Bangalore District Court
Madappa vs Smt. Savithramma on 19 February, 2020
(C.R.P. 67) Govt. Of Karnataka
TITLE SHEET FOR JUDGEMENTS IN SUITS
Form No.9 (Civil)
Title sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF LVIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY (CCH.NO.59)
Dated, this the 19th day of February, 2020.
PRESENT
Sri.Venkatesh.R.Hulgi, B.Com. LL.B (Spl.),
LI Addl. City Civil & Sessions Judge (CCH-52),
C/c LVIII Addl. City Civil & Sessions Judge (CCH-59),
Bengaluru City.
O.S.NO.7037/2011
PLAINTIFF:- Madappa,
S/o. Late R. Muniswamappa,
Aged about 74 years,
residing at Byrati village,
Bidarahalli Hobli,
Bengaluru East Taluk,
Bengaluru - 562 149.
(By Sri.A.R., Advocate)
VERSUS-
DEFENDANTS:- 1. Smt. Savithramma,
W/o. Late Shamanna,
Aged about 75 years
2. Smt.Vijayalakshmi,
W/o Inder
D/o. Late Shamanna ,
2 O.S.7037/2011
Aged about 42 years
Both are residing at No.97,
Charles Cambell Road,
Cox Town,
Bengaluru.
3. Smt. Rathnamma,
W/o. Late Kempanna,
Aged about 77 years
4. Tyagaraj,
S/o Late Kempanna
Aged about 58 years
5. Pushpavathi,
W/o Late Kempanna
Aged about 58 years
6. Srinivas,
S/o Late Kempanna
Aged about 51 years
7. Smt. Susheelamma,
W/o Late B.M. Subbanna,
Aged about 65 years
8. Ramadevi,
D/o Late B.M. Subbanna,
Aged about 49 years
9. Suresh,
S/o Late B.M. Subbanna,
Aged about 38 years
10. Ramachandraiah,
S/o Late R. Muniswamappa,
Aged about 75 years,
11. Smt. Lalithamma,
W/o Late Somashekar,
Aged about 33 years
3 O.S.7037/2011
12. Vinod Kumar,
S/o Late Somashekar
Aged about 33 years,
13. Vinutha
D/o Late Somashekar,
Aged about 29 years,
14. Shivaram,
S/o Late R. Muniswamappa,
Aged about 62 years
Defendant.No.3 to 14 are
residing at Byrathi village,
Bidarahalli hobli,
Bengaluru East Taluk,
Bengaluru - 562 149.
(D1 and D2 by Sri.S.N, Advocate)
(D3 to D14 are Exparte)
Date of institution of the suit : 28.09.2011
Nature of the suit (suit on pronote, Partition
suit for declaration and possession
suit for injunction, etc) :
Date of the commencement of 09.10.2018
recording of the evidence :
Date on which the Judgment was 19.02.2020
pronounced :
Total duration Year/s Month/s Day/s
08 04 19
4 O.S.7037/2011
JUDGMENT
This is a suit filed by the plaintiff against the defendants seeking for the relief of partition and separate possession of their legitimate share in the suit property.
2. The facts of the case in a nutshell are as under:
That one late R. Muniswamappa is the propositus of family of parties to the suit. He had seven sons and three daughters. The plaintiff is the son of the propositus. Defendants 1 and 2 are the class-1 heirs of late B.M.Shamanna, the elder son of the propositus. Defendants 3 to 6 are the class-1 heirs of late Kempanna, the 2nd son of propositus. Defendants 7 to 9 are the class-1 heirs of B.M.Subbanna, one of the son of propositus. Defendants 11 to 13 are the class-1 heirs of Late Somashekar, one of the son of propositus. Defendant Nos.10 and 14 are the sons of late Muniswamappa, propositus of the family.
According to the plaintiff, the suit schedule property bearing old No.51, New No.33, consisting of a building totally measuring 4815 sq feet situated at Charles Campell Road, Cox Town, Bengaluru is the joint family property of parties to the suit inherited from propositus late Muniswamappa. During his life time late 5 O.S.7037/2011 Muniswamappa had acquired several properties in his name (including the suit schedule property) in and around Byrathi Village in Bengaluru East Taluk. During his life time propositus was enjoying all the joint family properties as the Kartha. He became ill and suffering from various diseases due to his old age. Hence, it had become difficult for him to manage the joint family properties. Consequently, B.M.Shamanna being the elder son of propositus, who ad worldly knowledge had been managing the joint family properties. B.M.Shamanna used to look after the entire financial matters of the family and also the income. Out of the funds of the joint family, he had purchased the suit schedule property through the registered sale deed dated 19.09.1977. Subsequently, the propositus and B.M.Shamanna died. Consequent upon the death of the aforesaid persons, the plaintiff and defendants succeeded to the suit schedule property as the joint family members. They have been in joint possession and enjoyment of the property. The plaintiff has a legitimate share in the suit property by virtue of death of R.Muniswamappa. Thus, being the facts, off late, the defendants started denying the share of the plaintiff in the suit schedule property. Though the parties are having separateness residing in separate properties. However, the suit properties is still kept in joint 6 O.S.7037/2011 possession and enjoyment of the parties to the suit. That on 24.09.2011, defendants 1 and 2 attempted to sell the portion of the suit property to the 3rd parties to deprive the plaintiff from his legitimate share. Hence, having no other option, the plaintiff has filed the present suit seeking the above reliefs.
