Bangalore District Court
Mrs. Lakshmi Ramachandrappa vs Mrs. Nalini Ramachandran on 2 November, 2017
IN THE COURT OF THE LIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE CITY (CCH-60)
Dated this the 2nd day of November 2017
: PRESENT :
Sri B. B. Jakati, B.A., LL.B., (Spl.)
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY
O.S.No.6971/2015
PLAINTIFF: Mrs. Lakshmi Ramachandrappa,
Aged about 45 years,
D/o B.S. Ramachandrappa,
W/o Shilesh Uppina.
R/at No.473, New No.162,
Royal Nilaya, Sampige road,
Mallewaram,
Bengaluru - 560 003.
Now r/at No.1302, Windsor Ct.
Denville - New Jersey, U.S.A.
(By Sri B.S.Nagaraj, Advocate)
DEFENDANTS: 1. Mrs. Nalini Ramachandran,
Aged about 73 years,
W/o Late B.S. Ramachandrappa
2. Mr. Suresh Royal Ramachandrappa
Aged about 55 years,
S/o Late B.S. Ramachandrappa
Both are r/at No.473,
2 O.S.No.6971/2015
New No.162, Royal Nilaya,
Sampige road, Mallewaram,
Bengaluru - 560 003.
(By Sri K.R.L., Advocate)
Date of institution of the suit : 10.08.2015
:
Nature of the suit Suit for
Partition
Date of commencement of :
recording of the evidence 31.07.2017
Date on which the Judgment :
was pronounced. 02.11.2017
: Year/s Month/s Day/s
Total duration
02 02 22
(B. B. JAKATI)
LIX ADDL. C.C. & SESSIONS JUDGE,
BENGALURU CITY.
JUDGMENT
The plaintiff has filed this suit for partition and separate possession of her 1/3rd share in the schedule properties. 3 O.S.No.6971/2015
2. The case of the plaintiff in brief is that, she is the daughter and defendant No.2 is the son of defendant No.1 and Ramachandrappa. Item No.1 property was fallen to the share of her father in partition deed dated 04.12.1985 and therefore, the said property is the ancestral property of herself and the defendants. Her father B.S. Ramachandrappa was working in Regional Provident Fund Commissioner's Office and he purchased item No.2 property from Regional Provident Fund Commissioner's Office of Employees House Building Co- operative Society Limited through registered sale deed dated 02.12.1983. Therefore, item No.2 property was the self- acquired property of the father of the plaintiff. The father of the plaintiff through his earnings and savings purchased item No.3 property in the name of the defendant No.1 through registered sale deed dated 14.08.1991. Therefore, it is joint family property of plaintiff and defendant. The plaintiff has pleaded that her father died on 29.10.2012 intestate. After his death the plaintiff and defendants have inherited and succeeded the schedule properties. The plaintiff demanded her 4 O.S.No.6971/2015 share in the schedule properties which has been denied by the defendants and hence, this suit for partition.
3. After service of summons both defendants appeared through their counsel and filed the written-statement. In the written-statement the defendants have admitted that plaintiff is the daughter of defendant No.1 and Ramachandrappa. They have also admitted that item No.1 property was fallen to the share of Ramachandrappa in family partition and item No.2 property was self-acquired property of Ramachandrappa, They have denied the purchase of item No.3 property by the father of the plaintiff in the name of defendant No.1 from his earnings. The defendants have denied the share of the plaintiff in item No.1 to 3 properties on the ground that the father of the plaintiff bequeathed item No.2 property in favour of the defendant No.2 through registered sale deed dated 11.09.2012. After his death the defendant No.2 has become absolute owner of item No.2 property. Item No.3 property has been purchased by the defendant No.1 through her self earnings and therefore, 5 O.S.No.6971/2015 item No.3 is the self-acquired property of defendant No.1. The marriage of the plaintiff performed long back and she is not in joint possession of the schedule property and therefore, even the plaintiff has no share in item No.1 property. On these main grounds the defendants have denied the share of the plaintiff in the schedule property.
4. The plaintiff filed rejoinder to the contention taken by the defendants. In the rejoinder the plaintiff has denied the Will deed said to be executed by her father and self acquisition of item No.3 property by the defendant No.1.
5. On the rival pleadings of the parties, the following issues have been framed:
(1) Whether the defendants prove the due execution and attestation of Will deed dated 11.09.2012 said to be executed by Ramachandrappa in respect of item No.2 property?
