Karnataka High Court
Sri. Suresh vs Smt Parvathamma on 13 June, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:20166
CRP No. 319 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO. 319 OF 2023
BETWEEN:
1. SRI. SURESH
S/O LATE CHIKKAKOOSAPPA
@ PARVATHAIAH
AGED ABOUT 49 YEARS
R/AT MADALLI VILLAGE
JAYAPURA HOBLI
MYSURU-570 026.
...PETITIONER
(BY SRI. MANIKANTA H.B., ADVOCATE)
AND:
SMT. PARVATHAMMA
AGED ABOUT 79 YEARS
W/O LATE CHENNAMALLAIAH @ PAPANNA
Digitally signed
by SHARANYA T R/AT MADALLI VILLAGE
Location: HIGH JAYAPURA HOBLI
COURT OF MYSURU-570 026
KARNATAKA
(SINCE DEAD BY LRS RESPONDENTS NO.1 TO 4)
1. SMT. NANJAMMANI
AGED ABOUT 54 YEARS
W/O SHIVARAJU
D/O LATE CHENNAMALLAIAH
@ PAPANNA
R/AT BEERIHUNDI VILLAGE
JAYAPURA HOBLI
MYSURU-570 026
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CRP No. 319 of 2023
2. SMT. MAHADEVAMMA
W/O N. BASAVARAJU
AGED ABOUT 47 YEARS,
D/O LATE CHENNAMALLAIAH
@ PAPANNA
R/AT MADALLI VILLAGE
JAYAPURA HOBLI
MYSURU-570 026
3. SMT. SHIVAMMA
W/O BASAVARAJU
AGED ABOUT 45 YEARS,
D/O LATE CHENNAMALLAIAH @ PAPANNA
R/AT MARAIAHNA HUNDI VILLAGE
YELWALA HOBLI
MYSURU-571 130
4. SMT. BHAGYA
W/O MAHESH
AGED ABOUT 41 YEARS,
W/O LATE CHENNAMALLAIAH @ PAPANNA
R/AT ANKANAHALLI VILLAGE
BILIKERE HOBLI
HUNSURU TALUK
MYSURU-571 617
5. SRI VEERABHADRASWAMY
S/O LATE CHENNAMALLAIAH @ PAPANNA
AGED ABOUT 59 YEARS,
R/AT MADALLI VILLAGE
JAYAPURA HOBLI
MYSURU-570 026
...RESPONDENTS
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 03.02.2023 PASSED IN
OS.NO.973/2018 ON THE FILE OF THE V ADDITIONAL SENIOR
CIVIL JUDGE AND JMFC, MYSURU, REJECTING I.A.NO.7 FILED
UNDER ORDER 7 RULE 11(a) AND (d) R/W SEC.151 OF CPC
FOR REJECTION OF PLAINT.
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CRP No. 319 of 2023
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This matter is listed for admission. Heard the learned
counsel appearing for the petitioner.
2. The impugned order dated 03.02.2023, which is
assailed before this Court is rejection of application filed by
defendant No.2 under Order VII Rule 11(a) & (d) read with
Section 151 of CPC in O.S.No.973/2018 on the file of V
Additional Senior Civil Judge and JMFC., at Mysuru.
3. The main contention of the learned counsel
appearing for the petitioner before this Court is that the Trial
Court has committed an error in dismissing the application in
coming to the conclusion that the Court has to look into the
averments of the plaint. The learned counsel would vehemently
contend that the plaintiffs by themselves in their plaint have
stated that, the sale has taken place on 07.06.2002 and
07.06.2024, as such the said transactions are saved by the
proviso to Section 6(1) of Hindu Succession Act, 1956, and the
said principle was applied and observed by the Apex Court in
plethora of cases, as at the time of transaction the daughters
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have not acquired the status of coparcener, as such the
reasoning of the Trial Court that veracity of the legal necessity
has to be examined is flawed and if accepted and allowed to
continue it would tantamount to defeat all the transaction taken
place earlier to the amendment to Section 6 of the Hindu
Succession Act, 1956. The learned counsel also would
vehemently contend that, as pertaining to the right of the first
plaintiff (now dead), the limitation to challenge the alienation
by kartha would be either three years as per Articles 58 & 59 or
12 years as per Article 109 of the Limitation Act, 1963, at any
stretch the suit claim as to item No.1 of the suit schedule
property is hopelessly barred by limitation. The learned counsel
also would vehemently contend that the Trial Court has
committed an error in dismissing the application mechanically
instead of appreciating the facts of the case and proceeded to
dismiss the application. Hence, it requires interference.
4. The main contention urged before this Court is with
regard to the sale was made prior to amendment to Section 6
and also the learned counsel would vehemently contend that
the sale was made in the years 2002 and 2004 and the suit is
hopelessly barred by limitation. The learned counsel would
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vehemently contend that the sale was made by the brother of
the plaintiffs. This Revision Petitioner is the subsequent
purchaser. He has purchased the property for valuable sale
consideration. The Trial Court while rejecting the application in
length considering the different judgments came to the
conclusion that whether the sale transaction is for the legal
necessity, to be considered and the Trial Court came to the
conclusion that the matter requires to be tried with regard to
the involvement of the question of fact and question of law and
both are mixed question of fact and law. With regard to the
aspect of limitation is concerned, it is a settled law that it is a
mixed question of fact and law and it requires to be considered
during the trial and the suit cannot be dismissed at the
threshold.
5. It is important to note in the prayer of the suit, they
sought the relief stating that the very sale itself is null and
void. Apart from that, in the plaint itself they have stated with
regard to the sale and not suppressed anything when the suit is
filed for the relief of partition. When such being the case,
though an amendment was brought in the year 2005 and there
was a Karnataka amendment in the year 1994 itself with regard
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to the rights of the daughter. Having considered the said fact,
the matter requires to be considered on merits. Hence, I do not
find any ground to admit and grant any relief and also no merit
in the petition.
6. In view of the discussions made above, I pass the
following:
ORDER
The petition is dismissed.
In view of dismissal of the petition, IA-1/2023 for stay
does not survive for consideration, the same stands disposed
of.
Sd/-
JUDGE
CP
