Karnataka High Court
Sri K V Ananda Rao vs Sri K V Muralidhar on 17 May, 2017
RFA NOS.743/2003 C/W 190/2008(PAR)
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MAY, 2017
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
RFA NOs.743/2003 C/W 190/2008 (PAR)
RFA.743/2003
BETWEEN:
Sri.K.V.Ananda Rao,
S/o Sri.K.Venkat Rao,
Aged about 59 years,
R/at No.30(old),
New No.15,
Kanakapura Road,
Basavanagudi,
Bangalore-560 004. ....Appellant
(By Sri.K.Sreedhar, Adv.,)
AND:
1. Sri.K.V.Muralidhar,
S/o Sri.K.Venkat Rao,
Aged about 56 years,
R/at No.15/1, Kanakapura Road,
Basavanagudi,
Bangalore-560 004.
2. Smt.Parvathamma,
W/o Sri Patel
Chikka Hanumaiah,
Aged about 85 years,
RFA NOS.743/2003 C/W 190/2008(PAR)
2
Since dead by LR's.
(a) Sri.A.C.Ananthaswamy,
Aged about 58 years.
(b) Sri.A.C.Gurumurthy,
Aged about 55 years.
(c) Sri.A.C.Nanjundaswamy,
Aged about 53 years.
Nos.3 to 5 sons of Sri Patel
Chikka Hanumaiah.
Nos.2 to 5 R/at.Avalahalli,
Uttarahalli Hobli,
Mysore Road,
Bangalore-560 026.
....Respondents
(By Sri.H.S.Dwarkanath for Sri. R.A.Chandrashekara
Reddy, Adv., for R1, R2-Dead, R3-R5 are LR's of deceased
R2, R3 served, R4 and R5 Notice dispensed with)
This RFA is filed under Section 96 of CPC, against the
Judgment and Decree dt:14.02.2003 passed in
O.S.No.3629/1988 on the file of the XV Addl. City Civil
Judge, Bangalore, (CCH.No.3), decreeing the suit for
partition and separate possession of half share in the suit
schedule properties, for Mesne Profits, costs etc.,
RFA.190/2008
BETWEEN:
Sri.K.V.Anand Rao,
S/o Sri.K.Venkat Rao,
RFA NOS.743/2003 C/W 190/2008(PAR)
3
Aged about 63 years,
R/at.No.30 (old),
New No.15, Kanakapura Road,
Basavanagudi,
Bangalore-560 004.
....Appellant
(By Sri. K.Sreedhar, Adv.,)
AND:
Sri.K.V.Muralidhar,
S/o Sri.K.Venkat Rao,
Aged about 61 years,
R/at.No.15/1,
Kanakapura Road,
Basavanagudi,
Bangalore-560 004. ....Respondent
(By Sri R.A.Chandrashekar Reddy, Adv.,)
This RFA is filed under Section 96 of the CPC, 1908
against the Order dt:20.12.2007 passed in FDP No.49/03
on the file of the XV Addl. City Civil and Sessions Judge,
Bangalore city (CCCH.No.3), partly allowing the petition
filed under order 20 Rule 12 and 18 of the CPC, 1908.
These Appeals having been heard and reserved,
coming on for Pronouncement this day, the Court delivered
the following:
JUDGMENT
R.F.A.No.743/2003 arises out of the judgment and the Preliminary Decree dated 14.2.2003 passed by the XV RFA NOS.743/2003 C/W 190/2008(PAR) 4 Additional City Civil Judge, Bangalore, in O.S.No.3629/1988.
2. R.F.A.No.190/2008 arises out of the order dated 20.12.2007 in FDP 49/2003 passed by XV Additional City Civil Judge, Bangalore, in pursuance of the Preliminary Decree in O.S.No.3629/1988.
3. Since the judgment in R.F.A.No.743/2003 has a direct bearing in disposal of R.F.A.No.190/2008, both these matters are taken up for disposal together by this common judgment.
