Karnataka High Court
Smt.Geetha vs Mrs. N.Chandra on 8 February, 2023
Author: N.S. Sanjay Gowda
Bench: N.S. Sanjay Gowda
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RFA NO.1264 OF 2015
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RFA NO.297 OF 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA
REGULAR FIRST APPEAL NO.1264 OF 2015 (PAR)
C/W
REGULAR FIRST APPEAL NO.297 OF 2014
IN RFA NO.1264 OF 2015
BETWEEN:
SMT. GEETHA
D/O LATE PURUSHOTHAM NAIDU
W/O MR. K. VENKATESAN
AGED ABOUT 59 YEARS
R/AT NO.13, 10TH MAIN,
BRINDAVAN NAGAR,
NEAR J.P. PARK, MATHIKERE,
BENGALURU - 560 050.
...APPELLANT
(BY SRI. RAJANNA, ADVOCATE)
Digitally AND:
signed by
PANKAJA S
Location: 1. MRS. N. CHANDRA
HIGH
COURT OF W/O LATE P. RAJENDRA NAIDU
KARNATAKA
AGED ABOUT 64 YEARS.
2. MR. BHARATH KUMAR R.
S/O LATE P. RAJENDRA NAIDU
AGED ABOUT 36 YEARS.
RESPONDENTS 1 AND 2 ARE
R/AT 'CHANDRA NILAYAM'
NO.684/42/2, V MAIN,
SREE RAMANJANEYA ROAD,
SRINAGARA,
BENGALURU - 560 050.
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RFA NO.1264 OF 2015
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3. MRS. BHAMINI R.
D/O LATE P. RAJENDRA NAIDU
W/O MR. PRADEEP RAO
AGED ABOUT 35 YEARS
R/AT NO.386/A, GROUND FLOOR,
V MAIN, BSK I STAGE,
I BLOCK, SRINAGARA,
BENGALURU - 560 050.
4. SMT. KAMALA
W/O LATE SUNDARESHLU NAIDU
AGED ABOUT 69 YEARS
R/AT NO.685,/42/1, V MAIN,
SRINAGARA MAIN ROAD, SRINAGARA,
BENGALURU - 560 050.
5. SMT. TILKA
D/O LATE SUNDARESHULU NAIDU
AGED ABOUT 46 YEARS
R/AT NO.R-13/7, GUNATA VIHAR,
J.C. NAGAR,
BENGALURU - 560 006.
6. SRI. SHEKAR
S/O LATE SUNDARESHULU NAIDU
AGED ABOUT 44 YEARS.
7. MR. SURESH
S/O LATE SUNDARESHULU NAIDU
AGED ABOUT 30 YEARS.
8. P. VARENDRA BABU
SINCE DEAD BY HIS LR'S
8(a). MRS. MALLIGA
W/O LATE VARENDRA BABU
AGED ABOUT 58 YEARS.
8(b). MRS. SONIA
D/O LATE VARENDRA BABU
AGED ABOUT 38 YEARS.
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RFA NO.1264 OF 2015
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RFA NO.297 OF 2014
8(c). MR. V. SUSHANTH
S/O LATE VARENDRA BABU
AGED ABOUT 33 YEARS.
RESPONDENTS 6, 7 AND 8(a) to 8(c) ARE
R/AT NO.685/42/1, V MAIN,
SRINGARA MAIN ROAD, SRINAGARA,
BENGALURU - 560 050.
9. SMT. RANI
D/O LATE PURUSHOTHAM NAIDU
W/O MR. RAMULU
AGED ABOUT 57 YEARS
R/AT NO.34, KALAPPA BLOCK,
SRINAGARA,
BENGALURU - 560 050.
10. SMT. GOWRI UMESH
W/O MR S. UMESH
AGED ABOUT 36 YEARS
R/AT NO.34, KALAPPA BLOCK,
SRINAGARA,
BENGALURU - 560 050.
...RESPONDENTS
(BY SRI. KESHAVA MURTHY B., ADVOCATE FOR R1 TO R3;
SRI. K.L. SRINIVASA, ADVOCATE FOR R9 AND R10.
