Bangalore District Court
Was Pending Before This Court. Further ... vs Is In Possession Of The Schedule ... on 15 December, 2021
KABC010189162014 TITLE SHEET FOR JUDGEMENTS IN SUITS
IN THE COURT OF V ADDL.CITY CIVIL COURT AT BENGALURU
Present: Sri. C.D. KAROSHI, B.A., LL.M.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 15th day of December, 2021.
O.S.6742/2014
C/w
O.S. No.26835/2013
(O.S. No.6742/2014)
BETWEEN
1. Smt. D.J. Dhiviamani,
D/o Late D. Joseph and Late Amrutha Mani,
Aged about 58 years,
R/at No.123, 6th Block,
Domlur CPWD Quarters,
Bengaluru-71.
2. Smt. D.J. Aswantha Mani,
D/o Late D. Joseph and Late Amrutha Mani,
Aged about 56 years,
R/at No.2, Ground Floor,
Anniyappa Block, Benson Town,
Bengaluru-46.
3. Smt. D.J. Salathmani,
D/o Late D. Joseph and Late Amrutha Mani,
Aged about 50 years,
R/at No.2, Ground Floor,
Anniyappa Block, Benson Town,
Bengaluru-46. Plaintiffs
( By Sri. MMA. Adv.,)
2
O.S. No.6742/2014
C/w
O.S. No.26835/2013
AND
1. D.J. Soundar Raj,
S/o Late D. Joseph and Late Amrutha Mani,
Aged about 62 years
2. D.J. Dhanaraj,
S/o Late D. Joseph and Late Amrutha Mani,
Aged about 60 years
Both defendant No.1 and 2 are
R/at No.537B, Old No.13/1,
3rd Cross, Opp. Hennur Bande,
Hennur Village,
Byraweshwara Layout,
Kalyana Nagar P.O.
Bengaluru-43.
3. Smt. Elizabeth Rosey,
W/o Late D.J. Jairaj,
Aged about 60 years
4. Smt. Anitha,
D/o Late Jairaj,
Aged about 40 years
5. Smt. Sophia Nancy,
D/o Late Jairaj,
Aged about 38 years
6. Sri. Prathap Standly,
S/o Late Jairaj,
Aged about 35 years
7. Smt. Dares Devikarani,
D/o Late Jairaj,
Aged about 33 years
Defendant No. 3 to 7 are
R/at No.8, 12th Cross Road,
Chinnappa Garden,
Benson Town Post,
Bengaluru-46.
3
O.S. No.6742/2014
C/w
O.S. No.26835/2013
8. Sri. D.J. Packia Raj,
S/o Late D. Joseph and Late Amrutha Mani,
Aged about 57 years,
R/at No.8, 12th Cross Road,
Chinnappa Garden,
Benson Town Post,
Bengaluru-46. Defendants
(D.1- By Sri. DP, D.2, 8- By Sri. KRK
D.3 to 7 Sri.MGSDC, advocates)
(O.S. No.26835/2013)
BETWEEN
1. Smt. Elizabeth Rosy,
W/o Late Sri. D.J. Jayaraj,
Aged about 67 years
2. Sri. Stanley Pratap,
S/o Late Sri. D.J. Jayaraj,
Aged about 38 years
3. Smt. Anitha,
D/o Late Sri. D.J. Jayaraj,
Aged about 42 years
4. Smt. Sofia Nancy,
D/o Late Sri. D.J. Jayaraj,
Aged about 40 years
5. Smt. Doris,
D/o Late Sri. D.J. Jayaraj,
Aged about 36 years
All are R/at No.8, 12th Cross,
Chinnappa Garden,
Benson Town Post,
Bengaluru-46. Plaintiffs
( By Sri. KLD. Adv.,)
4
O.S. No.6742/2014
C/w
O.S. No.26835/2013
AND
1. Sri. Soundar Raj,
S/o Late D. Joseph
2. Sri. Dhanaraj,
S/o Late D. Joseph
Both defendant No.1 and 2 are
R/at Old No.13/1, New No.537B,
3rd Cross, Opp. Hennur Bande,
Byraweshwara Layout,
Kalyana Nagar P.O.
Bengaluru-43.
3. Sri. Packiaraj,
S/o Late Sri. D. Joseph,
R/at No.8, 12th Cross,
Chinnappa Garden,
Benson Town Post,
Bengaluru-46. Defendants
(D.1- By Sri. DB, D.2- By Sri. KRP
D.3- By Sri. AMV, advocates)
(Proposed D.4 to 6-By Sri.MAC, advocate-
in view of transfer of O.S. No.26835/2013 from
CCH-29 to this court and clubbing orders
passed by this court, I.A. No.1/16 filed by the
proposed defendants who are the plaintiffs in
O.S. No.6742/2014 does not survive for
consideration)
5
O.S. No.6742/2014
C/w
O.S. No.26835/2013
(O.S. No.6742/2014)
Date of institution of the Suit : 03/09/2014
Declaration,Partition and
Nature of the Suit :
permanent injunction
Date of commencement of
: 27/03/2017
recording of evidence
Date on which the Judgment was
: 15/12/2021
pronounced
Year Months Days
Total Duration :
07 03 12
(O.S. No.26835/2013)
Date of institution of the Suit : 28/11/2013
Nature of the Suit : Declaration and partition
Date of commencement of
: 27/03/2017
recording of evidence
Date on which the Judgment was
: 15/12/2021
pronounced
Year Months Days
Total Duration :
08 00 17
[ C.D. KAROSHI ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
6
O.S. No.6742/2014
C/w
O.S. No.26835/2013
-: COMMON JUDGEMNT :-
The plaintiffs have filed O.S. No.6742/2014 against the
defendants for the relief of declaration, partition and permanent
injunction in respect of 1/7th share each in the suit schedule
property along with cost of the suit.
The plaintiffs in O.S. No.26835/2013 have sought the relief of
declaration and partition against the defendants in respect of their
1/4th share in the suit schedule property along with the cost of the
suit.
