Karnataka High Court
Dr Ranjan R Pai vs Smt Kamalamma on 17 March, 2023
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CRP No. 71 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CIVIL REVISION PETITION NO. 71 OF 2017
BETWEEN:
1. DR. RANJAN R. PAI,
S/O. DR. RAMDAS M. PAI,
AGED ABOUT 45 YEARS.
2. MRS. SHRUTHI R. PAI,
W/O. DR. RANJAN R. PAI,
AGED ABOUT 36 YEARS.
BOTH ARE RESIDING AT,
NO. 325, 5TH MAIN,
1ST BLOCK, KORAMANGALA,
BENGALURU - 560 034.
REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER,
MR. P. SATISH PAI,
S/O. LATE. P. NARASIMHA PAI,
Digitally AGED ABOUT 69 YEARS,
signed by RESIDING AT NO.9, 'ASHWINI',
SUMA
8TH MAIN ROAD, RMV EXTENSION,
Location:
HIGH COURT BENGALURU - 560 080.
OF
KARNATAKA ...PETITIONERS
(BY SRI. M. S. RAGHAVENDRA PRASAD AND
SRI ABHINANDAN H., ADVOCATES)
AND:
1. SMT. KAMALAMMA,
W/O. SRI. NARASIMHAIAH,
D/O. MARAPPA,
AGED ABOUT 51 YEARS.
2. SMT. MUNIRATHNAMMA,
W/O. THIMMANARASAPPA,
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CRP No. 71 of 2017
D/O. MARAPPA,
AGED ABOUT 44 YEARS.
3. SMT. KULLAMMA,
W/O. RAJANNA,
D/O. MARAPPA,
AGED ABOUT 41 YEARS.
4. SMT. VARALAKSHMI,
W/O. VENKATRAM,
D/O. MARAPPA,
AGED ABOUT 38 YEARS.
ALL ARE RESIDING AT,
JAKKUR PLANTATION,
JAKKAUR VILLAGE, YELAHANKA HOBLI,
BENGLAURU NORTH TALUK,
BENGALURU - 560 064.
5. SRI. MARAPPA,
S/O. LATE. DODDASUBBAIAH
AGED ABOUT 81 YEARS.
6. SRI. SHIVASHANKAR,
S/O. SRI. MARAPPA,
AGED ABOUT 41 YEARS.
7. SRI. SRINIVAS,
S/O. SRI. MARAPPA,
AGED ABOUT 33 YEARS.
8. SRI. DALAHANUMAIAH,
S/O. LATE. DODDASUBBAIAH,
AGED ABOUT 54 YEARS.
9. SRI. KRISHNAMURTHY
S/O. LATE. DODDASUBBAIAH,
AGED ABOUT 51 YEARS.
THE RESPONDENTS 5 TO 9 ARE,
RESIDING AT: JAKKUR PLANTATION,
JAKKAUR VILLAGE, YELAHANKA HOBLI,
BENGLAURU NORTH TALUK,
BENGALURU - 560 064.
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CRP No. 71 of 2017
10. SRI. R. VENKATESH,
S/O. N. V. RAMANNA,
AGED ABOUT 61 YEARS,
RESIDING AT NO. 21/1,
11TH CROSS, BANASHANKARI 1ST STAGE,
ASHOKANAGAR, KATRIGUPPA MAIN ROAD,
BENGALURU - 560 050.
11. SRI. M. S. MAHADEVAIAH,
S/O. SRI. SHIVANNA,
AGED; MAJOR,
RESIDING AT NO. 59,
K.M.C. NEXT TO MOUNT CARAMEL COLLEGE,
VASANTHNAGAR,
BENGALURU - 560 062.
12. SRI. P. DAYANAND PAI,
S/O. LATE NARASIMHA PAI,
AGED ABOUT 61 YEARS.
13. SRI. P. SATISH PAI,
S/O. LATE. P. NARASIMHA PAI,
AGED ABOUT 69 YEARS.
14. SRI. DINESH RANKA
S/O. LATE. DEVARAJU H. RANKA,
AGED ABOUT 55 YEARS.
