Dismissed

K. Anantha Padmanaba Char v. Smt. K. Nagamani @ Subha. S

Karnataka HC31 Oct 2023CRP/162/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a civil revision petition challenging the Trial Court's rejection of a defendants' application to dismiss a plaint in a partition suit. The Court held that issues regarding the validity of property alienation, maintainability of a partial partition suit, and court fee valuation require full trial and cannot be decided interlocutorily.

What did the court decide?

Revision petition lacking merit in challenging the rejection of interlocutory application to dismiss plaint was dismissed without interference.

K. Anantha Padmanaba Char Vs Smt. K. Nagamani @ Subha. S — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:38886 CRP No. 162 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 31^ST DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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CIVIL REVISION PETITION NO. 162 OF 2023

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BETWEEN:

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K. ANANTHA PADMANABA CHAR S/O. LATE K.GUNDACHAR, AGED ABOUT 61 YEARS, R/AT NO.22, ANANTHA VIJAYA NILAYA, SANDHYANAGARA, 1^ST CROSS, DASANAPALYA, CHIKKABANAVARA, BANGALORE-560 090.

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SMT.VANISHREE W/O LATE K.SREEDHAR MURTHY AGED ABOUT 53 YEARS,

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SRILAKSHMI S D/O LATE K. SREEDHAR MURTHY AGED ABOUT 19 YEARS,

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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BOTH ARE RESIDING AT NO.251, 7^TH MAIN ROAD, RUKMINI NAGARA, KANVA BAZAR BANGALORE-560 073.

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…PETITIONERS

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(BY SRI. SUNEEL S. NARAYAN, ADVOCATE)

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AND:

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SMT. K. NAGAMANI @ SUBHA. S W/O. S. SUNDARESH D/O. LATE GUNDACHARI, AGED ABOUT 68 YEARS, R/AT THEERTHAM VILLAGE AND POST, BAIREDDYPALLI MANDALAM, CHITTURU DISTRICT

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ANDHRAPRADESH-517415.

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SMT. B. SAROJA W/O B. SREENIVASULU, D/O LATE GUNDACHARI AGED ABOUT 55 YEARS, R/AT NO.11-8-17, KOTA AREA, HINDUPURA, ANDHRAPRADESH-515 201.

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K.MADHAVA MURTHY S/O LATE K. GUNDACHAR, AGED ABOUT 73 YEARS, R/AT BHEEMARAHUTHANAHALLI VILLAGE, SAKKAREGOLLAHALLI POST, DODDABELAVANGALA HOBLI, DODABALLAPURA TALUK, BANGALORE RURAL DIST-561204.

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K. PRAHALADHACHAR S/O LATE K. GUNDACHAR AGED ABOUT 71 YEARS, R/AT ARISHINAKUNTE, NELAMANGALA TALUK, BANGALORE RURAL DIST-562123

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RAGHAVENDRA RAO S/O LATE K. GUNDACHAR AGED ABOUT 70 YEARS, R/AT KUMARSWAMY LAYOUT, BANGALORE-560078.

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K.SATHYASANDACHAR S/O LATE K. GUNDACHAR AGED ABOUT 64 YEARS, R/AT BHEEMARAHUTHANAHALLI VILLAGE, SAKKAREGOLLAHALLI POST, DODDABELAVANAGALA HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DIST-561204.

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VENU S/O LATE JAYATHEERTHARAO, AGED ABOUT 51 YEARS, R/AT NEAR UTTHARADHIMATHA, KOTE AREA,

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CHITRADURGA DIST-32.

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RAGHAVENDRA RAO S/O LATE JAYATHEERTHARAO, AGED ABOUT 49 YEARS, R/AT NEAR UTTHARADHIMATHA, KOTE AREA, CHITRADURGA DIST-32.

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PRAMODH S/O LATE JAYATHEERTHARAO, AGED ABOUT 47 YEARS, R/AT NEAR UTTHARADHIMATHA, KOTE AREA, CHITRADURGA DIST-32.

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L.K.SAROJAM W/O ARUL DAS, AGED ABOUT 55 YEARS, R/AT NO.599, GRORGE COTTAGE, 15^TH MAIN ROAD, HESARAGHATTA MAIN ROAD, MEI LAYOUT, NAGASANDRA POST, BANGALORE-560073.

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EDWIN ALEXANDAR S/O. THOMAS ALEXANDER, AGED ABOUT 31 YEARS, R/AT T4 104, GM INFOLITY DAFFODILS, BAGALAGUNTE, HESARAGHATTA MAIN ROAD, NAGASANDRA POST, BANGALORE-560 073.

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ADLIN STEBY D/O. ARUL DAS, AGED ABOUT 55 YEARS, R/AT NO.599, GRORGE COTTAGE, 15^TH MAIN ROAD, HESARAGHATTA MAIN ROAD, MEI LAYOUT, NAGASANDRA POST, BANGALORE-560 073.

