Bangalore District Court
O.S./4129/2019 on 16 April, 2022
/1/ O.S.No.4129/2019
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE,
[CCH-40], BANGALORE CITY.
Dated on this the 16th day of April, 2022
-: PRESENT :-
Sri.Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO.4129/2019
Plaintiff :-
Smt.Chethana P. W/o. Late Nagaraju,
30 Years, R/o.No.171, Ramagudi Street,
Byatarayanapura, Bengaluru- 560 092.
[By Sri.Chokka Reddy, Advocate]
/ VERSUS /
Defendants :-
1. Smt. Puttalingamma W/o. Basavaiah,
D/o. K.S.Byrappa, 62 Years,
R/at Kakaramanahalli Village, Bidadi
Hobli, Ramanagara District.
2. Basavaiah S/o. Chikkalingaiah, 65
Years, R/o.Uduvigere Village, Kasaba
Hobli, Magadi Taluk, Ramanagara
District.
[Sri.A.B., advocate for D.1.
Defendant No.2 - Ex-parte]
¯¯¯¯¯
/2/ O.S.No.4129/2019
Date of Institution of the
: 12.06.2019
suit
Nature of suit : Suit for declaration,
Date of commencement of
evidence 19.02.2020
:
Date on which the
judgment is pronounced : 16.04.2022
Years Months Days
Duration taken for disposal :
02 10 04
***
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief declaration that plaintiff is entitled for ½ share in the award amount passed by K.I.A.D.B. and incentive 5 sites that may be allotted to the defendants to compensate the defendant No.1 and for declaration that plaintiff is entitled for Rs.20,000/- monthly maintenance and Rs.15,000/- as residential maintenance.
2. The brief facts of the plaintiff's case are that, :
Plaintiff is the daughter-in-law of defendants.
Her marriage has been solemnized with Nagaraju on /3/ O.S.No.4129/2019 23.11.2015 at Laxmi Chamaraja Kalyana Mantapa, Bidadi as per Hindu customs and tradition. At the time of her marriage, her parents have given 50 grams golden articles and other utensils to defendants' son Nagaraju.
After marriage, defendants have made illegal dowry demands and have also ill-treated her for bringing dowry. Therefore, she has lodged a complaint and has also filed petition against the defendants and her husband Nagaraju. Her husband died on 6.7.2017. After the death of her husband the defendants are not taking care of plaintiff.
3. It is further averred that, defendant No.1 has acquired ancestral properties i.e., Sy.No.20/4, 13/2 and house property bearing No.163/110, all are situated at Kakaramanahalli. Said properties have been acquired by KIADB and compensation of Rs.1,46,90,000/- has been awarded and same has been disbursed in the name of defendant No.1. Defendant No.1 has no absolute right /4/ O.S.No.4129/2019 in the compensation amount and the said properties are not the self-acquired properties of defendant No.1. The husband of plaintiff has got equal share in the compensation amount. Since the properties are ancestral properties plaintiff is entitled for the compensation amount. Defendant No.1 has constructed houses and same have been let out. She is receiving rents from the said houses. Defendants have got sufficient means to maintain the plaintiff. Plaintiff has no source of income. Hence, prayed for decreeing the suit.
4. In response to the suit summons, defendant No.1 appeared through her counsel and filed written statement. Though suit summons duly served upon defendant No.2, he remained absent. Hence, defendant No.2 placed ex-parte on 21.11.2019.
5. Defendant No.1 denied the claim of the plaintiff. Defendant No.1 contended that the suit of the /5/ O.S.No.4129/2019 Plaintiff is not maintainable in the present form. The land bearing Sy.Nos.20/4, 13/2 and house property bearing No.163/110 situated at Kakaramanahalli Village are her absolute properties. The said properties have been acquired by her under partition deed dated 1.8.1986. Neither the Plaintiff nor her husband have got rights over the suit schedule properties. The said properties have been acquired by KIADB and compensation amount has been disbursed. Plaintiff has no right to claim the said compensation. The suit of the Plaintiff is barred under Section 14 of the Hindu Succession Act, 1956 and Section 19 of the Hindu Adoptions and Maintenance Act, 1956. The Plaintiff ought to have paid court fee under Section 35(1) of Karnataka Court Fees and Suits Valuation Act. There is no cause of action to file the present suit. Hence, prayed for dismissal of suit.
