Bangalore District Court
Smt.R.Saraswathi vs Sri.R.Keshavan on 28 April, 2018
Govt. of Karnataka
C.R.P 67
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGEMENTS IN SUITS.
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BANGALORE
(CCH-20)
Present:
Sri.G.S.Sangreshi, B.A., LL.B.(Spl.)
XXVI Addl. City Civil & Sessions Judge
Dated this the 28th day of April, 2018.
O.S.No.25873/2012
Plaintiffs: 1. Smt.R.Saraswathi,
Aged about 70 years,
W/o Late V.Rajarathnam,
2. Sri.R.Jaganath
Aged about 50 years,
S/o Late V.Rajarathnam,
3. Smt.Shashikala,
Aged about 41 years,
D/o Late V.Rajarathnam,
4. Sri.R.Premanand,
Aged about 36 years,
S/o Late V.Rajarathnam,
All are R/a Old No.51, New
No.21, Puliyar Koil Street,
2 OS No.25873/2012
Ashok Nagar, Bengaluru-25.
[By Sri.K.T.Anand-Advocate]
Vs.
Defendants : 1. Sri.R.Keshavan
Aged about 41 years,
S/o Late V.Rajarathnam,
2. Smt.R.Mahalakshmi
Aged about 48 years,
D/o Late V.Rajarathnam,
Both are R/a Old No.51, New
No.21, Puliyar Koil Street,
Ashok Nagar, Bengaluru-25.
[D.1: By Sri. VMS-Advocate; D.2:
Present]
3 OS No.25873/2012
Date of Institution of 20.04.2012
suit:
Nature of the Suit (Suit Partition
for Pronote, Suit for
Declaration and
Possession, Suit for
Injunction, etc.):
Date of 28.08.2014
Commencement of
recording of
evidence:
Date on which the 28.04.2018
Judgment was
pronounced:
Total Duration:
Years Months Days
06 00 08
(G.S.SANGRESHI)
XXVI Addl. City Civil Judge, Mayo Hall,
Bangalore.
4 OS No.25873/2012
JUDGMENT
This is a suit filed by the plaintiffs for partition, of the suit schedule properties and divide the same between the parties, granting jointly 4/6th share or 1/6th share to each of the plaintiffs in each of the suit schedule properties, and for costs.
2. The brief facts of the plaint are that, M/s.V.Kannan, V.Balasundaram and Rajarathnam are the sons of Sri.Venkatachala Mudaliar. After death of Venkatachala Mudaliar, his widow namely Vishalakshi Ammal, along with his abovementioned sons inherited his properties. They got divided under Partition Deed dtd. 15.06.1940. Under the said partition deed, Smt.Vishalakshi Ammal was entitled to only for maintenance and whereas her sons have 5 OS No.25873/2012 partitioned all the immovable properties by meets and bounds, except one house property bearing Old No.51, New No.21, Puliyar Kovil Street, Ashoknagar, which was retained by them as joint properties each of the sons entitled to one third share in the said property. It is stated that, V.Kannan died leaving behind his family members to succeed to his estate and whereas, V.Balasundaram died unmarried and had no legal heirs to succeed to his estate. V.Rajarathnama also died intestate leaving behind his wife Smt.Saraswathi-plaintiff no.1 R.Jaganath-plaintiff no.2, Smt.Shashikala-plaintiff no.3, Premanand- Plaintiff NO.4 herein. The other two children of V.Rajarathnam are Keshavan-Defendant No.1 and R.Mahalkahsmi - Defendant. NO.2 respectively. The said Rajarathnam had not acquired any property on his own. After death of 6 OS No.25873/2012 V.Rajarathnam, the sons of V.Kannan namely K.Gopala Krishnan and Eshwar, have executed the Regd. Release Deed dtd. 29.09.1992, releasing their rights in the house property bearing old No.51 New No.21, in favour of the children of Rajarathnam, after colliding a sum of Rs.50,000/- . Hence, the children of V.Rajarathnam have become absolute joint owners of the said property which is the suit schedule-I property. It is further stated that, another property bearing No.41, Castle Street, Bangalore fell to the share of Rajarathnam. Hence, the plaintiffs and defendants have become absolute owners of the said property suit schedule-II property. Accordingly, the parties to the suit are the owners of the suit schedule -I and II Properties and they are in joint possession and enjoyment of the suit schedule properties. There is no 7 OS No.25873/2012 division of the same by metes and bounds, either partition or otherwise. It is further stated that the defendant No.1 is an unemployed and a vagrant and in a habit of creating problem where there is none. He uses all kinds of filthy languages against his mother and others. There are several number of police complaint against him. It is stated that the plaintiff no.4 is having a shop in the suit schedule-II property in the ground floor on lease basis and he is paying rent to the plaintiff No.1. But, the defendant No.1 is unnecessarily enters to his business place and causes nuisance by shouting at high pitch. In this regard the plaintiff no.1 filed a suit in OS No.25337/2012 before the CCH No.21, Mayo Hall, against the defendant No.1 seeking the relief of Permanent Injunction, which is pending consideration. The defendants are not willing to 8 OS No.25873/2012 partition the suit schedule properties amicably with the plaintiffs. Hence, the plaintiffs have filed this suit, seeking the relief of Partition, in respect of the suit schedule properties, against the defendants herein.
