Dismissed

D a Mayura v. Dr R Venkatachala Setty Since Dead by Lrs Dr v K Shivakumar

Karnataka HC5 Mar 2024WP/20594/2022

Case brief

AI extract

What is this about?

Petitioners sought to come on record as legal heirs of a deceased respondent in an appeal. The High Court held that the deceased's surviving brothers and sisters had prior right of succession, so the appellate court rightly rejected their application; petition dismissed with liberty to claim through their deceased father.

What did the court decide?

None; petitioners left free to file appropriate application to come on record as legal heirs of their deceased father (respondent No.4).

D a Mayura Vs Dr R Venkatachala Setty Since… — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC:9317 WP No. 20594 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 20594 OF 2022 (GM-CPC)

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BETWEEN:

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D.A. MAYURA D/O D.V. ASHWATHANARAYANA SETTY AGED ABOUT 54 YEARS,

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D.A. NALINI KUMARI D/O D.V. ASHWATHANARAYANA SETTY AGED ABOUT 52 YEARS

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D.A. AMARNATH S/O D.V. ASHWATHANARAYANA SETTY AGED ABOUT 50 YEARS

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ALL ARE RESIDING AT PONNASAMUDRA, Y.N. HOSAKOTE HOBLI, PAVAGADA TALUK, TUMAKURU DISTRICT-561202

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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(BY SRI. KESHAV R. AGNIHOTRI, ADVOCATE)

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AND:

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DR. R. VENKATACHALA SETTY SINCE DEAD BY LRS

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…PETITIONERS

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DR. V.K. SHIVAKUMAR AGED ABOUT 60 YEARS

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DR. V.K. RAVINDRA AGED ABOUT 53 YEARS

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DEVIKA

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AGED ABOUT 51 YEARS

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M.N. LAKSHMI AGED ABOUT 56 YEARS

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2 - NC: 2024:KHC:9317 WP No. 20594 of 2022

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ALL ARE CHILDREN OF DR. R. VENKATACHALA SETTY

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ALL ARE R/OF PAVAGADA MEDICAL CENTRE, OPP: TALUK OFFICE, PAVAGADA TOWN.

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SMT. SUNDARAMMA W/O LATE DR. R. VENKATACHALA SETTY AGED ABOUT 83 YEARS R/O SUNDARA MAHAL, BEHIND KEB OFFICE, PENUKONDA ROAD, PAVAGADA TOWN.

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V. VENKATESHA (SOGADU) S/O K. VENKATAPPA AGED ABOUT 43 YEARS SECRETARY, SHREYAS SOCIETY TEACHERS COLONY, PAVAGADA TOWN, TUMAKURU.

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…RESPONDENTS

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS IN R.A.NO.5078/2019 ON THE FILE OF THE IV ADDL. DISTRICT AND SESSIONS JUDGE, TUMAKURU, SITTING AT MADHUGIRI AND SET ASIDE THE IMPUGNED ORDER DATED 05.09.2022 IN R.A. NO.5078/2019 VIDE ANNEXURE-G PASSED ON I.A.NO.6 AND THUS ALLOW THE ABOVE WRIT PETITION.

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

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ORDER

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This writ petition is filed challenging an order dated 05.09.2022 passed by the IV Additional District and Sessions Judge, Tumakuru, sitting at Madhugiri,

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3 - NC: 2024:KHC:9317 WP No. 20594 of 2022

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(henceforth referred to as 'the First Appellate Court') in R.A. No.5078/2019 by which an application (I.A. No.VI)

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filed by the petitioners herein to come on record as the legal heirs of the deceased respondent No.8 / additional respondents in the appeal was rejected.

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The suit in O.S. No.16/1999 (stated as O.S. No.16/2019 in the petition memo) was filed before the Senior Civil Judge and JMFC., Pavagada, (henceforth referred to as 'the Trial Court') for perpetual injunction in respect of the suit schedule properties which was dismissed on 07.06.2019. The plaintiffs filed R.A. No.5078/2019 before the First Appellate Court. During the pendency of the appeal, the respondent No.8 died issueless and intestate. An application (I.A. No.VI) was therefore filed by the son and daughters of the brother of the deceased respondent No.8 to come on record as additional respondents in the appeal. The First Appellate Court held that the applicants / petitioners herein were not the legal heirs of deceased respondent No.8, as brothers

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NC: 2024:KHC:9317 WP No. 20594 of 2022

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and sisters of the deceased respondent No.8 were alive and they were arrayed as respondent Nos.1 to 7 and 9 and 10. Consequently, it rejected the application by way of the impugned order.

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Being aggrieved by the said order, this writ

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petition is filed.

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Learned counsel for the petitioners submitted that the applicants / petitioners herein were the children of the brother of deceased respondent No.8 and therefore, they were entitled to come on record as agnates of the deceased respondent No.8. He submitted that the father of the petitioners who was the respondent No.4 died on 14.06.2018 while respondent No.8 died on 22.12.2020 as a bachelor and intestate and therefore, they were interested to come on record and defend the appeal.

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I have considered the submissions made by the

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learned counsel for the petitioners.

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NC: 2024:KHC:9317 WP No. 20594 of 2022

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A careful perusal of the cause title of the appeal

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before the First Appellate Court indicates that the deceased respondent No.1 and respondent Nos.2, 3, 4, 5 to 7 were the brothers while the deceased respondent No.9 and respondent No.10 were the sisters of the deceased respondent No.8. Amongst the Class-II heirs, the brothers and sisters have the first right and in their absence, it is their offsprings who have a right to succeed to the estate of the deceased. Therefore, the petitioners were not entitled to claim as the legal heirs of the deceased respondent No.8 during the life time of the surviving brothers and sisters of the deceased respondent No.8. At this stage, it was brought to the notice of this Court that the father of the petitioners, namely respondent No.4 in R.A. No.5078/2019, expired in the year 2018 and therefore, the applicants/petitioners herein are entitled to come on record. The impugned order was passed on an application (I.A. No.VI) filed by the petitioners herein, before the First Appellate Court to come on record as the legal heirs of the deceased respondent No.8 and not as

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6 - NC: 2024:KHC:9317 WP No. 20594 of 2022

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legal heirs of the deceased respondent No.4. In that view of the matter, the First Appellate Court was right in rejecting the application filed by the petitioners herein to come on record as the legal representatives of the deceased respondent No.8. There is no error apparent on the face of the record warranting interference by this Court.

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Hence, the petition lacks merit and is

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dismissed. However, it is open for the petitioners herein to file appropriate application to come on record as the legal heirs of the deceased respondent No.4.

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Sd/JUDGE

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SMA

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List No.: 2 Sl No.: 3

D a Mayura v. Dr R Venkatachala Setty Since Dead by Lrs Dr v K Shivakumar

Case brief

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D a Mayura v. Dr R Venkatachala Setty Since Dead by Lrs Dr v K Shivakumar

Case brief

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What did the court decide?

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