Bangalore District Court
Master P. Pranav Balaji vs Sri. P. R. Badrinath on 14 February, 2023
KABC0A0012772013
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH-73)
Present:
Sri. P. G Chaluva Murthy,
M. A. L.L.M
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 14th day of February, 2023.
O.S.No.25549/2013
Plaintiff:- 1. Master P. Pranav Balaji
S/o Late Sri. Prasanna P.R.,
Aged about 09 years,
Represented by his mother and
natural guardian,
Smt. Prathima
W/o Late. Sri. Prasanna P.R.
2. Smt. L. R Prathima,
W/o Late Sri. Prasanna P. R,
Aged about 33 years.
2 OS No.25549/2013
Both are R/at No.210,
Seppings Road, Bharathinagar,
Bengaluru-560001.
[By Sri. M.G. Nanjappa-Advocate]
V/s
Defendants:- 1. Sri. P. R. Badrinath,
S/o Late Sri. P. Raghupathi,
Aged about 50 years,
R/at No.210, Seppings Road,
Bharathinagar,
Bengaluru-560 001.
2. Sri. P. R. Srinivas,
S/o Late Sri. P. Raghupathi,
Aged about 47 years,
R/at No.210, Seppings Road,
Bharathinagar,
Bengaluru-560 001.
Presently R/at No.165/168,
1st Floor, 4th Cross,
AMS Layout, Vidyaranyapura,
Bangalore-560 097.
3. Sri. P. R. Sathyanarayana,
S/o Late Sri. P. Raghupathi,
Aged about 45 years,
R/at No.210, Seppings Road,
Bharathinagar,
Bengaluru-560 001.
Presently R/at Flat No. B 602,
6th Floor Badri Kedar Building,
3 OS No.25549/2013
Plot No.35/36, Sector 40
Seawoods Nerul, Navi Mumbai.
Maharashtra.
4. Smt. T E Rukmini,
W/o Late Sri. P. Raghupathi,
Aged about 76 years,
(Defendant No.4 demised on
19.04.2019. The plaintiffs and the
defendant Nos.1 to 3 are transposed
as legal heirs of defendant No.4,
vide order of this Hon'ble Court
dtd.24.04.2019)
[By Sri. RBN -Adv. -D1 to 4)
Date of Institution of the suit 28.03.2013
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Partition Suit
for injunction, etc.)
Date of the commencement of
07.03.2020
recording of the Evidence.
Date on which the Judgment was
14.02.2023
pronounced.
Year/s Month/s Day/s
Total duration 09 10 17
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
4 OS No.25549/2013
JUDGMENT
The plaintiffs have filed the above suit for the relief of partition and separate possession in schedule properties and also for declaration declaring registered gift deed dtd.07.06.2013 and registered release deed dtd.24.04.2014 are illegal, null and void and not binding on the plaintiffs and for other consequential reliefs.
2. Briefly stated the case of the plaintiffs is that, originally the suit schedule property bearing Katha No.210, which is a built up residential building having ground, first, second and third floors in the site approximately measuring 1800 Sq.ft alongwith the sital built up area, situated at Seepings Road, Bharathinagar, Bangalore, originally acquired by Sri. V. P Lakshmaiah Naidu S/o Iyaloo Naidu (great grandfather of the 1st plaintiff) under the registered sale deed dtd.15.04.1925. After his death, the suit schedule property was partitioned between his two sons Mr. P. L Dhanaraj and Mr. P. L Raghupathy under the registered partition deed dtd.08.12.1961. Subsequently Mr. P. L Raghupathy gifted the suit 5 OS No.25549/2013 schedule property to his wife Mrs. Rukmini- and defendant No.1 and to other future unborn issues/children as per registered gift deed dtd.08.12.1961. The father of the plaintiff No.1 by name Mr. Prasanna has derived title to the suit schedule property interms of the registered gift deed dtd.08.12.1961, after his birth.
In so far as Item No.2 of the immovable properties bearing Khata No.209 is concerned, it is contended by the plaintiffs that, it is the ancestral property of Late Mr. P. L Raghupathy- the father of defendant Nos.1 to 3 and husband of the defendant No.1. They are only four sons to the Mr. P. L Raghupathy viz., plaintiff No.1 is the son of Prasanna one of the sons of Mr. P. L Raghupathy and plaintiff No.2 is the mother of plaintiff No.1. Since the plaintiff is minor, he is represented by the plaintiff No.2 mother.
During the lifetime of P. L Raghupathy, the joint family properties were enjoyed commonly by the legal heirs and after the death of P. L Raghupathy, his wife and his four sons alongwith the plaintiffs were residing in the residential building bearing Katha No.210 alongwith the property bearing Katha No.209.
