013 and contended that they have paid upto date rent to the first defendant and since there is a dispute between the defendants regarding ownership of the suit schedule property, they were unable to pay the rent from June 2013. The plaintiffs averred that the question of terminating the tenancy would never arise. Plaintiffs are in possession of the suit schedule property as tenants and have obtained LPG etc. Inspite of the same, the third defendant along with henchmen came near the suit schedule property on 09.06.2013 and threatened to dispossess the plaintiffs forcibly. Therefore, they filed suit for perpetual injunction.
6. Defendant Nos.2 and 3 filed written statement, denied the plaint averments, accepted the relationship of landlord and tenant and contended that the very suit filed by the plaintiffs is not maintainable against Defendants 2 and 3. They contended that after the death of Smt.Sandhya Sathyanarayana, defendants have become the owners of the suit schedule property by succession. The first defendant is making wrongful claim over the suit schedule property and appears to have set up the plaintiffs to file the suit and the suit is liable to be dismissed.
7. When the matter was posted for orders, defendants 2 and 3 filed an application under Section 151 of Code of Civil Procedure to withdraw the amount of `2,40,300/- deposited by the plaintiffs. The plaintiffs contended that there is dispute between defendants 1 to 3 and therefore, till the dispute is decided, it is not possible for them to pay the rents. Therefore, filed the suit and deposited the amount before the Court. The first defendant filed objections and contended that the plaintiffs have been inducted as tenants by his daughter i.e., late Smt.Sandhya Sathyanarayana, the suit schedule property is his self acquired property which he had gifted to his daughter Smt.Sandhya Sathyanarayana and during her lifetime, she has executed a Will appointing him as care taker of the suit schedule property and second defendant is a minor girl. The first defendant further contended that whatever rents received from plaintiffs before institution of suit has been kept in fixed deposit in the name of second defendant till she attains majority. In view of the will executed by Smt.Sandhya Sathyanarayana the responsibility of the second defendant/minor girl is on him, etc. and therefore sought for dismissal of the suit.
8. Considering the entire material on record, the Trial Court, by the impugned order dated 03.09.2016, allowed the application filed by the defendants 2 and 3 but not granted permission to withdraw the amount in deposit. Hence the present writ petition is filed.
9. I have heard the learned counsel Sri Krishnamurthy M.R., on behalf of Sri Swamy Shiva Prakash H, learned counsel appearing for the petitioners. Learned counsel contended that the impugned order passed by the trial court in not granting permission to withdraw the entire amount is erroneous and contrary to law and further contended that the Trial Court ought to have permitted at least the first petitioner to withdraw the amount to the extent of his share. The Trial Court has not applied his mind before passing the impugned order and mechanically passed the impugned order, directing to deposit the entire amount till disposal of suit, which is erroneous. Therefore, he sought to allow the present Writ Petition.
10. In view of the aforesaid contentions raised by the learned counsel for the petitioners, the only point that arises for consideration in this writ petition, is;
“Whether the impugned order passed by the Trial Court while allowing the application and not granting permission to withdraw the amount in favour of defendant No.2 and 3 a sum of Rs.2,40,300/- is justified in the facts and circumstances of the present case?”
11. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioners and perused the entire material on record.
12. It is the specific case of the plaintiffs that Smt.
Sandhya Sathyanarayana was the owner of the suit schedule property and she has executed a lease agreement in favour of the plaintiffs on a monthly rent and they were paying rents to Smt. Sandhya Sathyanarayana while she was alive and she died in the year 2011. Thereafter, the defendant No.1 Gopala Rao and the defendant No.2 and 3 claiming the ownership over the suit schedule property. Therefore, the 1st defendant disputed the ownership of the defendant No.3 and contended that his daughter Smt. Sandhya Sathyanarayana executed a Will to look after the second defendant till she attains majority. Therefore, the defendant No.3 is not entitled for the amount. It is also not in dispute that the second defendant who is the daughter of late Sandya Sathyanarayana and 3rd defendant is the granddaughter of 1st defendant who is a minor, aged about 11 years on the date of the suit.
13. In view of the fact that the defendant No.2 and 3 claiming that they have inherited the property by way of succession, the 1st defendant submits that his daughter Smt.Sandhya Sathyanarayana during her lifetime had executed a Will appointing him as care taker of the schedule property as well as defendant No.2, who was still minor, till she attains the majority. The plaintiffs have filed the suit for permanent injunction and the amount is under deposit before the Trial Court.
14. The Trial Court considering the entire material on record, recorded a finding that the documents produced by the plaintiffs before the Trial Court establish that the suit schedule property originally belongs to defendant No.1. The document showing that the suit schedule property originally belonged to Gopala Rao, 1st defendant who has gifted the same in favour of his daughter Smt.Sandhya Sathyanarayana and the defendant No.1 lodged a complaint against the defendant No.3 about unnatural death of his daughter. The defendant No.3 is now married and there is a proceeding pending with regard to guardian ship. (At this stage, learned counsel for the petitioners admitted that the said proceedings is concluded and the application filed by the first defendant is rejected).
15. The 1st defendant has filed objections disputing the ownership of the defendant No.3. Taking into consideration the dispute between the defendant No.1 and 3 and the property belongs to Smt. Sandhya Sathyanarayana, she died in the year 2011, taking into consideration, her daughter 2nd defendant was minor, she executed a Will authorizing the 1st defendant her father to look after the property as well as the 2nd defendant her daughter till she attains majority. The Trial Court justified in passing the order directing the amount to be kept in Fixed Deposit for a period of one year or renewable for a further period of six months in any Nationalized Bank, till disposal of the suit. It is also held that the final order regarding entitlement or disbursement of the said amount with interest shall be passed at the time of the final disposal of the suit. The same is in accordance with law and the petitioners have not made out any ground to interfere with the impugned order by exercising the supervisory jurisdiction under Article 227 of the Constitution of India.
Accordingly, the Writ Petition is dismissed.
KCM/KMV/PN* SD/- JUDGE