Karnataka High Court
Sri.G.R.Sundar @ Bangaraswamy Since ... vs Sri.S.N.Simha @ Subba Narasimha on 16 November, 2021
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
REGULAR FIRST APPEAL NO.1844 OF 2019
C/W
REGULAR FIRST APPEAL NOS.1181 OF 2014, 1182
OF 2014 AND 1183 OF 2014 (PAR)
IN RFA No.1844/2019:
BETWEEN:
SRI. SHIVA,
AGED ABOUT 57 YEARS,
S/O SRI L T SHIVAPPA,
R/AT No.512, 13TH CROSS,
SARAKKI VILLAGE,
BENGALURU - 560 078.
...APPELLANT
(BY SRI.BHADRINATH R., ADVOCATE)
AND:
S.N.SIMHA @ SUBBANARASIMAH,
AGED ABOUT 81 YEARS
BY LRS.,
1. SMT. S N YAMUNA,
AGED ABOUT 65 YEARS,
WIFE OF LATE S N SIMHA,
2. SRI. S N ASHOK,
AGED ABOUT 40 YEARS
2
W/O LATE S N SIMHA.
3. SRI. S N PRAMODA,
AGED ABOUT 38 YEARS,
W/O LATE S N SIMHA.
4. S N PRASHANTH,
AGED ABOUT 36 YEARS,
W/O LATE S N SIMHA,
RESPONDENT NO.1 TO 4
R/AT 16, OLD NO.236, I CROSS,
COTTON PET MAIN ROAD,
OPPOSITE TO SUDHA LODGE,
BANGALORE - 560 053.
G.R.DEVUDU @ DEVUDU NARASIMAH
BY LRS.,
5. SMT. LEELA DEVUDU,
W/O LATE G R DEVUDU @
DEVUDU NARASIMAH,
AGED ABOUT 60 YEARS,
S/O LATE G R SWAMY,
28, ANUGRAHA SARVABOMANAGARA,
BANARAGETTA ROAD,
BANGALORE - 560 076.
G R SUNDAR @ BANGARASWAMY
DEAD BY LRS.,
6. SMT. KANCHANA SUNDAR
AGED ABOUT 67 YEARS,
W/O LATE G R SUNDAR,
7. PRADEEP S GOUR,
AGED ABOUT 44 YEARS,
S/O LATE G R SUNDAR,
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8. SHARATH S GOUR,
AGED ABOUT 40 YEARS,
S/O LATE G R SUNDAR,
R6 TO 8 R/AT No.10,
KOPARNIKAS LANE,
NEW DELHI - 100 001.
9. RAMAN,
FATHER NAME NOT KNOWN
TO APPELLANT,
AGED ABOUT 62 YEARS,
NO.512, 9TH CROSS,
SARAKKINGATE,
KANAKAPURA ROAD,
BANGALORE - 560 078.
10. SMT. SARASWATHAMMA,
AGED ABOUT 66 YEARS,
W/O LATE GOPALACHARI,
NO.512, MATHRU MANDIRA,
9TH CROSS, SARAKKI GATE,
KANAKAPURA ROAD,
BANGALORE - 560 078.
...RESPONDENTS
(BY SMT.SONA VAKKUND, ADVOCATE FOR R2 TO R4
ALONG WITH
SMT.SUMATHI, ADVOCATE FOR R2 TO R4;
SMT.JYOTHI, ADVOCATE FOR
SRI.G.S.PRASANNAKUMAR, ADVOCATE FOR R-10;
R-1 AND 9 ARE SERVED;
NOTICE TO R6 TO 8 IS DISPENSED WITH VIDE
ORDER DATED 03.03.2021)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 29.04.2014 PASSED IN OS.No.7884/2002
ON THE FILE OF THE V ADDITIONAL CITY CIVIL AND
4
SESSIONS JUDGE, BENGALURU PARTLY DECREEING THE
SUIT FOR SEPARATE POSSESSION AND DECLARATION.
IN RFA No.1181/2014:
BETWEEN:
SRI.G.R.SUNDAR @ BANGARSWAMY,
SINCE DECEASED BY LRS
1(a) SMT.KANCHANA SUNDAR,
AGED ABOUT 56 YEARS,
W/O LATE G.R. SUNDAR @ BANGARSWAMY,
1(b) SRI. PRADEEP S GOUR,
AGED 36 YEARS,
S/O LATE G.R. SUNDAR @ BANGARSWAMY,
1(c) SRI. SHARAT S GOUR,
AGED 32 YEARS,
S/O LATE G.R. SUNDAR @ BANGARSWAMY,
ALL ARE RESIDING AT No.10,
KOPARNIKAS LANE,
NEW DELHI - 110 001.
...APPELLANTS
(BY SRI.LOHITH D.M, ADVOCATE AND
SRI.K.T.GURUDEVA PRASAD, ADVOCATE - ABSENT)
AND:
1. SRI.S.N.SIMHA @ SUBBA NARASIMHA,
S/O LATE G.R SWAMY,
AGED ABOUT 76 YEARS,
RESIDING AT NO.16,
OLD No.235, COTTONPET,
BANGALORE - 560 053.
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2. SRI. G.R. DEVADU @ DEVADU NARASIMHA,
AGED ABOUT 71 YEARS,
S/O LATE G.R SWAMY,
RESIDING AT No.28,
ANUGRAHA, SARVABOUMA NAGARA,
BANNERGHATTA ROAD,
BANGALORE - 560 076.
3. SRI. RAMAN,
AGED ABOUT 51 YEARS,
FATHER'S NAME NOT KNOWN,
No.512, 9TH CROSS,
SARAKKIGATE, KANAKAPURA ROAD,
BANGALORE - 560 078.
4. SMT. SARASWATHAMMA,
AGED ABOUT 59 YEARS,
W/O GOPALACHARI,
NO.512,MATHRU MANDIRA,
9TH CROSS, SARAKKIGATE,
KANAKAPURA ROAD,
BANGALORE - 560 078.
