Karnataka High Court
Nagamma @ Thayamma vs Smt. Mallamma on 22 October, 2024
-1-
NC: 2024:KHC:42434
WP No. 3584 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 3584 OF 2023 (GM-CPC)
BETWEEN:
1. NAGAMMA @ THAYAMMA,
W/O LATE SHIVAPPA,
AGED ABOUT 63 YEARS
2. MAYAMMA
D/O LATE SHIVAPPA,
AGED ABOUT 41 YEARS
3. MANGLAMMA
D/ LATE SHIVAPPA,
AGED ABOUT 39 YEARS
4. MANIKANTA
S/ LATE SHIVAPPA,
Digitally signed
by AGED ABOUT 37 YEARS,
MARKONAHALLI
RAMU PRIYA
Location: HIGH
COURT OF ALL ARE R/AT HONGAHALLI VILLAGE,
KARNATAKA
KASABA HOBLI,
GUNDLUPET TALUK - 571 111
CHAMARAJANAGAR DISTRICT
...PETITIONERS
(BY SRI. P. MAHESHA, ADVOCATE)
AND:
1. SMT. MALLAMMA
W/O LATE MALLAPPA,
-2-
NC: 2024:KHC:42434
WP No. 3584 of 2023
AGED ABOUT 59 YEARS,
R/O HONGANAHALLI VILLAGE,
KASABA HOBLI,
GUNDLUPET TALUK - 571 111.
2. SRI. SUBBAPPA
S/O LATE MALLAPPA
AGED ABOUT 60 YEARS,
HONGANAGHALLI VILLAGE,
KASABA HOBLIL, GUNDLUPETE TALUK,
CHAMARAJANAGARA DISTRICT-571 111
...RESPONDENTS
(BY SRI. NAGARAJA R C., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SETTING ASIDE THE
IMPUGNED ORDER PASSED BY THE PRINCIPAL CIVIL JUDGE
AND JMFC, GUNDLUPET IN I.A.NO.1 OF F.D.P NO.5/2021
DATED 09/09/2022, VIDE ANNEXURE-E AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
Respondent Nos.2, 3, 4 and 5 in FDP No.5/2021 on
the file of the Principal Civil Judge and JMFC, Gundlupet,
have filed this petition challenging an Order dated
09.09.2022, by which, the Final Decree Court modified the
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shares in view of the Judgment of the Apex Court in the
case of VINEETA SHARMA vs. RAKESH SHARMA AND
OTHERS reported in AIR 2020 SC 3717.
2. A suit for partition and separate possession filed in
O.S.No.259/2012 was decreed and it was held that
plaintiff was entitled to 1/3rd share. The same was
challenged in R.A.No.45/2018. The appeal was allowed in
part in view of the Judgment of this Court in the case of
PRAKASH vs. PULAVATHI reported in (2016)2 SCC 36
and it was held that plaintiff was entitled to 1/9th share.
The plaintiff filed FDP No.5/2021 for 1/9th share in the suit
property as per the preliminary decree of partition passed
in R.A.No.5/21. The plaintiff filed and application under
Sections 152 and 153 of CPC to modify the preliminary
decree in view of the judgment of the Apex court in
VINEETA SHARMA case supra. The Final Decree Court,
in terms of the impugned order, allowed the application
filed under Section 152 of CPC. Being aggrieved by the
same, the defendants in the suit who were arrayed as
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Respondent Nos.2, 3, 4 and 5 in final decree proceedings
have filed this petition.
3. Learned counsel for Respondent Nos.2, 3, 4 and 5
submitted that the plaintiff was bound to challenge the
Judgment and Decree passed in R.A.No.43/2018 and the
Final Decree Court has no authority to modify the share in
accordance with law in the final decree.
4. Per contra, learned counsel for respondents
contended that the law declared in PRAKASH case supra
was overruled in VINEETA SHARMA case supra, which
also held that in respect of pending cases, the shares
could be suitably modified. He therefore, contended that
the final decree Court was justified in allowing the
application.
5. It is now trite that a final decree is a continuation of
the preliminary decree (see SHUB KARAN BUBNA @
SHUB KARAN PRASAD BUB VS. SITA SARAN BUBNA
& ORS (2009 AIR (SCW) 6541). As rightly contended
by the learned counsel for the plaintiff, Hon'ble Apex Court
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in VINEETA SHARMA case supra, had held that the Court
is entitled to modify the shares based on the declaration of
law made by it. Therefore, there is no error committed by
the Final Decree Court in modifying the shares that the
plaintiff was entitled to.
6. Hence, this petition lacks merit and is dismissed.
Sd/-
(R. NATARAJ)
JUDGE
BNV
