Allowed

Smt.Fatima W/O. Dastagirsab Chikkodi v. Sri.Mahalingappa S/O.Ittappa Koligudde

Karnataka HC17 Sept 2024WP/138184/2020

Case brief

AI extract

What is this about?

This court quashed the Trial Court's order rejecting an application for impleading legal heirs of a deceased firm partner. The writ petition was allowed to permit the Amendment of cause title to include necessary parties regarding property purchased from partnership income.

What did the court decide?

Writ petition allowed, impugned order quashed, and IA under Order 1 Rule 10(2) CPC allowed with direction to amend cause title.

Smt.Fatima W/O. Dastagirsab Chikkodi Vs Sri.Mahalingappa… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:13197 WP No. 138184 of 2020

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH

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WRIT PETITION NO. 138184 OF 2020 (GM-CPC)

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BETWEEN:

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SMT. FATIMA W/O. DASTAGIRSAB CHIKKODI, AGED ABOUT 69 YEARS, OCC: HOUSEHOLD,

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SRI. MIRAJASAB S/O. DASTAGIRSAB CHIKKODI, AGED ABOUT 64 YEARS, OCC: AGRICULTURE,

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SRI. RASULSAB S/O. DASTAGIRSAB CHIKKODI, AGED ABOUT 60 YEARS, OCC: AGRICULTURE,

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SRI. MEHABOOBSAB S/O. DASTAGIRSAB CHIKKODI, AGED ABOUT 53 YEARS, OCC: AGRICULTURE,

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SRI. HUSSAINSAB S/O. DASTAGIRSAB CHIKKODI, AGED ABOUT 47 YEARS, OCC: AGRICULTURE,

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SAROJA HANGARAKI

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Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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SRI. MOULASAB S/O. DASTAGIRSAB CHIKKODI, AGED ABOUT 50 YEARS, OCC: AGRICULTURE,

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SRI. SHANURSAB S/O. DASTAGIRSAB CHIKKODI, AGED ABOUT 44 YEARS, OCC: AGRICULTURE,

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SRI. MUSTAQ-AHAMMED S/O. DASTAGIRSAB CHIKKODI, AGED ABOUT 41 YEARS, OCC: AGRICULTURE, ALL R/AT: GADAG GALLI, MAHALINGPUR, TQ: MUDHOL, DIST: BAGALKOTE.

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…PETITIONERS

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(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)

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AND:

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SRI. MAHALINGAPPA S/O. ITTAPPA KOLIGUDDE, AGED ABOUT 64 YEARS, OCC: AGRICULTURE AND BUSINESS, R/AT: NEAR MARUTI TALKIES, MAHALINGPUR, TQ: MUDHOL, DIST:BAGALKOTE-587311.

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SMT. SUMITRABAI W/O. BASAPPA KOLIGUDD, AGED ABOUT 64 YEARS, OCC: AGRICULTURE AND HOUSEHOLD, R/AT : NEAR MARUTI TALKIES, MAHALINGUR, TQ: MUDHOL, DIST: BAGALKOTE, REPRESENTING DISSOLVED PARTNERSHIP FIRM WITH NAME AND STYLE AS M/S. PRAKASH TRADING COMPANY SITUATED AT APMC YARD IN NA PLOT NO.1 IN R.S.NO.88+89/2, MAHALINGPUR, TQ: MUDHOL, DIST: BAGALKOTE-587311.

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SMT. SUVARNA W/O. BASAVARAJ KULALI, AGED ABOUT 47 YEARS, OCC: HOUSEHOLD, R/AT: CLASSIC PLAZA APARTMENT, A WING, FLAT NO.202, SOMAWAR PETH, TILAKWADI, BELAGAVI-590001.

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SMT. ANNAPURANA W/O. GIRISH TATTIMANI, AGED ABOUT 45 YEARS, OCC: HOUSEHOLD, R/AT: JAGADISH NAGAR, TIPPASANDARA HOUSE NO.584, 7^TH CROSS, A MAIN CROSS, POST: SIKASANDRA, BENGALURU-75.

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SMT. DRAKSHAYANI W/O. GIRISH KOPPAD, AGED ABOUT 43 YEARS, OCC: HOUSEHOLD, R/AT: LAXANATTI, TQ: MUDHOL, DIST: BAGALKOTE-587311.

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3 - NC: 2024:KHC-D:13197 WP No. 138184 of 2020

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SMT. SUREKHA W/O. PRAKASH TATTIMANI, AGED ABOUT 41 YEARS, OCC: HOUSEHOLD, R/AT : GANESH NAGAR, MAHALINGAPUR, TQ: MUDHOL, DIST: BAGALKOTE-587311.

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SRI. SHRISHAIL S/O. BASAPPA KOLIGUDDA, AGED ABOUT 39 YEARS, OCC: AGRICULTURE, R/AT: NEAR MARUTI TALKIES, MAHALINGAPUR, TQ: MUDHOL, DIST: BAGALKOTE-587311.

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SRI. SHIVANAND S/O. BASAPPA KOLIGUDDA, AGED ABOUT 37 YEARS, OCC: AGRICULTURE, R/AT: NEAR MARUTI TALKIES, MAHALINGAPUR, TQ: MUDHOL, DIST: BAGALKOTE-587311.

