Bangalore District Court
Sri.Bernard Vikram vs Sri.John Ravi on 27 September, 2021
IN THE COURT OF LXXIII ADDL.CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BANGALURU.
(CCH.74)
PRESENT:
Sri.Yamanappa Bammanagi, B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge,
Mayohall Unit, Bangaluru.
Dated this the 27th day of September, 2021.
O.S. No.9940/2006
Plaintiff: Sri.Bernard Vikram
Thumbu Chetty,
S/o.Late.Sri.Francis
Thumboo Chetty,
aged about 52 yrs,
R/at.No.16/1,
Promenade Road,
Frazer Town,
Bangaluru-560006.
(By Sri.Amit Mandgi - Adv.)
V/S
Defendants: 1. Sri.John Ravi
Thumboo Chetty,
S/o.Late.Sri.Francis
Thumboo Chetty,
aged about 58 yrs,
R/at.No.17, Promenade Road,
Frazer Town, Bangaluru-06.
2. Smt.Mary Geetha
2
O.S. No.9940/2006
(since Deceased),
Rep.by Legal Representatives,
2(a). Sri.Arvind Thomas,
S/o.Sri.Joseph Thomas,
aged about 41 years,
R/o.No.16/4, Beale Street,
Liverpool, 2170,
New South Wales,
Australia.
2(b). Sri.Sunil Thomas,
S/o.Sri.Joseph Thomas,
aged about 38 years,
R/o.No.27A,
Street 59, District-2,
Thao Dien Ho Chi Minh City.
3. Miss. Philomena Chitra,
D/o.Late.Sri.Francis
Thumboo Chetty,
aged about 60 years,
2 and 3 represented by Sri.John
Ravi Thumboo Chetty,
R/o.No.17, Promenade Road,
Frazer Town, Bangaluru-06.
(By Sri.Ashok B.Patil- Adv.)
Date of Institution of the suit 14.11.2006
Nature of the (Suit or pro-note,
suit for declaration and PARTITION & SEPARATE POSSESSION &
possession, suit for injunction, PERMANENT INJUNCTION
etc.)
Date of the commencement of
05.08.2013
recording of the Evidence.
3
O.S. No.9940/2006
Date on which the Judgment was
27.09.2021
pronounced.
Year/s Month/s Day/s
Total duration 14 10 13
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bangaluru. (CCH-74)
JUDGMENT
The plaintiff has filed this suit for partition and separate possession of his 1/4th share in the suit schedule properties and consequential relief of permanent injunction restraining the defendants No.1 and 2 from alienating, encumbering or disposing of the suit schedule properties in any manner and for direction directing the defendant Nos.1 and 2 to render accounts in respect of the rents and profits arising from the suit schedule properties and to pay 1/4th share in the same to the plaintiff.
2. Brief facts of the plaintiff's case: 4
O.S. No.9940/2006 It is the case of the plaintiff that the plaintiff is the brother of defendant Nos.1 to 3, the defendant Nos.2 and 3 are the sisters of plaintiff and defendant No.1, they are the children of Late.Sri.Francis Kantharaj @ Francis Thumboo Chetty and Smt.Phiolmena Thumboo Chetty. The father of the plaintiff and defendants Sri.Francis Kantharaj @ Francis Thumboo Chetty died on 29.12.1989 and mother Smt.Phiolmena Thumboo Chetty died in the year 2000, both died intestate and parties are belongs to Christian Community.
Smt.Philomena Thumboo Chetty was owned and possessed various movable and immovable properties in Bangaluru and elsewhere. One such property was premises bearing No.12 and 12A (New No.79 and 80), M.G.Road, Bangaluru and said Smt.Philomena Thumboo Chetty has appointed her husband as her trustee in respect of said premises and beneficiaries are the plaintiff and defendants, under terms and conditions of registered 5 O.S. No.9940/2006 settlement deed dated 1.2.1968 executed by said Smt.Philomena Thumboo Chetty.
Subsequently, said Smt.Philomena Thumboo Chetty had executed settlement deed, dated 30.3.1977, in respect of premises No.82, M.G.Road, Bangaluru and settled in favour of plaintiff. Further under registered settlement deed dated 30.3.1977, Smt.Philomena Thumboo Chetty had transferred the premises bearing No.81, M.G.Road, Bangaluru, in favour of defendant No.2. Thereafter, under two registered settlement deeds dated 4.9.1978, the said Smt.Philomena Thumboo Chetty transferred premises No.77 and 78, both situated in M.G. Road, in favour of defendant Nos.1 and 3. Thus, the plaintiff and defendants are owners, in possession and enjoyment of the properties settled by their mother as per settlement deeds referred supra.
Further the plaintiff contended in the plaint that, apart from the properties referred supra, Smt.Philomena 6 O.S. No.9940/2006 Thumboo Chetty was owned and in possession of premises bearing No.16, 17 and 18, situated in Promenade Road, Frazer Town, Bangaluru. Said premises No.16 is divided into 3 part viz., Center Portion, Western Portion assigned No.16/1 and Eastern Portion assigned No.16/2.
Thereafter, said Smt.Philomena Thumboo Chetty has executed registered gift deed dated 17.7.1999, in respect of Center Portion of premises No.16, in favour of the plaintiff.
