Karnataka High Court
N.Gopal N Chugh vs Vandana G Thakur Alias N Shobha on 20 August, 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST, 2025
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE DR. JUSTICE K.MANMADHA RAO
REGULAR FIRST APPEAL NO.1979 OF 2021 (PAR)
BETWEEN:
1. N. GOPAL N CHUGH
S/O NICHALDAS
SINCE DEAD, BY HIS LRS.,
1(a). NEETA GOPAL CHUGH
W/O LATE GOPAL N CHUGH
AGED ABOUT 64 YEARS
R/AT. FLAT No.1901 AND 1902
EMBASSY HABITAT
NEAR MOUNT CARMEL COLLEGE
VASANTHNAGAR
BENGALURU-560 052
1(b). SANJAY GOPAL CHUGH
S/O LATE GOPAL N CHUGH
AGED ABOUT 46 YEARS
R/AT. FLAT No.1901 AND 1902
EMBASSY HABITAT
NEAR MOUNT CARMEL COLLEGE
VASANTHNAGAR
BENGALURU-560 052
1(c). AMIT GOPAL CHUGH
S/O LATE GOPAL N CHUGH
AGED ABOUT 41 YEARS
R/AT. FLAT No.1901 AND 1902
EMBASSY HABITAT
NEAR MOUNT CARMEL COLLEGE
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2
VASANTHNAGAR
BENGALURU 560 052
ALL ARE PRESENTLY R/AT
SAVITHRI NIVAS
106, RAILWAY PARALLEL ROAD
KUMARA PARK WEST
BENGALURU-560 020
...APPELLANTS
(BY SRI. MANIAN K.B.S., ADVOCATE)
AND:
1. VANDANA G THAKUR ALIAS N. SHOBHA
W/O GOPAL DAS D THAKUR
SINCE DEAD BY HER LRS.,
1(a). VINITHA MOHAN KUMAR
W/O MOHAN KUMAR
AGED ABOUT 46 YEARS
R/AT.111/8, RAGHURAM COLONY
GANDHI ROAD
SALEM-636 007
1(b). SHEETAL G THAKUR
W/O VIJAY ARJUN DAS
AGED ABOUT 41 YEARS
FLAT No.107, SV ARCADE APARTMENT
KODICHIKANNAHALLI, MN ROAD
NEAR SBI OFFICERS PRIME RESIDENCY
SEENAPPA LAYOUT, BOMMANAHALLI
BENGALURU-560 068
1(c). PREETAL G THAKUR
W/O PRASHANT NAGPAL
AGED ABOUT 31 YEARS
R/A DOOR No.600, 11TH CROSS
4TH MAIN, 3RD STAGE
GOKULAM, MYSURU-570 002
2. KAMLESH
S/O PRAKASH N.
No.34B, 8TH BLOCK
-
3
KORAMANGALA VILLAGE
BENGALURU-560 037
3. MURALI N CHUGH ALIAS GULLU
ALIAS GULAM MOHAMMED
S/O LATE NICHALDAS
No.25/26, NEW BAGALUR LAYOUT
3RD MAIN, LINGARAJAPURAM
BENGALURU-560 005
4. RAJKUMARI ALIAS SANGEETHA
W/O RAMESH LAL CHABRIA
C/O TAKCHAND AND CO.
ITARI BAZAR
NAGPUR-440 002
...RESPONDENTS
(BY SRI. S. VENKATESHWARA BABU, ADVOCATE FOR
SRI. A. SHIVARAMA, ADVOCATE FOR R1(a) TO R1(c);
SRI. ARUN GOVINDRAJ, ADVOCATE FOR R2 & R4;
NOTICE TO R3 IS HELD SUFFICIENT
V/O DATED 13.06.2023)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 OF CPC, 1908,
AGAINST THE ORDER DATED 23.08.2021 PASSED IN
FDP.No.141/2010 ON THE FILE OF 6TH ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY, ALLOWING THE
PETITION FILED UNDER ORDER XX RULE 18 R/W SEC. 151 OF
CPC AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.07.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN
J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE DR. JUSTICE K.MANMADHA RAO
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4
CAV JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)
This appeal is filed challenging the order dated
23.08.2021 passed by the VI Additional City Civil and
Sessions Judge in FDP No.141/2010.
