Bangalore District Court
Prabhavathi S vs Ramachandran on 4 November, 2024
OS 6744/22-Judgment
KABC010279762022
IN THE COURT OF THE XVI ADDL.CITY CIVIL AND SESSIONS
JUDGE (CCH 12), BENGALURU
DATED: 4th DAY OF NOVEMBER 2024
PRESENT
SMT. JYOTHSNA D., LL.B., LL.M., D.F.A.,
XVI ADDL.CITY CIVIL AND SESSIONS JUDGE,(CCH12) BENGALURU
ORIGINAL SUIT No.6744/2022
PLAINTIFF SMT. S. PRABHAVATHI,
D/o. Sreenivasan,
W/o. Shri M. Satish Kumar,
Aged about 71 years,
No.3132, Green Gardens,
Phase 2, 3rd Main Road,
Banjara Layout, Horamavu,
Bangalore 560 043.
Represented by Smt/Sri A.S., Advocate
-- vs --
DEFENDANTS 1) SRI RAMACHANDRAN,
S/o. Sreenivasan,
Aged about 75 years,
R/at No.16, Thandavarayan Street,
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OS 6744/22-Judgment
Kolaikarnpet,
Rayapettah,
Chennai,
Pincode 600 014.
2) S. SATHYABHAMA,
D/o. G. Sreenivasan,
W/o. Mrs. Sathya Bhama Dhalayan,
Aged about 73 years,
36, Manchester Drive,
Kelvindale,
Glasgow, G12 Ong,
South Lanarkshire,
Scotland.
3) DELETED AS PER ORDER DATED 19.09.2023
4) UCO BANK,
Indiranagar Branch,
No.532, 16th Cross,
17th C Cross Road,
Binnamangala,
Indiranagar,
Bengaluru 560 038.
Represented by its
Authorised Officer/Branch Manager.
5) BANK OF BARODA,
Brigade Road,
Bengaluru 560 001.
Represented by Authorised Officer/Manager/Senior
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OS 6744/22-Judgment
Manager.
Also at Head Office,
Bank of Baroda,
Mandvi, Vadodara,
Gujarath 390 006.
6) SREE THYAGARAJA CO-OPERATIVE BANK LIMITED,
(Regd. No.DYR 340/63-64),
RBI Licence No.UBD KA 1066 P/93-94,
No.5, 9th Cross, N.R.Colony,
Bengaluru 560 019,
Represented by its
Authorised Officer/General Manager.
7) CUMMINS INDIA LIMITED,
Incorporated under the Companies Act, 1956
Registered Office at Kothrud Pune 411 038.
Maharastra.
Represented by its Chairman & Managing Director/
Director/Secretary/Authorised Officer.
8) THE TATA POWER COMPANY LIMITED,
Registered Office at Bombay House 24,
Homi Mody Street, Mumbai 400 001.
Represented by
Chairman/Director/Authorised Officere.
Defendant Nos.1, 5, 7 and 8 - Exparte
Defendant No.2 by Smt/Sri G.R.D., Advocate
Defendant No.3 by Smt/Sri C.S.N., Advocate
Defendant No.4 by Smt/Sri K.R.P., Advocate
Defendant No.6 by Smt/Sri S.H.K., Advocate
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OS 6744/22-Judgment
Date of Institution of suit 18.10.2022
Nature of suit SUIT FOR PARTITION
Date of commencement of evidence 07.02.2024
Date of Judgment 04.11.2024
Duration Year/s Month/s Day/s
02 00 16
(SMT. JYOTHSNA D.,)
XVI ADDL.CITY CIVIL AND
SESSIONS JUDGE, BENGALURU
(CCH 12)
JUDGMENT
This suit is filed by the plaintiff against the defendants for declaration that the plaintiff is entitled to 1/3rd share in the suit schedule properties, partitioning the suit schedule properties and put the plaintiff and defendant Nos.1 and 2 in separate possession, direct the defendants 4 to 8 Banks to allot the share to the plaintiff and defendant No.1 and 2 equally, in their respective custody by declaring the plaintiff and defendant Nos.1 and 2 as the sole surviving legal heirs of late S. Ramakrishnan and to grant 4 OS 6744/22-Judgment such other and further reliefs as this court may deems fit to grant in the facts and circumstance of the case in the interest of justice.
2. In brief, the case of the plaintiff is as follows :- Late G. Srinivasan is the propositus who is the father of deceased S. Ramakrishnan, plaintiff and defendant No.1 and 2 and Smt. Saroja is the mother. They begot the deceased S. Ramakrishnan, S. Sathyabhama (defendant No.2), Smt. Prabhavathi (plaintiff) and Sri S. Ramachandran- Defendant No.1. Late S. Ramakrishnan married Smt. Saraswathi R., and they begot one son namely Akash Ramakrishnan. The family tree of the plaintiff's family is shown in para 4 of the plaint.
3. Propositus Srinivasan expired long back on 2.6.1972 leaving behind his wife Smt. Saroja and his sons and daughters as stated above. Smt. Saroja expired on 9.9.2003. Wife of Sri S. Ramakrishnan i.e., Smt. Saraswathi expired on 28.04.2021 leaving behind his husband S. Ramakrishnan and son Akash. Later S. Ramakrishnan expired on 21.1.2022 leaving behind his son Akash. Unfortunately, their son Akash has also expired on 4.7.2022.
4. Plaintiff's brother S. Ramakrishnan acquired several movable and immovable properties and since, he and his family members are no more, plaintiff and defendants No.1 and 2 being 5 OS 6744/22-Judgment the class 2 heirs, have succeeded to his estate and they are entitled to 1/3rd share equal share in all properties acquired by him.
