Bangalore District Court
Smt. Vasantha vs Smt. Karpagam Anand Kumar on 21 December, 2020
Form No.9 (Civil)
Title Sheet for Judgment in Suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 21st day of December, 2020.
O.S.No.25048/2013
Plaintiff: Smt. Vasantha, T.C.,
Aged about 64 years,
D/o Late T.N. Cheluvaraj Pillai,
Grand daughter of late Nagalingam Pillai,
Residing at No.61,
Venkateshwara Layout,
Attiguppe, Vijay Nagar,
Bengaluru 40.
[By Sri. Pradeep, M.Adv.]
V/s
2 OS No. 25048/2013
Defendants: 1. Smt. Karpagam Anand Kumar,
Aged about 71 years,
W/o Late Anand Kumar,
2. Sri. Vijay Anand,
Aged about 45 years,
S/o Late T.C. Anandakumar,
3. Smt. Ambika,
Aged about 43 years,
D/o Late T.C. Anand Kumar,
All the three Defendants are
R/at "Ashwini" No.33/1,
Aga Abbas Ali Road,
Bengaluru560 042.
[By Sri. K.M.A Adv for Defendant No.1)
[By Sri.K.J.Adv for Defendant No.2]
[By Sri.J.M.S.Adv for Defendant No.3]
3 OS No. 25048/2013
Date of Institution of the suit 09.01.2013
Nature of the (Suit or pronote,
suit for declaration and
Partition Suit
possession, suit for injunction,
etc.)
Date of the commencement of
19.11.2014
recording of the Evidence.
Date on which the Judgment
21.12.2020
was pronounced.
Year/s Month/s Day/s
Total duration 07 11 12
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
This suit is filed by the Plaintiff against the Defendants, claiming Partition and separate possession of ½ share in the schedule property; to declare Registered Partition Deed dtd.04.03.1998 as not binding to her; and to grant mesne profits.
4 OS No. 25048/20132. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, she and the Defendants are the legal heirs of late Nagalingam Pillai and his sons late Dr. T.N. Cheluvaraj and late T.N. Rajarathnam Pillai. Originally, Nagalingam Pillai was the owner of the Suit Schedule Property. He had two sons namely T.N. Cheluvaraj Pillai and T.N. Rajarathnam Pillai. The said T.N. Cheluvaraj Pillai had two children i.e., T.C.Anandkumar and Vasanthathe Plaintiff. Defendant Nos.1 to 3 are the wife, son and daughter, respectively of T.C.Anadakumar.
Suit Schedule Property is the selfacquired property of Nagalingam Pillai, he died long back leaving behind him, his two sons viz., T.N. Cheluvaraj Pillai and T.N. Rajarathnam Pillai. After his death, his two sons were enjoying the property left by him. T.N. Cheluvaraj Pillai died on 27.04.1991 leaving behind him, his wife Kamala Cheluvaraj; his daughter Vasanthathe Plaintiff and his son Dr. T.C.Anandkumar.5 OS No. 25048/2013
The Plaintiff requested the Defendants to effect Partition and to allot her share, in the Suit Schedule Property. The said request of the Plaintiff was refused by the Defendants. Thereafter, the Plaintiff came to know that the properties left by Nagalingam Pillai including the Suit Schedule Properties were Partitioned into two shares between her uncle T.N. Rajarathnam Pillai, on one hand and Kamala Cheluvaraj and T.C.Anandkumar on the other hand, by virtue of Partition Deed dtd.04.03.1998, wherein schedule A property therein has fallen to the share of T.N. Rajarathnam Pillai and schedule B property therein, has fallen to the share of Kamala Cheluvaraj and T.C.Anandkumar, which is the present Suit Schedule Property. Further she contends that, she was intentionally leftout in the said Partition, inorder to deprive her legitimate share, right and interest over the present Suit Schedule Property, so the said Partition is not binding on her.6 OS No. 25048/2013
The mother of the Plaintiff late Kamala Cheluvaraj also died about 12years back, leaving behind her, the Plaintiff as her daughter and T.N.Anandkumar as her son. T.N.Anandkumar also died on 26.01.2010, leaving behind him, his wifethe Defendant No.1 and his children the Defendant Nos.2 and 3.
Thus, she contends that she is having ½ share in the Suit Schedule Property and she is entitled for Partition in it. Hence, prayed to decree the suit and award Partition in the Suit Schedule Property.
3. Suit Summon were issued to the Defendants. Defendant Nos.1 and 2 have appeared through their respective Counsels on 21.03.2013 and Defendant No.3 has appeared through her Counsel on 04.04.2013. The Defendant No.1 for self and as Power of Attorney Holder of Defendant No.2 has filed the Written Statement on 21.03.2013. The Defendant No.3 has filed a memo on 04.04.2013 adopting the contents of 7 OS No. 25048/2013 the Written Statement filed by the Defendant Nos.1 and
2.
4. The Defendants in their Written Statement has specifically denied the relationship of the Plaintiff with T. Nagalingam Pillai; T.N. Cheluvaraj Pillai and T.N. Rajarathnam Pillai. It is specifically contended by the Defendants that, the Plaintiff is not the daughter of Dr. T.N. Cheluvaraj Pillai and she is not related to them nor to their family. It is contended that, the Plaintiff does not fit within the definition of the terms, related, heir, child, daughter as defined under the Hindu Succession Act. So also the Plaintiff has not produced any documents to prove that, she is either related to the Defendants or their family. Further it is contended that, the Suit Schedule Property has lost its character as joint family property as the same was Partitioned inbetween T.N. Rajarathnam Pillai and the legal heirs of Dr. T.N. Cheluvaraj Pillai i.e., Kamala Cheluvaraj and Dr. T.C.Anandkumar, as per the Partition Deed dtd.
8 OS No. 25048/201304.03.1998 and subsequent to the said Partition another Partition took place inbetween Kamala Cheluvaraj and T.C. Anandakumar, as per the Partition Deed dtd.03.05.2000.
It is specifically contended by the Defendants that the suit of the Plaintiff for the relief of Partition is barred by time as the Plaintiff had the knowledge about the death of T.N. Cheluvaraj Pillai and about the Partition Deeds dtd.04.03.1998 and 03.05.2000.
Further, it is contended that, the Plaintiff has not properly valued the suit and has paid the Court Fee as required under the provisions of Karnataka Court Fees and Suit Valuation Act.
It is specifically contended that, originally the Suit Schedule Property was the selfacquired property of one T.Nagalingam Pillai. The said T. Nagalingam Pillai under the Will dtd.09.04.1993 bequeathed the Suit Schedule Property along with the other properties, jointly to his sons namely T.N. Cheluvaraj Pillai and Mr. T.N. Rajarathnam Pillai. Subsequent to the death of 9 OS No. 25048/2013 Nagalalingam Pillaia, his sons T.N. Cheluvaraj Pillai and Mr. T.N.Rajarathnam Pillai, jointly acquired the title to the Suit Schedule Property, alongwith the other properties. Thereafter, Dr.T.N. Cheluvaraj Pillai died intestate on 27.04.1991, leaving behind him, his wife Smt. Kamala Cheluvaraj and his son Dr. T.C. Anandkumar, as his only legal heirs. Subsequent to the death of Dr. T.N. Cheluvaraj Pillai, in the year 1998 Mr. Rajarathanm Pillai called upon the heirs of Dr. T.N. Cheluvaraj Pillai, and Partitioned the properties, which were in joint with him, as per the Partition Deed dtd.04.03.1998. Pursuant to the said Partition, Kamala Cheluvaraj and T.C.Anandkumar further got Partitioned the properties inbetween them, as per the Partition Deed dtd.03.05.2000. During the lifetime of Kamala Cheluvaraj, she by executing a Will dtd.03.05.2008, bequeathed the property fallen to her sharethe portion in the Suit Schedule Property, to her only child Dr. T.C. Anandkumar. Kamala Cheluvaraj died on 09.04.2009. Thereafter, T.C. Anandkumar, during his lifetime, has 10 OS No. 25048/2013 bequeathed the Suit Schedule Property infavour of his wife and children under the Will dtd.01.08.2010. T.C.Anandkumar died on 26.01.2010. The katha pertaining to the Suit Schedule Property was transferred in the name of the 1 st and 2nd Defendants. The said Defendants are in Possession and Enjoyment of the said property. Thus, contends that, Plaintiff is not entitle for any share in the Suit Schedule Property and hence, pray to dismiss the suit of the Plaintiff.