R4 TO R7 AND R8(a) - SERVED;
VIDE ORDER DATED 12.10.2022, NOTICE TO R8(b) & (c)
IS HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 AND ORDER XLI RULE 1 OF THE CIVIL PROCEDURE CODE,
1908 AGAINST THE JUDGMENT AND DECREE DATED 07TH
JANUARY, 2014 PASSED IN ORIGINAL SUIT NO.3992 OF 2008
ON THE FILE OF THE XXXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE(CCH-39), BENGALURU CITY, BENGALURU
DISMISSING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
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RFA NO.1264 OF 2015
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RFA NO.297 OF 2014
IN RFA NO.297 OF 2014
BETWEEN:
1. MRS. N. CHANDRA
W/O LATE P. RAJENDRA NAIDU
AGED ABOUT 64 YEARS.
2. MR. BHARATH KUMAR R.
S/O LATE P. RAJENDRA NAIDU
AGED ABOUT 36 YEARS.
APPELLANTS 1 AND 2 ARE
R/AT 'CHANDRA NILAYAM'
NO.684/42/2, V MAIN,
SREE RAMANJANEYA ROAD,
SRINAGARA,
BENGALURU - 560 050.
3. MRS. BHAMINI R.
D/O LATE P. RAJENDRA NAIDU
W/O MR. PRADEEP RAO
AGED ABOUT 35 YEARS
R/AT NO.386/A, GROUND FLOOR,
V MAIN, BSK I STAGE, I BLOCK,
SRINAGARA,
BENGALURU - 560 050.
...APPELLANTS
(BY SRI. KESHAVAMURTHY B., ADVOCATE)
AND:
1. RATHNAMMA
SINCE DEAD BY HER LR'S
ARE ALREADY ON RECORD AS APPELLANTS AND
RESPONDENTS.
2. SMT. KAMALA
W/O LATE SUNDARESHULU NAIDU
AGED ABOUT 69 YEARS.
R/AT NO.685/42/1, V MAIN,
SRINAGARA MAIN ROAD, SRINAGARA,
BENGALURU - 560 050.
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RFA NO.1264 OF 2015
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RFA NO.297 OF 2014
3. SMT. TILKA
D/O LATE SUNDARESHLU NAIDU
AGED ABOUT 46 YEARS.
R/AT NO.R-13/7, GUNATA VIHAR,
J.C. NAGAR,
BENGALURU - 560 006.
4. SRI. SHEKAR
S/O LATE SUNDARESHULU NAIDU
AGED ABOUT 44 YEARS.
5. MR. SURESH
S/O LATE SUNDARESHULU NAIDU
AGED ABOUT 30 YEARS.
6. P. VARENDRA BABU
SINCE DEAD BY HIS LR'S
6(a). MRS. MALLIGA
W/O LATE VARENDRA BABU
AGED ABOUT 58 YEARS.
6(b). MRS. SONIA
D/O LATE VARENDRA BABU
AGED ABOUT 38 YEARS.
6(c). MR. V. SUSHANTH
S/O LATE VARENDRA BABU
AGED ABOUT 33 YEARS.
RESPONDENTS 4, 5 AND 6(a) to 6(c) ARE
R/AT NO.685/42/1, V MAIN,
SRINGARA MAIN ROAD,
SRINAGARA,
BENGALURU - 560 050.
7. SMT. RANI
D/O LATE PURUSHOTHAM NAIDU
W/O MR. RAMULU
AGED ABOUT 57 YEARS
R/AT NO.34, KALAPPA BLOCK,
SRINAGARA,
BENGALURU - 560 050.
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RFA NO.297 OF 2014
8. SMT. GEETHA
D/O LATE PURUSHOTAM NAIDU
W/O MR. K. VENKATESAN
AGED ABOUT 55 YEARS
R/AT NO.13, 10TH MAIN,
BRINDAVAN NAGAR,
NEAR J.P. PARK,
MATHIKERE,
BENGALURU - 560 050.
9. SMT. GOWRI UMESH
W/O MR S. UMESH
AGED ABOUT 36 YEARS
R/AT NO.34, KALAPPA BLOCK,
SRINAGARA,
BENGALURU - 560 050.
