Bangalore District Court
M.N. Kumaraswamy vs Smt. Shivarudramma on 12 March, 2020
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 12th day of March, 2020.
PRESENT:
Sri MALLANAGOUDA, B.Com.,LL.M.,
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.9014/2011
PLAINTIFF : M.N. Kumaraswamy,
S/o. Late Nanjundappa,
Aged about 43 years,
Residing at No.10/1, 4th 'A'
Cross, 9th 'F' Main Road,
Pipeline Road, Vijayanagar,
Bangalore.
(By Sri G. Suresh, Advocate)
-VERSUS-
DEFENDANTS : 1. Smt. Shivarudramma,
W/o. Late M. Nanjundappa,
Aged about 65 years,
Residing at No.10/1, 4th 'A'
Cross, 9th 'F' Main Road,
Pipeline Road, Vijayanagar,
Bangalore - 560 040.
2. Smt. M.N. Shylaja,
D/o. Late M. Nanjundappa,
W/o. Ganganna,
Aged about 50 years,
Residing at No.10/1, 4th 'A'
Cross, 9th 'F' Main Road,
Pipeline Road, Vijayanagar,
Bangalore - 560 040.
Cont'd..
-2- O.S. No.9014/2011
3. M.N. Rudraprakash,
S/o. Late M. Nanjundappa,
Aged about 47 years,
Residing at No.10/1, 4th 'A'
Cross, 9th 'F' Main Road,
Pipeline Road, Vijayanagar,
Bangalore - 560 040.
4. Smt. M.N. Rajeshwari,
Since deceased, through
legal heirs -
4(a). G.P. Rajashekaraiah,
S/o. Late Puttappa,
Aged about 54 years,
Residing at No.10/2, 4th 'A'
Cross, 9th 'F' Main Road,
Pipeline, Vijayanagara,
Bangalore - 560 040.
4(b). Kum. G.R. Dakshayani,
D/o. G.P. Rajashekaraiah,
Aged about 21 years,
Residing at No.10/2, 4th 'A'
Cross, 9th 'F' Main Road,
Pipeline, Vijayanagara,
Bangalore - 560 040.
(Defendant No.1 by Sri A.N.K.,
Advocate)
(Defendant Nos.2, 4(a) and
4(b) by Sri B.M.M., Advocate)
(Defendant No.3 by Sri G.P.,
Advocate)
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Date of Institution of the Suit : 17-12-2011
Nature of the Suit (Suit on : Partition.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 31-01-2018
of recording of the evidence
Date on which the Judgment : 12-03-2020
was pronounced
Cont'd..
-3- O.S. No.9014/2011
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Year/s Month/s Day/s
----------------------------------
Total duration : 8 years, 2 months, 25 days.
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(MALLANAGOUDA)
VIII Additional City Civil and Sessions Judge,
An&/- Bengaluru.
JUDGMENT
This suit is filed by the plaintiff seeking partition and separate possession of his share in the suit properties and mesne profits.
2. The brief facts of the plaintiff's case are as under -
First defendant is the mother of the plaintiff and defendants 2 and 3 are the brother and sister of the plaintiff. Plaintiff and defendants are the members of Hindu undivided joint family. Plaintiff's father - M. Nanjundappa - has died on 23.10.2010 leaving behind him the plaintiffs and defendants as his legal heirs. During his lifetime, deceased M. Nanjundappa has acquired certain properties through partition. Now, Cont'd..
-4- O.S. No.9014/2011 after his death, plaintiff and defendant became owners of the suit properties and they are enjoying the same. Till now, there is no partition taken place between the plaintiff and defendants. After the death of deceased M. Nanjundappa, first defendant started managing the family properties. Plaintiff is entitled for his legitimate share in the suit properties - for which, he requested the defendants to effect partition, - but the defendants have refused to effect partition. Now, defendants are mismanaging the joint family funds and joint family properties. They are trying to alienate the same without the consent and knowledge of the plaintiff. Therefore, plaintiff is constrained to file the suit seeking partition and separate possession.
3. After service of summons, defendants 1, 2 and 4 have appeared in the case. Defendants 1 and 2 have filed separate written statements, and defendant No.4 has adopted the written statement of defendant No.2. Defendant No.3 is placed ex-parte. During pencency of suit, defendant No.4 has died and her legal Cont'd..
-5- O.S. No.9014/2011 representatives are brought on record. Defendant No.1 filed written statement as under -
Suit of the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed in limine. Relationship of the plaintiff and defendants, as alleged in the plaint, are true and correct. It is true that plaintiff and defendants are members of a Hindu undivided joint family. But, it is false to say that plaintiff's father has died on 23.10.2000. In fact, he has died on 19.10.2000. Averments of Para 4 of the plaint that during lifetime of late Nanjundappa, he acquired the suit properties in a partition, are denied, - plaintiff is called upon to prove the same. Other averments of the same paragraph that after death of M. Nanjundappa, plaintiff and defendants,being legal heirs of M. Nanjundappa, are in possession and enjoyment of the suit properties, are false and denied. Averment of the same paragraph that no partition took place between the plaintiff and defendants, is not fully correct. In fact, deceased M. Nanjundappa has got Item Nos.1 to 9 of the plaint schedule properties in a Cont'd..
