Bangalore District Court
Dr.Veena Raghuraj vs Mrs.Saroja Desikachar on 13 November, 2015
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE (CCH-36)
DATED THIS THE 13th DAY OF NOVEMBER 2015
Present: Sri.G.B.Mudigoudar, B.Sc.,LL.B (Spl).,
XXXV Addl.CC & SS Judge, Bangalore.
O.S.NO.8964/2013
Plaintiffs : 1. Dr.Veena Raghuraj
W/o.Dr.Raghu Raj,
Aged about 47 years,
R/o.Apartment No.5,
Avantika Villa, Badriya Nagar,
Taliparambam,
Kannur District,
Kerala State-670141.
2. Vidya D.Belur,
W/o.Kasturi Belur,
Aged about 42 years,
R/o.House No.39, 4th Cross,
Judicial Officers Layout,
RMV-II Stage,
Bangalore-560 094.
(Represented by Sri.P.N.H. advocate)
-Vs-
Defendants : 1. Mrs.Saroja Desikachar,
W/o.Late Dr.G.Desikachar,
Aged about 70 years,
R/o.No.2988, 'Ashwini',
12th Main, HAL-II Stage,
Indira Nagar, Bangalore-8.
2 O.S.8964/2013
2. G.D.Sudarshan,
S/o.Late Dr.G.Desikachar,
Aged about 45 years,
Permanent R/o No.2988,
'Ashwini', 12th main,
HAL-II stage, Indira Nagar,
Bangalore-8.
And presently residing at
No.2027, Lemon wood court
San Ramon, California-94582,
U.S.A.
3. G.D.Srinivas,
S/o.Late Dr.G.Desikachar,
Aged about 44 years,
Advocate,
R/o.No.2988, 'Ashwini''
12th main, HAL-II Stage,
Indira Nagar,
Bangalore-8.
4. Adrianse India Pvt. Ltd.,
No.2988,
'Ashwini', 12th main,
HAL-II stage, Indira Nagar,
Bangalore-8.
Represented by its executive
Director Mr.Athul Kukreja.
(Sri.BSP - advocate for defendant
Nos.1 & 2,
Sri.ADR & Smt.R.G. advocates for
defendant No.3)
Sri.EVR - advocate for defendant
No.4)
*********
3 O.S.8964/2013
JUDGMENT
The plaintiffs' - daughters have filed this present suit against the defendants' mother and brothers to pass a judgment and decree in respect of ancestral and self acquired property of deceased Dr.G.Desikachar, setting aside the partition deed, dated 27-03-2003 in their favour with costs and compensatory costs.
2. The contents of the plaintiffs' runs as under:-
(1). It is submitted that the defendant No.1 is a wife, the petitioners are daughters and defendants are sons of Dr.G.Desikachar S/o.Tirumalachar. It is further submitted that Dr.G.Desikachar worked as Professor of Surgery at Bangalore Medical College and Superintendent of Bowring Hospital Bangalore. He had expired on 05-02-2003 at Bangalore and the plaintiffs and defendants are his legal heirs.
(2). It is submitted that plaintiffs and the defendants together constituted an 4 O.S.8964/2013 undivided joint Hindu family. No partition has ever taken place among them.
(3). It is pertinently stated that the plaint 'A" schedule properties namely the agricultural dry land admeasuring 2 acres 25 guntas in Sy.No.70/1P and Sy.No.68/2P admeasuring 1 acre in extent both are situated at Ganjigatte village B.Durga Hobli, Holalkere Taluk, Chitradurga District fell to the share of deceased Dr.G.Desikachar in his family partition which are morefully mentioned and described in the schedule and hereinafter referred to as suit 'A' schedule properties. As a matter of fact the suit 'A' schedule properties are dry lands and deriving absolutely no profits or income at all.
(4). It is submitted that the revenue house site property formed in Sy.No.175/3 of Mandli village, Kasaba Hobli, Shimoga Taluk bearing block No.3 admeasuring 40ft x 65ft, in extent more fully mentioned and described in the schedule purchased 5 O.S.8964/2013 by late Dr.Desikachar from his self earning vide registered sale deed dated: 09-02-
1993 bearing SR No.5229/1992-93.
Hence, the suit 'B' schedule property was the self acquired and separate property of the plaintiffs father Dr.G.Desikachar.
(5). It is submitted that the site bearing No.2988 admeasuring East-West - 18.30 metres and North-South- 26.53 metres situated at 12th main Road, HAL-II stage, Indira Nagar, Bangalore was acquired by plaintiffs father Dr.G.Desikachar by means of an absolute registered sale deed dated: 14-08-1987 vide SR No.1415/1987-88 executed by BDA Bangalore more fully mentioned and described in the schedule below and hereinafter called the suit 'C' schedule property. The said suit 'C' schedule property was purchased by plaintiffs father G.Desikachar from his self earnings and exertions. It is further submitted that the plaintiffs' father subsequently constructed the ground floor by spending good amount 6 O.S.8964/2013 of money from his own earnings. It was personally occupied by him along with plaintiffs and defendants. Again two more floors were annexed to the said building during the life time of the plaintiffs' father and as such the suit 'C' schedule property was also self acquired and separate property of the plaintiffs' father G.Desikachar.
(6). It is submitted that the date of birth of plaintiff No.1 is 123-08-1965 and that of plaintiff No.2 is 18-06-1971. The plaintiff No.1 & 2 are married and living with their respective husbands. It is submitted that the marriage of plaintiff No.1 took place in the year 1990 and that of the plaintiff No.2 in the year 1996. Similarly the marriage of defendant No.2 took place in the year 1997 and that of the defendant No.l3 in the year 2002. In other words the marriages of the plaintiffs and defendant Nos.2 & 3 were performed and celebrated by the plaintiffs' father Dr.G.Desikachar by incurring huge 7 O.S.8964/2013 expenses. It is further submitted that the defendant No.2 is settled down at USA and the defendant No.1 & 3 are residing together in the ground floor of the suit 'C' schedule property.
(7). It is submitted that the 1st and 2nd floor building of the suit 'C' schedule property were let out on lease basis and the rental income to the knowledge of the plaintiffs is being collected by the defendant No.1 to 3. During the life time of plaintiffs' father the plaintiffs were being looked after with love and affection. Unfortunately after the death of their father, the defendants began to neglect and ignore the plaintiffs in all respect. As a matter of fact the plaintiffs repeatedly requested the defendant No.1 to 3 to furnish proper accounts regarding the rental income being received by them since the said income is not being shared with the plaintiffs. Unfortunately the defendant No.1 to 3 postponed the said event under one pretext or the other. The plaintiffs 8 O.S.8964/2013 with a view to maintain cordiality and good relationship among the family members tolerated the evasive measures being adopted by the defendants in the above matter. But by passage of time they have completely neglect the plaintiffs and went to the extent of questioning their locus standy to ask for the accounts. The plaintiffs being disgusted and disappointed with the attitude of the defendants expressed their desire and intention to become divided by taking their legitimate shares in the suit schedule properties in the month of February 2013. Even though the defendant No.1 to 3 passively agreed for the same, did not initiate any steps to divide the suit schedule properties through the registered deed of partition. The plaintiffs placed their demands repeatedly but in vain. In the circumstances the plaintiffs seriously pressed their demands for partition into service in the month of April 2013 for which also no expected response came from the defendants' side. In the mean time the plaintiffs also came 9 O.S.8964/2013 to know that the defendant No.1 to 3 have clandestinely and surreptitiously created a sham and colorable documents styled as Deed of partition dated: 27-03-2003 registered vide SR No.6233/2002-03 with false recitals therein. As a matter of fact the said document is absolutely not binding on the interest of the plaintiffs. It is ex-facie null and void, illegal and fraudulent document calculatedly created to defeat the interest of the plaintiffs over the suit schedule properties by the defendant No.1 to 3 if possible. In other words the alleged deed of partition dated:
27-03-2003 does not in anyway eclipse the rig ht, title or interest of the plaintiffs' over the suit schedule properties. The defendant No.1 to 3 have colluded together in creating the said document to deceive and defraud the plaintiffs who are also having equal rights and equal shares in the suit schedule properties. It is further relevantly mentioned that the defendant No.1 to 3 on the basis of the said void and illegal deed of partition got changed the 10 O.S.8964/2013 khata into their respective names quo the suit schedule properties. When the said fact came to the knowledge of the plaintiff, they enquired with the defendants as to why the said document is made by excluding them for which the defendant No.1 to 3 furnished no proper reply at all. However the defendant No.1 to 3 have tendered assurance that they would set right the matter to see that the legitimate shares of the plaintiffs will be given to them. Even though sufficient time being granted, the defendants did absolutely nothing in that direction. The enquires made by the plaintiffs regarding the above matter with the defendants also yielded no results. Whereas on the other hand the attitude of the defendant No.1 to 3 over the above matter disclosed that they are trying to hoodwink the plaintiffs to make wrongful gain. Under the circumstances the plaintiffs are constrained to approach this Hon'ble Court to get their legitimate shares in the suit schedule properties.11 O.S.8964/2013
(8). It is submitted that presently the 1st floor of the suit 'C' schedule property is occupied by the defendant No.4 as tenant. As per the knowledgeable information the rent is fixed at Rs.1,33,000/- per month from 10th of May 2013 to 9th May 2014 and from 10th May 2014 to 9th May 2014 the rent is fixed at Rs.1,43,000/- per month and from 10th May 2015 to 9th May 2016 the rent is fixed at Rs.1,53,00/- per month. Even thought he plaintiff demanded their shares in the rental income, the defendants without any just and valid reasons with held the same with ulterior purpose. It is further submitted that presently the 2nd floor is vacant as the tenant occupied the said floor had vacated. As told above elsewhere the ground floor is occupied by defendant No.1 to 3.
(9). It is submitted that the plaintiffs and the defendant No.1 to 3 being the successors of Late Dr.G.Desikachar all of them are in joint possession of the suit 12 O.S.8964/2013 schedule properties. As told above the suit 'A' schedule properties are ancestral properties and that of the suit 'B ' and 'C' schedule properties are self acquired properties of deceased Dr.G.Desikachar.
Hence, the plaintiffs and defendant No.2 & 3each en titled to 6/25th share and defendant No.1 is entitled to 1/25th share in the suit ''A' schedule properties and the plaintiffs and defendants 1 to 3 are entitled to 1/5th share each in the suit 'B' and 'C' schedule properties. (As the suit 'A' schedule properties is an ancestral property, the notional partition is made allotting the share to the deceased Dr.G.Desikachar whose share is again allotted in favour of plaintiffs and defendant No.1 to 3).
(10). It is submitted that when the plaintiffs have intensified their demands for partition and separate possession of the suit schedule properties, under the guise of void and illegal deed of partition dated: 27-03-2003 the defendant No.1 to 3 13 O.S.8964/2013 have been making hurried and hectic efforts to transfer, alienate and create heavy encumbrance over the suit schedule properties to see that the plaintiffs' interest over the suit schedule properties is defeated by taking advantage of Khata being secured in their names. If the defendants either jointly or singularly emerge successful in their above ulterior purpose, the plaintiffs' valuable rights will be seriously affected. Added to that it would generate multiple litigations and in that event the plaintiffs' interest over the suit schedule properties will be greatly jeopardized. The defendant No.1 to 3 have absolutely no right to do so without the consent and concurrence of the plaintiffs and as such it is just and necessary to restrain and refrain them from doing so until such time the plaintiffs are put in possession of their legitimate shares in the suit schedule properties. Hence this suit.
(11). The cause of action for the suit arose from the month of 14 O.S.8964/2013 February 2013 when the plaintiffs put forward their demands for partition and separate possession of their shares in the suit schedule properties and also subsequently when the defendant No.1 to 3 postponed the event of the said partition under of pretext or the other and also when the plaintiffs came to know of the illegal, fraudulent and void document styled as deed of partition dated: 27-03-
2003 vide SR No.6233/2002-03 got created by the defendants behind their back without joining them as parties and also subsequently when the defendants failed to get the said document annulled and cancelled as promised by them and also when the defendants No.1 to 3 repudiated to furnish the rental accounts and dodged to partitioning the suit schedule properties by metes and bounds through the registered deed of partition.
(12). It is submitted that the suit 'A' schedule properties are situated at Ganjigatte village, B.Durga Hobli, H 15 O.S.8964/2013 Holalkere Taluk, Chitradurga District. The suit 'B' schedule property is situated at Mandli village, Kasaba Hobli, Shimoga Taluk. The suit 'C' schedule property is situated at Indira Nagar, Bangalore. Hence, this Hon'ble has territorial jurisdiction to try and dispose of the suit as the suit 'B' schedule property is situated within the jurisdiction of this Hon'ble Court.
(13). The suit is valued as per the valuation slip enclosed herewith and the court fee is paid accordingly.
(14). The suit is valued as per the valuation slip enclosed herewith and the court fee is paid accordingly.
(15). It is therefore, humbly prayed that the Hon'ble Court may kindly be pleased to pass a Judgment and decree in favour of the plaintiffs and against the defendants:-
16 O.S.8964/2013
(1).For partition and separate possession of plaintiffs'6/25th share each in the suit 'A' schedule properties and 1/5th share each in the suit 'B' & 'C' schedule properties by metes and bounds;
(2). For mesne profits from the date of suit till the plaintiffs are put in actual possession of their shares in the suit schedule properties to be enquired under Order 20 rule 12 of CP Code;
(3). For declaration that the purported deed of partition dated: 27-03- 2003 registered as No.6233/2002-03 in the office of the Senior Sub-registrar, Shivaji Nagar, Bangalore allegedly made among defendant No.1 to 3 in respect of the suit schedule properties is null and void, illegal, fraudulent, and in as much as not binding on the plaintiffs' right, title or interest over the suit schedule properties;
(4). For permanent injunction restraining the defendant No.1 to 3 either singularly or jointly or through out their 17 O.S.8964/2013 authorized agents from selling, transferring, alienating, charging and encumbering the suit schedule properties in any manner whatsoever until such time the plaintiffs' legitimate share is charged out by metes and bounds and put them in actual and physical possession of the same;
(5). For court costs and litigation expenses.
(6). And grant such appropriate reliefs as the Hon'ble Court deems just and expedient under the facts and circumstances of the case in the interest of justice, equity and good conscience.
3. On filing the written statement of defendant No.3, the plaintiffs have filed their re-joinder, which runs as follows:-
(1). What is stated in para-1 of the written statement that the suit is not maintainable an it is liable to be dismissed for the reason that it is barred by 18 O.S.8964/2013 limitation, it is bad for mis-joinder of parties and the suit is under valued and suit is not liable to be valued under section 35(2) of the Karnataka Court fees and suit valuation Act and that the 4th defendant is not a necessary party is absolutely untenable and unsustainable both in law and on facts. Firstly the plaint averments are expricitly clear that at no point of time partition had taken place in the joint family of the plaintiffs and defendant No.1 to 3 involving the plaintiffs and that the alleged partition purportedly made among the defendant No.1 to 3 is ex-facie illegal, void and not binding on the plaintiffs' legitimate shares. It is clearly stated that the plaintiffs came to know of the alleged deed of partition dated:27-03-2003 vide SR.No.6233/2002-03 only in the month of February 2013 when they put forward their demands of partition. Hence if the period is reckoned from the date of knowledge of the alleged partition the suit is perfectly within the period of limitation.
Even otherwise the suit cannot be termed 19 O.S.8964/2013 as barred by limitation for the reason that the defendant No.3 sought to contend that there was a partition in the year 2003 i.e., 27-03-2003 and if the period of limitation is reckoned as per Article 110 of the Limitation act the suit is within a period of 12 years and from that angle also the suit cannot be treated as time barred.
Secondly the 4th defendant is joined as party in the above case only for a limited purpose of recovering the rentals during the pendency of the suit to avoid any future complications keeping in view of the size of the rent. The plaintiffs and defendant No.1 to 3 after the sad demise of Dr. G.Desikachar are in joint possession and enjoyment of the suit schedule properties and such being the case the suit is property valued and court fee paid is proper and sufficient.
(2). What is stated in para-2 of the written statement vis-à-vis the ration laid down by the Hon'ble Apex court reported in 2011 STPL (Web) 886 Supreme court is 20 O.S.8964/2013 inapplicable to the case on hand.
Admittedly except Item No.1 of the suit schedule properties the rest of the suit schedule properties namely Item No.2 & 3 of the suit schedule properties were self acquired properties of Dr.G.Desikachar. Such being the case the succession opened immediately after the death of Dr.G.Desikachar who had expired on 05.02.2003. Therefore, the plaintiffs and defendant No.1 to 3 are equally entitled for Item No. 2 & 3 of the suit schedule properties. In so for as Item No.1 of the suit schedule properties are concerned in view of amended Hindu Succession Act the plaintiffs are entitled for equal share. It is submitted that the plaintiffs are not parties to the alleged deed of partition dated:27-03-2003 vide SR No.6233/2002-
03. The plaintiffs being legitimate sharers ought to have been joined as parties and in the absence of the same the alleged deed of partition is absolutely void ab-initio, illegal and not binding on the plaintiffs and 21 O.S.8964/2013 accordingly the plaintiffs have sought for declaration.
(3). What is stated in para-3 of the written statement that the address furnished in the cause title of the plaint regarding plaintiff No.1 and that of document No.1 is distinct and different for the reason that the item No.3 of the suit schedule property being a family dwelling house. It might be that her name is also included in the voter list and as such the defendant No.3 cannot make any other meaning at all.