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…RESPONDENTS

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(BY SRI. VIJAY A.M., ADVOCATE FOR RESPONDENT NOS.1 AND 2;

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VIDE ORDER DATED 11.07.2023, SERVICE OF NOTICE TO RESPONDENT NOS.3 TO 12 IS DISPENSED WITH)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 21.11.2022 PASSED ON IA IN OS NO.10/2022 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., DODDABALLAPURA DISMISSING THE IA FILED UNDER ORDER 7 RULE 11(a) AND (b) READ WITH SECTION 151 OF CPC.,

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

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ORDER

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The petitioners are before this Court challenging the correctness of an order dated 21.11.2022 passed by the Additional Senior Civil Judge and JMFC, Doddaballapura in O.S.No.10/2022 by which, an application filed by them under Order 7 Rule 11(a) and (b) read with Section 151 of Civil Procedure Code, 1908 was rejected.

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The suit in O.S.No.10/2022 was filed for partition and separate possession of the plaintiffs share in the suit schedule properties.

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The plaintiffs contended that their father K. Gundachar was the Karta of the joint family and he died intestate on 18.04.1990. They claimed that they and the defendants had succeeded to the joint family estate and that

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the revenue records were transferred to the name of some of the defendants. They contended that there was no division of the joint family estate and that they demanded the defendants to partition the suit schedule properties, which was turned down by the defendants, prompting them to file the suit for partition. They claimed that some of the defendants had conveyed the suit schedule properties in terms of two sale deeds dated 07.10.2021 which was not binding upon them.

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The defendant Nos.1, 5, 6(a) and 6(b) contested the suit by filing their written statement. They also filed an application under Order VII Rule 11(a) and (b) of Civil Procedure Code, 1908 contenting that the suit did not bear any "cause of action" and "no sufficient court fee" was paid on the plaint.

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This application was contested by the plaintiffs who

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contended that they too were entitled for a share in the suit schedule properties that were conveyed to the defendant Nos.8, 9 and 10, without their knowledge, notice and consent. The plaintiffs further contended that the case of the plaintiffs warranted a trial and the case could not be disposed off on an

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interlocutory application. They claimed that the cause of action was specifically mentioned in the suit and proper and sufficient court fee was paid thereon. Therefore, the plaint cannot be rejected.

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Based on the above, the Trial Court held that the contentions urged by the defendants cannot be considered in an application filed under Order VII Rule 11(a) and (b) of Civil Procedure Code, 1908. It also held that non-mentioning of certain properties that were sold by the family, cannot be a ground to reject the plaint. It further held that the question whether the plaintiffs are in joint possession, or not, has to be decided only after a trial and cannot be decided at an interlocutory stage. Being aggrieved by the aforesaid order, the defendants have filed this revision petition.

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The learned counsel for the petitioners/defendants contended that the plaintiffs specifically mentioned in the plaint that certain other properties belonging to the joint family were sold and that they were not included in the suit. He therefore, contended that the suit for partial partition is not maintainable. He relied upon a judgment of a Coordinate Bench of this Court

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in the case of Sri Tukaram Vs. Sri. Sambhaji & Ors. - ILR 1998 KAR 681 and contended that a suit for partial partition is not maintainable. He also relied upon a judgment of a Coordinate Bench of this Court in the case of Elizabeth Vs. Smt. Mariyamma and others - RSA No.466/2009 dated 23.01.2013.

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Per contra, the learned counsel for the plaintiffs contended that the suit is not filed in respect of the properties that were alienated by the family, in view of the explanation contained in Section 6 of the Hindu Succession Act, 1956 as amended by Act of 39 of 2005. He contends that the sale deeds in question are brought about by the defendants excluding the plaintiffs in the year 2021 that is after the amendment Act 39 of 2005 came into force and consequently, the plaintiffs were entitled to an undivided share in the suit properties. Therefore, the plaintiffs were entitled to claim their share in the suit schedule property.

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I have considered the submissions of learned counsel for the petitioners/defendants as well as learned counsel for the respondents/plaintiffs.

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The fact that the suit properties were the properties

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of the joint family is not in dispute. It is also not in dispute that the defendants have brought about sale deeds in respect of the suit properties in October, 2021 i.e., long after the Hindu Succession Act, 1956 was amended by Act 39 of 2005, in terms of which, the daughters were also entitled to an equal share in the suit schedule properties i.e., however subject to the condition that the property should not be encumbered or alienated prior to 20.12.2004. In the case on hand, since the alienation is in October, 2021, the plaintiffs also had an undivided share in the suit properties, and therefore, were justified in filing the suit for partition. The contention urged by the defendants that the suit for partial partition is not maintainable, is a ground that has to be urged and considered by the Trial Court at the time of final disposal of the suit and not at an interlocutory stage. Likewise, the question regarding Court fee raised by the contesting defendants on the ground that plaintiffs are not in joint possession and therefore the Court fee has to be paid on the market value of suit properties under Section 35(2) of the Karnataka Court Fees and Suits

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Valuation Act, 1958 is also an issue that has to be considered and adjudicated by the Trial Court after a full fledged trial.

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