-6- O.S. No.9014/2011 partition between himself and his brothers. Item No.10 of the suit schedule property is not the joint family property as contended by the plaintiff. Averment of Para 5 of the plaint that after death of M. Nanjundappa, first defendant was managing the entire family properties, is false and incorrect. Other averments of the same paragraph that plaintiff is entitled for share in all the suit properties, are incorrect. Plaintiff never requested the defendant to effect partition in the joint family properties and hence, question of effecting partition does not arise. Averments of Para 6 of the plaint that defendants are mis-managing the joint family properties and funds; they are trying to alienate the suit properties without knowledge or consent of the plaintiff, are denied. Court fee paid by the plaintiff is not sufficient. Item Nos.1 to 9 of the suit properties are the only ancestral properties. Item No.10 property was purchased by late M. Nanjundappa in the name of his elder brother - Channappa and hence, the same is not the joint family property and it is not available for partition. The said property is in possession and enjoyment of the defendant Nos.2 and 4 alone. Hence, Cont'd..
-7- O.S. No.9014/2011 suit in respect of Item No.10 of the suit properties is liable to be dismissed. Deceased M. Nanjundappa had purchased property Nos.11 and 18 formed in Survey No.231 of Kempapura Agrahara Hosahalli, Kasaba hobli, Bangalore North taluk each measuring 50 feet x 30 feet in the name of his brother Channappa under sale deed dated 7.2.1969. The said property was self- acquired property of M. Nanjundappa. Nanjundappa has in turn sold site No.18 in favour of Parangi Ramaiah through sale deed dated 6.4.1974 and has purchased site No.10 on the same day. After purchasing site Nos.10 and 11, deceased M. Nanjundappa has constructed residential house in the said sites consisting of ground and first floors in the year 1980 and he was in possession of the same. Brother of M. Nanjundappa viz., Channappa and his other brothers never treated the said properties as joint family properties. Even in the partition deed dated 6.6.1982, the said property was not included in the partition for the reason that the same is exclusively belonging to M. Nanjundappa. However, for the purpose of facilitating late M. Nanjundappa to get the Cont'd..
-8- O.S. No.9014/2011 Khata in respect of the said property in his name, it was included along with other ancestral properties. Later on, in 1995 when there was a dispute between the family members, a meeting was held on 13.12.1995 - during which, M. Nanjundappa has given up his rights in Item No.10 of the schedule property in favour of defendants 2 and 4. Accordingly, he has executed family agreement dated 15.1.1996 in favour of defendants 2 and 4 in respect of Item No.10 of the suit properties. From the date of said family arrangement, defendants 2 and 4 are in exclusive possession of Item No.10 of the suit properties as absolute owners. In the Will executed by M. Nanjundappa and codicil dated 5.4.2000 and 15.10.2000 respectively, he has clearly stated his intention and family arrangement made in favour of defendants 2 and 4. Therefore, defendants 2 and 4 have become absolute owners of Item No.10 of the suit properties and their names are entered in the Khata of the said property. They got transferred electricity and water connections in their names and they are enjoying the said property as absolute owners. Now, with an intention to knock off Item No.10 Cont'd..
-9- O.S. No.9014/2011 property, plaintiff has filed the present suit. Item No.10 of the suit properties is not the joint family property.
Defendant No.1 has purchased Item Nos.11 and 13 properties and the same are her self-acquired properties. Therefore, Item Nos.11 and 13 are not the joint family properties. Defendant No.1 has purchased the said properties out of her own income.
With regard to Item No.12 is concerned, the same was self-acquired property of late M. Nanjundappa. He had purchased the said land from his own income and retirement benefits. He was working as Revenue Inspector in B.B.M.P. From his salary income and retirement benefits, he has purchased the said property. Plaintiff has not at all contributed for purchasing the said property. Deceased M. Nanjundappa has executed Will dated 5.4.2000 - under which, he bequeathed Item No.12 property in favour of the first defendant. He has died on 19.10.2000 and hence, the said Will came into force and defendant No.1 being beneficiary of the said Will, has succeeded to Item No.12 of the suit schedule properties. Accordingly, Cont'd..
-10- O.S. No.9014/2011 defendant No.1 became absolute owner of Item No.12 property. She has already sold major portion of the said property as revenue site. Purchasers are in possession of the respective sites purchased by them. Plaintiff has included the said property in the suit with a mala fide intention to harass the defendant. Hence, suit of the plaintiff is liable to be dismissed.
4. Defendant No.2 has filed her written statement in which she has also repeated the contents of the written statement of defendant No.1 and requested for dismissal of the suit.
5. At the time of writing judgment, since it is found that though defendants 1, 2 and 4 have pleaded about execution of the Will, Codicil and Family Arrangement Deed executed by deceased M. Nanjundappa and self-acquisition of Item No.12 property by M. Nanjundappa, and parties have already adduced evidence regarding the said pleadings, Issues with regard to the said contentions are not framed. Therefore, it is decided to frame Additional Issues and alter the Additional Issue No.2 framed on 31.1.2018 Cont'd..
