Bangalore District Court
Smt.P.C.Manjula vs Smt.Jayamma on 21 September, 2016
IN THE COURT OF THE VII. ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE (CCH.No.19)
Dated: This the 24th t Day of September 2016
Present: Sri. K.L.Ashok, B.Com., LL.B.,
VII Addl. City Civil & Sessions Judge,
Bengaluru City.
O. S. NO. 2161/2012
Plaintiffs: 1. Smt.P.C.Manjula, W/o K.Narayan,
Aged about 31 years.
2. Mahantesh N, S/o K.Narayan, Aged
about 7 years.
3. Amrutha, D/o K.Narayan, Aged about
2-1/2 years.
Plaintiff No.2 and 3 are minors
represented by their natural
guardian mother 1st plaintiff.
No.21, Sreerama Nilaya,
Muneshwaranagara,
Hosakerehalli, Banashankari III
Stage, Bangalore - 560 085.
(By Sri.Rameshchandran,
Advocate)
Vs.
Defendants: 1. Smt.Jayamma, W/o Late Kallaiah,
Aged about 62 years, No.122, 16th
Main, Banashankari I Stage, II
Block, Bangalore - 560 050.
2 O.S.2161/2012
2. Smt.K.Radha, D/o Late Kallaiah,
Aged about 41 years, No.34,
Nanjappa Layout, Yelachanehalli,
Konanakunte Post, Bangalore -
560 062.
3. Smt.Geetha. K
D/o Late Kallaiah, Aged about 38
years, No.122, 16th Main,
Banashankari I Stage, II Block,
Bangalore - 560 050.
4. Smt.K.Pankaja, D/o Late Kallaiah,
Aged about 36 years, No.122, 16th
Main, Banashankari I Stage, II
Block, Bangalore - 560 050.
(By Sri.V.J., Advocate)
Date of institution of suit 26-03-2012
Nature of the suit Partition
Date of commencement of
recording of evidence 05.09.2015
Date on which Judgment
was pronounced 24.09.2016
Total duration Days Months Years
28 05 04
/ JUDGMENT /
The plaintiffs have filed this suit against the defendants
for the relief of partition and separate possession of half share
in the suit schedule properties and for costs and such other
reliefs that this Court may deem fit.
3 O.S.2161/2012
2. The brief facts of plaintiff's case are that the plaintiff
is the wife of late K.Narayana and plaintiffs No.2 and 3 are their
children, that late K.Narayana and the 1st defendant are the son
and wife of late Kallaiah respectively. That the suit schedule
properties are the joint family properties of the family of
Kallaiah. That the 1st defendant has allegedly sold suit
schedule item No.2 in favour of the 2nd defendant. That she
has sold suit schedule items No.3 in favour of 3rd defendant and
has gifted suit schedule Item No.4 in favour of the 4th
defendant. That these transactions are not binding on the
plaintiff. That the defendants have refused to partition the suit
schedule properties and hence, this suit.
3. After service of suit summons, the defendants No.1
to 4 have appeared through their Counsel and have filed
written statement denying plaint averments. According to the
defendants, late Kallaiah had no income. That the 1st
defendant by her hard work has brought up her son and got
him married to the 1st plaintiff. That the 1st plaintiff being a
materialistic lady did not take care of her husband properly and
was torturing him for the money. That the suit schedule
4 O.S.2161/2012
properties No.1 to 4 are the self acquired properties of the 1st
defendant and suit schedule item No.5 does not exist.
Accordingly, the defendants have sought for dismissal of the
suit.
4. On the basis of the above pleadings of the parties, the
following issues have been framed:-
1. Whether the plaintiffs prove that the
schedule properties are joint family
properties?
2. Whether plaintiffs prove that
themselves the defendants No.1 to
4 are in joint possession and
enjoyment of schedule property?
3. Whether the plaintiffs are entitle for
1/5th share in the schedule
properties?
4. Whether the plaintiffs are entitle for
mesne profits?
5. Whether the plaintiffs are entitle for
the reliefs sought?
6. What order or decree?
5. In support of the case, the 1st plaintiff is examined as
Pw.1 and documents at Exs.P1 to P15 are marked. In spite of
sufficient opportunity, the defendants have neither cross-
5 O.S.2161/2012
examined P.W.1 nor have adduced any evidence. Hence, the
testimony of P.W.1 has remained unchallenged.
6. Along with the suit, the plaintiffs had also filed
I.A.No.1 U/s 19 and 23 of the Hindu Adoption and Maintenance
Act seeking monthly maintenance of Rs.25,000/- per month and
an additional sum of Rs.20,000/- towards the cost of litigation.
