Dismissed

Sri.Dev.v. Kotian v. Smt. Jayashree a Bakshi

Karnataka HC26 Jun 2024WP/13797/2023

Case brief

AI extract

What is this about?

Defendant No.5 in a partition suit challenged dismissal of its application for framing additional issues on court fee, jurisdiction and maintainability without a declaration against alienees. The High Court held existing issues sufficed, since absent a prayer that sale deeds were not binding, any decree could not affect subsequent purchasers, and dismissed the petition.

What the court decided

AI extract

Sri.Dev.v. Kotian Vs Smt. Jayashree a Bakshi — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:23625 WP No. 13797 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26^TH DAY OF JUNE, 2024 BEFORE

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THE HON'BLE MR JUSTICE M.I.ARUN

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WRIT PETITION NO. 13797 OF 2023 (GM-CPC)

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BETWEEN:

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SRI. DEV. V. KOTIAN, S/O LATE VENKAPPA KOTIAN, AGED ABOUT 68 YEARS, R/AT DOOR NO.401, MANGAL MILAP, 12TH GULMOHAR CROSS ROAD, AVPD SCHEME, JUHU, MUMBAI-400049.

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PETITIONER

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(BY SRI. ANANDARAMA K., ADVOCATE)

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AND:

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Digitally signed by V MANJUSHA BAI Location: High Court of Karnataka

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SMT. JAYASHREE A BAKSHI, W/O MR. ASHOK BAKSHI, AGED ABOUT 72 YEARS, GOKUL RESIDENCY, BUILDING H-FLAT NO.505, THAKUR VILLAGE (NEXT TO GOKUL GAGAN), KANDIVALI (EAST), MUMBAI-400101.

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SMT. ROHINI JAYAKAR SHETTY, W/O MR. JAYAKAR N SHETTY, AGED ABOUT 66 YEARS, 22/19, AIR INDIA COLONY, KALINA, SANTA CRUZ (EAST), MUMBAIL 400029.

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SMT. SUBHASHINI RAVI MENON, W/O MR RAVI MENON,

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2 - NC: 2024:KHC:23625 WP No. 13797 of 2023

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AGED ABOUT 63 YEARS, NO.126, KUTEERAM FERNS RESIDENCY, K NARAYANPURA KOTHANUR BANGALORE 560077.

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SMT. RENUKA V SHETTY, D/O MR V S SHETTY, AGED ABOUT 69 YEARS, 902, SPECTRA, PRATHEMESH COMPLEX, VEERA DESAI ROAD, ANDHERI (WEST) MUMBAI - 400053.

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SMT. SHALINI. K BILLIMORIA. D/O MR. KERSI BILLIMORIA, AGED ABOUT 61 YEARS, 1/21 DHUNBAI WADI, DABABHAI ROAD, VILE PARLE (WEST) MUMBAI 400056.

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SRI. NIRANJAN. V SHETTY, S/O MR V S SHETTY, AGED ABOUT 56 YEARS SHIVA KRIPA, THADAMBAIL, SURATHKAL, MANGALORE 575014.

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ASHISH. D KOTIAN, S/O SMT. SHALINI KOTIAN, ADULT AND MR. DEV. V.KOTIAN, R/AT 401, MANGAL MILAP, 12TH GULMOHAR CROSS ROAD, AVPD SCHEMEN, JUHU, MUMBAI-400049.

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AISHWARYA D. KOTIAN, D/O SMT. SHALINI D. KOTIAN,

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3 - NC: 2024:KHC:23625 WP No. 13797 of 2023

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ADULT, JAND MR. DEV. V. KOTIAN, R/AT 401, MANGAL MILAP, 12TH GULMOHAR CROSS ROAD, AVPD SCHEME, JUHU, MUMBAI-400049.

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RESPONDENTS

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(BY SRI. SWAROOP S., ADVOCATE FOR R1 AND R3,. V/O DATED 26.06.2024 SERVICE OF NOTICE TO R6 IS NOT NECESSARY;

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V/O DATED 25.10.2023 NOTICE TO R7 AND R8 ARE DISPENCED WITH.)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-CALL FOR RECORDS IN O.S.NO.114/2015 PENDING ON THE FILE OF I ADDL. SENIOR CIVIL JUDGE, MANGALORE, DK AND ETC,.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Aggrieved by the order passed on IA.No.15 in OS.No.114/2015 defendant No.5 therein has preferred this writ petition. Respondent Nos.1 to 3 are the plaintiffs in OS.No.114/2015, respondent Nos.4 to 8 and the petitioner herein are defendants.

