Karnataka High Court
Dr. Padmarajamma vs Smt. Shanthamma on 7 November, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2025:KHC:45626
WP No. 12825 of 2021
C/W WP No. 5623 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
WRIT PETITION NO. 12825 OF 2021 (GM-CPC)
C/W
WRIT PETITION NO. 5623 OF 2021 (GM-CPC)
IN WP No. 12825/2021:
BETWEEN:
1. DR. PADMARAJAMMA
SINCE DEAD, REPRESENTED BY LRs
1a. MS. RUKMINIDEVI
1b. DR. VINAY PANDIT
ARE ALREADY ON RECORD.
2. MS. RUKMINIDEVI
AGED ABOUT 64 YEARS
D/O PANDIT VENKATARAMANACHAR(LATE).
3. DR. VINAY PANDIT
AGED ABOUT 38 YEARS
S/O NARAYANA PANDIT(LATE)
Digitally
signed by ALL ARE RESIDING AT NO.1379
NANDINI M S 24TH CROSS, 24TH MAIN
Location: BANASHANKARI SECOND STAGE
HIGH COURT
OF BENGALURU - 560 070.
KARNATAKA ...PETITIONERS
(BY SMT. S.R. PRATHIMA, ADV., FOR P-2 & P-3)
AND:
1. SMT. SHANTHAMMA
SINCE DECEASED
REPRESENTED BY RESPONDENTS
NO.2 TO 5 AS LEGAL HEIRS.
2. SMT. RANGANAYAKI
AGED ABOUT 64 YEARS
D/O PANDIT VENKATARAMACHAR(LATE)
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WP No. 12825 of 2021
C/W WP No. 5623 of 2021
HC-KAR
3. SMT. PUNYAVATHI
AGED ABOUT 62 YEARS
D/O PANDIT VENKATARAMACHAR(LATE)
4. SMT. BAGYAVATHI
AGED ABOUT 58 YEARS
D/O PANDIT VENKATARAMANACHAR(LATE)
5. SMT. VIJAYA
AGED ABOUT 53 YEARS
D/O PANDIT VENKATARAMACHAR(LATE).
RESPONDENTS 1 TO 5 ARE
RESIDING AT NO.92, DR. D.V.G. ROAD
BASAVANAGUDI
BENGALURU - 560 004.
6. SRI C. SRINIVAS PANDIT
AGED ABOUT 65 YEARS
S/O PANDIT VENKATARAMACHAR(LATE)
NO.92, DR D V G ROAD
BASAVANAGUDI
BENGALURU - 560 004.
7. SMT. VARUDHINI PANDIT
AGED ABOUT 54 YEARS
W/O SRI NARAYANA PANDIT(LATE).
8. SRI AJAY PANDIT
AGED ABOUT 36 YEARS
S/O SRI NARAYANA PANDIT(LATE)
RESPONDENTS 7 AND 8 ARE
RESIDING AT SESHAPPA THOTA
MADANAPALLI, CHITTOOR DISTRICT
ANDHRA PRADESH - 517 325.
...RESPONDENTS
(BY SRI ARUN B.M, ADV., FOR R-2, R-4 & R-5;
SRI S.K. MITHUN, ADV., FOR R-3;
SRI V. SANJAY KRISHNA, ADV., FOR R-6;
R-1 DIED REPRSENTED BY R-2 TO R-5, V/O/D 14.11.2022;
SRI MOHAMED ATHOR & ASSTS. FOR R-7 & R-8;
P-1 DIED REPRESENTED BY LRs P-2 & P-3
V/O/D 23.10.2024)
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WP No. 12825 of 2021
C/W WP No. 5623 of 2021
HC-KAR
THIS W.P. IS FILED UNDER ARTILCE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD.12.2.2021 PASSED BY THE COURT OF XV-ADDITIONAL CITY
CIVIL JUDGE BENGLAURU IN F.D.P.NO.33/2012 VIDE ANNEXURE-K.
