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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2024 BEFORE THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 3584 OF 2023 (GM-CPC)
BETWEEN:
1. NAGAMMA @ THAYAMMA, W/O LATE SHIVAPPA, AGED ABOUT 63 YEARS
2. MAYAMMA D/O LATE SHIVAPPA, AGED ABOUT 41 YEARS
3. MANGLAMMA D/ LATE SHIVAPPA, AGED ABOUT 39 YEARS
4. MANIKANTA S/ LATE SHIVAPPA, Digitally signed by AGED ABOUT 37 YEARS, MARKONAHALLI RAMU PRIYA Location: HIGH ALL ARE R/AT HONGAHALLI VILLAGE, COURT OF KARNATAKA KASABA HOBLI, GUNDLUPET TALUK - 571 111 CHAMARAJANAGAR DISTRICT …PETITIONERS (BY SRI. P. MAHESHA, ADVOCATE)
AND:
1. SMT. MALLAMMA W/O LATE MALLAPPA, AGED ABOUT 59 YEARS, R/O HONGANAHALLI VILLAGE, KASABA HOBLI, GUNDLUPET TALUK - 571 111.
2. SRI. SUBBAPPA S/O LATE MALLAPPA AGED ABOUT 60 YEARS, HONGANAGHALLI VILLAGE, KASABA HOBLIL, GUNDLUPETE TALUK, CHAMARAJANAGARA DISTRICT-571 111 …RESPONDENTS (BY SRI. NAGARAJA R C., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SETTING ASIDE THE IMPUGNED ORDER PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, GUNDLUPET IN I.A.NO.1 OF F.D.P NO.5/2021 DATED 09/09/2022, VIDE ANNEXURE-E AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
Respondent Nos.2, 3, 4 and 5 in FDP No.5/2021 on the file of the Principal Civil Judge and JMFC, Gundlupet, have filed this petition challenging an Order dated 09.09.2022, by which, the Final Decree Court modified the shares in view of the Judgment of the Apex Court in the case of VINEETA SHARMA vs. RAKESH SHARMA AND OTHERS reported in AIR 2020 SC 3717.
2. A suit for partition and separate possession filed in O.S.No.259/2012 was decreed and it was held that plaintiff was entitled to 1/3rd share. The same was challenged in R.A.No.45/2018. The appeal was allowed in part in view of the Judgment of this Court in the case of PRAKASH vs. PULAVATHI reported in (2016)2 SCC 36 and it was held that plaintiff was entitled to 1/9th share. The plaintiff filed FDP No.5/2021 for 1/9th share in the suit property as per the preliminary decree of partition passed in R.A.No.5/21. The plaintiff filed and application under Sections 152 and 153 of CPC to modify the preliminary decree in view of the judgment of the Apex court in VINEETA SHARMA case supra. The Final Decree Court, in terms of the impugned order, allowed the application filed under Section 152 of CPC. Being aggrieved by the same, the defendants in the suit who were arrayed as Respondent Nos.2, 3, 4 and 5 in final decree proceedings have filed this petition.
3. Learned counsel for Respondent Nos.2, 3, 4 and 5 submitted that the plaintiff was bound to challenge the Judgment and Decree passed in R.A.No.43/2018 and the Final Decree Court has no authority to modify the share in accordance with law in the final decree.
4. Per contra, learned counsel for respondents contended that the law declared in PRAKASH case supra was overruled in VINEETA SHARMA case supra, which also held that in respect of pending cases, the shares could be suitably modified. He therefore, contended that the final decree Court was justified in allowing the application.
5. It is now trite that a final decree is a continuation of the preliminary decree (see SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUB VS. SITA SARAN BUBNA & ORS (2009 AIR (SCW) 6541). As rightly contended by the learned counsel for the plaintiff, Hon'ble Apex Court in VINEETA SHARMA case supra, had held that the Court is entitled to modify the shares based on the declaration of law made by it. Therefore, there is no error committed by the Final Decree Court in modifying the shares that the plaintiff was entitled to.
6. Hence, this petition lacks merit and is dismissed.
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