Thus, the plaintiff become owner of premises No.16 in respect of Center Portion after dividing the same. Further said Smt.Philomena Thumboo Chetty has transferred portion of property numbered as 16/1 in favour of plaintiff under registered release deed dated 28.6.1984. Thus, the plaintiff and defendants becomes owner and in possession of the properties of Smt.Philomena Thumboo Chetty as per the settlement deeds and gift deed executed by her.
Apart from these properties said Smt.Philomena Thumboo Chetty was also owned and possessed the 7 O.S. No.9940/2006 property premises No.16/2 (Eastern Portion), which is described as suit schedule 'A' property, premises No.17 is described as suit schedule 'B' property and property premises No.18, which is described as suit schedule 'C' property. Said Smt.Philomena Thumboo Chetty was also owned and in possession of various movables comprising of musical instruments, furniture, hour hold goods, jewellery and other articles. All the movables are described as schedule 'D' properties.
Thus, the mother of the parties was owned movable and immovable properties described as suit schedule 'A' to 'D' properties during her lifetime. The mother of the plaintiff and defendants Smt.Philomena Thumboo Chetty died intestate on 19.3.2000. Hence, the plaintiff and defendants are in joint possession and enjoyment of the suit schedule properties. Thus, the plaintiff has 1/4th share in the suit schedule properties.8
O.S. No.9940/2006 It is further contended in the plaint that the defendant No.1 is in possession of property No.17 and 18 of Frazer Town, suit schedule 'B' and 'C' properties and all movable properties shown as 'D' schedule property are available in suit schedule 'B' and 'C' properties and also premises known as "Stratharin", Ooty, Tamil Nadu belongs to defendant No.2. The defendant Nos.1 and 2 have colluded each other and deprived the rights of the plaintiff and defendant No.3 over the suit schedule properties.
It is also contended in the plaint that the mother of the plaintiff and defendants has not executed any Will or Codicil during her lifetime in respect of properties owned by her and defendants obtained a Probate in respect of Will and Codicils without service of notice to the plaintiff, same is not binding on the plaintiff. Thus, the plaintiff is entitled for his 1/4th legitimate share in the suit schedule properties.9
O.S. No.9940/2006
3. In pursuance of suit summons the defendant Nos.1 to 3 appeared through counsel and filed common written statement stating that, the plaintiff is not entitle for reliefs sought in the plaint. Further, the defendants denied the fact that mother of plaintiff and defendants died intestate, but admitted relationship of plaintiff and the defendants as contended by the plaintiff. Further the defendants did not denied properties owned by mother and the family and family settlement deed dated 1.2.1968. Further the defendants did not disputed averment of para- 5 of the plaint in respect of registered settlement deeds referred in the said para. The defendants specifically denied para-6 of the plaint with regard to gift deed dated 17.7.1999, release deed dated 28.6.1994, said to have been executed by mother of the plaintiff.
The defendants contended that para-8 of the plaint is partly true and partly denied. It is true that movable properties shown in 'D' schedule I to III properties are 10 O.S. No.9940/2006 belongs to the mother. But, movables shown in IV of 'D' schedule are not belongs to the mother, but they are belongs to father, named as "Strathnairn" in Ooty, Tamilnadu. But, the defendants have specifically denied the allegation of misappropriation of some property. The averments of para-9 of the plaint are specifically denied except those which are admitted as true. Smt.Philomena Thumboo Chetty was the absolute owner of the suit schedule 'A' to 'C' properties, she was also owner of item No.I to III of 'D' schedule properties. Further the defendants have denied specifically the fact that she died intestate. Smt.Philomena Thumboo Chetty had bequeathed her entire belongings movable and immovable properties under Will dated 3.12.1980, Codicil dated 27.2.1986 and 7.5.1988, in respect of which, the defendants have obtained Probate, the defendants denied the joint possession and enjoyment of the plaintiff over the suit schedule properties and court fee paid by the plaintiff 11 O.S. No.9940/2006 is not sufficient. Further the defendants contended that movable properties shown in IV of 'D' schedule properties are bequeathed by the father of the parties in favour of defendant No.2 along with immovable property called "Strathnairn", situated at Ooty, Tamil Nadu. Thus, the suit schedule properties are not available for partition, because, the father and mother of plaintiff and defendants have bequeathed their properties during their lifetime by executing necessary deeds.
It is specific case of the defendants that father of the plaintiff and defendants was owned immovable property called "Strathairn" at Ooty and also owned movables therein, which are shown in item No.IV in schedule 'D' of the suit schedule properties. The father of the plaintiff has executed a Will dated 17.11.1988, in respect of his immovable and movable properties during his lifetime and bequeathed immovable and movable properties referred supra, to the defendant No.2. This fact was well within the 12 O.S. No.9940/2006 knowledge of the plaintiff, because the Will executed by the father of the plaintiff has been probated in Civil Misc. No.25/1994, filed before the Hon'ble High Court of Karnataka and same was disposed off on 29.3.1996, in the said Probate Proceedings the present plaintiff was appeared through counsel, but he did not filed any objection. Thus, the father and mother of the plaintiff and defendants have transferred and settled their properties during their lifetime by executing necessary settlement deeds, Wills and Codicils, which have been acted upon. Hence, the suit properties are not liable for partition.