5. On the basis of the above said pleadings, my learned predecessor in office has framed the following issues on 03.01.2014:
:ISSUES:
1. Whether the Plaintiff proves that, she is the daughter of Late Chelva Raju Pillai, after the death of her grand father Nagalingam Pillai, his two sons by name Rajarathnam Pillai and T.N. Chelva Raju Pillai, succeeded the Suit Schedule Property, after the death of Chelva 11 OS No. 25048/2013 Raju Pillai, she and Defendants jointly succeeded the Suit Schedule Properties?
2. Whether the Plaintiff proves that, she is entitle for ½ share in the same?
3. Whether Plaintiff proves that the Partition deed dated 04.03.1998 is not binding on the Plaintiff pertaining to B schedule property?
4. Whether Plaintiff is entitle for mense profits?
5. Whether the Defendants prove that suit is not valued properly, and Court fee is paid insufficient?
6. Whether the suit is barred by limitation?
7. Whether the Defendants prove that on the date of filing of the suit, the Suit Schedule B Property was not the joint family 12 OS No. 25048/2013 property of Plaintiff and Defendants?
8. Whether the suit is hit by non joinder of necessary parties?
9. What order or decree?
6. The Plaintiff inorder to prove her case, got examined herself as PW1 and have got marked 9 documents as Ex.P1 to Ex.P9. PW1 was cross examined on behalf of the Defendants on 29.09.2016, 17.01.2017, 19.09.2018, 26.09.2018, and 10.07.2019.
Per contra, the Defendants has got examined Defendant No 1 as DW1 and have got marked 18 documents as Ex.D1 to Ex.D18. DW.1 was cross examined on behalf of the Plaintiff on 11.02.2020 and 26.02.2020. Ex.P.10 and Ex.P.11 were marked on confrontation to DW.1.
Matter came to be posted for Arguments.
13 OS No. 25048/20137. The matter was initially allotted to CCH29. Thereafter the same was transferred to this Court on 20.08.2018, as per the notification bearing No ADM1(A) 413/2018 dated 31.07.2018.
8. Inspite of affording sufficient opportunity, the Plaintiff has failed to advance the Arguments. Hence, the Arguments of the Plaintiff was taken as 'Not Addressed' on 15.12.2020. However, inorder to afford further opportunity, Plaintiff was directed to file Written Arguments if any, on or before 18.12.2020, but the same has not been filed on behalf of the Plaintiff.
Heard the Arguments of the Learned Counsel for the Defendants. The Learned Counsel for the Defendants has placed his reliance on the following decisions:
a) of the Hon'ble High Court of Madhya Pradesh, in the case of Jeev Rakhan V/s State of M.P., reported in 2004 Crl.L.J. 2359;14 OS No. 25048/2013
b) of the Hon'ble Apex Court, in the case of Jabbar Singh V/s Dinesh and Another, in Crl.Appeal No.487/2010 (Arising out of SLP(Crl.) No.6629 of 2006) date of decision 12.03.2010.
c) of the Hon'ble High Court of Karnataka, in the case of Smt. Sarojamma by her Lrs., V/s Smt. Vimala and Others, in Regular Fist Appeal No.2412/2007 (PAR) dte of decision 14.11.2013.
9. My findings on the above said issues are as under:
Issue No.1: In the Affirmative;
Issue No.2: In the Affirmative;
Issue No.3: In the Affirmative;
Issue No.4: In the Negative;
Issue No.5: In the Negative;
Issue No.6: In the Negative;
Issue No.7: In the Negative;
Issue No.8: In the Negative;
Issue No.9: As per final orders for the
following;
15 OS No. 25048/2013
:R E A S O N S:
10. As per the contentions of both the parties to the suit, the important events and dates are as under:
a) Will written by T. Nagalingam Pillai. Dt:
09.04.1923;
b) T. N. Cheluvaraj Pillai died on 27.04.1991;
c) Partition inbetween T N Rajarathanam Pillai and Kamala Cheluvaraj & T C AnandKumar has taken place on 04.03.1998;
d) Kamala Cheluvaraj written a Will on 03.05.2008;
e) Kamala Chelavaraj died on 09.04.2009;
f) T C Anandkumar written a Will on 01.08.2010;
g) T C Anandkumar died on 26.01.2010.
11. As per the contentions of both the parties, the undisputed facts are as under:
i) Suit Schedule Property originally owned by T Nagalingam Pillai and he had bequeathed the Suit Schedule Property infavour of his two sons, namely T N 16 OS No. 25048/2013 Cheluvaraj Pillai and T N Rajarathanam Pillai, by virtue of Will dated 09.04.1923;
ii) Dr T N Cheluvaraj died on 27.04.1991Death Certificate ExP2;
iii) Kamala Cheluvaraj is the wife of T N Cheluvaraj and she died on 09.04.2009Death Certificate ExD9;
iv) T C Anandkumar is the son of T N Cheluvaraj and Kamalamma; he died on 26.01.2010Death Certificate ExP4=ExD10, leaving behind him the Defendant No 1 as his wife; the Defendant Nos 2 & 3 as his children.
12. ISSUE NOS.1, 3 AND 7:
Since these three issues are interlinked with each other, so they have been taken for common discussion, inorder to avoid repetition, confusion and inorder to have brevity in the discussion.
The Plaintiff contend that she is the daughter of T N Cheluvaraj and Kamala Cheluvaraj, but the same is 17 OS No. 25048/2013 denied by the Defendants. The Defendants contend in Para Nos.10(c) and 11(xii) of the Written Statement, which read as under:
"10(c). It is submitted that Dr.T.N.Chelvaraj Pillai had only one child i.e., Late Dr. T.C.Anandkumar, the Plaintiff herein is not the daughter or child of the Late Dr.T.N.Chelvaraj Pillai as is claimed by the Plaintiff. It is submitted that said Dr.T.N.Chelvaraj Pillai and his wife late Smt. Kamala Chelvaraj had only taken care of the Plaintiff and had only provided her basic necessity in life and had got her married, apart from doing this welfare to the Plaintiff, they had not adopted or depicted her as their daughter. The family Tree of Late Dr. T.N.Chelvaraj Pillai is produced herewith and marked as Document No.1."
"11(xii). With regard to Paragraph No.2: The averment is so far as the statement made by the Plaintiff that she is the Legal heir of Late Sri.T.N.Nagalingam Pillai and was the child of Late Dr.T.N. Cheluvaraj Pillai as stated in the paragraph No.2 are false, baseless and are denied. It is 18 OS No. 25048/2013 submitted that the Plaintiff's basic necessities were taken care of by the Late Dr.T.N.Cheluvaraj Pillai and his wife Late Smt. Kamala Chelvaraj and they had also got her married, apart from discharging the aforesaid welfare duty, the Plaintiff at no point of time was declare or depicted as the daughter of Late Dr.T.N.Cheluvaraj Pillai and Smt. Kamala Cheluvaraj Pillai nor was she the adopted daughter, as such the averments made in paragraph No.2 are false and are denied. The Family Tree produced is a fabricated and concocted document and is denied by the Defendants; on the contrary Late Dr.T.C.Anand Kumar was the only child of late Dr.T.N.Cheluvaraj Pillai and Smt. Kamala Chelvaraj. It is true that the Defendants herein are the wife and children of late Dr.Anand Kumar. The Plaintiff is put to strict proof of the averment that she is the grand daughter of Late T.N.Nagalingam Pillai and daughter of Late Dr.T.N.Chelvaraj Pillai and is also put to strict proof of the averments as stated in paragraph No.2."19 OS No. 25048/2013
Even this can be seen in the ocular evidence, more specifically, cross examination of DW.1, at Page No.11, Para No.1, which reads as under;
"It true to suggest that, I have contended in my Written Statement as well as evidence Affidavit at para No.6(c) that, my fatherinlaw T.N. Cheluvaraj Pillai has only taken care of the Plaintiff by providing her basic necessity in life, help to get her married. My fatherinlaw has taken care of the Plaintiff for few months or few weeks only. I do not know whereabouts of the Plaintiff. I am not aware about the parents and other family members of the Plaintiff. I have not attended the marriage of the Plaintiff."
12.1 Further, coming to the ocular evidence, in the cross examination of DW.1, Page No.10, Para No.1, which reads as under:
"It is true to suggest that one Nagalingam Pillai is the grandfather of my husband T.C. Anandkumar. It is true to suggest that said Nagalingam Pillai was having two sons, viz., T.N. Cheluvaraj Pillai and T.N.Rajarathnam Pillai. It is false to suggest that T.N. 20 OS No. 25048/2013 Cheluvaraj Pillai was having one son by name Anandkumar and one daughter by name Vasanth T.C. It is true to suggest that T.N. Rajarathnam Pillai is having 3 children, viz., Kasthuri(daughter), Shivaprakash(son) and Ramalingam(son)."