4. The appellant in both the cases is the first defendant. The first respondent is the plaintiff and respondent Nos. 2 to 5 are defendant Nos. 2 to 5 in the above said proceedings before the Trial Court. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the Trial Court.
RFA NOS.743/2003 C/W 190/2008(PAR) 5
5. The case of the plaintiff in brief is as follows:
The plaintiff and the first defendant are the sons of K. Venkata Rao. Dr. K.V. Gundopanth is the elder brother of plaintiff's paternal grand father K.V.Kuppa Rao. In the partition between Dr.K.V.Gundopanth and K.V.Kuppa Rao plaint schedule item No.1 property was not partitioned. However, they were living separately in two different parts of the said property. K.V.Kuppu Rao executed the release deed in favour of K. Venkata Rao releasing his half share in plaint schedule item No.1 i.e. property No.30.
Since Dr. K.V. Gundopanth was issueless he had adopted plaintiff's paternal uncle K.V.Rama Chandra Rao. K.V.Rama Chandra Rao turned unfaithful to his adopted father and plaintiff's father K.Venkata Rao took care of Dr. Gundopanth. Therefore, to save the family properties Dr. K.V.Gundopanth executed a nominal Gift Deed dated:17.10.1969 in favour of the first defendant in respect of his undivided half share in the plaint schedule item No.1 property and some agricultural lands. The said gift deed RFA NOS.743/2003 C/W 190/2008(PAR) 6 was nominal one and not intended to be acted upon. To give effect to his true intention, Dr. K.V. Gundopanth executed a registered Will dated 20.2.1970 bequeathing all his properties in favour of the plaintiff, first defendant and their younger brother K.V. Gopala.
Dr. K.V. Gundopanth filed O.S.No.47/1970 before the I Additional Civil Judge, Bangalore against his adopted son K.Ramachandra Rao, K.Venkata Rao and his sons for partition and separate possession of his share in all the joint family and co-parcenary properties. The said suit came to be compromised on 29.11.1975. By virtue of that, compromise decree was passed declaring Dr.K.V.Gundopanth as the absolute owner of entire half share in house No.30, New No.31 and the lands situated in Nanjangud and all the lands known as grazing pasture situated at Pantharpalya. Dr. K.V. Gundopanth died on 17.3.1980. On his death, his properties have devolved on the legatees. Therefore, the plaintiff has half share in the suit schedule properties. Hence the suit.
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6. The defendant filed the written statement and contested the suit. The gist of his written statement is as follows:
It is denied that at the time of the execution of the Will Dr. K.V.Gundopanth was the owner of suit schedule A item No.1 property. It is denied that the gift deed dated 17.10.1969 executed in favour of the first defendant by Dr.K.V.Gundopanth was nominal one and not acted upon.
Plaint schedule 'A' item No.2 lands are all lost to the tenants by virtue of the Karnataka Land Reforms Act. He has no objection to effect partition in the compensation receivable from the tenants in respect of those lands. During his life time Dr.K.V.Gundopanth transferred Plaint schedule 'B' items No.2 property (Motor Car) in his favour. Plaint schedule 'B' items No.3 (Motor Cycle) is his self acquired and absolute property. The remaining plaint schedule "B" properties are taken away by the plaintiff himself. Therefore, they are not available for partition.
RFA NOS.743/2003 C/W 190/2008(PAR) 8 In a factual partition between Dr.K.V.Gundopanth and the branch of K.V.Kuppa Rao in house No.30, northern half portion was allotted to the share of Dr.K.V.Gundopanth and southern half was allotted to K.Venkata Rao. In the partition between K. Venkata Rao and his sons, the southern half is divided into six portions amongst the K. Venkata Rao and his sons. In the partition between the K. Venkata Rao and his sons, an area of 7' 6"x 100' 6" has been given to the first defendant and an area of 35'6"x23'8"
is given to each of the four brothers amongst the sons of K.Venakta Rao and K. Venkata Rao. The plaintiff has been given the south eastern corner portion and he has put up construction on that with the approved building plan. The wife of K. Venkata Rao is a necessary party to the suit. By virtue of the registered gift deed executed by Dr.K.V. Gundopant in favour of the first defendant, he has become the absolute owner of plaint schedule A item No.1 property. Dr. K.V.Gundopanth executed the registered Will dated 20.2.1970 in favour of sons of K. Venkata Rao, only in RFA NOS.743/2003 C/W 190/2008(PAR) 9 respect of the movable and immovable properties, excluding the property gifted to the first defendant. If at all, plaintiff contends that Dr.K.V.Gundopanth and others were in joint family status, the suit is bad for non joinder of other properties which are disposed of Dr. K.V. Gundopanth. He is in possession of the property gifted to him by Dr. K.V.Gundopanth as absolute owner thereof. There was a partition between the family of the plaintiff and the first defendant where under the earlier partition between Dr.K.V. Gundopanth, the father of the plaintiff and first defendant is recorded. Thus, he seeks dismissal of the suit.