(4). What is further stated in para-3 of the written statement that the 2nd defendant is an American Citizen and he had left India way back in the year 1991 and he is owning his own establishment in America may be true. At the same time the defendant No.2 still retained Indian Citizenship and as such there is no embargo for the 2nd defendant to own and possess properties in India. It is submitted that the 2nd plaintiff was in USA 22 O.S.8964/2013 during the year 1997 but she has already returned to India and settled down at Bangalore in the cause title address. Hence it does not make any difference in the above suit. The rest of the averments in para-3 of the plaint are not within the knowledge of the plaintiffs.
(5). What is stated in para-4 of the plaint that the suit 'B' &'C' schedule properties are self earned properties of late Dr.G.Desikachar and the suit 'A' schedule property is an ancestral property is whole heartedly admitted by the defendant No.3 and in view of the above categorical and unambiguous admission the plaintiffs suit is liable to be decree as prayed for.
(6). What is further stated in para-4 of the written statement that as per the oral partition during the life time of late Dr.G.Desikachar the suit schedule properties were divided between himself defendant No.1 to 3 and as per the said oral partition the ground floor portion of the suit 'C' schedule property was to be 23 O.S.8964/2013 retained by late Dr.G.Desikachar and first defendant jointly and the first floor portion of the suit 'C' schedule property was to be transferred to the defendant Nol3 and 2nd floor portion of the suit 'C' schedule property was to be transferred to the defendant No.2 is absolutely false and baseless. No such oral partition had ever taken place during the life time of Dr.G.Desikachar. The above allegations are vague and uncertain and required particulars of the alleged oral partition is conspicuously missing. It is again false that unfortunately late Dr.G.Desikacahr had expired before partitioning the suit schedule properties as per the arrangement by alleged oral partition and they are only self serving and interested testimony of the defendant No.3.
(7). What is further stated in para-4 of the written statement that huge amount of money were spent for the education of the plaintiffs and defendant No.2 id apparently false for the obvious reason 24 O.S.8964/2013 that all three of them are meritorious students and secured seats on their merits but not by spending money as alleged. If at al money is spent it is for the defendant No.3 who has successively failed in his educational career. The further say of the defendant No.3 that Dr.G.Desikachar spent very little amount for the education of defendant No.3 and also he was compelled to work in the sick medical unit cannot be countenanced at all. Since the defendant No.3 was unsuccessful in completing his educational course in time, his father in order to keep him engaged got opened a medical unit by spending pretty huge amount. Unfortunately on account of mismanagement of defendant No.3 the said unit became sick and ultimately closed. It is fantasy to allege that defendant No.3 had spent all his money and worked as full time contractor for construction of building. He had absolutely no money to spent and therefore it is a concocted version. The rest of the analogy and hypothesis set out 25 O.S.8964/2013 by the defendant No.3 in the remaining para-4 is absolutely baseless and hereby stoutly denied and defendant No.3 is called upon to prove the same.
(8). What is stated in para-5 of the written statement is partly true and partly untrue. It is true that Mr.S.T.Ranganath is the maternal uncle of the plaintiffs and defendant No.2 & 3 and full blood brother of defendant No.1.
But it is absolutely false that Mr.S.T.Ranganath drafted the deed of partition dated: 27-03-2003 by affixing his signature as self drafted and the said deed of partition has been drafted in terms of oral partition. It is submitted that there is absolutely no reference whatsoever with regard to the alleged oral partition in the alleged deed of partition dated: 27-03-2003 and therefore the contentions of the defendant No.3 is wholly false and baseless. It is clearly visible that the said deed of partition is drafted by defendant No.3 himself but not 26 O.S.8964/2013 by S.T.Ranganath. It is not understood why his name is written and struck off. It is submitted that the defendant NO.3 idly spent the precious period of 10 years without earning anything and he is a parasite of his father. It is only after the death of his father, Mr.S.T.Ranganath being an advocate by profession and maternal uncle of defendant No.3 encouraged him to embrace advocacy.
Unfortunately instead of complementing him the defendant No.3 sought to make unwarranted remarks against Mr.S.T.Ranganath, advocate, Shimoga.
9. What is stated in para-6 of the written statement that the defendant No.2 financially assisted his father to put up additional two floors over the suit 'C ' schedule property may be true but the plaintiffs have no first hand information about the same. The further allegations made in the same para that in the year 2008 the plaintiff wanted a share from the defendant No.1 and the maternal 27 O.S.8964/2013 Uncle Mr.S.T.Ranganath had prepared a will to share the ground floor of the suit ''C' schedule property into 4 parts and the defendant No.3 graciously suggested to the defendant No.1 to divide her share in the suit 'C" schedule property between the plaintiffs equally are not within the knowledge of the plaintiffs and therefore, it is denied as false and concocted and the defendant No.3 is called upon to prove the same. What is further stated in para-6 of the written statement that the defendant No.3 financially helped the defendant No.1 and allowed her to part away all her income to the police station and every year the defendant No.3 financially helped the plaintiffs to keep up the pious Hindu culture on most of the festival days is false and concocted.
10. What is further stated in para-6 of the written statement that defendant No.3 has no objections to club all the assets of the plaintiffs and defendant No.1 & 2 to pool all the assets movable 28 O.S.8964/2013 and immovable properties and maternal assets being enjoyed by S.T.Ranganath and also Lrs. of S.T.Krishna Murthy by excluding female members including defendant No.12 and her sisters namely Mrs.Lakshmi, Mrs.Lalita and Mrs.Indira and divide the same by bringing all the parties on record is alleged within proper comprehension of true and correct facts. Whatever may be the case the said proposal of the defendant No.3 is neither maintainable nor palatable and in as much as it is totally foreign to the subject matter of the present suit.
(11). What is stated in para-7 of the written statement is totally meaningless. In what way the plaintiffs are benefited financially from the alleged oral partition and in what way they are exonerated their rights over the suit 'A' schedule property is not forthcoming at all and in the absence of the same the averments in para-7 of the plaint does not make any meaning at all.
29 O.S.8964/2013
(12). What is stated in para-8 of the written statement that the suit 'C' schedule property was mortgaged and money was raised to meet the expenses of the defendant No.2 etc., is not within the knowledge of the plaintiffs and even otherwise it will not have any impact on the case at all.
(13) What is further stated in para-
8 of the written statement that the defendant No. 2 & 3 have equally contributed for construction of first and second floor of the building of the suit 'C' schedule property is false. The defendant No.3 had nothing during the relevant time to contribute financially for construction of the building. To the knowledge of the plaintiffs Dr.G.Desikachar personally supervised the construction of floors in the suit 'C' schedule property with the assistance of the chartered Engineers who were appointed by him. Hence the defendant No.3 made such allegations without 30 O.S.8964/2013 comprehending the truth. Regarding the leasing of the suit 'C' schedule property by defendant No.1 is concerned it is not know n to the plaintiffs. With regard to payment of taxes to the suit 'C' schedule property is concerned since by that time the defendant No.3 had settled down in America and plaintiffs were married and as such the defendant No.3 did the work of remitting the taxes by receiving money from his mother namely defendant No.1 because he had no independent income.
(14). What is further stated in para-
8 of the written statement that after the alleged partition the defendant No.2 earlier had rented the 2nd floor of the suit 'C' schedule property by virtue of the deed of partition dated: 27-03-2003 and defendant No.3 is also helping the defendant No.2 in managing the suit 'C' schedule property and helping him in his business s not know to the plaintiffs and defendant No.3 is called upon to prove the same.
31 O.S.8964/2013
(15). What is stated in para-9 of the written statement that major portion of the construction costs of the floors of the suit 'C' schedule property was contributed by the defendant No.2 & 3 is nothing but the repetition of the earlier averments and they are false and incorrect. Even otherwise the averments in para-9 of the written statement cannot be weighed in the eye of law taking into consideration the purpose of the above suit.
(16). What is further stated in para-
9 of the written statement that the plaintiffs and defendants were not occupied the ground floor of the building is false. The physical occupation of the ground floor by the plaintiffs is not at all relevant in the present context of the suit. However admittedly the plaintiffs and defendant No.1 to 3 have been in joint possession and occupation of the ground floor building of the suit 'C' schedule property which is a family dwelling 32 O.S.8964/2013 house. The rest of the allegations are nothing but the repetition of the earlier paragraphs and the defendant No.3 is called upon to prove the same.
17. What is stated in para-10 of the written statement that money's were spent plaintiffs marriages by their father is only half truth. But plaintiffs' father spent more than Rs.5.00 lakhs for the marriages of plaintiffs No.1 and Rs.10.00 lakhs for the marriages of the plaintiffs No.2 besides gifting diamond and gold jewelers and entire maternity care of plaintiff No.1 was taken over by Late Dr.G.Desikachar is virtually incorrect.
However marriages were done in consonance with his financial capacity. The further say of the defendant No.3 that the marriage expenses of defendant No.2 & 3 were borne by their respective in-laws is not true. It is further stated that plaintiffs' father gifted gold and diamond ornaments to the wives of defendant No.2 & 3 during the time of 33 O.S.8964/2013 marriage costed in terms of lakhs and the defendant No.3 cleverly concealed the same.
18. What is stated in para-11 of the written statement that the defendant No.1 had rented out the ground floor portion of the suit 'C' schedule property and rent was taken away by the plaintiffs is absolutely false and baseless. The further averments in the same para regarding leasing of suit 'C' schedule property by defendant No.1 to 3 is not within the knowledge of the plaintiffs till recently. The further averments that plaintiffs are well aware of the oral partition during the time of their father late Dr.G.Desikachar and subsequent registered deed of partition dated:
27.03.2003 and Mr.S.T.Ranganath has poisoned the mind of the plaintiffs are totally false and baseless. It is submitted that the defendant No.3 has resorted to make reckless allegations in the rest of the para and they are denied in toto.34 O.S.8964/2013
19. What is stated in para-12 of the written statement that the defendant No.3 had invested huge amount for improving the 1st floor of the suit 'C' schedule property and receiving the rentals is false. However the defendant No.3 is receiving sumptuous amount of rentals of Rs.1,33,000/- per month excluding TDS of 10% and he is accountable for the same. It is because of this reason the plaintiffs requested this Hon'ble court to issue direction to the tenants to deposit the rentals to this Hon'ble Court because in the event of the decreeing the suit of the plaintiffs it is very difficult for the plaintiff to recover their share from the defendant No.3. The rest of the allegations in para-12 of the written statement are neither true nor correct and the defendant No.3 is called upon to prove the same.
20. What is stated in para-13 & 14 of the written statement that in view of the registered deed of partition dated: 27- 35 O.S.8964/2013 03-2003, the plaintiffs are not entitled for any reliefs cannot be countenanced because the alleged deed of partition is absolutely not binding the rights of the plaintiffs and in as much as it is void and illegal.
21. What is stated in para-15 & 16 of the plaint that the plaintiffs and defendants are residents of Bangalore and the deed for partition was registered at Bangalore, this Hon'ble Court has no jurisdiction to entertain the suit is absolutely incorrect. Admittedly item No.2 of the suit schedule property is situated in Shimoga and when part of cause of action has arisen for the present suit, the defendant NO.3 cannot be heard to contend that this Hon'ble Court has no jurisdiction to entertain the suit. The allegations hurled on Mr.S.T.Ranganath is unwarranted and false and the defendant No.3 has resorted to make such derogatory statement without any warrantable circumstances.
36 O.S.8964/2013
22. What is stated in para-17 of the written statement that the relief for cancellation of registered partition deed dated: 27-03-2003 claimed by the plaintiffs is barred by limitation is patiently false. The plaintiffs have not sought for cancellation of the alleged instrument. Whereas the plaintiffs sought for declaration that the said instrument is not binding on their interest. The say of the defendant No.3 that the plaintiffs are required to value the suit under Section 38 of the Karnataka Court Fees and Suit Valuation Act and they are required to pay court fee of Rs.14,12,010-00 on the plaint is totally misconceived and untenable.
23. The defendant No.3 in the written statement caption has also mentioned along with Order 8 Rule 1, Order 8 Rule 6-A is also included in the sense he has counter claim against the plaintiffs. But the body of the written statement does not disclose what exactly 37 O.S.8964/2013 the counter claim made by the defendant No.3. In the circumstances the plaintiffs reserved their right to file the written statement to the counter claim if necessary after same being pointed out by the defendant No.3.
24. What is not traversed hereinabove and which are repugnant to the true spirit of plaint and re-joinder statement is hereby denied and disputed and the defendant No.3 is put to strict proof of the same.
For the reasons alluded to hereinabove it is respectfully prayed that the Hon'ble Court may be pleased to pass a Judgment and decree as prayed for by the plaintiffs with costs in the ends of justice.
4. The description of the plaint schedule are as under:-
38 O.S.8964/2013
'A' SCHEDULE
1. Agricultural Land measuring 1 acre dry land in Sy.No.68/2P assessed to land revenue at Rs.1/-
situated at of Ganjigatte village, B.Durga Hobli, Holalkere Taluk, Chitradurga District bounded by:-
East : Ditch West : Land of Umapati North : Land of Raghavendrachar South : Land of Lakshminarayana
2. Agricultural Land measuring 2 acre 25 guntas dry land in Sy.No.70/1P assessed to land revenue at Rs.1.60ps. situated at of Ganjigatte village, B.Durga Hobli, Holalkere Taluk, Chitradurga District bounded by:-
East : Land of Seenappa
West : Road
North : Land of Raghavendrachar
South : Land of Shivanna
'B' SCHEDULE
1. The revenue house site formulated in
Sy.No.175/3 of Mandli village, Kasaba Hobli, Shimoga Taluk, bearing revenue house block No.3 measuring 40 x 60ft, in extent and bounded by:-
39 O.S.8964/2013
East : Revenue block No.4
West : Road Revenue block No.2 sold to
S.V.Gururaj
North : Properties of K.N.Anand
South : Road
'C' SCHEDULE
1. The property comprised of ground floor, 1st floor, and 2nd floor RCC roofed constructions standing on the site bearing No.2988 situated at 12th main road, HAL-II stage, Indira Nagara, Bangalore within the limits of BBMP and the measurement of the vacant site being East-west-18.30 metres and North-South-26.53 metres along with garage and constructions made over the garage portion in the 1st floor and the boundaries for the entire ground floor, 1st floor and 2nd floor properties are bounded by:-
East : House properties constructed over site No.2989 West : House property constructed over site No.2989 North : 12th main road South : House property constructed over site No.2991.40 O.S.8964/2013
(Note):- In the registered deed of partition dated:
27.03.2003 vide SR No.6233/02-03 the ground floor is shown to have been allotted to the first defendant Smt.Saroja Desikachar, the 1st floor is shown to have been allotted to the 3rd defendant G.D.Srinivas and the 2nd floor is shown to have been allotted to the 2nd defendant G.D.Sudarshan and accordingly the Khata's have been changed.
5. The plaint schedule properties are described as plaint 'A' suit item and 'B' suit item, 'C' suit item through out in the judgment for the sake of description, brevity and convenience.
6. After issuance of suit summons and in pursuance of summons, defendant Nos.1 to 4 have appeared through their counsel have filed their separate written statement.
7. The defendant Nos. 1 & 2 have filed joint written statement as under:-41 O.S.8964/2013
(1). The averments in para-2 of the plaint that the defendant No.1 is a wife, the plaintiffs are daughters and defendant No.2 and 3 are sons of Dr.G.Desikachar, S/o.Tirumalachar and he worked as professor of surgery at Bangalore Medical College and Superintendent of Bowring Hospital, Bangalore and he had expired on 04-02-2003 at Bangalore and the plaintiffs and defendants are his legal heirs are not disputed.
(2). The averments in para-3 of the plaint that the plaintiffs and defendants No.1 to 3 together constituted an undivided Hindu Joint Family and no partition has taken place among themselves in the said family are all hereby admitted as true and correct.
(3). The averments in para-4 of the plaint that the suit 'A' schedule lands are ancestral lands of Dr.G.Desikachar, who got the same in the family partition is hereby admitted. It is true that the said property does not generate any income as it happens to be a dry land.42 O.S.8964/2013
(4). The averments in para-5 and 6 of the plaint that the suit 'B' & 'C' schedule properties are self acquired properties of Dr.G.Desikachar who purchased the same during the year 1993 and 1987 are all hereby admitted as true and correct. It is also admitted that Dr.G.Desikachar out of his self earning and exertion has constructed the property in the ground floor by spending huge amount and the said property is used as family dwelling house even today. It is also admitted that subsequently two more floors i.e., the 1st and 2nd floor were constructed over the suit 'C' schedule property during the life time of Dr.G.Desikachar and the entire suit 'B' and 'C' schedule properties are self acquired properties of Dr.G.Desikachar.
(5). The averments made in para-7 of the plaint regarding the date and year of birth of the plaintiffs and also their respective marriages that took place etc., are not disputed. It is a fact that Dr.G.Desikachar had performed the marriages of the children that is both sons and daughters by incurring huge 43 O.S.8964/2013 expenses. It is also admitted that the 2nd defendant is now working for gain at USA and the defendant No.1 and 3e are residing together in the family dwelling house i.e., the ground floor of suit 'C' schedule property.
(6). It is submitted that this defendant had been to USA to settle along with the 2nd defendant after the death of her husband i.e,.
