Bangalore District Court
; 1. R.Geetha D/O Rachachari vs ; 1. Smt.Neelamma W/O Shankarachari on 25 February, 2015
IN THE COURT OF XVIII ADDL. CITY CIVIL JUDGE
AT BENGALURU CITY [CCH NO.10]
Dated this day the 25th February, 2015
PRESENT
SRI K.AMARANARAYANA., B.Com., LL.M.
XVIII Addl. City Civil & Sessions Judge.
O.S.No.5290 /2007
Plaintiffs ; 1. R.Geetha D/o Rachachari,
Aged about 21 years,
R/at. No.4024, Usha Nilaya,
Gandhinagar, 12th Cross,
Chnadgal Layout,
M A N D Y A.
2. R.Prashanth Kumar,
S/o Rachachari,
Aged about 19 years,
R/at.No.5, 15th Cross,
A Block, Bhuvaneshwarinagar,
Magadi Road,
B A N G A L O R E - 560023.
3. Rachachari S/o Shankarachari,
Aged about 56 years,
R/at. No.28/30, 5th Cross,
Gandhinagara,
M A N D Y A.
[Defendant No.2 transposed as Plff-3]
--2-- O.S.No.5290/2007
[By.Sri.N.R.R Adv for Plaintiff No.1 & 2]
[By.Sri.C.B.Advocate for Plff No.3]
--V/S--
Defendants ; 1. Smt.Neelamma W/o Shankarachari,
Aged about 66 years,
2. Siddappaji S/o Shnkarachari,
Aged about 42 years,
3. Ramesh S/o Shankarachari,
Aged about 35 years,
4. Prakash S/o Rachachari,
Aged about 34 years,
[D-4 Placed Exparte]
All are R/at. No.85, 7th Cross,
Cholurpalya, Magadi Road,
B A N G A L O R E - 560023.
5. Smt.Prabha @ Chandraprabha,
D/o Shankarachari,
W/o Devaraj,
Aged about 33 years,
R/at. No.68, 7th Cross,
Cholurpalya, Magadi Road,
B A N G A L O R E - 560023.
6. Devaraju S/o Late Chikkannachari,
Aged about 46 years,
--3-- O.S.No.5290/2007
R/at. No.68, 7th Cross,
Cholurpalya, Magadi Road,
B A N G A L O R E - 560023.
[By.Sri.V.S.Adv for D1, D3, D5 & D6]
[By.Sri.M.D. Adv for D7]
Date of institution of suit ; 06.07.2007.
Nature of the suit [Pronote, ; Partition & Declaration.
Suit for declaration and ;
Possession, suit for Injunction
etc]
Date of the commencement ; 06.11.2012.
of recording of the evidence
Date on which the judgment ; 25.02.2015.
was pronounced
Total Duration ; Year/s Month/s Day/s
07 07 19
[K.AMARANARAYANA]
XVIII Addl. City Civil & Sessions Judge,
JUDGMENT
The plaintiffs 1 and 2 filed this suit against the defendants prays to pass judgment and decree for a partition and separate possession of his 1/3rd of 1/6th share i.e. 1/18th share in the suit schedule properties by metes and bounds, and to declare that the
--4-- O.S.No.5290/2007 sale deed dated; 22.9.1997 executed by first defendant in favour of defendants 6 and 7 and is not binding on their shares and for costs of this suit with costs of this suit. The defendant No.2 transposed as plaintiff No.3 on 6.11.2014.
2. Case of the plaintiff in brief is as follows;
The plaintiffs 1 and 2 are the children of third plaintiff and grand children of late Shankarachari. The first defendant is the wife and defendants 2 to 6 are the children of late Shankarachari. The plaintiffs and defendants constitute Joint Hindu Undivided Family. The suit schedule properties were acquired by late Shankarachari out of his own warnings and he died intestate on 21.12.1983 and the suit schedule properties were not partitioned bet-ween the family members. After the death of Shankarachari suit schedule properties were mutated in the name of first defendant as elderly person. The plaintiffs and defendants were in possession and enjoyment of the same. Due to differences of opinion the plaintiffs 1 and 2 demanded for partition and separate possession of their shares, but defendants refused for the same, as such they have issued legal notice to the defendants to allot their shares. The defendants have not complied the same. They came to know that the first defendant has sold the suit
--5-- O.S.No.5290/2007 schedule 'A' property in favour of defendants 6 & 7 under registered sale deed dated; 22.9.1997 behind their back. The defendant No.6 is none other than the daughter of first defendant. The first defendant has no exclusive right to alienate the same in favour of defendant No.6 and 7. Hence, the suit is filed for the above reliefs.
3. The defendant No.4 remained absent and he is placed exparte. The defendants 1 to 3, 5 to 7 appeared through their counsel and filed their written statement. The defendant No.2 transposed as plaintiff No.3.
i). The second defendant in his written statement supported the case of the plaintiffs besides contending that suit A & B schedule properties are the self acquired properties of his father and suit C & D schedule properties are their ancestral properties. After getting job on compassionate ground he had invested his hard-earned money to develop A & B schedule properties and performed the marriages of defendants 3 to 6 who are his sisters and brothers. After the marriages of defendants 3 to 6, he started residing separately due to some dispute arose bet-ween him and defendants 3 to 6. The sale deed executed by the defendant No.1, 3 to 5 in favour of defendant No.6 and her husband is only with an intention to deprive his legitimate
--6-- O.S.No.5290/2007 share. He has not given consent for the said sale deed and it does not bind his legitimate share. On the above grounds prays to allot share to him.
ii). The defendant No.1, 3, 5 to 7 filed their written statement denied all the plaint averments except admitting the relationship and acquisition of suit schedule properties by Late Shankarachari besides contending that the second defendant being the eldest son Late Shankarachari and first defendant has set his children to file the frivolous suit against them, the suit of the plaintiffs is misconceived.
