- 1 - HC-KAR NC: 2025:KHC:27501 WP No. 7875 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 7875 OF 2019 (GM-CPC) BETWEEN: SRI. K. UMESH S/O LATE P.KRISHNA, AGED ABOUT 40 YEARS, RESDING AT : NO.54/C, NEW NO.17, LINDEN STREET, 4TH CROSS, Y.G.PALYA, BENGALURU 560 047. …PETITIONER (BY SRI. MUNISWAMY GOWDA S.G., ADVOCATE) AND: SRI. K. KAMALESH S/O LATE P. KRISHNA, AGED ABOUT 42 YEARS, RESIDING AT: NO.54/C, NEW NO.27, LINDEN STREET, 4TH CROSS, Y.G.PALYA, (YELAGUNTEPALYA) BENGALURU 560 047. …RESPONDENT THIS WRIT PETITION FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO-SET ASIDE THE ORDER DATED 08.01.2019 PASSED ON IA FILED U/S 151 OF CPC IN O.S.NO.25708/2017 ON THE FILE OF THE LVII Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:27501 WP No. 7875 of 2019 ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, AT BENGALURU, VIDE ANNEXURE-E AND ETC., THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER In this writ petition, petitioner is seeking for the following relief: "a. Issue appropriate order or direction and set aside the order dated 08.01.2019 passed on IA filed under Section 151 of CPC in OS.No.25708/2017 on the file of The LVII Additional City Civil and Sessions Judge, Mayo Hall Unit, at Bengaluru, vide Annexure E. b. Grant such other relief or consequential relief as this Hon'ble Court deems fit in the facts and circumstances of the case in the interest of justice and equity." 2. Heard Sri.Muniswamy Gowda S.G., learned counsel appearing for the petitioner. 3. Learned counsel for the petitioner submits that the respondent had filed a suit for partition and separate - 3 - HC-KAR NC: 2025:KHC:27501 WP No. 7875 of 2019 possession. The petitioner/defendant No.1 in his written statement denied the contention urged in the plaint. It is alleged that the father of the petitioner has bequeathed the suit schedule property in favour of the son of the petitioner under registered Will dated 06.02.2013 and he is the absolute owner of the property. In the said suit, the respondent/plaintiff filed an application seeking direction to the petitioner to deposit rent collected from defendant Nos.2 to 5. The Trial Court, without considering any of the aspects, allowed the application filed by the plaintiff and directed the defendant No.1 to deposit 50% of the rents collected from defendant Nos.2 to 5 in respect of PG Accommodation. It is further submitted that the approach of the Trial Court is perverse, as the respondent needs to establish that the property is the joint family property and the subject Will is subsequently cancelled, as stated in the application. Without considering any of these aspects, only on the presumption that the petitioner is collecting rent from the property, the Trial Court as directed to deposit 50% of the rent collected. Hence, seeks to allow the petition. - 4 - HC-KAR NC: 2025:KHC:27501 WP No. 7875 of 2019 4. I have heard the arguments of the learned counsel for the petitioner and meticulously perused the material available on record. 5. The pleading and material on record indicate that the respondent filed a suit in OS.No.25708/2017, seeking relief of partition and separate possession of his half share in the suit schedule property. The petitioner, who is the defendant No.1, denied the averments of the plaint and contended that the father of the petitioner has executed a registered Will dated 06.02.2013 in favour of the son of the petitioner and he is the absolute owner of the property. In the said proceedings the respondent/plaintiff filed an application seeking direction to the petitioner to deposit rent collected from the defendant Nos.2 to 5. The said application was opposed by the petitioner. The Trial Court, under the impugned order, directed the petitioner/defendant No.1 to deposit the rent collected by the defendant Nos.2 to 5. It is specifically contended by the petitioner that the suit filed by the respondent is for partition and separate possession and in the said suit the issue with regard to the subject properties and the Will dated 06.02.2013 is valid or not, is required to be adjudicated in the pending suit. - 5 - HC-KAR NC: 2025:KHC:27501 WP No. 7875 of 2019 Till the said adjudication takes place and decree is granted, there cannot be any direction to deposit 50% of the amount as directed by the Trial Court. 6. In my considered view, directing the petitioner to deposit 50% of the amount is not justified. Ultimately, the issue with regard to mesne profit and collection of rent is required to be gone into by the Trial Court at the time of final adjudication. The Trial Court is required to come to the conclusion that the suit schedule property is the joint family property and plaintiff is entitled to a share in the said property and a clear finding has to be arrived at as to whether the Will dated 06.02.2013 as claimed by the petitioner is valid or was it later cancelled, as contended by the respondent /plaintiff. Till such exercise is carried out, directing the petitioner to deposit the rent, may not be correct. It is always open for the Trial Court to adjudicate the issue with regard to mesne profit in the pending suit and pass a final order. 7. For the aforementioned reasons, I proceed to pass the following: - 6 - HC-KAR NC: 2025:KHC:27501 WP No. 7875 of 2019 ORDER i. The writ petition is hereby allowed. ii. The impugned order dated 08.01.2019 passed on application filed in OS.No.25708/2017 by the Court of LVII Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bangalore, is set aside. Consequently, IA filed by the respondent/plaintiff under Section 151 of CPC., seeking for direction to deposit the rent is rejected. iii. No Order as to cost. Sd/- (VIJAYKUMAR A. PATIL) JUDGE SRK List No.: 1 Sl No.: 5