Dr.G.Desikachar. But the weather conditions at USA has not suited to her health. Hence she returned to India and continued to stay along with the 3rd defendant and his wife and children in the cause title addresses. Earlier to death of Dr.G.Desikachar, this defendant along with her husband and 3rd defendant and his wife and children were staying in the family dwelling house jointly i.e., in the ground floor of the suit 'C' schedule property. It is submitted that after the demise of Dr.G.Desikachar, this defendant is totally depending on the 3rd defendant on many matters and she is under his control. It is submitted that the 3rd defendant after the demise of his father has started legal 44 O.S.8964/2013 profession. He used to advise this defendant and also the 2nd defendant in the matter of administration of the suit schedule properties as he is the only person who was able to look after the said properties. It is the 3rd defendant who suggested to the defendant No.1 & 2 to the effect that in order to save the Income tax, it is desirable to get a deed of partition among the defendant No.1 to 3. This idea of getting a partition deed to save the income tax of the family was naturally accepted by the defendant No.1 & 2 in the greater interest of the family. Accordingly the 3rd defendant drafted a deed of partition and got the same registered at the office of the Sub- Registrar, Bangalore vide SR No.6233/2002-
03. Later this defendant came to know that the said deed of partition is so designed by the 3rd defendant to take lion share in the family properties. As a matter of fact this defendant had no occasion to go through the said document because except making the said document the position in the house continued as before. However after expiry of 5-6 years the attitude of the 3rd defendant towards this 45 O.S.8964/2013 defendant and rest of the members of the family has been substantially changed and he began to ignore every one including this defendant. However this defendant tolerated the humiliation and harassment meted to her by the 3rd defendant with a view to save the honor and prestige of her husband who earned during his life time high status and reputation in the society and with his relative circle. It is pertinently stated that the alleged deed of partition has never been intended to be acted upon and as such it is a colorable, bogus and fabricated document and it would not rope the right title or interest of this defendant. Even after the sale deed of partition some more documents were made through this defendant only with an intention to safeguard the interest of the family and those documents were never intended to be acted upon. However none of those documents have been executed by this defendant voluntarily and volitionally with a free consent and open mind. Hence those documents are not binding on her interest. 46 O.S.8964/2013
(7). The averments in para-9 of the plaint about taking rentals from the suit 'C' schedule property by the 3rd defendant is not exactly within the knowledge of this defendant and she had no occasion to peep into the said matter. However it is true that the rent from the 1st floor is being collected by the 3rd defendant and presently the 2nd floor is vacant.
(8). The averments in para-10 of the plaint are not disputed. It is true that the suit schedule properties are in joint possession of all the legal heirs of deceased Dr.G.Desikachar by virtue of the fact that all o them are class-1 legal heirs. It is also not disputed regarding apportionment of shares in respect of the suit schedule properties.
(9). The averments in para-11 of the plaint is also not disputed. It is pertinently stated that the attitude of the defendant No.3 towards the plaintiff and also towards defendant No.1 & 2 drastically changed and consequently the plaintiffs' got annoyed by the said attitude of the 3rd defendant expressed their desire and intention to take their 47 O.S.8964/2013 legitimate shares and in that regard the plaintiffs demanded their shares both with this defendant and 3rd defendant. During the course of conversation it was claimed by the 3rd defendant that the plaintiffs will have no right over the suit schedule properties and that there has already been a partitioned which is evidenced by a written registered deed. It is further disclosed in the conversation that Khata of the suit schedule properties have also been changed. Thus the conversation between the plaintiffs and defendant No.3 ended in quarrel and even thought his defendant made efforts to pacify the situation, it went out of her control. It is submitted that initially t he 3rd defendant assured to annulled the bogus partition deed and also decided to give the legitimate share of the plaintiffs. But of late he withdraw the said assurance and openly told to the plaintiffs that they may chalkout their remedy before the court of law. That is how the 3rd defendant adamantly behaved and did not heed to the words of the defendant No.1 & 2 and clandestinely and illegally wanted to take 48 O.S.8964/2013 advantage of the sham, bogus and void partition deed. It is submitted that the plaintiffs are admittedly not parties to the said partition deed.
(10). All other allegations which are repugnant to the true, tone and tenor of this written statement which are not specifically traversed hereinabove are hereby denied and disputed and the plaintiffs are called upon to prove the same.
(11). It is submitted that this defendant also assail the deed of partition dated: 27-03- 2003 vide SR No.6233/02-03 and claims her legitimate share in the suit schedule properties. This defendant is entitled to get 6/25th share in suit 'A' schedule property and 1/5th share each in suit 'B' & 'C' schedule properties. This defendant has also paid required court Fees to carve out her share and to pass a decree in her favour. A separate memo is also annexed to this written statement for the payment of court fee of Rs.200/- to pass decree in her favour in 49 O.S.8964/2013 respect of her share in the suit schedule properties.
(12). It is submitted that in view of adverse development in the family this defendant since growing old was to set up peace after her death regarding sharing of her properties by her children and in that connection she is seriously contemplating to make a Will to bequeath her part of properties as per her desire and intention.
For the reasons stated above it is respectfully prayed that this Hon'ble Court may be pleased to pass appropriate judgment and decree in her favour and also pass such other orders as it deems fit under the circumstances of the case in the ends of justice.
8. The written statement of the third defendant runs as under:-
(1). The suit is not maintainable and liable to be dismissed with exemplary cost.
The suit is barred by limitation. The suit is 50 O.S.8964/2013 bad due to mis-joinder of 4th defendant who is not a family member of plaintiffs and defendant No.1 to defendant No.3. The suit is undervalued. The suit is valued under Section 35(2) of K.C.F. and S.V.Act seeking share of a Joint Family assets. Admittedly, 4th defendant is not a family member of joint family.
(2). It is submitted that as per the precedent laid down by the Hon'ble Apex Court reported in 2011 STPL(Web) 886 SC, Supreme Court of India by division bench Justice Mr.R.M.Lodha and Justice Mr.Jagadish Singh Khehar in the case of Ganduri Koteshwaramma and an other Vs Chakiri Yanadi & another in SLP No.9586/2010, it was held that the right accrued to a daughter in the property of Hindu Family by virtue of 2005 amended Act is not applicable in the event the Partition having taken place under Registered Partition Deed before 20-12-2004. It is also been held by the Delhi High Court that the amending Act of 2005 in Hindu Succession Act 1956 would not apply retrospectively. Admittedly, Partition Deed has been registered 51 O.S.8964/2013 on 27-03-2003 between Defendant No.1 to Defendant No.3. In lieu of the precedent laid down by the Hon'ble Apex Court, the suit of the Plaintiffs is liable to dismissed.
(3). The averments made in Para No.1 of the plaint are true and correct. The plaintiff No.1 has given her resident address as No.2988, "Ashwini", 12th Main Road, HAL 2nd stage, Indiranagar, Bangalore-560 008. The relevant copy of the voter list is herewith produced as Document No.1 for the kind perusal of this Hon'ble Court. The 2nd defendant is an American Citizen, left India way back in the year 1991 and he is also owning a company namely "Verdant Professional Consultancy Services (P) Ltd" at the second floor portion of the "C-Suit Schedule Property". He had earlier rented the 2nd floor portion to erstwhile tenant namely Obsidian Software Development (P) Ltd., and "Casamodern and Spacify Software cum furniture showroom". The 2nd plaintiff was also a U.S.citizen and left to U.S way back in the year 1997.
52 O.S.8964/2013
(4). The averments made in Para No.2 of the plaint are also true and correct. It is submitted that the "B schedule property" and "C-Schedule Property" are self earned properties of late Dr.G.Desikachar and the "A- Schedule Property is inherited from his ancestral property. It is submitted that as per the oral Partition during the existence of late Dr.G.Desikachar, the Suit Schedule Property was divided between himself, Defendant No.-1, Defendant No.-2 and Defendant No-3. As per the oral Partition the ground floor portion of the "C-Schedule Property" was to be retained by late Dr.G.Desikachar and 1st Defendant. The 1st floor portion of the "C-Schedule Property" was to be transferred to the 3rd Defendant and 2nd floor portion of the "C- Schedule Property" was to be transferred to the 2nd Defendant. Unfortunately, late Dr.G.Desikachar expired before partitioning the "Suit Schedule Properties" as per the aforesaid arrangement by oral partition. It is submitted that late Dr.G.Desikachar has paid huge amount for securing medical seat for plaintiff No.1 and also performed marriage in 53 O.S.8964/2013 an affluent manner by s pending huge amount and also financially helped her under many circumstances and therefore he declined to share the Schedule Property by oral Partition to the Plaintiff No.-1. Late Dr.G.Desikachar spent huge amount for her marriage, got her costly diamond jewelry and spent huge amount for her education and other expenses. Also, the plaintiff No.-2 had obtained U.S.citizenship and therefore, he declined to share the Suit Schedule Properties to plaintiff No.2 during oral partition. Although, late Dr.G.Desikachar had sponsored huge amount to defendant No.-2, he had got financial assistance from him to construct the 1st floor and 2nd floor portion of "C-Schedule Property" and therefore he decided to share the 2nd floor portion of the "C- Suit Schedule Property to the Defendant No.-2 during oral Partition. The Defendant No.-3 was always with his father late Dr.G.Desikachar spent very little amount for the Defendant No.-3 education and also Defendant No.-3 was compelled to work in his sick Medical Unit. The Defendant-3 had spent 54 O.S.8964/2013 all his money and worked as a full time contractor for construction of building on the "C-Schedule Property". Therefore, by oral partition the 1st floor portion of the "C-Suit Schedule Property was to go to the 3rd Defendant. It is pertinent to mention that the 3rd Defendant had brought up the children of the 1st plaintiff and continued to take care of the 1st plaintiff and her family. The 2nd Plaintiff left to U.S in the year 1997. The 34e 3r3nean5t was a sole person taking care of the 1st Defendant. There was a pious relationship between the Plaintiffs and the Defendant NO.1 to defendant No.3 for nearly a decade and used to meet together one in a year for performing the rituals of late Dr.G.Desikachar.
(5). It is submitted that the maternal uncle of the Plaintiffs and Defendant No.2 to 3 and brother o Defendant No.1 namely Mr.S.T.Ranganath had prepared the Partition Deed as per the oral partition during the existence of late Dr.G.Desikachar and made the Defendant No.3 to register the Partition Deed on 27-03-2003 by affixing his signature 55 O.S.8964/2013 as self drafted. The 3rd defendant even though had completed his Law degree in the year 1993, he had started actively practicing law from the year 2003 after his father's demise. Mr.S.T.Ranganatgh was guiding him to practice law. He had referred few cases to Defendant No.3 and always guided him in his legal practice.
(6). The averments made in Para No.3 are misquoted to initiate the above suit for Partition. The 2nd Defendant had left to U.S in the year 1991 and he is a U.S.citizen. His entire education expenses and his higher education at U.S was sponsored by late Dr.G.Desikachar. In gratitude to his father, the 2nd Defendant had sponsored money for construction of building in the 1st floor and 2nd floor of the "C-Suit Schedule Property", but he could to adjust to the temperament of the 1st Defendant and he failed to take care of her with one or the other false pretext. Late Dr.G.Desikachar had spent huge amount for securing medical seat to the 1st plaintiff transferred her maternity care to the 3rd 56 O.S.8964/2013 Defendant, 1st Defendant and late Dr.G.Desikachar. The 1st Defendant and the 3rd Defendant financially helped the 1st Plaintiff on many occasions. The 2nd Plaintiffs maternity care was taken care by the 1st Defendant and late Dr.G.Desikachar. The 34de Defendant was the only person burdened to take care of all his family members. He was also helping the 2nd Defendant's business and contributed money to his demand for the investment in construction of building in the "C-Schedule Property". There was a pious obligation between the plaintiffs and the Defendant No.1 to Defendant No.3 all these years. In the year 2008, the plaintiffs wanted a share from the 1st defendant and the aforesaid maternal uncle Mr.S.T.Ranganath had prepared a Will to share the ground floor of the "C-Schedule Property" into four parts. The 3rd Defendant had graciously suggested the 1st Defendant to divide her share in the "C- Suit Schedule Property" to the plaintiffs equally. The 3rd defendant financially helped the first defendant and allowed her to part all her income to the Plaintiffs and every year the 57 O.S.8964/2013 34e Defendant financially helped the Plaintiffs to keep up the pious Hindu culture on most of the festival days. It is false that the Plaintiffs and Defendant No.1 to Defendant No.3 together constituted undivided joint Hindu Family and no partition has ever taken place among them. The Defendant No.3 has no objection to club all the assets of Plaintiffs and Defendant No.1 and Defendant No.2 to pool all the assets moveable and immovable properties and maternal assets which is enjoyed by the said Mr.S.T.Ranganath, and Legal Representatives of late Mr.S.T.Krishnamurthy by excluding the female members including Defendant No.1 and her sisters namely Mrs.Lakshmi, Mrs.Lalitha and Mrs.Indira and divide the same by bringing all the parties on record. The Plaintiffs are put to strict proof of their contention raised in Para No.3.
(7). The averments made in para No.4 are correct. As per the oral partition and since the Plaintiffs were financially benefited by obtaining the share in terms of cash and 58 O.S.8964/2013 jewelries, the Plaintiffs had exonerated the rights on the "A-Suit Schedule Properties".
8. The averments made in Para No.5 are partly correct to the extent of purchase of "A- Suit Schedule Property" and "C-Suit Schedule Property". It is submitted that late Dr.G.Desikachar had constructed the ground floor building out of his self earning. He had pledged the "C-Suit Schedule Property" to sponsored higher education to Defendant No.2. The construction of the building in the 1st floor and 2nd Floor was equally supported by Defendant No.2 and Defendant No.3. The Defendant No.1 had leased the portion of her property to M/s.FMC Technologies (P) Ltd., and the earnings from the said rental income was shared by the Plaintiffs. The 3rd Defendant is taking care of the entire maintenance and also paying taxes to the ground floor portion of the "C-Suit Schedule Property", apart from taking care of the 1st Defendant. The 2nd Defendant had earlier rented the 2nd floor of "C-Schedule Property to Obsidian Software Development (P) Ltd., and 59 O.S.8964/2013 "Casamodern and Spacify Software cum furniture showroom" ever since he acquired the absolute right by Registered Partition Deed dated 27-03-2003. The 2nd Defendant is also carrying out business in the name "Verdant Professional Consultancy Services (P) Ltd. The 3rd Defendant is also helping him in his business part from taking the pious role of relationship with the Plaintiffs and Defendants by his own expenses.
9. The averments made in Para No.6 are partly correct in so far as purchase of "C-Suit Schedule Property and construction of building in the ground floor ho use on the "C-Suit Schedule Property". The construction of the building in the 1st floor and 2nd floor was equally supported by Defendant No.2 and Defendant No.3. Late Dr.G.Desikachar had retired from his Government Medical Services and major portion of the amount for constructing the building was contributed by the 2nd Defendant. The 3rd Defendant who was taking care of Sick Medical Unit taken by his father late Dr.G.Desikachar had retired from 60 O.S.8964/2013 his Government Medical Services and major portion of the amount for constructing the building was contributed by the 2nd Defendant. The 3rd Defendant who was taking care of Sick Medical Unit taken by his father late Dr.G.Desikachar financially contributed to the construction of building in the 1st floor and 2nd floor of "C-Suit Schedule Property", apart from being a full time contractor for const ruction of building in the 1st floor and 2nd floor without any remuneration. It is false t hat the 1st floor and 2nd floor building in "C-Suit Schedule Property" was the self earned property of late Dr.G.Desikachar. It is also false that the ground floor was occupied by the Plaintiffs and the Defendants. The 1st Defendant resided with the 3rd Defendant in the ground floor all along the time in which the ground floor building was constructed on the "C-Suit Schedule Property". The 1st Plaintiff was frequently and temporarily residing along with the 1st Defendant and 3rd Defendant in the ground floor portion of "C-Suit Schedule Property". She had also later shifted her residence to the ground floor portion of "C-Suit 61 O.S.8964/2013 Schedule Property". The 2nd Plaintiff had left the residence of the ground floor of "C-Suit Schedule Property after her marriage in the year 1996 and she had also obtained a U.S.citizenship. She is residing at the address stated in the cause title after she came down to India. The 2nd Defendant is permanently a U.S.citizen and living separately from the year 1991. The ground floor portion is in occupation of the 1st Defendant and the 3rd Defendant's family and the entire expenses of maintaining and paying of taxes is taken care by the 3rd Defendant. The Plaintiffs are put to strict proof of their contention that they are living together in the ground floor portion of "C-Suit Schedule Property".
(10). The averments made in Para No.7 are correct to the year marriage had taken place for the Plaintiffs and Defendant No.2 and Defendant No.3. It is false that late Dr.G.Desikachar had spent huge amount for marriage of Defendant NO.2 and Defendant N o.3. It is true that the Plaintiff No.1 marriage took place in the year 1990 in an affluent 62 O.S.8964/2013 manner. Late Dr.G.Desikachar had spent more than Rs.5,00,000/- for the marriage ceremony apart from gifting diamond and gold jewelries. The entire maternity care of the 1st Plaintiff was taken care by lat Dr.G.Desikachar and also on many occasions she had difference with her husband and in-laws, she was taken care by late Dr.G.Desikachar. The Defendant No.3 had also taken care of the children of Plaintiffs No.1. The plaintiffs No.2 marriage was performed in an affluent manner by spending more than Rs.10,00,000/-. The entire marriage expenses of defendant No.2 and defendant No.l3 were taken care by their respective in-law. The plaintiffs are put to strict proof regarding the marriage expenses of defendant No.2 and defendant No.3.
