SMT VIDYA vs SMT VIJAYALAKSHMI B L
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:48427
MFA No. 2294 of 2025
CNR: KAHC010205942025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 7 DAY OF SEPTEMBER, 2026
]
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 2294 OF 2025 (CPC)
BETWEEN:
1. SMT.VIDYA
W/O LATE H.DASEGOWDA
AGED ABOUT 69 YEARS
R/ AT NO.82, 2ND CROSS
3RD MAIN ROAD, BHCS LAYOUT
BTM 2ND STAGE
BENGALURU -560 076
2.
SMT.CHAITRA DASEGOWDA
D/O LATE. H, DASEGOWDA
W/O B.K.SHUVAKUMAR
AGED ABOUT 42 YEARS
R/ AT NO.82, 2ND CROSS
3RD MAIN ROAD, BHCS LAYOUT
BTM 2ND STAGE
BENGALURU -560 076.
…APPELLANTS
(BY SMT.RASHMI GEORGE.,ADVOCATE)
Digitally
signed by
VINUTHA M
Location:
HIGH
COURT OF
KARNATAKA
AND:
1. SMT VIJAYALAKSHMI B L
WIFE OF LATE RAGHAVENDRA SWAMY
AGED ABOUT 55 YEARS
R/ AT NO.48/16/1
7TH B MAIN, 4TH BLOCK
JAYANAGARA
BENGALURU -560 011.
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HC-KAR
NC: 2026:KHC:48427
MFA No. 2294 of 2025
CNR: KAHC010205942025
2. SRI. CHIRANJEEVI DASEGOWDA
S/O LATE. H, DASEGOWDA
AGED ABOUT 38 YEARS
R/AT NO.82, 2ND CROSS
3RD MAIN ROAD, BHCS LAYOUT
BTM 2ND STAGE
BENGALURU -560 076.
…RESPONDENTS
(BY SRI. NATARAJA H C.,ADVOCATE FOR R-1;
NOTICE TO R-2 SERVED & UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER.43 RULE 1(r) OF
THE CPC, AGAINST THE ORDER DT.01.10.2024 PASSED
ON IA NO.1 AND IA NO.2 IN O.S.NO.4992/2024 ON THE
FILE OF THE III ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU, (CCH-25), ALLOWING IA NO.1 FILED
U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC, DISMISSING
IA NO.2 FILED U/O.39 RULE 4 R/W SEC.151 OF CPC.
THIS APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
ORAL JUDGMENT
This appeal is preferred by the appellants, who are
defendant nos.1 and 3 before trial Court in O.S.
No.4992/2024. Respondent no. 1 is the plaintiff and
Respondent No.2 is defendant no. 2 before the trial Court.
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MFA No. 2294 of 2025
CNR: KAHC010205942025
2. Parties to the proceedings shall be referred to as
per their ranking before the trial Court.
(i) Brief facts of the case
3. The original suit came to be filed by the plaintiff
for the relief of declaration to declare the gift deed dated
5.3.2020 and so also the rectification of the gift deed
dated 5.4.2022, executed by defendant no.1 in favour of
defendant nos.2 and 3 as null and void. Alongwith the
plaint, an application came to be filed seeking an order of
temporary injunction restraining the defendants from
letting out either by creating tenancy rights or entering
into any kind of agreement with any third parties with
respect to the suit schedule 'B' schedule property, during
the pendency of the suit.
4. The defendants contested the matter and filed
objections. The trial Court considering the application and
the objections filed by the defendants, by the impugned
order dated 1.10.2024 allowed the application - I.A. No.1
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MFA No. 2294 of 2025
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restraining the defendants from creating tenancy rights,
entering into any kind of agreement with any third parties
with respect to suit schedule 'B' property. It is this order
that is challenged by the appellants in this appeal.
(ii) Contentions of learned counsel for
appellants/defendants
5. It is the vehement contention of learned counsel -
Smt. Rashmi George for appellants/defendants that the
impugned order passed by the trial Court is illegal,
perverse and arbitrary and suffers for want of proper and
convincing reasons and therefore, the same deserves to
be set aside. It is also contended that the impugned order
is against the principles of natural justice and liable to be
set aside. It is also contended that the trial Court has not
taken into consideration the materials placed on record by
the defendants in the proper perspective. In fact, the trial
Court failed to take into consideration that the appellant
no.1 is the class-1 legal heir of deceased Ramaiah and
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MFA No. 2294 of 2025
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that the deceased Ramaiah had bequeathed 'B' schedule
property in favour of the 1st appellant by way of a
registered Will and she is the absolute owner in peaceful
possession and enjoyment of 'B' schedule property and the
respondent/plaintiff has no right, title and interest over
the 'B' schedule property.
5.1 It is also contended that the first appellant being
the absolute owner is paying the taxes in respect of 'B'
schedule property and she has invested huge amount for
renovation of the schedule property and due to her old
age, she executed gift deed in favour of her both children
i.e., defendant nos.2 and 3 with an intention not to create
any future disputes among the children and she has no
intention to sell or alienate or create any third party
interest over the schedule 'B' property. It is also
contended that these aspects have been ignored by the
learned trial judge while passing the impugned order and
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MFA No. 2294 of 2025
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has mechanically passed the impugned order restraining
the defendants from creating tenancy rights.
5.2 Learned counsel further contends that the
appellant no.1 is a widow and she has no source of
income and the tenancy would be the only source of
income for her survival and existence. Moreover,
defendant nos.2 and 3 are her children and she has
executed a gift deed in their favour and they would enjoy
the property alongwith her during their lifetime in
accordance to the terms of the Will and would not alienate
the property or create conveyance in favour of any 3rd
party, in pursuance of the gift deed.
