IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.1104 OF 2018 BETWEEN Smt. H.R.Renuka, W/o. Sri. K.H.Krishnappa, Aged about 60 years, R/at No.4312/A, 14th Main, 1st Cross, Subramanyanagar, Rajajinagar, Bengaluru-560021.
(By Sri. K.Pradeep Naik, Advocate) AND 1. Sri. K.H.Umesh, S/o. Late Sri. K.S.Hanumanthaiah, Aged about 75 years, R/o. Ramana Block, Kunigal Town, Tumkur District-572130.
2. Sri. K.H. Krishnappa, S/o. Late Sri. K.S.Hanumanthaiah, Aged about 66 years, R/at No.4312/A, 14th Main, 1st Cross, Subramanyanagar, Rajajinagar, Bengaluru-560021.
…Appellant 3. Smt. Radhamma, D/o. Late Sri. K.S.Hanumanthaiah, W/o. Late Sri. Rangappa Setty, Aged about 82 years, R/o. Hebbur Village & Hobli, Tumkur Taluk, Tumkur District-572130.
4. Smt. Venkatamma @ Vinuthamma, D/o. Late Sri. K.S.Hanumanthaiah, W/o. Narayana Settee, Aged about 82 years, R/o. Huliyurdurga Village, Kunigal Taluk, Tumkur District-572130.
5. Smt. Jayamma, D/o. Late Sri. K.S.Hanumanthaiah, W/o. Late Nagaraj, Aged about 77 years, R/at defendant No.26, 1st Floor, 4th Main, Shankarapura, Mahalakshmi Layout, Bengaluru-560086.
6. Smt. Chandramma, D/o. Late Sri. K.S.Hanumanthaiah, W/o. Govinda Setty, Aged about 71 years, Residing near Govt. Hospital, Besagarahalli Village, Maddur Taluk, Mandya District-571428.
7. Smkt. Rajamma, W/o. Late Krishnamurty, Aged about 64 years, R/at No.15/1, 4th Cross, Hosahalli, Vijayanagar, Bengaluru-560040.
8. Smt. Ramadevi, W/o. Shivashankar, Aged about 61 years, R/at No.191, 5th Cross, AYR Layout, Shettihalli, Bengaluru-560015.
9. Smt. Leelamma, W/o. Rajgopal, Aged about 58 years, R/at D.No.22, Parvathi Illayam, 2nd Cross East, Shanthinagara Hosur, Tamilnadu State-632106.
10. Smt. Sowbhagya W/o. Venkataswamy, Aged about 55 years, R/at No.15/1, 4th Cross, Hosahalli, Vijayanagar, Bengaluru-560040.
11. Smt. Srirangamma, D/o. Late Sri. Hanumanthaiah, W/o. Late Padmanabha, Aged about 90 years, R/o. Channegowdanadoddi, Maddur Taluk, Mandya District-571428.
12. Smt. Nagarathnamma, W/o. Late Sri. K.H.Thimmaiah Setty, Aged about 71 years, R/o. Ramana Block, Kunigal Town, Tumkur District-572130.
13. T.Rajanna @ K.T.Sanjay, S/o. Late Sri. K.H.Thimmaiah Setty, Aged about 38 years, R/o. Ramana Street, Kunigal Town, Tumkur District-572130.
14. Smt. T.Suma, D/o. Late Sri. K.H.Thimmaiah Setty, W/o. Padmanabha, Aged about 47 years, R/at No.441, 39th Cross, 14th Main, Jayanagar, Bengaluru-560011.
15. Smt. T.Pushpalatha @ K.T.Poornima D/o. Late Sri. K.H.Thimmaiah Setty, W/o. Chandru, Aged about 43 years, R/at No.26, 3rd Cross, Sir M.V.Nagar, Manjunatha Floor Mill, Kantenahalli Main Road, Bengaluru-560016.
16. Smt. T.Lakshmi, D/o. Late Sri. K.H.Thimmaiah Setty, Aged about 39 years, R/o. Ramana Block, Kunigal Town, Tumkur District-572130.
17. Smt. Ashwini, D/o. Late Smt. Shashikala, W/o. Sampath Kumar, Aged about 34 years, R/at No.2, 3rd Cross, 3rd Main, Karagadamma Nilaya, Guruguntepalya, Bengaluru-560022.
