- 1 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 6762 OF 2025 (CPC) BETWEEN: SRI RAJASHEKAR G C S/O LATE G CHIDANANDAPPA AGED ABOUT 63 YEARS, R/ AT NO.1519, 27TH CROSS, BANASHANKARI II STAGE BENGALURU-560 070 …APPELLANT (BY SRI. B M HALASWAMY.,ADVOCATE) AND: 1. G.C.SHIVAKUMAR S/O LATE G CHIDANANDAPPA AGED ABOUT 64 YEARS, R/AT B-1803, SALARPURIA 8TH MAIN, MALLESHWARAM BENGALURU-560 025 2. G C PARVATHAMMA W/O LATE G CHIDANANDAPPA AGED ABOUT 79 YEARS, R/AT SOWBHAGYA , OPP GRADUATE CO-OP SOCIETY, KUVEMPU ROAD, SHIVAMOGGA-577 201 3. G C SHANMUKHA S/O LATE G CHIDANANDAPPA AGED ABOUT 58 YEARS, R/ AT SOWBHAGYA Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 OPP GRADUATE CO-OP SOCIETY, KUVEMPU ROAD, SHIVAMOGGA-577 201 …RESPONDENTS (BY SRI. P.N.HARISH.,ADVOCATE FOR R-1; SRI.H.S.PRASHANTH., ADVOCATE FOR R-2 & R-3) THIS MFA IS FILED U/S.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT. 30.06.2025 PASSED ON IA NO.1 IN O.S.NO. 249/2023 ON THE FILE OF THE PRL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, ALLOWING THE IA.NO. 1 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC, 1908. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR ORAL JUDGMENT This appeal is preferred by appellant/defendant no. 2 against the order dated 30.06.2025 passed on I.A. No. 1 in O.S No. 249/2023, whereby the trial Court allowed the application filed under Order - XXXIX Rules 1 and 2 of CPC. 2. The parties shall be referred to as per their ranking before the trial Court, for the sake of brevity. 3. Brief facts of the case are as follows: - 3 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 3.1 Plaintiff filed the suit against the defendants for the relief of partition and separate possession of one- fourth share in the suit schedule properties along with consequential reliefs. Along with the suit, an application came to be filed under Order XXXIX Rules 1 & 2 r/w Section 151 CPC, for an order of Temporary Injunction restraining the defendants 1 to 3 from dealing with the application schedule properties by any mode of conveyance, in any manner, till disposal of the suit. Defendant no. 1 is the mother; Plaintiff, defendant no. 2 and defendant no. 3 are all the children of defendant no. 1. 3.2 Upon contest, the learned trial judge allowed the application filed by the plaintiff restraining the defendants from dealing with the application schedule properties in any manner, by any mode of conveyance, till disposal of the suit. It is this order of grant of injunction in favour of the plaintiff that is questioned by appellant/defendant no. 2 in this appeal. - 4 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 4. I have heard learned counsels for both the parties. (i) CONTENTIONS OF LEARNED COUNSEL FOR APPELLANT-DEFENDANT NO.2 5. It is the vehement contention of learned counsel - Sri B.M. Halaswamy for the appellant/defendant no. 2 that the trial Court has committed a serious error, illegality and perversity in allowing the application filed by the plaintiff and restraining the defendants from dealing with the application schedule properties. Learned counsel contends that the suit filed by the plaintiff itself is not maintainable, as the plaintiff has taken his share in the joint family properties by virtue of a family arrangement in an earlier partition dated 28.12.2004 and he could not have filed a suit for partition as no right or interest survives in his favour over the suit schedule properties. It is also contended that in view of suit for partition and separate possession in O.S. No. 47 of 1998 between the family members, which culminated in to RFA 362 of 2011, a - 5 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 subsequent suit for partition would not be maintainable. Learned counsel further contends that the said appeal was disposed of in view of the compromise entered into between the family members before the Lok Adalat in O.S. No. 219 of 2021. The plaintiff, who was a party in the RFA proceedings has not objected the compromise entered into by the family members and the appeal came to be disposed of based on the compromise petition. Therefore, the present suit filed for partition by the plaintiff against the defendants and so also an application filed under Order - XXXIX Rules 1 & 2 of CPC, is not sustainable. 5.1 Learned counsel further contends that the plaintiff has filed a suit for partition without challenging the registered partition deed dated 05.05.2011, the gift deed dated 05.05.2011 executed by his father in favour of defendant no. 1 - mother and the gift deed dated 07.09.2013 executed by defendant no. 1 in favour of defendant no. 3. Learned counsel contends that the plaintiff cannot maintain a suit for partition without - 6 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 seeking cancellation of the instrument or declaration in respect of the partition deed and the gift deeds mentioned herein above. 