Karnataka High Court
Sri. Uday Reddy vs Sri. S. Mukesh on 24 November, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2023:KHC:42556
RP No. 395 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
REVIEW PETITION NO. 395 OF 2023
BETWEEN:
SRI. UDAY REDDY
AGED ABOUT 44 YEARS
S/O S RI P V REDDY NO 76, OLD NO 23/7
LAVELLE ROAD,
BANGALORE- 560001, DULY REPRESENTED BY
HIS G P A HOLDER SRI P.V. REDDY
...PETITIONER
(BY SRI. SATYANARAYANA.,ADVOCATE)
AND:
1. SRI. S. MUKESH
S/O LATE M SURESH
AGED 54 YEARS,
R/AT NO.43/29 PROMENADE ROAD,
Digitally 2ND CROSS LAYOUT,
signed by
NARASIMHA FRAZER TOWN, BANGALORE-560 005.
MURTHY
VANAMALA
Location: 2. SMT JAYALAKSHMI
HIGH
COURT OF W/O LATE SURESH
KARNATAKA
AGED ABOUT 76 YEARS,
R/AT NO.43/29 PROMENADE ROAD,
2ND CROSS LAYOUT,
FRAZER TOWN, BANGALORE-560 005.
3. SRI M RAMESH
AGED ABOUT 90 YEARS
S/O LATE L C MUNISWAMNY REDDY
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NC: 2023:KHC:42556
RP No. 395 of 2023
NO B-1, 1ST FLOOR,
BRUNTON RUSTOMJI
APARTMENT NO 21,
BRUNTON ROAD,
BANGALORE - 560025.
4. SRI M MAHESH
AGED ABOUT 76 YEARS
S/O LATE L C MUNISWAMY REDDY
SUNSET BOULEVARD
NO 41, KASTURBA CROSS ROAD,
BANGALORE - 560001.
5. SMT M VINUTHA
AGED ABOUT 83 YEARS
W/O LATE SUDHAKAR REDDY
NO 41, KASTURBA CROSS ROAD,
BANGALORE - 560001.
...RESPONDENTS
(BY SRI. MALLIKARJUN C BASAREDDY.,ADVOCATE FOR
R1 & R2;
SRI. W.M. SUNDRAMURTHY, ADVOCATE FOR R3;
SRI. SUNIL P PRASAD, ADVOCATE FOR R4;
SRI. M.S. NARAYAN, ADVOCATE FOR R5)
THIS REVIEW PETITION IS FILED UNDER ORDER
47 RULE 1 OF CPC, PRAYING TO(I) CALL FOR THE
RECORDS IN W.P.NO.12216/2016 (GM-CPC) AND
REVIEW THE ORDER DATED 16/11/2022 PASSED BY
THIS COURT IN W.P.NO.12216/2016(GM-CPC) VIDE
ANNEXURE-A.
THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:42556
RP No. 395 of 2023
ORDER
This Court has disposed of the writ petitions in WP Nos.12216/2016 and 8275/2021 on 16.11.2022 opining that the civil Court could not have rejected the application filed by Sri M. Mahesh [the fourth defendant in the original proceedings] for allocation of the mother - Smt. Munilakshmamma's share [1/6th share] in the subject properties amongst her legal heirs [her four children/the legal heirs of the deceased son] as contemplated under Section 15 of the Hindu Succession Act, 1956. This Court has opined that such claim would be independent of the claim as a legatee under the Last Will and Testament dated 08.04.1994, which stands rejected with the rejection of his petition in WP No. 44204/2014.
2. Further, this Court, while answering the question whether there should be an enquiry on the allocation of the mother's 1/6th share, has opined that such enquiry would not be necessary because -4- NC: 2023:KHC:42556 RP No. 395 of 2023 the relationship amongst the parties is not disputed. This Court has finally called upon the civil Court to conclude the Final Decree proceedings with the mother's 1/6th share in the subject properties being allotted by metes and bounds with 1/5th share being taken by each of the children and 1/5th share being taken by the wife of her deceased son, Sri. M. Suresh and his son- the plaintiffs.
3. At the outset, this Court must record the following.
[a] Though the suit in O.S.No.2905/1983 was initially filed in respect of multiple properties, after this Court's judgement and decree dated 02.12.2009 in RFA No.352/2003 and connected appeals, the present dispute is confined to the lands measuring 2 acres 32 guntas in Sy.No.162/1 and 1 acre 9 guntas in Sy.No.162/2 of Vibhuthipura, Krishnarajapuram Hobli, Bangalore South Taluk [the subject properties]. -5-
NC: 2023:KHC:42556 RP No. 395 of 2023 [b] This suit in O.S.No.2905/1983 is originally commenced by Sri S. Mukesh son of Sri M. Suresh. Sri Muniswami Reddy and Smt. Munilakshmamma1 [who is referred to as the mother] are the parents of Sri. M. Suresh, who is arrayed as the third defendant. On the demise of Sri M.Suresh, his widow, Smt. Jayalakshmi is brought on record as his legal heir and is later transposed as the second plaintiff.
[c] The suit in O.S.No.2905/1983 is decreed declaring that Smt. Jayalakshmi, Sri S. Mukesh and Smt. Munilakshmamma would be entitled to 1/6th share and Smt. Munilakshmamma's other five children would be entitled to the remaining 5/6th share in the properties.
[d] A Division Bench of this Court by the aforesaid judgement dated 02.12.2009 in RFA No.352 1 The first defendant in the suit who has died on 07.03.2002 just before the judgment and decree in the suit. -6-
NC: 2023:KHC:42556 RP No. 395 of 2023 of 2003 has confirmed the civil Court's judgement and decree, but has set aside the finding that the parties would be entitled to a share as aforesaid in suit schedule item No.2 opining that the purchasers would be bona fide purchasers.
