Karnataka High Court

Smt Nagamani @ S Nagarathna vs Sri S Rajashekara Murthy on 4 July, 2025

Author: R Devdas

Bench: R Devdas

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JULY, 2025

                        BEFORE
          THE HON'BLE MR JUSTICE R DEVDAS
       CIVIL REVISION PETITION NO.28 OF 2025

BETWEEN:

SMT. NAGAMANI @ S. NAGARATHNA
W/O SRI H.B. SURENDRA KUMAR
D/O LATE SRI B.N. SHAMANNA
AGED ABOUT 75 YEARS
R/AT NO.71, 1ST MAIN, P.F. LAYOUT
VIJAYANAGAR, BANGALORE-560 040.
                                         ...PETITIONER
(BY SRI. B.K. CHANDRASHEKAR, ADVOCATE)

AND

1.    SRI S. RAJASHEKARA MURTHY
      S/O LATER SRI SRIRAMAIAH
      AGED ABOUT 49 YEARS
      R/AT NO.101, COTTONPET MAIN ROAD
      OPPOSITE TO POLICE STATION
      COTTONPET, BANGALORE-560 053.

2.    SMT S BHUVANESHWARI
      W/O SRI SHIVASHANKAR
      D/O LATE SRI SRIRAMAIAH
      AGED ABOUT 45 YEARS
      R/AT NO.39, RAYAPPA ROAD
      KAMMANAHALLI, BANGALORE-560 084.
                                        ...RESPONDENTS

(BY SRI. SHANKAR G., ADVOCATE FOR R1 SRI. K.N HARISH BABU, ADVOCATE FOR R2)

THIS C.R.P. IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 28.11.2024 PASSED ON IA NO.VI IN OS NO.8855/2012 ON THE FILE OF XXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, REJECTING THE IA

FILED UNDER ORDER VII RULE 11(a) AND (d) R/W SECTION 151 OF CPC., FOR REJECTION OF PLAINT AND ETC.

THIS PETITION HAVING BEEN HEARD AND RESERVED ON 09.04.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE R DEVDAS

CAV ORDER

(PER: HON'BLE MR JUSTICE R DEVDAS)

This Civil Revision Petition is filed by defendant No.1

in O.S.No.8855/2012, aggrieved by the rejection of the

application filed under Order VII Rule 11(a) & (d) of Code

of Civil Procedure.

2. For the sake of convenience, the parties shall

be referred to in terms of their ranking before the trial

court.

3. The suit was filed by the respondents herein

with a prayer to restore P & SC No.19/1982; to set aside

the certificate issued by the District Court in P & SC

No.19/1982, by order dated 12.08.1986 and to decree the

suit for 1/3rd share out of one half of the suit schedule

property by metes and bounds. Defendant No.2 is the

mother of the plaintiffs. Obviously the suit was directed

against defendant No.1, who is the sister of defendant

No.2. Defendant No.1 filed an application under Order VII

Rule 11 (a) & (d), contending that the defendants father

late Sri B.N.Shamanna had left behind a Will bequeathing

the suit schedule property in favour of defendant No.1 and

that the P & SC case was contested by defendant No.2 and

the District Court, after holding an enquiry, concluded that

the petitioner therein was entitled for grant of Probate,

while rejecting the objections raised by defendant No.2

herein and proceeded to issue Probate in favour of

defendant No.1. Thereafter, the 2nd defendant herein filed

a suit in O.S.No.565/1996 seeking declaration and

possession and partition and separate possession of the

suit schedule property, while arraigning defendant No.1

herein as the sole defendant. The suit was partly decreed

on 22.02.2006, declaring that defendant No.2 herein

(plaintiff in the said suit) was entitled for partition and

separate possession of one half share in plaint 'C' and 'D'

schedule properties. It was clearly declared that 'A'

schedule property, which is the present suit schedule

property was the self acquired property of

Sri B.N.Shamanna and by virtue of the Will executed at

the hands of Sri B.N.Shamanna, defendant No.1 herein

became the absolute owner and the plaintiff cannot

contend that the Will is unenforceable. The 2nd defendant

herein filed RFA No.1301/2008 and the same was

dismissed by this Court on 16.11.2011, while observing

that defendant No.2 contested the matter in P & SC case

and succession certificate was issued in favour of

defendant No.1 herein. Thereafter, the plaintiffs have filed

the present suit in the year 2012, seeking to set aside the

certificate issued in favour of the 1st defendant, in the P &

SC case.

4. Learned counsel for defendant No.1 has also

taken this Court through the orders passed by this Court

in W.P.No.32166/2016 dated 30.06.2021, which was filed

by the 1st defendant herein being aggrieved of the

rejection of I.A.No.5 filed under Order 14 Rule 5 of CPC to

recast the issues by deleting issues No.2 and 3. This

Court held that issues No.2 and 3 are exactly the same as

issues No.3 and 4 in O.S.No.565/1996. It was noticed

that both the issues have been affirmed in the previous

suit in favour of defendant No.1 herein and in the

judgment in O.S.No.565/1996, it was recorded that the

Will left behind by Sri B.N.Shamanna bequeaths the

property in question in favour of defendant No.1 herein.

