Dismissed

Smt Krishnavathi v. Mrs. Premavathy

Karnataka HC15 Oct 2024WP/1380/2018

Case brief

AI extract

What is this about?

This writ petition challenged an order dismissing a civil suit application to implead legal representatives of a deceased defendant. The High Court held that since the deceased's estate was represented by other respondents in the gift deed dispute, the application lacked merit and dismissed the writ.

What did the court decide?

Petition lacking merit dismissed as the deceased defendant's estate was already represented by other respondents.

Smt Krishnavathi Vs Mrs. Premavathy — Civil Procedure and Limitation | Karnataka HC (2024)

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1 - NC: 2024:KHC:41719 WP No. 1380 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 1380 OF 2018 (GM-CPC)

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BETWEEN:

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SMT KRISHNAVATHI W/O LATE G.D.SHARMA, AGED ABOUT 68 YEARS R/AT NO.50, 673/1, CENTURY PARK LAYOUT, VASANTH MAHAL ROAD, NAZARBAD MOHALLA, MYSORE-570 010.

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…PETITIONER

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(BY SRI. JYOTHI BHAT., ADVOCATE)

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AND:

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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MRS. PREMAVATHY W/O LATE G D SHARMA AGED ABOUT 61 YEARS, RESIDING AT 21/2 (NEW NO.82), SPENCER ROAD, II CROSS, FRAZER TOWN, BANGALORE-560 005. RESPONDENT NO.1 DEAD LEGAL HEIR OF FIRST RESPONDENT I.E. SMT. PREMAVATHI AMENDMENT CARRIED OUT VIDE ORDER DATED 23.07.2018

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1(a) SRI PREM KUMAR S/O LATE A SATHYAPAL, R/AT HOUSE NO.707,

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2 - NC: 2024:KHC:41719 WP No. 1380 of 2018

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13TH CROSS, 3RD STAGE, GOKULAM MYSORE.

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1(b) SRI LALITH KUMAR S/O LATE A SATHYAPAL R/AT NO.886, 1ST STAGE, GOKULAM, 5TH CROSS, MYSORE.

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1(c) SRI DHILEP KUMAR S/O LATE A SATHYAPAL R/AT NO.76, 1ST MAIN ROAD YADAVGIRI, MYSORE.

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1(d) SMT NIRMALA JOSHI D/O LATE A SATHYAPAL R/AT NO.304, 3RD FLOOR, SAKET KOSALA APARTMENT PHASE 1, SAKET TOWN SHIP, KAPRA, ECIL POST, HYDERABAD.

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MR.BHAGAVANDAS SHARMA S/O LATE G.D.SHARMA, AGED ABOUT 45 YEARS R/AT NO.30, 3RD FLOOR, C-4 FLAT RUSTUMJI APARTMENT, NORRIS ROAD, RICHMAND TOWN, BANGALORE-560 025.

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MR.UMESH KUMAR SHARMA @ @ OM PRAKASH SHARMA SO LATE G.D.SHARMA AGED ABOUT 41 YEARS #10/1, 6TH FLOOR, LAXMINARAYAN COMPLEX, PALACE ROAD, VASANTHNAGAR, BANGALORE-560 052.

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…RESPONDENTS

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(BY SRI. SHARAN B T, ADVOCATE FOR C/R3 SRI P. D. SURANA, ADVOCATE FOR R1(a) & R2: (NOC OBTAINED IN R/O R2); NOTICE TO R1(b) IS SERVED NOTICE TO R1(c) IS HELD SUFFICIENT)

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3 - NC: 2024:KHC:41719 WP No. 1380 of 2018

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 02.12.2017 PASSED BY THE XXXV ADDL. CITY CIVIL AND SESSION JUDGE ON I.A.4 FILED BY THE PETITIONER IN O.S.4344/2012 VIDE ANNEXURE-A AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The plaintiff in O.S No.4344/2012, on the file of XXXV Additional City Civil and Session Judge, Bengaluru, has filed this writ petition challenging an order dated 02.12.2017, by which an application filed under Order 22 Rule 4 read with Section 151 of Code of Civil Procedure was dismissed.

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The suit in O.S No.4344/2012 was filed for the following reliefs:

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"i) Declaring that the Gift deed dated 14.10.2009 registered as Document No. GAN-1-01085-20092010 of Book I, pages 1 to 9, stored in CD No.GAND113 in the office of Sub-registrar, Gandhinagar, Bangalore, with respect of the suit schedule property is not binding on the plaintiff herein.

