Remanded

S Venkataswamy v. S Shankar

Karnataka HC20 Nov 2024RFA/360/2019

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the trial court's order in final decree proceedings. The court held that since a suit challenging a release deed was subsequently set aside, the appellant is entitled to 3/5th share of the property, remitting the matter to the trial court for fresh partition proceedings.

What did the court decide?

The impugned order dated 19.12.2018 is set aside; appellant entitled to 3/5th share; respondents 1 and 2 entitled to 1/5th share each; matter remitted to trial court for final decree proceedings.

S Venkataswamy Vs S Shankar — Partition | Karnataka HC (2024)

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NC: 2024:KHC:47166 RFA No. 360 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 360 OF 2019 (PAR)

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BETWEEN:

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S. VENKATASWAMY S/O LATE SIDDAPPA DIED BY HIS LR’S

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1(A) S. VENKATALAKSHMI

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W/O LATE S. VENKATASWAMY, AGED ABOUT 62 YEARS,

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1(B) B. V. SUMITHRA

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D/O LATE S. VENKATASWAMY, AGED ABOUT 40 YEARS,

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Digitally signed by LEELAVATHI S R Location: HIGH COURT OF KARNATAKA

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BOTH R/AT NO.4, OLD NO.38, 1^ST MAIN, ‘C’ STREET, MYSURU ROAD, NEW GUDDADAHALLI, BANGALORE – 560 026.

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…APPELLANTS

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(BY SRI. SRINIVASA K., ADVOCATE)

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AND:

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S. SHANKAR S/O LATE SIDDAPPA, AGED ABOUT 68 YEARS, R/AT NO.4, OLD NO.38,

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1^ST MAIN, “C” STREET, MYSURU ROAD, NEW GUDDADAHALLI, BENGALURU – 560 026.

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S. RAJU S/O LATE SIDDAPPA SINCE DECEASED BY HIS L.RS.

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2(A) VANAMALA VENKATESH W/O VENKATESH AGED ABOUT 55 YEARS, R/AT KESHAVA RESIDENCY, 2^ND FLOOR, NO-845, 10^TH CROSS, 2^ND MAIN, OMBR LAYOUT, BENGALURU – 43.

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2(B) INDIRA NAGESH

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W/O LATE NAGESH AGED ABOUT 50 YEARS, R/AT NO.108, 4^TH FLOOR, 4^TH CROSS, 12^TH MAIN, BANASAWADI, BENGALURU – 43.

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2(C) PANKAJA B.R

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D/O LATE S. RAJU, AGED ABOUT 46 YEARS, NO.141, 3^RD CROSS, RAJYOTHSAVANAGAR, KUMARASWAMY LAYOUT, 2^ND STAGE, BENGALURU – 78.

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2(D) ANITHA SANATAN

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W/O SANATAN, AGED ABOUT 45 YEARS, R/AT NO.746, 3^RD FLOOR, 6^TH CROSS, 7^TH MAIN, KANAKANAGAR, BENGALURU – 78.

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2(E) B.R.HARIPRASAD

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S/O LATE S. RAJU AGED ABOUT 42 YEARS, R/AT NO.141, 3^RD CROSS, RAJYOTHSAVANAGAR, KUMARASWAMY LAYOUT, 2^ND STAGE, BENGALURU – 78.

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S. ASWATH S/O SIDDAPPA, AGED ABOUT 72 YEARS, R/AT NO.284, 15^TH “ A” CROSS, CHIKKABOMMASANDRA CROSS, ”A” SECTOR, YELAHANKA NEW TOWN, BANGALORE – 04.

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S. KRISHNAPPA S/O SIDDAPPA, AGED ABOUT:66 YEARS, R/AT.0508, KHB-PLATINUM APARTMENTS, KHB APARTMENTS, SHIRKE CIRCLE, KENGERI SATELLITE TOWN, BANGALORE – 560 060.

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…RESPONDENTS

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(SRI. S . SHANKAR- R1 (PARTY-IN-PERSON); BY SRI. M. BHASKAR JOIS, ADV. FOR R2 (C & E) & R2 (D), SRI M. M. ASHOKA, ADV. FOR R3 & R4; R2 (A) & (B) ARE SERVED)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE,PRAYING TO CALL FOR THE RECORDS IN FDP.NO.62/2015, ON THE FILE OF THE VII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE (CCH-19), AND SET ASIDE THE ORDER DATED

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NC: 2024:KHC:47166 RFA No. 360 of 2019

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19.12.2018 BY ALLOWING THE APPEAL AS PRAYED FOR IN THE ENDS OF JUSTICE AND EQUITY.

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

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CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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JUDGMENT

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This appeal by 2^nd defendant in FDP No.62/2015 on

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the file of the VII Addl. City Civil and Sessions Judge, Bangalore, is directed against the impugned order 19.12.2018, whereby the final decree petition filed by the 1^st respondent – plaintiff was allowed by the trial court.