/6/ O.S.No.4129/2019
6. On the basis of the pleadings and documents produced by both the parties, my predecessor in Office has framed following issues on 1.4.2021 :
(1) Whether the Plaintiff proves that Survey.No.20/4, 13/2 and house property bearing No.163/110 situated at Kakaramanahalli village are the joint family properties of Plaintiff and defendants.
(2) Whether the Plaintiff proves that KIADB has acquired the joint family properties?
(3) Whether the Plaintiff proves that she is entitled for the 1/2 share in the compensation awarded by the KIADB?
(4) Whether the Plaintiff proves that she is entitled for monthly maintenance of Rs.35,000/-?
(5) Whether the defendants proves that there is no cause of action to file the suit?
(6) Whether defendant No.1 proves that suit of the Plaintiff is barred under law ?
/7/ O.S.No.4129/2019 (7) Whether the court fee paid by the Plaintiff is sufficient?
(8) What order or decree?
7. Plaintiff herself examined as P.W.1 and got marked the documents Exs.P.1 to P.40. While cross- examining P.W.1, the counsel for defendant confronted zerox copies of partition deed and cheques. Witness admitted the said documents. Same have been marked as Exs.D.1 to D.4. Defendants have not adduced evidence.
8. Heard the arguments.
9. My findings to the above issues are as follows:
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Issue No.4 : In the negative.
Issue No.5 : In the affirmative.
/8/ O.S.No.4129/2019
Issue No.6 : In the affirmative.
Issue No.7 : In the negative.
Issue No.8 : As per final order, for the
following:
REASONS
10. Issues No.1 to 3 :- These issues are
interconnected to each other. Hence, in order to avoid repetition of facts and evidence, they are taken up together for common discussion.
11. Plaintiff has filed the suit against the defendants for the relief of partition in respect of compensation amount and for monthly maintenance of Rs.35,000/-.
12. The counsel for plaintiff argued that the land bearing Sy.Nos.20/4, 13/2 and house property bearing No.163/110, all are situated at Kakaramanahalli Village are the ancestral properties of defendant No.1. Plaintiff is the daughter-in-law of defendants. Husband of the plaintiff died in the year 2016 leaving behind the plaintiff /9/ O.S.No.4129/2019 as his legal heir. The said properties have been acquired by KIADB. Plaintiff is having half share in the said compensation amount. The defendants are not taking care of Plaintiff. Hence, prayed for decreeing the suit.
13. Per contra, the counsel for defendant No.1 argued that the properties acquired by KIADB are the absolute properties of defendant No.1, plaintiff herself admitted in her plaint and in her cross-examination that the said properties are absolute properties of D.W.1. defendant No.1 acquired the said properties under partition deed as per Ex.D.1. The said properties have been acquired by KIADB. Nether the plaintiff nor her husband have got rights over the said properties. The suit of the Plaintiff is barred under Section 14 of Hindu Succession Act, 1956 and Section 19 of Hindu Adoption and Maintenance Act, 1956. Hence, prayed for dismissal of suit.
/ 10 / O.S.No.4129/2019
14. In this case, relationship of plaintiff and defendants is admitted. Plaintiff in her plaint at para No.9 and 13 admitted that defendant No.1 has acquired the land bearing Sy.Nos.20/4, 13/2 and house property No.163/110, all are situated at Kakaramana Halli Village. The Plaintiff claims that the said properties are the ancestral properties of her husband Nagaraju and defendant No.1. Hence, she has got 1/2 share in the compensation amount.
