Bangalore District Court
Sri.M.Jayanna vs Sri.M.Hanumanna on 22 February, 2018
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 22nd day of February 2018.
O.S.No.8106/2010
Plaintiffs:- 1. Sri.M.Jayanna,
S/o.late N.Muni Anjinappa,
Aged about 57 years,
R/at No.78, 3rd Main,
4th Cross, KSRTC Layout,
Chikalasandra,
Subramanyapura Post,
Bangalore - 560 061.
2. Sri.M.Linganna,
S/o.late N.Muni Anjinappa,
Aged about 55 years,
R/at No.17, Annayappa Garden,
7th 'D' Cross, Neelasandra,
Bangalore - 560 047.
(Sri.K.B.Jaganathappa, Adv.)
v.
Defendants:- 1. Sri.M.Hanumanna,
S/o.late N.Muni Anjinappa,
Aged about 59 years,
R/at No.26, Swathi Road,
Shanthi Nagar,
Bangalore - 560 027.
2. Sri.Rajanna,
S/o.late N.Muni Anjinappa,
Aged about 53 years,
R/at No.26, Swathi Road,
Judgement
2 O.S.No.8106/2010
Shanthi Nagar,
Bangalore - 560 027.
3. Kumari M.Kanthamma,
D/o. late N.Muni Anjinappa,
Aged about 48 years,
R/at No.34,
C/o.Sharada Shakthi Ashrama,
Mallathahalli Main Road,
Mallathahalli,
Bangalore - 560 056.
4. Smt.M.Shanthamma,
D/o.late N.Muni Anjinappa,
Aged about 45 years,
R/at No.5, Swathi Road,
Shanthi Nagar,
Bangalore - 560 027.
(D1 & D2 - By Sri.Purushotham.G., Adv.
D3 & D4 - By Sri.N.S.Viswanatha, Adv.)
Date of institution of the suit : 23.11.2010
Nature of the suit : Partition & Mesne Profits
Date of commencement of : 19.11.2011
Recording of the evidence
Date on which the Judgment : 22.02.2018
was pronounced
Total Duration : Years Months Days
07 02 29
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Judgement
3 O.S.No.8106/2010
JUDGEMENT
The plaintiffs have filed the above suit for partition, mesne profits and costs.
2. The plaintiffs' case in brief as under:-
Plaintiff nos.1 and 2, defendant nos.1 to 4 and deceased M.Shankarappa are the children of deceased N.Muni Anjinappa and Smt.Akka Bylamma. Plaintiffs and defendants constitute Hindu Joint Family. Said N.Muni Anjinappa died intestate on 26.06.1995, leaving behind his wife and children as his legal heirs. Said M.Shankarappa died intestate on 05.10.2002.
Subsequently, Smt.Akka Bylamma died intestate on 13.09.2006, leaving behind plaintiffs and defendants as her legal heirs to succeed to her estate. At a partition between plaintiffs' father and his brothers, Item nos.1 and 2 of the suit schedule properties had fallen to the share of plaintiffs' father vide., registered Partition Deed dated 22.02.1949. Hence, Item nos.1 and 2 of the suit schedule properties are ancestral properties. Plaintiffs' father had purchased Item nos.3 to 5 of the suit schedule properties in the name of his wife and daughters i.e., Smt.Akka Bylamma, Smt.Shanthamma and Kum.Kanthamma respectively. Item nos.3 to 5 of the suit schedule properties were put into common hotch- potch and said properties are the joint family properties of the plaintiffs and defendants herein. The daughters are entitled for Judgement 4 O.S.No.8106/2010 notional share in Item nos.1 and 2 of the suit schedule properties. The plaintiffs are entitled for 1/5th share in Item nos.1 and 2 of the suit schedule properties and 1/6th share in Item nos.3 to 5 of the suit schedule properties. Due to differences of opinion among the family members, the plaintiffs demanded for partition but, the defendants failed to partition the suit properties. The defendant no.1 is managing the joint family properties and as such, he is appropriating all the rental income derived from Item no.2 of the suit schedule property and he is not accounting for the same. Hence, the defendants are liable to pay mesne profits to the plaintiffs herein. Hence, the plaintiffs have filed the above suit.
