Narendra Shetty vs Surendra Shetty and Others

B. Manohar, J.—Petitioner is the respondent in FDP No. 3/2012 on the file of the Senior Civil Judge at Kundapur, being aggrieved by the order dated 27-11-2014 rejecting I.A. No. 6 filed under Section 10 and Section 151 of CPC seeking for staying the further proceedings in FDP No. 3/2012, till disposal of O.S. No. 270/2013 on the file of the Principal Civil Judge, Kundapur, filed this writ petition.

The petitioner herein filed a suit in O.S. No. 76/2003 seeking for partition and separate possession of the joint family properties seeking for passing of a preliminary decree contending that there was no partition of joint family properties by metes and bounds. The family members intended to partition the properties and all the parties are entitled to their respective shares. The contesting defendants raised objections to the said partition and the said partition suit ended in compromise before the Lok Adalath on 28-01-2006. Thereafter, a preliminary decree was drawn on 7-2-2006. Since the plaintiff has not filed an application for drawing up of final decree proceedings, the defendants 1 and 3 in O.S. No. 76/2003 initiated final decree proceedings in FDP No. 3/2012 on 25-01-2012. The petitioner herein filed objections to the said FDP. After over-ruling the objections, the Court Commissioner was appointed to effect partition and to measure the properties. The Commissioner after holding necessary enquiry submitted a report dated 9-1-2013. The petitioner filed objections to the said Commissioner report stating that the measurement is not in accordance with law. In view of the objection raised by the petitioner, the matter was once again referred to the Commissioner. Subsequently, the Commissioner submitted a report after considering the objections of the petitioner on 7-10-2013. When the matter stood thus, the petitioner filed O.S. No. 270/2013 impleading defendants 1 and 3 in O.S. No. 76/2003, contending that while searching the old steel trunk of his mother on 29-09-2013 he traced an unregistered Will dated 16-12-1986. In the said Will the house property i.e. item Nos. 9, 10 and 11 of the suit schedule properties was bequeathed in his favour, since he could not trace the said Will earlier, the said three items of the properties cannot be partitioned. In the suit, he sought for declaration that the plaintiff has become the absolute owner of ''A'' schedule property as per the Will dated 16-12-1986 executed by his mother Smt. Rathnavathi Shedthi. Consequently sought for permanent injunction restraining his brothers defendants 1 and 3 from interfering with his peaceful possession and also for other reliefs. In the meanwhile, the petitioner filed I.A. No. 6 in FDP No. 3/2012 seeking for stay of the further proceedings in the final decree proceedings till disposal of the subsequent suit O.S. No. 270/2013 contending that if the final decree proceedings is proceeded with and the shares are allotted as per the final decree, that will adversely affect his interest. As per the unregistered Will dated 16-12-1986, the mother of the petitioner has bequeathed item Nos. 9, 10 and 11 of ''B'' schedule property and the same is allotted to his share. Hence sought for stay of further proceedings in FDP.

The petitioners in FDP No. 3/2012 filed detailed objections to the said application contending that the final decree proceedings cannot be stayed. The petitioner himself filed O.S. No. 76/2003 seeking for partition and separate possession and the said suit ended in compromise and the preliminary decree was drawn on 7-2-2006. Hence, he cannot file one more suit seeking for stay of further proceedings in FDP. The Will relied upon by the petitioner is a concocted and forged document. The mother of the petitioner and respondents died on 31-8-1987. After 26 years of death of their mother, the petitioner claims that he found out the Will dated 16-12-1986. The said Will is collusive and set up along with the attesting witnesses. No value can be attached to the fabricated Will dated 16-12-1986 said to have been executed by his mother in favour of the petitioner. Apart from that, as per the registered partition deed dated 01-10-1965, ''A'' schedule property was allotted to the share of the mother of the petitioner Rathnavathi Shedthi, Narendra Shetty, i.e. the petitioner herein, Surendra Shetty, Anasooya Shetty and Aravind Shetty. All the members have equal share and the mother has no right to execute the Will only in favour of the petitioner in respect of the house property in order to deny their lawful right in the joint family properties, the petitioner has set up the Will. Hence, the further proceedings in FDP No. 3/2012 cannot be stayed and sought for dismissal of the said I.A. No. 6 filed by the petitioner seeking for stay of further proceedings in the FDP proceedings.

