Karnataka High Court
Sri. Santosh S/O Basavantappa Dhaduti vs Sri. Panditappa Siddappa Dhaduti, ... on 18 April, 2023
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WP No. 101590 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 101590 OF 2023 (GM-CPC)
BETWEEN:
SRI SANTOSH S/O. BASAVANTAPPA DHADUTI
AGE: 42 YEARS, OCC: PRIVATE SERVICE,
R/O. MANGALAWAR PETH, BANAHATTI,
TQ: RABAKAVI-BANAHATTI,
DIST: BAGALKOT-587101.
...PETITIONER
(BY SRI M.C. HUKKERI, ADVOCATE)
AND:
SRI PANDITAPPA SIDDAPPA DHADUTI,
SINCE DECASED BY HIS LRS
1. SURESH S/O. PANDITAPPA DHADUTI
YASHAVANT
AGE: 57 YEARS, OCC: BUSINESS,
NARAYANKAR
RESIDENT OF BENGALURU-560001.
Digitally signed by
YASHAVANT
NARAYANKAR
Location: High
Court of Karnataka,
2. DRAXAYANI W/O. SHIVANAND BALAKUNTI
Dharwad Bench
AGE: 60 YEARS,
OCC: HOUSEHOLD WORK,
RESIDENT OF BENGALURU-560001.
3. SMT. SAVITA W/O. JAGADISH
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK ,
RESIDENT OF BENGALURU-560001.
4. KUMARI. BHARATI
D/O. PANDITAPPA DHADUTI
AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
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WP No. 101590 of 2023
RESIDENT OF BENGALURU-560001.
( RAMAPPA S/O. FAKIRAPPA DHADUTI
SINCE DECEASED BY HIS LRS.)
5. FAKIRAPPA S/O. RAMAPPA DADUTI
AGE: 50 YEARS, OCC: BUSINESS,
RESIDENT OF BANAHATTI-587311.
6. MAHALINGAPPA
S/O. MALAKAPPA DHADUTI
AGE: 55 YEARS, OCC: BUSINESS,
RESIDENT OF BANAHATTI-587311.
7. SUBHASH S/O. RAMAPPA DHADUTI
AGE: 58 YEARS, OCC: BUSINESS,
RESIDENT OF BANAHATTI-587311.
8. ASHOK S/O. RAMAPPA DHADUTI
AGE: 59 YEARS, OCC: BUSINESS,
RESIDENT OF BANAHATTI-587311.
9. SMT. SAROJINI W/O. MALAPPA HITNALLI
AGE: 54 YEARS,
OCC: HOUSEHOLD WORK,
R/O. POLICE QUARTERS BIJAPUR-586101.
10. SMT. ANUSUYA W/O. KASHINATH MIRCHI
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O. BELLADA BAGEWADI-591305.
11. MURIGEPPA S/O. SIDRAYAPPA DHADUTI
AGE: 55 YEARS, OCC: SERVICE,
R/O. MAHADESHWAR NAGAR,
AEROHALL CROSS,
VISHWA NIDAM, BENGALURU-560091.
( KADAPPA S/O. MAHALINGAPPA DHADUTI
SINCE DECEASED BY HIS LRS.)
12. SRI SHASIKANT S/O. KADAPPA DHADUTI
AGE: 59 YEARS, OCC: BUSINESS,
R/O. BANAHATTI-587311.
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WP No. 101590 of 2023
13. SRI SHRISHAIL S/O. KADAPPA DHADUTI
AGE: 59 YEARS, OCC: BUSINESS,
R/O. BANAHATTI-587311.
14. SMT. SAYAWWA D/O. KADAPPA DHADUTI
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O. BANAHATTI-587311.
(SRI BASAVANTAPPA
S/O. MAHALINGAPPA DHADUTI
SINCE DECEASED BY HIS LRS.)
15. SRI GURUPADAPPA
S/O. CHANNAPPA DHADUTI
AGE: 59 YEARS, OCC: BUSINESS,
R/O. BANAHATTI-587311.
16 SRI IRANNA S/O. GANGAPPA DHADUTI
AGE: 29 YEARS, OCC: BUSINESS,
R/O. BANAHATTI-587311.
