IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JULY, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.32325/2017 C/W WRIT PETITION NO.32327/2017(GM-CPC) IN WP. NO.32325/2017 BETWEEN:
SMT. M. G. VANAJAKSHI, AGED ABOUT 71 YEARS, W/O SRI SANNAYYA HEGDE, KALAKATTE, POST:DAREKOPPA-577139, SHRINGERI TALUK, CHIKKAMAGALUR DISTRICT, ... PETITIONER (BY SRI CHANDRANATH ARIGA K., ADVOCATE) AND:
1. MRS. VASANTHI, AGED ABOUT 71 YEARS, W/O LATE SRI PUTTAPPA HEGDE, R/AT RSHYASANGHA NILAYA, CHENNAPPA LAYOUT, NEAR SHIVAMOGGA MEDICALS, SHIVAMOGGA-577201.
2. SMT. SUSHEELA, AGED ABOUT 66 YEARS, W/O LATE SRI RAMAPPA HEGDE, R/AT NEAR P.W.D.QUARTERS ROAD, VIDHYARANYAPURA VILLAGE, SRINGERI TALUK, CHIKKAMAGALURU DISTRICT-577139.
3. DR. B. KALASAPPA HEGDE, S/O LATE SRI VENKAPPA HEGDE, AGED ABOUT 73 YEARS, RESIDING AT JAGADAMBA CLINIC, SAVALANGA ROAD, SHIMOGGA-577201.
4. P.M. SEBASTIAN, AGED ABOUT 64 YEARS, S/O MR. MANI THOMAS, POORNAKOTTEE HOUSE, KANJIRATHANAM POST,-686603 KOTTAYAM DISTRICT, KERALA, 5. M.A. ANTHONY, AGED ABOUT 75 YEARS, S/O MR. ANTHONY, NO.MUKKANIKAL HOUSE, ARAKEZHAI, MANJERI POST-676121. ERNAD TALUK, MALLAPURAM DISTRICT, KERALA.
6. SANDEEP JAYANTH SUKANTHKAR, AGED ABOUT 47 YEARS, S/O MR. JAYANTH NARAYAN, NO.1301, HURRAH, CITY OF JOY, J.S.D ROAD, MULUND (WEST), MUMBAI-400080.
7. SMT. M.G. VINOD, 58 YEARS, W/O MR. NANJUNDE GOWDA, MARASANIGE VILLAGE, KALASA POST,MUDIGERE TALUK-577124. CHIKMAGALUR DISTRICT.
8. SMT. MYTHILI, 28 YEARS, D/O SUDHAKAR HEGDE, 9. KUM. PHANISHREE, AGED ABOUT 25 YEARS, D/O SUDHKAR HEGDE, 10. SMT. VRINDA, AGED ABOUT 49 YEARS, W/O SUDHKAR HEGDE, RESPONDENTS 8,9,10 ARE R/AT MUDUBA VILLAGE, SHRINGERI TALUK-577139 CHIKMAGALUR DISTRICT.
... RESPONDENTS (BY SRI K. PRASAD HEGDE, ADVOCATE FOR C/R1, R2 AND R3; VIDE ORDER DATED 27.07.2017 NOTICE ON R4 TO R10 IS DISPENSED WITH) **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 8.7.2017 ON I.A.19 IN O.S.38/2015 AT ANNEXURE-A PASSED BY THE 2ND SENIOR CIVIL JUDGE & JMFC, CHIKKAMAGALUR.
IN WP. NO.32327/2017 BETWEEN:
SMT. M. G. VANAJAKSHI, AGED ABOUT 71 YEARS, W/O SRI SANNAYYA HEGDE, KALAKATTE, POST:DAREKOPPA-577139, SHRINGERI TALUK, CHIKKAMAGALUR DISTRICT, ... PETITIONER (BY SRI CHANDRANATH ARIGA K., ADVOCATE) AND:
1. MRS. VASANTHI, AGED ABOUT 71 YEARS, W/O LATE SRI PUTTAPPA HEGDE, R/AT RSHYASANGHA NILAYA, CHENNAPPA LAYOUT, NEAR SHIVAMOGGA MEDICALS, SHIVAMOGGA-577201.
2. SMT. SUSHEELA, AGED ABOUT 66 YEARS, W/O LATE SRI RAMAPPA HEGDE, R/AT NEAR P.W.D.QUARTERS ROAD, VIDHYARANYAPURA VILLAGE, SRINGERI TALUK, CHIKKAMAGALURU DISTRICT-577139.
3. DR. B. KALASAPPA HEGDE, S/O LATE SRI VENKAPPA HEGDE, AGED ABOUT 73 YEARS, RESIDING AT JAGADAMBA CLINIC, SAVALANGA ROAD, SHIMOGGA-577201.
…RESPONDENTS (BY SRI K. PRASAD HEGDE, ADV., FOR C/R1,R2 AND R3) **** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 8.7.2017 ON I.A.20 IN O.S.38/2015 VIDE ANNEXURE-A PASSED BY THE SENIOR CIVIL JUDGE AND CJM CHIKKAMAGALUR.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R These writ petitions are filed by plaintiff No.1 against the common order dated 8.7.2017 made in O.S. No.38/2015 on the file of the II Additional Senior Civil Judge & JMFC, Chikkamagalur dismissing I.A. Nos.19 and 20 filed by the plaintiffs under Order 1 Rule 10 of Code of Civil Procedure.
2. Since these two writ petitions arising out of the common order passed by the trial Court, they are taken up together for disposal.
3. The plaintiffs filed the suit for partition of ‘A’ schedule into seven equal shares and to allot one such share to each of the plaintiffs and to set aside the earlier partition deed, contending that the suit schedule properties are the joint family properties of the plaintiffs and the defendants and there was no partition. The defendants filed the written statement and according to the defendants, the plaintiffs are not members of the joint family and the suit filed by the plaintiffs for partition is not maintainable and therefore sought for dismissal of the suit.