6 OS No.25549/2013The defendant No.1 being the kartha of the family, he is receiving all the rents derived from the tenants concerning the residential building bearing katha No.210 and 209. The plaintiff had given details of tenants and monthly rentals at Para No.21 to 27. During the lifetime of father of the plaintiff No.1, he was demanding partition and allotment of share in the suit schedule property. However the defendants avoided the partition. The plaintiff inorder to preserve the family relations did not cause any dispute by insisting the defendants to effect partition and allot their share. After the death of her husband, the plaintiff No.2 visited her parents residence for mourning period alongwith her minor son. When she returned back to her residence on 01.03.2012 to her utter shock and dismay she found that the ground floor of the residence in the building was locked for obvious reasons. Left with no option the plaintiff No.2 with her minor son was constrained to return to the residence of her parents house. Thereby the defendants refused to permit the plaintiff to residing in the portion of her property. There is no partition of the suit schedule property till date. Plaintiff Nos.1 and 7 OS No.25549/2013 2 have been continuously demanding partition and allotment of their legitimate share in the suit schedule property. Inspite of legal notice the defendants failed to effect partition and allot shares to the plaintiffs. The defendants inorder to avoid partition and allotment of shares to the plaintiff have inter alia amongst themselves have transacted the suit schedule property and defendant No.4 gifted her ½ share to the defendant No.2 under the registered gift deed dtd.07.06.2013 and defendant No.1 gifted ½ share to the defendant No.3 under registered gift deed dtd.07.06.2013 and thereafter the defendant Nos.2 to 4 have released their rights in the plaint schedule A property infavour of defendant No.1 under the release deed dtd.24.04.2014. The gift deeds and the release deed are not binding on the share of the plaintiffs. According to plaintiffs, the defendants have forged the signature of the defendant No.4 and filed false affidavit to the Assistant Revenue Officer for transfer of katha in their names to make illegal and unlawful gains. The cause of action according to plaintiffs arose on07.02.2012 when the husband of plaintiff No.2 and father of the plaintiff No.1 demised and 8 OS No.25549/2013 when the plaintiffs demanded partition of the properties with the defendants. Therefore the plaintiffs approached this court seeking partition of the properties.
3. Pursuant to summons the defendant Nos.1 to 4 entered appearance through their respective counsel. During the pendency of the suit the defendant No.4 died. The defendant No.1 filed written statement and other defendants adopted the same. The defendants while admitting the relationship of the plaintiffs with the defendants, it is contended that the schedule A property was self acquired property of V. P Lakshmaiah Naidu S/o Iyaloo Naidu and who acquired the same under two gift deeds dtd.21.04.1937 and 17.06.1942. Sri. V. P Lakshmaiah has gifted the plaint A schedule property and another property bearing as 127 and 128 to his eldest son P. L Dhanaraj. Subsequently though P. L Raghupathy, the younger brother of P. L Dhanaraj was not entitled for a share, out of love and affection, he partitioned the plaint A schedule property and another property under the partition deed dtd.08.12.1961 and 9 OS No.25549/2013 P. L Raghupathy was given northern portion of property No.127, front shop No.127/A, portion of 127/ B and another property. Since 1961 they were in separate possession and enjoyment of their properties. Thereafter under a gift deed dtd.08.12.1961 P. L Raghupathy had given the plaint A schedule property to his wife Rukmini and eldest son of the defendant No.1 P. R Badrinath. Thereby the defendant Nos.1 and 4 have become the joint owners of the plaint A schedule property and exercising all acts of ownership. The defendant No.1 was aged about 2 years and other defendants were not at all born. The defendant Nos.1 and 4 had equal shares in the plaint A schedule property. Therefore the defendant No.4 under a gift deed dtd.07.06.2013 has gifted her half share to the defendant No.2 i.e., 1/4th share in the plaint A schedule property and remaining ½ share to the defendant No.3 and put them in possession of the same. Thereby the defendant Nos.1 to 4 have became co-owners and joint owners each having 1/4th share in the plaint A schedule property. Thereafter the defendant Nos.2 to 4 have relinquished their undivided share in the plaint A schedule property to 10 OS No.25549/2013 the defendant No.1 under the release deed dtd.24.04.2014 and the defendant No.1 became the absolute owner of schedule A property and he is in exclusive possession and enjoyment of the schedule A property. These facts are well within the knowledge of the plaintiffs. The plaintiffs have suppressed the said facts and filed above false suit against the defendants. Since the schedule A property is the absolute property of defendant No.1 is not available for partition. The plaintiffs predecessor has not derived any right, title or interest in or over the plaint A schedule property. In so far as plaint schedule B property is concerned, it is the contention of the defendants that, the family of the plaintiffs and the defendants does not own or possess the movables stated in the plaint B schedule and as such it is not available for partition. Therefore the defendants sought for dismissal of the suit.
4. During the pendency of the suit, the plaintiffs got amended the plaint and incorporated paragraph 41(a) to (d), wherein the plaintiffs pleaded regarding 11 OS No.25549/2013 execution of gift deeds and release deeds in between the defendants etc.
5. The defendants filed Addl. Written statement once again reiterating the written statement averments regarding valid execution of the gift deeds and release deeds by defendant Nos.2 to 4 infavour of defendant No.1 etc.
6. Based on the pleadings of the parties, my learned Predecessor has framed the following issues:
1. Whether the plaintiffs prove that, the suit schedule properties are the joint family ancestral property of late P. Raghupathi?
2. Whether the plaintiffs prove that, late P. Raghupathi and his four sons constitute coparceners and were in joint possession of the suit schedule properties, as coparceners?
3. Whether the plaintiffs prove that, after the death of P. Raghupathi, the defendant No.1 was managing the suit schedule properties as Kartha of the joint family?12 OS No.25549/2013
4. Whether the plaintiffs prove that, the suit schedule properties are joint family properties?
5. Whether the Plaintiffs prove that they are entitled for1/5th share + 1/4th share of the Defendant No.4 share,consequent to her demise on 09.04.2019?
6. Whether the plaintiffs prove that, they are the only legal heirs of deceased P. R Prasanna?
7. Whether the plaintiffs are entitled for mense profits?
8. Whether the plaintiffs are entitled for permanent injunction?
9. Whether the plaintiffs prove that, the suit for partition is maintainable?
10. Whether the defendants prove that, the suit schedule properties are not the joint family property or coparcenary property?