17. SRI SACHIN S/O. GANGAPPA DHADUTI
AGE: 25 YEARS, OCC: BUSINESS,
R/O. BANAHATTI-587311.
18. SMT. CHANNAMMA
W/O. GANGAPPA DHADUTI
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O. BANAHATTI-587311.
19. SMT. SUSILA W/O. GURUNATH HUBBALLI
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
C/O. M.B. HUBBALLI, CHENNPETHI CHAWAL,
NAV AYODHYA NAGAR, R/O. OLD HUBBALLI.
20. SMT. PREMA W/O. CHENDRASHEKHAR CHIKKODI
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O. NO. 7, MAHADESHWAR NAGAR,
AEROHALLI CROSS, VISHWA NIDAM,
POST: BENGALURU-560091.
21. SMT. BHAGIRATI W/O. SUBHASH BABA
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
C/O. S.D.BABA, R/O. 961 NORTH,
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WP No. 101590 of 2023
SADAR BAZAR, ADARSH NAGAR,
SOLAPUR (MAHARASTRA STATE)-413001.
22. VIVEK S/O. SHIDRAYAPPA DHADUTI
AGE: 59 YEARS, OCC: P & T DEPARTMENT,
R/O. NO.7, MAHADESHWAR NAGAR,
AEROHALLI CROSS, VISHWA NIDAM,
POST: BENGALURU-560091.
23. SMT. SHASHIKALA
W/O. SHIKAREPPA DHADUTI
AGE: 56 YEARS,
OCC: HOUSEHOLD WORK,
C/O. C.C. WAGIRE,
R/O. WATER TANK SHAHAPUR,
AT POST: ICHALAKARANJI-416115.
24. SMT. MANAWWA
W/O. GURUNATH HUBBALLI
AGE: 44 YEARS,
OCC: HOUSEHOLD WORK,
AT POST: CHENNAPETI,
OLD HUBBALLI-580030.
25. SMT. ASHA MAHADEVAPPA DHADUTI
AGE: 56 YEARS,
OCC: HOUSEHOLD WORK,
AT POST: QUARTER NO.1/2 GERMAN
PRESS COLONY, T. NARASHIPUR ROAD,
MYSORE-570002.
26. SMT. ARUNA WADEKAR
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
AT POST: QUARTER NO.1/2 GERMAN
PRESS COLONY, T. NARASHIPUR ROAD,
MYSORE-570002.
27. SMT. BEENA D/O. MAHADEV DHADUTI
AGE: 46 YEARS, OCC: STUDENT,
AT POST: QUARTER NO.1/2 GERMAN
PRESS COLONY, T. NARASHIPUR ROAD,
MYSORE-570002.
28. SMT. MANJULA D/O. MAHADEVAPPA DHADUTI
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WP No. 101590 of 2023
AGE: 44 YEARS, OCC: BUSINESS,
AT POST: QUARTER NO.1/2 GERMAN
PRESS COLONY,
T. NARASHIPUR ROAD, MYSORE-570002.
29. SRI AMIT S/O. MAHADEVAPPA DHADUTI
AGE: 44 YEARS, OCC: BUSINESS,
AT POST: QUARTER NO.1/2 GERMAN
PRESS COLONY, T. NARASHIPUR ROAD,
MYSORE-570002.
30. SHRI PANKAJ MALLIKARJUN BANAKAR
AGE: 28 YEARS, OCC: AGRICULTURIST,
POST: BANAHATTI,
TQ: JAMKHANDI-587301.
31. SHRI PRASHANT S/O. ISHAWAR BIDARI
AGE: 28 YEARS, OCC: AGRICULTURIST,
POST: BANAHATTI,
TQ: JAMKHANDI-587301.
