Allowed

Sri. N S Suresh Rao v. Smt. N B Bhavani Bai

Karnataka HC5 Nov 2024WP/49531/2016

Case brief

AI extract

What is this about?

The High Court allowed two writ petitions directing the Trial Court to accept objections to a final decree in partition proceedings. The Court set aside an order rejecting a prayer to modify the preliminary decree based on a alleged prior gift deed, noting the injustice of allowing modification of a preliminary decree in final decree proceedings.

What did the court decide?

Directing the Trial Court to accept the petitioners' objections to the final decree and set aside the order rejecting the application under Section 152 CPC regarding the gift deed.

Sri. N S Suresh Rao Vs Smt. N B Bhavani Bai — Partition | Karnataka HC (2024)

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- 1 - NC: 2024:KHC:45097 WP No. 49531 of 2016 C/W WP No. 9442 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 49531 OF 2016 (GM-CPC) C/W WRIT PETITION NO. 9442 OF 2024 (GM-CPC)

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IN WP No. 49531/2016

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BETWEEN:

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SRI. N S SURESH RAO SINCE DECEASED BY HIS LRS

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SMT. SARITHA, W/O LATE N.S. SURESH RAO, AGED ABOUT 40 YEARS, C/O RAMESH BUILDING, DOOR NO. 189, PANCHAYATH OLD WATER TANK ROAD, DODDA BANASAWADI, BANGALORE - 560 043.

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

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KUM. JANANI D/O LATE N.S. SURESH RAO, AGED ABOUT 10 YEARS, SINCE MINOR REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT. SARITHA C/O RAMESH BUILDING, DOOR NO. 189, PANCHAYATH OLD WATER TANK ROAD, DODDA BANASAWADI, BANGALORE - 560 043.

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KUM. JYOTHSNA D/O LATE N.S. SURESH RAO, AGED ABOUT 5 YEARS,

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SINCE MINOR REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT. SARITHA

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C/O RAMESH BUILDING, DOOR NO. 189, PANCHAYATH OLD WATER TANK ROAD, DODDA BANASAWADI, BANGALORE - 560 043.

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…PETITIONERS

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(BY SRI. VIGHNESHWAR S. SHASTRI, SENIOR ADVOCATE FOR SRI. GURURAJ R., ADVOCATE FOR P1 TO P3)

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AND:

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SMT. N B BHAVANI BAI D/O LATE N.S.BHAGAVANTHA RAO, SINCE DEAD BY HER LEGAL REPRESENTATIVES

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SRI B U RAMESH, S/O LATE B V UPENDRA RAO, AGED ABOUT 42 YEARS, R/AT NO. 145, 7^TH CROSS, 5^TH MAIN, DEVANATHACHAR STREET, CHAMARAJPET, BANGALORE - 560 018.

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SMT. B U HAMSA BAI D/O LATE B V UPENDRA RAO, AGED 40 YEARS, R/AT NO. 85, NEAR KASHI VISWANATHESWARA TEMPLE, NAGASHETTY HALLI, BANGALORE - 560 094.

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SRI B U BHEEMESH S/O LATE B V UPENDRA RAO, AGED 38 YEARS,

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R/AT NO. 145, 7^TH CROSS, 5^TH MAIN, DEVANATHACHAR STREET, CHAMARAJPET, BANGALORE - 560 018. SRI B U CHIDAMBARA S/O LATE B V UPENDRA RAO, SINCE DEAD BY HIS LRS,

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SMT. H S REKHA, W/O LATE B U CHIDAMBARA, AGED ABOUT 26 YEARS, R/AT NO. FS-05/392, SRI CHAYANANDANA NILAYA, BESIDE KANAKA BHAVANA COMPOUND, DR. PAPANNA LAYOUT, M.V.EXTENSION, HOSKOTE, BANGALORE RURAL DISTRICT - 562 114

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SMT. PRABULLA BAI, W/O LATE N.S. BHAGAVANTHA RAO, SINCE DEAD BY HER LRS

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SRI N B CHANDRASHEKAR S/O LATE N S BHAGAVANTHA RAO, AGED ABOUT 56 YEARS, R/AT NO. 716, 7^TH MAIN, 3^RD PHASE, 2^ND STAGE, 3^RD B BLOCK, DOMLUR, BANGALORE - 560 071