11. Whether the defendants prove that, the suit schedule properties is the self acquired property of their predecessor?
12. Whether the defendant No.1 proves that, the schedule A property is self 13 OS No.25549/2013 acquired property of defendant No.1 and is not liable for partition?
13. Whether the defendants prove that schedule B property is not available for partition?
14. Whether the court fee paid is sufficient?
15. What order or decree?
Addl. Issues
1. Whether plaintiffs prove that the registered gift deeds dated 07.06.2013 executed by defendant No.4 in favour of defendant No.2 to the extent of her half share and defendant No.1 executed a another gift deed in favour of the defendant No.3 to the extent of his half share are deserved to be declared as illegal, null and void and the same arenot binding on the plaintiff?
2. Whether plaintiffs prove that defendants No.2 to 4 have released their rights involved in the 'A' schedule property in favour of defendant No.1 under the release deed executed on 24.04.2014?
7. The plaintiff No.2 got herself examined as PW1 and got marked Ex.P1 to Ex.P22 and closed their side.
14 OS No.25549/2013The defendant No.1 got himself examined as DW1 and got marked Ex.D1 to Ex.D24 documents and the defendants closed their side.
8. Heard the counsel for both parties.
9. Perused the evidence and documents on record. On appreciation of the evidence on record, my findings on the above issues are as under:
Issue No.1: In the Affirmative;
Issue No.2: In the Affirmative;
Issue No.3: In the Affirmative;
Issue No.4: In the Affirmative;
Issue No.5: In the Affirmative;
Issue No.6: In the Affirmative;
Issue No.7: There shall be an enquiry as to the mesne profits U/Or.20 Rule 12 of CPC;
Issue No.8: In the Affirmative;
Issue No.9: In the Affirmative;
Issue No.10: In the Negative;
Issue No.11: In the Negative;
Issue No.12: In the Negative;
Issue No.13: In the Affirmative;
Issue No.14: In the Affirmative;
Addl.Issue No.1: In the Affirmative;
Addl.Issue No.2: In the Affirmative;
Issue No.15: As per final order for the following:
15 OS No.25549/2013REASONS
10. Issue Nos. 1 to 6 & 9 to 12 & Addl.
Issue Nos.1 and 2:-
Since the above issues are inter related with each other and finding on one issue is having bearing on the other issues, inorder to avoid repetition of the facts, all the above issues have been taken up together for consideration.
The entire case revolves around the interpretation of the covenants of the gift deed at Ex.D3, executed by P. L Raghupathy S/o Late V. P Lakshmaiah dtd.08.12.1961. The plaintiffs claiming that the husband of plaintiff No.2 i.e., Sri. Prasanna is also beneficiary under the gift deed inview of the facts that the gift deed is executed even infavour of future issues of Smt. Rukmini W/o P. L Raghupathi. Whereas the contention of the defendant No.1 is that, the schedule A property was given absolutely to his wife and her minor son- defendant No.1. As on the date of gift deed Sri. Prasanna was not at all born and as such question of interpreting the gift deed to the beneficiary of the plaintiffs does not arise. Therefore it is necessary to appreciate the arguments 16 OS No.25549/2013 canvased by the learned counsel for the parties, before appreciating the evidence on record.
11. The learned counsel for the plaintiffs during the course of arguments, vehemently argued that the relationship of the parties is not in dispute. The plaintiff No.1 is the son of Late Prasanna, one of the sons of P. Raghupathi and plaintiff No.2 is the daughter in law of P. Raghupathi. According to learned counsel, the plaintiffs father acquired vested right in the properties U/Sec.20 of the Transfer of Property Act by virtue of the gift deed executed by P. L. Raghypathy. Therefore the defendants cannot challenge the right of the plaintiff No.1 over the suit schedule property. The learned counsel while interpreting the gift deed at Ex.D3 contended that, the recitals in the gift deed clearly establish that the property was given not only to his wife and the defendant No.1, but also to his future unborn children and therefore the defendants cannot deny the share of the plaintiffs in the schedule A property. The learned counsel while referring to the evidence lead by both the parties specifically contended that the father of the 17 OS No.25549/2013 plaintiff No.1 is also a beneficiary under the gift deed executed by P. L Raghupathy. Therefore the plaintiffs are entitled for a share in the schedule A property.
12. Percontra, the learned counsel for the defendants contended that, the succession opened on the death of Prasanna- the father of plaintiff No.1. Late Prasanna died subsequent to 1956. Though P. L Raghupathy had no right in the property, keeping inview the love and affection of P. L Dhanraju with his brother P. L Raghupathy partitioned the property on 08.01.1961 under Ex.P22 and allotted share to the P. L Raghupathy. Therefore the said property was the self acquired property of P. L Raghupathy. The learned counsel while referring to initial pleadings of the plaintiffs contended that the plaintiffs are not claiming right on the strength of the gift deed, but on the ground that the suit schedule A property is the joint family property of plaintiffs and the defendants. The learned counsel submits that since the suit schedule property was the self acquired property of P. L Raghupathy, he was having every right to bequeath the property byway of gift deed exclusively infavour of 18 OS No.25549/2013 his wife and minor son- defendant No.1 in the year 1961. The learned counsel while referring to the contention of the gift deed at Ex.D3 contended that the intention of the executor must be gathered from the contents of the gift deed. The learned counsel while reading the gift deed in its entirety submitted that absolute right was given to his wife Rukmini and his minor son- defendant No.1 and as such giving right to the unborn issues in the property does not arise. The provision of Transfer of Property Act mandates that the donnee must accept the gift, gifted by the doner. Since the father of the plaintiff No.1 was not at all born, the question of his accepting the gift does not arise. Therefore by virtue of the gift deed at Ex.D3, the schedule A property is the absolute property of defendant Nos.1 and 4.