IN WP NO. 5623/2021:
BETWEEN:
1. SMT. SHANTHAMMA
SINCE DECEASED BY LRs
PETITIONERS 2 TO 5 HEREIN
2. SMT. RANGANAYAKAI
AGED ABOUT 62 YEARS.
3. SMT. V. PUNYAVATHI
AGED ABOUT 57 YEARS.
4. SMT. V. BHAGYAVATHI
AGED ABOUT 54 YEARS.
5. SMT. V. VIJAYA
AGED ABOUT 52 YEARS.
PETITIONERS 2 TO 4
ARE THE DAUGHTERS OF
LATE PANDIT VENKATARAMANACHAR.
PETITIONERS 1, 3 & 5 ARE RESIDING
AT 92, DR. D.V.G. ROAD
BASAVANAGUDI, BANGALORE - 560 004.
PETITIONER NO.2 IS PRESENTLY RESIDING
NO.69, 'SHRAVAN', PUTTANNA ROAD
BASAVANAGUDI, BANGALORE - 560 004.
...PETITIONERS
(BY SRI ARUN B.M, ADV., FOR P-2, R-4 & P-5)
AND:
1. SMT PADMA RAJAMMA
AGED ABOUT 76 YEARS
D/O LATE DR. PANDIT VENKATRAMANACHAR
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HC-KAR
SINCE DECEASED BY LRs
PETITIONERS NO.2 TO 5 &
RESPONDENTS 2 TO 6.
2. SMT. RUKMINI DEVI
AGED ABOUT 63 YEARS
D/O LATE DR PANDIT VENKATARAMANACHAR.
3. SHRI VINAY PANDIT
AGED ABOUT 38 YEARS
S/O LATE DR. PANDIT VENKATARAMANACHAR.
NOs. 1 TO 3 ARE RESIDING AT
NO. 1379, 24TH CROSS, 24TH MAIN
BANASHANKARI II STAGE
BANGALORE - 560 017.
4. SHRI SRINIVASA PANDIT
AGED ABOUT 60 YEARS
S/O LATE PANDIT VENKATARAMANACHAR
RESIDING AT 2533/2
28TH CROSS, 22ND MAIN
BANASHANKARI II STAGE
BENGALURU - 560 070.
5. SMT. VARUDHINI PANDIT
AGED ABOUT 55 YEARS
W/O LATE DR. NARAYAN PANDIT.
6. SHRI AJAY PANDIT
AGED ABOUT 37 YEARS
S/O LATE DR. NARAYAN PANDIT.
NOs. 5 & 6 ARE RESIDING AT
C/O SHRI VIDYA SAGAR
SCHOOL MASTER
SHESHAPPA THOTA
MADANAPALLI
CHITTOR DISTRICT
ANDHRA PRADESH
PIN - 517 325.
...RESPONDENTS
(BY SRI V. SANJAY KRISHNA, ADV., FOR R-4;
SMT. S.K. PATHIMA, ADV., FOR R-2 & R-3;
SRI MOHAMMED ATHAR, ADV., FOR R-5 & R-6;
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NC: 2025:KHC:45626
WP No. 12825 of 2021
C/W WP No. 5623 of 2021
HC-KAR
P-2 TO P-5 & R-2 TO R-6 ARE LRS OF P-1 & R-1
RESPECTIVELY)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DTD.6.2.2020 PASSED IN FDP NO.33/2012 BY THE XV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE BENGALURU
(CH3) VIDE ANENXUR-A AND ALLOW THE APPLICATION IA
NO.1/19 FILED BYTHE PETITIONER/R-1 TO 5.
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
COMMON ORAL ORDER
1. Writ petition No.12825 of 2021 is filed under Article 227 of the Constitution of India with a prayer to set aside the order dated 12.02.2021 in F.D.P.No.33 of 2012 and Writ petition No.5623 of 2021 is filed to set aside the order dated 06.02.2020 passed on I.A.No.1 of 2019 in FDP.No.33 of 2012 by the Court of XV Additional City Civil & Sessions Judge, Bengaluru.
