Kum H v Madhushree Vs Obalagiriyappa

KUM. H.V. MADHUSHREE D/O RAJANNA @ RANGAIAH AND LATE O. VANAJAKSHI AGED ABOUT 21 YEARS R/A C/O N. PUTTALINGAPPA VEDAVATHI NAGARA NEAR MASJID, HIRIYUR CHITRADURGA-577598.

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…PETITIONER

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(BY SRI. MURTHY K, ADV.,)

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AND:

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OBALAGIRIYAPPA

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S/O SANA HANUMANTHAPPA AGED ABOUT 85 YEARS

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HEMADALA VILLAGE IMANGALA HOBLI, HIRIYUR TALUK CHITRADURGA -577598.

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ANJANAPPA SINCE DEAD BY HIS LRS

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SMT. GANGAMMA AGED ABOUT 73 YEARS.

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SRI. RAJAPPA AGED ABOUT 51 YEARS.

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HC-KAR

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SRI. SUJATHA AGED ABOUT 49 YEARS.

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SRI. SREEDHAR AGED ABOUT 45 YEARS.

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SMT. SAVITHA AGED ABOUT 41 YEARS.

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RESPONDENT NO.2 IS WIFE AND RESPONDENTS NO.3 TO 6 ARE THE CHILDREN OF LATE ANJANAPPA.

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ALL ARE R/AT. WATER TANK ROAD HIRIYUR TALUK CHITRADURGA-577598.

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SRI. RAMANNA S/O SANNA HANUMAPPA AGED ABOUT 61 YEARS NEAR AMBEDKAR BEEDI CHITRADURGA-577598.

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DODDAKKA

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SINCE DEAD BY HER LRS

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SRI. N. PUTTALINGAPPA S/O NINGAPPA AGED ABOUT 83 YEARS.

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SMT. N.P. NIRMALA D/O PUTTALINGAPPA AGED ABOUT 56 YEARS.

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SRI. P. PURUSHOTAMA S/O PUTTALINGAPPA AGED ABOUT 52 YEARS.

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SRI. P. THIPPESWAMY S/O LATE PUTTALINGAPPA AGED ABOUT 52 YEARS.

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HC-KAR

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RESPONDENTS NO.8 TO 11 ARE R/AT. 3RD WARD, VEDAVATHINAGRA NEAR MEKKA MASIDI, HIRIYUR TOWN CHITRADURGA-577598.

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KAMALAMMA

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SINCE DEAD BY HER LRS

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SRI. K.T. GOWDA S/O MUDLAPPA AGED ABOUT 86 YEARS.

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SRI. EKANTHA GOWDA S/O K.T. GOWDA AGED ABOUT 49 YEARS.

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SMT. K. NALINAKSHI D/O K.T. GOWDA AGED ABOUT 45 YEARS.

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SRI. K.V. PRASAD S/O K.T. GOWDA AGED ABOUT 86 YEARS.

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RESPONDENTS NO.12 TO 15 ARE R/AT. UMA NILAYA BESIDE EXCISE OFFICE KHB COLONY, T R NAGARA CHALLAKERE TOWN AND POST CHITRADURGA-577598.

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LAKSHMIDEVI DEAD BY LRS DEFENDANTS NO. 6 AND 8 ARE ALL ON RECORD.

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SMT. THIPPAMMA D/O LATE SANJEEVAPPA AGED ABOUT 68 YEARS R/A NO.43, IST MAIN 5TH CROSS, OPP MARIYAMMA TEMPLE

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HC-KAR

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MALLAPPA BADAVANE, BABASPALYA KALYANA NAGAR, BANGALORE.

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SMT. CHIKKA HANUMAKKA W/O LATE SANJEEVAPPA AGED ABOUT 78 YEARS R/A HEMADALA VILLAGE AIMANGALA HOBLI HIRIYUR TALUK CHITRADURGA-577598.

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SRI. L. HANUMANTHAPPA W/O LATE LENKAPPA AGED ABOUT 76 YEARS.

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GOPALAPPA

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SINCE DEAD BY LRS.

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SMT. PUTTARANGAMMA W/O LATE GOPALAPPA AGED ABOUT 63 YEARS.

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SRI. BHANUPRAKASH S/O LATE GOPALAPPA AGED ABOUT 41 YEARS.

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SMT. RADHAMMA D/O LATE GOPALAPPA AGED ABOUT 38 YEARS.

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KUM. VINUTHA D/O LATE GOPALAPPA AGED ABOUT 35 YEARS.

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KUM. KAVYA D/O LATE GOPALAPPA AGED ABOUT 32 YEARS.

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RESPONDENTS NO.18 TO 23 ARE R/A HEMADALA VILLAGE AIMANHALA HOBLI

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HC-KAR

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HIRIYUR TALUK CHITRADURGA-577598.

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SRI. P. HARIYAPPA S/O PATHAPPA AGED ABOUT 63 YEARS.