3. In response to the suit summons, defendants 1 and 2 have appeared through their advocates. Defendant Nos.3 to 12 remained exparte.
4. Defendants 1 and 2 have filed their joint written statement. In their written statement except admitting the relationship between the parties, the defendants have denied the entire case of the plaintiff as false. It is denied as false that the schedule property is the joint family property of family of parties to the suit and it was purchased by B.M.Shamanna out of the joint family income. It is further denied as false that after the death of propositus and B.M.Shamanna, parties to the suit have inherited the suit property jointly and they have been in joint possession and enjoyment of the suit schedule property. It is denied as false that the plaintiffs have a share in the suit schedule property. Therefore, he is not entitled for partition and separate possession. According to 7 O.S.7037/2011 the defendants 1 and 2 B.M.Shamanna had joined as a Police officer in Army Service during the year 1949. Subsequently the Government had absorbed him to the police department and hence he served in the police department for a period of 32 years. Finally he retired from the service in the year 1981 as the Deputy Superintendent of Police. Thus, from 1949 late B.M.Shamanna never stayed in the village along with the parents and his brothers. It is contended that in the year 1977 late Shamanna was working as Deputy Superintend of Police at Davanagere in the then Chitradurga District. He purchased the suit schedule property from his self earnings on 19.09.1977 from its previous owner for a valuable sale consideration. He availed loan from Syndicate bank, Frazer Town Branch, Bengaluru and also collected funds by selling the site belonging to the defendant No.1 to purchase the suit schedule property. He never took any assistance either from his parents or from any of his brothers at any point of time. Thus, the suit property is the self acquisition made by late B.M.Shamanna. It is further contended that late Muniswamappa, the propositus had executed a Will deed on 12.03.1980 in respect of the properties owned by him. He had excluded the suit property from the Will as it was the self acquisition of his son late B.M.Shamanna. Therefore, 8 O.S.7037/2011 B.M.Shamanna was in possession of the suit schedule property as the absolute owner. After his demise, defendants 1 and 2 being the class-1 heirs have inherited the same. Hence, the suit property is the absolute property of defendants 1 and 2 and not the joint family property as contended by the plaintiff. Some reference to the previous litigations in O.S.No.1513/2005 and O.S.No.7037/2011 is made in the written statement to contend that those suits are filed as the counterblast. Hence, the defendants have prayed to dismiss the suit.
5. At the time of arguments, this Court has noticed that despite of filing of written statement by defendants 1 and 2, the Court has not framed any issues and posted the matter for plaintiff's evidence directly issued to inadvertence and oversight. The learned counsel for the parties fairly conceded this fact. They have also admitted that this Court had ample power to frame appropriate issues even at this stage by exercising the power under Order 14 Rule 5 of CPC. It is submitted by both the sides that as the matter in issue and the subject matter of the suit is similar to that of matter in O.S.No.26714/2011 and the matter in issue also is the same. Therefore, if similar issues are framed, they do not lead any further evidence as they have led sufficient evidence touching the matter in 9 O.S.7037/2011 issue. Submission is noted. Therefore, by exercising the powers vested under Order 14 Rule 5 of CPC, this Court has framed the following issues for consideration.
1. Whether the plaintiff proves that the suit schedule property is purchased by deceased R.Muniswamappa out of his self earnings along with other properties as Manager of joint family?
2. Whether the defendant No.1 proves that the suit schedule property is absolute property of her husband B.N.Shamanna?
3. Whether the plaintiff further proves that he is in joint possession of the suit schedule property as coparceners, after the death of R.Muniswamappa and B.N.Shamanna?
4. Whether the plaintiff further proves that the defendant No.1 and 2 on 24.09.2011 attempted to sell portion of suit schedule property to 3rd party and refused to give up the share of the plaintiffs?
5. Whether the Court fee paid is sufficient?
6. What order or decree?
6. To prove the case, the plaintiff examined his son B.M.Ashok, who is the GPA holder of the plaintiff as PW-1 and produced Ex.P.1 to Ex.P.3 documents.
10 O.S.7037/2011
7. After the evidence is closed, I heard the arguments of the learned counsel for the plaintiff. No representation for defendants 1 and 2. Hence, the arguments of defendants 1 and 2 are taken as nil and 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.
