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Sri K A Kumar Wadiyar vs Smt K S Divyashree And Others

High Court Of Karnataka|18 December, 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF DECEMBER, 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT C.R.P. No.504/2019 BETWEEN:
SRI. K.A. KUMAR WADIYAR S/O LATE SRI AJJAPPA WADIYAR AGED ABOUT 50 YEARS 1ST CROSS, LAXMISHA NAGAR KADUR TOWN AND POST – 577548.
...PETITIONER (BY SRI.A RAVISHANKAR, ADV.) AND:
1. SMT. K.S. DIVYASHREE W/O K.N.VINAY D/O LATE K.A.SHIVAKUMAR WADIYAR AGED ABOUT 30 YEARS R/O VARUN NIVAS BEHIND SUBBAIAH HOSPITAL BANASHANKARI EXTENSION SHIMOGA CITY-577201.
2. SRI. K.A.SHANTHAPPA WADIYAR S/O LATE SRI AJJAPPA WADIYAR AGED ABOUT 65 YEARS R/O. OPP. AXIS BANK KADUR TOWN AND POST-577548.
3. SRI. K.A.UMESH WADIYAR S/O LATE SRI AJJAPPA WADIYAR AGED ABOUT 52 YEARS R/O. 2ND CROSS LAXMISHA NAGAR KADUR TOWN AND POST-577548.
4. SMT. K.A.HEMAVATHI W/O H.R.THIPPESH D/O LATE SRI AJJAPPA WADIYAR AGED ABOUT 61 YEARS R/O NEAR APOLLO HOSPITAL KUVEMPU NAGAR MYSORE CITY-570023.
5. SMT. K.A.LAXMIDEVI W/O HOCHIHALLI H.V.GOVINDAPPA D/O LATE AJJAPPA WADIYAR AGED ABOUT 59 YEARS RETIRED HEAD MASTER NEAR CONVENT SCHOOL PANCHANAHALLI ROAD BELGUR AT AND POST HOSADURGA TALUK CHITRADURGA DISTRICT-577597.
6. SMT. K.A.REVATHI NAGARAJ W/O NAGARAJ D/O LATE SRI AJJAPPA WADIYAR AGED ABOUT 63 YEARS REITED ASST. EXECUTIVE ENGINEER DOOR NO.161, 4TH MAIN ROAD WARD NO.132, B.C.C. LAYOUT CHANDRA LAYOUT, 1ST STAGE VIJAYANAGAR, BANGALORE-560040.
7. SMT. MEGHASHREE D/O K.A. SHANTHAPPA WADIYAR AGED ABOUT 32 YEARS R/O OLD BUS STAND ROAD OPP. AXIS BANK KADUR TOWN AND POST-577548.
8. SRI. K.R. RAVIKUMAR S/O RAMANNA AGED ABOUT 40 YEARS R/O SUBHASH NAGAR PURASABHA MEMBER KADUR TOWN AND POST-577548.
9. SRI. BHARATH SINGH S/O GOVIND SINGH AGED ABOUT 40 YEARS R/O HALEPETE OLD POST OFFICE ROAD KADUR TOWN AND POST-577548.
10. SRI. PEEP SINGH S/O JAGATH SINGH AGED ABOUT 45 YEARS R/O HALEPETE OLD POST OFFICE ROAD KADUR TOWN AND POST-577548.
11. SMT.HALAMMA @ AHALYA W/O LATE K.A.SHIVAKUMAR WADIYAR AGED ABOUT 49 YEARS R/O OLD POST OFFICE ROAD HALEPETE KADUR TOWN AND POST- 577548.
12. SMT. SIDDAMMA W/O LATE AJJAPPA WADIYAR AGED ABOUT 80 YEARS C/O K.A.SHANTHAPPA WADIYAR R/O OLD BUS STAND ROAD OPP. AXIS BANK KADUR TOWN AND POST 577548.
…RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED 06.11.2019 PASSED ON IA NO.3 IN OS.NO.45/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AT KADUR DISMISSING IA NO.3 FILED UNDER ORDER 7 RULE 11(d) OF CPC., FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Defendant No.3 in O.S.No.45/2014 is before this Court under Section 115 of the Code of Civil Procedure, 1908, challenging the order dated 06.11.2019 passed on I.A.No.3, by which, the application filed under Order VII Rule 11(d) of CPC is rejected.
2. The petitioner herein is defendant No.3 and respondent No.1 is the plaintiff in the above said suit, in which, the following prayer is sought:
(i) For partition and separate possession of 1/7th share along with her mother i.e., defendant No.11 in the joint family properties shown in the schedule by metes and bounds.
