Karnataka High Court

Sri.Dev.V. Kotian vs Smt. Jayashree A Bakshi on 26 June, 2024

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                                                       NC: 2024:KHC:23625
                                                   WP No. 13797 of 2023




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                        DATED THIS THE 26TH DAY OF JUNE, 2024
                                        BEFORE
                           THE HON'BLE MR JUSTICE M.I.ARUN
                      WRIT PETITION NO. 13797 OF 2023 (GM-CPC)
               BETWEEN:

               1.    SRI. DEV. V. KOTIAN,
                     S/O LATE VENKAPPA KOTIAN,
                     AGED ABOUT 68 YEARS,
                     R/AT DOOR NO.401, MANGAL MILAP,
                     12TH GULMOHAR CROSS ROAD,
                     AVPD SCHEME, JUHU,
                     MUMBAI-400049.

                                                              PETITIONER
               (BY SRI. ANANDARAMA K., ADVOCATE)
               AND:

               1.    SMT. JAYASHREE A BAKSHI,
                     W/O MR. ASHOK BAKSHI,
                     AGED ABOUT 72 YEARS,
Digitally            GOKUL RESIDENCY,
signed by V
MANJUSHA             BUILDING H-FLAT NO.505,
BAI                  THAKUR VILLAGE (NEXT TO GOKUL GAGAN),
Location:
High Court           KANDIVALI (EAST), MUMBAI-400101.
of Karnataka
               2.    SMT. ROHINI JAYAKAR SHETTY,
                     W/O MR. JAYAKAR N SHETTY,
                     AGED ABOUT 66 YEARS,
                     22/19, AIR INDIA COLONY,
                     KALINA, SANTA CRUZ (EAST),
                     MUMBAIL 400029.

               3.    SMT. SUBHASHINI RAVI MENON,
                     W/O MR RAVI MENON,
                             -2-
                                     NC: 2024:KHC:23625
                                   WP No. 13797 of 2023




     AGED ABOUT 63 YEARS,
     NO.126, KUTEERAM FERNS RESIDENCY,
     K NARAYANPURA KOTHANUR
     BANGALORE 560077.

4.   SMT. RENUKA V SHETTY,
     D/O MR V S SHETTY,
     AGED ABOUT 69 YEARS,
     902, SPECTRA, PRATHEMESH COMPLEX,
     VEERA DESAI ROAD,
     ANDHERI (WEST)
     MUMBAI - 400053.

5.   SMT. SHALINI. K BILLIMORIA.
     D/O MR. KERSI BILLIMORIA,
     AGED ABOUT 61 YEARS,
     1/21 DHUNBAI WADI,
     DABABHAI ROAD,
     VILE PARLE (WEST)
     MUMBAI 400056.

6.   SRI. NIRANJAN. V SHETTY,
     S/O MR V S SHETTY,
     AGED ABOUT 56 YEARS
     SHIVA KRIPA, THADAMBAIL,
     SURATHKAL,
     MANGALORE 575014.

7.   ASHISH. D KOTIAN,
     S/O SMT. SHALINI KOTIAN,
     ADULT
     AND MR. DEV. V.KOTIAN,
     R/AT 401, MANGAL MILAP,
     12TH GULMOHAR CROSS ROAD,
     AVPD SCHEMEN, JUHU,
     MUMBAI-400049.

8.   AISHWARYA D. KOTIAN,
     D/O SMT. SHALINI D. KOTIAN,
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                                                   NC: 2024:KHC:23625
                                             WP No. 13797 of 2023




    ADULT,
    JAND MR. DEV. V. KOTIAN,
    R/AT 401, MANGAL MILAP,
    12TH GULMOHAR CROSS ROAD,
    AVPD SCHEME, JUHU,
    MUMBAI-400049.

                                                         RESPONDENTS
(BY SRI. SWAROOP S., ADVOCATE FOR R1 AND R3,.
 V/O DATED 26.06.2024 SERVICE OF NOTICE TO R6 IS NOT
NECESSARY;
 V/O DATED 25.10.2023 NOTICE TO R7 AND R8 ARE
DISPENCED WITH.)

     THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO-CALL FOR RECORDS IN
O.S.NO.114/2015 PENDING ON THE FILE OF I ADDL. SENIOR
CIVIL JUDGE, MANGALORE, DK AND ETC,.

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:

                               ORDER

Aggrieved by the order passed on IA.No.15 in

OS.No.114/2015 defendant No.5 therein has preferred this writ

petition. Respondent Nos.1 to 3 are the plaintiffs in

OS.No.114/2015, respondent Nos.4 to 8 and the petitioner

herein are defendants.

2. For the sake of convenience parties are referred to

as per their status before the Trial Court.

3. Plaintiffs along with defendant Nos.1 to 3 are the

children of one Smt. Gulabi Hengsu @ Gulabi V. Shetty,. The

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plaintiffs on the ground that the said Smt. Gulabi Hengsu

purchased the suit schedule property and it is her self acquired

property and she died intestate and because of which the

plaintiffs along with defendant Nos.1 to 3 have inherited the

suit schedule property equally, have filed OS.No.114/2015 for

partition. Defendant Nos.4a, 4b and 5 have contended that the

said property was a self acquired property of Smt. Gulabi

Hengsu and she has executed a Will in respect of the same, in

favour of defendant Nos.1 and 3, who are the children and they

have in turn sold the same in favour of defendant Nos.4 and 5

by way of a registered sale deed. The plaintiffs have filed

Original Suit with the following prayers;

"The plaintiffs therefore, prays for a JUDGMENT and DECREE against the defendants for the following reliefs:-

a. Directing physical division and PARTITION of plaint schedule property along with the commercial complex into 6 equal shares by metes and bounds with reference to good and bad soil and make over THREE such shares to the PLAINTIFFS.

b. Directing the defendant No.3 to render accounts of income from the commercial complex situated in the plaint schedule property since the date of death of Smt. Gulabi Hengsu @ Gulabi V. Shetty.

c. Grant cost of this suit.

