9911796707
TMI Blog2022 (6) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... could purchase the suit properties. It is the clear case of the respondent that he was working as a Subedar in the Indian Army and till 2015, the appellant and the children were living with him. In this view, it may not be possible to hold at this stage that she had independent source of income. Moreover purchase of a property by husband in the name of the wife cannot be called a benami transaction and such type of transaction falls within the exception no. 3 to clause 'A' of sub-section 9 of section 2 of the Prohibition of Benami Property Transactions Act, 1988. In this view the respondent has made out a prima facie case that he has got the right to seek declaration of his title over the suit properties. The appellant has ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered as date of accrual of cause of action. The date of denial of the right of the plaintiff is what matters for reckoning the period of limitation and therefore the argument of the learned counsel cannot be accepted at this stage. The trial court may give a finding with regard to limitation if an issue is framed to that effect. - MFA No. 7012/2021 (CPC) - - - Dated:- 20-4-2022 - Sreenivas Harish Kumar, J. For the Appellant : K. Ravishankar, Advocate For the Respondents : K. Chandranath Ariga, Advocate JUDGMENT This appeal is filed by the defendant in O.S. No. 29/2021 on the file of Prl. Sr. Civil Judge, Puttur. The appellant has questioned the correctness of the order dated 18.11.2021 on I.A.2. 2. I.A.2 is an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has got every right to dispose of the properties for the benefit of the family. 4. Heard the arguments of Sri. K. Ravishankar, learned counsel for the appellant and Sri. Chandranath Ariga, learned counsel for the respondent. 5. Sri. K. Ravishankar argued that the trial court should not have granted an order of temporary injunction when apparently the suit appears to be highly time barred. He referred to para 14 of the plaint and submitted that therein it is clearly written that the cause of action of the suit arose on 18.6.2012, again on 24.11.2017 and then on 1.6.2021. Once the cause of action arises, it begins to run and it never stops. Therefore from 18.6.2012, the suit should have been filed within three years according to Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dates of execution of the sale deeds. The suit is not time barred. 6.1. His next point of argument was that till the year 2015, the respondent, the appellant and their children were all living together. Respondent was a personnel in the Indian Army and he used to take his family with him wherever he was being posted. In the year 2015, the respondent was posted to a place in Nagaland state. There he was not provided with a residential quarters and for this reason, and also for safety and security reasons, he did not take his family to Nagaland and therefore, rented a house at Puttur for their living. The respondent gave his ATM card to the appellant for withdrawing money every month for house hold expenses. The respondent misused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be decided after recording evidence. It is further held that the documents produced by the respondent show that the sale consideration amount was mobilized by him to purchase 'A' and 'B' schedule properties and that the appellant has not produced any document to show her independent source of income. In this view the respondent has been able to make out a prima facie case in his favour. He has also shown existence of balance of convenience in his favour and if interim order of temporary injunction is not granted, the interest of the respondent would be affected in the sense that if the schedule properties are alienated by the appellant, it would lead to multiplicity of proceedings. 9. If the findings of the trial cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this has necessitated the alienation, but this reason cannot be considered to hold that she has every right to alienate the property, especially in a circumstance where she has not produced any material to show that the suit properties can be considered as her absolute properties. Section 14 of the Hindu Succession Act does not apply to the present circumstance. In this view if the alienation takes place, certainly the respondent's interest would be affected. Circumstances indicate the balance of convenience being in favour of the respondent. The principle laid in the case of R. Dilip Kumar Vs. Ramu is actually not helpful to the appellant. The principle that no order of injunction can be issued if the plaintiff's case is doubtful, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
