IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.1525 OF 2019 (CPC) BETWEEN:
Smt. Prabhavathi, D/o. Sri. Narayanappa, W/o. Sri. S.Shankar, Aged about 55 years, R/at No.6, 2nd Cross, Verma Layout Extension, Opp. RR Towers, Amruthnagar, Bengaluru-560024.
(By Sri. A.Ravishankar, Advocate for Sri. Sreedhara B.E., Advocate) AND:
1. Sri. S.Muniyappa, S/o. Late Sheethappa, Aged about 94 years, R/at Mudugurki Village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District.
2. Smt. Munisonnamma, W/o. Sri. Narayanappa, Aged about 79 years, R/at Mudugurki Village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District.
3. Smt. Bhagyamma, D/o. Sri. Narayanappa, …Appellant W/o. Late Nagarajappa, Aged about 61 years, R/at C/o. Muniyappa, Mudugurki Village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District.
4. Sri. Rajanna, S/o. Sri. Narayanappa, Aged about 51 years, R/at No.C-13, UAS Quarters, Hebbal, Bengaluru-560024.
5. Smt. Bharathi, D/o. Sri. Narayanappa, W/o. Sri. S.C.Gopalaswamy, Aged about 58 years, 6. Sri. S.C.Gopalaswamy, Father name not known to the plaintiff Aged about 68 years, Sl. No.5 & 6 are residing at Savukanahalli, Bidalur Post, Devanahalli Taluk, Bengaluru Rural District.
7. Sri. Shivakumar, S/o. Sri. Narayanappa, Aged about 54 years, R/at Mudugurki Village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District.
8. The Special Land Acquisition Officer & Competent Authority, National Highways Authority of India, Neerbhavi Kempanna Layout, Hebbal, Bengaluru-560024.
9. Sri. Prabhuraj, S/o. Sri. Changamaraju, Aged about 58 years, 10. Smt. Padmavathi, W/o. Sri. Prabhuraj, Aged about 50 years, Sl.No.9 & 10 are residing at No.295, 2nd Main Road, 3rd Phase, J.P.Nagar, Bengaluru-560078.
11. Sri. H.S.Narayanappa, S/o. Late Seethappa, Aged about 88 years, R/at Mudugurki Village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District.
12. Sai Panchami Developers Pvt. Ltd., (A Company incorporated under the Companies Act, 1956) Having its office at No.517, 60’ feet Road, ‘F’ Block, Sahakaranagar, Bengaluru-560092.
Represented by its Managing Director, Sri. Harinatha Reddy, S/o. Late Venkataramanappa, Aged about 58 years, 13. Sir Bhagyalakshmi Developers, (A partnership firm duly constituted under The Indian partnership Act, 1932) Having its office at No.8-472/6, Flat No.F-1, G.K.Enclave, Ravulapalem Pekeru Village, Pamarru Madalam, East Godavari District, Andhra Pradesh.
Represented by its Managing Partner Sri. Chalagalla Gopalakrishna, S/o. Venkataramanayya, Aged about 60 years, 14. Sri. James Pinto S/o. Late Rosario Pinto, Aged about 65 years, R/at No.31, Bloom Field Garden, Vidyaranyapura, Bengaluru-560097.
(By Sri. Sreenidhi V., Advocate for R1 & R2) ... Respondents This MFA is filed under Order 43 Rule 1(r) of CPC 1908, against the order dated 16.01.2019 passed on I.A.Nos.3 & 8 in O.S.No.37/2011 on the file of the Senior Civil Judge & JMFC, Devanahalli, rejecting the I.A.Nos.3 & 8 filed by the plaintiff under Order 39 Rules 1 and 2 read with Section 151 of CPC.
This MFA coming on for admission this day, the Court delivered the following:
JUDGMENT This appeal is filed by the plaintiff being aggrieved by dismissal of her applications IA Nos.3 and 8 filed under Order 39 Rules 1 and 2 CPC.
