IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH , 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.45975-45976/2018(GM-CPC) BETWEEN:
1. SRI. NARAYANAPPA, S/O. LATE DASAPPA & SMT. SIDDAMMA, AGED ABOUT 67 YEARS, R/A APPASANDRA VILLAGE, NARASAPURA HOBLI, KOLAR TALUK AND DISTRICT-563 101.
2. SRI. BATHEPPA, S/O. LATE DASAPPA, & SMT. SIDDAMMA, AGED ABOUT 51 YEARS, R/AT V.V. EXTENSION, KANNOORAHALLI ROAD, HOSKOTE, BENGALURU RURAL DISTRICT-563 101.
... PETITIONERS (BY SRI RAMAKRISHNA HEGDE, ADVOCATE FOR SRI VEERANNA G. TIGADI, ADVOCATE) AND:
1. SRI. VENKATARAMANA @ VENKATARAMA @ VENKATARAVANAPPA @ VENKATARAMANAPPA, S/O. LATE VENKATAPPA, AGED ABOUT 87 YEARS, R/O. APPASANDRA VILLAGE, NARASAPURA HOBLI, KOLAR TALUK AND DISTRICT-563 101.
2. SMT. MUNIYAPPA S/O. LATE MUNISWAMAPPA, AGED ABOUT 66 YEARS, R/AT KODIRAMASANDRA VILLAGE, KASABA HOBLI, KOLAR TALUK AND DISTRICT-563 101.
3. SMT. NARANAMMA D/O. LATE MUNISWAMAPPA, W/O. CHANDRAPPA, AGED ABOUT 61 YEARS, R/AT KURUBARAPET, KOLAR -563 101.
4. SMT. NARAYANAMMA D/O. LATE MUNISWAMAPPA, W/O. MUNIYAPPA, AGED ABOUT 49 YEARS, R/AT VEERAPURA VILLAGE, SIDLAGHATTA TALUK, CHIKABALAAPURA DISTRICT-563 101.
5. SRI. GANGAPPA S/O. LATE MUNISWAMAPPA, AGED ABOUT 46 YEARS, R/AT KODIRAMASANSRA VILLAGE, KASABA HOBLI, KOLAR TALUK AND DISTRICT-563 101.
6. SRI. SHANTHAKUMAR. N S/O. NARAYANASWAMY, AGED ABOUT 31 YEARS, 7. SRI. SHIVKUMAR. N S/O. NARAYANASWAMY, & LATE SUNANDAMMA, AGED ABOUT 27 YEARS, RESPONDENT 6 & 7 ARE RESIDENT AT NEAR MOTHER THERASA SCHOOL, MUNESHWAR NAGAR, KOLAR-563 101.
8. SMT. VENKATAMMA @ PADMA W/O. K. G. SHRINIVASAMURTHY, D/O. LATE CHIKKANNA, AGED ABOUT 45 YEARS, R/AT NO. 26, 5TH CROSS ROAD, 5TH MAIN, OPPOSITE TO DTI, GOWRIPET, KOLAR CITY-563 101.
9. SMT. BHARATHI @ DYAVAMMA W/O. SUBRAMANI, D/O. LATE CHIKKANNA, AGED ABOUT 40 YEARS, R/AT APPASANDRA VILLAGE, NARASAPURA HOBLI, KOLAR TALUK AND DISTRICT-563 101.
10. SMT. NARAYANAMMA, D/O. CHIKKANNA, W/O. MUNIYAPPA, AGED ABOUT 64 YEARS, R/AT KODIRAMASANDRA VILLAGE, KASABA HOBLI, KOLAR TALUK AND DISTRICT-563 101.
