Dismissed

Nagamma @ Thayamma v. Smt. Mallamma

Karnataka HC22 Oct 2024WP/3584/2023

Case brief

AI extract

What is this about?

Defendants in a partition suit challenged the final decree court's order modifying the plaintiff's share from 1/9 to reflect Vineeta Sharma via an application under Sections 152 and 153 CPC. The High Court held a final decree continues the preliminary decree and shares may be modified per later Supreme Court declarations of law, and dismissed the writ petition.

What the court decided

AI extract

Nagamma @ Thayamma Vs Smt. Mallamma — Partition | Karnataka HC (2024)

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NC: 2024:KHC:42434 WP No. 3584 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 3584 OF 2023 (GM-CPC)

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BETWEEN:

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NAGAMMA @ THAYAMMA, W/O LATE SHIVAPPA, AGED ABOUT 63 YEARS

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MAYAMMA

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D/O LATE SHIVAPPA,

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AGED ABOUT 41 YEARS

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MANGLAMMA

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D/ LATE SHIVAPPA, AGED ABOUT 39 YEARS

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MANIKANTA

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

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S/ LATE SHIVAPPA, AGED ABOUT 37 YEARS,

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ALL ARE R/AT HONGAHALLI VILLAGE, KASABA HOBLI, GUNDLUPET TALUK - 571 111 CHAMARAJANAGAR DISTRICT

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…PETITIONERS

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(BY SRI. P. MAHESHA, ADVOCATE)

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AND:

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SMT. MALLAMMA W/O LATE MALLAPPA,

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NC: 2024:KHC:42434 WP No. 3584 of 2023

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AGED ABOUT 59 YEARS, R/O HONGANAHALLI VILLAGE, KASABA HOBLI, GUNDLUPET TALUK - 571 111.

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SRI. SUBBAPPA S/O LATE MALLAPPA AGED ABOUT 60 YEARS, HONGANAGHALLI VILLAGE, KASABA HOBLIL, GUNDLUPETE TALUK, CHAMARAJANAGARA DISTRICT-571 111

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…RESPONDENTS

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(BY SRI. NAGARAJA R C., ADVOCATE)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SETTING ASIDE THE IMPUGNED ORDER PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, GUNDLUPET IN I.A.NO.1 OF F.D.P NO.5/2021 DATED 09/09/2022, VIDE ANNEXURE-E 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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Respondent Nos.2, 3, 4 and 5 in FDP No.5/2021 on

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the file of the Principal Civil Judge and JMFC, Gundlupet, have filed this petition challenging an Order dated 09.09.2022, by which, the Final Decree Court modified the

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3 - NC: 2024:KHC:42434 WP No. 3584 of 2023

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shares in view of the Judgment of the Apex Court in the case of VINEETA SHARMA vs. RAKESH SHARMA AND OTHERS reported in AIR 2020 SC 3717 .

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A suit for partition and separate possession filed in O.S.No.259/2012 was decreed and it was held that plaintiff was entitled to 1/3^rd share. The same was challenged in R.A.No.45/2018. The appeal was allowed in part in view of the Judgment of this Court in the case of PRAKASH vs. PULAVATHI reported in (2016)2 SCC 36 and it was held that plaintiff was entitled to 1/9^th share. The plaintiff filed FDP No.5/2021 for 1/9^th share in the suit property as per the preliminary decree of partition passed in R.A.No.5/21. The plaintiff filed and application under Sections 152 and 153 of CPC to modify the preliminary decree in view of the judgment of the Apex court in VINEETA SHARMA case supra. The Final Decree Court, in terms of the impugned order, allowed the application filed under Section 152 of CPC. Being aggrieved by the same, the defendants in the suit who were arrayed as

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4 - NC: 2024:KHC:42434 WP No. 3584 of 2023

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Respondent Nos.2, 3, 4 and 5 in final decree proceedings have filed this petition.

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Learned counsel for Respondent Nos.2, 3, 4 and 5 submitted that the plaintiff was bound to challenge the Judgment and Decree passed in R.A.No.43/2018 and the Final Decree Court has no authority to modify the share in accordance with law in the final decree.

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Per contra, learned counsel for respondents contended that the law declared in PRAKASH case supra was overruled in VINEETA SHARMA case supra, which also held that in respect of pending cases, the shares could be suitably modified. He therefore, contended that the final decree Court was justified in allowing the application.

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It is now trite that a final decree is a continuation of the preliminary decree (see SHUB KARAN BUBNA @

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SHUB KARAN PRASAD BUB VS. SITA SARAN BUBNA

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& ORS (2009 AIR (SCW) 6541). As rightly contended

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by the learned counsel for the plaintiff, Hon'ble Apex Court

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5 - NC: 2024:KHC:42434 WP No. 3584 of 2023

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in VINEETA SHARMA case supra, had held that the Court is entitled to modify the shares based on the declaration of law made by it. Therefore, there is no error committed by the Final Decree Court in modifying the shares that the plaintiff was entitled to.

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Hence, this petition lacks merit and is dismissed.

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Sd/(R. NATARAJ) JUDGE

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BNV ct-snn/List No.: 1 Sl No.: 24

Nagamma @ Thayamma v. Smt. Mallamma

Case brief

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What the court decided

Nagamma @ Thayamma v. Smt. Mallamma

Case brief

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