Karnataka High Court
Sheela N Vasudev vs Leela Narasinga Rao D/O Late K N Prahlada ... on 28 March, 2013
Bench: D.V.Shylendra Kumar, B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF MARCH 2013
PRESENT
THE HON'BLE MR.JUSTICE D.V.SHYLENDRA KUMAR
AND
THE HON'BLE MR.JUSTICE B.MANOHAR
RFA.NO.983/2005 (PAR)
BETWEEN:
1. SMT.SHEELA N.VASUDEV,
W/O.LATE K.P.VASUDEV,
AGED ABOUT 49 YEARS,
RESIDING AT NO.5,
DOWNIE PLACE AUSTIN,
(TEXAS), USA 78746,
REP BY HER POWER OF ATTORNEY HOLDER
SRI.N.KRISHNA,
S/O.LATE SRI.K.N.MURTHY,
AGED ABOUT 48 YEARS,
NO.17, S.B.ROAD CROSS,
V.V.PURAM,
BANGALORE - 560 004.
2. ALOK VASUDEV,
S/O.LATE K.P.VASUDEV,
AGED ABOUT 19 YEARS,
3. AMIT VASUDEV,
S/O.LATE K.P.VASUDEV,
AGED ABOUT 18 YEARS,
BOTH ARE REISING ALONG WITH
THE MOTHER APPELLANT NO.1
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NO.5, DOWNIE PLACE AUSTIN, (TEXAS)
U.S.A.78746, REP BY G.P.A.HOLDER
SRI.N.KRISHNA,
S/O.LATE K.N.MURTHY,
AGED ABOUT 48 YEARS,
NO.17, S.B.ROAD CROSS,
V.V.PURAM,
BANGALORE-04. ...APPELLANTS
(BY SRI.B.C.SEETHARAMA RAO, ADV)
AND:
1. SMT.LEELA NARASINGA RAO,
W/O.Y.S.NARASINGA RAO,
D/O.LATE K.N.PRAHLADA RAO,
AGED ABOUT 61 YEARS,
R/AT NO.1746/105,
EAST END ROAD, IX BLOCK,
JAYANAGAR,
BANGALORE - 560 009.
2. SMT.VATSALA VITTAL,
W/O.M.S.VITTAL,
D/O.LATE K.N.PRAHLADA RAO,
AGED ABOUT 63 YEARS,
R/AT NO.601, 11TH CROSS,
J.P.NAGAR, III PHASE,
BANGALORE - 560 078. ...RESPONDENTS
(BY SRI.G.L.VISHWANATH, ADV FOR R1,
SRI.C.N.RAMASWAMY SASTRY, ADV FOR R2 - ABSENT,
SRI.SHYAM SUNDAR.H.V, ADV FOR R2 - ABSENT)
RFA FILED U/O 41 RULE 1 R/W. SEC.96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED
22.03.2005 PASSED IN O.S.NO.2814/96 ON THE FILE OF
THE XVIII ADDL.CITY CIVIL JUDGE, BANGALORE,
CCH.NO.32, PARTLY DECREEING THE SUIT FOR
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PARTITION AND SEPARATE POSSESSION AND ALSO FOR
PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, B.MANOHAR.J., DELIVERED THE
FOLLOWING: -
JUDGMENT
The appellants are defendants 1(a) to 1(c) in the suit filed by the first respondent herein being aggrieved by the judgment and decree dated 22-03-2005 made in O.S.No.2814/1996 passed by the 18th Additional City Civil Judge, Bangalore preferred this appeal.
2. The first respondent herein filed a suit seeking for partition and separate possession of 1/3 share in the suit schedule property and also for permanent injunction restraining the first defendant from alienating the 'A' schedule property by way of mortgage or sale. In the plaint, the plaintiff has contended that the deceased first defendant K.P.Vasudeva Rao, Smt.Vatsala Vittal and the plaintiff are the children of 4 K.N.Prahalad Rao and Vimala Bai. The plaint 'A' schedule property was originally allotted by the Bangalore Development Authority ('BDA' for brevity) in favour of Vimala Bai as per the allotment letter dated 16-8-1962. Thereafter, Vimala Bai constructed a residential house and also an out house on the 'A' schedule property. In the year 1981, the BDA executed a sale deed in favour of Vimala Bai. 'B' schedule property is the moveable property acquired by Prahlad Rao. Vimala Bai died intestate on 27-12-1986. On the death of Vimala Bai, the katha in respect of 'A' schedule property was changed in the name of Prahlad Rao as 'Yajamana' of the joint family. Subsequently, Prahlad Rao, the father of plaintiff and defendants died intestate on 30-03-1995. On the death of the parents, the suit schedule properties devolved on the plaintiff and defendants 1 and 2 in equal 1/3 share, as they are the only legal heirs of the deceased. The first defendant is 5 residing at USA for the last 29 years. The plaintiff requested the first defendant to partition the suit schedule properties. Though the first defendant agreed for partition, however, postponed the same. However, in the month of June 1995 during his visit to India, the first defendant assured that he will partition the suit schedule properties. However, the first defendant made arrangements for alienating the suit 'A' schedule property to deprive the property right to the plaintiff and the second defendant. In view of that, the plaintiff filed a suit seeking for the above reliefs.
