IMPORTANT POINT
The judgment emphasized the need to re-determine the shares of all parties in accordance with the Vineeta Sharma case and clarified the application of the proviso to sub-Section (1) of Section 6 of the Hindu Succession Act, 1956 as amended to the alienation of property made prior to 20.12.2004.

ORDER :

1. The petitioners are before this Court seeking for the following reliefs.

a. Issue a writ of certiorari quashing the order dated 02.08.2023 on I.A.No.XX passed by the Court of the Civil Judge & JMFC at Hukkeri in FDP NO.3 of 2004 as per Annexure-T, and dismiss the IA No.XX;

b. Issue such other writ/order/direction as deemed fit, in the interest of justice.

2. The suit in OS No.368/1989 came to be filed by deceased plaintiff No.1 i.e., the wife of respondent No.1 and the mother of respondents No.2 to 4 herein, seeking for the partition and separate possession before the Principal Munsiff Court and JMFC, Hukkeri which came to be decreed on 10.3.1993 by granting a notional share. Regular appeal in RA No.44/1997 (old RA No.22/1993) filed before the Civil Judge (Sr.Dn.) at Hukkeri, was partly allowed. Another regular appeal filed by respondent No.15 who is the brother of deceased Sri.Kadappa, in RA No.45/1997 (old RA No.23/1993) came to be dismissed vide common judgment dated 27.9.1997.

3. The Respondent No.15 having filed RSA No.30/1998, vide order dated 11-06-2002 the decree came to be modified, directing equity to be given to the purchaser who had purchased a portion of the property belonging to the coparcener.

4. Respondents No. 1 to 5 filed FDP No.3/2004 before the Civil Judge & JMFC, Hukkeri, an issue having been framed “Whether the respondents/Defendants No.5A to 5F are entitled schedule-B property to their share as averred in objection para No.5?” came to be answered in the affirmative, and it was held that the defendant No.5 to the suit namely the father of the petitioners herein, would be entitled to the property in Block No.393 measuring 3 acres 33 guntas.

5. It is challenging the same, a writ petition came to be filed in WP No.62814/2010 which came to be disposed of on 7.6.2016 reaffirming the petitioners to be the purchasers of and entitled to Block No.393 measuring 3 acres 33 guntas.

6. Respondents No.1 to 5 filed IA No.XI for modification of decree in terms of the judgment of the Hon’ble Apex Court in Vineeta Sharma vs. Rakesh Sharma, (2020) 9 SCC 1 the said application came to be rejected by the Executing Court on 8.10.2021, challenging the same a writ petition in WP No.102629/2022 came to be filed. When this Court vide order dated 1.12.2022 held that, the partition will confined in respect of other suit properties and plaintiffs were not entitled to any share in property covered under Block No.393.

7. Respondents No.1 to 5 filed another IA No.XIX requesting re-allotment of equity, respondents No.11 to 13 filed IA No.XX seeking an equal share in terms of the Vineeta Sharma Case (supra) alleging that defendant No.1 had sold more than his share to defendant No.5 (sold excess land after notional partition).

8. Vide order dated 2.8.2023 IA No.XIX, is partly allowed and shares of the plaintiff in suit property were directed to be re-determined. IA No.XX also came to be allowed holding that the respondents No.11 to 13 were also entitled for an equal share in property, it is challenging the said order the petitioners are before this Court seeking for the aforesaid reliefs.

9. Sri.Mallikarjunaswami B. Hiremath., learned counsel for the petitioners, would submit that;

9.1. The petitioner, whose father was arrayed as defendant No.5, purchased property covered under Block No.393 from defendant No.1, contends that, in the judgment and decree passed in OS No.368/1989 dated 10.03.1993, it is categorically observed that the share of defendant No.1 in Block No.393 would be allotted to the legal representatives of defendant No.5. In the common order dated 27.9.1997 in RA No.44/1997 and RA No.45/1997, the First Appellate Court has again reiterated the same, which has been confirmed in RSA No.30/1998, and as such he submits that the entire property in Block No.393 measuring 3 acres 33 guntas fell to the share of defendant No.5. This right and possession of defendant No.5 and now his legal representatives, who are the petitioners herein