Bangalore District Court
Ms. Chitralekha vs Bernard Vikram Thumboo Chetty on 10 November, 2021
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O S No.8861/2017
KABC010311052017
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY : (CCH-18)
::Present::
Sri. Dinesh Hegde, B.A., LL.B.,
XIX Addl. City Civil & Sessions Judge,
Bengaluru City.
Dated this the 10th day of November, 2021.
O S No.8861/2017
PLAINTIFFS :: 1. Ms. Chitralekha
Thumboo Chetty, D/o. Late.
Francis Thumboo Chetty, Aged
about 73 years, Residing at No.17,
Promenade Road, Bangalore-05
Represented by her guardian Mr.
John Ravi Thumboo Chetty, the
plaintiff No.2 herein, her guardian
appointed under the Mental
Health Act.
2. John Ravikanth Thumboo
Chetty S/o. Late. Francis Thumboo
Chetty, Aged about 69 years,
Residing at No.17, Promenade
Road, Bangalore-560 005
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O S No.8861/2017
3. Smt. Mary Geetanjali Thumboo
Chetty, since deceased by her LRs
3(i) Arvind Thomas S/o. Joseph
Thomas, Aged 41 years, Residing
at No.16/4, Beale Street,
Liverpool, 2179, New South Wales,
Australia.
3(ii) Sunil Thomas S/o. Joseph
Thomas, Aged 38 years, Residing
at House No.27A, Street 59,
District 2, Thao Dien Ho Chi Minh
City, Vietnam-700 000
(By Sri. Ashok B. Patil, Advocate)
V/s.
DEFENDANT :: Bernard Vikram Thumboo Chetty,
S/o. Late. Francis Thumboochetty,
Aged 64 years, Residing at
No.16/1, Promenade Road, Frazer
Town, Bangalore-560 006
(By Sri. K.A.M., Advocate)
Date of Institution of the Suit :: 16-12-2017
Nature of the Suit :: Partition
Date of commencement of
recording of evidence :: 06-03-2019
Date on which the Judgment
was pronounced. :: 10-11-2021
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O S No.8861/2017
Year/s Month/s Day/s
Total Duration :: 03 10 23
(Dinesh Hegde),
XIX Addl. City Civil & Sessions Judge,
Bengaluru City.
JUDGEMENT
The plaintiffs have filed this suit for Partition and separate possession allotting 1/4th share to each of the plaintiffs in the suit schedule properties by dividing the suit schedule properties by metes and bounds as shown in the sketch.
2. The facts of the case in nutshell:-
The 1st plaintiff is represented by her guardian Mr.John Ravi Thumboo Chetty, the plaintiff No.2, as her guardian appointed under the Mental Health Act, vide order dated 15-04-1998. The plaintiff No.3 is represented by her GPA holder Mr. John Ravikant Thumboo Chetty, the plaintiff No.2.4
O S No.8861/2017
3. The 1st and 3rd plaintiffs are the sisters and 2nd plaintiff is brother of the defendant. The plaintiffs and the defendant are the children of late Mr. Francis Thamboo Chetty and late Mrs. Philomena Thumboo Chetty. The suit schedule property was jointly purchased by Mrs. Gertrude Thumboo Chetty and her daughter Mrs. Philomena Thumboo Chetty, the mother of the plaintiffs and the defendant under the Sale Deed dated 18-03-1940 from the erstwhile Bangalore Bank Limited represented by the Official Liquidator.
4. Under a Deed of Settlement dated 30-03-1954, Mrs. Gertrude Thamboo Chetty settled her half share in the suit schedule property in favour of her daughter Mrs. Philomena Thamboo Chetty. Under the deed of settlement dated 01-02-1968, Mrs. Philomena Thumboo Chetty appointed her husband Mr. Francis Thumboo Chetty as the trustee 5 O S No.8861/2017 for the benefit of the plaintiffs and the defendant. The suit schedule properties were numbered as 12 & 12/A, Mahatma Gandhi Road, Civil Station, Bangalore. The properties were settled for the benefit of the plaintiffs and the defendant, for their education and maintenance. The father of the parties, who was appointed as the trustee was given the authority to lease the said properties to any person of his choice and he was given the right to raise loans on the security of the said properties for the purpose of altering, adding or improving the said properties.
5. The trustee was also authorised to come to any arrangement with the lessee permitting the lessee to improve or alter the existing properties and to construct additional buildings on the grounds of the said properties. The trustee was given authority to collect the rents etc., and such other 6 O S No.8861/2017 income realised from the trust properties. It is provided that, after deduction of all the costs and expenses incurred by the trustee in connection with the trust, the remainder be divided into four equal portions, which shall be credited to the account of the four beneficiaries and the said amounts be used by the trustee exclusively for the maintenance and education of the respective beneficiaries namely, the plaintiffs and defendant.
6. As per clause 8 of the Deed of Settlement dated 01-02-1968, each of the beneficiaries namely, the plaintiffs and the defendant are entitled to 1/4th of properties of the trust and the income.
7. As per clause 9 of the Deed of Settlement dated 01-02-1968, the 1st plaintiff has given life interest in the suit schedule properties, due to her incapacity to look after herself and after her lifetime, the Trustee was directed to make over her 1/4th 7 O S No.8861/2017 share along with any accumulated profits thereon equally to three remaining beneficiaries namely, the plaintiffs No.2 & 3 and the defendant.