13. According to learned counsel there is no reference to unborn children in Ex.D3- gift deed. The plaintiffs have no existing right in the suit schedule property. According to learned counsel for the defendants, in the earlier pleadings there was no 19 OS No.25549/2013 reference to gift deed and the plaintiffs did not claim right on the basis of the gift deed.
14. It is also the contention of the learned counsel for the defendants that, the subsequent clauses in the gift deed, which are repugnant to the interest created infavour of defendant No.1 and his mother in the earlier clauses, cannot be considered. According to learned counsel there are destructive and inconsistent pleas raised by the plaintiff. The learned counsel for the defendants submits that, the plaintiffs are uncertain as to whether the suit schedule A property is ancestral property or they are claiming share on the basis of the gift deed. Whether they are claiming share as coparcener or as absolute property of P. L Raghupathy. The learned counsel further submitted that the father of the plaintiff No.1 during his lifetime not claimed any share in the property since he was aware of the fact that the suit schedule A property was exclusively given to the defendant Nos.1 and 4. Therefore the gift deed was acted upon and Sri. Prasanna acquiesced to the effect of the gift deed infavour of his mother and defendant No.1.
20 OS No.25549/2013Therefore during his lifetime he did not claim any share in the property.
15. The other limb of arguments canvased by the learned counsel for the defendants is that, the plaintiffs are ousted from the schedule A property and the defendants are specifically denying their right and as such the court fee paid by the plaintiffs U/Sec.35(2) of Karnataka Court Fees and Suit Valuation Act is insufficient. According to learned counsel the plaintiffs are required to value the suit U/ Sec.35(1) of the Karnataka Court Fees and Suit Valuation Act and they are required to pay court fee U/Sec. 35(1) of the Karnataka Court Fees and Suit Valuation Act. The learned counsel for the defendants also relied on rulings reported in 1) AIR 1959 SC 24;
2) AIR 1960 SC 953; and 3) AIR 1963 SC 890 and sought for dismissal of the suit.
16. Bearing in mind the rival contentions, let me appreciate the evidence and documents on record.
17. At the outset, it is made clear that the relationship of the parties is not in dispute. The 21 OS No.25549/2013 plaintiff No.2 is the wife of one P R Prasanna, one of the son's of Late P. Raghupathi and Smt. T E Rukmini. The defendant No.1 to 3 are the brothers of deceased Prasanna. The plaintiff No.1 is the son of deceased Prasanna. The defendants at Para No.9 of their written statement admitted the relationship of the parties.
18. In so far as the origin of the suit schedule property is concerned, admittedly the grandfather of the defendant Nos.1 to 3 Sri. V P Lakshmaiahnaidu purchased the suit schedule property on 15.04.1925 and later it was partitioned between his two sons P L Dhanaraj and P L Raghupathi. The plaintiff and defendants being the legal heirs are claiming share in the property of P L Raghupathi. However the defendant No.1 is contending that, his father Raghupathi gifted the property absolutely only infavour of his mother and defendant No.1 and therefore other children of Raghupathi are not entitled for any share in the suit schedule property. The suit schedule property is bearing Katha No.209 and 210, consisting of three storied building.
22 OS No.25549/201319. The PW1 who is the wife of deceased Prasanna in her examination in chief at Para No.7 contended that, Raghupathi executed a registered gift deed on 08.12.1961 infavvour of his wife and elder son and also infavour of the children to be born to the couple in future. Therefore her husband being the last son of Raghupahi is entitled for share in the property and after his death, the plaintiff No.1 is entitled for the property of his father's share. She relied on 22 documents. Ex.P1 is the birth certificate of plaintiff No.1, Ex.P2 to 4 are the katha extracts and katha certificates inrespect of suit schedule Item No.1 property which is now standing in the name of defendant No.1 and prior to that in the name of Smt. Rukmini. Ex.P5 to 9 are the photographs and Ex.P10 is the CD. Ex.P11 is the death certificate of her husband, Ex.P12 is the representation given to Assistant Revenue Office, to not to transfer the katha of the suit schedule Item No.1 property infavour of anybody, Ex.P13 is the legal notice issued to the defendants calling upon them to effect partition and allot their share in the said property. Ex.P13(a) to (d) are the postal receipts, Ex.P14 is a receipt issued by 23 OS No.25549/2013 BBMP, Ex.P15 is the complaint to the police by the PW1, Ex.P16 is the FIR registered against the respondents herein for the offene punishable U/Sec.420, 465, 468, 471 R/w Sec. 34 of IPC, Ex.P17 & 18 are Uttar patras, Ex.P19 death certificate of Rukmini, Ex.P20 is a copy of no objection certificate said to have been executed by PW1 on 20.01.2014 to transfer the katha in the name of defendants. Ex.P22 is the certified copy of partition deed between Raghupathi and his brother and Ex.P21 is the certified copy of gift deed both dtd.08.12.1961.