3. In pursuance of suit summons, the defendant Nos.1 & 2 have appeared and filed the written statement. But, the defendant No.2 remained absent after filing the written statement.
4. The first defendant has filed his written statement. The brief facts of the written statement are as follows :-
The suit is not maintainable in law or on facts and the same is liable to be dismissed. The defendant No.1 admits the relationship of the parties. The defendant No.1 admits the 9 OS No.25873/2012 averments made in paras-4 to 6 in the plaint. It is stated that, the Schedule-II Property consists of Ground, First and Second Floor and all the floors are occupied by the Tenants and the plaintiffs and defendant No.2 are enjoying the rents received from the different tenants of these shops. However, they are not paying equal share of rents to this defendant No.1. It is also stated that, the plaintiffs are deriving the rents from Advertisement Boards & Airtel Towers of prominent private companies on the Terrace Floor. This defendant has not received any share of the rents several months prior to filing of the suit. The plaintiffs are liable to pay to the defendant no.1 his legitimate share of rental income and profits realized from these shops in the suit schedule-II property. He is a T.B. and Epilepsy patient and he often needs money for 10 OS No.25873/2012 his medical treatment in Chennai and Bangalore. Due to his ill health he is not in a position to take any job and his wife who is earning is looking after the family. But none of the plaintiffs helped or supported him nor they are giving equal share in the rents. Due to the illegal act of the defendant No.2 and plaintiffs, now the defendant no.1 is living in a rental house at Neelasandra North Street. It is further stated that, when he demanded for partition and share in the rental income from the suit schedule properties, the plaintiffs have assaulted him and prevented him from entering the schedule I property. This Defendant No.1 has given complaint to the Ashoknagar Police Station. The plaintiffs have locked up all the rooms of the schedule-I property. This defendant No.1 is residing in the open space of the premises of the 11 OS No.25873/2012 schedule-I property, with no amount of privacy which is already in a dilapidated condition and about to collapse at any moment. The reference made with respect to the Agreement of Rent in favour of the plaintiff No.4 by the plaintiff no.1 is a concocted and fabricated document. He admits the plaintiff No.4 having filed the suit against him. He denied that, this defendant No.1 is not ready for an amicable partition of the suit schedule properties. It is stated that, the plaintiffs and the defendant No.2 were never interested in partition of the suit schedule properties, as they wanted to enjoy the rental income of the schedule-II Property, without giving the equal share to this defendant no.1. It is stated that, the suit is bad for partial partition, because the Plaintiffs have included only the properties which are exclusively belonged to 12 OS No.25873/2012 V.Rajarathnam and the properties which are in the name of the Plaintiff No.2 has not been included. It is stated that property bearing No.22 situated at Puliyar Koil Street, mentioned as Schedule-'A' property of the written-statement was purchased by V.Rajarathnam in the name of the Plaintiff no.2, but was acquired by the joint family fund and have been intentionally left out in the schedule of the plaint. Hence the suit is bad and not maintainable. Hence, the plaintiffs are guilty of suppression vari and suggestion falsi. The plaintiffs by misleading and by misrepresentation, filed this suit, with an ulterior motive. Hence the suit is not maintainable for partition. Therefore, the defendant No.1 has prayed for dismissal of the suit.