(2) Whether the defendants prove that item No.3 property is the self 6 O.S.No.6971/2015 acquired property of defendant No.1?
(3) Whether the plaintiff is entitled for any share in the schedule properties? If yes, what is her share and in which of the properties?
(4) What Order or Decree?
6. To prove the claim, the plaintiff examined herself as P.W.1 and got marked the documents at Ex.P.1 to P.9. Both defendants examined themselves as D.W.1 and 2 and one of the attesting witness to the Will deed as D.W.3. The defendants got marked documents at Ex.D.1 to D.15.
7. The learned counsel for the plaintiff has argued that the defendants have admitted the relationship between the parties in the pleadings itself. Even the defendants have admitted that item No.1 property was fallen to the share of Ramachandrappa in family partition and therefore, it has to be treated as coparcenery property. He has argued that item No.2 property was self acquired property of Ramachandrappa. The 7 O.S.No.6971/2015 defendants have propounded the Will deed dated 11.09.2012 which is surrounded with many suspicious circumstances and those suspicious circumstances have not been dispelled by the defendants. Ramachandrappa was bed-ridden at least six months prior to his death, which has been admitted by D.W.1 and 2 in the cross-examination and the Will deed said to be registered in the house of Ramachandrappa by affixing old photographs of the executant and through the Will deed the natural succession has been interpreted and therefore, these facts show suspicious circumstances surrounding the Will deed which are not explained by the defendants through proper evidence. On these grounds he prayed to discard the Will deed. He has further argued that there is no pleading in the written-statement about the source of income of defendant No.1 to acquire item No.3 property and in the evidence it has been tried to show that defendant No.1 had source of income through tuition and other classes which has not been proved. There was no independent income to the defendant No.1 to acquire item No.3 property and therefore, item No.3 has to be 8 O.S.No.6971/2015 held as joint family property. On these grounds he has contended that by virtue of Section 6 of Hindu Succession (amendment) Act, 2005 the plaintiff is entitled for 1/3rd share in the schedule properties and accordingly prayed to decree the suit. In support of his argument he placed reliance on the following decisions:
(1) ILR 2007 Karnataka 247 {S.B.Ittige and anr. V/S. S.V. Sulochana and ors.}; (2) AIR 1962 SC 567 {Rani Purnima Debi and Anr V/S. Kumar Khagendra Narayan Deb and Anr}; (3) ILR 2007 KAR 1484, {W.E. Sambandam V/S. W.E. Sathyanarayananan and Ors} ; (4) (1990) 1 SCC 266, Kalyan Singh V/S. Smt. Chhoti and Ors}.
8. The learned counsel for the defendants argued that item No.2 property was the self acquired property of Ramachandrappa and he has bequeathed that property in favour of defendant No.2 by executing registered Will deed. The plaintiff has admitted the signature of her father in the Will deed and thereby admitted the execution and therefore, by 9 O.S.No.6971/2015 examining the attesting witness/D.W.3 the defendants have proved the Will deed at Ex.D.13 and hence, the plaintiff or the defendant No.1 has no right in item No.2 property. It has been argued that item No.3 property was purchased by the defendant No.1 through her self earnings and therefore, that property is the absolute property of defendant No.1 by virtue of Section 14(1) of Hindu Succession Act. The plaintiff has no right to seek partition in that property. He has argued that item No.1 property is the only property left behind by Ramachandrappa and at the most the plaintiff can get legitimate share in this property only. On these grounds he prayed to dismiss the suit. In support of his argument he has relied upon the following decisions:
(1) AIR 1977 SC 1944 {V. Tulasamma and Ors V/S. Sesha Reddy (dead) by LRs.} ; (2) Civil Appeal No.1071/2006 {M.B. Ramesh (D) by LRs. V/S. K.M. Veeraje Urs (D) by LRs. And others}.
