Bangalore District Court
Smt.Lalithamma vs Smt. Savithramma on 19 February, 2020
(C.R.P. 67) Govt. Of Karnataka
TITLE SHEET FOR JUDGEMENTS IN SUITS
Form No.9 (Civil)
Title sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF LVIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY (CCH.NO.59)
Dated, this the 19th day of February, 2020.
PRESENT
Sri.Venkatesh.R.Hulgi, B.Com. LL.B (Spl.),
LI Addl. City Civil & Sessions Judge (CCH-52),
C/c LVIII Addl. City Civil & Sessions Judge (CCH-59),
Bengaluru City.
O.S.NO.26714/2011
PLAINTIFFS:- 1. Smt.Lalithamma,
W/o. Late Somashekar,
Aged about 60 years,
2. Vinod Kumar,
S/o. Late Somashekar,
Aged about 33years,
3. Vinutha
D/o Late Somashekar
Aged about 29 years,
All are residing at Byrati village,
Bidarahalli Hobli,
Bengaluru East Taluk,
Bengaluru - 562 149.
By Sri.J.J., Advocate)
2 O.S.26714/2011
VERSUS-
DEFENDANTS:- 1. Smt. Savithramma,
W/o. Late Shamanna,
Aged about 75 years
2. Smt.Vijayalakshmi,
W/o Inder,
D/o. Late Shamanna ,
Aged about 42 years
Both are residing at No.97,
Charles Cambell Road,
Cox Town,
Bengaluru.
3. Smt. Rathnamma,
W/o. Late Kempanna,
Aged about 77 years
4. Thyagaraj,
S/o Late Kempanna
Aged about 58 years
5. Pushpavathi,
W/o Late Kempanna
Aged about 58 years
6. Srinivas,
S/o Late Kempanna
Aged about 51 years
7. Smt. Susheelamma,
W/o Late B.M. Subbanna,
Aged about 65 years
8. Ramadevi,
D/o Late B.M. Subbanna,
Aged about 49 years
9. Suresh,
S/o Late B.M. Subbanna,
3 O.S.26714/2011
Aged about 38 years
10. Ramachandraiah,
S/o Late R. Muniswamappa,
Aged about 75 years,
11. Madappa,
S/o Late R. Muniswamappa,
Aged about 74 years
12. Shivaram,
S/o Late R. Muniswamappa,
Aged about 62 years
Defendant.No.3 to 12 are
residing at Byrathi village,
Bidarahalli hobli,
Bengaluru East Taluk,
Bengaluru - 562 149.
(D1 and D2 by Sri.D.K., Advocate)
(D3 to D10 and D12 Exparte)
Date of institution of the suit : 30.09.2011
Nature of the suit (suit on pronote, Partition
suit for declaration and possession
suit for injunction, etc) :
Date of the commencement of 05.04.2016
recording of the evidence :
Date on which the Judgment was 19.02.2020
pronounced :
Total duration Year/s Month/s Day/s
08 04 19
4 O.S.26714/2011
JUDGMENT
This is a suit filed by the plaintiffs against the defendants seeking for the relief of partition and separate possession of their legitimate share in the suit property.
2. The facts of the case in a nutshell are as under:
That one late Muniswamappa is the propositus of family of parties to the suit. He had seven sons and three daughters. The plaintiffs are the class-1 heirs of late B.M.Somashekara, the 3rd son of propositus. Defendants 1 and 2 are the class-1 heirs of late B.M.Shamanna, the elder son of the propositus. Defendants 3 to 6 are the class-1 heirs of late Kempanna, the 2nd son of propositus. Defendants 7 to 9 are the class-1 heirs of B.M.Subbanna, one of the sons of propositus. Defendant Nos.10, 11, 12 are the sons of late Muniswamappa, propositus of the family.
