Dismissed

Sri a S Ashok Kumar v. Sri Venkatachalapathy Shetty

Karnataka HC8 Dec 2023CRP/38/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a Civil Revision Petition challenging a Trial Court's order rejecting an application to reject a plaint in a suit for partition. The Court held that questions regarding coparcener status and succession were factual and legal issues for the trial stage.

What did the court decide?

Civil Revision Petition dismissed; pending Interlocutory Applications stand dismissed.

Sri a S Ashok Kumar Vs Sri Venkatachalapathy… — Succession and Inheritance | Karnataka HC (2023)

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1 - NC: 2023:KHC:44783 CRP No. 38 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CIVIL REVISION PETITION NO. 38 OF 2022 (IO)

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BETWEEN:

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SRI. A.S. ASHOK KUMAR S/O SHAMAIAH SETTY, AGED ABOUT 56 YEARS, BEHIND SBI, VIKASASOUDHA BRANCH, PRASHANTH NAGAR, BUDIGERE ROAD, DEVANAHALLI TOWN-562110

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S. VISHWANATH S/O SHAMAIAH SETTY, AGED ABOUT 51 YEARS, VASAVI BANGLES, GANDHI CHOWKA MAIN ROAD, DEVANAHALLI TOWN-562110.

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A.V. BHASKAR

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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S/O VENKATARATHNAM, AGED ABOUT 61 YEARS, NO.1200/4115, 26^TH MAIN, 9^TH BLOCK, JAYANAGAR, BENGALURU-560069

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A.V. RAMESH S/O VENKATARATHNAM, AGED ABOUT 56 YEARS, NO.1200/4115, 26^TH MAIN, 9^TH BLOCK, JAYANAGAR, BENGALURU-560069

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GOPALAKRISHNA SETTY S/O LINGAPPA SETTY @ APPAIAH SETTY, AGED ABOUT 87 YEARS, N.R. SHREE GLITZ, 61^ST CROSS, 3^RD MAIN, APT: 104, OPP. S.B.M., CHAMRAJPET,

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NC: 2023:KHC:44783 CRP No. 38 of 2022

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BENGALURU-560018.

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RAMACHANDRA SETTY S/O LINGAPPA SETTY @ APPAIAH SETTY, AGED ABOUT 81 YEARS, R/O 653, 12^TH CROSS, M.C. LAYOUT, VIJAYANAGAR, BENGALURU-560040.

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…PETITIONERS

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(BY SRI. M.S.NAGARAJA, ADVOCATE)

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AND:

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SRI. VENKATACHALAPATHY SHETTY S/O RAMAKKA AND SATHYANARAYANA SETTY, AGED ABOUT 86 YEARS, R/O ANUGRAHA, MARALU BAGILU, PARVATHAPURA ROAD, DEVANAHALLI TOWN-562110

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VARALAMMA D/O LINGAPPA SETTY @ APPAIAH SETTY,

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AGED ABOUT 91 YEARS, R/O 653, 12^TH CROSS, M.C. LAYOUT, VIJAYANAGAR, BENGALURU-560040

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AMBIKA D/O SHAMAIAH SETTY, AGED ABOUT 59 YEARS, VASAVI BANGLES, GANDHI CHOWKA, MAIN ROAD, DEVANAHALLI TOWN-562110

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VIMALA

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D/O SHAMAYYA SETTY, AGED ABOUT 54 YEARS, VASAVI BANGLES, GANDHI CHOWKA, MAIN ROAD, DEVANAHALLI TOWN-562110, BENGALURU RURAL DISTRICT.

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5. SHEELA

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D/O SHAMAIAH SETTY, AGED ABOUT 54 YEARS, VASAVI BANGLES, GANDHI CHOWKA, MAIN ROAD,

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3 - NC: 2023:KHC:44783 CRP No. 38 of 2022

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DEVANAHALLI TOWN-562110, BENGALURU RURAL DISTRICT.

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KAMALA V. RATHNAM W/O VENKATARATHNAM, AGED ABOUT 76 YEARS,

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LAKSHMI D/O VENKATARATHNAM, AGED ABOUT 51 YEARS,

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BOTH RESPONDENTS NOS.6 AND 7 ARE RESIDING AT NO.1200/4115, 26^TH MAIN, 9^TH BLOCK, JAYANAGAR, BENGALURU-560069.

