Sri Lakshmana vs Smt Sumitra
2022 Latest Caselaw 5871 Kant

                                       C.R.P.No.487/2015

                             1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 31ST DAY OF MARCH 2022

                           BEFORE

        THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

       CIVIL REVISION PETITION No.487/2015

BETWEEN:

SRI.LAKSHMANA
S/O LATE APPAJIGOWDA
AGED ABOUT 45 YEARS
R/AT NO.53/2, 2ND CROSS
JAI MARUTHI NAGARA, NANDINI LAYOUT
BENGALURU - 560 096                   ... PETITIONER

(BY SRI.M.N.RAGHU, ADV.)

AND:

1.     SMT.SUMITRA
       W/O YATHISH
       D/O LATE APPAJI GOWDA
       AGED 41 YEARS
       R/AT NO.30, RADHAKRISHNA BUILDING
       DASANAPURA VILLAGE AND HOBLI
       BENGALURU NORTH TALUK
       BENGALURU - 560 032

2.     SMT.NANJAMMA
       W/O LATE APPAJI GOWDA
       AGED 70 YEARS
       R/AT SURANAHALLI VILLAGE
       HOLENARASIPURA TALUK
       HASSAN DISTRICT - 573 211

3.     SMT.PRABHAMANI
       W/O SONNE GOWDA
       D/O LATE APPAJI GOWDA
       AGED 51 YEARS
       R/AT HANUMANAHALLI VILLAGE
       HALEKOTE HOBLI, HOLENARASIPURA TALUK
                                       C.R.P.No.487/2015

                          2


     HASSAN DISTRICT - 573 211

4.   SMT.LAKSHMI
     W/O DEVE GOWDA
     D/O LATE APPAJI GOWDA
     AGED 49 YEARS
     R/AT ANEKERE VILLAGE
     DANDIGANAHALLI HOBLI
     CHANNARAYAPATNA TALUK
     HASSAN DISTRICT - 573 116

5.   SRI.MOHANA
     S/O LATE APPAJI GOWDA
     AGED 45 YEARS
     LIC AGENT
     R/AT SURANAHALLI VILLAGE
     HOLENARASIPURA TALUK
     HASSAN DISTRICT - 573 211

6.   SMT.VANITHA
     W/O JAYADEV
     D/O LATE APPAJI GOWDA
     AGED 43 YEARS
     R/AT NO.4, BEERESHWARA LAYOUT
     VAJARAHALLI, T.B.STOP
     NELAMANGALA TALUK
     BENGALURU RURAL DISTRICT - 560 023
                                     ... RESPONDENTS

(BY SRI.CHETHAN B, ADVOCATE FOR R1;
    R2 AND R3 ARE SERVED;
   VIDE ORDER DATED 21.07.2016 NOTICE TO
   R4 TO R6 ARE DISPENSED WITH)

      THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CPC, AGAINST THE ORDER DATED 07.08.2015
PASSED ON O.S.NO.273/2013 ON THE FILE OF THE
ADDITIONAL     CIVIL  JUDGE,   JMFC,   HOLENARASIPURA,
DISMISSING THE APPLICATION FILED UNDER ORDER 7 RULE
11(a) AND (d) READ WITH SECTION 151 OF CPC-IA NO.8.

     THIS CIVIL REVISION PETITION COMING ON FOR FINAL
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
                                                  C.R.P.No.487/2015

                                3


                         ORDER

Aggrieved by the rejection of his application (IA

No.8) under Order VII Rule 11(a) and (d) of CPC,

defendant No.5 in O.S.No.273/2013 has preferred the

above petition.

2. Respondent No.1 is the plaintiff. Respondent

No.2 to 6 are defendant Nos.1 to 4 and 6 in

O.S.No.273/2013. For the purpose of convenience, the

parties will be referred to henceforth according to their

ranks before the trial Court.

3. Defendant No.1 is the wife of Appaji Gowda.

Plaintiff and defendant Nos.2 to 6 are the children of

Appaji Gowda and defendants No.1. Appaji Gowda died in

the year 1977. Suit schedule properties were the

ancestral properties of Appaji Gowda. After the death of

Appaji Gowda defendant Nos.1, 4 and 5 effected partition

amongst themselves in the suit schedule properties under

a registered partition deed dated 01.06.2004.

4. Plaintiff filed O.S.No.273/2013 for partition and

separate possession of 8/49th share claiming that being the C.R.P.No.487/2015

daughter of Appaji Gowda she was entitled to the said

share in the suit schedule properties. She further claims

that behind the back of the plaintiff and other co-sharers

defendant Nos.4 and 5 have effected partition on

01.06.2004 to deprive the other sharers of their shares,

therefore, that does not bind her.

5. Defendant No.5 contested the suit by filing his

written statement. When the matter was set down for

evidence, he filed IA No.8 under Order VII Rule 11 (a) and

(d) of CPC seeking rejection of the plaint on the ground

that the suit is barred by law and does not disclose the

cause of action. The application was opposed by the

plaintiff. The trial Court on hearing both side by the

impugned order rejected the said application.

6. Learned counsel for the petitioner relying on

Section 6 of the Hindu Succession (Amendment) Act, 2005

('the Act' for short) and the judgment of the Hon'ble

Supreme Court in Vineet Sharma vs. Rakesh Sharma C.R.P.No.487/2015

and others1 submits that if there is a partition in the

family properties prior to 20.12.2004, Section 6 of the Act

has no application and the daughters cannot claim right as

coparceners. Therefore, the suit is barred by law.

7. Learned counsel for the respondents submits

that the plaintiff has not only claimed share under Section

6 but also under Section 8 in the share of her father.

Therefore, the judgment if Vineet Sharma's case is not

applicable.

8. It is settled position of law that while

considering the application under Order VII Rule 11 only

the averments in the plaint have to be examined and the

contention of the defendants in the written statement are

irrelevant. Plaintiff has claimed partition as the daughter

of Appaji Gowda.

9. On the death of Appaji Gowda in the year 1977

under Section 6 of the Act, a notional partition takes place

and Appaji Gowda was entitled to a share along with

defendant Nos.4 and 5 which comes to one-third share.

AIR 2020 SC 3117 C.R.P.No.487/2015

On his death as per Section 8 plaintiff and defendants

were entitled to seek share in his one-third share.

Therefore as rightly held by the trial Court the plaint

cannot be rejected on the ground of non-applicability of

Section 6 of the Act.

10. Considering these facts the trial Court rejected

the contention of the petitioner that the plaint is liable to

be rejected on its own reading. This Court does not find

any jurisdictional error in the impugned order.

Therefore, the petition is dismissed.

Sd/-

JUDGE

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