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2024 Supreme(Online)(Kar) 37094
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2024 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO.2188 OF 2024 (GM-CPC)
BETWEEN:
1. SMT. RATNAMMA W/O LATE C K NARAYANASWAMY AGED 52 YEARS
2. SMT RAJESHWARI D/O LATE C K NARAYANASWAMY AGED 54 YEARS
3. SRI RAJENDRA S/O LATE C K NARAYANSWAMY AGED 56 YEARS
4. SMT RAJALAKSHMI D/O LATE C K NARAYANASWAMY AGED 58 YEARS
5. SMT.RAJALALITHA Digitally D/O LATE C K NARAYANASWAMY signed by AGED 60 YEARS VANDANA S Location:
6. SRI RAJAGOPAL HIGH COURT OF S/O LATE C K NARAYANASWAMY KARNATAKA AGED 62 YEARS ALL PETITIONERS ARE R/AT NO.14 RAMALINGESHWARA TEMPLE STREET FRASER TOWN BANGALORE 560 005.
…PETITIONERS (BY SMT. VAIBHAVI, ADVOCATE)
AND:
1. SRI. M. VENKATESH S/O LATE MUNIYAPPA AGED MAJOR R/AT NO.23, 8TH CROSS, KARIYANNAPALYA LINGARAJAPURAM BANGALORE 560 084.
2. SRI M MUNIRAJ S/O LATE MUNIYAPPA AGED MAJOR RFA/T NO 76/4, 6TH MAIN
6TH CROSS, RAMACHANDRAPPA LAYOUT KARIANNAPALYA, LINGARAJAPURAM BANGALORE 560 084.
3. SMT M MUNIRATHNA D/O LATE MUNIYAPPA W/O N MOHAN AGED MAJOR R/AT NO.12/1, 7TH MAIN, 16TH CROSS LAKKASANDRA, BANGALORE 560 030.
4. SRI M GAJENDRA S/O LATE MUNIYAPPA AGED MAJOR R/AT NO.76/4, 6TH MAIN, 6TH CROSS RAMACHANDRAPPA LAYOUT KARIYANNAPALYA LINGARAJAPURAM BANGALORE 560 084.
SMT JAYALAKSHMI W/O LATE B KESHAVAPPA SINCE DECEASED BY HER LRS
5. SRI NARASIMHAIAH S/O B KESHAVAPPA AGE MAJOR
6. SRI. KESHAVAMURTHY S/O B KESHAVAPPA AGED MAJOR
7. SRI. KRISHNAMURTHY S/O B KESHAVAPPA AGED MAJOR
8. SMT RATNA D/O B KESHAVAPPA AGED MAJOR RESPONDENTS 5 TO 8 ARE R/AT K.K.PET (NEAR YELLAMMA TEMPLE)
SIDLAGHATTA – 562 105. 9. SMT. KRISHNAMMA W/O LATE CHIKKANARAYANAPPA AGED MAJOR
10. SRI. BALARAJ S/O LATE CHIKKANARAYANAPPA AGED MAJOR
11. SRI TILAKESH S/O LATE CHIKKANARAYANAPPA AGED MAJOR
12. SMT Y YASHODARI D/O LATE CHIKKANARYANAPPA AGED MAJOR
13. SMT KAVITA S/O LATE CHIKKANARAYANAPPA AGED MAJOR RESPONDENTS 9 TO 13 ARE R/T NO.18 TULSIRAMADAS MUTT ROAD FRASER TOWN BANGALORE 560 005.
…RESPONDENTS THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN FDP NO.93/2012 ON THE FILE OF PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-7) AND QUASH / SET ASIDE THE ORDER DATED 19/12/2023 PASSED ON IA NO.3/2022 FILED BY RESPONDENT NOS.1 TO 4 UNDER SECTION 151 OF CODE OF CIVIL PROCEDURE, IN FDP NO.93/2012, PASSED BY THE CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-7) AT BANGALORE.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition by respondent Nos.6 to 11 in FDP No.93/2012 on the file of the XXII Addl. City Civil & Sessions Judge, Bengaluru, is directed against the impugned order dated 19.12.2023 whereby the application – I.A.No.3 filed by respondent Nos.1 to 4 – petitioner in FDP No.93/2012 seeking modification of the preliminary decree passed in their favour by enhancing their shares in terms of the judgment and decree of the Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and others – AIR 2020 SC 3717 was allowed by the Court.
2. Heard learned counsel for the petitioners and perused the material on record.
3. A perusal of the material on record will indicate that respondent Nos.1 to 4, who are petitioners in FDP No.93/2012 filed the said FDP to enforce the Preliminary Decree dated 21.10.2008 passed by this Court in RFA No.544/2000. During pendency of the said FDP, which were initiated in the year 2012, respondent Nos.1 to 4 filed the instant application – I.A.No.3 seeking modification of their shares by enhancing the same in terms of the judgment of the Apex Court in Vineeta’s case supra. The said application having been opposed by the petitioners herein, the Trial Court came to the conclusion that having regard to the intervening / supervening events that had occurred by virtue of change of law as declared by the Apex Court in Vineeta’s case, shares of the appellant deserve to be altered in terms of the said judgment of the Apex Court. While arriving at the said conclusion, the Trial Court has held as under:
“ORDER ON IA NO.3 IA NO.3 filed by the petitioner U/S.151 of CPC to modify the preliminary decree and allot 1/4th share in item no.1 of the Suit Schedule Properties.
The said Application is supported by the affidavit of one Muniraju, the 2nd petitioner wherein he has stated that in view of the reported Ruling of Hon’ble Supreme Court in the matter of Vineeth Sharma V/S. Rakesh Sharma, the petitioners are entitled for 1/4th share equally in item no.1 of the Suit Schedule Property.
The said Application is opposed by the Respondent no.6 to 11 by filing detailed objections interalia contending that whatever the order passed by this Court in OS NO.1596/1991 has been questioned by them by filing RFA NO.544/2000, the said RFA is disposed off on 21.10.2008 wherein the Hon’ble High Court of Karnataka modified the decree passed by this Court wherein the Hon’ble High Court of Karnataka was allotted 1/12th share to the petitioners in item no.1 of schedule property. The said Judgment and decree has been attained finality. Therefore, no question of allotting equal share to the petitioners i.e. 1/4th share in Suit item no.1 of the schedule property. Hence prayed to dismiss the application.
Heard both sides on IA no.3. As per the pleadings of the respective parties, it is gathered that the propositus by name late Chinnappa and his wife late Muddamma had two daughters and two sons namely deceased Jayalakshmi, deceased Jayamma, deceased C.K.Narayanaswamy and late Chikkanarayanappa. Now the petitioners are representing the branch of late Jayamma, whereas Respondents are representing the branch of late Jayalakshmi, late C.K.Narayanaswamy and late Chikkanarayanappa.
The Hon’ble High Court of Karnataka while decreasing the shares to the daughter i.e. Jayamma come to conclusion that since Suit item no.1 of the Schedule property is the ancestral property, in a notional partition in the share of the father, the daughters are entitled for share, accordingly, preliminary decree of this Court has been modified and 1/12th share has been allotted to the petitioners together in Suit item NO.1 of the Schedule property.
No doubt, whatever the judgment and decree passed by Hon’ble High Court of Karnataka in RFA NO.544/2000 has not been questioned by the parties to the petition. At this juncture, the learned counsel appearing for the petitioners in order to modified the share, he relied upon the Ruling of Hon’ble Supreme Court reported in (2020) 9 SCC Pag