4. After completion of arguments of the plaintiffs, the plaintiffs filed I.A. No.19 under Order 1 Rule 10 of Code of Civil Procedure to implead the proposed defendant Nos.12 to 18 and I.A. No.20 under Order 1 Rule 10 of Code of Civil Procedure to implead the legal representatives of the proposed defendant No.13 contending that the proposed defendants are purchasers of portions of the suit schedule properties from the defendants and therefore they are necessary and proper parties to the suit. The said applications are filed in view of the defence taken by the contesting defendants in the written statement. The defendants have not filed objections to the said I.As. The proposed defendant Nos.14 and 18 represented by counsel submits that they have no objection. The proposed defendant Nos.16 and 17 remained absent. The trial Court considering the applications, by the impugned orders dismissed the applications holding that the proposed defendants are not necessary and proper parties to the proceedings to resolve the dispute between the parties since the suit is for partition and separate possession. Therefore the present writ petitions are filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri K. Chandranath Ariga, learned counsel for the petitioner – plaintiff contended that the impugned order passed by the trial Court rejecting I.A. Nos.19 and 20 is erroneous and contrary to the material on record. He further contended that in view of the specific defence taken by the contesting defendants in the written statement, I.A. Nos.19 and 20 were filed by the plaintiff to implead the proposed defendants, who are purchasers of the suit schedule properties from the defendants prior to filing of the suit. Therefore they are necessary and proper parties to the suit and the same has not been considered by the trial Court. He further contended that in view of the specific objections raised in the written statement that if the purchasers of the suit schedule properties from the defendants are not impleaded, the trial Court has to dismiss the suit mainly on that ground alone, the present applications are filed by way of abundant caution. Hence the trial Court ought to have allowed the applications and by mere allowing of the applications for impleading, no prejudice would be caused to the defendants. Therefore he sought to quash the impugned orders passed by the trial Court by allowing the present writ petitions.
7. Per contra, Sri K. Prasad Hegde, learned counsel for Respondent Nos.1 to 3 sought to justify the impugned orders. He strenuously contended that the suit filed is for partition and separate possession and hence the proposed defendants are not necessary and proper parties to the suit and therefore the trial Court rightly rejected the said applications. The same is in accordance with law and this Court cannot interfere with the same under Article 227 of the Constitution of India. Therefore he sought to dismiss the petitions.
8. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiffs filed the suit for partition of ‘A’ schedule properties into seven equal shares and to allot one such share to each of the plaintiffs and to set aside the earlier partition deed, contending that the suit schedule properties are the joint family properties of the plaintiffs and the defendants and there was no partition. The defendants filed the written statement and according to the defendants, the plaintiffs are not members of the joint family and the suit filed by the plaintiffs for partition is not maintainable. It is also not in dispute that the defendants by filing the written statement have specifically raised an objection that they have alienated some of the portions of the suit schedule properties to the proposed defendants and they have not been impleaded and therefore the plaintiffs filed I.A. No.19 to implead the proposed defendant Nos.12 to 18 and I.A. No.20 to implead the legal representatives of the proposed defendant No.13.
9. It is well settled that in a partition suit, the plaintiffs have to establish that the suit schedule properties are the joint family properties of the plaintiffs and the contesting defendants and if any of the defendants alienate the properties prior to filing of the suit, the purchasers/proposed defendants always step into the shoes of their vendor. It is for the plaintiffs to prove that the suit schedule properties are the joint family properties and they are entitled to share. The trial Court taking into consideration the said principle recorded a specific finding that admittedly the plaintiffs have filed the suit for partition; According to the plaintiffs, the proposed defendant nos.16 to 18 are none other than the wife and children of defendant No.4 – Sri M.G. Sudhakar Hegde; The defendant No.4 appeared before the Court through his learned counsel and filed written statement representing his entire family consisting of his wife and children; When defendant No.4 already representing his entire family, question of impleading his wife and children does not arise; Accordingly the proposed defendant Nos.16 to 18 being the wife and children of defendant No.4 are also not necessary parties in this suit. The trial Considering the entire material on record and taking into consideration that the suit filed is for partition and separate possession rightly come to the conclusion that the proposed defendants are not necessary and proper parties to the present suit and accordingly dismissed the applications.
10. It is well settled that a suit for partition cannot be dismissed on the ground of non-joinder of the third parties/strangers to the family. A suit for partition can be dismissed only if the members of the family who have an interest in the property are not made parties as they are the only necessary parties to the suit. If members of a joint family file a suit for partition without impleading alienees and collude and get a decree passed affecting the interest of alieness, the said collusive decree being void, as alienees being not made parties and such a decree does not in any way affect their interests. But, a suit for partition cannot be dismissed on that ground. My view is fortified by the Division Bench judgment of this Court in the case of S.K. LAKSHMINARASAPPA, SINCE DECEASED BY HIS L.Rs.
.vs. SRI B. RUDRAIAH AND OTHERS reported in ILR 2012 KAR 4129.
11. For the reasons stated above, the impugned order passed by the trial Court is just and proper. The same is in accordance with law. The petitioners have not made out any ground to interfere with the impugned order passed by the trial Court in exercise of powers of this Court under Article 227 of the Constitution of India.
However, it made clear that the trial Court shall not dismiss the suit of the plaintiffs on the ground that the proposed defendants are not impleaded in the suit. It is further made clear that the trial Court shall proceed with the suit on the basis of the oral and documentary evidence on record and decide the suit strictly in accordance with law.
With the above observations, the writ petitions are disposed of.
Sd/-
JUDGE Gss/-