3. In response to the suit summons, defendant nos.1 & 2, and defendant nos.3 & 4 have appeared through their respective counsels. The defendant nos.1 and 2 have filed common written statement before this court. The defendant nos.3 and 4 have filed separate written statements before this court. The defendant nos.1 to 4 in their written statement admit the relationship between the parties and death of plaintiffs' parents and M.Shankarappa. Further, the defendant nos.1 and 2 in their written statement admit that all the suit schedule properties are joint family properties. Further, defendant nos.1 and 2 in their written statement have contended that plaintiffs' mother was Judgement 5 O.S.No.8106/2010 managing Item nos.1 and 2 of the suit schedule properties during her lifetime and after her death, defendant no.1 occupied 1st floor in Item no.2 of the suit schedule property and defendant no.2 occupied ground floor in Item no.2 of the suit schedule property and three shops are let out for rent in Item no.2 of the suit schedule property, in all for rent of Rs.4500/-. Further, defendant no.1 has spent Rs.3,50,000/- towards medical treatment of his mother and has developed Item no.1 of the suit schedule property by investing Rs.3,00,000/- and has grown sapota and mango trees in Item no.1 of the suit schedule property and also engaged labourers for maintaining Item no.1 of the suit schedule property by paying Rs.3500/- as salary to the said labourer. The rent collected from the shops in Item no.2 of the suit schedule property are utilized for payment of salary to the labourer, who is looking after Item no.1 of the suit schedule property. Further, defendant no.1 has stated that he has spent Rs.3,00,000/- for marriage of defendant no.4 and has borrowed Rs.8,00,000/- from the relatives and friends for development of Item no.1 of the suit schedule property and marriage of defendant no.4 and must be taken into account at the time of partition. Hence, prayed that suit may be dismissed with costs.
4. The defendant no.3 in her written statement has admitted the relationship between the parties. Further, defendant Judgement 6 O.S.No.8106/2010 no.3 admits that N.Muni Anjinappa and Smt.Akka Bylamma died intestate leaving behind plaintiffs and defendants as their legal heirs. Further, defendant no.3 admits that Item nos.1 and 2 of the suit schedule properties are joint family properties. Further, defendant no.3 has denied the averment that defendant nos.3 and 4 are not coparceners of joint family and they are not entitle for equal share in Item nos.1 and 2 of the suit schedule properties. The defendant no.3 is a spinster, sanyasi and devotee of Sri Ramakrishna Mutt. Item no.3 of the suit schedule property is the exclusive property of plaintiffs' mother and she had permitted defendant no.3 to establish a prayer centre of Sri Ramakrishna Mutt in Item no.3 of the suit schedule property. The devotees have contributed for erection and construction of the Ashrama in Item no.3 of the suit schedule property and construction was completed in the year 1998 and defendant no.3 constituted a Trust by name of Sri Sharada Shakthi Ashram and defendant no.3 is also one of the Trustees of said Ashrama. Smt.Akka Bylamma intended to gift Item no.3 of the suit schedule property but, due to unavoidable circumstances could not execute Gift Deed in favour of defendant no.3. Hence, Item no.3 of the suit schedule property cannot be partitioned. Item no.5 of the suit schedule property is the exclusive property of defendant no.3 and she has purchased the said property from Judgement 7 O.S.No.8106/2010 BDA from out of her own funds. Item no.4 of the suit schedule property is the exclusive property of defendant no.4 herein. The defendant no.3 is also entitled for equal share in Item nos.1 and 2 of the suit schedule properties. Hence, prayed that suit may be partly decreed with respect to Item nos.1 and 2 of the suit schedule properties and dismissed with respect to Item nos.3 to 5 of the suit schedule properties.
5. The defendant no.4 in her written statement admits the relationship between the parties. The defendant no.4 has contended that Item no.4 of the suit schedule property is her exclusive property and she has purchased the said property from out of her own funds. The defendant no.4 contended that Item nos.1 to 3 of the suit schedule properties are ancestral properties. The defendant no.4 has contended that she is entitle for equal share in Item nos.1 to 3 of the suit schedule properties. Hence, prayed that suit may be dismissed with respect to Item no.4 of the suit schedule property.
6. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether the plaintiffs prove that, suit schedule properties are joint family properties?
Judgement 8 O.S.No.8106/2010
2. Whether the plaintiffs are entitle for reliefs as sought for?
3. What order or decree?
ADDITIONAL ISSUES
1. Whether defendant No.3 proves that Item No.5 of the suit schedule property is her self acquired property?
2. Whether defendant No.4 proves that Item No.4 of suit schedule property is her self acquired property?
7. To prove the case of the plaintiffs, plaintiff no.2 examined himself as PW-1 and got marked Ex.P1 to P8. The defendant nos.1 to 4 examined as DWs.1 to 4 and got marked Ex.D1 to D86.
8. Heard arguments. The learned counsel for the plaintiffs has relied upon the following citations:
1. 2007 (6) AIR Kar R 501, in the case of Sugalabai and etc., v. Gundappa Adiveppa Maradi and others.
2. 2011 SAR (Civil) 537, in the case of Mrityunjoy Sett v. Jadunath Basak (D) by Lrs.
3. 2013 SAR (Civil) 851, in the case of Vathsala Manickavasagam and others v.
N.Ganesan and another.
Judgement 9 O.S.No.8106/2010 The learned counsel for the defendant nos.3 and 4 has relied upon the following citations:
1. AIR 1969 Supreme Court 1076, in the case of Mudigowda Gowdappa Sankh and others v. Ramachandra Revgowda Sankh (dead) by his legal representatives and another.
