Bangalore District Court
T.S.Vijayakumar vs ) T.D.Sundaramurthy on 17 April, 2017
IN THE COURT OF IX ADDL. CITY CIVIL AND SESSIONS
JUDGE AT BANGALORE (C.C.H.5)
Dated: This the 17th day of April 2017
Present: Sri. Ravindra Hegde,
M.A., LL.M.,
XVII Addl. City Civil & Sessions Judge,
In-charge of IX Addl. City Civil & Sessions Judge,
Bangalore.
O.S. No.695/2011
Plaintiff : T.S.Vijayakumar,
Aged about 29 years
S/o. T.D.Sundaramurthy
No.1, Raghavappa Road,
Jaibharathinagar,
Bangalore 560 033.
(By Sri.MSV, advocate)
-Vs-
Defendants : 1) T.D.Sundaramurthy,
Aged about 60 years
S/o. late T.V.Dharmalingam,
Residing at No.25,
Promenede Road,
Frazer Town,
Bangalore 560 005.
2) The Chief Manager,
Punjab National Bank,
No.25, 1st Floor,
Promenade Road,
Civil Station,
Bangalore 560 005.
(D1 : By Sri.BTR, Advocate
D2 : By Sri.BSNB, Advocate)
2 O.S.No.695/2011
Date of institution of the suit 24.01.2011
Nature of the suit Permanent &
Mandatory Injunction
Date of commencement of 31.10.2012
recording the evidence
Date on which the judgment was 17.04.2017
pronounced
Total duration : Year/s Month/s Day/s
06 02 23
JUDGMENT
This suit is filed by plaintiff for permanent injunction restraining the 1st defendant from making any further construction or from proceeding with any act of demolition of the existing building without consent of the plaintiff. Subsequently by amending the plaint, plaintiff has prayed relief of mandatory injunction directing the 1st defendant to inform the plaintiff about the details of the tenants to be inducted by him and also for mandatory injunction directing the 1st defendant to render periodic accounts in respect of the monetary benefits derived from the schedule property and to disburse 50% of the same as stipulated in the Will of Dharmalingam dated 03.01.1995 as modified by the Codicil dated 24.03.2007 and also for mandatory 3 O.S.No.695/2011 injunction directing the 2nd defendant to furnish details of the rental agreement he has entered into with the 1st defendant and to pass a decree of mandatory injunction directing the 2nd defendant to disburse to the plaintiff his half-share in the rent that 2nd defendant is paying in respect of the 1st floor portion of the schedule property.
2. The case of the plaintiff is that, the plaintiff is son of the 1st defendant and grandson of T.V.Dharmalingam who expired on 18.8.2007. Late Dharmalingam had purchased schedule property from R.Kemparaj in the joint name of himself and his wife Smt.Radhabai on 14.10.1957. Subsequently, Dharmalingam released his half share in favour of his wife on 25.02.1967 and Smt.Radhabai became absolute owner and she has executed Will dated 01.12.1980 in favour of Dharmalingam and she died on 26.10.1984. After death of Smt.Radhabai, on the basis of her Will, Dharmalingam became absolute owner of the property and khata of the property was changed in his name on 10.01.1989. Later, Dharmalingam made a Will dated 03.01.1995 by revoking 4 O.S.No.695/2011 the earlier Will dated 01.12.1980. In this Will, he has given life interest in the schedule property to the 1st defendant by imposing certain conditions like payment of Rs.50,000/- each to his sisters and that the 1st defendant will have life interest which he can enjoy and not to alienate the property and mortgage the property only up to Rs.5,00,000/- for improvement of the property and for marriage of his children and that after lifetime of 1st defendant, his children will succeed the property as absolute owners. Dharmalingam has bequeathed the property in favour of 1st defendant by giving life interest and it is mentioned in the Will that 50% of the property will go to the plaintiff after death of 1st defendant and remaining 50% will go to plaintiff's two sisters as 25% each. On 24.03.2007, Dharmalingam has executed a Codicil modifying his earlier Will dated 03.01.1995. In the Codicil, he has appointed John Stanley as Executor of the Will and has modified the condition regarding taking loan by mortgaging the property up to Rs.15,00,000/- and has stated that specific approval in writing of the plaintiff is mandatory for taking loan by mortgaging the property. It 5 O.S.No.695/2011 is also mentioned in the Codicil that plaintiff and 1st defendant are equally entitled to share any monetary benefits derived from the schedule property. The 1st defendant has managed to get the transfer of khata of the schedule property in his name, in spite of objections raised by plaintiff. The 1st defendant has now started demolishing the old structure on the suit schedule