Karnataka High Court
N. Nagaraju vs Smt. Savithramma on 6 July, 2023
Bench: H.P.Sandesh
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CRP No. 119 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO.119 OF 2023 (IO)
BETWEEN:
1. N. NAGARAJU,
S/O LATE HANUMANTHAIAH,
AGED ABOUT 64 YEARS.
2. H. RAMESH,
S/O LATE HANUMANTHAIAH,
AGED ABOUT 55 YEARS.
3. H. HANUMANTHAPPA,
S/O LATE HANUMANTHAIAH,
AGED ABOUT 53 YEARS.
4. H. MUTHE GOWDA,
S/O LATE HANUMANTHAIAH,
AGED ABOUT 51 YEARS.
Digitally signed
by SHARANYA T
Location: HIGH 5. H. DEVARAJU,
COURT OF S/O LATE HANUMANTHAIAH,
KARNATAKA
AGED ABOUT 49 YEARS.
ALL ARE R/AT S.H.K. ENTERPRISES/
SHK CONVENTION HALL,
60 FEET ROAD, PATTEGAR PALYA,
VIJAYANAGAR NORTH,
BENGALURU 560040.
...PETITIONERS
(BY SRI G. BALAKRISHNA SHASTRY, ADVOCATE FOR
SRI G.A.K. GOWDA, ADVOCATE)
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AND:
1. SMT. SAVITHRAMMA,
D/O S. HANUMANTHAIAH,
AGED ABOUT 62 YEARS,
RESIDING AT NO.1445,
PATTEGAR PALYA, 3RD CROSS,
VIJAYANAGAR NORTH,
BENGALURU 560079.
2. SMT. ANUSUYAMMA,
D/O S. HANUMATHAIAH,
AGED ABOUT 59 YEARS,
RESIDING AT NO.64,
2ND CROSS, 4TH MAIN, PATTTEGAR PALYA,
3RD CROSS, VIJAYANAGAR NORTH,
BENGALURU 560079
3. SMT. RUKMANI,
D/O S HANUMANTHAIAH,
AGED ABOUT 57 YEARS,
RESILDING AT NO.15,
60 FEET ROAD, PATTEGAR PALYA,
3RD CROSS, VIJAYANAGAR NORTH,
BENGALURU 560079.
4. SMT. SUNANDAMMA,
D/O S. HANUMANTHAIAH,
AGED ABOUT 47 YEARS,
RESIDING AT NO.5/10,
MANJUNATH NIVAS,
MANGALA MAIN ROAD,
OPP TO SBI BANK,
NAGARA BHAVI II STAGE,
BENGALURU 560091.
5. SMT. HEMAVATHI C,
D/O CHALUVA RANGE GOWDA,
AGED ABOUT 45 YEARS.
6. SMT. GEETHA C,
D/O CHALUVA RANGE GOWDA,
AGED ABOUT 42 YEARS.
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CRP No. 119 of 2023
7. RAKESH C,
D/O CHALUVA RANGE GOWDA,
AGED ABOUT 38 YEARS.
8. RAJEEV C,
D/O CHALUVE RANGE GOWDA,
AGED ABOUT 36 YEARS.
R5 TO R8 ARE RESIDING AT NO.102/25,
'SOUNDARYA NILAYA',
1ST MAIN, 6TH CROSS,
KAREKALLU, KAMAKSHIPALYA,
BENGALURU 560079.
9. H.S. SOMASHEKARAIAH,
S/O SHIVANANJAPPA H.S.,
AGED ABOUT 48 YEARS,
RESIDING AT NO.21, 13TH MAIN ROAD,
RUSHABHAVATHI NAGARA,
KAMAKSHIPALYA,
BENGALURU 560079.
10. CHUNNILAL,
S/O LATE NANDA RAMJI,
AGED ABOUT 61 YEARS,
RESIDING NEAR RAVI HOTEL,
KUDURU MAIN ROAD, KUDURU,
MAGADI TALUK,
RAMNAGARA DISTRICT 561101.
...RESPONDENTS
(BY SRI VASANTH KUMAR H.T., ADVOCATE FOR R1 TO R4,
VIDE ORDER DATED 22.02.2023 SERVICE OF NOTICE TO
R5 TO R10 IS DISPENSED WITH)
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 05.01.2023 PASSED ON I.A.NO.4
IN O.S.NO.4753/2021 ON THE FILE OF THE XVI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU DISMISSING
THE I.A.NO.4 FILED UNDER ORDER 7 RULE 11 (a) AND (d)
READ WITH SECTION 151 OF CPC.
THIS PETITION COMING ON FOR ADMISSON THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRP No. 119 of 2023
ORDER
This matter is listed for admission today. Heard the
learned counsel for the petitioners and the learned counsel
for respondent Nos.1 to 4.
