Bangalore District Court
Sri N.R. Murali Krishna vs Smt. Kokilavani on 19 April, 2018
1 O.S. 9379/2015
Form
No.9
(Civil)
Title
Sheet for
Judgmen
t in Suits PRESENT: Sri S.A. HIDAYATHULLA SHARIFF,
R.P. 91
B.A., LL.M.,
LVIII Additional City Civil and
Sessions Judge
Dated this the 19th day of April 2018
ORIGINAL SUIT NO. 9379/2015
PLAINTIFF: Sri N.R. MURALI KRISHNA
Son of Late N.B.Ramaswamy,
Aged about 36 years,
Residing at Old No.65,
New No.194/1, 2nd Floor,
"A" Street, 6th Cross,
Ananda Rao Extension,
Gandhinagar, Bangalore560 009.
[By Sri K.S.Harish, Advocate]
/v e r s u s/
DEFENDANTS: 1. Smt. KOKILAVANI
Wife of Late N.B.Ramaswamy
Aged about 56 years.
2. Sri ARVIND N.R. DARSHAN
Son of Late N.B.Ramaswamy
Aged about 35 years,
Both are residing at Old No.65,
New No.194/1, Ground Floor,
"A" street, 6th cross,
Ananda Rao Extension,
Gandhinagar,
Bangalore560 009.
2 O.S. 9379/2015
3. Smt. N.R. JYOTHI LAKSHMI
Daughter of Late N.B.Ramaswamy
Aged about 38 years,
Residing at No. 9/5
Edigar Street, Krishnapuram,
Ambur, Tamil Nadu.
4. Sri N.B. MANOJ KUMAR
Son of late N.R.Balakrishnaiah,
Aged about 49 years,
Residing at Old No. 65,
New No.194/1, First Floor,
"A" street, 6th cross,
Ananda Rao Extension,
Gandhinagar, Bangalore560 009.
D1 to D3 - By Sri KSJ, Advocate
D4 - By Sri MRV, Advocate
Date of institution of the : 17/11/2015
suit
Nature of the suit : For partition
Date of commencement of : 13/10/2017
recording of the evidence
Date on which the : 19/4/2018
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
3 5 2
(S.A. Hidayathulla Shariff)
LVIII ACC & SJ: Bengaluru
This is a suit for partition with consequential
reliefs of declaration.
3 O.S. 9379/2015
2. The case of the plaintiff in brief is that,
plaintiff and second defendant are the two sons and
third defendant is the only daughter of late
N.B.Ramaswamy and first defendant Smt. Kokilavani.
4th defendant is the younger brother of late
N.B.Ramaswamy. Plaintiff and defendants 1 to 4
constitute Hindu Joint Family and governed by
Mithakshara school of law.
N.P.Ramaiah, the paternal great grandfather of
the plaintiff and defendants 2 and 3 was the original
owner of suit schedule properties. N.P.Ramaiah had
two sons by name N.R.Balakrishnaiah and Sri
N.R.Mahadevan. N.P.Ramaiah during his lifetime had
executed registered settlement deed dated 11/7/1962
by settling the suit schedule properties in favour of
his grand children born through his son
N.R.Balakrishnaiah. After the death of
N.B.Manjunath, the second son of
N.R.Balakrishnaiah, Smt. L.Leela, wife of
N.B.Manjunath had relinquished all her rights and
4 O.S. 9379/2015
interest with respect to schedule properties after
receiving money in lieu of her share which her
husband had entitled and had executed a registered
release deed dated 27/6/2003 in favour of remaining
four brothers of her deceased husband.
It is further case of the plaintiff that his father
N.B.Ramaswamy along with his four brothers
partitioned the joint family properties including suit
schedule properties under partition deed dated
8/9/2003 and in the said partition, the suit schedule
properties were allotted to the share of
N.B.Ramaswamy, the father of the plaintiff. The suit
schedule properties allotted to the share of
N.B.Ramaswamy have become coparcenery
properties in his hands with regard to his children as
the other coparceners. Plaintiff along with other
coparceners have jointly held and enjoyed the suit
schedule properties as coparcenery properties.
Plaintiff along with other members of the family as
coparceners had contributed for the improvement of
5 O.S. 9379/2015
the suit schedule properties which were developed
over a period of time to suite the family business.
Suit 'B' schedule property is a commercial property
and same comprises of ground floor and three upper
floors, a shop premises is located on the ground floor
and there is a lodge by name 'New Everest' with total
of 18 rooms that are located in the first, second and
third floor of the building. N.B.Ramaswamy, the
father of the plaintiff died on 20/11/2013. After the
death of his father, plaintiff had approached the
second defendant on various occasions seeking
partition of the suit schedule properties by metes and
bounds and for allotment of his separate share in the
suit schedule properties. Though the second
defendant initially agreed for the same, but postponed
to effect partition by giving one or the other reasons.
Since second defendant did not come forward to effect
partition as assured, he was left with no option but to
seek for the intervention of the elders in the family to
resolve the issue. During the course of discussion, the
6 O.S. 9379/2015
second defendant has disclosed that their father
N.B.Ramaswamy has left behind a registered Will
dated 22/7/2013 by bequeathing the suit schedule
properties amongst his children as per his desire and
the said Will has come into effect on 20/11/2013
when N.B.Ramaswamy has died. Immediately
thereafter he has obtained particulars of the Will
through his mother and found that N.B.Ramaswamy
during his lifetime has solely bequeathed 50% of the
undivided share, title and interest in suit 'A' schedule
property to the second defendant under registered gift
deed dated 24/5/2010. N.B.Ramaswamy further sold
25% of the undivided share of land and building in
suit 'B' scheduele property to his brother N.M.Manoj
Kumar, the fourth defendant under registered sale
deed dated 31/3/2005. The fourth defendant has
obtained his signature to the registered sale deed
dated 31/3/2005 as one of the consenting witness by
misrepresenting that suit 'B' scheduele property was a
selfacquired property of his father and plaintiff had
7 O.S. 9379/2015
no right over the same. Under the Will dated
22/7/2013, late N.B.Ramaswamy had bequeatahed
remaining 50% undivided share in the suit 'A'
schedule property and 30% of undivided share of land
and building in suit 'B' schedule property to the
second defendant and bequethed 45% of the
undivided share of land and building in suit 'B'
scheduele property to the plaintiff.
