Dismissed

Smt G Vijayakumari v. Sri G Srinivas

Karnataka HC18 Apr 2022RP/65/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a review petition challenging a preliminary decree on property shares. The court held that changes in law or Supreme Court decisions do not constitute grounds for review under Order 47 Rule 1 CPC when no error appears on record.

What did the court decide?

Review petition and application for condonation of delay dismissed; preliminary decree remains unchanged.

Smt G Vijayakumari Vs Sri G Srinivas — Succession and Inheritance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF APRIL, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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REVIEW PETITION NO.65/2021 IN R.F.A.NO.557/2013

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BETWEEN

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SMT G VIJAYAKUMARI W/O V SRINIVAS D/O LATE C GANGUDAIAH AGE: 47 YEARS R/AT NO.509 15^TH ‘A’ MAIN 1^ST BLOCK, BASAVESHWARANAGAR 3^RD STAGE, BANGALORE-560079

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...PETITIONER

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(BY SRI B O CHANDRA SHEKAR, ADVOCATE)

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AND

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1 . SRI G SRINIVAS S/O LATE C GANGUDAIAH AGE: 47 YEARS R/AT NO.35/1-1, 6^TH CROSS (KRISHNAPPA COMPOUND) AVALAHALLI OPPOSITE TO ST.LAWRENCE SCHOOL BANGALORE-560029

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2 . SRI UMASHANKAR S/O LATE C GANGUDAIAH

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AGE: 61 YEARS

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3 . SRI GANGADHAR S/O LATE C GANGUDAIAH AGE: 50 YEARS

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4 . SRI SHIVASHANKAR S/O LATE C GANGUDAIAH AGE: 50 YEARS

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5 . SMT. SOUBHAGYA D/O LATE C GANGUDAIAH AGE: 60 YEARS RESPONDENTS 2 TO 6 ARE R/AT NO.650, NEAR SWAYAMPRABHA KALYANA MANTAPA 6^TH MAIN ROAD, MEENAKSHI NAGAR KAMAKSHIPALYA, BANGLAORE-560079

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6 . SMT. KOUSALYA D/O LATE C GANGUDAIAH AGE: 57 YEARS R/AT NO.14, 3^RD CROSS SUDHARSHAN LAYOUT, GATTIGERE RAJARAJESHWARI NAGAR BANGALORE-560026

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… RESPONDENTS

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(BY SRI PRADEEP NAIK K, ADVOCATE FOR R1; SRI B.C. SRIRAMA REDDY, ADVOCATE FOR R4; R2 AND R3 ARE SERVED; NOTICE TO R5 AND R6 IS DISPENSED WITH V/O DT.08.03.2021)

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THIS REVIEW PETITION IS FILED UNDER SECTION 114 R/W ORDER 47 RULE 1 OF CPC, PRAYING TO REVIEW THE JUDGMENT AND PRELIMINARY DECREE DATED 02/12/2019

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PASSED IN RFA NO. 557/2013 AND MAY BE PLEASED TO ALLOT 1/6^TH SHARE IN THE SUIT SCHEDULE PROPERTY TO THE PETITIONER AND ETC.

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THIS REVIEW PETITION COMING ON FOR orders THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Heard the learned counsel appearing for the petitioner

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and the learned counsel appearing for the respondents.

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The present review petition is filed praying this Court to review the judgment and preliminary decree dated 02.12.2019 passed in R.F.A.No.557/2013 and may be pleased to allot 1/6^th share in the suit schedule property to the petitioner.

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The very contention of the learned counsel for

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the petitioner before this Court is that as on the date of filing the affidavit of the petitioner before this Court on 02.12.2019, the principle of law relating to the share of daughters in the co-parcenary property was notional

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partition and hence, in pursuant to the preliminary decree dated 02.12.2019 passed by this Court so far final decree proceedings has not been initiated by the petitioner. However, the final decree proceedings in FDP No.176/2013 pursuant to the judgment and decree passed by the Trial Court in O.S.No.6869/2006 is pending. The counsel also would submit that after passing the judgment and preliminary decree by this Court in R.F.A.No.557/2013, there is change in the position of law in view of the judgment passed by the Apex Court on 11.08.2020 in the case of Vineeta Sharma VS Rakesh Sharma and others reported in 2020(2) KAR L.R 161 (SC). In view of the principles laid down in the judgment referred supra, the elder brother of the petitioner viz., Umashankar i.e., defendant No.2 before the Trial Court and respondent No.3 in the present appeal has executed a registered release deed dated 04.11.1989 by accepting the cash consideration towards his share in the suit schedule property. Presently,

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the petitioner is entitled for 1/6^th share in the suit schedule

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property. Hence, order may be reviewed.

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The learned counsel for the respondents would submit that any change of law in terms of explanation to Order 47 and the same cannot be a ground to review the judgment. The learned counsel would submit that the parties have filed the affidavits and in view of the submissions and the respective affidavits filed by the parties, the judgment and decree of the Trial Court is modified by allowing the appeal and the case of the petitioner is also even worst since the affidavits were filed and based on the said affidavits only, the order has been passed.

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5. Having heard the respective counsel appearing

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for the parties and also on perusal of the material available on record, it discloses that there is no error apparent on record in order to review the judgment of this Court and

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apart from that the main contention of the petitioner’s counsel is that earlier, the parties were entitled for notional partition and subsequently the change in the position of law in view of the decision in Vineeta Sharma’s case, the petitioner is entitled for 1/6^th share. The said contention also cannot be accepted for the reason that in explanation to Order 47 –application for review of judgment. It is very clear that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.

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In view of the explanation to Order 47, I do not

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find any ground to exercise the review jurisdiction to the order passed by this Court on 02.12.2019. It is also important to note that the order was passed based on the affidavits filed by the respective parties in R.F.A.No.557/2013 and the same was allowed and now this

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Court cannot review the order passed by this Court. Hence, I do not find any grounds to review of the order passed by this Court and hence, the review petition is dismissed.

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In view of dismissal of the main review petition, I.A.No.1/2021 for condonation of delay of 83 days in filing the review petition is also dismissed.

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Sd/JUDGE

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Smt G Vijayakumari v. Sri G Srinivas

Case brief

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Smt G Vijayakumari v. Sri G Srinivas

Case brief

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