-11- O.S. No.9014/2011 and proceed to write judgment. Hence, Additional Issue No.2 framed on 31.1.2018 is altered and Additional Issues are framed.
6. The Issues framed by this Court are as under -
ISSUES (1) Whether the Plaintiff proves that he is entitled for the decree of partition and separate possession as prayed?
(2) Whether Plaintiff proves item No.10 of the schedule premises is Joint Family Property?
(3) Whether Defendant proves Item No.10 of Schedule property is self acquired property of M. Nanjundappa?
(4) Whether court fee paid is
sufficient?
(5) Whether Plaintiff is entitled for the relief sought?
(6) What Decree or Order?
Cont'd..
-12- O.S. No.9014/2011 ADDITIONAL ISSUE FRAMED ON 11.1.2018: Whether defendant Nos.2 and 4
prove no other family members have any right over Item No.10 of suit schedule property except them?
ADDITIONAL ISSUES FRAMED ON 31.1.2018:
(1) Whether plaintiff proves Item Nos.11, 12 and 13 properties are joint family properties?
ALTERED ADDITIONAL ISSUE No.2 FRAMED ON 31.1.2018:
(2) Whether defendant No.1 proves that Item Nos.11 and 13 properties are her self-acquired properties, and Item No.12 property is self-acquired property of deceased M. Nanjundappa?
ADDITIONAL ISSUES FRAMED ON 12.3.2020 WHILE WRITING JUDGMENT:
(1) Whether defendants 1, 2 and 4 prove that deceased M. Nanjundappa has executed Will dated 5.4.2000 bequeathing his 1/6th (one-sixth) share in Item Nos.1 to 9 properties, Item No.12 Cont'd..
-13- O.S. No.9014/2011
property in favour of defendant
No.1?
(2) Whether defendants 1, 2 and 4
prove that deceased M.
Nanjundappa has executed Codicil dated 15.12.2000 - through which, he bequeathed Southern portion ground floor of the property bearing No.10/1 to the plaintiff and Northern portion of the ground floor of the suit property to defendant No.3, and first floor portion of the said property to plaintiff and defendant No.3 jointly?
(3) Whether defendants 1, 2 and 4 prove that deceased M. Nanjundappa has executed Family Arrangement Deed dated 15.1.1996 through which he transferred Item No.10 of the suit property to defendants 2 and 4 and they are in possession and enjoyment of the same?
7. In support of plaintiff's case, plaintiff himself examined as P.W.1 and got marked documents at Exs.P.1 to P.22 on behalf of the plaintiff.
Cont'd..
-14- O.S. No.9014/2011
8. On the other hand, defendant No.1 herself examined as D.W.1; defendant No.2 herself examined as D.W.4 and three more witnesses on behalf of the defendants has been examined as D.Ws.2, 3 and 5, and got marked Exs.D.1 to D.1 to D.20 on behalf of the defendants.
9. Heard arguments.
10. My findings on the above Issues and Additional Issues are as under -
ISSUE No.1 - Partly in affirmative and partly in negative;
ISSUE No.2 - Affirmative;
ISSUE No.3 - Negative;
ISSUE No.4 - Affirmative;
ISSUE No.5 - Partly in affirmative and partly in negative;
ADDITIONAL- Negative;
ISSUE FRAMED ON 11.1.2018 ADDITIONAL- Negative;
ISSUE No.1 FRAMED ON 31.1.2018 Cont'd..
-15- O.S. No.9014/2011
ALTERED - Affirmative;
ADDITIONAL
ISSUE No.2
FRAMED ON
12.3.2020
ADDITIONAL - Affirmative;
ISSUE No.1
FRAMED ON
12.3.2020
WHILE
WRITING
JUDGMENT
ADDITIONAL - Affirmative;
ISSUE No.2
FRAMED ON
12.3.2020
WHILE
WRITING
JUDGMENT
ADDITIONAL - Negative;
ISSUE No.3
FRAMED ON
12.3.2020
WHILE
WRITING
JUDGMENT
ISSUE No.6 - As per final order,
for the following -
REASONS
11. ISSUE Nos.1 TO 3 AND ALL THE ADDITIONAL ISSUES : Since all these Issues and Additional Issues are inter-related with each other, they are being taken Cont'd..
-16- O.S. No.9014/2011 up together for discussion at a stretch in order to avoid repetition of facts.
12. Admittedly, plaintiff and defendants 2 to 4 are the sons and daughters of defendant No.1 and deceased M. Nanjundappa and deceased M. Nanjundappa was working in Municipal Corporation and he has retired on 31.1.1995 and died on 19.10.2000. Though in the plaint, date of death of deceased M. Nanjundappa is mentioned as 23.10.2000, plaintiff himself has produced death certificate - which shows that M. Nanjundappa has died on 19.10.2000 and the same is not disputed by the plaintiff also.
13. With regard to properties are concerned, plaintiff has contended that all the suit schedule properties are the joint family properties of plaintiff and defendants and he claimed partition in all those properties.