8. In pursuance of the aforementioned Settlement Deed, the Trustee Mr. Francis Thumboo Chetty and the 2nd plaintiff executed a Lease Deed dated 03-07-1969 in favour of M/s. DNL Enterprises, a partnership firm, for a period of 32 years, commencing from 14-03-1968. The said Lease Deed was registered. In the said Lease Deed, the Lessee was authorised to demolish the existing structures and build shops, with authority to sub- lease. However, the lessee alone was directly answerable to the lessors. Further, it was provided that, the duration of the sub-lease should be commensurate with the period of 32 years from 14-03-1968, the intention being the principal lease and the sub-leases should come to an end on 8 O S No.8861/2017 13-03-2000. The khatha of the suit schedule properties is jointly in the names of the plaintiffs and defendant.
9. On the expiry of the lease period on 13-03-2000, notice was issued to the principal lessee to vacate and handover the entire suit schedule property to the plaintiffs and the defendant. The said principal lessee having not complied with the notice, a suit for possession was filed against the principal lessee in O S No.1848/2000. The said suit was decreed by judgment and decree dated 27-03-2008. The Regular First Appeals filed by the Principal Lessee and the State Bank of Mysore, in RFA No.596/2008 and RFA No.1308/2008 one of the Sub-lessees was dismissed by the Hon'ble High Court by judgment and decree dated 28-06-2013. One of the sub- lessees Mr. Chandar.S filed a petition for special 9 O S No.8861/2017 leave before the Hon'ble Supreme Court, which was dismissed as withdrawn on 21-10-2013.
10. After the above proceedings attained finality, Execution No.142/2014 was filed before the Court of City Civil Judge, Bangalore for execution of the decree for possession of the suit schedule properties. The principal lessee delivered possession of the units in its possession on 07-03-2014, as per the affidavit dated 07-03-2014.
11. Some of the sub-lessees filed application under Order XXI Rule 97 CPC in Ex.Case No.142/2014 claiming independent right to possession of their respective units in the suit schedule properties by virtue of the lease deeds executed by the principal lessee in their favour. The said applications were dismissed by the Execution Court. The Regular First Appeals filed by the sub- lessees were also dismissed. Three of the sub- 10
O S No.8861/2017 lessees namely, Chandar.S, Suresh Chandra and Blue Fox had approached the Hon'ble Supreme Court against the judgment of the Hon'ble High Court dismissing the Review Petition filed by them, confirming its earlier judgment of dismissal of the Regular First Appeal. The said three sub-lessees are granted time to vacate their respective units on the suit schedule property by 05-10-2018. Some of the sub-lessees have filed affidavit of undertaking to vacate and deliver vacant possession of their respective units on or before 31-01-2018. The Execution Court has issued delivery warrant against the other sub-lessees returnable by 03-02-2018.
12. The plaintiffs and the defendant are in constructive joint possession of the suit schedule properties, notwithstanding the aforementioned lease and the sub-leases and the various legal proceedings against the principal lessee and the 11 O S No.8861/2017 sub-lessees referred to above. Further, the plaintiffs have all along been contributing 3/4th share of the expenses of litigation throughout, as and when the defendant demanded from the plaintiffs. Every such payment is borne out and supported by documents. The property tax for the ground of the suit schedule properties is also required to be shared by the plaintiffs and defendant. But the defendant has not been contributing his 1/4th share of the property tax for the ground of the suit schedule properties from the year 2000-01 to 2017-18, even though the plaintiffs have sent several legal notices to the defendant.
13. The attitude and the conduct of the defendant has been hostile towards the plaintiffs, which is clear from certain untenable legal proceedings initiated by the defendant against the plaintiffs in respect of certain other properties, 12 O S No.8861/2017 which were bequeathed by the mother of the plaintiffs and the defendant under a Will and two Codicils, wherein the competent Court had granted probate according to law and also in respect of the property of the father, which was bequeathed in favour of the 3rd plaintiff and probate was granted by the Hon'ble High Court in respect of the Will made by the father.
14. In the letters of the defendant dated 01-02-2014, 07-05-2016 and 27-07-2017, the defendant has made false allegations using vituperative words against the plaintiffs, which is unbecoming of the character and conduct of the defendant making it impossible for the plaintiffs to carry on jointly with him in the suit schedule properties.
15. The principal tenant in the suit schedule properties and some sub-tenants namely, the State 13 O S No.8861/2017 Bank of Mysore, the Jungle Resorts managed by the State Tourism Department vacated their respective units and handed over possession to the defendant. The defendant has put locks on such units. On coming to know of the said development, the plaintiffs caused a legal notice to the defendant dated 23-07-2015, inter alia calling upon him to handover to them one set of keys in respect of such of the units, delivery of which is taken by the defendant in pursuance of the eviction decree and kept under lock by him. However, the defendant has not favourably responded to the reasonable request made by the plaintiffs. On the other hand, the defendant has been continuously claiming the litigation expenditure to the extent of 3/4th amount as and when the lawyers claimed their fees.
16. The defendant is projecting to the members of the public that he is the sole owner of 14 O S No.8861/2017 the suit schedule properties, which is detrimental tot he right, title and interest of the plaintiffs in the suit schedule properties. Therefore, in the present suit they are seeking partition and separate possession of their respective 1/4th share in the suit schedule properties.