(ii) The alleged partition deed affected between the defendant No.1 to 6 and 12 is not binding on the plaintiff.
(iii) For past and future mesne profits and accounts from the date of suit under Order 20 Rule 12 of CPC.
(iv) Grant such other reliefs as this Hon’ble court deems fit to grant under the circumstances of the case in the ends of justice.
3. On appearance, the petitioner/defendant No.1 filed his written statement. Based on the written statement, issues are framed. The petitioner/defendant No.1 also filed an application under Order VII Rule 11 of CPC praying to reject the plaint on the ground that the suit would not be maintainable, in view of the registered partition dated 03.11.1992. Paragraph 3 of the plaint would also indicate the partition having taken place earlier. The plaintiffs oppose the application by filing the objections stating that signatures on the partition deed has been obtained by fraud, which requires full- fledged trial. The trial Court under the impugned order rejected the application. Hence, defendant No.3 is before this Court in this revision petition.
4. Heard the learned counsel for the petitioner and perused the material on record.
5. Learned counsel for the petitioner would submit that the suit itself would not be maintainable in view of the fact that, earlier the parties to the suit had entered into registered partition on 03.11.1992. The plaint averment at paragraph 3 would disclose the partition among the plaintiff and defendants wherein the plaintiff had received a sum of Rs.2,26,000/- as her and her mother’s share. From the plaint averments, it is submitted that the suit would not be maintainable and prays for allowing the application. Further, it is his submission that the plaintiff has not sought for cancellation of the said partition deed. On the other hand, it is the prayer of the plaintiff to declare that the partition effected between defendant Nos.1 to 6 and 12 is not binding on the plaintiff.
6. Having heard the learned counsel for the petitioner and on perusal on the material on record, the only point which falls for consideration is as to “whether the order passed by the trial Court rejecting the application filed under Order VII Rule 11 (d) of CPC is justified?”
7. Answer to the above point would be in the affirmative for the following reasons:
The suit is one for partition and separate possession of 1/7th share and to declare that the alleged partition deed is not binding on the plaintiff. The plaint averments at paragraphs 2, 3 and 4 read as follows:
(2) The properties situated at Kadur town and taluk which are more fully described in the schedule here below are the ancestral joint family properties of the plaintiff and defendant No.1 to 6 and the husband of defendant No.11. To show that the schedule properties are the joint family properties, the RTC Pahani, M.R., R.R., I.L.R., Purasabha Khatha extracts, Genealogical Tree are produced herewith.
(3) The father of the plaintiff has died leaving behind the defendant No.11 and the plaintiff when she was aged about 3 years as his legal heirs. Further the father of the plaintiff was entitled to equal share as that of defendant No.1 to 6. However, taking advantage of the ignorance of the mother of the plaintiff i.e defendant No.11, the defendant No.1 to 6 and 12 have obtained certain signatures to certain documents and created a document alleged to the partition deed and got registered the same in the office of the Sub-Registrar at Kadur without giving anything to the defendant No.11 i.e. mother of the plaintiff much less than 2 lakhs. Now the defendant No.11 i.e the plaintiff is living at the mercy of her paternal home.
(4) Further the defendant No.7 being the daughter of the defendant No.1 has also been given property from out of the joint family property by way of a gift and the defendant No.8 to 10 have purchased certain properties from the ancestral joint family properties to the detriment of the plaintiff without her consent. The alleged documents for executed by the defendant Nos. 1 to 6 and 12 are not binding on the plaintiff as she was a minor when the said documents came into being. Further defendant No.1 to 6 and 12 have also taken advantage of the ignorance of defendant No.11 i.e mother of the plaintiff and obtained her signatures to various documents which is not binding on the plaintiff. Further the defendant No.11 has also not taken care to protect the right and interest of the plaintiff so far as the ancestral joint family properties are concerned.
8. A reading of the above portion of the plaint would indicate that the partition deed is challenged on the ground of fraud. When it is alleged that the partition deed is a created one by obtaining signatures fraudulently, the said allegation needs trial. It is settled position of the law that while considering the application filed under Order VII Rule 11 of CPC, the same is to be considered only on the averments made in the plaint and the defence or written statement averments would be of no relevance. Thus, I am of the view that the order passed by the trial Court is neither perverse nor erroneous to suffer from any jurisdictional error. However, it is open for the defendant No.1/petitioner herein to seek for framing of any additional issue with regard to maintainability of suit or any other. Accordingly, the revision petition is dismissed.
Sd/- JUDGE mpk/-* CT:bms
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  • S G Pandit