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2019 DIGILAW 1326 (KAR)

Muniyamma v. Seenappa

2019-06-18

B.V.NAGARATHNA, K.NATARAJAN

body2019
JUDGMENT : Nagarathna, J. Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally. 2. The appellant was petitioner No.1 in FDP No.1/2009 (Final Decree Proceedings). Being aggrieved by order dated 03.12.2015 passed by the II Additional Principal Judge, Family Court at Bengaluru, on an application filed under Order XX Rule 18 read with Section 54 of Code of Civil Procedure, 1908 (CPC), this appeal has been preferred. 3. For the sake of convenience, parties shall be referred to in terms of their status before the Family Court. 4. The appellant Muniyamma was petitioner before the Family Court. She filed FDP No.1/2009 pursuant to the judgment and decree passed by the II Additional Principal Judge, Family Court, Bengaluru, in OS No.52/1999, dated 08.07.2005. In the said suit, the petitioner Muniyamma had sought for partition and separate possession of the suit schedule property and for enquiry into mesne profits as contemplated under Order XX Rules 12 and 18 of CPC in relation to the income derived by defendant No.1 being her husband by way of rents. The decree of permanent injunction against respondent No.1 was also sought restraining him from alienating the suit schedule property or causing any encumbrance over it. The Family Court, after considering the evidence on record, decreed the suit declaring that the petitioner Muniyamma was entitled to partition and separate possession of her half share in the suit schedule property and for mesne profits and an order of permanent injunction was issued against her husband-respondent No.1 Seenappa restraining him from alienating the suit schedule property in any manner and a direction to hold an enquiry to determine mesne profits was also issued. Therefore, Muniyamma filed FDP No.1/2009 seeking division of suit schedule property by metes and bounds. During the pendency of Final Decree Proceedings, her husband Seenappa died. At that stage, an application was filed by Smt. Srilakshmi and her children, who are respondent Nos.1(a) to 1(e) herein seeking to come on record as legal heirs of deceased Seenappa. The said application was allowed by the Family Court. The children of Muniyamma and Seenappa also filed an application seeking impleadment in the proceedings. That application was also allowed by the Family Court, but the said children have been arrayed as petitioners along with Smt. Muniyamma. The said application was allowed by the Family Court. The children of Muniyamma and Seenappa also filed an application seeking impleadment in the proceedings. That application was also allowed by the Family Court, but the said children have been arrayed as petitioners along with Smt. Muniyamma. Thereafter, the Family Court allowed the application filed under Order XX Rule 18 read with Section 54 of CPC by accepting the Commissioner's Report and allotted 'Y' portion of the schedule property to respondent Nos.1(a) to 1(e) and 'X' portion to petitioners. Liberty was reserved to file a separate petition with regard to mesne profits. Being aggrieved by the said order dated 3.12.2015, Muniyamma has preferred this appeal. 5. We have heard learned counsel for the appellant and learned counsel for respondent Nos.1(a) to 1(e) as also learned counsel for respondent Nos.4 and 5. Notice to respondent Nos.2(a) and 2(b) herein is dispensed with. Respondent No.3 is served and unrepresented. 6. We have perused the material on record as well as the original record. 7. The main grievance of learned counsel for the appellant is that the appellant and her children through Seenappa are the only legal representatives who are entitled to inherit the estate of Seenappa particularly half portion of the suit schedule property which was decreed in favour of Seenappa, but the Family Court arrayed respondent Nos.1(a) to 1(e) as the legal representatives of deceased Seenappa and consequently, ordered possession of half portion in the suit schedule property to them, by ignoring the fact that the petitioner and her children are also the legal representatives of deceased Seenappa. He submitted that respondent Nos.1(a) to 1(e) are strangers to the family and that they could not have been brought on record as legal representatives of deceased Seenappa. 8. Per contra, learned counsel respondent Nos.1(a) to 1(e) contended that respondent Nos.1(a) to 1(e) are the second wife and children of deceased Seenappa, and they are also entitled to inherit the estate of Seenappa. That the Family Court rightly brought them on record and divided the suit schedule property. That there is no merit in this appeal. 9. Learned counsel for respondent Nos.4 and 5 who are the children of late Seenappa through Muniyamma supported the case of the appellant herein and submitted that the appeal filed by their mother appellant herein may be allowed. 10. That there is no merit in this appeal. 9. Learned counsel for respondent Nos.4 and 5 who are the children of late Seenappa through Muniyamma supported the case of the appellant herein and submitted that the appeal filed by their mother appellant herein may be allowed. 10. Having heard learned counsel for the respective parties, the points that arise for our consideration are: "(1) Whether the Family Court was justified in allotting half share in the suit schedule property which was decreed in favour of Seenappa exclusively to respondent Nos.1(a) to 1(e) herein, thereby not allotting any portion in the said half share to the petitioner and her children namely, respondent Nos.3 to 5 herein? (2) What order?" 11. The detailed narration of facts and contentions would not call for reiteration except highlighting the fact that the appellant herein and Seenappa were wife and husband respectively. That they together had purchased the suit schedule property. The appellant herein had filed OS No.52/1999 seeking partition and separate possession of her half share in the suit property, while seeking other incidental and ancillary reliefs. By judgment and decree dated 08.07.2005, the said suit was decreed. Thereafter, the appellant herein filed FDP No.1/2009 seeking separate possession of her half share by metes and bounds. During the pendency of said Final Decree Proceedings, appellant's husband Seenappa passed away. Appellant's children sought to come on record as legal representatives of Seenappa. While allowing their application, the Family Court has arrayed them as petitioners in FDP No.1/2009, which is not correct. Be that as it may. Applications were filed under Order XXII Rule 4 of CPC by respondent Nos.1(a) to (e) seeking to come on record as legal representatives of deceased Seenappa. That application has been allowed without holding any enquiry in that regard after statement of objection is filed by the appellant and her children through Seenappa and only they have been arrayed as legal representatives of deceased Seenappa. The Family Court has ignored the fact that the appellant herein and her children through Seenappa are also legal representatives of deceased Seenappa. In the circumstances, the right, title and interest of the appellant and her children namely, respondent Nos.3 to 5 in the half share of Seenappa i.e. estate of Seenappa has been ignored and given a go by instead. In the circumstances, the right, title and interest of the appellant and her children namely, respondent Nos.3 to 5 in the half share of Seenappa i.e. estate of Seenappa has been ignored and given a go by instead. As per the decree of Family Court, the half share in favour of Seenappa has been totally allotted to respondent Nos.1(a) to 1(e) only, which is erroneous. 12. In the circumstances, the impugned order dated 3.12.2015 is set aside. The matter is remanded to the Family Court for reconsideration in terms of observations made above. The Trial Court shall first consider as to whether respondent Nos.1(a) to 1(e) are indeed the legal representatives of deceased Seenappa by holding an enquiry in that regard and after giving a finding in that regard, to consider their case, if any, along with the case of the appellant and respondent Nos.3 to 5 herein vis-a-vis their right, title and interest in the half portion of the suit schedule property of the deceased Seenappa and to dispose of FDP No.1/2009 in accordance with law. The appeal is allowed and disposed of in the aforesaid terms. As the parties are represented by their respective counsel, they shall appear before the Family Court on 29.07.2019 without expecting any separate notice from the said Court. It is needless to observe that since the suit is of the year 1999 and Final Decree Proceedings is of the year 2009, the Family Court shall dispose of the said proceedings as expeditiously as possible. In view of disposal of the appeal, I.A.No.2/2016 stands disposed of. Office to transmit the original record to the Family Court, forthwith.