14. On the other hand, defendants have contended that Item Nos.1 to 9 of the suit properties were acquired by deceased M. Nanjundappa in a Cont'd..
-17- O.S. No.9014/2011 partition between himself and his brothers; but Item
Nos.10 and 12 properties were acquired by deceased M. Nanjundappa from his independent income and Item Nos.11 and 13 properties were acquired by defendant No.1 from her own money; therefore, the said two properties are exclusively belonging to defendant No.1. It is further contended by the defendants 1, 2 and 4 that though deceased M. Nanjundappa had acquired Item No.10 property - which is the house bearing No.10/2 situated at Pipeline road, Vijayanagar, Bangalore from his own income, as he was in service of the Corporation, he was unable to acquire the property in his name and accordingly, he got the same purchased in the name of his brother Channappa; as it was purchased in the name of Channappa, formally it was included in the partition held between M. Nanjundappa and his brothers and shown as allotted to the share of M. Nanjundappa; but as the same was self-acquired property of M. Nanjundappa, he was the exclusive owner of the same and during his lifetime, he has executed family arrangement deed dated 15.1.1996 in respect of the said property in favour of defendants 2 Cont'd..
-18- O.S. No.9014/2011 and 4; accordingly, now, on the basis of the said family arrangement deed, defendants 2 and 4 have become owners of the suit property and they are in possession of the same.
15. With regard to Item Nos.11 to 13 are concerned, defendants 1, 2 and 4 have contended that deceased M. Nanjundappa had purchased Item No.12 property immediately after his retirement from the retirement benefits and hence, it was his self-acqired property and during his lifetime, he has bequeathed the said property in favour of defendant No.1 through Will deed dated 5.4.2000.
16. With regard to Item Nos.11 and 13 are concerned, they contendedthat those properties are purchased by defendant No.1 from her own income, those properties are self-acquired properties of defendant No.1.
17. During arguments, learned Counsel for the plaintiff has argued that admittedly, Item Nos.1 to 9 properties are the ancestral properties of M. Cont'd..
-19- O.S. No.9014/2011 Nanjundappa; he has purchased Item Nos.10 to 13
properties from the income of the joint family properties; therefore, deceased M. Nanjundappa had no exclusive title over the suit schedule properties; plaintiff had right over all the suit properties by birth and even the defendants have not proved execution of family arrangement deed and Will deed by deceased M. Nanjundappa and self-acquisition of Item Nos.10 and 12 properties by deceased M. Nanjunappa and Item Nos.11 and 13 properties by defendant No.1; therefore, there is sufficient evidence to show that all the suit properties are the joint family properties of the plaintiff and defendants and hence, plaintiff is entitled for equal share in all the suit properties. In support of his said arguments, he has relied upon the following judgments-
(1) 2017 (2) Kar. L.R 81 [Abdulsab Nannesab Totad @ Jekinkatti since (deceased) by his legal representatives and others -versus- Sahadevappa Mallappa Suragond since (deceased) by his legal representatives and others] -
"(A) Declaration of title and possession of property - Unregistered partition deed -
Cont'd..
-20- O.S. No.9014/2011 The very foundation of the plaintiffs to seek declaration of their title and possession of suit property is based on Ex.P.1 - They are entitled to the reliefs only if partition of the properties had taken place according to law - So when Ex.P.1 is an unregistered partition deed, they cannot claim that suit property was allotted to them in the said partition so as to be entitled to declaration of title and its possession - Here what is involved is the title of the plaintiffs and not nature of possession - In fact, they are not in possession - They are not entitled to possession unless their title is established
- The First Appellate Court has mis- directed itself preversely to hold that Ex.P.1 is admissible in evidence and to decree the suit in favour of plaintiffs - Appeal allowed."
"(B) Interpretation of the instrument -
Whether it is a partition deed or memorandum of partition - Ex.P.1 purporting to be a partition deed -
Whether it is a partition deed or only a memorandum of partition can be decided by looking into recitals found therein -
Determining factor is its real nature and Cont'd..
-21- O.S. No.9014/2011 its legal implications and consequences - There is subtle distinction between a partition deed and a memorandum of partition - The memorandum of partition just evidences partition having taken place in the past - By that instrument itself, the division of properties does not take place, rather it is only a record of earlier partition - But the partition deed gives into effect the immediate division of joint family properties - Execution of partition deed and division of properties are contemporaneous - It is a document by virtue of which the joint family status comes to an end and the members who hold the properties as tenants in common till then will become entitled to hold absolutely only those properties allotted to them, thereby, there is extinguishment of interest in the property not allotted to them."
(2) (2018) 15 Supreme Court Cases 662 [Mangammal alias Thulasi and another - versus- T.B. Raju and others] -
"A. Family and Personal Laws - Hindu Law
- Hindu Succession Act, 1956 - S. 29-A [as inserted by Hindu Succession (Tamil Nadu Amendment) Act, 1989 w.e.f. 25-3- Cont'd..