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SRI N B SRINIVASA RAO S/O LATE N S BHAGAVANTHA RAO, SINCE DEAD BY HIS LRS

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SMT. MALINI N S

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D/O LATE N B SREENIVASA RAO, AGED ABOUT 32 YEARS,

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SMT. SOUMYA N S D/O LATE N B SREENIVASA RAO, AGED ABOUT 30 YEARS,

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SRI VINOD KUMAR N S S/O LATE N B SREENIVASA RAO, AGED ABOUT 28 YEARS,

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SMT. PAVITHRA N S D/O LATE N B SREENIVASA RAO, AGED ABOUT 26 YEARS,

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R-6 TO R-9 ARE R/AT NO. 910, 4^TH CROSS, 4^TH MAIN,

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BASAVESWARANAGAR, BANGALORE - 560 079.

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SMT. N B DEVAKI BAI D/O LATE N S BHAGAVANTHA RAO, AGED ABOUT 52 YEARS, R/AT MATHRUSHREE NILAYA, 5^TH CROSS, G.M.PALYA, BYRASANDRA MAIN ROAD, NEW THIPPASANDRA POST, BANGALORE - 560 075.

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SMT. UMA BAI @ CHANDRA BAI D/O LATE N S BHAGAVANTHA RAO, AGED ABOUT 49 YEARS, R/AT 102, SHESHADRI NILAYA, PAPANNA LAYOUT, HALAGE VADEYARAHALLI, RAJARAJESHWARI NAGARA, BANGALORE - 560 098.

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SMT. VIMALA BAI D/O LATE N S BHAGAVANTHA RAO, AGED ABOUT 48 YEARS, R/AT 442, 15^TH MAIN, 1^ST BLOCK,

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3^RD STAGE, WEST OF CHORD ROAD, BASAVESHWARA NAGAR, BANGALORE - 560 079.

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SMT. N B SHANTHA BAI D/O LATE N S BHAGAVANTHA RAO, AGED ABOUT 46 YEARS, R/AT 43/2, 2^ND FLOOR, 18^TH BLOCK, KORAMANGALA,

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BANGALORE - 560 095.

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SRI N B MURALIDHARA RAO S/O LATE N S BHAGAVANTHA RAO, AGED ABOUT 44 YEARS, R/AT 88, 2^ND CROSS,

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1^ST MAIN ROAD, NEAR WATER TANK, BENNIGANAHALLI, BANGALORE - 16.

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SMT. N B SUJATHA BAI D/O LATE N S BHAGAVANTHA RAO, AGED ABOUT 42 YEARS, R/AT 29, 9^TH CROSS, 1^ST MAIN ROAD, GNANABHARATHI POST, NAGADEVANAHALLI, BANGALORE - 560 056.

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SRI N SRINIVAS S/O NARAYANA SHETTY, AGED ABOUT 48 YEARS, R/AT NO.391, 1^ST N BLOCK, RAJAJINAGAR, BANGALORE - 560 010.

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…RESPONDENTS

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( BY SRI. N.M. THEERTHEGOWDA, ADVOCATE FOR R2; VIDE ORDER DATED 03/10/2016, NOTICE TO R-5 TO R-16 DISPENSED WITH;

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SRI. C.H. RAMACHANDRA REDDY, ADVOCATE FOR R-5 SRI. T.S. CHANDRAPRABHA, ADVOCATE FOR R-1 TO R-4 SRI.B.PURANDARA, ADVOCATE FOR R6 TO R11, R13 & R15)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE DISTRICT BANGALORE TO ACCEPT THE APPLICATION FILED BY THE PETITIONERS PRAYING FOR PERMISSION TO FILE OBJECTIONS AND PETITIONERS BE PERMITTED TO FILE OBJECTIONS TO THE MAIN PETITION AS WELL AS APPLICATION FOR APPOINTMENT OF COMMISSIONER IN FDP NO.56/2009 AS PER ANNEX-E.