The Trial Court after examining the matter in detail, taking into consideration the contentions raised by both the parties found that the mother of the petitioner died in the year 1987 and sister also died in the year 2004. Apart from that, the petitioner himself filed a suit seeking for partition in the year 2003 and the said partition suit ended in compromise. After lapse of 26 years, the petitioner came up with the Will stating that out of love and affection on him, his mother had executed a Will dated 16-12-1986 and while he was searching old steel trunk, he was able to trace out the said Will on 29-09-2013. In the said Will, item Nos. 9, 10 and 11 of ''B'' schedule property has been bequeathed in his favour, on the basis of the said Will, he filed a suit seeking for declaration declaring that he is the absolute owner of the said property. The said Will cannot be relied upon. If the mother of the petitioner was staying with petitioner, nothing prevented him to find out the Will immediately after her death and 26 years is not required for the same. In the partition suit filed by the petitioner, the brothers of the petitioner have asked for share in item Nos. 9, 10 and 11 of the ''B'' schedule property. In order to deny their share, the petitioner has set up this Will. Hence, the petitioner is not entitled for an order of stay of further proceedings in FDP No. 3/2012. The Trial Court also examined Sections 10 and 151 of CPC and held that in order to get the benefit under Section 10 of CPC, they have to fulfill essential ingredients in Section 10 of CPC. In the instant case, the matter in issue is entirely different. The earlier suit was filed seeking for partition of the joint family properties and the subsequent suit is filed for declaration, declaring that the petitioner is the absolute owner of three items of ''B'' schedule property in the joint family properties. The parties are not same, except two persons, other persons are not made parties in the second suit. Further the suit must be pending in the same court. In the instant case, the suits are pending before two different courts and the subject matter in both the suits in entirely different. The case pleaded by the petitioner does not fall under the essential conditions mentioned in Section 10 of CPC. Accordingly, dismissed the said application. Being aggrieved by the same, the present writ petition is filed.

Sri. Pavana Chandra Shetty, learned counsel appearing for the petitioner contended that the order passed by the Trial Court is contrary to law. He filed a suit seeking for partition and separate possession in O.S. No. 76/2003, which was ended in compromise. Preliminary decree has been passed on 7-2-2006. However, two brothers have bent upon to take family house of the petitioner over which the petitioner has sentimental value. The family house has its heritage and it cannot be partitioned in the family partition. In view of that, he objected for drawing up of final decree proceedings. Subsequently, while searching the old steel trunk after the death of his mother, he found an unregistered Will which was attested by two respectable persons of the City and the said Will cannot be disputed. Immediately after obtaining the said Will, he filed another suit seeking for declaratory relief. Simultaneously, he filed I.A. No. 6 invoking Section 10 of CPC seeking for stay of further proceedings in FDP No. 3/2012 till the disposal of O.S. No. 270/2013. The Trial Court without taking into consideration the intent of Section 10 of CPC has passed the order which is contrary to law and the same cannot be sustained.

On the other hand, Sri. K. Chandranatha Ariga, learned counsel appearing for respondents 1 and 2 argued in support of the order passed by the Trial Court and contended that in order to avoid lawful share of his brothers in the joint family properties, the petitioner is setting up one or the other hurdle. The petitioner himself filed the suit seeking for partition. The respondents herein have not objected for partition. It was ended in compromise and the preliminary decree has been passed on 28-01-2006. In spite of passing the preliminary decree, no steps have been taken for drawing up of the final decree proceedings. Accordingly, respondents 1 and 2 initiated final decree Proceedings in FDP No. 3/2012 for drawing up of the final decree for allotment of shares. Strangely, the petitioner objected for drawing up of final decree proceedings and he has filed objections to the Commissioner report also. His objection was referred to the Commissioner once again for re-enquiry. The Commissioner after re-enquiry submitted his report on 7-10-2013 and he opined that all the three brothers are entitled to have the family house. Hence, the family house has to be auctioned among the three brothers. The highest bidder can have the family house. The petitioner has already invoked Section 2 of the Partition Act. There is no dispute in respect of other items of the properties. Immediately after receipt of Commissioner report the petitioner has filed a suit for declaratory relief on the basis of the forged Will said to have been executed by the deceased mother on 16-12-1986. After 26 years of death of the mother, the said Will has seen the light. It is the specific allegation of the respondents that in collusion with the two attesting witnesses, a forged Will has been prepared for filing a suit. The Trial Court taking into consideration all these aspects of the matter, the case pleaded by the petitioner and that he has not fulfilled the ingredients of Section 10 of CPC dismissed the application. There is no infirmity or irregularity in the order passed by the Trial Court in dismissing I.A. No. 6 and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the learned counsel for the parties, perused the order impugned and other relevant records.