Further the defendants have contended that mother of the plaintiff has made a family arrangement on 11.8.1973 under which, the mother given Eastern portion of 'B' and 'C' schedule properties to the defendant No.1 and said family arrangement has acted upon and accepted by the plaintiff on 11.8.1973, along with other family members. On basis of family settlement khatha has been 13 O.S. No.9940/2006 bifurcated and name of the defendant No.1 entered in the revenue records and defendant No.1 is in possession of property given by his mother under the family arrangement.
Further mother of the plaintiff has made another family arrangement in respect of schedule 'A' property on 5.12.1974, in which schedule 'A' property was given to the defendant No.2 and another portion of large extent of same property given to the plaintiff and family arrangement was recorded on document dated 16.1.1975 to which the plaintiff is also party and plaintiff and other family members have acted upon and accepted family arrangement dated 5.12.1974. Thus, khatha of property No.16 was divided among the plaintiff, defendant No.2 and mother of the plaintiff on 5.10.1977 by the Corporation of City, Bangaluru.
Further mother of the plaintiff has referred all the family settlement deeds in Will and Codicils, executed by 14 O.S. No.9940/2006 mother of the plaintiff and also the portion of premises No.16 retained by the mother, has been referred in Will and Codicils of mother of the plaintiff.
Thus, all family settlement deeds, Will executed by father of the plaintiff, Will and Codicils executed by the mother of the plaintiff in respect of their properties are probated and said Probate Proceedings are well within the knowledge of the plaintiff. Even then, the plaintiff has filed this false suit suppressing the material facts. Thus, there is no properties remained for partition and suit properties are not liable for partition. The plaintiff has filed this suit suppressing the material facts and suit filed by the plaintiff is liable to be dismissed with heavy costs.
4. Initially this suit is filed before the CCH-21, in view of the Notification No.ADM-I(A)205/2019, dated 30.3.2019, this case has been transferred to this court from CCH-21. And suit was called out in this court for the first time on 12.4.2019.
15
O.S. No.9940/2006
5. On basis of the pleadings, my learned Predecessor has framed the following:-
ISSUES
1. Whether defendants prove that their mother executed will bequeathing properties mentioned in the will?
2. Do they prove that in the suit in O.S.No.1848/2000 plaintiff has admitted such execution of the will?
3. Whether defendants prove further that a will also executed by their father?
4. What Decree or Order?
ADDITIONAL ISSUES DATED 10.11.2017
1. Whether the plaintiff proves that, he is entitled for partition to the extent of ¼th share and separate possession in the suit schedule properties, as prayed for?
2. Whether the plaintiff proves that, he is entitled for seeking a direction 16 O.S. No.9940/2006 against the defendant No.1 and 2 to render accounts in respect of the rents and profits arising from the suit schedule properties and further he is entitled to claim the same to the extent of ¼th share?
3. Whether the plaintiff proves that, he is entitled for permanent injunction against the defendant No.1 and 2 from alienating or creating encumbrance in the suit schedule properties?
4. Whether the plaintiff proves that, he is in joint-
possession of the suit schedule properties?
5. Whether the plaintiff proves that, he has paid sufficient court fee on the memorandum of plaint?
6. In order to prove his case, the plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.4 and P.W.1 was subjected to cross-examination by the learned counsel for the defendants and got marked Ex.D.1 to D.4 17 O.S. No.9940/2006 during the cross-examination of P.W.1. Further the learned counsel for the defendants has filed memo stating that defendants have no evidence either oral or documentary, in view of the evidence of P.W.1 and submitted that suit may be posted for argument. Memo accepted and posted for argument.
7. Heard argument on both side. The learned counsel for the parties have filed their written argument in addition to oral argument.
8. I have perused oral and documentary evidence led by the plaintiff and considered the material placed before the court. I have also considered the arguments advanced by the learned counsel for the parties.
9. My answer to the above issues are as follows:-
Addl. Issue No.1: In the Negative, Addl. Issue No.2: In the Negative, Addl. Issue No.3: In the Negative, Addl. Issue No.4: In the Negative, 18 O.S. No.9940/2006 Addl. Issue No.5: In the Affirmative, Issue No.1: Does not survived for consideration, Issue No.2: Does not survived for consideration, Issue No.3: Does not survived for consideration, Issue No.4: As per final order, for the following:-
REASONS
10. ADDL. ISSUE Nos.1 TO 4: All these four issues are interconnected to each other, in order to avoid repetition, I proposed to answer these four issues commonly. In order to prove his case, the plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.4. P.W.1 is examined by filing affidavit in lieu of examination-in-chief, reiterating the plaint averments. P.W.1 deposed before the court that, the plaintiff and defendants are the brother and sisters and children of Late.Francis Kantharaj @ Francis Thumboo Chetty and Smt.Philomena Thumboo Chetty and 19 O.S. No.9940/2006 father and mother of the plaintiff and defendants died on 29.12.1989 and 19.3.2000, which is not in dispute. Further deposed that the father and mother of the plaintiff were owned movable and immovable properties.