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For the sake of convenience parties are referred to as per their status before the Trial Court.

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Plaintiffs along with defendant Nos.1 to 3 are the children of one Smt. Gulabi Hengsu @ Gulabi V. Shetty,. The

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NC: 2024:KHC:23625 WP No. 13797 of 2023

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plaintiffs on the ground that the said Smt. Gulabi Hengsu purchased the suit schedule property and it is her self acquired property and she died intestate and because of which the plaintiffs along with defendant Nos.1 to 3 have inherited the suit schedule property equally, have filed OS.No.114/2015 for partition. Defendant Nos.4a, 4b and 5 have contended that the said property was a self acquired property of Smt. Gulabi Hengsu and she has executed a Will in respect of the same, in favour of defendant Nos.1 and 3, who are the children and they have in turn sold the same in favour of defendant Nos.4 and 5 by way of a registered sale deed. The plaintiffs have filed Original Suit with the following prayers;

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"The plaintiffs therefore, prays for a JUDGMENT and DECREE against the defendants for the following reliefs:-

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a. Directing physical division and PARTITION of plaint schedule property along with the commercial complex into 6 equal shares by metes and bounds with reference to good and bad soil and make over THREE such shares to the PLAINTIFFS.

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b. Directing the defendant No.3 to render accounts of income from the commercial complex situated in the plaint schedule property since the date of death of Smt. Gulabi Hengsu @ Gulabi V. Shetty.

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c. Grant cost of this suit.

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d. Grant such other and further reliefs as the court deems fit to grant under the circumstances of the case."

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Given the facts pleaded in the plaint and written

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statements defendant No.3 filed IA.No.14 for framing additional issues which are as follows;

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"1. Whether the plaintiffs prove that the Will alleged by the defendant No.3is forged and bogus document?

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2. Whether the plaintiffs prove that sale deed executed by

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the defendant No.3 is fraudulent document?

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3. Whether the suit for bare partition without relief of declaration is maintainable?

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4. Whether the relief claimed in the plaint is barred by law of limitation?"

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and defendant No.5 has filed IA.No.15 for framing three additional issues which reads as follows;

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"1. Whether the suit of the plaintiffs is property valued

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for the purpose of court fee and jurisdiction?

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2. Whether the suit of the plaintiffs is maintainable without seeking declaration of their right in the plaint schedule property?

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3. Whether the suit is required to be valued under Section 35(1) and 38 of K.C.F and S.V Act by the plaintiffs since the outer of their possession in respect of plaint schedule property as pleaded by defendants Nos.4 and 5?"

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6 - NC: 2024:KHC:23625 WP No. 13797 of 2023

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Both the said IAs have been dismissed by the Trial Court by passing the impugned order. Aggrieved by the dismissal of IA.No.15 defendant No.5 has preferred this writ petition.

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The case of the petitioner/ defendant No.5 is that the plaint has been filed mischievously, wherein the plaintiffs have sought for their share in the suit schedule property on the ground that it is the property of their mother and that she died intestate and that they are entitled to 1/6^th share in the same. They have not made any prayer in respect of the Will executed by the mother in favour of defendant Nos.1 and 3 and the subsequent sale deed executed by defendant Nos.1 and 3 in favour of defendant Nos.4 and 5, as not binding on them. It is submitted that defendant No.5 has taken a specific contention about the alienation of the property from the family of the plaintiff and defendant Nos.1 to 3, because of which the additional issues are proposed in IA.No.15 ought to have been framed by the Trial Court.

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Per contra , the plaintiffs justify the order passed by the Trial Court and prays for dismissal of the writ petition.

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NC: 2024:KHC:23625 WP No. 13797 of 2023

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However, in the course of the arguments learned counsel for the plaintiffs submits that he has no objection if the issues as prayed by defendant No.5 are framed by the Trial Court.