3. In pursuance to the notice, the defendants entered appearance. The second defendant filed written statement supporting the claim made by the plaintiff and sought for partition and separate possession of her 1/3 share in the suit schedule property. She also contended that 'A' schedule property was allotted in favour of her mother Vimala Bai and she had 6 constructed the house, thereafter, the BDA executed a sale deed on 13-02-1981 in her favour. Hence the plaintiff is entitled to her share in both the suit schedule properties.
4. The first defendant filed the written statement denying the entire averments made in the plaint and also contended that suit filed by the plaintiff is not maintainable in law, the plaintiff has suppressed material information. She is guilty of supprecio veri and suggestion falsie. He also contended that the 'A' schedule property allotted by the BDA in favour of Vimala Bai, mother of the plaintiff and defendants, but the father Prahlad Rao funded for purchase of the said site and he had put up construction on the said site out of his own fund. He further contended that during her lifetime, Vimala Bai had executed a Will dated 2-3-1986 bequeathing her property in favour of Prahlad Rao and the first defendant since the first defendant is the only 7 son of Vimala Bai and Prahlad Rao. Subsequently, Prahlad Rao executed a Will dated 24-1-1993 bequeathing plaint 'A' schedule property in favour of the first defendant. Further in the said Will he had appointed husband of the second defendant as an Executor. Hence, the plaintiff, defendant No.2 and their spouses were aware of all these facts. Further, in the meeting held on 14-6-1995 for implementation of the Will executed by Prahlad Rao and Vimala Bai, the minutes has been drawn. In spite of the same, the plaintiff in collusion with the second defendant, in order to make unlawful gain has filed this suit. The plaintiff is estopped from claiming any share in the plaint 'A' schedule property and sought for dismissal of the suit.
5. The plaintiff filed rejoinder to the written statement and disputed the execution of the Will by Vimala Bai and also Prahlad Rao in favour of the first defendant. She also contended that, Prahlad Rao has 8 no power to execute the Will in respect of the 'A' schedule property since he is not the owner of the said property. The will said to have executed by Vimala Bai as well as Prahlad Rao is a fabricated document in order to deny the property right of the plaintiff. She also denied holding of meeting on 14-6-1995.
6. On the basis of the pleading of the parties, the Trial Court framed the following issues:
(i) Whether the plaintiff proves that the suit schedule 'A' property is the self-acquired property of her mother late Smt.Vimala Bai?
(ii) Whether the defendant No.1 proves that 'A' schedule property was purchased by Prahalad Rao in the name of his wife Vimala Bai?
(iii) Whether the defendant No.1 proves the
Will dated 2-3-1986 whereby
Smt.Vimala Bai bequeathed 'A'
schedule property in favour of her
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husband Prahalad Rao and the
defendant No.1?
(iv) Whether the plaintiff proves that 'B'
schedule properties are self-acquired properties of her father Prahalad Rao?
(v) Whether the plaintiff proves that by Will
dated 24-1-1993 Prahalad Rao
bequeathed 'A' schedule property to
defendant No.1 exclusively?
(vi) Whether the plaintiff proves that she is
entitled to get 1/3 share in 'A' and 'B'
schedule properties and separate
possession of the same?
(vii) What reliefs the parties are entitled to?
7. The plaintiff in order to prove her case, examined herself as P.W.1 and got marked the documents as Ex.P1 to Ex.P9. On behalf of the first defendant, his Power of Attorney Holder N.Kirshna was examined as D.W.1 and also examined two other witnesses in support of their claim as D.W.2 and D.W.3 and the husband of the second defendant was examined as 10 D.W.4 and got marked the documents as Ex.D1 to Ex.D20.
