Bangalore District Court
Smt. C.V.Mohini vs Sri. C.V.Guruprasad on 29 February, 2016
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY (CCH No.8)
Dated this the 29th day of February 2016.
PRESENT:
S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.5562 of 2009
Plaintiffs:- 1. Smt. C.V.Mohini,
D/O Late C.K.Vasudeva Murthy,
W/O Sri. L.S.Vijay,
aged about 56 years,
residing at No.677, 20th Main,
11th Cross, Padmanabhanagar,
Bengaluru-70
2. Smt. C.V.Vasantha,
D/O Late C.K.Vasudeva Murthy,
W/O Sri. Mahadev,
aged about 54 years,
residing at No.180-7, Vishranthi
Apartment, Gruhalakshmi Layout, 2nd
Stage, Kamalanagar, Bengaluru-79
3. Smt. C.V.Uma,
D/O Late C.K.Vasudeva Murthy,
W/O Sri. Venkatesh,
aged about 50 years,
residing at No.5/95, 1st Main road,
Gnaneshwari Apartment,
Chamarajapet, Bengaluru-
18
[By Sri.M.S.Rao and Associates-Advocate]
2 O.S.No.5562 of 2009
: Vs :
Defendants:- Sri. C.V.Guruprasad,
S/O Late C.K.Vasudeva Murthy,
aged about 46 years, residing at No.10/1,
Srinivasa Colony, K.R.S
Gardens, 6 Main Road Chamarajpet,
th
Bengaluru -18
[R.M.Associates advocate for defendant]
Date of the institution of suit: 17.7.2009
Nature of the suit : Partition
Date of the commencement of 3.4.2010
recording of the evidence :
Date on which the judgment 29.2.2016
was pronounced :
Total duration: Year Months Days
06 07 12
XI Addl.City Civil Judge,
B'lore city.
JDGMENT
The plaintiff No.1 to 3 have filed this suit for partition and
separate possession against their brother, who is defendant in
the suit in respect of suit schedule "A" and "B" properties and
also prayed for awarding their legitimate share in the rental
3 O.S.No.5562 of 2009
income received by the defendant and for other reliefs including
the costs of the suit.
2. The case of the plaintiff as pleaded in the plaint
briefly stated as follows:-
That the defendant herein is the youngest brother of the
plaintiff, the plaintiffs and the defendant are the only children
of late C.K.Vasudeva Murthy and late C.V.Sathya Bhama
and plaintiffs have relied upon genealogical tree produced
herewith as annexure to the plaint for the sake of convenience
and reference in the suit. It is further alleged by the plaintiffs
that the grand-father of the plaintiffs and defendant namely
late C.N.Krisnha Murthy Rao had purchased the schedule
property out of his self earnings, the residential property in
the then bearing No.11, 6th Main Road, Chamrajpet,
Bengaluru-18 from its previous owner Sri. K.R.Srinivasa
Iyengar on 17.3.1932 by sale deed registered in the office of
Sub Registrar , Bengaluru City in document No.2714, Book
No.1, Volume No.176, pages 126-137 and later after death of
C.N.Krisnha Murthy Rao, his children namely C.K.Vasudeva
Murthy, Smt.Kumudfa Bai, Sri. Bheema Chandra Narayan,
Smt. S.R.Sunanda Bai, Smt. C.K.Nalina Bai, Smt. C.K.Vimala
Bai and Sri. C.K.Raghunath partitioned the said property and
entered into partition deed dated 8.6.1962 registered in the
office of Sub Registrar , Bengaluru City as document
4 O.S.No.5562 of 2009
No.1176/62-63, Book No.1, Volume No.311, Pages 110 to 118
and plaintiffs have relied upon partition deed dated 8.6.1962
as Annexure "B" and copy of encumbrance certificate obtained
from Sub Registrar office for the period of 18 years from
1.4.1962 to 31.3.1980 evidencing the partition is produced at
Annexure-C. It is further stated that late C.K.Vasudeva
Murthy got his share of the property, which is mentioned in
the schedule in schedule "A" of the plaint and this property
herein after referred to as schedule property, wherein schedule
"A" property is demarcated as schedule "D" in the partition
deed dated 8.6.1962. Late C.K.Vasudeva Murthy expired on
25.11.1987 and copy of death certificate is produced as
Annexure "D". After the death of C.K.Vasudeva Murthy, his
wife C.V.Sathya Bhama, the mother of plaintiffs and defendant
got her name mutated by change of katha entries in respect of
the property transferred to her name and inherited this
property and katha extract is produced and marked at
Annexure "E". Later Smt. C.V.Sathya Bhama expired on
17.1.2009 leaving behind the plaintiffs and defendant as
successor to her estates. A coy of death certificate is marked at
Annexure-F. It is stated by the plaintiffs that at the time of
death of her mother, she has left gold ornaments and silver
articles in her possession and some of which were purchased
for herself by her husband late C.K.Vasudeva Murthy and
some of which were streedhana property as deceased
5 O.S.No.5562 of 2009
Smt.C.V.Sathya Bhama was residing with her son, defendant
herein, wherein defendant has taken into custody of gold and
silver articles belonging to the deceased and gold and silver
articles belonging to mother of the plaintiffs now in the custody
of defendant, which are described in schedule "B" of the plaint.