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HANUMANTHAPPA DEAD BY HIS UNMARRIED SISTER B. BHAGYAMMA IS ALREADY ON RECORD THOPAMMA DEAD HIS LRS DEFENDANTS NO.6 AND 8 ARE ON RECORD.

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SMT. B. BHAGYAMMA D/O BALADANAPPA AGED ABOUT 53 YEARS.

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THOPAMMA W/O BALADANDAPPA DEAD BY LRS.

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KECHAMMA

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DEAD SINCE BY HER LRS PLAINTIFFS NO.4, 5 AND 6 AND DEFENDANTS NO. 3 TO 9 ARE ALREADY ON RECORD.

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RESPONDENTS NO.24 & 25 ARE R/A HEMADALA VILLAGE AIMANHALA HOBLI HIRIYUR TALUK CHITRADURGA-577598.

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SRI. T. SHIVAPPA NAYAKA S/O TYARAMALLA NAYAKA AGED ABOUT 70 YEARS R/A HEMADALA VILLAGE AIMANHALA HOBLI HIRIYUR TALUK CHITRADURGA-577598.

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HC-KAR

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SMT. MEENAKSHAMMA W/O HARIYAPPA AGED ABOUT 61 YEARS.

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SRI. DINESH S/O HARIYAPPA AGED ABOUT 48 YEARS.

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SMT. GIRIJAMMA D/O HARIYAPPA AGED ABOUT 38 YEARS.

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SMT. LAKSHMIDEVAMMA W/O LATE HANUMANTHAPPA AGED ABOUT 63 YEARS.

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SRI. H.R. MUNISWAMY S/O LATE HANUMANTHAPPA AGED ABOUT 45 YEARS.

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SMT. KENCHAMMA W/O SIDDAPPA AGED ABOUT 68 YEARS.

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SMT. RUDRAMMA D/O SIDDAPPA AGED ABOUT 48 YEARS.

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SMT. LAKSHMIDEVI W/O CHANNABASAPPA AGED ABOUT 60 YEARS.

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SMT. SRIDEVI D/O CHANNABASAPPA AGED ABOUT 31 YEARS.

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RESPONDENTS NO.27 TO 35 ARE R/A HEMADALA VILLAGE AIMANHALA HOBLI HIRIYUR TALUK CHITRADURGA-577598.

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HC-KAR

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SRI. C.H. SIDDAPPA S/O CHIKKA HANUMAPPA AGED ABOUT 70 YEARS R/A HEMADALA VILLAGE AIMANGALA HOBLI HIRIYUR TALUK CHITRADURGA-577598.

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SRI. CHANNABASAPPA S/O CHIKKA HANUMAPPA AGED ABOUT 61 YEARS R/A HEMADALA VILLAGE AIMANHALA HOBLI HIRIYUR TALUK CHITRADURGA-577598.

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…RESPONDENTS

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(BY SRI. AVINASH P, ADV., FOR R16 R1 TO 6 ARE SERVED AND UNREPRESENTED NOTICE TO R8 TO R38 IS D/W V/O/DTD:19.06.2023 NOTICE TO R7 IS H/S V/O/DTD:27.07.2025)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS SET ASIDE THE ORDER AT ANNEXURE-A, THE ORDERS ON I.A.NO.32 UNDER ORDER XXII RULE 3 R/W SECTION 151 OF CPC DATED 7.12.2019 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT HIRIYUR IN O.S.NO.115/2006 AND ALLOW I.A.NO.32 BY ALLOWING THIS WRIT PETITION & ETC.

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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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HC-KAR

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This writ petition is filed challenging the order dated 07.12.2019 passed on IA.No.32 filed by the petitioner under Order XXII Rule 3 r/w Section 151 of the Code of Civil Procedure, 1908 (for short 'the CPC') in O.S.No.115/2006.

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Sri.Murthy K., learned counsel appearing for the petitioner submits that Sri.Obalagiriyappa and others, including the mother of the petitioner, had filed a suit for partition and separate possession. During the pendency of the said suit, plaintiff No.6 - Smt. Vanajamma died on 20.05.2016. Hence, the petitioner, who is the daughter of Smt.Vanajamma/plaintiff No.6 filed an application to come on record. It is submitted that the trial court, after conducting a detailed enquiry, rejected the said application solely on the ground that the name of the father of the petitioner is mentioned as Sri.Rajanna or Rangaiah in all the documents. Whereas, his actual name is Sri.Rangappa.

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HC-KAR

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It is further submitted that the trial Court has failed to consider Ex.P7 and the oral evidence of the petitioner in its proper perspective. It is also submitted that except plaintiff Nos. 1, 2 and 3 none of the parties to the suit have opposed the said application. It is contended that defendants Nos.1 to 3 have clearly admitted that the petitioner is the daughter of plaintiff No.6. Due to strained relationship between the deceased plaintiff No.6/Smt.Vanajamma and her husband Rangappa, they were residing separately. Hence, he seeks to allow the petition.

