The High Court
Case Details
- 1 - NC: 2025:KHC:21547 RFA No. 1933 of 2012 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD REGULAR FIRST APPEAL NO. 1933 OF 2012 (PAR) BETWEEN: 1. SATHYANARAYANA RAO AGED ABOUT 60 YEARS S/O LATE GNANABA RAO 2. 3. 4. 5. KRISHNOJI RAO (CORRECT NAME IS K KRISHNA MURTHY) AGED ABOUT 40 YEARS. SMT.CHANDRA BAI (CORRECT NAME IS DANALAKSHMI BAI) AGED ABOUT 42 YEARS) SMT. INDIRA BAI (CORRECT NAME IS SMT S TARA BAI) AGED ABOUT 38 YEARS. SMT. S HEMAVATHI BAI AGED ABOUT 38 YEARS APPELLANT NOS. 2 TO 5 ARE CHILDREN SRI. SATHYANARAYANA RAO Digitally signed by HEMALATHA A Location: HIGH COURTOF KARNATAKA ALL ARE R/O D.NO. 4/7 SALLU MIYAN SAHEB TIRUVU OLD PET, KRISHNAGIRI TAMIL NADU STATE (CORRECT ADDRESS IS NO.2 SUBRAMANYA KOIL STREET, VEERAPPA KRISHNAGIRI TOWN KRISHNAGIRI DISTRICT, TAMILNADU). (BY SRI. MALLIKARJUN C BASAREDDY.,ADVOCATE) …APPELLANTS - 2 - NC: 2025:KHC:21547 RFA No. 1933 of 2012 HC-KAR AND:
Legal Reasoning
schedule properties. There is no dispute in respect of the - 5 - NC: 2025:KHC:21547 RFA No. 1933 of 2012 HC-KAR relationship of the parties. The plaintiffs and defendant Nos. 1 to 3 constitute a joint family. One S.Ramanuja Rao is the predecessor, Kuppamma is his first wife and Anasuya Bai is the second wife. The original plaintiff – Tukaram is the son of Kuppamma and S.Ramanuja Rao. One Narayana Rao – defendant No.2 is the son of Anasuya Bai and Lakshmibai is the daughter of Anasuyabai. Since she died, her husband Sathyanarayana Rao, shown as defendant No.3. Defendant Nos. 4 to 7 are the children of defendant No.3. The plaintiffs and defendants are Hindu joint family members. Hence, they sought for partition and separate possession. 4. On service of summons, defendant Nos. 1, 3, 4, 5 and 7 have filed written statement, denying the averments made in the plaint and they claimed that defendant Nos. 1, 2 , Lakshmibai, wife of defendant No.3 and defendant No.8, have got the suit schedule property under the registered Will dated 29.12.1965 executed by S.Ramanuja Rao in their favour. Since they are in the possession of - 6 - NC: 2025:KHC:21547 RFA No. 1933 of 2012 HC-KAR the said property, bequeathed to them under the Will. Therefore, they contended that the plaintiffs are not entitled to any share in the suit schedule item No.1, the property which has been bequeathed under the Will, dated 29.12.1965. On the basis of the pleadings of the parties, the trial court framed the following issues: “1. Whether the plaintiff proves that the suit schedule properties are the joint family properties? 2. Whether the plaintiff proves that the plaintiff and the defendants, 1, 2 and 3 constitute a joint Hindu family? 3. Whether the plaintiff is entitled for partition and separate possession of 1/3rd share in the suit schedule properties? 4. Whether the plaintiff is entitled for permanent injunction? 5. Whether the first defendant proves that the suit schedule properties are her own properties in view of the Will dated 20.12.1965? 6. Whether the first defendant proves that the Will dated 20.12.1965 was executed by Ramanuja Rao of his free will? 7. Whether the defendants prove that the Will dated 20.12.1965 is obtained by fraud and undue influence? - 7 - NC: 2025:KHC:21547 RFA No. 1933 of 2012 HC-KAR 8. Whether the defendants prove that the suit is not maintainable? 9. What order or decree?” 5. On appreciation of oral and documentary evidence, the trial court answered issue Nos. 1 to 3 in the affirmative and 4 to 8 in the negative and decreed the suit holding that the plaintiffs are entitled to 1/3rd share in the suit schedule properties. Being aggrieved by the same, defendant Nos. 3 to 7 are before this Court. 