...RESPONDENTS
(BY SRI SURYA PRAKASH A.M, ADVOCATE
FOR CAVEATOR R1;
SRI.KALEEMULLAH SHARIFF, ADVOCATE
FOR CAVEATOR R2;
SMT.JYOTHI, ADVOCATE FOR
SRI.G.S.PRASANNA KUMAR, ADVOCATE FOR R4;
NOTICE TO R3 IS DISPENSED WITH
VIDE ORDER DATED 12.01.2016)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 29.04.2014 PASSED IN O.S.7884/2002 ON
THE FILE OF THE V-ADDL. CITY CIVIL JUDGE,
BENGALURU, PARTLY DECREEING THE SUIT FOR
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PARTITION AND SEPARATE POSSESSION AND
DECLARATION.
IN RFA No.1182/2014:
BETWEEN:
SRI.G.R.SUNDAR @ BANGARSWAMY,
SINCE DECEASED BY LRS
1(a) SMT.KANCHANA SUNDAR,
AGED ABOUT 56 YEARS,
W/O LATE G.R. SUNDAR @ BANGARSWAMY,
1(b) SRI. PRADEEP S GOUR,
AGED 36 YEARS,
S/O LATE G.R. SUNDAR @ BANGARSWAMY,
1(c) SRI. SHARAT S GOUR,
AGED 32 YEARS,
S/O LATE G.R. SUNDAR @ BANGARSWAMY,
ALL ARE RESIDING AT NO.10,
KOPARNIKAS LANE,
NEW DELHI - 110 001.
...APPELLANTS
(BY SRI.LOHITH D.M., ADVOCATE AND
SRI.K.T.GURUDEVA PRASAD, ADVOCATE -ABSENT)
AND:
1. SRI.S.N.SIMHA @ SUBBA NARASIMHA,
S/O LATE G.R SWAMY,
AGED ABOUT 76 YEARS,
RESIDING AT NO.16,
OLD NO.236, COTTONPET,
BANGALORE - 560 053.
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2. SRI. G.R. DEVADU @ DEVADU NARASIMHA,
AGED ABOUT 71 YEARS,
S/O LATE G.R SWAMY,
RESIDING AT NO.28,
ANUGRAHA, SARVABOUMA NAGARA,
BANNERGHATTA ROAD,
BANGALORE - 560 076.
3. SRI. RAMAN,
AGED ABOUT 51 YEARS,
FATHER'S NAME NOT KNOWN,
NO.512, 9TH CROSS,
SARAKKIGATE, KANAKAPURA ROAD,
BANGALORE - 560 078.
4. SMT. SARASWATHAMMA,
AGED ABOUT 59 YEARS,
W/O GOPALACHARI,
NO.512,MATHRU MANDIRA, 9TH CROSS,
SARAKKIGATE,KANAKAPURA ROAD,
BANGALORE - 560 078.
...RESPONDENTS
(BY SRI. SURYA PRAKASH A.M., ADVOCATE
FOR CAVEATOR R1;
SRI.KALEEMULLA SHARIFF, ADVOCATE
FOR CAVEATOR R2;
SMT.JYOTHI, ADVOCATE FOR
SRI.G.S.PRASANNA KUMAR, ADVOCATE FOR R4,-
THROUGH V.C.
NOTICE TO R3 IS DISPENSED
WITH VIDE ORDER DATED 12.01.2016)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 29.04.2014 PASSED IN O.S.7884/2002 ON
THE FILE OF THE V-ADDL. CITY CIVIL JUDGE,
BENGALURU, PARTLY DECREEING THE SUIT FOR
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PARTITION AND SEPARATE POSSESSION AND
DECLARATION.
IN RFA No.1183/2014:
BETWEEN:
SMT.SARASWATHAMMA,
AGED ABOUT 61 YEARS,
W/O LATE GOPALACHARI,
NO.512, MATHRU MANDIRA,
9TH CROSS, SARAKKI GATE,
KANAKAPURA ROAD,
BANGALORE - 560 078.
...APPELLANT
(BY SMT.JYOTHI, ADVOCATE FOR
SRI.G.S.PRASANNA KUMAR, ADVOCATE-THROUGH V.C.)
AND:
1. S.N.SIMHA @ SUBBANARASIMAH,
AGED ABOUT 81 YEARS,
SINCE DIED BY LRS.
a) SMT.S.N.YAMUNA,
AGED ABOUT 65 YEARS,
WIFE OF LATE S.N.SIMHA,
b) SRI.S.N.ASHOK,
AGED ABOUT 40 YEARS,
S/O LATE S.N.SIMHA,
c) SRI.S.N.PRAMODA,
AGED ABOUT 38 YEARS,
S/O LATE S.N.SIMHA,
d) S.N.PRASHANTH,
AGED ABOUT 36 YEARS,
S/O LATE S.N.SIMHA,
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RESPONDENT NO.1(a) TO (d) ARE
RESIDING AT 16, OLD NO.236, I CROSS,
COTTON PET MAIN ROAD,
OPPOSITE TO SUDHA LODGE,
BANGALORE - 560 053.
2. G.R. DEVADU @ DEVUDU NARASIMAH,
AGED ABOUT 77 YEARS,
S/O LATE G.R SWAMY,
SINCE DEAD BY LRS.
2(a) SMT.LEELA DEVUDU,
W/O LATE G.R.DEVUDU @ DEVUDU NARASIMAH,
AGED ABOUT 60 YEARS,
S/O LATE G.R.SWAMY,
28, ANUGRAHA, SARVABOMANAGARA,
BANNERGHATTA ROAD,
BANGALORE - 560 076.