9. My findings to the above Issues are as under : 10 O.S.No.6971/2015
Issue No.1 : In the Negative. Issue No.2 : In the Negative. Issue No.3 : In the Affirmative Issue No.4 : As per final order, for the following:
REASONS
10. ISSUE NO.1 : - The parties to the suit admitted that B.S. Ramachandrappa is the father of plaintiff, defendant No.2 and husband of defendant No.1. Ramachandrappa was working in Regional Provident Fund Commissioners Office and through House Building Co-operative Society of the said office Ramachandrappa purchased item No.2 property through sale deed dated 02.12.1983/ Therefore, the parties have admitted that item No.2 property was the self-acquired property of Ramachandrappa. Ex.P.5 and 7 are the khatha certificate and khatha extract of item No.2 property which are standing in the name of Ramachandrappa. Ex.D.6 is the primary evidence of the sale deed dated 02.12.1983 executed by House Building Co-operative Society in favour of B.S Ramachandrappa by 11 O.S.No.6971/2015 selling item No.2 property. Ex.D.7 is the possession certificate issued in the name of B.S. Ramachandrappa on 17.04.1994 by putting B.S. Ramachandrappa in possession of item No.2 property. Ex.D.8 and 9 are the khatha certificates standing in the name of B.S. Ramachandrappa in respect of item No.2 property. Ex.D.10 is the khatha extract of the same property. Ex.D.14 and 15 are the khatha certificate and khatha extract of item No.2 property which are standing in the name of defendant No.2 based on the alleged Will deed. Excluding Ex.D.14 and 15 other documents referred above are admitted by the parties. These documents show that item No.2 property was the self acquired property of B.S. Ramachandrappa and after his death the name of defendant No.2 has been entered in the records.
11. When the parties admitted that item No.2 property was the self acquired property of B.S. Ramachandrappa, he had absolute right to execute the Will deed bequeathing this property as per his choice. Therefore, right of alienation of B.S. 12 O.S.No.6971/2015 Ramachandrappa in respect of item No.2 property is not disputed by any of the parties. In the background of these facts, whether B.S. Ramachandrappa has executed the will deed in favour of defendant No.2 is to be decided.
12. The defendant No.2 who is the propounder of the will deed has produced the primary evidence of Will at Ex.D.13. In this Will it has been shown that B.S. Ramachandrappa bequeathed item No.2 property in favour of defendant No.2 who is his son. The deed came to be executed on 11.09.2012. This deed has been drafted by Sri G.R. Rajanna, Advocate and it has been witnessed by K.N. Venkatesh who has been examined as D.W.3 and S.R. Ashwathnarayana Rao. During the evidence it has been brought on record that S.R. Ashwathanarayana Rao is no more. The defendants have not examined G.R. Rajanna who drafted the will deed. In the will deed it has been shown that on 11.09.2012 at 1.45 P.M. the Sub-Registrar of Malleswaram went to the house of B.S. Ramachandrappa for registration, he collected total fee of 13 O.S.No.6971/2015 Rs.1,300/- from the executant and registered the will deed on the very day. In the will deed two photographs of B.S. Ramachandrappa have been affixed which are countersigned by Sub-Registrar. The photographs have been admitted by the plaintiff saying that those photographs belong to her father. Even the plaintiff has admitted in the cross-examination that the signature of her father are appearing in Ex.D.13(d) and (e).
13. In order to prove the due execution and attestation of Ex.D.13, the defendants have examined D.W.3. The D.W.3 has stated that Ex.D.13 was executed by B.S. Ramachandrappa in his house in the presence of himself and Ashwathnarayana Rao. He has also stated that in his presence B.S. Ramachandrappa put his signature on the Will deed at Ex.D.13 and subsequently on the very day the deed has been registered in the house of B.S. Ramachandrappa. By examining D.W.3 the defendants have complied Section 68 of Indian Evidence Act. The evidence of D.W.3 that executant has put his signature on Ex.D.13 has not been shaken in the cross- 14 O.S.No.6971/2015 examination. Apart from that, P.W.1 herself has admitted that signatures of her father are appearing in Ex.D.13(d) & (e). Therefore, the evidence of D.W.3 and admission given by P.W.1 are sufficient to hold that B.S. Ramachandrappa put his signature on Ex.D.13 and subsequently it has been registered.
14. In the matter of M.B. Ramesh (D) by LRs. V/S. K.M. Veeraje Urs (D) by LRs. And others Civil Appeal No.1071/2006, the Hon'ble Supreme Court in Para No.16 held that Will has to be executed in the manner required by Section 63 of Succession Act and by examining at least one of the attesting witnesses as required under Section 68 of Indian Evidence Act the Will has to be proved. In the present case the Will at Ex.D.13 has been executed by B.S. Ramachandrappa in accordance with Section 63 of Indian Succession Act and now the defendants by examining the D.W.3 complied Section 68 of Indian Evidence Act and thereby proved that signatures in Ex.D.13 were made by B.S. Ramachandrappa and those handwritings belong to B.S. Ramachandrappa. Therefore, 15 O.S.No.6971/2015 considering these evidence on record, I hold that Ex.D.13 bears the signatures of B.S. Ramachandrappa as executant and that part of the document has been proved by the defendants.
