This single judge appeal against a partition decree was dismissed as not maintainable. The appellant, who filed during his father's lifetime, could not prosecute the appeal after the father's death without seeking fresh permission to claim rights as an heir.
Appeal dismissed as not maintainable.
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NC: 2023:KHC:36065 RFA No. 369 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 369 OF 2008 (PAR)
Between:
Sri. M.V.Shivanna S/o. Veerabhadrappa Aged about 43 years, R/o. Mallathahalli Main Road, Bengaluru - 560056.
…Appellant
(By Sri. N.S.Hiremath, Advocate)
And:
Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA
All are Majors, R/o Mallathalli Village, Yeshwanthpur Hobli, Bengaluru North Taluk - 560056.
(By Sri. P.Chandrashekhar, Advocate and Sri. L.Vijayakumar, Advocates for R1 to R8; R9 - deleted as per cause title; v/o dated 12.01.2009 - R10 is dead and appellant is treated as LRs of deceased R10; v/o. dated 31.08.2009 notice to R11 is held sufficient)
This RFA is filed under section 96 of CPC against the judgment and decree dated 18.12.2007 passed in O.S.No.8703/2004 on the file of the XXXVIII Additional City Civil Judge, Bengaluru, decreeing the suit for partition and separate possession.
This RFA, coming on for part heard in hearing, this day, the court delivered the following:
JUDGMENT
Heard Sri M.B.Chandrachooda, learned counsel
appearing on behalf of Sri N.S.Hiremath, learned
NC: 2023:KHC:36065 RFA No. 369 of 2008
counsel for the appellant and Sri P.Chandrashekar, learned counsel for respondents No.1 to 8.
himself as the only son of Sri Veerabhadrappa, who is respondent No.10 in this appeal and 9th defendant in the court below. The suit, on contest, came to be decreed by granting 1/16th share in the suit property in favour of the plaintiff.
NC: 2023:KHC:36065 RFA No. 369 of 2008
right as against his father, who was the 10th respondent herein. Otherwise, if the appellant wants to prosecute the appellant as heir of the 10th respondent taking note of the fact that 10th respondent died during the pendency of the review petition, appropriate application has to be filed in the appeal inasmuch as he would be claiming his right as heir of the appellant. When the review petitioner is not a party before the Trial Court and his claim if any, is only against share of his father who is 9th defendant in the suit and 10th respondent in this appeal, the review petitioner could not be permitted to seek review of the order accepting the compromise.
aspects of the matter, the appeal needs to be dismissed as not maintainable. However dismissal of the present appeal shall not affect the
rights of the appellant in filing appropriate
proceedings in accordance with law.
Ordered accordingly.
Sd/JUDGE
KMV List No.: 1 Sl No.: 39
2 issues framed by the court
Whether an appeal filed by a son during the lifetime of his father, who died during pendency before the High Court, is maintainable.
Whether the appellant can claim rights in the suit property after the father's death without a fresh application.
1 provisions across 1 enactments
M.V.Slivanna
Vimala
V Srischananda
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
