SMT. NINGAMMANI v. SRI.MAHADEVAPPA

3. SMT. PARVATHAMMA SINCE DEAD BY LRS SRI. MAHADEVAPPA AGED ABOUT 64 YEARS

4. SRI. MAHESH AGED ABOUT 42 YEARS S/O SRI MAHADEVAPPA Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:30920 WP No. 22314 of 2021

5. SMT. SUSHEELA D/O SRI. MAHADEVAPPA AGED ABOUT 40 YEARS ALL ARE R/AT BEERIHUNDI VILLAGE YELWALA HOBLI, MYSURU TALUK- 571 124

6. SRI. NAGARAJU AGED ABOUT 57 YEARS S/O LT. MARI NAGAPPA R/AT PUTTEGOWDANA HUNDI VARUNA HOBLI, MYSORE TALUK- 570 010

7. SRI. MANJUNATHA SINCE DECEASED BY LRS SMT.GURUMALLAMMA AGED ABOUT 47 YEARS W/O SRI.MANJUNATH

8. SMT. SHEELA AGED ABOUT 27 YEARS D/O SRI. MANJUNATH

9. SRI. NAGESHA AGED ABOUT 25 YEARS S/O SRI MANJUNATH ALL ARE R/AT PUTTEGOWDANA HUNDI VARUNA HOBLI, MYSORE TALUK- 570 010

10. SMT. PATTABIRAMAN AGED ABOUT 61 YEARS S/O LT. M.P. PUTTAIAH R/AT NO. 73, 2ND CROSS NANDINI LAYOUT ALANAHALLI EXTENSION MYSORE -570 028

11. SMT. MANJULA AGED ABOUT 50 YEARS W/O LT B.MAHADEVAPPA RA/T PUTTEGOWDANA HUNDI - 3 - NC: 2024:KHC:30920 WP No. 22314 of 2021 VARUNA HOBLI, MYSORE TALUK- 570 010

12. SMT. PRABHAVATHI AGED ABOUT 36 YEARS W/O SRI.CHANDRAPPA D/O LT B. MAHADEVAPPA R/AT MANDANAHALLI JAYAPURA HOBLI, MYSORE TALUK -570 008

13. SMT. GAYATHRI AGED ABOUT 35 YEARS W/O SRI SATHISH D/OLT B. MAHADEVAPPA R/AT CHANNAPANAPURA CHAMARAJANAGAR TALUK AND DISTRICT- 571 127

14. SMT. JYOTHI AGED ABOUT 31 YEARS W/O SRI. SRIDHAR D/O LT B.MAHADEVAPPA R/AT ALANAHALLI KASABA HOBLI, MYSURU TALUK -570 028 (V/O/D 18.07.2022, NOTICE TO R1-R10 DISPSENSED WITH SRI.P.NATARAJU, ADVOCATE FOR R11 TO R14 , ADVOCATE) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 30.07.2020 PASSED BY O.S.NO.68/2014 IN THE COURT OF IV ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MYSURU ON I.A.NO.6 AS PER ANENXURE-G AND ALLOW IA NO.6. THIS PETITION HAVING BEEN HEARD AND RESERVED ON

02.07.2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI - 4 - NC: 2024:KHC:30920 WP No. 22314 of 2021 CAV ORDER Aggrieved by the order passed in I.A.No.VI filed under Order 1 Rule 10(2) read with Section 151 of C.P.C. in O.S.No.68/2014 dated 30.07.2020 by the IV Additional Senior Civil Judge and JMFC, Mysuru, the present writ petition is filed.

2. The petitioner before this Court is the plaintiff in the suit. The plaintiff had filed O.S.No.68/2014 seeking partition and separate possession of the suit schedule properties. In that, she had filed I.A.No.VI under Order 1 Rule 10(2) of C.P.C to implead the proposed defendant as defendant in the suit. It is the case of the plaintiff that the defendants have no right or interest over item No.2 of the suit schedule property and have illegally executed the sale deed in favour of proposed defendants under registered sale deed on 16.12.2003. She came to know about the said facts and obtained the documents on 15.07.2019. It is the case of the plaintiff that the said documents are not having any legal sanctity and does not bind her. According to her, the defendants are proper and necessary parties to the suit. - 5 - NC: 2024:KHC:30920 WP No. 22314 of 2021