15. The Hon'ble Supreme Court in the decision reported in AIR 1962 SC 567 has held that when the testator does not make a proper provision for his natural heirs, it creates suspicion and such suspicious circumstance has to be removed by propounder. In ILR 2007 Karnataka 1484 the Hon'ble High Court of Karnataka held that when the typed Will came to be registered during the period of hospitalization of testator, it creates doubt and such suspicious circumstance has to be expelled by the propounder. In another decision reported in (1990) 1 SCC 266, the Hon'ble Supreme Court has held that dis-inheriting testator's wife and non-production of Will deed before the public authorities in reasonable time amounts to suspicious circumstance.
16. These principles laid down by the Hon'ble Supreme Court and the Hon'ble High Court clearly show that mere 16 O.S.No.6971/2015 proof of signature of the testator on the disputed Will deed is not sufficient to prove the bequeath of property. Along with proving of signature of the testator on the Will, the propounder is required to dispel all the suspicious circumstances surrounding on the Will deed. If the suspicious circumstances are not dispelled in accordance with law, the propounder would not get any right in the property bequeathed under the Will deed. In other words the propounder is required to dispel all the suspicious circumstances surrounding the Will deed in order to get absolute right over the item No.2 property.
17. In the present case first suspicious circumstance raised by the plaintiff is the illness of her father and capacity of her father to execute the Will deed. The plaintiff has stated that her father was bedridden and not able to execute the Will deed and therefore, Will deed has been created by the defendants. In order to prove the illness of B.S. Ramachandrappa, the plaintiff has produced the photographs at Ex.P.1 to P.3. These photographs have been admitted by 17 O.S.No.6971/2015 the D.W.1 and 2 in their cross-examination. In these photographs, the photographs of B.S. Ramachandrappa is visible. B.S. Ramachandrappa is bedridden as on 21.08.2012 when the photographs were taken. The alleged Will deed executed on 11.09.2012 and testator died on 29.10.2012. There is a gap of one month 18 days from the date of execution of the Will deed and date of death of testator. The photographs at Ex.P.1 to 3 clearly show that prior to 11.09.2012 the testator was bedridden.
18. The D.W.1 in her cross-examination at Para No.2 has admitted that B.S. Ramachandrappa was suffering from Cancer since 2-3 years prior to his death. He was not in a position to walk outside the house independently. B.S. Ramachandrappa retired from service in 1991. She has further admitted that her husband was bedridden for about six months prior to his death. The D.W.1 has admitted in her cross- examination at Para No.7 that the defendant No.2 was bringing money from the account of her husband for medical expenses. 18 O.S.No.6971/2015 D.W.2 who is the propounder of the Will in his cross- examination has admitted that he passed LL.B., and now working in I-Gate Software Company as Engineer. He has further admitted that his father was not in a position to walk since 2010 till his death. He has also stated that his father was bedridden prior to his death. From 2010 he was operating the account of his father. The amount from the account of B.S. Ramachandrappa was drawn through ATM either by D.W.2 or by his wife. He has also admitted that from 2010 onwards he was looking after the family affairs. D.W.3 in his cross- examination has admitted that B.S. Ramachandrappa was bedridden when he saw him on the date of Will deed. He has further admitted that even prior to 09.11.2012 B.S. Ramachandrappa was bedridden.
19. The admissions given by D.W.1 to 3 are sufficient to hold that from 2010 B.S. Ramachandrappa was suffering from Cancer and he was bedridden at least for six moths prior to his death. So, as on the date of execution of the Will deed B.S. 19 O.S.No.6971/2015 Ramachandrappa was bedridden and he was not in a position to walk independently and even he was not in a position to go out of his house. There was no physical capacity for the executant to go to Sub-Registrar Office for registration. Under these medical conditions the Will deed came into existence. Therefore, these circumstances amount to suspicious circumstances surrounding on the Will deed. Whether these circumstances have been dispelled by the propounder is to be looked into.
