Karnataka High Court
Sri V Anil vs Smt J Kamala Jyothi on 18 August, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
WRIT PETITION NO.31196 OF 2016 (GM-CPC)
BETWEEN:
1. SRI. V. ANIL
S/O LATE H. VIJAYAKEERTHI
AGED ABOUT 52 YEARS,
RAKSHNAPURAM,
HAVEELA BUILDING,
HASSAN DISTRICT - 573 201.
2. SRI. V. SUDHEER
S/O LATE H. VIJAYAKEERTHI
AGED ABOUT 51 YEARS,
RAKSHNAPURAM, HAVEELA BUILDING,
HASSAN DISTRICT - 573 201.
...PETITIONERS
(BY SRI. N.N.DAMODAR, ADVOCATE)
AND:
SMT. J. KAMALA JYOTHI
W/O LATE V. CHANDAN
AGED ABOUT 45 YEARS,
RAKSHNAPURAM,
HAVEELA BUILDING,
HASSAN DISTRICT - 573 201
...RESPONDENT
(BY SRI. A. RAVISHANKAR, ADVOCATE)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH / SET ASIDE THE
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IMPUGNED ORDER DATED 05.04.2016 ON I.A.NO.5 VIDE
ANNEXURE-E PASSED BY CIVIL JUDGE (SR. DN), HASSAN IN
O.S. No.224/2015 AT ANNEXURE-A AND CONSEQUENTLY
ALLOW THE I.A.NO.5 FILED UNDER ORDER VII RULE 11 OF CPC
AT ANNEXURE-E AND THEREBY REJECT THE PLAINT.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The defendants in O.S. No.224/2015 on the file of Additional Senior Civil Judge, Hassan, have filed this writ petition challenging an Order dated 05.04.2016 passed therein, by which, the Trial Court rejected an application (I.A.No.5) filed by the defendants under Order VII Rule 11 of the Civil Procedure Code, 1908.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.
3. A suit in O.S. No.224/2015 was filed for partition and separate possession of the plaintiff's 1/3rd share in the suit schedule properties. The plaintiff claimed that the suit schedule item No.1 was the property purchaser by her father-in-law about 50 years next before the date of filing of the suit and item No.2 had fallen to the 3 share of her mother-in-law under a partition dated 21.05.1990. She claimed that her father-in-law died 13 years next before the date of filing of the suit and her mother-in-law died on 31.12.2013. She claimed that her husband also died on 22.06.2014. Therefore, she contended that she along with the other defendants have an undivided right, title and interest in the suit schedule properties.
4. After the defendants filed their written statement, they filed an application under Order VII Rule 11 of the CPC and contended that under Section 37 of the Indian Succession Act, 1925 (for short, 'the Act of 1925'), the plaintiff did not derive any right, title and interest in the suit schedule properties and therefore, the suit was without any cause of action.
5. The Trial Court after considering the contentions urged in the plaint, held that the plaintiff was entitled to an undivided share in view of Section 33 of the Act of 1925 and hence, rejected the application. 4
6. Being aggrieved by the said Order, the present writ petition is filed.
7. The learned counsel for the petitioners/ defendants submitted that under Section 37 of the Act of 1925, the plaintiff did not derive any share in the suit schedule properties and therefore, the suit filed for partition was wholly not maintainable.
8. Per contra, the learned counsel for the plaintiff / respondent submitted that the appropriate provision that was applicable was Section 33 of the Act of 1925 as it catered to a situation where the deceased left behind widow and lineal descendants and kindred. He contended that the defendants were the brothers-in-law of the plaintiff and therefore, she was entitled to an undivided share in the suit schedule properties. He further contended that the writ petition was not maintainable under Article 227 of the Constitution in view of a remedy of a revision under Section 115 of the Code of Civil Procedure, 1908 (for short, 'the CPC'). 5
9. Without going into the question regarding maintainability of this writ petition, it is seen that the husband of the plaintiff and defendants were full blood brothers. The suit item Nos.1 and 2 properties in question was earlier owned by their parents who died intestate. Later, the husband of the plaintiff also died and hence, she was entitled to an undivided share in the suit schedule properties. The contention of the defendants that the plaintiff is not entitled to any share in the suit properties in view of Section 37 of the Act of 1925 is wholly misplaced and hence, is liable to be rejected. The Trial Court has considered the above aspect in the right perspective and has rejected the application in I.A. No.5 filed by the defendants. There is no merit in this Writ Petition and the same is dismissed.
Sd/-
JUDGE sma