It is further case of the plaintiff that suit
schedule properties are received by his father
N.B.Ramaswamy by virtue of a partition deed and
these properties are ancestral properties and hence
his father N.B.Ramaswamy had no exclusive right to
alienate the same by treating them as his
selfacquired properties. The execution of registered
gift deed dated 24/5/2010 and execution of registered
Will dated 22/7/2013 by late N.B.Ramaswamy with
respect to suit schedule properties treating them as
his selfacquired properties are null and void and not
binding on him. That he is having legitimate share in
8 O.S. 9379/2015
the suit schedule properties. His legitimate share in
the suit schedule properties have not accrued on
either to defendant no.2 or to defendant no.4 in any
manner by virtue of execution of the registered Will,
gift and sale deed which are nonest in law.
It is further case of the plaintiff that execution of
registered gift deed, registered sale deed and
registered Will by N.B.Ramaswamy were not for any
legal necessities and these documents were executed
without his knowledge and consent and is also not a
party to the above mentioned documents and no valid
right, title and interest or share would accrued to the
defendants 2 and 4 under the above mentioned
document. As one of the son of late N.B.Ramaswamy,
he is having a share in the suit schedule properties
which are his ancestral properties. Succession has
opened on the death of his father N.B.Ramaswamy on
20/11/ 2013 and after the death of N.B.Ramaswamy,
his share in the suit schedule properties was devolved
9 O.S. 9379/2015
on his wife and children under Section 8 of Hindu
Succession Act. He along with second defendant being
the two sons of N.B.Ramaswamy are entitled for
5/12th share each in the suit schedule properties. The
third defendant being the the daughter of late
N.B.Ramaswamy was married in the year 1992, prior
to the date on which the Karnataka amendment to the
Hindu Succession Act came into force and hence the
third defendant along with her mother are entitled for
notional 1/12th share each in the suit schedule
properties. On these grounds, plaintiff has sought for
partition and separate possession of his 5/12 th share
in the suit schedule properties and also sought for
declaration to the effect that the registered gift deed
dated 24/5/2010 and registered sale deed dated
31/3/2015 and registered Will dated 22/7/2013
executed by late N.B.Ramaswamy are not binding on
him and his share in the suit schedule properties and
also sought for a decree for permanent injunction
restraining the defendants from interfering with his
10 O.S. 9379/2015
separate share of the schedule properties and also
sought for cost of the suit.
3. A perusal of the materials on record
discloses that in response to the suit summons,
defendants 1 to 4 appeared before the Court and
contested the suit. The joint written statement filed by
defendants 1 and 2 was adopted by the third
defendant. The fourth defendant filed his separate
written statement.
4. A perusal of the written statement filed by
defendants 1 and 2 discloses that these defendants
have not disputed the relationship between the parties
to the suit but have disputed plaint averments that
plaintiff and defendants constitute Hindu undivided
family and suit schedule properties are coparcenery
properties of the plaintiff and defendants. Defendants
1 and 2 further contended that the documents
produced by the plaintiff clearly demonstrate that no
right is accrued to the plaintiff over the suit schedule
11 O.S. 9379/2015
properties at any point of time particularly during the
lifetime of N.B.Ramaswamy. N.B.Ramaswamy during
his lifetime as absolute owner of the schedule
properties has dealt with the same and also made
arrangements for residuary property of him on his
death. Since N.B.Ramaswamy died testate, the
intestate succession never opened and plaintiff cannot
file a suit seeking partition. At no point of time, suit
schedule properties acquired the character and
essence of ancestral or joint family property in the
backdorp of admitted facts and documents relied
upon by the plaintiff himself. The plaintiff has no
locus standi to question the testamentary capacity of
deceased N.B.Ramaswamy with regard to his absolute
properties moreover when plaintiff is also a beneficiary
of the last testament of deceased N.B.Ramaswamy.
The document sought to be cancelled by the plaintiff
are acted upon by the other side and same is within
the personal knowledge of the plaintiff. The relief of
injunction sought by the plaintiff against the
12 O.S. 9379/2015
defendants who are the true owners of the schedule
property is not maintainable in law.
The defendants 1 and 2 in their written
statement have not disputed the fact that in a
partition of the properties between N.B.Ramaswamy
and his brothers, suit schedule properties were
acquired by N.B.Ramaswamy under a registered
partition deed dated 8/9/2003 but denied the plaint
averments that the schedule properties are joint
family properties. The defendants further contended
that the partition between N.B.Ramaswamy and his
brothers was taken place as partition between
coowners and not between coparceners as alleged by
the plaintiff. It is further contended that though
N.B.Ramaswamy acquired the schedule properties
under partition between him and his brothers, these
properties continued as selfacquired properties of
N.B.Ramaswamy even after partition. The defendants
1 and 2 have also denied the plaint averments about
the alleged contribution made by the plaintiff for
13 O.S. 9379/2015
improvement of the suit schedule properties over a
period of time. The defendants have also denied the
plaint averments with regard to plaintiff approaching
the second defendant for partition of the schedule
properties and the intervention of elders of the family
in the dispute between the plaintiff and defendants.
Defendants further contended that plaintiff was very
much aware of the execution of last Will by
N.B.Ramaswamy and also aware of the execution of
the registered gift deed and sale deed by
N.B.Ramaswamy during his lifetime. The defendants
have also denied the plaint allegations that the fourth
defendant has obtained the signature of the plaintiff
to the sale deed dated 31/3/2005 by way of
misrepresentation and fraud.