The defendants filed their objections denying the averments of
the plaintiffs in toto. The Learned Counsel for the plaintiffs
submitted that I.A.No.1 may be taken along with the merits of
the suit and hence, same is considered in this judgment.
7. The Learned Counsel for the plaintiff has argued that
in view of the unchallenged testimony of P.W.1 and failure of
the defendants to adduce their evidence, the suit is l to be
decreed. In support of his arguments, the Learned Counsel for
the plaintiff has relied upon the decision of Hon'ble Supreme
Court reported in AIR 1999 SC 1341 between Iswar Bhai C.
Patel @ Bachubhai Bhai Patel Vs. Harihar Behere and
another, AIR 1999 SC 1441 between Vidhyadhar Vs.
Mankikrao and another and that of the Hon'ble High Court of
Karnataka, reported in AIR 1998 Karnataka 325 between
6 O.S.2161/2012
Vadde Sanna Hulugappa S/o Hanumanthappa and others
Vs. Vadde Sanna Hulugappa, S/o Siddappa and others. In
spite of sufficient opportunity, the defendants have not
addressed their arguments. Having heard the arguments of
the plaintiff and on perusal of the evidence and exhibits, my
findings to the above 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 affirmative
Issue No.5 : Partly in the affirmative
Issue No.6 : As per the final order for the
following:
REASONS
8. Issues No.1 & 2:- As these issues are
interconnected and are interdependent, they are taken up
together for discussion in order to avoid repetition of facts. The
plaintiff has claimed that the suit schedule properties are the
joint family properties of late K.Narayan. In order to prove their
case, the 1st plaintiff was examined as P.W.1 and Exs.P1 to
7 O.S.2161/2012
P15 were marked. Ex.P15 is the wedding card of the 1st
plaintiff with late K.Narayana and it corroborates the claim of
the plaintiff. Even otherwise, the relationship of the plaintiffs
with late K.Narayana is undisputed. Exs.P1 to P14 are the
certified copies of the sale deeds, khatha extracts and
encumbrance certificates which corroborate the claim of the
plaintiff over suit schedule items No.1 to 4. The oral and
documentary evidence produced by the P.W.1 completely
corroborates the case of the plaintiffs. As defendants No.1 to 4
though had filed their written statement, did not cross-examine
P.W.1 and failed to adduce defence evidence, the suit of the
plaintiff and the testimony of P.W.1 along with Exs.P1 to P15
have remained unchallenged.
9. The Learned Counsel for the plaintiffs in support
of his arguments has relied upon the decision of Hon'ble
Supreme Court reported in AIR 1999 SC 1341 between Iswar
Bhai C. Patel @ Bachubhai Bhai Patel Vs. Harihar Behere and
another, and AIR 1999 SC 1441 between Vidhyadhar Vs.
Mankikrao and another In support of his case. The Hon'ble
Supreme Court of India in the decision reported in AIR
8 O.S.2161/2012
1999 SC 1341 between Iswar Bhai C. Patel @ Bachubhai
Bhai Patel Vs. Harihar Behere and another, was pleased to
hold that:
"Applying the principles stated above to the
instant case, it would be found that in the instant case
also the appellant had abstained from the witness box
and had not made any statement on oath in support of
his pleading set out in the written statement. An
adverse inference has, therefore, to be drawn against
him."
Similarly The Hon'ble Supreme Court of India in the
decision reported in AIR 1999 SC 1441 between Vidhyadhar
Vs. Mankikrao and another. was pleased to hold that:
16. Where a party to the suit does not appear
into the witness box and states his own case on oath
and does not offer himself to be cross examined by the
other side, a presumption would arise that the case set
up by him is not correct as has been held in a series of
decisions passed by various High Courts and the Privy
Council beginning from the decision in Sardar
Gurbakhsh Singh v. Gurdial Singh and Anr. . This was
followed by the Lahore High Court in Kirpa Singh v.
Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the
Bombay High Court in Martand Pandharinath
Chaudhari v. Radhabai Krishnarao Deshmukh AIR
(1931) Bombay 97. The Madhya Pradesh High Court in
Gulla Kharagjit Carpenter v. Narsingh Nandkishore
Rawat also followed the Privy Council decision in
Sardar Gurbakhsh Singh's case (supra). The
Allahabad High Court in Arjun Singh v. Virender Nath
and Anr. held that if a party abstains from entering
the witness box, it would give rise to an inference
adverse against him. Similarly, a Division Bench of the
9 O.S.2161/2012
Punjab & Haryana High Court in Bhagwan Dass v.