SMT. PUTTAMMA D/O. LATE DASAPPA, & SMT. SIDDAMMA, W/O. KRISHNAPPA, AGED ABOUT 45 YEARS, SINCE DEAD BY LRS., 11. NARAYANAPPA, S/O. KRISHNAPPA AND PUTAMMA, AGED ABOUT 50 YEARS, 12. PARVATHAMMA D/O. KRISHNAPPA AND PUTAMMA, AGED ABOUT 40 YEARS, 13. MANGAMMA D/O. KRISHNAPPA AND PUTAMMA, AGED ABOUT 38 YEARS, 14. AMAYAMMA D/O. KRISHNAPPA AND PUTAMMA, AGED ABOUT 36 YEARS, 15. PADMA D/O. KRISHNAPPA AND PUTAMMA, AGED ABOUT 34 YEARS, 16. LALITHA AGED ABOUT 30 YEARS, D/O. KRISHNAPPA AND PUTAMMA, RESPONDENT 11 TO 16 ARE R/AT KODIRAMASANDRA VILLAGE, KASABA HOBLI, KOLAR TALUK AND DISTRICT-563101.
17. SMT. MUNIVENKATAMMA @ LAKSHMI D/O. LATE NAGAMMA, AGED ABOUT 36 YEARS, R/A POLICE STATION ROAD, NEAR NAVEEN SHOP, NARASAPURA, KOLAR TALUK AND DISTRICT.
18. SMT. SHIVAMMA D/O. LATE NAGAMMA, W/O. BEERENDRA KUMAR, AGED ABOUT 34 YEARS, R/AT DOOR NO. 94, 10TH CROSS, MUNESHWARA EXTENSION, LAGGERE, BENGALURU-563263.
19. SMT. GEETHA @ MANGAMMA D/O. LATE NAGAMMA, W/O. MUNIRAJU, AGED ABOUT 29 YEARS, R/AT GILAGANJIGURLI VILLAGE, THYAVANAHALLI POST, KOLAR TALUK AND DISTRICT-563101.
20. SRI. SRINIVASA S/O. LATE NAGAMMA, AGED ABOUT 24 YEARS, R/AT APPASANDRA VILLAGE, NARASAPURA HOBLI, KOLAR TALUK AND DISTRICT-563101.
21. SMT. SAROJA D/O. NAGAMMA, W/O. BALARAJU, AGED ABOUT 26 YEARS, R/A H. S. GARDEN, NEAR SUBRAMANYASWAMY ARCH, CHIKKABALLAPUR-562101.
22. AKSHAY S/O. MUNIYAPPA & NAGAMMA, AGED ABOUT 23 YEARS, R/AT APPASANDRA VILLAGE, NARASAPURA HOBLI, KOLAR TALUK AND DISTRICT-563101.
23. SRI. NARAYANASWAMY S/O. LATE DYAVAMMA, AGED ABOUT 34 YEARS, R/AT KODIRAMASANDRA VILLAGE, KASABA HOBLI, KOLAR TALUK AND DISTRICT-563101.
24. SMT. PADMA D/O. DYAVAMMA, AGED MAJOR, W/O. RAVIKUMAR @ PAPAIAH, R/AT KODIRAMASANDRA VILLAGE, KASABA HOBLI, KOLAR TALUK AND DISTRICT-563101.
25. SMT. GOWRAMMA D/O. SIDDAMMA, W/O. KRISHNAPPA, AGED ABOUT 44 YEARS, GONAMAKANAHALLI, ANDERSONPET, K.G.F.-563113, 26. SMT. LAKSHMAMMA D/O. SIDDAMMA, W/O. KITTAPPA, AGED ABOUT 40 YEARS, R/AT KODIRAMASANDRA VILLAGE, KASABA HOBLI, KOLAR TALUK AND DISTRICT-563101.
27. SMT. NARAYANAMMA @ GUNDALAMMA W/O. BUJJI, AGED ABOUT 35 YEARS, FLOWER SELLER, OLD BUS STAND, KOLAR, R/AT KODIRAMASANDRA VILLAGE, KASABA HOBLI, KOLAR TALUK AND DISTRICT-563101.
28. SMT. LAKSHMIDEVAMMA D/O. LATE MUNISWAMAPPA, W/O. CHANDRAPPA, AGED ABOUT 54 YEARS, R/AT KODIRAMASANDRA VILLAGE, KASABA HOBLI, KOLAR TALUK AND DISTRICT-563101.
