Dismissed

Mr. M.D. Rangaswamy Naidu v. Mr. Sharath Kumar K S

Karnataka HC1 Sept 2023WP/14079/2020

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the dismissal of an impleadment application in a specific performance suit, holding the petitioner was not a necessary party as he had previously sold the property via partition, waiving any preemption rights.

What did the court decide?

The writ petition challenging the dismissal of the impleadment application was dismissed.

Mr. M.D. Rangaswamy Naidu Vs Mr. Sharath Kumar K S — Specific Performance | Karnataka HC (2023)

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NC: 2023:KHC:31553 WP No.14079 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1^ST DAY OF SEPTEMBER, 2023 BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.14079 OF 2020 (GM-CPC)

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BETWEEN:

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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MR. M.D. RANGASWAMY NAIDU AGED ABOUT 58 YEARS S/O LATE M.S. DHARANIPALAN RESIDING AT NO.73/H GOVERNMENT GUEST HOUSE ROAD NAZARABAD, NEAR HOTEL SIDDHARTHA MYSORE-570010.

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(BY SRI. HARINATH M.S. ADV.,)

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AND:

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…PETITIONER

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MR. SHARATH KUMAR K.S. AGED ABOUT 35 YEARS S/O K.S. SWAMY.

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MRS. MYTHILI M.R. AGED ABOUT 33 YEARS W/O SHARATH KUMAR K.S.

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BOTH THE RESPONDENTS 1 & 2 ARE RESIDING AT NO.60, 2ND MAIN 2ND CROSS, H BLOCK RAMAKRISHNAGAR, MYSORE.

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MRS. CHITRADEVI AGED ABOUT 62 YEARS W/O LATE DHANARAJULU NAIDU.

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MR. D.J.S. SAMRAJ

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NC: 2023:KHC:31553 WP No.14079 of 2020

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AGED ABOUT 45 YEARS S/O LATE DHANARAJULU NAIDU.

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MRS. BAVATHARANI AGED ABOUT 38 YEARS W/O D.J.S SAMRAJ.

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MISS. ANGUSREE SAMRAJ AGED ABOUT 13 YEARS D/O D.J.S. SAMRAJ.

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MISS. SREEVIDHYA SAMRAJ AGED ABOUT 12 YEARS D/O D.J.S SAMRAJ.

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RESPONDENTS 5 & 6 ARE MINORS REPRESENTED BY THE GUARDIAN MOTHER MRS. BHAVATHARANI.

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RESPONDENTS 3 TO 6 ARE R/AT. SREE ANGALEESWARI KRUPA NO. 73/1A, GOVERNMENT GUEST HOUSE ROAD NAZARABAD, NEXT TO SIDDHARTH HOTEL MYSORE-570010.

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…RESPONDENTS

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(BY SRI. VINAY BHAT, ADV., FOR R1 & R2 R3 TO R5 ARE SERVED BUT UNREPRESENTED R6 & R7 ARE MINORS)

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THIS WP IS FILED UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD 04.09.2019 PASSED BY III ADDL SENIOR CIVIL JUDGE AND CJM MYSURU IN DISMISSING IA NO.3 FILED IN OS NO.822/2017 VIDE ANNX-A TO IMPLEAD AS ONE OF THE DEFENDANTS TO RESIST THE CLAIM OF THE PARTIES. SET ASIDE THE ORDER DTD 04.09.2019 DISMISSING IA NO.3 FILED BY THE PETITIONER BEFORE THE III ADDL SENIOR CIVIL JUDGE AND CJM, MYSURU IN DISMISSING IA NO.3 FILED IN OS NO.822/2017 VIDE ANNX-A TO IMPLEAD AS ONE OF THE DEFENDANTS TO RESIST THE CLAIM OF THE PARTIES AND TO ALLOW IA NO.3 OF THE PETITIONER & ETC.

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NC: 2023:KHC:31553 WP No.14079 of 2020

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is filed assailing the order dated 04.09.2019 passed by the III Addl. Sr. Civil Judge and CJM, Mysuru whereby the application filed by the petitioner in I.A.No.3 in O.S.No.822/2017 seeking to implead is rejected.