2. (1994) 4 Supreme Court Cases 294, in the case of Kenchegowda (since deceased) by legal representatives v. Siddegowda @ Motegowda.
3. AIR 2003 Supreme Court 3800, in the case of D.S.Lakshmaiah and another v. L.Balalsubramanyam and another.
4. AIR 2009 Supreme Court 2561, in the case of Gangamma etc. v G.Nagarathnamma and others etc.
5. Mysore Law Journal 1971(2) 619, in the case of Shrinivas Ramachandra Nadig and others v. Vishnu Nagesh Nadig and others.
6. 2004(1) KCCR 662, in the case of K.Gopala Reddy (deceased) by LRs. v. Suryanarayana and others.
7. AIR 2004 KARNATAKA 479, in the case of T.S.Subbaraju v. T.A.Shivarama Setty and others.
8. AIR 2004 JHARKHAND 44, in the case of Suresh Mahto and another v. Sant Kumar Mahto.
Judgement 10 O.S.No.8106/2010
9. AIR 2007 GAUHATI 20, in the case of Uttam Chand Kothari v. Gauri Shankar Jalan and others.
10. AIR 2016 Supreme Court 769, in the case of Prakash and others v. Phulavati and others.
11. AIR 2010 KARNATAKA 27, in the case of Miss.R.Kantha d/o.Doddaramaiah Reddy v. Union of India and another.
12. AIR 2008 MADRAS 250, in the case of Smt.Bagirathi and others v.
S.Manivanan and another.
9. My findings on the above said issues are as follows:-
Issue No.1 :- Partly in the Affirmative. Issue No.2 :- Partly in the Affirmative. Addl. Issue No.1 :- In the Affirmative. Addl. Issue No.2 :- In the Affirmative.
Issue No.3 :- As per final order.
for the following:-
REASONS
10. Issue No.1, Additional Issue Nos.1 & 2:- These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
PW-1 in his examination-in-chief has stated that plaintiffs, defendants and M.Shankarappa are the children of N.Muni Anjinappa and Smt.Akka Bylamma. Further, has stated that N.Muni Anjinappa died intestate on 26.06.1995, Smt.Akka Judgement 11 O.S.No.8106/2010 Bylamma died intestate on 13.09.2006 and M.Shankarappa died intestate on 05.10.2002. PW-1 has produced Death Certificate of N.Munianjanappa, Smt.Akka Bylamma and M.Shankarappa at Ex.P3 to P5. Ex.P3 to P5 are marked without any objection and admissible in evidence. The defendant nos.1 to 4 in their written statements admit the relationship between the parties. Further, defendant nos.1 to 4 in their written statements admit that N.Muni Anjinappa, Smt.Akka Bylamma and M.Shankarappa died intestate on 26.06.1995, 13.09.2006 and 05.10.2002 respectively. Death Certificates produced at Ex.P3 to P5, clearly corroborates death of N.Muni Anjinappa, Smt.Akka Bylamma and M.Shankarappa. There is no dispute regarding relationship between the parties and intestate death of N.Muni Anjinappa, Smt.Akka Bylamma and M.Shankarappa on 26.06.1995, 13.09.2006 and 05.10.2002 respectively.
11. PW-1 in his evidence has stated that plaintiffs and defendants are Hindus and they are governed by Hindu Mithakshara School and they constitute Hindu Undivided Joint Family. The defendant nos.1 to 4 in their written statements admit the above said facts.
12. The suit schedule properties consists Item nos.1 to 5. PW-1 in his examination-in-chief has stated that there was Judgement 12 O.S.No.8106/2010 partition between plaintiffs' father and his brothers vide., Partition Deed dated 22.02.1949 and as per said Partition Deed, Item nos.1 and 2 of the suit schedule properties had fallen to the share of plaintiffs' father and Item nos.1 and 2 of the suit schedule properties are ancestral properties. The defendant nos.1 to 4 in their written statements admit that Item nos.1 and 2 of the suit schedule properties are ancestral properties and plaintiffs' father succeeded to the said properties vide., registered Partition Deed dated 22.02.1949. More over, DWs.1 to 4 in their cross- examination also admit that Item nos.1 and 2 of the suit schedule properties are ancestral properties. Advocate for defendant nos.3 and 4 argued that plaintiffs have not produced the registered Partition Deed dated 22.02.1949 before this court and no document is produced by the plaintiffs to show that Item nos.1 and 2 of the suit schedule properties are ancestral properties and further, argued that Item nos.1 and 2 of the suit schedule properties are not ancestral properties but, properties belonging to plaintiffs' father. It is pertinent to note that, defendant nos.1 to 4 in their pleadings and evidence have categorically admitted that Item nos.1 and 2 of the suit schedule properties are ancestral properties. No evidence is produced by the defendant nos.3 and 4 to show that plaintiffs' father had acquired Item nos.1 and 2 of the suit schedule properties independently.