7. Having regard to the pleadings of the parties, the Trial Court framed the following:
Issues:
1. Whether the plaintiff proves that Gift Deed dated 17.10.1969 executed by Dr. K.V. Gundopanth in favour of the defendant was only a sham transaction, not intended to be acted upon and that it was not acted upon?
RFA NOS.743/2003 C/W 190/2008(PAR) 10
2. Whether the plaintiff proves that Dr.K.V.Gundopanth duly executed a Will on 20.2.1970 and that plaintiff and defendant are entitled to the northern half of the undivided share in the entire property bearing No.30, Kanakapura Road and that plaintiff and defendant continued to be in joint possession of the same?
3. Whether the plaintiff proves that he is entitled to separate possession of half share in the suit schedule properties?
4. Whether the defendant proves that Item No.2 in 'A' Schedule lands were tenanted and tenants are proper and necessary parties to the suit?
5. Whether the defendant proves that 'B' schedule properties were not available at the time of death of the testator and most of them had been taken away by the plaintiff himself when he left the house?
6. Whether the defendant proves that plaintiff is not entitled to any relief as he has not sought for a declaration that the Gift deed is a nullity and for consequential reliefs?
7. Whether the defendant proves that suit properties have not been properly valued and that plaintiff has to pay court fee under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act?
8. What decree or order?
RFA NOS.743/2003 C/W 190/2008(PAR) 11 The Trial Court recasted the issue No.2 as follows:
Recasted Issue No.2:
2. Whether the plaintiff proves that he and the defendant are entitled to the northern half of undivided share in the entire property bearing No.30, Kanakapura Road?
8. The parties led evidence before the Trial Court. The plaintiff got himself examined as PW1 and got marked Exhibits P.1 and P.2. The first defendant got himself examined as DW1 and got marked Exhibits D.1 to D.12.
9. The Trial Court, after hearing the parties, by the impugned judgment partly decreed the suit, allotting half share in half portion of the property No.30 situated at Kanakapura Road and half share in compensation payable in respect of item No.2 of 'A' schedule properties and dismissed the suit in respect of plaint schedule 'B' properties.
RFA NOS.743/2003 C/W 190/2008(PAR) 12
10. The first defendant challenged the said judgment and decree in R.F.A.No.743/2003 before this Court. Pending R.F.A.No.743/2003 the successful plaintiff filed FDP No.49/2003 before the Trial Court. The Trial Court, by the order dated 20.12.2007, partly allowed the petition, demarcating the shares of the plaintiff and the first defendant in plaint schedule "A" item No.1 property and rejecting the claim for mesne profits. The Trial Court, in FDP 49/2003 further directed to draw the Final decree in accordance with the shares allotted in the said order.
11. Challenging the said order, the first defendant has preferred R.F.A.No.190/2008. This court, after hearing both the parties by judgment dated 13.11.2008 allowed the appeals. The plaintiff challenged the said judgment before the Hon'ble Supreme Court in Civil Appeal Nos. 5875-5876/2010. The Apex Court, by the judgment dated: 07.1.2016 allowed the appeals and remanded the matters to this Court holding that this court has not recorded the specific finding on the compromise decree RFA NOS.743/2003 C/W 190/2008(PAR) 13 dated 29.11.1975 in O.S.No.47/70 (Ex.D8) and memorandum recording oral partition dated 10.11.1985 (Ex.D3).