As per this evidence, Defendant No.1 contends that, T. Nagalingam Pillai was having two sons T.N. Cheluvaraj Pillai and T.N. Nagarathnam Pillai. Said T.N. Cheluvaraj Pillai was having only one son T.C. Anandkumar, and was not having daughter by name Vasantha T.C.the Plaintiff.
12.2 Further as per the cross examination of PW.1, at Page No.18, Para No.1, which reads as under:
"It is true to suggest that T.N. Cheluvaraj Pillai and his brother T.N. Rajrathnam Pillai was maintaining the property received by them under the Will
executed by Nagalingam Pillai, jointly."
As per this evidence, it is suggested to Plaintiff that, she is not the biological daughter of T.N. 21 OS No. 25048/2013 Cheluvaraj Pillai and biological sister of T.C. Anandkumar.
12.3 Further as per the cross examination of DW.1, at Page No.22, Para No.4, which reads as under:
"It is false to suggest that in order to dodge the legitimate share of the Plaintiff in the Suit Schedule Property, I am deposing falsely that she is not related either to my husband as the sister or to my parentsinlaw as daughter."
As per this evidence, Defendant No.1 denies that, Plaintiff is related to her husband, as sister or to her parentsinlaw, as daughter.
12.4 On careful perusal of the pleadings and above ocular evidence of both the parties, relationship of the Plaintiff with that of T N Cheluvaraj; Kamala Cheluvaraj; T C AnandKumar and the Defendants is denied by the Defendants.
22 OS No. 25048/201313. Section 112 of Indian Evidence Act, reads as under:
"112. Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the other remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten".
14. As well as, as per the decision of the Hon'ble High Court of Karnataka in the case of Muniga @ Abbaiah & Anr Vs Muniraja & Ors, reported in ILR 2000 Kar 3564, wherein it is held that, "When the paternity is disputed the party disputing, has to discharge the burden Law presumes strongly infavour of legitimacy of offspring, as it is the birth that determines the status of a person."
23 OS No. 25048/2013Applying the above principles of law to the instant case at hand, initially the Plaintiff has to show that she is the daughter of Dr T N Cheluvaraj and Kamala Cheluvaraj and has born to them, then it is for the Defendants to disprove the relationship of the Plaintiff with that of Dr T N Cheluvaraj and Kamala Cheluvaraj.
15. The Plaintiff has produced her marriage invitation card at Ex.P.8. As per this document, it is seen that, invitation is addressed from the father and mother of the bride and the name of the mother and father of the said bride (Vasantha) is shown as Kamala and Dr. T.N. Cheluvaraj Pillai. Even the names of T.N. Rajarathnam Pillai and Dr. T.C. Anandkumar is shown in the said invitation card, as compliment holders.
15.1. Coming to the ocular evidence, Further as per the cross examination of DW.1, Page No.10, Para No.1, which reads as under:
24 OS No. 25048/2013"It is true to suggest that one Nagalingam Pillai is the grandfather of my husband T.C. Anandkumar. It is true to suggest that said Nagalingam Pillai was having two sons, viz., T.N. Cheluvaraj Pillai and T.N.Rajarathnam Pillai. It is false to suggest that T.N. Cheluvaraj Pillai was having one son by name Anandkumar and one daughter by name Vasanth T.C. It is true to suggest that T.N. Rajarathnam Pillai is having 3 children, viz., Kasthuri (daughter), Shivaprakash(son) and Ramalingam(son)."
As per this evidence, Defendant No.1 contends that, T. Nagalingam Pillai was having two sons T.N. Cheluvaraj Pillai and T.N. Nagarathnam Pillai. Said T.N. Cheluvaraj Pillai was having only one son T.C. Anandkumar, and was not having daughter by name Vasantha T.C.the Plaintiff.
15.2. Coming to the ocular evidence on this point, more specifically, in the cross examination of PW.1, at Page No.17, Para No.3, which read as under;
25 OS No. 25048/2013"It is false to suggest that I have got created Ex.P8 marriage Invitation Card. My marriage has taken place in the year 1967. I am not in possession of any certificate to show that my marriage has taken place in the year 1967. It is false to suggest that there is variations in respect of the names shown in Ex.P8 and my Suit Plaint."
As per this document, a suggestion is made to the Plaintiff/PW.1 on behalf of the Defendants that, Ex.P.8 marriage invitation card is got created by her. Further Plaintiff contends that her marriage has taken place in the year 1967, but she is not possessing any marriage certificate. Further she denies the suggestion that there is variation inrespect of the names shown in Ex.P.8, with that of the name shown in the Suit Plaint.
15.3. As per this ocular evidence, the Defendants have denied Ex.P.8Marriage invitation card. The Plaintiff has not led any independent cogent evidence U/Sec.50 r/w 61 of Indian Evidence Act, to prove the said document. But Plaintiff is shown to be 26 OS No. 25048/2013 the daughter of Smt. Kamala and Dr. T.N. Cheluvaraj Pillai in the said invitation card.
16. Two positive photographs have been got confronted to DW.1/Defendant No.1 as Ex.P.10 and Ex.P.11. As per the Plaintiff Ex.P.11photograph pertains to her marriage. The Plaintiff would contend that in her marriage, participation of her parents, her brother T.C. Anandkumar and his wifethe present Defendant No.1 can be seen.
16.1. Coming to the ocular evidence on this point, more specifically, cross examination of DW.1, at Page No.15, Para No.3, which reads as under;
"Now a positive photograph is shown to the witness and questioned, whether in the said Photograph, her fatherinlaw and motherinlaw are appearing. Witness identifies her fatherinlaw and motherin law in the said Photograph. On Confrontation and admission of the Photograph of her fatherinlaw and motherinlaw, the same is marked as Ex.P11. (For easy identification fatherin law is shown by the letters 'FIL' and 27 OS No. 25048/2013 motherinlaw is by letter "MIL" in the said Photograph). Ex.P11 might have clicked at the time of marriage of Vasantha T.C. - Plaintiff."
As per this evidence, Defendant No.1/DW.1 admits that her fatherinlaw and motherinlaw are seen in the said photo (which are marked for identification as "FIL" and "MIL", respectively). Further DW.1 contends that, Ex.P.11photograph might have been clicked at the marriage of Vasantha T.C. the Plaintiff.
16.2. As per the cross examination of DW.1, at Page No.14, Para No.2, which reads as under:
"It is false to suggest that as per Ex.P 8 - Invitation Card, T.N.Rajarathnam Pillai and Dr.T.C. Anandkumar have extended compliments to Smt.Vasantha T.C on the eve of her marriage. Witness volunteers that Ex.P8 Invitation card is concocted. It is false to suggest that myself, T.N.Cheluvaraj Pillai, Kamalamma, Rajarathnam Pillai, T.C.Anandkumar had attended the marriage of Smt.Vasantha 28 OS No. 25048/2013 T.C. It is false to suggest that marriage of Vasantha T.C - Plaintiff is performed by T.N.Cheluvaraj Pillai, and Kamalamma as her parents."
As per this evidence, the Defendant No.1 denies the suggestion made to her that, herself T.N. Cheluvaraj Pillai, Kamalamma, Rajarathnam Pillai, T.C. Anandkumar, had attended the marriage of Vasantha T.C.the Plaintiff as well as the said marriage was performed by T.N. Cheluvaraj Pillai and Kamalamma as her parents.
17. Another positive photo was got confronted to the Defendant No.1/DW.1 which is marked as Ex.P.10. The Defendant No.1 has admitted that, the persons shown as FIL and MIL in the said photo are her parentsinlaw. This can be seen as per the cross examination of DW.1 at Page No.15, Para No.2, which reads as under:
29 OS No. 25048/2013"Now a positive Photograph is shown to the witness and questioned, whether in the said Photograph, her fatherinlaw and motherinlaw are appearing. Witness identifies her fatherinlaw and motherin law in the said Photograph. On Confrontation and admission of the Photograph of her fatherinlaw and mother inlaw, the same is marked as Ex.P10. (For easy identification fatherinlaw is shown by the letters "FIL" and motherin law is by letter "MIL" in the said Photograph). The person sitting towards the left side in Ex.P10 is not my husband. I do not know as to who is the female person sitting besides my fatherinlaw in Ex.P10."
18. The Plaintiff has also produced certificate issued by the Principal, Sacred Heart Girls High School, Museum Road, Bengaluru, at Ex.P.9. As per this document, it is certified by the school authorities that C. Vasantha D/o Mr. T. Cheluvaraj Pillai was a bonafide student of their school during the year 1956 and her date of birth, as per school records is 26.08.1949.