site and started construction of new structure in violation of Will executed by Dharmalingam. If the new building is constructed, the undivided right of the plaintiff becomes infructuous. In spite of several request, the 1st defendant is ignoring the request of the plaintiff and is proceeding with construction. Therefore plaintiff filed the suit. By amending the plaint, plaintiff has contended that 1st defendant has not obtained any consent for construction as per Codicil and he has raised the loan by offering schedule property as security without plaintiff's consent and such mortgage shall not bind the plaintiff. Any monetary benefits that derive from schedule property shall be shared equally between plaintiff and 1st defendant and plaintiff is entitled to 50% of the monetary benefit derived 6 O.S.No.695/2011 from the schedule property like security deposit and monthly rent by the tenants. It is stated that the 1st defendant has inducted 2nd defendant as a tenant in the 1st floor portion and getting rent of more than Rs.1,00,000/- per month, 50% of the amount is to be paid to the plaintiff. The plaintiff is also entitled for share in advance, that 1st defendant has received at the time of inducting 2nd defendant to the premise. With these averments, plaintiff has filed this suit.
3. 1st Defendant has appeared and filed written statement and also filed additional written statement. The case of the 1st defendant is that the suit is false, frivolous, vexatious and is not maintainable. The execution of Will by Dharmalingam as stated by plaintiff on 03.01.1995 and also execution of the Codicil on 24.03.2007 is also admitted. The 1st defendant has stated that as per the Will, he has life interest and he can enjoy the property during his lifetime. But he should not alienate the property and he is even permitted to mortgage the property and after his lifetime, the property will go to his 7 O.S.No.695/2011 children and plaintiff is having 50% of the share. It is stated that during lifetime of 1st defendant, nobody will have the claim over the suit property. It is stated that by Codicil, the limit for obtaining loan by mortgaging the property is raised up to Rs.15,00,000/- with the consent of plaintiff. The 1st defendant has stated that he has the right to construct or develop the property as per the Will and it is for the benefit of the plaintiff and other beneficiaries as per the Will and Codicil and plaintiff has no right to question the same. The 1st defendant has stated that he is getting meager pension of Rs.1,500/- p.m. and he has to maintain the family and educational expenses of his 2nd daughter. Hence, he intended to construct 1st floor, so he may let out the same and get some income. It is stated that plaintiff is now staying separately and is not supporting the 1st defendant, though it is his moral and social duty. Instead of helping the 1st defendant, plaintiff has filed the present suit against his father to harass the 1st defendant mentally and physically. The 1st defendant has stated that plaintiff has no right to file the suit to restrain him from improving the schedule 8 O.S.No.695/2011 property and there is no cause of action to the suit. It is stated that the 1st defendant is staying in the schedule property and without demolishing the existing structure, the 1st defendant is constructing 1st floor by raising columns/pillars around the existing building and nature of existing structure is not changed and 1st defendant has already completed 75% of the work and stored balance construction materials. It is stated that the plaintiff has waited till completion of 75% of the work and now filed the present suit. It is stated that during lifetime of 1st defendant, plaintiff will not get any right in the property and he has no right to file the present suit. It is also stated that other beneficiaries of the Will are not made parties to the present suit and suit is bad for non-joinder of necessary parties. It is stated that during lifetime of 1st defendant, plaintiff cannot claim any right. It is stated that the suit is not properly valued as the plaintiff is seeking 50% of the monetary benefits in the schedule property and the court fee is to be paid on the same. The 1st defendant has denied that he has to obtain specific approval and consent in writing for mortgaging the 9 O.S.No.695/2011 property. Entitlement of the plaintiff for other reliefs prayed by amendment of the plaint are denied by 1st defendant. On all these grounds, prayed to dismiss the suit with costs.
