Karnataka High Court
Sri Dattatreya Rao vs Smt J Parvathi Bai on 19 July, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1
RFA NO. 1385 OF 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 1385 OF 2015
BETWEEN
SRI. DATTATREYA RAO,
S/O. MUNIYOJI RAO,
AGED ABOUT 60 YEARS,
RESIDING AT ARALIMARA BUS STOP
HEGGANAHALLI MAIN ROAD,
SUNKADAKATTE,
BANGALORE-560 091.
...APPELLANT
(BY SRI. K P JAYASIMHA )
AND
1. SMT J PARVATHI BAI
W/O.LATE M.MANNOJI RAO,
AGED ABOUT 68 YEARS,
2. SMT. ASHA BAI
D/O.M. MANNAJI RAO,
AGED ABOUT 43 YEARS,
3. SMT. USHA BAI
W/O.SRI. YESHWANTHA RAO,
D/O.LATE M. MANNOJI RAO,
AGED ABOUT 40 YEARS,
4. MISS. SOWMYA BAI
D/O. LATE M. MANNAJI RAO,
AGED ABOUT 32 YEARS,
5. SMT. KASTURI BAI
W/O. SRI.PRAKASH,
D/O. LATE M. MANNAJI RAO,
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RFA NO. 1385 OF 2015
6. MISS. SUNITHA BAI
D/O.LATE. M. MANNAJI RAO,
AGED ABOUT 29 YEARS,
7. MISS. HEMA
D/O. LATE M. MANNAJI RAO,
AGED ABOUT 27 YEARS,
NO.1 TO 7 ARE RESIDING AT
NO.59/1, 5TH CROSS,
MAGADI ROAD, K.P.AGRAHARA,
BANGALORE - 560 023.
8. SRI. M. KRISHNOJI RAO
S/O.LATE M. MUNNIYOJI RAO,
AGED ABOUT 48 YEARS,
PORTION OF THE 1ST FLOOR,
NO.59/1, 5TH CROSS,
MAGADI ROAD,K.P.AGRAHARA,
BANGALORE-560 023.
9. SRI. GANGARAM
S/O.LATE M. MUNNIYOJI RAO,
AGED ABOUT 53 YEARS,
BEVANAHALLI,
THONDE BHAVI HOBLI,
GOWRIBIDANUR TALUK,
KOLAR DISTRICT.
10 . SRI.C. BABU
PARTNER, MAJOR,
VIJAYA BHASKAR SWITCH BOARDS,
MANUFACTURER,
NO.56, 5TH CROSS,
MAGADI ROAD,
BANGALORE - 560 023.
11 . SRI.M. CHANDRU
PARTNER, MAJOR,
V VIJAYA BHASKAR SWITCH BOARDS,
MANUFACTURER,
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RFA NO. 1385 OF 2015
NO.56, 5TH CROSS,
MAGADI ROAD,
BANGALORE - 560 023.
12 . GANESH SHARMA
FATHERS NAME NOT KNOWN
TO THE PLAINTIFF, MAJOR,
NO.56, 5TH CROSS,
MAGADI ROAD,
BANGALORE - 560 023.
13 . SRI. KIRDARILAL
FATHERS NAME NOT KNOWN
TO THE PLAINTIFF,
MAJOR,
NO.56, 5TH CROSS,
MAGADI ROAD,
BANGALORE - 560 023.
14 . SRI. SAJJANSINGH RATHOD
FATHERS NAME NOT KNOWN
TO THE PLAITNIFF, MAJOR,
NO.56, 5TH CROSS,
MAGADI ROAD,
BANGALORE - 560 023.
15 . SRI. RAMESH
FATHERS NAME NOT KNOWN
TO THE PLAITNIFF, MAJOR,
NO.56, 5TH CROSS,
MAGADI ROAD,
BANGALORE - 560 023.