Judgement 13 O.S.No.8106/2010 Therefore, above argument of defendant nos.3 and 4's counsel that Item nos.1 and 2 of the suit schedule properties are the properties of plaintiff's father cannot be accepted and falls to ground.
13. In 2011 SAR (Civil) 537, in the case of Mrityunjoy Sett v. Jadunath Basak (D) by Lrs., wherein their lordships have held as under:-
"(B) Admission - An Admission made in a court is a valid and relevant piece of evidence -
Admission in the written statement in the earlier suit - Would carry greater weight than uncorroborated documentary evidence".
From the above decision, admission made by parties is valid and relevant piece of evidence. In the present case, defendant nos.1 to 4 in their pleadings and evidence admit that Item nos.1 and 2 of the suit schedule properties are ancestral properties. Therefore, said admission of defendants that Item nos.1 and 2 of the suit schedule properties are ancestral properties is binding on them. Therefore, contention of the plaintiffs that, Item nos.1 and 2 of the suit schedule properties are ancestral properties has to be accepted.
14. PW-1 in his evidence has stated that plaintiffs' father died intestate on 26.06.1995, leaving behind plaintiffs, Judgement 14 O.S.No.8106/2010 defendants and their mother as his legal heirs. Advocate for the plaintiffs argued that as per Section 6 of the Hindu Succession Act (Central Amendment Act 39 of 2005), plaintiff nos.1 and 2 and defendant nos.1 and 2 are entitle for 1/5th share in Item nos.1 and 2 of the suit schedule properties and defendant nos.3 and 4 are entitle for nominal share in Item nos.1 and 2 of the suit schedule properties. The defendant nos.3 and 4 in their evidence have stated that they are also entitle for equal share in Item nos.1 and 2 of the suit schedule properties. It is not in dispute that on 26.06.1995 plaintiffs' father namely, N.Muni Anjinappa died intestate. It is not in dispute that on 05.10.2002 plaintiffs' brother namely, M.Shankarappa died intestate. It is not in dispute that on 13.09.2006 plaintiffs' mother namely, Smt.Akka Bylamma died intestate. In Civil Appeal Nos.188-189 of 2018 [@ SLP (C) Nos.10638-10639 of 2013], in the case of Danamma @ Suman Surpur and another v. Amar and others, wherein Hon'ble Supreme Court held as under:
"The appellants herein, two in number, are the daughters of one, Gurulingappa Savadi, propositus of a Hindu Joint Family. Apart from these two daughters, he had two sons, namely, Arunkumar and Vijay, Gurulingappa Savadi died in the year 2001 leaving behind the aforesaid two daughters, two sons and his widow, Sumitra. After his death, Amar S/o.Arunkumar filed the suit for Judgement 15 O.S.No.8106/2010 partition and separate possession of the suit property.
.................
24) Section 6, as amended, stipulates that on and from the commencement of amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth.
Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s(1)(a) and (b).
Judgement 16 O.S.No.8106/2010 ........................
28) On facts, there is no dispute that the property which was the subject matter of partition suit belongs to joint family and Gurulingappa Savadi was propositus of the said joint family property. In view of our aforesaid discussion, in the said partition suit, share will devolve upon the appellants as well. Since, Savadi died leaving behind two sons, two daughters and a widow, both the appellants would be entitled to 1/5th share each in the said property".
From the above judgment, it is clear that the sons and daughters of a coparcener become coparceners by virtue of birth. In the present case, plaintiff nos.1 and 2 and defendant nos.1 to 4 are the sons and daughters of deceased N.Muni Anjinappa. Therefore, plaintiff nos.1 and 2 and defendant nos.1 to 4 i.e., sons and daughters of deceased N.Muni Anjinappa become coparceners by birth. Item nos.1 and 2 of the suit schedule properties are ancestral and joint family properties therefore, share will devolve upon the daughters as well. In view of above said judgment, argument of plaintiffs' counsel that daughters are not entitle for equal share in Item nos.1 and 2 of the suit schedule properties falls to ground. Hence, plaintiff nos.1 and 2 and defendant nos.1 to 4 are entitle for 1/6th share each in Item nos.1 and 2 of the suit schedule properties.
Judgement 17 O.S.No.8106/2010
15. PW-1 in his evidence has stated that Item nos.3 to 5 of the suit schedule properties was purchased by plaintiffs' father in the name of his wife and daughters i.e., Smt.Akka Bylamma, defendant nos.3 and 4. Therefore, Item nos.3 to 5 of the suit schedule properties are the joint family properties of the plaintiffs and defendants and plaintiffs are entitle for share in Item nos.3 to 5 of the suit schedule properties. DWs.1 to 3 in their evidence have stated that Item nos.3 to 5 of the suit schedule properties are not joint family properties. DW-1 in her examination-in-chief has stated that Item no.4 of the suit schedule property is her self acquired property and purchased from out of her own funds. DW.3 in her examination-in-chief has stated that Item no.3 of the suit schedule property is the self acquired property of Smt.Akka Bylamma and Item no.5 of the suit schedule property is her self acquired property and purchased from out of their own funds.