5. Plaintiff's mother Smt. S. Saroja acquired property bearing No.2472, ie., Item No.1 of schedule A property, vide sale deed dated 27.09.1993. Item No. 1 came to be bequeathed by Smt. Saroja to her son S. Ramakrishnan by executing a Will dated 25.11.2000, subsequent to which, S. Ramakrishnan acquired the property and katha and uttara came to be mutated in his name.
6. The said Ramakrishnan and his family members i.e., his wife and son secured loan of Rs.45,79,650/- by mortgaging Item No.1 of the Schedule A property in favour of defendant No.3 Bank, which sanctioned a loan in terms of Sanction Letter dated 18.01.2021. Further, Item No.1 of A schedule property has also been let out by S. Ramakrishnan to several tenants who are now in occupation and the tenants have attorned their tenancy in favour of plaintiff.
7. S. Ramakrishnan also acquired a house bearing No.2561, Yelahanka New Town, Bengaluru from KHB vide sale deed dated 24.04.2006 and the same is described in Item No.2 of 6 OS 6744/22-Judgment schedule A property. Pursuant thereto, the katha came to be mutated in his name.
8. Likewise, the said S. Ramakrishnan acquired a house measuring East to West 30 feet and North to South 30 feet along with 8 Sq.Ft. RCC building situated at Lakshmipuram, Uloor, Bengaluru; Site No.11 in No.4/1 and 4/3, Old No.4, Katha No.216 situated at Kowdenahlli Village, KR Puram Hobli, Bengaluru; dry land bearing Sy.No.82/4 situated at Annamalai Nagar, Pudukottai District, Ellupur Taluk, Viralimalai Limits, Melapachakkudi Gram Panchayath, Kumarapatti Village, Tamil Nadu; Plot No.42 and 43, bearing a dry land bearing survey No.82/4 situated at Annamalai Nagar, Puddakottai District, Ellupur Taluk Girimalai Union, Mellappa Chekkudi Gram Panchayat, Tamil Nadu, and a plot bearing No.49 in dry land bearing Survey No.82/4 and 83/2 situated at Annamalai Nagar, Pudukottai District, Tamil Nadu, which are morefully described as Item No.3 to 7 of A schedule property.
9. The said S. Ramakrishnan and his family members were residing along with plaintiff during their life time and after the death of Ramakrishnan and his son, the plaintiff has taken possession of the suit schedule A properties and has been 7 OS 6744/22-Judgment managing the same and is in exclusive possession of all A schedule properties either by herself or tenants, who have attorned their tenancy under the plaintiff. Plaintiff has been exercising the acts of ownership over the suit A schedule property.
10. Further, the said S.Ramakrishnan was holding share of 1680 in Tata Power Company Limited (defendant 8) bearing Share Certificate No.31655 and shares of 600 in Cummins India Ltd., (defendant No.7) with Certificate bearing 8506. Further, he is having shares in Bank of Baroda (defendant No.5) in share Certificate No.347971 for share of 10 and another shares of 100 with certificate No.347972. Further, the said Ramakrishan is having shares of 10 in Sree Thyagaraja Co Operative Bank Limited (defendant No.6) bearing share certificate No.001902019861.
11. Further the said S.Ramakrishnan had also deposited a sum of Rs.4,90,000/- in the joint names of Sri S.Ramakrishnan and his wife Smt. S.Saraswathi in Bank of Baroda (defendant No.5). He also deposied a sum of Rs.1,32,179/- under the Scheme Kuber Yojana Deposit Scheme in UCO Bank (defendant No.4) on 17.10.2019, which carries interest at the rate of 6.80% and all the shares and deposits are more fully described in Schedule B to the plaint.
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OS 6744/22-Judgment
12. All the properties which are mentioned in Schedule A and B of the plaint are the properties acquired by S.Ramakrishnan and his wife who are no more and hence, plaintiff and defendant No.1 and 2 being his class II heirs are entitled to 1/3 rd share in A and B schedule properties. Pursuant to the death of S.Ramakrishnan, his wife and son, the plaintiff demanded the defendants to put her in separate physical possession of her share in A schedule property, for which the defendants have refused to come forward. Hence, left with no alternative, she has filed the present suit.
13. Further, the defendant No.3, from whom late S. Ramakrishnan had obtained a loan over item No.1 of A schedule property, is likely to initiate action to auction the same and in such an event, great hardship will be caused to the plaintiff. Defendant No.3 has in fact received the equated monthly installments from the plaintiff. The defendants 4 to 8 are not recognizing the rights of the plaintiff over B schedule properties and have sought succession certificate and hence, the plaintiff has filed this suit.
14. The cause of action for the suit arose when Smt. Saraswathi R., expired on 28.04.2021, when S.Ramakrishnan expired on 21.01.2022 and Sri Akash expired on 4.7.2022 and also 9 OS 6744/22-Judgment when the plaintiff demanded the defendants for her equal share. The plaintiff has paid proper court fee on the plaint. Hence, prayed to decree the suit.
15. In pursuance of the suit summons, the defendants 2, 3, 4, and 6 appeared through their counsel. Defendant Nos.2 and 4 filed their written statement. Defendant Nos.3 and 6 have not filed their written statement. The defendant Nos.1, 5, 7 and 8 have remained absent and hence, they are placed exparte.
16. In her written statement, the defendant No.2 has admitted the case of the plaintiff in its entirety and while expressing her agreement with the plaintiff in seeking for partition and separate possession of her 1/3rd share, she has also stated that she is also entitled to 1/3rd share over suit A and B schedule properties, by way of counter claim, and prayed the Court to decree the counter claim by allotting 1/3rd share to her.
17. The defendant No.2 has made para-wise traversal of the plaint averments and admitted them in toto.
18. She has contended that she is in joint possession of the suit schedule property and paid court fee of Rs.200/- towards her share in the suit schedule property and accordingly, prayed to decree the suit.