-22- O.S. No.9014/2011 1989] & Ss. 8 to 10, 15 an 16 - Equal rights to daughter in coparcenary property as given under amended S. 29-A - Benefit of i.e. right of a daughter to claim partition and separate possession in ancestral property as a coparcener - Entitlement to
- Daughter married prior to commencement of Hindu Succession (T.N. Amendment) Act, 1989 i.e., 25-3-1989, held, is not entitled to said benefit in view of cl. (iv) of S. 29-A."
"B. Family and Personal Laws - Hindu Law - Hindu Succession Act, 1956 - S. 29-A [as inserted by Hindu Succession (Tamil Nadu Amendment) Act, 1989 w.e.f. 25-3-1989] & Ss. 8 to 10, 15 an 16 - Equal rights to daughter in coparcenary property as given under amended S. 29-A
- In view of expression "the daugher of a coparcener" as used in S. 29-A, held, in order to reap the benefit of S. 29-A, both the coparcener as well as his daughter should be alive at the time of commencement of Hindu Succession (T.N. Amendment) Act, 1989 i.e., 25-3-1989 - Thus, only living daughters of living coparceners would be entitled to claim share in ancestral property."
Cont'd..
-23- O.S. No.9014/2011
18. On the other hand, Counsel for defendants 1, 2 and 4 have argued that suit item Nos.10 and 12 were self-acquired properties of deceased M. Nanjundappa and Item Nos.11 and 13 are the self-acquired properties of defendant No.1; during his lifetime, deceased M. Nanjundappa has executed family arrangement deed and Will deed; defendants 1, 2 and 4 have produced sufficient evidence by examining the attesting witnesses of the family arrangement deed and Will deed; therefore, defendants have proved the Will and family arrangement deed - on the basis of which, defendants 2 and 4 have become the exclusive owner of Item No.10 and defendant No.1 became exclusive owner of Item Nos.11 to 13 and one-sixth share in item Nos.1 to 9 properties. With regard to their said contentions, they have relied upon the following judgments -
REGARDING PROOF OF WILL (1) 2012 (3) KCCR SN 98 (SC) [Abdulsab Mahesh Kumar (dead) by legal representatives -versus- Vinod Kumar and others] -
Cont'd..
-24- O.S. No.9014/2011 "B. SUCCESSION ACT, 1925 - Section 63
- Will - Proof of - Examination of attesting witnesses - Examination of one of them is sufficient."
(2) AIR 2019 BOMBAY 41 [Anuradha Anil Bhagwat and others -versus- Kirit Navnitlal Damania and another] -
"(C) Succession Act (39 of 1925), S.63 -
Evidence Act (1 of 1872), S.69 - Will - Suspicious circumstances - Undue influence by executors of Will - Executors of Will not benefited from estate left behind by testatrix - They were not even interested in recovering their professional fees from estate of testatrix - Variance between contention raised about suspicious circumstances and pleadings on record - Signature on Will poved to be testratrix - Execution of Will, proved - Failure to prove that testratrix desired something different from what was reflected in Will - Failure to prove the testatrix desired something different from what was reflected in Will - Failure to prove that executors exerted any control over testatrix - Undue influence, not proved."
Cont'd..
-25- O.S. No.9014/2011 (3) AIR 2019 PUNJAB AND HARYANA 46 [Sanjiv Kumar -versus- Siri Chand and others] -
"Succession Act (39 of 1925), S.63 - Evidence Act (1 of 1872), S.68. S.69, S.71
- Will - Execution - Validity - Plea of plaintiff that he is successor to testator's property - Defendant claiming to be owner of property by way of Will being daughter of testator - Daily Diary Report of Patwari as well as certificate issued by Military Authorities mentioning name of defendant as daughter of testator - In nomination form of Bank, defendant is declared as nominee of testator - Scribe of Will, one of the attesting witnesses as well as Sub- Registrar proved execution of Will - Denial of thumb impression on Will by other attesting witness, cannot be a ground to invalidate Will - Execution of Will, proved."
(4) AIR 2019 GUJARAT 162 [Janardhan Badrinarayan Patel and another -versus- Sheth Ambalal Himatlal (since deceased by his legal representatives) and others] -
"(C) Succession Act (39 of 1925), S.63 -
Will - Execution - Proof - Evidence of attesting witnesses - Witnesses going to testatrix's place by chance and not Cont'd..
-26- O.S. No.9014/2011 specifically for execution of Will - One of witnesses however, very well known to testatrix and was her tax consultant also and other being Justice of Peace, was known to her - Evidence of both witnesses cannot be discarded on ground that they were chance witnesses nor their presence in testatrix's house could be called suspicious circumstances."
"(F) Succession Act (39 of 1925), S.63, S.283 - Will - Execution - Validity -
Presentation of will after testatrix's death for registration as also fact that it was presented by propounders for registration of after death - Cannotbe treated by itself as suspicious circumstances - Such presentation is statutorily recognised process in view of S. 41(2) of Registration Act. Registration Act, (16 of 1908), S.41(2)."
(5) AIR 2001 KERALA 77 [K. Madayya Shetty - versus- Durgaparameshwari and others] -
"Succession Act (39 of 1925), S.63, S.68 - Will - Execution - Proof - Testator has bequeathed his fractional interest in his family properties - Scribe and other attesting witnesses have seen testator Cont'd..