16 . SRI. PRASANNA
CARGO TOURS AND TRAVELS,
MAJOR,
NO.43, GROUND FLOOR,
MARKANDESHWARANAGARA,
BINNYPET,
BANGALORE - 560 023.
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RFA NO. 1385 OF 2015
17 . RELIANCE MOBILE
NO.43/1 , GROUND FLOOR,
MARKANDESHWARANAGARA,
BINNYPET,
BANGALORE - 560 023.
18 . MODI SALES AND AGENCY
NO.43/1 , GROUND FLOOR,
MARKANDESHWARANAGARA,
BINNYPET,
BANGALORE - 560 023.
19 . KARNATAKA FOOD AND CIVIL CORPORATION LTD
NO.43/1 , GROUND FLOOR,
MARKANDESHWARANAGARA,
BINNYPET,
BANGALORE - 560 023.
20 . SRI. MUKHESH
PROP: MARBLE CHOICE,
MAJOR,
OPP: HOMEOPATHIC HOSPITAL,
NEAR PETROL PUMP,
AGRAHARA, DASARAHALLI,
BANGALORE - 560 079.
REP. BY ITS MANAGER.
21 . KARTHIK FABS
NO.15/4-A,
5TH CROSS DOWN,
MAGADI ROAD,
K.P. AGRAHARA,
OPP: MUNESHWARA TEMPLE,
BANGALORE- 560 023.
REP BY ITS PROPRIETOR
22 . GURU ENTERPRISES
NO.15/4-A, 5TH CROSS DOWN,
MAGADI ROAD,
K.P. AGRAHARA,
OPP: MUNESHWARA TEMPLE,
BANGALORE-560 023.
REP BY ITS PROPRIETOR
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RFA NO. 1385 OF 2015
23 . KANYAKUMARI BAI
W/O. VENKOBA RAO
AGED ABOUT YEARS,
24 . MOHAN KUMAR
S/O. KRISHNOJI RAO,
AGED ABOUT YEARS,
25 . YESHWANTH RAO
S/O. KRISHNOJI RAO,
MAJOR,
RESPONDENTS NO 23 TO 25 ARE
R/O NO.42/1, FIFTH (5TH )CROSS,
7TH BLOCK,
JAYANAGARA WEST,
BANGALORE.
26 . GNANAPRAKASH
S/O. KRISHNOJI RAO,
MAJOR.
27 . KIRANKUMAR
S/O. KRISHNOJI RAO,
MAJOR,
RESPONDENTS NO 26 TO 27 ARE
R/AT NO.2631/1,
LAKSHMI NIVAS,
E BLOCK,II STAGE,
RAJAJINAGAR,
BANGALORE - 560 010.
AMENDED AS PER HON'BLE COURT ORDER DATED 07.07.2019
APPEAL AGAINST TO R8 , R9, R16 TO R19 AND
R26 TO R27 ARE DISMISSED
RESPONDENTS
(BY SRI. B K MANJUNATH ADVOCATE FOR R1AND R3 TO R7;
V/O DATED 17.04.2021 SERVICE TO R8, R9 , R16 TO R19 AND R21 TO
R27 IS HELD SUFFICIENT;
R2, R10 , R11 TO R15 AND R 20 ARE SERVED AND UNREPRESENTED )
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RFA NO. 1385 OF 2015
THIS RFA FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT
AND DECREE DATED 16.06.2015 PASSED IN O. S.NO. 6844/2007 ON THE
FILE OF THE XII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE,
DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON
19.07.2024 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is against the judgment and decree dated 16.06.2015 passed in O.S.No.6844/2007 by XII Additional City Civil and Sessions Judge, Bengaluru, thereby the suit filed by the plaintiff for partition is dismissed.