The schedule "B" property is house property and dwelling
house constructed and occupied by the defendant and other
two tenements have been leased, which are fetching a rent of
Rs.6,000/- per month, the rental income from both the houses
amounting to Rs.12,000/- per month retained by the defendant
without parting any shares of rent to these plaintiffs. Plaintiffs
and defendant are the Class-I heirs of late C.K.Vasudeva
Murthy and Smt. C.V.Sathya Bhama under the provision of
Hindu Succession Act and they jointly inherit the suit
schedule "A' and suit schedule "B" properties together with
accrued and future interest in equal share. The plaintiffs
approached the defendant many times and requested him to
partition the properties and to award their legitimate share by
effecting partition, but defendant did not take any steps for
effecting partition, when plaintiffs approached the defendant on
19.4.2009 and requested the defendant to give share by way of
partition and on that day, defendant not only refused to share
the property and also abused the plaintiffs in filthy language
and threatened them of dire consequences, if they approach
him again in that matter and defendant even advanced to use
6 O.S.No.5562 of 2009
physical force against plaintiffs to throw them out of his
house and thereby plaintiffs constrained to cause legal notice
dated 1.6.2009 to the defendant for effecting partition and
sent to the defendant by registered post acknowledgment
due, wherein defendant avoided service of legal notice and the
postal authorities have delivered intimation on 4.6.2009 and
5.6.2009. Ultimately, the notice was returned by the postal
authorities with remarks "door locked " dated 15.6.2009.
Since defendant and plaintiffs are Class-I legal heir of their late
parents under the provision of Hindu Succession Act, both of
whom have expired leaving behind the schedule "A" and
schedule "B" properties and plaintiffs are entitled 1/4th share
in suit schedule properties together with rental income from
the date of death of their mother on 17.1.2009. However,
defendant, who is in possession of schedule property is
denying to part with legitimate share of plaintiffs. Hence,
plaintiffs alleging cause of action in para No.14 of the plaint
have filed this suit for partition and separate possession and
for other reliefs.
3. The defendant in response to suit summons issued
to him appeared and filed written statement denying the case
of the plaintiffs and also contended that the suit filed by the
plaintiffs is not maintainable either in law or on facts and the
suit filed with malafide intention, wherein defendant admits the
7 O.S.No.5562 of 2009
averments made in para No.3 of the plaint regarding
acquisition of schedule "A" property by his grandfather and the
same was partitioned under partition deed dated 8.6.1962 is
admitted subject to proof and defendant admitted the date of
death of his father and also death of his mother and he further
admits that katha of the schedule property was transferred
in the name of his mother and she was in lawful possession
and enjoyment of suit schedule "A" property and defendant
has denied that plaintiffs are the successors to the schedule
"A" property and he contended that plaintiffs are born prior to
1956 and they were given in marriage prior to 1989 and father
of the plaintiffs and defendant died several years after
solemnization of marriage of plaintiffs and hence, plaintiffs
became the members of their matrimonial houses and
defendant denied the claim of plaintiff in schedule "B" property
and contended further that his mother did not have any gold
articles or ornaments in as much as schedule "B" properties
mentioned in the plaint and defendant called upon the
plaintiffs to prove existence of schedule "B" properties at the
hands of his late mother Smt. C.V.Sathya Bhama . Hence,
defendant has denied the existence of schedule "B" properties
and he further denied the custody of schedule "B" properties
and defendant contended that he has maintained his sickly
mother Smt. C.V.Sathya Bhama, after the death of his father
and it is his pious obligation and he has also maintained the
8 O.S.No.5562 of 2009
property left behind his father and the income earned there
from was hardly sufficient to maintain the building as well as
his mother and other incidental expenses and therefore,,
there was no extra income that could be retained by the
defendant. Defendant also denied that plaintiffs are Class-I
heirs of late C.K.Vasudeva Murthy on the date of institution
of the suit and also denied plaintiffs joint possession nor
constructive possession over the schedule property and
defendant also denied the plaint allegations that plaintiffs have
requested him to effect partition on 19.4.2009 and defendant
further contended that there is no cause of action alleged in the
plaint to file the suit and defendant further contended that as
the plaintiffs are born to prior to 1956 and their marriages
have been performed prior to 1989. Hence, plaintiffs are
entitled to seek any share in the suit schedule properties and
hence, defendant contended that the plaintiffs claim of court
fee paid under Sec.35(2) of Karnataka Court Fee and Suit
Valuation Act is not proper, wherein plaintiffs valuation of
the suit and payment of court fee is insufficient and suit is
liable to be dismissed on that counts. Defendant also
contended that after death of C.K.Vasudeva Murthy, entire
schedule "A" property vested with his mother Smt.C.V.Sathya
Bhama and the defendant herein in equal share and
whatever right and interest acquired by the widow of late
C.K.Vasudeva Murthy by name Smt.C.V.Sathya Bhama,
9 O.S.No.5562 of 2009
wherein she has bequeathed the same in favour of defendant
under a registered "Will" executed on 22.12.2008 and the
said "Will executed by defendant's mother has already came
into effect and hence, defendant is in exclusive possession and
enjoyment of the schedule "A" property and exercising his right
of ownership and hence, defendant denied the claim of
plaintiffs for partition and separate possession and defendant
contended that the rental income received by lease of dwelling
house/tenements were utilized for the maintenance of his
mother and also he has spent that amount for maintenance of
the building and towards medical expenses and virtually the
income derived from the house property is hardly sufficient to
meet the maintenance and constant repairs required for the
said building. Hence, defendant on this defense resisted the
suit filed by the plaintiffs and pray for dismissal of the suit in
the interest of justice and equity.