3. G.R.SUNDAR @ BANGARASWAMY,
DEAD BY LR'S
3(a) SMT.KANCHANA SUNDAR,
AGED ABOUT 62 YEARS,
WIFE OF LATE G.R.SUNDAR,
3(b) PRADEEP S GOUR,
AGED ABOUT 44 YEARS,
SON OF LATE OF G.R.SUNDAR,
3(c) SHARATH S GOUR,
AGED ABOUT 40 YEARS,
SON OF LATE G.R.SUNDAR,
NO.10, KOPARNIKAS LANE,
NEW DELHI - 100 001.
4. RAMAN,
AGED ABOUT 58 YEARS,
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FATHER'S NAME NOT KNOWN TO APPELLANT,
NO.512, 9TH CROSS,
SARAKKIGATE, KANAKAPURA ROAD,
BANGALORE - 560 078.
...RESPONDENTS
(BY SRI.A.M.SURYA PRAKASH, ADVOCATE
FOR CAVEATOR R1(a);
SRI.KALEEMULLAH SHARIFF, ADVOCATE
FOR CAVEATOR R2(a);
SMT.SONA VAKKUND, ADVOCATE FOR R1[b TO d];
NOTICE TO R3[a TO c] AND R4 IS DISPENSED WITH
VIDE ORDER DATED 13.07.2015)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 29.04.2014 PASSED IN O.S.7884/2002 ON
THE FILE OF THE V-ADDL. CITY CIVIL JUDGE,
BENGALURU, PARTLY DECREEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION AND
DECLARATION.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The matters are set down for admission. With the consent of learned counsel appearing for the parties in all the four appeals, they are taken up for final disposal.
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2. These are the four regular first appeals filed under Section 96 of the Code of Civil Procedure. All the four appeals emanate from the same O.S.No.7884/2002.
3. The parties before the trial Court are as under:
Plaintiffs Defendants
Plaintiff No.1 Defendant No.1
Sri.S.N.Simha G.R.Sundar @ Bangarswamy
S/o G.R.Swamy since dead by Lrs.
Plaintiff No.2
Sri.G.R.Devadu Defendant No.2
S/o G.R.Swamy Sri.Raman (tenant)
Defendant No.3
Smt.Saraswathamma
- W/o Gopalachari
(got impleaded) and
represented
in the proceedings by her Power
of attorney holder her son-in-
law Sri.Shivu.
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4. For the purpose of convenience, the details are represented in the following tabular form:
Sl. RFA Filed By Original Result
No. No. suit No.
and result
1 1181/2014 LRs of 7884/2002 Suit partly
Defendant No.1 decreed in
Sri.G.R.Sundar favour of the
plaintiffs
dated
29.04.2014.
2 1182/2014 LRs of 7884/2002 Suit partly
Defendant No.1 decreed in
favour of the
plaintiffs
dated
29.04.2014.
3 1183/2014 Smt.Saraswath 7884/2002 Suit partly
amma decreed in
Defendant No.3 favour of the
plaintiffs
dated
29.04.2014.
4 1844/2019 Sri.Shiva 7884/2002 Aggrieved by
the judgment
and decree
dated
29.04.2014
(in personal
capacity) as
a purchaser
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5. In order to avoid overlapping, the parties are addressed in accordance with their rankings before the trial Court or by name and relationship with the other.
6. Earlier suit was disposed of on 11.09.2012 and the appeal preferred by the defendants in RFA Nos.108 and 132/2013 before this court came to be allowed by setting aside the Judgment and decree of the trial court and remanding the matter for fresh consideration.
7. The background of the case is regarding ownership of property bearing Sy.No.222/1 and renumbered as Sy.No.222/1B of Kengeri. It is stated to be under the ownership of one Smt.Narasamma a vacant site measuring 60ft x 40ft. She was stated to have gifted the said property at Kengeri to her grand sons namely Sri.S.N.Simha, Sri.G.R.Devadu and 14 Sri.G.R.Sundar being represented by guardian Smt.Lalithamma who was none other than the daughter of Smt.Narasamma. It is further claimed that said Smt.Lalithamma, the natural mother of the donees also purchased 12 guntas of land in Sy.No.222/1B and 31 guntas in Sy.No.227/1. She later stated to have constructed a residential house on the site that was gifted by her mother Smt.Narasamma to the children under a gift deed dated 16.05.1940 and the said house was named as 'Parnakutira'. It is stated that all the three properties namely, the house and the lands in Sy.Nos.222/1 and 222/1B were stated to have been acquired by the City Improvement Trust Board, Bengaluru. Her husband Sri.G.R.Swamy is stated to be a freedom fighter and used to come to the family occasionally and used to jailed very often because of his freedom fight prior to independence. The said Smt.Lalithamma stated to 15 have died on 22.12.1963. All the three sons namely Sri.S.N.Simha, Sri.G.R.Devadu and Sri.G.R.Sundar stated to have executed the Power of Attorney in favour of their natural father Sri.G.R.Swamy to receive compensation as a result of acquisition of the properties stated above. Sri.G.R.Swamy received the compensation and purchased a revenue site under a registered sale deed dated 05.05.1973 and later constructed three portions of properties at Sarakki Gate near Kanakapura.
8. Incidentally, the said property at Sarakki Gate was also stated to have acquired for forming Sarakki Lay-out. Later, said Sri.G.R.Swamy requested for de-notification of the said acquisition of the property at Sarakki Gate and re-conveyance of the same to him. The BDA did de-notified the said properties. Sri.G.R.Swamy let out the property to one Sri.Raman.
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9. Sri.G.R.Swamy died on 08.01.2002. Sri.G.R.Sundar - defendant No.1 before the trial Court was stated to have settled in Delhi and have come to Bengaluru to attend the ritual ceremony connected to the death of his father. On 06.11.2002, defendant No.1 - Sri.G.R.Sundar sold the entire property in favour of Smt.Saraswathamma - defendant No.3, claiming that he got the property from his father under a registered Will dated 09.09.1987.
