IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT C.R.P.No.336 OF 2018 BETWEEN VIDYADHAR S. WODEYAR S/O LATE S. S. WODEYAR @ SADASHIVA SHIVA WODEYAR, AGED ABOUT 61 YEARS, R/AT A-4-10, CENTURY CELESTA, 16TH CROSS, ARKAVATHY LAYOUT, JAKKUR, BENGALURU – 560 064.
(BY SRI.UMESHA MURTHY J.M, ADVOCATE) AND 1. SMT PREMA PANCHAKSHARAIAH W/O H M PANCHAKSHARAIAH D/O LATE S. S. WODEYAR @ SADASHIVA SHIVA WODEYAR, AGED ABOUT 66 YEARS, R/O G-BLOCK, FLAT NO.307, PLATINUM, HMT LINK ROAD, YESHWANTHPUR, BENGALURU-560022 2. SMT SARVAMANGALA WODEYAR W/O LATE S.S.WODEYER @ SADASHIVA SHIVA WODEYAR, AGED ABOUT 86 YEARS, R/AT A-4-10, CENTURY CELESTA, ... PETITIONER 16TH CROSS, ARKAVATHY LAYOUT, JAKKUR, BENGALURU – 560 064.
3. SMT SHOBHA MADAPURA MATH W/O LATE JAGADEESH MADAPUR MATH, D/O LATE S. S. WODEYAR @ SADASHIVA SHIVA WODEYAR, AGED ABOUT 68 YEARS, R/AT HOUSE NO.104, NO.477/A, 16TH CROSS, PHASE-I, SUN RESIDENCY, B-SECTOR, IDEAL HOME SOCIETY, RAJARAJESHWARINAGAR, BENGALURU-560098.
4. SMT USHA HIREMATH W/O DR. S. C. HIREMATH, D/O LATE S. S. WODEYAR @ SADASHIVA SHIVA WODEYAR, AGED ABOUT 63 YEARS, R/AT CHENNAMMA NILAYA, KUMARESHWARA NAGAR, HALIYAL ROAD, SAPTAPUR, DHARWAD-580003 5. SMT MAMATA PANDIT W/O DR. ASHOK PANDIT, D/O LATE S. S. WODEYAR @ SADASHIVA SHIVA WODEYAR, AGED ABOUT 63 YEARS, R/AT HOUSE NO.88, B.K.KANGRALI ROAD, SHAHUNAGAR, BELAGAVI – 590 016.
... RESPONDENTS (BY SMT. AKHILA M.S., ADV. FOR SRI.KANSHYAP N. NAIK, ADV. FOR R1;
R2 TO R5 – SERVED AND UNREPRESENTED) THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 17.04.2018 PASSED ON I.A.NO.IV IN O.S.NO.2663/2011 ON THE FILE OF THE XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, REJECTING THE I.A.NO.IV FILED UNDER ORDER VII RULE 11 R/W SEC. 151 OF CPC.
THIS CRP COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Defendant No.4 in O.S No.2663/2011 on the file of XXXIV Additional City Civil and Sessions Judge, Bengaluru, is before this Court in this revision petition under Section 115 of CPC assailing the order dated 17.4.2018 on I.A No.IV filed under Order VII Rule 11 read with Section 151 of CPC seeking rejection of the plaint.
2. Respondent No.1-plaintiff filed the aforesaid suit for partition and separate possession of her 1/6th equal share in the suit schedule properties and for rendering accounts of the joint family property. The plaint averments disclose that the father of the plaintiff died on 11.9.1996. The plaintiff and defendants are the legal heirs of late S.S. Wodeyar @ Sadashiva Shiva Wodeyar. The plaint averments further disclose that the schedule proprieties are still continued to be the joint family properties and the plaintiff and the defendants are in joint possession of the same. The plaintiff alleges that the defendants are trying to alienate the schedule properties in favour of the third persons, ignoring the legitimate share of the plaintiff.
3. On issuance of summons, the 4th defendant filed an application under Order VII Rule 11 of CPC praying to reject the plaint contending that the suit schedule properties are the ancestral properties of late S.S. Wodeyar @ Sadashiva Shiva Wodeyar, the father of plaintiff and defendants, who died on 11.9.1996, i.e., much prior to the amendment and hence, the plaintiff would not be entitled for equal share out of the schedule properties. The plaintiff opposed the said application by filing objection. It was her contention that the properties which were fallen to the share of her deceased father shall be granted to her.
4. Suit is one for partition and possession of the suit schedule properties. Averment at para-3 and para-6 of the plaint would disclose that suit schedule properties continues to be joint family property and plaintiff and defendants are in joint possession of the suit schedule properties. Further averment at para-4 of plaint states that even though all the daughters including plaintiff were married, all the defendants and plaintiff are in joint possession and enjoyment of suit schedule properties. Learned Counsel for the petitioner relied on the decision of Hon’ble Apex Court in Mangammal Vs. T.V. Raju and others (2018)15 SCC 662 to contend that the plaintiff has no right to seek partition on the suit schedule properties. But, whether the said decision would have application or not could be examined only after trial on placing evidence on record by the parties. Whether the suit schedule properties fallen to the share of her father, are the ancestral properties and whether the plaintiff has equal share in her father’s property, is a disputed question which is a matter for trial. Thus, I find no jurisdictional error or material irregularity in the order passed by the trial Court rejecting the I.A. filed under Order VII Rule 11 read with Section 151 of CPC. Accordingly, the revision petition is rejected.
Sd/- JUDGE Cs/-
Ct-Dn