Karnataka High Court
Mr R Anthony Dass S/O Lt Rajarathnam vs Smt A Rosceline Juliet W/O P Sahayanatha on 3 June, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF JUNE 2013
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
RFA NO.422 OF 2010 (PAR)
BETWEEN:
1. Mr.R.Anthony Dass,
S/o late Rajarathnam,
Aged about 70 years,
Residing at 397,
Gurugumanthana Palya,
Now known as Jagadeeshnagar,
New Thippasandra,
Bangalore - 560 075.
2. Mrs.Shantha Clara,
W/o R.Antonydass,
Aged about 69 years,
3. Sunil Kumar,
S/o R.Anthony Dass,
Aged about 16 years,
4. Miss.Philomina Mary,
D/o R.Anthony Dass,
Aged about 15 years,
5. Arun,
S/o R.Anthony Dass,
Aged about 9 years,
3 to 5 are the children of
Appellants 1 and 2
Represented by their father
R.Anthony Dass,
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All residing at No.28, HAL sanitary Board,
Gurukumanthanapalya,
Now Jagadeeshnagar,
Bangalore - 560 075.
...Appellants
(By Sri.M.A.Humayun, Advocate)
AND:
1. Smt.A.Rosceline Juliet,
W/o P.Sahayanathan,
Aged about 39 years,
R/a Jagadeeshnagar,
New Thippasandra,
Bangalore - 560075.
2. Lourdunathan,
3. Sahayaraj,
Both sons of R.Anthony Dass,
and late Arul Mary,
Residing at 397,
Gurukamanthanapalya,
Jagadeeshnagar,
New Thippasandra,
Bangalore - 560 075.
...Respondents
(Respondents 1 to 3 - served)
This RFA is filed under Section 96 of CPC against
the judgment and decree dated 3.12.2009 passed in
O.S.No.9457/2001 on the file of the XVIII Additional
City Civil Judge, (CCH-10), Bangalore, decreeing the
suit for partition and separate possession.
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This RFA coming on for hearing, on this day, the
Court delivered the following: -
JUDGMENT
This appeal by the defendants 1 to 5 in O.S.No.9457/2001 on the file of 18th Additional City Civil Judge (CCH-10) Bangalore is directed against the judgment and decree dated 03.12.2009 passed in the said suit decreeing the suit filed by respondent No.1 herein for partition and separate possession of her share in plaint 'A' and 'B' schedule properties.
2. Respondent No.1/plaintiff is the daughter of 1st appellant/1st defendant through his 1st wife Arul Mary. Defendants 6 and 7 who are respondents 2 and 3 herein are also sons of 1st defendant through 1st wife Arul Mary. Appellant No.2/defendant No.2 is the 2nd wife while appellants 3 to 5/defendants 3 to 5 are the children of the 1st defendant.
During the course of judgment, the parties are referred to, with reference to their ranking in the trial Court.
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3. The subject matter of the suit described in Plaint 'A' and 'B' Schedule are Property bearing No.28, situated at Gurukamanthanapalya, now known as Jagadishnagar, New Thippasandra, measuring East to West 40 feet and North to South 60 feet and House site bearing No.14, Katha No.397, situated at Gurukamanthanapalya, HAL area, K.R.Puram Hobli, Bangalore South Taluk, measuring East to West 40 feet and North to South 76 feet.
4. Plaintiff filed the suit for partition and separate possession of half share in the plaint schedule properties interalia contending that plaint 'B' schedule property was owned by her mother Arul Mary and after her death, katha of the said property was changed to the name of 1st defendant. That the said property comprised of 8 square building constructed in an area of 30 x 40 feet. Though the 1st defendant divided the said property among his two sons/defendants 6 and 7 giving them small portions, no share was given to the plaintiff.
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5. It was further alleged that plaint 'A' schedule property stood in the name of Rajaratnam, father of 1st defendant. Subsequently, it was transferred to the name of 1st defendant and the said property has not been divided interse between children of Rajaratnam and plaintiff has a share in the house property.