8. The Trial Court on appreciating the oral and documentary evidence let in by the parties held issue Nos.1, 4, 5 in the affirmative; issue No.6 in partly affirmative and issue No.2 and 3 in the negative. Consequently by its judgment and decree dated 22-03-2005 partly decreed the suit and declared that the plaintiff and the second defendant are entitled for 1/4th share in the plaint 'A' schedule property and 2/5th share each, in respect of 'B' schedule properties and restrained the first defendant from alienating the 'A' schedule property till the partition is effected by metes and bounds.
9. During the pendency of the suit, the first defendant died in the month of April 2000. His wife and 11 children were brought on record as defendants 1(a) to 1(c). The legal representatives of first defendant being aggrieved by the judgment and decree passed by the Trial Court have preferred this appeal.
10. Sri.B.C.Seetharama Rao, learned counsel appearing for the appellants contended that the judgment and decree passed by the Trial Court is contrary to law and evidence on record. The reasoning assigned by the Trial Court to disbelieve the Will dated 2-3-1986 executed by Vimala Bai and decreeing the suit is contrary to the facts and evidence on record. The Trial Court misunderstood and misread the relevant documents and evidence on record. The husband of first appellant-K.P.Vasudeva being the only son, his mother bequeathed the house property in his favour as well as her husband. Prahlad Rao, who is the father of the first defendant also bequeathed his share of the 12 property in favour of K.P.Vasudev. In view of that, Vasudev became the absolute owner of plaint 'A' schedule property. The plaintiff and the second defendant absolutely have no right in respect of the suit 'A' schedule property and the entire approach made by the Trial Court is contrary to law. Further, even though the original Will dated 2-3-1986 executed by Smt.Vimala Bai is not produced before the Court, the Xerox copy was produced. In order to prove the said Will, D.W.2 was examined who is one of the attesting witnesses. In the absence of the original Will, the Xerox copy of the Will ought to have been taken as secondary evidence under Section 65 of the Indian Evidence Act. Further, though the 'A' schedule property was purchased by Prahlad Rao in the name of his wife, there is no bar under Section 4(3) of Benami Transactions Act to purchase the property in the name of his wife. The approach of the Trial Court in respect of these aspects 13 of the matter is erroneous in law. Accordingly, sought for allowing the appeal by setting aside the judgment and decree passed by the Trial Court.
11. Sri.G.L.Viswanath, learned counsel appearing for the first respondent argued in support of the judgment and decree passed by the Trial Court contending that erstwhile CITB allotted a site in favour of Vimala Bai in the year 1962. In the year 1980, she had constructed a house after availing loan from the Bank. On 13-2-1981, the BDA executed a sale deed in favour of Vimala Bai. No document has been produced before the court to show that Prahalad Rao had financed for purchase of the said site and also for construction of the ground and first floors and an out house. Further, the alleged Will dated 2-3-1986 said to have been executed by Vimala Bai is not produced before the Court. The evidence on record clearly discloses that the beneficiary of the Will 14 executed by Vimala Bai is the scribe of the said Will and execution of the Will is not proved in accordance with law. Prahlad Rao has no power to execute the Will and bequeath the house property in favour of K.P.Vasudev. At the most, Prahlad Rao can bequeath his share of the property in favour of his son and he has no right to bequeath the property belonging to Vimala Bai. He relied upon the judgment reported in AIR 1965 SC 354 (RAMACHANDRA RAN BUX v/s CHAMPA BAI AND OTHERS) There is no infirmity or irregularity in the judgment and decree passed by the Trial Court and sought for dismissal of the appeal.
12. Having heard the learned counsel appearing for the parties, the only point that arise for consideration I this appeal is Whether the appellants have made out a case to interfere with the finding 15 recorded by the Trial Court on the issues framed by it.?