15. In order to establish her case, Plaintiff herself examined as PW.1 and relied upon Exs.P.1 to P.40. The examination-in-chief of P.W.1 is nothing but replica of plaint averments. P.W.1 deposed that defendants are her in-laws. Her marriage with Nagaraju i.e., son of defendants has been solemnized on 23.11.2015 at Laxmi Chamaraja Kalyana Mantapa, Bidadi as per Hindu customs and traditions. Ex.P.1.is the marriage invitation / 11 / O.S.No.4129/2019 card. After the marriage, her husband and defendants have ill-treated her. Therefore she has lodged a complaint against her husband and defendants. Her husband died. Ex.P.2 is the Death Certificate of her husband. Ex.P.3 is the cash paid receipt, Ex.P.9 are the RTC in respect of Survey No.13/3. Ex.P.10 is the certified copy of the M.R.No.119 in respect of Sy.No.13/1. Exs.P.11 to 15 and 17 are the certified copies of Encumbrance Certificates in respect of land bearing Sy.No. 13/3. Exs.P.4 and 5 are the letters issued by AEE, KHB, Ramanagar and Form No.9. Exs.P.6, 7 and 16 are the copies of Letters. Exs.P.18 to 20 are photographs and 21 is the C.D. in respect of Exs.P.18 to 20. Ex.P.22 is the letter issued by Public Information Officer, KHB, Exs.P.23, 26 and 30 are the Awards. Ex.P.24, 27, 29 and 31 are the Affidavits sworn by Puttalingamma. Exs.P.25, 28 and 32 are the Agreements in respect of land bearing Sy.No.20/4 and 13/3 of Kakaramanahalli Village.
/ 12 / O.S.No.4129/2019 Exs.P.33 and 34 are the C/c of M.R.NO.NHC/1/1984-85 and M.R.No.27/1998-89. Ex.P.35 are the RTC in respect of Sy.No.13/3 of Kakaramanahalli Village. Exs.P.36 to 40 are the Akaarband, Pakkabook, Survey Tippani and Survey Sketches in respect of Sy.No.13 and 20 of Kakaramanahalli Village. The said Sy.Nos.13/2 and 20/4 and property bearing 163/110 of Kakaramanahalli Village are the joint family properties, the said properties have been acquired by KIADB and awards have been passed in the name of defendant No.1. Even the compensation of Rs.1,46,90,000/- has been disbursed to defendant No.1. Defendant No.1 alone has no right, title or interest over the suit schedule properties. She is also having ½ share in the said compensation amount. The defendants are not taking care of her. Hence, they are liable to pay Rs.20,000/- monthly maintenance and Rs.15,000/- as residential maintenance. Hence, prayed for decreeing the suit.
/ 13 / O.S.No.4129/2019
16. Though P.W.1 deposed that land bearing Sy.Nos.13/2, 20/4 and property bearing No.163/110 are the joint family properties, but in her cross-examination clearly admitted that defendant No.1 has acquired the property under partition deed dated 1.5.1986 - Ex.D.1. Defendant No.1, her father and her sister are the parties to the said partition deed. She has no objection for the said partition deed. She further admitted that KIADB had issued cheque to the tune of Rs.1,46,90,000/- in the name of defendant No.1 as per Exs.D.2 to D.4.
17. On perusal of the entire pleadings, oral and documentary evidence produced by both the parties, it clearly goes to show that land bearing Sy.No. 20/4, 13/2 and property bearing No.163/110 have been acquired by defendant No.1 as per Ex.D.1. The plaintiff claims that said properties are joint family properties, but defendant No.1 denied the claim of the plaintiff and has contended that said properties are the absolute properties of / 14 / O.S.No.4129/2019 Puttalingamma - defendant No.1. Though plaintiff claims that said properties are the Joint Family properties, but in her plaint and P.W.1 in her cross- examination unequivocally admitted that defendant No.1 acquired properties under partition deed Ex.D.1 and she has no objection to the said partition deed, which clearly goes to show that defendant No.1 acquired properties from her parents under a partition as per Ex. D.1.
18. It is well settled law that, admitted facts need not be proved. It is also settled laws that, admission made in the pleadings are the best admissions. In a decision reported in [2008] 7 Supreme Court Cases 85 (Goutham Sarup Vs. Leela Jetly and others) wherein the Hon'ble Apex Court held that, "Admission made in pleadings are not on par with admission made in documents and are admissible against a party making / 15 / O.S.No.4129/2019 the admission."
