- 1 - NC: 2025:KHC:7315 WP No. 1948 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 1948 OF 2021 (GM-CPC) BETWEEN: SMT. NIRMALA RAO W/O T. RAGHAVENDRA RAO AGED ABOUT 59 YEARS, R/AT "NAVASUMA" DOOR NO.1-17A, SITE NO.621, KATIPALLA, MANGALURU-575 030, D.K. …PETITIONER (BY SRI. M. SUDHAKAR PAI, ADVOCATE) AND: MR. C. SOORYANARAYANA RAO S/O LATE ANANTHA PADMANABHAYYA SINCE DECEASED BY HIS LRS 1. C. RAGHUVEERA RAO S/O C. SOORYANARAYANA RAO AGED ABOUT 61 YEARS, 2. C. SRINIDHI S/O C. RAGHUVEERA RAO AGED ABOUT 26 YEARS, 3. C. SHRIJITH S/O C. RAGHUVEERA RAO AGED ABOUT 20 YEARS, RESPONDENTS 1 TO 3 ARE R/AT HONNAKATTE HOUSE, KULAI POST, MANGALURU-575 019 (DK) Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT KARNATAKA - 2 - NC: 2025:KHC:7315 WP No. 1948 of 2021 4. SMT. SHYAMALA S.H. W/O SHUBHAKAR S H AGED ABOUT 57 YEARS, R/AT 257-D, SIDCO HOUSING UNIT PHASE-2, COIMBATORE -641021 RESPONDENT NO.4 IS DELETED WITH THE LEAVE OF COURT DATED 08.04.2021. …RESPONDENTS (BY SRI. VIJAYA KRISHNA BHAT, ADVOCATE FOR CAVEATOR/RESPONDENT NO.1 AND RESPONDENT NOS.1 TO 3; VIDE ORDER DATED 08.04.2021, RESPONDENT NO.4 IS PERMITTED TO BE DELETED FROM THE ARRAY OF PARTIES) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18.12.2020 ON I.A.NO.IV IN R.A.NO.46/2018, ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K., VIDE ANNEXURE-F TO THE WRIT PETITION. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R. NATARAJ ORAL ORDER The respondent No.1 in R.A.No.46/2018 pending consideration before the II Additional Senior Civil Judge and CJM, Mangaluru, Dakshina Kannada (henceforth referred to as 'Appellate Court') is before this Court challenging the correctness of an order dated 18.12.2020 by which, an application (I.A.No.IV) filed by her under Order I Rule 10(2) of the Code of Civil Procedure, 1908 (henceforth referred to as - 3 - NC: 2025:KHC:7315 WP No. 1948 of 2021 'CPC') to implead the legal representatives of respondent No.3 therein was rejected. 2. The parties shall henceforth be referred to as they were arrayed in O.S.No.636/2013. The petitioner herein was the plaintiff, while respondent Nos.1 to 3 were defendant Nos.2 to 4 in O.S.No.636/2013. 3. A suit in O.S.No.636/2013 was filed before the V Additional Civil Judge and JMFC, Mangaluru, Dakshina Kannada (henceforth referred to as 'Trial Court') for partition and separate possession of the plaintiff's share in the suit schedule property. During the course of the suit, the defendant No.6 died on 05.06.2014. A memo was filed stating that legal representatives of defendant No.6 were not necessary parties. Consequently, the Trial Court proceeded with the suit and decreed the same in terms of the judgment and decree dated 13.03.2018 and declared that the plaintiff and defendant No.5 are entitled for 1/5th share each in the plaint 'B' schedule property. 4. An appeal in R.A.No.46/2018 was filed by the defendant Nos.1 to 4. During the pendency of the appeal, an - 4 - NC: 2025:KHC:7315 WP No. 1948 of 2021 application was filed by the plaintiff to bring the legal representatives of deceased - defendant No.6. It was stated in the affidavit accompanying the application that when the defendant No.6 died on 05.06.2014, the law which held the field was the judgment rendered by the Division Bench of this Court in the case of Pushpalatha N.V. vs. V. Padma [ILR 2010 KAR 1484] and since defendant No.6 was born prior to 17.06.1956, she was not entitled to claim as a coparcener. However, in view of the subsequent judgments, the legal representatives of the defendant No.6 were entitled to undivided interest of their predecessor. 5. This application was objected by the defendant Nos.1 to 4 contending that the plaintiff had filed a memo stating that legal representatives of defendant No.6 were not necessary parties and prayed to delete the name of defendant No.6 from the suit and hence, the question of again impleading the legal representatives of defendant No.6 does not arise. 6. The Trial Court considering the contentions urged in the application as well as the counter statement, dismissed the application in terms of the impugned order. - 5 - NC: 2025:KHC:7315 WP No. 1948 of 2021 7. Being aggrieved by the said order, the plaintiff is before this Court. 