20. On the basis of the aforesaid documents the plaintiff contended that, the suit schedule Item No.1 property is the joint family property of plaintiff and defendants, which was acquired by Lakshmaiah Naidu and after his death, his two sons got divided the properties, on 08.12.1961 as per Ex.P21 and on the same day, P L Raghupathi the father of the defendants executed a gift deed. It is significant to note that, as on the date of partition, the defendant No.1 was already born and as such the suit schedule 24 OS No.25549/2013 Item No.1 of the property is the ancestral property in the hands of defendant No.1.
21. PW1 was cross examined at length by the learned counsel for the defendants. From the line of cross examination it could be gathered that the entire case revolves around the interpretation and construction of the gift deed at Ex.P21 executed by P L Raghupathi on 08.12.1961. According to defendants, the entire property was gifted only infavour of mother and the defendant No.1 absolutely and as such no one is having any right in the property. Whereas the contention of the plaintiffs is that, even the unborn children of Raghupathi were also given share in the property under the gift deed. Therefore a question was put to PW1 in the cross examination which is recorded by this court in the question and answer format, as follows:-
Que. On the same day of partition deed-Ex.P22, P L Raghupathi had executed a gift deed as per Ex.P21 infavour of his wife T E Rukmini and his elder brother- son P. R Badrinath?
Ans. Even he had gifted the said property under the gift deed-Ex.P21 to his unborn children.25 OS No.25549/2013
22. Therefore at this stage itself it is necessary to refer the gift deed, which is produced by the defendants also at Ex.D3. In the Ex.D3- gift deed dtd.08.12.1961, the donner P L Raghupathi stated that he possessed the property mentioned in the schedule by means of a partition deed dtd.08.12.1961 between himself and his brother Dhanaraj. Thereafter at Page No.1 the recitals read thus:-
"Now This Deed of Gift Witnesses that in consideration of natural love and affection towards the Donees, the Doner hereby transfers to the Donees free from encumbrance all the property morefully described in the schedule hereto To Hold the same to the donees absolutely for ever.
The Donee and all her future issues will enjoy the same absolutely."
(emphasis supplied)
23. From the pleadings and admissions of the parties, it could be gathered that the originally the property was purchased by the father of doner by name Lakshmaiah Naidu in the year 1925. As on 1961 the defendant No.1 was already born and as such the property in the hands of the defendant No.1 26 OS No.25549/2013 was ancestral in nature. Even in the absence of the gift deed, all the defendants were entitled for share in the property. Now both the parties are staking claim over the suit schedule property on the strength of gift deed at Ex.D3 and as such it is necessary to restrict the reasoning as to the interpretation of the clauses reflected in the gift deed.
24. The Hon'ble Supreme Court in plethora of rulings consistently observed that while construction of the documents, the court have to find out the pith and substance of the document and the intention of the executor by reading the documents in its entirety and not in isolation.
25. In the case on hand, the P L Raghupathi was only 32 years of age at the time of execution of the gift deed at Ex.D3. Equally his wife Smt. Rukmini was only aged about 22 years and defendant No.1 herein was just two years of age. No reasons assigned in the gift deed by P. L Raghupathi, as to why he was executing the gift deed on the date of partition itself, at his young age. It appears that the 27 OS No.25549/2013 executor was aware of the fact that he may beget children in future having regard to his young age and as such a specific clause is incorporated, which his highlighted above. If at all, the executor had any intention to restrict the benefit only to his wife and son, there was no reason for the executor to incorporate the above highlighted sentence by giving right to future issues also.
26. The remaining cross examination of PW1 is on the aspect of investment made for construction of the building, which will be discussed little later.
27. In the further cross examination, there are suggestions to PW1 that, the defendant Nos.2 to 4 have executed release deed infavour of defendant No.1 on 29.04.2014. The witness pleaded ignorance. One more suggestion is that, in lieu of their releasing their rights in the property infavour of defendant No.1, he has paid a sum of Rs.25 lakhs each to defendant Nos.2 to 4. The witness once again pleaded ignorance. Meaning thereby, the defendant No.1 impliedely recognized and admitted the right of other 28 OS No.25549/2013 two sons of P L Raghupathi, who were also born subsequent to gift deed executed by his father. When it is the case of defendant No.1 that, under the gift deed absolute right was given to his mother and defendant No.1 alone, there was no reason for him to recognize the right of other children and to give Rs.25 lakhs each to the defendant Nos.2 & 3. The other three sons including the deceased husband of the plaintiff No.1 were born subsequent to 1961. Therefore, if the intention of the executor was to give the immovable property only infavour of his wife and the defendant No.1, there was no reason for him to incorporate the words "to his future issues" in the gift deed at Ex.D3. At the end of the cross examination there is a suggestion to the witness that, the defendant No.1 had offered an amount of Rs.25 lakhs towards the livelihood of the plaintiff and the said suggestion is denied by PW1.