2. Records reveal that O.S. No.6742/2014 filed by the
plaintiffs was pending before this court. Further O.S. No.26835/2013
filed by the plaintiffs therein was pending before CCH-29. In view of
the orders dated 02/03/2018 passed by the Hon'ble Prl. City Civil &
Sessions Judge, Bengaluru in Misc.No.181/2017, O.S.
No.26835/2013 which was pending before CCH-29 was withdrawn
and transferred to this court. in view of transfer of O.S.
No.26835/2013 from CCH-29 to this court and clubbing orders
passed by this court, I.A. No.1/16 filed by the proposed defendants
who are the plaintiffs in O.S. No.6742/2014 again question of
considering the said application does not arise.
3. Further in view of the orders on I.A. No.2 dated
12/07/2019 passed by this court, in order to conserve the judicial
time and for the sake of convenience to both the parties, O.S.
7
O.S. No.6742/2014
C/w
O.S. No.26835/2013
No.26835/2013 came to be clubbed with O.S. No.6742/2014 and the
case was posted for adducing common evidence and to dispose of
the matters in accordance with law.
4. The brief facts of both the suits are as under :
That, the plaintiffs in O.S. No.6742/2014 being the daughters
of late D. Joseph and late Amrutha Mani have filed the suit against
the defendants stating that the plaintiffs and defendants 1, 2, 8 and
late Jairaj/husband of defendant No.3 and father of defendant No.4
to 7 are the son of late D. Joseph and late Amrutha Mani who died
on 28/11/1980 and 28/06/2002 respectively. Further it is averred
that, their parents jointly purchased the schedule property bearing
No.8, situated at 12th Cross, Chinnappa Garden, Bengaluru-46 Old
No.3 formed in Sy.No. 92/3 of Kayamgutta Baiderahalli village to the
extent of east to west 72 feet and north to south 40 feet under a
registered sale deed dated 21/10/1963. Further it is averred that,
during the life time of mother of the plaintiffs, though the plaintiffs
along with the defendants were given portion of the schedule
property for residence since the schedule property consisting of
number of tenements and parties to the suit are in possession and
enjoyment of the same, but after the death of their parents intestate
when the plaintiffs demanded their respective share in the schedule
property the defendants postponed the same and made attempt to
change katha in respect of the schedule property in their name,
accordingly the plaintiffs gave a representation to the BBMP, but it
came to know that defendant No.1, 2 and 8 got the schedule
property partitioned along with the mother on 13/08/1999 ignoring
8
O.S. No.6742/2014
C/w
O.S. No.26835/2013
the right of the plaintiffs, accordingly the plaintiffs got issued the legal
notice dated 11/06/2014 and when the defendants did not turn up
they filed the present suit based on cause of action dated
01/04/2014, 09/06/2014 and 11/06/2014 respectively.
5. Similarly, the plaintiffs in O.S. No.26835/2013 being the
legal heirs of late D.J. Jairaj who is none other than one of the sons
of late D. Joseph and late Amrutha Mani have filed the suit against
the defendants the genealogical tree is as under:-
Joseph (Late)
Amruthamani( Late)
Son Son Son Son
Jayaraj(Late) Soundaraj(D1) Dhanraj(D2) Packiaraj(D3)
Elizabeth Rosy(Wife P1)
Son Daughter Daughter Daughter
Stanley Pratap(P2) Anitha(P3) Sofia Nancy(P4) Doris(P5)
Further it is averred that, the plaintiffs and defendants are the
co-owners of the property bearing Plot No.3, New BBMP No.8
formed in Sy.No. 92/3, measuring 72 x 40 feet situated in Chinnappa
Garden, Bengaluru-46 which was being purchased by late D. Joseph
and late Amrutha Mani under a registered sale deed dated
9
O.S. No.6742/2014
C/w
O.S. No.26835/2013
21/10/1963. Further it is averred that, the suit schedule property is
the ancestral property of the plaintiffs and defendants. But their
grandfather and grandmother died intestate leaving behind the
plaintiff's father and defendants to succeed their estate, as such they
are entitled to their respective 1/4th share in the schedule property
as the father of plaintiffs died on 17/06/1998.
Further it is averred that the schedule property is the joint
family property and plaintiffs and defendants are in joint possession
of the same with uninterrupted possession as co-owners, but
subsequent to the death of father of plaintiffs the defendants without
partitioning the schedule property made hectic efforts to alienate the
same and when the plaintiffs demanded to effect partition on several
occasion, they did not turn up, accordingly the plaintiffs got issued
legal notice and when the defendants failed to comply their demand
they have filed the present suit based on cause of action dated
09/03/2013 and 06/05/2013. On these grounds plaintiffs in both the
suits prayed for decreeing the suits.
6. Records reveal that, the contesting defendant No.1, 2
and 8 in O.S. No.6742/2014 and defendant No.1 to 3 in O.S.
No.26835/2013 being the common defendants filed the written
statement contending that, suits of the plaintiffs are not maintainable
either in law or on facts and liable to be dismissed. Further contend
that suits of the plaintiffs are frivolous and mischievous are being
filed to coerce the defendants to the terms of the plaintiffs. Further
the plaintiffs are guilty of suppressio veri and suggestio false besides
10
O.S. No.6742/2014
C/w
O.S. No.26835/2013
misusing the process of law to have unlawful gain and have not
come to the court with clean hands. Further the plaintiffs have filed
both the suits based on fabricated and concocted documents by
suppressing the true facts before the court. Further there is no merit
or bonafides in the plaint averments. The plaintiffs are not in
possession of the schedule property on the other hand the 1 st
defendant is in possession of the schedule property. The averments
regarding relationship are true. Further it is true that Sri. D. Joseph
and Amrutha Mani died on 28/11/1980 and 28/06/2002, but the
averments that Jairaj died and represented by legal heirs are not
within the knowledge of the defendant.
