Karnataka High Court
Sri. P. L. Venkatesh vs Smt. Rathnamma @ Nagarathna on 16 February, 2026
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2026:KHC:9308
WP No. 13997 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.13997 OF 2023 (GM-CPC)
BETWEEN:
SRI. P. L. VENKATESH
SON OF LATE LINGAPPA,
AGED ABOUT 49 YEARS,
RESIDENT OF PATTANDUR
AGRAHARA,
WHITEFIELD POST,
K.R. PURAM, HOBLI,
BENGALURU EAST TALUK,
BENGALURU-560 066.
...PETITIONER
(BY SRI. ABHINAY Y.T., ADVOCATE FOR
SRI OMKARA N., ADVOCATE)
AND:
Digitally
signed by
SUMA 1. SMT. RATHNAMMA @ NAGARATHNA
Location: D/O. LATE LINGAPPA,
HIGH AGED ABOUT 48 YEARS,
COURT OF
KARNATAKA R/O. DODDAHIGGALUR VILLAGE,
KUDENUR POST,
MALUR TALUK,
KOLAR DISTRICT-563 130.
2. SMT. PUTTAMM @ PUTTATHAYAMMA
AGED ABOUT 80 YEARS,
RESIDENT OF PATTANDUR AGRAHARA,
WHITEFIELD POST,
K.R. PURAM, HOBLI,
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NC: 2026:KHC:9308
WP No. 13997 of 2023
HC-KAR
BENGALURU EAST TALUK,
BENGALURU-560 066.
3. SMT. YELLAMMA
D/OF LATE LINGAPPA,
AGED ABOUT 55 YEARS,
RESIDENT OF PATTANDUR
AGRAHARA,
WHITEFIELD POST,
K.R. PURAM, HOBLI,
BENGALURU EAST TALUK,
BENGALURU-560 066.
4. SMT. MANJAMMA @ MANJULA
D/OF LATE LINGAPPA,
W/O LATE RAMANNA,
AGED ABOUT 51 YEARS,
C/O M.S. TAILORS,
BEHIND GANESH TEMPLE,
GOTTIGERE WEAVERS COLONY,
BENGALURU-560 083.
...RESPONDENTS
(BY SRI. SADASHIVA REDDY D.V., ADVOCATE FOR
RESPONDENT NO.1;
SRI. M.S.SHISHIRA HOLLA, ADVOCATE FOR RESPONDENT
NOS.2 TO 4)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 16.07.2022 PASSED ON I.A
NOS.10, 11, 13 AND 15 PASSED IN FDP NO.18/2011 PENDING
BEFORE THE TRIAL COURT PRODUCED AT ANNEXURE-A TO
MEET THE ENDS OF JUSTICE AND ETC.
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NC: 2026:KHC:9308
WP No. 13997 of 2023
HC-KAR
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE
THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
This petition by the respondent No.4 in FDP No.18/2011 on the file of the III Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, is directed against the impugned order passed on I.A. Nos.10, 11, 13 and 15 filed by the respective respondent herein, whereby the Trial Court modified the preliminary decree passed in O.S. No.541/1997 in terms of the impugned order.
2. A perusal of the material on record will indicate that the respondent No.1 - plaintiff instituted the aforesaid suit against the petitioner - defendant No.4 and respondent Nos.2 to 4 - defendant Nos.2, 3 and 5 respectively, for partition and separate possession of her alleged share in the suit schedule immovable properties and for other reliefs. The said suit after contest was partly decreed in favour of the plaintiff against the defendants including the petitioner
- defendant No.4 vide judgment and decree dated 22.10.2005 -4- NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR passed by the Trial Court. The operative portion of the said judgment and decree reads as under:
"The suit of the plaintiff is decreed in part holding that she has got 1/10th share out of the suit 'A' schedule properties and the 1st item of the suit 'B' schedule property and she is entitled for partition and separate possession of her share in the above said properties by metes and bounds.
The 2nd defendant is entitled to 0.5/10th share and the 5th defendant is entitled to 1/10th share in the above said properties only and they are also entitled for partition and separate possession of their share by metes and bounds and they are liable to pay requisite court fee, as their shares are also declared.
While partitioning the temple, tombs situated in item No.2 of the 'A' schedule property and also a portion of the above said property acquired for road by the Government have to be excluded.
The plaintiff is also entitled for rendering of accounts in respect of the income if any get from the suit 'A' schedule properties and the 1st item of the 'B' schedule property, from the date of suit, till the plaintiff is put in possession of her share from the 4th defendant. In that aspect, the enquiry has to be held and only if income is found, then, the plaintiff is entitled for her share out of that income.
