Karnataka High Court

T. S. Lakshminarayana Upadhyaya vs Smt. Geetha Devi on 7 October, 2021

Author: Suraj Govindaraj

                             1       W.P. NO.35432 OF 2016




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 7TH DAY OF OCTOBER, 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

     WRIT PETITION NO.35432 OF 2016 (GM-CPC)

BETWEEN:

     T.S. LAKSHMINARAYANA UPADHYAYA
     SINCE DEAD BY LRS

1.   SMT. ANUSUYA UPADHYAYA
     AGED ABOUT 58 YEARS
     W/O LATE T.S. LAKSHMINARAYANA
     UPADHYAYA

2.   PUNEETH UPADHYAYA
     AGED ABOUT 25 YEARS
     S/O LATE T.S. LAKSHMINARAYANA
     UPADHYAYA

3.   NISHANTH UPADHYAYA
     AGED ABOUT 23 YEARS
     W/O LATE T.S. LAKSHMINARAYANA
     UPADHYAYA

     PETITIONERS 1 TO 3 ARE
     R/AT NO.23, RAJ ARCADE, 2ND CROSS
     VIDYANAGAR, KURUBARAHALLY MAIN ROAD
     BANGALORE-560076
                                        ...PETITIONERS
(BY SRI. A. MADHUSUDHANA RAO, ADVOCATE)

AND:

SMT. GEETHA DEVI
D/O T.L. SHIVARAM UPADYAYA
AGED ABOUT 59 YEARS
                              2          W.P. NO.35432 OF 2016




R/AT D. NO. 1277
14TH CROSS, PHASE II
GIRINAGARA, BANGALORE-560078
                                               ... RESPONDENT
(BY SRI. PRASANNA.V.R, ADVOCATE)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED    ORDER    DATED IMPUGNED ORDER        DATED
27.08.2014 AT ANNEXURE-D AND THE IMPUGNED ORDER
DATED 13.10.2014 ON I.A.10, 11 AND 13 IN FDP NO.3/1982
PASSED BY THE LEARNED PRL. SR. CIVIL JUDGE, MYSORE, AT
ANNEXURE-M ALLOW THIS W.P. WITH COSTS.
      THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN B GROUP AND HAVING BEEN RESERVED FOR
ORDERS ON 29.09.2021, THIS DAY, THE COURT PRONOUNCE
THE FOLLOWING:

                             ORDER

1. The Petitioner is before this Court seeking for the

following relief:

"Wherefore, it is most respectfully prayed that this Hon'ble Court be pleased to issue a writ of certiorari or any other appropriate writ order or direction quashing the impugned order dated the 27.08.2014 produced at Annexure-D and the impugned orders dated 13.10.2014 on I.A. Nos.10, 11, and 13 in F.D.P. No.3/1982 passed by the learned Principal Senior Civil Judge, Mysore, produced at Annexure-M, allow this writ petition with costs and grant such other reliefs as this Hon'ble Court be pleased to grant in the circumstances of the case."

3 W.P. NO.35432 OF 2016

2. Final Decree Proceedings No.3/1982 had been

filed to draw Final Decree in terms of the

preliminary decree passed in O.S. No.73/1969.

3. In the said Final Decree Proceedings, I.A. No.10

had been filed under Section 151 read with

Order XX Rule 18 of CPC by the legal heirs of the

deceased 10th defendant seeking for release of

the share of the 10th defendant in their favour.

4. I.A. No.11 had been under Order 39 Rule 1 and

2 of CPC by 10th defendant seeking for

temporary injunction restraining the 9th

defendant from receiving any amount from the

share of deceased 10th Defendant till the disposal

of application in I.A. No.10.

5. I.A. No.13 was filed under Section 151 directing

the 9th defendant to pay a sum of Rs.3 lakhs 4 W.P. NO.35432 OF 2016

towards rentals collected by her in the schedule

property.