13. The records clearly disclose that K.P.Vasudev, Leela Rao and Vatsala are the Children of Prahlad Rao and Vimala Bai. The erstwhile CITB allotted 'A' schedule property in favour of Vimala Bai. Vimala Bai constructed a house on the said site after availing loan from the Bank. Thereafter, the BDA executed a registered sale deed on 13-2-1981 in favour of Vimala Bai. Vimala Bai died on 27-12-1986. Thereafter, Prahlad Rao died on 30-03-1995. The plaintiffs claim that the father and mother died intestate. They also claim 1/3 share in respect of the moveable and immovable properties. The case pleaded by the plaintiff is that inspite of repeated requests, her share has not been given and steps are being taken to alienate suit 'A' schedule property. The second defendant supported the case of the plaintiff and claimed 1/3 share in the suit 16 schedule properties. The first defendant filed written statement and set up the Will dated 2-3-1986 executed by Vimala Bai and also Will dated 24-1-1993 executed by Prahalad Rao bequeathing the suit 'A' schedule property in his favour and contended that the plaintiff as well as the second defendant have no right in respect of 'A' schedule property, however they are entitled for share of 40% each in 'B' schedule property. He has contended that Vimala Bai executed the Will bequeathing her property in favour of her husband and the first defendant. Pursuant to the said Will, mutation entry in respect of 'A' schedule property was transferred in the name of Prahlad Rao. During the lifetime of Prahlad Rao, he has bequeathed the said property in favour of the first defendant as per the Will dated 24-1-1993 and he died on 30-3-1995. After the death of Prahalad Rao, the first defendant claimed that he is the absolute owner of the suit schedule property. However, 17 the plaintiff as well as the second defendant have disputed the claim made by the first defendant contending that Vimala Bai has not executed any Will and Prahlad Rao has no right to bequeath the property of Vimala Bai in favour of the first defendant.
14. The plaintiff in her evidence reiterated the plaint averments and got marked the documents as Ex.P1 to Ex.P7. In the cross-examination, she has admitted that Vimala Bai was house-wife and she does not know who had constructed the residential house on 'A' schedule property and her father was working in TATA Iron and Steel Company. The 'A' schedule property was allotted to Vimala Bai and BDA executed the sale deed in her name in the year 1981 and she is the absolute owner of the suit schedule property. The said property was mortgaged to the Canara Bank. The mother has not executed any Will bequeathing 'A' schedule property in 18 favour of her husband as well as the first defendant. She also disputed the Will dated 24-1-1993 executed by Prahlad Rao in favour of the first defendant.
15. The Power of Attorney Holder of the first defendant got examined himself as D.W.1 and reiterated the averments made in the written statement. He got marked the documents as Ex.D1 to Ex.D20. In the cross-examination, he has admitted that the first defendant executed the power of attorney only in the year 1996. He does not have personal knowledge regarding the family transactions of the plaintiff as well as the defendants. He also admitted that Prahlad Rao never exercised his ownership rights over 'A' schedule property during his lifetime. He does not know who has constructed the residential house on 'A' schedule property. The Will dated 2-3-1986 executed by Vimala Bai is not a registered Will and he does not know 19 whether it was written on the white paper or on the stamp paper and also deposed that he does not know as to who has written the Will of Vimala Bai. The husband of the second defendant was appointed as an Executor of the Will dated 24-1-1993 executed by Prahlad Rao. The original Wills are with the husband of the second defendant. In view of that, Xerox copies of the Wills have been produced before the court.
16. D.W.2 has been examined in order to prove the Will dated 2-3-1986. In his evidence he deposed that he is one of the attestor of the Will and another attestor has died and he was close relative of Prahalad Rao. In the cross-examination he has admitted that the alleged Will dated 2-3-1986 was prepared by Prahlad Rao and he was requested to sign the said Will as an attesting witness. He does not know whether the said Will was 20 prepared on the instructions of Vimala Bai and Prahalad Rao is closely related to him.
17. D.W.3 is the advocate who has prepared the Will dated 24-1-1993 executed by Prahalad Rao bequeathing the 'A' schedule property in favour of the first defendant. In his evidence he has deposed that on the basis of the slip give by Prahalad Rao, he has prepared the Will. He has not examined whether Prahalad Rao is the owner of the suit schedule property or not. He has not produced the Will dated 2-3-1986 executed by Vimala Bai bequeathing 'A' suit schedule property in favour of her husband as well as the first defendant. On his instructions he has prepared the Will.
18. D.W.4 who is the husband of the second defendant and who was appointed as an Executor of the Will dated 24-1-1993 deposed that since the Will 21 executed by Prahalad Rao could not be executed by amicable settlement, he informed the parties that he could not act as an Executor of the Will and returned all the papers to the first defendant. The Will dated 2-3-1986 executed by Vimala Bai was also not seen by him. From the year 1990 to 1995, Prahalad Rao was residing along with him and from the year 1992 he was completely confined to the Wheel Chair. He was suffering from Parkinson. In his evidence he has admitted that he does not know personally whether Prahalad Rao executed any Will and he has not seen Prahalad Rao signing any document nor he has written any letter about execution of the Will. In order to settle the dispute between the parties he has issued notice as per Ex.D3 on 14-6-1995. Since the dispute could not be resolved, he informed the first defendant that he cannot act as an Executor of the Will. The first 22 defendant is the permanent resident of USA and Green Card Holder.