(11). The averments made in Para No.8 are misquoted to suit the plaintiffs in initiating the above suit. It is false that the rental income of the 1st floor and 2nd floor building of the "C-Suit Schedule Property" was shared between defendant No.1 to defendant NO.3. It is submitted that the defendant No.1 had 63 O.S.8964/2013 rented out the ground floor portion of the "C-
Sit Schedule Property" to M/s.FMC Technologies India (P) Ltd., and the rent was taken away by the plaintiffs. The defendant NO.2 had rented out the 2nd floor to Obsidian Software Development (P) Ltd., and to Spacify Software and Casamodern Software cum furniture showroom and presently he owns Verdant Professional Consultancy Services (P) Ltd. The 2nd Defendant had also collected the advance amount from the 23rd Defendant rented out portion in the 1st floor. He has also collected about Rs.14,50,000-00 from the 3rd defendant for his equal contribution in construction of building in the 1st floor Inspite of the Partition Deed dated 27-03-2003. The 3rd Defendant is compelled to take care of the entire building in the ground floor, 1st floor and 2nd floor. It is false that the Defendants neglected the Plaintiffs after the death of their father. It is absolutely false that the Plaintiffs repeatedly requested the Defendant No.1 to Defendant No.3 to furnish proper accounts regarding the rental income as it was not shared with the Plaintiffs. It is false that the 64 O.S.8964/2013 Defendant No.1 to Defendant No.3 postponed the event under one or the other false pretext. It is false that the Plaintiff with a view to maintain a cordial and good relationship tolerated the evasive measures being adopted by the Defendants. It is false that over passage of time the Defendants went into question of their locus standy to ask for the account. It is false that in the month of February 2003, the Plaintiffs expressed their desire to share the "Suit Schedule Properties". The 3rd Defendant had volunteered to instruct the Defendant No.1 to share her property in the ground floor of the "C-Suit Schedule Property" to the Plaintiffs. It is false that the Defendants passively agreed fro the share of "Suit Schedule Properties" and did not initiate any steps to divide the Suit Schedule Property through Registered Deed of Partition. It is also false that the Plaintiffs expressed their demands for Partition in the month of April 2013 and no expected response came from the Defendants. It is submitted that the Plaintiffs are well aware of the oral Partition during the existence of their father late Dr.G.Desikachar 65 O.S.8964/2013 and the subsequent event of registration of Partition Deed on 27-03-2003. it is submitted that the maternal uncle Sri.S.T.Ranganath have poisoned the mind of the Plaintiffs. The 2nd Defendant who did not want to take care of the 1st Defendant, though he is promising to take the 1st Defendant to U.S has joined with the Plaintiff. It is clear from the Pleadings that the Plaintiffs are not specifically claiming any rental income from the Defendant No.1 and Defendant No.2. The Registered partition deed dated 27-03-2003 is not void and the same is effected by the oral Partition and family arrangement during the existence of late Dr.G.Desikachar. The Plaintiffs are well aware of the Registered Partition Deed taking place immediately after the demise of their father late Dr.G.Desikachar and they are attending the ceremony of their father every year from the year 2003 onwards which was completely taken care by the 3rd defendant. The various other averments made in this Para which are not specifically denied hereunder and the same is put to strict proof by the Plaintiffs regarding the averments made in Para No.8.
66 O.S.8964/2013
(12). The averments made in Para No.9 are misquoted. It is submitted that the Defendant No.3 had invested huge amount for improving the 1st floor of the "C-Suit Schedule Property" to facilitate the tenant and according to the rent received from the tenant.
Presently, the tenant is paying the rent of Rs.1,33,000-00 excluding TDS of 10%. It is further submitted that by virtue of the disturbance created by the Plaintiff No.2, 4th Defendant is annoyed. The Plaintiffs in order to ruin the life of the Defendant. The rental income is being utilized for entirely renovating the ground floor, 1st floor and 2nd floor by also maintaining the common sanitary and other maintenance of the building in the "C- Schedule Property". It is submitted that the 4th Defendant is not a necessary party to the suit. The 2nd floor of the "C-Schedule Property is taken care by the 2nd Defendant company Verdant Professional Consultancy Services (P) Ltd. The 2nd Defendant is also carrying on business of "Amerinda Professional Advisory Services (P) Ltd., and other companies from the revenue generated from the 2nd floor of the 67 O.S.8964/2013 "C-Suit Schedule Property". The 3rd Defendant is working for the 2nd Defendant without any remuneration on various services rendered to the 2nd Defendant as he was made to share the rental income towards the investment made in the construction of building in the 1st floor and the 2nd floor. The 2nd Defendant is not at all residing in the ground floor portion of the "C- Schedule Property". The 2nd Defendant is a green card holder of America and probably he would have obtained American citizen ship and not much interested in the Suit Schedule Properties and from few months he is also turning hostile towards the Plaintiffs interest and against Defendant No.3. the plaintiffs for the convenience of services of notice to the 2nd Defendant have mentioned that the 2nd Defendant is residing in the ground floor of the C-Schedule Property". The 1st Plaintiffs is maintaining her residence for all legal communications, passport and etc in the ground floor of the "C-Schedule Property"
though she is working at Kerala. The Plaintiff are put to strict proof of the averments made in Para No.9 of the plaint.68 O.S.8964/2013
(13). The averments made in Para No.10 are misquoted to suit the case of the plaintiffs.
It is absolutely false that the Plaintiffs and the Defendant No.1 to Defendant No.3 are in joint possession of the Suit Schedule Property. It is submitted that the Defendant No.1 to Defendant No.3 hade partitioned the Suit Schedule Property by Registered Partition Deed dated 27-03-2003. The Plaintiffs are not entitled for any relief in the Suit Schedule Properties. The Plaintiffs are put to strict proof of their contention raised in this Para No.10.
(14). The averments made in para N o.11 are misquoted. The Defendant No.1 to 3 had divided the Suit Schedule Properties by Registered Partition Deed dated 27-03-2003. The Plaintiffs do not have any right of share in the Suit Schedule Properties. It is falsely alleged that the Defendants are making hurried efforts to alienate and create heavy encumbrance over the Suit Schedule Properties. The Plaintiffs are put to strict proof of their contention raised in this Para No.11. 69 O.S.8964/2013
(15). There is no cause of action for the Plaintiffs to initiate the suit. The suit is wrongly framed to bring 4th Defendant on record. Even though the Plaintiffs and Defendants who are residents of Bangalore and the Partition Deed of the Suit Schedule Properties was registered at Bangalore, with the support of the maternal uncle Mr.S.T.Ranganath who is the former secretary of Shimoga Bar Association and indirectly in collusion with the Defendants No.1 and Defendant No.2 has initiated the suit at Shimoga. The Plaintiff and the Defendant No.1 and Defendant No.2 are well aware of the financial problems of Defendant No.3 and in order to curb the financial resources have falsely inducted the 4th Defendant as a party to the Partition Suit. The Plaintiffs are put to strict proof of their contention raised in this Para.
(16). The Plaintiffs have not come with clean hands before this Hon'ble Court and to harass the 3rd Defendant they have initiated this suit at Shimoga. The Plaintiffs are in 70 O.S.8964/2013 collusion with the 1st Defendant and the 2nd Defendant. It is submitted that the 2nd Defendant is financially sound and the 2nd floor portion of the "C-Schedule Property was maintained at the cost of the 3rd Defendant. The 3rd Defendant has also worked for the 2nd Defendant without receiving any remuneration. The 3rd Defendant had also maintained the ground floor of "C-Schedule Property including payment of tax and all along his life he is taking care of the 1st Defendant. The 3rd Defendant is financially contributing to the Plaintiffs every year on all festival days and he is solely taking all the burden of the death ceremony of his father every year without receiving any monetary benefits from his brother, mother and sisters. It is submitted that the Plaintiffs and the Defendants had very cordial relationship ever since the demise of late Dr.G.Desikachar. The Plaintiffs are well aware of the Partition of the "C-Schedule Property on 27-03-2003. The maternal uncle has taken undue advantage on trivial domestic issues and poisoned the minds of the Plaintiffs to initiate the above suit at 71 O.S.8964/2013 Shimoga to spoil the pious relationship among Plaintiffs and Defendants. It is submitted that the relief for cancellation of registered Partition Deed dated 27-03-2003 claimed by the Plaintiffs is barred by limitation. The suit is filed on 31-05-2013 after more than 10 years. The suit is undervalued for the relief claimed for cancellation of Registered Partition Deed dated 27-03-2003. The Plaintiffs have valued the "C-Schedule Property for 20 crores and have paid Court Fee of Rs.200-00. The relief for cancellation of Registered Partition Deed is to be valued the suit for mesne profit as claimed in Plaint under section 42 of K.C.F and S.V.Act. The Plaintiffs have claimed mesne profit of Rs.51,48,000-00 and there is a deficit of Court Fees of Rs.2,05,085/-. In total there is a deficit of Court Fees of Rs.14,12,010/- to be paid by the Plaintiffs.
(17). The various other averments made in the Plaint which are not specifically traversed herein are hereby denied false and the Plaintiffs are put to strict proof of the same.
72 O.S.8964/2013
Wherefore, it is prayed that this Hon'ble Court be pleased to dismiss the suit with exemplary cost and grant such other relief's that this Hon'ble Court may think deem fit and proper in facts and circumstances of the case and in the interest of justice.
9. The written statement of the fourth defendant runs as under:-
(1). That the suit filed by the plaintiffs is not maintainable either in law or on facts and circumstances of the above case, hence the same is liable to be dismissed in limine.
(2). The suit filed by the Plaintiff is meritless, baseless and vexatious, without any element of truth and hence is liable to be dismissed with exemplary cost.
(3). The suit is barred by the law of limitation and hence this suit is liable to be dismissed with exemplary costs.
(4). The suit filed by the plaintiff is not in accordance to law on the ground of jurisdiction 73 O.S.8964/2013 and hence this Hon'ble Court does not have the pecuniary and territorial jurisdiction to entertain the above suit.
(5). The above suit is liable to be dismissed on the ground of non payment of proper court fee as prescribed under the Karnataka Court Fees and Suits Valuation Act.
(6). The above suit is liable to be dismissed as against this defendant in view of the fact that this defendant is not issue in this suit.
(7). The above suit is not maintainable as against this defendant as no relief is sought against this defendant.
(8). The above suit is liable to be dismissed on the ground of misjoinder and as per Order-1 Ruel-10(2) of the Code of Civil Procedure-1908 this defendant No.4 may kindly be struck out from this suit.
(9). The Defendant hereby denies the averments made in plaint by the plaintiff 74 O.S.8964/2013 except those that are specifically admitted herein.
(10). Regarding Para No.2 the averment that "It is submitted that the Defendant No.1 is a wife, the plaintiffs are daughters and defendants are sons of Dr.G.Desikachar, S/o.Tirumalachar and further submitted that Dr.G.Desikachar worked as professor of surgery at Bangalore Medical College and superintendent of Bowring Hospital Bangalore and further averment that he had expired on 5-2-2003 at Bangalore and the plaintiffs and Defendants are his legal heirs" are all not within the knowledge of this defendant who is only a tenant, hence the same is not admitted.
(11). Regarding para Nos.3 to 8 are all about the plaintiffs and the defendant 1 to 3 which are all not within the knowledge of this defendant who is only a tenant, hence the same is not admitted.
(12). Regarding para no.9 the averment that "It is submitted that presently the first floor of the suit 'C' schedule property is 75 O.S.8964/2013 occupied by the Defendant No.4 as tenant" is true and admitted. The further averment that "As per the knowledgeable information the rent is fixed at Rs.1,33,000/- per month from 10th of may 2013 to 9th of May 2014 and from 10th May 2014 to 9th May 2015 the rent is fixed at 1,43,000-00 per month and from 10th May 2015 to 9th May 2016 the rent is fixed at Rs.1,53,000/- per month" is hereby denied as false and the plaintiff is put to strict proof of the same. The further averment that "Even though the plaintiff demanded their shares in the rental income, the defendants without any just and valid reasons with held the same with ulterior purpose and further averment that it is further submitted that presently the second floor is vacant as the tenant occupied the said floor had vacated" are all not within the knowledge of this defendant who is only a tenant, hence the same is not admitted. The further averment that "As told above elsewhere the ground floor is occupied by Defendant No.1 to 3" is party true as it is the defendant No.1 and 2 who are in possession of the said ground floor and not the defendant No.3.76 O.S.8964/2013
(13). Regarding para No.10 & 11 it is submitted that the averments made in these paragraphs are about the defendant Nos.1 to 3 and the father of defendant 2 and 3 and regarding their share and legal rights over the suit schedule properties are all not within the knowledge of this defendant who is only a tenant, hence the same is not admitted.
(14). The averment that "The cause of action for the suit arose from the month of February 2013 when the plaintiffs put forward their demands for partition and separate possession of their shares in the suit schedule properties and also subsequently when the defendant No.1 to 3 postponed the event of the said partition under one pretext or the other and also when the plaintiffs came to know of the illegal, fraudulent and void document styled as deed of partition dated: 27-03-2003 vide SR No.6233/2002-03 got created by the defendants behind their back without joining them as parties and also subsequently when the defendants failed to get the said document annulled and cancelled as promised by them 77 O.S.8964/2013 and also when the defendant No.1 to 3 repudiated to furnish the rental accounts and dodged to partitioning the suit schedule properties by metes and bounds through the registered deed of partition" are all not within the knowledge of this defendant who is only a tenant, hence the same is not admitted.
(15). It is submitted that all other averments which are not traversed herein are not admitted and the same is denied as false.
Wherefore, it is prayed that this Hon'ble court may be pleased to dismiss the above suit with exemplary costs and award the costs of litigation to this defendant, in the interest of justice and equity.
10. On the basis of the pleadings of the parties, the following issues have been framed:-
1. Whether the plaintiffs prove that each entitle to 6/25th and 1/5th legitimate shares in 'A' and 'B' and 'C' together schedule respectively of joint family plaint schedule properties by metes and bounds with reference to good and bad soil and market value of the schedule properties?78 O.S.8964/2013
2. Whether the court fee paid by the plaintiffs is proper, sufficient and legal?
Or Whether defendant No.3 proves that the suit of the plaintiffs is under valued?
(These issues being mixed question of fact and law requires recording of evidence to decide them from both sides)
3. Whether suit of the plaintiffs is maintainable in view of amendment made to Section 6 of Hindu Succession Act as Section 6A in 2005 Central Act and Judge made law 2011 STPL (web) 886 SC, SLP No.9586/2010?
(The decision of the suit rests on this issue finally and conclusively and purely based on law points will be taken up for preliminary hearing before recording the evidence of both parties) OR Whether the defendant No.3 proves that the registered partition deed, dated 27.3.2003 effected in respect of all plaint schedule properties among defendants 1 to 3 is binding on the plaintiffs' legitimate share?
4. Whether the defendants 2 and 3 prove that they have contributed entire cost of construction of first and second floor and 79 O.S.8964/2013 entitle to said floors of their respective shares on equitable partition?
5. Whether the suit of the plaintiffs is barred by limitation?
(This issue being mixed question of fact and law requires recording of evidence to decide them from both sides)
6. Whether the suit of the plaintiffs is bad for mis-joinder of necessary parties?
7. Whether the plaintiffs prove that they are entitle to mesne profits to the extent of their share from the date of suit till the date of handing over actual possession of the 'C' Schedule property from the defendant No.3?
(This issue will be decided in the final decree proceedings)
8. Whether the defendant No.3 proves that oral partition of plaint 'A' to 'C' schedule properties effected during the lifetime of late G.Desikachar and pursuant to it the registered partition deed, dated 27-03-2003 come into existence?
9. Whether the cause of action arose to plaintiffs to file this suit?
10. To what reliefs the parties are entitle for?
11. What order or decree?
80 O.S.8964/2013
11. The plaintiffs in order to substantiate their claim examined plaintiff No.2 as P.W.1 and got marked and exhibited as many as 9 documents as Exs.P.1 to P.9 and closed their side evidence. On the contrary, the defendant Nos. 1 & 2 on their behalf examined the defendant No.1 as D.W.1 and got marked and exhibited document as Ex.D.1 only and defendant No.4 as D.W.2 and closed their side evidence.
12. The defendant No.3 though the hot contesting party to the suit and he is a practicing advocate, though, the directions were issued by the Hon'ble High Court of Karnataka in W.P.No.105/2015 filed by against the plaintiffs and defendants 1 and 2 and 4 by the Hon'ble High Court of Karnataka to get it dispose the suit as expeditiously as possible co-operating with the lower court and ordered to pay costs of Rs.10,000-00 to the defendant No.1, the mother as she being the Senior Citizen on the wrong side of 71 years not co-operated 81 O.S.8964/2013 with this court for the reason that the interim orders went against him. In similar manner, the Hon'ble High Court of Karnataka in W.P.No.48411/2014 filed by the defendant No.1 Smt.Saroja Desikachar against the remaining party of this suit directed the lower court to dispose of the suit within the time frame fixed by the law, with notice to all parties. In C.P.No.130/13 filed by the defendant No.3 against the remaining parties of this suit, the Hon'ble High Court of Karnataka while transferring the present suit on the file of 2nd Addl.City Civil Judge (Sr.Divn), Shimoga to this court directed both parties to the litigation to get it dispose the suit as expeditiously as possible co-operating with the court. Although defendant No.3 actively participated before this court filed an order passed by Hon'ble Supreme Court of India in SLP No.(s) 5619/2015, dated: 23-02-2015 speaks as under:-
"By way of ad-interim relief, it is directed that the proceedings of the final decree shall not be signed by the competent court till further orders.82 O.S.8964/2013
It would be open to the concerned parties to approach this court when the trial is concluded".