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d. Grant such other and further reliefs as the court deems fit to grant under the circumstances of the case."

4. Given the facts pleaded in the plaint and written

statements defendant No.3 filed IA.No.14 for framing additional

issues which are as follows;

"1. Whether the plaintiffs prove that the Will alleged by the defendant No.3is forged and bogus document?

2. Whether the plaintiffs prove that sale deed executed by the defendant No.3 is fraudulent document?

3. Whether the suit for bare partition without relief of declaration is maintainable?

4. Whether the relief claimed in the plaint is barred by law of limitation?"

and defendant No.5 has filed IA.No.15 for framing three

additional issues which reads as follows;

"1. Whether the suit of the plaintiffs is property valued for the purpose of court fee and jurisdiction?

2. Whether the suit of the plaintiffs is maintainable without seeking declaration of their right in the plaint schedule property?

3. Whether the suit is required to be valued under Section 35(1) and 38 of K.C.F and S.V Act by the plaintiffs since the outer of their possession in respect of plaint schedule property as pleaded by defendants Nos.4 and 5?"

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5. Both the said IAs have been dismissed by the Trial

Court by passing the impugned order. Aggrieved by the

dismissal of IA.No.15 defendant No.5 has preferred this writ

petition.

6. The case of the petitioner/ defendant No.5 is that

the plaint has been filed mischievously, wherein the plaintiffs

have sought for their share in the suit schedule property on the

ground that it is the property of their mother and that she died

intestate and that they are entitled to 1/6th share in the same.

They have not made any prayer in respect of the Will executed

by the mother in favour of defendant Nos.1 and 3 and the

subsequent sale deed executed by defendant Nos.1 and 3 in

favour of defendant Nos.4 and 5, as not binding on them. It is

submitted that defendant No.5 has taken a specific contention

about the alienation of the property from the family of the

plaintiff and defendant Nos.1 to 3, because of which the

additional issues are proposed in IA.No.15 ought to have been

framed by the Trial Court.

7. Per contra, the plaintiffs justify the order passed by

the Trial Court and prays for dismissal of the writ petition.

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However, in the course of the arguments learned counsel for

the plaintiffs submits that he has no objection if the issues as

prayed by defendant No.5 are framed by the Trial Court.

8. Issues arise when a material proposition of fact or

law is affirmed by one party and denied by another. It is the

responsibility of the Court to frame the issues relating to both

facts as well as law.

9. In the instant case, the case of the plaintiffs is that

the suit schedule property is the self acquired property of their

mother and that she died intestate and because of which it is

liable to be partition between plaintiffs and defendant Nos.1 to

3 who are the children of their mother.

10. Though the plaintiffs state in the plaint that the suit

schedule property has been alienated by defendant Nos.1 and 3

in favour of defendant Nos.4 and 5, no prayer has been made

by the plaintiffs regarding the Will, set to have been executed

by their mother in favour of defendant Nos.1 and 3 and

regarding the sale executed by defendant Nos.1 and 3 in favour

of defendant Nos.4 and 5 being not binding on them. Defendant

No.3 is said to have made an averment to the effect that the

Will has been executed by their mother based on which

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defendant Nos.1 and 3 have sold the property in favour of

defendant Nos.4 and 5. Defendant No.5 has taken specific

contention that by way of Will defendant Nos.1 and 3 inherited

the property and they have sold the property in turn to

defendant No.5.

11. The apprehension of defendant No.5/ petitioner is

that as there is no issues framed regarding alienation of the

property in their favour by defendant Nos.1 and 3, tomorrow

the plaintiffs may get a declaration from the Trial Court that

they are entitled to 1/6th share in the property of their late

mother and that may be sought to be enforce against the

petitioner/ defendant Nos.4 and 5. It is further submitted that

for that reason they have preferred IA regarding framing of

additional issues and the writ petition is also filed for the very

reason.

12. In my opinion such apprehension of the petitioner/

defendant Nos.4 and 5 is unfounded. When the plaintiffs failed

to seek a declaration that the subsequent sale deeds regarding

the property executed by some of the family members in

favour of 3rd parties is not binding on them, then in that event

the Court cannot grant such relief to the plaintiffs. In the

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instant case admittedly the plaintiffs are not in possession of

the suit schedule property. It has been alienated in favour of

defendant Nos.4 and 5. For that reason, if plaintiffs do not seek

a prayer that the sale deed is not binding on them, then in that

event whatever decree they may obtain from the Trial Court

cannot be enforced against defendant Nos.4 and 5 who are

subsequent purchasers. For the same reason, the Trial Court

has framed the issues which reads as follows;

"1. Whether plaintiffs prove that the suit schedule property is available for division as on the date of instruction of the suit between the plaintiffs and defendants?

2. Whether the plaintiffs prove that they are entitling for partition and separate possession of their collective 3/6th share in suit schedule property by metes and bounds?

3. Whether the plaintiffs prove that the defendant N.3 is required to render that accounts of income pertaining to the commercial complex situated in plaint schedule property from the date of death of Gulabi Hengsu @ Gulabi Shetty in respect of the share of plaintiffs? If so, to what extent?

4. Whether the defendant No.3 proves that during the life time of Smt. Gulabi Shetty she had executed her Last Will dated 21.05.1991 during her sound disposing state of mind and bequeathed the property owned by her in favour of defendant No.1 and 3?