Allowed

Dr. Badami Parthasarathy v. Badami Varadarajulu

Karnataka HC21 Aug 2024RFA/100345/2017

Case brief

AI extract

What is this about?

Appeal against rejection of a partition plaint under Order VII Rule 11(a) CPC based on a settlement deed giving the settlee only life interest with succession to male descendants. The High Court held this consideration was extraneous at that stage, set aside the order, restored the suit, and directed framing of an issue on Section 14 of the Hindu Succession Act.

What the court decided

AI extract

Dr. Badami Parthasarathy Vs Badami Varadarajulu — Partition | Karnataka HC (2024)

¶1

- 1 - NC: 2024:KHC-D:11861-DB RFA No. 100345 of 2017

¶2

IN THE HIGH COURT OF KARNATAKA,

¶3

DHARWAD BENCH

¶4

DATED THIS THE 21^ST DAY OF AUGUST, 2024

¶5

PRESENT

¶6

THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD

¶7

AND

¶8

THE HON'BLE MR. JUSTICE C M JOSHI

¶9

REGULAR FIRST APPEAL NO.100345 OF 2017 (PAR/POS)

¶10

BETWEEN:

¶11

DR. BADAMI PARTHASARATHY, S/O. LATE BADAMI LAKSHMIPATHIAPPA, SINCE DECEASED BY HIS LR’s.,

¶12

SMT. B. VANAJAKSHI, W/O. LATE DR. BADAMI PARTHASARATHY, AGED ABOUT: 65 YEARS, OCC: HOUSEWIFE, R/O: FLAT NO. 201, SURESH HARIVILLU,

¶13

NO.10-2-278, P.T. NO.253B, KONDA REDDY STREET,

¶14

WEST MARREDPALLY, SECUNDERABAD-500026.

¶15

Digitally signed by VINAYAKA B V

¶16

Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD Date: 2024.09.10 10:44:14 +0530

¶17

SMT. B. GAYATHRI, D/O. LATE DR. BADAMI PARTHASARATHY, W/O. B. SHARATH CHANDRA, AGED ABOUT: 47 YEARS, OCC: HOUSEWIFE, R/O: FLAT NO.201, SURESH HARIVILLU, NO.10-2-278, P.T. NO.253B, KONDA REDDY STREET, WEST MARREDPALLY, SECUNDERABAD-500026.

¶18

APPELLANTS

¶19

(BY SRI. MRUTYUNJAYA S. HALLIKERI, ADVOCATE)

¶20

AND:

¶21

BADAMI VARADARAJULU, S/O. LATE BADAMI LAKSHMIPATHIAPPA, SINCE DECEASED BY HIS LR’s.,

¶22

1(A). SMT. SUDHA BADAMI, W/O. BADAMI VARADARAJULU, AGE: 69 YEARS, OCC: HOUSEWIFE,

¶23

¶24

NC: 2024:KHC-D:11861-DB RFA No. 100345 of 2017

¶25

R/O: FLAT NO.3, SMSKRUTI SAMPANGI APARTMENTS, H.NO.10-3-134/6, LANE NO.4, STREET NO.3, TEACHERS COLONY, EAST MARREDPALLY, SECUNDERABAD-500026,

¶26

STATE: TELANGANA.

¶27

1(B). SMT. B. VIJETA D/O. BADAMI VARADARAJULU, AGE: 42 YEARS, OCC: DOCTOR, R/O: FLAT NO.3, SAMSKRUTI SAMPANGI APARTMENTS, H.NO.10-3-134/6, LANE NO.4, STREET NO.3, TEACHERS COLONY, EAST MARREDPALLY, SECUNDERABAD-500026, STATE: TELANGANA.

¶28

1(C). HARISH BADAMI S/O. BADAMI VARADARAJULU, AGE: 41 YEARS, OCC: DOCTOR, R/O: B-1102, APARNA HILLS, PARK AVENUE BESIDE GANGARAM, CHERUVU, CHANDA NAGAR, HYDERABAD-500050.

¶29

1(D). BOLUSANI HARITHA W/O. B. MAHENDRAPRASAD, AGE: 41 YEARS, OCC: TEACHER, R/O: PLOT NO.60, SBH COLONY, TRIMULGHERRY, SECUNDERABAD-500015, STATE: TELANGANA.

¶30

1(E). SHIRISH BADAMI S/O. BADAMI VARADARAJULU, AGE: 38 YEARS, OCC: PRIVATE SERVICE, R/O: FLAT NO.3, SAMSKRUTI SAMPANGI APARTMENTS, H.NO.10-3-134/6, LANE NO.4, STREET NO.3, TEACHERS COLONY, EAST MARREDPALLY, SECUNDERABAD-500026, STATE: TELANGANA.