19. It is also settled law that, admissions made in the evidence are the best admissions. In a decision reported in [2012] 8 Supreme Court Cases 516 (Ahmedsaheb [dead] by L.Rs and others Vs. Sayyed Ismail) wherein the Hon'ble Apex Court held that, "It is needless to emphasize that admission of a party in the proceedings either in the pleadings or oral is the best evidence and same does not need any further corroboration". The said decisions are aptly applicable to the case in hand. In this case also P.W.1 in her cross- examination unequivocally admitted that defendant No.1 has acquired said properties from her parents. Once defendant No.1 acquired properties under partition it becomes her absolute properties. Neither husband of the plaintiff nor plaintiff will get rights over the said properties.
/ 16 / O.S.No.4129/2019
20. The plaintiff has utterly failed to adduce any evidence and produce the reliable document to show that the said properties are the joint family properties of plaintiff and defendants. As per Section 91 and 92 of Indian Evidence Act, documentary evidence prevails over the oral evidence. Ex.D.1 - partition deed, which clearly speaks about the ownership of defendant No.1. It is well settled law that documentary evidence prevails over the oral evidence. That, Sections 91 and 92 of Indian Evidence Act prohibits any interpretation contrary to the terms of documents and therefore, it can only be said that the said properties were acquired by defendant No.1 from her parents under the partition deed Ex.D.1 and as per partition deed she became the absolute owner. In a decision reported in ILR 2020 KAR 3667 [Smt. Sarvamangalamma and others Vs., Smt. Anusuya / 17 / O.S.No.4129/2019 Bai and others], wherein the Hon'ble High Court of Karnataka held that, "Documentary evidence prevails over the oral evidence."
21. Though the plaintiff contended that the properties are the joint family properties, but she has utterly failed to produce any documents to show that the said properties are joint family properties of plaintiffs and defendants. In a decision reported in ILR 2014 Karnataka 4491 [Thimma and others Vs. Smt.Doddamma and another] in which the Hon'ble High Court of Karnataka clearly held that : -
"In the absence of specific averments in the plaint and proof with regard to the description of joint family properties, mode and manner of acquisition, sufficient nucleus to acquire the properties, the plaintiff is not entitled for the decree of partition and separate possession."
It is further held that, / 18 / O.S.No.4129/2019 "If there is a feeble attempt in the form of statement with no evidence to show there was existence nucleus of the joint family capable of generating funds to acquire anything tangible to pay the value of the asset acquired, then there is presumption in law that the person in whose name the property was purchased is the true owner and it was not purchased on behalf of joint family members.
It is further held that, " In a suit for partition, apart from deciding the extent of share that the plaintiff or defendant would be entitled to, there has to be a specific finding as to whether the property sought to be divided are joint family properties, lest, individual right will certainly be impacted. There must be specific averments in the plaint, firstly with regard to the description of the properties, and secondly mode and manner of acquisition. There must be averments and proof about the source of acquisition if they are not in the name of original propositus, but in the name of the / 19 / O.S.No.4129/2019 other parties to the suit who is shown as co- parcener. In another words, if the properties subject matter of adjudication are shown to be in the name of any of the co-parcener, the burden is on the plaintiff to prove that though they are in the name of such individual, in reality it is owned by the joint family. "
The said decision is squarely applicable to the case in hand.
22. The plaintiff has contended that said properties are the joint family properties of plaintiff and defendants, but she has utterly failed to produce any iota of evidence to show that said properties are the joint family properties of plaintiff and defendants.
23. That, under Hindu Succession Act, 1956, "Females are granted ownership of all the properties acquired either before or after the commencement of the Act". Plaintiff do not have right to demand partition in the property of defendant No.1. On perusal of the / 20 / O.S.No.4129/2019 Ex.D.1 Partition Deed dated 1.8.1986, it reveals that the defendant No.1 had acquired the said properties from her parents side under partition as per Ex.D.1. As discussed supra the said properties are the absolute properties of defendant No.1.