RESPONDENT NOS.12 TO 14 ARE RESIDING AT,
M/S.CENTURY REALTORS, NO. 31,
RANKA CHAMBERS,
CUNNINGHAM ROAD,
BENGALURU - 560 052.
...RESPONDENTS
(BY SRI. R. V. SRINIVASA REDDY AND
SRI. C. K. SATHYANARYANA, ADVOCATES FOR R1 TO R4;
VIDE ORDER DATED: 09.08.2017, NOTICE TO R5 TO R14 IS
DISPENSED WITH)
THIS C.R.P. IS FILED UNDER SEC. 115 OF CPC,1908 AGAINST
THE ORDER DATED 11.1.2017 PASSED ON IA NO.5 IN OS
NO.27212/2011 ON THE FILE OF THE LVII ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYO HALL UNIT BANGALORE, REJECTING THE IA
NO.5 FILED UNDER ORDER 7 RULE 11(a) AND (d) OF CPC AND ETC.,
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CRP No. 71 of 2017
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The defendants No.11 and 12 in O.S. No.27212/2011 pending trail before LVII Additional City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru (hereinafter referred to as 'trial Court' for short) have challenged an order dated 11.01.2017 passed therein, by which, an application filed by them under Order VII Rule 11(a) and (d) of CPC was rejected.
2. The parties shall henceforth be referred to as they were arrayed before the trial Court. The petitioners herein were the defendant Nos.11 and 12, while the respondent Nos.1 to 4 were the plaintiff Nos.1 to 4 and the respondent Nos.5 to 14 were the defendant Nos.1 to 10 before the trial Court.
3. The suit in O.S.No.27212/2011 was filed by the plaintiff Nos.1 to 4, being the female heirs of Sri.Doddasubbaiah, for partition and separate possession of their undivided share in the suit schedule property. The plaintiffs claimed that Sri.Doddasubbaiah was their grandfather and defendant Nos.2 and 3 and father of defendant Nos.1, 4 and 5. They claimed that Sri.Doddasubbaiah had two wives -5- CRP No. 71 of 2017 namely, Smt.Byramma and Smt.Sonnamma. He had a son named Sri.Marappa from his first wife-Smt.Byramma, while he had five children from the second wife namely, Smt.Byramma, Smt.Jayalakshmamma, Smt.Munibylamma, Sri.Dalahanumaiah and Sri.Krishnamurthy. The plaintiffs further claimed that they and the defendant Nos.1 to 5 constituted a joint family, which possessed the suit schedule property. They alleged that there was no division in the joint family and the suit schedule property was not partitioned. They claimed that the suit schedule property was granted to Sri.Doddasubbaiah by the Government of Karnataka in terms of a grant order bearing No.6079, L.R.No.468/49/7 dated 31.08.1952 at an upset price. They claimed that Sri.Doddasubbaiah was the absolute owner of the suit property. They contended that Sri.Doddasubbaiah along with his sons namely defendant Nos.1, 2, 4 and 5 executed a sale deed in favour of defendant No.7 on 17.12.2002 and later, the defendant No.7 sold the said property to the defendant Nos.8, 9 and 10 on 11.10.2004 and later, the defendant Nos.8, 9 and 10 sold it to the defendant Nos.11 and 12 on 27.04.2007. The plaintiffs alleged that the defendant Nos.1 to 5 had no manner of right, title or interest -6- CRP No. 71 of 2017 over the suit property and could not have conveyed the suit property, by excluding the plaintiffs. Therefore, they contended that the sale deeds were not binding upon them and consequently, sought for partition of their 1/3rd share and for setting aside the sale deed dated 16.10.2002 and the consequent sale deeds.
4. The defendant Nos.11 and 12 being the contesting defendants, filed an application under Order VII Rule 11(a) and
(d) of CPC contending that the suit property was admittedly sold in the year 2002 itself and the plaintiffs being female heirs of Sri.Doddasubbaiah had no subsisting right, title or interest in the year 2002 and therefore, were not entitled to invoke the provisions of Section 6 of the Hindu Succession (Amendment) Act, 2005 (hereinafter referred to as the 'HS (Amendment) Act' for short), for partition. This application was contested by the plaintiffs who claimed that in view of the judgment of the Hon'ble Apex Court in the case of PRAKASH AND OTHERS Vs. PHULAVATI AND OTHERS reported in (2016) 2 SCC 36, the plaintiffs were entitled to sue for partition of their undivided right, title and interest.
