- 1 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 2490 OF 2025 (CPC) BETWEEN: 1. SMT A M HEMA AGED ABOUT 29 YEARS, DAUGHTER OF LATE K.MUNI REDDY NO. 188, 5TH BLOCK, 4TH A CROSS, KORAMANGALA LAYOUT, BENGALURU 560 095. 2. MS A M BRUNDHA AGED ABOUT 25 YEARS, DAUGHTER OF LATE K.MUNI REDDY NO.147/3, 4 AND 5 4TH CROSS, 20TH MAIN SECTOR -1 HSR LAYOUT BENGALURU 560 102. …APPELLANTS (BY SRI. V B SHIVA KUMAR, ADVOCATE) AND: 1. SRI H K SRINIVAS REDDY AGED ABOUT 60 YEARS SON OF LATE M KRISHNA REDDY NO. 147/1 AND 2, 4TH CROSS 20TH MAIN, SECTOR-1 HSR LAYOUT BENGALURU -560 102. 2. SMT. RADHAMA, AGED ABOUT 85 YEARS, Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 WIFE OF LATE M.KRISHNA REDDY NO. 147/1 AND 2, 4TH CROSS 20TH MAIN, SECTOR-1, HSR LAYOUT BENGALURU 560 102. …RESPONDENTS (BY SRI. M S VARADARAJAN, ADVOCATE FOR R1) THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 18.12.2024 PASSED IN FDP.NO.170/2024 ON THE FILE OF THE XLIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH.NO.44), REJECTING THE APPLICATION FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC AND ETC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE C.M. POONACHA ORAL JUDGMENT The above appeal is filed calling in question the order dated 18.12.2024 dismissing the application filed by the petitioners under Order XXXIX Rule 1 and 2 r/w Section 151 of Code of Civil Procedure, 19081 in Final Decree Proceedings No.170/20242 by the XLIII Additional City Civil & Sessions Judge, Bengaluru3. 1 Hereinafter referred to as the ‘CPC’ 2 Hereinafter referred to as the ‘FDP’ 3 Hereinafter referred to as the ‘Trial Court’ - 3 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 2. For the sake of convenience, the parties will be referred to by their rank before the Trial Court. 3. The relevant facts in a nutshell leading to the present appeal are that the father of the appellants and the respondent No.1 instituted a suit in O.S. No.7427/1995 seeking for partition and separate possession. Vide judgment and decree dated 31.10.2011, the said suit was partly decreed and the plaintiffs were held entitled to 1/3rd share each in the suit schedule item No.2 property. The said decree passed by the Trial Court in O.S. No.7427/1995 was affirmed by this Court in RFA No.275/2012. FDP No.170/2024 was filed by the appellants to draw the final decree in respect of the suit schedule item No.2 property. In the FDP, the appellants/petitioners filed an application under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC to restrain the respondent No.1 or any one claiming through or under him from changing the nature/putting up construction of the suit item No.2 property. The respondent No.1 filed objections to the said application. The Trial Court vide order dated 18.12.2024 - 4 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 rejected the said application. Being aggrieved, the present appeal is filed. 4. Sri V.B. Shivakumar, learned counsel appearing for the appellants assailing the order passed by the Trial Court contends that in the suit, the plaintiffs were held as being entitled to 1/3rd share each in the suit item No.2 property and to partition the same, the FDP has been filed. That pending actual division of the property, the relief sought for vide application to restrain the defendant No.1/respondent No.1 from putting up construction ought to have been granted, as, if the respondent No.1 is permitted to put up construction, the same would prejudice the case of the appellants in the FDP. It is further contended that the reliance placed by respondent No.1 on the Palupatti dated 06.05.1998 was disbelieved by the Trial Court in the suit and hence, in the FDP the reliance placed on the said Palupatti dated 06.05.1998 for the purpose of rejecting application is erroneous. It is further contended that the appellants are in possession of a portion of item No.2 property which is the schedule property in the FDP, in respect of which the acquisition proceedings have been culminated and - 5 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 hence, the same cannot be taken into account for the purpose of adjudication of application and the Trial Court erred in rejecting the application. Hence, he seeks for allowing of the appeal and granting of the reliefs as sought for. 5. Per contra, Sri M.S. Varadarajan, learned counsel appearing for the respondent No.1 contends that the father of the appellants was already in possession of his 1/3rd share in the suit item No.2 property which is the subject matter of the proceedings in the FDP and has already put up construction of a residential house and the appellants are also earning a huge amount by way of rent. It is further contended that the parties having been in possession of their respective portions of the property that is sought to be divided and the father of the appellants already having constructed a residential house