17. On the western side of the suit schedule property, the defendant has property earing No.82, M.G.Road. With a view to facilitate optimum advantage to the defendant, his 1/4th share in the suit schedule properties is identified on the western side of the suit schedule properties in the sketch. The said portion is marked in horizontal parallel lines and the area of the said share with the name of the defendant is identified in the sketch. As per the terms of the Settlement Deed dated 01-02-1968, the 1/4th share of the 1st plaintiff is to be equally shared by plaintiffs No. 2, 3 and the defendant after her life 15 O S No.8861/2017 time. To facilitate the division at the appropriate time, the 1/4th share of the 1st plaintiff is identified in the sketch as the eastern boundary/side of the share of the defendant, which is also identified by the name of the 1st plaintiff. The 1/4th share of the 3rd plaintiff is identified on the eastern side of that of the 1st plaintiff and it is also identified by the name of the 3rd plaintiff. The 1/4th share of the 2 nd plaintiff is on the eastern side of the suit schedule properties, which is identified by the slanting parallel lines and also by his name. It is submitted that the four shares are divided in such a way that every sharer gets equal extent of frontage on Mahatma Gandhi Road and equal area in the suit schedule properties.
18. Only with a view to facilitate convenient method of division of the property, the sketch referred to above is got prepared by the plaintiffs. It 16 O S No.8861/2017 would also avoid the final decree proceedings and this court is competent to pass the judgment and decree of partition by metes and bounds as shown in the sketch. If the division of the property as indicated in the sketch is accepted and adopted, none of the parties will be put to any kind of prejudice. Hence the present suit for partition and separate possession of the respective 1/4th share in the suit schedule properties as indicated in the sketch. Hence, the plaintiffs prayed to pass a judgment and decree of partition and separate possession allotting 1/4th share to each of the plaintiffs in the suit schedule properties by dividing the suit schedule properties by metes and bounds as per the sketch produced by the plaintiffs.
19. After service of suit summons, the defendant appeared through his counsel and filed written statement by admitting the relationship of 17 O S No.8861/2017 the parties and the manner of acquisition of the schedule property.
20. It is admitted that on 01-02-1968 the mother of the plaintiffs and the defendant executed a settlement deed in respect of the schedule property, which constitutes the plaintiffs and defendant title to the property and admitted the contents of the said settlement deed.
21. It is denied that as per clause 8 of the deed of settlement dated 01-02-1968 each of the beneficiaries are entitled to 1/4th share of the properties of Trust and the income. Clause 8 of the Settlement Deed dated 01-02-1968 provides as follows;
"8. As and when the second, third and fourth beneficiaries above named attained the age of 18 years, the Trustee shall make over to the said beneficiaries a fourth of the properties belonging to the Trust along with 18 O S No.8861/2017 the balance of the profits and income at the credit of the said beneficiary's account."
22. Reading of the said clause along with clause 9 of the said Deed would clearly establish that it was the intention of the mother of the plaintiffs and defendant to divide the suit schedule property amongst the plaintiff No.2, plaintiff No.3 and the defendant. Plaintiff No.1 was only entitled to a life interest and upon her death her share would be divided equally amongst the plaintiff No.2 & 3 and defendant. The contention of the plaintiffs that the plaintiffs and defendants are entitled to 1/4th share is false and baseless.
23. The defendant admitted that the plaintiff No.1 was given a life interest in 1/4th portion of the suit schedule property, which would revert back to the plaintiffs No.2 & 3 and the defendant. As per clause 9 of the Deed of Settlement, upon the death 19 O S No.8861/2017 of plaintiff No.1 herein, apart from her share in the suit schedule property, the profits accumulated on her share will be divided equally among the plaintiff No.2, plaintiff No.3 and the defendant. This responsibility was cast upon the father of the plaintiffs as a Trustee under the Deed of Settlement. The plaintiff No.2 has upon the death of their father applied and obtained an order from this Court to be appointed as the Guardian of the plaintiff No.1. The plaintiff No.2 will have to provide for proper statement of accounts pertaining to the share of the profits and expenses incurred by the plaintiff No.1 during her lifetime to the remaining parties to the present suit.
24. It is admitted that the plaintiffs and defendant are in constructive joint possession of the suit schedule properties. Further they have all along been contributing 3/4th share of their 20 O S No.8861/2017 litigation expenses. That is because, the plaintiffs had entrusted the defendant with the task of engaging advocates, drafting of leadings, leading of evidence and overseeing all court cases pertaining to the suit schedule properties. The defendant has diligently prosecuted the cases pertaining to the suit schedule property, which has inured to the benefit of the plaintiffs.. Further, it was agreed that as the plaintiffs and defendant had an interest in the suit schedule property, the expenses for the litigation against the Lessee and Sub-Lessee of the suit schedule property would be borne equally amongst the plaintiffs and defendant. Hence, the plaintiffs have only partly contributed their share of the legal expenses with regard to the litigations fought in respect of the suit schedule property.
25. It is denied that the defendant has not contributed his 1/4th share in the taxes to be paid in 21 O S No.8861/2017 respect of the suit schedule properties. The defendant in order to protect the estate of the plaintiffs No.2, 3 and the defendant, engaged the services of lawyers in the Hon'ble Supreme Court. He has spent Lakhs of rupees for the purpose of prosecuting cases before this Court, Hon'ble High Court and the Hon'ble Supreme Court. The defendant had requested the plaintiffs to offset these expenses incurred by him with the taxes, but the plaintiffs have outright refused the same.
26. The letters addressed by the defendant to the plaintiffs, the defendant has simply brought it to the knowledge of the plaintiffs that they have not yet come to terms with the complexity of the case in regard to the suit schedule property, there is an inordinate delay in clearing their share of the outstanding legal fees, the claim of outstanding taxes by BBMP in respect of the suit schedule 22 O S No.8861/2017 property amount to Rs.25,00,000/-, encroachment by plaintiff No.2 on the suit schedule property and of the outstanding bills of BESCOM in regard to the units held by the tenants in the suit schedule property.
