Dismissed

T M Abdul Gani v. Late C Venkataraju S/O Late Channappa Since Deceased by His Lrs S L Geetha

Karnataka HC13 Dec 2023RSA/1943/2023

Case brief

AI extract

What is this about?

The Second Appellate Court dismissed the appeal by the third pendente-lite purchasers, holding that they have no locus standi to question the preliminary decree. The Court clarified that their rights are protected and they can claim their share equitably in the final decree proceedings.

What did the court decide?

Second appeal dismissed; Interlocutory Applications dismissed as non-surviving.

T M Abdul Gani Vs Late C Venkataraju S/O Late Channappa Since… — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:45371 RSA No. 1943 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO. 1943 OF 2023 (PAR/INJ)

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BETWEEN:

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T M ABDUL GANI S/O T M ABDUL RAHMAN AGED ABOUT 73 YEARS R/AT NEW NO.474(OLD NO.91) ANNA SALAI, MELVISHARAM TAMILNADU STATE-632509

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T M ABDUL JAMEEL S/O T M ABDUL RAHMAN AGED ABOUT 60 YEARS R/A NO.8, MANIYALI STREET MALVISHARAM TAMILNADU-632509

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Digitally signed by ALBHAGYA Location: HIGH COURT OF KARNATAKA

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…APPELLANTS

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(BY SRI.S.SREEVATSA, SENIOR ADVOCATE FOR

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SMT.JAYASREE NARASIMHAN, ADVOCATE) AND:

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LATE.C.VENKATARAJU S/O LATE CHANNAPPA SINCE DECEASED BY HIS LRS

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A S L GEETHA W/O LATE C.VENKATARAJU

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AGED ABOUT 66 YEARS

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2 - NC: 2023:KHC:45371 RSA No. 1943 of 2023

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B V KAMALA D/O LATE C VENKATARAJU AGED ABOUT 42 YEARS

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C. V HARISH D/O LATE C VENKATARAJU AGED ABOUT 43 YEARS

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RESPONDENT NOS.1(A) TO 1(C) ARE R/AT NO.423, 5TH CROSS NAGENAHALLI MAIN ROAD SHIVASHANKARA BLOCK (NOW 2ND CROSS) S B LAYOUT, HEBBAL BENGALURU-560 024

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LATE. C RAMAKRISHNA S/O LATE CHANNAPPA

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SINCE DECEASED BY HIS LRS

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A RATHNAMMA

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W/O LATE C RAMAKRISHNA AGED ABOUT 70 YEARS

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B. R SRINIVAS

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S/O LATE C RAMAKRISHNA AGED ABOUT 46 YEARS

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R/AT NO.63, BOMMAVARA MAIN ROAD AKKUPET, DEVANAHALLI TOWN BENGALURU RURAL DISTRICT-562110

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YASHODAMMA W/O LATE C.VENKATARAMAPPA AGED ABOUT 71 YEARS

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RAVIKUMAR S/O LATE C VENKATARAMAPPA AGED ABOUT 50 YEARS

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3 - NC: 2023:KHC:45371 RSA No. 1943 of 2023

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SHANKAR

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S/O LATE C VENKATARAMAPPA AGED ABOUT 42 YERS

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RESPONDENT NOS.3 TO 5 ARE R/AT NO.68 BOMMAVARA MAIN ROAD AKKUPET, DEVANAHALLI TOWN BENGALURU RURAL DISTRICT-562110

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LATE C. BHEEMANNA S/O LATE CHANNAPPA SINCE DECEASED BY HIS LRS

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A CHANDRAKANTHAMMA W/O LATE C BHEEMANNA AGED ABOUT 69 YEARS

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B PRABHAVATHI D/O LATE C BHEEMANNA AGED ABOUT 40 YEARS

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C SHOBHA

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D/O LATE C BHEEMANNA AGED ABOUT 39 YEARS

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D RAKSHITH

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S/O LATE C BHEEMANNA AGED ABOUT 38 YEARS

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E SOWMYA

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D/O LATE C BHEEMANNA AGED ABOUT 36 YEARS

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F USHA D/O LATE C BHEEMANNA AGED ABOUT 35 YEARS

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4 - NC: 2023:KHC:45371 RSA No. 1943 of 2023

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RESIDING AT

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NO.1434, 17TH B MAIN J P NAGAR, 2ND PHASE BENGALURU-560078

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7 LATE C.LAKSHMANA S/O LATE CHANNAPPA SINCE DECEASED BY HIS LRS

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A. JAYALAKSHMAMMA W/O LATE C LAKSHMANA AGED ABOUT 67 YEARS

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B CHANDRAKALA L D/O LATE C LAKSHMANA AGED ABOUT 49 YEARS

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C MANJUNATHA L S/O LATE C LAKSHMANA AGED ABOUT 47 YEARS

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D PRAKASH L S/O LATE C LAKSHAMANA AGED ABOUT 35 YEARS

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ALL ARE R/AT NO.63 BOMMAVARA AIN ROAD AKKUPET, DEVANAHALLI TOWN BENGALURU RURAL DISTRICT-562110

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C.NARAYANASWAMY S/O LATE CHANNAPPA AGED ABOUT 73 YEARS R/AT NO.63, BOMMAVARA MAIN ROAD AKKUPET, DEVANAHALLI TOWN BENGALURU RURAL DISTRICT-562110

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5 - NC: 2023:KHC:45371 RSA No. 1943 of 2023