20. The plaintiff has taken the stand that her father was not in a position to sit, call the Sub-Registrar and the attesting witnesses for execution of the Will deed and the defendant No.2 who is the beneficiary under the Will deed by taking active participation in execution of the Will deed made all the arrangements and without disclosing the real contents of Will deed obtained the signature of her father and even she has disputed the signature of her father. The defendant No.1 and 2 in their evidence have denied their presence at the time of 20 O.S.No.6971/2015 execution of the Will deed and even they have denied the knowledge of execution of the Will deed as on that date including their active partition. In view of these contentions of the parties how the testator who was bedridden able to execute the Will deed by calling Sub-Registrar, Advocate and the witnesses is to be looked into.
21. On perusal of the photographs of testator at Ex.P.1 to P.3, it is very clear that testator was physically unfit to call attesting witnesses, Advocate who prepared the Will deed and the Sub-Registrar and even he was not having physical capacity to arrange to pay the stamp duty shown in Ex.D.13. Therefore, the propounder is required to explain how the testator made all the arrangements for execution of Ex.D.13. In order to prove such fact the defendant has relied upon evidence of D.W.3. The D.W.3 in his examination-in-chief has stated that on 11.09.2012 itself the testator contacted him, called him to the house by saying that he is going to execute the Will deed and therefore, he went to the house of testator. 21 O.S.No.6971/2015 He has also stated that Ashwathnarayan was present in the house of testator when he reached the house. In the cross- examination the D.W.3 has stated that through phone testator called him. He has stated that when he reached the house testator was sleeping on the bed, Ashwathnarayan and Sri Rajanna, Advocate were present in the house. He has stated that at about 12.00 to 1.00 P.M. the Will deed was registered. He states that in the house of testator his wife, son were not present when Will deed was executed.
22. These statements made by D.W.3 clearly indicate that he does not know how testator arranged for execution of the Will deed by calling Advocate, attesting witnesses, Sri Ashwathnarayan Rao and the Sub-Registrar to his office. When testator was bedridden and when the attendant is required, there shall be some body in the house of testator who were looking after him. But surprisingly D.W.3 has stated that excluding testator, Advocate and Ashwathnarayan there were no other family members present in the house including 22 O.S.No.6971/2015 attendant of testator. These facts create lot of suspicion. Therefore, the evidence of D.W.3 is found to be not trust- worthy.
23. The defendants have not called Sri Rajanna/Advocate who drafted the Will deed and even they have not called the Sub-Registrar who have got registered the Will deed in the house of testator to explain, who had called them to the house of testator, who has given instructions, drafted the Will deed and who has arranged for payment of fees to the Advocate and also registration fee. Therefore, examination would have shown and explained the arrangement made by the testator or some body for execution of the Will deed. Such evidence has been withheld by the propounder of the Will. Considering these aspects of the matter, I hold that the propounder of the Will not removed the suspicion circumstances as to how bedridden person able to execute the Will deed and arranged for registration of the Will deed on his own. These facts suggest the active participation of the 23 O.S.No.6971/2015 defendants in execution of Ex.D.13. When the beneficiary under the Will taken participation in the execution of the Will, it again creates suspicion as to the execution of the Will deed by the testator through his free will and wish. For these reasons I hold that the defendants have not dispelled the important suspicious circumstances surrounding on the Will.
24. The testator is having wife, son and daughter. There are no other legal heirs of testator. If the testator died intestate, the wife and the daughter would have succeeded to the property of testator including item No.2 property. By Ex.D.13 such natural succession has been interpreted. Therefore, this is also one of the suspicious circumstances surrounding on the Will and therefore, the propounder has to explain what was the reason for the testator not to give item No.2 property to his wife and the daughter.
25. In order to explain the reason neither the D.W.1 nor the D.W.2 has stated any special reason. The D.W.1 who 24 O.S.No.6971/2015 is the mother of plaintiff in her cross-examination in Para No.8 has admitted that she has got equal love and affection towards plaintiff and defendant No.2. But she is not having intention to give property equally to the daughter and the son. From these statements it appears that mother has got love and affection towards both children. Relationship between the father and the daughter was not strained before the execution of the Will deed. In Ex.D.13 it has been shown that plaintiff and defendant No.2 are married, testator was residing with defendants and whereas the plaintiff was residing in USA from 2006. In the Will deed it has been specifically shown that plaintiff has taken care and respected him and even shown lot of love and affection. These statements made in Ex.D.13 further show that testator had no hostile intention against his daughter. On the other hand, testator was having equal love and affection towards the daughter also. Therefore, even the Will deed is silent as to how the property has been given to son alone. There is no evidence on record as to why the right of wife and daughter has been curtailed in item No.2 property by 25 O.S.No.6971/2015 the testator. Thus, I hold that this is another suspicious circumstance surrounding on the Will deed and such suspicious circumstance has not been removed by the propounder legally.