13. Although there is an express directions in seriatim to defendant No.3 to participate actively before the lower court to participate in the proceedings. Instead of participating actively and without co-operating with the court in the proceedings on 30-10-2015 filed a stay application to stop the proceedings before the lower court. This desperate attempt made by defendant No.3 is rejected with costs of Rs.2,000-00 by lower court. The defendant No.3 instead of leading his evidence against the directions of Hon'ble High Court of Karnataka, Bangalore and Hon'ble Supreme Court of India, deliberately and intentionally protracting the matter to see that during the lifetime of defendant No.1, her share should not be allotted to her. So, this court under the above circumstances closed the evidence of defendant No.3. This court posted the case on 7-7-2015 for 83 O.S.8964/2013 evidence of defendants. On the direction of this court, defendant Nos.1 & 4 have adduced their evidence. But, defendant No.3 deliberately remained absent. However, on 30-10-2015, defendant No.3 made an abortive attempt to get stay the proceedings under Section 10 of CPC on the strength of the order of Hon'ble Supreme of India. Defendant No.3 not bothers to adduce evidence. So, this court posted the case for arguments of the parties. Though the defendant No.3 participated in the proceedings not adduced his evidence and submitted h is arguments on merits. However, this court decided the matter on merits as if defendant No.3 contested the suit by the defendant No.3. It is the cardinal principle of law that the court has to give full and fair opportunity to be heard to both parties. This court invoking the power vested under Order 14 Rule 5 of CPC framed the one more issue alternatively. When the issues recasted or framed afresh as of rule this court ought to provide full and fair opportunity to both sides. Whatever evidence on 84 O.S.8964/2013 record is sufficient to dispose of the alternative issued framed by this court. On this ground, giving of a fresh opportunity to both sides is hereby dispensed with.
14. When the party to lis deliberately and intentionally remained absent violating the directions of the Appellate Courts (i.e., Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka), full and fair opportunity being provided and not availed up at subsequent stage of proceedings could not contend no full and fair opportunity provided to them. On the ground of natural justice, if they contend so, it would amounts to abuse of process of law. The party who canvass such slogan will have to be dealt with iron hands.
15. The defendant No.4 examined one of his staff as a D.W.2 and closed their side evidence. 85 O.S.8964/2013
16. We have heard Sri.P.N.H advocate for plaintiffs fully, Sri.BSP advocate for defendant Nos. 1 & 2 fully. As defendant No.3 failed to submit their arguments on merits of the case, their arguments is taken as heard and orders will be passed on merits as if contested by him. Heard EVR for defendant No.4 fully.
17. My answer to the above issues are as follows:-
Issue No.1: In the affirmative
Issue No.2: Proper and sufficient
Issue No.3: In the affirmative
Issue No.4: In the negative
Issue No.5: Within the limitation
Issue No.6: Accordingly
Issue No.7: Accordingly
Issue No.8: In the negative
Issue No.9: In the affirmative
Issue No.10: Each party is entitled to 6/25th
and 1/5th shares in plaint 'A'
and 'B' & 'C' suit items
respectively.
86 O.S.8964/2013
Issue No.11: As per final order for the
following:-
REASONS
18. Issue No.3 - With Re. to maintainability of the suit:- It is a simple suit for partition by daughters as plaintiffs against the mother and two brothers as defendants in respect of ancestral joint family properties and self acquired property of G.Desikachar, late father challenging the proprietary ness and validity of registered partition deed effected on 27-3-2003 alleged to have been taken place among defendant Nos. 1 to 3 setting aside the same as a null and void and to grant a decree of 6/25th and 1/5th legitimate shares in respect of plaint suit 'A' and 'B' and 'C' suit items respectively. It is the defendant No.3 elder brother who is the hot contestant of this suit and to exclude/bars or non-suit the plaintiffs from the purview of the partition strengthly relied on the registered partition deed 27.3.2003 and Section 6(A) of 87 O.S.8964/2013 Hindu Succession Act, 2005. The defendant Nos. 1 & 2 mother and younger son supported the claim of plaintiffs by denying the execution of registered partition deed dt:27-3-2003 which is the out come of fraud practiced upon defendant Nos.1 & 2 and their signatures were obtained by defendant No.3 for income tax purpose only.
19. The burden of proving this issue heavily casts upon the plaintiffs by interpreting the existing facts and circumstances of the case effect of the introduction of Section 6A under the amended Central Act, 2005 and their suit not affected by the said provision.
20. To decide the maintainability of the suit, we extract Section 6A to 6C of Hindu Succession Amendment Act, as below:-
"6A- Equal rights to daughter in co-parcenary property - Notwithstanding anything contained in Section 6 of this Act -88 O.S.8964/2013
(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-
parcener shall by birth become a co-
parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son;
Provided that the share which a predeceased son or a predeceased
daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter;
Provided further that the share allotable to the predeceased child of a 89 O.S.8964/2013 predeceased son or of a predeceased daughter, if such child had been alive at the time of partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;
(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;
(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment ) Act, 1990.
6B. Interest to devolve by survivorship on death:- - When a female Hindu dies after 90 O.S.8964/2013 the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990, having at the time of her death an interest in a Mitakshara co-parcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act:
Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara co-parcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship.
Explanations:- (1) For the purposes of this Section the interest of female Hindu Mitakshara co-parcenary shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not.91 O.S.8964/2013
(2):- Nothing contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased had separated himself or herself from the co-parcenary, or any of his or her heirs to claim on intestacy a share in the interest referred to therein.
6C. Preferential right to acquire property in certain cases:- (1) Where, after the commencement of Hindu Succession (Karnataka Amendment) Act, 1990 an interest in any immovable property of an intestate or in any business carried by him or her, whether solely or in conjunction with others devolves under Sections 6A or 6B upon two or more heirs and any one of such heirs proposed to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be transferred under Sub-Section (1) 92 O.S.8964/2013 shall in the absence of any agreement between the parties, be determined by the court, on application, being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application.
(3) If there are two or more heirs proposing to acquire any interest under this Section, that heir who offers the highest consideration for the transfer shall be preferred.
Explanation:- In this section 'court' means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may by notification in the official Gazette specify in this behalf.
93 O.S.8964/2013
21. Further we extract the decision laid down in Ganduri Koteshwaramma Vs.Chakiri Yanadi - Hindu Succession - Co-parcenary property - Daughter 2011 STPL (Web) 886 SC - Civil Appeal No.8538 of 2011 (Arising out of SLP (Civil) No.9586 of 2010) relied on by defendant No.3 as a defence plea:-
Whether the benefits of Hindu Succession (Amendment) Act, 2005 are available to the appellants ..... The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son ..... It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended 94 O.S.8964/2013 or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree. Daughter has only right to maintenance in ancestral property prior to 2005 so in the given case, she is entitled for only ¼ share.
22. The matter of inducement is thus:-
The plaintiffs are the daughters of deceased G.Desikachar and defendant No.1, sisters of defendant Nos. 2 and 3, defendant No.1 is the mother of plaintiffs and defendant Nos. 2 & 3. The defendant No.2 and 3 are brothers of plaintiffs and sons of defendant No.1. The inter se existed relationship between the parties is not in dispute. The defendant No.4 was the tenant of plaint 'C' suit item i.e., joint family house. The further admitted facts are that the plaint suit 'A' items are the ancestral property of the joint family of plaintiffs and defendant Nos. 1 to 3. Plaint 'B' and 'C' are the self acquired property of late G.Desikachar, the husband of defendant 95 O.S.8964/2013 No.1 and father of plaintiffs and defendant Nos. 2 & 3.
Late G.Desikachar died on 7-2-2003 before the advent of amended Act , 2005 and deadline fixed in Section 6A i.e., on 20-12-2004. Further admitted fact that late G.Desikachar was a Doctor by profession served as a Medical Superintendent at Victoria Hospital, Bangalore.
The said G.Desikachar died intestate leaving behind him, the plaintiffs, defendant Nos. 1 to 3 as his legal heirs i.e., class- I heirs under Section 8 of the Hindu Succession Act. Thus, there is no dispute as to heir ship of deceased G.Desikachar.
23. The defendant No.3 has not lead his evidence. In spite of the directions issued by the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka, Bangalore, while passing orders on the orders of rejection of plaint and transfer application filed for transferring the suit on the file of 2nd Addl.Civil Judge (Sr.divn), City Civil Court, Shimoga to Principal Judge, City Civil Court, 96 O.S.8964/2013 Bangalore. The defendant No.3 seriously disputed the right of the plaintiffs -daughters to sue and accrual of right to claim their share over the plaint items 'A' to 'C' in question on the event of death of late G.Desikachar. Thus, defendant No.3 wants to non suit the plaintiffs on the ground earlier to date of introduction of Amendment to Section 6 as Section 6A of Hindu Succession Act, Central Act, 2005, registered partition deed effected on 27-3-2003 in respect of suit 'A' to 'C' items in the family of plaintiffs and defendant Nos. 1 to 3. So, plaintiffs not only no right to claim share but also right to sue by way of such partition ignoring the registered partition deed 27-3-2003. Section 6A of Hindu Succession Amendment Act bars the plaintiffs to file such kind of suit. Since the partition has effected on 27.3.2003 prior to 20th December 2004 and Section 6A amended Act is not applicable. If it is evidenced by registered document and has come into existence prior to 20th December 2004. The defendant No.3 strengthly relied upon the ratio laid 97 O.S.8964/2013 down in SLP No.18744/2010 as quoted supra to non suit the plaintiffs.
24. Countering to these submissions, Sri.P.N.H counsel for plaintiffs vividly canvassed that there is no dispute as to existence of relationship of the parties to suit further, no dispute as to nature of the properties. Admittedly, G.Desikachar the father of plaintiffs and defendant Nos. 2 & 3 and husband of defendant No.1 died on 7-2-2003 intestate. Further, no dispute as to nature of the properties involved in the suit. On the date of death, the amended Section 6A of Hindu Succession Amendment Act was not in force. It up rights prospectively. The date of death of late G.Desikachar was the date of Succession to the plaintiffs to claim share over the plaint 'A' to 'C' items then Karnataka Amendment Act, 1992 was in force. The provisions of said Act not applicable to the case of the plaintiffs as they being married on the said date. So, old Section 6 of the 98 O.S.8964/2013 Hindu Succession Act applies to the present case on hand. Under the said provision, the daughters have death right over the ancestral suit 'A' item. They are entitled to claim share in the share of late G.Desikachar equally along with mother, two brothers i.e., defendant Nos. 1 to 3 equally and simultaneously. On the date of death of G.Desikachar, the registered partition deed 27-3-2003 relied on by defendant No.3 was not in existence. This means to say that father died intestate. It further implies that father had intention that his daughters shall also take equal share in the self acquired property left by him. Under the provisions of Hindu law, the father had right to partition the family property with consent of all major sharers during his lifetime in respect of ancestral property only as a manager of the Hindu undivided family. The father G.Desikachar died intestate indicates his intention clearly that his self acquired properties should go to his daughters equally. As per the provisions of Hindu Succession Act, though the 99 O.S.8964/2013 daughters - the plaintiffs had no pre-existing and subsisting right over the plaint suit 'A' items. The moment father dies, right of Succession opens and to the extent of equal share with other sharers vests with them. Once a right vested over the daughters, that right cannot be divested by any means unless daughters relinquishes or release their right over their shares under release deed or relinquishment deed registered instrument. This is what the existence of legal position under Hindu law with regard to death right of the daughters. Under Section 6 of Hindu Succession Act, 1956 (old), what remains in the eye of law after vesting only course left open to the daughters the division of or partition of their shares by instrument of partition or decree of competent civil court by metes and bounds or relinquishment of their shares under registered instrument in favour of other sharers?. This was not the case of defendant No.3 to accept his stand also. (On the event of death of father not only proprietary rights vest with specified shares but also 100 O.S.8964/2013 confers independent right to seek or enforce partition of their shares. This independent right is to be deprived by way of ouster or exclusion only not by way of new statute. The statute which takes away the right to property of the daughters would amounts to per incuriam). The present suit filed for partition of their share by the plaintiffs is quite justified under law and this suit filed legally completely maintainable under law. In the light of existence of legal position how could defendant No.3 contends that suit of the plaintiffs is not maintainable. The registered partition deed comes into existence in between defendant Nos. 1 to 3 collusively. The plaintiffs are not a party or privy or signatory to it and it was affected behind the back of the plaintiffs. So, the alleged partition deed not binds the interest or share of the plaintiffs to the extent of 6/25th.
25. The P.N.H counsel vehementally contended further that it is a cardinal principle under the partition 101 O.S.8964/2013 Act, all legal sharers who have right to seek partition are the necessary parties, the properties which are available for the partition or portable property shall be included in the partition. Admittedly, the plaintiffs are not a party or signatory to the registered partition deed, dated 27.3.2003. So, the alleged partition deed is a sham transaction, not binding on the interest of the plaintiffs and it is secured behind the back of the plaintiffs without their knowledge to deprive or defeat their legal right, interest or title over a plaint 'A' to 'C' suit items collusively. Under the sham transaction, the right to sue and right to claim, the plaintiffs cannot be deprived. If at all, if any reason the registered partition 27-3-2003 came to be effected in respect of joint family properties and not comply the provisions of above quoted Hindu law. On this ground, the alleged registered partition deed not binding over the interest of the plaintiffs. So, the plaintiffs are entitled to claim share or entitled to file a partition suit independently. On the death of 102 O.S.8964/2013 G.Desikachar independent right i.e., right to enforce partition or right to seek partition accrued to the plaintiffs. This is the special death right conferred upon the plaintiffs.
26. The P.N.H plaintiffs' counsel challenged the proprietariness of Section 6A of Hindu Succession Amended Act.
27. To decide which rule governs, it is the law which prevalent on the date of death of G.Desikachar succession re-opens. G.Desikachar dies on 7-2-2003. The present suit filed after the introduction of amendment of Section 6A of Hindu Succession Act, i.e., on 9-12-2013. Which is the provision applicable to the present case on hand?. The law on the date G.Desikachar died is the prevalent applicable to the present case on hand, not the amended Section 6A of Hindu Succession Act, 2005.
103 O.S.8964/2013
28. Sri.P.N.H advocate for plaintiffs further canvassed that the defendant No.3 wants to non suit the plaintiffs on the ground earlier to date of introduction of amendment to Section 6 as 6A of Hindu Succession Act i.e., prior to 20-12-2004 registered partition deed is been effected by means of registered partition cannot be re- opened in the joint family of plaintiffs and defendant Nos. 1 to 3 and it takes away the right of the plaintiffs absolutely. Section 6A of Hindu Succession Act implies obviously by registered partition deed or decree of competent Civil Court. It further expressly indicates that it cannot be re-opened on the ground of partition deed obtained on practicing fraud upon the parties or decree of partition obtained or on the ground of inequality of shares allotted to the sharers. It further indicates that all the sharers who were entitled to claim share and all properties which are liable to partition, all must be included. It is a partition affected applied to all legal sharers, all portable properties shall be included. This 104 O.S.8964/2013 means to say that the partition is must have been effected is out and out partition including plaintiffs and defendants 1 to 3. So, the alleged partition deed is not having binding force over the plaintiffs. Sri.P.N.H tried to convince by way of illustration. In a joint Hindu family consisting of A, B two daughters, C is the mother and D and E are the brothers. After partition effected without including the one of the son D as a necessary party or dropped him out from the purview of the partition, as he left home. Under this circumstance, if any share not reserved for his share, in that circumstance, the partition can be re-opened irrespective of the nature of the amendment effected to Section 6A of Hindu Succession Act, 2005. If we accept blindly the concept behind Section 6A of Hindu Succession Act, civil death of the legal heir would occur. In the case given on hand, if we made applicable the concept behind under Section 6A, the legal sharers left with no remedy. So, the alleged partition affected by the introduction of Section 6A would 105 O.S.8964/2013 be null and void. If any legal sharers left out or dropped from the partition can be re-opened within the law of limitation. This anomaly not met under Section 6A by way of explanation or exceptions. Every law as its own exceptions. No such exception added to Section 6A of Hindu Succession Act.
29. Sri.P.N.H. further contended that in the given case, the plaintiffs are the daughters. The death of the father took place on 7-2-2003. The law prevalent on the date of death of G.Desikachar governs it not the law, the date on which suit filed. The plaintiffs are not claiming a right under the amended Act, 2005. The daughters have got death right so far as the self acquired property of late father G.Desikachar concerned. The moment G.Desikachar dies the inheritance vests with on all his legal heirs i.e., the plaintiffs, defendant Nos. 1 to 3 equally. All heirs succeeded to his property with specified shares as joint tenants. The succession not 106 O.S.8964/2013 keeps in abeyance. Under Such facts and circumstances of the case, the plaintiffs are entitled to equal share along with mother and brothers as G.Desikachar died intestate. The date of accrual of right to the parties is the date on which law prevalent governs. The plaintiffs being daughters are entitled to equal share along with defendant Nos. 1 to 3 as the legal heirs of late G.Desikachar.
