Bangalore District Court
Satyamurthy B C vs Pushpa on 19 February, 2024
1
OS NO:9784 / 2014
KABC010268402014
IN THE COURT OF THE XIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-28)
Present: SMT. SHAINEY. K.M., L.L.M.,
XIV Addl. City Civil & Sessions Judge
Bengaluru.
Dated this the 19th day of February, 2024
O.S No. 9784 / 2014
Plaintiff:- Sri. B.C.Sathyamurthy,
S/o Late B.S.Chandrashekharaiah,
Aged about 65 years,
R/a No.411/26/1, Shambhavi,
18th Main, Jayanagar 4th 'T' Block,
Bengaluru - 560 041.
By Smt. H.K.Revanasiddappa,
Advocate)
-V/s.
Defendants:- 1. Smt. Pushpa,
W/o Late Gurupadaswamy,
Aged about 50 years.
2. Sri. Gautham B.G.
S/o Late Gurupadaswamy,
Aged about 27 years.
3. Ms. Preethi,
D/o Late Gurupadaswamy,
Aged about 29 years.
All are residing at No.411/26/3,
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OS NO:9784 / 2014
18th Main, Jayanagar 4th 'T' Block,
Bengaluru - 560 041.
4. Sri. B.C.Siddalingaswamy,
S/o Late B.S.Chandrashekharaiah
Aged about 63 years,
R/a No.411/26/4, 18th Main,
Jayanagar 4th 'T' Block,
Bengaluru - 560 041.
Since dead by LRs;
4(a). Smt. Saroja,
W/o Late B.C.Siddalingaswamy,
Aged about 56 years.
4(b). Sri. B.S.Sandesh,
S/o Late B.C.Siddalingaswamy,
Aged about 35 years.
4(c) Sri. B.S.Sandeep,
S/o Late B.C.Siddalingaswamy,
Aged about 32 years.
All are residing at No.411/26/4,
18th Main, Jayanagar 4th 'T' Block,
Bengaluru - 560 041.
(By Sri. Ramesh Ananthan, Advocate
for D.1 to D.3)
(D.4(a) to (c) - Exparte)
Date of Institution of the suit 15/12/2014
Nature of the suit Partition & Permanent Injunction
Date of the commencement of 15/02/2017
recording of the evidence.
Date on which the judgment is
19/02/2024
pronounced.
Year/s Month/s Days
Total duration 09 02 04
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OS NO:9784 / 2014
JUDGMENT
1. This is a suit for partition and permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of common amenities and common passage facilities attached to schedule 'A' property.
2. The brief facts of the plaintiff's case are as follows:-
2.1 It is averred that B.C.Chandrashekharaiah, father of the plaintiff was the absolute owner of the entire property bearing No.411/26, more fully described as schedule 'A' property and he had 5 sons.
B.C.Sathyamurthy (plaintiff), B.C.Siddalinga Swamy, B.C.Gurupada Swamy, B.C.Shivanandaswamy and B.C.Premkumar are children of deceased B.C.Chandrashekharaiah (in short-deceased). The defendant No.1 is the wife and defendants No.2 & 3 are the children of aforesaid B.C.Gurupadaswamy. Defendant No.4 is younger brother of plaintiff. Aforesaid B.C.Shivanandaswamy is predeceased son of Testator. It is averred that deceased had executed a registered Will dated 25.04.1988 and bequeathed above said property in favour of his four sons mentioned above. B.N.Premkumar, has passed away in the year 1990 during lifetime of testator and he was a bachelor. Schedule 'B' property was allocated to share of deceased B.C.Premkumar in said Will. The father of plaintiff has neither executed any codicil or fresh Will after death of aforesaid 4 OS NO:9784 / 2014 B.C.Premakumar. The schedule A property has been enjoyed by plaintiff B.C.Sathyamurthy, B.C.Siddalingaswamy and B.C.Gurupadaswamy, in terms of Will after demise of deceased and they are in exclusive possession in respect of their share in said property.
2.2 It is averred that B.C.Gurupadaswamy died in the year 1991 and defendants No.1 to 3 are his wife and children. It is averred that since aforesaid B.C.Premkumar had died during lifetime of testator as per law of reversion and succession, the plaintiff along with brother is entitled to 1/3rd share each in schedule 'B' property. It is averred that there is common passage, common amenities and a common open well attached to suit schedule property and these plaintiff and his brother's family are drawing and using the well water for domestic purposes and said open well is located on North-Eastern side of the property adjoining to the house of plaintiff on the northern side of his house and schedule 'B' property.