-27- O.S. No.9014/2011 signing the Will - Evidence showing that testator also seen attestors signing the Will - Propounder of Will has proved execution of Will - Defendants not chosen to challenge validity of Will during lifetime of testator - Mere fact that Will was executed by testator in favour of niece disinheriting his wife and and children - Is not suspicious circumstance surrounding the Will - Finding that execution of Will was properly proved - No interference."
REGARDING FAMILY ARRANGEMENT DEED AIR 2018 PATNA 205 [Narendra Prasad Singh -versus- Ram Ashish Singh and others] -
"(B) Transfer of Property Act (4 of 1882), S.5 - Registration Act (16 of 1908), S.49, S.17 - Family arrangement - Registration of document - Neessity - Any document creating right in favour of persons in respect of immovable properties of more than Rs.100/- requires to be registered -
Document being memorandum of family arrangement and not deed of partition -
Not required to be compulsorily
registered."
Cont'd..
-28- O.S. No.9014/2011
REGARDING SELF-ACQUISITION OF PROPERTIES BY DEFENDANT No.1 AIR 2018 KARNATAKA 62 [Daulatarao Ramachandra Jadhav -versus- Smt. Janabai Anandarao Jhadha] -
"(A) Hindu Succession Act (30 of 1956), S. 14(1) - Right of female over property -
Scope and object of S.14(1)."
REGARDING RIGHT OF DEFENDNATS 2 AND 4 IN JOINT FAMILY PROPERTIES (2018) 3 Supreme Court Cases 343 [Danamma alias Suman Surpur and another -versus- Amar and others] -
"Family and Personal Laws - Hindu Succession Act, 1956 - S. 6 (as amended w.e.f. 9-9-2005 by Amendment Act 39 of 2005) - Daughter born before enactment of HS Act, 1956 - Right under unamended and amended S. 6 of HS Act -
Determination - Effect of birth prior to enactment of HS Act - Explained in detail."
19. On verification of the oral evidence of the parties and documents produced by them, it appears to me that with regard to execution of the Will deed by Cont'd..
-29- O.S. No.9014/2011 deceased M. Nanjundappa is concerned, defendants have examined D.Ws.2 and 3 viz., B.S. Neelakantaiah and E.D. Appanna. In their evidence, they both have deposed in detail about execution of the Will deed and codicil marked as per Exs.D.19 and D.20 and M. Nanjundappa putting signatures on those two documents in their presence. Even if learned Counsel for the plaintiff has argued that evidence produced by the defendants regarding execution of the Will is not sufficient and evidence of attesting witnesses is contradictory, by looking to the evidence of D.Ws.2 and 3, it appears that they have clearly stated about execution of the Will deed by deceased M. Nanjundappa. Therefore, evidence of D.Ws.2 and 3 is sufficient to show that deceased M. Nanjundappa has executed Will and codicil and marked at Exs.P.19 and P.20. Therefore, contentions of defendants 1, 2 and 4 regarding execution of the Will and codicil by deceased M. Nanjundappa appears to be true.
20. With regard to execution of the family arrangement deed dated 15.1.1996 is concerned, Cont'd..
-30- O.S. No.9014/2011 though defendant No.5, who is the alleged attesting witness to the family arrangement deed, examined to prove Ex.D.7 and the same is sufficient to prove about execution of the family arrangement deed by deceased M. Nanjundappa, firstly, we have to verify as to whether deceased M. Nanjundappa had authority to execute the said family arrangement deed. With regard to the said fact, defendants 2 and 4 have contended that Item No.10 property - which has been allegedly given to defendants 2 and 4 under Ex.D.7, was the self-acquired property of deceased M. Nanjundappa. But, as he was in service of Municipal Corporation, he had purchased the same in the name of his brother and it was formally allotted to his share during the partition. If the said contention of defendants 2 and 4 is admitted as true, then question arises is that as to how deceased M. Nanjundappa can transfer the said property to defendants 2 and 4 without any registered instrument? If it is presumed that Item No.10 property was self- acquired property of deceased M. Nanjundappa, then if he wanted to transfer the same to defendants 2 and 4, he was expected to execute some document like gift Cont'd..
-31- O.S. No.9014/2011 deed in favour of defendants 2 and 4 as provided under the Transfer of Property Act, - but he has not done so. Therefore, contention of defendants 2 and 4 that on the basis of Ex.D.7, they became owners of Item No.10 of the suit properties, is not supported by law. As held by the Hon'ble High Court of karnataka in the judgment relied upon by the plaintiff's Counsel reported in 2017 (2) Kar. L.R 81 [Abdulsab Nannesab Totad @ Jekinkatti since (deceased) by his legal representatives and others
-versus- Sahadevappa Mallappa Suragond since (deceased) by his legal representatives and others ], defendants 2 and 4 are not entitled for possession unless their title is established. Therefore, question of defendants 2 and 4 becoming owners of Item No.10 property does not arise.
21. With regard to contention of the plaintiff that Item No.10 property was the joint family property is concerned, admittedly Item No.10 property was purchased in the name of one of the brothers of M. Nanjundappa and subsequently in the partition held between M. Nanjundappa and his brothers, said Cont'd..
