Bangalore District Court
Smt. R.Sumathi vs Sri. Ramesh B.R on 7 July, 2020
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Dated this 7th Day of July, 2020
Present: Sri. R. Ravi,
B.Sc., LL.B.
XVII Addl. City Civil & Sessions Judge.
O.S.No. 8311/2016
Plaintiff/s : Smt. R.Sumathi
W/o Lingegowda T.M.
Aged about 64 years,
R/at No.5, 3rd Floor,
Gurubhavan Amarajyothi Layout,
1st Main Road, Sanjaynagar,
Bengaluru - 94
[By Sri. N.Suresha, Adv.]
-Vs-
Defendant/s : 1. Sri. Ramesh B.R.
S/o Late B.N.Ramaiah
Aged about 66 years,
R/at No.489, Ground Floor,
8th Main Road, 4th A-Cross,
RPC Layout, Vijayanagara,
2nd Stage, Bengaluru - 560 104.
2. Smt. B.R.Manjula
D/o Late B.N.Ramaiah
Aged about 62 years,
R/at Siddanath Pride, 4th Floor,
1st Cross, Hemigepura Ward No.198,
R.Shivanna Layout, Pattanagere,
Bengaluru - 98.
3. Sri. B.R.Vasantha Kumar
S/o Late B.N.Ramaiah
Aged about 60 years,
R/at No.489, Ground Floor,
8th Main Road, 4th A-Cross,
2 OS.No.8311/2016
RPC Layout, Vijayanagara,
2nd Stage, Bengaluru - 560 104.
[ By Sri. B.S.H., Adv.]
Date of institution of the suit 06.12.2016
Nature of the suit Partition
Date of commencement of 23.9.2019
recording the evidence
Date on which the judgment 07.07.2020
was pronounced
Total duration Years Months Days
03 07 01
(R. Ravi),
XVII Addl. City Civil & Sessions Judge.
************
J UD GM E N T
This is a suit for partition & separate possession.
2. The case of the plaintiff is that, she is the sister of
all the defendants and she and the defendants are Hindus
and are governed by Hindu Law and they constitute a joint
family and the suit schedule property is a parental property
and it is the property of the joint family and her father by
name B.M.Ramaiah died on 26.9.1988 and her mother by
name B.N.Bhagyamma died on 25.7.2014 leaving behind the
plaintiff and the defendants as the legal heirs and the
plaintiff and the defendants are in joint possession of the suit
3 OS.No.8311/2016
schedule property and the defendants are enjoying the
parental property without paying anything to the plaintiff and
hence the defendants are liable to pay mesne profit to the
plaintiff and the plaintiff is entitled for 1/4th share in the
suit schedule property and hence this suit.
3. On the other hand, the defendants have filed their
written statement and except admitting their relationship
with the plaintiff they have denied the other averments of the
plaint as false and incorrect and further contended that their
grandfather Narasettappa was the absolute owner of the
property situated at Arcot Srinivasachar Street, Baneswara
Temple Lane, 2nd Cross, Bengaluru having acquired the same
under a registered sale deed dated 01.12.1906 and the said
Narasettappa died prior to 1956 leaving behind 3 children
namely Vasanthappa, Ramaiah and Lakshminarasaiah as his
legal heirs to succeed to his estate and whereas Vasanthappa
died leaving behind his wife and son as his legal heirs who
filed a suit for partition and separate possession in
OS.No.314/1964 against Ramaiah and Lakshminarasaiah
seeking 1/3rd share in the above property and whereas in
the said suit Ramaiah paid the value of the 1/3rd share to
the plaintiff's share therein in cash and the said suit was
4 OS.No.8311/2016
decreed in terms of compromise and thus the said wife and
son of Late Vasanthappa who filed the suit for partition
relinquished their 1/3rd undivided share in favour of
Ramaiah on receiving money for their share and thus
Ramaiah and Lakshminarasaiah became the joint owners of
2/3rd and 1/3rd share respectively for the property and
subsequently they jointly sold the same in favour of
Smt.Manjula and others vide registered sale deed dated
8.10.1987 and the said Ramaiah and Lakshminarasaiah
received their part of sale consideration and whereas
Ramaiah along with his wife purchased the suit schedule
property through a registered sale deed dated 17.12.1987 out
of the sale proceeds received by him and therefore, the suit
schedule property acquired by B.N.Ramaiah became the
coparcenary and ancestral property of the defendants and the
said B.N.Ramaiah died on 26.9.1988 much earlier to the
amendment to Section 6 of the Hindu Succession Act, 1956
leaving behind coparcenary property and subsequently the
mother of the plaintiff and the defendants also died on
25.7.2015 and the mother of the plaintiff and the defendants
have no manner or right, whatsoever in the suit schedule
property and in fact Ramaiah the father of the plaintiff only
5 OS.No.8311/2016
out of a gesture of love and affection he had towards his wife,
had included her name in the sale deed while purchasing the
suit schedule property and since the entire sale consideration
that has been received by Ramaiah on disposing of his
ancestral property was invested in purchasing the suit
schedule property then the suit schedule property became
the ancestral property of Late Ramaiah and the defendants
and thus neither the plaintiff nor the defendant No.2 has got
any share in the suit schedule property under law and the
suit schedule property was originally conveyed by the B.D.A.
