Karnataka High Court
Smt.Kanthi vs Sri P.D.Jaykumar on 8 April, 2014
Author: Mohan .M.Shantanagoudar
Bench: Mohan .M. Shantanagoudar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8TH DAY OF APRIL, 2014
:BEFORE:
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
WRIT PETITION No.56936/2013 (GM-CPC)
BETWEEN:
1. SMT. KANTHI,
W/O RAJKUMAR.P.S
AGED ABOUT 43 YEARS,
R/AT NO.32, WEST ANJANEYA TEMPLE STREET,
BASAVANAGUDIM,
BANGALORE-560 004.
2. SMT PREMALATHA P.D.
W/O T.VENKATESHWARA RAO,
D/O.LATE P R DAMODAR NAIDU,
NO.7, LIC MODEL COLONY,
BASAVESHWARA NAGAR,
BANGALORE-560 079. ... PETITIONERS
(BY SRI K V NARASIMHAN, ADVOCATE)
AND:
1. SRI P.D. JAYKUMAR,
S/O LATE P.R.DAMODAR NAIDU,
AGED ABOUT 47 YEARS,
R/AT NO.1521/A (NEW NO.62/1),
8TH MAIN, RAJAJINAGAR-A BLOCK
2ND STAGE, BANGALORE-560 010.
2. SMT CHANDRAKANTHAMMA,
W/O.LATE P.R.DAMODAR NAIDU,
AGED ABOUT 72 YEARS,
NO.464, 5TH MAIN, RAJAJINAGAR II STAGE
BANGALORE-560 010.
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3. SMT SARASWATHI P.D.
W/O. LATE MANIVANNAN,
D/O LATE P.R .DAMODAR NAIDU,
AGED ABOUT 52 YEARS,
NOW R/AT HOSUR.
4. DR POORNIMA,
W/O DR S.N. VIJAYAKUMAR,
AGED ABOUT 42 YEARS.
5. SMT LAKSHMI.T,
W/O LATE CHANNAKESHAVAIAH,
AGED ABOUT 60 YEARS.
6. DR.S.N.VIJAYAKUMAR,
S/O. SRI M NARAYANA,
AGED ABOUT 47 YEARS.
RESPONDENT NOS.4 TO 6 ARE
R/AT NO.2306, 9TH MAIN,
D BLOCK, 2ND STAGE,
RAJAJINAGAR,
BANGALORE-560 010. ... RESPONDENTS
(BY SRI G. PAPI REDDY, ADVOCATE FOR R4-R6;
R1-SERVED, UNREPRESENTED.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 18.11.2013 AT ANN-D PASSED IN O.S.
NO.7280/11 ON THE FILE OF THE XXXVIII ADDL. CITY CIVIL
JUDGE, BANGALORE AT ANN-D,
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING: -
ORDER
Notice to respondent Nos.2 and 3 is held sufficient, since they have refused the notice.
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2. By the impugned order, the Court below has directed the plaintiffs to value the suit under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, (herein after referred to as 'the Act' for short for the purpose of convenience and clarity).
3. The suit is for partition and separate possession filed by the petitioners herein claiming 1/5th share. The case of the plaintiffs is that, they and defendant Nos.1 to 3 are joint family members and they are also entitled to 1/5th share. It is also specifically pleaded in paragraph-4 of the plaint that, first defendant executed a sale deed in favour of defendant Nos.4 to 6 on 07.09.2011, on the basis of the created Will said to have been executed by late Sri P.R.Damodar Naidu, who is father of the plaintiffs and defendant Nos.1 to 3.
4. Thus, it is clear that plaintiffs have admitted that, suit property is sold in favour of defendant No.1, who is one of the co-owners of the suit schedule property through registered sale deed dated 07.09.2011. However, plaintiffs denied the validity of the sale deed. -4-
5. Learned Counsel for the petitioners relying upon the Judgment in the case of T.K.Srinivasmurthy and others vs. T.Seetharamaiah and others reported in AIR 1990 Karnataka 149 contend that, Court fee as paid by plaintiffs under Section 35(1) of the Act is just and proper.
6. The said submission cannot be accepted. Under Section 35(1) of the Act, it is specified that in a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, the fee shall be computed on the market value of the plaintiff's share.
In the matter on hand, it is specifically pleaded by the plaintiffs that the title over the property is transferred to defendant Nos.4 to 6. Thus, it is clear that the plaintiffs themselves admit that there is denial of their title over such property which is sold. Hence, the Trial Court is justified in directing the plaintiffs to value the property under Section 35(1) of the Act.
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Since the order of the Court below is just and proper, no interference is called for. Hence, writ petition fails and accordingly the same stands dismissed.
Sd/-
JUDGE KSR