2. Since these two petitions arise out of a common proceedings, they are heard together and disposed of by this common order with the consent of the learned counsel appearing for the parties.
3. Heard the Learned counsel for the parties. -6-
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4. Facts leading to filing of this petition narrated briefly are, petitioners herein had filed O.S.No.4163 of 1989 seeking the relief of partition and separate possession of the suit schedule property. The said suit was partly decreed on 17.04.2008 and it was held that suit schedule Item Nos.1, 2, 4 to 7 of the suit schedule properties are to be partitioned and Item Nos.9 and 10 of the suit schedule properties were held to be the self-acquired property of defendant no.2 and were not available for partition. It was further held that Item No.3 property was kept open for the purpose of establishment of 'Ayurvedic Medical College and Hospital' to fulfil the ambition of Pandit Venkatramanachar, who is the father of the plaintiffs and defendant no.2 and since defendant no.2 Dr.Padmarajamma was a qualified person in Ayurvedic medical field, she was given the responsibility and management of the Item No.3 property for establishing an 'Ayurvedic Medical College and Hospital' in the said property and income to be derived from the said property was to be allotted to the other members of the joint family equally. Subsequently, final decree proceeds in FDP.No.33 of 2012 was initiated by some of the defendants in O.S.No.4163 of 1989 and in the said -7- NC: 2025:KHC:45626 WP No. 12825 of 2021 C/W WP No. 5623 of 2021 HC-KAR proceedings, a court commissioner was appointed, who had submitted a report on 10.07.2015. The trial Court vide the order impugned dated 12.02.2021 has accepted the report dated 10.07.2015 submitted by the court commissioner in respect of Item No.4 and 5 of the petition schedule property and the report was rejected in respect of Item No.1, 2 & 3 of the petition schedule property. Being aggrieved by the said order, defendant no.2, 3 and 5 in O.S.No.4163 of 1989 are before this Court in W.P.No.12825 of 2021. Petitioners herein who are the plaintiffs in O.S.No.4163 of 1989 had filed I.A.No.1 of 2019 to include suit schedule Item No.3 property as Item No.7 in the final decree proceedings and the prayer made in I.A.No.1 of 2019 was opposed by the defendants in O.S.No.4163 of 1989. The trial Court, vide the order impugned dated 06.02.2020, has dismissed I.A.No.1 of 2019 and being aggrieved by the same, plaintiffs in O.S.No.4163 of 1989 are before this Court in WP No.5623 of 2021.
5. Learned counsel for the petitioners in W.P.No.12825 of 2021, submits that during the pendency of these petitions, Dr.Padmarajamma, who was defendant no.2 in O.S.No.4163 of -8- NC: 2025:KHC:45626 WP No. 12825 of 2021 C/W WP No. 5623 of 2021 HC-KAR 1989 has died on 02.02.2023. After her death, on the strength of the last will executed by her, petitioner nos.2 and 3 in W.P.No.12825 of 2021 are permitted to come on record as the legal representatives. Item No.3 of the suit schedule property has been bequeathed in favour of petitioner nos.2 and 3 in WP No.12825 of 2021 by Dr. Padmarajamma under her last will. Therefore, the said property is not available for partition. She submits that even otherwise the said property is kept away from partition in the preliminary decree that was passed in O.S.No.4163 of 1989 with an observation that the said property shall be utilised for the purpose of constructing an Ayurvedic Medical College and Hospital under the supervision of defendant no.2 - Dr. Padmarajamma.
6. The Hon'ble Supreme Court in SLP (Civil) No.4778/2016 has observed that the decree passed in O.S.No.4163 of 1989 insofar as it relates to Item No.3 of the suit schedule property is final in nature. Therefore, the trial court was fully justified in rejecting I.A.No.1 of 2019 wherein a prayer is made to include Item No.3 property in the final decree. She also submitted that the trial Court has erred in -9- NC: 2025:KHC:45626 WP No. 12825 of 2021 C/W WP No. 5623 of 2021 HC-KAR rejecting the court commissioner's report insofar as it relates to Item No.1 to 3 of the petition schedule property which is Item Nos. 1, 2 and 4 in the suit schedule property. She accordingly prays to allow W.P.No.12825 of 2021 and dismiss W.P.No.5623 of 2021.