in favour of A.Shamu by issuing the possession certificate in
his favour bearing PR.No.139/83-84 dated 19.4.1983 and
subsequently the said A.Shamu before obtaining the absolute
sale deed in his favour from the BDA has sold the suit
schedule property in favour of B.N.Ramaiah and
Smt.B.N.Bhagyamma vide sale deed dated 17.12.1987 and
after the demise of the father of the plaintiff and the
defendants, the defendants have remitted the amount to the
BDA and got the sale deed executed in favour of their mother
and since the sale deed originally was registered in the name
of their father and mother jointly and the defendants have
invested huge amount for obtaining the sale deed from the
6 OS.No.8311/2016
BDA and viewed from any angle the plaintiff has no right to
seek the partition and separate possession in the suit
schedule property and hence the suit of the plaintiff is liable
to be dismissed.
4. On the basis of the pleadings, one of my learned
predecessor has framed the following issues: -
1) Whether the plaintiff proves that she and
the defendants are the member of a joint
undivided Hindu family?
2) Whether the plaintiff further proves that
the suit schedule property is the joint
family property of herself and the
defendants?
3) Whether the defendants prove that the
suit schedule property is the ancestral
property of defendant No.1 and 3 only
and as such the plaintiff and defendant
No.2 have no share over the same?
4) Whether the plaintiff is entitled for the
reliefs as sought for?
5) What decree or order?
5. In order to prove the above issues, the plaintiff got
herself examined as PW.1 and got marked the documents at
Ex.P1 to P13. On the other hand, the defendant No.1 got
himself examined as DW.1 and got marked the documents at
7 OS.No.8311/2016
Ex.D1 & D2 and thereafter the matter was posted for
arguments.
6. And I have heard the arguments of both sides
perused the entire materials placed on record.
7. And my findings on the above issues are as
under:-
Issue No.1: In the negative
Issue No.2: In the negative
Issue No.3: In the affirmative
Issue No.4: In the negative
Issue No.5: As per final order, for the following:
R E A SON S
8. Issue No.1 to 4 :- Since these issues are inter-
related then they are hereby discussed commonly in order to
avoid repetition of facts.
9. On perusal of the entire materials placed on
record by both the parties, I found that it is an admitted fact
that the plaintiff is the sister of all the defendants.
10. It is also an admitted fact by both the parties that
the suit schedule property was originally conveyed by the
B.D.A. in favour of A.Shamu by issuing the possession
8 OS.No.8311/2016
certificate in his favour bearing PR.No.139/83-84 dated
19.4.1983.
11. It is also an admitted fact that subsequently the
said A.Shamu before obtaining the absolute sale deed in his
favour from the BDA has already sold the suit schedule
property in favour of Sri.B.N.Ramaiah and
Smt.B.N.Bhagyamma vide sale deed dated 17.12.1987.
12. It is also an admitted fact that the said
Sri.B.N.Ramaiah and Smt.B.N.Bhagyamma are the father
and mother of plaintiff & the defendants.