30. Sri.P.N.H counsel alternatively contended that the plaintiffs are not claiming share under Section 6A of Hindu Succession Amendment Act, 2005 but are claiming a right accrued to them on the death of their father G.Desikachar on 7-2-2003. Section 6A not meets the above two anemology or said contingency quoted by him. The Hon'ble Supreme Court of India earlier to introduction of 6A to Hindu Succession Act by way of Amendment 2005 recognised the oral partition holding is valid but in the provisions of Section 6A, this view of the 107 O.S.8964/2013 Hon'ble Supreme Court is omitted only recognized registered partition or decree of competent Civil Court. Nothing stated in the explanation about in the explanation attached to Section 6A of Hindu Succession Act.
31. Sri.P.N.H. Counsel for the plaintiffs further submitted that even if this court considered the introduction of Section 6A amended Act, 2005 is prospective in nature. Since the plaintiffs claiming share under the Hindu law which governs on the date of death of late G.Desikachar. They are entitled to share as above contended.
32. Sri.P.N.H. advocate for plaintiffs alternatively contended that not admitting if at all for any reason this court come to the conclusion Section 6A amended Hindu Succession Act 2005 applicable. It only applies to the plaint suit 'A' item properties only not to the self acquired properties of late G.Desikachar.
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33. He further alternatively contended that the registered deed of partition 27-3-2003 effected between defendant Nos. 1 to 3 is not a right and right partition as the plaintiffs are not being made a party to it. In that circumstance also, Section 6A amended Act not applicable to the plaintiffs' case and not binds the interest of the plaintiffs in so far as the self acquired property of late G.Desikachar.
34. The defendant No.3 has taken up a plea that since the registered partition deed dated 27-3-2003 affected prior to 20-12-2004 and whatever Acts and amendment as to succession relating to female sharers stand abolished. Since the daughters female shares have filed a suit for partition after introduction of amended Section 6A affected by way of Central Amendment Act 2005 well in time. They are not entitled to seek a partition in their independent right. They have lost their right completely. So, in view of amendment to Section 6A 109 O.S.8964/2013 of Hindu Succession Act introduced, suit of the plaintiffs is not maintainable. The right accrued to the plaintiffs' - daughters on 7-2-2003 is an independent right. They can seek a partition of their share. Whatever may be the quantum irrespective of 2005 Central Act.
35. We have made a detailed scrutiny of the pleadings of plaintiffs and defendant No.3 in minute detail. In addition to the pleadings of the parties, we have studied the amended Section 6A of 2005 and case law cited by defendant No.3 in detail. This issue the maintainability of suit purely based on interpretation of Section 6A of amended Act, 2005 and provisions of Hindu law. It is not requires any oral evidence. So, it is a question of law point involved in it. Foundation for the action is the pleadings of the parties. This court being a lower court i.e., court of facts of first instance and its bound and duty to interpret the law and made applicable the law to the existing facts and circumstances of the 110 O.S.8964/2013 case on hand. The plaintiffs have claimed 6/25th and 1/5th shares respectively over plaint 'A', 'B' & 'C' suit items. From the inference of the pleadings of the plaintiffs, they have claimed specifically certain quantum of shares on the law of prevalent i.e., on the date of death of late G.Desikachar accrued to them. So, there is a full force in the submission made by P.N.H for plaintiffs. Though the suit filed in the year 2013 is governed by the provisions of Hindu Law prevalent on 7-2-2003 i.e., the date of death of G.Desikachar partition is to be invoked by presuming notional partition under Old Section 6 of Hindu Succession Act. All parties to lis including this court should bear in mind that the present suit filed for partition by the plaintiffs is governed by the provisions of Hindu law prevalent on 7-2-2003 though filed in the year 2013. The defendant No.3 had a thought in his mind that by the introduction of Section 6A to Hindu Succession Act, 1956, all previous provisions or laws relating to Succession to female sharers stand abolished. 111 O.S.8964/2013 So, the defendant No.3 thought that the present suit filed by the plaintiffs governed by the Central amended Act, 2005. On that basis, in seriatim filed a memo as against of the interim orders went against him that the defendant No.3 had no faith over the courts. That the courts have not read the mind of defendant No.3 and not interpreted Section 6A of Hindu Succession Act introduced by Central Act, 2005 as stated by him and facts and circumstances of the case. This court would have accepted the stand of defendant No.3 that if the plaintiffs had claimed right under the amended Section 6A of Hindu Succession Act, 1956, under the Central Act, i.e., not the situation to accept and afford the stand of defendant No.3. By the abolition of old provision, the new provision comes into force. By the abolition of the old provision operation and applicability of the old Act stops. On the date of introduction of new provision, it does not take away the right of the party to claim share under the old provisions of Hindu Act, on the 112 O.S.8964/2013 past events. This was the reasonable interpretation can be put or can be drawn. The provision of new Act operates prospectively. The present suit filed in the year 2013 claiming right on the basis of provisions of Hindu law prevalent on 7-2-2003. The abolishment of old provisions should be interpreted beneficial to the party who claims under the old provision of law relating to past events occurred in the family. On the death of late G.Desikachar immediately in no time, the right of succession opens and ancestral and his properties vest with over his all legal heirs i.e, class-I legal heirs surviving behind him equally and simultaneously. This is an accrued right to the plaintiffs. This right of the plaintiffs no one can deny. This accrued right of the plaintiffs including this court. The accrued right of the plaintiffs would be taken away by lawful means only. If we accepted the contention of defendant No.3, the accrued right of the plaintiffs will be taken away by virtue of amendment to Section 6 as 6A of Hindu Succession 113 O.S.8964/2013 Act. Suppose, the plaintiffs on came to know registered partition deed, dated 27-3-2003 effected between defendant No.1 to 3, in no time, in the year 2003 on came to know in the year 2003 itself filed this suit instead of filing this suit in 2013 and is pending on the date of introduction of a amended Section 6A in place of Section 6 by Central Act, 2005. What would be the consequence of law over the right of plaintiffs? If during the pendency of said suit, this act introduced whether provisions of Section 6A would applicable to said suit is the point for consideration before this court. Every Act or amended Act passed would operate prospectively unless so specified (retrospectively). In that circumstance, the defendant No.3 would canvass Section 6A would not applicable to the pending case. That this was the view taken by this court. There is no limitation for filing the partition suit. However, the suit is to be filed within 12 years from the date of demand and refusal, otherwise, theory of ouster or exclusion would come into play and 114 O.S.8964/2013 right of the claimant would be taken away. We would reproduce the arguments of P.N.H counsel for plaintiffs that the accrued right of the party i.e., the plaintiffs cannot be taken away by the fabricated registered partition deed, dated 27-3-2003 unless the right or shares released under the registered instrument.
36. Section 6A of amended Act relates to co- parcenary property or ancestral property of Hindu undivided joint family property. The said Section further reads once a partition by means of registered partition deed or decree of competent Civil Court effected or obtained earlier to 20-12-2004, the daughters have no locus-standi to challenge the said partition absolutely. It is not a suit filed claiming share under Section 6A amended Act. So, the right of the plaintiffs to claim share on the old provisions of Hindu law on 7-2-2003 not deprives plain reading of Section 6A, the present Section not relates to or mention about the self 115 O.S.8964/2013 acquired property of a male, under a Hindu joint family. The deceased G.Desikachar died intestate. So, in our view, if partition of the co-parcenary property effected earlier to 20.12.2004 complying the two essential conditions namely inclusion of all legal sharers or portable properties by means of registered partition deed or decree of competent Civil Court affected in respect of co-parcenary property or ancestral property, under such facts and circumstances, daughters have no right to challenge the said partition in joint Hindu family on 20.12.2004 onwards. In the given case on hand, the plaintiffs are the daughters. The defendant Nos. 1 to 3 are the wife and two sons of late G.Desikachar who died on 7-2-2003. At the cost of repetition, it is once again stated that so far as suit 'B' & 'C' items are concerned, the moment late G.Desikachar dies intestate, the plaintiffs and defendant Nos. 1 to 3 would succeed and inherit to the self acquired property of the late 116 O.S.8964/2013 G.Desikachar equally and simultaneously and inheritance not keeps in abeyance. Under Section 8 of Hindu Succession Act, the plaintiffs and defendant Nos. 1 to 3 would become a class-I heirs. It is inversely acknowledged principle of Hindu law once a proprietary right vested with the class-I heirs that right cannot be divested till partition by registered instrument among them recognized or released the right by way of relinquishment in favour of other sharers. On the face of the registered partition deed, dated 27.3.2003, it is not an out and out partition deed. All legal heirs not included in the partition deed but both ancestral and self acquired property of late G.Desikachar were included. In that circumstance also to affect a binding partition among the joint family members all necessary parties who have shares should have been joined as parties to the deed of partition. Admittedly, the plaintiffs are the daughters who had death right in 'A' schedule and equal right over suit 'B' & 'C' items not a party, privy or 117 O.S.8964/2013 signatory to the alleged partition deed of 27-3-2003 effected among the defendant Nos. 1 to 3. The plaintiffs' daughters have not released their right, title or interest in favour of any of the defendant Nos. 1 to 3, under registered instrument. It is the fundamental principle under Hindu law while effecting partition, all legal sharers should have been joined as parties and all the portable properties should have been joined also. In exceptional circumstances, the properties not available for partition can be kept joint as expounded by the Hon'ble Supreme Court of India. In the given case on hand, the plaint 'B' & 'C' items are the self acquired properties of late G.Desikachar. The plaintiffs are having an equal right along with defendant Nos. 1 to 3. They cannot be deprived their proprietary right or their share on the guise of dead line fixed in Section 6A of Hindu Succession Act, 2005. Section 6A of Hindu Succession Act specifically relates to the co-parcenary property only in case it applies but not so. On this ground, the 118 O.S.8964/2013 dead line fixed in Section 6A of Hindu Succession Act, 2005 not applicable to the self acquired property of the late G.Desikachar viz., plaint, 'B' & 'C' items. On this reasoning, so far as the plaint 'B' & 'C' items are concerned, the claim of the plaintiffs also not taken away by the effect of Section 6A of Hindu amended Succession Act, 2005 and the deadline fixed under Section 6A any registered partition deed effected prior to 20-12-2004.
37. It is a definite stand of defendant No.3 that since this suit filed in the year 2013 after the introduction of Section 6A by Central Amendment Act, 2005, the amendment Act will have to be made applicable to the plaintiffs' case. Mainly because, suit was being filed in the year 2013, it would not become a ground for the court to make applicable the amended Section 6A of Hindu Succession Act, Central Act contrary to the pleadings. What is to be seen that whether the suit was being filed within law of limitation that is well 119 O.S.8964/2013 within time only. At the same time, it is the bound and duty of the defendant No.3 that to show to the court that he had attributed knowledge of partition to the plaintiffs, then only he would succeed in the matter. No such attempt being made by him to non suit the plaintiffs.
38. Defendant No.3 is not the authority to accept his stand straight away by this court. On this careless thought that all the judicial officers are siding with plaintiffs as they being daughters. On this misconception and misconstruction of the plaint case filed the threatening memos in seriatim against four judicial officers.
39. With reference to registered partition deed 27.3.2003 effected in between defendant Nos. 1 to 3. Plaintiffs have challenged the said registered partition deed null and void and not binds their interest on the ground they are not a party or privy or signatory to it and their legal interest not represented and legally protected. 120 O.S.8964/2013 So, their right to claim share not affected by said deed of registration. Defendant Nos. 1 & 2 have explained in their joint written statement reposing a faith and confidence over the defendant No.3 have affixed the their signature over the papers for income tax purpose and said papers misused by the defendant No.3 and concocted the said registered partition deed 27-3-2003. This plea of the defendant Nos. 1 & 2 has not been controverted by defendant No.3 who is a party to partition deed. Whether the defendant Nos. 1 & 2 supports legal claim of the plaintiffs or not but the interest of the plaintiffs not affects by virtue of existence of their right accrued on the date of death of late G.Desikachar. Even defendant Nos. 1 to 3, fought this case with all hard and bitterness not affects the maintainability of the plaintiffs' case. On this ground, the plaintiffs rightly pleaded in their plaint. It is the stand of defendant No.3 that the registered partition deed actually executed between defendant Nos. 121 O.S.8964/2013 1 to 3 and it is a genuine transaction. The plaintiffs on their behalf examined plaintiffs No.2 as P.W.1 and got marked the 9 documents on their behalf. P.W.1 affirmed the plaint case in their favour and got marked the above documents. The evidence of the plaintiffs has not been controverted by the defendant No.3. So, the evidence of plaintiffs on record stands un-rebutted. Defendant No.3 not lead his oral evidence. Though, specific directions issued by the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka, Bangalore to expedite earlier disposal of case within the time frame fixed under law. The partition suits falls under the category of track No.II under the norm fixed by the Hon'ble High Court of Karnataka from the date of institution of the suit within two years, the lower courts shall dispose the suit for partition taking into confidence both side parties and their counsel. The defendant No.3 not actively participated in this proceedings and controverted the case of plaintiffs and defence plea of defendant Nos. 1 & 122 O.S.8964/2013
2. So, the written statement of defendant No.3 remains as a skeleton under law and only entitled to canvass law and written statement not automatically forms the evidence of the parties. On this ground, there is no bar for this court to discuss the substantial question of law raised by defendant No.3 in his written statement and give finding thereon. Accordingly, we have discussed about the maintainability of suit and finally concluded that suit of the plaintiffs is squarely maintainable. The defendant No.3 in his written statement taken up a plea that prior to registered partition deed, dated 27-3-2003 the oral partition effected among the joint family. No such kind of oral partition deed coming forth to evidence the oral partition effected in the joint family. Further, no documentary piece of evidence that application containing the oral recitals of oral partition effected and the mutation entry and khata entry effected in respect of the properties forthcoming before the court that the oral partition acted upon between the parties. There is no 123 O.S.8964/2013 recitation of oral partition effected in the registered partition deed, dated 27-3-2003. The Hon'ble Supreme Court of India in plethora of decisions upheld the oral partition under Hindu law valid. For non production of relevant documents with regard to oral partition it shows that the defendant No.3 taken a blanket plea and failed to substantiate it. The defendant No.3 miserably failed to place documentary evidence to show that during the life time of late G.Desikachar in his headship as a Manager of the joint family to carry out his intention among all the joint family members. The defendant No.3 further failed to establish that pursuant to said oral partition effected by his father late G.Desikachar, the registered partition deed, dated 27.3.2003 come into existence to exclude the daughters to claim sharers over the plaint 'A' & 'B' & 'C' suit items and to defeat and deprive their legal claim over the suit schedule properties. The defendant Nos. 1 & 2 have supported the claim of plaintiffs by denying the stand of defendant No.3, by examining defendant No.1 as 124 O.S.8964/2013 D.W.1 and got marked the one document as Ex.D.1. The defendant No.3 is a practicing counsel of this court. As an advocate, he leads the society. The defendant No.3 being a legal expert has to act prudently and showing the gentleman behaviour. The defendant No.3 tried heaven and earth to make the court to believe his stand by filing a threatening memos that suit of the plaintiffs governed by Section 6A amended Central Act, 2005. But he tried hard and failed to persuade the mind of the court. From the combined reading of the both documentary and oral evidence of plaintiffs and defendant Nos.1 &2 , the plaintiffs have successfully proved that the registered partition deed 27-3-2003 is null and void and not binds their interest and they are entitled to whatever quantum of share under law.
40. For the above detailed debate and discussions made, the voluminous arguments addressed by P.N.H advocate for plaintiffs is having a full force in law than 125 O.S.8964/2013 the stand of defendant No.3 urged in his written statement. Hence, accepted by this court. So, stand of defendant No.3 is straight away rejected by this court.
41. For the above detailed discussions made we answered the issue No.3 in the affirmative.
42. Issue No.1:- The burden of establishing the issue No.1 heavily lies upon the plaintiffs by leading both documentary and oral evidence and showing particular provision of law within the preponderance of probability. This is a suit for partition and separate possession of their share in or over the joint family ancestral properties and self acquired property of the father late G.Desikachar and this suit filed under Section 6A of Hindu Succession Act in the year 2013 basing the event of death of late G.Desikachar on 7-2-2003 and challenging the registered partition deed 27-3-2003 set up by the defendant No.3. It is a specific stand of plaintiffs that on the death of their father late G.Desikachar under deemed fiction of Hindu 126 O.S.8964/2013 law (During the life time or on the date of death of late G.Desikachar had been partitioned the plaint 'A' suit item with his sons and wife, he would been allotted 1/4th share over it. In that 1/4th share, the plaintiffs, along with defendant Nos. 1 to 3 mother and brothers succeeds equally and simultaneously to the extent of 6/25th share each. In the share of late G.Desikachar, his daughters and wife and two sons succeeds equally and simultaneously) under Section 6 of old Act, they are entitled to claim share 6/25th over the ancestral properties i.e., plaint 'A' suit item and 1/5th share over the plaint 'B'& 'C' suit items along defendant Nos. 1 to 3. It is a further case of the plaintiffs that on the death of late G.Desikachar, they are entitled to equal share along with defendant Nos. 1 to 3 in the share of their father. So, on arithmetical calculation, the share of each plaintiff would be 6/25th. So, each plaintiffs entitled to 6/25th share over the plaint 'A' suit item. The late father G.Desikachar being died intestate, they are entitled to 127 O.S.8964/2013 equal share along with defendant Nos.1 to 3. So, their share would be 1/5th over the plaint 'B' & 'C' schedule property. We have discussed at length about the applicability of Section 6A of amended Central Act, 2005 on the defence plea of defendant No.3, under heading maintainability of suit, under issue No.3. We are of the considered view that Section 6A amended Central Act, 2005 not applicable to the facts and circumstances of the plaintiffs' case. The plaintiffs' case governed by Section 6 (old Hindu Succession Act, 1956). The plaintiffs are entitled to share on the doctrine of notional partition. On the notional partition, the plaintiffs share calculated 6/25th each over the plaint 'A' suit item. The plaintiffs share over the plaint 'B' & 'C' schedule would be 1/5th each. This arithmetical calculation made by the plaintiffs not disputed by the defendant No.3. This court negatived the stand of the defendant No.3 that the provisions of 6A the amended Act (Central Act), 2005 not applicable to the plaintiffs' case. The amended Act is prospective in 128 O.S.8964/2013 nature. The suit of the plaintiff is completely and perfectly maintainable in the eye of law. The plaintiffs are entitled to 6/25th and 1/5th share respectively over plaint 'A' suit item and plaint 'B' & 'C' properties by metes and bounds with reference to good and bad soil and market valuation of the plaint property. The very entitlement of the plaintiffs contested by the defendant No.3 by quoting Section 6A amended Central Act, 2005 rejected upholding the claim of plaintiffs.