12. After such remand, both the parties are heard in both the matters. On hearing the parties and on perusal of the records, the points that arise for the consideration of this Court are:-
(i) Whether the impugned judgment and decree of the Trial court in O.S.No.3629/1988 is sustainable?
(ii) Whether the impugned order in FDP No.49/2003 is sustainable?
13. Reg. The sustainability of the impugned judgment of the trial Court in O.S. No.3629/1988: The plaintiff claims partition and possession of half share in suit schedule 'A' item No.1 and 2 and suit schedule 'B' properties. Suit schedule 'A' item No1 is northern half portion of property bearing No. 30 Kanakapura Road, RFA NOS.743/2003 C/W 190/2008(PAR) 14 Bengaluru-4 measuring 42'6"x 118'6"and item No.2 are 11 Agricultural lands situated at Panthara palya, Kengeri, Bengaluru South Taluk. Suit schedule 'B' properties are the movable properties. Plaintiff is the younger brother of the defendant. Apart from plaintiff and defendant their father Venkatarao has three more sons by names K.V. Krishna, K.V. Gopal and K.V Ashok.
14. Plaintiff claims that the suit properties are the absolute properties of Dr. K.V. Gundopanth the elder brother of his paternal grand father K.V. Kuppu Rao. He admits that Dr. K.V. Gundopanth had executed the gift deed Ex.D.2 dated 17.10.1969 donating plaint schedule 'A' item No.1 property in favour of the defendant. But he claims that the said document was nominal and sham document executed in order to save the properties from K.V. Ramachandra Rao the adopted son of Dr. K.V. Gundopanth and that was not intended to be acted upon and that was not acted upon. He claims that subsequently Dr.K.V. Gundopanth executed the Will Ex.D1 dated RFA NOS.743/2003 C/W 190/2008(PAR) 15 20.02.1970 bequeathing all the suit properties in favour of himself, defendant and their brother K.V. Gopal.
15. The defendant denies that Ex.D.2-gift deed is nominal, not intended to be acted upon and not acted upon etc. He claims that under the said document the property is conveyed to him absolutely and he is put in exclusive possession of the said property. He contends that the same is acknowledged in Ex.D.3 the memorandum of partition dated 10.11.1985 executed by the plaintiff and his other brothers. He denies that plaint schedule 'A' item No.1 property is bequeathed to him and his brothers under Ex.D.1. He contends that under Ex.D.1 the testator Dr.K.V.Gundopanth has bequeathed only the properties available to him as on the date of the Will and plaint schedule 'A' item No.1 property and plaint schedule 'B' item No.2 motor car were not available to the testator as on the date of the Will. He claimed that plaint schedule 'B' item No.3 motor cycle is purchased by him and that is his absolute property.
RFA NOS.743/2003 C/W 190/2008(PAR) 16
16. The trial Court decreed the suit only in respect of plaint schedule 'A' item Nos. 1 and 2 properties and dismissed the suit in respect of plaint schedule 'B' properties. The plaintiff has not filed any appeal or cross objections against the dismissal of his claim in respect of plaint schedule 'B' properties. Therefore, that part of the decree has attained finality. So far as plaint schedule item No.2 the lands, the trial Court holds that by operation of Karnataka Land Reforms Act, all those lands are lost to the tenants and the matters are pending before the competent authorities for awarding compensation to the land lords and plaintiff and defendants are entitled to half share in the compensation that may be awarded in future. Both the parties have no grievance against that part of the decree also. Therefore, the challenge is limited only against the decree in respect of plaint schedule 'A' item No.1 property.
17. The above facts make it clear that both the parties admit the title of the Dr.K.V. Gundopanth to the RFA NOS.743/2003 C/W 190/2008(PAR) 17 suit schedule 'A' item No. 1 property. The plaintiff also admits that Dr. K.V. Gundopanth executed Ex.D2-the gift deed in favour of the defendant. Therefore, the burden lies upon him to prove that Ex.D2 is a nominal document, not intended to be acted upon and not acted upon.