4. Based upon these pleadings of the parties, the
following issues are framed on 3.12.2010 :-
1. Whether the plaintiffs prove that the suit
schedule properties are their joint family
properties and they are entitled for partition
and separate possession of their shares in
the suit property as claimed?
2. Whether the defendant proves that the A
schedule property of this suit acquired by
10 O.S.No.5562 of 2009
him through a registered will deed executed
by his mother Smt. C.V.Sathyabhama on
22.12.2008? If so, whether the defendant
proves that his mother late
Smt. C.V.Sathyabhama has got testamentary
capacity and was in sound state of mind and
removes all suspicious circumstances of
execution of will?
3. Whether the defendant proves that the B
schedule properties are not in existence?
4. What are the shares, the parties are entitled
for?
5. What decree or order?
5. In order to prove the above issues, the 2nd plaintiff is
examined as P.W.1 and got marked documents Ex.P.1 to P.8
and with this evidence, plaintiff side evidence is closed and
thereafter, defendant is examined as D.W.1 and got marked
Ex.D.1 and Ex.D.2 in his oral evidence and with this evidence,
defendant side evidence is closed and thereafter the suit is
posted for arguments.
6. The counsel appearing for the plaintiff filed his written
arguments filed on 8.6.2015 and also counsel for plaintiff
subsequently filed further written arguments on 16.9.2015 and
I have heard the arguments of the counsel for defendant,
11 O.S.No.5562 of 2009
wherein counsel for defendant submitted the following three
decisions as cited in the memo in support of his arguments.
The citations relied by the counsel for the defendant as
under:-
1. 2015 AIR SCW 6160 (Prakash Vs. Phulavati)
2. 2008(4) KCCR 2333 (DB) ( M.Prithviraj and
others Vs. Smt. Leelamma N and others)
3. AIR 2006 SC 3332( Anar Devi and others Vs.
Parmeshwari Devi and others)
I have perused the written arguments submitted by the
plaintiff's counsel and also considered the arguments of
counsel for defendant and perused the citations filed herein.
7. On appreciation of the oral and documentary
evidence of P.W.1 and that of D.W.1 and considering the
documentary evidence marked in the suit as per Ex.P.1 to
P.8, Ex.D.1 and Ex.D.2, I answer the above issues are as
follows:-
Issue No.1 : In the affirmative;
Issue No.2: In the negative
Issue No.3: In the affirmative;
Issue No.4: The plaintiffs are entitled for
their legitimate share in suit
schedule "A" property only.
12 O.S.No.5562 of 2009
Issue No.5: The suit filed by the plaintiffs
deserves to be decreed with
costs for the following:-
REASONS
8. Issue No.1 and 2: These two issues are main issues
to be considered in this case, wherein plaintiffs have claimed
partition relief in respect of schedule "A" property i.e., house
property as described in the plaint schedule and plaintiffs are
claiming to be the daughters of late C.K.Vasudeva Murthy
and his wife Smt. C.V.Sathya Bhama and plaintiffs have
alleged specifically that the schedule "A" property is joint
family property succeeded by their father late C.K.Vasudeva
Murthy and after his demise, his wife succeeded to it and
hence, plaintiffs are claiming that schedule "A" and "B"
properties are joint family properties and on the contrary,
defendant denied the claim of plaintiffs on three counts
contending that the plaintiffs were born prior to 1956 and they
have been married in the year 1989 and there is bequeath
made by his late mother Smt. C.V.Sathya Bhama in his
favour by execution of registered "Will" dated 22.12.2008.
Hence, defendant denied the claim of plaintiffs prayed for
partition relief.