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OS 6744/22-Judgment
19. The defendant No.4-UCO Bank, in its written statement, has contended that the suit against defendant No.4 is not maintainable as the plaintiff has misrepresented the facts before the Court and has not stated the true facts and has suppressed the true facts and has not approached the Court with clean hands. The cause of action shown in the plaint is illusory and the suit is liable to be dismissed for non-joinder of necessary parties.
20. It is contended that Sri S. Ramakrishnan and Smt. Saraswathi had deposited a sum of Rs.4,90,000/- under Kuber Yojana Deposit Scheme on 17.10.2019 for a period of 13 months and the said fixed deposit is still continuing in the joint name of said S. Ramakrishnan and Smt.Saraswathi and the said fixed deposit will be given to the legal heirs of late S. Ramakrishnan and late Saraswathi in terms of the order passed by this Court.
21. It is contended that except the said fact, remaining averments in paragraphs 1 to 23 of the plaint are not within their knowledge and the defendant No.4 is nowhere connected to the dispute between the plaintiff and defendants 1 and 2 and hence, prayed to dismiss the suit with costs.
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OS 6744/22-Judgment
22. Based on the above pleadings, the following Issues have been framed:-
Issue No 1 : Whether the plaintiff proves that her brother deceased Sri S.Ramakrishnan acquired several movable and immovable properties and plaintiff and defendants as being Class II heirs are entitled to succeed to 1/3rd share in all the properties belonging to Sri S. Ramakrishnan, who has no family members as pleaded in the plaint?
Issue No 2 : Whether the plaintiff proves that the plaintiff and defendant No.1 and 2 are entitled to partition and separate possession over the suit schedule properties?
Issue No 3: Whether the plaintiff proves that defendants 4 to 8 are liable to allot the shares of plaintiff and defendant No.1 and 2 equally which are in their custody?
Issue No 4 : Whether defendant No.4 proves that there is no cause of action to the suit?
Issue No 5 : Whether the defendant No.4 proves that suit is bad for non-joinder of necessary parties?
Issue No 6 : Whether the defendant No.2 proves that he is entitled to 1/3rd share in the suit schedule property as prayed in her counter claim?12
OS 6744/22-Judgment Issue No 7: Whether the plaintiff and defendant No.2 are entitled to the relief as sought for?
Issue No 8 : What order or decree?
23. To prove the case plaintiff, herself entered into witness box and got examined herself as PW 1 and Ex.P 1 to Ex.P 37, Ex.P 16(a), Ex.P 17(a), Ex.P 18(a) and Ex.P 33(a and b) are got marked.
On the other hand, though the defendant No.2 and 4 separately filed their written statement but, they neither cross examined PW1 nor lead their evidence. Later on 19-09-2023 the name of defendant No.3 struck off as per order on IA No 2 filed by the plaintiff under Order 1 Rule 10(2) CPC for deletion of defendant No.3 as there is no prayer against defendant No.3. Defendant Nos.1, 5, 7 and 8 are placed exparte on 10-03-2023.
24. Heard, perused materials placed on record and accordingly this court answers above Issues 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 negative, Issue No 5: In the negative, Issue No 6: In the affirmative, 13 OS 6744/22-Judgment Issue No 7: In the affirmative, Issue No 8: As per the final Order;
For the following;
REASONS
25. Issue No 1 to 3 and 6:- These four issues are interconnected to each other hence, to avoid repeated discussions, they are taken up together here under;
Admittedly, this suit is filed by the plaintiff seeking partition by way of seeking declaration of her 1/3rd share in the suit schedule properties and consequently, put the plaintiff and defendant Nos.1 and 2 in separate possession of their respective shares and direction to the defendant Nos.4 to 8-Banks to allot the shares to the plaintiff and defendant Nos.1 and 2 equally, in their respective custody by declaring the plaintiff and defendant Nos.1 and 2 as the sole surviving legal heirs of late Sri.S.Ramakrishnan and for such other reliefs as this Court may deems fit.
26. To prove the above narrated case plaintiff, herself entered into witness box and got examined herself as PW 1 by oath. She has filed sworn affidavit of her examination in chief under which all the plaint averments are reiterated. To substantiate her case, she has produced several documents which 14 OS 6744/22-Judgment are marked through as Exs.P 1 to Ex.P 37, Ex.P 16(a), Ex.P 17(a), Ex.P 18(a) and Ex.P 33(a and b). On the other hand, though defendant No.2 and defendant No.4 separately filed their written statement but, they neither cross examined PW1 nor lead their evidence.
27. In her documentary evidence firstly, this Court perused the documents which are produced to establish the relationship of plaintiff and defendant Nos.1 and 2 with deceased S. Ramakrishnan as this suit is filed for the partition of the properties belonging to Late S Ramakrishnan. Actually, the relationship among them is undisputed fact as per written statement of defendant No.2 but she did not lead her evidence. There is no contra to plaint pleadings in her written statement and she consented for partition of the suit schedule property. But, only on her admission, court cannot conclude the case as plaintiff is having burden to prove her case by her own evidence. According to the plaintiff, the said deceased S. Ramakrishnan was the brother of plaintiff and defendant Nos.1 and 2 and the wife and son of S.Ramakrishnan who were the Class I legal heirs to him also died, hence they are the only legal heir under Class II basis, they are entitled to equal 1/3rd share each over the suit schedule properties. In this regard, she has produced affidavit of family tree 15 OS 6744/22-Judgment dated 15-02-2024 attested before notary public Sri S.T. Thippeswamy on 19-02-2024 which is marked as Ex.P.32. In this document, it is affirmed by the plaintiff about the relationship as the plaintiff, defendant Nos.1 and 2 with deceased S. Ramakrishnan are the children of Late G. Srinivasan and Late Saroja. In the cause title of the plaint, the same is reflected. As per this document, the wife of deceased S. Ramakrishnan named Saraswathi died on 08-04-2021 and their son named Akash Ramakrishnan died on 04-07-2022. Ex.P.37 is the original ration card of family of S. Ramakrishnan which shows R. Saraswathi as his wife and Akash as his son. Date of issuance of this document is 28-09-2012 ie., much prior to date of death of these persons. Then the relationship of deceased S. Ramakrishnan and his class I legal heirs is established which is shown in the stripe in Ex.P 32 about the family of deceased S Ramakrishnan as;
Deceased S Ramakrishnan (died on 21-01-2022) Saraswathi (died on 08-04-2021) Akash Ramakrishnan (died on 04-07-2022).