Further contend that though averments regarding acquisition
of schedule property by the parents under a registered sale deed
dated 21/10/1936 is true, but the averments made in para 5 to 7 of
the plaint in O.S. No.6742/2014 are false and incorrect. Further
contend that, though the plaintiffs are aware that there was partition
in the schedule property on 13/08/1999, but the plaintiffs have filed
the suit in order to coerce the defendants to meet the illegal
demands of the plaintiffs though they were given monetary benefits,
gold ornaments at the time of their marriage. Similarly, the husband
of the 1st plaintiff and father of remaining plaintiffs in O.S.
No.26835/2013 is concern the late Jairaj during the life time of his
parents has received the share by cash and thereby released himself
from the family and leaving independently, as such he was not party
to the partition deed as he quit the joint family as such he was not
entitled to any share in the family property.
11
O.S. No.6742/2014
C/w
O.S. No.26835/2013
Further contend that both the suits are barred by limitation as
they filed the same after lapse of 17 and 15 years respectively by
challenging the partition deed though the plaintiffs had knowledge
about the same. The plaintiffs have not paid proper court fee. On
these grounds prayed for dismissal of both the suits with exemplary
costs.
7. Further it is contended in the written statement filed by
defendant No.2 and 3 in O.S. No.26835/2013 that, the averments
made in para No.2 to 10 are admitted by defendant No.2 and 3 and
contents of para No.11 of the plaint are denied and the plaintiff be
put to strict proof of the same. Further contend that, with regard to
para No.11 that they have got their share accordingly. Further the
contents of para No.12 is partly admitted that the plaintiffs have
issued a legal notice dated 09/03/2013 and 06/05/2013 demanding
the defendants to partition the suit schedule property and as a matter
of fact the defendant No.2 and 3 are nothing to do with said issue
between the plaintiffs and the defendant No.1 and contents of rest of
the paras in the plaint are all admitted. On these grounds states that
they are not the necessary parties to the suit.
8. Further the defendant No. 3 to 7 in O.S. No.6742/2014
contend that, plaintiffs have filed the suit seeking declaration that
they are entitled for 1/7th share each in the schedule property and
also sought the relief of injunction stating that, the partition deed
dated 13/08/1999 is not binding on them. Further contend that the
schedule property was purchased in the joint names of D. Joseph
12
O.S. No.6742/2014
C/w
O.S. No.26835/2013
and Amrutha Mani under a sale deed dated 21/10/1963 and after the
demise of said Joseph, Amrutha Mani and Jairaj the schedule
property has devolved upon the plaintiffs and defendants,
accordingly the defendants have already filed O.S. No.26835/2013
as against defendant No.1, 2 and 8, but with an ulterior and malafide
intention they are denying the legitimate share of the plaintiffs and
these defendants based on alleged deed of partition referred supra.
On these grounds prayed for decree the suit by declaring the shares
of the plaintiffs and defendants.
9. Basing on above narrated pleadings my predecessor in office
has framed the following issues in O.S. No.6742/2014:-
1) Whether the plaintiffs prove that the suit
schedule properties are joint family properties
of plaintiffs and defendants?
2) Whether the plaintiffs are entitled for 1/7th
share each in the suit schedule properties?
3) Whether the plaintiffs prove that partition
deed dated 13/08/1999 executed by defendant
Nos.1, 2 and 8 with their mother is not binding
on them?
4) Whether the defendant No.1 proves that suit
of the plaintiffs is not maintainable?
5) Whether the defendant No.1 proves that suit
of the plaintiff is barred by limitation?
6) Whether the defendant No.1 proves that the
suit of the plaintiff is undervalued and court
fee paid is insufficient?
7) Whether plaintiffs are entitled for the reliefs
sought for?
8) What order or decree?
13
O.S. No.6742/2014
C/w
O.S. No.26835/2013
10. Basing on above narrated pleadings this court has framed the
following issues in O.S. No.26835/2013:-
1) Whether the plaintiffs prove that the suit
schedule property is the ancestral property of
themselves and defendants?
2) Whether the plaintiffs further prove that
they are in joint possession and enjoyment of
the schedule property along with the
defendants?
3) Whether the 1st defendant proves that there
was a partition in the family properties by
virtue of registered partition deed dated
13/08/1999?
4) Whether the plaintiffs are entitled for the
reliefs as sought for?
5) What order or decree?
11. In view of clubbing orders for adducing common
evidence, in order to prove their case the 3 rd plaintiff in O.S.
No.6742/2014 examined herself as PW.1 and got marked the
documents at Ex.P1 to P4. On the other hand inspite of giving
sufficient opportunities the plaintiffs in O.S. No.26835/2013 and
contesting defendants in both the suits did not adduce oral or
documentary evidence. Accordingly both the suits were being
posted for addressing arguments by rejecting I.A. No.5 vide
considered orders.
12. Heard the counsels for plaintiffs in both the suits and
defendant No.3 to 7 in connected suit. The contesting defendant
No.1,2 and 8 did not address arguments. Accordingly case was
posted for judgment with following observation as per the entries in
order sheet dated 19/11/2021:-
14
O.S. No.6742/2014
C/w
O.S. No.26835/2013
1 ನನನ ಪಪತವವದ ಮತತತ ವಕನಲರತ ಕಕಗಸಲವಗ ಬನಳಗಗನ
ಅವಧಯಯದ ಗನಗರತ ಹವಜರತ ಇರತತವತರನ. ಅವರ ಪರವವಗ ಪವಪಕಕ
ವಕನಲರತ ತಮಮ ಹರಯ ವಕನಲರತ ಬನನರನ ನವನಯವಲಯದಲಲ ಇರತತವತರನ
ಮತತತ ನಯತರ ಬರತತವತರನ ಎಯದತ ಹನನಳ ಪಪನನ ಗನಗರತ ಹವಜರತ ಇರತತವತರನ.