Issue No.3 - In the Negative Issue No.4 - In the Negative Issue No.5 - In the Affirmative Issue No.6 - As per final order for the following:-
REASONS
9. ISSUE NOS.1 TO 5:- As, these issues are inter connected to each other, hence, they have been taken together for common discussion to avoid repetition of facts and evidence on record.
10. As mentioned above, the present suit is filed by the plaintiff for the relief of partition and separate possession of his 11 O.S.7037/2011 legitimate share in the suit schedule property as the class-1 heir and one of the son of propositus Muniswamappa.
11. According to the plaintiff, the suit schedule property was acquired by late B.M.Shamanna, the husband of defendant No.1 and father of defendant No.2 from the joint family funds. Therefore, the suit schedule property is the joint family property of the parties to the suit.
12. In the instant case, there is no dispute regarding the relationship intersy between the parties. It is not in dispute that the children of propositus are no more now.
13. The defendants 1 and 2, who are the only contesting defendants have denied the above case of the plaintiff and they have contended that late B.M.Shamanna was working in the police department and he had no any assistance from the joint family nucleus. When he was in service in Davanagere as Deputy Superintend of Police, he purchased the schedule property out of his own funds and also by availing loan from the bank and selling a site in the name of defendant No.1. Hence, it is the case of defendant Nos.1 and 2 that the suit property is the self acquisition made by late B.M.Shamanna. Therefore, none of the plaintiffs and remaining 12 O.S.7037/2011 defendants have any share in the suit schedule property is their case.
14. Initial burden of proving that the suit schedule property is the joint family property is on the plaintiff. It is pertinent to mention that in the plaint, it is contended by the plaintiffs that during the life time of propositus, he was managing the joint family properties as the Kartha and subsequently the management of the joint family property was transferred to B.M.Shamanna, due to the old age of Kartha. Hence, B.M.Shamanna was looking after the entire financial aspects of the family and its income had purchased the suit schedule property from the joint family funds. Hence, according to the plaintiff, the suit schedule property is the joint family property.
15. To prove the above case, the plaintiff examined his son B.M.Ashok, who is the GPA holder of the plaintiff as P.W.1. P.W.1 has filed his affidavit evidence in lieu of chief examination, which is nothing but reiteration of plaint averments. He has produced only three documents, which are marked at Ex.P.1 to Ex.P.3.
16. Ex.P.1 is the GPA in favour of B.M.Ashok executed by plaintiff, Ex.P.2 is the family Genealogical tree issued by Village Accountant, Doddagubbi Circle , Bidarahalli Hobli, Bengaluru East 13 O.S.7037/2011 Taluk and Ex.P.3 is the certified copy of the sale deed dated 19.09.1977 pertaining to the suit schedule property. Except these three documents, the plaintiff has not produced any documents to show that the suit schedule property was purchased from the joint family funds in the name of B.M.Shamanna. No documents are produced to show that apart from the suit property, the family of the plaintiff possessed other properties yielding sufficient income to purchase the suit schedule property. Thereafter, P.W.1 did not appear before the court to complete the evidence despite umpteen numbers of adjournments. Hence, the evidence of P.W.1 is not a complete evidence in the eye of law. Therefore, it cannot be accepted in proof of the allegations made in the plaint. Hence, non examination of the defendants is not helpful to the case of the plaintiff to prove his case. Thus, the plaintiff has failed to prove issue Nos.1 to 4. Accordingly, I answer issue Nos.1, 3 and 4 in the "negative" and issue No.2 in the "Affirmative".
17. ISSUE NO.5: This issue pertains to the payment of Court fee. Admittedly, the suit is one for partition and separate possession on the premises that the parties have been in joint possession of the suit schedule property as the legal heirs. Accordingly, the plaintiff has paid the Court fee as required under 14 O.S.7037/2011 section 35(2) of the Karnataka Court Fee and Suit Valuation Act. In my opinion, the payment of Court fee is proper and sufficient under the facts and circumstances of the present case. Hence, I answer issue No.5 in the "Affirmative".
18. ISSUE No.6: In view of my findings on issue Nos.1 to 5, in my opinion the plaintiff is not entitled for any reliefs Hence, in the result, I proceed to pass the following:-
ORDER The suit of the plaintiff is dismissed.
Under the facts and circumstances, there is no order as to costs.
Draw Decree Accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 19th day of February 2020) (VENKATESH.R.HULGI) C/C LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.15 O.S.7037/2011
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFFS:-
P.W.1 B.M. Ashok LIST OF DOCUMENTS MARKED FOR PLAINTIFFS:-
Ex.P.1 Power of Attorney Ex.P.2 Family Tree Ex.P.3 Copy of Katha certificate
LIST OF WITNESSES EXAMINED FOR DEFENDANTS:
NIL LIST OF DOCUMENTS MARKED FOR DEFENDANTS:-
NIL (VENKATESH.R.HULGI) C/C of LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.16 O.S.7037/2011
Judgment pronounced in open Court vide separate judgment.
ORDER (VENKATESH.R.HULGI) C/C of LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.