Karnataka High Court
Parvathamma W/O Late Y R ... vs Roopa Kumari D/O Late Y R ... on 4 July, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4th DAY OF JULY, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A. NO.1335/2009 C/w RFA Crob.3/2010
RFA NO. 1335/2009
BETWEEN:
1. SMT. PARVATHAMMA
W/O LATE Y.R. SHANTHAVEERAPPA
AGED ABOUT 66 YEARS
2. SMT. DEVARATHNA
D/O LATE Y.R. SHANTHAVEERAPPA
AGED ABOUT 30 YEARS
3. MRS. RASHMI
D/O LATE Y.R. SHANTHAVEERAPPA
AGED ABOUT 29 YEARS
4. SRI. RAKESH
S/O LATE Y.R. SHANTHAVEERAPPA
AGED ABOUT 27 YEARS
APPELLANTS 1 TO 4 ARE
RESIDING AT NO.15,
KALAPPA BLOCK
BASAVANGUDI
BANGALORE-04. ... APPELLANTS
(BY SRI T. SESHAGIRI RAO, ADV.)
AND:
1. SMT. ROOPA KUMARI
D/O LATE Y.R.SHANTHAVEERAPPA
2
AGED ABOUT 55 YEARS
R/O NO.32,
CHUNCHANAKOPPA GARDEN
2ND MAIN ROAD
MATADAHALLI, BANGALORE-32
2. SRI.Y.S. NAGARAJA
S/O LATE Y.R.SHANTHAVEERAPPA
AGE MAJOR
SINCE DECEASED BY LR'S
2(A) SMT. HYMAVATHI
W/O Y.S. NAGARAJ
AGED ABOUT 67 YEARS
2(B) SRI. Y.N. VIDYANANDA
S/O Y.S. NAGARAJ
AGED ABOUT 50 YEARS
RESPONDENT NOS 2(A) & (B)
ARE R/AT NO.32
5TH 'A' CROSS
SARAKKI MAIN ROAD
JP NAGAR I PHASE
J.P.NAGAR POST
BANGALORE-560 078. ... RESPONDENTS
(BY SRI SHYAM KOUNDINYA, ADVOCATE FOR R-1;
NOTICE TO R2(A) & (B) ARE DISMISSED V.O. DTD.
04.07.2014)
THIS APPEAL IS FILED UNDER ORDER 41 RULE 1
R/W SECTION 96 OF CPC PRAYING AGAINST THE
JUDGMENT AND DECREE DATED 31.10.2009 PASSED IN
O.S.NO.2333/1997 ON THE FILE OF THE XIX ADDL. CITY
CIVIL & SESSIONS JUDGE, BANGALORE PARTLY
DECREEING THE SUIT FOR REGARDING 'A' SCHEDULE
PROPERTY TO PLAINTIFF NO.2 IS ENTITLED FOR 2/6TH
THE SHARE AND DEFENDANTS 2 TO 4 ARE ENTITLED
3/6TH SHARE IN THE SUIT SCHEDULE PROPERTY AND
THE SUIT FOR PARTITION SEPARATE POSSESSION
PERMANENT INJUNCTION & MESNE PROFIT.
3
RFA CROB No. 3/2010
BETWEEN:
1. SMT. SOUBHAGYAMMA
W/O LATE SRI. SHANTHAVEERAPPA
MAJOR (NOW DECEASED)
2. SMT. ROOPA KUMARI
AGED ABOUT 55 YEARS
EARLIER RESIDENT OF NO.32,
CHUNCHANAKOPPA GARDEN
2ND MAIN ROAD
MATADAHALLI, BANGALORE-32
PRESENTLY RESIDING AT
SINCE APPELLANT NO.1 IS DECEASED
APPELLANT NO.2 IS REPRESENTING
AS SOLE AND SURVIVING LEGAL HEIR
... CROSS OBJECTORS
(BY SRI. SHYAM KOUNDINYA A.S. ADVOCATE)
AND:
1. SMT. PARVATHAMMA
W/O NOT KNOWN
AGE: MAJOR
OCC: HOUSE HOLD
2. SMT. DEVARATHNA
D/O SMT. PARAVATHAMMA
AGE MAJOR
3. MRS. RASHMI
D/O SMT. PARAVATHAMMA
AGE MAJOR
4. SRI. RAKESH
S/O SMT. PARAVATHAMMA
AGE MAJOR
4
DEFENDANTS 3 & 4 ARE MINORS
REPRESENTED BY MOTHER AND
NATURAL GUARDIAN DEFENDANT NO.1
5. SRI.Y.S. NAGARAJA
S/O SHANTHAVEERAPPA
AGE MAJOR
SINCE DECEASED BY LR'S
5(A) SMT. HYMAVATHI
W/O Y.S. NAGARAJ
AGED ABOUT 67 YEARS
5(B) SRI. Y.N. VIDYANANDA
S/O Y.S. NAGARAJ
AGED ABOUT 50 YEARS
BOTH ARE R/AT NO.32
5TH 'A' CROSS
SARAKKI MAIN ROAD
JP NAGAR I PHASE
J.P.NAGAR POST
BANGALORE-560 078. ... RESPONDENTS
(BY SRI. T. SESHAGIRI RAO, ADVOCATE FOR R-1 TO R-4;
NOTICE TO R-5(A) & (B) ARE DISMISSED V.O.DTD.
