IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION No.27047 OF 2017 (GM-CPC) AND WRIT PETITION No.36154 OF 2017 (GM-CPC) BETWEEN Smt. Lakshmamma, D/o. Late Shattigowda, Aged about 70 years, Resident of Chachapurada Koppalu, Shanthigrama Hobli, Hassan Taluk, Hassan District-573201, Hassan District.
…Petitioner (By Sri. Chethan B., Advocate) AND Sri. Rangegowda, Since dead by LRs., 1. Kumara, S/o. Late Rangegowda, Aged about 42 years, 2. Mangegowda, S/o. Late Rangegowda, Aged about 42 years, 3. Smt. Savithramma, W/o. Manjegowda, Aged about 43 years, 4. Smt. Rathnamma, W/o. C.R.Kumaraswamy, Aged about 45 years, All the respondents are resident of Chachapurada Koppalu, Shanthigrama Hobli, Hassan Taluk, Hassan District-573201. Hassan District.
…Respondents (By Sri. Bhojaraja, Advocate, for R2 & R3 – absent; R1 & R4 - served) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 24.02.2014 on I.A.No.3 in O.S.547/2012 on the file of the Hon’ble III Additional Civil Judge and JMFC., Hassan as per Annex-A and etc.
These Writ Petitions coming on for preliminary hearing ‘B’ group this day, the court made the following:
ORDER Heard the petitioner’s counsel. Counsel for respondents 2 and 3 is absent.
2. The petitioner is the plaintiff in O.S.547/2012 on the file of III Additional Civil Judge & JMFC, Hassan. Her suit is for partition. It appears that the first defendant executed two gift deeds in favour of one Savitramma and Rathnamma in respect of item no.1 of the plaint schedule property. Therefore, the plaintiff made an application-
I.A.3 under Order I Rule 10 CPC to implead the donees under the gift deed. The said application was dismissed giving the reason that the plaintiff did not produce the document evidencing the gift made by the second defendant in favour of the proposed defendants. Again, the plaintiff made an application as per I.A.4, under Order I Rule 10 CPC to implead the donees producing mutation register extract standing in the name of the proposed defendants to evidence the gift. The said application was dismissed assigning the reasons that the plaintiff did not challenge the order on I.A.3 and that the copy of the gift deed was not produced. Therefore, the plaintiff has filed these Writ Petitions challenging the orders on I.A nos. 3 and 4.
3. I do not think that the trial court is justified in rejecting the applications. The suit is for partition. Plaintiff came to know during the pendency of the suit that there was already a gift deed in favour of the proposed defendants. The donees are proper parties to the suit as their presence will help the trial court to decide the suit effectively and completely and avoid future litigations. The entry in the mutation register could be looked into for the limited purpose of deciding the application as it has a presumptive value. Another important thing to be mentioned here is that the petitioner has produced certified copies of gift deed issued by the trial court itself. This shows that the copies of the gift deed could have been produced by the petitioner in the trial court. Without looking into these documents if the trial court dismissed the applications, it is nothing but an error. Therefore, Writ Petitions are allowed. Since both the applications are for same purpose, it is enough if one of them is allowed; therefore the later application, I.A.4 is allowed. The petitioners are permitted to implead proposed defendants in the suit.
Sd/- JUDGE ckl