2. Parties are referred to as per their ranking before the trial Court.
3. The plaintiff has filed a suit for partition and separate possession contending that the original propositus is one M.Mannoji Rao and defendant No.1 is the wife, defendant Nos.2 to 7 are the children of the said M.Mannoji Rao. The plaintiff, the said M.Mannoji Rao, Dattatreya Rao, Krishnoji Rao and Gangaram are the four sons and Late Meera Bai, Late Pushpa Bai and Kanyakumari are the three daughters to one Muniyoji Rao. The plaintiff, the said M.Mannoji Rao, defendant Nos.8 and 9 together constituted Hindu Undivided Family. 7
RFA NO. 1385 OF 2015 The father of the plaintiff, Muniyoji Rao died on 02.09.2004 and his mother died in the year 1994. After the death of the parents, the said M.Mannoji Rao being the eldest son in the family was looking after the management of the joint family properties as kartha of the family and Ice Cream Factory under the name and style of 'Jai Ice Cream Factory' was established as a joint family business even during lifetime of their father, Muniyoji Rao. It is from the income of the land being the ancestral property at Bevanahalli and the income derived from the said factory, the said M.Mannoji Rao had acquired the suit schedule properties by playing fraud in his name and his wife. After death of said M.Mannoji Rao, defendant Nos.1 to 7 have started to look after the ice cream factory. When they were called upon to give share in the suit schedule properties, they have denied to give share. Therefore, the plaintiff filed a suit for partition and separate possession by metes and bounds of claiming his 1/4th share over the suit schedule properties against the defendants.
3.1 On service of summons, defendant Nos.1 to 7 denied the plaint averments itself. They have admitted the relationship between the parties and disputed that the suit schedule properties are the joint family properties. It is the case of defendant Nos.1 to 7 that the 8 RFA NO. 1385 OF 2015 husband of defendant No.1 and father of defendant Nos.2 to 7, Late M.Mannoji Rao had established the Jai Ice Cream factory out of his independent earnings. Further, the said M.Mannoji Rao has established the cement and liquor business and was also into real estate at Bengaluru and from his earnings, he has purchased suit schedule 'A' to 'E' properties. Therefore, it is contended that they are the self acquired properties of M.Mannoji Rao, who is the husband of defendant No.1 and father of defendant Nos.2 to 7. Further, it is the case of defendant Nos.1 to 7 that the suit schedule 'A' property was gifted in favour of M.Mannoji Rao by his grandfather J.Jyothoji Rao under the registered gift deed dated 30.01.1978 and the plaintiff cannot question the said gift deed after the lapse of 30 years. Further, it is contended that the suit filed by the defendant No.8 is offshoot for the reason that said M.Mannoji Rao had permitted defendant No.8 to stay in the portion of the property and defendant No.1 had called upon defendant No.8 to vacate the said premises by issuing a legal notice dated 08.06.2007, but he did not vacate. Therefore, defendant No.1 filed a suit for eviction against defendant No.8. Hence, defendant No.8 has ill-advised the plaintiff to file a suit against defendant Nos.1 to 7 for partition, which is a frivolous and vexatious litigation. Hence, they pray for dismissal of the suit.
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RFA NO. 1385 OF 2015
4. After considering the pleadings made by the parties, the trial court has framed the following issues:
"1) Whether plaintiff proves that the suit schedule 'A' property is an ancestral joint family property?
2) Whether plaintiff proves that the other suit schedule properties are purchased by late Mannoji Rao as kartha of the Joint Hindu Family in the name of his wife and himself?
3) Whether plaintiff further proves that the suit schedule properties are acquired by the joint family funds / business in the name of defendant No.1 and her husband Mannoji Rao with fraudulent intention to cheat the plaintiff?
4) Whether the plaintiff and defendants 1 to 9 being the members of the Joint Hindu Family are in joint possession and enjoyment of the suit schedule properties?
5) Whether the plaintiff is entitled to partition and separate possession of his 1/4th share over the suit schedule properties by metes and bounds as against defendants 1 to 9?