2. We have heard Shri. Manian K.B.S, learned
counsel appearing for the appellants, Shri. S.
Venkateshwara Babu, learned counsel as instructed by Shri.
A Shivarama, learned counsel appearing for respondents
No.1(a) to 1(c) and Shri. Arun Govindraj, learned counsel
appearing for respondents No.2 and 4.
3. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court.
4. Nichaldas Motoomal, father of defendant No.1
was a partner in M/s Nichaldas Gopaldas and Company
('firm' for short). He purchased Schedule A, C and D
properties in his wife Savithri Devi's name using partnership
income. After his death, his son Prakash Nichaldas became
a partner and Prakash died leaving behind his pregnant wife
-
and minor son, the plaintiff. Defendant No.2 converted to
Islam and was disqualified from claiming any shares.
Prakash's wife and the plaintiff filed O.S.No.117/1984,
claiming the business was a Joint Hindu Family Business and
sought Prakash's share in the firm. The suit was
compromised wherein the plaintiff relinquished all claims
over the suit schedule properties in exchange of monetary
compensation as full and final settlement.
5. Respondent No.2 filed O.S.No.8516/1999 before
the XXXVIII Additional City Civil Judge, Bengaluru ('trial
Court' for short) seeking partition and separate possession
of 1/4th share in the suit schedule A, B, C, E, F and G
properties and 1/2 share in suit schedule D property, to
declare the comprise decree as null and void and to direct
defendant No.1 to render accounts of the partnership firm
and pay mesne profit for the suit schedule properties.
6. The suit was partly decreed, holding that the
plaintiffs, defendants No.3 and 4 are entitled to partition and
separate possession of their 1/4th share in the suit schedule
-
properties and Savithri Bai's 1/4th share in the assets and
business of the firm. The plaintiff was also held entitled to
mesne profits from date of suit till date of possession of their
1/4th share. Defendant No.1 was directed to render accounts
of the firm for the period from the date of filing the suit till
drawing up of final decree.
7. Aggrieved by the judgment passed by the trial
Court, defendants No.1, 2 and 5 filed RFA No.1374/2009.
The plaintiff also filed cross objections challenging the trial
Court's decision denying them a share in Schedule D and G
properties. The Division Bench of this Court upheld the trial
Court's judgment observing that the trial Court had correctly
appreciated the oral and documentary evidence on record
and arrived at proper findings on all issues. The appeal and
cross objections were dismissed finding no grounds for
interference with the decision of the trial Court.
8. Defendant No.3 and the plaintiff filed FDP
No.141/2010 seeking division of suit schedule properties A
to C, E and F by metes and bounds. A Civil Engineer was
-
appointed as Court Commissioner to inspect and submit a
report. The feasibility of divisions as suggested by the
Commissioner was not accepted by the parties. The Court
allowed the petition observing that division of properties was
not feasible as the parties did not mutually agree and held
that the parties can sell the same in public auction and
apportion the sale proceeds between them as per their
respective share as declared in the decree.
9. Defendant No.1 prefers this appeal seeking to
declare the decree dated 12.06.2009 passed by the trial
Court as null and void and set aside the judgment of the
trial Court and Division Bench of this Court and also the final
decree proceedings.
10. The learned counsel appearing for the appellant
contended that O.S.No.8516/1999 is barred under Order
XXIII Rule 3A of Code of Civil Procedure, 1908 as an earlier
compromise decree dated 02.07.1984 had attained finality.