7. Learned counsel appearing for the petitioners in W.P.No.5623 of 2021 opposing the prayer made in W.P.No.12825 of 2021 submits that the trial Court was fully justified in rejecting the report of commissioner insofar as it relates to petition schedule Item Nos.1 to 3 property (Item Nos.1, 2 & 4 of suit schedule property) and the trial Court has assigned valid reason for the same. No fault can be found with the order passed by the trial Court rejecting the Court commissioner's report insofar as Item Nos.1 to 3 of petition schedule property. He submits that during pendency of these writ petitions, defendant no.2 had died. Therefore, in view of supervening circumstances, rights of parties has opened in respect of suit schedule Item No.3 property which was left out of partition for the reason that the said property is required to be utilized for constructing an 'Ayurvedic Medical College and
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NC: 2025:KHC:45626 WP No. 12825 of 2021 C/W WP No. 5623 of 2021 HC-KAR Hospital'. He has placed reliance on the judgment of the Hon'ble Supreme Court in the case of GANDURI KOTESHWARAMMA AND ANR V. CHAKIRIYANADI AND ANR - (2011) 9 SCC 788 and submits that if any change or supervening circumstances is found, a preliminary decree can always be modified before passing a final decree. The contesting parties can always oppose the partition by putting forward their defence. He accordingly, prays to dismiss W.P.No.12825 of 2021 and allow W.P.No.5623 of 2021.
8. The suit in O.S.No.4163 of 1989 was filed by the petitioners in W.P.No.5623 of 2021 seeking the relief of partition and separate possession of suit schedule properties which consisted of immovable properties and also certain other movable properties. The trial Court vide the judgment and decree dated 17.04.2008 had partly decreed the suit and a preliminary decree was drawn wherein it was held that Item Nos.1, 2, 4 to 7 are liable to be partitioned into equal 8 shares and Item Nos.9 and 10 were held not available for partition and it was further held that Item No.3 is kept open for establishing 'Ayurvedic Medical College and Hospital' to fulfil ambition of
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NC: 2025:KHC:45626 WP No. 12825 of 2021 C/W WP No. 5623 of 2021 HC-KAR Pandit Venkatramanachar, for which the said land was sanctioned and meant for.
9. Defendant no.2 - Dr. Padmarajamma, who was a qualified Ayurvedic doctor was given responsibility and management of Item No.3 for the purpose of establishing 'Ayurvedic Medical College and Hospital' and income to be derived from the said property was to be allotted to other members of joint family equally. The plaintiffs are the children born to Pandit Venkatramanachar from his second wife and defendant no.2 is the daughter of Pandit Venkatramanachar from his first wife.
10. The decree passed in O.S.No.4163 of 1989 was challenged by the plaintiffs, in RFA No.883 of 2008 before this Court which was partly allowed and it was held that insofar as Item No.3 property is concerned it shall be utilized for putting up a Ayurvedic college and hospital and since the said property was acquired and compensation was fixed at Rs.10,065.37/- it was held that the plaintiffs are entitled for Rs.5,000/- with 6% interest from the date of suit till date the amount is paid or deposited. The plaintiffs thereafter had filed Review Petition
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NC: 2025:KHC:45626 WP No. 12825 of 2021 C/W WP No. 5623 of 2021 HC-KAR No.236 of 2014 with a prayer to review the judgment and decree passed in RFA No.883 of 2008 and vide order dated 29.10.2015, Review Petition No.236 of 2014 was allowed and in paragraph No.4 of the order passed in Review Petition No.236 of 2014 it was observed as follows:
"4. On hearing learned counsels, I'am of the view that there is an error apparent on the face of the record. Notwithstanding the merits of the order passed in the order under review, the question of granting any property to either one of the parties would not arise for consideration in the present proceedings. The present proceedings were only restricted to the extent of declaring the shares of the parties and as to what each one of the parties is entitled to. To hold that certain property has to be divided to one of the parties is beyond the scope of the case. Therefore, in my opinion, it is an error committed in the order under review."
