S. VIMALA Vs. YASHODA

JUDGEMENT

(1.) THE Petitioners being aggrieved by the order dated 12 -07 -2012 passed on I.A. No. 2 in FDP No. 38/2009 on the file of the I Additional City Civil and Sessions Judge, Bangalore City has filed this writ petition.

(2.) IN the writ petition, the petitioners have contended that they are the daughters of G. Srinivasa and Jayamma. The first respondent, Smt. Yashoda who is the daughter -in -law of Srinivasa and Jayamma had filed O.S. No. 1178/2006 seeking for partition and separate possession of her 1/3rd share in the suit schedule properties. In the suit, Smt. Yashoda had contended that her husband late Dhanraj was the son of G. Sirnivasa and Jayamma. After the death of her husband, she was living separately and no share was given in the family properties. In view of that, she filed a suit seeking for partition, impleading her mother -in -law and brother -in -law Sri. Jayakumar as defendants No. 1 and 2. Though the defendants were served with notice, they had not filed any written statement nor defended their case. In view of that, the Trial Court decreed the suit and declared that the plaintiffs are entitled for 1/3rd share in the suit schedule properties. Thereafter, the plaintiff filed FDP No. 38/2009 for drawing up of a decree. The court issued notices. Thereafter the petitioners came to know about filing of the suit and also about FDP No. 38/2009 initiated by Smt. Yashoda.

(3.) SRI . H.S. Prashanth, learned counsel appearing for the petitioners contended that the order passed by the Trial Court rejecting I.A. No. 2 filed under Order I Rule 10 of CPC is contrary to law. The petitioners are the daughters of G. Srinivasa and Jayamma and they are necessary parties to decide the dispute between the parties. Though the plaintiff was aware of the said fact, intentionally she has not impleaded the petitioners as parties to the suit and also Final Decree Proceedings. If any order is passed in the FDP, it would adversely affect the interest of the petitioners. This aspect of the matter was totally overlooked by the Trial Court. If the petitioners were impleaded in the suit of FDP, they would have brought to the notice of the Court regarding execution of the Gift Deed and also alienation of property in favour of the husband of the second petitioner. Hence, sought for setting aside the order passed by the Trial Court on I.A. No. 2 and to allow I.A. No. 2 permitting them to come on record as defendants.