Karnataka High Court
Smt.Rajamma vs Smt.Jayamma on 10 October, 2022
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 8756 OF 2022 (GM-CPC)
BETWEEN:
1. SMT.RAJAMMA
W/O LATE CHANDRASHEKARAIAH
AGED ABOUT 78 YEARS,
R/AT KAMMASANDRA VILLAGE
ELECTRONIC CITY POST
ATTIBELE HOBLI ANEKAL TALUK
BENGALURU -560 100
(BENEFIT OF SENIOR CITIZEN NOT CLAIMED)
2. SMT GAYATHRAMMA
W/O NAGARAJ C V
AGED ABOUT 59 YEARS,
R/AT NEAR MARAMAMMA TEMPLE
CHIKKANAHALLI VILLAGE
TAVAREKERE HOBLI
BENGALURU -560 130
3. SMT PUSHPAVATI
W/O GOPALAPPA C
AGED ABOUT 56 YEARS,
R/AT KAMMAVARIPETE
NEAR MARAMMA TEMPLE HOSAKOTE
BENGALURU RURAL DISTRICT-560067
4. SMT MANULA R
W/O LATE K C RAGHU
AGED ABOUT 51 YEARS,
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5. SRI GOVINDARAJ
S/O LATE K C RAGHU
AGED ABOUT 26 YEARS
6. SMT VANDANA
D/O LATE K C RAGHU
AGED ABOUT 23 YEARS,
7. SRI K C NARAYANA SWAMY
S/O LATE CHANDRASHEKARIAH
AGED ABOUT 53 YEARS,
8. SRI K C JAGADISH
S/O LATE CHANDRASHEKHARAIAH
AGED ABOUT 51 YEARS
9. SRI K C RAMAKRISHNA
S/O LATE CHANDRASHEKHARIAH
AGED ABOUT 49 YEARS,
PETITIONER NOS.4 TO 9 ARE
R/AT KAMMASANDRA VILLAGE
ELECTRONIC CITY POST
ATTIBLE HOBLI ANEKAL TALUK
BENGALURU -560 100
...PETITIONERS
(BY SRI. M R RAJGOPAL, LEARNED SENIOR COUNSEL
FOR SRI H N BASAVARAJU, ADVOCATE)
AND:
1. SMT.JAYAMMA
D/O LATE GOVINDAPPA
W/O LAKSHMI NARAYANAPPA V
AGED ABOUT 80 YEARS
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R/AT NO.350 4TH AVENUE
5T MAIN TEACHERS COLONY
KORAMANGALA 1ST BLOCK
BENGALURU -560 034
2. SMT SAROJAMMA
W/O LATE MUNIRATHNAM
AGED ABOUT 76 YEARS,
R/AT NO.258 KHB COLONY
KORMANGALA
BENGALURU -560 034
3. SMT B M KAVITHA
D/O LATE MUNIRATHNAM
AGED ABOUT 47 YEARS,
R/AT NO.258 KHB COLONY
KORAMANGALA
BENGALURU -560 034
4. SRI B M HARISH
S/O LATE MUNIRATHNAM
AGED ABOUT 44 YEARS,
R/AT NO.409 C BLOCK 4TH FLOOR
PURVI LOTUS APARTMENT
HOSAPALYA ROAD HSR LAYOUT
BENGALURU -560 068
5. SRI CHANDRASHEKHAR
S/O DORESWAMY NAIDU
AGED ABOUT 65 YEARS,
R/AT NO.350 4TH AVENUE
5TH MAIN TEACHERS COLONY
KORAMANGALA 1ST BLOCK
BENGALURU -560 034
6. SRI SHESHADRI
S/O DORESWAMY NAIDU
AGED ABOUT 63 YEARS
R/AT NO.277-C 9TH MAIN
SHANTHINIKETHAN LAYOUT
VYSHYA BANK COLONY ARAKERE
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BENGALURU -560 076
7. SRI SUBRAMANI
S/O DORESWAMY NAIDU
AGED ABOUT 61 YEARS,
R/AT SY NO.90/2 DOOR NO.S.414 AND 413
KAMMASANDRA VILLAGE
ELECTRONIC CITY POST
ATTIBELE HOBLI ANEKAL TALUK
BENGALURU -560 100
8. SMT D RADAH
D/O DORESWAMY NAIDU
AGED ABOUT 53 YEARS,
R/AT SY NO.90/2 DOOR NOS.414 AND 413
KAMMADANDRA VILLAGE
ELECTRONIC CITY POST
ATTIBELE HOBLI ANEKAL TALUK
BENGALURU -560 100
9. SRI MANJU BARGAVA
S/O LATE D BHAKTAVATSALA