1 ನನನ ಪಪತವವದ ಹವಜರತ ಇರತತವತರನ ಮತತತ ಪಪನನ ಅವರ ವಕನಲರತ
ಬರತತವತರನ ಎಯದತ ಹನನಳಳತವತರನ.
ರನಕನಜವನವಮಯನತನ ಪರಶನಲಸಲವಗ ದನವಯಕ 19-12-
2020 ರಯದ ದನವಯಕ 3-2-2021 ರವರನಗನ ಇಬಬರತ ವವದ ವವವದಕವಕಗ
ಕನನಸನತನ ಇಡಲವಗದತದ ಹವಗಕ ವಕನಲರ ವನಯತ ಮನರನಗನ ದವವನಯನತನ
ತನರರಗವಗ ಕವಯದರಸಲವಗತತತ. ಪಪನನ ಮಧನಯತರ ಅರರ 3 ಮತತತ 4 ರ
ಮನಲನ ಆದ ಆದನನಶದ ಮನರನಗನ 1 ನನನ ಪಪತವವದಯ ವಕನಲರಗನ ಪವಟನ
ಸವವಲತ ಮವಡಲತ ಇನನಕನಯದತ ಅವಕವಶ ನನಡಲವಗತತತ. ಆದರನ
ಇದತವರನಗಕ ಪವಟನ ಸವವಲತ ಮವಡದತದ ಇರತವಪದಲಲ ಮತತತ
ಉದನದನಶಪಪವರಕವವಗ ಈ ದವವನಯನತನ ಎಳನಯತತತರತವಪದವಗ ಕಯಡತ
ಬಯದರತತತದನ. ವವದ ಪರ ವಕನಲರತ ಕಳನದ ಒಯದತ ವರರದಯದ
ಕವಯತತತದದರಕ ಕಕಡವ 1 ನನನ ಪಪತವವದ ಪಪಕರಣ ನಡನಸತತತಲಲ ಎಯದತ
ಹನನಳಳತವತರನ.
ಮವನನ ಗಗರವವನನತ ಸರನರಚಚ ನವನಯವಲಯದವರತ
ಶಪನಮತ ವನತವ ಶಮರ ಪಪಕರಗಳಲಲ ಪವಲತ ವಭವಗ ದವವನ ಗಳಲಲ ಆರತ
ತಯಗಳ ಒಳಗವಗ ತನಮವರನಸಲತ ಆದನನಶಸರತತವತರನ ಕವರಣ ಮತನತ
ಮತಯದಕಡಲತ ಸಮಯಜಸ ಕವರಣಗಳಳ ಇರತವಪದಲಲ. ಆದದರಯದ 1 ನನನ
ಪಪತವವದ ವನಯತಯನತನ ತರಸಕರಸ ಪವಟನ ಸವವಲತ ಇಲಲ ಎಯದತ
ಪರಗಣಸಲವಯತತ.
13. My findings on the issues in O.S. No.6742/2014 are as under:-
Issue No.1&2 Partly in the affirmative.
Issue No.3 In the affirmative.
Issue No.4to6 In the negative.
Issue No.7 Partly in the affirmative.
My findings on the issues in O.S. No.26835/2013 are as under:-
Issue No.1&2 Partly in the affirmative.
Issue No.3 In the negative.
Issue No.4 Partly in the affirmative.
Issue No.8&5 in both the suits :- As per final order
for the following,
15
O.S. No.6742/2014
C/w
O.S. No.26835/2013
-: R E A S O N S :-
14. Issue No.1 to 4 in O.S.No.6742/2014 and Issue No.1
to 3 in O.S. No.26835/2013 :- I take these issues altogether for my
discussion as they are inter related to each other and for the sake of
convenience.
15. It is worth to note that the plaintiffs in O.S. No.6742/2014
have filed the suit against the defendants for the relief of declaration,
partition and permanent injunction in respect of 1/7th share each in
the suit schedule property. It is also worth to note that, the plaintiffs
in O.S. No.26835/2013 have sought the relief of declaration and
partition against the defendants in respect of their 1/4th share in
the suit schedule property. In order to prove their case the plaintiff
No.3 in O.S. No.6742/2014 has filed an affidavit in lieu of oral
evidence by reiterating the entire averments of the plaint as stated in
para 2 supra, examined herself as P.W. 1 and got marked the
documents at Ex.P.1 to P.4, as such I feel that again it is not
necessary to reproduce the same.
16. Records reveal that inspite of giving sufficient
opportunities from 12/07/2019 till 19/11/2021 the evidence of P.W. 1
remained unchallenged by the contesting defendants in both the
suits. It is to be noticed that, in view of clubbing orders dated
12/07/2019 on I.A.No.2 passed by this court the defendant No.3 to
7 who are the plaintiffs in connected O.S. No.26835/2013 also
16
O.S. No.6742/2014
C/w
O.S. No.26835/2013
submitted that they have no cross-examination of P.W. 1. In such
circumstances, this court has to appreciate the oral and documentary
evidence available on record and to see that, in whose favour
preponderance of probability lies.
17. In this connection if we go through the material on record
we can find that, late D. Joseph and late Amrutha Mani during their
life time purchased the schedule property under a registered sale
deed dated 21/10/1963 and this fact has not been disputed by the
parties. However, it is the case of the plaintiffs in O.S. No.6742/2014
who are none other than the daughters of late D. Joseph and
Amrutha Mani that though the schedule property was being
purchased jointly in the name of parents of the plaintiffs, but the sale
consideration was paid by one Sri. M.N. Chittiappa-planter S. Coorg
under whom father of plaintiffs was working as driver. Further it is
another contention of the plaintiffs that, their parents died intestate,
accordingly parties to the suit are in possession and enjoyment of
the schedule property, but the defendant No.1, 2 and 8 got the
schedule property partitioned along with their mother on 13/08/1999
by ignoring the rights of the plaintiffs with a dishonest intention to
cause wrongful loss to the plaintiffs as such the said partition deed is
not binding on them.