2. Heard the appellant’s counsel and the respondents’ counsel.
3. According to pedigree given in the plaint, Munishamappa was the propositus. Narayanamma and Munisonnamma are the two daughters of Munishamappa. Munisonnamma is defendant No.2. Plaintiff is the daughter of this Munisonnamma. The plaintiff has claimed partition in the suit schedule properties stating that they are all ancestral properties belonging to joint family consisting of herself and defendant Nos.1 to 5 and 7. In para 7(b) of the plaint, it is stated that the defendant Nos.1 and 2 are claiming right and interest in respect of the suit schedule properties under a Will dated 10.04.1966 and a deed of cancellation of the Will dated 17.08.1966. It is her case that the suit schedule properties belonged to the joint family and that she has legitimate share in it. She has also sought for declaration that two sale deeds dated 21.09.2011 executed by defendant Nos.1, 2, 4, 5 and 7 in favour of defendant Nos.9 and 10 do not bind her interest and the Will dated 10.04.1966 and the deed of cancellation dated 17.08.1966 are illegal and not sustainable in law.
4. The defendants contested the suit. They deny the plaintiff’s right to claim partition.
5. The learned trial judge has opined that the plaintiff is not claiming share in the ancestral properties of her father Narayanappa and on the other hand she is claiming properties belonging to her mother Munisonnamma, who is still alive. The documents produced by the defendants show that the deceased Munishamappa being owner of the schedule properties executed a Will in favour of the first defendant by bequeathing the suit schedule properties in favour of first and second defendants. On the basis of this Will, the name of first and second defendants are entered in the revenue records. The defendant Nos.1, 4 and 7 have already alienated item No.7 of the suit schedule property in favour of defendant No.14 and therefore the application for temporary injunction in respect of item No.7 property has become infructuous. It is further alleged that defendant Nos.1 and 2 have acquired title to the suit schedule properties way back in the year 1966 by virtue of the Will and cancellation deed and therefore the plaintiff has not made out prima-facie case.
6. Learned counsel for the appellant argues that the trial Court has not understood the case of the plaintiff. His submission is that on 17.08.1966 Munishamappa cancelled the Will dated 10.04.1966 in respect of ‘C’ schedule property described in the Will. The ‘D’ schedule property described in the Will had been left for the enjoyment of his servant and it was a limited bequeath and after the death of his servant, it reverted to the possession of the executor of the Will. Therefore the plaintiff claims partition in ‘C’ and ‘D’ schedule properties of the Will and not in respect of ‘A’ and ‘B’ schedule properties. The reasons given by the trial Court for rejecting the applications are not justifiable. There is a threat of alienation of this property and therefore the trial Court should have granted injunction.
7. Learned counsel for the respondents argues that after cancellation of the Will, the properties in ‘C’ and ‘D’ schedules went back to the possession of the executor Munishamappa. After his demise his two daughters namely Narayanamma and Munisonnamma succeeded to these properties. If at all the plaintiff is entitled to any share, it is only in her mother’s properties. Since her mother is still alive, she cannot maintain a suit for partition. So far as item No.7 of the plaint schedule is concerned, it was alienated long back and therefore the trial Court’s observation is correct. He argues that the trial Court has applied its mind to come to conclusion that there is no prima-facie case and this appeal is devoid of merits.
8. If the entire case is analized, it is possible to say that the trial Court has not committed any error. Under the Will executed by Munishamappa, second defendant Munisonnamma was given ‘B’ schedule properties. There is no dispute with regard to it. After execution of the deed of cancellation, both ‘C’ and ‘D’ schedule properties described in the Will went back to the possession of Munishamappa and after his demise his two daughters, namely, Narayanamma and Munisonnamma succeeded to these properties. Therefore if at all the plaintiff has got any right, it is only in respect of the property that her mother got by way of succession to ‘C’ and ‘D’ schedule properties after the death of Munishamappa. Since her mother is alive, she cannot claim partition. For these reasons, I do not think that the trial Court has committed any error in dismissing the applications. Appeal is devoid of merits. Therefore appeal is dismissed.
KMV/-
SD/- JUDGE