8. The learned counsel for the plaintiff contended that when the defendant No.6 died on 05.06.2014, the law which held field was the judgment rendered by the Division Bench of this Court in the case of Pushpalatha N.V. vs. V. Padma [ILR 2010 KAR 1484] and since defendant No.6 was born prior to 17.06.1956, she was not entitled to claim as a coparcener. However, in view of the judgment of the Hon'ble Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma and others [AIR 2020 SC 3717] and also the judgment of the Hon'ble Apex Court in the case of Danamma @ Suman Surpur and another vs. Amar and others [2018 (3) SC 54], the children of the deceased - defendant No.6 were also necessary parties to the suit as they had succeeded to the undivided interest of their predecessors. The learned counsel for the plaintiff therefore, contends that the Appellate Court must have allowed the application filed by the plaintiff to bring the legal representatives of the deceased - defendant No.6. Even otherwise, he contends that since the relationship of the defendant No.6 with the plaintiff is not in dispute, the - 6 - NC: 2025:KHC:7315 WP No. 1948 of 2021 Court acting under Order I Rule 10(2) of CPC must have impleaded the legal representatives of defendant No.6. He further contends that in order to do substantial justice between the parties, the Court must have exercised inherent power to implead legal representatives of deceased - defendant No.6. 9. Per contra, the learned counsel for defendant Nos.2 to 4 contended that the plaintiff had allowed the suit to be abated against defendant No.6 and therefore, she cannot now contend that the legal representatives of deceased - defendant No.6 are proper and necessary parties. He also contends that without getting the abatement set aside in the Trial Court, an application could not have been filed in the appeal to implead the legal representatives of the deceased - defendant No.6. He also contends that the legal representatives of the deceased - defendant No.6 did not file an application in R.A.No.46/2018 to come on record and it was the plaintiff, who filed the said application. Hence, he contends that the application is not bonafide but is done to overcome a technical flaw in not taking steps to bring legal heirs of the deceased - defendant No.6. Learned counsel therefore, contends that the impugned order - 7 - NC: 2025:KHC:7315 WP No. 1948 of 2021 passed by the Appellate Court is just and proper and does not warrant interference. 10. I have considered the submissions of the learned counsel for the plaintiff as well as the learned counsel for defendant Nos.2 to 4. 11. The defendant No.6 was also one of the siblings of the plaintiff and defendant Nos.2 and 5. It is also not in dispute that the defendant No.6 died on 05.06.2014, at which point in time, the law declared by the Division Bench of this Court in the case of Pushpalatha N.V., referred supra, was holding the field. It is not in dispute that the defendant No.6 was born prior to 17.06.1956 and therefore, she did not have the benefit of the Hindu Succession (Amendment) Act, 2005. Therefore, the plaintiff in the suit was justified in filing a memo stating that the legal representatives of the defendant No.6 were not necessary parties. Now that the Hon'ble Apex Court in the case of Prakash and others vs. Phulavathi and others [(2016) 2 SCC 36] has held that the test to determine whether a daughter is a coparcener or not is not the test as laid down by the Division Bench of this Court in the case of Pushpalatha - 8 - NC: 2025:KHC:7315 WP No. 1948 of 2021 N.V. referred supra and that as on the date of the suit, the daughter as well as coparcener should be alive. Therefore, as on the date when the suit was filed, the deceased - defendant No.6 also had an undivided right, title and interest in the suit and consequently, her legal representatives had to be brought on record in the suit. It is apposite at this stage to note that appeal is a continuation of the suit and therefore, the parties are entitled to file such applications that are necessary for a complete adjudication of the dispute. Now that the defendant Nos.1 to 4 have filed an appeal challenging the judgment and decree passed by the Trial Court, having regard to the powers of the Court under Order I Rule 10(2) of CPC to implead necessary parties in the suit and also Order XLI Rule 33 of CPC, which mandates the Appellate Court to pass a judgment that has to be rendered in the facts and circumstances of the case, the Appellate Court must have exercised its inherent jurisdiction under Section 151 of CPC to permit the legal representatives of the deceased - defendant No.6 to be brought on record. Hence, the impugned order passed by the Trial Court rejecting the application filed by the plaintiff warrants interference. - 9 - NC: 2025:KHC:7315 WP No. 1948 of 2021 12. Hence, the following ORDER (i) This writ petition is allowed. (ii) The impugned order dated 18.12.2020 passed by the II Additional Senior Civil Judge and CJM, Mangaluru on I.A.No.IV filed under Order I Rule 10(2) of CPC in R.A.No.46/2018 is set aside. (iii) Application (I.A.No.IV) filed by the plaintiff (respondent No.1 in R.A.No.46/2018) under Order I Rule 10(2) of CPC to implead the legal representatives of the deceased - defendant No.6 is allowed. (iv) All contentions are left open. Sd/- (R. NATARAJ) JUDGE PMR List No.: 1 Sl No.: 53