AGED ABOUT 34 YEARS
R/AT NO.8/244 SRIVARI NILAYAM
M MANJULA BADAVANE 2ND MAIN
2ND CROSS BEHIND COURT
ANEKAL TOWN -560 100
BENGALURU URBAN DISTRICT
10. SMT SAROJAMMA
W/O LATE N VENKATARAMANAPPA
AGED ABOUT 76 YEARS
R/AT KALLANAKUPPE
DODDAMARAVALADI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT-567117
11. SMT JAYAMMA
D/O LATE N VENKATRAMANAPPA
W/O SURYANARAYANA
AGED ABOUT 60 YEARS
R/AT NO.59
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VENKATADRI ANUGRAHA LAYOUT PHASE II NEAR
PRESIDENCY SCHOOL
BILEKAHALLI B G ROAD
BENGALURU -560 076
12. SRI MUNIRATHNAPPA
LATE N VENKATARAMANAPPA
AGED ABOUT 56 YEARS,
R/AT NO.89 SOMESHWARA LAYOUT
3RD CROSS KODICHIKKANAHALLI
OPP M G SCHOOL
BENGALURU -560 078
13. SRI APPAJI
S/O LATE N VENKATARAMANAPPA
AGED ABOUT 54 YEARS,
R/AT KALLNAKUPPE
DODDAMARALAVADI HOBLI
KANAKAPRURA TALUK
RAMANAGARA DISTRICT -562117
14. SMT ROOPA N
W/O LATE KRISHNAPPA
AGED ABOUT 38 YEARS
R/AT NO.9 SOMESHWARA LAYOUT
3RD CROSS KODICIKKANAHALLI
OPP M G SCHOOL
BENGALURU -560 078
15. MS KEERTANA K
D/O LATE KRISHNAPPA
AGED ABOUT 22 YEARS,
R/AT NO.9 SOMESHWARA LAYOUT
3RD CROSS KODICHHIKKANAHALLI
OPP M G SCHOOL
BENGALURU -560 078
16. KUM MADHUSHREE
D/O LATE KRISHNAPPA
AGED ABOUT 17 YEARS,
SINCE MINOR REP BY HER GUARDIAN MOTHER
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RESPONDENT NO.15
17. SRI RAVI V
S/O LATE VENKATARAMANAPPA
AGED ABOUT 48 YEARS,
R/AT NO.59
VENKATADRI ANUGRAHA LAYOUT
PHASE II NEAR PRESIDENCY SCHOOL
BILEKAHALLI B G ROAD
BENGALURU -560 076
18. SRI NARAYANAPPA N
S/O LATE YENGAMMA
AGED ABOUT 79 YEARS,
R/AT KALLANAKUPPE ODDAMARALAVADI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT-562117
19. SMT GOWRAMMA
W/O LATE N SRINIVAS
AGED ABOUT 71 YEARS,
R/AT NO.9 16TH MAIN
KSRTC LAYOUT J P NAGAR
BENGALURU -560 078
20. SRI MOHAN KUMAR
S/O LATE N SRINIVAS
AGED ABOUT 53 YEARS,
R/AT NO.9 16TH MAIN
KSRTC LAYOUT J P NAGAR
BENGALURU -560 078
21. SRI GOPALAKRISHNA
S/O LATE N SRINIVAS
AGED ABOUT 50 YEARS,
R/AT NO.9 16TH MAIN
KSRT LAYOUT J P NAGAR
BENGALURU -560 078
22. SMT SHOBHA
D/O LATE N SRINIVAS
AGED ABOUT 49 YEARS,
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R/AT NO.9 16TH MAIN
KSRTC LAYOUT J P NAGAR
BENGALURU -560 078
23. SMT LAKSHMAMMA
D/O LATE YENGAMMA
W/O LATE HADAIAH
AGED ABOUT 83 YEARS,
R/AT NO.9 16TH MAIN
KSRTC LAYOUT J P NAGAR
BENGALURU -560 078
24. SMT SHANTHAMMA
D/O LATE YENGAMMA
W/O S Y VENKATARAMANAPPA
AGED ABOUT 75 YEARS,
R/AT NO.23 OLF GURAPPANAPALYA
NEAR SRINIVASA STORES
BANNERGHATTA ROAD
BENGALURU -560 076
25. SMT SUSHEELAMMA
D/O LATE YENGAMMA
W/O RAMAIAH
AGED ABOUT 73 YEARS,
R/AT NO.24 NEW GURAPPANAPALYA
NEAR SRINIVASA STORES
BANNERGHATTA ROAD
BENGALURU -560 076