2nd defendant who is impleaded subsequently, has not filed any written statement.
4. On these pleadings, following issues are framed by my learned predecessor :-
1) Whether the plaintiff proves that the 1st defendant has undertaken construction on the existing building illegally?
2) Whether the plaintiff is entitled for the relief of permanent injunction ?
3) What order or decree?
Additional Issues:
1) Whether the plaintiff is entitled for mandatory injunction as prayed for?
2) Whether court fee paid on plaint is sufficient?
5. In support of plaintiff's case, P.W.1 is examined and Ex.P-1 to P-4 are marked. For defendants, D.W.1 is examined and Ex.D-1 to D-4 are marked.
10 O.S.No.695/2011
6. Heard the arguments.
7. My answer to the above issues are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Addl. Issue No.1: In the Negative
Addl. Issue No.2: In the Affirmative
Issue No.3: As per final order, for the following:
REASONS
8. Issue Nos.1, 2 and Additional Issue No.1 : All these issues are taken together to avoid repetition.
The plaintiff has contended that as per the Will and Codicil of his grandfather late T.V.Dharmalingam, 1st defendant is only having life interest in the suit property and even for improvement or construction etc., he has to take permission of the plaintiff and he can take loan upto Rs.15,00,000/- by mortgaging the property with permission of the plaintiff in writing. According to the plaintiff, 1st defendant has started construction of the 1st floor in the suit property without taking consent of the plaintiff and he is also demolishing existing building. During pendency of the suit, plaintiff has amended the 11 O.S.No.695/2011 plaint and sought for mandatory injunction to inform about details of the tenants and also to direct the 1st defendant to tender periodic accounts in respect of the monetary benefits from schedule property and to disburse 50% of the same to the plaintiff and also plaintiff has prayed to direct defendant No.2 to disburse plaintiff's half share in the rent which defendant No.2 is paying in respect of the 1st floor portion of the schedule property. Defendant No.2 is the tenant who is occupying 1st floor of the suit schedule premise which is constructed now by the 1st defendant. 1st defendant in the written statement has contended that he is having absolute right during his life time, only with restriction on alienation.
9. The plaintiff has given evidence as P.W.1 and has stated plaint averments. In the cross-examination, he has stated that he is residing separately from 1st defendant for the last eight years. Witness has admitted that as per the Will executed by his grand father, he is given half share and his two sisters are given 25% each in the suit property. The witness has stated that as per the 12 O.S.No.695/2011 Codicil, right of the 1st defendant to develop the property has been modified and has stated that earlier in Ex.P-1 Will, there was restriction for taking loan up to Rs.5.0 lakhs and by Codicil, it has been enhanced to Rs.15.00 lakhs and has stated that written permission of the plaintiff is necessary to be taken. Witness has admitted that the premise in the suit property as old one, and it was not getting any rent. Witness has stated that the 1st defendant has made construction in the 1st floor by taking personal loan. Witness has stated that he has not consented for obtaining loan up to Rs.15.00 lakhs. Witness has stated that as the relationship is not good, he is not ready to incur expenses of the marriage of 2nd sister Archana.
10. The plaintiff has produced certified copy of the registered Will and Codicil as Ex.P-1 and P-2. Legal notice issued to the 1st defendant and the reply is marked as Ex.P-3 and P-4.