...RESPONDENTS
(BY SRI. K.L. SREENIVASA, ADVOCATE FOR R7 & R9;
SRI. RAJANNA, ADVOCATE FOR R8;
VIDE ORDER DATED 10.06.2016, A1 TO A3 & R2 TO R9
ARE TREATED AS LR'S OF DECEASED R1;
R2, R3, R4, R5 AND R6(a) ARE SERVED & UNREPRESENTED;
VIDE ORDER DATED 12.10.2022, NOTICE TO R6(b) & (c)
IS HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 AND ORDER XLI RULE 1 OF THE CIVIL PROCEDURE CODE,
1908 AGAINST THE JUDGMENT AND DECREE DATED 07TH
JANUARY, 2014 PASSED IN ORIGINAL SUIT NO.3992 OF 2008
ON THE FILE OF THE XXXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE(CCH-39), BENGALURU CITY, BENGALURU
DISMISSING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA NO.1264 OF 2015
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JUDGMENT
The undisputed facts of the case are as follows:
Purushotham Naidu and his wife Rathnamma had five children viz., Sundareshulu Naidu, Rajendra Naidu, Varendra Babu, Rani and Geetha. During his lifetime, Purushotham Naidu had partitioned the property amongst himself, his wife and children under the registered Partition Deed dated 11th July, 1985.
2. Under the said partition, Purushotham Naidu had allotted property bearing Site No.148 (New No.148/28-25) situate at 11th Main Road, Hanumanthanagar, Bengaluru in favour of himself and his wife Rathnamma, jointly.
3. In the said partition, several other properties were allotted to the children. However, those properties are not the subject matter of the present appeal and they could have no relevance.
4. On 18th April, 1990, Purushotham Naidu and his wife Rathnamma executed a joint registered Will. By the -8- RFA NO.1264 OF 2015 C/W RFA NO.297 OF 2014 said Will, they stated that the suit schedule property should be divided into seven shares and they intended that Varendra Babu to succeed to the said property to an extent of three-seventh and the remaining children to an extent of four-seventh share.
5. The execution of the said Will is admitted by all the children of Purushotham Naidu unconditionally.
6. On 29th April, 1990, Purushotham Naidu passed away and thus by operation of law, the bequest dated 18th April, 1990 came into effect, insofar as it relates to the share of Purusushotham Naidu.
7. On 14th June, 2007, Rathnamma, however, proceeded to cancel the said registered Will, which she had executed jointly along with her husband Purushotham Naidu on 18th April, 1990. Under the said deed of cancellation dated 14th June, 2007, she admitted that, she and her husband Pursuhotham Naidu had executed the joint Will -9- RFA NO.1264 OF 2015 C/W RFA NO.297 OF 2014 and since she felt that the Will that they had executed jointly was inappropriate, she was canceling the Will.
8. On 01st February, 2008, Rathnamma thereafter proceeded to convey the property bearing No.148, which was the subject matter of the bequest in favour of Smt. Gowri Umesh, who was none other than the Daughter-in- Law of her daughter Smt. Rani (Defendant No.7).
9. As a consequence of this conveyance, the suit came to be instituted by the wife and children of Rathnamma's second son Rajendra Naidu (i.e., Smt. N. Chandra, Sri. Bharath Kumar R. and Smt. Bhamini R.).
10. Smt. Chandra and her children contended that under the bequest, her husband was entitled to one-sixth share of the suit property and same was required to be allotted to her. The suit was filed against Rathnamma and other beneficiaries under the bequest.
11. Smt. Kamala, Smt. Tilka, Sri. Shekar and Sri. Suresh are the wife and children of Sundareshulu Naidu,
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RFA NO.1264 OF 2015 C/W RFA NO.297 OF 2014 who are arrayed as defendants 2 to 5 and Smt. Geetha, who was arrayed as defendant No.8, chose to remain absent and were placed ex-parte.
12. Rathnamma (defendant No.1), her son Varendra Babu (defendant No.6), daughter Smt. Rani (defendant No.7) and Rani's Daughter-in-Law Smt. Gowri Umesh (defendant No.9) entered appearance and contested the suit by filing a written statement. They admitted the execution of Will dated 18th April, 1990 and also the earlier partition. They also admitted that the suit property was allotted to Purushotham Naidu in the year 1966.
