Karnataka High Court
Sri Srinivas vs Smt Sonnamma on 3 April, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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CRP No. 137 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
CIVIL REVISION PETITION NO. 137 OF 2024 (IO)
BETWEEN:
SRI. SRINIVAS,
AGED ABOUT 54 YEARS,
S/O LATE NANJEGOWDA,
R/AT HOUSE NO.9, SAHAKARNAGAR POST,
VENKATESHWARA TEMPLE STREET,
KODIGENAHALLI,
BANGALORE-560 092.
...PETITIONER
(BY SRI. C.M.NAGABUSHANA., ADVOCATE)
AND:
1. SMT. SONNAMMA,
AGED ABOUT 72 YEARS,
D/O LATE MUNISHAMAPPA,
W/O MUNIANJINAPPA,
Digitally R/AT DODDABALIKERE VILLAGE.
signed by
KIRAN
KUMAR R
2. SMT. SHOBHA,
Location:
HIGH AGED ABOUT 42 YEARS,
COURT OF
KARNATAKA D/O ANJINAMMA,
3. SRI. SUNIL KUMAR
AGED ABOUT 39 YEARS,
S/O ANJINAMMA,
R-2 & R-3 ARE R/AT
SADENAHALLI VILLAGE,
ARADESHAHALLI POST,
HASARAGHATTA HOBLI,
BANGALORE NORTH TALUK-560 088.
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CRP No. 137 of 2024
4. SMT. RATHANAMMA,
AGED ABOUT 69 YEARS,
W/O ALTE B.M.GOPALAPPA,
5. SRI.B.J.MUNIRAJU,
AGED ABOUT 52 YEARS,
S/O LATE B.M.GOPALAPPA,
6. SMT. RATHANAMMA,
AGED ABOUT 66 YEARS,
W/O LATE B.M.GOPALAPPA,
7. SRI.B.J.MUNIYAPPA,
AGED ABOUT 48 YEARS,
S/O LATE B.M.GOPALAPPA,
8. SRI.B.J.ANADHA,
AGED ABOUT 45 YEARS,
S/O LATE B.M.GOPALAPPA,
9. SMT. MANJULLA,
AGED ABOUT 42 YEARS,
D/O LATE B.M.GOPALAPPA,
10. B.M.MUNISHAMA,
AGED ABOUT 59 YEARS,
S/O LATE B.M.MUNIVENKATAPPA,
11. SMT.VENKATA LAXAMMA,
AGED ABOUT 69 YEARS,
W/O LATE B.M.MUNIVENKATAPPA,
12. SRI.B.M.KRISHNA,
AGED ABOUT 42 YEARS,
S/O LATE B.M.MUNIVENKATAPPA,
13. SRI.B.M.RAVIKUMAR,
AGED ABOUT 40 YEARS,
S/O LATE B.M.MUNIVENKATAPPA,
14. SRI.B.M.MANJUNATHA,
AGED ABOUT 62 YEARS,
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CRP No. 137 of 2024
S/O LATE MUNISHAMAPPA,
15. SMT.LALITHAMMA,
AGED ABOUT 54 YEARS,
W/O LATE B.M.MANJUNATHA,
16. SRI.B.M.ANILKUMAR,
AGED ABOUT 40 YEARS,
W/O LATE B.M.MANJUNATHA,
17. SMT.GOWRAMMA,
AGED ABOUT 38 YEAS,
D/O B.M.MANJUNATHA.
18. SRI.NANJAPPA,
AGED ABOUT 59 YEARS,
S/O LATE MUNISHAMAPPA,
R-3 TO R-17 ARE
R/AT BETTAHALASUR VILLAE,
JALA HOBLI,
BANGALORE NORTH TALUK-562 157.
19. SRI.S.NANJEGOWDA,
AGED ABOUT 94 YEARS,
S/O SUBBEGOWDA,
R/AT SAKARANAGARA POST,
HOUSE No.9,
VENKATESHWARA TEMPLE STREET
KODEGENAHALLI,
BANGALORE-560 092.
20. SRI.M.KUMAR,
AGED ABOUT 57 YEARS,
S/O M.MUTHARAYAPPA,
R/AT HOUSE No.2417/29
17TH MAIN ROAD, VIJAYANAGAR,
BANGALORE-560 040.
21. SMT.AKKAYAMMA
AGED ABOUT 79 YEARS,
W/O NANJEGOWDA,
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CRP No. 137 of 2024
R/AT HOUSE NO.9, SAHAKARNAGAR POST,
VENKATESHWARA TEMPLE STREET,
KODIGENHALLI,
BANGALORE-560 092.
...RESPONDENTS
THIS CRP IS FILED UNDER SECTION 115 OF
CPC.,AGAINST THE ORDER DATED 08.02.2024 PASSED ON IS
No.VI IN O.S.No.520/2010 ON THE FIEL OF III ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, C/C IIND
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI,
DISMISING THE I.A.No.VI FILED UNDER ORDER VII RULE 11(a)
AND (d) READ WITH SECTION 151 OF CPC, FOR REJECTION OF
PLAINT.
THIS PETITIONHAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 14.03.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The respondents 1 to 3 instituted a suit in
O.S.No.520/2010 seeking a declaration that they were
entitled to 2/7th share in the lands bearing Sy.No.363 (3
acres), Sy.No.365 (2 acres) and Sy.No.365 (2 acres),
which were all situate at Bettahalasur Village, Jala Hobli,
Bangalore North Taluk. They also sought for a direction to
the defendants to effect a partition and put them in
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separate possession of their respective legitimate 2/7th
share in the suit schedule properties.