24. Besides, as per Section 14 of Hindu Succession Act, 1956, "Property of a female Hindu to be her absolute property. Any property possessed by a female Hindu, whether acquired before or after the commencement of Hindu Succession Act, 1956, shall be held by her as full owner thereof and not as a limited owner". In this case also defendant No.1 has acquired the property from her parents in the year 1986 i.e, much prior to the marriage of plaintiff and deceased Nagaraj. Hence, defendant No.1 is the absolute owner of the said properties. The said properties have been acquired by KIADB as per Exs.P.23, 26 and 30 and Award has been passed in the name of defendant No.1. Even / 21 / O.S.No.4129/2019 compensation in respect of said lands have been disbursed in the name of defendant No.1 as per Exs.D.2 to D.4 in the year 2011 itself. Plaintiff being aware about all these facts, has filed the present suit on 12.6.2019 i.e., more than 8 years after the disbursement of compensation amount.
25. The plaintiff claim that the properties are the joint family properties of plaintiff and defendants. She has to prove that, the said properties are joint family properties. She cannot take the weakness of the defendants in order to get the relief from the Court. In a decision reported in 2004 (1) KCCR 662 [K.Gopala Reddy (deceased) by L.Rs Vs. Suryanarayan and others], in which the Hon'ble High Court of Karnataka held that, "Whenever party approaches the Court for the relief based on the pleadings and issues, he has to prove his case. A suit has to be decided based on merits and / 22 / O.S.No.4129/2019 demerits of the party who approach the Court. Weakness of the defendants cannot be considered as a trump card for the plaintiff." The said ratio is aptly applicable to the case in hand. The plaintiff has to establish the case on her own. She cannot take the weakness of the defendants.
26. That, Section 101 of Indian Evidence Act has clearly laid down that, "Burden of proving of fact always lies upon person who asserts the fact. Until such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine as to whether the presumption upon whom the burden lies has been able to discharge his burden. Until he arises at such conclusion he cannot proceed on the basis of weakness of other party". In this case also, the plaintiff has to prove her case on her own, she cannot take the advantages of the weakness of the defendants. In a / 23 / O.S.No.4129/2019 decision reported in (2011) 12 Supreme Court Cases 220 (Rangammal Vs. Kuppaswamy), it is clearly held that "Section 101 of Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts the fact. Until such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arises at such conclusion, he cannot proceed on the basis of weakness of the other party." In this case also the plaintiff claims that the said properties are the joint family properties. She has to prove the same. Hence, the above said decision is aptly applicable to the case in hand.
27. That, the simple definition of partition is "A division of assets owned collectively by either family / 24 / O.S.No.4129/2019 members or relatives so that each person gets a share and becomes the owner of the share allotted to him. The division is done as per the shares to which each of the members is authorized according to law". But in this case plaintiff, has miserably failed to prove that said properties are the joint family properties of plaintiff and defendants and have got equal share. The plaintiff has utterly failed to prove that the Sy.Nos.13/2, 20/4 and property bearing No.163/110 are the joint family properties of plaintiff and defendants. Plaintiff produced voluminous documents. None of the documents establish that plaintiff is having rights over land bearing Sy.No.20/4, 13/4 and house property bearing No.163/110. The plaintiff has utterly failed to prove that the suit schedule properties are the joint family properties of plaintiff and defendants. Accordingly, I answer Issues No.1 to 3 in the negative.
/ 25 / O.S.No.4129/2019
28. Issues No.4 and 6 :- Plaintiff claims
Rs.20,000/- monthly maintenance and Rs.15,000/- as residential maintenance.
29. The counsel for the plaintiff vehemently argued that the plaintiff is the daughter in law of defendants and they are liable to maintain the plaintiff and also relied upon following decisions :
(1) Judgment passed by the Hon'ble Madras High Court dated 9.4.2012 in SA No.762/1995 in case of Muthammal Vs. V.Pavananambal, wherein the Hon'ble Madras High Court held at para nos. 55 and 59 as under :
"55. As a matter of fact, Section 19 of the Hindu Adoptions and Maintenance Act, 1956 must be read with Section 22 which pertains to the right of the dependants of a deceased person to claim maintenance from heirs who have inheritted his estate by Will. Moreover, as per Section 21 (vii) of the Act, / 26 / O.S.No.4129/2019 the widowed daughter-in-law is one of the dependants of a deceased Hindu.
