Karnataka High Court
P N Raghu vs Sharadamma on 22 November, 2010
Author: Subhash B.Adi
Bench: Subhash B.Adi
Qg
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22"" DAY OF' NOVEMBER 2010
BEFORE
THE HON'I:3LE MRJUSTICE SUB}-IASH 13.. ;;{i f _
REGULAR FIRST APPEAL NO.g35/2005» .{i'1jj\j;Jj"-f "
BETWEEN
SR1. P.N. RAGHU, _
S /O. LATE B.N. NARAYANA SWAMY,
AGED ABOUT 33 YEARS, *
R/O. NO. 14, 6TH CROSS,
MAGADI ROAD, _ ._ 5 1- ___ _
BANGALORE A 560 023. ~ ' APPELLANT
(BY SRLT. SESHAGIRI ."G§jE*fHA, ADVS.)
AND
1. SMT. sHARABj_AMMA;»..4
w/ O- 4LA'FE"B.N, RARAYANASWAMY.
AGED"'ABOmf BGYEARS.
R/O. N014', 6'?!--I CROSS.
MAGAD1 ROAB;-~ "
BANGALORE 560 023.
' cANARA*'BANK,
MAGAO1 ROAD BRANCH.
MAG-Am ROAD.
BANGALORE 560 023.
BAGBANNA,
S / O. LATE NANJUNDAPPA.
AGED ABOUT 68 YEARS.
LAND LORD, BF-JGUR,
BANGALORE NORTH
TALUK~ 560 013. RESPONDENTS
[BY SR1. S. CHENNARAYA RIEIDDY, ADV. FOR C/RI. SR1. 1-"LS. RU KKOJ I RAO. ADV. FOR R2. R3 SERVED} THIS Rm IS FILED UNDER SECTION 96 R/W O 41. 'R I OF' CPC AGAINST THE JUDGMENT AND DEGREE DT.30.II_.04 PASSED IN O.S.NO.6i92/92 ON THE FILE OF THE XXII ADDL. CITY CIVIL JUDGE. BANGALORE. DISMISSING THE SUIT FOR PERPECTUAL INJUNCI"I.QI\§. PROIIIBITOR ORDER AND FOR PARTITION AND POSSESSION. ..
S.SI*AR.rIj:EA« V. THIS RFA COMING ON FORHIIIa:ARIIsII;.~-IIIVISQ.Dgiif THE COURT MADE THE FOLLOVVING: '' JUDGMEN'f,_ ' 3 This appeal is by Vthjé"»~.bp1eIintiff Jithe 'V judgment and decree i.I*I~..Q.S.NO.ESn.,1 On the file of the XXII Addl. City Civiliei
2. The";3.gI%--tieS__ w;i11~'be«. feife-rr_eV<:i' to as per their ranking. before .. .C'CI,1i"t;
3. " I The'SI_1iI_fiSVfaifhpermaneiit injunction and for prohibitery uOI'(ie'I'S"'I'eStfS.inin.g the Defendant: No.1 and v'i'}]'S.x" VVh'1=e:_preSeI1tat.iveS from alienating the Suit at Item No.1 and also from wi'IhdI"a;WiII.g"'ti1e Fixed Deposit mentioned in Item NOE H H 'A Def the Schedule.
The Case Of the p1_ai:m;.iff is that, .~B;N.Nara aIiaSw:«.1m . 801} Of Mestri Nana )3. had two } wives namely, l\/iunibayamma and Sharadamma. Narayanaswamy died on 24-07-1965 intestate leaying behind only his two wives. He had no issues out..o"f the wives. He had three immovable properties * residential premises bearing Nos..l4 and 60* Cross, Magadi Road, Banga1ore_'land"--4f' agricultural land 'avillage, Uttarahalli Hobli, Bang_alore""f-lonth-»r._fil'aldka; also possessed movable silver articles etc. pA}l:i:VV'p:t.heVlll'self acquired properties" the death of Snt. lvlunibayamma and Smt. _S_hara4d'arnma'-- managing all the properties.