18. To substantiate his contention the plaintiff relies on Exs.D.7 and D.8. Exs.D.7 and Exs.D.8 are the certified copies of the decree and the compromise petition filed by the parties in O.S. No.47/1970 before the Additional Civil Judge, Bengaluru City. The defendant also admits the said documents. K. Ramachandra Rao the adopted son of Dr. K.V. Gundopanth is defendant No.1, his wife and son are defendant Nos.2 and 3, plaintiff's father, mother, plaintiff and the defendant are the other defendants in the said suit.
19. Exs.D.7 and Exs.D.8 show that Dr.K.V. Gundopanth filed the said suit against the defendants therein for partition and possession of his half RFA NOS.743/2003 C/W 190/2008(PAR) 18 share in suit schedule 'A' and 'B' properties and they compromised the matter. Ex.D.7 the compromise decree further shows that while filing O.S. No.47/1970 Dr.K.V.Gundopanth had not included present plaint schedule 'A' item No.1 in the suit. Ex.D.8 shows that only in the said compromise petition the parties included the present plaint schedule A(1) property and agreed that Dr. K.V. Gundopanth is the absolute owner of the said property. The gift deed Ex.D.2 or its validity was not at all in issue in the said suit. In Ex.D 7 and 8 no where parties contended that the gift deed in favour of the present defendant is revoked.
20. As per the plaintiff himself, Dr. K.V.Gundopanth filed that suit to save the properties from the hands of his adopted son Ramachandra Rao who turned unfaithful to the adoptive father. Therefore, the question of Dr. K.V. Gundopanth disowning the gift deed executed by him or cancelling the same did not arise at all.
RFA NOS.743/2003 C/W 190/2008(PAR) 19
21. Since Dr. K.V. Gundopanth was the original owner and the defendant could get the title under the gift deed only if he admits the title of Dr.K.V. Gundopanth, nothing much can be attributed to the present defendant admitting the ownership of the Dr.K.V. Gundopanth in the compromise petition.
22. In the compromise petition or the decree parties did not seek annulment of gift deed Ex.D.2 nor did the decree annul the same. Those documents do not even reveal that any of the parties to the decree more particularly Dr.K.V. Gundopanth stated that there is a gift deed and that is a nominal document and the same is not intended to be acted upon or not acted upon.
23. Exs.D.7 and D.8 show that under those documents the partition is effected between the branch of plaintiff's father Venkata Rao and Dr.K.V. Gundopanth on one hand and between Dr. K.V. Gundopanth and his RFA NOS.743/2003 C/W 190/2008(PAR) 20 adopted son K.Ramachandra Rao and his branch. Ex.D.7 and 8 nowhere indicate that Dr.K.V.Gundopanth or any other party to those proceedings expressly or impliedly got annulled the gift deed Ex.D.2 contending that the same is nominal one or not acted upon.
24. To find out whether the gift deed was intended to be acted upon and whether that was acted upon or not, the over all conduct of the parties all along has to be appreciated. Plaintiff himself admits in the plaint that Dr. K.V. Gundopanth died on 17.03.1980. PW1 himself admits that in 1985 himself and his brothers partitioned their ancestral properties and the said partition was recorded vide Ex.D3 the memorandum of partition and Ex.D.3 (a) and (b) the sketch annexed to the same. He further admits that after such partition they gave application to the Municipal authorities enclosing the sketch exhibiting D.5 and on that basis the property bearing No. 30 was sub divided and Ex.D4 is the Special notice issued by the corporation authorities in that regard.
RFA NOS.743/2003 C/W 190/2008(PAR) 21
25. In Ex.D.3 the plaintiff and his other brothers have confirmed and admitted that the present defendant has an independent right to the extent of 50% of property No.30 of Kanakapura Road, shown in the annexed sketch by letters ABCD and they never had or have any rights over the same. They have declared in Ex.D3 that the present defendant is the absolute owner of the said property. Ex.D.3(a) and (b) show that the said ABCD portion is the northern half portion of property No.30 (present schedule 'A' item No.1 property).