18. Similarly, it is the case of the plaintiffs in O.S.
No.26835/2013 who are none other than the wife and children of late
D.J. Jairaj S/o late D. Joseph and Amrutha Mani that the suit
schedule property is the ancestral property of plaintiffs and
17
O.S. No.6742/2014
C/w
O.S. No.26835/2013
defendants which was being acquired under a registered sale deed
dated 21/10/1963 and their grandfather and grandmother died
intestate and schedule property is the joint family property in the
joint possession of plaintiffs and defendants as such they also
entitled for 1/4th share in the schedule property, which has also been
remained unchallenged except filing written statement by the
contesting defendants.
19. It is pertinent to note here that, on careful evaluation of
oral and documentary evidence on record, it is clear that, so far as in
respect of relationship between the plaintiffs and defendants in both
the suits is concern there is no dispute. It is also not in dispute that,
late D. Joseph and Smt. Amrutha Mani acquired the schedule
property under a registered sale deed dated 21/10/1963 as per
Ex.P.3 certified copy of the sale deed relied by parties in both the
suits. It is worth to note that, though the plaintiffs in both the suits
would contend that the schedule property is the ancestral property
and they are in joint family and enjoying the same jointly, but it is an
admitted fact that parties to both the suits are governed by
Christianity, as such provisions of Indian Succession Act 1925 are to
be made applicable to the facts of both the cases on hand. This
being the fact concept of joint family property or coparceners under
Hindu Law not applicable to the Christians, as such late D. Joseph
and Amrutha Mani who said to have acquired the schedule property
being the absolute joint owners entitle to divide or distribute their
property as per their wish and will.
18
O.S. No.6742/2014
C/w
O.S. No.26835/2013
20. In the case on hand it is not in dispute that late D.
Joseph died intestate leaving behind the plaintiffs and defendants to
succeed his estate. Further his wife late Smt. Amrutha Mani also
died intestate, as such it is the case of the plaintiffs in both the suits
that they are entitle for their legal share in the suit schedule property.
Per contra it is the case of the contesting defendant No.1, 2 and 8
that, in view of registered partition deed effected on 13/08/1999 as
per Ex.P.4 the plaintiffs in both the suits are not entitle for any share
in the schedule property which has been seriously disputed by the
plaintiffs.
21. As could be seen from the perusal of contents of written
statement filed by contesting defendants along with Ex.P.4 certified
copy of partition deed dated 13/08/1999 that during the life time of
late Smt. Amurtha Mani defendant No.1 Soundaraj, defendant No.2
Dhanraj and defendant No.3 and 8 in both the suits by name
Packiaraj got divided the schedule property that too by excluding the
L.Rs of plaintiffs in O.S. No.26835/2013 i.e. another son of late D.
Joseph by name D.J. Jairaj. It is also worth to note that the plaintiffs in
the said suit though furnished genealogical tree by showing the legal heirs
of late D. Joseph and Amrutha Mani but they have also suppressed the
plaintiffs in O.S. No.6742/2014 being the three daughters of late D. Joseph
and Amrutha Mani though none of the defendants dispute the said aspect.
Ex.P.1 katha extract pertains to the schedule property also stands in
the name of late Amrutha Mani as on date of suit. This being the fact
when the parties to both the suits are governed by Christianity then
the relevant provisions of the Indian Succession Act, 1925 attracts.
19
O.S. No.6742/2014
C/w
O.S. No.26835/2013
22. A plain reading of Section 33, 37 and 38 of the Indian
Succession Act, 1925 reads as under:-
Section 33. Where intestate has left widow
and lineal descendants, or widow and kindred only,
or widow and no kindred- Where the intestate has left
a widow-
a) if he has also left any lineal descendants,
one-thirds of his property shall belong to his widow, and
the remaining two thirds shall go to his lineal
descendants, according to the rules hereinafter
contained;
b) If he has left no lineal descendant, but has
left persons who are of kindred to him, one half of his
property shall belongs to his widow, and the other half
shall go to those who are kindred to him, in the order
and according to the rules hereinafter contained;
c) if he has left none who are of kindred to him,
the whole of his property shall belong to his widow.
Section 37. Where intestate has left child
or children only- Where the intestate has left surviving
him a child or children, but no more remote lineal
descendant through a deceased child, the property
shall belong to his surviving child, if there is only one,
or shall be equally divided among all his surviving
children.
Section 38. Where intestate has left no
child, but grand-child or grand children- Where the
intestate has not left surviving him any child but has left
a grand child or grand-children and no more remote
descendant through a deceased grand child, the
property shall belong to his surviving grand-child if
there is one, or shall be equally divided among all his
surviving grandchildren.
23. In the case on hand when the late D. Joseph has left his
wife Smt. Amrutha Mani being the widow and plaintiffs and
defendants in both the suits as lineal descendants then while
20
O.S. No.6742/2014
C/w
O.S. No.26835/2013
effecting partition under Ex.P.4 dated 13/08/1999 in respect of the
suit schedule property as per the provisions of Section 33 (a) of the
Indian Succession Act the defendant No.1, 2 and 8 being the sons of
late D. Joseph and Amrutha Mani ought to have included late
Amrutha Mani, L.Rs of late Jairaj and his daughters in the said
partition, but it appears that they got executed the said partition deed
by excluding late Amrutha Mani and parties to both the suits which is
contrary to the provisions of Section 33(a) of the Act, accordingly the
plaintiffs in O.S. No.6742/2014 being the daughters of late D. Joseph
and Amrutha Mani have rightly sought declaration to the effect that
the alleged partition deed dated 13/08/1999 referred supra is not
binding on the remaining legal heirs of late D. Joseph and Amrutha
Mani and it has to be considered accordingly.
24. In the circumstances of the case, the provisions of
Section 37 of the Act would attract to facts of the case and parties to
the suit in O.S. No.6742/2014. Similarly the provisions of Section 38
of the Act would attract to the parties to the suit in O.S.