16. In AIR 2006 Karnataka 68, in the case of Smt.Radhamma and others et., v. H.N.Muddukrishna and others:-
"(A) Hindu Law - joint family property - Proof of existence - Plaintiffs coming out with specific case of properties being acquired from joint family funds -
Burden is on them to establish that adequate nucleus was available for acquisition of such property - Details regarding availability of joint Judgement 18 O.S.No.8106/2010 family funds and nucleus are absent, question of shifting burden to defendants does not arise - Property stands in the name of female member - There is no presumption that it belongs to joint family when it stands in the name of female member".
17. In 2012 SCC Online Madras 456, in the High Court of Madras, in the case of Lalitha and others v. Singaram and others, wherein the lordships have held as follows:-
"Hindu Law- Coparcener - Property standing in the name of coparcener, who is not a "Kartha" - Presumption is that said coparcener is exclusive owner of the property - No doubt, it is a rebuttable presumption - But presumption has not been rebutted - Tractor, which was in the name of deceased husband of 1st Defendant belongs to him".
From the above judgment it is clear that burden is on the plaintiffs to establish that adequate nucleus was available for acquisition of Item nos.3 to 5 of the suit schedule properties. The plaintiffs have not specifically pleaded that Item nos.3 to 5 of the suit schedule properties was purchased from joint family funds. The plaintiffs have not specifically pleaded regarding the income derived from the joint family properties & amount spent towards maintenance of joint family and excess amount available Judgement 19 O.S.No.8106/2010 for purchasing the property in the name of female members of the family. It is pertinent to note that, N.Muni Anjinappa during his lifetime has not contended that Item nos.3 to 5 of the suit schedule properties are joint family properties. No documentary evidence is produced by the plaintiffs to show that income was derived from Item nos.1 and 2 of the suit schedule properties. PW-1 in his cross-examination admits that about 25 years back no income was derived from Item nos.1 and 2 of the suit schedule properties. The plaintiffs have not produced any evidence before this court to show that plaintiffs' father was gainfully employed or having sufficient source of income. The plaintiffs have produced certified copy of Sale Deed dated 05.10.1971 at Ex.P2. Ex.P2 is marked without any objection. Ex.P2 bears the seal and signature of competent authority hence, Ex.P2 is admissible in evidence. From the recitals of the Sale Deed i.e., Ex.P2, it goes to show that consideration amount was paid by plaintiffs' mother for purchasing the property. There is no recital in Ex.P2 that money was paid by plaintiffs' father to purchase the property in the name of plaintiffs' mother. The defendant no.4 has produced allotment letter, khatha, Encumbrance Certificate, tax paid receipts of Item no.4 at Ex.D1 to D7 and Sale Deed of Item no.4 at Ex.D31. The defendant no.3 has produced allotment letter, Sale Deed and possession Judgement 20 O.S.No.8106/2010 certificate of Item no.5 of the suit schedule property at Ex.D84 to D86. Further, DW-3 has produced her educational qualification certificates and employment letters before this court. DWs.1 and 3 in their evidence have categorically stated that defendant no.3 was born on 09.11.1961 and defendant no.4 was born on 22.06.1958. As per allotment letters i.e., Ex.D3 and D84, Item no.4 of the suit schedule property was allotted to defendant no.4 on 12.09.2000 and Item no.5 of the suit schedule property was allotted to defendant no.3 on 27.10.1986. Therefore, as on the date of allotment of Item nos.4 and 5 of the suit schedule properties, defendant no.3 was aged about 28 years and defendant no.4 was aged about 39 years. As per cross- examination of PW-1, defendant no.4 was married on 27.04.2000. The defendant no.4 has also produced marriage invitation card at Ex.D28. Therefore, allotment in favour of defendant no.4 is made subsequent to her marriage. The plaintiffs have not produced any material evidence before this court to show even after marriage, plaintiffs' father was financially supporting defendant no.4 and purchased the property in the name of defendant no.4. Except bald self serving statement of PW-1, no material evidence is produced by the plaintiffs to show that properties were purchased by plaintiffs' father in the name of defendant nos.3 and 4. The defendant no.4 Judgement 21 O.S.No.8106/2010 in her evidence has categorically stated that she was conducting tuitions. Further, defendant no.4 has stated in her evidence that from out of her own funds, she has purchased Item no.4 of the suit schedule property. The defendant no.3 has produced the letters issued by Seth Parmanand Deepchand Hinduja Sindhi Hospital at Ex.D37 and D40, it clearly goes to show that from July 1985, defendant no.3 was gainfully employed. The defendant no.3 has produced sufficient material evidence before this court to show that she was gainfully employed and had independent source of income to purchase Item no.5 of the suit schedule property. From the Sale Deeds produced by the defendants, it clearly goes to show that Item nos.4 and 5 of the suit schedule properties was purchased by defendant nos.3 and 4 in their individual capacity. From the said Sale Deed it is also clear that consideration amount was paid by defendant nos.3 and 4 for purchasing the said properties. The oral and documentary evidence produced by the defendant nos.3 and 4 corroborate each other and sufficient to prove that Item nos.4 and 5 was purchased by defendant nos.3 and 4 from out of their own funds. Therefore, contention of the plaintiffs that Item nos.4 and 5 of the suit schedule properties was purchased in the name of defendant nos.3 and 4 by plaintiffs' father cannot be accepted. The plaintiffs are not entitle for any share in Item nos.4 and 5 of Judgement 22 O.S.No.8106/2010 the suit schedule properties. In the present suit, Item nos.3 to 5 of the suit schedule properties stand in the names of Smt.Akka Bylamma, defendant nos.3 and 4, who are not the Kartha. Therefore, it has to be presumed that Smt.Akka Bylamma, defendant nos.4 and 3 are the absolute owners of Item no.3 to 5 of the suit schedule properties respectively. The plaintiffs have not produced any evidence to rebute the said presumption. Therefore, adverse inference has to be drawn against the plaintiffs herein.