59. As per Section 21 of the Hindu Adoptions and Maintenance Act, 1956 the widowed daughter-in-law is the dependant of her Father-in-Law and the father of the Father-in-Law as per Clause 7 of Section 21 in certain given situations."
(2) Judgment passed by the Hon'ble Chattishgarh High Court in FAM No.109/2008 dated 14.6.2010 [Dayali Vs. Smt.Anju Bai] wherein the Hon'ble Chattishgardh High Court held at para No.17 as under :
"Considering overall evidence available on record and the fact that the claim has been made against the aged and infirm father-in-law by the claimant daughter-in- law, who is residing separately without just and sufficient cause ; she has already initiated steps for establishing her rights over coparcenary property and there is an order in her favour; there is nothing on / 27 / O.S.No.4129/2019 record to show that the appellant father-in- law is deriving income from the property which would fall in the share of the respondent daughter-in-law and the same is sufficient to pay maintenance as ordered by the Family Court, we are of the opinion that the Family Court was not justified in awarding maintenance at Rs.1200/- per month against the appellant and in favour of the respondent daughter-in-law."
(3) Judgment passed by the Punjab and Haryana High Court in FAO No.7203/2017 dated 31.5.2019 [Suman and Others Vs. Satpal] in which the Hon'ble Punjab and Haryana High Court held at para No.7 as under :
"Insofar as awarding maintenance under Sections 21 and 22 of the Act is concerned, this Court while delivering a Judgment in the case of "Nachhattar Singh Vs. Satinder Kaur and others" 2007 (4) RCR (Civil) 826 has held that the father-in-law is liable to maintain grandchildren if they are unable to maintain themselves and the / 28 / O.S.No.4129/2019 income of their mother/father is inadequate for their maintenance."
(4) AIR 1990 MP 247 in case of Sachchanand Wadhwani Vs. Smt.Nisha and Anr. Judgment dated 23.11.1989, in which the Hon'ble Madhya Pradesh High Court held at para No.16 as under :
"As regards the import of the expression 'Coparcenary Property' occuring in Section 19(2) of the 'Act', the majority view of the Full Bench in Gurudip Kaur's case, AIR 1965 Punjab 238 is that it means the property which consists of ancestral property or joint acquisition or, property thrown into the common stock and a accretions to such property. Keeping in view of the context in which the expression has been used, I am inclined to hold that the aforesaid interpretation of the term is the proper one."
30. There is no dispute regarding the ration laid down in the above said decisions, but in order to claim / 29 / O.S.No.4129/2019 maintenance under Section 19 of Hindu Adoption and Maintenance Act, plaintiff has to prove that she is unable to maintain herself and the defendants are having sufficient means. Except the oral testimony of P.W.1 there is no material on record in order to come to the conclusion that defendant No.2 is having sufficient means.
31. Though plaintiff claimed the maintenance, but there is no pleading and evidence regarding source of income of defendant No.2. Plaintiff in her plaint para No.12 pleaded and PW.1 in her examination-in-chief deposed that defendant No.2 has sold the ancestral properties, but has failed to produce iota of document in order to come to the conclusion that defendant No.2 has sold the ancestral properties and is having sufficient means to maintain the plaintiff. Except oral testimony of P.W.1 no evidence is available on record in order to come / 30 / O.S.No.4129/2019 to the conclusion that defendant No.2 is having sufficient means. Plaintiff claimed the maintenance against her father-in-law and mother-in-law i.e., defendants. As per Section 19 of Hindu Adoption and Maintenance Act, 1956, "The widowed daughter-in-law can claim maintenance against her father-in-law if she is unable to maintain herself, but the daughter-in-law cannot claim maintenance against mother-in-law." That, in a decision reported in (2008) 8 SCC 649 [Vimlaben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel and others], wherein the Hon'ble Apex Court held at para No.21 and 22 as under :
"21. Maintenance of a married wife, during subsistence of marriage, is on the husband. It is a personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. For invoking the said provision, the husband must / 31 / O.S.No.4129/2019 have a share in the property. The property in the name of the mother-in-law can neither be a subject matter of attachment nor during the life time of the husband, his personal liability to maintain his wife can be directed to be enforced against such property.