No.26835/2013 being the daughter-in-law and grandchildren of late
Joseph and Amrutha Mani.
25. It is evident from perusal of Ex.P.2 legal notice along with
postal receipts and acknowledgments that prior to filing of the suit
the plaintiffs in main suit have got issued legal notice by calling upon
the defendants to effect partition, but it appears that despite service
of legal notice also the contesting defendants have neither replied
nor complied. Further the entire claim of the plaintiffs in both the suits
21
O.S. No.6742/2014
C/w
O.S. No.26835/2013
and evidence of P.W. 1 remained unchallenged and un-rebutted by
the contesting defendants inspite of giving sufficient opportunities by
this court, as such an adverse inference can validly be drawn against
them.
26. Therefore having regard to the facts and circumstances of
the case it can be said that the alleged partition deed dated
13/08/1999 got executed by Soundaraj, Dhanraj and Packiaraj sons
of late D. Joseph and Amrutha Mani by excluding the daughters and
legal heirs of another son late Jairaj is not binding, accordingly in
view of the provisions of Section 33, 37 and 38 of the Indian
Succession Act, 1925 the schedule property shall be equally divided
among the parties being the lineal descendants and grandchildren of
late D. Jospeh and Amrutha Mani in both the suits.
27. However, so far as in respect of relief of permanent
injunction as sought for by the plaintiffs in O.S. No.6742/2014 is
concern absolutely there is no material on record, as such the
plaintiffs in that suit are not entitled for said relief. For these reasons
arguments advanced on behalf of the plaintiffs partly holds good and
contention of the contesting defendants in respect of relief of
declaration and partition claimed by the plaintiffs in both the suits are
not entitle cannot be accepted. Hence, in O.S. No.6742/2014
I answer Issue No.1 and 2 partly in the affirmative and Issue No.3 in
the affirmative. Further in O.S. No.26835/2013 I answer Issue No.1
and 2 partly in the affirmative and Issue No.3 in the negative.
22
O.S. No.6742/2014
C/w
O.S. No.26835/2013
28. Issue No. 4 in O.S.No.6742/2014:- It is another contention
of the defendant No.1 that suit of the plaintiffs is not maintainable,
but in view of my discussion made supra it is not in dispute that
parties in both the suits are governed by Christian religion as such
provisions of Indian Succession Act, 1925 are applicable. Further it
is an admitted fact that, late D. Joseph and Smt. Amrutha Mani who
acquired the schedule property jointly, died intestate leaving behind
parties in both the suits as widow and lineal descendants and
grandchildren, as such in view of Section 33 and 38 of the Act suit of
the plaintiffs is maintainable. Hence, I answer Issue No.4 in the
negative.
29. Issue No. 5 in O.S.No.6742/2014:- It is another
contention of the 1st defendant that, suit of the plaintiffs is barred by
limitation. It is the specific case of the plaintiffs that, the defendant
No.1, 2 and 8 have got executed Ex.P.4 partition deed dated
13/08/1999 by excluding remaining heirs who are parties to both the
suits by keeping them under dark with a dishonest intention to cause
loss. In this regard, in para 8 of the plaint it is stated that, cause of
action arose to file the suit after the death of the plaintiffs father and
mother, when they requested to effect partition and in turn the
defendants informed as plaintiffs are not entitled to any share in the
schedule property on 01/04/2014 and on the date of issuance of
legal notice on 09/06/2014 and despite service of notice on
11/06/2014 when the defendants failed to comply the demand and
thereafter the plaintiffs have filed the suit in the month of September
2014 itself, as such suit for the partition filed seeking declaration of
23
O.S. No.6742/2014
C/w
O.S. No.26835/2013
their share in the schedule property by holding the alleged partition
deed as not binding on them, as such suit is in time. Hence, I
answer Issue No.5 in the negative.
30. Issue No. 6 in O.S.No.6742/2014:- The defendant No.1
would contend that the valuation made and court fee paid by the
plaintiffs is insufficient, but as could be seen from perusal of records
along with valuation slip that plaintiffs have valued the suit towards
their share in the schedule property and paid court fee of Rs. 625/-
as required under Section 35(2) and 26(c) of the Act stating that
plaintiffs and defendants are in possession of the schedule property
which is just and proper. Hence, I answer Issue No.6 in the
negative.
31. Issue No. 4 in O.S.No.26835/2013 and Issue No.7 in
O.S. No.6742/2014:- In view of my discussion made supra while
dealing with Issue No.1 to 3 in O.S. No.26835/2013 and Issue No. 1
to 6 in O.S. No.6742/2014 and considering the relationship between
the parties, I am of the opinion that, both the suits deserve to be
partly decreed without cost. Hence, I answer Issue No.4 and 7 in
both the suits partly in the affirmative.
32. Issue No. 5 in O.S.No.26835/2013 and Issue No.8 in
O.S. No.6742/2014:- For the foregoing reasons, I proceed to pass
the following :
24
O.S. No.6742/2014
C/w
O.S. No.26835/2013
ORDER
Both the suits in O.S. No.6742/2014 and 26835/2013 are partly decreed.
It is ordered and declared that plaintiffs in O.S.No.6742/2014 are altogether entitled for 3/7th share in the suit schedule property, holding that the alleged partition deed dated 13/08/1999 executed amongst defendant No.1, 2 and 8 is not binding.
Further it is ordered that, plaintiffs/legal heirs of late D.J. Jairaj S/o late D. Joseph and late Amrutha Mani in O.S. No.26835/2013 who have been arrayed as defendant No.3 to 7 in O.S. No.6742/2014 are altogether entitled for 1/7th share in the suit schedule property.
Similarly the defendant No.1, 2 and 8 in main suit who have been arrayed as defendant No.1 to 3 in connected suit are altogether entitled for remaining 3/7th share in the suit schedule property.
The relief in respect of permanent injunction as sought for in O.S. No.6742/2014 stands dismissed.