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OS 6744/22-Judgment
28. Next to that, Ex.P 5 is the death certificate of S. Ramakrishnan. In this document, it is shown as he is died on 21-01-2022. This document has the name of Srinivasan G., as his father and name Late Saraswathi as his wife. Then it is further established that deceased S. Ramakrishnan is the son of Srinivasan G. Ex.P 4 is the death certificate of Saraswathi R., in which date of her death is shown as 28-04-2021 and her husband's name is shown as Ramakrishnan S. Ex.P 6 is the death certificate of Akash Ramakrishnan in which date of his death is entered as 04-07-2022 and his father's name is entered as Late S. Ramakrishnan. Further, Ex.P 35 is the Aadhaar Card of S. Ramakrishnan which shows his father's name as G. Srinivasan. Ex.P 34 is the Aadhaar Card of Saraswathi which shows his husband's name as S. Ramakrishnan. Ex.P. 36 is the Aadhaar Card of Akash which shows his care of address as S. Ramakrishnan. Ex.P 33 is the original passport of S. Ramakrishnan in which his name is entered as Srinivasan Ramakrishnan and his father's name as Srinivasan. In this document the name of Prabhavathi Sathishkumar (Plaintiff herein) is given in the column regarding particulars of relative/friend to be intimated in event of death or accident. Then it shows that plaintiff is relative to late S. Ramakrishnan. The address of residence of S. Ramakrishnan, 17 OS 6744/22-Judgment Saraswathi R., and Akash Ramakrishnan in Ex.P 37 and Ex.P 4 to 6 are one and the same as No.9, 4th Cross, LBS Nagar, Indiranagar, Bengaluru East, Karnataka-560038. Then the relationship between S. Ramakrishnan, Saraswathi R., and Akash Ramakrishnan are proved as husband-wife-son. It is also proved that they are not alive as on the date of filing of this suit.
29. Ex.P 3 is the death certificate of S. Saroja in which it is shown as she was died on 03-09-2003 and her husband's name is shown as Late G. Srinivasan. In Ex.P 5, Ex.P 35 and Ex.P 33 the father's name of deceased S. Ramakrishnan is shown as Srinivasan G.
30. Ex.P 28 is the original document in the form of book pertaining to 'secondary school-leaving certificate' of S. Prabhavathi (plaintiff herein) issued on 16-02-1966 in Madras which shows her father's name as G. Srinivasan. Ex.P 29 is the original document in the form of book pertaining to Junior Technical School Leaving certificate of Ramakrishnan S., issued on 24-04-1972 in Madras in which his father's name is shown as G. Srinivasan. Ex.P 31 is the original marriage invitation of Sathyabhama solemnized with N. Dhayalan on 11-02-1974 which contains texts and contents both in Tamil and English language 18 OS 6744/22-Judgment which shows that she is daughter of late G. Srinivasan. Ex.P 30 is the original marriage invitation card of the marriage of plaintiff solemnized with M. Sathishkumar in which her father's name is shown as Late G. Srinivasan, Madras. Ex.P 27 is the original letter/appointment letter of plaintiff as typist dated 19-07-1972 sent by The Food Corporation of India from its office situated at Madras in which, her father's name is shown as Late G. Srinivasan. In Ex.P 33 her address is reflected as Food Corporation of India, Dooravani Nagar, Bangalore. In Ex.P 33 the relationship of plaintiff with deceased S .Ramakrishnan is mentioned as "Sister." Though there are no documents to establish the 1 st defendant as brother of deceased S. Ramakrishnan but, Ex.P 32 the family tree shows that he is elder son of Late G. Srinivasan and Late Saroja. Though suit summons is duly served to him, but he did not appear before the court and placed exparte on 10-03-2023. As per written statement of defendant No.2, the relationship among them is an undisputed fact and even after due service of summons, the defendant No.1 remained exparte, then inference can be drawn under Section 114 of Indian Evidence Act. Further, in the written statement of defendant No.4, it has contended that the plaint averments in paragraph 1 to 23 are not within its knowledge and there is no cross examination of PW 1 and evidence by defendant 19 OS 6744/22-Judgment No. 4. In the written statement of defendant No.2, plaint averments are admitted facts. Accordingly, there is no impediment to declare the relationship of plaintiff, defendant No.1 and defendant No.2 with deceased S. Ramakrishnan as brother and sisters as legal Class II heirs to the estate of deceased S. Ramakrishnan.
31. As per above, the relationship for partition of property of deceased S. Ramakrishnan among his Class II heirs as the class I heirs are no more, is proved because there is no contra elicited in this regard.
32. Now, before going through the documentary evidence pertaining to the movable and immovable properties of deceased S. Ramakrishnan, this Court gone through the provision of law regarding intestate succession of a male Hindu under Hindu Succession Act 1956 and reproduced the same here under;
"8. General rules of succession in the case of males.―The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:―
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;20
OS 6744/22-Judgment
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased."
AND "11. Distribution of property among heirs in class II of the Schedule.―The property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they, share equally."