4.7.2014)
R.F.A.CROB IS FILED IN RFA NO.1335/2009 FILED
UNDER ORDER 41, RULE-26 OF C.P.C. PRAYING AGAINST
THE JUDGMENT & DECREE DATED 31.10.2009 PASSED
IN O.S.NO.2333/1997 ON THE FILE OF THE XIX ADDL.
CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY,
PARTLY DECREEING THE SUIT FOR PARTITION.
THIS APPEAL AND R.F.A.CROB ARE COMING ON FOR
ORDERS THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
5
JUDGMENT
Defendants 1 to 4 have filed this appeal challenging the judgment and decree passed by 11th Addl.City Civil and Sessions Judge, Bangalore dated 31.12.2009 in O.S.No.2333/1997 whereunder plaintiffs suit for partition and separate possession has been decreed.
2. This matter was argued for some time. However, this Court was of the considered view that matter could be amicably settled since dispute is between members of family.
Hence, learned Advocates as suggested by this Court explored possibility of arriving at a settlement and ultimately, at the intervention of Senior Mediator Smt.S Susheela, parties have been persuaded by her to arrive at a settlement and accordingly, they have settled their disputes and have reported the same by filing a compromise petition under Order 23 Rule 3 CPC whereunder it is agreed between the parties as under:
(a) As per the judgment and decree passed by the trial Court in O.S.No.2333/1997, the Respondent No.1 i.e., the plaintiff No.2 at the trial Court is entitled to 2/5th share in the 'A' schedule property i.e., House property bearing Nos.14 & 15 situated at Kalappa Block, Basavanagudi, Bangalore, 6 similarly the trial Court has held that the Appellant Nos. 2 to 4 together are entitled to 3/5th share in the suit schedule property. The appellants and the Respondent No.1 hereby give up their respective challenge to the said judgment.
(b) The appellant Nos. 2 and 3 by virtue of settlement have agreed to receive each a sum of Rs.1,00,00,000/- (Rupees One Crore only) from Appellant No.4 to give up their respective share in the schedule property in favour of the Appellant No.4, for which the appellant No.4 has agreed to pay a sum of Rs.1,00,00,000/- (Rupees One Crore only) each to Appellant Nos. 2 and 3 in full and final settlement of their share in 'A' schedule property.
(c) The Respondent No.1 has agreed to relinquish or forego her 2/5th share in 'A' schedule property as allotted to her by virtue of judgment and decree passed in O.S.No.2233/1997 in favour of Appellant No.4 upon receiving a sum of Rs. 2,03,00,000/- (Rupees Two Crores and Three Lakhs only) in full and final settlement of her claim, for which the Appellant No.4 has agreed.
(d) On this day, the Appellant No.4 has paid a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) each to Appellant Nos.2 and 3 by way of cash and he undertakes to pay the balance amount of Rs.97,50,000/- (Rupees Ninety Seven Lakhs Fifty Thousand only) to each of the Appellant Nos. 2 and 3 on or before the end of February 2015 for which the Appellant Nos. 2 and 3 have agreed.7
(e) On this day, the appellant No.4 has paid a sum of Rs.23,00,000/- (Rupees Twenty Three Lakhs only) as part payment of the agreed amount to the respondent no.1 in the following manner:
(i) Rs. 10,00,000/- (Rupees Ten Lakhs only) by way of cash; and
(ii) Rs. 13,00,000/- (Rupees Thirteen Lakhs only) by way of Demand Draft.
The material particulars of the Demand Draft are as hereunder:
Demand Draft bearing No.304508 dated
03.07.2014 for a sum of Rs.13,00,000/- (Rupees Thirteen Lakhs only) drawn on Canara Bank, ISRO layout Branch, Bangalore, in favour of respondent No.1 namely Smt. Roopa Kumari.
(f) The Appellant No.4 has agreed to pay the balance amount of Rs.1,80,00,000/- (Rs. One Crore Eighty Lakhs only) to the respondent No.1 on or before 4th January 2015, for which the respondent No.1 has agreed subject to the condition that in the event of the balance amount as above not being paid in time the advance amount shall be forfeited and the respondent No.1 shall continue the final decree proceedings to its logical conclusion and take her share in the schedule properties as per the decree in O.S.No.2633/1997.
(g) By virtue of this settlement, the entire plaint 'A' schedule properties shall be the property of the appellant No.4 the appellant Nos. 2 and 3 and the respondent 8 No.1 by agreeing to receiving amount stated supra, have agreed to give up their respective share in the schedule property as declared by the trial Court in favour of appellant No.4 subject to payment of the full payments as undertaken herein and then the appellant No.4 shall become the sole and absolute owner in exclusive possession of the entire 'A' schedule property i.e., subject to paying the balance full amount to appellant Nos. 2 and 3 and respondent No.1 as agreed under this compromise.