2. This petition is filed challenging the order dated
05.01.2023 passed on I.A.No.4 in O.S.No.4753/2021, on
the file of the XVI Additional City Civil and Sessions Judge,
Bengaluru, dismissing the application filed under Order 7
Rule 11(a) and (d) read with Section 151 of CPC, wherein a
prayer was made to reject the plaint.
3. The main contention of defendant Nos.1 to 5 in
the said application is that already there was a registered
partition effected between the parents and the brothers in
the year 2001 i.e., on 13.12.2001 and as on that date, the
daughters were not having any right. Apart from that, they
are the signatories to the document as witnesses and they
were aware of the same and hence there is no cause of
action and the suit is barred by law.
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4. The plaintiffs filed the statement of objection
contending that the Court has to look into the averments of
the plaint, wherein it is specifically pleaded that they have
signed the documents only on the say of the parents and
they were not aware of the nature of document. Only after
the death of the mother when they turned hostile with
regard to the relationship is concerned when they
demanded partition, they came to know about the
document of registered partition and the same was a shock
to them and hence resisted the application by filing the
statement of objection.
5. The Trial Court having considered the grounds
urged in the application and also invoking the provision
under Order 7 Rule 11 of CPC, extracted the same in the
order and also considered the reasons assigned in the
application in paragraph No.11 and also considered the
contentions urged by the parties. The Trial Court discussed
the judgment of the Apex Court in the case of VINEETHA
SHARMA v. RAKESH SHARMA reported in AIR 2020 SC
3717 and comes to the conclusion that there is both
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question of law and fact in respect of said partition and for
proper adjudication of justice, a full-fledged trial is
necessary as the nature of suit is for partition which is
mixed up with law and family emotions. Hence, the very
contention that the suit is barred by law of limitation is a
question of law and fact and hence rejected the application.
Being aggrieved by the said order, the present petition is
filed before this Court.
6. The learned counsel for petitioners/defendant
Nos.1 to 5 in the present petition would contend that there
was a partition and admittedly the plaintiffs are the
witnesses to the said document and even though the
partition took place prior to 20.12.2014 i.e., in 2001 itself,
at that time, they were not having any right and the suit is
barred by limitation. They have filed it belatedly even
though in the plaint averment it is specifically stated that
some of the properties are sold by the defendants in 2014
and the suit is filed in 2021.
7. Per contra, the learned counsel for respondent
Nos.1 to 4 would contend that the Trial Court has taken
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note of the averments made in the application and also the
objection and comes to the conclusion that it is a mixed
question of fact and law and the same requires a full-
fledged trial and the reasons given by the Trial Court is not
erroneous.
8. Having heard the learned counsel for the
petitioners and the learned counsel for respondent Nos.1 to
4 and also on perusal of the material available on record,
the defendants have invoked an application under Order 7
Rule 11(a) and (d) of CPC that there is no cause of action
and the suit is barred by law. It is their contention that
there was a partition deed in the year 2001 itself amongst
the brothers and parents of the plaintiffs. It is also the
contention that they are the witnesses to the said
document and the Court has to look into the averments
made in the plaint while considering the application under
Order 7 Rule 11 of CPC. It is settled law that the Court has
to look into the averments of the plaint and not the defence
and the defence is immaterial. When such being the
settled law, the Court has to look into the averments of the
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plaint. No doubt, they have pleaded in the plaint with
regard to the properties are both ancestral and joint family
properties. In paragraph No.6 of the plaint they have
pleaded under what circumstances they have signed the
document i.e., on the advice of the parents of the plaintiffs
and also in paragraph No.8 pleaded with regard to the sale
of some of the properties and some properties are still
standing in the name of the mother, who passed away in
2021 and also pleaded that it was shock to them when they
came to know about the registered partition when they
demanded partition. When these are the disputed
questions involved in the matter, the same has to be
considered by the Trial Court. Both the question of law and
cause of action is also a mixed question of fact and law and
the Court has to consider the same after trial.
9. The other contention that as on 13.12.2001,
the defendants are only entitled for a share cannot be
accepted when there was already Karnataka Amendment to
Section 6 which came into effect from 30.09.1994 giving
right to the daughters and the same has to be considered
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while considering the matter on merits. Hence, I do not
find any error committed by the Trial Court in coming to
the conclusion that it requires trial since the same is a
mixed question of law and fact. I do not find any ground to
reverse the finding of the Trial Court and the Trial Court
has rightly come to the conclusion that the matter requires
to be tried.
10. In view of the discussions made above, I pass
the following:
ORDER
The petition is dismissed. The Trial Court shall not be
influenced by the observations made by this Court while
considering the matter on merits. The Trial Court is
directed to dispose of the matter expeditiously.
Sd/-
JUDGE
MD
