Sri Prashanth T Vs Sri Venkateshappa

THIS WP IS FILED UNDER ARTILCE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 04/02/2023 PASSED BY THE LEARNED I ADDL. CIVIL JUDGE

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NC: 2025:KHC:49072 WP No. 3347 of 2023

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HC-KAR

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AND J.M.F.C MALUR ON I.A.NO.5 IN F.D.P.NO. 10/2013 VIDE ANNEXURE-N.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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This writ petition under Article 227 of the

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Constitution of India is filed with a prayer to set aside the order dated 04.02.2023 passed on I.A.No.V in FDP No.10 of 2013 by

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the Court I Addl. Civil Judge & JMFC, Malur, Kolar District.

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Heard the learned counsel appearing for the parties.

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Suit in O.S.No.306 of 1994 was filed before the jurisdictional civil Court by respondent no.1 herein initially against one Chikkamuniyappa, who is the husband of respondent no.2 herein. The said suit was decreed and it was held that plaintiff was entitled for 1/3^rd share in the suit schedule properties, which consisted of three items of properties. Subsequently, the plaintiff, namely Venkateshappa, had initiated final decree proceedings before the trial court in FDP No.10 of 2013 and it appears that during the pendency of the final decree proceedings, defendant no.1 in O.S.No.306 of

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HC-KAR

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1994, namely Chukkamuniyappa, who is the husband of respondent no.2 herein had died and therefore respondent no.2 and her children were brought on record as his legal representatives. In the said proceedings, I.A.No.V was filed on behalf of the petitioner to implead him as party respondent no.3 and the said application was opposed by the respondent no.1 herein. The trial Court vide the order impugned has dismissed I.A.No.V filed on behalf of the petitioner and it is under these circumstances, petitioner / impleading applicant is before this Court.

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Learned counsel for the petitioner submits that Item Nos.2 and 3 of the suit schedule properties in O.S.No.306 of 1994 are the absolute properties of respondent no.2 herein. She had purchased the same under a registered sale deed dated 28.10.1974 ( Annexure-F). Though the original defendant no.1 in his written statement had specifically mentioned about the same, trial Court has failed to appreciate the said aspect of the matter. After the legal representatives of original defendant no.1 had come on record in the final decree proceedings, even they have filed an objection stating that suit schedule Item

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HC-KAR

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Nos.2 and 3 properties are the absolute properties of respondent no.2 herein and therefore the said properties are not the joint family properties of the plaintiff and defendant no.1. He submits that respondent no.2 has executed a registered gift deed in respect of the said property in favour of the petitioner herein, who is her grandson. Accordingly, he prays to allow the petition.

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Per contra , learned counsel for contesting

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respondent No.1 submits that the petitioner and respondent no.2 have challenged the preliminary decree passed in O.S.No.306 of 1994 in R.A.No.25 of 2021 which is pending

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consideration. The trial Court has held that defendant no.1 - Chikkamuniyappa had failed to prove that Item nos.2 and 3 of the suit schedule property are the absolute property of his wife Chikkamuniyamma and they are not available for partition. Under the circumstances, petitioner who claims right under Chikkamuniyamma on the basis of the gift deed said to have been executed by her in respect of the said two properties cannot be impleaded in the final decree proceedings. He

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HC-KAR

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submits that therefore the trial Court was justified in rejecting

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the application. Accordingly, he prays to dismiss the petition.

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Perusal of the material on record would go to show

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that respondent no.1 herein of claiming to be the son born to the first wife of Chikkamuniyappa, had filed O.S.No.306 of 1994 seeking partition and separate possession of suit schedule property which consisted of three items of land. In the said suit, Chikkamuniyappa (defendant no. 1) had filed a written statement contending that Item Nos.2 and 3 properties are the absolute properties of his wife Chikkamuniyamma and therefore, they are not available for partition. The trial Court however had decreed the suit and had held that plaintiff is entitled for 1/3^rd share in the suit schedule properties. It is not in dispute that as against the judgment and decree passed in O.S.No.306 of 1994, petitioner and respondent no.2 herein have filed R.A.No.25 of 2021 which is pending consideration before the first appellate Court.

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Learned counsel for the petitioner has produced copy of sale deed dated 28.10.1974 under which respondent no.2 herein had purchased Item Nos.2 and 3 of the suit

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HC-KAR

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schedule property for valid consideration. Perusal of the said document would clearly go to show that under the said deed, Smt. Chikkamuniyamma, who is respondent no.2 herein had purchased Item Nos.2 and 3 of the suit schedule property in O.S.No.306 of 1994, from Smt. Venkatamma, wife of Sri Venkataramaiah resident of Narayanakere Village, Anugondanahally Hobli, Hosakote Taluk for valid sale consideration. Therefore, there is prima facie material to show that respondent no.2 - Smt. Chikkamuniyamma was the absolute owner of Item Nos.2 and 3 of the suit schedule property. A contention to the said effect was raised in the written statement filed by her husband, who was defendant no.1 in O.S.No.306 of 1994. After the death of defendant No.1 his wife, Chikkamuniyamma and her children were brought on record as his legal representatives and they have filed objection in FDP No.10 of 2013 contending that Item Nos.2 and 3 of the suit schedule property in O.S.No.306 of 1994 are the absolute property of Chikkamuniyamma and they were not available for partition. Chikkamuniyamma has executed a registered gift deed dated 07.11.2018 in respect of the aforesaid two items of property in favour of her grandson who is the petitioner herein

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HC-KAR

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and on the strength of the said gift deed the petitioner has filed

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an application for impleading him as party respondent in the FDP No.10 of 2013. The trial Court has failed to appreciate the aforesaid aspects of the matter and has erred in rejecting I.A.No.V filed by the petitioner to implead him as party respondent in FDP No.10 of 2013. Since the petitioner claims right over Item Nos.2 and 3 of the suit property based on the registered gift deed said to have been executed by his grandmother Smt. Chikkamuniyamma, who appears to have purchased the aforesaid property under a registered sale deed dated 28.10.1974, I am of the opinion that trial Court was not justified in rejecting the petitioner's application to implead him as party respondent No.3 in FDP No.10 of 2013.

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8. Accordingly the following:-

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ORDER

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(i) Writ petition is allowed.

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(ii) The impugned order dated 04.02.2023, passed on I.A.No.V in FDP No.10 of 2013 by the Court I Addl. Civil Judge & JMFC, Malur, Kolar District is set aside and consequently

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