13. It is also an admitted fact that after the demise of
the father of the plaintiff & the defendants, the sale deed was
got executed in favour of the mother of the plaintiff &
defendants.
14. Now it is the specific case of the plaintiff that
since the suit schedule property is the parental property and
since her father B.N.Ramaiah died intestate on 26.9.1988
and her mother B.M.Bhagyamma died intestate on 25.7.2014
then she and the defendants being the legal heirs have
9 OS.No.8311/2016
succeeded to the suit property and as such she is entitled to
1/4th separate share and possession over the same.
15. On the other hand it is the specific case of the
defendants that their father Sri. B.N.Ramaiah along with his
wife had purchased the suit schedule property through the
above said registered sale deed dated 17.12.1987 out of the
sale proceeds of his ancestral property and since the said
Sri.B.N.Ramaiah had died on 26.9.1988 much earlier to the
Amendment of Section 6 of the Hindu Succession Act, 1956
then the defendant No.1 & 3 being the coparceners have only
succeeded to the suit property and as such the plaintiff and
the defendant No.2 have no right to seek any share over the
same.
16. And thus in order to rebut the above contentions
of the defendants and also to prove the facts of above issues,
though the plaintiff got herself examined as PW.1 and got
marked the documents at Ex.P1 to P13, the same do not hold
any water as there is a lot of variance in the pleadings and
proof of the plaintiff that are placed on record. Now let me
examine it.
10 OS.No.8311/2016
17. First of all though the plaintiff has specifically
pleaded & deposed that the suit schedule property was
jointly purchased by her father and mother through a
registered sale deed dated 17.12.1987 and though the said
fact is corroborated by the documentary evidence of
Ex.P1/certified copy of sale deed dated 17.12.1987, the
same is of no help to the case of the plaintiff as contrary to
her pleadings & evidence, the said plaintiff/PW.1 herself at
page-5 & 6 of her cross-examination has clearly admitted
that "the suit schedule property is not at all the self-
acquired property of her father and mother and her
father Sri. B.N.Ramaiah along with his wife had
purchased the suit schedule property through the above
said registered sale deed dated 17.12.1987 out of the
sale proceeds of his ancestral grandfather's property".
18. And since the plaintiff/PW.1 herself has clearly
admitted that the suit schedule property is purchased by her
father out of the sale proceeds of her grandfather's property
and since the plaintiff has further admitted that her father
Sri. B.N.Ramaiah had died on 26.9.1988 i.e., much earlier to
the Amendment of Section 6 of the Hindu Succession Act,
1956 and since in the ruling of AIR 2016 Supreme Court
11 OS.No.8311/2016
769 [Prakash Vs. Phulavathi] it has been clearly held
that "Hindu Succession Act, Section 6 (As amended by
Act No.39 of 2005) - Right of daughter to co-parcenery
property - conferred on and from commencement of
Hindu Succession (Amendment) Act, 2005 - Amendment
is prospective - Rights under amendment are applicable
to living daughters of living co-parcener as on 9.9.2005
irrespective of when such daughters are born - Partition
taken place before 20 th December, 2004 will remain
unaffected" then it has to be held in unequivocal terms that
the plaintiff is not at all entitled to seek any share over the
suit schedule property.
