- 1 - HC-KAR NC: 2025:KHC:44966 WP No. 2893 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 2893 OF 2023 (GM-CPC) BETWEEN: 1. SRI NARAYANARAO H/O LATE BAGUBAI @ BHAGYABAI SINCE DEAD BY HIS LRS DECEASED VENKOBARAO AND PETS NO. 1 TO 4 SRI VENKOBARAO S/O LATE BAGUBAI @ BHAGYABAI SINCE DEAD BY HIS LRS. SMT. VENKUBAI D/O LATE VENKOBARAO AGED ABOUT 24 YEARS. 2. SRI RAVINDRARAO S/O LATE BAGUBAI @ BHAGYABAI AGED ABOUT 39 YEARS. 3. SRI MANJUNATH N S/O LATE BAGUBAI @ BHAGYABAI AGED ABOUT 32 YEARS. THE PET NO.1 TO 3 ARE R/AT NO.41 BHAVANI NILAYA OPP TO VASAVI ENTERPRISES RANGANATHAPURA KAMAKSHIPALYA BANGALORE - 5 60 079. 4. SMT. RENUKABAI D/O LATE BABUBAI @ BHAGYABAI AGED ABOUT 35 YEARS R/AT NO.372, II CROSS MUNIANJINAPPA LAYOUT BEHIND J K TIMBER Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:44966 WP No. 2893 of 2023 RAMAMURTHYNAGAR BANGALORE - 560 060. …PETITIONERS (BY SMT. KALADEEPA J., ADV., SRI PATEEL G.S, ADV.) AND: 1. SRI BABURAO S/O LATE VENKOBARAO @ VENKOJIRAO AGED ABOUT 60 YEARS R/AT NO.514 4TH MAIN TATA NAGARA BANGALORE - 560 092. 2. SRI MUNIYOJIRAO S/O LATE VENKOBARAO @ VENKOJIRAO AGED ABOUT 55 YEARS. 3. SRI NARAYANARAO S/O LATE VENKOBARAO @ VENKOJIRAO AGED ABOUT 51 YEARS. RES. NO.2 AND 3 ARE R/AT NO. 10 III CROSS SAPTHAGIRI LAYOUT VIDYARANYAPURA BENGALURU - 560 097. 4. SMT. SAKKUBAI D/O LATE MUNISHAMIRAO AGED ABOUT 65 YEARS. 5. SRI BHAGOJIRAO S/O LATE MUNISHAMIRAO AGED ABOUT 57 YEARS. 6. SRI RAMARAO S/O LATE MUNISHAMIRAO AGED ABOUT 55 YEARS. 7. SRI SHANKARAOJIRAO S/O LATE MUNISHAMIRAO - 3 - HC-KAR NC: 2025:KHC:44966 WP No. 2893 of 2023 AGED ABOUT 53 YEARS. 8. SRI MUNISHAMIRAO S/O LATE MUNISHAMIRAO AGED ABOUT 47 YEARS. 9. SMT. LEELABAI D/O LATE MINISHAMIRAO AGED ABOUT 45 YEARS. SMT. AKKUBAI D/O LATE APPOJIRAO @ HANUMANTHARAO. 10. SMT. SHANTHABAI D/O LATE APPOJIRAO @ HANUMANTHARAO AGED ABOUT 57 YEARS. RESPONDENTS NO.4 TO 11 ARE R/OF THIMMASANDRA VILLAGE JALA HOBLI DEVANAHALLY TALUK BENGALURU RURAL DISTRICT PIN - 560 064. 11. SRI SRINIVASARAO S/O LATE APPOJIRAO @ HANUMANTHARAO AGED ABOUT 51 YEARS R/AT NO.90/1, 4TH MAIN GOVINDARAJANAGARA BANGALORE - 560 040. 12. SMT. VENKOBAI W/O RAJARAO D/O LATE MARIYAPPA AGED ABOUT 51 YEARS R/AT NO.90/2, 4TH MAIN GOVINDRAJANAGAGARA BANGALORE - 560 040. 13. SMT. SHANTHABAI W/O GANESHARO D/O LATE MARIYAPPA AGED ABOUT 46 YEARS - 4 - HC-KAR NC: 2025:KHC:44966 WP No. 2893 of 2023 R/AT NO.90/2 4TH MAIN GOVINDARAJANAGARA BANGALORE - 560 040. …RESPONDENTS (BY SRI NANJA REDDY P.N, ADV., FOR R-1 & R-2; SRI PRAVEEN KUMAR N.K, ADV., FOR R-5 TO R-9, R-12 & R-13; R-4, SERVED - UNREPRESENTED V/O/D 29.10.2025, SERVICE OF NOTICE TO R-3 & R-11 IS H/S) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-CALL FOR THE RECORDS, EXAMINE THE SAME AND ISSUE WRIT OR ORDER IN THE NATURE OF CERTIORARI QUASHING. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. This writ petition under Article 227 of the Constitution of India is filed with a prayer to set aside the order dated 21.11.2022 passed on I.A.No.III in FDP No.1 of 2016 by the Court of Principal Civil Judge & JMFC, Devanahalli. 2. Heard the learned counsel appearing for the parties. 3. Suit in O.S.No.577 of 2008 was filed before the jurisdictional civil Court at Devanahalli seeking the relief of partition and separate possession of the suit schedule property, wherein the plaintiffs had claimed 1/4th share in the suit - 5 - HC-KAR NC: 2025:KHC:44966 WP No. 2893 of 2023 schedule property. In the said suit, Smt. Bagubai was arraigned as defendant no.4. The suit was dismissed as abated as against defendant no.4 and subsequently suit was partly decreed and preliminary decree was drawn holding that plaintiffs are jointly entitled for 1/4th share in suit schedule Item Nos.1, 2, 4, 6 and 8 properties and claim of the plaintiffs in respect