-32- O.S. No.9014/2011 property has been allotted to the share of M. Nanjundappa. Therefore, when Item No.10 was
obtained by M. Nanjundappa in partition, it cannot be said that the said property was self-acquired property of M. Nanjundappa. Therefore, there is evidence to show that Item No.10 property was the joint family property, it was obtained by M. Nanjundappa during partition between himself and his brothers and therefore, it became the joint family property of M. Nanjundappa and his family members. Therefore, plaintiff's contention that Item No.10 property is the joint family property, appears to be true.
22. With regard to Item Nos.11 to 13 properties are concerned, as already discussed above, defendants 1, 2 and 4 have produced sufficient evidence about execution of the Will by deceased M. Nanjundappa under which Item No.12 of the suit properties has been bequeathed by M. Nanjundappa in favour of defendant No.1. Therefore, on the basis of the Will deed executed by M. Nanjundappa, defendant No.1 became exclusive owner of Item No.12 of the suit properties.
Cont'd..
-33- O.S. No.9014/2011
23. With regard to Item Nos.11 and 13 of the suit schedule properties, are concerned, admittedly those two properties are purchased in the name of defendant No.1 who is the female member of the family. Therefore, as per Section 14(1) of the Hindu Succession Act, if a property is acquired by a woman by whatever means, it becomes her exclusive property and same is supported by the judgment of the Hon'ble High Court reported in AIR 2018 KARNATAKA 62 [Daulatarao Ramachandra Jadhav -versus- Smt. Janabai Anandarao Jhadha]. Therefore, contention of defendant No.1 that Item Nos.11 and 13 are her exclusive properties, appears to be true. Therefore, though Item No.11 property has been given to plaintiff and defendant No.3 under the Will executed by M. Nanjundappa, as the said property is the exclusive property of defendant No.1, plaintiff and defendant No.3 will not get any right over the said property on the basis of the Will and codicil executed by M. Nanjundappa. Therefore, the suit Item Nos.11 to 13 properties are exclusively belonging to defendant No.1 and plaintiff and other defendants will not get any share in those three properties.
Cont'd..
-34- O.S. No.9014/2011
24. Coming to question as to whether defendants 2 and 3 being daughters are entitled for equal share or not? is concerned, admittedly father of the plaintiff and defendants 2 to 4 has died in the year 2000 - much before enactment of the amended Act 39 of 2005, Therefore, though in the judgment relied upon by the defendants' Counsel reported in (2018) 3 Supreme Court Cases 343 [Danamma alias Suman Surpur and another
-versus- Amar and others], Hon'ble Supreme Court granted equal share to daughters though father has died in the year 2001. In the subsequent judgment relied upon by the Counsel for the plaintiff reported in (2018) 15 Supreme Court Cases 662 [Mangammal alias Thulasi and another -versus- T.B. Raju and others], in Para 16 of the judgment, Hon'ble Supreme Court has considered the judgment of the Hon'ble Supreme Court in (2018) 3 Supreme Court Cases 343 [Danamma alias Suman Surpur and another -versus- Amar and others] also and held that as issue of death of father was not dealt with in the case of (2018) 3 Supreme Court Cases 343 [Danamma alias Suman Surpur and another -versus- Amar and others], the judgment in (2016) 2 Supreme Cont'd..
-35- O.S. No.9014/2011 Court Cases 36 [Prakash -versus- Phulavathi] would still holds the precedent on the issue of death of coparceners for the purpose of right of daughter in ancestral property. Though in the judgment reported in (2018) 15 Supreme Court Cases 662 [Mangammal alias Thulasi and another -versus- T.B. Raju and others], Hon'le Supreme Court has held that in view of Hindu Succession (Tamil Nadu Amendment) Act, 1989, daughters of living coparcener who was alive on 25.3.1989 are entitled for share as coparceners and there was similar amendment in Karnataka also, when already in the above judgment in (2016) 2 Supreme Court Cases 36 [Prakash -versus- Phulavathi], Hon'ble Supreme Court has held that rights under the amendment are applicable to living daughters of living coparcernes as on 9.9.2005, defendants 2 and 4 are not entitled to claim share as coparceneres. Therefore, as held in (2018) 15 Supreme Court Cases 662 [Mangammal alias Thulasi and another -versus- T.B. Raju and others] and many other judgments of the Hon'ble Supreme Court and the Hon'ble High Court of Karnataka, amended provisions of Section 6 of the Hindu Succession Act, are applicable to the living Cont'd..
-36- O.S. No.9014/2011 daughters of living coparceners as on 9.9.2005.