10. The other two brothers namely Sri.S.N.Simha, Sri.G.R.Devadu issued a notice (Ex.P35) against the claim of Sri.G.R.Sundar - defendant No.1. In continuation of their objections Sri.S.N.Simha and Sri.G.R.Devadu filed original suit No.7884/2002 before the trial Court explaining chronology of events, acquisition of the properties and their vested rights as the members of the joint family 17 and also the children of Sri.G.R.Swamy. They claimed for partition of the entire property and for declaring their 2/3rd share in the said property. The said suit was filed against Sri.G.R.Sundar, S/o G.R.Swamy who had earlier sold the entire property under the registered sale deed dated 06.11.2002 as per Ex.D11. In the said suit Sri.Raman is a formal party and stated to be a tenant in the suit property and has remained exparte. In the course of the proceedings Smt.Saraswathamma who had purchased the schedule property from defendant No.1 - Sri.G.R.Sundar got herself impleaded as defendant No.3.
11. Against the pleadings of the plaintiffs, defendant No.1- Sri.G.R.Sundar denied the averments of the plaintiffs regarding claim over the schedule property and contended that there are other properties which belonged to joint family which are 18 not agitated by the plaintiffs only to deprive defendant No.1- Sri.G.R.Sundar of the schedule property in respect of which he was claiming legal and legitimate right, title and possession through a registered Will Ex.D1 executed by his father on 09.09.1987 and which came to be enforceable on the death of Sri.G.R.Swamy on 08.01.2002.
12. Insofar as defendant No.3 -
Smt.Saraswathamma is concerned, she was represented by Power of Attorney Holder Sri.Shiva in the suit, contended that her vendor Sri.G.R.Sundar - defendant No.1 has sold the schedule property under the registered sale deed at Ex.D11 for lawful consideration and she has become the absolute owner of the same. She further contended that she is a bonafide purchaser for the valuable consideration on the ground that she made all the reasonable and 19 necessary enquiries and satisfied about the title of her vendor and then purchased the schedule property.
13. Defendant No.1 besides filing the written statement also made counter claim seeking partition of the joint family properties stating that he is also entitled for the share and the plaintiffs have deliberately not furnished the details of the said joint family properties which are as under:
"Item No.1:
Out of property No.235 situated in Cottonpet, Bangalore City the middle portion measuring 43 ft. East to West, 21 ft. North to South bounded on the East by Common passage of the same number leading to the well, West by the portion of the same number occupied by the tenant Sri.G.Kumar, S/o G.Siddappa, North by Municipal Lane, South by vacant land bearing Municipal Old Door No.234, belonging to Sri.D.Rudrashetty inclusive of the premises on the Eastern side and the Western wall of the portion by the tenant Sri.B.M.Madappa.
Out of the premises No.235 (new No.279) Bhashyam Road, Cottonpet Main Road, Bangalore - 560 002, the hind 20 portion measuring approximately 24 ft. East to West and 24 ft. North to South bounded on the East by Pillappa's house, West by portion of the same premises No.235 sold to Smt.Yamunabai, North by Municipal lane and South by vacant site bearing Municipal No.234 belonging to late Sri.B.Rudrashetty.
Item No.2:
All the piece and parcel of site No.28, situated at Belekahaly Village, Begur Hobli, Bangalore Sourth Taluk, Bangalore measuring 30 ft. or 9.15 mtrs, 50 ft. 12.19 mtrs. in all totaling 139.65 sq.mtrs. and bounded on East by Road, West by Site No.27, North by Road and South by site No.41.
Item No.3:
Site No.10/A in Plot No.10 in the residential layout measuring 100 ft. x 85 ft House List Khatha No.800, Site No.108, measuring 100 ft. x 90 ft. and site No.10/3 bearing House list Khatha No.225 which are in the residential layout and are adjacent to each other and form a single plot.
Item No.4:
Gold jewellary with late Smt.Lalithamma mother of the plaintiffs and 1st defendant had left behind at the time of her death have been in possession of the 1st defendant worth of Rs.2.00 lakhs.21
Item No.5:
Gold Chain, rings worn by late G.R.Swamy the father at the time of his death are in the possession of plaintiff No.4 presently worth of Rs.1.00 lakhs."
14. Based on the relevant materials, the learned trial Judge framed the following issues:
"1. Whether the plaintiffs prove that the suit property is the joint family property of themselves and the first defendant?
2. Whether the first defendant proves that the suit property was the separate property of his father G.R.Swamy?
3. Whether the first defendant proves that this father executed the registered Will dated 9.9.1987 bequeathing the suit property in his favour?
4. Whether the plaintiffs prove that their father died intestate?22
5. Whether the plaintiffs are entitled for 2/3 relief of declaration share in the suit property?
6.What order or decree?
Addl. Issues:
1. Whether the plaintiffs prove that their father late G.R.Swamy had no right to execute the Will for the suit property as contended by them?"
15. The learned trial Judge on the basis of oral and documentary evidence available on record has partly decreed the suit of the plaintiffs. The operative portion is as under:
The suit of the plaintiffs is hereby partly decreed with costs, on the following terms:
" It is ordered and decreed declaring that the plaintiffs together are entitled for 2/3rd share in the suit schedule property by metes and bounds and for separate possession of the same.23
It is ordered and decreed by declaring that the sale deed dated 6.11.2002 executed by deceased first defendant in favour of defendant No.3 Saraswathamma is not binding on the plaintiffs in respect of their 2/3rd share.
The plaintiffs are entitled for their share and separate possession by appointing a Court Commissioner i.e., by court agency.
Draw Preliminary decree accordingly."