[
22. Wholly UN-contentious issues have been raised before us on behalf of Sonalben (wife). It is well settled that apparent state of affairs of state shall be taken a real state of affairs. It is not for an owner of the property to establish that it is his self-acquired property and the onus would be on the one, who pleads contra. Sonalben might be entitled to maintenance from her husband. An order of maintenance might have been passed but in view of the settled legal position, the decree, if any, must be executed against her husband and only his properties could be attached therefor but not of her mother-in-law."
32. In another decision reported in 2019 SCC OnLine MP 7048 [Jyothi and others Vs. Seema Rathore / 32 / O.S.No.4129/2019 and others] wherein the Hon'ble High Court of Madhya Pradesh held at para No.10 that, "A minute reading of Section 19 aforesaid shows that after the death of husband of respondent No.1 (Widowed daughter in law), the father in law was liable to maintain her to the extent she is unable to maintain herself out of her own earning or from other property or where she has no property of her own. In Vimal Ben (supra) it was clearly held that the obligation to maintain a daughter in law arises only when the husband dies. Such an obligation can also be met from the property of which the husband is a co- sharer. For invoking the said provision, the husband must have a share in the property. The property of mother in law is protected and is out of the purview of Section 19 when such property is in the name of the mother-in-law. The mother-in-law cannot be fastened with any legal liability to maintain her daughter in law from her own property. In this Judgment, the Apex Court / 33 / O.S.No.4129/2019 considered its previous Judgment in the case of Kirtikant D.Vadodaria v. State of Gujarat reported in (1996) 4 SCC 479 wherein it was observed that as per Section 19 of the said Act such widowed daughter in law can fall back upon the estate of her father in law." The above decisions are aptly applicable to the case in hand. The plaintiff cannot claim maintenance against her mother- in-law. Hence, the claim of the plaintiff is barred under Section 19 of Hindu Adoptions and Maintenance Act, 1956. Plaintiff has utterly failed to prove the fact that defendant No.2 has got sufficient means to maintain plaintiff. Accordingly, I answer Issues No.4 in the negative and Issue No.6 in the affirmative.
33. Issue No.7 : - Plaintiff claims half share in the compensation amount i.e., Rs.73,45,000/-. Admittedly, the compensation amount has been disbursed in the name of defendant No.1 in the year 2011 itself. Hence, the plaintiff ought to have paid the / 34 / O.S.No.4129/2019 court fee under Section 35(1) of Karnataka Court Fees and Suits Valuation Act. Hence, the court fee paid by the plaintiff is insufficient. Accordingly, I answer Issue No.7 in the negative.
34. Issue No.5 : - It is the consistent defence of the defendant No.1 that there is no cause of action to file the present suit. P.W.1 also in her cross-examination clearly admitted that, defendant No.1 has acquired the land bearing Sy.No.20/4, 13/2 and property bearing No.163/110, all are of Kakaramanahalli Village under the partition deed dated 1.8.1986 as per Ex.D.1. She further admitted that the said properties have been acquired by KIADB and compensation has been disbursed in the year 2011 itself i.e., much prior to her marriage. As on the date of marriage, there is no existence of property. Plaintiff being aware about all these facts, has filed the present suit.
/ 35 / O.S.No.4129/2019
35. The clever drafting creating illusion of cause of action are not permitted in law and a clear right to sue should be shown in plaint. The ritual of repeating a word or creation of an illusion in plaint can certainly be unrebeled and exposed by the Court. Therefore, there is no cause of action even from the plaint allegations as against the defendants. Accordingly, I answer Issue No.5 in the affirmative.
36. Issue No.8:- In view of my aforesaid discussion and findings, I proceed to pass the following Order:-
ORDER The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 16th day of April, 2022.) (KHADARSAB) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***
/ 36 / O.S.No.4129/2019
ANNEXURE
1. List of witnesses examined for plaintiff :
P.W.1 : Smt.Chethana P.