27. It is stated that the defendant has never represented to any member of the public that he is the sole and absolute owner of the suit schedule property. The defendant has admitted that the property bearing No.82, which lies on the western side of the suit schedule property belongs to him. However, he does not accept the sketch prepared by the plaintiffs contemplating the allotment of shares of the plaintiffs and the defendants in the suit schedule property. The sketch prepared by the plaintiffs is contrary to the facts and circumstances in reality and it will not result in optimum utilisation of the shares for better development of the suit 23 O S No.8861/2017 schedule property.
28. It is also admitted that, the Family Settlement Deed dated 01-02-1968 provides that 1 st plaintiff during her lifetime will enjoy 1/4th share in the suit schedule property, which will revert back to the remaining plaintiffs and the defendant on her death. However, it is the contention of the defendant that the suit schedule property cannot be partitioned during the lifetime of the 1 st plaintiff, as only a minor right to enjoy the usu-fruits from the suit schedule property during her lifetime was created in her favour by virtue of the Family Settlement Deed dated 01-02-1968 and the major right, title and interest was bestowed upon the other plaintiffs and the defendant in a manner of revisionary interest. Hence, the prayer sought by the plaintiffs for partition of the suit schedule property by allotting 1/4th share to each of plaintiffs 24 O S No.8861/2017 is not maintainable. This court in the present proceedings can only pass a judgment and decree declaring whether or not the plaintiffs are entitled to a relief of partition.
29. As per the terms of the Family Settlement dated 01-02-1968, it was the wish of the Settlor and her husband and father of the plaintiffs and defendant that a "Life Interest" would be created in the suit schedule property to an extent of 1/4th share in favour of the 1st plaintiff, the usu-fruits of which would be utilised for her welfare and upon her death this share would devolve upon the remaining plaintiffs and defendant. Hence the contention of the plaintiffs that they are entitled to 1/4th share each in the suit schedule property is denied as false and baseless.
30. The defendant is not bound by any sketch prepared by the plaintiffs whether it was prepared 25 O S No.8861/2017 for a smooth facilitation of the division of the suit schedule property or not. The sketch prepared by the plaintiffs was in the absence of the defendant and without his knowledge and hence, it is not binding on him. Hence, he prays for dismissal of the suit by imposing exemplary costs.
31. Based on the above pleadings, the following issues (Issues were recasted on 21-02-2019) were framed.
1. Whether the plaintiffs prove that themselves and the defendant are in joint and constructive possession of the suit schedule properties ?
2. Whether the plaintiffs prove that the sketch prepared by them dividing the shares of themselves and the defendant is proportionate and correct ?
3. Whether the defendant proves that the plaintiff No.1 has only life interest over the suit schedule properties as per the terms of 26 O S No.8861/2017 Settlement Deed dated 01-02-1968 and no partition can be effected during the life time of plaintiff No.1 ?
4. Whether the plaintiffs and defendants are entitled for equal share of 1/4th each in the suit schedule properties ?
5. What order or decree ?
32. The plaintiff No.2 has been examined as PW-1 and marked documents at Ex.P-1 to P-49. Defendant has been examined as DW-1 and got marked documents at Ex.D-1.
33. Heard the arguments and perused the records .
34. My findings on the above issues are as follows:
ISSUE No.1 :: In the Affirmative
ISSUE No.2 :: In the Negative
ISSUE No.3 :: Partly in the Affirmative
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ISSUE No.4 :: Partly in the Affirmative
ISSUE No.5 :: As per final order for the
following:-
REASONS
35. ISSUE NO.1 & 3 : Both these issues are taken up together for consideration to avoid repetition of facts.
It is the specific case of the plaintiffs that themselves and defendant joint owners and in constructive possession of the suit schedule properties by virtue of a registered Settlement Deed dated 01-02-1968 executed by their mother Mrs. Philomena Thumboo Chetty, wife of Mr. Francis Thumboo Chetty and as per the terms of the registered Settlement Deed, they are entitled for 1/4th share in the plaint schedule properties.
36. Some of the undisputed facts are, Mrs. Philomena Thumboo Chetty was the absolute owner of an immovable property consisting of buildings 28 O S No.8861/2017 thereon bearing No.12 and 12/A, Mahatma Gandhi Road, Civil Station, Bangalore, bounded on North by- Mahatma Gandhi Road, South by-Church Street, East by-No.13, Mahatma Gandhi Road and premises of the Deccan Herald and West by- No.11, Mahatma Gandhi Road and passage belonging to Reuben Moses as per the registered Deed of Settlement marked at Ex.P-3. There is no dispute that plaint schedule property now numbered as 79 & 80 Old No.12 & 12/A.
37. It is also not in dispute that Mrs. Philomena Thumboo Chetty executed a registered Settlement Deed dated 01-02-1968. It is also not in dispute that under the Deed of Settlement Mrs. Philomena Thumboo Chetty appointed her husband Francis Thumboo Chetty as Trustee of the suit schedule property. It is also not in dispute that Mrs. Philomena Thumboo Chetty and Mr. Francis 29 O S No.8861/2017 Thumboo Chetty are dead. It is an admitted fact that the plaintiff No.1 Miss. Chitralekha Thumboo Chetty is a mentally ill person and the plaintiff No.2 being her younger brother, was appointed as Guardian and Manager to manage her properties under the provisions of Section 54 of the Mental Health Act, 1987 through Orders passed in Misc.No.10099/1997 by the City Civil Court, Mayohall, Bangalore as per Ex.P-1.