2.3 It is averred that 'B' property is property bearing Corporation No.411/26, 18th Main, Jayanagar 4th 'T' Block, Bengaluru, and it is consisting of ground and first floors, measuring East-West : 45 feet and North-South : 22.5 feet. B.S.Kamalakshamma plaintiff's mother died on 19.12.2012 and she along with defendants No.1 to 3 was living in the Schedule B property till her death. 5
OS NO:9784 / 2014 2.4 It is averred that the plaintiff's mother had inducted the tenant in the first floor and used to collect rent till her death and on 16.03.2014, the tenant has vacated the premises. It is averred that defendants No.1 to 4 and plaintiff are in joint possession of schedule 'B' property. On 30.08.2014, the plaintiff issued a notice to the defendants to allot share in B schedule property. It is alleged that defendants No.1 to 3 are making efforts to efforts to let out the vacant portion in first floor of the schedule 'B' property. Plaintiff has got 1/3rd share in the schedule 'B' property. It is alleged that defendants No.1 to 3 also damaged the sewerage pipe due to which the open well water was polluted contaminated. The plaintiff's family members have been deprived of drinking water of well for few days. 2.5 It is averred that in view of existing and prevailing conditions of schedule 'A' property having common passage, common entrance, common drainage and sewerage and the property bequeathed being small portion is not advisable for partition. In order to avoid such unwanted situation, the plaintiff has informed defendants that he is ready to buy share of property bequeathed to Late B.C.Gurupadaswamy and defendant No.4. It is averred that the plaintiff has got a legal right of pre-emption to purchase the portion of property bequeathed to them under a registered Will in respect of 'A' property and also their undivided right and share in the schedule 'B' 6 OS NO:9784 / 2014 property. If plaintiff do not show interest in buying the property, the defendants may sell off the same to third party. With these averments, he filed the present suit seeking 1/3rd share in the schedule 'B' property and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment in respect of the common amenities and common passage attached to schedule 'A' property.
3. Defendant no.4 died lis pendency. The defendant nos.4 (a) to
(c) are legal heirs of late. Siddalingaswamy and have not contested the suit and they have been placed exparte.
4. The defendants No.1 to 3 have filed written statement. It is admitted that the defendants No.1 to 3 are wife and children of the deceased B.C.Gurupadaswamy. The relationship between the parties to the suit is admitted. It is admitted that B.S.Chandrashekharaiah was the absolute owner of the entire suit property bearing No.411/26. It is admitted that the deceased B.S.Chandrashekharaiah had 5 sons and B.C.Shivanandaswamy was the predeceased son of testator. It is admitted that the aforesaid B.S.Chandrashekaraiah has left a registered Will dated 25.04.1988, bequeathing the schedule 'A' property in four parts in favour of his 4 sons. It is also admitted that B.C.Premakumar, younger brother of the plaintiff was a bachelor and predeceased his father. It is admitted schedule 'B' property was 7 OS NO:9784 / 2014 bequeathed in favor of Late B.C.Premkumar and Original owner of the property has not made codicil or new Will even after demise of aforesaid B.C.Premkumar.
4.1 It is admitted that B.C.Gurupadaswamy has passed away in the year 1990. It is admitted that the defendants No.1 to 3 and their father along with Smt.B.S.Kamalakshamma were in joint possession of schedule 'B' property. It is admitted parties have equal right, title, interest, share in schedule B property. It is admitted that as per the law reversion and succession, the plaintiff and defendants entitled to get equal i.e., 1/3rd share each in said property. It is denied that the plaintiff is in joint possession of schedule 'B' property. 4.2 It is admitted there are certain utilities namely common passage, common amenities attached to suit 'A' property and all the brothers and their family members drawing and using the common Well water for drinking and other purposes since last 50 years. As per Will, plaintiff has right only to use the well water and he has no right, interest over the common passage. The plaintiff suppressed the material facts and filed a false suit with an intention of knocking the schedule 'B' property and common passage alone. 4.3 It is admitted that the Smt. B.S.Kamalakshmamma along with her son-B.C.Gurupadaswamy was residing in the ground floor of the schedule 'B' property, after the demise of her husband. It is denied 8 OS NO:9784 / 2014 that Smt.B.S.Kamalakshmamma had inducted a tenant in the first of the said portion and collected rent till her death, and the tenant has vacated the property in the year 2014. Alleged efforts of selling the portion of schedule B property by these defendnats is denied. It is denied that the plaintiff requested defendants to arrange a panchayath to effect partition in schedule 'B' property. 4.4 It is denied that these defendants have damaged the sewage pipe causing water pollution in well. It is contended that the sanitary line was broke due to growth of trees roots and immediately, these defendants have got it repaired. The plaintiff is compelling these defendants to sell it to him at lower price. The plaintiff filed a Writ petition before the Hon'ble High Court of Karnataka in W.P.No.29746/2002 (LB-RES) with an intention of trouble them and it was got rejected.