5. The 2nd defendant has filed her written statement, stating that, the said V.Rajarathnam 13 OS No.25873/2012 was the absolute owner of the suit schedule properties. She admits the origin or the property. It is stated that, the defendant No.1 is causing the problems in the family and because of him and his wife the mother of the defendants is suffering. They ill treat her to such an extent that, she was forced to take shelter in the house belonging to the plaintiff no.2, which has caused her to write a Will bequeathing her share in the suit schedule properties in favour of her last son Sri.R.Pramanand. As the plaintiff no.1 is aged and needs care and medical assistances, to take care of her health and medical requirement, whatever income comes from the properties are appropriated towards her needs. It is stated that, she being the daughter of Late V.Rajarathnam she is entitled to 1/6th share in the suit schedule properties and she has paid the 14 OS No.25873/2012 required court fee, towards her share. The property no.22 has been exclusively purchased by the Plaintiff No.2 out of his own income and hence other members have no right, interest or claim over the said property. The said property does not belong to the family of V.Rajarathnam and there is no joint family funds to purchase the said property. Hence, it is prayed to decree the suit.
6. On the pleadings of both parties, following issues and additional issues are framed:-
1. Whether the plaintiffs prove that the schedule properties are undivided properties of Late.V.Rajarathnam-husband of the plaintiff No.1 and father of the other plaintiffs and the defendants?15 OS No.25873/2012
2. Whether the plaintiffs and defendant no.2 have share in the suit schedule properties?
3. Whether the plaintiffs and defendants are entitled to mesne profits?
4. What order or decree?
Additional Issues
1. Whether the defendant no.1 proves that, the suit is bad for non joinder of the property bearing No.22 i.e, suit 'A' property, as contended in para-8 of his written-
statement ?
2. Whether the plaintiff and defendant no.2 are entitled for 1/6th share each in the suit schedule properties?
16 OS No.25873/2012
3. Whether the Plaintiffs and defendant No.2 are entitled for the reliefs claimed?
7. In support of plaintiffs case, Plaintiff No.1 is examined as P.W.1 and got marked 8 documents as Ex.P.1 to Ex.P.8. In support of the defendant No.1's case, the Defendant No.1 is examined as DW.1 and got marked 10 documents as per Exs.D.1 to D.10.
8. Heard the arguments.
9. For the reasons stated in the subsequent paragraphs, I answer above issues as follows:-
ISSUE No.1 :- In the Affirmative
ISSUE No.2 :- In the Affirmative
ISSUE No.3 :- In the Affirmative
Additional
ISSUE No.1 :- In the Negative
17 OS No.25873/2012
Additional
Issue No.2 :- In the Affirmative
Additional
Issue No.3 :- In the Affirmative
Issue No.4 :- As per final order
for the following:-
REASONS
10. Issue No.1:- In this suit, Schedule-I and 2 properties are sought to be partitioned among the plaintiffs and the defendants, by giving 1/6th share to each of the parties by metes and bounds. The plaintiffs submit that, the suit schedule properties are the joint family properties acquired by their father and after death of the father of Plaintiffs 2 to 4 and Defendants 1 and 2 and husband of Plaintiff No.1, they have inherited the suit schedule properties and now they are entitled to their share in the said properties.
18 OS No.25873/2012
11. The Plaintiff No.1 has given her evidence by way of chief examination by reiterating the plaint averments and also she got marked Exs.P.1 to P.8. In the cross examination PW.1 has stated that, the plaintiffs and defendants are equally entitled share in the suit schedule properties. It is also noticed from the evidence of PW.1 that, the suit schedule properties are undivided properties of the Plaintiffs and Defendants. Even the Defendant No.1 who has given his evidence by reiterating the written-statement averments, has also deposed that, after death of their father Late V.Rajarathnam the plaintiffs and the defendants became the co-owners of the suit schedule properties and they are entitled to 1/6th each share in the suit schedule properties. The Defendant No.2 who has only filed the written- 19 OS No.25873/2012 statement, has also stated in her written- statement that, the plaintiffs and the defendants 1 and 2 are entitled to 1/6th share each in the suit schedule properties. She has also claimed her 1/6th share in the suit schedule properties and she has paid the required court fee towards her share in the suit schedule properties.
12. When the defendants 1 and 2 admit that, the suit schedule properties are the undivided Joint Family properties of the Plaintiffs and defendants 1 and 2, then it can be said that, the plaintiffs proved that, the suit schedule properties are the undivided properties of late V.Rajarathnam- husband of the plaintiff no.1 and father of the plaintiffs and the defendants. Accordingly, I answer issue no.1 in the affirmative.