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5. The Trial Court after considering the contentions urged, rejected the said application by a cryptic order stating that the grounds urged by the defendant Nos.11 and 12 for rejection of the plaint was a mixed question of fact and law.
6. Being aggrieved by the same, the present petition is filed.
7. Learned counsel for the defendant Nos.11 and 12 invited the attention of the Court to Section 6 of the HS (Amendment) Act and contended that any property that was alienated prior to 20.12.2004 cannot be the subject matter of a suit for partition by the female heirs. He submitted that in view of the judgment of the Hon'ble Apex Court in the case of VINEETA SHARMA VS. RAKESH SHARMA AND OTHERS reported in (2020) 9 SCC 1, the plaintiffs are not entitled for any partition in respect of the property in question, assuming it to be an ancestral coparcenary property. He submitted that admittedly the land in question was granted to Sri.Doddasubbaiah and he during his life time, along with his children had sold the property in the year 2002 and therefore, the plaintiffs do not have any right to claim for partition. -8- CRP No. 71 of 2017
8. Learned counsel for the plaintiffs on other hand submitted that the other legal heirs of Sri.Doddasubbaiah have already initiated proceedings before the revenue authorities under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer Certain Lands) Act, 1978 (hereinafter referred to as 'the Act, 1978' for short). He further submits that the sale deed executed in favour of the defendant No.7 is not binding upon the plaintiffs as the plaintiffs were female heirs of the deceased Sri.Doddasubbaiah and therefore, they were entitled to a notional share in the suit schedule property.
9. The suit for partition is based on an assertion that the suit property is the joint family ancestral property. The plaintiffs have contended that the suit property was granted to Sri. Doddasubbaiah and that the same was enjoyed by the joint family and after his death, the plaintiffs are entitled for a share therein. It is relevant to note that, if the property is construed as an ancestral property in the hands of Sri.Doddasubbaiah, then the plaintiffs being female heirs were not entitled to any share in the suit property, until a right was created by virtue of the HS (Amendment) Act, by which, both male and female -9- CRP No. 71 of 2017 heirs were brought on par. However, in order to ensure that concluded transfers are not disturbed, the HS (Amendment) Act laid in a safeguard against challenging concluded transactions. Proviso to Section 6 of the HS (Amendment) Act specifically provided that "provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20.12.2004". The Hon'ble Apex Court considering the scope and purport of the Amended Section 6 of the Hindu Succession Act, held that the benefit of the Act is available to all female heirs, who were born subsequent to 1956, but subject to the condition that the property is still in the hands of the joint family as on 20.12.2004. If the suit property was construed as the self acquired property of Doddasubbaiah, then too the plaintiffs had no interest as Doddasubbaiah and his children sold it during his life time. The claim of the plaintiffs that they had a notional share, could have been considered if Doddasubbaiah died intestate prior to the HS(Amendment) Act, 2005. In the present case, the suit property was first alienated on 16.11.2002, which was registered on 17.12.2002 i.e., much prior to the HS
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CRP No. 71 of 2017(Amendment) Act coming into force. Therefore, there was no cause of action for the plaintiffs to file a suit for partition. Since the plaint itself indicated that first transaction concerning the suit property was in the year 2002, the trial Court ought to have rejected the plaint since, the plaintiffs did not have any subsisting right, title or interest let alone a cause of action to file a suit for partition.
10. In that view of the matter, this revision petition is allowed. The impugned order rejecting the application filed by the defendant Nos.11 and 12 under Order VII Rule 11(a) and
(d) of CPC is set aside. Consequently, the suit filed by the plaintiffs in O.S.No.27212/2011 pending trial before the LVII Additional City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru, is rejected.
Sd/-
JUDGE NR/-
List No.: 1 Sl No.: 12CT:PH