30 OS No. 25048/201318.1. The Learned Counsel for the Defendants would contend that, Ex.P.9School Certificate is not a primary evidence as the same is prepared on the basis of some other documents. So in the absence of that other document being a primary evidence, Ex.P.9School Certificate has no evidentiary value in the eye of law. Further he has placed his reliance on the decision of the Hon'ble High Court of Madhya Pradesh, in the case of Jeev Rakhan V/s State of M.P., reported in 2004 Crl.L.J. 2359, wherein it is observed at Para No.12 as under;
"12. Dalbir Prasad (P.W.5) who is the Head Master of the school and who had issued certificate (Ex.P3), has categorically stated that on the basis of the school record, he has given the certificate. Thus, one can safely say that Ex.P.3 is not a primary evidence because, it has been prepared on the basis of some other document. It has been admitted by this witness that admission form of the prosecutrix was submitted in the school which bears the date of birth of the prosecutrix. Accordingly to me the admission form on the basis of which certificate (Ex.P.3) is prepared is primary evidence which has not 31 OS No. 25048/2013 been produced in the Court. As the primary evidence has not been produced in the Court, Ex.P3, which is a certificate and is prepared on the basis of some other document, has no evidentiary value in the eyes of law and thus, the prosecution can not take any advantage o this document which according to me is inadmissible in evidence. There is nothing on record so as to indicate that the primary evidence was lost and if that be the position, secondary evidence is not permissible".
As well as the Learned Counsel for the Defendants has placed his reliance on the decision of the Hon'ble Apex Court, in the case of Jabbar Singh V/s Dinesh and Another, in Crl.Appeal No.487/2010 (Arising out of SLP(Crl.) No.6629 of 2006) date of decision 12.03.2010, wherein it is observed at Para No.12 as under;
"12. ...... The entry of date of birth of Respondent No.1 in the admission form, the school records and transfer certificate did not satisfy the conditions laid down in Section 35 of the Evidence Act inasmuch as the entry was not in any public or official register and was not made either by a public servant in the discharge of his official duty or by any person in 32 OS No. 25048/2013 performance of a duty specially enjoined by the law of the country and, determining the age of Respondent No.1 at the time of commission of the alleged offence. ......."
In both the above cited cases, the age of prosecutrix as on the date of incident, was in issue and not the relationship, which is in issue in the present case.
18.2. Coming to the ocular evidence on this point, more specifically, cross examination of PW.1, at Page No.17, Para No.2, which reads as under;
"I do not know the name of the Principal who has affixed his signature on Ex.P9. It is false to suggest that Ex.P9 is got created by me for the purpose of this suit. It is false to suggest that I have not at all studied in Sacred Heart Girls High School Good Shepherd Convent, Museum Road, Bengaluru. It is false to suggest that the contents of Ex.P9 is not in consonance with the pleadings taken up by me in the Suit Plaint. I have brought Ex.P9 from the school. I have made an application to supply the said certificate to me. I am possessing copy of the said application made to the school authority.33 OS No. 25048/2013
It is false to suggest that I am deposing falsely that I have filed an application and received the Ex.P9."
As per this evidence, PW.1/ Plaintiff contends that, she do not know the name of the Principal, who has affixed the signature on Ex.P.9, but denies the suggestion made to her that, Ex.P.9 is got created by her; she has not at all studied in the Sacred Heart Girls High School, Good shepherd Convent, Museum Road, Bengaluru; contents of Ex.P.9 is not in consonance with the pleadings taken up in the suit plaint.
18.3. As well as, as per the cross examination of PW.1, at Page No.12, Para No.1, which reads as under;
"Sacred Heart Girls High School Opposite to St.Joseph College, is an English Medium School. The said school is situated at St.Marks Road, Bengaluru. I have studied my Nursery class in the said school. I do not remembers as to in which years I have studied nursery class, standard 1st, 2nd, 3rd, 4th. I have not produced any 34 OS No. 25048/2013 certificate to show that I have studied nursery class, standard 1st to 4th, Sacred Heart Girls High School, St.Marks Road, Bengaluru. I have born on 28.08.1948 at St. Martha's Hospital located in Bengaluru. I have produced the birth certificate issued by the said hospital. I do not remember as to on which date the said birth certificate was issued by the hospital authorities. My father has affixed his signature to the said birth certificate. Now I see the documents produced by me before this Court, wherein the said birth certificate issued by St. Martha's hospital is not there. I have not produced my birth certificate issued by any of the Government authorities or officials in this Court."
As per this evidence, Plaintiff contends that, she has studied Nursery Class, Standard 1,2,3 and 4 in the Sacred Heart Girls High School, Opposite to St. Joseph College, situate at St. Marks Road, Bengaluru. Further, she contends that she was born on 28.08.1948 at St. Martha's Hospital in Bengaluru, she has produced her Birth certificate issued by the said hospital, for which her father has affixed his signature to the said birth 35 OS No. 25048/2013 certificate and the same is produced in this case. Subsequently, on perusing the documents produced by her, she confirms that, she has not produced her birth certificate in this case.
19. The Plaintiff has produced the Genealogical Tree of her family at Ex.P.1.
Coming to the ocular evidence on this point, more specifically, cross examination of PW.1, at Page No.14, Para No.1, which reads as under;
" It is true to suggest that in Ex.P1, Genealogy Tree there is mentioned in Kannada Script that the genealogy tree is not applicable in respect of the matters before the courts of law."
As per this evidence, Plaintiff admits that, there is mention in Kannada script that the Genealogical Tree is not applicable inrespect of the matters before the Court of Law.
36 OS No. 25048/201320. The Learned Counsel for the Defendants would contend that the Plaintiff cannot prove her relationship with Dr. T.N. Cheluvaraj Pillai and Kamala Cheluvaraj Pillai, on the basis of Ex.P.9School Certificate; Ex.P.1Genealogy; and Ex.P.8Marriage Invitation Card. And he has placed his reliance on the decision of the Hon'ble High Court of Karnataka, in the case of Smt. Sarojamma by her Lrs., V/s Smt. Vimala and Others, in Regular Fist Appeal No.2412/2007 (PAR) date of decision 14.11.2013. As per the said decision the Hon'ble High Court of Karnataka is pleased to observe at Para Nos.12 to 16 as under:
"12. In the light of the submissions made by the Learned Counsel for the parties, the only point that is required to be considered by this Court is whether the Plaintiff has proved that she is a daughter of Ningappa born to Mariyamma? To prove this contention, Plaintiff has relied upon Ex.P12 transfer certificate issued by the government higher primary school, Shimoga, Ex.P13 genealogical tree issued by the village accountant, Shimoga, marriage invitation card at Ex.P28 and photographs at Ex.P30 to 35.37 OS No. 25048/2013
Except these documents, no other oral or documentary evidence, has been produced by the Plaintiff to prove her relationship with deceased Ningappa. Therefore, we have to re appreciate the evidence of parties."
"13. Ex.P12 transfer certificate discloses that one Sarojamma D/o Ningappa was admitted to school on 10.04.1952 and the last date of attendance as 04.10.1952 and she studied in primary school classI and her date of birth is shown in this document as 06.02.1938. On a perusal of Ex.P12, one would certainly entertain a doubt in regard to its genuineness, because, as per this document, Plaintiff was born on 06.02.1938 and she was admitted to school on 10.04.1952 i.e., at the age of 14years, in first standard. This is unbelievable. Moreover, the Plaintiff has not summoned the original register maintained by the school to prove the genuineness of this document, as it is only a copy issued by the incharge head master of the school. Though Ex.P12 is admissible in evidence by mere production and marking, cannot be held that the said document is proved. We would have appreciated the contention of the Plaintiff if she had summoned the original register including the admission register to find out whether she is really daughter of Ningappa and Mariyamma. According to us, the trial Court is justified in not considering Ex.P.12 as proved".38 OS No. 25048/2013
"14. Similarly, Ex.P.13 is of no relevance, because, it is issued by the village accountant on the basis of the statement given by the Plaintiff. In this document, the village accountant has only stated that in his presence, Srojamma (Plaintiff) has given the genealogy of her family. Therefore, Ex.P.13 is a selfserving statement of Plaintiff and this document cannot be of no assistance to prov her paternity".
"15. In so far as Ex.P.28 is concerned, it is only an invitation card of marriage of Manjunath. According to Learned Counsel for the Appellants, in the list of persons shown as reception committee for the marriage, the name of husband of Plaintiff is also found. It can be seen that in the list of several names are shown and in her evidence, PW.1 has not deposed how all these persons are related to the family. It includes the name of former MLA, president of SUDA etc. Based on the names found in an invitation card, it is not possible for us to hold that the Plaintiff has proved her relationship with the Defendants".