18. Smt. Vidya, D/o. Late T.Shashikala, R/at No.484, 8th Cross, Leelavathi Extension, Maddur-571428.
19. Smt. Bharathamma, D/o. Late Smt. Akkachamma, & Venkatachala Setty, W/o. G.P.Krishnappa, Aged about 58 years, R/at No.205, 4th Stage, 4th Block, 4th A Cross, Basaveshwarnagar, Bengaluru-560079.
20. Smt. Bhagyamma, W/o. Late K.V.Krishnappa, Aged about 66 years, R/o. Ramana Block, Kunigal Town, Tumkur District-572130.
21. K.Venkatesh, S/o. Late K.V.Krishnappa, Aged about 43 year, R/o. Ramana Block, Kunigal Town, Tumkur District-572130.
22. Smt. Sharada, D/o. Late K.V.Krishnappa, Aged about 47 years, R/o. Ramana Block, Kunigal Town, Tumkur District-572130.
23. Smt. Nagarathna @ Reena, D/o. Late K.V.Krishnappa, Aged about 45 years, R/at No.87/c, 1st Floor, 15th Cross, Mahalakshmi layout, Bengaluru-560086.
24. K.Rajesh, S/o. Late K.V.Krishnappa, Aged about 41 years, R/o. Ramana Block, Kunigal Town, Tumkur District-572130.
25. Smt. Rajalakshmi, W/o. Sri Umesh, Aged about 61 years, R/o. Ramana Block, Kunigal Town, Tumkur District-572130.
(By Sri. R.Om Kumar, Advocate for C/R7; Sri. K.S.Uday, Advocate for R9 & C/R10;
…Respondents Sri. M.N.Madhusudhan, Advocate for R1 & R25;
Sri. N.R.Ravikumar, Advocate for R3 to R6, R11,R12 R16 to R24; R2, R8, R13 to R15-Served) This RFA is filed under Section 96 of CPC., against the order dated 29.05.2018 passed in O.S.No.2874/2017 on the file of the III Additional City Civil and Sessions Judge, Bengaluru City, holding that court fee paid on the plaint is insufficient and that suit is not maintainable.
This RFA coming on for admission, this day, the Court made the following :
JUDGMENT Aggrieved by the order dated 29th May, 2018 passed by the III Addl. City Civil and Sessions Judge, Bengaluru in O.S.No.2874/2017 on preliminary issues and I.A.No.4, the plaintiff has preferred this appeal.
2. I have heard the appellant’s counsel and also the counsel for respondent no.7 at the time of admission. The plaintiff instituted the suit against 25 defendants seeking the following reliefs:
i) Declaring that the plaintiff is the owner of the suit Schedule-A property;
ii) To direct the defendants to deliver the possession of the suit Schedule-A property;
iii) To hold that the decree passed in O.S.No.6448/2011 on the file of the City Civil Judge at Bangalore, in so far as it concerns the Schedule-A & B properties is not binding on the plaintiff, iv) To hold an enquiry regarding past and future mesne profits in respect of the Schedule-A property; and v) Grant such other relief including costs as deemed fit in the circumstances of the case.
3. It is the plaintiff’s case that her father-in-law K.S.Hanumanthaiah bequeathed the suit property in her favour and also defendant no.12 and 25 by executing a will dated 16.03.1986. Before she could come to know about the Will, the daughters of Hanumanthaiah viz., Sowbhagya, Rajamma, Ramadevi and Leelamma had filed a suit against their brothers and some others seeking partition. The said suit ended in a compromise, pursuant to which final decree was drawn on 14.04.2014 and the parties were put in possession of the properties allotted to each of them. According to the plaintiff, she came to know that her father- in-law Hanumanthaiah had left a will only after the finality of all these proceedings. As she too was one of the bequeathees under the will, she filed the suit for aforesaid releifs.
4. In the said suit, after completion of the pleadings, the trial court framed 7 issues and treated issue No.3 and 5 as preliminary issues. Issue no.3 is on the court fee and issue No.5 pertains to maintainability of the suit. Answering Issue no.5, the trial court has held that if a compromise had been accepted in O.S.No.6448/2011, a separate suit seeking to avoid this compromise is not maintainable in view of Order XXIII Rule 3A CPC and the judgment of the Hon’ble Supreme Court in the case of Puspha Devi Bhagath (D) by LRs. Vs. Rajinder Singh and others - (AIR 2006 SC 2628). Opinion of the trial court is that the compromise must be challenged in the same suit and not by filing a separate suit and therefore the suit is not maintainable.