Defendants 1 and 2 further contended that suit
schedule properties being the absolute properties of
N.B.Ramaswamy being his selfacquired properties he
had every right and interest to create third party
interest or to deal with the schedule properties as per
14 O.S. 9379/2015
his desire, accordingly N.B.Ramaswamy during his
lifetime has executed registered gift deed, registered
sale deed, and Will with respect to suit schedule
properties and none of these documents are liable for
impeachment under law. It is further contended that
the transferers under the documents executed by
N.B.Ramaswamy have acquired all the right, title and
interest and possession over the suit schedule
properties and plaintiff has no right to challenge the
same as plaintiff during the lifetime of
N.B.Ramaswamy never acquired any vested interest in
the schedule properties. It is further contended that
since N.B.Ramaswamy died testate leaving behind his
last Will dated 22/7/2013 with respect to his
selfacquired properties, the operation of Section 8 of
Hindu Succession Act will not come into force and
none of the classI legal heirs of N.B.Ramaswamy had
ever succeeded to the estate of deceased
N.B.Ramaswamy as claimed by the plaintiff. It is
further contended that the suit of the plaintiff is
15 O.S. 9379/2015
barred by limitation and plaintiff has no cause of
action to file the suit. It is further contended that suit
of the plaintiff is not properly valued for the purpose
of payment of court fee. On these grounds, defendants
1 and 2 have sought for dismissal of the suit.
4. The fourth defendant in his written
statement has not disputed the relationship between
the plaintiff and defendants and also not disputed the
execution of registered settlement deed dated
11/7/1962 by N.P.Ramaiah, the great grandfather of
the plaintiff and defendants 2 and 3 by settling the
suit schedule properties in favour of his grand
children. The fourth defendant has also not disputed
the execution of registered release deed dated
27/3/2003 by Smt. Leela wife of N.B.Manjunath in
favour of the brothers of deceased N.B.Manjunath.
Fourth defendant has also not disputed the execution
of registered partition deed dated 8/9/2003 between
N.B.Ramaswamy and his four brothers and allotment
16 O.S. 9379/2015
of the suit schedule properties to the share of
N.B.Ramaswamy in the said partition. The fourth
defendant has also not disputed the execution of
registered Will dated 22/7/2013 by his deceased
brother N.B.Ramaswamy and also not disputed the
death of N.B.Ramaswamy on 20/11/2013.
The fourth defendant in his written statement
has denied the plaint averments that the plaintiff and
defendants constitute Hindu undivided family and
suit schedule properties are coparcenery properties
of plaintiff and defendants. Fourth defendant further
contended that N.P.Ramaiah, the great grandfather of
the plaintiff was the original owner of the suit
schedule properties and it was his selfacquired
properties which he had settled in favour of his grand
children under registered settlement deed dated
11/7/1962. It is further contended that the suit
schedule properties are the absolute properties of
fourth defendant and his four brtohers who are the
grandchildren of late N.P.Ramaiah and in the family
17 O.S. 9379/2015
partition, schedule properties were allotted to the
share of N.B.Ramaswamy, the father of the plaintiff
and he has become absolute owner in possession of
the suit schedule properties. It is further contended
that the partition between N.B.Ramaswamy and his
brothers was not a partition between coparceners but
was a partition between coowners and hence the suit
schedule properties have not acquired the character of
coparcenery properties for the plaintiff to claim any
share over the same. It is further contended that
N.B.Ramaswamy, the father of the plaintiff along with
his sons and daughters have sold 1/4th undivided
right, title and interest over suit 'B' scheduele property
in favour of the fourth defendant under registered sale
deed dated 31/3/2005 and put 4 th defendant in
possession of the said properties. N.B.Ramaswamy
has executed the said sale deed with the consent of
the entire family and all his children including the
plaintiff have put their signatures to the sale deed as
consenting witness, as such fourth defendant has
18 O.S. 9379/2015
become absolute owner in possession of portion of
undivided share in the land of suit 'B' scheduele
property and the sale deed executed by
N.B.Ramaswamy is binding on the plaintiff and he has
no right to challenge the sale deed. The plaintiff being
one of the executant of the document is aware of the
said document and he has not questioned the said
document within prescribed period of limitation.
Plaintiff by paying required court fee has not
challenged the document by seeking cancellation of
the document as required under law and hence claim
of the plaintiff is barred under Section 34 of Specific
Relief Act. 4Th defendant after purchase of the property
has brought loans for purpose of putting up
construction and has also spent heavy amount for
improvement of the property purchased and he is in
exclusive possession and enjoyment of the entire first
floor of the suit 'B' scheduele property. On these
grounds, the 4th defendant has sought for dismissal of
the suit.
19 O.S. 9379/2015
5. Based on the above pleadings of the parties
and documents produced on record, this Court has
framed following issues:
(1) Whether the plaintiff proves that
suit schedule properties are
ancestral and joint family
properties belong to him and the
defendants?
(2) Whether the defendant no.1 and 2
prove that suit schedule properties
are self acquired properties of
N.B.Ramaswamy?
(3) Whether the plaintiff proves that
registered gift deed dated
24/5/2010 executed by late
N.B.Ramaswamy in favour of 2 nd
defendant with respect to suit suit
'A' schedule property is not binding
on his share?
(4) Whether the plaintiff proves that
registered sale deed dated
31/3/2005 executed by late
N.B.Ramaswamy in favour of the
4th defendant by conveying 25% of
undivided share of suit 'B'
scheduele property is not binding
on him?
(5) Whether the plaintiff proves that
Will dated 22/7/2013 executed by
late N.B.Ramaswamy is null and
void and not binding on him?
(6) Whether the suit of the plaintiff is
barred by limitation?
20 O.S. 9379/2015
(7) Whether the suit of the plaintiff is
properly valued for purpose of
payment of court fee?
(8) Whether the plaintiff is entitled for
partition of suit schedule
properties? If so, what is the share
of the plaintiff?
(9) What order or decree?
6. Parties have entered into trial. In proof of
his case, plaintiff got himself examined as PW.1 and
tendered Ex.P1 to Ex.P8 documents in evidence.