28. Coming to the evidence of DW1, naturally the witness stated that, he is the absolute owner of the suit schedule A property under the gift deed dtd.08.12.1961 and the other defendants were not at 29 OS No.25549/2013 all born at the time of gift deed and as such except the defendant No.1, no one is having share in the property. He also deposed regarding execution of gift deed by his mother on 07.06.2013 bequeathing her half share to defendant No.2 i.e.,1/4th share and remaining half share infavour of defendant No.3 etc. He also deposed regarding release of rights by the defendant Nos.2 to 4 in his favour. The defendant No.1 denied the right of his brother deceased Prasanna and the entitlement of the share of the plaintiff in the suit schedule property. The defendants relied on 24 documents. Ex.D1 is the certified copy of the sale deed dtd.15.04.1925, under which their grandfather purchased the property, which is not in dispute, Ex.D2 and 3 are the partition deed and gift deed dtd.08.12.1961, which are also not in dispute, Ex.D4 is the order of the BBMP, Ex.D5 is the blueprint, Ex.D6 & 7 are the couple of gift deed dtd.07.06.2013 between the defendants, Ex.D8 and 9 are the katha certificate and katha extract, Ex.D10 is the registered release deed dtd.24.04.2014 said to have been executed by his brothers infavour of defendant No.1, Ex.D11 & 12 are the katha certificate and katha 30 OS No.25549/2013 extract, Ex.D13 to 19 are the property tax receipts, Ex.D20 to 24 are the rental agreements.
29. DW1 was also cross examined at length by the learned counsel for the plaintiffs. The first two pages of the cross examination is regarding acquisition of the property bearing No.127, by Lakshmaiah Naidu. Since the mode of acquisition is not in dispute and the identity of the property is also not in dispute, it is unnecessary to discuss all those aspects. Subsequent two pages of cross examination is regarding partition of property between Dhanaraj and Raghupathi in respect of property bearing No.127 and 128. As stated above, the identity of the property is not in dispute. The suit schedule property, in the case on hand, is the property bearing No.209 and 210 situated at Seppings Road, Bharathi Nagar Bengaluru which is admittedly acquired by P L Raghupathi in the partition between himself and his brother Dhanaraj. At Page No.14 of the cross examination the DW1 admitted that, as on the date of partition, he was born and the defendant Nos.2 & 3 and the husband of the plaintiff No.1 was born in the property bearing 31 OS No.25549/2013 No.127. His father Raghupathi also died in the very same property.
30. In so far as the construction of the document is concerned, at Page No.18, Para No.2, when it was questioned to the witness that, there is covenants in the gift deed at Ex.D3 to the effect that the future unborn children are also having share in the gifted property, the witness answered in the affirmative. The witness also admitted the recitals in the document regarding the donee and all other future issues would enjoy the property absolutely. Admittedly after the gift deed at Ex.D3, no other document was executed by Raghupathi bequeathing the property infavour of his wife and defendant No.1. Infact the Raghupathi was alive upto 2003 and he died first, later his mother. The defendant No.1 has not challenged the gift deed at Ex.D3, where a provision is also made for future unborn issues giving right in the property. The remaining cross examination is regarding the subsequent gift deeds and release deed entered into between the defendants themselves.
32 OS No.25549/201331. As stated above, the case has to be decided on the basis of the construction of recitals in the gift deed at Ex.D3. As pointed out earlier, the gift deed is executed when the executor was just 32 years of age and his wife was just 22 years of age. Equally the defendant No.1 was also just two years old child and as such the intention of the executor was to give benefit in the property even to the unborn children.
32. The learned counsel for the defendants relied on the following rulings reported in AIR 1959 SC 24 (Rada Sundar Datta V/s Mohammd Jahadur Rahim and Ors), wherein the Hon'ble Apex Court observed thus:-
"(C) Deed, construction, two constructions possible. Construction giving effect to all clauses to be preferred.
If there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim "ut respondent magis valeat quam pereat"
(D). Deed, construction, conflict between earlier and later clauses.33 OS No.25549/2013
If, infact, there is a conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa."
33. One more ruling referred to by the learned counsel for the defendants is reported in AIR 1960 SC 953 (Sahebzada Mohammad Kamgarh Shah V/s Jagdish Chandra Deo Dhabal Deb and Ors) wherein the Hon'ble Apex Court at Para No.13 observed thus:-
"13. The correctness of these principles is too well established by authorities to justify any detailed discussion. The task being to ascertain the intention of the parties, the cases have laid down that that intention has to be gathered by the words used by the parties themselves. In doing so the parties must be presumed to have used the words in their strict grammatical sense. If and when the parties have first expressed themselves in one way and then go on saying something, which is irreconcilable with what has gone before, the courts have evolved the principle on the theory that what once had been granted cannot next be taken away, that the clear disposition by an earlier 34 OS No.25549/2013 clause will not be allowed to be out down by later clause. Where there is ambiguity it is the duty of the Court to look at all the parts of the document to ascertain what was really intended by the parties. But even here the rule has to be borne in mind that the document being the grantor's document it has to be interpreted strictly against him and in favour of the grantee."
34. I am in respectful agreement with the principle laid by the Hon'ble Apex Court. As pointed out earlier, the courts while constructing the document have to see the pith and substance of the document and also to ascertain the intention of the executor by reading the document as a whole and not in isolation. Even in the above referred ruling the Hon'ble Apex Court observed that, the intention of the executor has to be gathered by the words used by the parties themselves. In the case on hand, a specific sentence is used by the executor at Ex.D3 stating that all future issues of donnee will enjoy the same absolutely. If the executor had no intention to have children in future, there was no occasion or reason for the executor to incorporate the above sentence. It is not the case of the defendants that the said sentence is incorporated 35 OS No.25549/2013 subsequently. Infact it is the defendants, who had produced the original gift deed before this court.
35. One more ruling referred to by the learned counsel for the defendants is reported AIR 1963 SC 890 (Ramkishorelal and Anr V/s Kamalnarayan), wherein the Hon'ble Apex Court laid down the golden rule of construction in the following terms.