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Brief facts giving rise to filing of this petition are that respondent Nos.1 and 2 have filed a suit for specific performance of the agreements dated 12.11.2015. In the said suit, the present petitioner has filed an application in I.A.No.3 seeking prayer to implead him as a defendant on the ground that the father of the applicant and other parties have entered into a settlement deed dated 10.04.1972. The said settlement was entered into between the petitioner and other brothers. In the said settlement, the impleading applicant is having a preemption right over the suit schedule property and now the defendants have executed this agreement of sale in favour of the plaintiff without offering the property for sale in his favour. Hence, the petitioner is a proper and necessary party in the suit

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NC: 2023:KHC:31553 WP No.14079 of 2020

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filed for specific performance. The said application was duly considered by the Trial Court and was dismissed. Being aggrieved by the same, the present petition has been filed.

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Sri.Harinath M.S., learned counsel appearing for the petitioner submits that the settlement deed is entered between the brothers of Dhananjay Naidu on 10.04.1972 and in the said settlement, the properties were settled among the children namely M.D.Dhanarajulu Naidu, M.D.Bhaskar Naidu, M.D.Bheema Naidu, M.D.Rangaswamy Naidu and M.D.Madhava Naidu. The present applicant is M.D.Rangaswamy Naidu. In the settlement deed, the preemption right has been mentioned between the brothers while signing the settlement deed that if any brother or successor in interest intend to dispose of the properties, they should offer those properties to other brothers including the petitioner, then only the property can be alienated to the third parties and without offering the same, the plaintiffs i.e. respondent Nos.1 and 2 intend to sell the property to plaintiff Nos.3 to 5. The said act of respondent Nos.1 and 2 is contrary to settlement deed dated 10.04.1972 and particular rights which has been recognized and approved in favour of the

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NC: 2023:KHC:31553 WP No.14079 of 2020

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petitioner. Hence, the petitioner is necessary and proper party

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to the proceedings in the suit.

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Per contra, learned counsel for the respondents supports the impugned order of the Trial Court and submits that the proposed applicant is neither proper nor necessary party and to dismiss the petition.

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I have heard the learned counsel for the petitioner, learned counsel for the respondents and have perused the record. It is not in dispute that respondent No.1 have filed a suit for specific performance of the agreements dated 12.11.2015 against defendant Nos.1 to 5. In the said suit, the present petitioner has filed an application seeking for impleadment on the ground that all his brothers have settled the properties way back on 10.04.1972 and in the said settlement deed, a right of preemption has been created in favour of the parties to the settlement and the petitioner being one of the brothers and party to the said settlement entitled to enforce his right of preemption by opposing the suit. Hence, the petitioner is a necessary party.

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NC: 2023:KHC:31553 WP No.14079 of 2020

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On perusal of the record, it is evident that subsequent to the alleged settlement deed dated 10.04.1972, a sale deed dated 12.09.2016 has been executed and the properties have been alienated by the present petitioner i.e. M.D.Ramaswamy Naidu and his brothers. In the said sale deed, a specific mention is that there is a partition among the brothers on 31.03.2000. It is not in dispute that the present petitioner has sold the properties which has fallen to his share by referring the partition which has taken place on 31.03.2000. The act of the petitioner selling the properties based on the subsequent partition deed dated 31.03.2000 is nothing but an act of waiving his right of preemption, if any, under the alleged settlement deed dated 10.04.1972. It is also not in dispute that the suit is for specific performance of the agreement dated 12.11.2015. In my considered view, the petitioner herein is neither necessary nor proper party to adjudicate the said suit. If the petitioner is allowed to be impleaded in the present suit, the very scheme and scope of the suit filed by the respondent Nos.1 and 2 would be enlarged. Hence, the petitioner has no existing right and preemption as on this day.

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NC: 2023:KHC:31553 WP No.14079 of 2020

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In my considered view, the Trial Court has recorded a categorical finding that there is already a partition between the brothers and based on the partition, the present petitioner has sold the property and petitioner is not necessary party to the said suit and dismissed the application. I do not find any error or infirmity to interfere with the finding recorded by the Trial Court.

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Hence, the writ petition being devoid of merits is hereby dismissed.

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Sd/JUDGE

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Mr. M.D. Rangaswamy Naidu v. Mr. Sharath Kumar K S

Case brief

What is this about?

What did the court decide?

Mr. M.D. Rangaswamy Naidu v. Mr. Sharath Kumar K S

Case brief

What is this about?

What did the court decide?

What the court decided

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