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2021 DIGILAW 85 (KAR)

Gopalakrishna Gowda v. Lakshmidevamma

2021-01-11

B.M.SHYAM PRASAD

body2021
ORDER : The petitioners, who are defendant Nos.1, 3 and 4 before the trial Court in O.S.No.2745/2012 on the file of the VII Additional City Civil Judge, Bengaluru (for short ‘civil Court’)have preferred this revision petition calling in question the order dated 04.04.2017 whereby, their application under Order VII Rule 11(a) and (b) of the Code of Civil Procedure, 1908 (For short, ‘CPC’)is rejected. 2. The first respondent has filed the suit in O.S.No.2745/2012 for partition of different immovable properties described in the schedules to the plaint mentioned as Schedule ‘A’ to Schedule ‘E’; The first respondent asserts that the propositus, Sri. Nanjappa had two sons, Sri. Chikkanarasimhaiah and Sri. Chennappa. Sri. Nanjappa died intestate in the year 1925 and after his demise, his two sons partitioned the inherited properties in the year 1940. The first respondent asserts she is the grand daughter of Sri. Chikkanarasimhaiah. The first respondent despite asserting partition in the year 1940 between the two brothers and even a later oral partition in the year 19731974 insofar as certain other properties purchased by two brothers after the partition in the year 1940, has included the properties which, even according to her, are thus partitioned. 3. The learned counsel for the petitioners argues that even if the first respondent could claim any right as a grand daughter of Sri. Chikkanarasimhaiah, one of the sons of late Sri. Nanjappa, she cannot assert any share in the properties owned by the descendants of Sri. Chennappa. Firstly, because she would come in the fourth degree of succession and secondly, because in the light of the oral partitions asserted by her, the claim could only be in respect of the properties inherited by the descendants of Sri. Chikkanarasimhaiah and she cannot maintain a suit for partition of the properties left behind by Sri. Chennappa under whom the petitioners claim title. 4. The learned counsel emphasizes that though the petitioners have filed the application under Order VII Rule 11 of CPC specifically asserting these circumstances to contend that there can be no cause of action against the petitioners or the properties left behind by Sri. Chennappa, and the suit by a person who is in the fourth degree would be barred, these circumstances have not been considered by the civil Court in rejecting the petitioners’ application. Therefore, the impugned order cannot be sustained. 5. Chennappa, and the suit by a person who is in the fourth degree would be barred, these circumstances have not been considered by the civil Court in rejecting the petitioners’ application. Therefore, the impugned order cannot be sustained. 5. The learned counsel for the first respondent/plaintiff on securing instructions submits that the first respondent proposes to confine her claim only to the properties that are left behind by Sri. Chikkanarasimhaiah and not to the properties left behind by Sri. Chennappa, and the inclusion of immovable properties described in Schedule ‘A’, or any other properties owned by descendants of Sri.Chennappa in the suit, is by inadvertence. Therefore, the first respondent may be granted leave to withdraw the present suit and file a fresh suit only insofar as the properties which could be claimed as a descendant of Sri. Chikkanarasimhaiah so that the technical defects in the suit could be addressed effectively for adjudication of her claims in the properties left behind by him. 6. The learned counsel for the petitioners submits that the petitioners could have no objection if the impugned order is set aside and the suit is dismissed with liberty granted to the first respondent/plaintiff to file fresh suit confining her claim to the properties left behind by Sri. Chikkanarasimhaiah and owned by his descendants. 7. In the undisputed circumstances discussed and the present submissions, especially the fact that the first respondent admits that by inadvertence she has included the properties of the members of another branch with whom she cannot assert coparcenary, this Court is of the considered opinion that there is a formal defect in the plaint and that the first respondent must be permitted to withdraw the suit with liberty to institute a proper suit insofar as the properties which are owned by the descendants of Sri.Chikkanarasimaiah and with whom she can assert coparcenary. In the result, the following: ORDER [A] The petition is allowed in part. In the result, the following: ORDER [A] The petition is allowed in part. The impugned order dated 04.04.2017 in O.S.No.2745/2012 on the file of the VII Additional City Civil Judge, Bangalore is modified, and the first respondent, the plaintiff in O.S.No.2745/2012 is permitted, as contemplated under Order XXIII of CPC, to withdraw the suit with liberty to institute a suit on the same cause of action insofar as the properties which are owned by the descendants of Sri.Chikkanarasimaiah and with whom she can assert coparcenary to file a fresh suit; [B] Either the learned counsel for the petitioners or the learned counsel for the first respondent could place a certified copy of this order before the civil Court for necessary orders as now permitted.