"12. The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has, to a trained conveyancer, a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so 36 OS No.25549/2013 equally skilled in the art of conveyancing. Sometimes' it happens in the case of documents as regards disposition of properties, whether they are testamentary or non testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar in-stance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? If is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible. It is only when this is not possible, e. g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void. (emphasis supplied)
36. I am in respectful agreement with the principle laid down by the Honb'el Apex Court and there cannot be any quarrel with the said proposition 37 OS No.25549/2013 of law. Infact the rulings referred to by the learned counsel for the defendants is more applicable to the case of the plaintiffs rather than the defendants. The gift deed in the case on hand is executed by the father infavour of his wife and only son who was born at the time of execution of the gift deed, making provision for his future unborn children also. As stated above, it was executed when the executor was just 32 years of age. Therefore it appears that his intention was to give benefit even to his unborn children and as such the defendant No.1 cannot be permitted to contend that he was alone given right in the suit schedule A property.
37. If it was the case of the defendant No.1 that he was the only absolute owner of the immovable property under the gift deed, there was no reason for defendant No.1 to recognize the right of other brothers and to part with huge sum of Rs.25 lakhs each to defendant Nos.2 & 3 and getting release deeds executed in his favour inrespect of the suit schedule 'A' property. What is sauce to the goose is sauce to the gander. The defendant No.1 is not disputing that 38 OS No.25549/2013 deceased Prasanna is his youngest brother and the plaintiff No.2 is his wife and plaintiff No.1 is the off shoot of deceased Prasanna. Therefore when the other brothers are entitled for share in the property, the deceased Prasanna is also entitled for share in the suit schedule 'A' property.
38. Thus looking from any angle, the plaintiff No.1 is also entitled for the benefit under the gift deed at Ex.D3 and his father is also a beneficiary under the gift deed. Therefore the plaintiff No.1 is entitled for share in the suit schedule A property.
39. The alleged gift deeds dtd.07.06.2013 executed by deceased defendant No.4 infavour of other defendants and the alleged release deeds executed by defendant No.2 to 4 infavour of defendant No.1, are naturally not binding on the share of the plaintiffs. The plaintiffs are not parties to any such deeds entered into between the defendants. Those documents came into existence unilaterally between the defendants, during pendency of above proceedings and as such subsequent transactions are not binding on the plaintiffs. In fact the above suit was filed in 39 OS No.25549/2013 the month of March 2013 and it appears that subsequent to receipt of summons, in the above suit, the defendants have entered into alleged gift deeds and release deeds, which are during the pendency of the above suit. Therefore they are not binding on the plaintiffs.
40. The deceased Prassana is one of the sons of Raghupathi alongwith the defendant Nos.1 to 3. During the pendency of the above suit, the mother of defendant Nos.1 to 3 died and as such all the sons of Raghupathi are entitled for equal share in the suit schedule Item No.1 property at 1/4th share each. The plaintiffs are entitled for 1/4th share in the suit schedule Item No.1 of the property. Accordingly, Issue Nos.1 to 6 are answered in the Affirmative, Issue No.9 is answered in the Affirmative, Issue Nos.10 to 12 are answered in the Negative and Addl. Issue Nos.1 and 2 are answered in the Affirmative.
41. Issue No.13:-
The plaintiffs claimed share in the schedule B property also which are the gold and silver 40 OS No.25549/2013 ornaments, copper silver steel and other vessels furniture, TV sets computer and other equipment. Except mentioning the said properties in the schedule B, no material worth its name is produced before the court by the plaintiffs. Even during the course of trial also, the plaintiffs not cross examined the DW1 regarding existence of schedule B property to the family of plaintiffs and defendants. Absolutely no evidence is available on record to establish the availability of schedule B properties for partition. Hence, Issue No.13 is answered in the Affirmative.
42. Issue No.7 The plaintiffs have claimed mesne profits in the above suit on the ground it is the defendant No.1 is collecting the rents from the suit schedule property.
Infact as per prayer(d) the plaintiffs sought an enquiry in to the mesne profits. Of-course in the evidence before the court, the defendant No.1 deposed regarding his investing money for construction of building etc., he also placed on record some rental agreements to establish that some tenants are 41 OS No.25549/2013 occupying the schedule property. Infact DW1 categorically admitted that there are seven tenants in the suit schedule property and he is collecting rents etc. Nowhere there is suggestion to witness regarding quantum of rents being collected by the defendant No.1 from the tenants in the cross examination by the plaintiffs. Therefore the evidence on record is too inadequate and insufficient to award mesne profits to the plaintiffs, without an enquiry. Therefore there shall be an enquiry as to the mesne profits U/Or.20 Rule 12 of CPC. Hence, Issue No.7 is answered accordingly.
43. Issue No.14 The defendants contended that the suit of the plaintiffs is not properly valued and court fee paid is insufficient. However the above suit is for the relief of partition and separate possession inrespect of immovable property and the suit is valued U/Sec.35(2) of Karnataka Court Fees and Suit Valuation Act and court fee of Rs.300/- is paid by the plaintiffs. Nowhere in the written statement, the defendants have taken up the defence of ouster of the 42 OS No.25549/2013 plaintiffs from the joint family. Admittedly Prassanna the husband of the plaintiff No.2 died in the suit schedule property and till his death he was residing in the said property. Therefore in the absence of exclusion of possession of the plaintiffs from the suit schedule property, it unnecessary to pay court fee under U/Sec.35(1) of Karnataka Court Fees and Suit Valuation Act and the court fee paid U/Sec.35(2) of Karnataka Court Fees and Suit Valuation Act, is proper and correct. According, Issue No.14 is answered in the Affirmative.