"'Fhe"iplair1t'ii'f wasltalkeri in adoption in 1975 as they had the plaintiff being the nephew of Sharada_n'1rnaland also as Narayanaswarny was very arid affectionate with the plaintiff, when the sfplpaintniff was 4 years old. However, Sharadarnrna detreloped bad character, fell into the company of " undesirable people and ran away from the house. Few months after on the advise of the elders, having regard to the family respect and for future security, she came back and joined Mtmibayamma. A partition took place between Munibayamnia and Sharadamma in tl_i"e._.y--ear 1977. The said partition was registered. I11 partition, house bearing No. 14. ESv%?1"'C»ross.'_" Ru fell to the share of Munibayamma"wh.iehv 'A' schedule property. The 'B' l' V schedule bearing l\i'o,i5, to. the"'~~s»hare of Sharadamma, who is was no partition in so..far_ as 4I_aCre_s' of.Vl'a:idVVof 'Kothanur Village. Both arirjl"Sharadamma and the plaintiff iived _V bearing No.14. Both Munibayaniriia a.r1'c1 Sharadamma in order to safeguard llV'"-the-V.'pro'perty aiidV""'t.'oV avoid future misuriderstanding and to settle the property they eXe=C_t1t.ev_d Will dated 22-3~1985 bequeathing properties in favour of the plaintiff as a legatee. In svo-.far as the Kothariur property, 3 lakhs was kept in ...E?ixed Deposit in Canara Bank. However, the defendant:
is now attempting to sell the remaining properties described in Item No.1. cietrimemal to the interest. of the plaintiff. In these circtimstances, t.he plaintiff was constrained to file the suit for injunction.
5. During the pendency of the suit. the plaintiff also got the plaint. amended and Claimed become absolute owner of 3 items of neither Munibayamma or Sharatlllarnrriary title or interest in the suit propertyf-They hay-eindo lpoiiver to alienate the property. Itedm._lll'No.1 ofythe 'plaintiff schedule property wasi__p';.1t itself 1977.
The defe11dadn:tl5lhas§:i3no"right! ti't£ev'or interest in the suit schedule prpopertihf fell sick and became weak and *contraet.edfl' heart disease. Sharadamma ._treatir1g= ---- -~'Mur1ibayamma and Plaintiff; the house property bearing No. 15, 6":
Road. It came to the knowledge of
7..«._l*Munibayamma that portion of the sale price was spent V.'-h},?._S'h.aradan3ma and the rest was deposited in Bank.
fipprehendirig some more alienation. Munibayamma « V executed an aigreemeiiti of sale in favour of the plaintiff on 25--10~l987. Under the said agreement, 4 acres rag'?
landed property at Kothanur Village fell in the hands of the plaint.iff. Hence, he has desired to stay separately. Under' the said agreement, Munibayamma also gold, jewels worth Rs.6 lakhs between Smt. ~ and the plaintiff and stated "
take effect after the deathiip T "
Munibayamma died on of " if Munibayamrna, SharadammVa"*olo'pldportion 'of and she also made attempt property.
Since the Defendant 2x-1:1 defendant and iytfyinegliivfto the deposit in the Bank, hence he ::nadeflf'pa1-~ty. On these averments, the plaintiff songht fo.r'-afd.ec'r:ee of permanent injunction. suilte-.u_n1mons were served on defendants written statement. The defense of the de'fenda.ntse:'i._was that Narayanaswarny had two wives '».,,na.me1yV Munibayamma and Sharadamma and they were "'i"_1n.an'a.ging the properties. However. they denied the iritentioii of Narayanaswaniy to adopt the plaintiff and alleged that the plaintiff is not taken in adoption. The ; 53 I (-
defendants admitted that there was a partition betyveen Munibayanirna and Sharadamzna since the property at Koizhanur was the subject n1at.t.er_.uo'f * it was not included in the partition. contended that they wanted t.he."'pla.i_i"itifi" son. However, he did not thern' .inspilt~e"of' first '' defendant's love and...' affet:tion-- He cultivated bad habits of the first defendant. It and first defendant the properties in favouriof they had retained the during their lifetime. it is further th'at"'the first defendant being the f if suit schedule property bearing No.15, the same during the life time of Mniaibayaninila. The sale proceeds from the suit "property..tvvas used for improvement of the property and .l'i"oVr=maii1t.enance of their family. The plaintiff had not ~qLiest.ior1ed the alienation made by the first defendant and therefore Caniiet maintaiii the suit for bare injunction. They denied the aileged agreement: alleged to t have been executed by Muinibaiarnrna in favour of the plaintiff is a concocted document. '1' he sigriatiurelaof l\/iunibayarnrna is a forged. After the Munibayamrna with intention to "
property during the iife of first suit. Late Naraya11aswamy.»i'l1_axd " the lands under the Land }has no right whatsoever in revs'1:ie'ct' agricultural land. The Bank deposit ijelongirig to the first deferidant.u"Iii§:§.:1 son cannot question in dealing with the suit not entitled for any relief.