16. Being aggrieved by the said Judgment and decree the parties have preferred these four appeals as mentioned above.
17. Insofar as the appellants in RFA Nos.1181/2014 and 1182/2014 they are represented by an advocate Sri.K.T.Gurudeva Prasad, but the appellants and their counsel both are absent. 24
18. Smt.Jyothi, learned counsel for the appellants in RFA No.1183/2014 through VC would submit that Smt.Saraswathamma purchased the property as a bonafide purchaser for a valuable consideration. She is not bound by the claim made by the plaintiffs. After ascertaining the right, title, interest and possession of her vendor Sri.G.R.Sundar, she purchased a schedule property on 06.11.2002. She further submitted that she had faith in her son-in- law - Sri.Shiva who was authorized to represent her in the proceedings before the trial Court. However, she learnt that without her knowledge and in a concealing or fraudulent manner, her power of attorney Sri.Shiva who was also her son-in-law has got the property sold for himself under her power of attorney. She would further submit that she believed her son-in-law hoping that he would protect her interest in respect of the schedule property but he played fraud on her and 25 brought the registered sale deed into picture claiming that he had purchased the same. She would further submit that defendant No.3 never had any intention to sell the schedule property to her son-in-law nor conferred any power on him to purchase the property. Even the matrimonial relationship between her daughter and the power of attorney holder-Sri.Shiva is dissolved and that whatever the property she purchased belongs to her exclusively and she is the absolute owner of the same in exclusive possession having purchased the property bonafide for a valuable consideration. She would further submit that her son- in-law - Sri.Shiva, no where has any right, title, interest or possession over the schedule property.
19. She would further submit that defendant No.3 being cheated by her son-in-law, she had revoked the power of attorney and issued legal notice on 05.01.2019 and it was replied by said Sri.Shiva, 26 her son-in-law on 11.01.2019 stating that he is the absolute owner of the property.
20. Smt.Sona Vakkund, learned counsel for plaintiff No.1/respondents 1(b) to 1(d) in RFA No.1183/2014 submitted that they have abundant evidence to show that the suit schedule property was the joint family property of the family headed by Sri.G.R.Swamy and either Sri.G.R.Swamy or his wife Smt.Lalithamma did not sell or encumber the schedule properties during their life time. Accordingly, all the three sons were entitled for an undivided interest with their specific share of 1/3rd over the schedule properties.
21. Learned counsel would also submit that it is the Rule of law applicable to Hindus that after the death of both, the husband Sri.G.R.Swamy and his wife Smt.Lalithamma, the plaintiffs - Sri.S.N.Simha 27 and Sri.G.R.Devadu along with defendant No.1 Sri.G.R.Sundar as the sons were entitled for 1/3rd share in the total properties. It was further submitted that without having regard to the relationship and the pre-existing right of the brothers Sri.G.R.Sundar, the third brother choose to sell the schedule property unilaterally to defendant No.3- Smt.Saraswathamma claiming that the schedule property was bequeathed under a registered Will dated 09.09.1987 marked as Ex.D1. Learned counsel would further submit that the said Will marked as Ex.D1 was neither executed nor Sri.G.R.Swamy was competent to execute the Will.
22. Considering the nature of the property, the said Sri.G.R.Swamy had no exclusive right to execute the Will. Further, the said Will came into existence without the knowledge of Sri.G.R.Swamy and it is a fraudulent act of defendant No.1 and concocted document which has paved way for bringing the Will 28 that was not in existence into the picture. The said Sri.G.R.Swamy had no intention to execute the Will nor did the same. It is further submitted that the schedule property in its nature and existence after the death of Sri.G.R.Swamy and his wife Smt.Lalithamma, plaintiff Nos.1 and 2 and defendant No.1 being the children have succeeded and their claim before the trial Court was for grant of their legal and legitimate share of 2/3rd in the total properties and also partition of the same. The learned trial Judge has decreed the suit granting 2/3rd share to the plaintiffs which means 1/3rd to each of them stand intact and was declared to be a share or property of the plaintiffs.
23. Insofar as the counter claim is concerned, in the nature and context of the case, it is necessary to mention that all the four appeals are clubbed for common disposal, in the light of the said fact, the appreciation of evidence on all the material including 29 the pleadings and documents along with the position of law invariably becomes necessary to be mentioned, the absence of counsel for appellants in RFA Nos.1181 and 1182 of 2014 are taken into consideration. They are the legal representatives of defendant No.1 - Sri.G.R.Sundar who sold the property to defendant No.3 and automatically lost interest and hence, they are not represented.
24. In the whole set of circumstances, their opposition is the one, they challenged the decree of declaring 2/3rd share to be of the plaintiffs by the trial Court is bad in law and are liable to be set-aside. Further their stand of counter claim of joint family properties in respect of the properties as mentioned in paragraph 14, five items ie., Item No.(1) to Item No.(5).
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25. The suit is one for partition, separate possession and declaration and relief sought in the plaint is as under:
(i) For a preliminary decree of partition of the schedule property for the 2/3 share to the plaintiffs in the schedule property and for its separate possession;
(ii) Thereafter for a Final Decree for partition and separate possession of the plaintiffs 2/3 share in the schedule property by dividing the schedule property into three equal shares by metes and bounds;
(iii) For an enquiry of the mesne profits in the schedule property and for the 2/3 share of the plaintiffs in the mesne profits;
(iv) To award the costs of the suit and
(v) To pass all other order or orders and such other Relief or Reliefs as this Hon'ble Court deems fit and necessary, in the circumstances of the case.31
26. It is objected by defendant No.1- G.R.Sundar stating that the suit schedule property was bequeathed by father of plaintiffs and defendant No.1 in favour of defendant No.1 -G.R.Sundar under Ex.D-1 dated 9.9.1987. The father of the plaintiffs 1 and 2 and defendant died on 08.01.2002 and the Will became enforceable. It is also contended that the schedule property was sold to one Saraswathamma, W/o Gopalachari under the registered sale deed Ex.P- 21 (Ex.D-1) dated 06.11.2002. It is seen that defendant No.1-G.R.Sundar died during the pendency of the trial and his wife and sons being legal representatives came on record as D-1(a), (b) and
(c). As stated in the written statement the contention of the defendant No.1 is that plaintiffs have suppressed the nature of the schedule property and existence of other properties. According to defendant No.1 from the several properties which belong to 32 plaintiffs and defendants is in the nature of joint family properties including the suit schedule properties. As a matter of fact the defendant No.1 has enlisted several properties in paragraph 17 of the written statement which are as under:
"17. The following are the properties which have been given to the plaintiffs by late G.R.Swamy which are in their possession and enjoyment.