According to the plaintiffs, the suit schedule property bearing old No.51, New No.33, consisting of a building totally measuring 4815 sq feet situated at Charles Campell Road, Cox Town, Bengaluru is the joint family property of parties to the suit inherited from propositus late Muniswamappa. During his life time, late Muniswamappa had acquired several properties in his name 5 O.S.26714/2011 (including the suit schedule property) in and around Byrathi Village in Bengaluru East Taluk. During his life time propositus was enjoying all the joint family properties as the Kartha. He became ill and suffering from various diseases due to his old age. Hence, it had become difficult for him to manage the joint family properties. Consequently, B.M.Shamanna being the elder son of propositus, who had worldly knowledge had been managing the joint family properties. B.M.Shamanna used to look after the entire financial matters of the family and also the income. Out of the funds of the joint family, he had purchased the suit schedule property through the registered sale deed dated 19.09.1977. Subsequently, the propositus and B.M.Shamanna died. The husband of the plaintiff No.1 and father of plaintiff No.2 and 3 namely B.M.Somashekar also died. Consequent upon the death of the aforesaid persons, the plaintiffs and defendants succeeded to the suit schedule property as the joint family members. They have been in joint possession and enjoyment of the property. The plaintiffs have a legitimate share in the suit property by virtue of death of Somashekar. Thus, being the facts, off late, the defendants started denying the share of the plaintiff in the suit schedule properties. Though the parties are having separateness and residing in separate properties, however, 6 O.S.26714/2011 the suit properties is still kept in joint possession and enjoyment of the parties to the suit. That on 24.09.2011, defendants 1 and 2 attempted to sell the portion of the suit property to the 3rd parties to deprive the plaintiffs from their legitimate share. Hence, having no other option, the plaintiffs have filed the present suit seeking the above reliefs.
3. In response to the suit summons, defendants 1 and 2 have appeared through their advocates. Defendant Nos.3 to 12 remained exparte.
4. Defendants 1 and 2 have filed their joint written statement. In their written statement except admitting the relationship between the parties, the defendants have denied the entire case of the plaintiffs as false. It is denied as false that the schedule property is the joint family property of family of parties to the suit and it was purchased by B.M.Shamanna out of the joint family income. It is further denied as false that after the death of propositus and B.M.Shamanna, parties to the suit have inherited the suit property jointly and they have been in joint possession and enjoyment of the suit schedule property. It is denied as false that the plaintiffs have a share in the suit schedule property. Therefore, 7 O.S.26714/2011 they are not entitled for partition and separate possession. According to the defendants 1 and 2 B.M.Shamanna had joined as a Police officer in Army Service during the year 1949. Subsequently the Government had absorbed him to the police department and hence he served in the police department for a period of 32 years. Finally he retired from the service in the year 1981 as the Deputy Superintendent of Police. Thus, from 1949 late B.M.Shamanna never stayed in the village along with the parents and his brothers. It is contended that in the year 1977 late Shamanna was working as Deputy Superintend of Police at Davanagere, the then Chitradurga District. He purchased the suit schedule property from his self earnings on 19.09.1977 from its previous owner for a valuable sale consideration. He availed loan from Syndicate bank, Frazer Town Branch, Bengaluru and also collected funds by selling the site belonging to the defendant No.1 to purchase the suit schedule property. He never took any assistance either from his parents or from any of his brothers at any point of time. Thus, the suit property is the self acquisition made by late B.M.Shamanna. It is further contended that late Muniswamappa, the propositus had executed a Will deed on 12.03.1980 in respect of the properties owned by him. He had excluded the suit property from the Will as it was the self 8 O.S.26714/2011 acquisition of his son late B.M.Shamanna. Therefore, B.M.Shamanna was in possession of the suit schedule property as the absolute owner. After his demise, defendants 1 and 2 being the class-1 heirs have inherited the same. Hence, the suit property is the absolute property of defendants 1 and 2 and not the joint family property as contended by the plaintiff. Some reference to the previous litigations in O.S.No.1513/2005 and O.S.No.7037/2011 is made in the written statement to contend that those suits are filed as the counterblast. Hence, the defendants have prayed to dismiss the suit.