38. It is also not in dispute the plaintiff No.3 executed a General Power of Attorney to prosecute this case as per Ex.P-2. It is an admitted fact plaintiffs No.1 to 3 and the defendant are the children of Mrs. Philomena Thumboo Chetty and Mr. Francis Thumboo Chetty. It is not in dispute that during the pendency of the suit, plaintiff No.3 is reported dead and her legal representatives are brought on record as defendant No.3(i) & 3(ii). 30
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39. The learned advocate appearing for the defendant in his written arguments vehemently contended that during the lifetime of the plaintiff No.1 no partition can be effected as per the terms of the Settlement Deed. He has further contended that plaintiff No.1 cannot claim partition, since she has got only life interest in the suit schedule property. He has also contended that since the plaintiff No.2 remained unmarried, the suit itself is premature. He has further contended that since the plaintiff No.1 & 2 are not entitled for partition as per the terms of Settlement Deed, plaintiff No.3 is also not entitled for Partition much less the defendant. He has further contended that, since all the conditions of Settlement Deed are not completed, no partition could be effected.
40. On the other hand, the counsel for the plaintiffs in his arguments as well as in written 31 O S No.8861/2017 arguments contended that as per the terms of the Settlement Deed, all the children of Mrs. Philomena Thumboo Chetty and Mr.Francis Tumboo Chetty become major and hence, they are entitled for equal partition. In view of the rival contentions I have carefully perused the contents of Ex.P-3 the registered Settlement Deed dated 01-02-1968 executed by Mrs. Philomena Thumboo Chetty.
41. On 01-02-1968 she being a Settler executed the Settlement Deed by appointing her husband Mr. Francis Thumboo Chetty as a Trustee.
(1) Chitralekha Thumboo Chetty, commonly known as Chitra, aged 23 years, (2) John Ravikanth Thumboo Chetty, known as Ravi, aged 19 years, (3) Mary Geetanjali Thumboo Chetty, known as Geeta, aged 17 years, and Bernard Vikram Thumboo Chetty, known as Viki, aged 14 years are mentioned as four beneficiaries under the Settlement Deed.32
O S No.8861/2017 They are none other than the children of Settlor and the plaintiffs No.1 to 3 and the defendant herein. As on the date of Settlement Deed plaintiff No.3 and the defendant were minors and the plaintiff No.1 was mentally ill person.
42. The Deed of Settlement reveal that Settlor is the sole owner of No.12 & 12/A of Mahatma Gandhi Road, Civil Station Road, Bangalore, more fully described in the schedule. On account of a parental duty and desire to provide for the four beneficiaries above named were also her children entirely dependent on her two of whom were minors and the third Chitralekha, the 1st beneficiary unable to look after herself, the Settlor was desirous of making of a settlement of schedule mentioned properties for the benefit of the said beneficiaries for their education and maintenance. The Settlor assigned the Trustee for the benefit of 33 O S No.8861/2017 the beneficiaries upon terms and conditions appearing in the Settlement Deed.
43. As per the term No.1, That the Trustee shall stand possessed of and hold in trust for the four beneficiaries above named the properties described in the schedule. As per the term No.2 that, the Trustee shall manage the said schedule properties either personally or through such agents as he may think fit to appoint from time to time and in connection with the management of the said properties shall have full discretion to deal with the same in any manner he thinks fit so long as the steps taken by him are in the interests and for the benefit of the beneficiaries concerned. As per term No.3, That the management of the said properties by the Trustee will include the power to lease the said properties to any person of his choice and on such terms and conditions as the Trustee thinks 34 O S No.8861/2017 reasonable. The Trustee shall also have the right to raise loans on the security of the schedule premises for the purpose of altering, adding or improving the said properties. As per the term No.4, That as far as possible the Trustee should avoid selling any of the immovable properties belonging to the Trust unless in his opinion a sale is absolutely necessary or the Trustee is convinced that a sale will be very beneficial to the minors in which case it shall be the duty of the Trustee as soon as possible after the sale is effected to reinvest the entire sale proceeds in the purchase of other immovable properties in Bangalore or failing that to invest the sale proceeds in any manner permitted for the investment of Trust funds under the Indian Trust Act.
44. As per term No.4, that in connection with the leasing of the schedule properties or any other immovable properties which the trust may 35 O S No.8861/2017 subsequently acquire, it shall be competent for the Trustee to come to any arrangement with the lessees under which the lessees will be permitted to improve or alter the existing properties and to construct additional buildings on the grounds of the said properties. As per term No.6, that the Trustee shall collect and stand possessed of all income realised from the Trust properties and hold the same on account of the beneficiaries and credit the same to separate accounts which he shall maintain for the said beneficiaries. As per term No.7, that the income realised from the Trust properties shall after deduction of all costs and expenses incurred by the Trustee in connection with the Trust be divided in to four equal portions which shall be credited to the accounts of the four beneficiaries. The amounts at credit to each account shall be used by the Trustee exclusively for the maintenance and education of the respective beneficiaries.