4.5 It is specific plea of defendants that plaintiffs has no right of preemption to purchase schedule 'B' property. No such condition has been provided to with regard to right of preemption in Will. Even these defendants have no intention of sell their share in schedule 'B' property to anyone as they are themselves residing in the schedule property. The plaintiff filed this suit with an intention to throw out the defendants No.1 to 3 from schedule 'B' property. Only defendants No.1 to 3 have common right to use the passage and amenities since 9 OS NO:9784 / 2014 the defendants are residing in schedule 'B' property. The permanent injunction against the joint owners is not maintainable. With these averments, they prays to dismiss the suit.
5. On the basis of pleadings and documents of the parties, my Learned predecessor-in-office has framed the issues on 08.08.2017 as hereunder:
ISSUES.
1. Whether the plaintiff proves that the properties are available for allotted share in the schedule 'B' property as claimed ?
2. Whether the plaintiff further proves that the alleged interference by the defendants ?
3. Whether the plaintiff is entitled for the relief as claimed ?
4. What order or decree?
6. In support of his case, the plaintiff examined himself as Pw.1, and documents were marked as Ex.P.1 to Ex.P.7. Learned counsel for defendants has cross-examined Pw.1.
7. The defendant No.3 was examined as Dw.1 and documents were marked as Ex.D.1 to Ex.D.20. Learned counsel for plaintiff has cross-examined Dw.1.
8. Heard arguments. Learned counsel for defendants No.1 to 3 has submitted written arguments. Perused the materials placed on 10 OS NO:9784 / 2014 record. My answers to above points are as follows: -
Issue No.1 : In the affirmative.
Issue No.2 : In the negative.
Issue No.3 : In Partly affirmative.
Issue No.4 : As per final order for the following:
REASONS
9. Issues No.1:- It is the case of the plaintiff that the legatees acquired right over the plaint schedule property by virtue of Will executed by deceased and on the death of one of the legatee (Premakumar) the rights revert back to the testator and thus, the plaintiff is entitled to 1/3 share over the schedule 'B' property.
10. In this case, plaintiff has claimed 1/3rd share in schedule 'B' property and relief of permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of common amenities and common passage facilities attached to schedule 'A' property. It is just and proper to state the admitted facts. The admitted facts are as follows:
(a) The fact that the property bearing number Municipal Corporation No.411/26 was the self-acquired property of deceased B.C.Chandrashekharaiah is not in dispute. Ex.P.1 & Ex.P.2 are encumbrance certificates in respect of property bearing No.411, measuring 90 X 45 sq. ft. for the period from 01.04.1957 to 30.09.1966 and 01.10.1966 to 14.08.1990, respectively. The fact that 11 OS NO:9784 / 2014 plaintiff, defendant No.4, Late B.C.Gurupadaswamy, B.C.Shivanandaswamy and Late B.C.Premkumar are sons of Late B.S.Chandrashekharaiah. Among 5 sons of Testator, aforesaid B.C.Shivanandaswamy died long ago.
(b) On 25.04.1988, B.C.Chandrashekharaiah has executed a Will in respect of property bearing No.411/26 and bequeathed the said property into 4 parts in favour of plaintiff,B.C.Siddalingaswamy, B.C.Gurupadaswamy and B.C.Premkumar. Said Will marked as Ex.D.3.
(c) 'B' schedule property was allocated to the share of deceased B.C.Premkumar in Will. Aforesaid B.C.Premkumar passed away in the year 1989 and he was a bachelor. Ex.P.7 is the death certificate of aforesaid B.C.Premkumar and a perusal of same depicts that he died on 12.03.1990. B.C.Chandrashekharaiah-Testator died in the year 1990. Ex.P.3 is the death certificate of testator and a perusal of same reveals that he died on 04.10.1990. Plaintiff and his brothers have got divided the property in terms of Will after the death of their father. In the year 1991, B.C.Gurupadaswamy died leaving behind defendants No.1 to 3 as his legal heirs.
Smt.B.S.Kamalakshmamma, the mother of plaintiff was residing in the 'B' schedule property and she was living with defendants No.1 to
3. On 19.12.2012, aforesaid Smt.Kamalakshmamma died at 'B' 12 OS NO:9784 / 2014 schedule property and Ex.P.4 is the death certificate of plaintiff's mother.
