GOPALAKRISHNA GOWDA Vs. LAKSHMIDEVAMMA

JUDGEMENT

(1.) 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 in testate 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 1973-1974 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.