3. After issuance of notice in I.A.No.6, the proposed defendants had appeared through their advocate and filed objection to I.A.No.VI. According to the defendants, the application is not maintainable and the same is liable to be dismissed. It is the case of the defendants that the proposed defendants' father by name Late B.Mahadevappa had purchased the property to an extent of 1 acre 20 guntas in Sy.No.35/1 of Puttegowdnahundi Village, Varuna Hobli by sale deed dated 16.12.2003 from the previous owner. From the date of the registered sale deed, the said B.Mahadevappa was in possession and enjoyment of the property. After the death of B.Mahadevappa, the proposed defendants are in peaceful possession and enjoyment of the property as legal heirs. The property was transferred in the name of the proposed defendants about 16 years back. It is stated that the suit is filed in the year 2014, but the application is filed in the year

2019. Hence, the plaintiff has no manner of right, title over the property and accordingly, prayed to dismiss I.A.No.VI.

4. The trial Court by order impugned had dismissed I.A.No.VI and while dismissing the same, the trial Court had - 6 - NC: 2024:KHC:30920 WP No. 22314 of 2021 observed that item No.2 was sold in the year 2003 itself, but in view of the amendment to Section 6 of the Hindu Succession Act, any alienation made before 20.12.2004 cannot be questioned. Hence, by impleading the proposed defendants in the suit, no purpose will be served as the sale deed was executed in the year 2003. Even though merits of the case cannot be considered at this stage but already property was sold in the year 2003 itself, then the question of impleading the proposed defendants who are the legal heirs of the purchaser do not arise and accordingly, dismissed I.A.No.VI.

5. Learned counsel appearing for the petitioner/plaintiff submits that the order of the trial Court is contrary to law. It is submitted that the trial Court has committed an error in interpreting the provisions of law holding that the sale deed was executed in the year 2003 itself and prior to the Hindu Succession Amendment Act, 2005. It is the contention of the learned counsel for the petitioner that the father of the petitioner died prior to the execution of the sale deed in 2003 by other legal heirs and not by plaintiff and petitioner/plaintiff was having right in the share of her father - 7 - NC: 2024:KHC:30920 WP No. 22314 of 2021 as per Section 6 of the Hindu Succession Act, 1956 before amendment of Section 6. Hence the order is liable to be set aside. It is submitted that the right of the plaintiff as coparcener under the amended law is different from her right as the legal heir of the father even before the amendment of Section 6 of the Act. He submits that the application has been filed at an earliest point of time. Further, to avoid the multiplicity of proceedings, it is very much necessary to implead the proposed defendants.

6. Learned counsel for the respondent submits that the trial Court had rightly dismissed the application and absolutely no grounds are made out seeking interference with the well considered order passed by the trial Court.

7. Having heard the learned counsels on either side, perused the entire material on record. The suit is for partition. According to the plaintiff, the suit schedule property is joint family property. Earlier, when they came to know that defendant Nos.1 to 4 have sold the first item of the suit schedule property in favour of the 6th defendant, without the knowledge and consent of the plaintiff and other daughters, it - 8 - NC: 2024:KHC:30920 WP No. 22314 of 2021 is stated in the plaint itself that the transaction is null and void and the purchaser was impleaded as defendant in the suit. In this case, according to the plaintiff, the sale was in the year

2003. For the first time, they came to know about the same and immediately they have filed the application. It is stated that it came to their knowledge very recently and they have obtained documents on 15.07.2019. In a suit for partition, when it is the case of the plaintiff that it is an undivided joint family property, it cannot be sold and the said sale will not be binding on the coparceners. In this case, the father of the plaintiff had died prior to the execution of the sale deed in the year 2003. The said finding of the trial Court with regard to the amendment of the Hindu Succession Act and dismissing the I.A. is contrary to law. The defendants are the subsequent purchasers of the joint family property according to the plaintiff and they are proper and necessary parties to the suit. All other issues are always open to the parties to lead evidence. But at the threshold, an application under Order 1 Rule 10(2) cannot be dismissed as the plaintiff has made a factual foundation for filing such an application. In that view of the matter, this Court - 9 - NC: 2024:KHC:30920 WP No. 22314 of 2021 is of the considered opinion that the order under challenge needs to be set aside. Accordingly, the following: ORDER i.The order passed in I.A.No.VI in O.S.No.68/2014 dated 30.07.2020 by the IV Additional Senior Civil Judge JMFC, Mysuru, aside. Consequently, I.A.No.VI is allowed. ii.Accordingly, the writ petition is allowed. Pending I.As., if any, shall stand closed. SD/- JUDGE MEG, List No.: 1 Sl No.: 62