11. Further plaintiff deposed that during the lifetime of her mother she was owned movable and immovable properties No.12 and 12A (New No.79 & 80) and she has executed settlement deed in respect of said properties and appointed her husband as her trustee and beneficiaries are the plaintiff and defendants in terms of registered settlement deed dated 1.2.1968, after death of the father and mother of the plaintiff and defendants. Further mother of the plaintiff has executed settlement deed, dated 30.3.1977, in respect of properties No.82, situated at M.G.Road, Bangaluru, in favour of the plaintiff and under the registered settlement deed dated 30.3.1977, the mother of the plaintiff has transferred premises No.81, situated at M.G. Road, Bangaluru, in favour of the defendant No.2. 20
O.S. No.9940/2006
12. Thereafter, the mother of the plaintiff has executed two registered settlement deeds dated 4.9.1978 in respect of premises No.77 & 78 and transferred the same in favour of defendant Nos.1 and 3. Thus, the plaintiff and defendants are in possession of their respective shares in terms of settlement made by mother of the plaintiff.
13. Apart from the said properties, the plaintiff's mother was owned other properties No.16, 17 and 18, situated at Promenade, Frazer Town, Bangaluru. The property No.16 has divided into 3 parts, one is Central Portion, which is numbered as 16, Western Portion is numbered as 16/1 and Eastern Portion is numbered as 16/2. Thereafter, the mother of the plaintiff has gifted premises No.16 in favour of the plaintiff. Thus, the plaintiff has become owner of premises No.16. Again mother has executed registered release deed dated 28.6.1984 in favour of the plaintiff in respect of property No.16/1. Thus, the plaintiff and defendants have become 21 O.S. No.9940/2006 owners of the properties of their parents as per settlement made by them in respect of their properties.
14. Apart from the properties referred supra, the mother of the plaintiff was owned properties No.16/2, 17 and 18, all are situated at Promenade Road, Bangaluru, which are described as suit schedule 'A', 'B' and 'C' properties. Further mother of the plaintiff owned movable properties comprising musical instruments, furniture, hour hold goods, jewellery and other articles, all movables are referred as 'D' schedule properties No.I to V. The mother of the plaintiff was owner and in possession of the suit schedule properties till her death and died intestate on 19.3.2000. After her death, the plaintiff and defendants have succeeded to the suit properties as per the Indian Succession Act. Thus, the plaintiff has 1/4th share in the suit properties and mother of the plaintiff never executed Will or Codicils in respect of her properties and the defendants have created Will dated 3.12.1980, Codicils 22 O.S. No.9940/2006 dated 27.2.1986 and 7.5.1988 in the name of plaintiff's mother in respect of her properties. The plaintiff came to know about P & SC proceedings in P & SC No.15024/2003 and the defendant No.1 obtained Probate in respect of Will and Codicils executed by the plaintiff's mother. Hence, the plaintiff has filed P & SC No.15055/2006 for revocation of Probate.
15. In support of his case, the plaintiff has produced 4 documents, which have been marked at Ex.P.1 to P.4. Exs.P.1 to P.3 are the khatha extracts and Ex.P.4 is the copy of petition in P & SC No.15055/2006, filed by the present plaintiff against the defendants for revocation of Probate granted in favour of the defendants in respect of Will and Codicils executed by the plaintiff's mother in respect of her properties including suit schedule properties.
16. I have perused Ex.D.3 & D.4, the certified copy of the order passed by this court in P & SC No.15055/2006 23 O.S. No.9940/2006 and order passed by the Hon'ble High Court in Probate Civil Petn. No.25/1994. These Ex.D.3 and D.4 clearly establishes that the properties of father and mother of the plaintiff and defendants have transferred and settled during their lifetime by executing registered settlement deeds, Will & Codicils. In respect of said Wills executed by father of the plaintiff in respect of schedule 'D' IV, the Probate proceedings have been initiated and issued Probate Certificate as per Ex.D.4 and Probate Proceedings initiated by the defendant No.1 in respect of Will and Codicil executed by the mother of the plaintiff. Thereafter, the present plaintiff has filed P & SC No.15055/2006 for revocation of Probate Order dated 20.12.2003, passed in P & SC No.15024/2003. Same was dismissed on 26.2.2021, holding that there is no genuine grounds to revoke the Probate granted in favour of the defendant No.1, in respect of Will and Codicil executed by the mother of the plaintiff and defendants in respect of her properties. 24
O.S. No.9940/2006
17. Further the Ex.D.4 clearly establishes that Probate has been granted in respect of the Will executed by the father of the plaintiff in respect of immovable and movable properties, situated at Ooty in Tamil Nadu. The plaintiff being party to Ex.D.4, has not challenged the same and did not disclosed in the plaint about the Probate Proceedings in respect of Will executed by his father. Thus, on careful perusal of the material placed before the court, it is clear that the suit properties are already covered under the Will, executed by the parents of the plaintiff and defendants and said Will and Codicils are subjected to Probate Proceedings, said Probate Proceeding was challenged by the present plaintiff in P & SC No.15055/2006, same was dismissed. Under the circumstances, it can be safely held that the suit properties are not liable for partition and plaintiff has no share in the suit properties. Further it is clear that the parents of the plaintiff and defendants have settled their properties by 25 O.S. No.9940/2006 executing settlement deeds, gift, Will and Codicils, during their lifetime, same are acted upon by the parties and they are in the possession and enjoyment of their respective properties as per the settlement made and Will and Codicils executed by their parents. Hence, no properties are left for partition.