He never 'possession of the suit schedule ."'pro'p-erty"*.ar'1d question of his dispossession does not allegations and others, they sought for disriaissai'oifi'.»'the suit. The Trial Court in pursuance of pleadings framed issues 1 to 5 and additional issues " , li.VVto- as under:
"i. Does plaintiff prove his lawful possession of the suit properties on the date of suit'?
%'l':~
2. Does he prove that the 1%' Defendant is trying to alienate the suit properties?
3. Whether the suit in the pi~esen't._: ll maintainable'?
4. Is plaintiff entitled reliefs as
5. What decree or order?ifj»' 1 if V Additional "l. the that item No.2 of if " sjchledulelllllwas not put to the partition was effected _ henirevenl l\JIiinfii3.,a"yamma and Sharadamma? plaintiff is entitled to 50% share Tinljplaint 'B' schedule property?
the plaintiff became the absolute gov ' of the item No.1 of the schedule /igfoperty'?
A' Before the Trial Court. the plaintiff got himself examined as PW.l. He also examined ll",Wlllzirayzmappa as PW.2 and Mimibyrappa as PW.8 and l0 got marked Exs.P.l to P3. The first defendant got herself examined as DW,l, her brother as Defendant No.2 and Exs.D.1 to D.18 were marked evidence.
8. The Trial Court on .appreciation of e_vide';nc'e held that, the plaintiff has thatffhe is in lawful possession of that the plaintiff has failed defendant is trying to the property. The plaintiff suit item No.2 was not p1,i"t._in* partition Was effected and he has failed4l'ttot.p.i'ove that he has become the oWner'~0f._suit item No.1 and accordingly rasistssss suit. It is against the said judgment and decree, 'jplaintiff is in appeal.
it hf xLea.rned counsel appearing for the appellant A plaintiff stibrnitted that though the suit was for bare injtinci,ion. however the plaint got amended the plaint, and plaintiff sought for partition and separate possession in respect of schedule property. It is not 5;
in dispute that the suit schedule properties are the properties acquired by Narayanaswamy, the husband of first defendant and Munibayamma. In the written statement filed by Defendant No.1, she has execution of a registered Will dated 223- also' not in dispute that l\/lunibayamrriai-andu'--aSli.arad'a§1nm:aa got divided the propertiessunpderhlregistered'yipartitiion deed dated 3.8.1977 and properties became their exclusivel' __Mur1ibayamrr1a anticipating the harm "to the plaintiff after herwdenlised':§ha§1~.yA¢xecutedlV an agreement dated
25.l0.lVlQ.8:T«. Thoiigh_ll'thle-sdefendants have denied the agreen_1Vent,lhowever,A'the'°'plaintiff has specifically stated .lVl."«.i.£1 %,.A'-epleadingls"that by virtue of registered Will r.e>'&e.etit.-ed»..yljyVhM:u1nibayamma and Sharadamma. after the death of.llVl..unibayamma. properties devolved on the K"'~.__l"'»plaintiff__AAas a legatee under the Will and for which A y:."lSh«21Tr?'idan1ma has no right to prevent the plaintiff from .,Vclaiming the property under t.est:amenta1'y succession. it He stibmitted that though the suit is for bare injunction, since the issue as regards to the title of the ti £2.