11. Assailing the said order passed in Review petition No.236 of 2014, defendant nos.1 and 2 in O.S.No.4163 of 1989 had approached the Hon'ble Supreme Court in Civil Appeal No.8945 of 2017, which was allowed on 06.07.2017 and in the order passed in Civil Appeal No.8945 of 2017 it was held that insofar as Item No.3 of the suit schedule property is concerned,
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NC: 2025:KHC:45626 WP No. 12825 of 2021 C/W WP No. 5623 of 2021 HC-KAR the decree passed in O.S.No.4163 of 1989 was not merely preliminary but final as well.
12. Final decree proceedings in FDP.No.33 of 2012 has been initiated in the present case by contesting defendants. The plaintiffs, who are respondent nos.1 to 5 in FDP.No.33 of 2012 had filed I.A.No.1 of 2019 with a prayer to include Item No.3 of suit schedule property as Item No.7 in the FDP and the said application was opposed by the petitioners in FDP.No.33 of 2012. The trial Court has rejected I.A.No.1 of 2019 vide the order dated 06.02.2020, which is assailed in W.P.No.5623 of 2021.
13. During pendency of these petitions, defendant no.2 Dr.Padmarajamma has died on 02.02.2023. Item No.3 of the suit schedule property was not brought for partition in preliminary decree passed in O.S.No.4163 of 1989 and the said property was kept open for the purpose of establishing 'Ayurvedic Medical College and Hospital' to fulfil the ambition of Pandit Venkatramanachar, who is the father of the plaintiffs and defendant no.2.
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14. Dr.Padmarajamma was given the responsibility and management of Item No.3 property for the purpose of establishing 'Ayurvedic Medical College and Hospital'. Undisputedly, till date nature of Item No.3 property has not been changed and it remains as a vacant property. It is not in dispute that Item No.3 property originally belonged to Pandit Venkatramanachar, who is the father of plaintiff and defendant no.2 and undisputedly Pandit Venkatramanachar has died intestate. In view of rival claim made by the parties, the Court will be obliged to frame issues on the basis of pleadings of the parties and thereafter give its findings based on the oral and documentary evidence placed on record on which a preliminary decree can be drawn. Though in preliminary decree passed in O.S.No.4163 of 1989 it was ordered that Item No.3 property is kept open for the purpose of establishing 'Ayurvedic Medical College and Hospital' and in Civil Appeal No.8945 of 2017 which arises out of O.S.No.4163 of 1989, the Hon'ble Supreme Court has observed that the decree passed in O.S.No.4163 of 1989 is final in nature after the death of Dr.Padmarajamma, in view of supervening circumstances, rights of the parties who claim
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NC: 2025:KHC:45626 WP No. 12825 of 2021 C/W WP No. 5623 of 2021 HC-KAR under Pandit Venkatramanachar in respect of Item No.3 property gets opened.
15. The Hon'ble Supreme Court in the case of PHOOLCHAND AND ANOTHER V. GOPAL LAL - AIR 1967 SUPREME COURT 1470 in paragraph no.7 has observed as follows "7. We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and 8 specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in
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NC: 2025:KHC:45626 WP No. 12825 of 2021 C/W WP No. 5623 of 2021 HC-KAR that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible- and obviously this is so because the High Courts have differed on the question-we would prefer the view taken by the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. Whether there can be more than one final decree does not arise in the present appeal and on that we express no opinion. We therefore hold that in the circumstances of this case it was open to the court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further as there was dispute between the
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NC: 2025:KHC:45626 WP No. 12825 of 2021 C/W WP No. 5623 of 2021 HC-KAR surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and was liable to appeal. We therefore agree with the view taken by the High Court that in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree. We should however like to make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contention of the appellant."