26. SMT SHARADHAMMA
D/O LATE CHENGALARAYAPA AND KAMALAMMA
W/O LATE D C KRISHNAPPA
AGED ABOUT 75 YEARS,
R/AT NO.340 17TH C MAIN
6TH BLOCK KORMANGALA
BENGALURU -560 095
27. SMT PAPAMMA
D/O LATE CHENGALARAYAPPA AND KAMALAMMA
AGED ABOUT 71 YEARS,
R/AT THATTAGANAPALLI VILLAGE
-8-
MUTHALLI POST HOSUR TALUK
KRISHNAGIRI DISTRICT TAMILNADU -635109
...RESPONDENTS
(BY SRI. B K CHANDRASHEKAR, ADVOCATE FOR R1;
SRI. M.S.VARADARAJAN, ADVOCATE FOR R2 TO R25;
SRI. N.SRIDHAR, ADVOCATE FOR R26 AND R27)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DTD.5.3.2022 PASSED BY THE LEARNED
PRINCIPAL CIVIL JUDGE AND JMFC ANEKAL ON IN FDP
NO.4/2021 ANNEXURE-C AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The legal representatives of the plaintiffs in a suit for partition instituted in the year 1989 are even now pursuing the proceedings to receive the benefit of the preliminary decree and in fact, the original parties to the suit are no more and the final decree proceedings is amongst their respective legal heirs. This petition is filed by the legal representatives of the original second defendant, Sri. Chandrashekaraiah, in the suit in O.S.No.134/1989 calling in question the order dated 05.03.2022 in F.D.P.No.4/2021 on the file of the Principal Civil Judge and JMFC, Anekal (for short, 'the civil Court'). -9-
2. The civil Court by this impugned order has appointed the jurisdictional Assistant Director of Land Records (ADLR) and the jurisdictional Public Works Department (PWD), Civil Engineer as court Commissioners to propose respective schemes, as per the preliminary decree, for division of the agricultural lands and non- agricultural properties that are the subject matter of the suit. The facts of the case must be capsulated before recording rival submissions on the merits of the impugned order, and such encapsulation is thus.
3. The suit in O.S.No.134/1989 is amongst the six daughters of Sri. Chengaiah and Smt. Lakshmamma [or the family members of these daughters]. The plaintiffs are their younger daughter - Smt. Gowramma and the only son (Sri. Munirathnam) of another daughter, Smt. Ramakka. The defendants are the other four daughters and their family members. The eldest daughter, Smt. Mangamma, and her sister, Smt. Sakamma are married to Sri. Govindappa - the first defendant. Sri. Chandrashekaraiah - the second defendant - is the son of Smt. Mangamma and Sri. Govindappa. On the demise of
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Sri. Govindappa, his daughter - Smt. Jayamma - is also brought on record. Sri. Chandrashekhariah is no more and is represented by his legal heirs, the present petitioners.