13 O.S.No.5562 of 2009
9. In order to prove the case of the plaintiffs, wherein 2nd
plaintiff is examined in this case for herself and on behalf of
plaintiff No.1 and 3, who are her sisters and plaintiff No.2 has
filed her affidavit evidence filed in lieu of examination-in-chief
and on perusal of her evidence, filed in the form of affidavit,
wherein P.W.1 has reiterated the pleadings filed by them in this
affidavit evidence and as such, it is replica of plaint and P.W.1
further got examined herself and got marked Ex.P.1 to P.8
and the said documents are marked through her are as
under:-
Ex.P.1 Family Genealogical tree of plaintiffs
and defendant.
Ex.P.2: Certified copy of partition deed
P.2(a) Typed copy of Ex.P.2 `
Ex.P.3: Encumbrance certificate
Ex.P.4: Death certificate of father of plaintiffs
and defendant
Ex.P.5: Katha extract of suit schedule property
Ex.P.6: Death certificate of mother of plaintiffs
and defendant
Ex.P.7: Copy of the legal notice
Ex.P.8: Returned unserved RPAD envelope
Hence, P.W.1 relying upon her evidence and coupled
with Ex.P.1 to P.8 as prayed for grant of relief of partition in
14 O.S.No.5562 of 2009
respect of schedule "A" and "B" properties and also in the
rental income received by the defendant.
10. Counsel for defendant cross examined P.W.1 on
15.12.2011, wherein she admits that schedule "A" property
originally belongs to her grandfather and it is came through
her grandfather and she admits that her father died in the year
1987 and she admits that her father had performed marriage
of his three daughters and had performed their marriages by
following customary procedure and also by paying
Varopachara and P.W.1 admits that she was born on 2.5.1955
and 1st plaintiff is elder sister to her and she is two years
higher than her and 3rd plaintiff is born on 1958, she denied
that the 3rd plaintiff born prior to 1956 and P.W.1 denied that
defendant after demolition of old house has constructed new
house in schedule "A" property and P.W.1 admits that her
brother had constructed one room with one hall over the old
house and she admits that the defendant has renovated the
ground floor house property and P.W.1 admits that her
brother is an Engineer in B.E (Civil) and he is working in
Private Company and P.W.1 admits that her brother's wife is
school teacher and she admits that the defendant in the
income received by him has renovated the building and also
constructed one room and one hall over the dwelling house and
P.W.1 admits that plaintiffs after their marriage, they are
15 O.S.No.5562 of 2009
residing in their respective matrimonial houses and she
admits that the schedule "A" property is exclusively in the
possession of defendant and P.W.1 admits that she has no
documents to show schedule "B" properties are in existence
and she denied that schedule "B" properties are in existence
and she denied that schedule "B" properties Item No.1 are not
in possession of defendant and she admits that her mother was
suffering from diabetic disease since 7-8 years prior to her
death and except this sugar illness, she was not having any
other diseases and she was residing with defendant till her
death and she denied that the medical expenses of her mother
was attended by defendant only and she admits that she has
got documentary evidence to show that she has spent medical
expenses for her mother and P.W.1 denied that defendant was
spending amount received from rent towards medical
expenses of his mother and P.W.1 admits that prior to 3-4
years earlier to death of her mother, her relations with
defendant was strained and she did not visiting the house of
defendant for 4 years prior to her death.
11. P.W.1 further cross-examined on 20.1.2012,
wherein she admits that her father died on 25.11.1987 and
prior to death of her father, the marriage of plaintiff No.1 to 3
were already performed and she stated that her mother was
signing in English language on document and she admits that
16 O.S.No.5562 of 2009
after demise of her father her mother and defendant are
residing in the dwelling house as they are joint owners and she
denied that her mother had bequeathed her share in favour of
defendant by execution of "Will" and P.W.1 voluntarily stated
that her mother did not execute any "Will" and she admits that
plaintiff No.1 to 3 were born earlier to 1956 and she denied
that they have no share in the schedule property and falsely
claiming share in the schedule property and P.W.1 denied that
though there is "Will executed by her mother, but she is falsely
denying the alleged "Will".
12. The defendant has given rebuttal evidence in this
case as he has examined as D.W.1 through affidavit evidence
filed as examination-in-chief and on perusal of his evidence,
wherein D.W.1 deposed by reiterating the defense file din this
suit in the form of written statement. Hence, D.W.1 in his
rebuttal evidence denied the claim of plaintiffs for partition
relief and D.W.1 got marked Ex.D.1 and Ex.D.2, they are katha
certificate issued by BBMP dated 21.1.1992 and death
certificate issued on 2.2.2009 which are marked at Ex.D.1 and
Ex.D.2 and he has produced original "Will" said to have been
executed by his late mother on 22.12.20098 and it is not
marked through D.W.1. Hence, D.W.1 pray for dismissal of the
suit.