¶31

MARISIDDAMMA W/O. SANNA MALLANA GOUDA, AGED ABOUT: 54 YEARS, OCC: AGRICULTURIST, R/O: BANAPUR VILLAGE (MOKA PO), BALLARI TALUK AND DISTRICT-583101.

¶32

DODDA DURGAMMA D/O. HANUMANTHAPPA, AGED ABOUT: 51 YEARS, OCC: AGRICULTURIST, R/O: BANAPUR VILLAGE (MOKA PO), BALLARI TALUK AND DISTRICT-583101.

¶33

3 - NC: 2024:KHC-D:11861-DB RFA No. 100345 of 2017

¶34

GADDE SHEKHAR REDDY S/O. BASAPPA, AGED ABOUT: 54 YEARS, OCC: AGRICULTURIST, R/O: BANAPUR VILLAGE (MOKA PO), BALLARI TALUK AND DISTRICT-583101.

¶35

GANGAMMA W/O. GADDE MALLAPPA, AGED ABOUT: 51 YEARS, OCC: AGRICULTURIST, R/O: BANAPUR VILLAGE, (MOKA PO), BALLARI TALUK AND DISTRICT-583101.

¶36

DARUR DURGAMMA @ DURKULGAMMA D/O. HANUMANTHAPPA, AGED ABOUT: 52 YEARS, OCC: AGRICULTURIST, R/O: BANAPUR VILLAGE, (MOKA PO), BALLARI TALUK AND DISTRICT-583101.

¶37

RESPONDENTS

¶38

(BY SRI. K.S.SHYAMSUNDAR, ADVOCATE FOR R1(A) TO R1(E); NOTICE TO R2 TO R6 – SERVED ON MAIN AND UNREPRESENTED; NOTICE TO R2, R4 AND R5- HELD SUFFICIENT; NOTICE TO R3 AND R6 –DISPENSED WITH)

¶39

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 21.09.2017 PASSED IN O.S.NO.190/2011 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CMC BALLARI, ALLOWING THE I.A.NO.9 FILED UNDER ORDER 7 RULE 11(A) READ WITH ORDER 22 RULE 1 AND SECTIONS 94 AND 151 OF C.P.C. & ETC.

¶40

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶41

CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE C M JOSHI

¶42

4 - NC: 2024:KHC-D:11861-DB RFA No. 100345 of 2017

¶43

ORAL JUDGMENT

¶44

(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)

¶45

This appeal is by the legal representatives of the deceased plaintiff in O.S. No. 190/2011 on the file of the Principal Senior Civil Judge, Ballari [for short, the ‘civil Court’ ]. The civil Court by the impugned order has rejected the plaint under Order VII Rule 11(a) of CPC on the short ground that the undisputed owner of the suit schedule properties, Sri Badami Lakshmipathiappa, has executed a registered settlement deed dated 24.05.1967 stipulating that on the demise of the settlee [his wife], the properties shall devolve only on the male descendants and there cannot be any cause of action for the suit because the appellants are the wife and daughter of one of the sons Sri. Badami Parthasarathy [the deceased plaintiff].

¶46

The first respondent has filed the subject application under Order VII Rule 11(a) of CPC, and some of the other respondents, who have purchased different portions of one of the suit schedule properties, have supported this application. The first respondent, who is the

¶47

5 - NC: 2024:KHC-D:11861-DB RFA No. 100345 of 2017

¶48

other son of Sri Badami Lakshmipathiappa, has died during the pendency of this appeal and his legal representatives have come on record. These legal representatives are duly represented but their learned counsel has remained consistently absent. This Court, because the other respondents though served have remained unrepresented and they have only supported the application without any additional pleadings, has dispensed with notice to the unserved respondents by Order dated 06.08.2024.

¶49

The appellants have filed application to amend the plaint in the present appeal, and the proposed amendment is to essentially contend that the settlee [Sri Badami Lakshmipathiappa’s wife] has acquired absolute right and interest in the suit schedule properties in view of the provisions of Section 14 of the Hindu Succession Act, 1956 [for short, ‘the H.S. Act’ ] notwithstanding the terms of the settlement deed and that on her demise, her sons, the original plaintiff [Sri Badami Parthasarathy] and the first respondent [Sri Badami Varadarajulu] would be equally entitled to the properties. Sri Mrutyunjaya S. Hallikeri, the

¶50

6 - NC: 2024:KHC-D:11861-DB RFA No. 100345 of 2017

¶51

learned counsel for the appellants, is heard on both the application and the appeal for final disposal.