Accordingly, the writ petition was allowed and issues No.2

and 3 were deleted.

5. That being the position, learned counsel for

defendant No.1 submitted that having regard to the two

issues being deleted, where the plaintiffs wanted to re-

open the question as to whether the suit schedule

property is the self acquired property of the defendant and

whether the defendant is require to prove the due

execution of the Will left behind by Sri B.N.Shamanna, the

other prayers become redundant.

6. Learned counsel would also submit that the

mother of the plaintiffs (defendant No.2 herein) having

contested the P & SC case and the suit in

O.S.No.565/1996 and having failed, it would not be

permissible for the plaintiffs to contend that they were not

parties to the P & SC case and the suit and therefore they

are entitled to file a fresh suit seeking to raise a challenge

to the grant of Succession Certificate in favour of

defendant No.1 herein. In this regard, learned counsel for

defendant No.1 seeks to place reliance on a recent

decision of the Apex Court in the case of Ramakrishna

(dead) through LRs /vs./ Pillamma and others in

Civil Appeal No.14275/2024 dated 10.12.2024.

7. Per contra, learned counsel for the plaintiffs

would contend that the trial court has rightly held that the

defendant No.1 is seeking to raise a contention that the

present suit is hit by the principles of resjudicata, the

same cannot be considered without recording evidence to

find out whether the dispute/issues in the suit have been

earlier considered in a previous suit or proceedings and

whether it is between the same parties.

8. Heard the learned counsel for defendant No.1

and learned counsel for the plaintiffs and perused the

petition papers.

9. Since an application filed under Order VII Rule

11 can be considered by looking at the plaint only, this

Court finds from the plaint that the plaintiffs are

contended that they were not aware of the execution of

the alleged Wills; that the plaintiffs being successors of

late Erappa are entitled for a share in the suit schedule

property; that the plaintiffs were not parties to any of the

proceedings initiated earlier and they had no opportunity

to putforth their case before any court of law. It is

contended that plaintiffs No.2 and 3 were minors even at

the time of granting Probate and plaintiff No.1 had just

attained majority and he was not represented in the P &

SC case. It is noticeable that in the case of Ramakrishna

(supra), the Apex Court has held that such a contention

cannot be countenanced at this length of time, when it

was clear that all the members of the family were

represented in the suit. No plea was taken in the earlier

proceedings with respect to non-joinder of proper and

necessary parties. Applying the same principles, this

Court has to hold that when the mother of the plaintiffs

has contested the matter, both in the P & SC case as well

as the suit in O.S.No.565/1996, it cannot be contended by

the plaintiffs that they are entitled to seek re-opening of

the cases that have attained finality in the year 1986 and

2011. It is not the case of the plaintiffs that the

proceedings in the P & SC case are nullity in the eye of

law. Therefore, merely because the plaintiffs contend that

they were minors and they were not parties to the

proceedings, they will not be permitted to seek re-opening

of the case in P & SC No.19/1982. It is also to be noticed

that the plaintiffs have cleverly decided not to seek re-

opening of the suit in O.S.No.565/1996, since it was a suit

filed at the hands of their mother, defendant No.2 herein.

The plaintiffs were all majors at the time of filing of the

said suit at the hands of their mother and they were

watching the proceedings till the Regular First Appeal filed

by their mother was dismissed by this Court on

16.11.2011. The declaration of title sought by the

plaintiffs mother having failed, the present suit is filed by

the plaintiffs to seek the same relief.

10. It would be apt to notice the observations of

the Apex Court in the case of Ramakrishna (supra),

which would apply on all fours to this matter:

"A suit for partition would lie among the co-owners, who are presumed to be in joint possession. We are dealing with a case where the possession has been taken over decades ago and a feeble attempt has been made after challenging the earlier suit by making one of the sisters to file a suit subsequently, duly supported by others. It is a case where the plaintiff, who lost the suit along with other family members, joined hands and made a fresh attempt to get the property back.

Thus, continuation of the proceedings would amount to travesty of justice. Therefore, we have no hesitation in setting aside the order passed in the impugned judgment."

11. In the present case, it is required to be notice

that in a suit filed by the plaintiffs mother in

O.S.No.565/1996, which was decided by the trial court on

22.02.2006, it was held that the court is not required to

ascertain the validity of the Probate. That issue has been

decided in the P & SC case. It was held that Section 227

of the Indian Succession Act, 1925 provides that Probate

of a Will when granted establishes the Will from the date

of death of the testator and renders valid the intermediate

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acts of the executors as such. Since Probate was granted,

the factum of due execution was proved and there is no