26. For these reasons I hold that the Will deed at Ex.D.13 is surrounded with strong suspicious circumstances and those strong suspicious circumstances have not been removed by the propounder. Thus, I hold that the defendants more particularly the propounder of the Will has not established the Will deed at Ex.D.13 in accordance with law. Therefore, he cannot claim absolute right over item No.2 property. Hence, I answer this Issue in the Negative.
27. ISSUE NO.2:- Both parties have admitted that item No.3 property was purchased on 14.08.1991 in the name of defendant No.1 through registered sale deed produced at Ex.D.1. According to the plaintiff this property has been purchased from the income of her father and whereas the defendants claim that this property is the self acquired property 26 O.S.No.6971/2015 of defendant No.1. When the father of the plaintiff was in service, acquired ancestral property in item No.1 and when he purchased item No.2 property during his lifetime, the burden of proof that item No.3 property is the self acquired property of defendant No.1 is on the defendants.
28. In the written-statement the defendants have simply pleaded that item No.3 property is the self acquired property of defendant No.1. There is no pleading how the defendant No.1 acquired this property and what was the source of her independent income. Even in the examination-in-chief of D.W.1 and D.W.2, no statements have been made regarding the source of income of defendant No.1 and how she alone made arrangement for payment of consideration passed under Ex.D.1.
29. In order to disprove the contention of the defendants, the plaintiff has stated that item No.3 property is the joint family property which has been purchased by her 27 O.S.No.6971/2015 father by paying consideration. This statement of plaintiff has been denied. In order to prove that father has paid consideration amount for purchase of item No.3 property, the plaintiff has cross-examined D.W.1 and 2 and taken vital admissions from them.
30. The D.W.1 in her cross-examination has admitted that she is a housewife. She states that as on the date of deposition she was 73 years old. She has stated that she was taking tuition and music classes and thereby earning. In the cross-examination the D.W.1 not able to state in which year she has purchased item No.3 property and what was the consideration amount paid. Even she is not able to state for how many years she saved money from her occupation for the purchase of property. She has stated that she was taking tuition for 5-6 students and she was taking music classes for 5 students. She is not able to state what was the fees fixed by her for each of the student. She has admitted that there was no account in her name and even she is not able to state from 28 O.S.No.6971/2015 which year to which year she was taking tuition and music classes D.W.2 in his cross-examination has stated that his mother was receiving tuition fee and admitted that his mother failed in SSLC. The defendants have not produced any documentary evidence to show independent source of defendant No.1 or savings of deceased No.1 for purchase of item No.3 property. The sale deed at Ex.D.1 indicates that the property has been purchased by paying Rs.3,600/-.
31. When, the defendant No.1 failed in SSLC when she is not able to state the fees collected from each of the students including the period in which she was taking the classes, it is very hard to believe the statements made by both witnesses that too in the cross-examination regarding the source of income and self acquisition of item No.3 property. Thus, I hold that the evidence on record is not sufficient to prove that item No.3 has been acquired by defendant No.3 alone from her self earnings.