The suit in respect of the other suit properties is dismissed.-5-
NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR Draw up preliminary decree for partition as stated above.
Parties to bear their own costs."
3. Subsequently, the respondent No.1 instituted the instant final decree proceedings to enforce and implement the said preliminary decree. During the pendency of the said final decree proceedings, the respondents herein filed the instant application(s) seeking modification of the preliminary decree in view of the judgment of the Apex Court in the case of Vineeta Sharma v.
Rakesh Sharma [(2019) 6 SCC 162].
4. The said applications having been opposed by the petitioner herein, the Trial Court proceeded to pass the impugned order allowing the applications and modified the preliminary decree as stated herein before. Aggrieved by the impugned order passed by the Trial Court, the petitioner is before this Court by way of the present petition.
5. Before adverting to the rival contentions, it would be necessary to extract the genealogical tree of the parties which is as under:
-6-NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR FAMILY TREE LINGAPPA [DECEASED] Channamma Puttamma @ Puttatayamma (1st Wife) 2nd Wife) [Deceased] Respondent No.2 [Deceased] Yellamma P.L.Venkatesh Manjamma Rathnamma [Respondent-3] [Petitioner] @ Manjula @ Nagarathna [Respondent-4] [Respondent-1]
6. As can be seen from the aforesaid genealogical tree / pedigree, the propositus - Sri Lingappa had two wives viz., Smt. Channamma - defendant No.1 and Smt. Puttamma @ Puttatayamma, who was arrayed as defendant No.2 in the suit. The petitioner and his sister - Smt. Yellamma are undisputably the children of Sri Lingappa and Smt. Channamma while respondent Nos.1 and 4 are the daughters of Sri Lingappa and Smt.Puttamma @ Puttatayamma. By way of the impugned order, the Trial Court came to the conclusion that upon expiry of Smt. Channamma, the respective shares of respondent Nos.1 and 4 is to be enhanced. In -7- NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR this context, the Trial Court failed to consider and appreciate that Smt. Channamma was alive as on the date of the preliminary decree and expired subsequently after institution of the impugned final decree proceedings.
7. In this context, it is relevant to extract the provisions contained in Section 10 of the Hindu Succession Act, 1956 (for short, 'the Act'), which reads as under:
"10. Distribution of property among heirs in class I of the Schedule.―The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:― Rule 1.―The intestate's widow, or if there are more widows than one, all the widows together, shall take one share.
Rule 2.―The surviving sons and daughters and the mother of the intestate shall each take one share. Rule 3.―The heirs in the branch of each pre- deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule 4.―The distribution of the share referred to in Rule 3--
(i) among the heirs in the branch of the pre-
deceased son shall be so made that his widow (or widows together) and the surviving sons and -8- NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR daughters gets equal portions; and the branch of his pre-deceased sons gets the same portion;
(ii) among the heirs in the branch of the pre- deceased daughter shall be so made that the surviving sons and daughters get equal portions."
8. As can be seen from the provisions contained in Section 10 of the Act, in particular Rule 1 of the Act, which contemplates that the intestate's widow, or if there are more widows than one, all the widows together, shall take one share. In the instant case, it is an undisputed fact that Sri Lingappa had two widows viz. Smt.Channamma (first wife) and Smt.Puttamma alias Smt.Puttathayamma, who was the second wife. It is also a matter of record and an undisputed fact that Smt.Channamma expired subsequent to the preliminary decree and during the pendency of the final decree proceedings. As per Sections 10 and 15 of the Hindu Succession Act, 1956, the shares of the parties during the lifetime of Smt. Channamma would have to be quantified as hereunder by declaring that both Smt.Channamma and Smt.Puttathayamma would be together entitled to one share in the -9- NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR suit schedule properties. Accordingly, the shares of the parties are quantified / calculated as hereunder:
Sl. Name Share
No.
1. Smt.Channamma 1/10th
2. Smt.Puttamma alias 1/10th
Puttathayamma
3. Smt. Yellamma 1/5th
4. Sri P.L. Venkatesh 1/5th
5. Smt.Manjamma alias Manjula 1/5th
6. Smt. Rathnamma alias 1/5th
Nagarathna
9. The question that arises for consideration is the devolution of the 1/10th share of Smt.Channamma upon her demise. As stated supra, Smt.Channamma was entitled to undivided 1/10th share in the suit schedule properties during her lifetime and the same got crystallized / blossomed / enlarged into an absolute 1/10th share by virtue of Section 14 of the Hindu Succession Act, 1956. Consequently, the undivided 1/10th share of Smt.Channamma would not revert back to the estate of Sri Lingappa but would devolve upon her two children i.e. Smt.Yellamma and Sri P.L Venkatesh (petitioner herein) under Section 15 of the Act. Under these circumstances, the 1/10th share of Smt.Channamma having devolved upon her two children i.e., the
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NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR petitioner - Sri P.L. Venkatesh and his sister Smt. Yellamma, the shares of the parties as on today would have to be quantified as hereunder:
Sl. Name Share
No.