2. List of documents exhibited for plaintiff :
Ex.P.1 Marriage Invitation Card
Ex.P2 C/c death certificate of Nagaraju dated
22/12/2017
Ex.P3 C/c tax paid receipt
Ex.P4 C/c form No.9 issued by Information
Officer Bannikuppe (B) Village
Panchayath
Ex.P5 C/c form No.11(a) issued by Information
Officer Bannikuppe (B) Village
Panchayath
Ex.P6 Copy of the letter dt 21/1/2018
submitted to AEE, KHB Ramanagar
Ex.P7 Copy of the letter dt 13/8/2019
submitted to AEE, KHB Ramanagar
Ex.P8 C/c order sheet in Crl.Misc.No.106/2016
on the file of MMTC-4 Bangalore.
Ex.P9 C/c 10 RTC in respect of Sy.3/3 of
Kakaramanahalli
Ex.P10 C/c MR.No.119 dt 21/6/2008 in respect
of Sy.No.13/1/3 of Kakaramanahalli Ex.P11 to C/c 5 EC form No.16 in respect of 15 Sy.13/3 Ex.P16 Copy of letter submitted to the SLAO, KHB Bangalore-09 dt 6/2/2018 Ex.P17 C/c EC dt 29/11/2017 Ex.P18 to 3 photos 20 Ex.P21 2 CDs / 37 / O.S.No.4129/2019 Ex.P22 Letter dt 30.1.2019 issued by Public Information Officer and Asst.Revenue officer, KHB, Bangalore Ex.P23 Copy of the award in respect of land bearing Sy.No.20/4 of Kakaramanahalli village obtained under the RTI Act Ex.P24 Affidavit sworn by Puttalingamma W/o Basappa Ex.P25 Copy of agreement dt 7.3.2011 in respect of site Sy.No.20/4 Kakaramanahalli village obtained under RTI Act Ex.P26 Award passed in ಭಭ.ಸಸಸ.ವ (ರಸ.ಬ) 35/2006-07 dt 11.4.2011 obtained under RTI Act Ex.P27 Affidavit of Puttalingamma dt 11.4.2011 obtained under RTI Act Ex.P28 Copy of agreement dt 15.4.2021in respect of Sy.No.20/4 Kakaramanahalli village obtained under RTI Act Ex.P29 Affidavit of Puttalingamma dt 9.2.2011 obtained under RTI Act Ex.P30 Award passed in ಭಭ.ಸಸಸ.ವ (ರಸ.ಬ) 35/2006-07 dt 25.2.2011 obtained under RTI Act Ex.P31 Affidavit of Puttalingamma obtained under RTI Act Ex.P32 Copy of agreement in respect of Sy.No.13/3 of Kakaramanahalli village obtained under RTI Act Ex.P33 C/c MR.No.9HC1/1984-85 Ex.P34 C/c MR.No.27/1998-99 Ex.P35 C/c 43 RTCs in respect of Sy.No.13/3 of Kakaramanahalli Village, Ramanagara Taluk / 38 / O.S.No.4129/2019 Ex.P36 C/c Aakarband in respect of Sy.13 and 20 of Kakaramanahalli village, Ramanagara taluk Ex.P37 C/c Pakka book Ex.P38 C/c Survey tippany Ex.P39 C/c Survey sketch in respect of Sy.No.13 of Kakaramanahalli Village, Rama Nagara Taluk Ex.P40 C/c Survey sketch in respect of Sy.No.20 of Kakaramanahalli Village, Rama Nagara taluk
3. List of witness examined for defendant No.1 :
- NIL -
4. List of documents exhibited by defendant No.1 : -
Ex.D.1 : X/c of Partition Deed dated 1.5.1986 Ex.D.2 to 4 : Z/c of Cheques bearing No.088403, 088443 and 096984.
(KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***
/ 39 / O.S.No.4129/2019
16/04/2022
Advocate for plaintiff filed
advancement application.
Accordingly, case taken up in the
morning session.
Heard Sri.L.R., Advocate for plaintiff. For Judgment call later.
(KHADARSAB) 39th ACC&S Judge, Bangalore Judgment pronounced in the Open Court, vide separate Judgment :-
ORDER The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
/ 40 / O.S.No.4129/2019
(KHADARSAB)
XXXIX ACC& S Judge, Bangalore.