17 O.S.No.5562 of 2009
13. The counsel appearing for the plaintiff cross
examined to D.W.1 on 24.7.2015, wherein he admits that after
his completion of his contention, he had joined to service, at
that time, he was aged 21 years and D.W.1 admits that he is
having qualification of Engineering(BE) in Civil and he admits
that marriage of plaintiffs 1 to 3 was performed during life
time of his father, wherein suit schedule "A" property belongs
to his grandfather and his brother and after partition amongst
the two brothers, wherein his father became owner of schedule
"A" property and after demise of his father, he started to look
after the affairs of joint family and D.W.1 admits that his
father did not left any "Will" and D.W.1 admits that after
demise of his father in respect of suit schedule "A" property ,
there was no partition effected between the legal heirs of his
father and according to witness, portion of schedule "A"
property and it is comprising of three residential houses and
previously, they have let out one portion of schedule property
to a tenant and according to witness, in another portion of
schedule "A" property, it cannot be leased out as there is
problem of water supply and at present, there is only one
tenant occupying the schedule "A" property and the said
tenant is not paying rent and witness volunteers that tenant
had obtained the premises on lease as he has paid lump-sum
amount of Rs.4,00,000/- as security deposit amount and
schedule "A" property comprising of three residential portions
18 O.S.No.5562 of 2009
measuring 2 portions equally 400 sq.ft. and one portion
approximately 300 square feet and in respect of leased portion
of schedule "A" property, the said lease deed is a registered
document and he cannot produce the said document in this
suit and the said tenant is occupying the portion of schedule
"A" property since two years.
14. D.W.1 admits further that he has purchased
residential site measuring 40'X60' in the year 1995 at
Konankunte and according to D.W.1, he has already sold site
purchased by him in the year 2004. In order to acquire open
site at Konanakuante, he has invested his own income derived
from his private service and in order to construct over the
said site, he had borrowed loan from the private creditors and
he has to pay loan balance to the private creditors even still
now and D.W.1 stated that during life time of his mother, he
used to pay amount towards outstanding loan obtained in
respect of house property and D.W.1 stated that his mother
had not financially helped him in construction of house and
D.W.1 denied that there are gold ornaments of his mother at
the time of her death including the ornaments shown in
schedule "B" properties consisting of silver and gold articles
and D.W.1 specifically denied that he is in possession and
custody of schedule "B" property and on the contrary, D.W.1
stated that the items of schedule "B" property of the suit have
19 O.S.No.5562 of 2009
been given to his sisters and schedule "B" property were
distributed amongst his sisters after one week thereafter of his
mother's death and as such, there are no witnesses for the
distribution of these ornaments as shown in schedule "B"
property to the plaintiffs/sisters of D.W.1.
15. The learned counsel appearing for the plaintiff filed
written arguments in the above suit on two occasions, 1st
written arguments was filed on 8.6.2015 and subsequently
further written arguments were filed on 16.9.2015 and on
appreciation of the oral and documentary evidence, wherein
there is no dispute in respect of relationship of the parties,
wherein plaintiffs and defendant are the legal heirs of deceased
Sri.C.K.Vasudeva Murthy and his wife C.V.Sathya Bhama
and though defendant in this case has relied upon
testamentary deed said to have been executed by his late
mother C.V.Sathya Bhama in his favour bequeathing her
share in the suit schedule property by execution of registered
"Will" dated 22.12.2008 and has produced the registered "Will",
katha certificate and death certificate, wherein the mother of
plaintiffs and defendant namely C.V.Sathya Bhama died on
17.1.2009 and as per death extract produced and marked at
Ex.P.4, the father of plaintiffs and defendant namely
C.K.Vasudeva Murthy died on 25.11.1987 and as per partition
deed, this property was fallen to the share of deceased
20 O.S.No.5562 of 2009
C.K.Vasudeva Murthy and plaintiff No.1 to 3 and defendant
are the only legal heirs left behind by C.K.Vasudeva Murthy
and his wife C.V.Sathya Bhama and as per the registered
partition deed dated 8.6.1962, suit schedule property fallen to
the share of h father of plaintiffs and defendant and though
defendant has produced the alleged "Will" left by his mother
dated 22.12.2008. But defendant has not examined any
attesting witnesses on the alleged "Will" in order to prove the
bequeath of the share of his mother under the said "Will" and
as such, the "Will" produced by the defendant is remained
without any proof and in order to prove the alleged "Will" as
per the requirement of Sec.63(c) of Indian Succession Act 1925
and read with Sec.68 of Indian Evidence Act, wherein atleast
one of the attesting witness should be examined in order to
prove the testamentary deed i.e., "Will Deed" relied by the
defendant, but in this case though plaintiff has produced this
"Will Deed" along with documents list filed on 20.6.2014, but
his "Will" is not proved in accordance with law and defendant