1. Sri P.L. Venkatesh 1/5th + 1/20th
2. Smt. Yellamma 1/5th + 1/20th
3. Smt.Puttamma alias 1/10th
Puttathayamma
4. Smt.Manjamma alias Manjula 1/5th
5. Smt. Rathnamma alias 1/5th
Nagarathna
10. In Bhimappa Ramachandrappa Amate v. Shrikant Maruthi Mirajakar and Others [ILR 2004 KAR 5047], a coordinate Bench of this Court has held as under:
"15. Thus, as could be seen from Section 15 of the Act the property of a female Hindu dying intestate shall devolve firstly upon the sons and daughters including the children of any pre-deceased son or daughter and the husband and they are to be preferred to the other heirs who come under Clause
(b), (c), (d) or (e). The co-widow is not one of the heirs mentioned in Section 15 of the Act and therefore she will not inherit the property from Bayavva. Therefore, the only heir who could inherit the property of the co-
widow is the first defendant who is the adopted son of
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NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR the husband of Bayavva. Therefore, her entire share goes to the first defendant being the only heir of her husband.
16. The Lower Appellate Court while considering the appeal framed the following points as additional issues:
"i) Whether the appellant proves that he is entitled for partition as claimed?
ii) Whether the appellant proves that the deceased original plaintiff has duly executed a will in his favour as contended?
iii) Whether the respondent-defendant No.1 proves after the death of the original plaintiff the entire estate devolves on him as contended and as to whether the plaintiff is entitled for the relief sought for?"
17. The learned Appellate Judge has held that the appellant was entitled for partition as claimed and further held that the appellant has proved that the plaintiff had executed a will in favour of the appellant who is the L.R. of the original plaintiff and further held that the appellant is entitled for the relief sought for and negatived the contention of the first respondent - appellant that after the death of the original plaintiff the entire estate devolves on him.
18. First of all, let me consider the contention raised by the learned Counsel appearing for the respondent that this Court in RFA 247/83 had passed a specific order while considering the application filed by the L.R. namely, Srikanth Maruthi Mirajakar the respondent-1 herein directing the Trial Court that the
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NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR application to be treated as original proceedings on his file and give findings after enquiry and communicate the findings to this Court.
19. It is contended by Sri Khannur, learned Counsel appearing for the respondent that when a specific direction is given by this Court on the application filed by the first respondent directing the Trial Court to treat the matter as an original proceeding and give a finding on the question as to whether the alleged will set up by the legal representative who is the first respondent herein has been proved amounts to finding on merits and a final adjudication and therefore, it cannot be held to be a summary proceeding. The learned Counsel submitted that even though it is true that this Court could give a direction to the Lower Court to give a finding or to hold an enquiry on a question in a matter remanded to that Court, this Court can also give a direction to treat the proceeding as a suit and give a finding on merits.
20. In my view, as rightly contended by the learned Counsel appearing for the respondent, the direction given by this Court should be treated as a direction given under Order 22 Rule 5 of CPC. Order 22 concerns with the death, marriage and insolvency of parties and Order 22 Rule 1 states that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives and the other rules are the procedures that has to be adopted when either the plaintiff or plaintiffs, defendant or defendants dies
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NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR during the course of the proceedings. Under Order 22 Rule 4A when a party dies and when there is no L.R. to represent the dead party, the Court may also appoint an administrator or an officer of the Court to represent the estate of the deceased to continue the suit. But the relevant Rule for the purpose of our case is Rule 5 which reads as follows:
"R.5 Determination of question as to legal representative - Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court.
Provided that where such question arises before an Appellate Court, that Court may, before determining the questions, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question."
21. Thus, under the above provision an Appellate Court before determining the question could direct any sub-ordinate Court to try the question and to return the records together with the evidence if any recorded in such proceeding and its findings and reasons therefore and the Appellate Court may take those findings into consideration and pass make its own order. These proceedings are only summary proceedings. In similar circumstances, this Court in RFA 6/96 disposed of on 17/4/2004 has held that an enquiry made after an order made by this Court under Order 22 Rule 5 CPC is on a summary proceeding
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NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR and any order passed in the appeal before this Court after impleading the L.R. on the finding given by the lower Court will be in respect of the rights of the parties in the suit for whom the L.R. represents. Any such declaration given in favour of either the plaintiff or the defendant could decide only their rights and not the rights of the L.R. and under such circumstances, the L.R. cannot rely upon the findings given in the summary enquiry and claim his individual rights in respect of the suit properties.