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NAGAMMA D/O LINGAPPA SETTY @ APPAIAH SETTY, AGED ABOUT 86 YEARS, R/O C/O KAMALAKAR BABU, NO.8, AKSHYA, S.B.I. STAFF COLONY, DEVARACHIKKANAHALLI, BANNERGHATTA ROAD, BENGALURU-560076.

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SHASHI REKHA D/O RAMAKKA AND SATHYANARAYANA SETTY, AGED ABOUT 84 YEARS, R/O SHAKAMBARI STREET, KOLAR TOWN-563101.

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KANTHARAJA SHETTY S/O RAMAKKA AND SATHYANARAYANA SETTY, AGED ABOUT 84 YEARS, R/O NO.14, AZAD NAGAR, BENGALURU-560018

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SHANTHA RANI

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W/O VENKATARATHNAM GUPTA, AGED ABOUT 61 YEARS,

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SWAPNA D/O VENKATARATHNAM GUPTA, AGED ABOUT 36 YEARS

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NC: 2023:KHC:44783 CRP No. 38 of 2022

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SANDEEP

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S/O VENKATARATHNAM GUPTA, AGED ABOUT 34 YEARS,

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SAGAR S/O VENKATARATHNAM GUPTA, AGED ABOUT 31 YEARS,

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RESPONDENT NOS.11 TO 14 ARE AT SWAPNA STORES, R/O NO.14, AZADNAGAR, BENGALURU-560018

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SUJATHA D/O RAMAKKA AND SATHYANARAYANA SETTY, AGED ABOUT 71 YEARS, R/O 3693, 9^TH MAIN, KAVERINAGAR, BANASHANKARI 2^ND STAGE, BENGALURU-560070.

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…RESPONDENTS

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(BY SRI. SUBRAMANYAM KAUSHIK R.S. ADVOCATE FOR SRI. V.RAMESH BABU, ADVOCATE FOR RESPONDENT NO.1; NOTICE SERVED ON RESPONDENT NOS.2, 6, 8, 11 TO 13;

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VIDE ORDER DATED 04.12.2023 RESPONDENT NOS.3, 4, 5, 7, 9, 10, 14 AND 15 ARE DELETED)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 07.12.2021 PASSED ON IA No.VI IN OS NO.984/2020 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, REJECTING THE IA No.6 FILED UNDER ORDER 7 RULE 11 READ WITH SECTION 151 OF CPC FOR REJECTION OF PLAINT.

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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/defendant Nos.3, 5, 8, 9, 12 and 13 have assailed the correctness of an order dated 07.12.2021 passed

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by the Principal Senior Civil Judge and JMFC, Devanahalli

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NC: 2023:KHC:44783 CRP No. 38 of 2022

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(henceforth referred to as 'Trial Court') in O.S.No.984/2020 by which, an application (I.A.No.6) filed by them under Order VII Rule 11(a) read with Section 151 of CPC was rejected.

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A suit for partition was filed by respondent No.1

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herein claiming that his mother was entitled to a share along with her brothers, nephews and niece. He claimed that the suit properties were possessed by Sri. Lingappa Shetty @ Appaiah Shetty in terms of a partition dated 10.06.1929 and that the said Lingappa Shetty died in the year 1942 leaving behind mother of the plaintiff, her two sisters and four brothers. He contended that the joint family continued even after the death of Lingappa Shetty until his mother died in the year 2012. He contended that though his mother was demanding her share in the suit properties, the defendants did not heed to her request but the defendants filed a suit for partition in O.S.No.1464/2006 and entered into compromise on 20.01.2007. He therefore, contended that he was entitled to enforce his mother's share in the suit properties and thus sought for a partition and separate possession of his mother's share in the suit schedule properties.

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NC: 2023:KHC:44783 CRP No. 38 of 2022

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The defendant Nos.3, 5, 8, 9, 12 and 13 being the children of one Shamayya Setty, children of Venkatarathnam and two uncles of the plaintiff, filed an application under Order VII Rule 11(a) read with Section 151 of CPC contending that admittedly, Lingappa Shetty died in the year 1942 and therefore, the succession, if any, opened in the year 1942 and that the mother of the plaintiff did not attempt to enforce her share in the suit properties from the year 1942 till her death in the year 2012 and therefore, the plaintiff does not have any independent right to claim a share in the suit schedule properties. They further claimed that the plaintiff's mother was given in adoption to her uncle and therefore, she was not entitled to a share in suit properties.