20 OS No.25873/2012
13.Additional issue No.1:- The defendant No.1 in his written-statement has contended that, the suit is barred for partial partition, because the plaintiffs have included only the properties which are exclusively belonged to V.Rajarathnam and the proprieties which are in the name of the plaintiff No.2 have not been included. It is further submitted by the Defendant No.2 in the written-statement that, the property bearing No.22 i.e., the suit 'A' Schedule property was purchased by V.Rajarathnam in the name of the Plaintiff No.2, but it was acquired by the Joint Family funds and the plaintiffs have intentionally left out it in the schedule of the plaint. It is stated by the Defendant No.1 that, the entire Joint family properties have not been brought into the common hotchpotch, and therefore the suit is 21 OS No.25873/2012 bad and not maintainable. On the other hand, the defendant No.2 has stated that, that the Property bearing No.22 i.e, suit 'A' property of the written-statement exclusively belonged to plaintiff No.2 who has purchased the same out of his own income. The other properties of the family including the property of defendant No.1 who are having rights and title over the same, it is further stated by defendant No.2 that the said property does not belongs to the family of V. Rajarathnam and there is no joint family funds to purchase the same and R. Jaganath is the absolute owner of the said property.
14. The plaintiffs in the plaint having stated about the said property but however, in the cross examination of Pw-1, the Pw-1 has given her evidence that it is false to state that property No.22 belonged to her Husband as it 22 OS No.25873/2012 was his self acquired property. She has stated that her son has purchased the said property out of his own earning. Further it is stated by Pw-1 in her cross examination that the said property bearing No.22 belonged to her elder son Jaganath. It is also seen from cross examination of Pw-1 that the defendant No.1 is also entitled to his common share and also the rents equally in the suit schedule properties. So also, the defendant No.1 who has reiterated the written- statement averments in his affidavit has given his evidence in the cross examination stating that, it is true to state that since his Father had not executed any will, all his legal representatives are entitled to equal share in his properties. Further, it is stated that he does not know what was the income of his Father but, he does not know that where his Father was keeping income 23 OS No.25873/2012 either in the Bank or in the house. It is further stated that, it is false to say that his Brother Jaganath was working with his uncle. Further Dw-1 admitted in his cross examination that it is true to say that since his Brother was working with his uncle, his uncle has executed the sale deed in favour of his brother on 26.02.1979 as per Ex.D.1. Again he has stated that the said amount was given by his father. But he was not the witness to the said sale transaction as he was aged 13 years. It is further stated by him that he has heard about the payment of amount by his Father in respect of Ex.D.1. It is further stated that at the time of execution of Ex.D.1, his brother was 18 years old. He further stated that written statement schedule property was purchased out of joint family funds i.e., the house rental from the suit schedule properties. 24 OS No.25873/2012 Further it is stated that it is false to say that written statement schedule property was purchased out of the income of his brother. It is also seen from cross examination of Dw-1 that the plaintiffs have not mentioned the rent amount receiving from the tenants in the affidavit. Further, it is stated by him that he admitted that he is also entitled to 1/6th share in the suit schedule properties. He also admits to have been written in the written-statement that the suit may be dismissed. Even, on perusal of Ex.D.1 and other materials, it is noticed that no such recital is found to say that the sale consideration amount was paid by Late. V. Rajarathnam - husband of plaintiff No.2 and father of other plaintiffs and defendants. As such this court also cannot say that the written statement schedule property is the joint family 25 OS No.25873/2012 property as there is no iota of evidence to prove the contention taken by the defendant No.1.
15. On perusal of the evidence of Pw-1 and Dw-1 and Ex.D.1- sale deed in respect written statement schedule property it is seen that the defendant No.1 has failed to adduce any evidence to say that the suit property bearing No.22 is the joint family property. The plaintiffs as well as the defendant No.2 have stated that the written statement schedule property bearing No.22 is the self acquired property of plaintiff No.2 and not the joint family property. However, the defendant No.1 though taken contention that this is the joint family property, has failed to prove before the court that this property is also the joint family property and therefore, the suit is bad for non-joinder of said property. According to his own contention taken 26 OS No.25873/2012 in page No.9 of his evidence, the Dw-1 has admitted that his uncle has executed Ex.D.1 in respect of written statement schedule property in favour of his brother. But, there is no evidence produced before the court to show that the sale consideration amount was paid by his father. There is also no document to say that the father of the defendant No.1, having rent amount in his account to give it to his own brother who had executed the sale deed at Ex.D.1. There is also no document to show that his father was having sufficient fund. So, I am of the opinion that there is no evidence to prove that the written statement schedule property is the joint family property and it cannot be said that the suit is bad for non-joinder of that property. Accordingly, I answer Addl. Issue No.1 in the Negative.