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ii) For a permanent injunction against the defendants or anybody claiming under the defendants in any manner whatsoever and

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NC: 2024:KHC:41719 WP No. 1380 of 2018

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restraining them from interfering with the peaceful possession and enjoyment of the schedule property by the plaintiff herein."

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(i) The plaintiff claimed that defendant No.1 had unlawfully executed a gift deed bequeathing the suit property in favour of defendant Nos.2 and 3. She claimed that the suit property belonged to her and that defendant No.1 had no right, title or interest to convey it to defendant Nos.2 and 3.

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(ii) The suit was contested by defendant Nos.2 and 3 who contended that though the suit was purchased in the name of their father, the said property was contributed as capital of plaintiff to a partnership firm, which developed the suit property where a commercial complex was constructed. They contended that the partnership was dissolved and as a part of dissolution, the suit property had gone to the share of defendant No.1 and that she executed a gift deed conveying the suit property to them.

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(iii) During the pendency of suit, defendant No.1 died, the plaintiff filed an application under Order 22 Rule 4 of code of Civil Procedure, to implead the brothers and sisters of defendant No.1. The said application was opposed by

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5 - NC: 2024:KHC:41719 WP No. 1380 of 2018

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defendant No.2, contending that they had succeeded to the property of defendant No.1 and therefore, impleading the brothers and sisters of defendant No.1 was unnecessary.

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(iv) The Trial Court, after perusing the contentions urged, rejected the application filed by the plaintiff in view of the fact that the defendant Nos.2 and 3 were already on record. Being aggrieved by the said order, this writ petition is filed.

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Learned counsel for the plaintiff contended that the plaintiff has sought for a declaratory relief in respect of gift deed executed by the defendant No.1 in favour of defendant Nos.2 and 3. He contends that, in the event of the plaintiff succeeding in the suit, the brothers and sisters of defendant No.1 should not raise any claim in respect of suit schedule property. Therefore, as a precautionary measure, she filed an application to bring the brothers and sisters of defendant No.1 on record.

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Per contra, learned counsel for defendant Nos.2 and

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3 contended that the plaintiff had filed the suit on the premise that the property belonged to her and that the gift deed

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6 - NC: 2024:KHC:41719 WP No. 1380 of 2018

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executed by defendant No.1 in favour of defendant Nos.2 and 3 were unconscionable, illegal and therefore not binding on her. She contended that the plaintiff specifically sought for relief of perpetual injunction, so as to avoid the gift deed executed. She therefore contends that, if the defendant No.1 had executed a gift in favour of defendant Nos.2 and 3 conveying the suit property, then, defendant No.1 cannot be treated as having died intestate. Thus he contends that the estate of defendant No.1 is sufficiently represented and there is no need to bring the legal representatives of defendant No.1, as defendant Nos.2 and 3 can represent the estate.

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I have considered the submission made by learned counsel for the plaintiff as well as the learned counsel for the defendant Nos.2 and 3.

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A perusal of the relief sought for in the plaint shows that, the plaintiff claimed that she is the absolute owner of the suit property. She contends that the gift deed executed by the defendant No.1 in favour of defendant Nos.2 and 3 was illegal and therefore not binding on her right title and interest. If the defendant No.1 had executed a gift deed in favour of

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NC: 2024:KHC:41719 WP No. 1380 of 2018

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defendant Nos.2 and 3 then, the defendant Nos.2 and 3 represented the estate of the defendant No.1. Therefore, there was no need to bring the brothers and sisters of the defendant No.1 on record as legal representatives of deceased defendant No.1. Since the estate of defendant No.1 is represented by defendant Nos.2 and 3, the suit can proceed. If the plaintiff is able to establish that she is absolute owner of suit property and that defendant No.1 did not have any right, title or interest in the suit schedule property to bequeath the same to the defendant Nos.2 and 3, she would be entitled to relief of perpetual injunction.

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In that view of the matter, there is no error committed by the Trial Court in rejecting the application filed by the plaintiff to bring the brothers and sisters on record. Hence, the petition lacks merit and is dismissed .

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Sd/(R. NATARAJ) JUDGE

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THM List No.: 1 Sl No.: 25

Smt Krishnavathi v. Mrs. Premavathy

Case brief

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Smt Krishnavathi v. Mrs. Premavathy

Case brief

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