19. On the other hand the defendants by clearly
pleading and leading the oral evidence of defendant No.1 at
DW.1 and further producing the documentary evidence at
Ex.D1 & D2 have clearly rebutted the case of the plaintiff and
further proved that their grandfather Narasettappa was the
absolute owner of the property situated at Arcot
Srinivasachar Street, Baneswara Temple Lane, 2 nd Cross,
Bengaluru having acquired the same under a registered sale
deed dated 01.12.1906 and the said Narasettappa died prior
to 1956 leaving behind 3 children namely Vasanthappa,
12 OS.No.8311/2016
Ramaiah and Lakshminarasaiah as his legal heirs to succeed
to his estate and whereas Vasanthappa died leaving behind
his wife and son as his legal heirs who filed a suit for
partition and separate possession in OS.No.314/1964
against Ramaiah and Lakshminarasaiah seeking 1/3rd share
in the above property and whereas in the said suit Ramaiah
paid the value of the 1/3rd share to the plaintiff's share
therein in cash and the said suit was decreed in terms of
compromise and thus the said wife and son of Late
Vasanthappa who filed the suit for partition relinquished
their 1/3rd undivided share in favour of Ramaiah on
receiving money for their share and thus Ramaiah and
Lakshminarasaiah became the joint owners of 2/3rd and
1/3rd share respectively for the property and subsequently
they jointly sold the same in favour of Smt.Manjula and
others vide registered sale deed dated 8.10.1987 and the said
Ramaiah and Lakshminarasaiah received their part of sale
consideration and whereas Ramaiah along with his wife
purchased the suit schedule property through a registered
sale deed dated 17.12.1987 out of the sale proceeds received
by him and therefore, the suit schedule property acquired by
B.N.Ramaiah became the coparcenary and ancestral property
13 OS.No.8311/2016
of the defendants and the said B.N.Ramaiah died on
26.9.1988 much earlier to the amendment to Section 6 of the
Hindu Succession Act, 1956 leaving behind coparcenary
property and subsequently the mother of the plaintiff and the
defendants also died on 25.7.2015 and the mother of the
plaintiff and the defendants have no manner or right,
whatsoever in the suit schedule property and in fact Ramaiah
the father of the plaintiff only out of a gesture of love and
affection he had towards his wife, had included her name in
the sale deed while purchasing the suit schedule property
and since the entire sale consideration that has been received
by Ramaiah on disposing of his ancestral property was
invested in purchasing the suit schedule property then the
suit schedule property became the ancestral property of Late
Ramaiah & the defendant No.1 & 3 and thus neither the
plaintiff nor the defendant No.2 has got any share in the suit
schedule property under law.
20. And even though the defendants have not at all
produced any documents with regard to the origin of the suit
property and proceedings of OS.No.314/1964, the same is
not at all fatal to the case of the defendants as the above
14 OS.No.8311/2016
material contentions of defendants is rather admitted by the
plaintiff/PW.1 herself at page-4 & 5 of her cross-examination.
21. For better appreciation of the above facts the
relevant admissions of plaintiff/PW.1 one deposed at page-4
& 5 of her cross-examination is hereby reiterated as below :
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15 OS.No.8311/2016
¸ÀzÀj ¨ÁuÉñÀégÀ gÀ¸ÉÛAiÀÄ ªÀÄ£ÉAiÀÄ£ÀÄß ©r¹PÉÆAqÀgÀÄ CAzÀgÉ ¸Àj. £ÀAvÀgÀ
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gÁªÀÄAiÀÄå ºÁUÀÆ £À£Àß aPÀÌ¥Àà ®QëäãÀgÀ¹AºÀAiÀÄå ¸ÀªÀĪÁV
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zÁªÉ D¹ÛAiÀÄ£ÀÄß DvÀ£À ºÁUÀÆ DvÀ£À ºÉAqÀwAiÀÄ ºÉ¸Àj£À°è dAnAiÀiÁV
Rjâ ªÀiÁrzÀgÀÄ CAzÀgÉ ¸Àj.", which is rather fatal to the
case of the plaintiff because as per Section 58 of the
Indian Evidence Act the above admitted facts need not
be further proved by the defendants.
