Sathyavathi Vs Kashinath Rao

(V/O DTD:11.12.2022, SRI H.S. RUKKOJI RAO, ADV., FOR R-1(b) & R-1(c) & R-3 (VK NOT FILED FOR R-3); SRI S. MRUTHUNJAYA, ADV., FOR R-2(a TO c) SRI SACHIN V.R, ADV., FOR R-4 TO R-6; V/O DTD:11.02.2022 R-1(a) IS EXPIRED & R-1 (b & c) ARE THE LRs OF DECEASED R-1(a)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER, DATED 9.07.2020, PASSED ON I.A.9, FILED U/OR. XX RULE 18(1) OF CPC, 1908 IN FDP NO.25035/2011, PENDING ON THE FILE OF THE LXVII ADDL. CITY CIVIL AND SESSION JUDGE (CCH-58), MAYOHALL UNIT, BENGALURU, VIDE ANNEXURE-A.

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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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HC-KAR

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ORAL ORDER

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The legal representatives of respondent no.3 in FDP.No.25035/2011 are before this Court in this writ petition filed under Article 227 of the Constitution of India, with a prayer to set aside the order dated 09.07.2022 passed on IA.no.5 in FDP.No.25035/2011 by the Court of LXVII Addl. City Civil & Sessions Judge, Bengaluru.

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Heard the learned Counsel for the parties.

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O.S.No.11210/1998 was filed before the jurisdictional

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Civil Court by respondent nos.4 to 6 herein seeking the relief of partition and separate possession of the suit schedule properties. The said suit was decreed and it was held that plaintiff nos.1 & 2 viz., respondent nos.4 & 5 herein were entitled for 1/120^th share each in the suit schedule properties, and the claim of plaintiff no.3 who is their mother was rejected. Aggrieved by the said judgment and decree, defendants had filed RFA.No.2157/2010 before this Court which was allowed and the share of the parties to the suit was modified.

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HC-KAR

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Thereafter, the decree-holders in O.S.No.11210/1998 had initiated final decree proceedings before the Trial Court in FDP.No.25035/2011 and during the pendency of the said proceedings, respondent no.2 - Smt. K.Jana Bai had died. It is under these circumstances, IA.no.9 was filed under Order XX Rule 18 CPC with a prayer to modify the share allotted to the parties under the preliminary decree since K.Jana Bai had died issueless. Objection was filed to the said application by the petitioners herein and the Trial Court vide the order impugned, allowed IA.no.9 and has modified the preliminary decree by enlarging the share of the parties to FDP.No.25035/2011 proportionately. Being aggrieved by the said order, petitioners are before this Court.

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Learned Counsel for the petitioners submits that during her lifetime, Jana Bai had executed certain sale deeds in respect of the suit schedule properties, and therefore, the Trial Court is required to take the said aspect into consideration at the time of drawing the final decree. The Trial Court was, therefore, not justified in allowing the application.

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HC-KAR

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Per contra, learned Counsel for the contesting respondents submits that no such objection was raised on behalf of the petitioners herein the final decree proceedings, and on the other hand, in the final decree proceedings, objection was filed contending that Smt. Jana Bai was being taken care of by the petitioners herein during her life time, and therefore, her share is required to be allotted to them.

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It is not in dispute that Smt. K.Jana Bai who is party respondent no.2 in FDP.No.25035/2011 was allotted one share in the suit schedule properties under the preliminary decree that was passed in O.S.No.11210/1998. In RFA.No.2157/2010 only the share that was allotted to the wife and children of K.Kashinath Rao who is the brother of K.Jana Bai was modified and the share that was allotted to K.Jana Bai in the preliminary decree that was passed in O.S.No.11210/1998 stood unaltered.

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It is not in dispute that K.Jana Bai had separated from her husband and she had died issueless. Therefore, after her death, her siblings would be entitled for equal share in her estate. Petitioners herein are the legal representatives of K.Vittal Rao who is one of the brother of Jana Bai. The Trial

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HC-KAR

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Court having appreciated this aspect of the matter vide the order impugned, has enlarged the share of the parties to the preliminary decree and has held that after the death of K.Jana Bai, her bothers viz., K.Kashinath Rao, K.Vittal Rao, K.Subramani Rao and K.Ganesh Rao, are entitled for 1/4^th share each in the suit schedule properties. I do not find any illegality in the said order passed by the Trial Court.

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In the objections filed on behalf of the petitioners herein, it is stated that in view of the modified decree passed in RFA.No.2157/2010, it was not open for the Trial Court to reopen the shares allotted to the parties and modify the preliminary decree. It is relevant to note here that, in RFA.No.2157/2010, the share which was allotted to Smt. K.Jana Bai was not modified and the modification of shares in RFA.No.2157/2010 was only in respect to the wife and children of late K.Kashinath Rao who is one of the brother of Smt. K.Jana Bai. After the death of K.Jana Bai, the Trial Court has held that her four brothers including K.Kashinath Rao are entitled for 1/4^th share each in the suit schedule properties instead of 1/5^th share.

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HC-KAR

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The contention urged before this Court by the learned Counsel for the petitioners that during the lifetime of K.Jana Bai, she has executed sale deeds in respect of the suit schedule property in favour of third parties was not at all urged before the Trial Court or not raised in the objections filed on behalf of the petitioners. Therefore, I am of the opinion that this writ petition does not merit consideration. Accordingly, the writ petition is dismissed.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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KK

Sathyavathi v. Kashinath Rao

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Sathyavathi v. Kashinath Rao

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