Defendants have not led any evidence. In the cross
examination of the plaintiff, Ex.D1 to Ex.D3
documents are confronted by the 4th defendant and
marked in evidence.
7. Heard the learned counsel for plaintiff and
learned counsel for the defendants. Perused the
materials placed on record.
8. My findings on the above issues are as
under:
Issue No. 1) ............ In the negative;
Issue No. 2) ............ In the affirmative;
21 O.S. 9379/2015
Issue No. 3) ............ In the negative;
Issue No. 4) ............ In the negative;
Issue No. 5) ............ In the negative;
Issue No. 6) ............ In the affirmative;
Issue No. 7) ............ In the negative;
Issue No. 8) ............ In the negative;
Issue No. 9) ............ As per final order for
the following:
9. ISSUE NO.1 TO 5: Since these five issues
are interconnected with each other to avoid repitition
of facts and findings, these five issues are taken up
together for consideration.
10. A perusal of the pleadings and evidence on
record discloses that there are certain undispued facts
between the parties to the suit. The relationship
between the parties to the suit is not in dispute. The
fact that plaintiff and second defendant are the two
sons and third defendant is the only daughter of late
N.B.Ramaswamy and first defendant Smt. Kokilavani
is not in dispute. The 4th defendant is the younger
22 O.S. 9379/2015
brother of late N.B.Ramaswamy is also not in dispute.
Ex.P1 is the undisputed genealogical tree of the family
of the plaintiff and defendants.
11. A perusal of the pleadings and evidence on
record discloses the further fact that suit 'A' and 'B'
schedule properties were the selfacquired properties
of one N.P.Ramaiah, the paternal great grandfather of
the plaintiff and defendants 2 and 3 is also not in
dispute. Further fact that N.P.Ramaiah, the paternal
great grandfather of plaintiff and defendants 2 and 3
who was the original owner of the suit schedule
properties has settled the same under Ex.P2
registered settlement deed dated 10/7/1962 in
favour of his grandchildren that are the sons of
N.B. Balakrishnaiah s/o N.P.Ramaiah is also not in
dispute. Further fact that after the death of
N.B.Manjunath, one of the son of N.B.Balakrishnaiah,
Smt. Leela w/o of N.B.Manjunath has relinquished all
her rights and interest with respect to suit schedule
properties in favour of brothers of her husband under
23 O.S. 9379/2015
Ex.P3 registered release deed dated 27/3/2003 is also
not in dispute. Further fact that N.B.Ramaswamy, the
father of the plaintiff and defendants 2 and 3 has
partititoned the family properties including the suit
schedule properties with his brothers under Ex.P4
registered partition deed dated 8/9/2003 and in the
said partition, suit schedule properties were allotted
to the share of N.B.Ramaswamy is also not in dispute.
Further fact that N.B.Ramaswamy during his lifetime
has sold 25% of undivided share of land and building
in suit 'B' scheduele property to his brother 4 th
defendant N.B.Manojkumar under Ex.P8 registered
sale deed dated 31/3/2005 is also not in dispute.
Further fact that N.B.Ramaswamy, the father of the
plaintiff and defendants 2 and 3 during his lifetime
has bequeathed 50% of undivided share, title and
interest in suit 'A' schedule property in favour of his
son second defendant under Ex.P7 registered gift deed
dated 24/5/2010 is also not in dispute. Further fact
that N.B.Ramaswamy during his lifetime has executed
24 O.S. 9379/2015
Ex.P6 registered Will dated 22/7/2013 bequeathing
schedule properties amongst his children as per his
desire and in the said Will, N.B.Ramaswamy has
bequeathed 50% of undivided share in suit 'A'
schedule property and 30% of undivided share of land
and building in suit 'B' schedule property to the
second defendant and bequeathed 45% of the
undivided share of land and building in suit 'B'
scheduele property to the plaintiff is also not in
dispute. Further fact that N.B.Ramaswamy, the father
of the plaintiff and defendants 2 and 3 died on
20/11/2013 is also not in dispute. Ex.P5 is the death
certificate of N.B.Ramaswamy.
12. A perusal of the pleadings and evidence of
the plaintiff discloses that plaintiff has filed this suit
for partitiion claiming that the suit schedule
properties are ancestral and joint family properties
belonging to him and the defendants. According to the
plaintiff, the suit schedule properties are coparcenery
properties belonging to him and the defendants and
25 O.S. 9379/2015
he being one of the coparcener is entitle for partition
and separate possession of his share in the suit
schedule properties. According to plaintiff, his father
N.B.Ramaswamy who has received the schedule
properties under partition dated 8/9/2003 that took
place between him and his brothers had no exclusive
right to alienate them by treating the schedule
properties as his selfacquired properties. According
to the plaintiff, the execution of Ex.P8 registered sale
deed dated 31/3/2005 by N.B.Ramaswamy in favour
of the 4th defendant, execution of Ex.P7 registered gift
deed dated 24/5/2010 in favour of the second
defendant and execution of Ex.P6 registered Will
dated 22/7/2013 by bequeathing the suit schedule
properties by treating them as his selfacquired
properties are null and void and not binding on him.
13. A perusal of the written statement of the
defendants and crossexamination of the plaintiff by
the defendants discloses that defendants have
contended that suit schedule properties were neither
26 O.S. 9379/2015
the ancestral joint family properties nor the
coparcenery properties of the plaintiff as alleged by
him. According to the defendants, the suit schedule
properties acquired by N.B.Ramaswamy under Ex.P4
registered partition deed dated 8/9/2003 were his
selfacquired properties and he had absolute right to
deal with these properties and plaintiff has no right to
challenge the execution of Ex.P8 registered sale deed
dated 31/3/2005, Ex.P7 registered gift deed dated
24/5/2010 and Ex.P6 registered Will dated
22/7/2013 executed by N.B.Ramaswamy during his
lifetime by treating the suit schedule properties as his
selfacquired properties.