Therefore, here in this case, admittedly deceased M. Nanjundappa has died in the year 2000 only. Therefore, though Item Nos.1 to 10 are joint family properties, defendants 2 and 4 being daughters are not entitled for share as coparceners. At the most, they were entitled for share in the property of their father - which has fallen to his share in a notional partition. However, as already discussed above, deceased M. Nanjundappa has executed Will deed bequeathing one- sixth share in the joint family properties, defendants 2 and 4 are not entitled for any share in Item Nos.1 to 9 properties also. As defendants 2 and 4 have failed to prove their title over Item No.10 property, in the said property only they are entitled for share in the share of M. Nanjundappa during the notional partition. Therefore, plaintiff and defendant No.3 are entitled for one-third share each in Item Nos.1 to 9 properties and six-fifteenth share each in Item No.10 property. Defendant No.1 is entitled for one-third share in Item Nos.1 to 9 properties and one-fifteenth share in Item No.10 property. Defendants 2 and 4 are entitled for Cont'd..
-37- O.S. No.9014/2011 one-fifteenth share in Item No.10 property only.
Therefore, Issue Nos.1 to 3 and all the Additional Issues are answered as above.
25. ISSUE No.4 : Since this is a suit for partition, plaintiff has paid Court fee of Rs.200/-, the same is sufficient. Therefore, defendants' contention that Court fee paid is not sufficient, appears to be incorrect. Hence, Issue No.4 is answered in negative.
26. ISSUE No.5 : As already discussed above, though plaintiff filed the suit for partition in Item Nos.1 to 13 properties, as Item Nos.11 and 13 properties are exclusive properties of defendant No.1 and Item No.12 property has been bequeathed by M. Nanjundappa in favour of defendant No.1, properties available for partition are Item Nos.1 to 10 only. Therefore, it is decided to decree the suit of the plaintiff in part and allot the share as discussed above. Hence, Issue No.5 is answered as above.
27. ISSUE No.6 : For my reasons and discussion on the above Issues, I proceed to pass the following -
Cont'd..
-38- O.S. No.9014/2011
ORDER
Suit of the plaintiff is partly decreed with cost.
It is declared that the plaintiff is entitled for 1/3rd (one-third) share in Item Nos.1 to 9 of the suit schedule properties, and 6/15th (six-fifteenth) share in Item No.10 of the suit schedule properties.
Claim of the plaintiff with regard to Item Nos.11 to 13 of the suit schedule properties, is dismissed.
Draw preliminary decree accordingly. (Dictated to Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 12th day of March, 2020.) (MALLANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..
-39- O.S. No.9014/2011
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFFS:
Examined on:
P.W.1 : M.N. Kumaraswamy 31-01-2018
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P.1 : Death certificate. Ex.P.2 : Kharta certificate. Ex.P.3 : Khata extract. Ex.P.4 : Tax paid receipt. Ex.P.5 : Khata certificate. Ex.P.6 : Khata extract. Ex.P.7 : Tax paid receipt. Exs.P.8 : Tax assessment register extracts. and P.9 Exs.P.10 to: R.T.C. extracts. P.21 Ex.P.22 : Genealogical tree.
3. WITNESSES EXAMINED FOR THE DEFENDANTS:
D.W.1 : Smt. Shivarudramma 26-10-2018 D.W.2 : B.S. Neelakantaiah 06-03-2019 D.W.3 : E.D. Appanna 25-03-2019 D.W.4 : Smt. M.N. Shailaja 16-09-2019 D.W.5 : K. Sriramaiah 22-11-2019
4.DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
Ex.D.1 : Document showing P.W.1's father retired on 31.1.1995.
Ex.D.2 : Minutes of meeting dated 4.12.2000; Ex.D.2(a) : Signature of P.W.1. Exs.D.3 : Utthara pathra and Khata certificate. and D.4 Cont'd..
-40- O.S. No.9014/2011
Ex.D.5 : Certified copy of sale deed dated 6.2.1969.
Ex.D.5(a) : Typed copy of Ex.D.5.
Ex.D.6 : Certified copy of sale deed dated 6.4.1972.
Ex.D.6(a) : Typed copy of Ex.D.6.
Ex.D.7 : Family arrangement deed dated 15.1.1996;
Ex.D.7(a) : Signatures.
to D.7(i)
Ex.D.8 : Tax paid receipt.
Ex.D.9 : Certified copy of sale deed dated 5.6.1969;
Ex.D.9(a) : Typed copy of Ex.D.9.
Ex.D.10 : Certified copy of sale deed
dated 26.11.1970
Ex.D.10(a) : Typed copy of Ex.D.10.
Ex.D.11 : Certificate issued by B.M.P.
Ex.D.12 : Tax paid receipt.
Ex.D.13 : Sale deed dated 25.2.1986.
Ex.D.14 : R.T.C. extract.
Ex.D.15 : Certified copy of sale deed
dated 20.10.1995.
Exs.D.16 : Three R.T.C. extracts.
to D.18
Ex.D.19 : Original Will dated 5.4.2000;
Ex.D.19(a) : Signature of D.W.2 on Ex.D.19; Ex.D.19(b) : Signature of Nanjundappa on Ex.D.19; Ex.D.19(c) : Signature of E.D. Appanna on Ex.D.19. Ex.D.20 : Codicil document dated 15.10.2000; Ex.D.20(a) : Signature of D.W.2 on Ex.D.20; Ex.D.20(b) : Signature of Nanjundappa on Ex.D.20; Ex.D.20(c) : Signature of E.D. Appanna on Ex.D.20.
(MALLANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..