CHOWDEGOWDA SINCE DEAD BY LRS vs RATHNAMMA

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 7 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

WRIT PETITION NO. 42879 OF 2019 (GM-CPC)

BETWEEN:

CHOWDEGOWDA
SINCE DEAD BY LRS

1.
LALITHAMMA
AGED ABOUT 60 YEARS,

2. MUNIVENKATAMMA
AGED ABOUT 55 YEARS

3. J.C. MOHAN
AGED ABOUT 41 YEARS

4. J.C. VISHWANATH
AGED ABOUT 39 YEARS

5. J.C. VIJAYAKUMAR
AGED ABOUT 39 YEARS

6. J.C. PRAKASH
AGED ABOUT 37 YEARS

PETITIONERS 1 AND 2 WIVES OF AND
PETITIONERS 3 TO 6 CHILDREN OF
LATE CHOWDEGOWDA,













Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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7. SREERAMEGOWDA
AGED ABOUT 55 YEARS
S/O. LATE MUNISHAMIGOWDA,

8. RADHAKRISHNA
AGED ABOUT 48 YEARS
S/O. LATE MUNISHAMIGOWDA,

PETITIONERS 1 TO 8
R/A JADERI VILLAGE,
HOLUR HOBLI,
KOLAR TALUK-563126.
…PETITIONERS
(BY SRI. VARADARAJAN M.S, ADVOCATE)
AND:

1. RATHNAMMA
D/O. LATE MUNISHAMIGOWDA,
W/O. R C V REDDY,
AGED ABOUT 57 YEARS,
R/A JADERI VILLAGE, HOLUR HOBLI,
KOLAR TALUK - 563 126.

2. LAKSHMAMMA
W/O. LATE MUNISHAMIGOWDA,
AGED ABOUT 79 YEARS,
R/A JADERI VILLAGE,
HOLUR HOBLI,
KOLAR TALUK - 563 126.

SINCE DEAD BY LRS VIDE ORDER DATED 25.03.2025
ETITIONER NO.7 AND 8 AND RESPONDENTS
NO.1, 3, 5 TO 10 WHO ARE LRS ARE ALREADY ON
RECORD AND THEY ARE TREATED AS LRS OF
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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DECEASED RESPONDENT NO.2.

3. CHOWDAMMA
D/O. LATE MUNISHAMIGOWDA,
W/O. GOPALAKRISHNA
AGED ABOUT 74 YEARS,
R/A SIDDAGHATTA VILLAGE,
MULBAGAL TALUK - 563 131.

SINCE DEAD BY HER LRS
VIDE ORDER DATED 07.07.2026

3(A). SMT. SHANTHAMMA
D/O LATE CHOWDAMMA
W/O LAKSHMINARAYANA
AGED ABOUT 57 YEARS

3(B). SRI. RAMESHA
S/O LATE CHOWDAMMA AND
GOPALAKRISHNA
AGED ABOUT 55 YEARS
R/AT SIDDAGATTU VILLAGE

3(C). SMT. VIJIYAMMA
D/O LATE CHOWDAMMA
W/O PURUSHOTHAM
AGED ABOUT 52 YEARS

3(D). SRI. ANAND
S/O LATE CHOWDAMMA AND
GOPALAKRISHNA
AGED ABOUT 50 YEARS
R/AT SIDDAGATTU VILLAGE
RESPONDENTS NO.3(A) TO 3(D) ARE
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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R/AT SIDDAGHATTA VILLAGE
MULBAGAL POST AND TALUK - 563 131.

MUNIVENKATAMMA
SINCE DEAD BY LRS

4. YELACHAPPA
AGED ABOUT 72 YEARS,
R/A 4TH CROSS, 5TH MAIN,
P.C. EXTENSION, KOLAR - 563 101.

5. CHANAMMA
D/O. LATE MUNISHAMIGOWDA,
W/O. KRISHNAPPA,
AGED ABOUT 63 YEARS,
R/A DADIREDDIHALLI VILLAGE,
HOBLI, KOLAR TALUK - 563 101.

6. JAYAMMA
D/O. LATE MUNISHAMIGOWDA,
W/O. VEERAPPA,
AGED ABOUT 61 YEARS,
R/A KUPPAHALLI VILLAGE,
KASABA HOBLI,
SRINIVASAPURA TALUK.

7. ANASUYAMMA
D/O. LATE MUNISHAMIGOWDA,
W/O. MUNIVENKATAPPA,
AGED ABOUT 53 YEARS,
R/A ITHARASANAHALLI VILLAGE,
HOLUR HOBLI,
KOLAR TALUK - 563 126.

Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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8. AHALYAMMA
D/O. LATE MUNISHAMIGOWDA,
W/O. MUNIRAMAPPA,
AGED ABOUT 51 YEARS,
R/A HULKURU VILLAGE,
BETHAMANGALA HOBLI,
BANGARPET TALUK - 563 116.