5. Assailing the above findings, the learned counsel for the appellant argues that the plaintiff was not a party in O.S.No.6448/2011. She was not a party to the compromise also. She came to know about the will made by her father- in-law only after the disposal of the entire suit and therefore she had to file a suit separately seeking declaration of her title and possession of the property bequeathed to her under the will. He argues that since the plaintiff was not a party, she could not have challenged the compromise in the same suit and the course open to her was to file a separate suit. His argument is that Order XXIII Rule 3A CPC and the principle laid down by the Hon’ble Supreme Court in the case of Puspha Devi Bhagat (supra) are not applicable in a circumstance like this.
6. As regards the findings given by the trial court that court fee paid is insufficient, the learned counsel for the appellant argues that he was not heard on that point and had he been heard, he would have convinced the court that court fee paid was sufficient, however he submits that if any court fee is payable, the plaintiff is ready to pay it.
7. The learned counsel for respondent no.7 argues that there are no infirmities in the impugned order. The plaintiff is none other than the wife of K.H.Krishnappa, defendant no.2 in O.S.No.6448/2011 and therefore the compromise in the said suit binds her. If at all she is aggrieved by the compromise, she should have questioned it by filing an application in the very same suit, and a separate suit is not maintainable. He also submits that the plaintiff and the defendants were heard at length with regard to issue on court fee.
8. After hearing both sides, it is to be stated that the conclusion of the trial court about non maintainability of the suit cannot be accepted. There is no dispute with regard to the fact that she was not a party to the suit O.S.No.6448/2011. It was a suit filed by the daughters of K.S.Hanumanthaiah against their brothers and some others seeking partition. May be that the plaintiff’s husband was a party to the suit, but the suit was fought on a different footing altogether. The plaintiffs in that suit might have contended that they were entitled to a share as the suit property belonged to the joint family. Even in the compromise recorded in the said suit, the plaintiff was not a party. Therefore the question that really arises is whether the plaintiff can question the compromise by making an application in a suit to which she was not a party. No doubt order XXIII Rule 3A CPC bars a separate suit and even the Hon’ble Supreme Court in the case of Puspha Devi Bhagat (supra) has clearly stated that a separate suit is not maintainable, but a subtle distinction can be pointed out in a situation as appears in the case on hand. Separate suit is not maintainable when party to the suit wants to assail the compromise. If a person who is not a party to the suit seeks to avoid the compromise based on his or her independent right or title over the property in question, he or she can maintain a separate suit. Making an application under Order XXIII Rule 3A in the same suit may not be necessary. Here in this case, the plaintiff has founded the reliefs on the strength of a will said to have been executed by her father- in-law K.S.Hanumanthaiah. If he had executed the will much before the institution of the suit O.S.No.6448/2011 and without the knowledge of the said will, suit was instituted by the daughters and that they entered into compromise, the right of the plaintiff to claim property that has been bequeathed to her does not extinguish. Looked in this view, certainly suit is maintainable. However it is subject to proof of the will and other factors. In these circumstances, I am of the opinion that the trial court should not have held that suit is not maintainable.
9. At this stage the learned counsel for respondent no.7 submits that another legatee under the will had filed a suit O.S.No.58/2016 and the plaint in that suit was rejected. If rejection of plaint in O.S.No.58/2016 has really got any bearing on the suit by the plaintiff herein, certainly the court can take note of it while deciding the suit on merits.
10. So far as the court fee is concerned, the learned counsel for the appellant has argued that he was not at all heard on that issue and if really the plaintiff has to pay the court fee, she will pay the same. Therefore the trial court may decide the issue relating to the court fee after hearing the plaintiff and the defendants again. With the above observations, I come to conclusion that impugned order needs to be set aside. Accordingly appeal is allowed. The impugned order is set aside. The suit is restored to the file of the trial court. The parties are directed to appear before the trial court on 29.01.2019. There is no order as to costs.
Sd/- JUDGE sd