33. Here in this case, Class I heirs of deceased S. Ramakrishan, his wife and son are already dead. As supra, it is proved that plaintiff, defendant Nos.1 and 2 are the Class II heirs of deceased S. Ramakrishan. Hence, they are entitled to shares in the property of deceased S. Ramakrishnan who died intestate under Section 8(b) of above Act. The said shares must be equal shares among them as per Section 11.
34. Now, this Court gone through the schedule and reproduced the same to make it clear that who are the Class II heirs of deceased male who died intestate. 21
OS 6744/22-Judgment THE SCHEDULE (See section 8) HEIRS IN CLASS I AND CLASS II Class I Son; daughter; widow; mother; son of a pre- deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre- deceased son of a pre-deceased son; daughter of a pre- deceased son of a pre-deceased son; widow of a pre- deceased son of a pre-deceased son 1 [son of a predeceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre- deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son].
Class II
I. Father.
II. (1) Son's daughter's son, (2) son's daughter's daughter, (3)
brother, (4) sister.
III. (1) Daughter's son's son, (2) daughter's son's daughter, (3)
daughter's daughter's son, (4) daughter's daughter's daughter.
IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter.
V. Father's father; father's mother. VI. Father's widow; brother's widow. VII. Father's brother; father's sister.
VIII. Mother's father; mother's mother. IX. Mother's brother; mother's sister.
22
OS 6744/22-Judgment Explanation.―In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood."
35. As per the facts and circumstances of the case and above discussions, Class I heirs of deceased S. Ramakrishnan are not alive. His son Akash also died and as per Ex.P.6 that is the death certificate of Akash in column for the name of wife entered as "NIL" which shows that he died before marriage hence the stripe of Class I heirs of deceased S. Ramakrishnan is closed.
36. Now, in Class II heirs, the 1 st stripe the "father" Sri G. Srinivasan is already dead which is shown in Ex.P.3, Ex.P.27, Ex.P.30 to Ex.P.32 by mentioning his name as "Late G. Srinivasan and there is no contra about the same. It is an established fact that the son of deceased S. Ramakrishnan died unmarried and hence there is no son's daughter's son and son's daughter's daughter. Next to that, the immediate Class II heirs after son's daughter's son and son's daughter's daughter are Brother and Sister. As per above documentary evidence, it is proved that plaintiff and defendant No.2 are the sisters and defendant No.1 is the elder brother of deceased S. Ramakrishnan. Therefore, they are entitled to 1/3rd share each in the properties of deceased S Ramakrishnan.
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OS 6744/22-Judgment
37. Now, this Court gone through the documentary evidence pertaining to suit schedule properties. They are;
Ex.P.1 is the certified copy of sale deed dated 27-09-1993 through which Late Sarojamma purchased Item No.1 in suit schedule property from Smt.S. Sharfunnissa. Ex.P 7 is the original WILL dated 25-11-2000 testated by Smt.S. Saroja pertaining to Item No.1 in plaint A schedule property through which the said property is bequeathed in favour of deceased S. Ramakrishnan through which he became absolute owner of the property as on the date of death of S. Sarojamma. She died on 03-09-2003 as per Ex.P. 3 then succeeded to Item No 1 of the suit schedule property. But, said S. Ramakrishnan died on 21-01-2022 without executing any WILL over the same, but general principle of treating the said property as joint family property only to his 3rd generation does not arise because his next generation that is his sole son Akash died as per Ex.P.6. Therefore, plaintiff and defendant Nos.1 and 2 are entitled 24 OS 6744/22-Judgment to 1/3rd share each in Item No.1 of suit schedule property. Ex.P.8 is the print out of Loan Sanction Letter dated 18-01-2021 issued by UGRO CAPITAL LTD which is defendant No.3. The said defendant No.3 is deleted from the array of defendants. As per said document, Rs.45,79,650/- has been sanctioned as a secured loan in the name of co-applicants Ramakrishnan S., Saraswathi Padmanabha and Akash Ramakrishnan by depositing the titles of Item No.1 property for security.
Ex.P.9 is the original sale deed dated 24-04-2006 executed by the Karnataka Housing Board in favour of S. Ramakrishnan pertaining to Item No 2 of plaint A schedule property. Ex.P.10 is the original khatha certificate dated 22-06-2010 issued by BBMP in the name of S. Ramakrishnan in respect of Item No.2 in plaint A schedule property.
Ex.P.11 is the original sale deed dated 02-04-1992 executed by Smt S. Vijaya in favour of Sri S. Ramakrishnan pertaining to Item No 3 of 25 OS 6744/22-Judgment plaint A schedule property. Ex.P 12 is the original khatha certificate and Ex.P.13 is the khatha extract respectively dated 06-01-2012 issued by BBMP in the name of S. Ramakrishnan pertaining to Item No.3.
Ex.P.14 is the original sale deed dated 14-02-2011 executed by Mr G. Rajanna the GPA Holder of Smt V. Venkatamma in favour of Saraswathi in respect of item No.4 of plaint schedule property. Ex.P.15 is document of B khatha extract pertaining to Item No.4 in the plaint schedule issued on 25-02-2012 by BBMP in the name of Saraswathi W/o. Ramakrishnan.
38. As per these documentary evidence under Exs.P.4 and 14, it shows that the Item No.4 property in plaint A schedule is an absolute property of Smt. Saraswathi and as a female Hindu intestate succession, Section 14 to 16 applies to this property and to know whether plaintiff and defendant Nos.1 and 2 are entitled to the share over it, this Court gone through the said provisions of law and reproduced here under;
"14.Property of a female Hindu to be her absolute property.―(1)Any property possessed by a female 26 OS 6744/22-Judgment Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.―In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
AND "15. General rules of succession in the case of female Hindus.―(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,―
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband; 27
OS 6744/22-Judgment
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1),―
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased(including the children of any pre-deceased son or daughter) not upon the other heirs referred in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub- section (1) in the order specified therein, but upon the heirs of the husband.