1st defendant has given evidence as D.W.1 and stated his contentions. In the cross-examination, he has admitted that plaintiff and Kavitha are his children from 13 O.S.No.695/2011 his 1st wife and Archana is daughter of 2nd wife. Witness has stated that he had taken loan in the name of his 2nd wife who is employee for construction of 1st floor in the schedule property. He has admitted that he is staying in the ground floor and 1st floor is given rent to the 2nd defendant. It is stated that he has obtained loan from his friends and loan of Rs.8,75,000/- was taken from Indian Bank, in the name of his wife Smt.Vijayalakshmi. Witness has stated that he has given 1st floor to Punjab National Bank on rent of Rs.1,32,000/- pm and agreement is for five years. Witness has admitted that in the Will and Codicil, he is given life interest in the property and has admitted that as per Ex.P-2, he has to pay Rs.50,000/- each to his sisters and has stated that he has not paid the said amount. Witness has stated that as he has not taken any loan by mortgaging the property, he need not take permission from plaintiff. Witness has stated that he is aware of the conditions imposed in the Will. Witness has denied that in the rent of Rs.1,32,000/- by 2nd defendant, plaintiff is entitled for half portion.
14 O.S.No.695/2011
11. 1st defendant has produced Pass book of his account in Punjab National Bank showing rent being paid by 2nd defendant to the plaintiff as Ex.D-1. Account ledger extract, statement of personal loan of Indian Bank, Punjab National Bank and monthly statement are produced as Ex.D-2 to D-4.
12. On looking to the pleadings, evidence and the documents produced, relationship between parties is not in dispute. The plaintiff - T.S.Vijayakumar is son of 1st defendant - T.V.Sundara Murthy. 1st defendant is son of late T.V.Dharmalingam and Smt.Radhabai. There is no dispute that suit property belonged to T.V.Dharmalingam. T.V.Dharmalingam, who is father of 1st defendant and grandfather of plaintiff has executed registered Will on 03.01.1995 and Codicil on 24-03-2007 in respect of the schedule property. Both the plaintiff and 1st defendant admit the execution of Will and Codicil. Copies of registered Will and Codicil are produced as Ex.P-1 and P-
2. Both the parties have not disputed these documents. On the basis of the Will, 1st defendant got entered his 15 O.S.No.695/2011 name to the suit schedule property as admitted by parties. After getting his name entered, 1st defendant has started construction in the schedule property and at that time, plaintiff has filed present suit.
13. There are several conditions imposed in Ex.P-1 Will and Ex.P-2 Codicil. In Ex.P-1, it has been stated that defendant No.1 i.e. father of plaintiff is given life interest in the property subject to certain conditions and after his death, property is bequeathed to plaintiff and his two sisters Kavitha and Archana. Plaintiff is given 50% and his two sisters are given 25% each as per the Will. It is also mentioned in Ex.P-1 Will that the 1st defendant can enjoy property for life time and he has to pay Rs.50,000/- each to his 3 sisters. However, in Codicil Ex.P-2, amount is stated to be payable to his 2 sisters i.e. Smt.Meena Ranganathan and Smt.Uma Janardhan and amount is required to be paid within 3 years. As admitted by D.W.1, Rs.50,000/- each is not paid to these sisters till now. In the Will and Codicil, there are several restrictions imposed on enjoyment of 1st defendant. In Ex.P-1, condition is 16 O.S.No.695/2011 imposed that he should not alienate the property, but he can mortgage the property for his financial crisis to conduct marriages of his children or to improve the property. In the Codicil, some alterations have been made and 1st defendant is permitted to mortgage property up to Rs.15.00 lakhs with the express approval of the plaintiff Vijaya Kumar for specific purposes stated therein. It is also mentioned in the Codicil that any monetary benefits derived from the schedule property shall be shared equally between Sundaramurthy and Vijaya Kumar. Therefore, on looking to the Will and Codicil, it is clear that several restrictions have been imposed on enjoyment of the property by 1st defendant. Execution of the Will and Codicil as per Ex.P-1 and P-2 are not disputed by plaintiff and defendant No.1, but they differ in interpretation of the same.
14. Learned counsel for plaintiff submitted that the Will and Codicil is to be taken together and the Codicil is explanation of the conditions imposed in the Will and therefore, there is restriction for making addition and 17 O.S.No.695/2011 alteration in the property without written consent of the plaintiff and even for mortgaging the property for taking loan, written consent of the plaintiff is necessary and plaintiff is entitled for 50% in monetary benefits received from the property. Learned counsel for defendant submitted that though in the Codicil, certain additional conditions are imposed, Will permits him to enjoy the schedule property during his life time and only after lifetime of 1st defendant, his children will become the absolute owners of the property and during lifetime of 1st defendant, nobody will have claims over the said property and plaintiff cannot seek monetary benefits and also plaintiff cannot restrict the 1st defendant in improving the property provided the suit property is not mortgaged for obtaining loan for improving the property.