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RINKU DESHPANDE

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W/O NEELESH DESHPANDE AGED ABOUT 46 YEARS R/A NO.79/19, E CASA ORCHARD 8TH MAIN, 8TH CROSS R.M.V EXTENSION SADASHIVANAGAR BENGALURU-560080

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C. SAROJA D/O LATE CHANNAPPA W/O MUNIYALLAPPA AGED ABOUT 60 YEARS R/AT NO.762, 14TH CROSS 35TH MAIN, J.P.NAGAR 1ST PHASE, BENGALURU-560078

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C.RAJALAKSHMI D/O LATE CHANNAPPA W/O M.SATYANARAYANA AGED ABOUT 65 YEARS R/A NO.270, 74TH CROSS KUMARASWAMY LAYOUT, I STAGE BENGALURU-560078

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PREM KAUR W/O NIRMAL SINGH BHANGOO AGED ABOUT 66 YEARS PRESENTLY R/AT FARM NO.2 CREATIVE FARM NEAR PARKLAND RETREAT SILVER OAK LANE SATBERI SOUTH DELHI-110074

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VENKATESH MUTTA S/O KRISHNARAO MUTTA AGED ABOUT 48 YEARS R/A NO.2138 PHASE VILLAGE

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6 - NC: 2023:KHC:45371 RSA No. 1943 of 2023

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MOHALI CHANDIGARH ALSO R/AT NO.C-7, 2ND FLOOR VIKASPURI NEW DELHI

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…RESPONDENTS

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(BY SMT.S.K.NAGARATHNA, ADVOCATE FOR C/R.1(C))

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.08.2023 PASSED IN RA NO.15032/2022 PASSED IN V ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL, SITTING AT DEVANAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 06.02.2015 PASSED IN O.S.NO.932/2006 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC., DEVANAHALLI AND ETC.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned second appeal is filed by the 3rd pendente-lite purchasers assailing preliminary decree drawn by the Court in O.S.No.932/2006, wherein plaintiff’s suit for partition and separate possession is decreed granting 1/10th share together and defendant Nos.5, 9 and 10 are held to be entitled for 1/10th share.

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NC: 2023:KHC:45371 RSA No. 1943 of 2023

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The Trial Court, taking cognizance of the alienations pending suit, has also protected rights of the purchasers by recording a finding that 4/10th share of defendant Nos.1 to 4, 6 and 7 shall be allotted to defendant No.11 - purchaser.

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Heard learned Senior Counsel appearing for

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the appellants and learned counsel appearing for the defendants.

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The short point that needs consideration at the hands of this Court is;

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As to whether present appellants, who are pendente-lite purchasers during pendency of the final decree proceedings, can question the preliminary decree drawn by the Court in O.S.No.932/2006?

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My answer is emphatically no.

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Though learned Senior Counsel tried to persuade this Court by contending that suit filed by the

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8 - NC: 2023:KHC:45371 RSA No. 1943 of 2023

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plaintiff is in collusion with defendant Nos.1 to 7, I am not inclined to accede to the said argument. It is also borne out from the records that the plaintiff has instituted suit on 31.08.2005. The first sale is by defendant Nos.1 to 4, 6 and 7 on 02.04.2008 in favour of defendant No.8. The above said sale transaction was admittedly made during pendency of the suit. Defendant No.8, in turn, has sold the property in favour of defendant No.11 under registered sale deed dated 17.12.2009. Defendant No.11, in turn, has sold the property to the present appellants during the pendency of the final decree proceedings. It is a trite law that pendente-lite purchaser has no voice in a partition suit.

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Be that as it may, the operative portion of the judgment rendered by the Trial Court has clearly protected the rights of the pendente-lite purchasers . The sale deeds obtained by pendente-lite purchasers namely defendant Nos.8 and 11 and the present appellants will be subject to out come of the decree that would be passed in a partition

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9 - NC: 2023:KHC:45371 RSA No. 1943 of 2023

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suit. If the vendor of the appellants herein is jointly allotted 4/10th share, which is evident from the operative portion of the decree passed in O.S.No.932/2006, no serious prejudice is caused and therefore, the present appellants, who are tracing their right through defendant No.11, whose rights are protected by the Trial Court, have no locus to question the preliminary decree. The theory of collusion as narrated by the learned Senior Counsel cannot be entertained as these alienations are made subsequent to filing of the suit and therefore, I am not inclined accede to the theory of collusion set up by the learned Senior Counsel.

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The Appellate Court, while dismissing the

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appeal, has also protected rights of the appellants herein. The appellants are relegated to work out their equitable rights in the pending final decree proceedings. If such a

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liberty is reserved, nothing survives for consideration.

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10 -

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NC: 2023:KHC:45371 RSA No. 1943 of 2023

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Therefore, no substantial question of law arises

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for consideration in this appeal.

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In the light of the liberty reserved by the Appellate Court, it is open for the appellants herein to appear before FDP Court in the final decree proceedings and seek allotment of 4/10th share that was agreed to be allotted to defendant No.11 and subsequent purchasers.

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With these above observations, the second appeal is dismissed.

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I.A.No.1/2023 and 2/2023 do not survive for

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consideration and accordingly, they are dismissed.

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Sd/JUDGE

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NBM

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List No.: 1 Sl No.: 10

T M Abdul Gani v. Late C Venkataraju S/O Late Channappa Since Deceased by His Lrs S L Geetha

Case brief

What is this about?

What did the court decide?

T M Abdul Gani v. Late C Venkataraju S/O Late Channappa Since Deceased by His Lrs S L Geetha

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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