14. In view of the rival contention taken by the
parties to the suit, the burden of proof is on the
plaintiff to prove that the suit schedule properties are
ancestral joint family properties and coparcenery
properties belonging to him and the defendants and
N.B.Ramaswamy, the father of the plaintiff and
defendants 2 and 3 had no right to execute Ex.P6 to
27 O.S. 9379/2015
Ex.P8 documents with respect to suit schedule
properties by treating these properties as his self
acquired properties.
15. A perusal of the pleadings and evidence of
the plaintiff discloses that the dispute between the
parties to the suit resolves around the nature of the
suit schedule properties. To succeed in the present
suit for partition, primarily plaintiff has to prove the
suit schedule properties are ancestral joint family
properties belonging to him and the defendants.
16. The learned counsel for the plaintiff has
argued that though N.B.Ramaswamy, the father of the
plaintiff and defendants 2 and 3 has acquired the
schedule properties under partition between him and
his brothers under Ex.P4 registered partition deed
dated 8/9/2003, these properties in the hands of his
sons becomes coparcenery property and the two sons
of N.B.Ramaswamy would acquire interest in the
schedule properties as coparceners and the schedule
28 O.S. 9379/2015
property becomes coparcenery property. In support
of his arguments, the learned counsel for the plaintiff
has relied on a decision reported between Rohit
Chauhan V. Surinder Singh & ors. Reported in
AIR 2013 SUPREME COURT 3535 wherein the
Apex Court of the land has held that if the
plaintiff's father got property in partition, it is his
separate property. But, after the birth of the
plaintiff, plaintiff acquires interest in property as
coparcener. It was further held that order of
dismissing of suit for partition treating plaintiff's
father property as selfacquired property is not
proper.
17. The plaintiff counsel has also relied on a
unreported decision of Hon'ble High Court of
Karnataka, Dharwad Bench rendered in RFA
221/2005 dated 12/2/2014 between Shri
Hanmant vs. Shri Adiveppa and others wherein
29 O.S. 9379/2015
also the Hon'ble High Court of Karnataka has
relied on the ratio of the decision reported in AIR
2013 SUPREME COURT 3525.
18. On the other hand, learned counsel for the
defendants have argued that since the plaintiff has
not inherited the suit schedule properties from his
paternal ancestors, he cannot claim right over the suit
schedule properties as ancestral properties. It is
further argued that the suit schedule properties
acquired by N.B.Ramaswamy, the father of the
plaintiff under partition between him and his brothers
and hence these properties are selfacquired
properties of N.B.Ramaswamy and plaintiff cannot
claim any right over these properties.
19. In support of their arguments, the learned
counsel for the defendants have relied on the following
decisions:
1.Between the Vijaya College Trust vs. Kumta Cooperative Arecanut Sales 30 O.S. 9379/2015 Society Limited and another reported in AIR 1995 KARNATAKA 35 wherein the Division Bench of Hon'ble High Court of Karnataka has held that under Hindu Law, ancestral property means property inherited by male Hindu from his father, father's father etc.,
2. Between C.N. Arunachala Mudaliar vs. A.Muruganatha Mudaliar and another reported in AIR 1953 SC 495, the Apex Court of the land has held that
i) To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to; and the property can ordinarly be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendent of the original owner, but 31 O.S. 9379/2015 when the father obtains the grand father's property by way of gift, he receives it not because he is a son or has any legal rights to such property but because his father choose to bestow a favour on him which he could have bestowed on any other person as well.
The interest which he takes in such property must depend upon the Will of the grantor.
It was further held that there is no warrant for saying that according to the Mithakshara, and affectionate gift by the father to the son constitutes 'ipso facto' ancestral property in the hands of the donee. In other words, a property gifted or bequeathed by a father to his son cannot be become ancestral property in the hands of the donee or legatee simply by reason of the fact that the donee or legatee got it from his father or ancestor"
3. Between K.Madhava Raja Nayak vs. 32 O.S. 9379/2015 K.Sridhara Nayak and others reported in 2009(2) KCCR 1206 (DB), wherein the Division Bench of Hon'ble High Court of Karnataka has elaborately discussed the meaning of coparcenery and separate property with respect to Hindu Law.
20. In the light of the arguments advanced by the learned counsel for the plaintiff and defendants, a perusal of the materials on record discloses that the fact that originally suit schedule properties belonged to N.P.Ramaiah, the paternal great grandfather of plaintiff and defendants 2 and 3 is not in dispute. A perusal of the contents of Ex.P2 registered settlement deed dated 10/7/1962 discloses that the suit schedule properties were shown as the selfacquired properties of N.P.Ramaiah who has settled the suit schedule properties in favour of his grand sons by excluding his sons. A perusal of the contents of Ex.P2 registered settlement deed dated 10/7/1962 discloses 33 O.S. 9379/2015 that the suit schedule properties which were selfacquired properties of N.P.Ramaiah were settled in favour of N.B.Ramaswamy and his five brothers.
21. A perusal of the contents of Ex.P4 registered partition deed dated 8/9/2003 discloses that under the said partition deed, suit schedule properties were allotted to the share of N.B.Ramaswamy, the father of the plaintiff. A perusal of the recitals of Ex.P4 partition deed discloses that the partition is described as partition between coowners of the schedule property.
22. It is pertinent to note that under Hindu Law, property inherited from paternal ancestor is called ancestral property. Under Hindu Law, all property inherited by a male Hindu from his father, father's father, or father's, father's father is ancestral property. The essential feature of ancestral property according to Mithakshara Law is that the sons, grand sons and great grand sons 34 O.S. 9379/2015 of the persons who inherits it acquire an interest in it by birth.