18. The specific case of the plaintiff is that his father and mother died intestate and there is no Will or Codicils executed by his parents in respect of suit schedule properties and he do not know the Will and Codicils said to have been executed by his parents in respect of suit properties. Now it is relevant to appreciate Ex.D.2 marked during the cross-examination of P.W.1 on confrontation.
19. Ex.D.2 is the deposition of present plaintiff deposed in O.S. No.1848/2000, filed by the plaintiff and defendants against the tenants in respect of their properties. The plaintiff deposed in Ex.D.2 that his parents have executed a Will. Now it is relevant to extract 26 O.S. No.9940/2006 the relevant portion of Ex.D.2, at page No.22, after 2 lines from top, in the cross-examination dated 25.7.2007, which reads thus:
"ನಮ್ಮ ತಾಯಿಯು 2000 ನೇ ಇಸವಿಯಲ್ಲಿ ತೀರಿಕೊಂಡಿದ್ದಾರೆ. ನಮ್ಮ ತಂದೆ ಹಾಗೂ ತಾಯಿ ಮರಣ ಶಾಸನಗಳನ್ನು ಬರೆಯಿಸಿದ್ದಾರೆ. ನಮ್ಮ ತಾಯಿ ಫೆಬ್ರವರಿ 2000 ದಲ್ಲಿ ತೀರಿಕೊಂಡಿದ್ದು ಅದರ ದಿನಾಂಕ ನೆನಪಿಲ್ಲ. ಮರಣ ಶಾಸನಗಳು ಈ ದಾವೆಗೆ ಸಂಬಂಧಪಟ್ಟಿಲ್ಲವಾದ್ದರಿಂದ ಅವುಗಳನ್ನು ನಾನು ಹಾಜರುಪಡಿಸಿಲ್ಲ."
Further it is relevant to appreciate Ex.D.1 a special notice issued by the Assistant Revenue Officer, North-East Range, Corporation of Bangaluru. Ex.D.1 reflects that the property bearing No.16 has been divided in three parts and numbered as 16, 16/1 and 16/2. It is also reflects that the khatha in respect of property No.16/1 has been registered in the name of plaintiff and khatha in respect of property No.16/2 is registered in the name of defendant No.2 and the property No.16 was retained by the mother of the plaintiff.
27
O.S. No.9940/2006
20. Thus the plaintiff was well aware about the Will and Codicils executed by his father and mother in respect of their properties. It is not in dispute between the parties that all properties are belongs to their parents separately. Thus, it is clear that as per Ex.D.1 to D.4 the mother of the plaintiff has executed Will and Codicils in respect of her properties and also the plaintiff himself has admitted in the plaint that his mother has executed settlement deeds and gift deed and release deed, in respect of properties owned by her as it could be seen from para-5 and 6 of the plaint.
21. Further it is clear from Ex.D.4, the certified copy of the order passed by the Hon'ble High Court of Karnataka in Probate Civil Petn. No.25/1994, dated 29.3.1996, clearly shows that father of the plaintiff has executed a Will in respect of his immovable and movable properties, situated at Ooty, in Tamil Nadu and Probate has been granted in respect of said Will. Now it is relevant to extract para-2 of Ex.D.4, which reads thus:
28
O.S. No.9940/2006 "The citation was issued and published in the newspaper 'Times of India', Bangaluru Edition dated 28.11.1994.
Individual notices to the
daughter of Mrs.Mary Geetha
Thomas and to the son
Mr.B.Vikram Thumboo Chetty
represented through B.N.Jayadev, Advocate. No objections have been filed. Though Mrs.Mary Geetha Thomas served with the notice, she remained unrepresented. Notice issued to the collection of Nilgiri has been served."
22. Thus, on careful perusal of the evidence extracted supra it is clear that plaintiff well aware that his father and mother have divided their properties among their sons; i.e., plaintiff and defendants, during their lifetime by executing necessary title deeds. More particularly, it is well within the knowledge of the plaintiff 29 O.S. No.9940/2006 about the execution of Will and Codicils executed by his parents in respect of suit properties. Knowing fully well, the plaintiff has filed this suit, which amounts to abuse of process of law.