properties has been considered by the Trial Court, as there was no dispute of execution of Will by Defendant. No.1, it does not call for proving the Will in Section 63 of the Indian Succession Act * of evidence Act. He subrnitted..t~hat_ if produced by the defendant the tax paid receipts havingcome into e.2;isteVnce''a'fter '' the suit is filed they not_.c'arry- any probative: value. The defendants have not anyf_»ey'idence to show that they have..eier_cise3d property after the dernliseifMtittibayanimauftiil"the filing of the suit. Admittedly the minor and defendant No.1 was the culstodian-. ofithelllw plaintiff and the Will being a "v;7egi's.terecl. Will, afte'r"'the death of Munibayamma, it will 'i4he:fplaintiff. He also submitted that in case of Willl.£'..iflVone of the testatoz' dies, the legatee under Willvsas against the interest of the deceased testator
-gets the right to acquire the property and this is well W ..se}ttled law in View of the judgment reported in AIR 1971 A Mysore 143 [Leo Sequiera Vs. Magdalene Sequiera Bai and others] and AIR 1959 SC 71 [Kochu Govindan C 3 £3 Kaimal and others Vs. Thayaiikoot Thekkot Lakshmi Amnia and others]. He further submitted that the question of proving the Will in accordance provisions of Section 63 of the Indian Suec_essio'nfAet';~..._p'W. arises only where the execution ofthe Wililis However, Ex.P.1 having not execution of the Will is notfdilspputed, th:erev~V_is':.._noheed " if for the plaintiff to see}: deeiiaraitoriy,relielfagaihst the defendant. It is in this leoriteficflthe has filed the suit for bare, "sale of property bearingNodSivipwillfiigpnof--.djsentitl'efor affect the plaintiffs rights tinder right after the death of one of_Vthef'testator is also not in dispute that if filing the sL1it;"'i\/Iuiiibayaninia died. When the Will .is'.L1i1ariib'igijons and being registered and one of the testat.ors .is";dead, there remains nothing to be proved by plaintiff in so far as the properties of Munibayamma is'e.o_ncerned. It is aiso clear from the Written statement ...as well as the evidence of DWJ wherein she has V adrnitted the exeemioii of the Will. It is also admitted that before the Wili was executed, there was a partition by registered pa.rt.ition deed. These facts have been admitted, the plaintiffs right as far as the proper1;iesll*of Munibayarnma is concerned. Once, title is _pi:o\?ed;'g:'~--t.h'§:._.1".
plaintiff is entitled for the decree arr§[g1.aanegnt~ injunction. He furt.her snbmitted"«'th7a:t"
Property is only a i3r0I3ert}:'.:'\'~~?3pearii;g. 'B' * if schedule property is eo.ncern'eo.Q_:*.it"~is acr.es.:of land. admittedly, in respect no partition. However, had a share in the the suit for injunction restrajning"thveg ihterfering or alienating the not only rnaintainable, but the plaintiff hVav.iVrigA'pro'\}ed his right, title and interest . V. ~oVetrf:the'.sui.t sclieldiilfe property is entitled for a decree of if injumrtion.
v:On the other hand, learned counsel 3 appearing for the defenda.nt.s subrnitted that the Will does not confer any right. on the plaintiff during life time of the testator. in this regard. he relied on EX.P.1 and submitted that though both the wives of Narayan aswamy namely. Munibayarnma and g :1'?
',.a----I 'Q-?'¥ s5 Sharadamma had partitioried the properties amongst themselves, however in the Will which is subsequent to the partition, they categorically stated th_atVl_fl..tll:.e properties are in their possession. They . right over the suit schedule p1'ope.rt_y dtiringpfthleirp"life.V W"
time and no other person will havzeranyi of death of one of the testatorsefihe'plaintifftofijperfolrm the last rites. They had alsoffretained " the right to alienate the properties' lifetime and the legatee would get the under the Will only llafterfithe::f%;i'ea:th£of the testators and after performing on this averrnent in the Will, slubri:-JttedV""that when the testators have disclosedltheirvrights in the Will, the 'Nill will be 'rrf»:1vllC_C()I'(li11g to terms of the same. Plaintiff woulyd get.~th:eAproperties only after the death of the both tesltatiors, and it is made clear in the Will. It is also _fclpear_.uthat the testator had absolute rights to enjoy the properties and right: alienate during their lifetime. V Death of one test.at.or does not give right to the plaintiff to claim the properties. Defendant No.1 has infact sold :6 item No.2 in the Will and this fact is not in dispute as the plaintiff himself has admitted in the pleadings and has not questioned the sale, this clearly amonntsito admitting that till the death. of plaintiff has no right to claim t.he.,p_rope'rty"
Will. Further submitted that l1itestia':nleln"tafyi_i document is an intention ofthie testator to of -. L' the property as they wish. Nolite.stat_nienltary_Hdoenrnent would come into force ::of the testator. If the testators _w¢;re_ c1¢a}i'i1it§l 'as regards the disposal anld"'if"they have made it clear that they have right to alienate the property and one of theV'pro'per'tyl has been alienated by one of the V' .i,esiat'oi:A"during tl"£e"'i'i'fe time of another testator, it clearly testators intended to enjoy the propertiesl'ijn'lthe manner they like and having made ''!.hat the legatee would get the properties A y:."vbeqd.ethed only after the death of both the testator. the it __plai1'1tiff will not get any right during the iife time of the V defendant No.1 who is admittedly one of the testator. He also submitted that Ex.P.1 discloses that the properties I9 and not Narayanaswamy. Hence, submitted that only for the purpose of knocking out the properties«._f_lo.f Sharadamma. the plaintiff has filed the injunction. y
12. He further reli'_ed..__.onf"~the V examination of PW--l and in the marriage invitation neither the name of name of it shows the name of. These documents have l:ieen-- l plaintiff and this evidence itself clearly that the plaintiff was not Mmiibyainnia and Sharadamma, but he with his father even at the time of and'V't:'i_tlriereafter and even at the time of his ",marriage;;. In the examination--in--chief. he claims that adopted in 1985 and he was four years. Whereas aecording to Ex.D1, by 1985, he was nearly 13 years. Even without. looking" into the evidence of the defendants, the evidence of the piaintiff itself is 20 sufficient to hold that he does not get any right under the will nor he is an adopted son of Munibyarnma and Sharadamrna nor there is any agreement which confers any title. Though the plaintiff has only sought injunction, the trial court has rightly V' additional issue and has also deeided of-thev.. property and submitted that the has the well reasoned judgment for it interference.