(d) Ex.P.5 & Ex.P.6 are the khatha certificate and khatha extract of property bearing No.411, new No.PID 58-12-26, respectively. The revenue records of property is still standing in the name of testator even after his death of Testator as per Ex.P.5 & Ex.P.6.
(e) After the demise of testator his surviving sons have got divided the subject matter of Will. Ex.D,3 is the certified copy of the Will. Defendants No.1 to 3 are the legal heirs of deceased B.C.Gurupadaswamy and they have already sold their share in property No.411. Likewise, 4th defendant has also sold his share of property acquired under will. On 19.06.2019, the plaintiff has executed the registered partition deed as per Ex.D.1 and effected partition in respect of property bearing No.111 and 411/26/1, measuring 45 X 27 ½ + 18 ½ feet and allotted Property No.411 to share of his son-B.S.Pradeep through said partition deed. On 19.05.2014, B.C.Siddalingaswamy has sold his share in property No.411 to Smt.K.Mahalakshmi and Changalarayudu under the registered sale deed, and subsequently, plaintiff's son and daughter- in-law namely B.S.Pradeep and Smt.Usha S have purchased above property through a registered sale deed dated 24.10.2019 from aforesaid Smt.K.Mahalakshmi and another as per Ex.D.2. 13
OS NO:9784 / 2014
(f) On 27.12.2013, defendants No.1 to 3 have sold their share in 411 to S.L.V.Builders & Developers under a registered sale deed as per Ex.D.4. Ex.D.5 to Ex.D.14 are property tax receipts in respect of property bearing No.58-12-26, respectively.
(g). In the year 2002, the plaintiff filed W.P.No.29746/2002 (LB- RES) against The Commissioner, BBMP; The Asst.Revenue Officer, BBMP; defendant No.4-B.C.Siddalingaswamy; and defendant No.1- Smt.B.M.Pushpa praying to quash endorsement dated 18.03.2002. and same came to be dismissed on 22.06.2005 as per Ex.D.15. The Hon'ble High Court of Karnataka has dismissed writ petition preferred by plaintiff contending that Smt.B.S.Kamalakshmamma was necessary party to the said writ petition and it is always open for him to question the written consent of plaintiff's mother effecting the bifurcation and registration of khatha in the names of defendants No.1 & 4 before competent Civil Court and establish his right in any way. Ex.D.16 are Ex.D.19 are the photographs of suit property and Ex.D.20 is the CD of photographs.
(h) It is admitted fact that defendant No.3 has filed a suit for injunction against the plaintiff in O.S.No.7219/2017 and in said case, Court has declined to grant permanent injunction against the plaintiff with a finding that they have equal right and share in the schedule 'B' property.
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OS NO:9784 / 2014
11. The material placed on record clearly reveals that after the death of B.C.Premkumar, schedule 'B' has been property reverted to original owner i.e., testator and he died without codicil and new Will. After death of B.C.Chandrashekharaiah, the plaintiff being his legal heir is claiming share in schedule 'B' property. It is not in dispute that plaintiff and his surviving brothers have get equal share and rights in schedule 'B' property. In view of Section 107 of Indian Succession Act, plaintiff and defendant No.4 being sons and defendants No.1 to 3 being wife and children of Late B.C.Gurupadaswamy would get equal share in property.
12. As per Section 105 of Indian Succession Act, if the legatee (person named in will as, successor of the property or, one who receives legacy in will) dies before the testator, then the will or legacy cannot take effect.
13. However, as per Section 106 of the Act, in case of joint legatees, the legacy does not lapse and the property of the departed legatee goes to the surviving legatee, unless the testator has not provided any other instruction in will that the property of departed legatee will go to some other person.
14. Sec. 107 of Indian Succession Act states that "if a legacy is given to legatees in words which show that the testator intended to give them distinct shares of it, then, if any legatee dies before the 15 OS NO:9784 / 2014 testator, so much of the legacy as was intended for him shall fall into the residue of the testator's property."
15. So, by above statements it is clear that in case of death of sole legatee, the will cannot operate. In case of joint legatee, if the departed legatee is a child or grandchild (lineal descendant) of testator and has his own child (lineal descendant) then, the share of the departed legatee in "Will" will be succeeded by his lineal descendant by the rule of general succession after the death of testator. In case joint legatee is not a lineal descendant of testator or do not have any lineal descendant of his own, then the share of departed legatee will be given to the surviving legatee.
