IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO. 394 OF 2018 BETWEEN:
SRI SHIVAPRAKASH S S/O SRI P.SIDDU AGED ABOUT 50 YEARS RESIDING AT NO.324/A 25TH CROSS, 9TH MAIN ROAD BANASHANKARI 2ND STAGE BENGALURU-560 070 … APPELLANT (BY SRI KRISHNA S.B., ADV.) AND:
1. SRI S.SIDDU S/O LATE PUTTASWAMAIAH AGED ABOUT 81 YEARS 2. SMT PRABHAMANI W/O SRI P. SIDDU AGED ABOUT 75 YEARS 3. SRI S.SHASHIREKHA W/O SRI BABU JAGADISH H D/O SRI P. SIDDU AGED ABOUT 45 YEARS 4. SRI PRAVEEN SIDDU S/O SRI.P.SIDDU AGED ABOUT 43 YEARS RESPONDENT NOS.1 TO 4 RESIDING AT NO.630 10TH MAIN ROAD NEW KANTHARAJ URS ROAD T.K.LAYOUT, 4TH STAGE MYSORE-570 009 … RESPONDENTS (BY SRI Y.G.JAYAPRAKASH, ADV. FOR R1 AND R2; SRI S.RUPESH KUMAR, ADV. FOR R3 & R4) THIS MFA IS FILED UNDER ORDER XLIII RULE 1(r) OF CPC, PRAYING TO SET ASIDE THE ORDER DATED 16.12.2017 PASSED ON I.A.NO.1 IN O.S.NO.4715/2017 ON THE FILE OF THE LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-64).
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal arises out of the order dated 16.12.2017 on I.A.No.1 in O.S.No.4715/2017 passed by the LXIII Additional City Civil and Sessions Judge, Bengaluru (CCH-64).
2. By the impugned order, the trial Court rejected the application of the appellant/plaintiff under Order 39 Rules 1 and 2 of CPC seeking temporary injunction against the respondents against alienation of the suit schedule properties.
3. Suit schedule ‘A’ property was the residential property bearing Site No.324/A situated at 25th Cross Banashankari, Bengaluru measuring 37 feet X 60 feet. Schedule ‘B’ property was the residential property bearing Site No.116 measuring 30 feet X 50 feet situated at Padmanabhanagar ward, Bengaluru.
4. The appellant filed O.S.No.4715/2017 against the respondents for partition and separate possession of his 1/5th share in the suit schedule properties. Respondent Nos.1 and 2 are father and mother, respondent Nos.3 and 4 are the sister and brother of the plaintiff.
5. The City Improvement Trust Board allotted suit schedule ‘A’ to respondent No.2 - mother and conveyed to her under the registered sale deed dated 28.02.1973. Respondent No.1 purchased suit schedule ‘B’ property from one Smt. Jayalakshmamma under the registered sale deed dated 08.12.2000.
6. Appellant’s contention is that himself and the respondents constitute the joint family and the properties were purchased for the benefit of the family, therefore they were the joint family properties. His further contention is that himself and his wife have incurred huge loan for construction of the buildings on the suit schedule properties and now to defeat his rights, the respondents are trying to alienate those properties. Thus, he sought for temporary injunction under I.A.No.2.
7. The Trail Court rejected the application of the appellant on the ground that he has failed to make out the prima facie case of his right over the properties.
8. Admittedly, the sale deed in respect of schedule ‘A’ property was executed in the name of the mother as long back as in the year 1973. So also the sale deed in respect of ‘B’ schedule property was in the name of the father in the year 2000. The suit is filed in the year 2017. Defendant Nos.1 and 2 have gifted those properties to defendant Nos.3 and 4 respectively under the Registered gift deeds dated 24.12.2014.
9. Respondents claim that defendant Nos.1 and 2 were the absolute owners of properties. No record was placed before the Trial Court to show that the appellant contributed or was capable of contributing funds for purchasing those properties.
10. Therefore, it cannot be said that the Trial Court committed any error in exercising the discretion in rejecting the application. However, Section 52 of the Transfer of Property Act, 1882 bars alienation of the subject matter of the lis without the leave of the Court.
11. Under the circumstances, the interest of both the parties will be protected, if the alienations made if any by the respondents are subjected to the result of the suit.
12. The appeal is disposed of with the observation that the alienation if any made by the respondents/defendants during the pendency of the suit will be subject to the result of the suit.
In view of disposal of the appeal, I.A.No.1/2018 stood disposed of.
Sd/- JUDGE KG