Bhishan Chand and Ors. , drew a presumption under
Section 114 of the Evidence Act against a party who
did not enter into the witness box.
The principles laid down in the above ruling are aptly applicable
to present case on hand. Even in this case, the defendants
having appeared through their Counsel and having filed their
written statement did not cross-examine P.W.1 and also did not
step into the witness box. Therefore, there is no other go but to
draw an adverse inference against the defendants that if they
had contested the suit it would have gone against them.
10. As the defendants have not contested the suit,
there are no reasons to disbelieve the case of the plaintiffs. The
rulings which are relied upon by the plaintiffs are aptly
applicable to present case on hand. The documents produced
by the plaintiff clearly establish that the suit schedule properties
No.1 to 4 are the joint family properties of late K.Narayana and
the defendants and there are no reasons to hold to the
contrary. Accordingly, issues No.1 and 2 are answered in the
affirmative.
10 O.S.2161/2012
11. Issues No.3 & 4:- As these issues are
interconnected and are interdependent, they are taken up
together for discussion in order to avoid repetition of facts. The
plaintiffs have claimed 1/5th share in the suit schedule
properties. Family of late Kallaiah consisted of his wife
Jayamma, deceased K.Narayana and defendants No.2 to 4.
Since, there would be a notional partition on the date of demise
of Kallaiah one share would go to Kallaiah and the defendants
No.2 to 4 and deceased K.Narayana would receive one share
each. Therefore, these plaintiffs being the legal representatives
of late K.Narayana would be entitled for his share in the joint
family properties.
12. The plaintiffs have also sought mesne profit from
the suit schedule properties. As the suit of the plaintiffs has
remained uncontested there are no reasons to disbelieve the
claim of the plaintiffs that these defendants are enjoying the suit
schedule properties to the exclusion of the plaintiffs. Such
being the case, the plaintiffs would be entitled for the mesne
profits. At the same time, the plaintiff=s have also claimed
maintenance and cost of litigation vide I.A.No.1 from the
11 O.S.2161/2012
defendants. The Learned Counsel for the plaintiffs made a
submission that I.A.No.1 may be considered along with the
merits of the suit. Accordingly, same is taken up for discussion
along with issue No.4.
13. Though the plaintiffs have claimed their share in all
the 5 suit schedule properties, there absolutely are no materials
to prove the existence of item No.5. The plaintiffs have claimed
that the defendants have moveable properties including gold
jewelry and silver ornaments worth more than Rs.10,00,000/-
and a cash of Rs.10,00,000/-. Except for pleading the same,
nothing is brought on record to show the existence of these
moveable properties. Since, they are moveable properties,
unless and until the plaintiffs prove the existence of the same,
they would not be entitled for any share in the same.
14. The suit schedule properties No.1 to 4 are
immoveable properties and are capable of generating revenue.
When these defendants are enjoying these properties by
excluding the plaintiffs, the plaintiffs are entitled to get mesne
profit. At the same time, since their share of the property has
not been granted to them, they also would be entitled to get
12 O.S.2161/2012
maintenance from the defendants. However, no material is
placed on record, to show the actual income derived from suit
schedule properties No.1 to 4. Therefore, considering the
nature of the properties and their share in the suit schedule
properties in the hands of the defendants, the plaintiff would be
entitled for a monthly maintenance of Rs.5,000/-. As far as the
cost of litigation is concerned, the plaintiffs would be entitled for
the actual cost incurred in the litigation. At the same time, this
has to be deducted from the mesne profit that these plaintiffs
would be entitled to. Said mesne profit shall be calculated at
the time of the final decree proceedings. Accordingly, issue
No.3 and 4 are answered in the affirmative.
15. Issue No.5:- In this suit some of the properties
have been alienated by the defendants interse. In this regard,
the learned counsel for the plaintiffs has also placed reliance
upon another decision of Our Hon'ble High Court in reported in
AIR 1998 Karnataka 325 between Vadde Sanna Hulugappa,
s/o.Hanumanthappa and others v. Vadde Sanna
Hulugappa, s/o. Siddappa and others, In which, the plaintiffs
filed the suit for partition and separate possession of their 2/3rd
13 O.S.2161/2012
share in the suit schedule property. The suit was dismissed by
the trial Court. The first appeal preferred by the plaintiffs was
also dismissed after confirming the Judgment and Decree of
the trial Court. In the said case both the trial Court and the first
appellate Court had come to the conclusion that the plaintiffs
were entitled to 2/3 share in the suit schedule property, but they
dismissed the suit of the plaintiffs solely on the ground that the
plaintiffs had not prayed for cancellation of the sale deeds
executed by the first defendant in favour of the fourth
defendant. When the matter was challenged before the
Hon'ble High Court of Karnataka, the Hon'ble High Court of
Karnataka made reference to the decision in G.S.Bhosle v.