5.2 Learned counsel further contends that when the main suit itself is defective and not maintainable, the interlocutory application which is ancillary to the main relief would not be sustainable, and the interim order granted is perverse and arbitrary. 5.3 Learned counsel contends that the application which is allowed in favour of the plaintiff is devoid of merits and the trial Court has not gone into the essential requirements that are required to be considered while granting the relief of temporary injunction though the relevant aspects were brought to the notice of the Court. 5.4 Learned counsel for appellant/defendant No.2 contends that the suit is not sustainable for the reason that as per Section 14 of the Hindu Succession Act, the property becomes absolute property of the defendant - 7 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 No.1/mother and therefore the question of seeking partition or any share in the property by the respondent/plaintiff would not arise. 5.5 On these grounds, learned counsel seeks to allow the appeal by setting aside the impugned order. 5.6 In support of his contentions, learned counsel for appellant relies upon the following judgments: 1. Smt.Mallamma and others vs. Shri Mallegowda @Karigowda and Others (ILR 2022 KAR 992) 2. Suhrid Singh @ Sardool Singh vs. Randhir Singh and Ors - AIR 2010 SCC 2807: 2010 AIR SCW 3308. 3. Shakuntala and another vs. Smt. Vani (Unreported Judgment of Karnataka High Court in WP.No.201791/2023 dated 13th September 2024) (ii) CONTENTIONS OF LEARNED COUNSEL FOR RESPONDENT No.1/PLAINTIFF No.1 6. Per contra, learned counsel - Sri P.N. Harish for respondent No.1 vehemently contends that the suit is filed for partition by one of the sons against the mother and - 8 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 other two brothers. Several contentions are taken up in the plaint, including the execution of a gift deed, partition deed and the compromise decree, where the plaintiff was not made a party. Therefore, the plaintiff is not bound by any decree that would be passed where he is not a party to the proceedings and hence, there is no need or requirement for the plaintiff to seek cancellation of an instrument or a decree, where he has not been made a party as the same does not bind him in any manner whatsoever. Therefore, he has rightly filed a suit for partition which is maintainable. However, it is for the trial Court to decide whether the suit is maintainable or not at a later stage. But that will not preclude the trial Court in granting the interim relief as the Court while granting interim relief under Order XXXIX Rule 1 and 2 would have to only see the essential requirements as contemplated under Order XXXIX Rules 1 and 2 of CPC and not whether the suit would be maintainable or not. - 9 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 6.1 In support of his contentions, learned counsel for respondent No.1 relies upon the following judgments: 1. Hussain Ahmed Choudhury and Ors. Vs. Habibur Rahman (Dead) Through Lrs and Ors. - AIR Online 2025 SC 508 2. Shanti Devi(Since Deceased) through Lrs. Goran vs. Jagan Devi and Ors - AIR 2025 SCC 4342 3. State of Maharashtra .vs. Pravin Jethalal Kamdar (dead) by LRs - AIR 2000 SC 1099. 4. Ramakant Ambalal Choksi vs. Harish Ambalal Choksi & Others - Judgment of the Hon'ble Supreme Court in Civil Appeal No.13001/2024 decided on 22nd November 2024 (iii) CONTENTIONS OF LEARNED COUNSEL FOR RESPONDENT Nos.2 AND 3/PLAINTIFF Nos.2 AND 3 7. Learned counsel - Sri H. S. Prashant for respondent Nos. 2 and 3/defendant Nos.1 and 3 adopts the arguments put forth by learned counsel for the appellant/ defendant no. 2. He also contends that the plaintiff ought to have challenged the gift deed, if not the other document and the suit itself is not maintainable and - 10 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 so also the plaintiff would not be entitled for any interim relief. 8. I have given my thoughtful consideration to the arguments advanced by learned counsels for parties. (iv) POINT FOR CONSIDERATION 9. Having heard learned counsels on either side, the point that would arise for consideration in the present appeal is : "Whether the impugned order passed by learned trial Court calls for interference and if so, what order? " (v) CONSIDERATION 10. Apparently it is seen that the suit is filed by the plaintiff for the relief of partition seeking one-fourth share in the suit schedule properties. The relationship between the parties is not disputed, the execution of the documents is not disputed, so also the compromise petition having - 11 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 been filed and the compromise decree drawn by the Court is