43. For the aforesaid discussions made, the plaintiffs successfully proved that they are entitled to 6/25th and 1/5th share each over plaint 'A' suit item and plaint 'B' & 'C' schedule properties. With reference to quality of soil and valuation of the property on the date of division made. Hence, answer issue No.1 in the affirmative.
44. Issue No.2:- The burden of establishing the issue No.2 heavily thrown upon the plaintiffs by showing 129 O.S.8964/2013 that under proper provision of Karnataka Court Fees & Suit Valuation Act, paid proper and sufficient court fee by valuing the plaint 'A' to 'C' suit items. It is a stand of defendant No.3 that the payment of court fee paid on plaint valuation and statement of valuation made under Section 10 of the Karnataka Court Fees Act by the plaintiffs is not proper. The defendant No.3 contended alternatively, the plaintiffs bound to pay court fees on the market value of the 'A' to 'C' plaint schedule arrived at 20 crores, which comes about 14 lakhs or under valued. Further, this court in view of above material preposition of fact and law of plaintiffs and defendant No.3 framed the above issues. While under writing or rendering judgment, this court under Order 14 Rule 5 of CPC empower to frame fresh issue or re caste the issues or frame additional issues or delete issues which are redundant for disposal of the suit on the preposition of fact and law pleaded by both sides. Since the defendant No.3 taken up a plea that suit is under valued. In view of 130 O.S.8964/2013 this clause, the one more issue required to be framed by this court. So, this court framed alternative issue as below:-
Whether defendant No.3 proves that the suit of the plaintiffs is under valued?
45. When the court framed the issue afresh while writing judgment bound to give full and fair fresh opportunity to both sides to lead their evidence on the issues framed. We have given direction to defendant No.3 to lead their evidence on entire case on the directions given by the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka. Although, defendant No.3 not lead his evidence in spite of the directions issued by this court to show court fee paid by the plaintiffs is under valued and what should be the exact court fee is to be paid. So, there is no evidence on record to challenge the issue framed as above from the side of defendant No.3. However, the plaintiffs' counsel 131 O.S.8964/2013 during his course of arguments on merits canvassed that if late G.Desikachar during his lifetime were effected a registered partition of the plaint 'A' to 'C' schedule properties by means of registered instrument or deed as now alleged in favour of the defendant Nos. 1 to 3 earlier to or prior to 20-12-2004 as stated by defendant No.3 in his written statement and if the plaintiffs challenged the said partition deed through defendant Nos. 1 to 3 canceling the same to claim and get their shares, in that event or circumstances, the plaintiffs are bound to pay the court fees on a entire 20 crores on the market value arrived at and court fees comes about 14 lakhs is correct. He further canvassed that in the statement of valuation submitted to court under Section 10 of Karnataka Court Fees & Suit Valuation Act, the plaintiffs are not claiming their shares under the registered partition deed set up by the defendant Nos. 1 to 3 against the plaintiffs. The plaintiffs are claiming their shares in their own or independent right as a class-I heirs of late G.Desikachar 132 O.S.8964/2013 who died intestate, succeeded equally and synchronously along with defendant Nos. 1 to 3. He further canvassed that the true tenor of the plaint pleadings have to be seriously looked into. The pleadings are the foundation for the action to seek relief. The late G.Desikachar died intestate. He had no intention to partition the ancestral and his self acquired property. However, he wished all his legal heirs should share equally only. On this ground, the plaintiffs have challenged the registered partition deed dated 27-3-2003 set up against them to declare it as null and void and not binding upon their shares. The plaintiffs have not sought the cancellation of the registered partition deed, just they have avoided it. The other side misconstrued and misconceived the true tenor of the plaint averments or crux of the suit contending before this court that the plaintiffs bound to pay court fee on the market value of the plaint 'A' to 'C' suit items which arrives at 20 crores. This is not the situation existed in this case. The issue as to payment 133 O.S.8964/2013 of court fee is to be decided only after filing written statement and leading the evidence of both parties. Whether the court fee paid proper or under valued. Admittedly, the defendant No.3 is a practicing advocate of this court and party to suit, who is a responsible person leading the society has not adduced any evidence to judge the payment of court fee made is proper and sufficient or under valued. Under Such circumstances, whatever valuation arrived by the plaintiffs on the plaint averments is to be taken as a true and correct. The defendant No.3 taken up a plea in the written statement the plaintiffs have to pay court fee on the market value of the plaint 'A' to 'C' suit items arrived at Rs.20 crores. The tenor of the plaint averments to the effect that they have challenged the registered partition deed affected on 27-3-2003 among the defendant Nos. 1 to 3. So, it amounts to cancellation of the registered instrument i.e., registered partition deed on the market value of the properties mentioned in the instrument. The court fee is 134 O.S.8964/2013 to be paid. No option for the plaintiffs and no option for the court also to proceed without levying it.
46. We have gone through the tenor of averments of plaint and written statement of defendant No.3. The defendant No.3 challenged whatever the court fee paid on the plaint on the plaint averments is not proper and sufficient. On scrutiny of the plaint averments as rightly pointed out by plaintiffs counsel, the plaintiffs have sought their shares as a class-I heirs of late G.Desikachar along with defendant Nos. 1 to 3 on same footing and suit is filed in their own or independent right without challenging the registered partition deed 27.3.2003 set up by defendant No.3. If the plaintiffs claimed share under the registered partition deed, 27.3.2003 through the defendant, the stand of defendant No.3 would have accepted by this court. That is not the situation to uphold the stand of defendant No.3. On this ground, the suit of the plaintiffs not for cancellation of 135 O.S.8964/2013 the registered partition deed dt:27-3-2003. The plaintiffs have rightly ignored the registered deed of partition as null and void set up against them. On this reasoning, whatever court fee paid by the plaintiffs on the plaint valuation, statement of the valuation is to be accepted by the court as a proper and sufficient as held repeatedly by the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka. Added to above, the defendant No.3 did not lead his evidence to substantiate his plea. So on this ground also, whatever court fee paid the plaintiffs as directed by the Hon'ble High Court of Karnataka and Hon'ble Supreme Court of India whatever valuation made and court fee paid is to be accepted as a true and correct. The plaintiffs have paid court fee accordingly. No evidence to interfere the issue No.2. Hence, we answered issue No.2 in the affirmative.
47. Issue No.8:- The burden of establishing the issue No.8 rests upon the defendant No.3 by placing 136 O.S.8964/2013 untainted oral and documentary evidence within the preponderance of the probability.
48. The defendant No.3 if had procured such kind of partition effected during the lifetime of late G.Desikachar and placed before the court, surely this court would act upon it and grant the relief's to the defendant No.3 as of right or as asked for. The failure to place required documentary proof would go to show that defendant taken up such a blanket plea that he had thrown the stone only if it struck to mango fruit and fell down, avail it otherwise not. So, this is an abortive attempt made by the defendant No.3. This is an attempt made to achieve his empty goal of depriving legal claim of the plaintiffs.
49. For the aforesaid detailed discussions and discussions made already under issue No.3, we answered the issue No.8 in the negative.
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50. Issue No.5:- It is incumbent upon the plaintiffs to establish that the present suit filed by them against defendant Nos. 1 to 3 is well in time by adducing both documentary and oral evidence within the preponderance of the probability. On the contrary, it is for the defendants to establish that the suit filed by the plaintiffs hit by law of limitation under the Hindu Law. (This issue is a mixed question of facts and law and it requires recording of both documentary and oral evidence to dispose it.)
51. It is the plaintiffs case that on came to know the defendant Nos. 1 to 3 colluding together excluding the plaintiffs have partitioned the plaint schedule properties among them on 27-3-2003 and demanded to give their separate shares with actual possession over the suit schedule property initially their request acceded their requests by defendant No.3 to give their share accordingly. Thereafter, the defendant No.3 started one 138 O.S.8964/2013 or other pretext pulling on the matter finally flatly refused their demand. So, they have filed this suit for partition and separate possession of their share. In the plaint, they have pleaded specifically that on came to know the registered partition deed affected on 27-3-2003 among the defendants excluding them immediately laid their demand before them. From the date of refusal they have filed this suit and this suit is well within the jacket of law. It is the stand of defendant No.3 who is a hard and bitter contestant of the suit of the plaintiffs that the registered partition deed effected from the date of its execution.
52. This suit is field on 19-12-2013. So, the suit is hit by law of limitation. It is for the defendant No.3 to show the plaintiffs' suit is hit by or barred by law of limitation. The defendant No.3 though raised such kind of plea not adduced documentary evidence to substantiate this plea. His conduct in conducting this 139 O.S.8964/2013 suit reflects that though the Hon'ble Supreme Court of India gave a green signal to the lower courts to pass a final decree but not to sign it. Though the Hon'ble High Court of Karnataka directed the defendant No.3 to get it dispose the suit as expeditiously as possible by actively participating before the court, imposing costs of Rs.10,000-00 payable to the defendant No.1 - mother. As the four judicial officers including this court not honoured his stand that Section 6A amended to Hindu Succession Act, 1956 by Central Act, 2005 as propounded by him irrespective of date of death of father late G.Desikachar and date of opening of succession for the plaintiffs daughters rejected his stand in seriatim filed a threatening memos and non cooperated with this court. As per the directions of the Hon'ble High Court of Karnataka, Bangalore, the partition suit comes in the category of track-II. The track-II suit will have to be decided within the frame time of two years and this time frame fixed on the ground in previous suit early disposed 140 O.S.8964/2013 by the courts one or two generations died without relief's. So, to avoid this contingency and giving a quick relief to the parties would work this track system introduced. The conduct and behaviour of defendant No.3 as a practicing advocate of this court, he litigated with the courts officer without litigating facts and circumstances of the case and law applicable under misconstruction and misconception. This is unwarranted thing happened in this case. In civil cases, law will not permit the court assassinate the characters of the parties to the lis and this law only applicable to the (criminal cases) complainant - prosecutor and his witnesses only. The court can attack or assassinates the character of the complainant and his witnesses. But in civil cases no bar to make mild comments as against the conduct of the parties to the lis, how they litigates and with what intention behind it?. We do not want to hurt the feelings of the defendant No.3 with respect to Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka. He 141 O.S.8964/2013 is also officer of the court. What we want to empathies that the defendant No.3 even in spite of directions by the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka, Bangalore directed to co-operate with lower court to get it dispose within the time frame fixed by law. Instead of co-operating with the court, he deliberately filed the stay petition on false ground to stay the proceedings. This conduct on his part to show that his mother defendant No.1 should not be allotted a share in her life time and enjoy it. This is the oblique motive which speaks in volumes. It would not be a wrong to make a fair comment on proved facts and circumstances. Strictly speaking under Hindu law, there is no limitation for speaking partition. In case of demand for partition made by any one of the sharers of the joint family over the joint family property against the other sharers from the date of refusal, the party who aggrieved has to file a suit for partition and separate possession of his share or their share within 12 years. In the instant case, the 142 O.S.8964/2013 plaintiffs have categorically pleaded on what date they came to know the alleged sham colourful registered partition deed dt:27.3.2003 effected between defendant Nos. 1 to 3 within 12 years of time, this suit filed by them. As against this assertion, it is for the defendant No.3 to show by positive evidence that the registered partition deed effected on 27.03.2003 was within the knowledge of plaintiffs earlier to filing this suit. So, the plaintiffs are debarred from claiming their shares. No such kind of knowledge of effecting partition attributed either orally or documentary evidence against the plaintiffs to exclude or to oust the plaintiffs by filing this partition suit. Even if defendant No.3 become successful in showing that the effecting of registered partition deed, dt: 27-3-2003 between defendant Nos. 1 to 3 was within their knowledge, nothing will come out from it. The law of limitation provided for seeking partition from the date of deed or date of knowledge is 12 years. Even if we considered the date of registered partition deed and date 143 O.S.8964/2013 of filing suit, nothing will come out from it. The defendant No.3 as stated by us he did not step into witness box and controverted plaintiffs case. So, no proof of attributing knowledge of effect of partition deed 27-3-2003 within the time of limitation from the side of decree. On this ground, the suit of the plaintiffs is well in time.
53. For the aforesaid detailed discussions made plaintiffs have successfully established that their suit is well in time. Hence, we answer the issue No.5 in the affirmative.
54. Issue No.6:- The burden of establishing the issue No.6 is upon the defendant No.3 to show that the suit of plaintiffs is bad for mis-joinder of necessary parties. The plaintiffs have filed suit for partition and separate possession of their share over the plaint 'A' to 'C' suit items against the defendant Nos. 1 to 3. Since the defendant No.3 on behalf of joint family members let out 144 O.S.8964/2013 the 'C' schedule to defendant No.4 and defendant No.4 included as a necessary party to this suit. On this ground, the defendant No.3 taken up a plea the joinder of defendant No.4 the tenant of a premises bad at law. On the ground, he is not a necessary party.
55. Under Hindu law, the member of the joint family who manages joint family affairs can let out the part of the premises for rents to maintain the joint family. In written statement of defendant No.3 nowhere we find who was the manager of the joint family after the death of late G.Desikachar. The plaintiffs have pleaded in their plaint after the death of their father G.Desikachar, defendant No.3 was managing the joint family affairs. The defendant No.2 was at abroad. The plaintiffs and defendant No.1 are the female members of the joint family. The defendant Nos. 1 & 2 in their written statement have pleaded categorically that it was the defendant No.3 who looking after the joint family affairs 145 O.S.8964/2013 including the maintenance of the joint family properties. The defendant No.1 as a D.W.1 pleaded and deposed reposing faith and confidence over the defendant No.3, she affixed her signatures on the paper required by defendant No.3 for tax purpose to manage the joint family affairs. Actually she did not read the said papers while affixing her signature. The defendant No.1 is a senior citizen, defendant No.2 was the software engineer permanently residing at America. The plaintiffs are the married daughters. The daughters have got dual membership one at parents house as a joint family member and another at husband's family. This is a special right conferred upon the female sharers especially daughters. The defendant No.3 in his written statement categorically admitted the letting out the premises to the defendant No.4 on monthly rent. The defendant No.4 also filed his written statement and adduced his evidence as D.W.2, which is on record. Under Hindu law, when dispute being raised by the other member of the family 146 O.S.8964/2013 about the profits of the business or actually all the benefits from the family property, the manager of the family who collects the benefits bound to give the accounts of it to other members of the family. The defendant No.3 did not entered into witness box and not controverted the case of plaintiffs and defendant No.1 who deposed against him. Under what circumstances her signature were obtained on alleged registered partition deed by the defendant No.3. On this ground, we have accepted the evidence of both plaintiffs and defendant Nos. 1 & 2 in toto as unchallenged. The defendant No.4 also admitted his status as a tenant in respect of the plaint 'C' suit item under the defendant No.3. One should see the fun of both defendant Nos. 3 & 4 before this court. None of them have produced at least notarized or certified or Xerox copy of the lease deed executed in between defendant Nos. 3 & 4 to know what were the terms and conditions, under which the plaint 'C' suit item let out. This is how in the manner defendant 147 O.S.8964/2013 Nos. 3 & 4 prosecuting the suit. The defendant No.4 who is a tenant and obeyed the direction of this court depositing the rents before the court regularly from the date of order , at least he could have produced the Xerox copy of the lease deed to know its term by this court. In law, the Manager of the joint family i.e., the defendant No.3 was bound to give account of the profit pondry of the joint family to other members when insisted. The manager of the family cannot escape from this liability in an eye of law. On this concept, this court directed not only the defendant No.4 but also to defendant No.3 to deposit whatever rentals received by him from the hands of the defendant No.4 from the date of institution of a suit till the date of the defendant No.4 depositing the rents before the court. So far, the defendant No.3 has not complied the orders of this court. Instead of depositing the rental received by him, the defendant No.3 protracting in one or other manner to deposit of rentals before the court. Thus, the defendant No.3 shedding 148 O.S.8964/2013 from his liability as a manager of the family. This conduct on the part of defendant No.3 speaks in volumes. The plaintiffs and defendant Nos. 1 to 3 are the class-I heirs of late G.Desikachar. So far as the plaint 'B' & 'C' schedule properties are concerned all have got equal right not only equal right but also enjoy it equally till the properties divides by metes and bounds with reference to the market value of the properties.