19. The evidence on record clearly discloses that Vimala Bai has not executed any Will bequeathing her property in favour of her husband as well as the first defendant. D.W.2 is the attestor of the Will and is a close relative of Prahalad Rao. He also admitted he has signed some papers given by Prahalad Rao and before they entered the house, the alleged Will had been prepared by Prahalad Rao and Prahalad Rao asked him to sign the same. He does not know the content of said Will what he has signed. Further, the original of the said Will was not placed before the court by either of the parties. The husband of the second defendant in whose house Prahalad Rao spent his last days also does not know about the execution of the Will by Vimala Bai bequeathing the 'A' schedule property in favour of Prahalad Rao and in favour of the first defendant . 23 The D.W.3, advocate who has drafted the Will of Prahalad Rao also deposed in evidence that Will of the Vimala Bai was not made available to him while preparing the Will of Prahalad Rao. He does not know the title of 'A' schedule property and on the instructions of Prahalad Rao he prepared the Will.
20. In the absence of the original will, the first defendant cannot rely upon the Xerox copy of the Will. The said document cannot be treated as secondary evidence. The Trial Court taking into consideration all these aspects of the matter, held issue No.3 against the husband of the first appellant. We find no infirmity or irregularity in the said finding. In the absence of the Will, children of Vimala Bai entitled to get 1/4th share each and husband of Vimala Bai get 1/4th share in the suit 'A' schedule property.
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21. Insofar as 'B' schedule property is concerned, though the original Will of Prahalad Rao was not produced before the court, the parties have fairly admitted the execution of the Will on 24-1-1993. In the said Will, the husband of the second defendant was appointed as an Executor and he had issued notices to the parties for implementation of the Will of the deceased. Since there was no co-operation from the parties he expressed his inability to continue as an Executor. In the said will, 40% share has been given to each of the daughters and 20% share has been given to the first defendant who is the permanent resident of USA. The first defendant died in the year 2000, after his death, his legal representatives prosecuted the matter through the Power of Attorney holder. The Trial Court on the basis of the evidence of parties available on record held issue No.5 in the affirmative in respect of 'B' schedule property. The Trial Court on the basis of 25 the oral and documentary evidence produced by the parties held issue No.3 in the negative and issue No.5 in the affirmative. We find no infirmity or irregularity in the said finding.
22. The application filed by the appellants under Order 41 Rule 27 of the Code of Civil Procedure for production of additional documentary evidence were all the documents existing during the trial. The appellants failed to produce the same. The suit was contested through PA Holder, who admitted that he has no personal knowledge with regard to the family affairs of the parties. Only after filing of the suit in the year 1996, the power of attorney was executed. The appellants had failed to establish that notwithstanding the exercise of due diligence, such an evidence could not be produced before the court. Admittedly, the appellants are the permanent residents of USA and they 26 are the Green Card Holders. Even though the additional documentary evidence produced by the appellants are taken into consideration, it has no bearing on the case on hand. The finding of the court below is based on the oral and documentary evidence produced by the parties. The additional documentary evidence produced by the appellants are not relevant for deciding the dispute between the parties. Accordingly, the application filed by the appellants for production of additional evidence is rejected.
23. The oral and documentary evidence produced by the parties clearly disclose that there is no partition of the joint family properties. The alleged Will executed by Vimala Bai was not proved. Hence, the children of Viamal Bai and her husband are entitled for 1/4th share each. In view of the Will dated 24-1-1993, the first defendant is entitled for 1/4th share of his father. Further, in respect of 'B' schedule property, the plaintiff 27 and the second defendant are entitled for 2/5th share each and the first defendant is entitled for 1/5th share. The Hon'ble Supreme Court in a judgment reported in AIR 1965 SC 354 (Supra) clearly held that the propounder has taken a prominent part in the execution of the Will which confers substantial benefits on him, that itself is generally treated as a suspicious circumstances attending the execution of the Will, and the propounder is required to remove the suspicion by clear and satisfactory evidence. In other words, the propounder must satisfy the conscience of the Court that the document upon which he relies is the last Will and testament of the testator. In the instant case, evidence of D.W.2 is clear that the Will was in the handwriting of Prahalad Rao who is the beneficiary of the Will executed by Vimala Bai. Accordingly, the Trial Court has not believed the said Will.
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24. We find no infirmity or irregularity in the judgment and decree passed by the court below. The appellants have not made out a case to interfere with the judgment and decree passed by the Trial Court. Accordingly, we pass the following:
ORDER The appeal is dismissed.
Parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE mpk/-*