2. The claim of respondents 1 to 3 was that the
propositus of the family was one Munishamappa, who had
married Munimarakka and out of their wedlock, they had
two daughters namely Sonnamma (plaintiff No.1) and
Anjinamma (mother of plaintiffs 2 and 3) and four sons
namely (1) B.M.Gopalappa (the husband of defendant
Nos.1 & 3 and father defendants 2, 4, 5 and 6), (2)
Munivenkatappa (defendant No.7) (defendant Nos.8 to 10
are the wife and children of defendant No.7), (3)
B.M.Manjunatha (defendant No.11) and (4) Nanjappa
(defendant No.15).
3. It was contended that the suit properties were
ancestral and joint family properties and after the death of
their father - Munishamappa, they had succeeded to their
respective shares and had demanded the same, but their
brothers and other family members had refused to effect
partition and had asserted that they had already entered
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into partition and therefore, the plaintiffs would not be
entitled to any share. It was also contended that without
the knowledge and consent of plaintiffs, their siblings and
other family members had entered into a partition deed on
01.12.1984, in which, no share had been allotted to them
and they being the legal heirs of deceased Munishamappa,
they were entitled to 2/7th share and the partition deed
alleged to have been entered amongst defendants 1 to 15
were not binding on them.
4. It was also stated that they came to know that item
No.1 of the suit schedule properties had been alienated to
defendant No.16 (defendant No.18 is the wife and
defendant No.19 is the son of defendant No.16) and item
No.2 had been alienated to defendant No.17 by
defendants 1 to 15 and the said purchasers were making
hectic efforts to alienate the suit schedule properties and
hence, they were constrained to file the suit.
5. In this suit, an application for rejecting the plaint was
filed in the year 2024 by defendant No.19 contending that
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the proviso to Section 6 of the Hindu Succession
(Amendment) Act, 2005 bars the daughters from claiming
a share in respect of the property which had been
alienated or partitioned before 20.12.2004 and since the
plaint itself admitted the fact that the partition was made
before 20.12.2004, there was no cause of action for the
plaintiffs to file a suit.
6. It was also contended that since there was no prayer
to declare that the sale deeds executed by defendants 1 to
15 in favour of defendants 16 and 17 were not binding on
the plaintiffs, the suit was not maintainable.
7. The Trial Court, by the impugned order, has refused
to accept the plea of defendant No.19 and has rejected the
said application. The Trial Court has taken the view that
the contention that there was a partition and the amended
proviso to Section 6 of the Act saved those properties
which had been subjected to partition prior to 20.12.2004
cannot lead to an inference that the suit was not
maintainable, since it was not the case of the plaintiffs
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that the alleged partition deed dated 01.12.1984 was a
registered partition deed. The Trial Court has also taken
the view that the matter requires a full fledged trial to
decide the claim of the plaintiffs and on reading of plaint,
it was clear that there was a cause of action which should
be tried and therefore, there was no justification for
rejecting the plaint.
8. Being aggrieved by the same, the present revision
has been preferred.
9. Learned counsel for the petitioner has reiterated the
averments made in the application and has placed strong
reliance on the judgment rendered by the Division Bench
of this Court in the case of SMT.MALLAMMA & OTHERS Vs.
SHRI MALLEGOWDA @ KARIGOWDA & OTHERS - ILR
2022 KAR 992 to contend that the Division Bench in the
said case has observed that if no relief regarding
cancellation of sale deed or declaration that the sale deed
did not bind the plaintiff had been sought for, the reliefs
prayed for in the suit cannot be granted and since in the
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present case also, no prayer for declaration was sought
for, the plaint was liable to be rejected.
10. At the outset, it is to be noticed that the Division
Bench in the aforementioned case was dealing with a case
where the alienation of the suit properties had taken place
on 08.07.1996 and the claim of the legal heirs under the
amended proviso to Section 6 which came into effect from
09.09.2005 could not be enforced as the alienation was
made prior to 20.12.2004. In the context of that case, the
Division Bench has held that the plaint was liable to be
rejected. In that case, the Division Bench also noticed that
plaintiffs 8 and 9 were minors as on the date of execution
of the Sale Deed and on attaining majority, they had not
challenged the sale deed.
11. It is to be noticed here that the plaintiffs were not
aggrieved by the alienation made by their siblings insofar
as their share was concerned. In fact, this Court in the
case of MUNITHAYAMMA & OTHERS Vs. BYANNA &
OTHERS in RSA.1653/2021 disposed of on 01.02.2022
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has held that it would not be necessary for a coparcener to
challenge the alienation made by the other coparceners,
since the coparcener who had instituted the suit for
partition would only be interested in seeking his/her share
and it was quite probable that the coparcener, who had
instituted the suit, would have had no objection for the
alienation and would probably accede to the alienation
insofar as it related to the share of the vendors therein.
12. In the light of the above, the argument that there
ought to have been a prayer for declaration that the
alienations made by defendants 1 to 15 were not binding
on the plaintiffs, and in the absence of such a prayer the
plaint was to be rejected, cannot be accepted.
13. It is also to be noticed here that the simple case of
the plaintiffs was that the suit properties belonged to their
father Munishamappa and on his death they had
succeeded to their respective share. It is also to be noticed
here that the plaintiffs did state in the plaint that there
was an alleged partition. However, they did not admit that
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there was a partition effected and they had merely stated
that it was the contention of the defendants that there was
a partition. Unless the plaintiffs admitted the partition
deed entered into prior to 20.12.2004 in unequivocal
terms, it cannot be argued that the mere plaint averment
that defendants contended that there was a partition
would render the plaint liable for rejection. I am therefore
of the view that the Trial Court was justified in coming to
the conclusion that there were no grounds to entertain the
application filed under Order VII Rule 11 of CPC and the
Trial Court was also justified in rejecting the same.
14. In the result, the revision petition is dismissed.
Sd/-
JUDGE
PKS