15. In this connection, both parties have relied on some decisions. In the decision cited by learned counsel for plaintiff in AIR 2004 SC 436 (Bhagat Ram and another vs. Suresh and others) Hon'ble Supreme Court has held that Since Codicil is an instrument made in 18 O.S.No.695/2011 relation to a Will, execution and attestation must be in same manner as a Will.. In another decision reported in AIR 1982 SC 133 (Smt.Indu Bala Bose and others v. Mahindra Chandra Bose and another), proof of Will has been considered and it is held that The mode of proving a Will does not differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Sec.63 of the Succession Act. In another decision reported in AIR 1982 Calcutta 599 (Alok Kumar Aich v. Asoke Kumar Aich and other), proof of Will has been considered.
16. On the contrary, counsel for defendant No.1 cited decision reported in AIR 1930 Privy Council 242 (Rajendra Prasad Bose and another v. Gopal Prasad Sen), Hon'ble Privy Council has held that the Court is entitled to put itself into testator's armchair in understanding the mind of the testator. In AIR 1970 Patna 144 (Gauri Shanker Sah and others v.
Ramchander Sah and others) Hon'ble High Court has considered construction of interest created whether is 19 O.S.No.695/2011 absolute or limited one and held that the entire Will has to be considered as a whole in understanding the same. In AIR 1988 Karnataka 116 (K.R.Ramaswami Rao (deceased by LRs.) and others v. Premabai and others) it is held, Whether testator intended to confer absolute estate on his sons exclusively or it is a scheme for allotment of their due shares. Intention to be gathered from language of document along with surrounding circumstances.
17. On going through all these decisions, these decisions are with regard to proof of Will and Codicil and the intention of the testator and understanding as to surrounding circumstances in which the Will has come into existence etc., and also interpretation of the Will and Codicil. In the present suit, both plaintiff and 1st defendant admit the Will and Codicil. As per the decision cited above, the Codicil is also having same weight as a Will and is to be proved in the same way and once proved, it is to be given effect similar to Will and all the rules applicable to Will apply to Codicil also and both are to be considered together.
20 O.S.No.695/2011
18. In this case, plaintiff has produced certified copy of the Will and Codicil as Ex.P.1 and 2. The original Will and Codicil are not before the Court. In the Codicil Ex.P-2, testator has appointed one Mr.John Stanley as executor of his Will dated 03.1.1995. Since executor is appointed by the testator, Executor have to take probate for execution of the Will as per Sec.222 of the Indian Succession Act, 1925. As per Sec.231 of the Indian Succession Act, if executor renounces or fails to accept an executorship, the Will may be proved and letters of administration, with a copy of the Will annexed, may be granted to the person who would be entitled to administration in case of intestacy. Since the executor is appointed by testator by his Codicil Ex.P-2, executor is necessary to take executorship of the Will and Codicil of the deceased Dharmalingam and on his failure, the legal heirs of the deceased can prove the Will and can obtain letters of administration with a copy of Will. Both plaintiff and 1st defendant of this case are claiming right in the property on the basis of Will and Codicil executed by deceased Dharmalingam. The entire case of the plaintiff is 21 O.S.No.695/2011 based on the Will and Codicil executed by his grandfather Dharmalingam. As stated above, original Will & codicil are not before the Court. The present suit is not for declaration of right of the plaintiff on the basis of Will and Codicil. On the contrary, present suit is only for permanent injunction and subsequently, relief of mandatory injunctions have been prayed in the suit. Admittedly, this Will and Codicil are not produced in any other proceedings and are not proved as required by law in any other judicial proceedings.
