IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD R.F.A.No.414 OF 2016(PAR) BETWEEN:
1. Smt. Vasanthi R. Pai W/o. N.R.Pai Aged about 65 years R/at 205, Deepa Arcade 2nd Floor, Kapikad, Bijai Mangaluru – 575 004 (DK) 2. Smt. Shalini D. Shenoy W/o. A. Dayananda Shenoy Aged about 63 years R/at. 899, “Srinivas”
2nd B Cross, Hosakerehalli Banashakari III Stage Bengaluru – 560 085.
3. Smt. Nalini U. Pai W/o. Umesh Pai Aged about 62 years R/at “Umashri”
Behind Bokkapatna School Bokkapatna Mangaluru – 575 003 (DK) 4. Smt. Geetha N.Shenoy W/o. V. Nithyananda Shenoy Aged about 61 years R/at “Radhagopal”
Opp. Veerabhadra Temple Bokkapatna, Mangaluru-575006 (DK) 5. Smt. Sumana S. Shenoy W/o. H.Satish Shenoy Aged about 58 years R/at “Anagha”
Anegundi Road, Kapikod Bijai, Mangaluru-575003 (DK) …. Appellants (By Sri.K.R.Ganesh Rao, Advocate and Sri.Sanjeeva Belagali, Advocate) AND:
1. P.Dinakar Kamath S/o. Late. Pundalika Kamath Aged about 59 years R/at No.13-10-1347 “Tulasi Nivas”, New Field Street Near Mahammaya Temple Mangaluru-575001 (DK) 2. Smt. Jayanthi V. Kamath W/o. K.Venkatesh Kamath Aged about 64 years R/at Guthamasthan Lane Kodialbail, Mangaluru-575003 (DK) 3. Smt. Poornima A Shenoy W/o. Sri.Aravind Shenoy Aged about 56 years R/at. II Floor, “Sukrutham” 8th Main, 15th Cross Malleshwaram, Bengaluru-560 003. … Respondents (By Sri.Udaya Praksh.M., Advocate for C/R1: R2 and R3 are served but unrepresented) This RFA is filed under Section 96 of Civil Procedure Code, 1908 against the judgment and decree dated: 03.02.2016 passed in OS.No.111/2009 on the file of the Principal Senior Civil Judge, Mangalore, D.K., dismissing the suit for partition and separate possession.
This RFA, coming on for orders this day, NAGARATHNA J., delivered the following:
JUDGMENT This appeal is listed for orders to report settlement. Learned counsel for the respective parties submit that the parties have arrived at a settlement of the disputes and are reporting settlement by filing a joint memo. They further submit that the impugned judgment and decree of the Trial Court may be modified in terms of the settlement arrived at between the parties.
2. Plaintiffs in OS No.111/2009 have filed this appeal assailing dismissal of the suit by the Court of Principal Senior Civil Judge, Mangaluru, Dakshina Kannada by judgment and decree dated 03.02.2016. Being aggrieved by dismissal of the suit, plaintiffs have preferred this appeal. During the pendency of this appeal, parties have arrived at a settlement.
3. Learned counsel for the respective parties submit that the appeal may be disposed off in terms of the joint memo filed by the parties.
4. Appellants and respondent No.1 are present in Court. They have been identified by their respective counsel. Appellants and respondent No.1 submit that the appeal may be disposed off in terms of the settlement arrived at by them. It is noted that fourth defendant in the suit, mother of appellants and respondents is since deceased and therefore she is not arrayed as a party in this appeal; that respondent Nos. 2 and 3 are not present in Court as the appeal is being withdrawn by the appellants having regard to the settlement arrived at amongst themselves.
5. The Joint Memo is taken on record. Appellants and respondent No.1 submit that they have arrived at a settlement on their own volition, without there being any undue influence from any quarter. They request this Court that appeal may be disposed off in terms of the joint memo. It is noted that the joint memo is signed by the appellants and respondent No.1. From the joint memo, it is noted that appellant Nos. 1 to 5 have received a sum of Rs.5,00,000/- (rupees five lakhs only) each and that balance of Rs.5,00,000/- (rupees five lakhs only) is to be paid by the purchaser of the suit schedule property on the date of registration of the sale deed; that they are entitled to Rs.10,00,000/- (rupees ten lakhs only) each; that respondent No.1 has undertaken to pay second and third respondents herein Rs.10,00,000/- (rupees ten lakhs only) each, at the time of registration of the suit schedule property; that appellant Nos. 1 to 5 and respondent Nos. 2 and 3 have agreed to be consenting witnesses to the proposed sale deed to be executed by respondent No.1 in favour of the prospective purchaser Dr.D.Narasimha Pai, any of his family members, nominees, trust or any other person to be designated by him. The joint memo reads as under:
“The Appellants above named respectfully submit as follows:-
1. All the Appellants and Respondents in this Appeal before this Court are the children of Late P. Pundalika Kamath. Late P Pundalika Kamath had executed a Will on 22.02.2003 bequeathing the schedule Property to his son, Mr.P.Dinakar Kamath, the Respondent No.1 in this Appeal with a right of residence to his wife Smt.P Sumathi Bai @ Shantha Bai, who is the mother of all the Appellants and Respondents. Mr. P.Pundalika Kamath died on 18.07.2004.