6. The said applications were filed by the wife of

the 10th defendant on her own behalf and also

other legal heirs of deceased 10th defendant who

expired during the pendency of the Final Decree

Proceedings.

7. The 9th defendant had sought for the share of

the 10th Defendant to be allotted to 9th defendant

contending that a Will had been executed in her

favour by the 10th defendant.

8. This was opposed by contending that 9th

defendant did not have any right over the

property. The legal heirs of 10th defendant

contended that 9th defendant did not have any

right over the property. There is no Will

executed in favour of 9th defendant, even if it 5 W.P. NO.35432 OF 2016

was, the same would have to be proved in a

separate proceeding. If at all 9th defendant

wanted to lay a claim, same would have to be by

way of separate proceedings, not in Final Decree

Proceedings where right and title of 10th

defendant had fructified and only legal heirs of

10th defendant could claim his share.

9. The said applications were objected to by the 9th

defendant contending that there was a Will dated

11.08.2007 executed in her favour bequeathing

the share of 10th defendant, as such she was

entitled to the share of the 10th defendant and

she was ready to prove the Will by examining

the attestors of the Will and she sought

permission to do so. Pending such consideration,

it was contended by the 9th defendant that the

other applications cannot be considered.

6 W.P. NO.35432 OF 2016

10. The trial Court vide its order dated 13.10.2014

dismissed IA-10 on the ground that the shares of

the parties having already been determined, in

the present case the dispute is as regard the

succession of the share of 10th defendant under

a Will, the aspect whether the Will is genuine or

not cannot be decided in the Final Decree

11. Proceedings. IA No.11 and 13 were dismissed on

the ground that since IA-10 is not maintainable,

the question of granting an injunction and

depositing of monies would not arise. It is

aggrieved by the same that the Petitioner is

before this Court.

12. Sri.Madhusudhan Rao, learned counsel for the

Petitioner would submit that

12.1. the entire reasoning of the trial Court is not

proper. He relies upon the decision of the 7 W.P. NO.35432 OF 2016

Apex Court in Ganduri Koteshwaramma

and Another -vs- Chairi Yanadi And

Another [(2011) 9 SCC 788], more

particularly para 19 thereof which is

extracted hereunder for easy reference:

"19. The High Court was clearly in error in not properly appreciating the scope of Order XX Rule 18 of C.P.C. In a suit for partition of immovable property, if such property is not assessed to the payment of revenue to the government, ordinarily passing of a preliminary decree declaring the share of the parties may be required. The court would thereafter proceed for preparation of final decree. In Phoolchand, this Court has stated the legal position that C.P.C. creates no impediment for even more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree. The court has always power to revise the preliminary decree or pass another preliminary decree if the situation in the changed circumstances so demand. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings."

8 W.P. NO.35432 OF 2016

12.2. Relying on the above he contends that until

final decree is passed, the Court would

have the power to pass any number of

preliminary decrees.

12.3. The determination of the dispute between

the 9th defendant and legal heirs of 10th

defendant was very much essential for

allocation of the share of the 10th

defendant. If the said dispute was not

resolved, it would not be possible for a final

decree to be drawn up since it would not be

clear as to whom the property falling to the

share of 10th defendant has to be allotted.

12.4. He further relies upon the decision of the

Apex Court in Phoolchand and Another -

v- Gopal Lal [AIR 1967 SC 1470], more 9 W.P. NO.35432 OF 2016

particularly para 7 thereof which is

extracted hereunder for easy reference:

"7. We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. . . . .. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; ........... there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. . . for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. . . . .a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree."

10 W.P. NO.35432 OF 2016

12.5. Relying upon the said decision, he submits

that when there is a dispute between the

surviving parties as to devolution of the

share of the party who is dead, the same

would have to be determined in the Final

Decree proceedings. A second preliminary

decree could also be passed in partition

suits by which the shares allotted in the

preliminary decree already passed can be

amended and if there is a dispute between

the surviving parties on that behalf, then

that dispute would have to be decided in

the final decree.