16. Reiterating the principle laid down in the case of PHOOL CHAND(supra) the Hon'ble Supreme Court in the case of GANDURI KOTESHWARAMMA (supra) has held that having regard to the change or supervening circumstances, preliminary decree can be modified before passing final decree and in paragraph Nos.14 and 21 of the said order it is observed as follows :-
"14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is
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NC: 2025:KHC:45626 WP No. 12825 of 2021 C/W WP No. 5623 of 2021 HC-KAR partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.
21. It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree".
17. In the case of SATNAM SINGH AND ORS. V. SURENDER KAUR AND ANR. - (2009) 2 SCC 562, the Honb'le Supreme Court has held that the High Court had erred in holding that additional properties cannot be added for partition after the preliminary decree attained finality in terms of Section 97 of the Code. It was observed in the said case that
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NC: 2025:KHC:45626 WP No. 12825 of 2021 C/W WP No. 5623 of 2021 HC-KAR Section 97 of the Code would not be a bar to file an application for amendment of decree. Therefore, I am of the opinion that the trial Court was not justified in rejecting the prayer made by the contesting respondent nos.1 to 5 in FDP No.33 of 2012 to include Item No.3 of the schedule property, which was kept out in the preliminary decree to be added as Item No.7 in the FDP.
18. In the case of PHOOL CHAND (supra) the Hon'ble supreme court has held that any number of preliminary decrees can be passed and therefore in the event additional properties is sought to be partitioned by including the same in the FDP, for which separate preliminary decree can be drawn, which is subject to an appeal as provided under Section 97 of CPC, no hardship would be caused to the other side. If prayer made in I.ANo.1 of 2019 is granted, it would avoid multiplicity of proceedings and also serve the ends of justice.
19. The contentions urged on behalf of the petitioners in W.P.No.5623 of 2021 that Dr.Padmarajamma has died leaving behind a will bequeathing Item No.3 of the suit schedule property in favour of the petitioner Nos.2 and 3 in W.P.No.12825 of 2021 are required to be raised and
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NC: 2025:KHC:45626 WP No. 12825 of 2021 C/W WP No. 5623 of 2021 HC-KAR adjudicated before the trial Court and the same cannot be considered at this stage by this Court. Under the circumstances, I am of the opening that the order passed on I.A.No.1 of 2019 in FDP No.33 of 2012 rejecting the prayer made by respondent Nos.1 to 5 in the said proceedings for including Item No.3 of the suit schedule property as Item No.7 in the FDP cannot be sustained.
20. Insofar as the order impugned passed by the trial Court dated 06.02.2020 wherein the Court commissioner report dated 10.07.2015 has been partially accepted, the said order needs to be set aside in view of order passed in W.P.5623 of 2021 wherein it is now held that the prayer made in I.A.No.1 of 2019 in FDP No.33 of 2012 is required to be granted. The Court commissioner may have to file a fresh final report depending upon the outcome of the adjudication relating to the rights of the parties with regard to Item No.3 of the suit schedule property. Therefore, I am of the opinion that, on this short ground, the order impugned dated 06.02.2020 passed in FDP No.33 of 2012 is also liable to be set aside and consequently
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NC: 2025:KHC:45626 WP No. 12825 of 2021 C/W WP No. 5623 of 2021 HC-KAR W.P.12825 of 2021 and W.P.No.5623 of 2021 are to be allowed.
21. Accordingly, the following:-
ORDER i. Writ petitions are allowed.
ii. The order dated 06.02.2020 passed by the Court of XV Addl. City Civil & Sessions Judge, Bengaluru in F.D.P.No.33 of 2012 on the commissioner's report dated 10.07.2015 is set aside.
iii. The order dated 06.02.2020 passed on I.A.No.1 of 2019 in F.D.P.No.33 of 1012 is set aside and consequently the prayer made in I.A.No.1 of 2019 is granted.
iv. All contentions urged on behalf of the parties with regard to rights of parties to succeed in respect of Item No.3 of suit schedule property is left open.
Pending applications do not survive for consideration and accordingly the same are disposed of.
Sd/-
(S VISHWAJITH SHETTY) JUDGE NMS