13. They stated that pursuant to the execution of Will, Bangalore Development Authority had executed the registered Sale Deed dated 21st April, 2003 in favour of Rathnamma and as a result of which, she had become the absolute owner. It was therefore, stated that since she had become absolute owner, she had a right to cancel the joint Will and also to convey the property to the person of her choice. They stated that she exercised the said right and
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RFA NO.1264 OF 2015 C/W RFA NO.297 OF 2014 cancelled the Will after obtaining the Sale Deed from the Bangalore Development Authority and she thereafter, executed the Sale Deed in favour of Smt. Gowri Umesh, who is the Daughter-in-Law of her daughter Smt. Rani.
14. The Trial Court framed as many as eight issues. In support of the case of plaintiffs, Smt. N. Chandra examined herself as PW-1 and produced 16 documents and same were got marked as Exhibits P1 to P16. Rathnamma, though was alive, did not chose to enter the witness box. On the other hand, her son P. Varendra Babu got himself examined as DW1 and no documents were marked on behalf of the defendants.
15. The Trial Court, after considering the pleadings and the evidence on record, came to the conclusion that Smt. N. Chandra and her children had failed to prove that the suit property was a joint family property and that they were entitled to one-sixth share. The Trial Court, took the view that the suit property was the absolute property of Rathnamma and she had a right to cancel the registered
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RFA NO.1264 OF 2015 C/W RFA NO.297 OF 2014 Will dated 18th April, 1990, which she had jointly executed along with her husband Purushotham Naidu and that she also had a right to convey the property to Smt. Gowri Umesh. The Trial Court, accordingly dismissed the suit.
16. In order to come to the said conclusion, the Trial Court took the view that the execution of the Sale Deed by Bangalore Development Authority in favour of Rathnamma on 21st April, 2003, made Rathnamma the absolute owner of the said property and therefore, she was entitled to cancel the joint Will that she had executed along with her husband and she also had the right to convey the property. Being aggrieved by the dismissal of the suit, both Smt. N. Chandra and her children and Geetha, who was the defendant No.8, are in appeal.
17. Learned counsel appearing for appellants contended that the entire approach of the Trial Court was illegal. He also contended that, in the light of fact that the suit property was jointly allotted to Purushotham Naidu and Rathnamma in partition, the question of considering the
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RFA NO.1264 OF 2015 C/W RFA NO.297 OF 2014 property as the absolute property of Rathnamma would never arise. He further submitted that, it was beyond dispute that the suit property had been allotted to Purushotham Naidu, and subsequently, by virtue of his death, the Sale Deed had to be executed by Bangalore Development Authority in favour of his successors in interest and since all the children of Purushotham Naidu gave their consent, the Sale Deed came to be registered in favour of Rathnamma and this by itself could never be construed to make the property to be the absolute property of Rathnamma.
18. Learned counsel also submitted that the joint Will executed by Purushotham Naidu and Rathnamma could never have been revoked by Rathnamma and that too after the death of Purushotham Naidu. He submitted that on the death of Purushotham Naidu, the Will had come into effect at least insofar as it related to the share of Purushotham Naidu and this bequest could not be nullified by the execution of the cancellation Deed.
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RFA NO.1264 OF 2015 C/W RFA NO.297 OF 2014
19. He submitted that, at best, Rathnamma had the power to cancel the Will only in respect of her share and she was not competent to cancel the Will in its entirety. He therefore, submitted that the decree of the Trial Court cannot be sustained.
20. Learned counsel appearing for respondents i.e. P. Varendra Babu, Rani and Gowri Ramesh, who are the contesting defendants, however, contended that the Trial Court was justified in passing the impugned judgment and decree and submitted that neither Purushotham Naidu nor Rathnamma possessed title when Will had been executed and the title to this property was acquired only when the Sale Deed had been executed by the Bangalore Development Authority. Since, the Sale Deed had been executed in favour of Rathnamma, in law, the same would have to be considered as the absolute property of Rathnamma.