[e] In the Final Decree proceedings, two of the sons viz., Sri Ramesh and Sri Mahesh have filed different applications seeking modification of the shares allotted by the aforesaid judgement and decree, but ultimately those applications are rejected and are confirmed with the disposal of the corresponding writ petitions. However, insofar as the application filed by Sri Mahesh, this Court has observed that Smt. Munilakshmamma's 1/6th share should devolve on the children and the legal heirs of the predeceased son, and therefore, they will be entitled to 1/5th share each with the daughter-in-law and grandson [the legal heirs of the predeceased son] together taking 1/5th share.
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4. The present application is filed contending that this Court must review the order dated 16.11.2022 that on the demise of Sri M. Suresh, Smt. Munilakshmamma [his mother], would also be entitled to a share as a class-1 legal heir in his share along with her daughter-in-law and grandson namely, Smt. Jayalakshmi and Sri S.Mukesh. Sri Satyanarayana, the learned counsel for the petitioners, argues in support of the review of this order to this limited extent relying upon the provisions of Section 8 of the Hindu Succession Act, 1956 [for short, the 'Succession Act'].
5. The learned counsel for the other respondents led by Sri Sunil B Prasad, supporting the petition for review, submits that this review would be justified inasmuch as neither the civil Court nor the Division Bench has decided on the share which the mother - Smt. Munilakshmamma would have on the demise of her son Sri M.Suresh, and in the Final -8- NC: 2023:KHC:42556 RP No. 395 of 2023 Decree proceedings, to avoid multiplicity, the same must be considered.
6. However, Sri Mallikarjun C Basareddy, the learned Counsel for Smt. Jayalakshmi and Sri S. Mukesh [the original plaintiffs/ daughter-in-law and grandson], submits that no review would be called for in the light of the fact that Smt. Munilakshmamma had filed a suit during her lifetime for partition against the original plaintiffs in O.S. No.1461/1987, which is dismissed for default on 28.01.1999 and this order has not been called in question by Smt. Munilakshmamma, until her demise on 07.03.2002 or by anybody thereafter.
7. These submissions are considered in the light of the material placed on record. At the foremost, this Court must observe that Smt. Munilakshmamma's right in Sri. M. Suresh's share in the subject properties on his intestate demise is not examined in the present original proceedings or in -9- NC: 2023:KHC:42556 RP No. 395 of 2023 the suit in OS No.1461/1987. This suit is filed by Smt. Munilakshmamma for her share in suit item Nos.4 and 5; and an application filed by her to include a portion of one of the properties referred herein as subject property, is not decided. The suit is ultimately dismissed for default. Smt. Jayalakshmi and Sri S. Mukesh cannot rely upon this disposal of the suit in O.S.No.1461/1987 to assert that the question of Smt. Munilakshmamma's share is decided finally.
8. It is also seen from the points for consideration framed by the Division Bench, and the findings thereon, this aspect has not been considered. The Division Bench has concluded that that the propositus [Sri L.C. Muniswamy Reddy] purchased the subject properties in the year 1964 and 1966 and that on his demise these properties devolved on to his widow and children as Class - I heirs under Section 8 of the Succession Act, and as
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NC: 2023:KHC:42556 RP No. 395 of 2023 such, each one would be entitled to 1/6th share. Further, Sri M. Suresh's share in the subject properties should devolve to his Class - I heirs viz, [Smt. Jalalakshmi, his wife, Sri S.Mukesh, his son, and Smt. Munilakshmamma, his mother] under Section 8 of the Succession Act and each one of them would be entitled for an equal share in such share. Upon Smt. Munilakshmamma dying intestate, her share [i.e., her share in her own right and as a Class - I heir of her son, Sri. M. Suresh] must be divided amongst her children and the widow and the son of the predeceased son. Consequentially, the respective shares devolve in the following manner:
On the demise of Sri. Muniswamy Reddy Smt. Sri Sri Smt. Smt. Sri Munilakshmamma Ramesh Mahesh Lalitha Vinutha Suresh 16.67% 16.67% 16.67% 16.67% 16.67% 16.67% On the demise of Sri. Suresh, Smt. Munilakshmamma's share get enlarged to 22.22% [16.67% + 5.56%]
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NC: 2023:KHC:42556 RP No. 395 of 2023 Sri Suresh 16.67% Smt. Smt. Jayalakshmi Sri. Mukesh Munilakshmamma 5.56% 5.56% 5.56% 22.222% 5.56% 5.56% On the demise of Smt. Munilakshmamma, the respective shares will be:
Sri Sri Smt. Smt.
Smt.Jayalakshmi Sri.Mukesh
Ramesh Mahesh Lalitha Vinutha
16.67% 16.67% 16.67% 16.67% 5.56% 5.56%
+ + + + + +
4.44% 4.44% 4.44% 4.44% 2.22% 2.22%
21.11% 21.11% 21.11% 21.11% 15.56%
It is obvious from the above that there is error apparent in this Court order dated 16.11.2022 in WP Nos.12216/2016 and 8275/2021 on division of the subject properties by metes and bounds without considering the same, and hence, the following:
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NC: 2023:KHC:42556 RP No. 395 of 2023 ORDER This Court's order dated 16.11.2022 in WP Nos.12216/2016 and 8275/2021 is modified by review calling upon the civil Court to conclude the Final Decree proceedings dividing the subject property by metes and bounds in the following manner and otherwise this Court's order is unaltered.
Sri Sri Smt. Smt. Smt.
Sri.Mukesh
Ramesh Mahesh Lalitha Vinutha Jayalakshmi
21.11% 21.11% 21.11% 21.11% 7.78% 7.78%
SD/-
JUDGE
NV