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…RESPONDENTS

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(BY SRI. S.S. BETURMATH, ADVOCATE FOR R1, R2, R7 & R8; R3-R6 ARE SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR DIRECTION AND SET-ASIDE THE ORDER PASSED BY THE PRL SENIOR CIVIL JUDGE, MUDHOL, PASSED IN O.S.NO.71 OF 2016 DATED 19.9.2019 ON I.A.NO.X, COPY AS PER ANNEXURE E AND ALLOW THE APPLICATION IN I.A.NO.X BY ALLOWING THE PRESENT WRIT PETITION AND ETC.

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THIS WRIT PETITION, COMING ON FOR FURTHER HEARING , THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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4 - NC: 2024:KHC-D:13197 WP No. 138184 of 2020

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard the learned counsel for the petitioners and also the learned counsel for the respondents.

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In the present petition impugned order is challenged before this Court rejection of IA under Order 1 Rule 10(2) of CPC wherein, claim is made that the property is purchased in the name of the husband of the defendant No.1 out of the partnership income and the fact that defendant No.1 is also one of the partner of the said firm is not in dispute.

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The learned counsel also brought to the notice of this Court in written statement specifically pleaded the same in paragraph No.6 that other two items of the property which are the suit claim and this third item of the property which the defendants are claiming is also the property purchased out of the firm and when specific pleading is made and an application is filed and even then

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5 - NC: 2024:KHC-D:13197 WP No. 138184 of 2020

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proposed legal heirs of the husband of the defendant No.1 have also not filed any objections before the Trial Court, the Trial Court rejected the same only on the ground that when the proposed defendants who are the legal heirs of Basappa Koligudde not necessary party to the suit and only defendant No.1 and Dastagirsab Chikkodi are the only partners, and defendant Nos.1 to 9 have also admitted the same and hence not necessary party. Being aggrieved by the same, the present writ petition is filed.

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The learned counsel for the petitioners would vehemently contend that the Trial Court ought not to have seen that the plaintiff is intending to get his share which is alleged to be purchased from the income generated from the business of the firm and all the properties which have been purchased out of the partnership ought to have been added and in order to add the said property the legal heirs of the said deceased husband of defendant No.1 is also a necessary party to the proceedings since properties are

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stand in the name of legal heirs and the very reasoning

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assigned by the Trial Court is erroneous.

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Per contra, learned counsel appearing for the respondent would vehemently contend that mere taking of a defense is not enough and not produced any material to show that out of partnership income only they have purchased the property. Hence, then Trial Court rightly come to the conclusion that defendant Nos.1 to 9 have admitted that the defendant No.1 and Dastagirsab Chikkodi are the only partners to the said firm and the proposed defendants who are the legal heirs of Basappa Koligudde are not necessary parties to the suit and when Basappa Koligudde is not partner to the said firm as per the written statement filed by the defendant Nos.1 to 9, I.A. requires to be dismissed and hence, the Trial Court not committed any error.

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Having considered the submissions made by

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the counsel for the petitioners and also counsel for the respondents and admittedly the legal heirs who are sought

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7 - NC: 2024:KHC-D:13197 WP No. 138184 of 2020

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to be impleaded as parties before the Trial Court have not appeared and filed any objections statement and also specific pleading of defendant Nos.2 to 9 that one of the property purchased out of the partnership income including two items which the plaintiff has already claimed the share and also the property was purchased in the name of the husband of the defendant No.1 and when such plea is specifically taken in the written statement and subsequently made an application invoking Order 1 Rule 10(2) of CPC, whether the said property is purchased out of the income of partnership firm or not has to be decided

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only during the course of trial and the petitioner has to prove the material before the Court and mere impleading the legal heirs will not take away the right of the legal representatives of said deceased and the same is a matter of trial and not at the stage of the considering the application filed under Order 1 Rule 10(2) of CPC. The only Court has to take note of specific pleading stated and the very existence of partnership firm is not in dispute and also the wife of the deceased was also one of the partner

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8 - NC: 2024:KHC-D:13197 WP No. 138184 of 2020

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is also not in dispute and when such being the case, the Trial Court ought to have allowed the application for impleading them as party to the proceedings in order to decide the plea taken by the defendant Nos.2 to 9 and the Trial Court committed an error only on the ground that the deceased was not the partner and his wife is the partner

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and hence, there is a merit in the petition.

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writ petition to quash the order and hence, I pass the following:

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ORDER

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(i) Writ petition is allowed.

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(ii) Order impugned is quashed.

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Consequently, IA filed under Order 1 Rule 10(2) of CPC is allowed.

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9 - NC: 2024:KHC-D:13197 WP No. 138184 of 2020

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(iii) The plaintiff is directed to amend

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the cause title before the Trial Court within

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two weeks from today.

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Sd/(H.P.SANDESH) JUDGE

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SMM CT-MCK / List No.: 1 Sl No.: 31

Smt.Fatima W/O. Dastagirsab Chikkodi v. Sri.Mahalingappa S/O.Ittappa Koligudde

Case brief

What is this about?

What did the court decide?

Smt.Fatima W/O. Dastagirsab Chikkodi v. Sri.Mahalingappa S/O.Ittappa Koligudde

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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