has not examined any attesting witnesses on this registered
"Will" deed and mere production of registered "Will" and
admittedly the suit schedule property is joint family property
succeeded by the plaintiffs and defendant after demise of their
parents and Ex.P.1 produced by the plaintiffs is consisting of
genealogical tree of the family, wherein plaintiffs have
produced Ex.P.1, which is required for the purpose of the suit
21 O.S.No.5562 of 2009
as issued by Revenue Inspector of Revenue Department and
Ex.P.2 is the certified copy of registered partition deed dated
8.6.1962 showing division of property fallen to the share of
deceased C.K.Vasudeva Murthy and Ex.P.3 is the
encumbrance certificate to show that the division of property
held according to Ex.P.2 has been given effect in the
concerned revenue records and also records of Sub Registrar
on 11.6.1962 and partition deed came to be effected in this
encumbrance certificate. Hence, the plaintiffs have proved that
they are the legal heirs and Class-I heirs of deceased father
C.K.Vasudeva Murthy, who died on 25.11.1987 and plaintiffs
also proved that the schedule "A" property , which was
originally belongs to his father C.K.Vasudeva Murthy, who had
obtained schedule "A" property by virtue of partition dated
8.6.1962 and late C.K.Vasudeva Murthy was having actual
possession of this schedule "A" property till his demise on
25.11.1987 and after his death, his wife C.V.Sathya Bhama
succeeded to the schedule "A" property along with plaintiff
No.1 to 3, who are married daughters and defendant is the son
of late C.K.Vasudeva Murthy . Hence, there is no dispute as to
relationship between the parties and defendant's contention
in respect of alleged "Will" dated 22.12.2008 is not proved and
established in this case and after considering the evidence of
D.W.1, wherein he has admitted that the schedule "A" property
is consisting of two tenements and in one portion, defendant is
22 O.S.No.5562 of 2009
residing and schedule "A" property portion, it was leased in
favour of tenants and D.W.1 admits that he is receiving rent
from the tenants at the rate of Rs.6,000/- per month and
D.W.1 also stated that he has received lump-sum amount of
Rs.4,00,000/- from the said tenant and two portions in
schedule "A" property measuring 400 square feet respective
and one portion approximately 300 square feet. But D.W.1 ha
snot produced any document of lease executed by him in
favour of tenant and on the contrary, defendant/D.W.1 is
receiving rental income from the lease of portion of suit
schedule "A" property, but considering the evidence placed on
record, except the testimony of P.W.1 in respect of suit
schedule "B" property, wherein plaintiffs have not produced
any iota of evidence to show that the defendant is having
custody of gold and silver ornaments left by deceased mother
C.V.Sathya Bhama, after she died on 17.1.2009 and there is no
iota of evidence placed by the plaintiffs in this suit to show that
the defendant is having custody of schedule "B" property
shown in the plaint schedule and it is the case of the plaintiff
that their mother deceased C.V.Sathya Bhama had worn gold
ornaments and the alleged ornaments are worn on person of
deceased mother and after her death, they were in the custody
of defendant. But in order to prove this contention, plaintiffs
have not produced any iota of evidence and also not examined
any independent witness to prove their contention in respect
23 O.S.No.5562 of 2009
of suit schedule "B" property. On the contrary, D.W.1 has
denied the custody of schedule "B' articles in his custody and
on the contrary, he has stated that after the demise of his
mother, the ornaments on person of deceased mother were
given to his sisters. Hence, considering the evidence of both
sides, wherein the plaintiffs and defendant are able to
establish that there exists schedule "A" property only, which is
not partitioned amongst plaintiffs and defendant by metes and
bounds after the death of C.K.Vasudeva Murthy and also after
the death of C.V.Sathya Bhama on 17.1.2009 . Hence, the
plaintiffs have proved that the schedule "A" property is
ancestral property in the hands of plaintiff No.1 to 3 and
defendant and accordingly, plaintiffs are entitled for legitimate
share in the suit schedule "A" property and though defendant
has raised contention by filing I.A.No.7 under Sec. 11(2) and (3)
of Karnataka Court Fee and Suit Valuation Act and this court
has already rejected I.A.No.7 holding that plaintiffs are in joint
possession and have valued the suit under Sec. 35(2) of
Karnataka Court Fee and Suit Valuation Act and have paid
the maximum court fee of Rs.200/- by order dated 13.6.2014
and it is also fact that after demise of C.K.Vasudeva Murthy ,
the katha has been changed in the name of C.V.Sathya
Bhama in the BBMP records and defendant has produced two
documents marked in his evidence i.e., katha certificate issued
24 O.S.No.5562 of 2009
by BBMP at Ex.D.1 dated 21.9.1992 and death certificate
marked at Ex.D.2.
16. The counsel for the plaintiff by filing written
arguments in this case has prayed for grant of share to
plaintiffs of 1/4th in the suit schedule "A" and "B" properties
of deceased C.K.Vasudeva Murthy and C.V.Sathya Bhama by
decreeing the suit as prayed for by the plaintiff No.1 to 3 and
he also submitted that defendant failed to prove his defense in
denying the shares of the plaintiffs in the schedule property .