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IN WP NO. 9442/2024

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BETWEEN:

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SRI N S SURESH RAO S/O LATE N.S. BHAGAVANTHA RAO SINCE DECEASED BY HIS LRS

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SMT. SARITHA W/O LATE N.S. SURESH RAO AGED ABOUT 50 YEARS,

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SMT. JANANI D/O LATE N.S. SURESH RAO AGED ABOUT 20 YEARS,

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KUM. JOSHNA D/O LATE N.S. SURESH RAO AGED ABOUT 15 YEARS REPRESENTED BY GUARDIAN MOTHER SMT. SARITHA

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ALL ARE R/AT NEAR PANCHAYATHI WATER TANK, DODDABANASAVADI, BANGALORE - 560043.

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...PETITIONERS

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(BY SRI. VIGHNESHWAR S. SHASTRI, SENIOR ADVOCATE FOR SRI. SAGAR V SHASTRI., ADVOCATE)

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AND:

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SMT N B BHAVANI BAI D/O LATE N.S. BHAGAVANTHA RAO SINCE DECEASED BY HER LRS

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SRI B U RAMESH

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S/O LATE B U UPENDRA RAO AGED ABOUT 57 YEARS R/AT NO.145, 7^TH CROSS, 5^TH MAIN, DEVANTHACHAR STREET, CHAMARAJAPET, BANGALORE - 560 018.

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SMT. B U HAMSA BAI D/O LATE B.U.UPENDRA RAO AGED ABOUT 55 YEARRS R/AT NO.85, NEAR KASHIVISWANATHA TEMPLE, NEAR SHETTYHALLI, BANGALORE - 560 094.

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SRI B U BHEEMESH S/O LATE B U UPENDRA RAO AGED ABOUT 53 YEARS, R/AT NO.145, 7^TH CROSS, 5^TH MAIN, DEVANTHACHAR STREET,

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CHAMARAJAPET, BANGALORE - 560 018.

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SRI B U CHIDAMBARA

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SINCE DECEASED BY HIS LRS

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SMT. H S REKHA

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1. W/O LATE B.V. CHIDAMBARA AGED ABOUT 40 YEARS, R/AT SRICHAYANANDANA NILAYA, NO.FS-05/392, BESIDE KANAKA BHAVANA LAYOUT, M.V. EXTENSION, HOSAKOTE BANGALORE RURAL DISTRICT.

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SRI N B CHANDRASHEKAR S/O LATE N.S.BHAGAVANTHA RAO AGED ABOUT 71 YAERS, R/AT NO.716, 7^TH MAIN, 3^RD PHASE, 2^ND STAGE, 3^RD B BLOCK, DOMLUR, BANGALORE - 560 071

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SRI N B SRINIVASA RAO SINCE DECEASED BY HIS LRS

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SMT. MALINI N S

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1. D/O LATE N.B. SRINIVASA RAO AGED ABOUT 47 YEARS

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SMT. SOWMY N S D/O LATE N.B. SREENIVASA RAO AGED ABOUT 45 YEARS

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SRI VINOD KUMAR N S S/O LATE N.B.SREENIVASA RAO AGED ABOUT 43 YEARS,

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SMT. PAVITHRA N S D/O LATE N.B. SREENIVASA RAO AGED ABOUT 41 YEARS,

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R-6 TO R-9 ARE R/AT NO.190, 4^TH CROSS, 4^TH MAIN,

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BASAVESHWARANAGAR

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BANGALORE - 560079.

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SMT. N B DEVAKI BAI D/O LATE N.S.BHAGVANTHA RAO AGED ABOUT 67 YEARS,

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R/AT MATHRUSHREE NILAYA, 5^TH CROSS, G.M.PALYA, BYSANDRA MAIN ROAD, NEW THIPPASANDRA POST, BANGALORE - 560 075.

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SMT. UMA BAI @ CHANDRA BAI D/O LATE N.S. BHAGAVANTHA RAO AGED ABOUT 64 YEARS R/AT NO.102, SHESHADRI NILAYA, PAPANNA LAYOUT, HALAGE VADEYARAHALLI, RAJARESHWARI NAGARA, BANGALORE - 560 098.