AND "16. Order of succession and manner of distribution among heirs of a female Hindu.―The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the following rules, namely:― Rule 1.―Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to 28 OS 6744/22-Judgment those in any succeeding entry, and those included in the same entry shall take simultaneously.
Rule 2.―If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death.
Rule 3.―The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and
(e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death."
39. Here in this case, as discussed above son of S. Ramakrishnan and Saraswathi died unmarried, hence, plaintiff, and defendant Nos.1 and 2 are entitled to share in item No.4 of the plaint schedule A property as per Section 15(b) of Hindu Succession Act 1956.
Ex.P.16 is the original sale deed dated 30-03-2007 in Tamil Language and Ex.P.16(a) is the typed copy of the same in English language which shows that S.Ramakrishnan 29 OS 6744/22-Judgment purchased Item No.5 of Plaint schedule A property from G. Suseendrakumar as GPA holder of Mohan Raj. Ex.P.17 is another original sale deed dated 30-03-2007 in Tamil Language and Ex.P.17(a) the typed copy of the same in English language which shows that S. Ramakrishnan purchased Item No.6 of Plaint schedule A property from G. Suseendrakumar as GPA Holder of P. Mohan Raj. Ex.P.18 is another original sale deed dated 30-03-2007 in Tamil Language and Ex.P.18(a) is the typed copy of the same in English language which shows that S. Ramakrishnan purchased Item No.7 of Plaint schedule A property from G. Suseendrakumar as GPA Holder of P. Mohan Raj.
40. The above documentary evidence of PW 1 are pertaining to the immovable properties mentioned in Item No.1 to Item No.7 in plaint A schedule properties of Late S. Ramakrishnan and Late Saraswathi.
41. Next documentary evidence are pertaining to movable properties mentioned in Plaint B schedules which are shares in the name of Late S. Ramakrishnan in different companies narrated in paragraph 16 of the plaint. They are;
30
OS 6744/22-Judgment Exs.P.19 to 24 are the share certificates in the name of S. Ramakrishnan in The Tata Power Company Limited, Cummins India Limited, Bank of Baroda (2 in number) and Sree Thyagaraja Co-Operative Bank Limited who are defendant Nos.5 to 8 and these are the original documents.
Ex.P.25 is the original document of fixed deposit under Kuber Yojana Deposit scheme in UCO Bank (defendant No.4) in the joint name of S. Ramakrishnan and Saraswathi for the amount of Rs. 4,90,000/- payable on maturity is Rs.5,27,207.00/- for the period of 13 months in which date of maturity is 17-11-2020. In page No.2 of the written statement of defendant No.4 the same is admitted as still the said joint fixed deposit is continuing and it will be given to the legal heirs of Late Ramakrishnan and Late Saraswathi as per the say of the defendant No.4 in its written statement. Ex.P.26 is the original document of fixed deposit in Bank of Baroda (defendant No.5) in the joint name of S. Ramakrishnan and Saraswathi for the amount of Rs 1,32,179-00 as on the date of maturity on 27-10-2004. 31
OS 6744/22-Judgment
42. All the above documentary evidence correspond with plaint pleadings and descriptions of plaint schedule A and B properties. As per the facts and circumstances of the case and above discussions, the relationship of plaintiff, defendant Nos.1 and 2 with deceased S. Ramakrishnan and Saraswathi are legally established as they are Class II legal heirs. It is also established that the suit schedule properties are absolute properties of said S. Ramakrishnan and Saraswathi who died intestate. As their only son Akash Ramakrishnan also died unmarried and accordingly there is no Class I legal heirs to succeed over the suit schedule properties.
43. Therefore, plaintiff succeeded in proving that Sri S. Ramakrishnan is brother of plaintiff and defendant Nos.1 and 2, who died intestate without Class I legal heirs. She further proved that the plaintiff and defendant Nos.1 and 2 are the Class II legal heirs to the estate of Late S. Ramakrishnan and estate of his wife Late Saraswathi who died intestate as their sole son died unmarried. She further proved that the plaint A and B schedule properties are the absolute properties of Late S. Ramakrishnan and his wife Late Saraswathi as discussed above. When plaintiff proved that she and defendant Nos.1 and 2 are Class II legal heirs of them, then she successfully proved that they are entitled to 32 OS 6744/22-Judgment 1/3rd share each with separate possession in all the properties mentioned in Plaint A and B schedule. As the defendant No.2 in her written statement prayed same prayer as in the plaint and hence, there is no impediment to plaintiff's case from the side of defendant No.2. The defendant Nos.1, 5 to 8 are placed ex-parte. Defendant No.3 was deleted. The defendant No.4 filed written statement but did not cross examine PW 1 and he is connected to part of schedule B property that is item No.5 fixed deposit mentioned in B schedule. It is stated in its written statement that the said fixed deposit will be given to the legal heirs of Late S. Ramakrishnan and Late Saraswathi in terms of the order passed by this Court. As per above, the plaintiff established the ground that plaintiff and defendant Nos.1 and 2 are the legal heirs of Late S. Ramakrishnan and Late Saraswathi. Hence, it is clear that defendant Nos.4 to 8 are liable to allot the shares in plaint Schedule B property equally to plaintiff and defendant Nos.1 and
2.
44. Accordingly, this Court concludes that plaintiff and defendant Nos.1 and 2 are the Class II legal heirs of Late S. Ramakrishnan and Late Saraswathi. They are entitled to 1/3rd shares each in respect of plaint A and B schedule properties which are absolute properties of Late S. Ramakrishnan and Late 33 OS 6744/22-Judgment Saraswathi who died intestate without class I heirs. Hence, this Court answers Issue Nos.1 to 3 and 6 in the Affirmative.