of Item No.3, 5 and 7 of the suit schedule properties was rejected. Final decree proceedings in FDP No.1/2016 was initiated by the respondents 1 to 3 herein before the trial Court and in the said proceedings, I.A.No.III was filed on behalf of the petitioners herein under Order I Rule 10(2) of CPC with a prayer to come on record as party respondents in FDP.No.1 of 2016. The said application was opposed by the petitioners in FDP.No.1 of 2016 and the trial Court vide the order impugned has rejected I.A.No.III with cost and being aggrieved by the same, applicants in I.A.No.III are before this Court in this petition. 4. Learned counsel for the petitioners having reiterated the grounds urged in the petition submits that applicants in I.A.No.III are the children and grandchildren of Smt. Bagubai, who was defendant no.4 in O.S.No.577 of 2008. - 6 - HC-KAR NC: 2025:KHC:44966 WP No. 2893 of 2023 The sisters and brother of Babubai have been allotted share in the suit schedule property. Suit against Bagubai was dismissed as abated, since plaintiffs in O.S.No.577 of 2008 had reported to the Court that Smt. Bagubai had died issueless. Smt. Bagubai's sisters and brother were already on the record in the suit. She submits that trial Court was therefore not justified in rejecting the application. 5. Per contra, learned counsels appearing for the respondents have opposed the prayer made in the petition. They submit that Smt. Bagubai had no children and applicants in I.A.No.III are not the legal representatives of Smt. Bagubai, who was defendant no.4 in the suit. Therefore, trial Court was justified in rejecting I.A.No.III. 6. Perusal of the material on record would go to show that Smt. Bagubai was party defendant no.4 in O.S.No.577 of 2008. Her sisters were defendant no.2 and 3 and her brother was defendant no.5. Smt. Bagubai had died during the pendency of the suit and suit was dismissed as abated against her. According to the learned counsel for the contesting respondents Smt.Bagubai had no issues and therefore no - 7 - HC-KAR NC: 2025:KHC:44966 WP No. 2893 of 2023 application to bring her legal representatives, on record was filed since her sisters and brother were already on record in the suit as co-defendants. The applicants in I.A.No.III claim to be the children and grandchildren of defendant no.4 Smt. Bagubai. Order XXII Rule 5 of CPC provides for determination of a question as to legal representative, whenever a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant and such a question shall be determined by the Court. 7. The trial Court has failed to hold an enquiry so as to determine whether the applicants in I.A.No.III are the legal representatives of deceased Smt. Bagubai. Undisputedly, the sisters and brother of Smt. Bagubai have been allotted a share in the suit schedule property. The final decree proceedings is continuation of the suit. Therefore, the trial Court ought to have determined the question whether the applicants in I.A.No. III are the legal representatives of defendant no.4 by holding an enquiry as provided under Order XXII Rule 5 of CPC. Under the circumstances, the order impugned which is challenged in this case cannot be sustained. - 8 - HC-KAR NC: 2025:KHC:44966 WP No. 2893 of 2023 8. Accordingly the following:- ORDER i. Writ petition is allowed. ii. The impugned order dated 21.11.2022 passed on I.A.No.III in FDP No.1 of 2016 by the Court of Principal Civil Judge & JMFC, Devanahalli is set aside. The trial Court shall consider I.A.No.III afresh, after giving an opportunity to all the parties in the light of the observations made herein above. Pending applications do not survive for consideration and accordingly the same are disposed of. Sd/- (S VISHWAJITH SHETTY) JUDGE NMS List No.: 1 Sl No.: 17