12.6. He relies upon the decision in Rukmini &

Others -v- Uday Kumar and Others

[AIR 2008 KAR 13] more particularly,

para 19 thereof which is extracted

hereunder for easy reference:

11 W.P. NO.35432 OF 2016

"19. We are of the considered opinion that the final decree proceedings are continuation of the suit. Final decree proceedings is a stage in continuation of the suit for partition. The preliminary decree declares and determines the shares of parties. Actual division of the properties, putting the parties in separate possession of their shares, adjustment of equities, impartibility of the suit property, sale of property and all other disputes have to he settled in final decree proceedings. The final decree Court is competent even to determine the interse partition among the defendants in which the plaintiffs have no share."

12.7. Relying upon the same he submits that

until and unless actual division of the

property happens, Final Decree Court is

competent to pass interse partition

amongst the defendants in which plaintiffs

have no share. On the basis of the above,

he submits that even though the 9th

defendant has set up a Will, the

genuineness or otherwise of the Will would

have to be determined by the Final Decree

Court so as to resolve the dispute between 12 W.P. NO.35432 OF 2016

the 9th defendant and the legal heirs of 10th

defendant so as to decide in whose favour

the share of 10th defendant has to be

handed over, without that final decree

could not be drawn up and division of the

properties can not be taken up.

12.8. On the basis of the above, he submits that

the writ petition as filed has to be allowed.

Consequently, IA Nos. 10, 11 and 13 filed

before the trial Court would be required to

be allowed.

13. Per contra, Sri.V.R.Prasanna, learned counsel

appearing for the respondent would submit that;

13.1. In a Final Decree proceedings, inter-se

dispute between the defendants cannot be

agitated inasmuch as the same would go 13 W.P. NO.35432 OF 2016

beyond the decree drawn up which is not

permissible;

13.2. The share of 9th and 10th defendants have

already been determined. Hence, on that

basis the shares will have to be allotted.

There cannot be an enquiry as regards the

share of the 9th and 10th defendants.

13.3. In this regard, he relies upon the decision

of this Court dt. 16.02.2021 in RFA

No.841/2016 which had been rendered

between the parties to this proceedings

itself.

13.4. An application was filed under Order XXII

Rule 18 of CPC by plaintiff 1(a) claiming

that plaintiff No.1 during her lifetime had

executed a Will 29.11.1968 bequeathing in

favour of plaintiff No.1(a). This court held 14 W.P. NO.35432 OF 2016

that the Will having been executed in the

year 1968 before the filing of the suit and

the said issue not having been agitated,

during the course of the suit could not be

agitated in the Final Decree proceedings.

13.5. This Court held that the said Will coming up

for consideration for the first time, the

same could not be decided enlarging the

scope of Final Decree proceedings.

13.6. Relying on the above decision, Sri.Prasanna

submits that when this Court in a earlier

decision relating to the same matter where

a Will has been set up, declined the

application under Order XX Rule 18 of CPC,

in the present case also the same situation

would persist and therefore, the present 15 W.P. NO.35432 OF 2016

petition would also have to be dismissed

confirming the order of the trial Court.

14. Heard Sri.Madhusudhana Rao, learned counsel

for the petitioners and Sri.Prasanna.V.R, learned

counsel for the respondent. Perused papers.

15. The short question that would arise for

determination are:

15.1. Whether in Final Decree proceedings on a share being allotted to one of the parties, if such party were to expire during the pendency of the proceedings having left behind a Will, could dispute relating to the Will between the existing parties to the proceedings be determined in Final Decree proceedings?

15.2. What order?

16. ANSWER TO POINT NO.1: Whether in Final Decree proceedings on a share being allotted to one of the parties, if such party 16 W.P. NO.35432 OF 2016

were to expire during the pendency of the proceedings having left behind a Will, could dispute relating to the Will between the existing parties to the proceedings be determined in Final Decree proceedings?