23. So far as suit properties are concerned the mother of the plaintiff has executed Will and Codicils and the defendant No.1 has obtained Probate in respect of Will and Codicils executed by the mother of the plaintiff by filing P & SC No.15024/2003. Thereafter, the present plaintiff has filed P & SC No.15055/2006, for revocation of Probate granted in P & SC No.15024/2003, same was dismissed on 26.2.2021 as per Ex.D.3. Thus, it is proved by the defendants from the evidence of P.W.1 and Ex.D.1 to D.4 that the mother of the plaintiff and defendants have bequeathed the properties mentioned in the Will dated 3.12.1980, executed by the mother of the plaintiff. Further it is proved by the defendants that the plaintiff has admitted the execution of Will by his mother in O.S. 30 O.S. No.9940/2006 No.1848/2000 as extracted the evidence of plaintiff in Ex.D.2. It is also proved by the defendants by producing cogent evidence Ex.D.4 that father of the plaintiff has executed a Will, in respect of his properties, situated at Ooty in Tamil Nadu and obtained Probate in respect of the Will under Ex.D.4 and in Ex.D.4 the present plaintiff was appeared through counsel. This clearly establishes that the plaintiff has filed this suit suppressing the material fact. Further this court has passed the order, directing the plaintiff to produce the documents, but plaintiff failed to produce the documents as per the direction of this court.
24. On face of records, it is clear that plaintiff being well aware about the execution of Will, Codicils, executed by their parents and settlement deeds executed by the mother of the plaintiff as admitted by the plaintiff, it is clear that, the suit filed by the plaintiff is abuse of process of law, because the plaintiff being a party to Ex.D.4 and being aware of the execution of Will by his mother as it 31 O.S. No.9940/2006 could be seen from Ex.D.3, the plaintiff did not discloses in the plaint about Ex.D.4 Probate Proceedings before the Hon'ble High Court of Karnataka, though the plaintiff appeared through counsel. By being a party to Ex.D.4, the plaintiff pleaded that his father has not executed any Will in respect of suit schedule properties and the plaintiff did not produced document Ex.D.4, which is vital part of the suit of the plaintiff. In support of my opinion, I relied on the decision reported in AIR 1994 Supreme Court 853 in case of S.P.Chengalvaraya Naidu (dead) by LRs v/s Jagannath (dead) by LRs and others. The lordships have held thus:
"Civil P.C. (5 of 1908, S.2 (2) - Evidence Act (1 of 1872), S.44 - Proceeding in court - Fraud by litigant - Withholding of vital document relevant to litigation - It is fraud on court - Guilty party is liable to be thrown out at any stage - Litigant obtaining preliminary decree for partition 32 O.S. No.9940/2006 of property - Not mentioning at trial as to his having executed before filing of suit release deed in respect of property in favour of his employer - Decree vitiated by fraud."
Further I relied on the decision reported in (2008) 12 Supreme Court Cases 481 in case of K.D.Sharma v/s Steel Authority of India Limited and others. The lordships have held thus:
"A. Constitution of India - Article 226, 32 and 136 -
Maintainability of writ petition -
Abuse of process of court/law/fraud on court - Power and duty of writ court where a petitioner makes false statement or conceals material facts or misleads the court - Held, in such a case the court may dismiss the petition at the threshold without considering the merits of the claim - Court would be failing in 33 O.S. No.9940/2006 its duty if it does not reject the petition on the said ground - Petitioner in such a case is also required to be dealt with for contempt of court for abusing the process of the court - In the present case, the appellant did not approach the court with a clean hands by disclosing all facts - True facts were just contrary to what was sought to be placed before the Court -
Hence, on this ground alone the appellant cannot claim equitable relief - Appeal is dismissed with costs - Constitution of India -
Article 226, 32 and 136 -
Pleadings - Contempt of Courts Act, 1971 - Section 2 (c) - Civil Procedure Code, 1908 - Order 6 Rule 1 & 2, Order 7 Rule 1, Order 8 Rule 6-A and Section 35.
B. Constitution of India -
Article 226 and 32 - Writ jurisdiction of High Court and 34 O.S. No.9940/2006 Supreme Court - Nature and purpose of, reiterated."
Hence, plaintiff failed to prove that suit properties are liable for partition and he got 1/4th share in the suit schedule properties.
25. Further it is clear from the material placed before the court that, during the lifetime of parents of the plaintiff, they have settled their properties among their children; i.e., between the plaintiff and defendants, by executing necessary title deeds and same are acted upon and plaintiff and defendants are in separate possession and enjoyment of their respective properties as per the settlement deeds, Will and Codicils, executed by their parents, in respect of their properties, including the suit schedule properties. Hence, plaintiff failed to prove his joint possession over the suit schedule properties.
26. When plaintiff failed to prove his 1/4th share and joint possession over the suit schedule properties, 35 O.S. No.9940/2006 then the plaintiff is not entitled for accounts of the suit properties. Thus, the plaintiff failed to prove his joint possession and joint ownership over the suit schedule properties, under such circumstances, plaintiff is not entitled for the equitable relief of permanent injunction against the defendants in respect of suit schedule properties. With the above observation and reasons assigned and relying on the decision referred supra, I answer addl. issue Nos.1 to 4 in the Negative.
27. ADDL. ISSUE No.5: Since suit is for partition and separate possession of 1/4th share, hence the plaintiff has valued suit and court fee paid is in accordance with law. Looking to the admitted fact of relationship between the plaintiff and defendants as brothers and sisters this court is of opinion that parties shall bear their respective costs. Hence, I answer addl. issue No.5 in the Affirmative.
36
O.S. No.9940/2006
28. ISSUE No.1 TO 3: In view of the findings on addl. issue Nos.1 to 4, issue Nos.1 to 3 does not survived for consideration. Hence, issue Nos.1 to 3 answered accordingly.