6. Defendants 1 to 5 appeared before the trial Court and filed their joint written statement denying the case of the plaintiff. They contended that plaintiff is not entitled for any share in the schedule properties and she has no right in the schedule properties. They contended that the plaint 'A' schedule property was owned by the father of 1st defendant who died leaving behind a registered Will bequeathing the said property in favour of 1st defendant and thus the suit property is the property of 1st defendant over which plaintiff has no right. They further contended that plaint 'B' schedule property was purchased in the name of 1st wife-Arul Mary and since the said Arul Mary was not an earning member and having no source of income, the entire sale -6- consideration has been paid by the 1st defendant. Therefore, the said property also belongs to 1st defendant. Therefore, they contended that plaintiff has no right whatsoever in any of the suit schedule properties. Alternatively, it was contended that even if the plaint 'B' schedule property is held to be the property of Smt.Arul Mary, upon her death, 1st defendant being her husband is entitled to succeed to 1/3rd share and remaining 2/3rd is succeeded by her three children viz., plaintiff and defendants 6 and 7 as per Section 33 of the Indian Succession Act, 1925 (hereinafter referred as 'the Act' for short). Therefore, defendants 1 to 5 sought for dismissal of the suit. Defendants 6 and 7 did not file any written statement.
7. On the basis of the pleadings of the parties, the trial Court framed the following issues:
1. Whether plaintiff proves that she is entitled for half share in the suit schedule properties and for separate possession of the same by metes and bounds?
2. Whether defendants 1 and 2 prove that father of defendant-1 Rajarathnam has -7- executed a Will in respect of the suit schedule properties in favour of the 1st defendant on 16.5.1994?
3. Whether defendants 1 and 2 prove that 1st defendant has right gifted the suit schedule properties in favour of 2nd defendant who is his wife?
4. Whether defendants 2 and 3 prove that as the 1st defendant has incurred expenses of Rs.90,000-00 for the marriage of the plaintiff and has also paid Rs.12,000-00 to the plaintiff and the plaintiff is not entitled for any share in the suit schedule properties?
5. To what reliefs the parties are entitled to?
6. To what order or decree?
8. The plaintiff, during the trial of the case, examined herself as PW-1 and marked Exs.P1 to P7. 1st defendant examined himself as DW-1 and marked Exs.D1 to D3. After hearing both the sides and on appreciation of oral as well as documentary evidence on record, the trial Court by the judgment under appeal decreed the suit of the plaintiff holding that plaintiff is entitled to 1/4th share in plaint 'B' schedule property -8- and 1/8th share in plaint 'A' schedule property. Aggrieved by the said judgment and decree, defendants 1 to 5 are in appeal before this Court.
9. Though the notice of this appeal was served on the respondents herein by means of paper publication, they have not appeared before the Court. They remained unrepresented. It is also noticed that the plaintiff, during the pendency of this proceeding, has initiated Final Decree Proceedings and in this appeal, this Court has stayed the drawing up of the Final Decree Proceedings. According to the appellants, the pendency of this appeal and the interim order passed has been notified to the Court where the Final Decree Proceedings are pending and inspite of the same, respondents have remained unrepresented.
10. I have heard learned Counsel for appellants/defendants 1 to 5. Perused the records secured from the trial Court.
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11. Learned Counsel for the appellants vehemently contended that the Court below has committed serious error in holding that the plaintiff is entitled for 1/4th share in plaint 'B' schedule property and this is contrary to the provisions of Section 33 of the Act. He further contended that the finding of the trial Court that the plaintiff is entitled to 1/8th share in plaint 'A' schedule property is again contrary to the provisions of Section 37 of the Act. Therefore, the point that arises for consideration is:
"Whether the Court below is justified in holding that plaintiff is entitled to 1/4th share in plaint 'B' schedule property and 1/8th share in plaint 'A' schedule property?"
12. The parties are admittedly Indian Christians. Therefore, the succession to the property should be in accordance with the provisions of Indian Succession Act.
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13. Though the defendant No.1 contend that plaint 'B' schedule property was purchased by him in the name of his 1st wife, the trial Court applying the provisions of Benami Transaction (Probation) Act, 1988 and having regard to the evidence on record has held that 1st defendant is estopped from contending that the property does not belong to Arul Mary. Admittedly, the sale deed in respect of plaint 'B' schedule property stands in the name of Arul Mary, 1st wife of 1st defendant. The 1st defendant is estopped from contending that he is the owner of the said property having acquired the same benami in the name of his 1st wife. Therefore, the trial Court is justified in holding that plaint 'B' schedule property was absolute property of Smt.Arul Mary. The trial Court after recording the finding that plaint 'B' schedule property was absolute property of Smt.Arul Mary, and referring to the provisions of Sections 32, 33 and 35 of the Act has held that the plaintiff is entitled for 1/4th share in plaint 'B' schedule property.
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14. Chapter II of the Act deals with the rules of intestate succession in Christians other than parsis. Admittedly, the parties to the suit are not parsis. Therefore, the provision of the Chapter is applicable to the parties. As per Section 32, the property of an intestate devolves upon the wife or husband or upon those who are of the kindred of the deceased, in the order and according to the rules contained in the said Chapter.