...RESPONDENTS
(BY SRI S.C. BHUTI, ADV. FOR R1 TO R7, R9 TO R11, R19 TO
R24, R26, R27 & R29;
SRI SHIVARAJ P. MUDHOL, ADV. FOR R16 TO R18 & R31)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, TO QUASH
THE IMPUGNED ORDER PASSED ON I.A.NO.11 DATED 27/02/2023
FILED UNDER SECTION 151 OF C.P.C, BY THE CIVIL JUDGE AND
J.M.F.C., BANAHATTI AT: BANAHATTI IN FINAL DECREE
PROCEEDINGS BEARING F.D.P.NO.06/2009 VIDE ANNEXURE-F,
AND ALLOW THE I.A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 101590 of 2023
ORDER
The captioned writ petition is filed feeling aggrieved by the order passed by the FDP Court on I.A.No.11 vide Annexure-F filed under Section 151 of the Code of Civil Procedure, 1908 (for short "CPC") requesting the FDP Court to allot share to the petitioner's branch and also thereby modify the preliminary decree.
2. The said application is strongly contested by the purchaser by filing objections. The learned Judge, having examined the rival contentions, has declined to entertain the application filed by the petitioner. While rejecting the application, learned Judge has held that it is the plaintiff, who is awarded a share and therefore, the present petitioner cannot seek modification at this juncture and consequently the application came to be rejected. The said order is under challenge.
3. Heard the learned counsel for the petitioner and the learned counsel appearing for respondents 16 to 18 and
31. -7- WP No. 101590 of 2023
4. The learned counsel appearing for respondents 16 to 18 and pendente lite purchaser/respondent No.31 has strongly resisted this writ petition. Counsel for the said respondents has filed statement of objections indicating that this writ petition is filed by suppressing the material facts. He would vehemently argue and contend that as the first son of third branch of Channappa is no more, the present writ petition is not maintainable since the legal representatives of deceased Gurupadappa, who was arrayed as defendant No.9 are not brought on record. The second ground canvassed by the learned counsel appearing for the contesting respondents is that the petitioner's share is not quantified in preliminary decree and therefore, the petitioner has no locus to seek modification of preliminary decree. He would further point out that modification of preliminary decree is permissible only in the event there is a death. Thirdly he would contend that the defendant No.9 during his lifetime along with his children has alienated the properties and the properties were developed by forming a layout and there are alienations -8- WP No. 101590 of 2023 pursuant to development. Therefore, he would contend that the preliminary decree cannot be modified.
5. Before I advert to the grounds urged in the writ petition, I deem it fit to cull out the findings recorded by the Trial Court while decreeing the partition suit filed in O.S.No.78/1996. Finding on issue No.8 would be relevant and same is culled out which reads as under;
"Issue No.8: As it is held that the suit properties are joint family properties, they are liable for partition between the members, who are entitled to share them. Undisputedly the plaintiff is a sharer. He is claiming 1/15th share in them. But, in my opinion, he is entitled to get 1/18th share and not 1/15th share. On the date of death of propositus Gurupadappa, though the properties were liable to be divided into 4 portions, now the branch of Hampannappa has become extinct, and at present there are the members of only 3 branches. Hence, 1/3rd portion comes to each branch. Accordingly, the plaintiff had claimed 1/5th out of said 1/3rd share by leaving out defendants No.19 to 23. Now the defendants No.19 to 23 have been impleaded and they also, are having share. Six sons of Fakirappa will get equal share in 1/3rd -9- WP No. 101590 of 2023 share, which Fakirappa would have got in the said properties. So the plaintiff will get 1/8th share and not 1/5th share. He is desirous of getting separated his share. I see no reasons to decline his prayer of granting 1/8th share. With this clarification I answer this issue in the affirmative."
6. Now the family tree which is furnished at page 105 of the writ petition indicates that one Gurulingappa is the propositus. He had four sons. His second son- Hampannappa died issueless as he was bachelor. Therefore, the propositus Gurulingappa is survived by only three sons. The findings which are culled out supra clearly indicate that the Trial Court has taken cognizance of the legal heirs of deceased Gurulingappa and therefore, the plaintiff's branch is allotted 1/3rd share and in 1/3rd share, the plaintiff is allotted 1/18th share. Merely because the other two branches have not paid Court fee for quantifying their legitimate share, it would not take away the rights of the second and third branch. The present petitioner represents the branch of Mahalingappa while contesting respondents 16 to 18 represent the branch of Channappa.