16. As Premakumar died during the lifetime of the testator, there is intestacy as to his share as the devise had lapsed and therefore that portion of the property which was covered by the will and which would have gone to Premakumar, if he had been alive, would now be available to the heirs of Testator B.S.Chandrashekaraiah and would have to be distributed in accordance with the rule of succession under Hindu law. Therefore plaintiff and his brother are entitled for equal share in Schedule 'B' suit property. Hence, issue no.1 is answered in the affirmative.
17. Issue no.2 and 3:- Since these issues are interlinked with each other and to avoid the repetition of facts and for convenience, 16 OS NO:9784 / 2014 they are taken together for consideration.
18. The plaintiff also claimed relief of permanent injunction against the defendants in respect of schedule 'A' property. It is not in dispute that there is a common well, common drainage, common passage and common entrance in 'A' schedule property. Pw.1 deposed that defendants have damaged sewerage pipe on account which water in the well got polluted and contaminated.
19. To substantiate his contention, plaintiff not placed material evidence in this case. On the other hand, photographs Ex.D.16 to Ex.D.19 produced by defendants clearly reveals that growth of tree roots have caused damage to the sewerage pipe. The plaintiff has failed to prove the alleged interference of the defendants in respect of schedule 'A' property. Learned counsel for defendants has cross- examined Pw.1. During cross-examination, Pw.1 deposed that the defendants never raised objection for partition of the property. He further admitted that aforesaid passage was used by defendants No.1 & 2. He further admitted that aforesaid pipes and well were got repaired and cleaned by the defendants No.1 to 3.
20. In this case, Learned counsel for plaintiff has cross-examined Dw.1-Preethu. Nothing has been elicited from mouth of this witness as to prove the alleged interference made by the defendants. Therefore, the plaintiff is not entitled to the relief of permanent 17 OS NO:9784 / 2014 injunction in respect of amenities and other facilities attached to schedule 'A' property.
21. Learned counsel for the plaintiff argued that plaintiff has got right of preemption over 'B' schedule property. However, no relief has been claimed in plaint with regard to declaration of pre-emptive right of plaintiff to purchase schedule 'B' property. Thus, a comprehensive reading of the pleadings establish the fact that the plaintiff has only sought for a partition thereby waiving the preemptive right available to him under Section 22 of Hindu Succession Act. When the plaintiff has not sought for specific relief regarding pre-emptive right, this Court cannot grant such relief in respect of 'B' schedule property. Hence, Issue No.2 is answered in the negative and Issue No.3 is answered in partly affirmative.
22. Issue No.4:- For the reasons discussed above, I proceed to pass the following;
ORDER The suit for partition and permanent injunction is hereby decreed in part.
It is hereby declared that plaintiff is entitled to 1/3rd share in schedule 'B' property.
The suit for permanent injunction against the defendants in respect of schedule 'A' property is hereby dismissed.
No order as to cost.
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OS NO:9784 / 2014 Draw preliminary decree accordingly.
(Dictated to the Stenographer Grade - I, transcribed and typed by him, corrected and then pronounced by me in the Open Court on this the 19 th day of February, 2024) (SHAINEY. K.M) XIV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF'S SIDE:
PW:1 : B.C.Sathyamurthy DOCUMENTS MARKED FOR THE PLAINTIFF'S SIDE:-
Ex.P.1 : Encumbrance certificate for the period from 01.04.1957 to 30.09.1966.
Ex.P.2 : Encumbrance certificate for the period from 01.10.1966 to 14.08.1990.
Ex.P.3 : Death certificate of plaintiff's father. Ex.P.4 : Death certificate of plaintiff's mother.
Ex.P.5 : Khatha certificate. Ex.P.6 : Khatha extract. Ex.P.7 : Death certificate of plaintiff's younger brother.
WITNESSES EXAMINED FOR THE DEFENDANTS' SIDE:
Dw.1 : Preethu
DOCUMENTS MARKED FOR THE DEFENDANTS' SIDE:
Ex.D.1 : CC of partition deed dated 19.06.2019.
Ex.D.2 : CC of sale deed dated 24.10.2019.
Ex.D.3 : CC of Will dated 25.04.1988 executed by
B.S.Chandrashekharaiah.
Ex.D.4 : CC of sale deed dated 27.12.2013.
Ex.D.5 to D.14 : Tax paid receipts (10 in Nos.).
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OS NO:9784 / 2014
Ex.D.15 : CC of order passed by Hon'ble High Court of
Karnataka in W.P.29746/2002 (LB-RES) dated 22.06.2005.
Ex.D.16 to D.19 Photographs (4 in Nos.).
Ex.D.20 : CD.
(SHAINEY. K.M)
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
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OS NO:9784 / 2014