M. PUSHPAVATHI Vs. H. MUNIKRISHNAPPA

JUDGEMENT

(1.) The present Miscellaneous First Appeal is preferred by the plaintiff calling in question the correctness of the common order dtd. 14/2/2024 passed on I.A.No.1 under Order XXXIX Rules 1 and 2 of the CPC filed by the plaintiff and I.A under Order XXXIX Rule 4 CPC filed by defendant Nos.3 to 6 in O.S.No.253/2022 on the file of the VII Additional Senior Civil Judge and J.M.F.C., Bengaluru Rural District (for short 'the trial Court'), wherein the application filed by the plaintiff for grant of temporary injunction came to be dismissed and the application filed by defendant Nos.3 to 5 for vacating the interim order came to be allowed.

(2.) The plaintiff instituted a suit in O.S.No.253/2022 seeking partition and separate possession of the suit schedule properties contending that the same was a joint family ancestral properties originally belonging to the late Hosalappa. It is the case of the plaintiff that being the daughter of late H.Munikrishnappa, she is a coparcener entitled to an equal share in the suit schedule properties. It is further contended that the release deed dtd. 14/5/2015 said to have been executed by her was obtained fraudulently when she was under severe depression and without understanding the contents of the document. It is stated that the defendants have entered into a joint development agreement with respondent No.6 and are attempting to alienate the properties as well as the land acquisition compensation thereby affecting her lawful share. An application i.e., I.A.No.1 was filed under Order XXXIX Rules 1 and 2 seeking to restrain the defendants from alienating the suit schedule properties. Initially an ex-parte interim injunction was granted which was subsequently vacated by the impugned order.

(3.) Learned counsel for the appellant would contend that the trial Court has failed to appreciate that the appellant is a coparcener by birth under Sec. 6 of the Hindu Succession (Amendment) Act, 2005. That the release deed dtd. 14/5/2015 is vitiated by fraud, misrepresentation and lack of free consent, as the appellant was under the mental incapacity and medication at that relevant point of time. It is submitted that the circumstances surrounding the execution of the release deed and the joint development agreement clearly indicate dishonest intention and collusion between the plaintiff and defendant Nos.3 to 6. It is further contended that the appellant was not a party to the joint development agreement and no consideration was paid to her thereby excluding her share unlawfully. It is contended that the defendants are attempting to create third party rights and appropriate compensation, which would cause irreparable injury to the appellant and that the trial Court has failed to consider that there existence of a prima-facie case, balance of convenience and irreparable injury, and erroneously vacated the interim injunction.