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Issues arise when a material proposition of fact or law is affirmed by one party and denied by another. It is the responsibility of the Court to frame the issues relating to both facts as well as law.

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In the instant case, the case of the plaintiffs is that the suit schedule property is the self acquired property of their mother and that she died intestate and because of which it is liable to be partition between plaintiffs and defendant Nos.1 to 3 who are the children of their mother.

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Though the plaintiffs state in the plaint that the suit schedule property has been alienated by defendant Nos.1 and 3 in favour of defendant Nos.4 and 5, no prayer has been made by the plaintiffs regarding the Will, set to have been executed by their mother in favour of defendant Nos.1 and 3 and regarding the sale executed by defendant Nos.1 and 3 in favour of defendant Nos.4 and 5 being not binding on them. Defendant No.3 is said to have made an averment to the effect that the Will has been executed by their mother based on which

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8 - NC: 2024:KHC:23625 WP No. 13797 of 2023

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defendant Nos.1 and 3 have sold the property in favour of defendant Nos.4 and 5. Defendant No.5 has taken specific contention that by way of Will defendant Nos.1 and 3 inherited the property and they have sold the property in turn to defendant No.5.

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The apprehension of defendant No.5/ petitioner is that as there is no issues framed regarding alienation of the property in their favour by defendant Nos.1 and 3, tomorrow the plaintiffs may get a declaration from the Trial Court that they are entitled to 1/6^th share in the property of their late mother and that may be sought to be enforce against the petitioner/ defendant Nos.4 and 5. It is further submitted that for that reason they have preferred IA regarding framing of additional issues and the writ petition is also filed for the very reason.

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In my opinion such apprehension of the petitioner/ defendant Nos.4 and 5 is unfounded. When the plaintiffs failed to seek a declaration that the subsequent sale deeds regarding the property executed by some of the family members in favour of 3^rd parties is not binding on them, then in that event the Court cannot grant such relief to the plaintiffs. In the

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9 - NC: 2024:KHC:23625 WP No. 13797 of 2023

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instant case admittedly the plaintiffs are not in possession of the suit schedule property. It has been alienated in favour of defendant Nos.4 and 5. For that reason, if plaintiffs do not seek a prayer that the sale deed is not binding on them, then in that event whatever decree they may obtain from the Trial Court cannot be enforced against defendant Nos.4 and 5 who are subsequent purchasers. For the same reason, the Trial Court has framed the issues which reads as follows;

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"1. Whether plaintiffs prove that the suit schedule property is available for division as on the date of instruction of the suit between the plaintiffs and defendants?

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2. Whether the plaintiffs prove that they are entitling for partition and separate possession of their collective 3/6^th share in suit schedule property by metes and bounds?

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3. Whether the plaintiffs prove that the defendant N.3 is required to render that accounts of income pertaining to the commercial complex situated in plaint schedule property from the date of death of Gulabi Hengsu @ Gulabi Shetty in respect of the share of plaintiffs? If so, to what extent?

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4. Whether the defendant No.3 proves that during the life time of Smt. Gulabi Shetty she had executed her Last Will dated 21.05.1991 during her sound disposing state of mind and bequeathed the property owned by her in favour of defendant No.1 and 3?

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10 - NC: 2024:KHC:23625 WP No. 13797 of 2023

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5. Whether plaintiffs entitling for the reliefs as prayed for?

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6. What Order or Decree?"

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If first issue is answered in the negative than in that

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event suit of the plaintiffs will have to be dismissed.

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Based upon the pleading made in the plaint and

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written statements the Trial Court has framed the issues. Under the circumstances, the Trial Court is of the opinion that the additional issues as suggested by defendant No.5 is not required. I do not see any error in the same.

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For the aforementioned reason, the writ petition is

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hereby dismissed , subject to the aforementioned observations. As the writ petition is being dismissed service of notice to other respondents is not necessary.

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Sd/JUDGE

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List No.: 1 Sl No.: 7

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PNV

Sri.Dev.v. Kotian v. Smt. Jayashree a Bakshi

Case brief

What is this about?

What the court decided

Sri.Dev.v. Kotian v. Smt. Jayashree a Bakshi

Case brief

What is this about?

What the court decided

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