22. And even though it is an admitted fact that the
father of the plaintiff & defendants namely B.N.Ramaiah died
intestate on 26.9.1988 and so also the mother of the plaintiff
& defendants namely B.N.Bhagyamma died intestate on
25.7.2014 and even though the counsel for the plaintiff has
argued that by virtue of Section 6 of Hindu Succession
Act, 1956 [Amendment Act 39 of 2005] the plaintiff being
the coparcener is entitled to 1/4th share over the suit
schedule property, the same are of no help to the case of the
plaintiff as in a ruling of 2018(1) KLR 598 (SC) i.e., in the
16 OS.No.8311/2016
case of Mangammal Vs. T.B.Raju one relied on by the
defendants the Hon'ble Supreme Court of India by relying
upon its earlier ruling of 2015(2) KLR 482 (SC) [Prakash
Vs. Phulavathi] and so also distinguishing its another ruling
of 2018(1) KLR 161 (SC) [Danamma Vs. Amar] has clearly
held that "It is pertinent to note here that recently, this
court in the ruling of 2018(1) KLR 161 (SC) [Danamma
Vs. Amar] dealt, inter-alia, with the dispute of
daughter's right in the ancestral property. In the above
case, father of the daughter died in 2001, yet court
permitted the daughter to claim the right in ancestral
property in view of the Amendment in 2005. On a
perusal of the judgment and after having regard to the
peculiar facts of the Danamma [Supra], it is evident that
the Division Bench of this Court Primarily did not deal
with the issue of death of the father rather it was mainly
related to the question of law 'whether daughter who was
born prior to 2005 Amendment would be entitled to
claim a share in ancestral property or not?' In such
circumstances, in our view the Judgment of 2015(2) KLR
482 (SC) [Prakash Vs. Phulavathi] [supra], would still
hold precedent on the issue of death of coparcener for
17 OS.No.8311/2016
the purpose of right of daughter in ancestral property .
Shortly put, only living daughters of living coparceners
would be entitled to claim a share in the ancestral
property".
23. And since in the above said ruling of 2018(1) KLR
598 (SC) i.e., in the case of Mangammal Vs. T.B.Raju it
has been clearly held that "only living daughters of living
coparceners would be entitled to claim a share in the
ancestral property" and since in the present case on hand
the father of the plaintiff namely B.N.Ramaiah died on
26.9.1988 i.e., not alive as on the date of commencement of
the said Amendment Act i.e., 9.9.2005 and since in the above
ruling of 2015(2) KLR 482 (SC) [Prakash Vs. Phulavathi]
[supra], it has been further held that "Notional partition,
by its very nature, is not covered either under the
proviso to S.6(1) or under sub-section (5) of S.6 or under
the Explanation thereto" then it has to be once again held
in unequivocal terms that the plaintiff is not at all entitled to
claim any share over the suit schedule property.
24. So in view of the discussion made above I am of
the opinion that since the plaintiff has failed to prove that
18 OS.No.8311/2016
she and the defendants are the members of a joint Hindu
undivided family and further failed to prove that the suit
schedule property is the joint family property of herself and
the defendants and since the defendants have clearly proved
that the suit schedule property is the ancestral property of
defendant No.1 & 3 only and as such the plaintiff and the
defendant No.2 have no share/right over the same by virtue
of the above dictum of 2018(1) KLR 598 (SC) i.e., in the
case of Mangammal Vs. T.B.Raju then the plaintiff is not at
all entitled to any reliefs as sought by her and accordingly I
have answered issue No.1 and 2 in the negative, issue No.3 in
the affirmative and issue No.4 in the negative.
25. Issue No.5:- In view of the discussion made on
issue No.1 to 4 and further holding issue No.1 and 2 in the
negative, issue No.3 in the affirmative and issue No.4 in the
negative., I proceed to pass the following order:-
ORDER
The suit of the plaintiff for the relief of Partition & separate possession in respect of the suit schedule property against the defendants is hereby dismissed.
In view of the peculiar circumstances the parties are directed to bear their own cost.
19 OS.No.8311/2016Draw a decree accordingly.
(Dictated to the judgment writer on computer, corrected and then pronounced by me in the open court, on this the 7th day of July, 2020).
(R. Ravi), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiff:
P.W.1 Smt. Sumathi List of documents exhibited for plaintiff:
Ex.P1 Certified copy of sale deed dtd.17.12.1987 Ex.P2 Certified copy of sale deed dtd.20.10.2014 Ex.P3 Certified copy of transfer of consent deed deed dtd.18.10.2014 Ex.P4 Certified copy of death certificate Ex.P5 Certified copy of death certificate Ex.P6 Certified copy of Khata certificate Ex.P7 Khata extract Ex.P8 & 9 2 Encumbrance certificates Ex.P10 to 13 3 Postal receipts List of witnesses examined for defendants:
DW.1 B.R. Ramesh List of documents exhibited for defendants:
Ex.D1 Remittance challan of Canara Bank Ex.D2 Certified copy of sale deed dtd.29.9.1987 XVII Addl. City Civil & Sessions Judge, Bengaluru.