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Heard learned counsel for the parties and perused the material on record.

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A perusal of the material on record will indicate that the appellant and respondents 1 to 4 are brothers, all of them being the children of late Siddappa. The 1^st respondent instituted a suit in O.S.No.5032/2018 for partition and separate possession of his alleged share in the suit schedule properties and for other reliefs. In the

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said suit instituted by the 1^st respondent, the appellant

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herein was arrayed as 2^nd defendant while 2^nd respondent herein was arrayed as 1^st defendant and respondents 3 and 4 as defendants 3 and 4 respectively. The said suit which comprised of A, B and C schedule property ended in a compromise decree dated 12.02.1982 under which, the appellant and respondents agreed to divide the ‘A’ schedule property equally among all 5 of them, each of them being entitled to 1/5^th share each in the ‘A’ schedule property.

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Subsequently, the 1^st respondent instituted the aforesaid final decree proceedings in FDP No.62/2015 seeking to implement and enforce the said compromise decree in respect of the ‘A’ schedule property. In the said final decree proceedings, the appellant who was arrayed as 2^nd defendant filed his objections interali a contending that respondents 3 and 4 herein had relinquished and released their 1/5^th share each in the ‘A’ schedule property in favour of the appellant herein and that consequently, the appellant would be entitled to 3/5^th share in the ‘A’

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NC: 2024:KHC:47166 RFA No. 360 of 2019

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schedule property, in which, the respondents 1 and 2 would be entitled to the remaining 1/5^th share, while the respondents 4 and 5 would not be entitled to any share in the ‘A’ schedule property. It is relevant to state that the said contention of the appellant was opposed by respondents 3 and 4, who contended that they had challenged the aforesaid release deed dated 05.03.2011 by instituting a suit in O.S.No.7332/2015, which was pending before the trial court. The said suit in O.S.No.7332/2015 filed by respondents 3 and 4 was contested by the appellant herein who was the sole defendant in the suit.

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After hearing the parties, the trial court disposed

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of the instant FDP No. 62/2015 by directing all parties i.e., appellant and respondents herein to be entitled to partition and separate possession of 1/5^th share each in the ‘A’ schedule property. The trial court rejected the contention of the appellant that he had become entitled to 3/5^th share in the ‘A’ schedule property by virtue of the released deed

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dated 05.03.2011 executed by respondents 3 and 4 in favour of the appellant on the ground that the aforesaid suit in O.S.No.7332/2015 had been filed by respondents 3 and 4 against the appellant challenging the said released deed. Aggrieved by the impugned order passed by the trial court, appellant is before this Court by way of the present appeal.

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The only point that arise for consideration is, as to whether the impugned order passed by the trial court is just and proper; in this context, the sole ground on which the trial court rejected the contention of the appellant that he had become the owner of 3/5^th share in the ‘A’ schedule property is by noticing that the release deed dated 05.03.2011 executed in his favour by respondents 3 and 4 had been challenged by them in O.S.No.7332/2015; it is pertinent to note that the said suit was decreed by the trial court in favour of respondents 4 and 5 vide judgment and decree dated 31.10.2019; however, in RFA No.204/2020, preferred by the appellant herein against

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NC: 2024:KHC:47166 RFA No. 360 of 2019

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the judgment and decree passed in O.S.No.7332/2015 filed by respondents 3 and 4, this Court has allowed the said appeal vide judgment and decree dated 21.11.2024 and the said suit in O.S.No.7332/2015 filed by respondents 3 and 4 against the appellant has been set aside by this Court. It is therefore clear that by virtue of this subsequent event that has transpired in relation to the ‘A’ schedule property i.e., dismissal of O.S.No.7332/2015 filed by respondents 3 and 4, the appellant would be entitled to 3/5^th share in the ‘A’ schedule property. Under

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these circumstances, I am of the view that the impugned order passed by the trial court deserves to be set aside and the matter remitted back to the trial court for reconsideration afresh in accordance with law by directing the trial court to conclude the final decree proceedings by granting partition and separate possession of 3/5^th share in the ‘A’ schedule property in favour of the appellant by granting partition and separate possession of the remaining 1/5^th share in favour of each of respondents 1 and 2 and to proceed further in accordance with law.

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NC: 2024:KHC:47166 RFA No. 360 of 2019

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In the result, I pass the following:-

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ORDER

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(i) Appeal is hereby allowed.

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(ii) The impugned order dated 19.12.2018 passed in FDP No.62/2015 by the trial court is hereby set aside.

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(iii) It is held that the appellant is entitled to 3/5^th share in the ‘A’ schedule property and that the respondents 1 and 2 are entitled to the remaining 1/5^th share each in the ‘A’ schedule property.

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(iv) The trial court is directed to proceed further and conclude the final decree proceedings in accordance with law as expeditiously as possible.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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SRL/SV List No.: 19 Sl No.: 1

S Venkataswamy v. S Shankar

Case brief

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S Venkataswamy v. S Shankar

Case brief

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