4. The preliminary decree as confirmed by the first appellate Court is in three parts:
(i) there is a declaration of 1/6th share to each of the daughters in the suit Item No.9 property,
(ii) the suit is dismissed as against Item Nos.3, 5 and 6 properties, and
(iii) Sri. Chandrashekaraiah and his sister - Smt. Jayamma along with their mother - Smt. Mangamma and stepmother - Smt. Sakamma are declared as entitled to certain shares in the other suit properties.
This preliminary decree stands confirmed with the disposal of the SLP by the Hon'ble Supreme Court. Smt. Jayamma D/o Sri. Chandrashekaraiah has filed the present final decree proceedings.
5. Sri. M.R.Rajagopal, the learned Senior counsel for the petitioners, submits that both Smt. Mangamma and Smt. Sakamma have executed their last Wills and
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Testaments dated 02.02.1995 bequeathing their undivided interest not just in suit Item No.9 property but also in the other suit Item properties. These Last Wills and Testaments are executed by them bequeathing their interest in favour of Sri. Chandrashekaraiah. Therefore, the petitioners herein, who are the legal heirs of Sri. Chandrashekaraiah, have filed Statement of Objections seeking final decree in the light of such bequest. If the petitioners succeed in their claim based on the Last Wills and Testaments dated 02.02.1995, Smt. Jayamma will not be entitled to any share either in suit schedule Item No. 9 property or the other properties and they will take the shares allotted to Smt. Mangamma and Smt. Sakamma in all the properties to her exclusion.
6. However, Sri. M.R.Rajagopal is categorical that the shares declared to the other daughters/their legal heirs in the suit Item No.9 cannot be affected even if the petitioners succeed in their claim based on the Last Wills and Testaments dated 02.02.1995. He submits that though the petitioners have challenged the appointment of the Court Commissioner, they would restrict the petition to
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the second prayer which is for a direction to the civil Court to hold enquiry on the petitioners' claim under the Last Wills and Testaments dated 02.02.1995 before the final decree is drawn.
As regards the law on which the petitioners could rely upon, he argues that in law though there could be multiple preliminary decrees, there can only be one final decree; in the present case if a final decree is drawn consequent to the Commissioner's report when the petitioners' claim is being enquired into, there could be cause for multiple final decrees and hence, the direction to the civil Court.
7. Sri. B.K.Chandrashekar, the learned counsel for the first respondent - Smt. Jayamma, submits that the first respondent's anxiety is because the petitioners have set up the Last Wills and Testaments, which are purportedly executed in the month of February 1995, for the first time in the final decree proceedings and these Last Wills and Testaments did not see the light of the day though multiple proceedings have been prosecuted over decades. Sri. B.K.Chandrashekar further submits that this Court must necessarily take cognizance of this circumstance even
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to issue a direction to the civil Court to expedite an enquiry on the claim made by the petitioners based on the aforesaid Last Wills and Testaments.
8. Sri. M.S.Varadarajan, the learned counsel who appears for the legal heirs of the other sisters, while echoing Sri. B.K.Chandrashekar's submissions on the proceedings being delayed because of the petitioners' reliance on the Last Wills and Testaments dated 02.02.1995, submits that this Court must consider directing the civil Court to draw final decree insofar as the claim of the other sisters in suit Item No.9 property leaving it open to the civil Court to decide on the claim between the petitioners and the first respondent insofar as their respective claims for the shares of Smt. Mangamma and Smt. Sakkamma. Sri. M.S.Varadarajan emphasizes that the parties have been in the Courts from the year 1989 but without seeing the end of the litigation in any fruitful manner.
9. It must be recorded that neither Sri. B.K.Chandrashekar nor Sri. M.S.Varadarajan contest the proposition that there cannot be multiple final decrees
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though there could be multiple preliminary decrees. When queried on the possible delay in the drawing up of final decree because of the enquiry on the petitioners' claim based on Last Wills and Testaments dated 02.02.1995, Sri. M.R.Rajagopal submits that the dispute is only amongst the petitioners and the first respondent and the petitioners cannot in any manner impede delivery of 1/6th share in the suit Item No. 9 property to the legal heirs of each of the other four sisters if there is a final conclusion on the division of this property by metes and bounds. He emphasizes that he can state, on the instructions of some of the petitioners who are present before the Court, that the petitioners would file an affidavit before the final decree Court placing on record their undertaking that if the final decree is drawn, the petitioners who are in possession of suit Item No.9 property, would on their volition deliver possession of 4/6th shares as demarcated in the final decree to the respective legal heirs of the other four sisters without constraining them to initiate further proceedings for the enforcement of such final decree.