The records clearly disclose that the petitioner filed a suit seeking for partition and separate possession of joint family properties impleading the respondents herein and other persons. The said suit ended in compromise. A preliminary decree has been passed on 28-01-2006. However, the petitioner has not taken any steps for drawing up of final decree. In view of that, respondents herein initiated final decree proceedings in the year 2012 seeking for partition in the joint family properties as per the preliminary decree. The petitioner filed objections to the said final decree proceedings. After over-ruling the objections, the Commissioner was appointed and he submitted a report. The petitioner also objected for the Commissioner report and once again the matter was referred to the Commissioner along with his objection. After considering the objection raised by the petitioner, the Commissioner submitted his report on 7-10-2013. Thereafter, the petitioner filed O.S. No. 270/2013 contending that he has got an unregistered Will dated 29-09-2013 executed by his mother on 16-12-1986. In the said Will, item Nos. 9, 10 and 11 are bequeathed in his favour. Hence, the other brothers have no right and sought for a restraint order against respondents herein. Simultaneously, he filed an application I.A. No. 6 seeking for stay of further proceedings in final decree proceedings till the disposal of O.S. No. 270/2013. The respondents herein filed objections to the said application alleging that the Will said to have been executed by the deceased mother in favour of the petitioner is a forged and fraudulent Will created by him with due assistance of the attesting witnesses. The said Will has seen the light only after 26 years of the death of his mother and the said Will cannot be relied upon. The Trial Court after examining the matter in detail and taking into consideration the contentions taken by both the parties and Section 10 of CPC found that the petitioner has not fulfilled all the ingredients of Section 10 of CPC for grant of stay of further proceedings in FDP No. 3/2012 till the disposal of O.S. No. 270/2013. Hence, he is not entitled for any relief.

Section 10 of CPC, provides for stay of suit. It contemplate that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title where such suit is pending in the same or any other Court having jurisdiction to grant the relief claimed. The provisions are mandatory in nature. The section enables the court to stay the suit only when the ingredients of Section 10 of CPC are fulfilled. The essential ingredients are:

"(a) that the matter in issue in the second suit is also directly and substantially is issue in the first suit;

(b) that the parties in the second suit are the same or parties under whom they or any of them claim litigating under the same title;

(c) that the court in which the first suit is instituted is competent to grant the relief claimed in the subsequent suit;

(d) that the previously instituted suit is pending in the same Court in which the subsequent suit is brought is pending."

In the instant case, the petitioner filed a suit in O.S. No. 76/2003 seeking for partition and separate possession of joint family properties whereas in the present suit, the prayer of the petitioner is for declaration, declaring that he is the absolute owner of ''A'' schedule property which are item Nos. 9, 10 and 11 of ''B'' schedule property and also for permanent injunction restraining the respondents herein from interfering with his peaceful possession. The subject matter is also entirely different. In the earlier suit, all the family members were made parties but in the present suit, only two brothers are made parties and no relief has been claimed against the other family members. Staying the FDP proceedings though affects all the members of the family, the other members are not made parties in the present suit. Further, two suits are not pending in the same court as required under the provisions of Section 10 of CPC. This Court had an occasion to examine the issue regarding the matter directly and substantially in issue in a judgment reported in National Institute of Mental Health and Neuro Sciences Vs. C. Parameshwara, and held that the matter directly and substantially in issue means whole of subject matter in both proceedings is identical, then only the court can stay the further proceedings. But, in the instant case, none of the ingredients of Section 10 of CPC are fulfilled. Hence, the petitioner is not entitled for any relief. The Trial Court after examining the matter in detail held that the petitioner has not made out a case to stay the further proceedings in FDP. I find no infirmity of irregularity in the said finding. Petitioner has not made out a case to interfere with the order passed by the Trial Court. Accordingly the writ petition is dismissed.