6) Whether the plaintiff is entitled to claim mesne profits and accounts with respect to the suit schedule properties against the defendants 1 to 7 and 9 from the date of suit to the date of partition by metes and bounds?10
RFA NO. 1385 OF 2015
7) Whether the plaintiff is entitled to relief of permanent injunction as sought against the defendants?
8) What order or decree?"
5. The plaintiff got himself examined as PW.1 and two other witnesses as PWs.2 and 3 and got marked documentary evidence as Exs.P-1 to P-22. Defendant Nos.4 and 6 got examined themselves as DWs.1 and 2 and also got marked documentary evidence as Exs.D-1 to D-30.
6. The trial Court, after appreciating the evidence on record in the background of the pleadings made by the parties, has dismissed the suit filed by the plaintiff for partition. The trial Court has held that the plaintiff has failed to prove the suit schedule properties are the ancestral and joint family properties. It is the finding of the trial Court that the suit schedule properties are not purchased out of the joint family funds and thus, the plaintiff is not entitled to the share in the properties.
7. Being aggrieved by the dismissal of the suit, the plaintiff has filed an appeal before this Court on various grounds that the trial Court has committed an error by placing reliance on Ex.D-1, the alleged gift deed dated 30.01.1978 executed by Jyothoji Rao in favour 11 RFA NO. 1385 OF 2015 of M.Mannoji Rao in respect of schedule 'A' property. Defendant Nos.1 to 7 have not produced the original gift deed. Therefore, defendant Nos.1 to 7 cannot place their claim on the gift deed. The gift deed is not proved as per Section 68 of the Indian Evidence Act, 1872 by examining any of the attesting witnesses as the gift deed is compulsorily attestable document. Further taken ground that the trial Court has placed reliance on Ex.D-19, which is the certified copy of the judgment and decree in O.S.No.7508/2007 and Ex.D-20 and D-21, which are relating to execution case No.722/2012 without appreciating the fact that the plaintiff was not a party to the said proceedings and hence, the said judgment is not binding on the plaintiff. Further, the plaintiff also raised the ground that when the plaintiff has denied the gift deed Ex.D-1, then it is the burden on defendant Nos.1 to 7 to prove the same. Further, it is the ground that just because the khatha and tax paid receipts are standing in the name of M.Mannoji Rao (the husband of defendant No.1 and father of defendant Nos.2 to 7), it cannot be said that they are his self acquired properties. Further, the trial court has wrongly discarded the evidence given by PWs.2 and
3. The trial Court has failed to appreciate the factual evidence that the said Late M.Mannoji Rao is the eldest son in the family and therefore, the ice cream factory established by him and property purchased 12 RFA NO. 1385 OF 2015 belong to the joint family. Therefore, the trial Court has committed an error in dismissing the suit. Further, it is argued that the evidence appreciated by the trial Court is perverse and contrary to law.
8. Learned counsel for the appellant/plaintiff submitted that the joint family members have established Jai Ice Cream factory and M.Mannoji Rao is the eldest son in the family and he was looking after the joint family business. Therefore, Schedule 'B' to 'F' properties are purchased from the income derived out of joint family business funds. It is further submitted that defendant Nos.1 to 7 have failed to prove the suit 'A' schedule property was gifted in favour of M.Mannoji Rao by his grandfather Jyothoji Rao. Thus, suit schedule properties are the joint family properties amenable for partition and in this regard, the trial Court has not appreciated the evidence on record correctly. Therefore, he prays to allow the appeal and decree the suit as prayed for.
9. On the other hand, learned counsel for respondent Nos.1 to 7/defendant Nos.1 to 7 submitted that Schedule 'A' property was gifted to M.Mannoji Rao by his grandfather Jyothoji Rao by a registered gift deed. Thus, the said M.Mannoji Rao has established Jai Ice Cream Factory and was running the said factory and out of the 13 RFA NO. 1385 OF 2015 income derived from the said factory had established Bar and restaurant and also cement business. Therefore, the properties are self acquired properties of M.Mannoji Rao. Those are not amenable for partition, which is rightly considered by the trial Court and dismissed the suit. Therefore, he prays to dismiss the appeal.