23. To find out whether a property is or is not ancestral property in the hands of a particular person not merely relationship between original and the peresent holder but the mode of the transaction of the property also must be looked into. In the present case in hand, a perusal of contents of Ex.P2 registered settlement deed dated 10/7/1962 executed by N.P.Ramaiah, the paternal great grandfather of the plaintiff in favour of his great grandchildren discloses that N.P.Ramaiah has settled his self-acquired properties in favour of his great grand children. N.B.Ramaswamy the father of the plaintiff and paternal uncles of the plaintiff have obtained the suit schedule properties under the said settlement deed not beacuase they are the great grand children or they have any legal right to such property, but because their great grandfather choose to bestow the said property on them which he could have bestowed as any other person as well.
24. Since N.B.Ramaswamy the father of the plaintiff and paternal uncles of the plaintiff have not inherited the suit schedule properties from their paternal ancestors but same was settled in 35 O.S. 9379/2015 their favour under settlement deed dated 10/7/1962 by their great grandfather, the contention of the plaintiff that suit schedule properties were ancestral properties of his father cannot be accepted.
25. A perusal of the pleadings and evidence of the plaintiff discloses that plaintiff claims that suit schedule properties are co-parcenery properties on the ground that though under registered partition deed daed 8/9/2003, the suit schedule properties were allotted to the share of his father N.B.Ramaswamy, these properties in the hands of children of N.B.Ramaswamy become co-parcenery properties and he being one of the son of N.B.Ramaswamy would acquire interest in that properties and become a co-parcener. However, it is pertinent to note that suit schedule properties allotted to the share of N.B.Ramaswamy, the father of the plaintiff under Ex.P4 registered partition deed daed 8/9/2003 were not the ancestral properties but the said properties were the self-acquired properties of N.B.Ramaswamy and his brothers which were allotted to the share of N.B.Ramaswamy. If the suit schedule properties were ancestral properties allotted to the share of N.B.Ramaswamy, certainly 36 O.S. 9379/2015 those properties becomes co-parcenery properties with regard to the sons of N.B.Ramaswamy. If the suit schedule properties were to be ancestral properites allotted to the share of N.B.Ramaswamy, certainly plaintiff would have claimed right in these properties as co-parcenery properties as one of the co-parcener as claimed by him. However, considering the fact that suit schedule properties were not the ancestral properties of N.B.Ramaswamy, but were the self-acquired properties of N.B.Ramaswamy allotted to his share under Ex.P4 partition deed dated 8/9/2003, these properties will not become the co-parcenery properties with regard to the sons of N.B.Ramaswamy as alleged by the plaintiff and hence plaintiff cannot acquire interest in the suit schedule properties as a co-parcener as claimed by him. In view of the fact that the suit schedule properties were not the ancestral properties but are the self-acquired properties of N.B.Ramaswamy and his brothers which were allotted to the share of N.B.Ramaswamy, the ratio of the decsion relied upon by the counsel for the plaintiff reported in AIR 2013 SUPREME COURT 3525 is not helpful for the plaintiff to claim that suit schedule properties are co-parcenery properties and he being one of the co-parcener had acquired interest in the said property.
37 O.S. 9379/2015
A perusal of the pleadings and evidence of the plaintiff discloses that plaintiff claims that along with other co-parceners, he has jointly held and enjoyed the suit schedule properties as co- parcenery properteis when the same were allotted to the share of his father N.B.Ramaswamy. Plaintiff claims that he along with other members of the family as co-parceners had contributed for the improvement of the suit schedule properties and suit schedule properties were developed over a period of time to suite the family business.
26. However, a perusal of the evidence on record discloses that plaintiff has failed to prove that suit schedule properties are co-parcenery properties and he is one of the co- parcener. Apart from that, a perusal of cross-examination of the plaintiff discloses that he has admitted the fact that only N.B.Ramaswamy, the father of the plaintiff and defendants 2 and 3 has put up construction of building in suit 'A' and 'B' schedule properties by obtaining bank loans and at no point of time, plaintiff had repaid the bank loan. In view of the admissions found in the cross-examination of the plaintiff, the contention of the plaintiff that he has jointly held and enjoyed the suit schedule 38 O.S. 9379/2015 properties as one of the co-parceners and contributed to the improvement of the suit schedule properties cannot be accepted.
27. A perusal of the pleadings and evidence of the plaintiff discloses that plaintiff has sought for declaration to the effect that the registered sale deed dated 31/3/2005 executed by deceased N.B.Ramaswamy in favour of the fourth defendant, registered gift deed dated 24/5/2010 executed by N.B.Ramaswamy in favour of the second defendant and registered Will dated 22/7/2013 executed by N.B.Ramaswamy by bequeathing the suit schedule properties in favour of his sons are not binding on him or his share in the suit schedule properties. These declarations sought for by the plaintiff is based on his claim that the suit schedule properties are the ancestral joint family properties and co-parcenery properties belonging to him and the defendants and his father late N.B.Ramaswamy had no right to execute the above mentioned documents by treating the suit schedule properties as his self-acquired properties.
28. In the present case in hand, plaintiff has failed to prove that the suit schedule properties are ancestral joint family properties and co-parcenery properties as claimed by him. On the 39 O.S. 9379/2015 other hand, the very documents produced by the plaintiff in the form of Ex.P2 registered settlement deed dated 10/7/1962 executed by N.P.Ramaiah, the paternal great grandfather of the plaintiff in favour of his great grand sons by settling the suit schedule properties in favour of N.B.Ramaswamy, the father of the plaintiff and the paternal uncles of the plaintiff and Ex.P4 registered partition deed dated 8/9/2003 executed bettween N.B.Ramaswamy the father of the plaintiff and the paternal uncles of the plaintiff falsifies the contention of the plaintiff that suit schedule properties are the ancestral joint family properties and co-parcenery properties of plaintiff and defendants, on the other hand, supports the contention of the defendants that suit schedule properties were the self-acquired properties of N.B.Ramaswamy.
29. It is pertinent to note that under Hindu Law, a Mithakshara father is not only competent to sell his self-acquired properties to a stranger without the concurrence of his sons but he can gift the property to any one of his sons to the detriment of others and he can make even an unequal distribution of his self- acquired properties among his children as held by the Apex Court 40 O.S. 9379/2015 of the land in a decision reported between C.N.Arunachala Mudaliar vs. C.A.Muruganatha Mudaliar and another reported in AIR 1953 S.C. 495.
