KSHAMA S UDUPA Vs. SUKUMAR KODGI

JUDGEMENT

(1.) This appeal is by the plaintiff in a suit for partition and other consequential relief/s in O.S. No. 5/2018 on the file of the Senior Civil Judge, Kundapura (for short, the 'Trial Court'). The appellant's application under Order XXXIX Rule 1 and 2 (IA No. 2) for temporary injunction restraining the respondent Nos. 1, 2, 5, 8 and 9 from selling or mortgaging or otherwise transferring or alienating the different immovable properties described in the Schedule A and C of the plaint, and the assets of a cashew business under the name and style, "M/s Mithra Cashew Industries" described in Schedule B of the plaint, is rejected by the Trial Court by the impugned order dated 28.4.2018.

(2.) The appellant is the daughter of respondent No. 4. The respondents 1 and 2 are her brothers, and respondent No. 3 is her sister. The respondent No.5 is the son of respondent No.1. The respondent Nos. 6 and 7 are purchasers of certain properties described in the plaint schedule A under the sale deeds dated 03.05.2011 and 03.06.2011. The respondent Nos. 8 and 9 are the banks that have lent financial assistance to the respondent No. 1 as against the mortgage of land in Sy No. 65/7B - presently Sy No. 65/20 of Amasebail Village (one immovable properties described in the plaint schedule A), and the assets of the firm, M/s Mithra Cashew Industries. The respondent No.10 is a firm represented by its partners, who are respondents 11 and12.

(3.) The appellant filed the suit in O.S. No. 5/2018 arraying these respondents as defendants contending that the immovable properties described in the plaint schedule A, and the business described in schedule B of the plaint, are joint family properties of the appellant and respondents 1 to 4. The plaint schedule A properties were allotted to the branch of the respondent no.4, comprising of himself, the appellant and the respondent Nos. 1 to 3 in the partition as per the Partition Deed dated 01.10.1965. The business described in plaint schedule B is a family business. This business was commenced in the year 1995 by a firm constituted vide Partnership deed dated 02.01.1995 which was later reconstituted as per the Reconstitution deed dated 01.03.1995. The immovable properties described in the schedule C of the plaint are purchased from out of the income from joint family property/ business. There has been no partition of these properties amongst the appellant and respondents 1 to 4. The respondent No.1 is looking after the business only after the demise of the mother. But, mother was managing this business until her demise in the year 2008. The appellant is entitled for 1/5th share in all the properties described in schedule A, B and C of the plaint.