which the appellants are in enjoyment of the same, it is not open to the appellants to object for construction being carried out by the respondent No.1 in the portion of the property which is his enjoyment. It is further contended by virtue of a Palupatti dated 06.05.1998, the father of the appellants and respondent No.1 are in possession of their respective 1/3rd portions and - 6 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 the said Palupatti has been acted upon inasmuch as the revenue records in respect of the portions of the property under the respective occupation of the father of the appellants and the respondent No.1 have been changed. It is also contended that at the time when the father of the appellants put up construction in the 1/3rd portion as agreed to be allotted to his share, due to a dire economic situation, the respondent No.1 could not put up construction and hence, now he is putting up construction in the 1/3rd portion of the property that has been allotted to his share under the Palupatti dated 06.5.1998. It is further contended that the Trial Court having adequately appreciated the material on record has rightly rejected application filed by the appellants which order ought not to be interfered with by this Court in the present appeal. It is further contended that the respondent No.1 has already put up a major portion of construction of a residential house for himself and his family members to reside and has been spent considerable amount and hence the same ought not to be stopped at the present stage. That the Trial Court has rightly noticed that while adjudicating upon the FDP on its merits, the inter se - 7 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 rights between the parties could be taken into account while passing the suitable orders. 6. Both the learned counsel have relied upon the various documents which were placed on record before the Trial Court as well as on various judgments, which shall be referred to the extent that the same are required for adjudication of the question that arise for consideration in the present appeal. 7. The submissions of both the learned counsels have been considered and the material on record have been perused. The question that arises for consideration is: “Whether the order passed by the Trial Court rejecting the Application filed by the appellant/petitioner is erroneous and liable to be interfered with by this Court?” 8. The relevant factual matrix is undisputed inasmuch as respondent No.1 and the father of the appellants had instituted O.S. No.7427/1995 for partition. Vide judgment and decree dated 31.10.2011 passed in the suit, it is held that the plaintiffs are entitled 1/3rd share in the item No.2 of the suit property. It is further undisputed that FDP has been initiated by the appellants to draw up a final decree in terms of the decree - 8 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 passed in O.S. No.7427/1995 and the subject matter of FDP is the suit item No.2 of property in respect of which it is been held the plaintiffs are entitled to 1/3rd share each. 9. The appellants filed I.A. No.1 in the FDP to restrain the 1st respondent or anybody through claiming him from changing the nature/putting up further construction in the schedule property. It is deposed in the affidavit accompanying the application that respondent No.1 started putting up permanent construction in the schedule property before partitioning of the said property and hence, the appellants have lodged a police complaint with regard to the same and filed the application for suitable reliefs. It is deposed that if respondent No.1 continuous with the construction in the undivided share, it will lead to unnecessary litigation in future and the other sharers will be put to irreparable loss and injury. 10. Respondent No.1 filed detailed objections to application filed by the appellants in the FDP wherein, it is specifically contended that by virtue of the Palupatti dated 06.5.1998, it was agreed that site Nos.1 and 2 in the property in question totally measuring 9786 sq.ft was allotted to the share of - 9 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 respondent No.1 and site Nos.3, 4 and 5 totally measuring 9503 sq.ft was allotted to the share of the father of the appellants. That site Nos.6 and 7 were also allotted to the share of M. Krishna Reddy and H.V.Radhamma respectively. It is further contended that pursuant to the division made vide the said Palupatti dated 06.05.1998, the father of the appellants during his lifetime put up buildings over the site No.4 about 20 years ago and site No.5 about 13 years ago and that said portion is fully developed. That the father of the appellants had also applied for khatha and paid the requisite betterment charges with respect to the said site Nos.3, 4 and 5 and the revenue records in respect of the said properties have been