30. Considering the fact that suit schedule properties are the self-acquired properties of N.B.Ramaswamy, the father of the plaintiff and defendants 2 and 3, he had absolute right to execute Ex.P8 registered sale deed dated 31/3/2005 in favour of the four defendant and he had absolute right to execute Ex.P7 registered gift deed dated 24/5/2010 in favour of the second defendant and he had absolute right to execute Ex.P6 Will dated 22/7/2013 by bequeathing the suit schedule properties among his children as per his desire. In view of the fact that the suit schedule properties are the self-acquired properties of N.B.Ramaswamy, the conention of the plaintiff that N.B.Ramaswamy had no right to deal wi th the suit schedule properties by executing Ex.P6 to Ex.P8 documents cannot be accepted and hence plaintiff is not entitle for the declarations sought for with regard to Ex.P6 to Ex.P8 documents as not binding on him and on his share in the suit schedule properties.
31. A perusal of the recitals of Ex.P8 registered sale deed; 41 O.S. 9379/2015 dated 31/3/2005 executed by late N.B.Ramaswamy, the father of the plaintiff and defendants 2 and 3 in favour of 4th defendant by selling 25% of undivided share of land and building in the suit schedule properties discloses that the plaintiff and defendants 2 and 3 had affixed their signature as consenting witness to the said document. A peusal of recitals of Ex.P8 document discloses that in the said document, the suit schedule properties were shown as the self-acquired properties of N.B.Ramaswamy and N.B.Ramaswamy was shown as the absolute owner in possession of the suit schedule properties. A perusal of cross-examination of plaintiff discloses that plaintiff in his cross-examination has categorically admitted the fact that after reading the recitals of Ex.P8 sale deed, he had affixed his signature to the said document. A perusal of Ex.P8 registered sale deed dated 31/3/2005 discloses that plaintiff by admitting the contents of the said document to the effect that suit schedule properties were the absolute properties of his father N.B.Ramaswamy has affixed his signaature as one of the consenting witness to the said document and after 10 years of execution of Ex.P8 document has filed the present suit by falsely claiming that suit schedule properties are ancestral joint family properties and co-parcenery properties and he is having a right 42 O.S. 9379/2015 over the same and the said sale deed executed by his father not binding on him. The very fact that plaintiff has affixed his signature to Ex.P8 sale deed dated 31/3/2005 as one of the consenting witness by admitting the fact that N.B.Ramaswamy was the absolute owner of the suit schedule properties is another strong circumstance which goes aganst the case of the plaintiff that the suit schedule properties were the co-parcenery properties and he is having right of partition over the same.
32. A perusal of the pleading and evidence of the plaintiff dislcoses that plaintiff claims that Ex.P6 to Ex.P8 documents executed by his father N.B.Ramaswamy were not for any legal necessities and these documents were executed without his knowledge and consent and hence not binding on him. Considering the fact that plaintiff has failed to prove that suit schedule properties are ancestral family properties and co-parcenery properties, the contention of the plaintiff that the documents executed by N.B.Ramaswamy were not for legal necessities and same were without his consent and knowledge and hence not binding on his share cannot be accepted. Since the suit schedule properties were the self-acquired properties of 43 O.S. 9379/2015 N.B.Ramaswamy, he had absolute right to deal with these properties. Hence, question of determination of legal necesssity of N.B.Ramaswamy in execution of Ex.P6 to Ex.P8 documents will not arise. Since plaintiff was one of the consenting witness to Ex.P8 sale deed dated 31/3/2005, the contention of the plaintiff that the documents executed by N.B.Ramaswamy were without his consent and knowledge cannot be accepted.
33. A perusal of the pleadings and evidence of the plaintiff discloses that plaintiff claims that on the death of his father N.B.Ramaswamy on 20/11/2013, succession opened and under Section 8 of Hindu Succession Act he claims his 5/12 th share in the suit schedule properties. It is pertinent to note that plaintiff has failed to prove that the suit schedule properties are the ancestral joint family properties and co-parcenery propertis of late N.B.Ramaswamy. On the other hand, the very documents produced by the plaintiff discloses that suit schedule properties were the absolute properties belonging to N.B.Ramaswamy, the father of the plaintiff. Further fact that N.B.Ramaswamy during his lifetime has executed Ex.P6 registered Will dated 22/7/2013 by bequeathing his properties in favour of his children as per his 44 O.S. 9379/2015 desire is not in dispute. Considering the fact that general rules of succession stated in Section 8 of Hindu Succession Act, 1956 applies only in case of a property of a male hindu dying intestate, the provision of Section 8 of Hindu Succession Act have no application to the prsent case in hand since N.B.Ramaswamy, the father of the plaintiff has not died intestate and he died testate by executing Ex.P6 Will dated 22/7/2013 by bequeathing his properties. Hence, the contention of the plaintiff that after the death of his father N.B.Ramaswamy on 20/11/2013, he has acquired 5/12th share in the suit schedule properties under Section 8 of Hindu Succession Act cannot be accepted.
34. By perusaing the oral and documentary evidence produced on record and overall assessment of the same, I hold that plaintiff has failed to prove that the suit schedule properties are ancestral joint family properties belonging to him and the defendants and also failed to prove that registered gift deed dated 24/5/2010 and registered sale deed daed 31/3/2005 and Will dated 22/7/2013 executed by N.B.Ramaswamy is null and void and not bidning on his share in the suit schedule properties. On the other hand, the defendants proved that suit schedule properties are the 45 O.S. 9379/2015 self-acquired properties of N.B.Ramaswamy. With these observations, I answer issue no.1 in the negative, Issue no.2 in the affirmative, and Issue no.3 to 5 in the negative.
35. ISSUE NO.6: In the present case, defendants have taken a specific defence that suit of the plaintiff is barred by limitation.
