IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JANUARY 2019 PRESENT THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR REGULAR FIRST APPEAL NO.2073 OF 2016 BETWEEN:
1. SMT.PEDDAKKA AGED ABOUT 80 YEARS, D/O LATE DODDAVENKATASWAMY W/O LATE VENKATAPPA, 2. SRI.VENKATAPPA AGED ABOUT 55 YEARS, S/O LATE VENKATAPPA & SMT.VENKATAMMA, 3. SRI.C.MUNIYAPPA AGED ABOUT 56 YEARS, S/O LATE CHINNAIAH & SMT.RAMAKKA, 4. SRI.VENKATAPPA AGED ABOUT 53 YEARS, S/O NARAYANAPPA ALL R/AT HEGGANAHALLI VILLAGE, KUNDA HOBLI, DEVANAHALLI TALUK, BANGALORE DIST - 562 110.
5. KRISHNA AGED ABOUT 37 YEARS, S/O LATE VENKATASWAMY R/AT DOOR NO.789, BHOVI COLONY, 5TH A CROSS, JALAHALLI, BENGALURU – 560 013 6. M. DODDAPPA AGED ABOUT 47 YEARS, S/O C.R.MUNIYAPPA 7. MUNIYAKKA AGED ABOUT 43 YEARS, D/O C.R.MUNIYAPPA 8. MANJULA AGED ABOUT 40 YEARS, D/O C.R.MUNIYAPPA 9. MUNILAKSHMI AGED ABOUT 38 YEARS, D/O C.R.MUNIYAPPA 10. MANJULA AGED ABOUT 35 YEARS, D/O C.R.MUNIYAPPA APPELLANTS NO.6 TO 10 ARE R/AT DOOR NO.783, RAMA BHOVI COLONY, 4TH CROSS, JALAHALLI, BENGALURU – 560 103. ... APPELLANTS (BY SRI. D R RAVISHANKAR, ADV.) AND:
1. SMT. JANAKAMANI AGED ABOUT 48 YEARS, W/O V.S.ARAVINDAN R/AT NO.323, 10TH MAIN, HMT COLONY, R.T. NAGAR, BANGALORE - 560 032.
2. SRI.RAMANUJAM AGED ABOUT 45 YEARS, S/O V.R.SINGARACHARI, R/AT NO.104, P & T COLONY, R.T.NAGAR, BANGALORE - 32.
3. M/S. NAM ESTATES PVT. LTD., NO.150, 1ST FLOOR, EMBASSY POINT, INFANTRY ROAD, BANGALORE - 560 001 BY ITS DIRECTOR MR.B.S.NARAYAN 4. SRI.MARAPPA AGED ABOUT 70 YEARS, S/O DODDA VENKATASWAMY 5. SMT.MUNIRATHNAMMA AGED ABOUT 43 YEARS, W/O MARAPPA 6. PEDDANNA AGED MAJOR, S/O MARAPPA, GRAND SON OF PEDDANNA 7. VENKATASWAMY AGED ABOUT MAJOR, S/O MARAPPA, GRAND SON OF PEDDANNA, 8. VENKATASWAMY AGED ABOUT 50 YEARS S/O LATE NARAYANAPPA 9. SMT.VENKATAMMA AGED ABOUT 65 YEARS D/O DODDAVENKATASWAMY 10. NARAYANAPPA AGED ABOUT 43 YEARS S/O VENKATAMMA 11. VENKATESH S/O VENKATAMMA, AGED ABOUT 37 YEARS RESPONDENTS NO.4 TO 11 ARE R/AT HEGGANAHALLI VILLAGE, KUNDA HOBLI, DEVANAHALLI TALUK, BANGALORE DIST – 562 110 12. P.BASAVARAIAH AGED ABOUT MAJOR, S/O LATE VEERA RAMACHANDRAPPA R/AT:FLAT NO.102,"A"BLOCK, MALLA REDDY TOWN, MADEVA NAGAR, HYDERABAD – 6012321 ... RESPONDENTS (BY SRI. CHANDRASHEKAR PATIL, ADV. FOR R1 TO R3 ) THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE ORDER DATED 15.11.2016 PASSED ON IA NO.8 IN OS NO.157/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DEVANAHALLI, ALLOWING THE IA NO.8 FILED U/O 7 RULE 11(D) R/W SEC.151 OF CPC., FOR REJECTION OF PLAINT.