29. ISSUE No.4: In view of the findings on addl. issue Nos.1 to 5 and issue Nos.1 to 3, I proceed to pass the following:-
ORDER The suit filed by the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 27th day of September, 2021).
(Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH-74) 37 O.S. No.9940/2006 SCHEDULE 'A' PROPERTY All that piece and parcel of premises No.16/2, Promenade Road, Frazer Town. Bangalore, measuring about 55' X 210' (valued at Rs.1,00,00,000/-) and bounded on:
East by: Property No.17; West by: Property No.16; North by: Private Property; and on South by: South Road.
SCHEDULE 'B' PROPERTY All that piece and parcel of Premises No.17, Promenade Road, Frazer Town, Bangaluru, measuring about 300' X 210' (valued at Rs.1,00,00,000/-) and bounded on:
East by: Property No.18; West by: Property No.16/2; North by: Private Property; and on South by: Public Road.
SCHEDULE 'C' PROPERTY All that piece and parcel of premises No.18, Promenade Road, Frazer Town, Bangalore measuring about 150' X 210' (valued at Rs.1,00,00,000/-) and bounded on:38
O.S. No.9940/2006 East by: Private Property; West by: Property No.17; North by: Private Property; and on South by: Public Road.
SCHEDULE 'D' PROPERTY (All the movables together are valued at Rs.1,00,00,000/-) I List of Movables at No.17 Promenade Road, Fraser Town, Bangalore-5.
1. Verandah:
Cane Chairs with teak wood table. Coat hanger with mirror and side drawer. Left sede-
Cane chairs, with two teak wood table tops. One cane chair recliner.
2. Front portion in front of the dorrs a. Two armachairs b. One double seater arm chair c. One single seater withteak wood arm rests.
d. One teak wood book case, with books and cainet below filled with statues. With long glass vase, brass sough inidan antiques and chinese statuette on top. e. One teak wood cabinet, with double portion filled with glass ware. On top a venetian glass bowl. f. On either side on top of the cabinets, framed Japanese prints.
g. On either side of the door on the either side walls- framed japanese prints(Hokusai and Hiroshegi)with Satsuma wal plaques below 39 O.S. No.9940/2006 h. One table with side carving, another inlaid table. i. One book cabinet with vase on top, with rectangular prints-4Nos above.
j. One curio cabinet with glass vase on top. k. There family portraits l. One liquor cabinet with three glass decanters on top top.
m. 5 persian carpets.
n. Wood cabinets containing music records.
3. Dining room:
a.Two carved chinese carved chests. b. Wood carved baptismal font with cherubs. c. One carved chinese wood plaque. d. Small carved table with lamp on top. e. Dining table with 6 chairs f. 4 persian carpets on the floor g. Carved wood music stand with cherub h. Upright piano i. Folding table.
j. There sided glass fronted cabinet-filled with curios. All catalogued) k. Brass plaque on top of curio cabinet. l. One carpet on the floor m. One crystal chandelier in the center of the center of the dining room.
n. One sideboard, with there mirrors, containing cutlery and crockery o. One tall side board with decorated cups and saucers.
p. Two cupboards.
q. At the entrance of the dining room from the hall, three wood cabinets attached to the partition, the center cabinet filled with curios. Cutlery and crockery, side cabinet filled with carved 40 O.S. No.9940/2006 Chinese/Tibetan statutes, other side cabinet filled with Japanese Satsuma tea set. r. At the rear a wooden corner cabinet filled with ivory carvings.
s. At the rear one painting and wall mounted plaques t. Brass gong.
u. One Mughal wooden screen
4. Right Side Bedroom:
a. Carved stand, with panedled cabinet with brass hinges on the sides.
b. Book case with three divisions, with a French clock in a glass dorne on top.
c. Writing table with char, with stone and metal lamp shade.
d. Dressing table with circular mirror with chair. e. Paneled cupboard with circular mirror with chair. f. Wall backed writing table with two side bood cases. g. Paneled cupboard.
h. Carved racks for violins. I. Two beds with metal mosquito stands. j. Three persian carpets.
5. Left side bedroom:
a. Curboard b. Two teak wood faced cupboards(containing sarees) c. Children's bed.
d. Cupboard with frank mirror. e. Writing table.
f. Bed.
g. Two persian carpets.
6. Right side dressing room.
a. One large steel sage(containing legal papers, money & jewelry) c. One glass fronted cupboard (containing linen) 41 O.S. No.9940/2006 d. One wooden cupboard (Containing old files) e. One clothes rack.
f. One wooden cupboard, with wooden grille on top (containing liquor, artificiats and papers) g. One persian carpet.
7. Left side dressing room:
a. One metal safe (small) red in colour (containing jevelry) b. One wooden cupboard (containing clothes) c. One wooden bed d. Small cabinet' with carved mirror on top e. One children's cupboard (containing clothes) f. Small dressing table.
8. Left side bedroom:
a. One writing table b. One mirror fronted cupboard (containing clothes) c. One children's bed d. Two identical styled wooden cupboards (containing clothes) e. One bed.
9. Kitchen:
a. Filled with kitchen utensils.