No order as to cost.
Draw preliminary decree accordingly. Office to keep the original judgment in the main suit and copy thereof in the connected suit.
[ Dictated to the Stenographer directly on computer, corrected by me and then pronounced in the Open Court on 15th day of December 2021 ].
[ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 25 O.S. No.6742/2014 C/w O.S. No.26835/2013 ANNEXURE List of witness examined on behalf of Plaintiffs PW.1 Smt. D.J. Salath Mani List of documents exhibited on behalf of Plaintiffs Ex.P1 Khatha extract Ex.P2 Copy of notice dated 09/06/2014 Ex.P2(a) Four postal receipts Ex.P2(b) Four postal acknowledgments Ex.P3 Certified copy of sale deed dated 21/10/1963 Ex.P4 Certified copy of partition deed dated 13/08/1999 List of witness examined on behalf of Defendants NIL List of documents exhibited on behalf of Defendants NIL [ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 26 O.S. No.6742/2014 C/w O.S. No.26835/2013 Operative portion of the judgment pronounced in open court vide separate judgment:-
ORDER Both the suits in O.S. No.6742/2014 and 26835/2013 are partly decreed.
It is ordered and declared that plaintiffs in O.S.No.6742/2014 are altogether entitled for 3/7th share in the suit schedule property, holding that the alleged partition deed dated 13/08/1999 executed amongst defendant No.1, 2 and 8 is not binding.
Further it is ordered that, plaintiffs/legal heirs of late D.J. Jairaj S/o late D. Joseph and late Amrutha Mani in O.S. No.26835/2013 who have been arrayed as defendant No.3 to 7 in O.S. No.6742/2014 are altogether entitled for 1/7th share in the suit schedule property.
Similarly the defendant No.1, 2 27 O.S. No.6742/2014 C/w O.S. No.26835/2013 and 8 in main suit who have been
arrayed as defendant No.1 to 3 in connected suit are altogether entitled for remaining 3/7th share in the suit schedule property.
The relief in respect of permanent injunction as sought for in O.S. No.6742/2014 stands dismissed.
No order as to cost.
Draw preliminary decree
accordingly.
Office to keep the original
judgment in the main suit and copy
thereof in the connected suit.
[ C.D. KAROSHI ]
V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 28 O.S. No.6742/2014 C/w O.S. No.26835/2013 ORDERS ON I.A.No.5 The learned counsel for defendant No.1 has filed the present application under Section 151 of CPC to recall of the order dated 19/11/2021 in order to facilitate the 1st defendant to cross-examine the P.W. 1 by reopening the case from the stage of arguments for the reasons assigned in the accompanying memorandum of facts stating that plaintiffs have filed the suit for partition along with the relief of declaration and permanent injunction and case was posted on 19/11/2021 for cross- examination of P.W.1.
2. Further it is arrayed that on that day junior advocate appearing for defendant No.1 prayed to pass over the case stating that his senior was engaged in cross-examination of another case at Mayo Hall court which was direction matter, but after completing the same when he reached this court came to know that case was called out and posted for judgment by taking cross-examination of P.W. 1 as nil.
3. Further it is arrayed that though this court was kind enough to grant sufficient opportunities to cross-examine the P.W. 1 the same could not be made use of as the defendant No.1 is a senior citizen and suffering from various ailments as such he could not approach the counsel and give instructions to the counsel to proceed with the case.
Further he was also waiting for settlement of the case amicably rather than protracting the proceedings, but plaintiffs did not disclose the same before the court, as such the defendant has good 29 O.S. No.6742/2014 C/w O.S. No.26835/2013 case on merits, but evidence of P.W. 1 goes unchallenged and further the defendant has not been provided to lead his evidence. On these grounds prayed for allowing the application.
4. Records reveal that when the case was posted for judgment the counsel for defendant No.1 got advanced the case on 02/12/2021 and filed the present application to recall of orders dated 19/11/2021 for the reasons referred supra. The plaintiffs and counsel also did not turn up, accordingly objections taken as not filed. None of the counsels addressed arguments on I.A.No.5, accordingly taken as nil and posted for orders today.
5. The point that arises for my consideration is:
"Whether I.A. No.5 deserves to be allowed at this stage ?"
6. My answer to the above point is in the negative for the following
-: R E A S O N S :-
7. It is pertinent to note that, admittedly the plaintiffs have filed O.S. No.6742/2014 against the defendants for the relief of partition and separate possession of their legal share in the suit schedule property in the year 2014. The defendants appeared and filed written statement. This court framed issues in the month of January 2017 itself and plaintiff also examined as P.W. 1 in the month of April 2017 and thereafter case has been posted for cross- examination of P.W. 1 till 12/07/2019.
8. In view of the orders passed by the Hon'ble Prl. City Civil & Sessions Judge, Bengaluru in Misc. Petition No.181/2017, the O.S. No.26835/2013 filed by the remaining parties for the same subject matter and against the present defendants came to be 30 O.S. No.6742/2014 C/w O.S. No.26835/2013 withdrawn and transferred to this court.
9. Further in view of the orders on I.A. No.2 dated 12/07/2019 O.S. No.26835/2013 came to be clubbed with O.S. No.6742/2014 and the case was posted for adducing common evidence, but even then the defendants did not turn up. Accordingly, on 23/01/2020 cross-examination of P.W. 1 taken as nil and case was posted for defendants evidence. On 04/03/2020 the counsel for defendant No.1 was present and again prayed time and thereafter it was adjourned on several dates till 14/12/2020, accordingly evidence of defendants taken as nil and case was posted for arguments about one year back. This being the fact, the contention of the defendant No.1 that no opportunity was given to adduce evidence cannot be accepted.