45. Issue Nos.4 and 5 : Though defendant No.4 raised the question of "no cause of action" to this suit and "non-joinder of necessary parties, but did not lead evidence about who are necessary parties left out by the plaintiff. Further, the learned counsel for the defendant No.4 did not cross examine PW 1 to elicit in this regard. Moreover, as stated supra, in its written statement, admitted about Item No.5 of B schedule property then it shows that there is a cause of action to this suit. Hence, accordingly, this Court answers Issue Nos.4 and 5 in the Negative.
46. Issue No.7 :- As per facts and circumstances of the cases and above discussions and as per affirmative answer to Issue No.1 to 3 and 6 and Negative answer to Issue No.4 and 5, this Court is of the considered opinion that plaintiff and defendant No.2 are entitled to the reliefs as prayed in the plaint and counter claim of defendant No.2. But, though plaintiff in her prayer (a) used the word "DECLARE", but without prayer to declare plaintiff and defendant Nos.1 and 2 as Class II Legal heirs of Late S. Ramakrishnan and Late Saraswathi, she prayed to declare her 1/3rd share over the suit schedule properties hence, considering 34 OS 6744/22-Judgment the necessity of molding the prayer to declare their Class II legal- heir relationship, this court passes the following order with costs payable to DLSA.
47. To make more clear about molding of prayer for declaration of status of plaintiff and defendant Nos.1 and 2 as Class II legal heirs of deceased S. Ramakrishnan and Saraswathi, this Court gone through Section 34 of Specific Relief Act and the same is reproduced here under for better understanding;
"34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
48. Accordingly, this Court answers Issue No.7 in the Affirmative.
35
OS 6744/22-Judgment
49. Issue No 8 : For the foregoing discussions and reasons, this Court is of the opinion that the suit of the plaintiff and counter claim of defendant No.2 deserve to be allowed, accordingly, this Court proceeds to pass the following;
ORDER The suit of the plaintiff is hereby decreed, with cost payable to DLSA.
The Counter Claim of defendant No.2 is also decreed. Accordingly, it is hereby declared that the plaintiff and defendant Nos.1 and 2 are the Class II legal heirs of Late S. Ramakrishnan and Late Saraswathi.
In the result, it is declared that the plaintiff and defendant Nos.1 and 2 are entitled to 1/3rd share each in plaint A and B Schedule Properties and accordingly they are entitled to separate possession in respect of properties in Plaint A schedule properties.
Accordingly, the defendant Nos.4 to 8 are hereby directed to allot the respective shares to the plaintiff and defendant Nos.1 and 2 equally in respect of plaint B Schedule property which are in their respective custody. 36
OS 6744/22-Judgment The plaintiff is directed to pay Rs 5,000/-to DLSA before drawing the decree as per answer to Issue No.7.
The office is hereby directed to draw preliminary decree after receiving the receipt of payment of costs to DLSA.
No order as to costs.
(Dictated to the Senior Sheristedar on computer, typed by him, after correction, signed and pronounced by me in Open Court on 04.11.2024) (SMT. JYOTHSNA D.,) XVI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH12) SCHEDULE A PROPERTY Item No.1 All that piece and parcel of House constructed on Site No.2472 situated at HAL 3rd Stage Extension, Bengaluru bounded:
East by : Site No.2477
West by : Road
North by : Site No.2471
South by : Site No.2473
Item No.2
All that piece and parcel of House bearing on Site No.2561 situated at HIG, 3 rd Phase, Yelahanka New Town, Bengaluru 560 004, measuring East to West 20 meters and North to South 12 meters, bounded on: 37
OS 6744/22-Judgment East by : House No.2562 West by : Road North by : Hosue No.2560 South by : Site No.2561/A Item No.3:
All that piece and parcel of property bearing House Katha No.5, 4 th Cross, LBS Nagar, Lakshmipuram, Ulsoor, Bengaluru - 8, bounded on:
East by : Propertry of D. Shanthamurthy Naidu
West by : Road
North by : Arungiri's property
South by : House No.6 of Annamma
Item No.4:
All that piece and parcel of residential property bearing Site No.11 in Nos.4/1 and 4/3, Old No.4, Katha No.216 situated at Kowdenahalli Village, Krishnarajapura Hobli, Bengaluru East Taluk, which is now under Bruhat Bangalore Mahanagara Palike limits, measuring East to West 40 feet, North to South 35 feet, total 1400 square feet, bounded on:
East by : Site No.12
West by : Road
North by : Private property
South by : Road
under construction.
A house sought to be constructed by S. Ramakrishnan and raised a building of 3 floors and later it was not concluded and the said construction is still incompleted till date.
Item No.5:
A land in Dry Survey No.82/4 at Hect 0.39.5 acres 0.98 cents and Dry Survey No.83/2 Hect 1.19.5 acres 2.95 cents which includes Plot No.44 in Annamalai 38 OS 6744/22-Judgment Nagar, situated at Pudukottai District, Ellupur Taluk, Viralimalai Limits, Melapachakkudi Gram Panchayat, Kumarapatti Village which is divided into residential plot as per the lay out plan bounded on:
East by : Vacant site
West by : 20 feet Layout Road
North by : Plot No.45
South by : Plot No.43
East West yard North side 42, South side 33, South North Yard both side 30, totally 1125 square feet for plot No.42, 43. The said land is purchased inclusive of all the pathways.
Item No.6:
A land in Dry Survey No.82/4 at Hect 0.39.5 acres 0.98 cents and Dry Survey No.83/2 Hect 1.19.5 acres 2.95 cents which includes plot No.42, 43 in Annamalai Nagar, situated at Pudukottai District, Ellupur Taluk, Viralimalai Limits, Melapachakkudi Gram Panchayat, Kumarapatti Village which is divided into residential plot as per the lay out plan bounded on:
East by : Vacant site
West by : 20 feet Layout Road
North by : Vacant Land
South by : Plot No.44
East to West North side 30, both side 42, South North both side 60, totally 2160 square feet for Plot No.42, 43. The said land is purchased inclusive of all the pathways.