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45. As per term No.8, as and when the second, third and fourth beneficiaries above named attains the age of 18 years, the Trustee shall make over to the said beneficiaries a fourth of the properties belonging to the Trust along with the balance of the profits or income at credit of the said beneficiary's account. As per term No.9, with regard to the first beneficiary, namely, Chitralekha, as the Settlor and the Trustee are both of opinion that she is at the moment not competent to look after herself, she shall be entitled only to a life interest in the remaining one fourth share for her life. The Trustee shall hold her said one fourth share in trust for the duration of her life and on her death make over the one fourth share along with any accumulated profits thereon equally to the three remaining beneficiaries namely, Ravi, Geeta and Viki.
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46. As per term No.10, in the event of death of the beneficiaries 2, 3 and 4 above named unmarried, the share of such deceased beneficiary shall be equally divided among the surviving beneficiaries. As per term No.11, that the Settlor shall have no right at any time to revoke this Deed of Settlement and as per term No.12 that the Trustee shall have the power at any time either to appoint one or more persons to act as Trustee jointly with him or to nominate one or more persons to act in his place as Trustee on his death.
47. Learned counsel appearing for defendant has relied upon the following decisions.
1. (1968)81 LW 320 between Dharma Udayar Vs. Ramachandra Mudaliar, wherein it was held that "what was created under the partition in favour of the widowed daughter-in-law was merely a life interest and there was a gift over in respect of both these properties in favour of G as well as M. Therefore what M and G got was a vested remainder 38 O S No.8861/2017 and G was competent to execute the will. Further it was held that,the widow had lost her husband prior to the Hindu Women's Right to Property (Act)- The only right she had then was a right to be maintained out of the family properties. When brother-in-law and father-in-law partitioned the estate among themselves they set apart a property giving her a life estate pure and simple, the property reverting to the sons on her death. Hence the estate would not get enlarged into an absolute one under the Hindu Succession Act."
2. 1966 SCC OnLine Mad 195 : AIR 1967 Mad 429 between Thatha Gurunadham Chetti Vs. Smt. Thatha Navaneethamma (died) and another, wherein it was held that "The first defendant in this case lost her husband prior to the Hindu Women's Right to Property Act, 1937. The only right that she then had under the law was a right to be maintained out of the family properties. She had no title and no right to share in the family properties. The sons could have contended themselves with making a regular money payment and if required charging certain properties for the maintenance amount. But when they partitioned, the estate amongst 39 O S No.8861/2017 themselves, they set apart property giving her a life estate pure and simple in the property, the property to revert to the sons on her death. The estate given to the widow for her maintenance was restricted to a life estate. She was not granted any powers of alienation. Her right was limited to the enjoyment of the income from the property. What she got under th partition was not the qualified estate of a Hindu Female known as woman's estate or widow's estate. She was not even a party to the partition deed as partition could e had only between persons having pre-existing proprietary rights in the property. It follows that the estate given to the widow under the instrument of partition fell under section 14(2) of the Act, and that S. 14(1) did not operate on the estate and make the widow a full owner. In the circumstances, any alienation by the widow cannot enure beyond her lifetime. The second appeal therefore falls and is dismissed and in the circumstances there will be no order as to costs. No leave."
3. 2011 SCC OnLine Mad 1490 between P. Devendiran Vs. P.Rajendran, wherein it was held that " As the 1st respondent is entitled to half share in 40 O S No.8861/2017 the property , he is entitled to file a suit for partition even during the life time of the life estate holder and he cannot ask for possession during the life time of the mother. Hence, the suit is not premature and the lower appellate court has rightly held that final decree can be applied only after the death of 2nd defendant the mother who s entitled to life estate over the property."
4. 2007 (2) L W 779 between Bay Berry Apartments Pvt. Ltd. And others Vs. Shobha and others, wherein it was held that, "When a document is not uncertain or does not contain an ambiguous expression, it should be given its literal meaning."
5. A.S.No.271/1987 between M.Sivagnanam and others Vs. S.Rajeshwari and others, wherein it was held that "it is clear that Clauses 25 and 26 which speak of the contingent interest will cease to have any effect, the moment a male son was born to Manickam D.W-1, the first appellant herein was born in 1937. therefore, the moment he was born he was entitled to the absolute interest after his father's death. Even otherwise, it is clear from the reading of the Will that though Manickam used various terms in his Will he only intended that the male 41 O S No.8861/2017 issue of Manickam should take the property. It is clear that the testator was astute enough to provide for various eventualities. He speaks of thhpR at page24 who will take the property absolutely after the life time of Manickam. On that date i.e., in 1928, there was no reason for him to anticipate the coming of the Hindu Succession Act. So, the heirs that he had in mind on that date were only the male heirs of Manickam. Clause 25 and 26 lend support to this."
6. 2013 SCC OnLine AP 371 : (2014) 4 ALD 316 (DB) :(2014) 5 ALT 232 (DB) between Anantharaju Venkata Seshamma Vs. Rajupalem Seshavataram (died) and others.
48. However, in the present suit, in Ex.P-3 Settlement Deed there is a specific clause as soon as the beneficiaries become majors they are entitled for 1/4th each share. Admittedly, parties to the suit are majors and they are all senior citizens. The document i.e., the Settlement Deed executed by Mrs. Philomena Thamboo Chetty is certain and it 42 O S No.8861/2017 does not contain any ambiguity. Therefore, the above decisions are not applicable to the facts of the case.