10. Further after hearing common arguments on merits in both the suits on plaintiffs side case was posted to submit arguments on the side of defendant No.1, 2 and 8 in both the suits at the request. On 03/01/2021 counsels present and submitted that they had no further arguments in both the suits, accordingly case was posted to 26/02/2021 for judgment, but on that day counsel for defendant No.1 present and filed I.A. No.3 and 4 to reopen and recall of P.W. 1 for the purpose of cross-examination and on next date of hearing i.e. on 08/03/2021 both the I.As came to be allowed on payment of cost. But again the defendants did not turn up for cross- examination of P.W. 1 on several dates till 19/11/2021, accordingly on that day this court passed the following orders:-
Case called out in the open court. Perused the endorsement. PW1 present. Other side absent i.e. defendant No.1 and counsel absent. Proxy counsel prays time stating that her senior is not available.31
O.S. No.6742/2014 C/w O.S. No.26835/2013 Counsel for plaintiff strongly objects. Perused the order sheet along with records. This is a suit for partition and case was posted for judgment in the month of February-2021 defendant No.1 got recalled the witness.
Further there is a specific direction of the Hon'ble Apex court in the case of Smt. Vineeta Sharma for speedy disposal of partition suits, no grounds to adjourn, call later.
V ACC & SJ, Bengaluru.
Again called out at 1.30 and 1.45 pm. PW1 and counsel present. Defendant No.1 present and again states that his senior is come. Other side objects.
1 ನನನ ಪಪತವವದ ಮತತತ ವಕನಲರತ ಕಕಗಸಲವಗ ಬನಳಗಗನ ಅವಧಯಯದ ಗನಗರತ ಹವಜರತ ಇರತತವತರನ. ಅವರ ಪರವವಗ ಪವಪಕಕ ವಕನಲರತ ತಮಮ ಹರಯ ವಕನಲರತ ಬನನರನ ನವನಯವಲಯದಲಲ ಇರತತವತರನ ಮತತತ ನಯತರ ಬರತತವತರನ ಎಯದತ ಹನನಳ ಪಪನನ ಗನಗರತ ಹವಜರತ ಇರತತವತರನ. 1 ನನನ ಪಪತವವದ ಹವಜರತ ಇರತತವತರನ ಮತತತ ಪಪನನ ಅವರ ವಕನಲರತ ಬರತತವತರನ ಎಯದತ ಹನನಳಳತವತರನ.
ರನಕನಜವನವಮಯನತನ ಪರಶನಲಸಲವಗ ದನವಯಕ 19-12-2020 ರಯದ ದನವಯಕ 3-2-2021 ರವರನಗನ ಇಬಬರತ ವವದ ವವವದಕವಕಗ ಕನನಸನತನ ಇಡಲವಗದತದ ಹವಗಕ ವಕನಲರ ವನಯತ ಮನರನಗನ ದವವನಯನತನ ತನರರಗವಗ ಕವಯದರಸಲವಗತತತ. ಪಪನನ ಮಧನಯತರ ಅರರ 3 ಮತತತ 4 ರ ಮನಲನ ಆದ ಆದನನಶದ ಮನರನಗನ 1 ನನನ ಪಪತವವದಯ ವಕನಲರಗನ ಪವಟನ ಸವವಲತ ಮವಡಲತ ಇನನಕನಯದತ ಅವಕವಶ ನನಡಲವಗತತತ. ಆದರನ ಇದತವರನಗಕ ಪವಟನ ಸವವಲತ ಮವಡದತದ ಇರತವಪದಲಲ ಮತತತ ಉದನದನಶಪಪವರಕವವಗ ಈ ದವವನಯನತನ ಎಳನಯತತತರತವಪದವಗ ಕಯಡತ ಬಯದರತತತದನ. ವವದ ಪರ ವಕನಲರತ ಕಳನದ ಒಯದತ ವರರದಯದ ಕವಯತತತದದರಕ ಕಕಡವ 1 ನನನ ಪಪತವವದ ಪಪಕರಣ ನಡನಸತತತಲಲ ಎಯದತ ಹನನಳಳತವತರನ.
ಮವನನ ಗಗರವವನನತ ಸರನರಚಚ ನವನಯವಲಯದವರತ ಶಪನಮತ ವನತವ ಶಮರ ಪಪಕರಗಳಲಲ ಪವಲತ ವಭವಗ ದವವನ ಗಳಲಲ ಆರತ ತಯಗಳ ಒಳಗವಗ ತನಮವರನಸಲತ ಆದನನಶಸರತತವತರನ ಕವರಣ ಮತನತ ಮತಯದಕಡಲತ ಸಮಯಜಸ ಕವರಣಗಳಳ ಇರತವಪದಲಲ. ಆದದರಯದ 1 ನನನ ಪಪತವವದ ವನಯತಯನತನ ತರಸಕರಸ ಪವಟನ ಸವವಲತ ಇಲಲ ಎಯದತ ಪರಗಣಸಲವಯತತ.
11. It is to be noticed that, both the suits were being filed by the plaintiffs against the defendants for 32 O.S. No.6742/2014 C/w O.S. No.26835/2013 the relief of partition and separate possession of their legal share in the suit schedule property, but the defendants in both the suits were not diligent in prosecuting their defense. This being the fact, if once again this court consider I.A. No.5 filed by the defendant for the similar reasons then there will be no end for such a litigations and would become contrary to amended provisions of Order XVII Rule 1 CPC as inserted by the Amendment Act No.46/1999 dated 01/07/2002. Further such an adjournment in partition suits is also not permissible as per the instructions given by the Hon'ble Apex Court of India in the case of Vineetha Sharma with a direction to dispose the pending partition suits within the stipulated period. For the aforesaid reasons I find that I.A. No.5 is liable to be dismissed without cost. Hence, I answer the point raised for consideration in the negative and proceed to pass the following:-
ORDER I.A.No.5 filed under Section 151 of CPC to recall the orders dated 19/11/2021 by the counsel for defendant No.1 stands rejected.
No order as to cost and proceed to pronounce the operative portion of the common judgment vide separate orders.
(C.D. Karoshi) V ACC&SJ, BENGALURU