15. Section 35 of the Act states that a husband surviving his wife has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husband's property, if he dies intestate.
16. Section 33 of the Act set out the rules in respect of the intestate succession. According to this Section, where the intestate has left a widow if he has left any lineal descendants, 1/3rd of his property shall belong to widow and the remaining 2/3rd shall go to the lineal descendants, according to the rules contained thereunder.
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17. Thus, reading of Section 33 read with Section 35 of the Act makes it clear that when an intestate who is a female member dies leaving behind husband and also lineal descendants, 1/3rd of her property should go to her husband and remaining 2/3rd should go to her lineal descendants. In view of the fact that plaint 'B' schedule property was the absolute property of Smt.Arul Mary and admittedly since she died leaving behind her husband viz., 1st defendant, the daughter/plaintiff and 2 sons viz., defendants 6 and 7, as per the rule provided under Section 33 read with Section 35 of the Act, 1st defendant gets 1/3rd share while her three children viz., plaintiff and defendants 6 and 7 together get 2/3rd share in plaint 'B' schedule property. In other words, each of plaintiff and defendants 6 and 7 gets 2/9th share while 1st defendant gets 3/9th share in plaint 'B' schedule property. The Court below without properly looking into the provisions of Section 33 and 35 of the Act has held that the plaintiff is entitled for 1/4th share by equally dividing
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the plaint 'B' schedule property among husband and children of Arul Mary. Therefore, the judgment of the Court below holding that plaintiff is entitled for 1/4th share in plaint 'B' schedule property is erroneous and contrary to the provisions of Section 33 read with Section 35 of the Act. Therefore, the judgment in that regard is required to be corrected.
18. Insofar as plaint 'A' schedule property is concerned, even according to the plaintiff, the said property was owned by father of 1st defendant. Though the 1st defendant put forth the Will said to have been executed by his father, since the said Will has not been proved in accordance with the Indian Evidence Act by calling at least one of the attesting witnesses before the Court, the trial Court held that the Will has not been proved. After disbelieving the Will put forth by the defendants, the trial Court has proceeded to hold that the plaintiff is entitled for 1/8th share in the said property.
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19. As rightly pointed out by learned Counsel for appellant, the trial Court has completely over looked the provisions of the Act even in respect of plaint 'A' Schedule Property. It is an undisputed fact that Rajaratnam died leaving behind his only son viz., 1st defendant. His wife did not survive him. As per Section 32, the property of an intestate devolves upon the wife or husband or upon the kindred of the deceased. As per Section 36, the rules for the distribution of the intestate's property (after deducting the widow's share, if he has left a widow) amongst his lineal descendants shall be as per provisions of Sections 37 to 40. As per Section 37, where the intestate has left surviving him a child or children but no more remote lineal descendant through a deceased child, the property shall belong to his surviving child, if there is only one or shall be equally divided among all his surviving children. In view of the fact that 1st defendant was the only child to Sri.Rajaratnam and since he had not left behind his wife, 1st defendant being the only son of Rajaratnam, is
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entitled to succeed to the entire plaint 'A' schedule property as per Section 37 of the Act.
20. During the life time of 1st defendant, the plaintiff could not seek a share in the said property exclusively succeeded by 1st defendant. Therefore, even if the Will propounded by 1st defendant is held to be not proved, 1st defendant being the only son of his father as on the date of death of his father, in view of Section 37 of the Act, 1st defendant succeeds to the entire plaint 'A' schedule property over which the plaintiff being the daughter of the 1st defendant cannot claim any share in plaint 'A' schedule property. Therefore, the judgment of the trial Court in respect of plaint 'A' Schedule Property holding that plaintiff is entitled to 1/8th share in that property, is required to be set aside and claim of plaintiff on the said property is liable to be dismissed.
21. Accordingly, appeal is allowed in part. The judgment and decree of the trial Court holding that plaintiff is entitled to 1/8th share in plaint 'A' schedule
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property is set aside. The suit of the plaintiff in respect of plaint 'A' Schedule property is dismissed. The judgment and decree of the trial Court holding that plaintiff is entitled to 1/4th share in plaint 'B' schedule property is modified holding that each of plaintiff and defendants 6 and 7 are entitled to 2/9th share and 1st defendant is entitled for 3/9th share in plaint 'B' schedule property.
Office to draw preliminary decree accordingly.
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JUDGE Prs*