36. A perusal of the pleadings and evidence of the plaintiff discloses that plaintiff has sought for declaration that the registered gift deed dated 24/5/2010 and registered sale deed dated 31/3/2005 executed by his father N.B.Ramaswamy is not binding on his share in the suit schedule properties. It is pertinent to note that under Article 59 of Limitation Act, 1963, the period of ilmitation to cancel or set aside an instrument is three years and period of limitation begans to run when the facts entitling the plaintiff to have instrument or decree cancelled or set aside first become known to him.
37. A perusal of evidence on record discloses that on the date of execution of registered sale deed dated 31/3/2005 and registered gift deed dated 24/5/2010 itself plaintiff was aware of execution of these documents by his father N.B.Ramaswamy. In 46 O.S. 9379/2015 fact, plaintiff was one of the consenting witness of Ex.P8 registered sale deed dated 31/3/2005 executed by late N.B.Ramaswamy in favour of fourth defendant. Admittedly, plaintiff has not sought for cancellation or to set aside these documents within the period of three years from the date of knowledge of execution of these documents and he has filed the present suit only in the year 2015 which is clearly barred by limitation as rightly contended by defendants. With these observations, I answer issue no. 6 in the affirmative.
38. ISSUE NO.7: The defendants in the written statement have taken a specific defence that the suit of the plaintiff not properly valued for the payment of court fee and plaintiff who is not in joint possession of the suit schedule properties is required to pay the court fee on the market value of the schedule propertis.
39. A perusal of the pleadings of the plaintiff discloses that plaintiff who claims to be in joint possession of the suit schedule properties with the defendants has valued the suit under Section 35(2) of Karnataka Court Fee and Suits Valuation Act and paid fixed court fee of Rs.200/-. However, a perusal of the 47 O.S. 9379/2015 evidence on record discloses that the defendants have denied the title of the plaintiff over the suit schedule properties and plaintiff has been excluded from the possession of the schedule properties except the properties bequeathed to him under Will dated 22/7/2013. Further, a perusal of the cross-examination of the plaintiff discloses that plaintiff has categorically admitted the possession of the fourth defendant over the portion of the suit 'B' schedule property sold to the fourth defendant by N.B.Ramaswamy under Ex.P8 registered sale deed dated 31/3/2005. Further, plaintiff in his cross-examination has also admitted the possession of the second defendant with respect to portion of suit 'A' schedule property gifted to the second defendant by N.B.Ramaswamy under Ex.P7 registered gift deed dated 24/05/2010. Plaintiff in his cross-examination has also admitted the exclusive possession of the second defendant over the portion of suit 'A' and 'B' schedule properties bequeathed in favour of the second defendant under Ex.P6 registered Will dated 22/7/2013. The oral and documentary evidence available on record discloses that the title of the plaintiff to the suit schedule properties in which the defendants 2 and 4 were in possession is denied and plaintiff has been excluded from possession of the said properties. Hence, 48 O.S. 9379/2015 plaintiff is required to value the suit under Section 35(1) of the Karnataka Court Fee and Suits Valuation Act, 1958 and required to pay the court fee on the market value of his share. Since the plaintiff has not valued the suit under Section 35(1) of Karnataka Court Fees and Suits Valuation Act, 1958 and not paid the court fee on market value of his share, the contention of the defendants that suit of the plaintiff is not properly valued for the purpose of payemnt of court fee has to be accepted. With these observations, I answer issue no.7 in the negative.
40. ISSUE NO.8: Since plaintiff has failed to prove that the suit schedule properties are ancestral joint family properties and co-parcenery properties belonging to him and the defendants, and failed to prove that the registered sale deed dated 31/3/2005 and registered gift deed dated 24/5/2010 and registered Will dated 22/07/2013 executed by his father N.B.Ramaswamy is not binding on him and his share of the suit schedule properties is not entitle for partition and separate possession of the suit schedule properties sought for by him in the present suit. With these observations, I answer issue no.8 in the negative.
41. ISSUE NO.9: In view of my finding on 49 O.S. 9379/2015 issues 1 to 8 and the reasons assigned thereon, I proceed to pass the following:
Suit of the plaintiff is dismissed. d
Parties are directed to bear their
costs.
Draw decree accordingly.
* * *
[Dictated to the Judgment Writer, transcribed by her, Script corrected, signed and then pronounced by me, in the Open Court on this the 19th day of April 2018.] [S.A.Hidayathulla Shariff] LVIII Additional City Civil Judge.
BENGALURU.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 N.R.Murali Krishna
2. List of witnesses examined on behalf of the Defendant/s:
NIL.
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Genealogical tree
Ex.P 2 Certified copy of the registered
settlement deed dated 11/7/1962
Ex.P 3 Cetified copy of registered release
50 O.S. 9379/2015
deed dated 27/6/2003
Ex.P 4 Certified copy of partition deed
dated 8/9/2003
Ex.P 5 Death certificate of
N.B.Ramaswamy
Ex.P 6 Certified copy of registered Will
dated 22/7/2013
Ex.P 7 Certified copy of gift deed dated
24/05/2010
Ex.P 8 Certified copy of registered sale
deed dated 31/3/2005
4. List of the documents marked for the defendant/s:
Ex.D1 Property tax receipt
Ex.D2 Katha extract
Ex.D3 Katha certificate
[S.A.Hidayathulla Shariff]
LVIII Additional City Civil Judge.
BENGALURU.
2/4/2018.
PlaintiffKV
DExparte
For Judgment. ...........
...Judgment pronounced in the
Open Court....
(Vide separate detailed judgment)
Suit of the plaintiff/bank is
decreed against the defendant
with costs for a sum of
Rs.5,20,884/ together with
future interest at the rate of
10.15% per annum + 2% per
annum compounded monthly
from the date of filing of the suit
till the date of realization of the
amount.
Draw decree accordingly.
[S.A.Hidayathulla Shariff]
LVIII Additional City Civil Judge.
BENGALURU.
2 os 93752015.doc