changed in favour of the father of the appellants. The electricity bills pertaining to the buildings constructed by the father of the appellants have also been produced. It is further contended that respondent No.1 vide registered Gift Deed dated 16.6.2024 gifted site No.1 in favour of his wife Smt. H.S. Jyothi and pursuant to execution of the said Gift Deed, khatha of the property was transferred to her name. That after obtaining building plan and licence for construction of - 10 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 a residential house, construction is being put up for their family use. 11. The Trial Court while considering the application, has noticed that in the suit, the father of the appellants and respondent No.1 have been held as being entitled to 1/3rd share each in the schedule property. It is further held that in the FDP, the Palupatti dated 06.05.1998 could be considered as a family arrangement. Hence, it has been held by the Trial Court that the appellants/plaintiffs have made out a prima-facie case. However, while considering point Nos.2 and 3 with regard to the balance of convenience and comparative hardship, the Trial Court after appreciating the material on record has noticed that the buildings have been constructed in site Nos.3, 4 and 5 and the appellants/petitioners have not denied the assertions by respondent No.1 in that regard. The Trial Court has further noticed that the position of the parties during the pendency of the suit can be considered at the time of drawing up of final decree and hence, recorded a finding that the balance of convenience does not lie in favour of the petitioners. - 11 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 12. It is forthcoming that the division, by virtue of the Palupatti dated 06.5.1998, is sought to be denied by the appellants. However, it is apparent from the material on record that site Nos.3, 4 and 5 of Sy.No.147 have been earmarked to the share of the father of the appellants and buildings have been constructed in the said portion of the property. That the father of the appellants has also got the revenue records changed in his name in respect of the said property which he was enjoying possession of and after putting up construction, electricity connection to the said property has been given. 13. Reliance is placed by the learned counsel for appellants on the deposition recorded in the suit for the purpose of demonstrating that no finding has been recorded in the said suit that the property has been divided between the parties in terms of the Palupatti dated 06.05.1998. However, it is relevant to note from the material on record, as has been rightly noticed by the Trial Court that the appellants are in possession of portion of the property. That the revenue records in respect of the said property has been changed as also - 12 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 construction in the said portion has been put up and electricity connection has also been obtained with respect to the same. 14. The Hon’ble Supreme Court, in the case of M.L. SUBBARAYA SETTY AND OTHERS V. M.L. NAGAPPA SETTY AND OTHERS4, relied upon by the learned counsel for respondent No.1 which has also been noticed by the Trial Court has been held as follows: “29. Another question to be determined is as to the date of valuation of the properties in a suit for partition. Ordinarily, it has to be the date of the passing of the final decree and not the date of filing of the suit for partition. In a given case, however, there may be exception of this general rule. It is a matter of common knowledge that such suits for partition take considerable time for disposal. There is a big time lag between date of filing of the suit and date of the decision thereof. There is also considerable lapse of time between passing of preliminary decree and passing of final decree. Take the present case, suit was filed in the year 1948, preliminary decree proceedings were finalized in 1971 by decision of this Court. Thereafter more than 30 years have lapsed, the parties are still no way near the final partition. It would be absurd if it was to be held that the valuation of 1940 or 1948 should be taken. It is also possible that in a given case, the value of one property may appreciate drastically while not so in the case of other properties or it may even decline and some of the parties may possession of those properties. It has been the endeavour of the Courts in such suits to protect, preserve and respect the possession of the parties as far as possible. While so protecting, there the has to be equalization of shares which has been recognized in law "by making a provision for payment of Owelty". (emphasis supplied) 4 “AIR 2002 SCC 2066” - 13 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 15. In the case of T.S SWAMINATHA ODAYAR V/S OFFICIAL RECEIVER OF WEST TANJORE5 the Hon’ble