... RESPONDENTS **** THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 26.07.2018 IN O.S.NO.121/2014 PASSED BY I ADDITIONAL SENIOR CIVIL JUDGE, KOLAR AT ANNEXURE-F ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The defendant Nos.6 and 7 filed the present writ petitions against the order dated 26.7.2018 allowing the application filed under Order 1 Rule 10 of the Code of Civil Procedure by the impleading applicant who is said to be son of the original propositus Venkataapa referred to in paragraph-3 of the plaint.
2. The plaintiff filed the suit for partition and separate possession in respect of the suit schedule properties mainly contending that the suit schedule properties are the joint family properties of the plaintiffs and the defendants and there was no partition and therefore he is entitled to the relief as sought for.
3. The present petitioners/defendant Nos.6 and 7 filed his written statement denying the plaint averments and contended that the impleading applicant has relinquished his rights in favour of the defendant Nos.6 and 7 and sought for dismissal of the suit.
4. During the pendency of the suit, the applicant – Venkataramana filed an application under Order 1 Rule 10(2) of the Code of Civil Procedure to implead him as defendant No.21 on the ground that he is the son of late Venkatappa who is the propositus of family of the plaintiffs and the defendants. The suit schedule properties are the joint family properties of the plaintiffs and the defendants including the proposed defendant and he is necessary and proper party to the proceedings in a suit for partition and separate possession. The said application was resisted by the defendant Nos.6 and 7 and the plaintiffs. The trial Court considering the application and the objections by the impugned order dated 26.7.2018 allowed the application. Hence, the present writ petitions.
5. I have heard the learned counsel for the parties to the lis.
6. Sri Ramakrishna Hegde, learned counsel for the petitioners contended that the impugned order passed by the trial Court allowing the application filed by the impleading applicant is erroneous and contrary to the material on record. He would further contend that the impleading applicant has relinquished his share in favour of the petitioners/defendant Nos.6 and 7 and further the impleading applicant is the adopted son of Munishamappa and not the son of late Venkatappa and therefore he is not a necessary and proper party. The same has not been considered by the trial Court. He further contended that in a suit for partition, only the members of the joint family are entitled to come on record and not others and therefore he sought to allow the writ petitions.
7. Having heard the learned counsel for the parties, it is an undisputed fact that the suit filed by the plaintiffs for partition and separate possession in respect of the suit schedule properties, morefully described in the schedule to the plaint. The application for impleadment was filed mainly on the ground that the impleading applicant is the son of Venkatappa and the said Venkatappa is the propositus of the joint family morefully described in paragraph-3 of the plaint. The parties already existing in the suit are said to be the legal representatives of said Venkatappa’s children. The applicant has produced voters’ list copy for the year 1988 pertaining to Appasandra village at Vemgal, Kolar taluk. At Sl.No.27 of the said voters’ list, the name of the applicant is shown as son of Venkatappa. It is the objection of the defendant Nos.6 and 7 that the applicant is adopted son of Munishamappa and he had filed certain proceedings before the Court and had executed documents. The said contention is a matter of trial as rightly held by the trial Court.
8. The claim of the applicant that he is the son of the original propositus – Venkatappa cannot be nipped at the bud by refusing the opportunity to establish the very claim. Such a rejection at the inception would result in failure of natural justice. Ultimately it is for him to prove that he is the son of Venkatappa and that he is entitled to share. Prima facie the applicant has made out a case to implead him as party exercising the powers under Order 1 Rule 10 of the Code of Civil Procedure. Mere allowing the application for impleading no way prejudice the case of the present petitioners, who are defendant Nos.6 and 7. Ultimately, the plaintiffs who have filed the suit for partition has to establish their case based on the oral and documentary evidence on record. By mere allowing the application for impleading, no prejudice would be caused to the present defendants to establish their rights, if any as contended in the written statement.
9. In view of the aforesaid reasons, the impugned order passed by the trial Court allowing the application for impleading is just and proper. The petitioners have not made out any ground to interfere with the impugned order in exercise of power under Article 227 of the Constitution of India.
Accordingly, the writ petitions are dismissed.
Sd/-
JUDGE Gss/-