Karnataka High Court
Sri. Uday Reddy vs Sri. S. Mukesh on 24 November, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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RP No. 395 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
REVIEW PETITION NO. 395 OF 2023
BETWEEN:
SRI. UDAY REDDY
AGED ABOUT 44 YEARS
S/O S RI P V REDDY NO 76, OLD NO 23/7
LAVELLE ROAD,
BANGALORE- 560001, DULY REPRESENTED BY
HIS G P A HOLDER SRI P.V. REDDY
...PETITIONER
(BY SRI. SATYANARAYANA.,ADVOCATE)
AND:
1. SRI. S. MUKESH
S/O LATE M SURESH
AGED 54 YEARS,
R/AT NO.43/29 PROMENADE ROAD,
Digitally 2ND CROSS LAYOUT,
signed by
NARASIMHA FRAZER TOWN, BANGALORE-560 005.
MURTHY
VANAMALA
Location: 2. SMT JAYALAKSHMI
HIGH
COURT OF W/O LATE SURESH
KARNATAKA
AGED ABOUT 76 YEARS,
R/AT NO.43/29 PROMENADE ROAD,
2ND CROSS LAYOUT,
FRAZER TOWN, BANGALORE-560 005.
3. SRI M RAMESH
AGED ABOUT 90 YEARS
S/O LATE L C MUNISWAMNY REDDY
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RP No. 395 of 2023
NO B-1, 1ST FLOOR,
BRUNTON RUSTOMJI
APARTMENT NO 21,
BRUNTON ROAD,
BANGALORE - 560025.
4. SRI M MAHESH
AGED ABOUT 76 YEARS
S/O LATE L C MUNISWAMY REDDY
SUNSET BOULEVARD
NO 41, KASTURBA CROSS ROAD,
BANGALORE - 560001.
5. SMT M VINUTHA
AGED ABOUT 83 YEARS
W/O LATE SUDHAKAR REDDY
NO 41, KASTURBA CROSS ROAD,
BANGALORE - 560001.
...RESPONDENTS
(BY SRI. MALLIKARJUN C BASAREDDY.,ADVOCATE FOR
R1 & R2;
SRI. W.M. SUNDRAMURTHY, ADVOCATE FOR R3;
SRI. SUNIL P PRASAD, ADVOCATE FOR R4;
SRI. M.S. NARAYAN, ADVOCATE FOR R5)
THIS REVIEW PETITION IS FILED UNDER ORDER
47 RULE 1 OF CPC, PRAYING TO(I) CALL FOR THE
RECORDS IN W.P.NO.12216/2016 (GM-CPC) AND
REVIEW THE ORDER DATED 16/11/2022 PASSED BY
THIS COURT IN W.P.NO.12216/2016(GM-CPC) VIDE
ANNEXURE-A.
THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
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RP No. 395 of 2023
ORDER
This Court has disposed of the writ petitions in
WP Nos.12216/2016 and 8275/2021 on 16.11.2022
opining that the civil Court could not have rejected
the application filed by Sri M. Mahesh [the fourth
defendant in the original proceedings] for allocation of
the mother - Smt. Munilakshmamma's share [1/6th
share] in the subject properties amongst her legal
heirs [her four children/the legal heirs of the deceased
son] as contemplated under Section 15 of the Hindu
Succession Act, 1956. This Court has opined that
such claim would be independent of the claim as a
legatee under the Last Will and Testament dated
08.04.1994, which stands rejected with the rejection
of his petition in WP No. 44204/2014.
2. Further, this Court, while answering the
question whether there should be an enquiry on the
allocation of the mother's 1/6th share, has opined
that such enquiry would not be necessary because
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the relationship amongst the parties is not disputed.
This Court has finally called upon the civil Court to
conclude the Final Decree proceedings with the
mother's 1/6th share in the subject properties being
allotted by metes and bounds with 1/5th share being
taken by each of the children and 1/5th share being
taken by the wife of her deceased son, Sri. M. Suresh
and his son- the plaintiffs.
3. At the outset, this Court must record the
following.
[a] Though the suit in O.S.No.2905/1983 was
initially filed in respect of multiple properties, after
this Court's judgement and decree dated 02.12.2009
in RFA No.352/2003 and connected appeals, the
present dispute is confined to the lands measuring 2
acres 32 guntas in Sy.No.162/1 and 1 acre 9 guntas
in Sy.No.162/2 of Vibhuthipura, Krishnarajapuram
Hobli, Bangalore South Taluk [the subject properties].
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[b] This suit in O.S.No.2905/1983 is
originally commenced by Sri S. Mukesh son of Sri M.
Suresh. Sri Muniswami Reddy and Smt.
Munilakshmamma1 [who is referred to as the mother]
are the parents of Sri. M. Suresh, who is arrayed as
the third defendant. On the demise of Sri M.Suresh,
his widow, Smt. Jayalakshmi is brought on record as
his legal heir and is later transposed as the second
plaintiff.
[c] The suit in O.S.No.2905/1983 is decreed
declaring that Smt. Jayalakshmi, Sri S. Mukesh and
Smt. Munilakshmamma would be entitled to 1/6th
share and Smt. Munilakshmamma's other five
children would be entitled to the remaining 5/6th
share in the properties.
[d] A Division Bench of this Court by the
aforesaid judgement dated 02.12.2009 in RFA No.352
1 The first defendant in the suit who has died on 07.03.2002
just before the judgment and decree in the suit.
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of 2003 has confirmed the civil Court's judgement
and decree, but has set aside the finding that the
parties would be entitled to a share as aforesaid in
suit schedule item No.2 opining that the purchasers
would be bona fide purchasers.