16.1. Firstly let me answer the point raised by

Sri.Prasanna.V.R, learned counsel for the

respondent.

16.2. In the decision rendered by this Court in

RFA No.841/2016, the Will which was

stated to have been executed by the

plaintiff on 28.11.1968, it is not clear when

the plaintiff expired. Be that as it may, this

Court taking into consideration that the suit

was filed in O.S. No.73/69 and that Will

was executed prior to the filing of the suit

had not been referred to or relied upon

during the pendency of the suit came to a

conclusion that the said Will cannot be

agitated in the Final Decree Proceedings.

17 W.P. NO.35432 OF 2016

16.3. In the present case, the Will is sought to be

executed and claimed to have been

executed on 19.08.2007 after the Final

Decree proceedings in FDP No.3/1982 had

been filed.

16.4. This Will is stated to have been executed

by the 10th defendant in favour of the 9th

defendant. In pursuance thereof, the 9th

defendant is claiming the entire share of

the 10th defendant. This is opposed by the

wife and children of 10th defendant who

challenged the said Will.

16.5. Thus exfacie having regard to the context

of the matter and the datelines the decision

in RFA No.841/2016 was rendered as

regards a Will executed pre-litigation

whereas in the present case, the Will is 18 W.P. NO.35432 OF 2016

executed and become operational in the

Final Decree proceedings, thus the decision

in RFA No.841/2016 is not applicable.

16.6. Be that as it may, in the said decision, the

parties had not brought to the notice of this

Court the Judgments in Phoolchand's

case, Rukmani's case, as also Ganduri

Koteshwaramma's case to the notice of

this Court in this proceedings.

16.7. Having regard to the decision rendered in

Phoolchand's case which has been

extracted hereinabove, as also Rukmini's

case, it is clear that in a Final Decree

proceedings before the final decree is

drawn up, the Final decree Court could

decide any claims interse between the

parties.

19 W.P. NO.35432 OF 2016

16.8. This is a case where the dispute is between

9th defendant and legal heirs of 10th

defendant as regard the share of 10th

defendant. The Final decree Court would

necessarily have to decide as to whom the

share of 10th defendant has to be allotted,

whether it is to 9th defendant or legal heirs

of 10th defendant. Without such

adjudication the allotment of share of 10th

defendant cannot be made.

16.9. It would have been a different matter if

upon the expiry of 10th defendant there is

dispute interse amongst the legal heirs of

10th defendant, which need not be

adjudicated in Final Decree proceedings,

same could have been adjudicated in a

separate proceedings amongst the legal

heirs of 10th defendant.

20 W.P. NO.35432 OF 2016

16.10. In the present case, the dispute is between

the 9th defendant and legal heirs of 10th

defendant and as stated above, the share

of 10th defendant is required to be allotted

to someone without determination of that

someone, the Final Decree proceedings

cannot come to an end.

16.11. In order to draw up the Final decree, final

decree court will have the power and

competence to decide all issues and

disputes between the parties so as to give

effect to a final decree including

determination of any claim of legal

heirship, testamentary succession, etc, so

long as it is required for the drawing up of

the final decree.

21 W.P. NO.35432 OF 2016

16.12. Hence, I answer Point No.1 by holding

that in Final Decree proceedings on a

share being allotted to one of the

parties, if such party were to expire

during the pendency of the

proceedings having left behind a Will,

any dispute relating to the Will

between the existing parties to the

proceedings be can be determined in

Final Decree proceedings by the court

seized of that matter.

17. POINT NO.2: What order ?

17.1. In view of answer to Point No.1, the writ

petition is allowed.

17.2. The order dated 13.10.2014 on IA-10

passed by Prl. Senior Civil Judge, Mysore,

is set-aside. The orders dated 13.10.2014

on IA Nos.11 and 13 are also set-aside.