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WP No. 101590 of 2023
7. Now the fact that the Trial Court has recorded a finding that plaintiff's branch has 1/3rd share, presupposes that other two branches have also 1/3rd share each. Under Hindu Law, a co-parcener has a pre-existing right. Suit is filed merely to declare the pre-existing rights of a co- parcener in a joint Hindu Family. A joint family member will not acquire right pursuant to decree passed by the Competent Civil Court. He acquires right on his birth in a Hindu family. Merely because petitioner's branch did not contest and pay the court fee, that itself will not take away the right of the petitioner to seek 1/3rd share in the property. Though an application is filed for modification, the learned Judge has virtually misconstrued the law relating to the right of a Hindu co-parcener in joint family ancestral properties. if petitioner's share was not carved out, provided petitioner has paid Court fee along with application, it was incumbent on the part of the learned Judge to quantify the share of petitioner's branch, Mahalingappa.
8. The next question that needs consideration is whether the respondents who represent the branch of
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WP No. 101590 of 2023Channappa have locus to contest this application. My answer is emphatically no.
9. If petitioner is seeking for quantification of his share in 1/3rd share held by Mahalingappa, this Court is unable to understand as to how the branch representing Channappa can object and contest this application. The contention of the counsel appearing for respondents 16 to 18 and pendente lite purchaser respondent No.31 that defendant No.9 is no more and therefore this writ petition is not maintainable, is also equally found to be misconceived. This Court is of the view that the branch of Channappa is not at all necessary parties as under the preliminary decree, his share is already quantified. If plaintiff's branch is held to be entitled for 1/3rd share, it presupposes that other two branches have equal share. Therefore, if petitioner has requested the Court to draw one more preliminary decree, it is well within the jurisdiction of the FDP Court to examine such application and pass one more preliminary decree, which is very much permissible in final decree proceedings. It is more than a trite that final decree proceedings are
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WP No. 101590 of 2023continuation of suit and therefore, this Court is of the view that the learned Judge has virtually adopted a hyper- technical approach while rejecting the application. If the said application is rejected, that would lead to further litigation and will amount to multiplicity of proceedings. All these significant details are not taken note of in final decree proceedings, while rejecting the application. If petitioner has paid court fee, nothing prevents the FDP Court in determining the share of the petitioner.
10. A memo filed by the counsel for respondents reporting death of respondent No.15 is of no consequence as the contesting respondents represents the branch of Channappa, who is allotted 1/3rd share. In an application filed by the petitioner, the 1/3rd share of Channappa is not subject matter, so they are not necessary parties either to the application or to the present writ petition.
11. The contention of respondents that defendant No.9 is no more and his legal heirs are not brought on record coupled with the fact that the land is developed cannot be acceded to. All these transactions and developments are
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WP No. 101590 of 2023made during the pendency of the partition proceedings. Therefore, any alienation or development made will be subject to conclusion of final decree proceedings. Therefore, the respondents 16 to 18 who represent the branch of Channappa have no locus to resist the application. Equally respondent No.31, who is a pendente lite purchaser has no locus to resist for modification in final decree proceedings. He has no say and he cannot object the Court from drawing one more preliminary decree if petitioner has pre-existing right, being a member of joint family. No prejudice would be caused to the other side if his share is carved out and allotted to the petitioner in the manner known to law in final decree proceedings. For the foregoing reasons, I pass the following:
ORDER
i) The writ petition is allowed.
ii) The impugned order on I.A.No.11 dated 27.02.2023 vide Annexure-F is set aside.
Consequently, I.A.No.11 is allowed.
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WP No. 101590 of 2023
iii) The FDP Court shall quantify the share of the petitioner's branch i.e. Mahalingappa's branch in the light of preliminary decree drawn in O.S.No.78/1986.
iv) The FDP Court is directed to pass one more preliminary decree subject to petitioner depositing court fee. While examining the feasibility, the Court Commissioner shall also allot the petitioner his legitimate share in the suit properties.
v) In view of the subsequent development, learned Judge is granted further six months time to pass additional preliminary decree and thereafter proceed to effect partition by metes and bounds in terms of amended provisions of Section 54 of CPC.
SD/-
JUDGE YAN, List No.: 1 Sl No.: 8