17. On the contrary, the counsel appearing for the
defendant in his arguments contended that the plaintiff No.1
to 3 though they are married daughters of late C.K.Vasudeva
Murthy and his wife C.V.Sathya Bhama and though they are
Class-I heirs. But they are not entitled for 1/4th share, wherein
the counsel for the defendant contended that in view of the
recent decision of Hon'ble Apex Court reported in 2015 AIR
SCW 6160 and also decision of our own High Court reported
in 2009(4) KCCR 2333 (D.B), wherein the amended Succession
Act 39/2005 with effect from 9.9.2005 is not applicable to the
facts of the case, wherein as per the Hon'ble Apex Court
decision in the case of Prakash Vs. Phulavati , wherein the
Apex Court declared the ratio in respect of application of
amended Hindu Succession Act , Sec.6 in case of marriage
25 O.S.No.5562 of 2009
daughters, who are coparceners of the joint family, wherein
the amended Act of 2005 of Hindu Succession Act is not
retrospective rather it is prospective and considering the ratio
laid down in these three decisions relied by the counsel for
defendant, wherein the defendant failed to prove the alleged
"Will" left by his mother dated 22.2.2008 and hence, there is
no testamentary succession left by deceased parents of the
plaintiffs and defendant and as such, the schedule "A"
property, which is available for partition is joint family
ancestral property in the hands of the parties to the suit,
wherein the plaintiffs are married daughters and coparceners
of this ancestral property/coparcener property, wherein the
plaintiffs father C.K.Vasudeva Murthy died on 25.11.1987 and
he was not alive as on the date of suit or as on the date of
coming into force of amended Hindu Succession Act 1956 Act
of 39/2005 dated 9.9.2005 and hence, the claim of plaintiff
that they are entitled for equal share and that of son of a
coparcener property is not admissible in the present suit,
wherein this court has to apply the ratio in calculation of
shares of the plaintiffs relying upon this Apex Court decision
in the case of Prakash Vs. Phulavati and also relying upon
the division bench ruling of Karnataka High Court reported in
the case of M.Prithviraj and others Vs. Smt. Leelamma.N and
others , wherein in this decision, it is held that date of death of
propositous of the coparcener property of the joint family for
26 O.S.No.5562 of 2009
the purpose of partition, wherein succession opens to claim
partition on the dater of death of propositous of the family and
court has to presume and to hold that as on the preceding day
of death of propositous the notional partition was to be and
after demise of father, mother had succeeded to the estate of
half share of her deceased husband and after demise of mother
C.V.Sathya Bhama , her undivided share has to be devolved
upon all the legal heirs as per Sec.6 and 8 of Hindu
Succession Act and as such, plaintiffs are entitled for the
legitimate share in the suit schedule property under the
concept of notional partition as succession opens for partition
soon after demise of propositous of C.K.Vasudeva Murthy died
on 25.11.1987. Hence, I hold that the plaintiffs are entitled for
1/6th share in the suit schedule "A" property only and
plaintiffs failed to prove existence of schedule "B" property for
partition as on the date of suit and as such, the claim of
partition as prayed by the plaintiffs in respect of suit schedule
"B" property deserves to be rejected and plaintiffs have prayed
for direction to the defendant to furnish accounts in respect
of rent received by him in respect of suit schedule "A"
property and to award 1/4th share and D.W.1 admits that he
has received lump-sum amount of Rs.4,00,000/- from the
tenant as security deposit amount and defendant though
contended that he has spent amount of rent towards medical
expenses of his mother, but D.W.1 except producing Ex.P.1
27 O.S.No.5562 of 2009
and P.2 has not produced any scrap of documentary proof.
The contention of D.W.1 that he has spent rent amount for
maintenance of the building and for medical expenses cannot
be believed and on the contrary, D.W.1 leased the premises to
tenants and as per his admission, one of the tenant was
paying rent at Rs.6,000/- per month and hence, the plaintiffs
in their written arguments filed in this case, prayed for their
share in the accumulated rent amount of Rs.13,14,000/- from
the date of death of their mother from 17.1.2009. As on
8.6.2015, they have calculated this amount of rent to the tune
of Rs.13,14,000/-, but plaintiffs have not produced any
calculation sheet or memo of calculation. However, it is
proved fact on record that the defendant had received rental
income by leasing portion of suit schedule property and
receiving rental income and as such, defendant is liable to
furnish true accounts in respect of rental income and in
respect of plaintiffs share in the rental income will have to be
enquired in FDP proceedings and with these observations, I
hold that the plaintiffs are entitled for their legitimate share in
the rental income received by the defendant from the
respective tenants by leasing the portion of the schedule "A"
property. Hence, with these observations, I hold that the
plaintiffs have proved that suit schedule "A" property is liable
for partition and they are entitled for obtaining their
legitimate share separated from the defendant, but defendant
28 O.S.No.5562 of 2009
failed to prove his contention in respect of alleged "Will" left
by his mother C.V.Sathya Bhama dated 22.12.2008 and
accordingly, I answer Issue No.1 in affirmative and Issue No.2
in negative.
18. Issue No.3: In view of my discussions and
appreciation of evidence of both sides, wherein the defendant
contention deserves to be upheld to hold that there are no "B"
schedule properties available for partition in this suit and
hence, plaintiffs have failed to establish the existence of
schedule "B" properties liable for partition and accordingly,
Issue No.3 is answered in affirmative.