18. In (2011) 9 Supreme Court Cases 451, the case of Marabasappa (Dead by LRs. and others v. Ningappa (dead) by LRs. and others:-
"A. Hindu Succession Act, 1956 - Ss.5, 6, 14 to 16 and 19 - Property acquired by Hindu woman, whether becomes or blends in joint family property. Held, Hindu woman has full ownership over any property that she has acquired on her own or as stridhana - Such property shall not become part of joint family property and she may dispose of same as per her wish".
In the present case, the plaintiffs have not produced any evidence to show that Item no.3 of the suit schedule property was purchased by utilizing the joint family funds in the name of plaintiffs' mother. Therefore, contention of the plaintiffs that Judgement 23 O.S.No.8106/2010 Item no.3 of the suit schedule property is the joint family property cannot be accepted. Item no.3 of the suit schedule property is the self acquired property of plaintiffs' mother. Ex.P4 is the Death Certificate of Smt.Akka Bylamma. Both parties admit that plaintiffs' mother died intestate on 13.09.2006. As per Section 15 of the Hindu Succession Act, 1956, in case of female Hindu dying intestate, her property shall devolve on her children and her husband. In the present case, Smt.Akka Bylamma's husband died in the year 1995. Therefore, plaintiffs and defendants, who are children of Smt.Akka Bylamma are entitle to equal share in Item no.3 of the suit schedule property. Hence, plaintiff nos.1 and 2 defendant nos.1 to 4 are entitle for 1/6th share each in Item no.3 of the suit schedule property.
19. Advocate for the plaintiffs argued that plaintiffs' mother was illiterate, housewife and had no independent source of income to purchase the property and plaintiffs' father has purchased the property in the name of Smt.Akka Bylamma i.e., his wife. Further, argued that Item no.3 of the suit schedule property is the joint family property and liable for partition. It is pertinent to note that, there is no pleading in the plaint that plaintiffs' mother had no source of income. The plaintiffs have failed to produce material evidence to show that Item no.3 of the suit schedule property was purchased by joint family funds in the Judgement 24 O.S.No.8106/2010 name of Smt.Akka Bylamma. Therefore, above argument of plaintiffs' counsel cannot be accepted.
20. Advocate for the defendant nos.3 and 4 argued that Smt.Akka Bylamma during her lifetime intended to gift Item no.3 of the suit schedule property in favour of defendant no.3 and had handed over the property to defendant no.3 to construct Sharada Shakthi Ashrama and Ashrama was constructed and said Ashrama is now run by a Trust and said Trust is a necessary party to the above suit. Therefore, suit is not maintainable under law without impleading the said Trust. Admittedly, Smt.Akka Bylamma died without executing any Gift Deed or any registered document transferring title in respect of Item no.3 of the suit schedule property in favour of defendant no.3 or Trust. Therefore, argument of defendant no.3's counsel that Item no.3 of the suit schedule property belongs to defendant no.3 cannot be accepted. It is pertinent to note that, defendant no.3 in her written statement has not pleaded that suit is bad for non-joinder of party i.e., Trust. Said Trust is not a necessary and proper party. The above suit can be adjudicated effectively without impleading the said Trust. Therefore, above arguments doesn't survive and falls to ground.
Judgement 25 O.S.No.8106/2010
21. Advocate for defendant nos.3 and 4 argued that M.Shankarappa was the plaintiffs' brother and said M.Shankarappa died leaving behind his wife as his legal heir and the plaintiffs have not impleaded deceased M.Shankarappa's wife in the above suit. Therefore, suit is bad for non-joinder of necessary party. It is pertinent to note that, defendant nos.3 and 4 in their written statement have not pleaded that M.Shankarappa died leaving behind his wife as his legal heir. The defendants have not pleaded that wife of deceased M.Shankarappa is also joint family member. Any amount of arguments without pleadings will not serve any purpose. Therefore, argument of defendants' counsel that suit is bad for non-joinder of necessary party falls to ground.