2. The said Will executed by Late P Pundalika Kamath, the father of the Appellants and Respondents was challenged in Partition suit No.O.S.No.111/2009 before the Hon’ble Principal Senior Civil Judge, Mangaluru by the Appellants in which Smt.P Sumathi Bai @ Shantha Bai was one of the Respondents. Smt.P Sumathi Bai @ Shantha Bai died on 20.08.2014.
3. The said Partition suit No.O.S.No.111/2009 before the Hon’ble Principal Senior Civil Judge, Mangaluru was dismissed on 03.02.2016. Aggrieved by the Order in the said O.S.No.111/2009, the Appellants are before this Hon’ble Court. The Hon’ble High Court of Karnataka at Bengaluru has passed an Interim Order on 21.03.2016 stating that “ The first Respondent is restrained from alienating the property pending disposal of the appeal on merits. However, this order would not come in the way of the first respondent improving or developing and enjoying the property out of his own funds”.
4. Now with the intervention of Friends, Relatives and Well Wishers, all the Appellants and Respondents have mutually compromised and settled the matter outside the Court, in the interest of all the parties to the litigation.
5. Hence, all the Appellants No.1 to 5 have received a sum of Rs.5,00,000.00 each out of total amount of Rs.10,00,000.00 receivable by them. Balance of Rs.5 lakhs to be paid by the purchaser to them on the date of registration of sale deed of the schedule property.
6. Respondent No.1 undertakes to pay 2nd and 3rd Respondents Rs.10,00,000.00 each during registration towards their entitlement.
7. Hence all the Appellants 1 to 5 and the Respondents No.2 and 3 have agreed to be Consenting Witness in the Sale Deed to be executed by the Respondent No.1 in favour of a prospective purchaser Dr. D Narasimha Pai/Any of the family members/ nominees/trusts/ any other person as designated by him, in respect of sale of the schedule property. Respondents No.2 & 3 have agreed to be consenting witnesses in the said Sale Deed to be executed by the Respondent No.1 in favour of the said purchaser for sale of the said schedule property.
8. WHEREFORE, the appeal filed by the above Appellants may be dismissed as withdrawn in terms of this Joint Memo filed by the Appellants and Respondent No.1 and upon dismissal of the said appeal as withdrawn, the interim order passed by the Hon’ble Court may be revoked, to enable the Appellants and Respondents to sell the Schedule property as agreed above.
SCHEDULE PROPERTY DESCRIPTION OF THE PROPERTY Non-agricultural immovable property situated at 13th Market ward of Casba Bazar Village of Mangalore Taluk within the limits of Mangaluru City Corporation and within the Registration Sub-District of Mangaluru Taluk, D.K. District and comprising in:-
(Bearing Khata No.3642 and UPOR No.S07- 488)
T.S.No.
39(39-IV-4 in RTC 40(40-IV-4 in RTC Together with residential building Door No.13.10.1347 totally measuring an area of 1200 sq.ft. and all other mamool and easementary rights, right of roadway, water, natural flow of rain water etc, appertaining thereto.
Boundaries North: Portion of T.S.No.38 South: Portion of T.S. No.40 East: Channel West: Road”
6. On a perusal of the same and on hearing learned counsel for the respective parties as well as the parties themselves, we find that there is no impediment for the appeal to be disposed off in terms of the settlement arrived at between the parties. We find that the statement is a lawful one. In the circumstances, judgment and decree of the Trial Court is modified in terms of the settlement arrived at between the parties and the appeal is accordingly disposed off.
In view of the disposal of the appeal, interim order granted on 21.03.2016 is recalled.
Sd/- JUDGE Sd/- JUDGE Cm/-