Full Judgment
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2024 BEFORE THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR FIRST APPEAL NO. 601 OF 2023 (PAR) BETWEEN: SMT. SAVITHA, D/O RANGAIAH, AGED ABOUT 41 YEARS, PRESENTLY RESIDING AT NO 71, 7TH CROSS ROAD, NANDAKUMAR LAYOUT, AREHALLI, BENGALURU - 560 061. …APPELLANT (BY SRI. GANGADHARAPPA A.V, ADVOCATE) AND:
1. SMT. JAYANTHI, W/O KRISHNAMURTHY, AGED ABOUT 53 YEARS, Digitally signed by VEDAVATHI A K
2. SMT. BHAGYA, Location: High Court of W/O RAMAKRISHNA, Karnataka AGED ABOUT 51 YEARS,
3. SRINIVASA, S/O LATE V. RANGAIAH @ RANGAIAH, AGED ABOUT 49 YEARS,
4. SMT. LEELAVATHI, W/O SURESH, AGED ABOUT 47 YEARS, -2-
5. SMT. KAVITHA, W/O RAMAKRISHNA, AGED ABOUT 44 YEARS, ALL ARE RESIDENTS OF NO. 71, 7TH CROSS ROAD, NANDAKUMAR LAYOUT, AREHALLI, BENGALURU - 560 061. …RESPONDENTS (BY SRI. HANUMANTHAPPA N,ADVOCATE FOR R1, R2, R4 AND R5; SRI K.K. VASANTH, ADVOCATE FOR R3) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.05.2020 PASSED IN OS NO.3994/2019 ON THE FILE OF THE LIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE. DISMISSING THE SUIT FOR PARTITION. THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN -3-
ORAL JUDGMENT
Learned counsel for the appellant has filed I.A.No.4 of 2024 under Order 23 Rule 1(3) r/w Section 151 of CPC seeking to withdraw O.S.No.3944 of 2019 with liberty to file a fresh suit against defendants on the same cause of action.
2. The suit in O.S.No.3944 of 2019 has been filed by the plaintiff/appellant seeking partition in one of the properties said to be gifted by her father to defendant No.4 and the suit came to be dismissed as not maintainable on preliminary issue No.1., holding that the plaintiff/appellant has no existing rights in the suit property by including all the joint family properties.
3. Being aggrieved by the dismissal of the suit, the present appeal is filed.
4. During the pendency of the appeal, learned counsel for the plaintiff/appellant has filed I.A.No.4 of 2024 seeking leave of this Court to withdraw the main -4-
suit, i.e., O.S.No.3994 of 2019 filed before the Trial Court with liberty to file a fresh comprehensive suit including all the joint family properties on the same cause of action.
5. Learned counsel for the respondents/
defendants objected the appeal memo and also contended that the permission cannot be granted to withdraw the suit in O.S.No.3994 of 2019 as the suit was dismissed holding that the plaintiff has no authority or right to file the suit in respect of un-registered partition deed. The defendant No.1 had absolute right to gift away the suit property and
accordingly, he has exercised such right. Therefore, the plaintiff cannot question the gift deed executed by defendant No.1 in favour of defendant No.4 and dismissed the suit on the ground of maintainability. Therefore, the question of granting permission to withdraw the suit be rejected and prayed for dismissal of the appeal.
6. Having heard the learned counsel on both side and on perusal of the material available on record, it is not in dispute that the suit filed by the plaintiff came to be -5- dismissed on the ground of maintainability as the plaintiff cannot challenge the gift made by defendant No.1 in favour of defendant No.4.
7. However, learned counsel for the appellant
submits there are other items left out for the partition. The plaintiff filed a suit seeking for partition and separate possession of her share, by challenging the gift deed made by defendant No.1 in favour of defendant No.4. He further submits that all the items are not included in the partition. Therefore, he wants to withdraw the suit itself and file a fresh and comprehensive partition suit.
8. Considering the facts of the case, though the
suit was dismissed as not maintainable regarding seeking partition in respect of only one property, which was already gifted by defendant No.1 in favour of defendant No.4. However, in a suit for partition, normally, the parties shall make all the family members and all the items of the joint family property in the schedule items and cannot claim any share only in the single property is nothing but a
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partial partition, which is not maintainable at all. This Court, in its various judgments has held that partial partition is not maintainable. The plaintiff is seeking partition of only one item in the schedule property and the gift made by defendant No.1 in favour of defendant No.4 is not maintainable and this Court cannot grant single prayer of the single item of partition without including the other
parties or without including the other properties. Therefore, the Trial Court has rightly dismissed the suit of the plaintiff as not maintainable. Though the same is challenged before this Court, if the suit of the appellant/ plaintiff is allowed, the judgment of the Trial Court shall be set aside. Once the suit was dismissed as not maintainable but not on merits, therefore, the plaintiff is always at liberty to file a fresh and comprehensive suit by including all the properties and all the family members in the suit.
Though the appellant also filed an interlocutory application, I.A.No.3 of 2023 before this Court seeking amendment of the plaint, which is also pending and now is answered. The question of withdrawing the suit or -7- permitting the appellant to amend the plaint does not arise as the earlier suit was dismissed only on the ground of maintainability. Therefore, I.A.No.4 of 2024 cannot be allowed. However, in view of filing of the I.A., this Court is of the view to dismiss the appeal itself with liberty to file a fresh and comprehensive suit for partition with the same cause of action. Hence, I pass the following:
ORDER
i) The appeal is dismissed. ii) The appellant is at liberty to file a fresh suit for partition by including all the family members and joint family properties with the same cause of action. iii) I.A.No.4 of 2024 is dismissed. iv) I.A.No.3 of 2023 is dismissed as not pressed. Sd/- (K.NATARAJAN) JUDGE DH List No.: 1 Sl No.: 23 CT: BHK