Smt Anusuya Vs R Ashwathanarayana

3 . SMT. R. VINODA LOKESH `W/O MR. V.J. LOKESH AGED ABOUT 56 YEARS No.9, 12^TH MAIN REVENUE LAYOUT BEHIND POST OFFICE PADMANABHA NAGAR, BSK II STAGE BENGALURU-560 070

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...APPELLANTS

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(BY SRI. M.J. ALVA, ADVOCATE)

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AND:

1 . R. ASHWATHANARAYANA S/O LATE P. RAMAKRISHNAPPA AGED ABOUT 70 YEARS No.2841, 17^TH CROSS 4^TH MAIN, K.R. ROAD BANASHANKARI II STAGE BENGALURU-560 070

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2 . R. SHASHIKUMAR S/O LATE P. RAMAKRISHNAPPA AGED ABOUT 66 YEARS No.59, "NAGA KUTIRAM" BANK OFFICERS LAYOUT, NARAYANA NAGAR FIRST BLOCK, DODDA KALLASANDRA KANAKAPURA ROAD BENGALURU-560 062

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3 . R. ADINARAYANA S/O LATE P. RAMAKRISHNAPPA AGED ABOUT 62 YEARS No.2840, 17^TH CROSS 4^TH MAIN, K.R. ROAD BANASHANKARI II STAGE BENGALURU-560 070

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4 . SMT. S. CHANDRAKANTHA W/O N. SHAMSUNDER AGED ABOUT 72 YEARS No.813, 2^ND CROSS 1^ST BLOCK, HRBR LAYOUT BANASAWADI BENGALURU-560 043

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5 . SMT. SAVITHRI W/O GUNDAPPA VENKATESH AGED ABOUT 60 YEARS No.470 , "VENKATESHWARA NILAYA" 12^TH CROSS, 25^TH MAIN J.P. NAGAR I PHASE BENGALURU-560 078

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6 . SMT. NALINI KANTH P.T. D/O LATE R. VIJAYALAKSHMI AGED ABOUT 55 YEARS No.84, UNIT No.FF, 2^ND MAIN ROAD UNISHIRE VICTORY-CENTRAL AVENUE PALACE GUTTAHALLI BENGALURU-560 003

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7 . KESHAVAMURTHY P.T. S/O LATE R. VIJAYALAKSHMI AGED ABOUT 58 YEARS No.84, UNIT No.FF, 2^ND MAIN ROAD UNISHIRE VICTORY-CENTRAL AVENUE PALACE GUTTAHALLI BENGALURU-560 003

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8 . SMT. HEMASHREE M. W/O LATE P.T. SRIDHAR YADAV D/IN LAW OF LATE R. VIJAYALAKSHMI AGED ABOUT 49 YEARS No.346, 29^TH 'B' MAIN ROAD 10^TH CROSS, HSR LAYOUT BENGALURU-560 102

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…RESPONDENTS

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(BY SRI. SRINIVAS B.S., ADVOCATE FOR R1; SRI. NISHANTH A.V., ADVOCATE FOR C/R3; SRI. RAVISHANKAR S.S., ADVOCATE FOR R6; R2, R4, R5, R7 & R8 ARE SERVED AND UNREPRESENTED)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE ORDER DATED 21.01.2023 PASSED ON IA No.2 IN OS No.6775/2021 ON THE FILE OF XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH No.16), ALLOWING THE IA No.2 FILED UNDER ORDER 7 RULE 11(a)(d) R/W SEC.151 OF CPC FOR REJECTION OF PLAINT AND ETC.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 12.08.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE RAJESH RAI K

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CAV JUDGMENT

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(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)

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This appeal is preferred against the judgment dated 21.01.2023 passed by the XVII Additional City Civil and Sessions Judge, Bengaluru in O.S.No.6775/2021 by which the plaint was rejected.

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We have heard Shri. M.J. Alva, learned counsel appearing for the appellants, Shri. Srinivas B.S, learned counsel appearing for respondent No.1, Shri. Nishanth A.V, learned counsel appearing for respondent No.3 and Shri. Ravishankar. S.S, learned counsel appearing for respondent No.6.

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The learned counsel appearing for the appellants submits that the rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 can only be on the basis of the pleadings in the plaint and the rejection of the plaint on accepting the contention of the defendants that there

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was an oral partition in the family earlier was per se incorrect.

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The learned counsel would also place reliance on the decision of the Apex Court in Swadesh Kumar Agarwal v. Dinesh Kumar Agarwal and Others reported in AIR 2022 SC 2193 , in support of his contention. It is further submitted that there were several properties owned by the father of appellants Shri. Ramakrishnappa, who died intestate on 30.08.1995. It is submitted that the suit was filed seeking partition and separate possession in respect of 11 items of the immovable properties. It is further submitted that the defendants had raised counter claims and relying on documents produced by the defendants, the suit came to be rejected. It is submitted that the rejection of the plaint was untenable and that it was only after a full trial that it could have been decided whether the appellants were entitled to partition and separate possession of the properties and what is the share to be allotted to each. It is submitted that if even one item of property was available for partition, the plaint could not have been rejected.