5. Based on the rival pleadings of the parties, my learned predecessor in office has framed the following issues:-
1. Whether the plaintiffs prove that the suit schedule property is purchased by deceased R.Muniswamappa out of his self earnings along with other properties as Manager of joint family?
2. Whether the defendant No.1 proves that the suit schedule property is absolute property of her husband B.N.Shamanna?
3. Whether the plaintiffs further prove that they are in joint possession of the suit schedule property as coparceners, after the death of R.Muniswamappa and B.N.Shamanna?9 O.S.26714/2011
4. Whether the plaintiffs further prove that the defendant No.1 and 2 on 24.09.2011 attempted to sell portion of suit schedule property to 3rd party and refused to give up the share of the plaintiffs?
5. Whether the Court fee paid is sufficient?
6. What order or decree?
6. To prove their case, the plaintiffs have examined plaintiff No.2 as PW-1 and produced Ex.P.1 to Ex.P.3 documents. On behalf of the defendants 1 and 2, defendant No.1 was examined as DW-1 and they have produced Ex.D.1 to Ex.D.11 documents.
7. After the evidence is closed, I heard the arguments of both the sides and perused the materials placed on record.
8. My findings on the above issues are as under: -
Issue No.1 - In the Negative.
Issue No.2 - in the Affirmative.
Issue No.3 - In the Negative Issue No.4 - In the Negative Issue No.5 - In the Affirmative Issue No.6 - As per final order 10 O.S.26714/2011 for the following:-
REASONS
9. ISSUE NOS.1 TO 3:- As, these issues are inter connected to each other, hence, they have been taken together for common discussion to avoid repetition of facts and evidence on record.
10. As mentioned above, the present suit is filed by the plaintiffs for the relief of partition and separate possession of their legitimate share in the suit schedule property as the class-1 heirs of late B.M.Somashekar, one of the sons of propositus Muniswamappa.
11. According to the plaintiffs, the suit schedule property was acquired by late B.M.Shamanna, the husband of defendant No.1 and father of defendant No.2 from the joint family funds. Therefore, the suit schedule property is the joint family property of parties to the suit.
12. In the instant case, there is no dispute regarding the relationship interse between the parties. It is not in dispute that most of the children of propositus are no more now.
11 O.S.26714/2011
13. The defendants 1 and 2, who are the only contesting defendants have denied the above case of the plaintiffs and they have contended that late B.M.Shamanna was working in the police department and he had no any assistance from the joint family nucleus. When he was in service in Davanagere as Deputy Superintend of Police, he purchased the schedule property out of his own funds and also by availing loan from the bank and selling a site in the name of defendant No.1. Hence, it is the case of defendant Nos.1 and 2 that the suit property is the self acquisition made by late B.M.Shamanna. Therefore, none of the plaintiffs and remaining defendants have any share in the suit schedule property is their case.
14. Initial burden of proving that the suit schedule property is the joint family property is on the plaintiffs. It is pertinent to mention that in the plaint, it is contended by the plaintiffs that during the life time of propositus, he was managing the joint family properties as the Kartha and subsequently the management of the joint family property was transferred to B.M.Shamanna, due to the old age of Kartha. Hence, B.M.Shamanna was looking after the entire financial aspects of the family and its income and had 12 O.S.26714/2011 purchased the suit schedule property from the joint family funds. Hence, according to the plaintiffs, the suit schedule property is the joint family property.
15. To prove the above case, 2nd plaintiff Vinodkumar testified himself as P.W.1. P.W.1 has filed his affidavit evidence in lieu of chief examination, which is nothing but reiteration of plaint averments. He has produced only three documents, which are marked at Ex.P.1 to Ex.P.3.