13. In the light of' the e.onteLn"t*ions, the point that arises this appeal is as to;
d '*-_i_'V'fhe'the'rA' th:e':»i.llplaintiff has proved his 'case has 'become the owner of the s-eliednle'"property under Ex.Pl, the will ;"'e:n'titled for permanent injunction defendants"?
' -.A*;'Whetrher plaintiff prove the adoption".
The facts, which are not in dispute are that, _ ' Narayanaswamy had married l\/iunibaymma and ..._Sharadamma and the suit schedule property and other properties were acquired by Narayanaswaniy. He died properties. but they continued to enjoy jointly. "l'hey also make it clear that in case of death of them the other heir would get the .
deceased. From the partition deed it K"
properties of any one of the one on her death but must in " it light of the deed of.partitiion."p':~th{er'. intentvionf of the testators under Will is 1;eqt1'i19e.d..i¥'t(i
19. U:_r1d'"e1-__ the testators have made it clear...t«ha'f;..y/lythegg .._wé.ll .eir1j'oy._t_h§e properties till their death, they hay*e'rightito__:ali.eriate on death of one of the testator the_Vddp1*ope_rtAies'.:o'f the deceased to go to other __Thep.l_aintiff as legatee to perform the last rites of both the testator and to enjoy There is clear declaration of intention of ''._both ';.testators that till the death of the last testator the pleiintifi" will not get any right to the properties. The division of the properties has not given any right to the plaintiff when the test.ator did not intend to create any interest: in the properties till their death, the plaintiff »éi"/'L (w of the will the properties have to be disposed of. does not get any right during the life time of defendant. No.1. In the entire Will the testators have refeitred themselves as "they" it makes it clear that . intend to give the properties duriiigtheir l_ife' 4'
20. In this case, it is n-otfltheipro'perties--7urould devolve on the another testato'I=».:.o11 one of the testator but it both testators have disclosed their properties shall be it clear that during enjoy and they have made death, they have every right to aliendteitlievlproiiertyliFtirther, it is made clear that thegnleiiztiff xivould get the possession only after their performing the last rites. It is not a dying and another testator living vvouid claim the right, but when he claim his v:rigi:t.s tinder the Will, which clearly stipulates as to how ' theyihave to be enjoyed. It only accordingly to the terms As such, the trial court on proper int4erpret:at.ion of EXs.P1 8: P2 and in the iight of the evidence has held that the
3.'?
Sharadarnrna were mentioned in the wedding invitation card. If the plaintiff was the adopted son.___ of Munibayamrna and Sliiaradamrna. he could omitted to show the name of Mtiiiibaya-rnmailri ll Sharadamrna. The evidence of the' examination clearly proves that prove the alleged adoption. V l n V V 2
22. Insofar as the giilegetduaéirelefnent lisconeemed, there is no material less even documentary jeviizlehjilcelgangd-:~rightIvi,"-theft trial Court has held that proved any agreement.
Considerin'g_these* elvidenctellon record. the trial court by well considered' judgment has dismissed the suit. . l.E3ve'nVon reconsidering the evidence on record, error committed by the trial court in
-'dismissing the suit. Hence. there is no reason to lijiziterferevvitli the judgment and decree of the trial court. ll accordingly. I pass the following : @' K' order Appeal is dismissed. The parties to bear their 0x.=.%i1-- "~«_ "*. costs.
.. V. __ .
JL.(1w~ 10) Sr1.(11 -- end)