¶52

Sri Mrutyunjaya S. Hallikeri submits that the original plaintiff [Sri Badami Parthasarathy] has setforth indisputably that [a] Sri Badami Lakshmipathiappa was the owner of the suit schedule properties; [b] that he has executed settlement deed on 24.05.1967 in favour of his wife Lakshmidevamma ; [c] that Lakshmipathiappa has died on 21.12.1973 and his wife Smt. Lakshmidevamma died on 19.06.1975; [d] that Smt. Lakshmidevamma had life interest in the property according to the settlement deed and after her demise, the first respondent [Sri Badami Varadarajulu] could not have alienated the properties; and [e] that the original plaintiff [Sri Badami Parthasarathy], was employed outside Ballari and could not have known the transfers and hence on coming to know about the transfer, has filed the present suit for partition and mesne profits as against his brother and the purchasers.

¶53

7 - NC: 2024:KHC-D:11861-DB RFA No. 100345 of 2017

¶54

Sri Mrutyunjaya S. Hallikeri submits that the original plaintiff has in setting-forth aforesaid circumstances in the plaint has laid foundation for his claim to half a share in the suit schedule properties. The learned counsel elaborates that the civil Court, based on these foundational circumstances, had to examine whether Smt. Lakshmidevamma’s limited rights in the suit schedule properties under the settlement deed blossomed into full rights as is contemplated under Section 14 of the H.S. Act , and that if it could be opined that in the circumstances that Smt. Lakshmidevamma had full rights to the subject properties, on her demise the properties would be open for succession under Section 15 of the aforesaid enactment. The learned counsel contends that therefore the civil Court could not have rejected the plaint under Order VII Rule 11(a) CPC without considering these circumstances after due evidence.

¶55

This Court must observe that the civil Court

¶56

has rejected the plaint allowing the first respondent without examining the applicability of this proposition in the facts

¶57

8 - NC: 2024:KHC-D:11861-DB RFA No. 100345 of 2017

¶58

and circumstances as is borne out by the plaint. The civil Court has perfunctorily accepted the terms of the deed giving life interest to Smt. Lakshmidevamma with succession only to male progeny construing the deed as Last Will and Testament. This consideration will be outside the pleadings in the plaint and therefore extraneous to the due consideration of the application under Order VII Rule 11 (a) of CPC.

¶59

This Court must therefore interfere with the

¶60

impugned order and restore the suit for adjudication. On the proposed amendment of the plaint, this Court must observe that the proposed amendment is to plead that the provisions of Section 14 of the H.S. Act must be applied. It is settled that neither the law nor the application of the afore provision of law are part of the pleadings. The appellant has sought for a comprehensive prayer for partition with mesne profits , and the question of grant of this relief would necessarily entail considering the afore statutory provision and appropriate findings in this regard. As such this Court is of considered view that the amendment could only be

¶61

9 - NC: 2024:KHC-D:11861-DB RFA No. 100345 of 2017

¶62

superfluous or intended as a matter of abundant caution and need not be permitted, but the civil Court must necessarily frame an issue on this aspect so that the parties have due opportunity to lead evidence to enable complete adjudication on all the questions for consideration. In the light of the afore, the following:

¶63

ORDER

¶64

[a] The appeal is allowed setting aside the civil Court’s impugned order dated 21.09.2017 and restoring the suit for re-consideration on merits.

¶65

[b] The civil Court is called upon to frame an issue on whether the appellants - plaintiffs prove that Smt. Lakshmidevamma acquired absolute right to the suit schedule properties in view of the provisions of Section 14 of the Hindu Succession Act, 1956 and that on her demise the suit schedule properties devolved

¶66

upon on her two sons, Sri Badami Parthasarathi and Sri Badami Varadarajulu.

¶67

- 10 - NC: 2024:KHC-D:11861-DB RFA No. 100345 of 2017

¶68

[c] The appellant shall appear before the civil Court, without further notice, on 23.09.2024 and the civil Court shall ensure that the respondents are duly served after the legal representatives of the deceased first respondent are brought on record in the suit. The appellants are reserved with liberty in this regard.

¶69

[d] The application I.A. No. 1/2022 stands disposed of in the light of the afore observations made in the course of this order.

¶70

Sd/(B.M.SHYAM PRASAD) JUDGE

¶71

Sd/(C M JOSHI) JUDGE

¶72

BVV Ct:vh List No.: 1 Sl No.: 14

Dr. Badami Parthasarathy v. Badami Varadarajulu

Case brief

What is this about?

What the court decided

Dr. Badami Parthasarathy v. Badami Varadarajulu

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. Rajashree W/O Babanna Patil Vs Shri. Appasab @ Appasaheb S/O Raosaheb Desai

The Karnataka Thanda Development Vs Smt. Rajabi W/O Rajasab Aloor

Kumar. Mrutyunjayagouda Vs Shanthanagouda

Gangavva W/O. Irappa Ganachari Vs Smt. Shantavva W/O. Shivalingappa Sankadal

Sri.Adiveppa Dundappa Katti Vs Smt.Gangavva W/O Irappa Ganachari

Basanagouda S/O. Parvathagouda Patil, Vs Sulochanabai D/O. Renukabai Kalavanth