(a) The printing press named Vishwa Bandhu Press later changed to Sree Bharath Cottage Industries Co., (Printers, binders, educational books, publishers, note books, manufactures etc.) located at (old No.235 (W-47) New No.16, 1st Cross, Cottonpet, Bangalore -560
053.
(b) The building in which the above petition is housed as well as the residential portion in which the first plaintiff is residing along with his family.
(c) The gold jewellery which Late Smt.Laithamma mother of the plaintiffs and the 1st defendant 33 had left behind at the time of her death have been in the possession of the 1st defendant.
(d) The house No.28 Anugraha Sarvabhouma Nagar, Bannergatta Road, Bangalore-560 076 constructed out of the funds provided by late G.R.Swamy later of plaintiffs 1 and 2 and the defendant No.1 in which plaintiff No.2 is residing with his family.
(e) The gold chain, rings worn by Late G.R.Swamy father at the time of his death are in the possession of plaintiff No.2 presently.
27. And it is strongly contended the schedule properties is self acquired property of G.R.Swamy and plaintiffs 1 and 2 never contributed money or resources for the purchase of the same and G.R.Swamy had absolute power of disposal of the said property and bequeathed the same in favour of defendant No.1. At the same time the joint family properties earned out of the funds of the joint family 34 as mentioned in paragraph 17(a) to (e) have not been mentioned in the plaint rather plaintiffs have withheld the same from bringing to the notice of the court. It is in this connection in order to maintain chronology it becomes necessary to mention whether point raised by defendant has been adjudicated in accordance with law by the trial court. In support of the contention claimed in the written statement from paragraph 17(a) to (e) and the counter claim is also made by defendant No.1-G.R.Sundar in the sense by his legal representatives. The relevant paragraph seeking the relief is mentioned as 17C in the written statement as under:
"17C. These defendants with great respect submits that since these Defendants are claiming their share in the above joint family properties and these properties are valued at Rs.15,00,000/- for the purpose of Court Fee and jurisdiction and are ready to pay requisite Court Fees as per Section 35(3) of 35 the Karnataka Court Fees and Suits Valuation Act at Rs.100/-.
28. The schedule items sought for partition is stated by the legal representatives, incidentally in the cross examination. The defendant No.1 in his chief examination itself states that plaint schedule properties were self acquired property of G.R.Swamy and it was bequeathed by his father to defendant No.1- G.R.Sundar on 09.09.1987. Regarding language acquaintance and the claim of the legal representatives of defendant No.1 as stated by DW-1- Pradeep, S/o G.R.Sundar needs to be extracted in verbatim from his cross examination which is as under:
"I have not seen the properties as described in my written statement.
Question: The Plaintiff wife Smt.Yamuna Devi purchased the property situated at cottonpet, Bangalore has been purchased by her from the money given by her parents 36 house and also from the income derived from her business and it is her self acquired property. What do you say?
Answer: That has been said by the Plaintiff alone.
It is true that the second plaintiff wife Smt.Leeladevudu purchased Bannerghatta property from her money only and it is her self acquired property.
Question: The Plaintiff purchased three revenue sites at Thanisandra from his self earning from these sites are also self acquired property of the Plaintiff:
Answer: I have not seen the documents just an ear say.
I am not aware though these three sites have been acquired by the Government and no compensation has been received by the Plaintiff because these properties are revenue sites stands in the name of the original owner alone. I am not aware the Thanisandra property what I have included in my written statement in this case he has not included the Bannerghatta property, Cotton pet property and Thanisandra property and not claimed and share. It is false to suggest that because of my father knows very well these three properties are not the joint family properties, therefore not claimed any share. My date of birth is 22.09.1966. I am not aware the cotton pet 37 property has been purchased by the first Plaintiff wife in the year 1961 and in the year 1965. It is false to suggest that I have not any personal knowledge of any of the properties including family affairs. It is false to suggest that I have no any right or share in any properties mentioned in the written statement. I have not filed any counter claim in my written statement. It is false to suggest that I have filed a false affidavit and deposing falsely."
29. DW-2-H.R.Chandrashekar is examined as a person who is stated to have drafted the Will. Incidentally in the cross examination he has stated he has not drafted the Will. He admits the details of the schedule is not mentioned. He has not written as a person who has drafted the Will and he did not go to Sub-Registrar's office.
30. Incidentally, he volunteered that he himself is an experienced Advocate and if he had drafted the document he would have done it better. Thus being an Advocate he exposes himself to mean thereby he has 38 not drafted. However, he denied the suggestion that Will is concocted by Sundar who is stated be a relative and legatee under the Will.
31. DW3-Prabhavathi is stated to be one of the attestor to the Will. Incidentally she is the wife of DW2-H.R. Chandrashekar. She states that the Will dated 9-9-1987 is marked as Ex.D1 and to a question, she says that the document was blank when she signed it. The relevant question is in Kannada Language and as I am acquainted with the said Language, I am transcribing the same. The sum and substance of the question and answer is as under:
Question: Whether G.R. Swamy has signed the Will or not?
Answer: When I saw it, it was empty.