44. Issue No.8 the plaintiffs have claimed perpetual injunction against the defendants restraining them from alienating the suit schedule property infavour of third parties. It is pertinent to note that, the defendants not only disputed the right of the plaintiffs in the suit schedule property, but also subsequent to filing of the above suit, the defendants executed gift deeds and release deeds amongst themselves without the knowledge of the plaintiffs. The conduct on the part of the defendants indicate that they may create third 43 OS No.25549/2013 party interest inorder deprive the rights of the plaintiffs or share in the suit schedule Item No.1 of the property. Therefore it is necessary to preserve the suit schedule property till effecting partition by metes and bounds. Hence, Issue No.8 is answered in the Affirmative.
45. Issue No.15:
In view of the findings on the above issues, the suit of the plaintiff deserve to be decree, in part. Accordingly, I proceed to pass the following:
ORDER The Suit of the Plaintiffs is hereby decreed, in part, as prayed for.
The plaintiffs are entitled for 1/4th share in the suit schedule property bearing No.209 and 210, situated at Seppings Road, Bharathi Nagar, Bengaluru.
The gift deeds dtd.07.06.2013 executed by defendant No.1 infavour of defendant Nos.2 and 3 are not binding on the plaintiffs. Equally the Release Deed dtd.24.04.2014 executed by defendant Nos.2 to 4 infavour of defendant No.1 is also not binding on the plaintiffs.44 OS No.25549/2013
There shall be an enquiry as to mesne profits U/Or.20 Rule 12 of CPC.
The defendants, their agents, servants etc., are permanently restrained from alienating the suit schedule property to third parties, till the partition of the property, in accordance with Partition Act.
Having regard to the relationship of the parties, there is no order as to costs.
Draw preliminary decree
accordingly.
The plaintiffs can seek Final
Decree in the above proceedings itself by filing necessary application.
----
(Dictation given to the Stenographer, transcribed by her, after correction, signed and pronounced by me in the open court on this the 14th day of February, 2023) Digitally signed by P PG G CHALUVA CHALUVA MURTHY Date: 2023.02.20 MURTHY 16:19:17 +0530 [P. G Chaluva Murthy] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 45 OS No.25549/2013 Schedule 'A' Property Item I:-
All that piece and parcel of the immovable property bearing Katha No.210, which is a built up residential building having a 1) ground floor, 2) first floor, 3) second floor, and the 4) third floor in the site approximately measuring 1800 sq.ft., alongwith the sital built up area which measures 4500 sq.ft which is inclusive of the plinth area, situated in Seppings Road, Bharathinagar, Bangalore-560001.
Item II:-
All that piece and parcel of the immovable property bearing Katha No.209, which is a built up residential building in the site approximately measuring 100 sq.ft., alongwith the sital built up area which measures 100 sq.ft which is inclusive of the plinth area, situated in Seppings Road, Bharathinagar, Bangalore-560001.
Both Item I & II Properties compositely bounded as follows:-
East: Private Property, West: Seppings Road & Temple, North: Property bearing No.208, South: Private Property belonging to Smt. Chitra & thereafter Meta Trading Private Limited.
Schedule 'B' Property
1. Gold and silver ornaments.
2. Silver articles.
3. Copper, brass, steel and other vessels.46 OS No.25549/2013
4. Furniture.
5. TV Sets, computers and other equipments.Digitally signed by P G
P G CHALUVA CHALUVA MURTHY MURTHY Date: 2023.02.20 16:19:26 +0530 [P. G Chaluva Murthy] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1: L. R Prathima.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P1: Birth certificate.
Ex.P2 to 4: Two katha extracts & one katha certificate. Ex.P5 to 10: 5 positive photographs with one CD. Ex.P11: Death certificate.
Ex.P12: Letter dtd.07.01.2012. Ex.P13, 13(A) to (D): Office copy of the legal notice with 4 postal receipts.
Ex.P14: Receipt.
Ex.P15: Office copy of the complaint.
Ex.P16: True copy of FIR.
Ex.P17 & 18: True copies of two katha certificates. Ex.P19: Death certificate.
Ex.P20: Copy of affidavit dtd.20.01.2014. Ex.P21 & 22: Certified copies of Deed of Partition dtd.08.12.1961 & Deed of gift dtd.08.12.1961.
47 OS No.25549/2013LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
DW.1: P. R Badrinath.
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
Ex.D1: Certified copy of the registered Sale deed dtd.15.04.1925.
Ex.D2: Duplicate copy of registered partition deed dtd.08.12.1961.
Ex.D3: Registered Gift deed dtd.08.12.1961. Ex.D4: Memorandum dtd.29.09.1962 issued by the Corporation City of Bangalore. Ex.D5: Blue Print approved building construction plan. Ex.D6: Registered Gift deed dtd,07.06.2013. Ex.D7: Registered Gift deed dtd,07.06.2013. Ex.D8 & 9: Katha certificate and katha extract. Ex.D10: Registered release deed dtd.24.04.2014. Ex.D11 & 12: Katha certificate and katha extract. Ex.D13 to 19: 7 Property tax receipts. Ex.D20 to 24: 5 Rental agreements.Digitally signed by
PG P G CHALUVA
CHALUVA MURTHY
Date: 2023.02.20
MURTHY 16:19:33 +0530
[P. G Chaluva Murthy]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH-73)