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10. The petitioners' grievance with the impugned order is essentially based on an apprehension that if any final decree is drawn pending enquiry on the petitioners' claim under the Last Wills and Testaments dated 02.02.1995 there could be multiple final decrees, and the respondents' opposition is because the enquiry on the petitioners' claim under these Last Wills and Testaments dated 02.02.1995, which they dispute, will delay the conclusion of the proceedings. This conflict must necessarily be considered in the circumstances which are mostly admitted, including the proposition that there can be only one final decree and the petitioner's undertaking as now placed on record.
11. This Court must observe that the Commissioner's report on division of Item No.9 property by itself would not be conclusive, and the Commissioner's report would be subject to the civil Court's order after due opportunity to all the concerned to file objections, if any. This would take time, and in the meanwhile, the enquiry on the petitioners' claim under the last Wills and Testaments dated 02.02.1995 could be completed. The possible delay
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in drawing up the decree because of such enquiry could be managed if the parties co-operate with the civil Court in ensuring that the enquiry on the petitioners' claim concludes with the parties say on the Commissioner's report for division of Item No.9, or for that matter on the report on the division of the other properties by metes and bounds.
12. This Court is of the considered opinion that if there is such convergence on conclusion and if the petitioners, who are in possession of suit Item No.9, place on record an undertaking that they will deliver possession of 4/6th share to the legal heirs of the other four sisters upon a final decree being drawn without driving these legal heirs to the further proceeding, this would ensure that mutual interests are protected within the four corners of law. Sri. M.R.Rajagopal's statement that the petitioners will file affidavit as aforesaid would advance this cause.
13. When this course is put to B.K.Chandrashekar and Sri. M.S.Varadarajan, they signify that this would be an acceptable course but with the petitioners being put on
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terms in the event they do not hand over possession as now undertaken. Sri. M.R.Rajagopal submits this Court may also stipulate that the parties must assist the civil Court in a time bound closure of the enquiry on the petitioners' claim under the Last Wills and Testaments dated 02.02.1995. In the view of the foregoing, the following:
ORDER a. The petition stands disposed of calling upon the civil Court to call upon the Commissioners to file their respective reports and also to hold an enquiry on the petitioners' claim under the Last Wills and Testaments dated 02.02.1995 executed by Smt. Mangamma and Smt. Sakamma in a time bound manner so that there could be a simultaneous decision not just on such claim but also on the division of the suit schedule properties by metes and bounds in terms of the preliminary decree.
b. The civil Court shall conclude enquiry on the petitioners' claim and decide the Commissioners' report after due opportunity to the parties to file objections, if any, within an outer limit of six [6]
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months from the date of receipt of a certified copy of this order. The civil Court shall issue necessary instructions in this regard to the respective Court Commissioners.
c. The petitioners and the first respondent, who will be parties to the enquiry on the of the petitioners' claims based on the Last Wills and Testaments dated 02.02.1995, shall assist and co-operate with the civil Court in holding such enquiry on a day-to- day basis.
d. The petitioners shall file an affidavit before the civil Court on the next date of hearing viz., 20.10.2022 undertaking to deliver possession of 4/6th share in suit Item No. 9 property to the legal heirs of the other daughters of Sri. Chengaiah and Smt.Lakshmamma upon a final decree being drawn without driving these legal heirs to seek enforcement of such final decree. e. If there is any default in delivering possession of separate shares as aforesaid, the petitioners shall be liable to pay a cost of Rs.20,000/- (Rupees Twenty Thousand Only) every day of delay to the
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legal heirs of each of the daughters in receiving their shares in the suit Item No. 9 property.
In view of disposal of the main petition, all the pending I.As stand disposed of.
Sd/-
JUDGE RB