[e] In the Final Decree proceedings, two of the
sons viz., Sri Ramesh and Sri Mahesh have filed
different applications seeking modification of the
shares allotted by the aforesaid judgement and
decree, but ultimately those applications are rejected
and are confirmed with the disposal of the
corresponding writ petitions. However, insofar as the
application filed by Sri Mahesh, this Court has
observed that Smt. Munilakshmamma's 1/6th share
should devolve on the children and the legal heirs of
the predeceased son, and therefore, they will be
entitled to 1/5th share each with the daughter-in-law
and grandson [the legal heirs of the predeceased son]
together taking 1/5th share.
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4. The present application is filed contending
that this Court must review the order dated
16.11.2022 that on the demise of Sri M. Suresh, Smt.
Munilakshmamma [his mother], would also be
entitled to a share as a class-1 legal heir in his share
along with her daughter-in-law and grandson
namely, Smt. Jayalakshmi and Sri S.Mukesh. Sri
Satyanarayana, the learned counsel for the
petitioners, argues in support of the review of this
order to this limited extent relying upon the
provisions of Section 8 of the Hindu Succession Act,
1956 [for short, the 'Succession Act'].
5. The learned counsel for the other
respondents led by Sri Sunil B Prasad, supporting
the petition for review, submits that this review would
be justified inasmuch as neither the civil Court nor
the Division Bench has decided on the share which
the mother - Smt. Munilakshmamma would have on
the demise of her son Sri M.Suresh, and in the Final
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Decree proceedings, to avoid multiplicity, the same
must be considered.
6. However, Sri Mallikarjun C Basareddy, the
learned Counsel for Smt. Jayalakshmi and Sri S.
Mukesh [the original plaintiffs/ daughter-in-law and
grandson], submits that no review would be called for
in the light of the fact that Smt. Munilakshmamma
had filed a suit during her lifetime for partition
against the original plaintiffs in O.S. No.1461/1987,
which is dismissed for default on 28.01.1999 and
this order has not been called in question by Smt.
Munilakshmamma, until her demise on 07.03.2002
or by anybody thereafter.
7. These submissions are considered in the
light of the material placed on record. At the
foremost, this Court must observe that Smt.
Munilakshmamma's right in Sri. M. Suresh's share in
the subject properties on his intestate demise is not
examined in the present original proceedings or in
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the suit in OS No.1461/1987. This suit is filed by
Smt. Munilakshmamma for her share in suit item
Nos.4 and 5; and an application filed by her to
include a portion of one of the properties referred
herein as subject property, is not decided. The suit is
ultimately dismissed for default. Smt. Jayalakshmi
and Sri S. Mukesh cannot rely upon this disposal of
the suit in O.S.No.1461/1987 to assert that the
question of Smt. Munilakshmamma's share is
decided finally.
8. It is also seen from the points for
consideration framed by the Division Bench, and the
findings thereon, this aspect has not been
considered. The Division Bench has concluded that
that the propositus [Sri L.C. Muniswamy Reddy]
purchased the subject properties in the year 1964
and 1966 and that on his demise these properties
devolved on to his widow and children as Class - I
heirs under Section 8 of the Succession Act, and as
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such, each one would be entitled to 1/6th share.
Further, Sri M. Suresh's share in the subject
properties should devolve to his Class - I heirs viz,
[Smt. Jalalakshmi, his wife, Sri S.Mukesh, his son,
and Smt. Munilakshmamma, his mother] under
Section 8 of the Succession Act and each one of them
would be entitled for an equal share in such share.
Upon Smt. Munilakshmamma dying intestate, her
share [i.e., her share in her own right and as a Class -
I heir of her son, Sri. M. Suresh] must be divided
amongst her children and the widow and the son of
the predeceased son. Consequentially, the respective
shares devolve in the following manner:
On the demise of Sri. Muniswamy Reddy
Smt. Sri Sri Smt. Smt. Sri
Munilakshmamma Ramesh Mahesh Lalitha Vinutha Suresh
16.67% 16.67% 16.67% 16.67% 16.67% 16.67%
On the demise of Sri. Suresh, Smt. Munilakshmamma's
share get enlarged to 22.22% [16.67% + 5.56%]
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Sri Suresh
16.67%
Smt.
Smt. Jayalakshmi Sri. Mukesh
Munilakshmamma
5.56% 5.56% 5.56%
22.222% 5.56% 5.56%
On the demise of Smt. Munilakshmamma, the
respective shares will be:
Sri Sri Smt. Smt.
Smt.Jayalakshmi Sri.Mukesh
Ramesh Mahesh Lalitha Vinutha
16.67% 16.67% 16.67% 16.67% 5.56% 5.56%
+ + + + + +
4.44% 4.44% 4.44% 4.44% 2.22% 2.22%
21.11% 21.11% 21.11% 21.11% 15.56%
It is obvious from the above that there is error
apparent in this Court order dated 16.11.2022 in WP
Nos.12216/2016 and 8275/2021 on division of the
subject properties by metes and bounds without
considering the same, and hence, the following:
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ORDER
This Court's order dated 16.11.2022 in WP
Nos.12216/2016 and 8275/2021 is modified by
review calling upon the civil Court to conclude the
Final Decree proceedings dividing the subject
property by metes and bounds in the following
manner and otherwise this Court's order is
unaltered.
Sri Sri Smt. Smt. Smt.
Sri.Mukesh
Ramesh Mahesh Lalitha Vinutha Jayalakshmi
21.11% 21.11% 21.11% 21.11% 7.78% 7.78%
SD/-
JUDGE
NV
