Karnataka High Court
Sri. K. C. Pilla Madappa vs Smt. M. Shilpakala on 3 July, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2017
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
CIVIL REVISION PETITION NO.502 OF 2016
BETWEEN:
1. SRI. K. C. PILLA MADAPPA
S/O. LATE CHIKKAMADAPPA @ KACCHAPPA,
AGED ABOUT 63 YEARS,
2. SMT. M. SOWBAGHYA LAKSHMI
W/O. SRI. K.C. PILLAMADAPPA,
AGED ABOUT 55 YEARS
3. SRI. M. GAJENDRA
S/O. SRI. K.C. PILLAMADAPPA,
AGED ABOUT 34 YEARS
ALL RE RESIDING AT #50,
RAJATHADRI NILAYA,
KALKERE VILLAGE,
HORAMAVU POST,
K.R. PURAM HOBLI,
BENGALURU EAST TALUK,
BENGALURU. ... PETITIONERS
(BY SRI.Y.R.SADSHIVA REDDY, SR. COUNSEL FOR
SRI.K SANATH KUMAR SHETTY, ADV. )
AND:
SMT. M. SHILPAKALA
W/O. DR. RAMEGOWDA,
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& D/O. K.C. PILLAMADAPPA,
AGED ABOUT 36 YEARS,
R/AT #50, SHARADA COMPLEX,
OPP: NEW BALDWIN SCHOOL,
RAMAMURTHYNAGARA MAIN ROAD,
BANASVADI,
BENGALURU-560 043. ... RESPONDENT
(BY SRI.G PAPI REDDY, ADV. )
THIS CRP IS FILED UNDER SEC.115 OF CPC., AGAINST
THE ORDER DATED 27.08.2016 PASSED ON IA NO.3 IN OS
NO.1070/2016 ON THE FILE OF THE XXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY, (CCH 14), DISMISSING
THE IA NO.3 FILED U/O 7 RULE 11(A)(C) AND (D) R/W SEC.151
OF CPC.
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are the defendants in O S No.1070/2016 on the file of the 31st Additional City Civil Judge, (CCH No.14), Bengaluru. The respondent is the plaintiff filed the suit for partition and separate possession. The petitioners filed I.A. under Order VII Rule 11 r/w Section 151 CPC. which came to be rejected, aggrieved by which, the present revision petition is filed.
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2. The grounds taken by the petitioners is that father of the plaintiff inherited the property by partition of the joint family property on 18.5.1972. As on the said date, the plaintiff was not born. Though he inherited some property by partition, the remaining property he has acquired by purchase on his own. In addition to it, when the plaintiff got married, he has given sufficient property. In response to the same, the plaintiff has executed registered release deed in favour of the defendant. The defendants are parents and brother of the plaintiff. As per Section 8 of Hindu Succession Act, it is either son or the daughter not entitled for property during life time of father. In the circumstances, the learned senior counsel for the petitioners submits, court below committed an error in rejecting the application. When the plaintiff herself has executed release deed in response to the properties given to her for marriage, plaintiff is not entitled for any more property.
3. The learned counsel for the respondent submits to dismiss the petition. The suit for partition and separate possession is filed in respect of 19 items of properties. Item 4 Nos.1 to 11 are ancestral property which are inherited by her father and out of the income generated therefrom, the defendants acquired item Nos.12 to 19 properties. Hence the entire 19 items of properties are amenable for partition. These are disputed facts which are to be adjudicated in a full-fledged trial. Accordingly, it is prayed to dismiss the revision petition.
4. The release deed which was produced by the petitioners was considered and rejected on the ground that the plaintiff has also challenged the same as null and void. The subject matter of the suit, the ancestral properties on which the daughter is entitled to share being a coparcener by virtue of amendment made to Section 6. When these are the complicated questions involved in the suit, it cannot be closed by simply invoking Order 7 Rule 11 CPC. is the further contention of the learned counsel for the respondent.
7. The learned for the petitioners relied upon decision in Uttam vs., Saubhag Singh & others, reported in (2016) 4 SCC 68 and the learned counsel for the respondent relied upon decision in Ganduri Koteshwaramma & another vs., Chakiri Yanadi & 5 another, reported in (2011) 9 SCC 788, Prakash & Others v. Phulavati & Others, reported in AIR 2016 SC 769, Prema v. Nanje Gowda & others, reported in 2011 AIR SCW 3443 and Civil Revision Petition No.303/2012 (Sri G Siddaiah & another vs., Smt.Gangalakshmamma).
8. The suit filed by the plaintiff is for partition and separate possession. The matter involved provisions of Section 6 of the Hindu Succession Act. When such is the question, it is the duty of the court to decide whether the plaintiff is to be treated as a coparcener for the purpose of inheritance. It is the submission of the petitioners that execution of release deed is sufficient to reject the plaint as the same is executed after accepting number of properties given to her at the time of marriage. Hence she has given up her rights not to claim any right of partition. The same cannot be considered. The very execution of the release deed has been challenged and prayer made to set aside the same as null and void. When that is the prayer made by the plaintiff, this is not the stage, it is only premature stage for the purpose of rejection of the plaint. The court below has 6 formulated point No.1 as to whether the defendants have made out a case for rejection of plaint and answered the same in the negative. For the purpose of answering the same, the learned Judge has examined the respective pleadings and properties involved for the purpose of partition. When rights are sought to be declared by virtue of partition, it is to be examined and it is possible in a full-fledged trial. It has to be borne in mind, rejection of plaint is an exception while adjudication or complete trial is a rule. In the light of the same, I do not find any irregularity in the impugned order.
Accordingly, the petition is rejected. However, the trial court is directed to dispose of the suit early.
Sd/-
JUDGE akd