Allowed

Smt. Rukmini v. Sharada

Karnataka HC18 Jan 2021WP/9454/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed an order dismissing an appeal on the ground of non-maintainability. The Court held that an order under Section 3 of the Partition Act, 1893 should be treated as a deemed decree under Section 8 for appeal purposes if it has all trappings of Section 3, remanding the matter for fresh consideration.

What did the court decide?

The writ petition succeeds; the impugned order is set aside; the appeal is restored to the court below for consideration afresh.

Smt. Rukmini Vs Sharada — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 18^TH DAY OF JANUARY, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

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WRIT PETITION NO.9454 OF 2020(GM-CPC)

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BETWEEN:

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SMT. RUKMINI, W/O LATE K NARAYANA DEVADIGA, AGED 98 YEARS, REP BY HER POWER OF ATTORNEY, HOLDER SON BHAVANI SHANKAR, R/AT D.NO.1-110, NISARGA, GORIDUDDE, JEPPINAMOGARU VILLAGE, MANGALORE-575 002. BENEFIT OF SENIOR CITIZEN NOT CLAIMED.

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BHAVANI SHANKAR, S/O LATE NARAYANA DEVADIGA, AGED ABOUT 71 YEARS, R/AT GORIGUDDE, JEPPINAMOGARU VILLAGE, MANGALORE-575 002.

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...PETITIONERS

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(BY SRI.SAMPATH ANAND SHETTY, ADVOCATE)

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AND:

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SHARADA, MAJOR, HUSBAND NOT KNOWN, R/AT MOODUMANE, KALLOI, MALAVUR VILLAGE, KENJAR POST, MANGALORE-574 142.

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RAVINDRA, MAJOR, S/O SHARADA, R/AT MOODUMANE, KALLOI, MALAVUR VILLAGE, KENJAR POST, MANGALORE-574 142.

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VASANTHI, MAJOR, D/O SHARADA, R/AT MOODUMANE, KALLOI, MALAVUR VILLAGE, KENJAR POST, MANGALORE-574 142.

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SUJATHA @ SUNANDA, MAJOR, D/O SHARADA, R/AT MOODUMANE, KALLOI, MALAVUR VILLAGE, KENJAR POST, MANGALORE-574 142.

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RAGHAVENDRA, MAJOR, S/O SHARADA, R/AT MOODUMANE, KALLOI, MALAVUR VILLAGE, KENJAR POST, MANGALORE-574 142.

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SHSHIKALA, MAJOR, D/O SHARADA, R/AT MOODUMANE, KALLOI, MALAVUR VILLAGE, KENJAR POST, MANGALORE-574 142.

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RAJENDRA KUMAR, MAJOR, S/O SHARADA, R/AT MOODUMANE, KALLOI, MALAVUR VILLAGE, KENJAR POST, MANGALORE-574 142.

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SHALINI, MAJOR, D/O SHARADA, R/AT MOODUMANE, KALLOI, MALAVUR VILLAGE, KENJAR POST, MANGALORE-574 142.

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SAROJINI, MAJOR, W/O GANGADHARA R/AT 45 BUILDING, ROOM NO.2226, MAHARASHTRA HOUSING BUILDING, BANDRA (EAST), MUMBAI-400 051.

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SMT.SUREKHA, MAJOR, W/O VISHWANATHA, R/AT ANANDA NIVAS, KANDEVU, CHELIYARU POST, SURATHKAL-575 014.

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SURAJ, MAJOR, S/O CHANDRASHEKARA, R/AT D.NO.26-1-102, PALLA HOUSE, GORIGUDDA, KANKANADY POST, MANGALORE-575 002.

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SUMITHRA @ SUNEETHA, MAJOR, D/O CHANDRASHEKARA, R/AT D.NO.26-1-102, PALLA HOUSE, GORIGUDDA, KANKANADY POST, MANGALORE-575 002. 13. ANITHA PRIYA, MAJOR, FATHER NAME NOT KNOWN, R/AT 4129/A, 11^TH BLOCK, JANAPRIYA TOWNSHIP, MAGADI MAIN ROAD, KADAMBAGERE, BANGALORE-562 130.

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AJAY KUMAR, S/O BHASKAR MOILY, R/AT B-1-2, NEW GAYATHRI CO OPERATIVE HOUSING BUILDING, BANDRA (EAST), MUMBAI-400 051.

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KIRAN, MAJOR, S/O LATE PADAMANABHA, R/AT SRI KIRAN, GANESHPURA SITE NO.87, 3^RD BLOCK KRISHNAPURA, KATIPALLA, MANGALORE-575 030.

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SUNANDA, MAJOR, W/O LATE GANGADHARA, R/AT APPI HOUSE, MEENAKALIYA, BAIKAMPADY, PANAMBUR POST, MANGALORE-575 010.

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DHAMODHARA, MAJOR, S/O LATE MUTHU, R/AT NEAR BANDASHALE, KEMUNDALE POST, YELLUR VILLAGE, UDUPI TALUK-574113.

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SMT.VASANTHI, MAJOR, W/O LATE K RAMA, R/AT DALADI HOSAMANE, YEDTHADY VILLAGE AND POST, VIA SAIBARIKATTE, UDUPI-576 214.