32. With all these circumstances and inconsistent stand and lack of proving the Will, it cannot be stated that the schedule properties 39 mentioned in the written statement were joint family properties. When defendants or plaintiffs claim a particular property belonged to joint family, it is also necessary to mention the identity of the property, source of purchase, details of possession, quantum or extent, the corroborating circumstances to show that the same is enjoyed in common with identity, right, title, interest and possession by the members of the family. But in this connection, no efforts are made. Hence, I do not find, there are grounds to believe that the schedule properties mentioned in the written statement have to be recorded as joint family properties to place it for disposal for partition among the children of Sri.G.R.Swamy.
33. Further, insofar as the Will is concerned, it is marked as Ex.D1. The testator of the Will is stated to be G.R.Swamy son of Subbanarasimhaiah; Date of Execution is 9-9-1987, Nature of execution is 40 registered on 9-9-1987, date of death of G.R.Swamy is 08-01-2002, when the Will is stated to have become enforceable. In this connection, the Will is stated to have been drafted by DW2- H.R.Chandrashekhar and his evidence is not at all in the manner to be that of an Advocate drafting the Will. It is elicited from him that, if he had drafted the Will it would have been in a better way and he says that he has not signed as drafted and written. Besides, he is stated to be the relative of the testator and legatee.
34. There is a serious doubt to believe that he was the scribe of the document. DW-3 is one Prabhavathi who is the wife of DW2-Chandrashekhar. She is stated to be attestor. Her cross examination reveals that she is not at all aware of the state of affairs, more particularly, when read from the point of 41 a question and answer. She admits that when she signed the document (it refers to Will) it was blank.
35. In the over all context and circumstances of the case, the defendant No.1 claim five other properties were of joint family properties. But, they have not produced the documents to show their existence or that they are the joint family properties. Insofar as Will is concerned, the original defendant No.1 contended that it was a Will by his father in his favour. However, the contents or oral evidence of DWs 2 and 3 does not support the said contentions. At the same time, the evidence of DW1-Pradeep S. Gour on contextual reading of entire oral evidence of DW1, it shows the revelation irreconcilable that plea or contention regarding joint family properties is taken for the sake of defence or plea without there being any substance in it and only to counter the claim of 42 the plaintiffs regarding 2/3rd share in the suit schedule properties. If these were to be the appreciation of the pleadings and evidence with reference to the finding of the trial court regarding the case of the plaintiffs with reference to the standing of the defendants, I have already mentioned that defendant No.1 though raised counter claim in respect of the partition, but fails to prove the existence of the properties in the capacity of the one belonging to joint family, mode of acquisition, existence and the documents supporting their say.
36. Assertion of the defendant No.1 also will have to be examined from the angle of even probability. He refers that he got the schedule properties under the Will dated 9-9-1987. But he does not have details or substantiating documents to show that the properties pleaded by him in the 43 written statement are the joint family properties or the nature of properties earned out of the joint family funds. But he wants to segregate the schedule properties from the other properties and to call it as self acquired properties of his father which is vulnerable for executing the registered Will. This inconsistent contention of the defendant No.1 also go strongly against him besides his failure to prove the written statement properties. Thus, the contention of the defendant No.1 that the schedule properties were the separate properties and he got it exclusively under the Will executed by his father fail on facts and on law as well precisely failing to prove the same in accordance with the Rules of Evidence.
37. When the schedule properties are not validly bequeathed to defendant No.1 upon the death of Sri.G.R.Swamy and Smt.Lalithamma, who are the parents of plaintiff Nos. 1 and 2 and defendant No.1, 44 it is to be inherited or succeeded by plaintiff Nos. 1 and 2 and defendant No. 1 in the ratio of 2/3: 1/3rd respectively to the plaintiff Nos.1 and 2 and defendant No.1. In the said circumstances, the recognized Rule of Law regarding alienation is, "Nemo dat quad non habet' No one can convey better than what he has. As on the date of the execution of the sale deed dated 6-11-2002, defendant No.1 had no power to execute the registered sale deed of the schedule properties in favour of defendant No.3- Saraswathamma nothing beyond 1/3rd which was his share. Thus, irrespective of the quantum or extent or description made in the sale deed, the title that deemed to have been conveyed by defendant No.1 to defendant No.3 under Ex.D11 (Ex.P21) is his 1/3rd share in the schedule properties.
45
38. The next thing for consideration would be the right, title or interest of the plaintiffs and defendant No.3-Saraswathamma to whom defendant No.1 executed the registered sale deed on 6-11-2002 in respect of the entire schedule properties. The said Saraswathamma got impleaded to the suit as defendant No.3. Here contention is that, she was the bonafide purchaser for a value and she made all the enquiries and purchased the schedule properties from defendant No.1 and the dispute between the plaintiff Nos.1 and 2 and defendant No.1 cannot play spoil sport over her right over the schedule properties.
39. Insofar as participation in the litigation is concerned, she is represented by one Shiva as the Power of Attorney Holder.
40. It is necessary to mention that property in this connection is with Saraswathamma defendant 46 No.3 who is the purchaser of the schedule properties under the registered sale deed and is the mother-in- law of one Shiva, S/o L.T.Shivappa. It is not disputed that the said power of attorney holder Shiva is the son-in-law of said Saraswathamma defendant No.3 as he married one Bhuvaneshwari, D/o Saraswathamma.
41. It appears difference grew between Saraswathamma defendant No.3 and Shiva and also in the matrimonial life between said Shiva and Bhuvaneshwari, D/o Saraswathamma whose marriage was dissolved by a decree of divorce. Thus, there appears to be hostility between Saraswathamma defendant No.3 and Shiva. In the further circumstances of the case it is also submitted that the said Shiva purchased the schedule property for himself under the registered sale deed dated 30.01.2014. The seller Saraswathamma, W/o Gopala 47 Chari is represented by power of attorney Shiva in the capacity of the seller and Shiva by himself has purchased the schedule property. Thus, the executant is Shiva in the capacity of Attorney of Saraswathamma and purchaser is also Shiva in his individual capacity.