Supreme Court considering the aspect of the division of the properties where properties of larger value may go to one party and properties of smaller value to another, has held as follows: “14. It must be remembered that the decree was one for partition of the properties belonging to the joint family of which the defendant No. 3 and the appellant were coparceners. While effecting such a partition it would not be possible to divide the properties by metes and bounds there being of necessity an allocation of properties of unequal values amongst the members of the joint family. Properties of a larger value might go to one member and Properties of a smaller value to another and therefore there would have to be an adjustment of the values by prodding for the payment by the former to the latter by way of equalisation of their shares. This position has been recognized in law and a provision for such Payment is termed "a provision for owelty or equality of partition" 18. It therefore follows that when an owelty is awarded to a member on partition for equalization of the shares on an excessive allotment of immovable properties to another member of the joint family, such a provision of owelty ordinarily creates a lien or a charge on the land taken under the partition. A lien or a charge may be created in express terms by the provisions of the partition decree itself. There would thus be the creation of a legal charge in favour of the member to whom such owelty is awarded. If, however, no such charge is created in express terms, even so the lien may exist because it is implied by the very terms of the partition in the absence of an express provision in that behalf. The member to whom excessive allotment of property has been made on such partition cannot claim to acquire properties falling to his share irrespective of or 5 “AIR 1957 SCC 5777” - 14 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 discharged from the obligation to pay owelty to the other members. What he gets for his share is therefore the properties allotted to him subject to the obligation to pay such owelty and there is imported by necessary implication an obligation on his part to pay owelty out of the properties allotted to his share and a corresponding lien in favour of the members to whom such owelty is awarded on the properties which have fallen to his share. 19. Not only is this the normal position on a partition decree where there is an unequal distribution of properties among the members of the joint family but even where an encumbrance has been created on a member's share before the partition is effected, the encumbrance is postponed to the member to whom such owelty is awarded under the partition decree. A lien or a charge created in favour of a member in regard to such owelty obtains precedence over an encumbrance and there are authorities to show that such lien of charge has priority over an earlier mortgage.” (emphasis supplied) 16. Learned counsel for the appellants contends that the properties in which the father of the appellants has put up construction is the subject matter of the acquisition proceedings and possession of the appellants over the said properties is contingent upon the said acquisition proceedings. However, it is relevant to note that there is no averment made in the application filed by the appellants before the Trial Court as well as the present memorandum of appeal with regard to the possession of the appellants being subject matter of - 15 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 acquisition proceedings. No other material is placed on record with regard to the same. Hence, the said contention cannot be adjudicated upon for the first time at the stage of arguments. 17. It is clear from the aforementioned factual matrix that the appellants and the respondent No.1 are in possession of certain portions of the property and are enjoying the same and respondent No.1 is currently putting up construction in respect of the portion that is under his occupation. 18. In the course of the FDP, it is open for the parties to agitate as to the extent of properties that is being enjoyed by each of them as also with regard to the value of the same so as to enable the Trial Court to adjudicate upon the equalization of shares between the parties and to pass appropriate orders thereof. 19. In view of the aforementioned, the Trial Court was justified in refusing the relief sought for by the appellants vide I.A. No.1 filed by them. The appellants have failed in demonstrating that the order passed by the Tribunal is in any manner erroneous and is liable to be interfered with by this - 16 - HC-KAR NC: 2025:KHC:20815 MFA No. 2490 of 2025 Court in the present appeal. Hence, the question framed for consideration is answered in the negative. 20. The above appeal is dismissed as being devoid of merit. Sd/- (C.M. POONACHA) JUDGE BS List No.: 2 Sl No.: 14