R.S.Kulkarni, ILR 1985 (1) Karnataka 1115 : AIR 1985
Karnataka 143, and held that in a suit for partition by a Hindu
coparcener, it is not necessary to seek setting aside of
alienation and it is sufficient to seek his share and possession
with declaration that he is not bound by the alienations. The
above ruling is aptly applicable to present case on hand.
Therefore, there is no necessity for the plaintiffs to seek either
14 O.S.2161/2012
cancellation of those deeds or to seek a prayer that they are not
binding on them.
16. The plaintiffs have claimed 1/5th share in the suit
schedule properties. As discussed earlier on issues No.1 to 4,
it is held that these plaintiffs are indeed entitled for 1/5th share in
the suit schedule items No.1 to 4. Though the plaintiffs have
claimed their share in all the 5 suit schedule properties, there
absolutely are no materials to prove the existence of item No.5.
The plaintiffs have claimed that the defendants have moveable
properties including gold jewelry and silver ornaments worth
more than Rs.10,00,000/- and a cash of Rs.10,00,000/-.
Except for pleading the same, nothing is brought on record to
show the existence of these moveable properties. Since, they
are moveable properties, unless and until the plaintiffs prove
the existence of the same, they would not be entitled for any
share in the same. Therefore, , the plaintiffs would be entitled
for the reliefs claimed over the suit schedule properties No.1 to
4 only. Accordingly, issue No.5 is answered partly in the
affirmative.
15 O.S.2161/2012
17. Issue No.6:- In the light of the above discussion, I
proceed to pass the following:
ORDER
The suit of the plaintiffs is partly decreed with costs.
The plaintiffs are jointly declared 1/5th share in the suit schedule properties No.1 to 4 by way of partition and separate possession.
The plaintiffs No.1 to 3 shall also be entitled for mesne profits out of suit schedule properties No.1 to 4 to be calculated at the time of final decree proceedings.
I.A.No.1 filed by the plaintiffs is allowed by granting a monthly maintenance of Rs.5,000/- from the date of the suit till actual partition which shall be deducted out of the mesne profits.
Draw preliminary decree accordingly.
(Dictated to the Judgment Writer through computer, corrected and then pronounced by me in open Court today the 21st day of September 2016).
(K.L.Ashok) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY.
16 O.S.2161/2012/ANNEXURE/ Witnesses examined on behalf of Plaintiff/s:
PW-1 : P.C.Manjula Witness examined on behalf of Defendants:
Nil Documents marked on behalf of Plaintiffs:
Ex.P1 : Certified copy of sale deed dated: 26.10.1990 Ex.P2 : Certified copy of sale deed dated:13.12.2006 Ex.P3 : Certified copy of sale deed dated:16.10.2006 Ex.P4 : Certified copy of gift deed dated:11.12.2006 Ex.P5 : Certified copy of mortgage deed dated: 23.5.1986 Ex.P6 : Khata Certificate Ex.P7 : Khata Extract Ex.P8 : Discharge receipt Exs.P9 to 13 : Encumbrance certificates Ex.P14 : Tax paid receipt Ex.P15 : Wedding invitation card Documents marked on behalf of Defendants:
Nil VII.ADDL.CITY CIVIL JUDGE (CCH.No.19) BANGALORE.17 O.S.2161/2012
24.09.2016 P - R.C. D1 to 4 - V.J. (Judgment pronounced in the open Court (vide separate) The suit of the plaintiffs is partly decreed with costs.
The plaintiffs are jointly declared 1/5th share in the suit schedule properties No.1 to 4 by way of partition and separate possession.
The plaintiffs No.1 to 3 shall also be entitled for mesne profits out of suit schedule properties No.1 to 4 to be calculated at the time of final decree proceedings.
I.A.No.1 filed by the plaintiffs is allowed by granting a monthly maintenance of Rs.5,000/- from the date of the suit till actual partition which shall be deducted out of the mesne profits.
Draw preliminary decree accordingly.
(K.L.Ashok) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY 18 O.S.2161/2012