49. On perusal of the terms and conditions of the Settlement Deed it is clear that as and when the beneficiaries attains the age of 18 years, the Trustee shall make over to the said beneficiaries 1/4th of the properties belonging to the trust along with the balance of the profits or income at credit of the said beneficiaries account. With respect of the 1st beneficiary i.e., the 1st plaintiff being not competent to look after herself, she shall be entitled for life interest in the remaining 1/4th share for her life. Therefore, it is clear that the plaintiff No.1 is entitled to hold 1/4th of her share only during her lifetime. Another condition in the Settlement Deed that in the event of death of the beneficiary No.2, 3 & 4 unmarried, the share of the such deceased 43 O S No.8861/2017 beneficiary shall be equally divided among the surviving beneficiaries. Therefore, it is clear that there is no such condition that if the beneficiary No.2, 3 & 4 are unmarried, the share of such deceased beneficiary shall be equally divided among the surviving beneficiaries. On the other hand, the condition is that in the event of the death of beneficiaries No.2 to 4 unmarried, the share of such deceased beneficiary shall be equally divided among the surviving beneficiaries. As on the date of institution of the suit all the beneficiaries under the Settlement Deed were alive. It is only during the pendency of the suit the plaintiff No.3 is dead. Therefore, there is no such terms or conditions under Settlement Deed remains to be fulfilled to enforce the Settlement Deed and effect partition.
50. However, in order to rebut the evidence of PW-1, the defendant stepped into the witness box 44 O S No.8861/2017 and examined himself as DW-1. His counsel has cross-examined the PW-1. During the course of examination-in-chief, PW-1 has produced Ex.P-1 to P-49. Ex.P-1 to P-3 are already discussed above. Ex.P-4 to P-45, 47, 48 are various letters, notices, postal acknowledgements, reply notice transpired between the plaintiffs and the defendant. Ex.P-46 is the paper publication in Times of India dated 17-11-2017 with the statement of defendant regarding the suit schedule properties.
51. In the cross-examination PW-1 has stated under Ex.P-2 he is not authorised to sell or dispose immovable properties. He has further stated that legal representatives of deceased plaintiff No.3 have not authorised him by executing power of attorney. But the Ex.P-2 reveal that the plaintiff No.3 during her lifetime authorised PW-1 as her Power of Attorney holder. He has further stated that he is 45 O S No.8861/2017 only the manager for the movable and immovable properties of the plaintiff No.1. He has stated that his mother i.e., Mrs. Philomena Thumboo Chetty died in the year 2000 and his father i.e., Francis Thumboo Chetty died in the year 1989. He has admitted that as per the term No.9 of the Ex.P-3 the plaintiff has only life interest during her lifetime. He has further stated that he is not married and he has no children.
52. DW-1 in his examination-in-chief not only narrated the facts stated in the written-statement but also the facts that was not narrated in the written statement, but touching to the evidence of PW-1 and his documents. In his cross-examination he has stated that he completed his M.A., LL.B., and running his own business, but not a practicing Laywer. But he denied the suggestion that whatever stated in the para-4 affidavit is contrary to the 46 O S No.8861/2017 written statement. He has also denied the suggestion that, his affidavit evidence is contrary to the terms of the registered Deed of Settlement.
53. Learned advocate appearing for the defendant during cross-examination of PW-1 has confronted a book, which is marked as Ex.D-1. The said book is titled as Music and Musicians of Bangalore and Mysore written by Anand Sirur. In page No.176 to 180 of this book the achievement of mother of the plaintiffs and defendant and legacy is mentioned. She was a Violinist and was an outstanding exponent of western and classical music. However, there is no dispute regarding her achievement as written in Ex.D-1 in page No.176 to
180.
54. By considering the entire evidence on record and Ex.P-3 Settlement Deed executed by the mother of the plaintiffs and the defendant it is clear 47 O S No.8861/2017 that the plaintiffs and the defendant are in constructive possession of the suit schedule property. Though the defendant has proved that the plaintiff No.1 has only life interest over the schedule property as per the terms of Settlement Deed dated 01-02-1968, but there is no dispute regarding the same. The plaintiff No.2 being the guardian duly appointed by the competent Court in Misc.No.10099/1997, he is entitled to look after plaintiff No.1 and manage the movable and immovable properties of the plaintiff No.1 i.e., her 1/4th share in the suit schedule property only during her life time, as she has got life interest over the suit schedule property to an extent of 1/4th share. The defendant has failed to prove that no partition can be effected during the lifetime of plaintiff No.1.
55. As per the terms of Ex.P-3 the plaintiff No.1 is entitled for life interest over the suit 48 O S No.8861/2017 schedule property and after her death all the remaining beneficiaries are entitled for equal share of her 1/4th share as per the term No.9 of the Ex.P-3 Settlement Deed. Therefore, I answer the Issue No.1 in the affirmative and Issue No.3 partly in the affirmative.
56. ISSUE NO.2 : It is the contention of the plaintiffs that as per the sketch marked at Ex.P-49 the partition should be effected and final decree can be drawn as per the division shown in the sketch. The defendant has denied the contents of sketch. According to the defendant it can be considered only in the Final Decree Proceedings is initiated after valid preliminary judgment if obtained by the plaintiffs. It is further contention of the defendant that he do not agree with Ex.P-49 and it was prepared without the consent of defendant. 49
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57. In the cross-examination of PW-1 he has denied that the property is not divided equitably under Ex.P-49. Therefore, when the defendant disputes equitable partition by metes and bounds under Ex.P-49, final decree based on Ex.P-49 cannot be drawn. Entitlement of share of the parties to the suit to be adjudicated by metes and bounds in final decree proceedings. Therefore, the plaintiffs failed to prove that parties to the suit divided their shares as per the sketch Ex.P-49. Therefore, I answer the Issue No.2 in the negative.