"16. So also, the photographs relied upon by the Plaintiff at Ex.P.30, 35 are of no consequence, because, merely because some persons have attended the marriage is the family of Defendants, it is not possible to hold that the Plaintiff is the daughter of Ningappa".39 OS No. 25048/2013
21. On careful perusal of Ex.P.1, it is seen that, neither it is issued by the competent authorities, nor it is signed by either T.N. Cheluvaraj Pillai or T.C. Anandkumar. So under such circumstances, the said document is to be proved as per Sec. 50 of the Indian Evidence Act. But the Plaintiff has not led any independent evidence on Ex.P.1, in this regard.
22. On careful perusal of the documents produced by the Plaintiff at Ex.P.8 and Ex.P.9, it is seen that, Ex.P.8marriage invitation card, has come into existence prior to 13th March 1967 and Ex.P.9 certificate issued by the School Authorities has come into existence on 28.08.2013, which says that both the events are registered prior to 1956. Further, the Defendants have not raised any objections at the time of marking of these documents Ex.P8 and Ex.P9. These documents are neither marked on objections nor they are marked subject to objections. Further, both these documents 40 OS No. 25048/2013 speak about the facts, which have been taken place, at an undisputed point of time.
23. With regard to Ex.P9School Certificate issued by the School authorities, no doubt, entry in the school register must be proved in accordance with law, but when the entry in the school register and admission is maintained in the course of regular official duties and when the said entries are in existence, ante litem mortam, ie., prior to the cause of action shown, for filing the suit or prior to the filing of the suit, then such entries will become relevant U/Sec. 35 of the Indian Evidence Act. I find force to my above view, as per the decision of the Hon'ble Apex Court, in the case of Umesh Chandra V/s. State of Rajasthan, reported in (1982) 2 SCC 202, wherein it is held that, "Entries in school register and admission, maintained in the course of regular official duty and such entries are existing ante litem mortem, then they are held to be reliable U/Sec.35 of the Indian Evidence Act."
41 OS No. 25048/201324. Considering these documentary evidence with that of the contentions takenup by the Defendants in Para Nos. 10(c) and 11(xii) of their Written Statement, wherein they have contended that, "The Plaintiff was brought up by Dr. T.N. Cheluvraj Pillai and Kamala Cheluvaraj Pillai and her marriage was performed by them", which even can be noticed as per Ex.P.11positive photograph pertaining to the event of marriage of the Plaintiff, coupled with the invitation card. Then under such circumstances, it cannot be said that, Plaintiff is totally a stranger to the family of the Defendants; or in other words, it can be said that, Defendants are aware about the existence of the Plaintiff.
25. When the Court has to judge, as to the relationship of one person with another, it is permitted to take into consideration, the 'belief or' 'judgment of a person', provided the requirements of Sec.50 of Indian 42 OS No. 25048/2013 Evidence Act, are satisfied. The 'belief' is indeed a state of mind and can be evidenced by the conduct or behaviour, illustrating and pointing back to the state of mind, producing it.
26. Sec.50 of the Indian Evidence Act, allows only "conduct" as evidence of opinion, a conduct which is the expression, in outward behaviour, of the belief entertained.
26.1. The conduct must be the result, the opinion being the main cause, the results are the dresses by which one may infer the moving cause. One has to infer from an observed effect (conduct) - the probable cause - a scientific mental state (opinion). Conduct may reveal the belief of the actor, in so far as the specific act is a tenor, which cannot be well be supposed to have been willed without the inner existence of that belief.
43 OS No. 25048/201327. Considering the materials in the instant case at hand, viz.,
a). As per the contentions of the Defendants more specifically, in para 10(c) and para No.11(xii) of the Written Statement, wherein, they contend that, Dr. T.N. Cheluvaraj Pillai and his wife Kamala Cheluvaraj Pillai, has only taken care of the Plaintiff and had only provided her basic necessity in life and had got her married, apart from doing this welfare to the Plaintiff, they had not adopted her or depicted her, as their daughter. This pleadings of the Defendant, throw light on the fact that, the Plaintiff was brought up by Dr. T.N. Cheluvaraj Pillai and his wife Kamala Cheluvaraj Pillai;
b). The Plaintiff has produced Ex.P9 certificate issued by the Principal of Sacred Heart Girls High School, Museum Road, Bangalore, wherein it is stated that, the Plaintiff is shown to be the daughter of Dr. T.N. Cheluvaraj Pillai, who was the bonafide student of the school during the year 1956 and her date of birth is registered in the school records as 26.08.1949. This 44 OS No. 25048/2013 document suggest that, the Plaintiff was got admitted in the school in the year 1956, as the daughter of Mr. T. Cheluvaraj Pillai; and
(c). The Plaintiff on confrontation to DW1, got marked a positive photograph at Ex.P11, pertaining to her marriage, wherein Dr. T.N. Cheluvaraj Pillai and Kamala Cheluvaraj Pillai, are seen. When this document is read with the pleadings of the Defendants more specifically, at para No.10(c) and 11(xii) of the Written Statement, it can be said that, Dr. T.N. Cheluvaraj Pillai and his wife Kamala Cheluvaraj Pillai, have performed the marriage of the Plaintiff, by incurring the expenses.
28. So, when such materials are brought before the Court to suggest that, the Plaintiff was broughtup by Dr. T.N. Cheluvaraj Pillai and his wife Kamala Cheluvaraj Pillai; she was got admitted in the Sacred Heart Girls High School, in the year 1956, addressing her as the daughter of Mr.T.Cheluvaraj Pillai; and 45 OS No. 25048/2013 when the marriage of the Plaintiff is performed by Dr. T.N. Cheluvaraj Pillai and his wife Kamala Cheluvaraj Pillai, by spending money.
29. On weighing such evidence the Court has to come to its opinion as to the relationship in question. So, considering all the above facts, which points, towards the conduct of Dr. T.N. Cheluvaraj Pillai and his wife Kamala Cheluvaraj Pillai, and from such facts, opinion of Dr. T.N. Cheluvaraj Pillai and his wife Kamala Cheluvaraj Pillai, to the effect that, Plaintiff is their daughter, can be gathered. I find force to the above view, as per the decision of the Hon'ble Apex Court, in the case of Dalgovinda V/s. Nimai Charan, reported in A.I.R.1959 SC 914.
30. Considering the conduct of the parties, as to how the parties have acted, more importantly Dr. T.N. Cheluvaraj Pillai and his wife Kamala Cheluvaraj Pillai, 46 OS No. 25048/2013 in their day to day life, plays a very important and piotal role, as there is no direct evidence.
31. On taking into consideration all the above documentary and ocular evidence, it can be said that, though the Plaintiff has not lead direct evidence to prove her relationship with Dr. T.N. Cheluvaraj Pillai and Kamala Cheluvaraj Pillai, as her parents. But, as per the above referred circumstantial evidence, it can be said that, the Plaintiff was brought up, educated and was given in marriage by Dr. T.N. Cheluvaraj Pillai and Kamala Cheluvaraj Pillai, as their daughter.
32. Thus, as per Secs.8, 35 and 114 of the Indian Evidence Act, as well as, on the basis of the proof of relationship, as required U/Sec. 50 of Evidence Act, the Plaintiff has discharged her initial burden that the Plaintiff is the daughter of Dr. T.N. Cheluvaraj Pillai and Kamala Cheluvaraj Pillai, as required U/Sec. 112 of Evidence Act, to consider it as a conclusive proof. On discharge of the said initial burden by the Plaintiff, onus 47 OS No. 25048/2013 of proof lies on the Defendants to disprove the relationship in between the Plaintiff, as the daughter of Dr. T.N. Cheluvaraj Pillai and Kamala Cheluvaraj Pillai. This aspect has not been dispel by the Defendants inorder to crack the conclusive proof, available to the Plaintiff, in law, withregard to her paternity.
33. As per the decisions of the Hon'ble Apex Court,
a) In the case of Bharatha Matha & Another V/s R.Vijaya Renganathan and Others; reported in 2010 (11) SCC 483; wherein it is held that:
"Presumption of legitimacy of child born during continuation of marriage can be displayed only by a strong preponderance of evidence, showing non assess between the parties to the marriage during the relevant period. The said presumption cannot be rebutted merely by a balance of probabilities."48 OS No. 25048/2013
b) In the case of Dhanulal & Others V/s Ganesh Ram and Another; reported in 2015 AIR SCW 2839; wherein it is held that:
"As per Sec. 50 of Evidence Act, Burden is on the person who asserts that there was no valid marriage. "
c) In the case of Mohammed Salim (Dead) through Lrs., & Others V/s Sahamsuddeen (Dead) through Lrs., and Others; reported in (2019) 4 SCC 130; wherein it is held that:
"Register maintained by statutory Authorities mentioning the names of the parents of the person, such document coming within the ambit of Section 74 of Indian Evidence Act, forming Public document is a fact relevant for determining parentage of that person."
d) In the case of Shyam lal @ Kuldeep V/s Sanjiv Kumar & Others; reported in 2009 AIR SCW 5006; wherein it is held that:
49 OS No. 25048/2013"School Leaving Certificate of a person falls within the ambit of Section 74 of Evidence Act, it is admissible per se without formal proof. Which leads to presumption about legitimacy of such person born out of a wedlock to their parents as per Section 112 of Evidence Act. Inorder to impeach, such conclusive presumption, strong and conclusive evidence is necessary to prove non assess of each of the parents of such person, when such person begotten. "
34. Maternity is the fact and paternity is the faith. As a famous saying goes, "child of a mother is the fact, but child of a father is the faith". As well as another saying goes, "father of the child is at the tip of the finger of the mother".