Smt. Sowbhagyamma the original plaintiff No.1 has begotten a son and daughter through her husband namely Sri. Shanthaveerappa, they are namely Sri. Y.S. Nagaraj and Smt. Roopa Kumari respectively. Sri. Y.S. Nagaraj for himself and his son Vidyananda as he converted into a Christian went out of the family by executing a Registered Release Deed dated 06.01.1961 marked as Exhibit D.1 in favour of Sri. Shanthaveerappa upon accepting a sum of Rs.3,000/-. A suit in O.S.No.974/1981 was filed for partition earlier by an order dated 05.01.2000 same has been dismissed in view of the above confirming that Nagaraj had no right or share. The same has become final.
Sri. Shanthaveerappa died on 13.02.1995, thereafter the first wife Smt.Sowbhagyamma and her daughter Smt. Roopa Kumari have filed the present suit claiming share in the property. Smt. Sowbhagyamma on 23.06.1995 executed a registered Will bequeathing her share in the plaint 'A' schedule property in favour of respondent No.1 herein, during the pendency of the suit she passed away 9 on 28.05.2009. The said Will has been marked as Ex.P.18. The trial Judge taking note of the release deed dated 06.11.1961 and registered Will dated 23.06.1995 by Smt. Sowbhagyamma has concluded that the respondent No.1 herein is entitled to 2/5th share in the 'A' schedule property. The appellant No.4 taking note of the said fact into consideration has agreed to settle her claim by paying a sum of Rs.2,03,00,000/- (Rupees Two Crores & Three Lakhs only).
(h) It is stated that, the Respondent No.1 herein and her mother have filed the present suit i.e., O.S.No.2333/1997 before the trial Court for partition and separate possession in respect of the plaint schedule property. In the plaint presented by them, they have made Sri.Y.S. Nagaraj as defendant No.5. During the pendency of the suit Sri. Y.S.Nagaraj passed away, the respondent No.1 and her mother have brought the legal heirs of Y.S.Nagaraj on record as defendant Nos. 5(A) and 5(B). The trial Court while passing the judgment and decree, taking note of the release deed dated 06.01.1961 executed by Sri. Y.S.Nagaraj in favour of Sri. Y.R.Shanthaveerappa and also the Will executed by Smt. Sowbhagyamma dated 23.06.1995 in favour of respondent No.1 did not allot any share in favour of the legal heirs of Sri. Y.S.Nagaraj i.e., respondent Nos. 2(A) & 2(B) and allotted 2/5th share in favour of the respondent No.1 herein. The respondent no.1 herein indemnifies the appellant No.4 that in case, if the LRs of Sri. Y.S.Nagaraj make any claim in future, then in such circumstances, the respondent No.1 undertakes to settle their claim.
10(i) In case, the appellant No.4 needs any documentation such as Release Deed or otherwise relating to the suit property, the appellant Nos. 2 and 3 and respondent No.1 undertake to execute such documents in favour of appellant No.4.
(j) The appellant No.1 in the present appeal has laid a claim of life interest on the basis of the Will dated 15.06.1988 executed by her husband Sri. Shantaveerappa in her favour, in view of the settlement among appellant Nos. 2 to 4 and respondent No.1 she withdraws her claim by accepting the judgment of the trial Court. One of the reasons as to why she has agreed to withdraw her claim is, the appellant No.4 has assured the appellant No.1 stating that he would take care of her during her lifetime i.e., agreed to maintain her by providing food, clothing, shelter and medicine, which does not mean that the appellant Nos.2 and 3 herein will not take care of their mother.
(k) The respondent No.1 has filed cross-
objection i.e., Cross Objection No.3/2010, in view of the settlement arrived at by the parties, the same also be ordered to be disposed of in terms of this compromise."
3. Parties namely, appellants 1 to 4 and first respondent are present before Court. They admit due execution of compromise petition. First appellant states that contents of compromise petition has been read over and 11 explained to her in Kannada language by appellants 2 to 4 and also by her learned advocate and only after satisfying herself about contents of the compromise petition, she has affixed her signature Appellants 2 to 4 also state that after having understood contents of compromise petition, they have affixed their signatures to the compromise petition.
So also, first respondent who is present before Court. She admits execution and submits that after having understood contents of the compromise petition, she has affixed her signature. Both the parties in chorus submit that they have affixed their signatures voluntarily and out of their own free will, volition and without any force, threat or coercion.
Learned Advocates appearing for the parties, in token of having identified them, have also affixed their signatures to the compromise petition.
4. Appellant Nos.2 & 3 and also first respondent acknowledge the receipt of amounts paid by fourth appellant as indicated in the compromise petition filed today. In that view of the matter, I do not find any impediment to accept the compromise petition. Hence, compromise petition is hereby accepted.
125. Accordingly, in terms of compromise petition, appeal and cross objections stands disposed of. Judgment and decree passed by XIX Addl.City Civil & Sessions Judge, Bangalore in O.S.No.2333/1997 dated 31.10.2009 shall stand substituted in terms set out in the compromise petition.
No order as to costs.
Registry is directed to send a copy of this order to Bangalore Mediation Centre, Nyaya Degula, Bangalore for statistical purposes.
Sd/-
JUDGE *sp