56. Previously in partition suit especially in respect of agricultural lands tenanted lands to attribute the knowledge of eruption of difference of opinion among the family members for partition of their joint family, the tenants of the said property who have lease hold rights over the joint family properties normally included as a formal parties and this was the old trend what we found from our experience. In the given case on hand, the defendant No.4 was the tenant of costly premises and paying a huge sum to the defendant No.3 as rentals. All 149 O.S.8964/2013 joint family members as legal sharers are entitled to apportionment of the rentals to the extent of their shares. On this concept, this court allowed the I.A filed by the plaintiffs, issued necessary directions to both defendant Nos. 3 & 4 as discussed supra. The impleading of the defendant No.4 as one of the party to this suit no where or in any manner prejudice or complicates the disposal of the suit of plaintiffs or any of the parties. So, the impleading of the defendant No.4 would become a formal party. The presence of formal party not complicates the matter. On this ground, the plaintiffs' suit is not bad for joinder of defendant No.4 as a necessary party or formal party.
57. For the aforesaid detailed discussions made, we answer the issue No.6 accordingly.
58. Issue No.4:- The burden of proving the issue No.4 is upon the defendant No.3 by placing untainted documentary and oral evidence within the preponderance 150 O.S.8964/2013 of the probability. The defendant No.3 in his written statement taken up a plea that during the life time of G.Desikachar, the defendant No.2 brother of the defendant No.3 and plaintiffs and son of defendant No.1 have contributed the entire costs of construction of the first and second floor and defendant No.3 paid the half of the cost of construction about Rs.14,50,000-00 (Rupees Fourteen Lakhs and fifty thousand only) to the defendant No.3. On this ground, their father late G.Desikachar had intention to allot first and second floor to the defendant Nos. 2 & 3 on equitable ground.
59. We have read the written statement of defendant No.2 wherein the defendant No.2 categorically stated because of his lucrative employment at abroad, he had paid substantial amount to his late father G.Desikachar who utilized the said fund towards the construction of the first and second floor of joint family house which is now plaint 'C' suit items. That amount 151 O.S.8964/2013 had been paid within the welfare of the family only. The defendant No.2 nowhere in his written statement stated what was the actual amount paid to late G.Desikachar for construction of first and second floor of the joint family house. The one more essential fact required to be pleaded that his brother the defendant No.3 G.D.Srinivas had paid Rs.14,50,000-00 to him in the cost of construction incurred by him and his father late G.Desikachar had intention to allot the first and second floors to their shares on that equitable ground. The defendant No.2 pleaded that he paid substantial amount towards the construction of first and second floor to his father. Actual amount paid not specified. Further, defendant No.2 not stated Rs.14,50,000-00, half of the cost of the construction of the first and second floors paid by defendant No.3 to him. The late G.Desikachar had assured and promised that defendant Nos. 2 & 3 to allot the first and second floors to them on equitable ground. From the above particulars of fact discussed, what is 152 O.S.8964/2013 pleaded by defendant No.3 not pleaded by defendant No.2 except the fact he paid substantial amount to his father towards the construction of first and second floor. On the basis of above particulars fact, the second and third facts were missing in the written statement of defendant No.2. The defendant No.2 pleaded the said amount paid towards the welfare of the joint family only not motive to get the benefit of the said fund on the equitable ground. Thus, the written statement of defendant Nos. 2 & 3 are conflicting and contradicting to each other on material particulars. For argument sake, it is taken that (not admitted), the defendant No.2 now sided with plaintiffs and defendant No.2 now sided with plaintiffs and defendant No.1 pleading the false fact. Next course would be left open to the defendant No.3 that he could have produced the documentary evidence that by under what document the defendant No.3 had paid huge sum of Rs.14,50,000-00 to the defendant No.2. No such document is forthcoming or he could have adduced the 153 O.S.8964/2013 oral evidence before whom he had paid Rs.14,50,000-00 to the defendant No.2 before 27-3-2003. Even if said person before whom paid not supporting him, could have examined him if turns hostile, he could have cross- examined him. For the short fall of this evidence, the case of the defendant No.3 could not be accepted at all. If the father had intention to allot the first and second floors to the share of defendant Nos. 2 & 3 respectively, would have died by executing a will and dispose it . So, no such kind of will also forthcoming from the side of defendant No.3 to support his plea. From these things it would appears that he taken a one more blanket plea.
60. If it were the case of defendant No.3 that defendant Nos. 2 & 3 had paid the amount equally towards the cost of construction of first and second floors of plaint 'C' suit item property during the lifetime of late G.Desikachar, definitely no father like late G.Desikachar would not have died making some arrangement to his 154 O.S.8964/2013 sons when his sons contributed their hard earned money towards the construction of the family house, definitely late G.Desikachar would die making a will or some arrangement. Late G.Desikachar is not an ordinary man. He was a Doctor by profession and served as a medical superintendent at Victoria Hospital. Under these facts and circumstances of the case, the case of the defendant No.3 what he asserted in an eye of law could not be accepted at all. The say of the defendant No.2 is directly supported by the say of defendant No.3 that defendant No.2 had paid substantial amount to late father G.Desikachar towards the construction of first and second floors of the plaint 'C' suit item. However, defendant No.3 not claimed the benefit of the demand made by him. From these established facts and circumstances would show that the defendant No.3 is telling hard and bitter lie. The fact that defendant No.3 assisted his late father G.Desikachar while constructing the first and second floors of plaint 'C' suit items is 155 O.S.8964/2013 appears to be correct on the ground that defendant No.2 was at employment in abroad. Sisters - plaintiffs were given in marriage. On this ground, no equitable relief could not be granted to the defendant No.3. The defendant No.3 wants to get an equitable relief from the hands of this court. However, his conduct before the court he litigates with the court not on the facts and circumstances of the case.
61. For the aforesaid detailed discussions made, we have come to the conclusion that the defendant No.3 utterly and miserably failed to prove issue No.4. Hence, we answer issue No.4 in the negative.
62. Issue No.9:- The burden of establishing the issue No.9 is upon the plaintiffs to show that they have cause of action to file this suit by leading affirmative documentary and oral evidence within the preponderance of the probability. The defendant No.3 the bitter contestant of the suit is taken up a plea no cause of 156 O.S.8964/2013 action arose to the plaintiffs to file this suit and to seek share. Except the defendant No.3, the plaintiffs' ,defendant Nos. 1 & 2 and defendant No.4 have lead their evidence before this court. In support of their case pleaded in plaint and their written statement. Whether there is a cause of action or not to the plaintiffs to file this suit is to be decided on the face of the pleadings pleaded in the plaint only. Cause of action is a bundle of facts required to be pleaded and to adduce evidence in support of it, to get a relief in the judgment. On whole reading of the plaint, it manifest that the plaintiffs have cause of action to file this suit. The defendant No.3 by filing an I.A., appeal to this court to reject the plaint on the ground no cause of action arose to file this suit. This court narrating all facts and law applicable to the plaintiffs' case affirmatively held that the plaintiffs have cause of action to file this suit. The orders passed on this I.A now before the Hon'ble Supreme Court of India. It not needs elaborated discussion on this discussion. In 157 O.S.8964/2013 our considered view, plaintiffs have cause of action to file this suit. The plaintiffs have successfully established that they have got cause of action to file this suit against the defendant Nos. 1 to 3. Aggrieved by the orders on I.A.Nos 1 & 2, the defendant No.3 preferred MFA No.2549/2015, before the Hon'ble High Court of Karnataka, Bangalore challenging the orders on I.As passed by this court. Stay orders on that I.As issued. Issuance of stay orders will not come in the way of disposing this suit. The orders on I.As merge with on the main suit. Hence, we answer issue No.9 in the affirmative.
63. Issue No.7:- The burden of establishing this issue is upon the plaintiffs' to prove by leading substantive evidence within the preponderance of the probability. It is the case of the plaintiffs' that defendant No.3 let out the first and second floors to the defendant No.4 for running their business on monthly rentals 158 O.S.8964/2013 subject to revision of rents from time to time. Now, the defendant No.4 running a business in the first and second floors as a tenant of the joint family house. The defendant No.3 collecting the rents on behalf of the joint family. The plaintiffs' and defendant Nos. 1 to 3 are the joint owners of the plaint 'C' suit items. All the joint family members are entitled to share and enjoy the usufructs or income of the joint family property equally. Any member of the family receives income by way of rents or otherwise is liable to account for the other family members in case of a dispute excluding the reasonable expenses incurred. The liability of the joint family members who receives the income is accountable to others and cannot be escaped. On this ground, the law confers a special right to other joint family members in case of failure seek for the accounts of the joint family income by filing such suit also. On this ground, the plaintiffs are entitled to rentals as an income to the extent of their share.
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64. The defendant Nos. 3 & 4 have filed their detailed written statement admitting the case of plaintiffs and defendant No.4 examined his one of his employee as a D.W.2 on their behalf. As quoted supra, the defendant No.3 afraid to entering to witness box to avoid displeasure of cursive cross-examination in the hands of plaintiffs' counsel and in the face of this court. So, this court accepted the case of plaintiffs whole heartedly without making any discussion in this issue. Neither the defendant No.3 nor the defendant No.4 produced the Xerox copy of the lease deed entered into between them for the perusal of this court to know what were the terms and conditions of it. This court on the interlocutory application of the plaintiffs styled as an I.A.No.2 the defendant No.4 is directed to deposit the monthly rentals of first floor of 'C' schedule property as a monthly tenant in his occupation regularly from the date of this order so long as the tenancy of the premises subsists before this court and this court further ordered the defendant No.3 160 O.S.8964/2013 to deposit monthly rentals whatever received from the defendant No.4 from the date of suit till the date of this order. The defendant No.4 on the strength of this order depositing the monthly rentals regularly but defendant No.3 blatantly failed to obey the directions of this court. All the legal sharers, plaintiffs and defendant Nos. 1 to 3 are equally entitled to get share the rentals and the shares of money will be allotted to all sharers on levying of the court fee to the extent of their share value. When the immovable property converted into money, in that circumstance, the court fee will be levied. In the given case on hand, the rentals are an income derivable from the plaint suit items. The rentals are also liable to partition among the sharers of this suit. So, the each party entitles to pay court fee to the extent of their share value only. In case during the pendency of the suit, defendant No.4 vacates, the tenants' premises or tenancy discontinued, no question of determining the mesne profits not arises. The defendant No.4 is permitted to 161 O.S.8964/2013 stay and continue as a tenant so long as the division of the plaint 'C' suit item among the sharers of this case subject to terms and conditions incorporated in the lease deed between them and defendant No.3. Accordingly, we answer this issue.
65. Issue No.10:- We have debated and discussed about the accrual of the right of the daughters divesting of their rights on inheritance from the death of their father and their entitlement applicability of the Section 6A of amended Central Act, 2005 and right of sharing of the income of the joint family property in detail. The plaintiffs' are entitled to 6/25th each share in plaint 'A' suit item and 1/5th each share over plaint 'B' and 'C' suit items with separate possession. Further, the plaintiffs are entitled to equal share in the rentals received by defendant No.3 from the hands of defendant No.4 from the date of suit till the date of passing orders on I.A.4 and from the date of passing orders on I.A.No.2 so long as the 162 O.S.8964/2013 defendant No.4, tenant, vacates the tenanted premises by paying a court fee proportionate to their share. The plaintiffs are entitled to get divide the plaint 'A' suit item and obtain the possession of their share by appointing the Tahsildar as a Court Commissioner by paying a commissioner fee as prescribed under the notification issued by the Government . Further, the plaintiffs are entitled to obtain or get 1/5th each share over plaint 'B' & 'C' suit items appointing a Government valuer or advocate commissioner, with reference to the market value of these properties subject to easement rights and other rights. In case any property not feasible to enjoy jointly by all sharers, reserve a right among themselves to sell in auction for higher bid and to share the money value to proportionate to their shares.
66. The suit on hand is a suit for partition and this suit come under the category of track No.II. The suits, which fall under the category No.II will have to be decided 163 O.S.8964/2013 by the courts within the time frame of two years. Though directions were issued by the Hon'ble High Court of Karnataka in Writ Petition and in Civil Revision Petition, especially defendant No.3 to other parties to this suit to get the suit disposed of as expeditiously as possible without wasting time, as the defendant No.1 being the Senior Citizen. The Hon'ble Supreme Court of India also in a SLP directed the defendant No.3 co-operates with this court or join hands with this court in getting the suit early dispose. Although, he has not co-operated except adopting the dragging tactics. The defendant No.3 filed an application under Section 10 of the CPC to stay the suit on the strength of the order passed in SLP filed by him before the Hon'ble Supreme Court. This suit filed in the year 2013 before the 2nd Addl.Judge (Sr.Divn), City Civil Court, Shimoga. On the orders of Hon'ble High Court of Karnataka, this suit came to be transferred to Prl.Judge, City Civil Court, Bangalore. On the threatening memos filed by the defendant No.3, this suit 164 O.S.8964/2013 was placed in the hands of this court by the then Prl.Judge, City Civil Court, Bangalore for early disposal. As this court burdened with light one. This court has to take the parties and the advocates of the litigation into confidence and dispose of the case on merits. We do not know for what reason, the defendant No.3 actively not participated before this court. It appears from his conduct that his stand pleaded not accepted by this court and grant the reliefs to him on I.As filed by him. On this ground, he might have not co-operated with this court. This court bound to give the fair and full opportunity to the all parties to the suit. The defendant No.3 filed a stay application during the stage of recording the evidence and since that application being contrary to the direction of the orders of the Hon'ble Supreme Court of India in SLP passed, dismissed with costs of Rs.2,000/-and even in spite of date fixed for his evidence not appeared and lead his evidence. Since the defendant No.3 being a practicing counsel well versed with law and 165 O.S.8964/2013 rights of the parties not co-operated with this court. If we minded we would have resolve the dispute among the family members but he did not resorted to such course of action out of court. He instead of contesting the suit with his family members, he fought the case against this court by filing a threatening memos. We do not say he has a right of appeal is a statutory right to question the proprietariness of the I.A orders passed by this court. On these grounds, in our view it is a fit court to impose heaviest costs as provided under law against defendant No.3. In our fair comment on sensitive scrutiny of the pleadings of all parties including plaintiffs and defendant Nos. 1 to 4, it needs no oral evidence for disposal of the suit by any of the parties. It purely based on law points only. From this view point, the failure on the part of defendant No.3 to entering into witness box and controvert the case of the plaintiffs and defendant Nos. 1 & 2 not tilts any balance any of the parties. The facts and circumstances of the parties on record itself 166 O.S.8964/2013 sufficient for this court to dispose the suit on merits by interpretation of the law applicable to the case on hands. On this ground, the absence of defendant No.3 is justified under law.
67. For the aforesaid detailed discussions made, we answer the issue No.10 accordingly.
68. Issue No.11:- In view of my detailed discussions made on issue Nos.1 to 10, we proceed to pass the following:-
ORDER The suit filed by the plaintiffs against defendant Nos. 1 to 3 is hereby decreed with costs of Rs.2,000-00 (Rupees Two Thousand only).
It is ordered and decreed that the plaintiffs are entitled to partition and separate possession of 6/25th share each in or over the plaint 'A' suit item, and 1/5th share each in or over the plaint 'B' & 'C' suit items by metes and bounds with reference to the good and bad 167 O.S.8964/2013 soil and with reference to market value of suit items respectively.
It is further ordered and decreed that the plaintiffs and defendant Nos.l to 3 are entitled to rentals of 'C' suit item to the extent of their share from the date of suit till realization of their share or so long as tenancy of the premises lasts.
It is further ordered and decreed that the registered partition deed dated 27-3-2003 effected in between defendant Nos. 1 to 3 in respect of plaint suit 'A' to 'C' suit items is declared as null and void and not binding on the plaintiffs' interest.
It is further ordered and decreed that the defendant Nos. 1 to 3 or their agents or anybody claiming under them or restrained permanently from selling or transferring, alienating and encumbering the plaint 'A' to 'C' suit items in any manner what so ever until the plaintiffs' legitimate share curved out by metes and bounds and put them in actual and physical possession of the same.
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Draw preliminary decree accordingly. The plaint 'A' to 'C' suit items shall be treated as a part and parcel of this decree. (Dictated to the J.wr., transcribed by her, corrected and then pronounced by me in open court on this the 13th day of November 2015.) (G.B.MUDIGOUDAR) XXXV Addl.City Civil & Sessions Judge, Special Judge (Spl.Court), Bangalore.
ANNEXURE Witnesses examined on behalf of the plaintiffs.
P.W.1 : Vidya D.Belur Witnesses examined on behalf of the defendants.
D.W.1 : Saroja Deshikachar
D.W.2 : Prashant Shenoy
Documents marked on behalf of the plaintiffs.
Ex.P.1 : One RTC extract of 'A' schedule
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Ex.P.2 : One RTC extract of 'A' schedule
Ex.P.3 : One RTC extract of 'B' schedule
Ex.P.4 : Mutation extract of 'B' schedule
Ex.P.5 : C/c of partition deed
Ex.P.6
to P.8 : Three Khata extract of 'C' schedule
Documents marked on behalf of the defendants. Ex.D.1 : Resolution passed by D.4 company (G.B.MUDIGOUDAR) XXXV Addl.City Civil & Sessions Judge, Special Judge (Spl.Court), Bangalore.