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SMT. VIMALA BAI D/O LATE N.S. BHAGVANTHA RAO AGED ABOUT 63 YEARS, R/AT NO.442, 15^TH MAIN, 1^ST BLOCK, 3^RD STAGE, WEST OF CHORD ROAD, BASAVESHWARA NAGAR, BANGALORE - 560 079

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SMT. N B SHANTHA BAI SINCE DECEASED BY HER LRS

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SRI SUNDER RAO S N S/O LATE SHANTHA BAI AGE MAJOR R/AT NO.371, 2^ND FLOOR, 10^TH MAIN, 1^ST D CROSS, 3^RD STAGE, 4^TH BLOCK, J.C.NAGAR, BASAVESHWARANAGAR, BANGALORE - 560079.

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SRI N B MURALIDHARA RAO S/O LATE N.S. BHAGAVANTHA RAO AGED ABOUT 59 YEARS, R/AT NO.88, 2^ND CROSS,

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1^ST MAIN ROAD, NEAR WATER TANK, BENNIGANAHALLI,

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BANGALORE - 560 016

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SRI N B SUJATHA BAI D/O LATE N.S. BHAGAVANTHA RAO AGED ABOUT 57 YEARS, R/AT NO.29, 9^TH CROSS, 1^ST MAIN ROAD, GNANABHARATHI POST, NAGADEVANAHALLI, BANGALORE - 560056.

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SRI N SRINIVAS S/O NARAYANA SHETTY AGED ABOUT 63 YEARS R/AT NO.391, 1^ST N BLOCK, RAJAJINAGAR, BANGALORE - 560 010.

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SMT. BHAGYALAKSHMI W/O B T RANGANATH AGED ABOUT 52 YEARS R/AT DOOR NO. 3681 NEAR GANGAMMA TEMPLE WARD NO.9 MATHYALAPET K.B.P. ROAD MULBAGAL TOWN

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...RESPONDENTS

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(BY SRI.THEERTHE GOWDA N.M., ADVOCATE FOR R-1 TO R-4 AND R-13; SRI. M.G. RAVISHA, ADVOCATE FOR R-17; R-5 SERVED; VIDE ORDER DATED 21.10.2024, NOTICE TO R-6 TO R-9, R-10 TO R-12, R14 TO R-16 ARE DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 20/01/2024 PASSED ON IA NO.IV IN FDP NO.56/2009 ON THE FILE OF CITY CIVIL AND SESSIONS JUDGE AT BANGALORE AS PER ANNEXURE-F AND ETC.

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THESE PETITIONS, 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 legal representatives of respondent No.10 in FDP No.56/2009 on the file of Principal City Civil and Sessions Judge, Bangalore are seeking for a direction to the final decree court, to accept the application filed by them for permission to file objections to the petition for final decree.

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It is the contention of the petitioners that FDP No.56/2009 was initiated to draw a final decree in O.S No.6935/2004. The petitioners contend that they entered appearance through an advocate on 13.11.2014. The final decree Court, thereafter, posted the case for hearing the main petition. The petitioners contend that they were not granted an opportunity to file objections to the final decree. Therefore, they filed an application under Section 151 of Code of Civil Procedure (for short 'CPC') to recall the order dated 24.11.2015 and to permit them to file objections to the main petition. They contend that this application was not accepted by the Court and therefore, they are before this Court seeking for a direction to the final decree court to accept their application.

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NC: 2024:KHC:45097 WP No. 49531 of 2016 C/W WP No. 9442 of 2024

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11 -

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W.P No.9442/2024 is also filed by the legal representatives of respondent No.10 in FDP No.56/2009 challenging an order dated 20.01.2024, by which their application seeking for modification of the preliminary decree was rejected.

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A suit in O.S No.6935/2004 was filed for partition and separate possession, which was decreed declaring that the family members of the plaintiff were entitled to 1/11^th share each in the suit properties. Based on this decree, final decree proceeding was initiated in FDP No.56/2009. The legal representatives of respondent No.10 claimed that the defendant No.1 had executed a gift deed dated 31.12.2004, bequeathing suit item No.1. Since such bequeath was prior to the decree, the legal representatives of respondent No.10 filed an application (I.A No.IV) under Section 152 of CPC to modify the preliminary decree and declare that they are entitled to 2/11^th share in the suit item No.1. That application was rejected in terms of the order dated 20.01.2024. Being aggrieved by the same, the petitioners are before this Court.