22. DW-2 in his evidence has stated that Item nos.1 and 2 of the suit schedule properties are only the joint family properties and Item no.3 of the suit schedule property is given to defendant no.3 to run Ashrama, because it was purchased from the income of defendant no.3 and Item no.4 is the exclusive property of defendant no.4. Further, has stated that after typing of written statement counsel took his signature along with defendant no.2. But, in collusion with defendant no.2 in para no.6 of the written statement earlier counsel made correction without his instruction. It is pertinent to note that, defendant nos.1 and 2 have filed Judgement 26 O.S.No.8106/2010 common written statement before this court. In their written statement, defendant nos.1 and 2 have admitted that Item nos.1 to 4 of the suit schedule properties are the joint family properties. DW-2 in his evidence has stated that his earlier counsel without his instructions has made correction in para no.6 of the written statement. It is pertinent to note that, except self serving statement of defendant no.1 no evidence is produced by defendant no.1 to show that without his instructions his earlier counsel had carried out correction in para no.6 of the written statement. The defendant no.1 has not taken any steps to examine the said advocate before this court. Therefore, adverse inference has to be drawn against defendant no.1. Hence, contention of defendant no.1 that without his instructions, his earlier counsel had carried out correction in the written statement cannot be accepted.
23. DW-2 in his examination-in-chief has stated that Item no.1 of the suit schedule property was vacant land till 2004 and Item no.2 is the house property and there is no joint family income. He has spent Rs.3 to 4 lakhs towards his mother's medical treatment and has invested Rs.3,00,000/- for development of Item no.1 of the suit schedule property and spending Rs.15,000/- per month to look after Item nos.1 and 2 of the suit schedule properties. In support of the same, DW-2 has Judgement 27 O.S.No.8106/2010 produced medical reports at Ex.D9 to D14. From Ex.D9 to D14, it goes to show that amount was received by hospital from Smt.Akka Bylamma. The medical bills produced by defendant no.1 before this court clearly goes to show that Smt.Akka Bylamma has paid the amount towards her medical expenditure. Ex.D9 to D13 is sufficient to prove that defendant no.1 has spent Rs.3 to 4 lakhs towards medical treatment of Smt.Akka Bylamma. The defendant no.1 has produced quotations, work completion report and invoice at Ex.D15 to D17. DW-2 in his evidence has stated that he has spent Rs.3,00,000/- towards development of Item no.1 of the suit schedule property. Per contra, bills produced at Ex.D15 and D17 is only for Rs.15,000/- and Rs.33,650/-. Therefore, contention of defendant no.1 that he has spent Rs.3,00,000/- for improvement of Item no.1 of the suit schedule property cannot be accepted. The defendant no.1 has not produced any independent evidence to show that he is spending Rs.15,000/- per month for maintenance of Item nos.1 and 2 of the suit schedule properties.
24. The plaintiffs have claimed mesne profits in the above case. PW-1 has not produced any evidence before this court in this regard. Therefore, contention of the plaintiffs that plaintiffs are entitle for mesne profits cannot be accepted.
Judgement 28 O.S.No.8106/2010
25. The learned counsel for the plaintiffs has relied upon the following citations:
1. 2007 (6) AIR Kar R 501.
2. 2013 SAR (Civil) 851.
The learned counsel for defendants nos.3 and 4 has relied upon the following citations:
1. AIR 1969 Supreme Court 1076.
2. (1994) 4 Supreme Court Cases 294.
3. AIR 2003 Supreme Court 3800.
4. AIR 2009 Supreme Court 2561.
5. Mysore Law Journal 1971(2) 619.
6. 2004(1) KCCR 662.
7. AIR 2004 KARNATAKA 479.
8. AIR 2004 JHARKHAND 44.
9. AIR 2007 GAUHATI 20.
10. AIR 2016 Supreme Court 769.
11. AIR 2010 KARNATAKA 27.
12. AIR 2008 MADRAS 250.
The above citations are not applicable to present facts and circumstances of the case.
26. In the light of the above discussion, I answer Issue No.1 partly in the Affirmative and Additional Issue Nos.1 and 2 in the Affirmative.
27. Issue No.2:-
Issue No.1 is answered partly in the affirmative and additional issue Nos.1 and 2 are answered in the affirmative.
Judgement 29 O.S.No.8106/2010 Hence, plaintiff nos.1 and 2 are entitle for 1/6th share each in Item nos.1 to 3 of the suit schedule properties. The plaintiff nos.1 and 2 are not entitle for share in Item nos.4 and 5 of the suit schedule properties. Accordingly, I answer Issue No.2 partly in the Affirmative.
27. Issue No.3:-
In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiffs is partly decreed with costs. Plaintiff nos.1 and 2 are entitle for 1/6th share each in Item nos.1 to 3 of the suit schedule properties.