35. Thus, the Plaintiff has proved as per Sec. 112 of Indian Evidence Act, that she is known as the daughter of Dr. T.N. Cheluvaraj Pillai and Kamala Cheluvaraj Pillai.
50 OS No. 25048/201336. Now, let us see, withregard to acquisition of the property, shown as the Suit Schedule Property.
36.1. It is an admitted fact from both the parties that originally the Suit Schedule Property was belonging to N. Nagalingam Pillai.
36.2. Coming to the ocular evidence on the point of flow of title of the property, which can be seen as per the cross examination of DW.1, at Page No.16, Para No.3, which reads as under:
"It is true to suggest that Suit Schedule Property is the self acquired property of Nagalingam Pillai, who is the grandfather of my husband T.C.Anandkumar. It is true to suggest that on 09.04.1923, the Nagalingam Pillai had executed a Will. It is true to suggest that the said Nagalingam Pillai died on 03.05.1923. It is true to suggest tat as per the said Will, the properties which was subject matter of the said Will, were to devolved on the bases of Testamentary Succession to my fatherinlaw T.N.Chelavaraj Pillai and his brother Rajrathnam Pillai. It is true to suggest 51 OS No. 25048/2013 that after the death of Nagalingam Pillai my fatherinlaw and his brother were in enjoyment of their respective properties as per the Will. It is true to suggest that no any partition has taken place in between my fatherinlaw and his brother during their lifetime."
As per this evidence, Defendant No.1 admits that, Suit Schedule Property is the selfacquired property of Nagalingam Pillai, who is the grandfather of T.C. Anandkumar; on 09.04.1923 said Nagalingam Pillai had executed a Will; Nagalingam Pillai died on 03.05.1923; the properties of Nagalingam Pillai, was the subject matter of the Will, which has devolved infavour of T.N. Cheluvaraj Pillai and Rajarathnam Pillai; no Partitions had taken place inrespect of the said properties inbetween T.N. Cheluvaraj Pillai and Rajarathnam Pillai.
37. The Defendants contend that, after the death of T.N. Cheluvaraj Pillai, Partition was taken place inbetween T. N. Rajarathnam Pillai on onehand and 52 OS No. 25048/2013 Kamala Cheluvaraj Pillai and T.C. Anandkumar on anotherhand. But the Plaintiff contends that, she was purposely avoided in the said Partition, with an intention to dodge her legitimate rights, over it.
37.1. The Plaintiff has produced certified copy of Partition Deed dtd.04.03.1998 at Ex.P.3 as well as the Defendants have produced the certified copy of the Partition Deed dtd.04.03.1998 at Ex.D.1. Ex.P.3 and Ex.D.1 are one and the same. As per this document, it is seen that, a Partition has taken place inrespect of the properties belonging to T. Nagalingam Pillai, which were succeeded by T.N. Cheluvaraj Pillai and T.N. Rajaratham Pillai, as per the Will of their father T. Nagalingam Pillai. In the said Partition T.N. Nagarathnam Pillai, has received the properties shown as ScheduleA properties, under the said Partition Deed. And Kamala Cheluvaraj Pillai and T.C. Anandkumar have received property shown at ScheduleB properties under the said Partition Deed. The properties shown to 53 OS No. 25048/2013 be received by Kamala Cheluvaraj Pillai and Anandkumar, under the said partition deed, is the present Suit Schedule Property.
37.2. The Plaintiff contends that she was not the party to the said document; she has not affixed her signature; she has not consented for the transaction under Ex.P.3=Ex.D.1 Partition.
On perusal of Ex.P.3=Ex.D.1, it can be seen that, neither the Plaintiff is the party to the said document nor she has affixed her signature to the said document, as the witness or as the consenting witness to the said transaction, under it.
37.3. Even this aspect can be seen in the ocular evidence, more specifically, cross examination of DW.1, at Page No.19, at Para No.3, which reads as under:
54 OS No. 25048/2013"It is false to suggest that without obtaining the signature of Vasanth T.C - Plaintiff to the Partition Deed Ex.P3=Ex.D1, we have got created the same."
As per this evidence, DW.1 denies the suggestion that, Partition under Ex.P3=Ex.D.1 is got created, without obtaining the signature of the Plaintiff to it.
38. When it remains an admitted fact that, the Suit Schedule Property has flown from T. Nagalingam Pillai to T.N. Cheluvaraj Pillai and T.N. Rajarathnam Pillai and when the Plaintiff has shown that, she is known and has been broughtup, as the daughter of T.N. Cheluvaraj Pillai, then she will be entitle for the rights in the said property. And any document created excluding her, muchtheless the Partition Deed dtd.04.03.1998Ex.P.3=Ex.D.1, such document will not bind her.
55 OS No. 25048/201339. Thus, the Plaintiff has shown that, she is the daughter of T.N. Cheluvaraj Pillai and she will succeed the said property jointly with the Defendants; the Partition Deed dtd.04.03.1998 is not binding on her. Hence, I answer ISSUE NO.1 IN THE AFFIRMATIVE; ISSUE NO.3 IN THE AFFIRMATIVE; AND ISSUE NO.7 IN THE NEGATIVE.
40. ISSUE NO.4: The Plaintiff has claimed mesne profits in the Suit Schedule Property.
40.1. The Plaintiff has not produced any documents to show that, either the said property is fetching the income or the Defendants are receiving income, out of the said properties.
40.2. Coming to the Ocular evidence, more specifically, cross examination of DW1, at Page No.19, Para No.2 which reads as under: 56 OS No. 25048/2013 "I do not know whether the value of the Schedule "B' Property under Ex.P3 = Ex.D1 was valuing to the tune of Rs.50,80,000/ on the day of execution of Ex.P3=Ex.D1. As on the date of allotment of Schedule "B" Property to the share of my husband and my motherinlaw, the said property was consisting of 3 shops. It is true to suggest that the said 3 shops were given on rent for Rs.50/ per month, per shop. The said shops were given on rent till 02.07.2010. I do not know as to what is the quantum of rent received by my motherinlaw from the said shops. It is false to suggest that my motherinlaw from the said shops. It is false to suggest that my motherinlaw was not receiving the said rent, but it was received by me and my husband Anandkumar T.C."
As per this evidence, Defendant NO.1/DW1 admits that, the Suit Schedule Property consist of 3 shops and they were given on rent, at the rate of Rs.50/ per month per shop, till 02.07.2010. Further, she pleads her ignorance as to the quantum of rent received by her motherinlaw from the said shop and 57 OS No. 25048/2013 denies that, the said rent was received by her and her husband Anandkumar. T.C. 40.3. So, in the absence of any evidence, mesne profits cannot be granted as prayed for by the Plaintiff.
Even, the issue with regard to mesne profits cannot be kept open for its adjudication in the final decree proceedings.
Firstly, no any material is brought on record by the Plaintiff, with regard to either the actual profits received or might with ordinary diligence have received, by the Defendants;
Secondly, the Plaintiff has failed to show that, the Defendants are in wrongful possession of the Suit Schedule Property, as required U/Sec.2(12) of C.P.C;
Thirdly, when the Plaintiff contends that, the Defendants are also entitle for the share, then under such circumstances, she will not be entitled to receive mesne profits.
58 OS No. 25048/2013 Hence, I answer ISSUE NO.4, IN THE
NEGATIVE.
41. ISSUE NO.5:
The Defendants contend that, they are in exclusive possession of the Suit Schedule Property and the Plaintiff is not in possession of the Suit Schedule Property, so the Plaintiff has to value the suit and pay the Court fees U/Sec 35(1) of the Karnataka Court Fees and Suit Valuation Act, 1958.
41.1. When the Plaintiff has shown that, the Suit Schedule Property has flown to her father T.N.Cheluvaraj, and he has died intestate, leaving behind him the Plaintiff and T.C.Anandkumar as the ClassI heirs. So the Plaintiff has shown that, she is having right title and interest along with her brother. Inotherwords, the Plaintiff has shown that, she is one of the coowner of the Suit Schedule Property, left by T.N.Cheluvaraj Pillai.