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Learned Senior counsel for the petitioner contended

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that when the petitioners were brought on record in final

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decree proceedings, an opportunity ought to have been granted to file objections. On the contrary, the Final Decree Court proceeded to hear the main matter and therefore, the petitioners did not have an opportunity to file objections. He contends that an attempt made by the petitioners to file an application seeking permission to file their objections was not received by the Trial Court. He therefore contends that, suitable directions be issued to the Final Decree Court to receive the application as well as the objections and consider the claim of the petitioners in accordance with law. In so far as W.P No.9442/2024, the learned senior counsel for the petitioners contend that defendant No.1 was entitled to 1/11^th share in the suit item No.1 as per the decree passed and in view of the gift deed executed by deceased respondent No.10 in her favour, conveying 1/11^th share and therefore, the preliminary decree must have been modified allotting 2/11^th share to respondent No.10. He therefore contends that the final decree court committed an error in holding that preliminary decree cannot be modified.

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Per contra, learned counsel for the respondent

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Nos.1 to 4 and 13 submits that respondent No.10 was placed

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ex-parte in the suit and therefore, there was no need for objections of the legal representatives of respondent No.10. He therefore contends that the petitioners did not have any grievance over the preliminary decree passed and hence, could not have grievance against the final decree, that was to be passed by the Court. He further contends that the gift deed was executed in the year 2004, that is much prior to the suit being decreed. He contends that by virtue of the decree, the gift deed also stood obliterated and hence, the petitioner cannot claim any right or interest under the said gift deed.

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I have considered the submission of learned senior

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counsel for the petitioners and learned counsel for respondent Nos.1 to 4 and 13.

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It is evident from the order sheet of the Final Decree Court that after the petitioners were permitted to be brought on record, they were represented by a counsel. No doubt the predecessor of the petitioners were placed ex-parte in the original suit. However, after the petitioners were brought on record in the final decree proceedings, they were also entitled to file objections against the drawing up of a final decree. The Trial Court could not have refused to entertain the

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application filed by the petitioners to accept their objections to the final decree. To that extent, the contentions of the learned senior counsel of the petitioners merit consideration. In so far as W.P No.9442/2024 is concerned, the defendant No.1 had purportedly executed a gift deed bequeathing the suit item No.1 in favour of the predecessor of the petitioners. However, by virtue of the decree passed in the suit, the Court had held that the defendant No.1 was entitled to 1/11^th share. Hence, the gift deed executed in favour of the predecessor of the petitioners could be construed as conveying 1/11^th share, which is however subject to proof of the lawful execution of the gift deed. The finding of the Trial Court that the preliminary decree cannot be modified is thoroughly unjust and calls for interference, as final decree is a continuation of the suit.

¶124

In that view of the matter, both these writ petitions are allowed as follows:

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(i) The Trial Court is directed to accept the application filed by the petitioners as well as objections filed by them to the final decree. However, the Final Decree Court shall consider the objections filed by the petitioners in light of the fact

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that their predecessors were placed ex-parte in the civil suit.

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(ii) The impugned order passed by the Trial Court rejecting the application filed by the petitioners under Section152 of the CPC is set aside and the application filed by the petitioners is allowed. The petitioners shall be entitled to place on record the gift deed allegedly executed by defendant No.1 in favour of the father of the petitioners. If the said document is duly registered and if the petitioners are able to demonstrate its lawful execution as provided under Section 68 of the Evidence Act, the final decree court shall then modify the decree and assign the share of defendant No.1 to the petitioners.

¶129

It is needless to mention that the petitioners shall be entitled to 1/11^th share in the other properties as per the decree.

¶130

Sd/(R. NATARAJ) JUDGE

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THM/List No.: 1 Sl No.: 19

Sri. N S Suresh Rao v. Smt. N B Bhavani Bai

Case brief

What is this about?

What did the court decide?

Sri. N S Suresh Rao v. Smt. N B Bhavani Bai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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