Item nos.4 and 5 of the suit schedule properties are self acquired properties of defendant nos.4 and 3 respectively. Hence, the plaintiff nos.1 and 2 are not entitle for share in Item nos.4 and 5 of the suit schedule properties.
The defendant nos.1 to 4 are also entitle for 1/6th share each in Item nos.1 to 3 of the suit schedule properties. The defendant nos.1 and 2 are not entitle for any share in Item nos.4 and 5 of the suit schedule properties.
Plaintiffs are not entitle for mesne profits.
Judgement 30 O.S.No.8106/2010 Draw preliminary decree accordingly. (Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 22nd day of February 2018) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru City.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiffs' side:
PW.1 - M.Linganna
(b) Defendants' side:
DW.1 - M.Shanthamma
DW.2 - Hanumanna
DW.3 - Kanthamma
DW.4 - Rajanna
II. List of documents exhibited on behalf of:
(a) Plaintiffs' side:
Ex.P1 : Khatha Extract
Ex.P2 : Certified copy of Sale Deed dated
05.10.1971
Ex.P3 : Death Certificate of N.Munianjappa
Ex.P4 : Death Certificate of Akka Bylamma
Ex.P5 : Death Certificate of M.Shankarappa
Ex.P6 : RTC
Ex.P7 : Khatha Extract
Ex.P8 : Form-B Property Register Extract
(b) Defendants' side:
Judgement
31 O.S.No.8106/2010
Ex.D1 : Khatha Certificate
Ex.D2 : Tax Paid Receipt
Ex.D3 : Allotment Letter dated 12.09.2000
Ex.D4 : Encumbrance Certificate
Ex.D5 : Khatha Certificate
Ex.D6 : Khatha Extract
Ex.D7 : Encumbrance Certificate
Ex.D8 : Form-B Property Register Extract
Ex.D9 to 13 : Patient's Bills
Ex.D14 : Medical Certificate dated 10.05.2006
Ex.D15 : Quotation of Shrinidhi Borewells
Ex.D16 : Work Completion Report of Shrinidhi
Borewells
Ex.D17 : Invoice-cum-Delivery Note of
S.S.Marketing Corporation
Ex.D18 to 20 : Tax Paid Receipts
Ex.D21 : Original Trust Deed dated
16.05.2000
Ex.D22 : Original Amendment To Trust Deed
dated 27.05.2002
Ex.D23 : Memorandum of B.T.L.Educational
Trust for Rural Development dated
05.08.2004
Ex.D24 : Appointment Order dated
08.07.2003, issued by The
Chamarajpet Education Society
Ex.D25 : Appointment as Full Time Lecturer
dated 21.06.2004 issued by Bharatha
Matha Education Society (R)
Ex.D26 : Appointment as Full Time Lecturer
dated 07.06.2003 issued by Bharatha
Matha Education Society (R)
Ex.D27 : Renewal of Income Tax U/s.80G
Ex.D28 : Marriage Invitation of M.Shantha
Ex.D29 & 30 : Photos
Ex.D31 : Certified copy of Sale Deed dated
07.08.2001
Ex.D32 : Old Driving Licence
Ex.D33 : English Typewriting Senior Certificate
of Kanthamma.M
Ex.D34 : Kannada Typewriting Junior
Certificate of Kanthamma.M
Ex.D35 : Bachelor of Commerce Convocation
Certificate of Kanthamma.M issued
by Bangalore University
Ex.D36 : Master of Commerce Convocation
Judgement
32 O.S.No.8106/2010
Certificate of Kanthamma.M issued
by Bangalore University
Ex.D37 : Letter of Seth Parmanand Deepchand
Hinduja Sindhi Hospital dated
13.08.1986
Ex.D38 : Letter of Seth P.D. Hinduja Sindhi
Hospital dated 26.04.1989
Ex.D39 : Certificate issued by Seth P.D.
Hinduja Sindhi Hospital dated
28.04.1989
Ex.D40 : Certificate issued by P.D. Hinduja
Sindhi Hospital dated 21.06.2017
Ex.D41 : Audit Reports for the year 2000 to
2017
Ex.D42 to 72 : 31 Tax Paid Receipts
Ex.D73 : Gas Receipt
Ex.D74 to 77 : Photos
Ex.D78 : CD
Ex.D79 : Khatha Certificate
Ex.D80 : Invitation Card of Ramakrishna
Vivekananda Bhava Prachara
Parishat dated 19.06.2017
Ex.D81 : Shrinidhi Borewells Receipt dated
02.07.1999
Ex.D82 : Notarized copy of Aadhaar Card of
Kanthamma.M
Ex.D83 : Ashrama Diary
Ex.D84 : Allotment Letter dated 27.10.1986
issued by BDA to M.Kanthamma
Ex.D85 : Certified copy of Sale Deed dated
05.03.2001
Ex.D86 : Possession Certificate dated
06.02.1988 issued by BDA
XLII ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
Judgement