also not in dispute. Plaintiff agrees to the fact that a compromise decree was drawn by the Court, but, however according to the plaintiff, he was not a party to the said compromise decree and therefore, the same would not be binding upon the plaintiff. There are several pleas taken in the plaint and several defences taken in the written statement. Several contentions are taken up by both the parties. What is required to be considered by this Court is whether the impugned order passed by the trial Court under Order XXXIX Rules 1 and 2 of CPC requires to be modified, set aside or varied in the facts and circumstances of the present case. 11. It is relevant to see the three essential requirements while considering an application under Order XXXIX Rules 1 and 2 of CPC, which are the prima facie case, balance of convenience, and more hardship would be caused to which of the parties. It is also relevant to note here at this stage that the prima facie case need not be - 12 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 confused with prima facie title. This golden principle will have to be followed by the trial Court while deciding an application under Order XXXIX Rules 1 and 2 of CPC. It may be that the plaintiff may not succeed at a later point of time and the defendants may succeed in the later point of time. But what is required to be considered while deciding an application under Order XXXIX Rules 1 & 2 of CPC is a prima facie case and not prima facie title. The balance of convenience and the irreparable hardship will also have to be seen before passing an order on the said application. It is also relevant to state that the trial Court need not conduct a mini-trial while deciding the application under Order XXXIX Rules 1 and 2 of CPC. Apparently it is seen that it is a case of the plaintiff that though he was made a party in the original suit proceedings in O.S. No.219/2021, which culminated in a compromise decree, he was subsequently deleted and he was not a party to the compromise decree, which is the fact of the matter. Hence what matters consideration is whether the present - 13 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 suit filed by the plaintiff would be maintainable before the trial Court when he had not sought cancellation of the gift deed or for setting aside of the compromise decree, where the plaintiff was not a party. Admittedly, all these questions will have to be gone into by the trial Court in the course of trial. The fact remains that all the parties to the proceedings are related to each other as mother and children. No doubt, the gift deed was executed in favour of defendant No.1/mother by the plaintiff by releasing the property in question and a compromise is entered into by the defendant no.1/mother and the defendant no. 3 along with defendant no. 2 and in the said compromise, the defendant No.1/mother has agreed to execute a gift deed in favour of the appellant/defendant no. 2. 12. Be that as it may, the trial Court has considered the golden principle while considering the application for temporary injunction and has dealt with what is a prima facie case, the balance of convenience and more hardship would be caused to which of the parties. Ultimately, the - 14 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 impugned order is passed restraining the defendants from dealing with the application schedule properties in any manner, by any mode of conveyance till the disposal of the suit. This Court does not want to delve into further details of the matter as it would affect the parties in the trial. 13. In view of the above, this Court is of the opinion that the plaintiff has made out a prima facie and valid case in his favour. The balance of convenience, no doubt, certainly tilts in favour of the plaintiff. Irreparable injury and hardship will be caused more to the plaintiff in case of any encumbrance or alienation made by any of the defendants. Therefore, the trial Court has rightly appreciated all these material aspects and has come to the conclusion restraining the defendants from dealing with the application schedule properties. 14. Under the circumstances, this Court does not find any cogent reason to interfere as no perversity is - 15 - HC-KAR NC: 2026:KHC:31409 MFA No. 6762 of 2025 shown in the impugned order passed by the learned trial judge. 15. Accordingly, I pass the following: O R D ER i) The appeal is dismissed. ii) It is needless to mention at this stage that this Court has not expressed any opinion on the merits of the matter. iii) The observations made herein are solely for the purpose of deciding this application. iv) All contentions are kept open. v) The trial judge shall make an endeavour to dispose of the matter expeditiously. Sd/- (PRADEEP SINGH YERUR) JUDGE GSS List No.: 1 Sl No.: 41