The trial Court committed a jurisdictional error by passing a
preliminary decree in O.S.No.8516/1999, ignoring the
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binding nature of the prior decree. The plaintiff had averred
that these properties were assets of the firm wherein
respondent No.2's father Late Prakash and defendant No.1's
father Gopaldas were equal partners holding 50% shares
each.
11. However, the trial Court passed the judgment on
the erroneous assumption that Savithri Devi was one of the
four partners holding a 1/4th share and without impleading
the firm's partners as necessary parties to the suit. The said
suit is filed after 15 years by the same plaintiff. As per
Section 14 of the Partnership Act, the properties are the
firm's properties and that the trial Court could not have
adopted two different basis for sharing the business income
and the assets of the firm. The trial Court committed an
error in treating the properties as the absolute properties of
Savithri Devi.
12. In support of his contentions, he has relied on the
following citations:-
• R Rajanna v. S.R Venkataswamy &
Others reported in (2014) 15 SCC 47;
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• R. Janakiammal v. S.K. Kumarasamy
(Deceased) through LRs and Others reported
in (2021) 9 SCC 114, and
• State of Haryana and Another v. Kartar Singh
(Dead) through LRs reported in (2013) 11 SCC
375.
13. The learned counsel appearing for respondents
No.2 and 4 on the other hand contended that the final
decree proceedings was held in accordance with law and do
not warrant interference of this Court. The preliminary
decree was upheld and confirmed by the Division Bench of
this Court, which cannot be revisited in this appeal.
14. In support of his contentions, he has relied on the
following citation:-
• Venkata Reddy and Others v. Pethi Reddy
reported in 1962 SCC OnLine SC 320.
15. Having considered the contentions advanced, the
only question which requires a consideration is whether the
orders of the Court which is subjected to this appeal
requires any interference. The order under challenge is the
final decree in FDP No.141/2010. The FDP was filed in
-
respect of the preliminary decree in O.S.No.8516/1999. The
appellant was defendant No.1 in the suit. The suit was
decreed on 12.06.2009 and a preliminary decree was
passed holding that the plaintiffs are entitled to 1/4th share
in suit A to C, E and F schedule properties. The said
preliminary decree was subjected to an appeal by
defendants No.1, 2 and 5 in RFA No.1374/2009. A cross
objections was also filed by the plaintiffs. The appeal as well
as the cross objections were dismissed by the Division
Bench of this Court by its judgment dated 21.01.2015. It is
thereafter, that the FDP was filed by the plaintiffs in the
Original Suit.
16. The FDP Court considered the Commissioner's
report as well as the contentions of the parties and found
that 1/4th share of the properties would come to about
13002 sq.ft. each. The parties did not accept the divisions
suggested by the Commissioner. Therefore, the Court held
that the division of the properties by metes and bounds is
not possible. The parties were permitted to auction the
properties and apportion the sale proceeds. The preferential
-
right of the parties to the suit in the auction was also
recognized.
17. The appellant challenges the said order on the
ground that the preliminary decree was wrongly passed and
the partition suit itself was not maintainable. We are of the
opinion that the preliminary decree was not open to
challenge by the appellants in these proceedings which arise
out of passing of the final decree. The contentions raised by
the appellants as against the preliminary decree which has
already been subjected to an appeal and has been affirmed
are completely misconceived and cannot be countenanced.
18. From a consideration of the appeal memorandum
as also from the arguments raised by the appellants before
this Court, we notice that there are no contentions urged in
the appeal as against the final decree and the arguments
are raised as against the preliminary decree and as regards
the maintainability of the partition suit.
19. We are of the opinion that such contentions
cannot be urged in this appeal. Since no valid grounds have
been raised as against the final decree, we are of the
-
opinion that the appeal is devoid of merits. The appeal fails
and the same is accordingly dismissed with costs.
All pending interlocutory applications shall stand
dismissed.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(DR. K.MANMADHA RAO)
JUDGE
cp*