5.3 Learned counsel further contends that appellants
may be permitted to continue to reside in the suit
schedule 'B' property during their lifetime and they may
also be permitted to let out the property to get some
income for their sustenance and appellants would
undertake that they would not alienate the property or
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MFA No. 2294 of 2025
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create conveyance in favour of any 3rd party in pursuance
of the gift deed.
5.4 . In view of the above, learned counsel seeks
modification of the impugned order to the extent of
permitting the appellants to enjoy the suit 'B' schedule
property in accordance to the terms of the Will and also to
permit the appellants to let out the suit 'B' schedule
property to a lawful tenant, who does not carry any illegal
or immoral activities and secure rent etc., from him.
5.5 On these grounds, learned counsel seeks to
modify the impugned order.
(iii) Contentions of learned counsel for
respondent no.1/plaintiff
6. Per contra, learned counsel appearing for the
respondent no.1/plaintiff vehemently contends that the
property originally belonged to late Ramaiah, who had
bequeathed the 'B' schedule property to defendant no. 1 in
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terms of the Will with a specific clause not to alienate or
create any third party interest over the 'B' schedule
property including in favour of her children i.e. defendant
nos.2 and 3. However, the first defendant has gifted the
property in the name of her children i.e., defendant nos.2
and 3. The said gift also is contrary to the Will executed by
late Ramaiah in favour of defendant no. 1. By virtue of
this gift deed, defendant nos. 2 and 3 may alienate and
create third party rights, which runs contrary to the
covenants in the Will made by late Ramaiah.
6.1 Learned counsel further contends that
respondent no.1/plaintiff would not have any objection in
the first defendant enjoying the 'B' schedule property
herself or for that matter letting out the property and
securing rents from a tenant, who does not carry out any
illegal or immoral activities in the schedule property, but
the 2nd and 3rd defendants shall not alienate or create
3rd party interest over the 'B' schedule property by way of
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MFA No. 2294 of 2025
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conveyance to any third party. If such condition is
imposed, respondent no.1/plaintiff has no objection in
defendants letting out the property and enjoying its
benefits such as rent etc.,
7. Respondent No.2 has remained absent despite
service of notice.
(iv) Point for consideration
8. Having given my thoughtful consideration to the
arguments advanced by learned counsel for appellants as
well as learned counsel for the respondent no. 1, the
points that would arise for consideration are:
1) Whether the impugned order passed by the trial
Court deserves interference ?
2) If so, what order?
(iv) Consideration
9. The relationship between the parties in the suit
proceedings is not in dispute. It is also not in dispute that
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one Mr. Ramaiah had acquired the immovable properties
mentioned in the suit schedule. In order to avoid any
differences of opinion between the parties and
unnecessary litigation, during his lifetime he executed a
registered Will dated 18.05.2000 bequeathing certain
portions of the property to his children. By virtue of the
said Will, defendant no. 1 was given by way of bequest the
'B' schedule property and she was permitted to enjoy the
property, however a condition was imposed that
defendants shall not alienate the said property to any 3rd
party. The children of the appellant no. 1/defendant no.1
were also permitted to enjoy the property and its
usufructs, but were also not permitted to alienate the
property. However, in pursuance to the bequest so made
in favour of the defendant no. 1 - Smt. Vidya, she gifted
the property in favour of her children vide the gift deed
dated 5.3.2020 and a rectification of gift deed dated
05.04.2022. The gift deed and the rectification deed are
subject matter of challenge in the original suit
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proceedings, which will have to be decided in the due
course of trial. time. By virtue of the impugned order, the
trial Court has restrained the defendants from creating
tenancy rights, entering into any kind of agreement with
any 3rd party with respect to 'B' schedule property.
10. It is not in dispute that by virtue of the Will given
to defendant no. 1, she was permitted to enjoy and live in
the suit schedule property, so also her children. What was
restricted was alienation from the defendants to any third
party as the Will itself contained a clause that if property is
to be alienated, it has to be given to Raghavendra Swamy,
who is the brother of defendant no. 1. There is no bar for
the appellants and the children to enjoy the 'B' schedule
property including the rent from the said property.
Therefore, if the Will was made for the appellant
no.1/defendant no.1 and her children to enjoy the
property, it would also mean the usufructs, the benefits
arising out of the property by virtue of the tenancy,
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MFA No. 2294 of 2025
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however the defendants shall not alienate the suit
schedule 'B' property. Therefore, the impugned order
passed by the trial Court calls for interference to a limited
extent.
11. Accordingly, I pass the following:
O R D E R
1) The appeal stands allowed in part .
2) The impugned order dated 1.10.2024 passed in O.S.
No. 4992/2024 by the III Addl. City Civil & Sessions
Judge, Bengaluru, stands modified .
3) The defendants shall not alienate the suit 'B'
schedule property to any third party by way of
conveyance. However, defendants are entitled to
enjoy the suit 'B' schedule property in the manner
known to law, including letting out the said property
to a tenant, who shall not carry out any illegal or
immoral activities in the said property. The
defendants are entitled to enjoy the benefits arising
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out of the 'B' schedule property such as rent etc., by
virtue of tenancy.
4) It is made clear this Court has not expressed any
opinion with regard to the merits of the matter
including the gift deed and the rectification deed.
5) All contentions of the parties are kept open to be
urged before the trial Court.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
GSS
List No.: 1 Sl No.: 28