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The learned counsel appearing for the

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respondents on the other hand contended that it was on the basis of the averments in the plaint itself, the plaint came to be rejected. It is submitted that there was an oral partition in the year 1990 and a registered confirmation deed in the year 2002, which was specifically pleaded by the plaintiffs and the copy of the registered confirmation deed was produced along with the plaint. The defendants had filed a petition seeking rejection of the plaint on the basis of the material which was placed on record by the appellants and it was on looking into those materials that the plaint was rejected by the trial Court.

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We have considered the contentions advanced.

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We notice that the suit was filed by 3 out of the 5 daughters of Ramakrishnappa and Venkatamma. Defendants No.1 to 3 are the brothers of the plaintiffs. The suit schedule properties were 11 items of immovable properties. The plaint averments read as follows:-

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"6. The plaintiffs submit that they gradually learnt that the defendants had stealthily disposed some of the properties by creating fictitious and fraudulent documents in their favour without the consent or

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knowledge of the plaintiffs and much against their interest. With the growing suspicion about the conduct of the defendants and about their actions, the plaintiffs had verified in the Office of the Sub-Registrar by obtaining encumbrance certificates and to their shock and surprise, the plaintiffs had learnt that the defendant Nos. 1 to 3 had created fictitious partition deed on 1.2.2002 which is styled as Confirmation Deed of Partition by partitioning the portions of the schedule properties among themselves to the exclusion of the plaintiffs. On obtaining the certified copy the plaintiffs have ascertained that the defendant Nos. 1 to 3 had partitioned the properties among themselves excluding the plaintiffs and the defendant No.5 and failed to effect partition and to put the plaintiffs in separate possession of their respective shares for which they are legitimately entitled. The plaintiffs had made their best endeavour to ascertain details of the properties disposed off by the defendant Nos.1 to 3 without their consent or knowledge and the plaintiffs could not get the definite and clear information. However the plaintiffs reserve their right to plead the same and implead the purchasers also during the pendency of the above suit.

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7. The plaintiffs submit that in addition to the immovable properties there are several movable properties left behind by their deceased parents which are neither partitioned nor transferred to the plaintiffs hitherto and the plaintiffs are entitled for their shares in the same. All the schedule properties mentioned in this suit are the self acquired properties of their deceased father who had got the same purchased either in his own name or in the names of the defendant Nos.1 to 3 or in the name of his wife Smt. Venkatamma. All the contributions for purchasing the said properties are made by the funds of their deceased father and the defendant Nos.1 to 3 were the dependent sons and only the name lenders and any property purchased in the names of the defendant Nos.1 to 3 are also the joint family properties over which the plaintiffs are having their undivided equal rights for shares. All the children of Ramakrishnappa and Venkatamma are entitled for 1/9th share each in the schedule properties."

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Along with the plaint, the confirmation deed of

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partition executed on 01.02.2002, between the mother of

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appellants and respondents No.1 to 5 and the sons was also produced. The said confirmation deed states that there was an unregistered partition affected on 24.08.1990 and that the daughters including the appellants were given separate extents of movable and immovable properties. It is submitted that the signature of certain of the parties were identified by R.Pushpalatha, one of the appellants and S.Chandrakantha and Savithri, two of the other sisters were witnesses to the document. It is submitted that the registered Deed of Confirmation of Partition having already been executed in the year 2002, the daughters would have no right to claim their share in the properties since partition already stood effected.

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Having considered the contentions advanced and

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in the light of the fact that the Confirmation Deed in respect of the partition was produced by the appellants themselves along with the plaint and since it was the said deed of partition which was taken into account by the Court for rejecting the plaint, we are of the opinion that the contention raised by the appellants that the plaint has been

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rejected accepting the unsubstantiated contentions of the defendants cannot be accepted by any stretch of imagination. It is clear that there was a partition effected in the family in the year 1990 and the daughters had been given properties in the said partition. The fact of the said partition had been confirmed by executing a confirmation deed which was registered in the year 2002 and in which one of the appellants have signed the same to identify the signatories who are her mother and brothers. The appellants therefore cannot plead ignorance of the partition which has occurred in the family in the year 1990 or the Confirmation Deed in the year 2002.

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In the above view of the matter and in view of the contention of the appellants that the suit properties were joint family properties, we are of the opinion that the partition effected in 1990 which is specifically affirmed in the registered Deed of Confirmation of Partition registered in the year 2002, would stand in the way of the claim of the daughters seeking partition and separate possession of the properties belonging to their Late father.

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In the above view of the matter, we are of the opinion that there is no merit in the appeal. The appeal accordingly fails and the same is dismissed with costs.

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All pending interlocutory applications shall stand dismissed.

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Sd/(ANU SIVARAMAN) JUDGE

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Sd/(RAJESH RAI K) JUDGE

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cp*

Smt Anusuya v. R Ashwathanarayana

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Smt Anusuya v. R Ashwathanarayana

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