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SRI.PURUSHOTHAMA, MAJOR, S/O LATE K RAMA, R/AT DALADI HOSAMANE, YEDTHADY VILLAGE AND POST, VIA SAIBARIKATTE, UDUPI-576 214.

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SRI.UMESH, MAJOR, S/O LATE K RAMA, R/AT DALADI HOSAMANE, YEDTHADY VILLAGE AND POST, VIA SAIBARIKATTE, UDUPI-576 214.

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KRISHNA, MAJOR, S/O LATE K RAMA, R/AT DALADI HOSAMANE, YEDTHADY VILLAGE AND POST, VIA SAIBARIKATTE, UDUPI-576 214.

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THARA, MAJOR, D/O LATE K RAMA, R/AT DALADI HOSAMANE, YEDTHADY VILLAGE AND POST, VIA SAIBARIKATTE, UDUPI-576 214.

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SUDHAKAR, MAJOR, S/O LATE DEVAKI, R/AT SRI MANJU, 2^ND MAIN, VIJAY NAGAR, MYSORE-570 017.

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ROHINI, MAJOR, D/O LATE DEVAKI, R/AT SRI NIVAS, KOPPALA KADU, YEYYADI, KONCHADY, MANGALORE-575 008.

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SUMATHI ANANDA, MAJOR, W/O ANANDA, R/AT D.NO.1-110, NISARGA, GORIGUDDE, JEPPINAMOGARU VILLAGE, MANGALORE-575 002.

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JAYARAM K, MAJOR, FATHER NAME NOT KNOWN, R/AT NO D.NO.1-110, NISARGA GORIGUDDE, JEPPINAMOGARU VILLAGE, MANGALORE-575 002.

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SHAMBHAVI, MAJOR, W/O RAMACHANDRA S DEVADIGA, R/AT NO D.NO.1-110, NISARGA GORIGUDDE, JEPPINAMOGARU VILLAGE, MANGALORE-575 002.

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PREMASHEKARA, MAJOR, FATHER NAME NOT KNOWN, R/AT NO D.NO.1-110, NISARGA GORIGUDDE, JEPPINAMOGARU VILLAGE, MANGALORE-575 002.

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SHOBA @ CHANDRAKALA, MAJOR, FATHER NAME NOT KNOWN, R/AT NO D.NO.1-110, NISARGA GORIGUDDE, JEPPINAMOGARU VILLAGE, MANGALORE-575 002.

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… RESPONDENTS

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(BY SRI.RAVISHANKAR SHASTRY, ADV FOR R2,R3,R4,R6&R7; SRI. ASHOK MESTA, ADVOCATE FOR R15,R16 & R17; R2,R8,R11,R12,R18,R23,R24,R26,R27,R28,R29)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 20.01.2020 PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU IN R.A.NO.260/2019, VIDE ANNEXURE-A, WHEREBY THE LEARNED JUDGE ILLEGALLY AND UNJUSTIFIABLY CONCLUDED THAT THE APPEAL PREFERRED BY THE PETITIONERS IN R.A.NO.260/2019 AS AGAINST THE ORDER OF THE EXECUTING COURT DATED 07.12.2019 PASSED IN FDP.NO.62/1990 IS NOT MAINTAINABLE AND ETC.,

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THIS PETITION COMING ON FOR ORDERS THIS DAY THROUGH PHYSICAL HEARING, THE COURT MADE THE FOLLOWING:-

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ORDER

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Petitioners being the appellants in R.A.No.260/2019 arising from the order which purporting to have been made under the provisions of Section 3 of the Partition Act, 1893 are invoking the writ jurisdiction of this Court for assailing the order dated 20.01.2020 a copy whereof is at AnnexureA whereby the learned II Additional Sr. Civil Judge, Mangaluru, having held the appeal as not maintainable has dismissed it.

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After service of notice, the contesting

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respondents have entered appearance through their counsel and resist the writ petition making submission in justification of the impugned order and the grounds on which it has been structured.

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Having heard the learned counsel for the

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parties and having perused the petition papers this Court is inclined to grant indulgence in the matter inasmuch as, an application under the 1893 Act is not a pre-condition for treating an order of the kind as a deemed decree under Section 8 of the said Act if the said order has all the trappings of the one made under Section 3; this aspect of the matter having not been properly addressed by the

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learned judge of the Court below, the impugned order is vulnerable for challenge.

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In the above circumstances, this writ petition succeeds; impugned order is set at naught; the appeal is restored to the Board of the learned judge of the Court below for consideration afresh on merits, keeping open all contentions of the parties by treating the order in appeal as deemed decree.

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Since the appeal proceedings are relatable a partition suit of the year 1975, learned judge of the Court below is requested to hear & dispose of the same on or before the onset of Summer Vacation – 2021, and report compliance

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to the Registrar General of this Court.

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No costs.

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Sd/JUDGE

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Bsv

Smt. Rukmini v. Sharada

Case brief

What is this about?

What did the court decide?

Smt. Rukmini v. Sharada

Case brief

What is this about?

What did the court decide?

What the court decided

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