19. As per Sec.63 of the Indian Succession Act, in executing unprivileged Will, as in the present case, the testator shall sign or shall affix his mark to the Will and the Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will. Therefore, there is a procedure prescribed for execution of the Will in Sec.63 of the Indian Succession Act, as per which, Will shall be attested by two or more witnesses and such witnesses have to see the testator sign or affix his mark to the Will. As held in the decision of the 22 O.S.No.695/2011 Hon'ble Supreme Court in AIR 2004 SC 436 referred by plaintiff, even in case of Codicil, same procedure is to be followed.
20. As per Sec.68 of the Indian Evidence Act, If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution.
21. As per Sec.63 of the Indian Succession Act, Will is a document which requires to be attested by two witnesses. As per Sec.68 of the Indian Evidence Act, such a document shall not be used as evidence until one attesting witness at least has been called for, to prove its execution. Though both the parties in the present suit rely on the Will and Codicil and admits the document, as per Sec.68 of the Indian Evidence Act it cannot be used as evidence until one attesting witness is examined for proving its execution. When Indian Evidence Act bars use of a document as evidence without examining one attesting witness for proving its execution, admission of the parties like plaintiff and 1st defendant in the present 23 O.S.No.695/2011 case, does not permit the Court to receive this Will and Codicil as Evidence and rely on the same to pass a Judgment. Though the plaintiff and 1st defendant admits the Will and Codicil, unless an attesting witness is examined to prove the execution of the Will, it cannot be used as evidence. In this case, entire case depends on the Will and Codicil and its interpretation. The said document cannot be used as evidence, since none of the parties have made any efforts to prove the execution of the Will by the deceased testator.
22. Apart from that, present suit is not for proof of the Will, it is for the relief of injunction. As per Sec.38 of Specific Relief Act, when the defendant invades or threatens to invade the plaintiff's right to or enjoyment of property, to prevent the breach of an obligation existing in favour of plaintiff, perpetual injunction may be granted by the court. Therefore, existence of the right in favour of plaintiff or existence of an obligation on the defendant in favour of plaintiff is a must to seek the relief of injunction. The right claimed by plaintiff in the present suit is only 24 O.S.No.695/2011 based on the Will and Codicil executed by his grandfather. Said Will and Codicil cannot be used as evidence in view of Sec.68 of the Indian Evidence Act. There is no relief of declaration on the basis of Will and Codicil is prayed in this suit. Under such circumstances, this Will and Codicil cannot be used as evidence in this suit. Independent of this Will and Codicil, there is no existence of any right in favour of the plaintiff and there is no obligation existing in favour of the plaintiff, to prevent breach of which, injunction can be granted. Therefore, interpreting the conditions imposed in the Will and Codicil would arise only after proof of the same, which is beyond the scope of the present suit. Existence of right in favour of the plaintiff is not established unless the Will is proved. When the plaintiff has not made out existing right in his favour, question of granting injunction of any form either mandatory or perpetual does not arise.
23. Apart from this, in the Will it has been noted that testator had 3 daughters and the Codicil show that one of the daughter died. The testator, has even imposed 25 O.S.No.695/2011 condition of payment of Rs.50,000/- each to his two daughters in the Codicil and the payment was to be made within 3 years after death of the testator. As admitted by D.W.1, such payment as per the Will is not made. Therefore, condition imposed in the Will is not complied. As stated above, this is not a suit for declaration of title on the basis of Will or is not the suit to prove the Will executed by deceased testator. In the present suit, said Will cannot even be proved, as other interesting parties are not before the Court. As mentioned in the Will and Codicil, testator had 3 daughters out of that one daughter has died and two daughters are living. These daughters of the deceased may also be interested persons in the property of the deceased testator. Without making them as party, Will cannot be proved. Since the present suit is only for permanent injunction and then, the relief of mandatory injunction has been sought in the same suit, for deciding the present suit, these daughters of the testator are not necessary parties. However, if the Will is to be proved, they would be interested persons and would be necessary parties. On looking to the nature of the suit 26 O.S.No.695/2011 and the relief prayed by plaintiff, unless Will is proved, plaintiff does not get any right to prevent the 1st defendant from doing the acts in respect of the property which are contrary to the Will and Codicil of the deceased. Therefore, relief of mandatory injunction and permanent injunction cannot be granted unless such right of the plaintiff is established in the appropriate proceedings.