9. PUSHPAMMA
D/O. LATE MUNISHAMIGOWDA,
W/O. VENKATARAMAPPA,
AGED ABOUT 50 YEARS,
R/A JADERI VILLAGE, HOLUR HOBLI,
KOLAR TALUK - 563 126.

10. VEENA
D/O. LATE MUNISHAMIGOWDA,
W/O. LAKSHMANA,
AGED ABOUT 46 YEARS,
R/A ABBINI VILLAGE,
HUTHUR HOBLI,
KOLAR TALUK - 563 103.
…RESPONDENTS
(BY SMT. LAVANYA S, ADVOCATE FOR PROPOASED R4(A) ON
IA 1/25;
SMT. H.R. UMADEVI, ADVOCATE FOR R4;
R1, R3, R5, R6, R7, R8, R9, R10 ARE SERVED;
VIDE ORDER DATED 25.03.2025, P7, P8, R1, R3, R5 TO R10
ARE LRS OF DECEASED R2;
R3(A), R3(B), R3(C), R3(D), R4(C) ARE SERVED;
VIDE ORDER DATED 26.03.2026, NOTICE TO R11 IS HELD
SUFFICIENT)

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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DTD 21.08.2019 PASSED ON THE IA DTD 21.08.2018 FILED BY
THE PETITIOENR UNDER SECTION 151 OF THE CPC IN
O.S.219/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CJM AT KOLAR VIDE ANNX-A AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

ORAL ORDER

Captioned petition is filed by the legal representatives of
defendant Nos.4, 7 and 11, calling in question the order passed
by the learned Principal Senior Civil Judge and CJM, Kolar,
rejecting the application filed by the petitioners under Section
151 of the Code of Civil Procedure, 1908 (for short, ‘the CPC’).
2. The petitioners sought inclusion of certain properties
referred to in the written statement in the preliminary decree
proceedings. It is the case of the petitioners that, while
pronouncing judgment in O.S.No.219/2012, the learned Trial
Judge had specifically reserved liberty to the plaintiff or
defendant Nos.4, 7 and 11 to furnish the correct extent and
boundaries of the additional ancestral and joint family
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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properties before drawing the preliminary decree. However, the
application filed by the petitioners came to be rejected solely on
the ground that it was not filed within the time stipulated by
the Court while drawing the preliminary decree. Aggrieved by
the said order, the present petition is filed.
3. Respondent No.1, who is the plaintiff before the Trial
Court, has been served and remains unrepresented. The other
respondents are the contesting defendants, who, in the present
proceedings, are formal parties. They have also been served
with notice.
4. Before examining the correctness of the impugned
order, it would be appropriate to extract the operative portion
of the judgment rendered by the learned Trial Court in
O.S.No.219/2012, pursuant to which the preliminary decree
came to be drawn. The same reads as under:
“The suit of the plaintiff is hereby decreed in part with
costs.
The Plaintiff is entitled for 1/52 share in all the schedule
properties including properties which are situated at
Yedururu village. They are Sy. NO. 93/1, 93/2, 93/3, 94/A,
94/B, 93/4, 95/P1 and 96. Likewise, Sy. No. 43/1, 33/P28,
33/P41. 33/P43, 44/P2, 78 and 96 of Dadireddihalli village
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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and Sy. Nos. 66/1 and 66/2 of Jaderi village. Likewise,
defendants No. 4, 7 and 11 are also entitled for 7/16 share
each in the above said properties.
I call upon either the plaintiff or the defendants No.4,7 and
11 to furnish correct extent and boundaries of the
additional ancestral and joint family properties before
drawing the preliminary decree.
I call upon the office to collect requisite court fee from the
defendants if they have not paid.
I call upon the office to draw preliminary decree
accordingly.”