29 O.S.No.6971/2015
32. In the decision reported in (1977) 3 SCC 99 the distinction between Section 14(1) and Section 14(2) of Hindu Succession Act, 1956 has been interpreted. It has been held that Section 14(1) of the Act applied toe the properties granted to a female Hindu by virtue of pre-existing right of maintenance. It is further held that Section 14(2) of the Act apply when property is granted to a female Hindu for the first time without any pre-existing right. In the present case it is the claim of the plaintiff that the defendant No.1 being one of the members of joint family, her father purchased the property in the name of defendant No.1 and therefore, it is joint family property. Now the defendants have failed to establish that this property is the self-acquired property of defendant No.3. Whether only because the property has been purchased in the name of defendant No.1 during the lifetime of Kartha of the family, an inference can be drawn that it is absolute property of defendant No.1 is the matter for consideration. It is not the case of the defendants that item No.3 property has been given to the defendant No.1 by the Kartha towards her maintenance. 30 O.S.No.6971/2015 Therefore, Section 14(1) of Hindu Succession Act, 1956 cannot be pressed into service. The father was having independent income and he was the only earning member in his family when item No.3 property was purchased. These facts suggest that the father of the plaintiff purchased the item No.3 property in the name of his wife by paying consideration. Looking to these facts and circumstances of the case I hold that from the nucleus of joint family item No.3 property has been purchased in the name of one of the members of the family and therefore, the defendant No.1 cannot claim her absolute right over item No.3 property by taking advantage of Section 14(1) of Hindu Succession Act, 1956. Accordingly, I hold that item No.3 property is not the self acquired property of the defendant No.1, but it is joint family property of the plaintiff and the defendants. Hence, this issue is answered in the Negative.
33. ISSUE NO.3:- Ex.P.4 and Ex.P.6 are the khatha certificate and khatha extract of item No.1 property. Ex.D.2 is the primary evidence of partition deed dated 04.12.1985 took 31 O.S.No.6971/2015 place between B.S. Ramachandrappa and his brothers. Under this partition item No.1 property has fallen to the share of B.S. Ramachandrappa. Ex.D.3 and Ex.D.4 are also the khatha certificate and khatha extract of item No.1 property which are standing in the name of B.S. Ramachandrappa. These documents and the admission in the pleadings of both parties is sufficient to hold that item No.1 property was fallen to the share of B.S. Ramachandrappa in the family partition. After deed of partition it has been acquired by B.S. Ramachandrappa and B.S. Ramachandrappa died intestate in respect of this property. Under Hindu Succession Act, the plaintiff and defendant No.2 being the coparceners inherited and succeeded item No.1 property. Therefore, the plaintiff has got legal share in item No.1 property.
34. Item No.2 property is the self-acquired property of B.S. Ramachandrappa and after his death this property is inherited by plaintiff and defendants under Hindu Succession Act, 1956. This property is also available for partition as the 32 O.S.No.6971/2015 defendants have failed to establish the Will deed at Ex.D.13. Therefore, the plaintiff is entitled for legal share in item No.2 property.
35. Item No.3 property has been purchased in the name of defendant No.1 from joint nucleus and therefore, it is joint family property of plaintiff and defendants. The plaintiff and defendants inherited item No.3 property after the death of B.S. Ramachandrappa and therefore, the plaintiff is having legal share in item No.3 property also.
36. What is the legal share of plaintiff in all these properties is to be decided. By virtue of Section 6 of Hindu Succession (Amendment) Act, 2005, the plaintiff has become coparcener of the joint family and therefore she is having equal right that of a son. As on the date of amendment of Section 6, the father of the plaintiff was alive. The Hon'ble Supreme Court in the case of Prakash V/S. Phulavathi Bai has held that living daughter of a living father as on the date of 33 O.S.No.6971/2015 commencement of Hindu Succession (Amendment) Act, 2005 is entitled for equal share in the coparcenery property of the father. Therefore, the plaintiff being the daughter of B.S. Ramachandrappa is entitled for equal share in item Nos.1 to 3 as a coparcener of the family. It is brought on record that plaintiff married in 1990, she is residing in USA from 2007 and she is holding green card of USA from four years. This shows that after the marriage the plaintiff was residing with her husband and from 2007 she is not residing in India. Her residence outside India would not take away her legal right in the schedule properties. Therefore, even though from 1990 she is residing with her husband, the plaintiff is entitled to seek partition in the schedule properties.
37. In the cross-examination of P.W.1 she has admitted that she has not attended the funeral of her father. She has also admitted that after six months of death of her father, she came to India from USA. These admissions show that plaintiff not discharged her moral obligations by attending the funeral of 34 O.S.No.6971/2015 her father or visiting to the house of her father within reasonable time after his death. The plaintiff who has no moral obligation asking the legal right. The court of law cannot deny the legal right only because the daughter has not discharged her moral obligation towards her father. Therefore, I hold that plaintiff is entitled to get her legal share in the schedule properties.