58. ISSUE NO.4 : As per the terms and conditions of registered Settlement Deed under Ex.P-3 the plaintiff No.1 shall have her 1/4th share till her death. After her death, her 1/4th share shall devolve upon the plaintiff No.2, 3 and the defendant. Of course, the plaintiff No.3 is dead. Therefore, her legal heirs I.e., plaintiff No.3(i) and 50 O S No.8861/2017 3(ii) are entitled for the estate of deceased plaintiff No.3. Parties to the suit are all major as on the date of institution of suit. In other words they are Senior Citizens. Absolutely there is no impediment to divide the suit schedule property between the plaintiffs and the defendant as per the will and wishes of their mother Mrs. Philomena Thumboo Chetty as per the terms of Settlement Deed executed by her. Therefore, I hold that the plaintiff No.1 is entitled for 1/4th share in the suit schedule property till her death and her property should be managed by the plaintiff No.2 as per the orders in Misc.No.10099/1997. The plaintiff No.2 and the defendant are entitled for 1/4th each share in the suit schedule property. Like wise the plaintiff No.3(i) & 3(ii) are jointly entitled for 1/4th share by metes and bounds. Further, the 1/4th share of the plaintiff No.1 shall devolve upon the remaining plaintiffs and the defendant only after the death of plaintiff No.1. 51
O S No.8861/2017 Hence, I answer the Issue No.4 partly in the affirmative.
59. ISSUE NO.5 : In view of my findings on Issues No.1 to 4, I pass the following;
ORDER Suit of the plaintiffs is partly decreed with costs.
Plaintiff No.1 is entitled for 1/4th share in the suit schedule property till her death and her property should be managed by the plaintiff No.2 as per the orders in Misc.No.10099/1997. The plaintiff No.2 and the defendant are entitled for 1/4th each share in the suit schedule property. Like wise the plaintiff No.3(i) & 3(ii) are jointly entitled for 1/4th share by metes and bound.
Draw preliminary decree accordingly. (Dictated to the Stenographer directly on computer, then corrected and pronounced by me in the open Court on this the 10th day of November, 2021.) (Dinesh Hegde), XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
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O S No.8861/2017 ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF :
(a) PLAINTIFFS SIDE ::
PW-1 :: John Ravi Thumboo Chetty
(B) DEFENDANTS SIDE ::
DW-1 :: Bernard Vikram Thumboo Chetty
II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF :
(a) PLAINTIFFS SIDE :
Ex.P-1 :: Certified copy of the Orders in Misc.No.10099/1997 Ex.P-2 :: General Power of Attorney dated 13-11-1997 Ex.P-3 :: Registered Settlement Deed dated 01-02-1968 Ex.P-4 :: Letter dated 04-06-1997 Ex.P-5 :: Letter dated 27-01-2014 Ex.P-6 :: Notice dated 04-02-2014 Ex.P-7 :: Certified copy of the affidavit filed in Ex.P.142/2014 Ex.P-8 :: Letter dated 18-03-2014 Ex.P-9 :: Letter dated 26-03-2014 Ex.P-10 :: Postal acknowledgement Ex.P-11 :: Letter dated 13-05-2014 Ex.P-12 :: Letter dated 16-06-2014 53 O S No.8861/2017 Ex.P-13 :: Postal acknowledgement Ex.P-14 :: Letter dated 01-12-2014 Ex.P-15 :: Notice dated 08-12-2014 Ex.P-16 :: Postal acknowledgement Ex.P-17 :: Letter dated 24-03-2015 Ex.P-18 :: Letter dated 26-03-2015 Ex.P-19 :: Letter dated 20-07-2015 Ex.P-20 :: Receipt dated 09-07-2015 Ex.P-21 :: Letter dated 03-07-2015 Ex.P-22 :: Letter dated 23-06-2015 Ex.P-23 :: Receipt dated 27-07-2015 Ex.P-24 :: Notice dated 23-07-2015 Ex.P-25 :: Postal acknowledgement Ex.P-26 :: Letter dated 28-08-2015 Ex.P-27 :: Notice dated 28-08-2015 Ex.P-28 :: Postal receipt Ex.P-29 :: Letter dated 30-12-2015 Ex.P-30 :: Notice dated 31-12-2015 Ex.P-31 :: Notice dated 05-04-2016 Ex.P-32 :: Letter dated 07-05-2016 Ex.P-33 :: Receipt dated 05-04-2016 Ex.P-34 :: Receipt dated 15-04-2016 Ex.P-35 :: Notice dated 14-05-2016 Ex.P-36 & Ex.P-37 :: Two postal receipts 54 O S No.8861/2017 Ex.P-38 :: Letter dated 27-08-2016 Ex.P-39 :: Notice dated 12-09-2016 Ex.P-40 :: Postal acknowledgement Ex.P-41 :: Letter dated 27-07-2017 Ex.P-42 :: Notice dated 08-11-2017 Ex.P-43 :: Postal acknowledgement Ex.P-44 :: Reply Notice dated 08-11-2017 Ex.P-45 :: Postal acknowledgement Ex.P-46 :: Paper publication Ex.P-47 :: Letter dated 01-02-2014 Ex.P-48 :: Letter dated 26-03-2016 Ex.P-49 :: Sketch (B) DEFENDANTS SIDE :
Ex.D-1 :: Relevant page No.176-180 of a book titled as Music and Musicians of Bangalore & Mysore (Dinesh Hegde), XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.