26. Exs.D3 and D.3 (a) and (b), D.4 and D.5 show that plaintiff, defendant and their other brothers divided the southern portion of property No.30 (their father's share) as per the sketch Ex.D.3 (a) and (b) and reported the partition to the Municipal authorities, sought sub-division of the property enclosing Ex.D.5 the copy of the sketch. The said documents further show that, accordingly the RFA NOS.743/2003 C/W 190/2008(PAR) 22 properties fallen to the share of the brothers are assessed separately for payment of the tax.
27. Exs.D.3 to D.5, D.3(a) and (b) coupled with the sweeping and unequivocal admissions of PW.1 on Exs.D.3 to D.5 and D.3(a) and (b) show that plaintiff and other brothers admitted that the defendant is in possession of plaint schedule 'A' item No.1 property in his independent right. That itself shows that under the gift deed Ex.D.2 the defendant was put in possession of the property and Ex.D.2 was acted upon.
28. It is also to be seen that in the Will Ex.D.1, the particulars of the properties bequeathed are not forthcoming. It is only said all the properties of the testator are bequeathed. At the time of execution of the Will the property gifted was not available to the testator to convey the same.
RFA NOS.743/2003 C/W 190/2008(PAR) 23
29. Further the other brothers of the plaintiff who are the legatees under the Will do not set up any claim to plaint schedule 'A' item No.1 property. The plaintiff does not implead them in the present suit. He does not examine either the attesting witnesses to Ex.D.1 the Will or the other beneficiaries under the Will to prove that Dr. K.V. Gundopanth intended to bequeath or bequeathed the plaint schedule 'A' item No.1 property.
30. PW.1 admits that Dr. K.V.Gundopanth owned agricultural lands at Nanjangud. Under the Will though all the properties of Dr.K.V.Gundopanth are bequeathed, as admitted by PW.1 himself, he does not bring them for partition in this suit.
31. He does not implead K.V.Gopal another beneficiary (his own brother) under the Will as a party to this suit. As per the Will K.V.Gopal is also entitled to equal share in the bequest. If that be so, the plaintiff's share will RFA NOS.743/2003 C/W 190/2008(PAR) 24 be only 1/3rd. All these facts go to show that the suit lacks bonafides and only with an intention to grab the property gifted to the defendant the suit is filed. The trial Court without appreciating the overall evidence only on the basis of the Ex.D.7 and D.8 decreed the suit in respect of plaint schedule 'A' item No.1 property also which is unsustainable.
32. Reg. sustainability of order in FDP No.49/2003: The final decree order in F.D.P No.49/2003 which is challenged in R.F.A No.190/2008 is passed in respect of plaint schedule 'A' item No.1 property based on the preliminary decree passed in O.S. No.3628/1988 which is the subject matter of R.F.No. 743/2003. So far as the rejection of mesne profits, the plaintiff has not filed any appeal or corss objections. Therefore that part of the order in FDP No.49/2003 has become final. The final decree order in respect of plaint schedule 'A' item No.1 property sustains based on the sustainability of the preliminary decree in O.S.No.3628/1988.
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33. This Court by the above discussion already held that the preliminary decree in O.S.No.3628/1988 in respect of plaint schedule 'A' item No.1 property is unsustainable. Therefore, the final decree order in FDP No.49/2003 to that extent has no legs to stand. Therefore, unsustainable and needs to be reversed.
For the aforesaid reasons R.F.A. No.743/2003 and R.F.A. No.190/2008 are hereby partly allowed with costs. The judgment and decree of the trial Court in O.S. No.3628/1988 is hereby partly set aside. The suit is dismissed in respect of plaint schedule 'A' item No.1 property. The rest of the decree is maintained.
The impugned order dated 20.10.2007 in FDP No.49/2003 passed by the Trial Court in respect of plaint schedule A item No.1 property is hereby set aside.
Sd/-
JUDGE tsn*