Item No.7:
A land in dry survey No.82/4 at Hect 0.39.5 acres 0.98 cents and Dry Survey No.83/2 at Hect 1.19.5 acres 2.95 cents which includes vacant plots in Annamalai Nagar, which is divided into residential plots 49 situated at Pudukottai District, Ellupur Taluk, Viralimalai Limits, Melapachakkudi Gram Panchayat, Kumarapatti Village which is divided into residential plots as per the layout plan bounded on:
East by : 49 South of Plot No.50
39
OS 6744/22-Judgment
West by : Vacant site
North by : Plot No.56
South by : No.48 included 20 feet layout road.
SUIT SCHEDULE B PROERTY
1) Shares
Tata Power Company Limited in 1680 shares in share Certificate No.31655
2) Shares Having shares of 600 in Cummins India Limited with share certificate No.8506.
3) Shares Having shares of 100 in Bank of Baroda with share Certificate No.347971 and another shares of 100 with share Certificate No.347972
4) Shares Having shares of 10 in Sri Thyagaraja Cooperative Bank Limited bearing Share Certificate No.001902019861
5) Deposit Having a deposit of Rs.4,90,000/- in A/c No.09860310116401 receipt No.126845 in UCO Bank undere Kuber Yojana Deposit Scheme carrying interest @ 6.80 % per annum.
6) Current A/c / SB Account Having a sum of Rs.1,32,179 in Bank of Baroda, Receipt No.0199812, Customer ref.No.TD70412, A/c No.91553 ANNEXURE List of witnesses examined for the plaintiff.
PW 1 - Prabhavathi List of witnesses examined for the defendants. Nil List of documents marked for the plaintiff. 40
OS 6744/22-Judgment Ex.P.1 Certified Copy of the Sale Deed dated 27.09.1993 Ex.P.2 Certified copy of the Sale Deed dated 02.04.1992 Ex.P.3 to 6 Death Certificate of Smt. S. Saroja, Smt. Saraswathi R., S. Ramakrishnan and Akash Ramakrishnan, respectively. Ex.P.7 Will dated 25.11.2000 executed by Smt. S. Saroja Ex.P.8 Sanction Letter dated 18.01.2021 issued by UGRO Capital Ex.P.9 Original Sale Deed dated 24.04.2006 issued by Karnataka Housing Board Ex.P.10 Katha Certificate dated 26.06.2010 Ex.P.11 Original Sale Deed dated 02.04.1992 Ex.P.12 Katha Certificate dated 06.01.2012 Ex.P.13 Katha Extract dated 06.01.2012 Ex.P.14 Original Sale Deed dated 14.02.2011 Ex.P.15 Form B Katha dated 25.02.2012 Ex.P.16 Original Sale Deed dated 30.03.2007 in Tamil Language Ex.P.16(a) English Translation of Ex.P.16 Ex.P.17 Original of another Sale Deed dated 30.03.2007 in Tamil Language Ex.P.17(a) English Typed Version of Ex.P.17 Ex.P.18 Original Sale Deed dated 16.03.2007 in Tamil Language Ex.P.18(a) English Version of Ex.P.18 41 OS 6744/22-Judgment Ex.P.19 Share Certificate of Tata Power Company Limited Ex.P.20 Share Certificate of Cummins India Limited Ex.P.21 2 Share Certificate of Bank of Baroda and 22 Ex.P.23 Share Certificate of Tata Power Company Limited Ex.P.24 Share Certificate of Sri Tyagaraja Co Operative Bank Limited Ex.P.25 FD Document of UCO Bank Ex.P.26 FD document of Bank of Baroda Ex.P.27 Offer Letter dated 19.07.1972 issued by Food Corporation of India to the plaintiff Ex.P.28 Original School Admission record of plaintiff Ex.P.29 School record of Sri Ramakrishna S., Ex.P.30 Marriage Invitation Card of plaintiff Ex.P.31 Marriage Invitation Card of 2nd defendant Ex.P.32 Notarised Family Tree Ex.P.33 Original Passport of Srinivasan Ramakrishnan Ex.P.33(a) Two names identified by witness on Ex.P.33 and (b) Ex.P.34 Aadhaar Card of Smt. Saraswathi Ex.P.35 Aadhaar Card of S. Ramakrishnan 42 OS 6744/22-Judgment Ex.P.36 Aadhaar card of Akash Ex.P.37 Ration Card List of documents marked for the defendants. Nil.
(SMT. JYOTHSNA D.,) XVI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH12) 43 OS 6744/22-Judgment (Judgment pronounced in Open Court vide separate Judgment. Order portion reads as under) ORDER The suit of the plaintiff is hereby decreed, with cost payable to DLSA.
The Counter Claim of defendant No.2 is also decreed. Accordingly, it is hereby declared that the plaintiff and defendant Nos.1 and 2 are the Class II legal heirs of Late S. Ramakrishnan and Late Saraswathi.
In the result, it is declared that the plaintiff and defendant Nos.1 and 2 are entitled to 1/3rd share each in plaint A and B Schedule Properties and accordingly they are entitled to separate possession in respect of properties in Plaint A schedule properties.
Accordingly, the defendant Nos.4 to 8 are hereby directed to allot the respective shares to the plaintiff and defendant Nos.1 and 2 equally in respect of plaint B Schedule property which are in their respective custody.
The plaintiff is directed to pay Rs 5,000/-to DLSA before drawing the decree as per answer to Issue No.7. 44
OS 6744/22-Judgment The office is hereby directed to draw preliminary decree after receiving the receipt of payment of costs to DLSA.
No order as to costs.
XVI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH12) 45