6. The learned counsel appearing for the appellants filed a memo stating that they are confining this appeal only in respect of suit item No.1. In respect of the other suit schedule properties are concerned, they are not disputing the judgment and decree. Therefore, this appeal is only confined to suit item No.1. 7. The learned counsel appearing for the appellant raised the following contentions: - 8 - NC: 2025:KHC:21547 RFA No. 1933 of 2012 HC-KAR (i) Firstly, the suit was dismissed for non-prosecution on 30.07.2005. Thereafter, the plaintiff filed Misc. No.548/2005 for restoration of the suit. The suit was restored by order dated 17.09.2009. Thereafter, without giving any notice to the appellants the suit was decreed. Since the appellants were not aware of the decree passed by the trial court, they have not properly defended their case. (ii) Secondly, they have specifically pleaded that the registered Will was executed by the predecessor Ramanuja Rao to Smt.Anasuyabai, in turn, Anasuyabai executed a Will in favour of her daughter Lakshmibai. During the pendency of the suit, they have obtained Succession Certificate in P & SC No.29/2007 before the VI Additional City Civil Judge, Bangalore by order dated 30.03.2007. The probate has been issued. Since there is no notice issued to the appellants after the restoration of the suit, they could not produce these documents. Now, they have filed an application for production of additional documents - 9 - NC: 2025:KHC:21547 RFA No. 1933 of 2012 HC-KAR before this Court. Therefore, he contended that, in respect of item No.1 is concerned, the appeal be allowed and the matter be remitted back to the trial court for re- consideration. 8. The respondents are served and unrepresented. 9. Heard the learned counsel for the appellants and perused the appeal papers and the original records. 10. There is no dispute in respect of the relationship of the parties. It is also not in dispute that the plaintiffs and defendant Nos. 1 to 4 constitute Hindu joint family. The plaintiffs filed a suit for partition and separate possession in respect of the suit schedule properties. The trial court, after considering the evidence of the parties and the materials available on record, has decreed the suit holding that the plaintiffs are entitled to 1/3rd share in the suit schedule properties. Except suit item No.1, in respect of the other suit schedule properties are concerned, the appellants have no objection for the decree. In respect of - 10 - NC: 2025:KHC:21547 RFA No. 1933 of 2012 HC-KAR suit item No.1 is concerned, in the written statement, the appellants have taken a specific contention that the propositor Ramanuja Rao has executed a Will dated 29.12.1965 in favour of Lakshmibai on 23.01.1965, Anasuyabai, in turn executed a Will in favour of her daughter Lakshmibai on 13.10.1993. Therefore, they contended that the suit item No.1 is not available for partition. They have also produced the Will executed by Anasuyabai dated 13.10.1993, before this Court along with the application. They have also produced an order passed in P & SC No.29/2007 by VI Additional City Civil Judge, Bangalore. 11. The only contention of the appellants is that there is no opportunity for filing objections to these documents to defend their case, since, after the restoration of the suit, in Misc.No.548/2005, no notice has been issued to the parties and no opportunity has been given to the appellants. In fact, the order sheet maintained by the trial court shows that, after the - 11 - NC: 2025:KHC:21547 RFA No. 1933 of 2012 HC-KAR restoration of the suit, notice has been issued to the counsel. But the appellants have not received any communication from the advocate. On this ground alone, the appeal requires to be allowed to that extent, to give one more opportunity to the appellants to establish their case. 12. Accordingly, the following order is passed:
Arguments
1. SMT. M PANKAJAMMA W/O LATE TUKARAM AGED ABOUT 65 YEARS. 2. T GOVINDARAJ S/O LATE TUKARAM AGED ABOUT 44 YEARS 3. SMT. LEELAVATHY D/O LATE TUKARAM AGED ABOUT 47 YEARS 4. T MAHADEVA S/O LATE TUKARAM AGED ABOUT 42 YEARS ALL ARE R/O 13/1, 4TH CROSS SRIRAMPURAM, BANGALORE-560 021. 5. SMT. PRABHAVATH W/O LATE NARAYANA RAO AGED ABOUT 52 YEARS R/O NO.M-170,LAKSHMINARAYANAPURA MARKET MAIN ROAD, SREERAMPURAM BANGALORE-560 021. 6. SMT. RUKMINI BAI D/O LATE S RAMANUJA RAO W/O JANARDHAN RAO AGED ABOUT 41 YEARS. 7. YOGESH S/O RUKMINI BAI AGED ABOUT 16 YEARS REP. BY HIS NATURAL GUARDIAN AND MOTHER SMT RUKMININ BAI R5. 8. DIVAKAR S/O RUKMINI AGED ABOUT 21 YEARS R6 TO R8 ARE R/AT 31 BLOCK NO 1 P& T COLONY VISSARYADINAGAR, MADRAS-39. - 3 - NC: 2025:KHC:21547 RFA No. 1933 of 2012 HC-KAR 9. MALLIKARJUNAPPA AGED 35 YEARS 10. SMT. SHARADAMMA AGED 36 YEARS. 11. SRI RAMACHANDRA AGED ABOUT 40 YEARS 12. KRISHNAMURTHY AGED ABOUT 50 YEARS 13. RAMLAL AGED ABOUT 55 YEARS 14. PONNASWAMY AGED ABOUT 60 YEARS. 15. RUDRAMURTHY AGED ABOUT 61 YEARS. 16. SUBBAIAH AGED ABOUT 45 YEARS R 9 TO R15 ARE F/AT NO.170, MARKET MAIN ROAD LAKSHMINARAYANAPURAM BANGALORE-560 021. 17. DODDACHANNA WORKING IN P & T DEPT AGED ABOUT 60 YEARS 18. SMT. PADMA AGED ABOUT 55 YEARS 19. SRI S NAGARAJU AGED ABOUT 54 YEARS R17 TO 19 ARE R/AT NO.85, 4TH CROSS, NAGAPPA BLOCK BANGALORE-560 021. (R1 TO R4 ARE SERVED AND UNREPRESENTED: V/O DATED: 10.02.2023 NOTICE TO R5 TO R17 IS DISPENSED WITH: …RESPONDENTS - 4 - NC: 2025:KHC:21547 RFA No. 1933 of 2012 HC-KAR NOTICE TO R18 & R19 ARE DISPENSED WITH V/O DATED 12.12.2013) THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.12.2010 PASSED IN O.S.NO.3478/1994 ON THE FILE OF THE V ADDL. CITY CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND PERMANENT INJUNCTION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD ORAL JUDGMENT This appeal is filed by defendant Nos.3 to 7 under Section 96 of CPC, challenging the judgment and decree dated 18.12.2010, passed by the V Additional City Civil Judge, Bengaluru in O.S.No.3478/1994, decreeing the suit and holding that the plaintiffs are entitled for partition and separate possession of 1/3rd share in the suit schedule properties. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial court. 3. The plaintiffs filed a suit against the defendants for partition and separate possession of 1/3rd share in the suit
Decision
(i) The appeal is allowed in part. (ii) The judgment and decree passed by the trial court only in respect of suit item No.1 is set aside. In respect of other suit schedule properties are concerned, the judgment and decree passed by the trial court is confirmed. (iii) The matter is remitted back to the trial court to reconsider the matter afresh only in respect of suit item No.1, if it requires any additional issue, after framing the additional issue. - 12 - NC: 2025:KHC:21547 RFA No. 1933 of 2012 HC-KAR (iv) The parties are at liberty to file an application for production of additional documents. If such an application is filed, the trial court is directed to consider the same in accordance with law. (v) The trial court is directed to decide the suit in respect of suit item No.1, after giving opportunity to both the parties in accordance with law and dispose of the suit as expeditiously as possible, not later than one year from the date of receipt of a copy of this order. Sd/- (H.T. NARENDRA PRASAD) JUDGE CM LIST NO.: 1 SL NO.: 59