59 OS No. 25048/201341.2. It is the trite principle of law that, "possession of one of the coowner, is deemed to be the possession of, all the coowners". So possession of the defendants will be deemed to be the possession of the Plaintiff, as the Plaintiff will become the tenantin common with the Defendants.
41.3. Under such circumstances, the Plaintiff need not claim possession and value the Suit Schedule Property U/Sec.35(1) of the Karnataka Court Fees and Suit Valuation Act, 1958. I find force to my above view, as per the principles of law laid down by the Hon'ble High Court of Karnataka in case of T.K.Srinivasa Murthy and Others v/s. T.Seetharamaiah and others, reported in A.I.R.1990 Karnataka 149, wherein it is held that, "Possession of Properties movable or immovable by one of the owners, whether it be a member of the undivided Joint Hindu Family or a Joint 60 OS No. 25048/2013 Family or as tenants in common, such possession, is possession of all the sharers and the plaintiffs who are the sharers, need not claim possession and value the Suit U/Sec.35(1) of the Karnataka Court Fees and Suit Valuation Act, 1958. "
41.4. Rightly, the Plaintiff has valued the Suit and has paid the Court Fees U/Sec 35(1) of the Karnataka Court Fees and Suit Valuation Act, 1958. Thus, I do not find any force in the submission of learned counsel for the Defendants to contend that the Plaintiff has not properly valued the suit and has paid insufficient Court Fee. Hence, I answer ISSUE NO.5 IN THE NEGATIVE.
42. ISSUE NO.6: The Defendants contend that, the present suit filed by the Plaintiff is barred by law of limitation. The learned counsel for the Defendants would contend that, partition has taken place in between T.N.Rajarathnam Pillai on onehand and Kamala Cheluvaraj Pillai and 61 OS No. 25048/2013 T.C.Anandkumar, on the otherhand, on 04.03.1998. So as per article 110 of the Limitation Act, 1963, when the Plaintiff is claiming her exclusion from the family property, then she has to file the suit within 12 years from 04.03.1998, which will end on 03.03.2000, but the present suit is filed on 09.01.2013, after an yawning period of two years, 3 months.
42.1. Article 110 of the Limitation Act, 1963 reads as under: Article Description of suit Period of Time from which Limitation period begins to run 110 By a person excluded from a Twelve years When the joint family property to exclusion becomes enforce a right to share known to the therein. Plaintiff.
As per Article 110, time for limitation is to be reckoned from the date, when it has come to the Knowledge of the Plaintiff, about his/or her exclusion.
42.2. Applying the above, principles of law to the instant case on hand, on considering the 62 OS No. 25048/2013 contentions of the Plaintiff, more specifically, Para Nos.4 and 8 of the Suit Plaint, we are asked to believe that, the Plaintiff has received the knowledge of her exclusion, during the month of July 2012 and September 2012, respectively.
42.3. The Defendants have not brought any materials on record, either by way of oral evidence or by way of Documentary evidence to show that, Plaintiff was having the knowledge of the Partition, taken place under the Partition Deed dated 04.03.1998, either on the said date or subsequent to it, but prior to the events mentioned by her in Para Nos.4 and 8 of the Suit Plaint.
43. In the absence of any cogent evidence, the dates mentioned by the Plaintiff about her knowledge in the plaint, is to be considered. On considering the said dates, the suit filed by the Plaintiff will not be hit by Article 110 of the Limitation Act, 1963, inorder to say that, the present suit filed by the Plaintiff is barred by law of Limitation. Thus, the Defendants have failed to 63 OS No. 25048/2013 prove that the suit filed by the Plaintiffs for the relief of partition is barred by law of Limitation, muchtheless under Article 110 of the Limitation Act,1963. Hence, I am constrained to answer ISSUE NO.6 IN THE NEGATIVE.
44. ISSUE NO.8: The Defendants contend that, when the Plaintiff has filed the suit for partition against them, she should have brought her children and the children of T.N.Rajarathnam Pillai, as shown by her in the Genealogical tree at Ex.P1 on record, as parties to the suit. Inview of nonjoinder of such necessary parties, the suit of the Plaintiff is bad, in Law.
44.1. The present suit is filed by the Plaintiff, only inrespectof the property bearing Municipal No.2 (Old No.8), Sundar Mudaliar Street, Ulsoor, Bangalore.
44.2. The Plaintiff contends that, she has to succeed the Suit Schedule Property along with her 64 OS No. 25048/2013 brother, on the death of her father T.N.Cheluvaraj Pillai. In such circumstances, when the Plaintiff is the ClassI heir of T.N.Cheluvaraj Pillai, as per Sections 8, 9 and 10 of the Hindu Succession Act, 1956, Plaintiff is to be preferred then that, of her Children, when she is alive. Hence, the children of the Plaintiff, will not become the necessary party to this suit, when the Plaintiff herself is alive and party to the suit.
44.3. On careful perusal of the Suit Plaint, more specifically, Para No.9, wherein the Plaintiff has specifically contended that, she is not claiming any share in the Schedule 'A' property shown under the Partition deed dated 04.03.1998 - Ex.P3=Ex.D1. When such is the case, then either T.N.Rajarathnam Pillai or his heirs will not become the necessary party to this suit, as neither they are having any rights inrespect of the present Suit Schedule Property, which was shown as Schedule 'B' property under the Partition Deed dated 04.03.1998, nor the rights of those persons 65 OS No. 25048/2013 will be affected or adjudication, under this lis, as T.N.Rajarathnam Pillai, had affected partition and had received the properties shown as Schedule 'A' properties under the Partition Deed dated 04.03.1998. The said properties are not the subject matter, under this suit. Hence, neither T.N.Rajarathnam Pillai, nor his children will be either necessary parties or proper parties, to this suit.
Thus, the suit of the Plaintiff cannot be held to be bad, for nonjoinder of necessary parties, as contended by the Defendants.
45. The Defendants have produced certified copy of the Suit Plaint filed in O.S.No.25068/2014 at Ex.D.11 and the Written Statement filed by the present Defendants in O.S.No.25068/2014 at Ex.D.12. On careful perusal of this document, it is seen that the suit O.S.No.25068/2014 is filed by the present Plaintiff against the Defendants and others inrespect of vacant land bearing No.25, situate at Stephen's Road, Frazer 66 OS No. 25048/2013 Town, Bengaluru, for the relief of Partition. The said property is not the subject matter of this suit.
46. Further the Defendants have not contended in their Written Statement that, the suit of the Plaintiff is bad for not bringing all the properties on hotchpot. In the absence of such contentions coupled with sufficient cogent documentary evidence, the suit of the Plaintiff cannot be held to be bad, for nonbringing all the properties on the hotchpot.
47. Thus, I do not find any force in the submission of the learned counsel for the Defendants that, either the suit of the Plaintiff is bad for nonjoinder of necessary parties or the suit of the Plaintiff is bad for not bringing all the properties on the hotchpot. Hence, I am constrained to answer ISSUE NO.8 IN THE NEGATIVE.
67 OS No. 25048/201348. ISSUE NO.2: The Defendants contend that, there was a Partition inbetween Kamala Cheluvaraj Pillai and T.C. Anandkumar, as per Ex.D.2, wherein Kamala Cheluvaraj Pillai received three shops and T.C. Anandkumar received residential house, under it. Further during the lifetime of Kamala Cheluvaraju, she by executing a Will on 03.05.2008, has bequeathed her sharethe property received by her, under Partition dated 03.05.2000, in favour of her son T.C.Anandkumarthe husband of Defendant No.1 and the father of Defendant Nos.2 and 3.
The Defendants have not produced the Will dated 03.05.2008, said to have been executed by Kamala Cheluvaraj, in this case. Under such circumstances, it is very difficult to believe the contentions raised by the Defendants.
68 OS No. 25048/201349. When the Plaintiff has shown that, she was broughtup, educated and got married, as the daughter of T.N.Cheluvaraj Pillai and Kamala Cheluvaraj, then she will be entitled for the share in the property/Estate left by T.N.Cheluvaraj Pillai and Kamala Cheluvaraj.
50. The Plaintiff contends that, the Suit Schedule Property originally belongs to T.Nagalingam Pillai and on the basis to testamentary succession, by virtue of Will dated 09.04.1923, her father T.N.Cheluvaraj Pillai has received the same. Even the Defendants contend so. When it is an admitted fact from both the parties that, T.N. Cheluvaraj Pillai and T.N.Rajarathnam Pillai jointly succeeded the Suit Schedule Property on the basis of a testamentWill dated 09.04.1923, then the said properties, will become the joint properties of T.N.Cheluvaraj Pillai and T.N.Rajarathnam.