42. RFA No.1183/2014 is the appeal filed by the Saraswathamma defendant No.3 against the Judgment and decree passed in O.S.No.7884/2002 dated 29.04.2014 wherein I.A.1/2019 filed by Shiva to come on record as appellant No.2 came to be dismissed. The order dated 04.04.2019 by this court is as under:
ORDER I.A.1/19 is filed by one Mr.Shiva under Order 22 Rule 10 CPC to come on record as appellant No.2. It is stated in the affidavit that he purchased the suit property on 48 30.01.2014 and that he is in possession and enjoyment of the suit property since the date of purchase. He is representing the appellant in the capacity of power of attorney. He is none other than the son-in-
law of the appellant. There took place mutual consent divorce between him and his wife, i.e., the daughter of the appellant viz., Bhuvaneshwari and therefore now he wants to come on record, probably because of differences that have arisen now after divorce proceedings.
The appellant Saraswathamma is present before the court and she disputes to have executed the sale deed in favour of the applicant. She also prays for permission for engaging another counsel.
In these set of circumstances if the applicant has acquired any right, title or interest by virtue of sale deed dated 30.01.2014, he can work out remedy available to him under law. This application 49 cannot be considered now. Therefore I.A.1/19 is dismissed.
43. By said order it is pleaded that she has disputed which means denied sale deed stated to have been executed by her in favour of Shiva. It is under these circumstances the contention of learned counsel Sri.R.Bhadrinath is that appeal filed by Shiva in RFA No.1844/2019 is not in a representative capacity of Saraswathamma defendant No.3. On the other hand he has filed appeal in his own capacity by virtue of registered sale deed dated 30.01.2014. The sale deed is not filed before the court. However learned counsel Sri.Badrinath made available copy of the sale deed wherein Shiva, S/o Shivappa is the purchaser and it is after purchasing said property he has filed appeal in RFA No.1844/2019 on 04.09.2019. Meanwhile it is brought to the notice of the court that earlier Shiva, 50 appellant in RFA No.1844/2019 had filed an application to come on record as impleading applicant and also replacing Saraswathamma with a contention having purchased the schedule property from Saraswathamma he virtually stands in the shoes of Saraswathamma he has to be considered as person having interest in the schedule property with all rights of Saraswathamma having purchased the schedule property. The said application is said to have been dismissed on 04.04.2019 in RFA Nos.1181, 1182 and 1183/2014. All the three applications are stated to have been rejected against which special leave petition was preferred by Shiva, S/o L.T.Shivappa. Special Leave Petition No.24135/2019 came to be dismissed on 09.08.2019.
44. In this connection without dwelling too much on misunderstanding or desirable or undesirable 51 in respect of schedule property between Saraswathamma and Shiva, it is necessary to note that Saraswathamma being defendant No.3 in the suit makes any alienation it is subject to the provisions contemplated under Section 52 of the Transfer of Property Act which reads as under:
"52. Transfer of property pending suit relating thereto:- During the [pendency] in any Court having authority [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government] of [any] suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
45. Even otherwise whether Saraswathamma or her power of attorney cannot convey interest 52 beyond the scope of Judgment and decree that is passed by the court.
46. Main principles of agency which are:
"Whatever a person can do by himself he can do it through another." "He who does an act through himself does it by another."
47. But the principle to be in line under the law of agency is that agent shall protect the interest of the principal. Because the principal/executor of power of attorney Saraswathamma defendant No.3 before the trial court has stated before this court that she has not executed registered sale deed in favour of Shiva which strongly grows doubt against the registered sale deed claimed by Shiva appellant in RFA No.1844/2019 to the effect that Saraswathamma through her power of attorney i.e., Shiva has sold the schedule property to same Shiva. Thus the act or claim of appellant is 53 that he has acted in dual capacity one as seller being represented by attorney and purchaser in his personal capacity.
48. There is another principle under law of agency wherein it is stated agent has the duty to avoid conflict of his duties and responsibilities.
49. With all that is considered the right of Saraswathamma defendant No.3 is subject to the scope and domain of the decree passed in O.S.No.7884/2002 as she stands in the shoes of her vendor, whose right is restricted to 1/3rd. The operative portion of the same is as under:
ORDER The suit of the plaintiffs is hereby partly decreed with costs, on the following terms:
It is ordered and decreed declaring that the plaintiffs together are entitled for 2/3rd share in the suit schedule property by metes and bounds and for separate possession of the same.54
It is ordered and decreed by declaring that the sale deed dated 6.11.2002 executed by deceased first defendant in favour of defendant No.3 Saraswathamma is not binding on the plaintiffs in respect of their 2/3rd share.
The plaintiffs are entitled for their share and separate possession by appointing a Court Commissioner i.e., by court agency.
Draw Preliminary decree accordingly."
50. By virtue of the rules of intestate succession or inheritance or succession simplictor the rights of the parties are properly adjudicated by learned trial Judge wherein the claim of two plaintiffs namely S.N.Simha and G.R.Devadu being sons of G.R.Swamy were allowed it invariably goes to show G.R.Sundar is entitled for 1/3rd share naturally the legal representatives of G.R.Sundar defendants 1(a) to (c) are entitled for 1/3rd and it is a matter for further proceedings under Section 54 of CPC for division of property into metes and bounds in the 55 sense 2/3rd for the plaintiffs jointly or if they choose 1/3rd for each of them and 1/3rd to G.R.Sundar.
51. In the circumstances I do not find any infirmity, illegality, impropriety and perversity in the Judgment and decree passed by trial court. Further calculation of share whether 2/3rd jointly to the plaintiffs or 1/3rd to each of the plaintiffs makes no difference.
Appeals are dismissed. No order as to costs.
Sd/-
JUDGE GH/SBN/tsn*