21. Learned counsel submitted that since Rathnamma had become the absolute owner of the property pursuant to
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RFA NO.1264 OF 2015 C/W RFA NO.297 OF 2014 the Sale Deed executed in her favour by Bangalore Development Authority, she was entitled to not only to cancel the Will but also to deal with the property in any manner that she deemed fit and she had exercised that right and conveyed the property to Smt. Gowri Umesh. He submitted that this exercise of ownership by Rathnamma has rightly been affirmed by the Trial Court and there was no justification for entertaining the present appeal.
22. In the light of arguments advanced by learned counsel appearing for the parties, the point that arises for consideration in these appeals is as to whether Rathnamma could have cancelled the Will dated 18th April, 1990 that she had executed jointly along with her husband Purushotham Naidu and could have thereafter sold the property to Smt. Gowri Umesh, who is the Daughter-in-Law of her daughter Smt. Rani.
23. As already noticed above, the execution of Will is admitted by all the parties and therefore, the question of proving the same would not arise. It may also be pertinent
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RFA NO.1264 OF 2015 C/W RFA NO.297 OF 2014 here to state that all the parties are claiming title under the Will and therefore, the execution of Will, as such, is not in dispute at all and therefore, the proof of this execution may not be germane as the suit was not contentious insofar as the Will is concerned.
24. As already stated above, the suit property had been allotted jointly to Purushotham Naidu and Rathnamma on 11th July, 1985 and both of them had executed the registered Will dated 18th April, 1990. The recital in the said Will may be of some significance and hence, same is reproduced:
"£À£Àß J¯Áè ªÀÄPÀ̼ÄÀ UÀ¼Æ À ¨ÉÃgÉ ¨ÉÃgÉ AiÀiÁV CªÀgÀ ¸ÀA¸ÁgÀzÆ É A¢UÉ ¸ÀÄRªÁVgÀÄvÁÛgÉ. DzÀgÉ £ÀªÄÀ ä ªÀÄÆgÀ£Éà ªÀÄUÀ£ÁzÀ ªÀgÉÃAzÀæ ¨Á§Ä JA§ÄªÀªÀ£ÀÄ £ÀªÀÄäUÀ¼À eÉÆvÉAiÀÄ°è EzÀÄÝPÆ É AqÀÄ ªÀAiÀĸÁìzÀ PÁ®zÀ°è vÀAzÉ ªÀÄvÀÄÛ vÁ¬Ä JA§ C©üªÀiÁ£À¢AzÀ £ÀªÄÀ ä£ÄÀ ß §ºÀÄ CPÀÌgɬÄAzÀ £ÉÆÃrPÉÆAqÀÄ £ÀªÄÀ ä AiÉÆÃUÀ PÉëêÀĪÀ£ÀÄß ªÀÄvÀÄÛ £ÀªÄÀ ä RZÀÄð ªÉZÑÀUÀ¼À£ÄÀ ß J¯Áè vÀgÀºÀzÀ jÃw¬ÄAzÀ §ºÀÄ ¦æÃw¬ÄAzÀ £ÉÆÃrPÉƼÀÄîwÛgÄÀ vÁÛ£É. DzÀgÉ £ÀªÄÀ ä ºÉtÄÚ ªÀÄPÀ̼ÄÀ UÀ¼ÁzÀ gÁt gÁªÀÄÄ®Ä ªÀÄvÀÄÛ VÃvÁ ªÉAPÀmÉñÀgÀªÀjUÉ AiÀiÁªÀ D¹ÛAiÀÄ£ÀÄß PÉÆnÖgÄÀ ªÀÅ¢®è. DzÀÄzÀjAzÀ £ÁªÀÅUÀ¼ÄÀ G½¹PÉÆArgÀĪÀ D¹ÛAiÀÄ «ZÁgÀzÀ°è £ÀªÄÀ äUÀ½§âgÀ ªÀÄgÀuÁ£ÀAvÀgÀ £ÀªÀÄäUÀ¼À ªÀÄPÀ̼ÄÀ UÀ¼ÄÀ AiÀiÁgÀÄ PÀ®ºÀ ªÉʪÀÄ£À¸ÄÀ ì ªÀiÁrPÉƼÀîzÉ £ÀªÀÄäUÀ¼À EZÉÑAiÀÄAvÉ C£ÉÆãÀåªÁV ¨Á¼À¯ÉA§ GzÉÝñÀ¢AzÀ F «¯ï£ÀÄß §gɹgÀÄvÉÛãÉ. £Á«§âgÆ À ªÀÄgÀtªÁzÀ£ÀAvÀgÀ F «¯ï µÉqÆ À å¯ï£À°è PÀAqÀ
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RFA NO.1264 OF 2015 C/W RFA NO.297 OF 2014 ¸ÀévÀÛ£ÀÄß 7 (K¼ÀÄ) ¨sÁUÀ ªÀiÁr ¸ÀzÀjà 7 (K¼ÀÄ) ¨sÁUÀzÀ°è £ÀªÄÀ ä ªÀÄÆgÀ£Éà ªÀÄUÀ£ÁzÀ ªÀgÉÃAzÀæ ¨Á§Ä gÀªÀjUÉ ªÀÄÆgÀÄ ¨sÁUÀªÀ£ÄÀ ß PÉÆlÄÖ E£ÀÄß G½zÀ £Á®ÄÌ ¨sÁUÀªÀ£ÀÄß £À£Àß £Á®ÄÌ d£À ªÀÄPÀ̼ÄÀ UÀ¼ÄÀ ¥ÀqÉzÄÀ PÉƼÀÄîªÅÀ zÀÄ. ªÉÄîÌAqÀ jÃw 7 ¨sÁUÀ ªÀiÁqÀ®Ä F «¯ï µÉqÆ À å¯ï£À°è PÀAqÀ ¸ÀévÄÀ Û MAzÉà EgÀĪÀÅzÀjAzÀ ¨sÁUÀ ªÀiÁqÀ®Ä ¸ÁzsÀå«®è DzÀÝjAzÀ F ¸ÀéwÛ£À ¨É¯ÉAiÀÄ£ÀÄß PÀnÖ £ÀªÄÀ ä ªÀÄPÀ̼ÄÀ UÀ¼À ¥ÉÊQ AiÀiÁgÁzÀgÀÆ M§âgÀÄ F ¸ÀévÛÀ£ÄÀ ß ElÄÖPÆ É AqÀÄ E£ÀÄß G½zÀªÀjUÉ ºÀtªÀ£ÄÀ ß PÉÆlÄÖ CzÀjAzÀ ¸ÀÆPÀÛ zÁR¯ÉAiÀÄ£ÀÄß §gɬĹPÉƼÀÄîªÀÅzÀÄ. MAzÀÄ ªÉÃ¼É CzÀÄ ¸ÁzsÀåªÁUÀzÉà EzÀÝgÉ £ÀªÄÀ ä 5 (LzÀÄ) d£À ªÀÄPÀ̼ÄÀ UÀ¼ÀÄ ¸ÉÃj F D¹ÛAiÀÄ£ÀÄß ªÀiÁgÀl ªÀiÁr §gÀĪÀ MlÄÖ ºÀtzÀ°è 7 (K¼ÀÄ) ¨sÁUÀ ªÀiÁr CzÀgÀ°è ªÀÄÆgÀÄ (3) ¨sÁUÀªÀ£ÀÄß £ÀªÀÄä ªÀÄÆgÀ£Éà ªÀÄUÀ ªÀgÉÃAzÀæ ¨Á§ÄgÀªÀjUÉ PÉÆlÄÖ E£ÀÄß G½zÀ £Á®ÄÌ ¨sÁUÀªÀ£ÀÄß £ÀªÄÀ ä E§âgÄÀ UÀAqÀÄ ªÀÄPÀ̼ÄÀ E§âgÄÀ ºÉtÄÚ ªÀÄPÀ̼ÄÀ ºÀAaPÉƼÀÄîªÀÅzÀÄ. £ÁªÀÅUÀ½§âgÄÀ fêÀAvÀ EgÀĪÀ PÁ® £ÁªÀÅUÀ¼ÄÀ £ÀªÄÀ ä ¸ÀéAvÀ ¸Áé¢üãÀzÀ°èlÄÖPÉÆAqÀÄ C£ÀĨsÀ«¸ÀÄvÉÛêÉ. £ÀªÄÀ äUÀ½§âgÀ ªÀÄgÀuÁ£ÀAvÀgÀ F «¯ï AiÀiÁ ªÀÄgÀt ±Á¸À£À eÁjUÉ §gÀvÀPÌÀ zÄÀ Ý. F «¯ï£ÀÄß §gÉ¢gÀĪÀÅzÀÄ £ÀªÄÀ UÉ ¸Àj§gÀzÉà EzÀÝgÉ gÀzÀÄÝ¥Àr¸ÀĪÀ ºÀPÌÀ £ÄÀ ß ¸ÀºÁ £ÁªÀÅ G½¹PÉÆArgÀÄvÉÛêÉ."
