Writ petition challenging Additional Civil Judge's dismissal of impleading application in partition suit dismissed. Court expunged stricken observation on Benami Act
Writ petition for quash set aside of order dismissed
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2022
BEFORE
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.3656 OF 2022 (GM-CPC)
BETWEEN:
THE PETITIONERS 1 AND 2 ARE RESIDING AT SHIVAKOTE HESARAGHATTA HOBLI BENGALURU NORTH TALUK – 560 08
...PETITIONERS
(BY SRI K.K.VASANTH, ADVOCATE)
AND:
2
AGED ABOUT 45 YEARS
R/AT DANDUDASANA KODIGEHALLI MELEKOTE POST THOOBUGERE HOBLI DODDABALLAPURA TALUK – 561 203
R-3 TO R-8 ARE RESIDING AT YEKASHIPURA VILLAGE ARALUMALLIGE POST
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KASABA HOBLI DODDABALLAPURA TALUK – 561 203
…..RESPONDENTS
(BY SRI L.SANJEEVAPPA, ADVOCATE FOR C/R1 & R-2) * * * *
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET ASIDE THE ORDER DATED 14.01.2022 PASSED ON APPLICATION FILED UNDER ORDER I RULE 10 OF CPC IN OS NO.237/2014 BY THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AT DODDABALLAPURA VIDE ANNEXURE-E AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the impleading applicants questioning the order of the
learned trial Judge passed on an application filed under Order I Rule 10(2) read with Section 151 of CPC.
for partition and separate possession against their mother and brothers in O.S.No.237/2014 by contending that suit schedule properties are the joint family ancestral properties.
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filed an impleading application by contending that item No.11 is not the property owned by the plaintiffs. The petitioners claimed that this item No.11 is purchased by defendant No.3 and the entire sale consideration is paid by the impleading applicants. On these set of grounds, the petitioners are intending to come on record. The learned Judge has rejected the said application by holding that the petitioners’ right cannot be adjudicated in a partition suit and it is open for petitioners to file an independent suit for redressal of their grievances. Learned Judge was also of the view that the impleading applicants are not at all necessary parties to the suit. The said order is under challenge.
this Court that the learned Judge while rejecting the application has virtually decided the rights of the parties by referring to provision under Section 4 of the Benami
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Transaction Act, 1998. He would contend that item No.11 is the absolute property of the petitioners herein and therefore, respondent Nos.1 and 2/ plaintiffs cannot
be permitted to seek partition in item No.11. The question as to whether the present petitioners have contributed and the property purchased in the name of defendant No.3 is his absolute property, is a matter to be decided in a separate suit. In a partition suit, all that is required to be decided is the entitlement of share of the parties to the suit and a formal declaration in respect of their pre-existing right in the ancestral property. Therefore, the scope of enquiry cannot be expanded at the instance of present petitioners who have come up with totally new case asserting that they have contributed to purchase item No.11 and therefore, the sale deed though obtained in the name of defendant No.3 is in fact his absolute property.
cannot be adjudicated in the present case on hand.
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Therefore, I do not find any infirmity in the order under challenge and no error is committed. However, I find some force in the submission made by learned counsel for petitioners. The observation at para-13 that sale transaction is hit by Section 4 of the Benami Transaction Act, 1998, stands expunged and the said observation would not come in the way of petitioners in establishing their right.
Accordingly, writ petition is dismissed .
Sd/JUDGE
LB
2 issues framed by the court
Whether observation expunged under section 4 of Benami Act infringes petitioner's rights.
Whether facts regarding property purchase title is adjudicable in partition suit.
4 provisions across 3 enactments
Devendra
Anjinappa
Vinodamma
Ratnamma
Sachin Shankar Magadum
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Sachin Shankar Magadum
Parties & counsel