19. Issue No.4: Though plaintiffs have prayed for
awarding 1/4th share in this suit, but in view of change of law,
and in view of ruling and ratio laid down by the Apex Court
and the decision relied by the defendant's counsel, wherein
plaintiffs, who are married daughters of late propositous of late
C.K.Vasudeva Murthy and his wife C.V.Sathya Bhama and
plaintiffs are entitled for their legitimate share on the basis of
the principles of notional partition wherein principles of
decisions relied by the defendant, wherein after drawing of
notional partition, plaintiffs shall be entitled for their claim of
partition in their father's share as the date of death of father
as on 25.11.1987 and plaintiffs are directed to file memo of
29 O.S.No.5562 of 2009
calculation of their share as per the notional partition and in
view of observation made by this court. Hence, with these
observations, I hold that the plaintiffs are entitled for obtaining
their legitimate share in suit schedule "A" property and also
they are entitled to obtain their legitimate share in the rental
income received by the defendant in respect of suit schedule
"A" property. The relevant genealogy as admitted by the parties
to the suit is extracted below and also entitlement of shares as
per the Notional partition as amended in Hindu Succession
Act of 13/2005 is not applicable to the facts of the case.
Hence, the following calculation of share of the plaintiffs and
defendant are shown including genealogy of the family.
Accordingly, I answer Issue No.4 in affirmative.
Family Genealogy
C.N.Krishnamurthy Rao (died)
K.Vasudeva Murthy(father) half share (died on25.11.1987)
Smt. C.V.Sathya Bhama ( wife of C.K.V.Died on 17.1.2009)
C.V.Mohini C.V.Vasantha C.V.Uma Sri.C.V.Guruprasad
(Plaintiff No.1) (Plaintiff No.2) (Plaintiff No.3) (Younger brother)
(Daughter) (daughter) (daughter) (son)
Notional Partition:
Father: C.K.Vasudeva Murthy 1/2 share His son 1/2
share
30 O.S.No.5562 of 2009
After death of father, his 1/2 share devolved upon his LRs
( 5 members) 1/10 share each
After death of mother i.e., wife of C.K.Vasudeva Murthy her
1/10 share has to divided amongst her children ( 3 + 1)
(plaintiffs ( 3 daughters) and defendant (son)
1/40 + 1/40 + 1/40 + 1/40 ( 3 daughters and son)
3 daughters share each 1/8th share son-defendant
1/10 + 1/40 = 5/40 = 1/8th share /2 + 1/10 + 1/40 = 20 +4+1 = 25
40 40
25/40 = 5/8
Each plaintiff gets 1/8th share
Son/defendant will get 5/8th share
20. Issue No.5 In view of my findings on Issue No.1 to 4
the suit filed by the plaintiffs deserves to be decreed partly
only in respect of suit schedule "A" property and rental
income prayed by them, but plaintiffs claim of partition in
respect of suit schedule "B" property deserves to be rejected.
Hence, I proceed to pass the following:-
ORDER
The suit filed by the plaintiff No.1 to 3 against defendant is decreed partly with proportionate costs against defendant only in respect of suit schedule "A" property. Plaintiffs are entitled for their legitimate share of 1/8th share in schedule "A" property by metes and bounds and plaintiffs are entitled for their legitimate share in the rental income from 31 O.S.No.5562 of 2009 17.1.2009 till 8.6.2015 received by the defendant in respect of lease of portion of schedule property and plaintiffs claim of partition in respect of suit schedule "B" property is rejected as schedule "B" property is not proved to be in existence as on the date of suit.
Draw Preliminary decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 29th day of February, 2016.} (S.V.Kulkarni) XI Addl.City Civil Judge Bangalore city.
ANNEXURE List of witnesses examined for plaintiff:-
P.W.1 Smt. C.V.Vasantha List of documents exhibited for plaintiff:-
Ex.P.1 Family Genealogical tree of plaintiffs and defendant.
Ex.P.2: Certified copy of partition deed
P.2(a) Typed copy of Ex.P.2 `
32 O.S.No.5562 of 2009
Ex.P.3: Encumbrance certificate
Ex.P.4: Death certificate of plaintiffs and
defendant
Ex.P.5: Katha extract of suit schedule property
Ex.P.6: Death certificate of mother of plaintiffs
and defendant
Ex.P.7: Copy of the legal notice
Ex.P.8: Returned unserved ROAD envelope
List of witnesses examined for defendant:
D.W.1 Sri. C.V.Guruprasad List of documents exhibited for defendant:-
Ex.D.1: Katha certificate issued by B.M.P. dated 21.1.1992 Ex.D.2: Death certificate of mother of plaintiffs and defendant dated 2.2.2009 (S.V.Kulkarni) XI Addl.City Civil Judge Bangalore city.33 O.S.No.5562 of 2009 34 O.S.No.5562 of 2009 35 O.S.No.5562 of 2009