25. The above passage would indicate that both Purushotham Naidu and Rathnamma were conscious of the fact that the suit property, by its very nature, was indivisible. They, in fact, clearly stated that the property, by virtue it being indivisible, would have to be purchased by one of the legatees or in the alternative all of them should sell the property and divide the sale proceeds in the proportion mentioned in the Will.
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26. It is therefore, abundantly clear that both Purushotham Naidu and Rathnamma were aware that the property would have to ultimately be purchased by one of their children or should be collectively sold to third party and proceeds to be distributed amongst themselves. This particular recital also signifies the fact that they did not want this property to be sold to a third party and the sale in favour of the third property would become necessary only if none of the children were in the position of purchasing the property.
27. Rathnamma, despite being a signatory to the Will, has however chosen to cancel the Will. A joint bequest can, at best, be cancelled to the extent of share of the testator who seeks to cancel the bequest. A testator who had executed the Will along with another testator cannot nullify the bequest made by the other testator by canceling the Will, after the other testator had passed away. This is simply because on the death of the other testator, the bequest had already come into effect. In the light of this
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RFA NO.1264 OF 2015 C/W RFA NO.297 OF 2014 indisputable legal position, the cancellation of the Will by Rathnamma can only be to an extent of her half share in the suit property and would, in no way, affect the bequest that already came into effect on the death of Purushotham Naidu.
28. The Trial Court, however has taken view that the Sale Deed executed by the Bangalore Development Authority in favour of Rathnamma created an absolute title in favour of Rathnamma. This reasoning of the Trial Court is only unsustainable. It is not in dispute that the suit property was allotted to Purushotham Naidu and it was thus essentially his property. Since, there was a lease period prescribed under the allotment rules, no Sale Deed had been executed in favour of Purushotham Naidu and by the time the lease period expired, Purushotham Naidu was no more and therefore, it was essential for the Bangalore Development Authority to execute the Sale Deed in favour of successors in interest.
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29. In the light of this requirement, Bangalore Development Authority executed the Sale Deed in favour of Rathnamma and that too after all the other children gave their consent. This would fundamentally mean that Rathnamma had obtained title as a representative of her children. Since the property was admittedly allotted to her husband, she was only a guardian to the particular property. The mere execution of a Sale Deed in her favour by the Bangalore Development Authority, would not confer absolute title on her. The reasoning of the Trial Court is therefore improper and is set-aside.
30. As for the reasons stated above, the property cannot be considered as the absolute property of Rathnamma, the cancellation of the Will by her could only be to the extent of her half share. It would have to be necessarily stated here that in respect of Purushotham Naidu's share, the legatees mentioned in the Will would succeed the suit property. As a result, half of the suit property would devolve on Varendra Babu to the extent of
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RFA NO.1264 OF 2015 C/W RFA NO.297 OF 2014 three-seventh share and remaining four children would be entitled to one-seventh share each.
30. The judgment and decree of the Trial Court is accordingly set-aside and suit is decreed holding that the successors-in-interest of Varendra Babu are entitled to succeed to three-seventh share out of half of the suit property and successors-in-interest of Sundareshulu Naidu, Rajendra Naidu, Rani and Geetha would each be entitled to one-seventh share.
31. It is made clear that in consonance with the wish of Purushotham Naidu, it would be open for any one of his children or their branch to purchase the share of the others and acquire the property. In this regard, it would be open for the parties to submit their highest bid and purchase the same in the Final Decree Proceedings. Appeals are accordingly allowed and the suit is decreed as prayed for.
Sd/-
JUDGE ARK