IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.16187/2015 (GM-CPC) Between:
1. Rudramma @ Rudramma, W/o Sri B.S. Devegowda, Aged about 81 years, By GPA Holder (Sri Prabhulingesh) 2. Niharika, D/o Late B.D. Maheshwarappa, Aged about 27 years Both are residents of:
Bikkemane Village, Malalur Post, Amble Hobli, Chickmagalur Taluk, Chickmagalur District. … Petitioners (By Sri K V Narasimhan, Advocate) And:
1. Smt. Sarvamangala, W/o Late B.D. Maheshwarappa, Aged about 59 years.
2. Smt. B.M. Mahima, W/o Anantha Krishna, Aged about 35 years.
3. Smt. B.M. Prutha, W/o Shivshankar, Aged about 30 years.
Respondents 1 to 3 are residents of Bikkemane Village, Ambale Hobli, Chikmagalur Taluk, Chikmagalur District.
4. Sri Bharath, S/o Krishnamurthy, Aged about 45 years, Residing at Uppalli Extension, Chikmagalur City.
5. Sri Dinesha K., S/o Krishnamurthy, Aged about 36 years, Residing at Uppalli Extension, Chikmagalur City. … Respondents (Respondents - Served) This Writ Petition is filed under Article 227 of the Constitution of India, praying to set aside the order at Annexure-H dated 30.03.2015 passed by the Hon’ble II Additional Senior Civil Judge, Chikmagalur in O.S. No.49/2010 on I.A. No.11 and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ Group this day, the Court made the following:
ORDER The petitioners who are plaintiffs have challenged the order of the trial Court dated 30.03.2015 passed on I.A.No.11 in O.S.No.49/2010 whereby an application for impleading Sri K.Dinesha who is said to be a donee under the gift deed dated 24.03.2011 has been allowed.
2. The plaintiffs had filed a suit seeking the reliefs of partition and separate possession. An application was filed under Order 39 Rules 1 and 2 of C.P.C. restraining the defendants from alienating the schedule property and the trial Court, by its order dated 5.4.2010 while issuing notice on the I.A. and suit summons to the defendants had restrained the defendants from alienating and encumbering the suit schedule property till further orders. Subsequently, it is borne out from the records that on 24.03.2011 the gift deed came to be executed by defendant No.4 in favour of proposed defendant K.Dinesha with respect to suit schedule properties, viz., Sy.Nos.72/2, 72/3 and 72/4.
3. It is not in dispute that the said gift deed was executed during the currency of interim order granted restraining the defendants from interfering or alienating the suit schedule properties. An application came to be filed under Order 1 Rule 10 of C.P.C. by the donee K.Dinesha under the gift deed seeking to be impleaded.
4. However, it is interesting to note that the said application is supported by an affidavit that is sworn to by defendant No.4 in the capacity of power of attorney holder of donee K.Dinesha. Said application was opposed by filing objections. However, the trial Court, by its order dated 30.03.2015 has allowed the said application. The trial Court no doubt takes note of the interim order passed, but however observes that principles of lis pendens would apply and in fact, bringing the proposed defendant on record would further the interest of plaintiffs as regards further proceedings in the suit, including the final decree proceedings and to obtain possession of the property.
5. Learned counsel for the petitioners has assailed the said order and contends that the alienation by way of gift made during the currency of interim order cannot be taken note of as the same is flagrant violation of the interim order passed. It is further submitted that in light of power of attorney holder, i.e. the donor himself swearing to the affidavit filed on behalf of donee, in effect, defendant No.4 is representing the donee, which would reveal collusion between the parties.
6. Learned counsel for the petitioners has also relied on the judgment of this Court in the case of Christopher Karkada and Others v. Church of South India, represented by its Moderator and Others reported in ILR 2012 KAR 725 wherein this Court at para-183 has held that alienation in the teeth of an order restraining such alienation would not be recognized and is to be treated as void abinitio.
7. The trial Court has not taken note of the fact that the impleading applicant is represented by his brother, who is defendant No.4. It is this singular fact which would also make a difference in considering the case that is put forth by the impleading applicant. It is also to be noticed that the impleading applicant being brother of defendant No.4 and that the alienation has been made in the teeth of the order of restraint passed which remained unaltered, the order passed on I.A.No.11 is set aside and the said application filed seeking to implead K.Dinesha is rejected.
8. In light of the observations and discussions made above, this petition is disposed of.
Sd/- JUDGE VGR