27 OS No.25873/2012
16. Issue No.2 & Addl. Issue No.2:- The plaintiffs as well as defendant No.2 claimed in their plaint as well as written-statement respectively that they are entitled for 1/6th share in the suit schedule properties. So also, defendant No.2 in her written-statement as well as in the cross examination has also admitted that she is entitled for 1/6th share in the suit schedule properties. As such, the defendant No.2 has paid court fee on her share. In view of the admission by the plaintiff and defendants, it is clear that they are entitled to 1/6th share in the suit schedule properties. Accordingly, I answer Issue No.2 and also Addl. Issue No.2 in the Affirmative.
17. Issue No.3:- The defendant No.1 all along has claimed that the plaintiffs are enjoying the rental income without giving share to the 28 OS No.25873/2012 defendants and as such he is entitled for arrears of rent received from the tenants of the schedule properties. This issue requires to be proved by producing evidence in a separate miscellaneous proceedings as required u/o. 20 Rule 12 of CPC hence, accordingly I answer this issue in the Affirmative.
18. Addl. Issue No.3:- Since, the plaintiffs proved that the suit schedule properties are undivided properties and they are entitled for 1/6th share in the same. It is clear that plaintiffs and defendant No.2 are entitled to 1/6th share in the suit schedule properties. Whereas, the defendant No.1 has failed to prove written statement schedule property is also the joint family property and hence the suit is bad for non-joinder of that property. In view of these 29 OS No.25873/2012 reasons and facts, I answer Addl. Issue No.3 in the Affirmative.
19.Issue No.4:- For the foregoing reasons, I proceed to pass the following :
ORDER The suit of the plaintiffs is hereby decreed.
The plaintiffs and Defendant no.2 are entitled to 1/6th share in the suit properties and put them in separate possession of 1/6th share in the suit properties by metes and bounds.
Under the circumstances, there is no order as to costs.30 OS No.25873/2012
Draw the preliminary decree
accordingly.
--
(Dictated to the Stenographer, on computer, transcript thereof, is corrected and then pronounced by me in the open court on this the 28th day of April, 2018)
--
(G.S.SANGRESHI) XXVI Addl. City Civil Judge, Mayo Hall, Bangalore.31 OS No.25873/2012
SCHEDULE - I All that piece and parcel of the House Property consisting of land and building bearing Old No.51 New No.21, situated in Puliyar Koil Street, Ashok Nagar, Division No.62, Now Bengaluru- 25, measuring East-West :35 feet and North-South : 100 feet and bounded on the:-
East by :- House No.22 belonging
to Sri.Jaganath
West by :- House belonging to
Sri.Damodhar Mudaliar;
North by :- House belonging to
Natesh Mudaliar
South by :- Road
32 OS No.25873/2012
SCHEDULE - II
All that piece and parcel of the
premises bearing Old No.38 and 39, New NO.41, Castle Street, Bengaluru and bounded on the :
East by : Richmond Road West by: Private Property North by: Castle Street South by: Richmond Road 33 OS No.25873/2012 ANNEXURE
1. List of witnesses examined for the plaintiffs/s:
P.W.1 Smt.Saraswathi.R
2. List of witnesses examined for defendant/s:
D.W.1 Sri.Keshavan
3. List of documents exhibited for plaintiffs/s:
Ex.P.1 Partition Deed dtd. 15.06.1940 Ex.P.2 Death Certificate Ex.P.3 Release Deed dtd. 29.09.1992 Exs.P.4 & 5 Tax paid receipts Ex.P.6 Kartha Certificate Ex.P.7 Tax paid Receipt Ex.P.8 Will Dtd. 04.07.2012
4. List of documents exhibited for defendant/s:
Ex.D.1 Certified copy of the Sale Deed dtd. 26.02.1979 34 OS No.25873/2012 Ex.D.2 Certified copy of the order in OS NO.26458/2013 Ex.D.3 Police Endorsement dtd.
23.02.2013
Ex.D.4 Certified copy of the Plaint,
Verifying Affidavit and
Valuation slip in OS
No.1358/2013
Ex.D.5 Certified copy of the Plaint and,
Verifying Affidavit in OS No.
25429/2013
Ex.D.6 Copy of the IA and affidavit
filed in OS No.25429/2013
Ex.D.7 Certified copy of the IA in OS
No.25429/2013
Ex.D.8 Certified copy of the Plaint,
Verifying Affidavit and
Valuation slip in OS
No.1260/2013
Ex.D.9 Photographs (2)
Ex.D.10 C.D. of the Photographs Ex.D.9.
(G.S.SANGRESHI)
XXVI Addl. City Civil Judge, Mayo Hall, Bangalore.35 OS No.25873/2012