10. Having heard the arguments of both sides and perused the records, the following points that arise for consideration are:
"i) Whether under the facts and circumstances of the case, the plaintiff proves that Jai Ice Cream was established as a joint family business and the suit schedule properties are acquired out of joint family business funds?
ii) Whether under the facts and circumstances of the case, the plaintiff proves that the husband of defendant No.1 and father of defendant Nos.2 to 7 namely, Late M.Mannoji Rao has acquired suit schedule 'A' property by virtue of the gift deed executed by Jyothoji Rao and building properties are self acquired properties?
iii) Whether under the facts and circumstances of the case, the plaintiff is entitled to the decree of suit for partition and if so, to what relief?"14
RFA NO. 1385 OF 2015 ANALYSIS:
11. The maternal grandfather of the plaintiff by name, Jyothoji Rao executed a registered gift deed in favour of Late M.Mannoji Rao, the husband of defendant No.1 in respect of suit schedule 'A' property. The plaintiff has not challenged the said gift deed. The khatha in respect of suit schedule 'A' property acquired under gift deed was transferred in the name of Late M.Mannoji Rao during the lifetime of Jyothoji Rao. The said Jyothoji Rao died in the year 1979. The plaintiff did not raise objection to change of Katha in the name of Late M.Mannoji Rao. The said M.Mannoji Rao died in the month of March, 2002. After the death of M.Mannoji Rao, the khatha in respect of suit schedule 'A' property was changed in the name of defendant No.1 by BBMP. During the life time of M.Mannoji Rao, he had been paying the property tax till his death and after death of said M.Mannoji Rao, defendant No.1 is paying property tax as khatha holder of suit schedule 'A' property.
12. It is the undisputed fact that the plaintiff himself was separated from the joint family and started to reside separately. The plaintiff, who was examined himself as PW.1, in his cross-examination, has admitted that the said M.Mannoji Rao had established a business 15 RFA NO. 1385 OF 2015 namely, 'Pavitra Bar and Restaurant' and also established cement business in the name and style 'Shakti Traders'. There is no evidence to the effect that the effect that the plaintiff and defendant Nos.8 and 9 have participated in the business of Munnoji Rao.
13. It is revealed from the evidence on record that the said Jyothoji Rao has not only gifted the property to M.Mannoji Rao, but also executed a Will in respect of back portion of property No.59 and bequeathed the same to the sister of his mother by name Subbu Bai and khatha was also changed in her name and after her death, the daughter of said Subbu bai has got the said property by inheritance. Therefore, from the above evidence, it is proved that suit schedule properties are self acquired properties of husband of defendant no.1. The plaintiff has failed to prove that the suit schedule properties are the joint family and ancestral properties.
14. It is proved from the evidence on record that the husband of defendant No.1, M.Mannoji Rao had rented a portion of suit schedule 'A' property to defendant No.8. After the demise of M.Mannoji Rao, defendant Nos.1 to 7 have filed a suit for eviction against defendant No.8 in O.S.No.7508/2007 for possession and is decreed. The Regular First Appeal filed by defendant No.8 came to be dismissed. Therefore, 16 RFA NO. 1385 OF 2015 the contention of defendant No.1 to 7 probabalise the fact that defendant No.8 instigated the plaintiff to file a suit for partition in respect of the suit schedule properties. The back portion of suit schedule 'A' property is standing in the name Anusuya Bai, as it is gifted by Jyothoji Rao to Subbu Bai.
15. The suit schedule 'B' property consist of workshop and four houses, which was rented to tenants and defendant Nos.1 to 7 are receiving rents of the said property. It is found in the evidence of PW.1 regarding suit schedule properties that the plaintiff is stranger to the suit schedule 'B' property.