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3. Though notice has been served on the other

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respondents, there is no representation on their behalf, except respondent No.16, who was defendant No.1 in the suit.

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4. Learned counsel for defendant No.1 supports

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the order of the trial Court and submits that the trial Court, after conducting a detailed enquiry and on

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appreciation of the evidence on record, has rightly rejected

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the application, holding that the petitioner has failed to prove that she is the daughter of Plaintiff No.6. It is submitted that the said order is a well reasoned order and does not call for any interference. Hence, he seeks to dismiss the petition.

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I have heard the arguments on both the sides

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and meticulously perused the material available on record.

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The records indicate that one Obalagiriyappa

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and 9 others have filed O.S.No.115/2006 before the Senior Civil Judge and JMFC, Hiriyur, against the other family members for partition and separate possession of the suit schedule properties. The plaintiff No.6 in the said suit is Smt.Vanajamma W/o Rangappa. It is averred that plaintiff No.6 Smt.Vanajamma died on 20.05.2016, hence the petitioner herein filed an application under Order XXII Rule 3 read with Section 151 of CPC claiming to be the sole legal representative of Smt.Vanajamma. The said

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application is numbered as Item No.32. Plaintiff Nos.1 to 3 filed objections to the said application stating that the petitioner is not the legal representative of deceased plaintiff No.6, hence, cannot maintain the application. The other plaintiffs and the defendants have not opposed the said application. It is to be noticed that the defendant Nos.3 to 5 in the said suit have clearly admitted that the petitioner is the sole legal representative of the deceased Smt.Vanajamma. It is also stated that the petitioner Smt.H.V.Madhusree is the daughter of Rajanna @ Rangaiah and the plaintiff No.6 deceased Smt.Vanajamma was a divorced woman residing separately.

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The trial Court conducted the enquiry as provided under Rule 5 Order XXII of CPC and passed the impugned order holding that the petitioner failed to prove that she is the legal representative of the deceased Smt.Vanajamma (plaintiff No.6). In order to substantiate the claim, the petitioner herein examined herself before the trial Court as AW-1 and got marked the documents as

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HC-KAR

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per Exs.A1 to A14. The plaintiff Nos.1 to 3 have got marked Exs.P1 to P3.

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The perusal of oral testimony in the petitioner and the documents produced as per exhibits on record, it is noticed that the petitioner has produced Genealogy Tree as per Ex.A1, which indicates that she is the daughter of Smt.Vanajamma-plaintiff No.6. The ration card as per Ex.A2, indicates that the petitioner is the daughter of plaintiff No.6 Smt.Vanajamma. The bank passbook as per Ex.A4 also indicates the name of the petitioner as well as the name of her mother plaintiff No.6 Smt.Vanajamma. The Aadhaar card of the petitioner as per Ex.A3 indicates the name of the petitioner as Madhusree H.V. and her father's name as Rajanna. The death certificate of plaintiff No.6 Smt.Vanajamma, which was produced and marked as Ex.A5, clearly indicates the name of her husband as Rajanna @ Rangaiah and the date of death is 20.05.2016. In the plaint it is stated that Smt.Vanajamma W/o Rangappa, which can be tallied with the death certificate

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and other documents produced before the trial Court by the petitioner. The petitioner has produced the study certificate as per Ex.A6, wherein name of the father of the petitioner is written as Rajanna. The SSLC Marks card of the petitioner marked as per Ex.A9 also refers the names of the father and mother of the petitioner as Rajanna and Vanajamma, who was also called as 'Vanajakshi'.

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It is not in dispute that the name of plaintiff No.6 Smt.Vanajamma is found in all the records of the petitioner. In view of the said fact, in my considered view, the petitioner has produced sufficient and legally acceptable evidence before the trial Court to substantiate that she is the daughter of the plaintiff No.6 Smt.Vanajamma. The trial Court, without appreciating the school records, death certificate of the plaintiff No.6, Aadhaar card of the petitioner and other records and the oral testimony of the petitioner, proceeded to reject the said application on appreciation minor discrepancy. In my considered view, the said application deserves to be

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allowed taking into consideration the fact that the petitioner is able to prove that she is the legal representative of the deceased plaintiff No.6 Smt.Vanajamma.

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For the aforementioned reasons, I proceed to

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pass the following:

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ORDER

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i. Writ petition is allowed .

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ii. The order dated 07.12.2019 passed on I.A.No.32 in O.S.No.115/2006 by the Senior Civil Judge and JMFC, Hiriyur, is hereby set aside. Consequently, I.A.No.32 filed under Order XXII Rule 3 read with Section 151 of CPC is allowed. The petitioner herein, who is the applicant in the said application, is permitted to come on record before the trial Court as the legal representative of deceased plaintiff No.6 Smt.Vanajamma.

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