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This application was opposed by the plaintiff, who contended that the defendants had amongst themselves entered into a collusive compromise in O.S.No.1464/2006 on 20.01.2007, excluding his mother. He claimed that as on 20.01.2007, the Hindu Succession (Amendment) Act, 2005 was in force and his mother was entitled to an equal share. It was therefore, contended that the plaintiff is entitled to enforce his mother's share in the suit schedule properties.

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NC: 2023:KHC:44783 CRP No. 38 of 2022

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The Trial Court after considering the contentions urged, rejected the application filed by defendant Nos.3, 5, 8, 9, 12 and 13 in terms of the impugned order.

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Being aggrieved by the same, this petition is filed by the defendant Nos.3, 5, 8, 9, 12 and 13.

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The learned counsel for the petitioners/defendant

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Nos.3, 5, 8, 9, 12 and 13 contended that when the succession opened in the year 1942, it was incumbent upon the plaintiff's mother to have laid her claim to the properties. However, she did not do so during her life time till the year 2012. Therefore, the plaintiff has no independent right, title or interest to claim his mother's share. He therefore, contends that the plaintiff had no cause of action to file a suit for partition and separate possession of his mother.

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This is countered by the learned counsel for the plaintiff, who contends that when the plaintiff's mother was under an embargo against claiming her share in 1942 but had to wait for partition to be effected, which did not happen, she was entitled to a share atleast after the Hindu Succession (Amendment) Act, 2005 came into force in terms of which, she

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NC: 2023:KHC:44783 CRP No. 38 of 2022

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was entitled to an undivided equal share in the suit properties by birth. He therefore, contends that the suit cannot be rejected at the threshold based on the assertions made by the defendants in the written statement that the plaintiff's mother was given away in adoption to her uncle and that the plaintiff's suit for partition is not maintainable.

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I have considered the submissions made by the learned counsel for the petitioners/defendant Nos.3, 5, 8, 9, 12 and 13 as well as the learned counsel for the respondent No.1/plaintiff.

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A perusal of the plaint does reveal that the maternal grandfather of the plaintiff had died in the year 1942. Therefore, succession, if any, did open in the year 1942. However, the question whether the plaintiff's mother could have enforced her share in the suit schedule properties between 1942 till 1956, is a question of law that needs to be considered by the Trial Court. Likewise, the Trial Court is bound to consider whether the plaintiff's mother was entitled to a notional share in the share of her father or whether the customary Hindu Law was applicable to the facts and

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9 - NC: 2023:KHC:44783 CRP No. 38 of 2022

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circumstances of this case, while determining the share of the plaintiff's mother in the erstwhile joint family properties. Likewise, the Trial Court is bound to consider the question whether the mother of the plaintiff was a coparcener by birth and if yes, whether she was entitled to a share in the suit properties on the ground that there was no partition effected in respect of the suit properties. Therefore, the suit cannot be rejected on the mere contention that the succession opened in the year 1942. Similarly, the contention of the defendants that the plaintiff's mother was given in adoption is a question of fact, to be established before the Trial Court. These are all questions of fact and law that need to be considered by the Trial Court and certainly not on an interlocutory application at an interlocutory stage. In that view of the matter, there is no error committed by the Trial Court in rejecting the application filed by the defendant Nos.3, 5, 8, 9, 12 and 13 warranting interference at the hands of this Court.

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Hence, this petition lacks merit and is dismissed .

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10 -

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NC: 2023:KHC:44783 CRP No. 38 of 2022

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In view of dismissal of the petition, pending I.As., if

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any, do not survive for consideration and the same stand dismissed.

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Sd/JUDGE

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PMR

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List No.: 1 Sl No.: 39

Sri a S Ashok Kumar v. Sri Venkatachalapathy Shetty

Case brief

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Sri a S Ashok Kumar v. Sri Venkatachalapathy Shetty

Case brief

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