38. The deceased died intestate leaving behind his wife, son and daughter. The item No.1 property is the ancestral property. During the life time of B.S.Ramachandrappa, himself, his son and daughter were the coparceners and item No.1 property is the coparcenery property. After the death of B.S.Ramachandrappa the property in item No.1 devolved on his son and daughter by way of survivorship. The property is existing in Old Mysore area. Even parties are from Old Mysore area. The wife of B.S.Ramachandrappa would not get any share in item No.1 property in view of section 6 of Hindu Succession (Amendment) 35 O.S.No.6971/2015 Act 2005. Hence, in item No.1 property the plaintiff and defendant No.2 are having equal share. The share of the plaintiff in item No.1 property is half.
39. Item No.2 property is the self acquired property of B.S.Ramachandrappa and item No.3 property is the joint family property. He died leaving behind his wife, son and daughter. The plaintiff and defendants are the class-I heirs of B.S.Ramachandrappa. Therefore, under Section 8(a) of Hindu Succession Act 1956, item No.2 and 3 properties devolved upon plaintiff and defendants equally. Thus, the plaintiff and defendants are having 1/3rd share each in these two properties. Accordingly, the partition has to be effected by drawing preliminary decree. Hence, I answer this issue in the Affirmative.
38. ISSUE NO.4 :- For the reasons stated above, I proceed to pass the following:
36 O.S.No.6971/2015
ORDER The suit of the plaintiff is decreed.
The plaintiff is entitled for partition and separate possession of her 1/2 share in item Nos.1 property shown in the schedule of the plaint.
The plaintiff is entitled for partition and separate possession of her 1/3rd share in item Nos.2 and 3 properties shown in the schedule of the plaint.
The defendant No.2 is having 1/2 share in item Nos.1 property and 1/3rd share in item No.2 and 3 properties shown in the schedule of the plaint.
The defendant No.1 is having 1/3rd share in item No.2 and 3 properties shown in the schedule of 37 O.S.No.6971/2015 the plaint. She is not entitled for any share in item No.1 property.
Partition has to be effected under Section 54 of C.P.C.
Parties to bear their own costs.
Draw preliminary decree accordingly.
[Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me, in the Open Court on this the 2nd day of November 2017].
(B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.
ANNEXURE
1. List of witnesses examined on behalf of the plaintiff:
P.W.1 Smt. Lakshmi Ramachandrappa
2. List of witnesses examined on behalf of the Defendant:
DW.1 Smt. Nalini Ramachandran
D.W.2 Sri R. Suresh Royal
D.W.3 Sri K.N. Venkat @ K.N. Venkataramaiah
3. List of documents marked on behalf of the Plaintiff:38 O.S.No.6971/2015
Ex.P.1 to 3 Photographs
Ex.P.4, 5 Khatha certificate
Ex.P.6, 7 Khatha extract
Ex.P.8 Legal notice
Ex.P.9 Reply notice
4.List of documents marked on behalf of the defendant:
Ex.D.1 Sale deed
Ex.D.2 Partition deed
Ex.D.3 Khatha certificate
Ex.D.4, Khatha extract
Ex.D.5 Tax paid receipt
Ex.D.6 Sale deed
Ex.D.7 Possession certificate
Ex.D.8,9 Khatha certificate
Ex.D.10 Khatha extract
Ex.D.11 Tax paid receipt
Ex.D.12 Death certificate
Ex.D.13 Last Will and Testament
Ex.D.14 Khatha certificate
Ex.D.15 Khatha extract
(B. B. JAKATI)
LIX ADDL. C.C. & SESSIONS JUDGE,
BENGALURU CITY.
39 O.S.No.6971/2015
40 O.S.No.6971/2015
02.11.2017:
Judgment pronounced in the Open Court
(Vide separate detailed judgment)
ORDER
The suit of the plaintiff is decreed.
The plaintiff is entitled for partition and separate possession of her 1/2 share in item Nos.1 property shown in the schedule of the plaint.
The plaintiff is entitled for partition and separate possession of her 1/3rd share in item Nos.2 and 3 properties shown in the schedule of the plaint.
The defendant No.2 is having 1/2 share in item Nos.1 property and 1/3rd share in 41 O.S.No.6971/2015 item No.2 and 3 properties shown in the schedule of the plaint.
The defendant No.1 is having 1/3rd share in item No.2 and 3 properties shown in the schedule of the plaint. She is not entitled for any share in item No.1 property. Partition has to be effected under Section 54 of C.P.C.
Parties to bear their own costs.
Draw preliminary decree accordingly.
(B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.
42 O.S.No.6971/2015