16. The husband of defendant No.1, M.Mannoji Rao has established M/s.Jai Ice Cream Company, M/s.Shakti Traders and Pavitra Bar and Restaurant in the year 1982 on his own earnings. The plaintiff has suppressed the material facts in disclosing the other business established by M.Mannoji Rao. The plaintiff has failed to prove in what way these schedule properties are the joint family and ancestral properties and there is no evidence adduced by the plaintiff to prove the same.
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RFA NO. 1385 OF 2015
17. The documents at Exs.D23 and D24 prove that M.Mannoji Rao was the proprietor of Jai Ice Cream factory, M/s. Shakti Traders and Pavitra Bar and Restaurant and the documents at Exs.D25 to D.29, which are the certificates issued by the Departments of Labour, Income Tax, Commercial Tax and Excise recognise M.Mannoji Rao as the proprietor of the said enterprises. There is no evidence placed by the plaintiff that in what way the joint family fund is created for establishment of these firms. Therefore, the plaintiff failed to prove that schedule properties are the joint family properties, which are established out of business income of the joint family. The plaintiff has not put-forth the claim of his share during the life time of M.Mannoji Rao and his parents. The plaintiff has filed a suit after the death of his parents and M.Mannoji Rao. The plaintiff was separated himself from the joint family. Therefore, M.Mannoji Rao established the above said firms on his own earnings, which is not proved by the plaintiff as they are acquired from joint family business during the life time of Munnoji Rao. During the life time of M.Mannoji Rao, he had permitted defendant No.8 to reside in the portion of schedule 'A' property and after the death of M.Mannoji Rao, defendant Nos.1 to 7 have taken recourse to evict defendant No.8 and succeeded in the suit filed for eviction. These circumstance probablise the fact that defendant No.8 18 RFA NO. 1385 OF 2015 instigated the plaintiff to file the instant suit. Therefore, the suit schedule 'B' to 'F' properties are found to be self acquired properties of M.Mannoji Rao and suit schedule 'A' property was gifted by Jyothoji Rao in favour of M.Mannoji Rao.
18. It is the case of the plaintiff that the joint family owned suit schedule 'G' and 'H' properties, but there is no survey number mentioned in the schedule of the plaint. The details of the disputed properties are vague, which cannot be identified. Therefore, as to how these properties are the joint family properties and the same are derived from the income of properties 'G' Aand 'H', is not forthcoming in the evidence. The plaintiff has also not produced the records of the suit schedule 'G' and 'H' properties to show that they are owned by the joint family of the plaintiff and the defendants.
19. The suit schedule 'B' to 'F' properties were purchased in the name of defendant No.1 through registered sale deeds dated 10.04.1977, 23.12.1982, 27.02.1991, 04.05.1978 and 10.03.1986 respectively. Therefore, these evidence prove that suit schedule 'A' to 'F' properties are self acquired properties of Late Mannoji Rao, who is husband of defendant No.1 and father of defendant Nos.2 to 7. The properties shown in the suit schedule 'G' and 'H' properties are not 19 RFA NO. 1385 OF 2015 identifiable, as there are no survey numbers mentioned and also documentary evidence are not placed before the Court to prove the facts pleaded by the plaintiff.
20. Under these circumstances, considering all these aspects and appreciating the evidence on record, the trial Court has rightly dismissed the suit for partition filed by the plaintiff. This Court, on re- appreciation of the evidence on record, as discussed above, does not find any illegality or perversity in the approach of the trial Court in dismissing the suit. Therefore, the appeal lacks merit and I answer the aforesaid points in the negative.
21. Accordingly, I proceed to pass the following:
ORDER
i) The Regular First Appeal is dismissed;
ii) The judgment and decree dated 16.06.2015 passed by XII Additional City Civil and Sessions Judge (CCH.No.27), Bengaluru in O.S.No.6844/2007, is hereby confirmed;
iii) No order as to costs;
iv) Draw the decree accordingly.
Sd/-
JUDGE
DR