THIS RFA COMING ON FOR ORDERS, THIS DAY, NARAYANA SWAMY J., DELIVERED THE FOLLOWING:
J U D G M E N T Plaintiff No.1 and the mother of the plaintiff No.2 claim to be the daughters of the deceased Dodda Venkataswamy. They filed a suit for partition. Their case before court below is to partition the property of their father which is said to be the self- acquired property and claim is made under Section 8 of the Hindu Succession Act, 1956.
2. During the pendency of the suit, the purchasers of the suit schedule property, who are the defendants, made an application under Order VII Rule 11 of the of the Code of Civil Procedure to reject the plaint on the ground that the property in question was sold prior to amendment to Section 6 of the Hindu Succession Act. Considering the case of the purchasers who are the defendants, the application filed for rejecting the plaint has been allowed and the suit has been rejected. Against the same, this appeal is by the plaintiffs.
3. Today the case is posted for consideration of IA.I of 2015 for Temporary Injunction. The learned counsel for the parties made their submissions. The submissions are, that the application filed under Order VII Rule 11 of the Code of Civil Procedure for rejection of plaint on the ground that the property was sold prior to 2004 is a misrepresentation since the very case of the plaintiffs is that the property of Dodda Venkataswamy was a self-acquired property. It is not their pleading and case that their claim is under Section 6 of the Hindu Succession Act and the foundation laid is to consider under Section 8 of the Hindu Succession Act. That being the case, the finding of the Trial Court that the property is under Section 6 of the Hindu Succession Act is misnomer and contrary to law and fact. Under these circumstances, the learned counsel for both the parties submit that this appeal is to be allowed and remanded to the Court below for fresh consideration by restoring the Suit in OS No.157 of 2010 on the file of the Senior Civil Judge and JMFC at Devanahalli.
4. The learned counsel for the respondent further submits that while remanding the matter conditions have to be put for deciding the issue. The conditions, according to him, are consideration of the suit under Section 6 of the Hindu Succession Act; and a direction may be given to the Trial Court to dispose of the matter at an earliest since they are the purchasers of the property for valid sale consideration.
5. Heard the learned counsel for the parties. On the face of it, the Court below has committed an error for the reason that when an application is filed under Order VII Rule 11 of the Hindu Succession Act on the ground that the partition sought is under Section 6 of the said Act, then fundamentally it should have been examined as to whether the property which was sold in favour of the defendants was after December 2014 or prior to that and without deciding the very fundamental issue, allowing the application and rejecting the suit is contrary to law. Under these circumstances, rejection of the plaint is to be set aside and the application filed under Order VII Rule 11 also should have been rejected. Then the next question left would be to restore the suit. Accordingly it is restored on file. The submission of the learned counsel for the respondent to put some conditions for deciding the issue is whether under Section 6 or Section 8 of the Hindu Succession Act, is also misnomer. When the very foundation laid by the plaintiffs is under Section 8 of the Hindu Succession Act, the question of deciding the issue under Section 6 of the Act does not arise, unless and until, plaintiffs make a case. As long as there is no such claim, it is not open for the Court to frame the issue. With these observations, this appeal is allowed. Order dated 15th November 2016 passed in on IA No.8 in OS No.157 of 2010 by the Senior Civil Judge and JMFC at Devanahalli is set aside and Original Suit is restored to file.
6. Since the suit is restored to file, the parties are directed to appear before the Court below without waiting for any notice in this regard on 23rd February, 2019. The court shall hear the parties and decide the matter as expeditiously as possible, and at any event not later than six months. All contentions are kept open. In view of allowing this Appeal, IA.I of 2016 filed seeking temporary injunction does not arise for consideration.
Sd/- JUDGE lnn Sd/- JUDGE