24. As regards the relief of permanent injunction, since the construction is already over, the said relief does not survive and has become infructuous. As regards the other reliefs of mandatory injunctions, which are claimed on the basis of Will and Codicil, plaintiff is not entitled for the reliefs as said Will and Codicil are not yet proved as required by law. Unless the Will is proved and the plaintiff's right in the property is established in appropriate proceedings, plaintiff is not entitled for any reliefs prayed in the suit. Accordingly, these issues are answered in the Negative.
25. Addl. Issue No.2: The plaintiff has originally filed suit for permanent injunction restraining the 1st 27 O.S.No.695/2011 defendant from making further construction and from proceeding with the act of demolition of the existing building in the suit property without consent of the plaintiff. According to the plaintiff, as per the Will, 1st defendant can make further construction only with the consent of the plaintiff. The 1st defendant has appeared and though admitted the Will and Codicil, has disputed the requirement of consent of the plaintiff for making further construction in the suit property. The plaintiff has amended the plaint and has inserted several reliefs for mandatory injunction. In the mandatory injunction, plaintiff has prayed direction to the 1st defendant to give details of the tenants and direct the 1st defendant to render periodic accounts and to direct the 1st defendant to disburse 50% of the monetary benefits to the plaintiff and to give details of the rental agreement and also direction to defendant No.2 to disburse half share in the rent to the plaintiff. 1st defendant in his additional written statement has stated that court fee paid is not sufficient. The 1st defendant has stated that as the plaintiff is seeking 50% of the monetary benefits, he has to pay court fee on the same 28 O.S.No.695/2011 and as such, court fee paid is not proper. The 1st defendant has not placed any materials to show as to what would be the proper court fee to be paid by plaintiff on the prayers which are included subsequently.
26. As stated above, the suit was originally for permanent injunction against construction. During pendency of the suit, 1st defendant has completed the construction and appears to have let out the 1st floor of the premises to the 2nd defendant on a monthly rent. Therefore, giving the schedule premise on rent to the 2nd defendant is subsequent event. As the suit was one for permanent injunction against construction and during pendency of the suit, construction has been completed and thereafter, premises has been given on rent by 1st defendant to the tenant and as the 1st defendant has not placed any materials to show the exact rent received or the monetary benefits which he get out of the schedule property, it cannot be held that the Court fee paid is not proper. There is no definite case of the 1st defendant about quantum of the monetary benefit that is to be paid by 29 O.S.No.695/2011 plaintiff and therefore, it is uncertain as to what would be the exact amount that is payable by 1st defendant to the plaintiff. As all these additional prayers are based on the subsequent event after filing of the suit, the court fee paid as on the date of the suit by plaintiff for the relief of permanent injunction is sufficient. Therefore, additional issue No.2 is answered in the Affirmative.
27. Issue No.3: For the discussions made on the above issues, following order is passed:
O R D E R Suit of the plaintiff is dismissed. In the circumstances of the case, there is no order as to costs.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in the open court, on this the 17th day of April 2017).
(RAVINDRA HEGDE) XVII Addl. City Civil & Sessions Judge, I/c. IX Addl. City Civil & Sessions Judge, Bangalore.
A N N E X U R E List of witnesses examined for plaintiff:
P.W.1 T.S.Vijayakumar 30 O.S.No.695/2011 List of documents exhibited for plaintiff:
Ex.P-1 Registered Will dated 03.01.1995 Ex.P-2 Certified copy of registered Codicil Ex.P-3 Copy of legal notice Ex.P-4 Reply given by 2nd defendant
List of witnesses examined for defendants:
D.W.1 T.D.Sundarmurthy List of documents exhibited for defendants:
Ex.D-1 PNB pass book
Ex.D-2 to 4 Bank statements
XVII Addl. City Civil & Sessions Judge,
I/c. IX Addl. City Civil & Sessions Judge,
Bangalore.
***