16. Ex.P.1 is the family Genealogical tree issued by Village Accountant, Doddagubbi Circle , Bidarahalli Hobli, Bengaluru East Taluk. In their written statement, the contesting defendants have not disputed the relationship between the parties. Hence, Ex.P.1 is not helpful to the case of the plaintiffs to prove the nature of the suit schedule property. Ex.P.2 is the certified copy of the sale deed dated 19.09.1977 pertaining to the suit schedule property. It is an admitted fact that late B.M.Shamanna had purchased the suit schedule property vide Ex.P.2. Consequently, it is registered in the name of late B.M.Shamanna. The recitals go to show that late B.M.Shamanna had purchased the suit schedule property from his own funds. Hence, the burden is on the plaintiffs to prove that he 13 O.S.26714/2011 had used the joint family funds to purchase the schedule property. Ex.P.3 is the death certificate of D.M.Shamanna. It is an admitted fact that he died on 20.03.1984 leaving behind him the defendants 1 and 2 are the class-1 heirs.
17. P.W.1 has been cross examined at length by the learned counsel for the defendants 1 and 2. In the cross- examination of P.W.1, it is made out that during his life time, late B.M.Shamanna was serving in police department. He admits that after joining the police service in the year 1959, B.M.Shamanna retired in the year 1981 as the Deputy Superintend of Police. From this it can be inferred that due to his service, B.M.Shamanna was residing outside Bengaluru City. This falsify the case of the plaintiffs that after the death of propositus late B.M.Shamanna started managing the joint family affairs. P.W.1 has admitted that Ex.P.2 is the registered sale deed is in the name of late B.M.Shamanna and it is mentioned in Ex.P.2 that the property was purchased from the personal funds of late B.M.Shamanna. He admits that during his life time, the father of the plaintiffs did not seek any share in the suit schedule property. This assumes much significance as knowing fully well that the suit schedule property is the self acquisition of 14 O.S.26714/2011 B.M.Shamanna, father of plaintiff No.2 did not claim the share in the suit schedule property.
18. Except the above evidence, the plaintiffs have not produced any documents to show that at the relevant point of time, B.M.Shamanna was managing the affairs of the joint family as the Kartha and the joint family was possessing other properties yielding sufficient income to purchase the suit schedule property from the joint family funds. Thus, in my opinion, the plaintiffs have failed to discharge initial burden of proving that the suit schedule property is the joint family property having acquired by B.M.Shamanna through the joint family funds.
19. In rebuttal, defendant No.1 examined herself as DW-1, she has also filed her Affidavit evidence, wherein she has reiterated the stand taken by the defendants 1 and 2 in the written statement. She had produced Ex.D.1 to Ex.D.11 documents. Ex.D.1 is the certified copy of Will deed dated 12.03.1980 executed by propositus Muniswamappa. This aspect is not denied by the plaintiffs in the evidence. It is produced to show that the propositus himself did not include the suit schedule property in the Will deed as it was the self acquisition made by B.M.Shamanna. The contents of Ex.D.1 is not challenged or disputed by the plaintiffs. Ex.D.2 and Ex.D.3 are the 15 O.S.26714/2011 revenue extracts pertaining to the suit schedule property. They are standing in the name of 2nd defendant. It is the case of the defendants that after the death of her father, defendant No.2 got mutated the suit schedule property in her name. Ex.D.4 is the original sale deed dated 19.09.1977. I have discussed the effect of this document while discussing Ex.P.2. Admittedly, the sale deed is in the name of B.M.Shamanna. Ex.D.5 is the lease deed executed by late B.M.Shamanna in favour of lessee Dr.B.M.Ramachandra by leasing out the suit property. It is dated 11.11.1982. None of the plaintiffs and defendants have raised objections to Ex.D.5. It pre suppose the fact that late B.M.Shamanna treated the suit property as his self acquisition.
20. Ex.D.6 is the Will deed executed by late B.M.Shamanna by bequeathing the suit property in the name of defendant no.2. This is also not challenged by anybody. The recitals of Ex.D.6 indicate that late B.M.Shamanna was enjoying the suit schedule property as his self acquired property. This is not challenged by any of his brothers and sisters. Ex.D.7 to Ex.D.11 are the property tax receipts, they are all in the name of the 2nd defendant. 16 O.S.26714/2011
21. DW-1 has been cross examined by the learned counsel for the plaintiffs. Even in her cross-examination, DW-1 has stated that as the suit property is the self acquired property of her husband, hence, the plaintiffs have no any share in the same. In paragraph No.6 of the cross-examination, she has given the details of the sale transactions evidenced by Ex.D.4 sale deed. In paragraph No.7 of the cross-examination, she has stated that in the Will deed, her father-in-law did not make any reference to the suit schedule property and in paragraph No.8, she has stated that her husband had leased out the suit schedule property as evidenced by the document at Ex.D.5.