10. Out houses:
11. Down the passage way:
a. Filled with cupboard-some containing brass artifacts.
12. Rear outhouse
13. Chest filled with carpenter's tools, and other tools.
II 42 O.S. No.9940/2006 Four extremely valuable violins, each worth about Rs.50 lakhs and are available at No.17, Promenade road, Frazer road, Bangalore III List of movables at No.18 promendae road, Fraser town, Bangalore-5.
1. Front window facing area:
Near the staircase-
a. One small bookcase (containing French books)
2. Front area:
a. One carved marble topped table. b. Two cane chairs, with table. c. Two red armachairs.
d. One persian carpet.
e. Two book cases standing floor, filled with books. f. Two small tables with slanting bookcases. g. Two long Japaness prints.
3. Inner room:
a. One wall writing table.
b. One sideboard filled with books c. One glass fronted cupboard filled with books and statues.
d. One board fronted cupboard filled with children's toys.
e. One carved cabinet filled with books.
4. Side dressing room:
a. One wooden glass topped cabinet-filled with old clothes and antique swords. b. One large wooden cupboard-meant for holding clothes, filled with old clothes, ties etc.,
5. Storage space under the wooden staircase: 43
O.S. No.9940/2006 a. Filled with porcelain vases screens. 1st floor
1. Front area:
a. The area next to the staircase-a wooden table with six rolled up carpets.
b. Three joined wooden cupboard with a minor-filled with old clothes.
c. Two glass fronted book shelves filled with art books d. One khaki covered reclining chair. e. One long double filled with books. f. Two pictures on the wall. g. One persian carpet on the floor.
2. Inner room:
a. One dressing table with chair, with tilting mirror chair.
b. Two small bookcases c. Two beds d. One wooden cabinet e. One carved chair with a leather back strap. f. Two wall pictures.
g. One persian carpet on the floor.
3. Side dressing room:
a. One small chest of drawers b. One curved topped clothes cupboard. c. One clothes rack.
IV List of movables at "Strathnairn", Ooty, Tamil Nadu: a. Entrance to the house-four flower racks.
1. Glass fronted lobby:
a. One carved wooden table.44
O.S. No.9940/2006 b. 4 cane chairs c. One long writing table with long chair. d. One card playing table with four chairs. e. One cane arm chair f. One wooden cainet.
g. 4 japanese prints.
h. Window side lined with book shelves.
2. Drawing room:
a. TV and TV table b. Reclining chair c. Glass cabinet filled with curios d. Fireplace, with two gunmental soldiesrs, and stone lamp e. Fireplace seats f. Arm chairs g. Divan h. Two snow leopardskins i. Two brass pots with stands j. Two seaters
3. Side bedroom:
a. Writing table b. Two chairs c. Glass fronted cupboard d. Two beds e. Wooden cupboard containing linen.
4. Side dressing room:
a. Two chest of drawers b. Table and chair
5. Dining room:
a. Wooden dining table-seater with 8 long backed chairs b. Well cabinet-filled with glasses and glassware.45
O.S. No.9940/2006 c. Wooden cabinet sideboards filled with crockery d. Two identical sideboards filled with crockery e. Two wall paintings.
6. Side kitchen area:
a. Two tables b. Meatsafe cupboard c. Refrigerator, icrowave
7. Kitchen and side stororoom:
a. Filled with cupboard and utensils
8. Corridor:
a. Two glass fronted cupboard filled with books.
9. Side dressing room adjacent to corridor:
a. One bed.
b. Dressing table and chair c. Chest of drawers.
10. Bed between the two corridors"
a. Two beds b. Dressing table c. Four wooden fronted cupboard, containing clothes, artificats, children's toys and books.
11. Bedroom facing main passage/corridor:
a. Wall cupboard b. Chest of drawers.
c. Two beds d. Two wooden cupboard-containing linon e. Child's bed.
f. Carpet g. Dressing table with mirror and chair
12. Side dressing room:
46
O.S. No.9940/2006 a. two clothes racks.
b. One chest of drawers with mirror c. One wooden cupboard d. One carpet.
V Safe Deposit lockers at the State Bank of Mysore, Shrungar Shopping Centre Branch, M.G. Road, Bangaluru, containing Jewelry and Silver Sets.
(Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH-74) ANNEXURES List of witness examined for the plaintiff's side:
P.W.1 - Sri.Bernard Vikram Thumboo Chetty List of documents exhibited for the plaintiff's side:
Ex.P.1 to 3 - Xerox copies of khatha extracts Ex.P.4 - Copy of P & SC No.15055/2006 List of witness examined for the defendants' side:
-NIL-
List of documents exhibited for the defendants' side:
Ex.D.1 - Certified copy of call notice under Rule 9 47 O.S. No.9940/2006 Schedule 3 Sec.146 of Corporation Act, 1949 Ex.D.2 - Certified copy of deposition of P.W.1 in O.S.No.1848/2000 Ex.D.3 - Order passed by this court in P & SC No.15055/2006 Ex.D.4 - Certified copy of order passed by the Hon'ble High Court in Probate Civil Petn.No.25/1994.
(Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH-74) 48 O.S. No.9940/2006