The court upheld the trial court's order for a temporary injunction, emphasizing that issues of joint family property versus self-acquisition necessitate thorough examination during trial.

JUDGMENT :

H.P. SANDESH, J.

Heard the learned counsel appearing for the appellants and the respondents.

2. This Miscellaneous First Appeal is filed against the order passed by the Trial Court in allowing I.A.No.9 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC, wherein the prayer is sought by the plaintiffs to restrain the defendants or any body claiming under them from alienating item Nos.1 to 18 and 21 of the suit schedule properties in any manner, till disposal of the suit.

3. The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of partition, it is contended that one Hanumegowda is the propositus of the family having three children namely, S.H.Javarappagowda, S.H.Ramegowda and S.H.Lakshmanagowda. Defendant Nos.2 to 5 are the children of S.H.Javarappagowda, plaintiff No.1 is the wife and plaintiff Nos.2 to 4 are the children of S.H.Lakshmanangowda. Plaintiffs and defendants are members of Hindu joint family, and suit properties are their joint family properties and there was no any partition. It is contended that S.H.Javarappagowda being the manager of the family purchased some of the properties for the benefit of the joint family in his name and some of the properties were acquired in the name of defendant No.1 from the income derived out of the joint family. The father of plaintiff Nos.2 to 4 and the father of defendant Nos.2 to 5 were worked together at Bombay and plaintiff No.2 also worked with them in the interest of the family. The father of defendant Nos.2 to 5 being the manager of the family managed the suit properties till his death, and now the defendants are mismanaging the family affairs and misusing the income derived from the suit properties. The plaintiffs do not have any confidence over the defendants and claimed 1/3rd share in the suit schedule properties on the ground that there was no any partition. It is also contended that the defendants are changing the khatha of item Nos.1 to 18 and 21 of the suit properties and made preparation to alienate the same only with an intention to deprive plaintiffs' share. Hence, they have filed I.A.No.9 praying the Court to restrain the defendants from alienating the suit schedule properties.

4. The defendant No.3 filed objections to the said application and the same was adopted by defendant No.1. It is contended that the application is not maintainable and the same is filed after lapse of 8 years that too in a belated stage. The description of the properties given in the application does not tally with the schedule. The plaintiffs neither filed any documents nor filed affidavit of third persons in support of their application and have not given any documents to show that the father of the plaintiffs and defendants' father were working together at Bombay and out of said income, properties are purchased. The very case of the plaintiffs is doubtful and dispute discretionary power cannot be exercised in their favour.

5. The Trial Court, having taken note of the contentions of the plaintiffs and defendants formulated the points regarding granting the relief of temporary injunction and having taken note of paragraph No.11, comes to the conclusion that there is no partition between the parties. It is the specific case of the plaintiffs that S.H.Javarappagowda being the manager of the joint family has purchased the properties in his name or in the name of defendant No.2 by utilizing the joint family income and also the contention of the defendants that the suit schedule properties are self-acquired properties of defendants' father. Hence, the Trial Court comes to the conclusion that whether the joint family properties are self-acquired properties or whether properties are purchased out of joint family nucleus, it requires a trial at this stage and Court cannot comes to the conclusion that whether it is a self-acquired property or joint family property. In the absence of any materials before the Court and when the parties a