22. Except the aforesaid material, nothing is elicited in the cross-examination of DW-1 to indicate that B.M.Shamanna had purchased the suit schedule property out of the joint family funds and he treated the property as the joint family property. As noted above, in the evidence of P.W.1 also the details of the ancestral family properties and their income is not given by the P.W.1. Hence, the only inference, the Court can draw from the above evidence is that the suit schedule property is the self acquired property of late B.M.Shamanna, the husband of defendant No.1 and father of defendant No.2. Plaintiffs have miserably failed to prove that the 17 O.S.26714/2011 schedule property was purchased by B.M.Shamanna from the joint family funds. Hence, I answer issue No.1 in the "negative", issue No.2 in the "Affirmative" and issue No.3 in the "negative".
23. ISSUE NO.4: The plaintiffs have contended that the defendants 1 and 2 had attempted to sell the portion of the suit schedule property to 3rd party on 24.09.2011. Though this is spoken by P.W.1 in his evidence, however, the same is denied in his cross- examination. Except the sole testimony of P.W.1, the plaintiffs have not led any cogent evidence in proof of issue No.4. No documents are produced to indicate that an attempt was made by defendants 1 and 2 to sell the portion of the suit schedule property to 3rd parties. The prospective purchasers are not examined. The names of prospective purchasers are not given. Hence, in the opinion of the Court, the plaintiffs have failed to prove issue No.4. Hence, I answer issue No.4 in the "Negative".
24. ISSUE NO.5: This issue pertains to the payment of Court fee. Admittedly, the suit is one for partition and separate possession on the premise that the parties have been in joint possession of the suit schedule property as the legal heirs. Accordingly, the plaintiffs have paid the Court fee as required under 18 O.S.26714/2011 section 35(2) of the Karnataka Court Fee and Suit Valuation Act. In my opinion, the payment of Court fee by the plaintiffs is proper and sufficient under the facts and circumstances of the present case. Hence, I answer issue No.5 in the "Affirmative".
25. ISSUE No.6: In view of my findings on issue Nos.1 to 5, in my opinion the plaintiffs are not entitled for any reliefs Hence, in the result, I proceed to pass the following:-
ORDER The suit of the plaintiffs is dismissed. Under the facts and circumstances, there is no order as to costs.
Draw Decree Accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 19th day of February 2020) (VENKATESH.R.HULGI) C/C LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
ANNEXURE 19 O.S.26714/2011 LIST OF WITNESSES EXAMINED FOR PLAINTIFFS:-
P.W.1 Vinod Kumar LIST OF DOCUMENTS MARKED FOR PLAINTIFFS:- Ex.P.1 Family Tree Ex.P.2 Certified copy of Sale Deed Ex.P.3 Death Certificate
LIST OF WITNESSES EXAMINED FOR DEFENDANTS:
D.W.1 Smt. Savithramma
LIST OF DOCUMENTS MARKED FOR DEFENDANTS:-
Ex.D.1 Will
Ex.D.2 Katha Extract
Ex.D.3 Katha Certificate
Ex.D.4 Sale Deed
Ex.D.5 Lease Deed
Ex.D.6 Will
Ex.D.7 to 11 Tax paid receipts
(VENKATESH.R.HULGI)
C/C of LVIII ADDL.CITY CIVIL AND
SESSIONS JUDGE (CCH-59)
BENGALURU CITY.
20 O.S.26714/2011
Judgment pronounced in open Court
vide separate judgment.
ORDER
The suit of the plaintiffs is dismissed.
Under the facts and circumstances, there is no order as to costs.
Draw Decree Accordingly.
(VENKATESH.R.HULGI) C/C of LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.