51. Further, it is contended by the Plaintiff that, her father T.N.Cheluvaraj Pillai died on 27.04.1991, 69 OS No. 25048/2013 leaving behind him, his wife Kamala Cheluvaraj; his son T.C.Anandkumar; and his daughterthe Plaintiff.
52. Under such circumstances, as per Section 8 of the Hindu Succession Act 1956, on the death of T.N.Cheluvaraj Pillai, Kamala Cheluvaraj will be entitle to have 1/3rd share; T.C.Anandkumar will be entitle to have 1/3rd share; and the Plaintiff will be entitle to have 1/3rd share. When the Defendants have failed to produce and prove the Will, said to have been executed by Kamala Cheluvaraj, then on the death of Kamala Cheluvaraj, T.C.Anandkumar will be entitle to ½ share and the Plaintiff will be entitled to ½ share, in the properties left by both T.C. Cheluvaraj Pillai and Kamala Cheluvaraj Pillai.
53. The Defendants have produced certified copy of the Judgment passed in O.S.No.6877/2007, at Ex.D.13. As per this document, it is seen that, the present Defendants being the heirs of Dr. 70 OS No. 25048/2013 T.Anandkumar have continued the suit, filed by him for the relief of ejectment against M/s. Coats and Crafts and Another, inrespect of the present Suit Schedule Properties.
53.1 The Defendants have also produced the certified copy of the Judgment of the Compromise petition; Ordersheet; and compromise Decree passed in O.S.No.4957/2008, at Ex.D.14 to Ex.D.16, respectively. As per this document, it is seen that, Kamala Cheluvraj had filed a suit for ejectment against Ismail Baig. Dr. T.C. Anandkumar, has come on record as the legal heir of Kamala Cheluvraj. The present Defendant No.1 being the Power of Attorney holder of T.C. Anandkumar has entered into a settlement U/Sec. 89 and on the said basis, compromise Decree is passed, directing the Defendant to vacate and hand over the possession of portion of the present Suit Schedule Property to the Plaintiff, therein on or before 30.06.2010.
71 OS No. 25048/201353.2. As per the decision of the Hon'ble High Court of Karnataka, in the case of Bheemanagowda (Dead) by Lrs., V/s Syed Murtuzakhadri Sujjadanasheen and Another, reported in 1995 (4) KLJ 399; wherein it is held that;
"Suit by one coowner is maintainable for recovery of Possession of property against the stranger. Decree would enure to all the coowners. Co owner has right, title and interest in every part and parcel of joint property. Coowner cannot be treated as part owner. Coowner becomes partowner only on Partition and Division by metes and bounds".
53.3. Further as per the decision of the Hon'ble Apex Court in the case of Mohinder Prasad Jain V/s Manoharlal Jain, reported in AIR 2006 SC 1471; wherein it is held in Para No.11 that;
"A suit filed by coowner, thus, is maintainable in law. It is not necessary for the coowner to show before initiating the eviction proceedings that he had 72 OS No. 25048/2013 taken option or consent of the other co owners".
Applying the above principles of law as well as placing the reliance on the decision of the Hon'ble Apex Court in the case of A. Viswanatha Pillai & Others V/s Spl. Tahasildar for Land Acquisition No.IV & Others reported in AIR 1991 SC 1966, wherein it is held that;
"It is settled law that, one of the co owners can file a suit and recover the property against the strangers and the Decree would ensure to all the co owners. It is equally settled law that, no coowner has definite right, title and interest in any particular item or a portion thereof. On the other hand, he has right, title and interest in every part and parcel of the joint property".
54.4. As well as placing the reliance on the decision of the Hon'ble Apex Court, in the case of Sri. Ram Pasrich V/s Jagannath & Others, reported in AIR 1976 SC 2335; as well as in the case of Pal Singh V/s Sunder Singh (Dead) By Lrs., 73 OS No. 25048/2013 & Others; reported in AIR 1989 SC 758; wherein it is held that;
"A coowner is as much an owner of the entire property as a sole owner of the property. He owns several parts of the composite property alongwith others and he cannot be said that he is only a part owner or a fractional owners in the property. Dispossession will undergo a change only when Partition takes place and division was effected by metes and bounds".
By applying the above principles of law to the instant case at hand, it can be said that, though the Defendants have recovered the Possession of the portion of the Suit Schedule Properties, through various litigations, such recovery of Possession will enure to all the heirs of T.N. Cheluvaraj Pillai and Kamala Cheluvaraj. Thus, the contention taken up by the Defendants that, they being the heirs of T.N. Cheluvaraj and Kamala Cheluvaraj have recovered the Possession of the portions of the Suit Schedule Property from the 74 OS No. 25048/2013 tenants therein, wherein the Plaintiff has failed to participate, in it.
Such contentions of the Defendants will not take away the rights of the Plaintiff, to claim share in the Suit Schedule Properties.
Thus, viewing the matter from every angle, it can be concluded that, the Plaintiff will be entitle to have ½ share in the Suit Schedule Property. Hence, I answer ISSUE NO.2, IN THE AFFIRMATIVE.
55. ISSUE NO.9: Since the Plaintiff has proved her relationship with that of T.N.Cheluvaraj Pillai and Kamala Cheluvaraj, as their daughter, which was denied by the Defendants; and further proved that, she is entitle to have ½ share in the Suit Schedule Property. So, I proceed to pass the following:
75 OS No. 25048/2013ORDER The suit of the Plaintiff is Decreed, in Part.
It is declared that the Plaintiff is entitle to have ½ share in the Suit Schedule Property and the Defendants being the heirs of T.C.Anandkumar, jointly are entitle to have ½ share in the Suit Schedule Property.
It is declared that the Registered Partition Deed dtd.04.03.1998 Ex.P.3=Ex.D.1, is not binding the share of the Plaintiff, in the Suit Schedule Property.
Relief of Mesne Profit is Rejected.76 OS No. 25048/2013
Partition be affected, as per the
Partition Act.
Looking to the pecuniary facts and
circumstances of the case, parties to bear their own costs.
Draw Preliminary Decree accordingly.
---
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 21st day of December, 2020) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 77 OS No. 25048/2013 :Schedule Property:
All the piece and parcel of the immovable property comprising total sital area measuring North to South on East side 15.9 feet and North to South on West side 36'+12'4", East to West on North side 74'2" AND East to West On South 74'2" totally measuring 3327.31 Sq.ft feet consisting three shop premises bearing Municipal No.2(Old No.8), Sundara Mudaliar Street, Ulsoor, Bengaluru560 008 bounded on: East by: Sundara Mudaliar Street;
West by: Anjenaya Temple Street;
North by: Private property No.3, Sundara
Mudaliar Street;
South by: Private Property No.1, Sundara
Mudaliar Street.
[AbdulRahiman. A.Nandgadi]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH73)
78 OS No. 25048/2013
ANNEXURES:
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1: Smt. Vasantha.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P1: Genealogical (Family) Tree. Ex.P2: Death Certificate of Plaintiff's father. Ex.P3: Certified copy of Partition deed dt.04.03.1998 Ex.P4 : Death Certificate of Plaintiff's mother. Ex.P5: Khatha certificate. Ex.P6: Khatha extract.
Ex.P7: Encumbrance Certificate. Ex.P8: Invitation card of Plaintiff. Ex.P9: Letter dt.28.08.2013 issued by Principal of Sacred Heart Girl's School, Museum Road, Bengaluru25. Ex.P10 &11: Photographs. (On confrontation to DW.1) LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1: Mrs. Karpagam Anand Kumar.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D1: Certified copy of Partition deed dt.04.03.1998. Ex.D2: Certified copy of Partition Deed. dt.03.05.2000. Ex.D3 & 4: Two Property tax extracts. Ex.D5: Khatha Extract.79 OS No. 25048/2013
Ex.D6: Khatha Certificate. Ex.D7 & 8: Two Encumbrance Certificates. Ex.D9 : Death Certificate of Kamalamma. Ex.D10: Death Certificate of Prof. Dr.Ananthakumar T.C. Ex.D11 & D.12: Certified copy of Suit Plaint, Written Statement in O.S.No.25068/2014. Ex.D13: Certified copy of Judgment in O.S.No.6877/2007.
Ex.D.14 to Ex.D.16: Certified copy of memorandum of settlement, entire order sheet and decree passed in O.S.No.4957/2008, respectively. Ex.D.17: Receipt issued by BBMP authorities. Ex.D.18: Copy of the English daily newspaper "Deccan Hearld" dt.28.04.1991.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)