5. A plain reading of the operative portion of the
judgment makes it evident that the learned Trial Court
accepted the contention of the defendants that the properties
referred to in the written statement also constituted ancestral
and joint family properties. The Trial Court, while recording its
conclusions, specifically directed that the correct extent and
boundaries of such additional properties be furnished by either
the plaintiff or defendant Nos.4, 7 and 11 before the
preliminary decree was drawn.
6. Thus, the judgment itself contemplated inclusion of the
additional ancestral and joint family properties in the
preliminary decree. The liberty granted by the Trial Court was
not an independent or subsequent right created in favour of the
defendants, but was intended to facilitate giving effect to the
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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findings recorded in the judgment before the preliminary
decree was drawn.
7. The learned counsel appearing for the petitioners, by
referring to the records, submits that the legal representatives
of defendant No.3 had questioned the preliminary decree
passed in O.S.No.219/2012 and that there was an order of stay
operating against the judgment and decree rendered in the said
suit. It is in this backdrop that the petitioners contend that they
could not effectively seek inclusion of the additional properties
before the office proceeded to draw the preliminary decree.
8. Even assuming that the petitioners did not move an
appropriate application within the time contemplated by the
Trial Court, such omission, in the facts of the present case,
cannot result in extinguishment of their substantive right to
seek inclusion of properties which, according to the findings
already recorded by the Trial Court, constitute ancestral and
joint family properties.
9. It is trite that, in a coparcenary, the right of a
coparcener in ancestral property is a pre-existing right acquired
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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by birth. A partition suit does not create such a right, the Court
merely declares and quantifies the pre-existing rights of the
parties and passes a decree in accordance with such
determination.
10. Therefore, if the petitioners are otherwise entitled to
seek partition in respect of properties which were left out of the
plaint, merely because the preliminary decree had come to be
drawn by the time the petitioners approached the Court, their
substantive right cannot be defeated on such a technical
consideration. The subsequent drawing of the preliminary
decree cannot cure an inconsistency between the findings
recorded in the judgment and the contents of the decree.
11. In the present case, the Trial Court itself recorded a
finding that the properties referred to in the written statement
were ancestral properties and, consequently, reserved liberty to
the plaintiff or defendant Nos.4, 7 and 11 to furnish the
particulars of those properties before the preliminary decree
was drawn. Having recorded such a finding and issued such a
direction, the Trial Court ought not to have proceeded to draw
the preliminary decree without ensuring that the plaint and the
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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schedule properties were brought in conformity with its
findings.
12. A preliminary decree must necessarily conform to the
findings and conclusions recorded by the Court while
pronouncing the judgment. Where the judgment records that
certain properties are also ancestral and joint family properties
and specifically directs their inclusion before drawing the
preliminary decree, the decree cannot legitimately omit those
properties.
13. The Trial Court, therefore, committed a fundamental
error in rejecting the petitioners’ application merely on the
ground that it was filed beyond the time stipulated by the
Court. The delay or omission on the part of the parties in taking
steps pursuant to the liberty reserved by the Court cannot be
permitted to defeat substantive rights which have already been
adjudicated upon.
14. Equally, the petitioners cannot be penalised for the
lapse in not incorporating the properties in the plaint when the
judgment itself had directed that such properties be included
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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before the preliminary decree was drawn. The Court is required
to give effect to its own findings and conclusions while drawing
the decree.
15. There is yet another fundamental aspect which
requires consideration. A suit for partition ought, ordinarily, to
encompass the entirety of the joint family properties which are
available for partition. A decree for partial partition, where all
the joint family properties are capable of being brought before
the Court, is not ordinarily sustainable. Therefore, once the
Trial Court had found that the properties referred to by
defendant Nos.4, 7 and 11 were also ancestral properties, the
preliminary decree could not have been drawn by excluding
those properties.
16. Viewed from any angle, the preliminary decree drawn
without incorporating the properties which the Trial Court itself
found to be ancestral and joint family properties, and which
were directed to be furnished before drawing the decree,
cannot be sustained. The impugned order, which proceeds
solely on the premise that the application was not filed within
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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the stipulated time, consequently suffers from a fundamental
infirmity.
17. This Court is, therefore, of the considered view that
the petitioners’ right to seek inclusion of the properties did not
stand extinguished merely because the office had, in the
interregnum, drawn the preliminary decree. The learned Trial
Judge ought to have examined the application in the light of the
findings and directions contained in the judgment rather than
rejecting it on a technical ground of delay.
18. For the foregoing reasons, the impugned order is
unsustainable and is liable to be set aside. The matter requires
to be remitted to the learned Trial Court with a direction to
ensure that the preliminary decree is brought in conformity
with the findings recorded in the judgment.
19. Accordingly, this Court proceeds to pass the
following:
ORDER
allowed
i. The writ petition is .
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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ii. The order dated 21.08.2019 in O.S.No.219/2012 on
the file of the Principal Senior Civil Judge and CJM,
Kolar, vide Annexure-A, is hereby quashed and set
aside.
iii. The learned Trial Judge is directed to direct the
office to include the properties referred to in the
written statement and to draw and issue a fresh
amended preliminary decree, in conformity with the
findings recorded in the judgment, so as to enable the
parties to initiate final decree proceedings in
accordance with law.
iv. The aforesaid exercise shall be completed within a
period of two months from the date of receipt of a
copy of this order.
v. The impleading applicants, who are pendente lite
purchasers, are reserved liberty to work out their
remedies in the final decree proceedings, in
accordance with law.
vi. Pending applications, if any, stand disposed of.

Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

(SACHIN SHANKAR MAGADUM)
JUDGE

HDK