22. Even in the present case, the late plaintiff Nagavva had sought for a declaration of her rights in respect of the suit schedule properties. Eventhough she failed before the Trial Court in getting a decree the Lower Appellate Court has granted a decree and on the footing that the L.R. of the deceased plaintiff could be granted a decree in view of the alleged will set up by him. The question is whether the Lower Appellate Court could have given a decree in favour of a legal representative in his individual capacity on the basis of the Will set up by the L.R.
23. In my view, such declaration cannot at all be given by the Lower Appellate Court in favour of legal representative. What could be granted is a declaration in favour of the original party for whom the L.R. represents. That is, the Court cannot consider the right of the L.R. It can only consider the rights of the deceased party for whom the L.R. represents. In the present case, what could be gathered from the
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NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR judgment of the Trial Court is that the Trial Court has gone on considering the question as to whether the respondent-1 has proved that the late plaintiff has executed a Will in his favour and whether under the Will he acquires the properties of the late Nagavva. As rightly contended by the learned Counsel appearing for the appellant such a declaration cannot at all be given by the Lower Appellate Court. As held by this Court in RFA No. 6/96 (DODDAMUNISWAMAPPA BY L.Rs. v. LAXMAMMA AND OTHERS RFA No.6/96) the Lower Appellate Court could have just considered the question whether the deceased plaintiff ha got any right in respect of the suit schedule properties and if so could have just declared her rights. Therefore, the declaration given by the Lower Appellate Court in favour of the appellant on his plea of his acquiring the suit property under the alleged Will cannot be upheld. The Lower Appellate Court has no jurisdiction to give such a declaration.
24. However, this matter is before this Court in the second appeal and on the admitted facts there cannot be any doubt that the late plaintiff was entitled for a share in the properties of her husband. First of all, there is no dispute that the late plaintiff was in possession of some of the suit schedule properties towards the maintenance of herself and her co-widow Bayavva, She and her co-widow together has got l/4th share in the properties of her late husband Narasappa. When Bayavva died and the plaintiff does
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NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR not inherit any of the properties of Bayavva in view of Section 15 of the Hindu Succession Act. Therefore, the only share the late plaintiff Nagavva gets is the l/4th in the suit schedule properties. Therefore, what is to be declared is the entitlement of the said share by her. On the admitted evidence on record late plaintiff Nagavva is entitled to 1/4th share of the suit schedule properties.
24. It is submitted on behalf of the appellant that the late Nagavva had executed a Will in which the suit schedule properties are mentioned and therefore the appellant as her L.R. is not entitled to seek her shares in all properties. That may be so, but that question is not to be considered in this appeal. In this appeal, this Court could only declare that the late Nagavva is entitled to 1/4th share in the suit schedule properties. If the first respondent who has set up a Will proves the Will before a competent Court and gets declaration that he is entitled for the share of the plaintiff Nagavva then the first respondent-L.R. can seek to execute the decree and get the suit properties divided in accordance with the share of the plaintiff."
11. In view of the aforesaid facts and circumstances and the quantification of the undivided share of all the parties in terms of the judgment of the Apex Court in Vineeta Sharma's case (supra) as well as the provisions contained in Sections 10, 14 and
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NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR 15 of the Hindu Succession Act, 1956 and the principles laid down by this Court, in the case of Bhimappa Ramachandrappa Amate (supra), I am of the considered opinion that the impugned order passed by the Trial Court deserves to be modified and the directions be issued to the Trial Court to draw up a final decree accordingly.
12. For the aforesaid reasons, the following:
ORDER i. Petition is hereby disposed of.
ii. The impugned order dated
16.07.2022 passed by the III
Additional Senior Civil Judge,
Bengaluru Rural District, Bengaluru, on I.A. Nos.10, 11, 13 and 15 in F.D.P. No.18/2011 is hereby modified.
iii. The Modified/amended shares of the parties are as hereunder:
Sl. Name Share
No.
1. Sri P.L. Venkatesh (petitioner) 1/5th + 1/20th
2. Smt. Yellamma (respondent 1/5th + 1/20th No.3)
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NC: 2026:KHC:9308 WP No. 13997 of 2023 HC-KAR
3. Smt.Puttamma alias 1/10th Puttathayamma (respondent No.2)
4. Smt.Manjamma alias Manjula 1/5th (respondent No.4)
5. Smt. Rathnamma alias 1/5th Nagarathna (respondent No.1) The Trial Court is directed to draw up a fresh preliminary decree in terms of the aforesaid quantification of the shares and proceed further in accordance with law.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE SMA/List No.: 3 Sl No.: 6