The deceased Shankarachari was working as Class IV employee in K.S.F.C and died on 21.12.1983 leaving behind the defendants as his legal representatives to succeed to his estate. The second defendant was given compassionate appointment on behalf of the family as he has attained majority. The marriage of second defendant was celebrated out of the death benefits of late Shankarachari within one year of his appointment on the hope that he would look after the first defendant and defendants 3 to 6. The second defendant instead of looking after the family went out of the family and residing separately. The defendants 3 to 6 have attained majority and doing coolie work. The plaintiffs 1 and 2 are not entitled for any share. During the year 1997 for celebration of marriages of defendant No.3 to 6 and to meet
--7-- O.S.No.5290/2007 family problems defendant No.1, 3 to 5 have sold suit 'A' schedule property to defendant No.6 under registered sale deed dated; 22.9.1997. The second was aware of the said fact and he has not questioned the same as he obtained appointment on account of death of his father. Since second defendant left the house and residing separately for more than two decades and ousted from the family before the birth of plaintiffs 1 and 2. The plaintiffs 1 and 2 are not entitled for any share in the suit schedule properties. The defendants 3 to 6 by doing coolie work and out of their hard-earned money have constructed sheet-roofed houses in suit 'B' schedule properties and residing there. The second defendant has taken major share by way of appointment, the plaintiffs are not entitled for any share in the suit schedule properties. The plaintiffs and second defendant are residing together and are cordial. During the lifetime of second defendant, the plaintiffs are not entitled for any share. The relief claimed by the plaintiffs for declaration on the sale deed is barred by limitation. On the above grounds prays to dismiss the suit.
4. Based on the above pleadings the predecessor in office has framed the following issues;
1. Whether the defendants 1, 3 to 6 prove that defendant No.2 the father of plaintiffs has taken
--8-- O.S.No.5290/2007 share in the form of compassionate job of his father in lieu of his share?
2. Do they further prove that 'A' schedule property is sold to sixth defendant and therefore it is not particle?
3. Do they prove that second defendant has taken his share and not entitled to any share and the plaintiffs are entitled not for any share during the lifetime of second defendant?
4. What order of decree?
5. The plaintiffs to prove their case has examined second plaintiff as PW1 and third plaintiff as PW2, got marked Ex.P1 to Ex.P13 and closed their side. The defendants to prove their case examined first defendant as DW1, got marked Ex.D1 to Ex.D6 and closed their side.
6. Heard the arguments on both the sides.
7. My findings on the above issues is as follows;
Issue No.1 ; Negative.
Issue No.2 ; Negative.
Issue No.3 ; Partly Affirmative.
Issue No.4 ; As per final order.
--9-- O.S.No.5290/2007
For the following reasons.
REASONS
8. Issue No.1;- The second defendant transposed as plaintiff No.3. The stand taken by the defendant No.1, 3 to 6 will not change because of transposition of second defendant. The plaintiffs 1 and 2 are the grand children, plaintiff No.3 and defendants 3 to 5 are the sons and defendant No.6 is the daughter of late Shankarachari and first defendant is admitted. Late Shankarachari was working in K.S.F.C as a class-IV employee and died on 21.12.1983 while in service is admitted. The plaintiff No.3 and defendants 1, 3 to 6 became legal heirs of Shankarachari. According to the defendants, 1, 3 to 6, the defendant No.2 who is transposed as plaintiff No.3 was only the person who attained majority in the family. Admittedly, the plaintiff No.3 being the eldest son of Late Shankarachari was given appointment on compassionate ground. It is clear from the written statement filed by defendants 1, 3 to 6 that the other sons and a daughter of late Shankarachari were minors and not eligible for appointment on compassionate ground. The suggestion put forth by the counsel appearing for the defendants 1, 3 to 6 to PW2 during cross-examination would indicate that the defendants 3 to 6 are uneducated. It is seen from the cross-examination of PW2 that
--10-- O.S.No.5290/2007 plaintiff No.3 got married one year after he got appointment on compassionate ground. Looking to the minority of defendants 3 to 6 and their illiteracy, certainly they could not have appointed on compassionate ground. Probably the plaintiff No.3 might have given appointment on compassionate ground. Looking to the oral evidence of PW2 and DW1 the plaintiff No.3 got the appointment on compassionate ground as a matter of right being eldest son of late Shankarachari. Absolutely there is no evidence on record to indicate that the third plaintiff taken his share in the form of compassionate job of his father in lieu of his share. Therefore the contention of the defendants 1, 3 to 6 that the second defendant who transposed as plaintiff No.3 taken his share by way of compassionate job of his father cannot be accepted and is unsustainable. Hence, I answered Issue No.1 in the 'Negative'.
9. Issue No.2;- It is contended by the defendants 1, 3 to 6 that the suit 'A' schedule property is sold to sixth defendant and not available for partition. 'A' schedule property is the Piece and parcel of the western half of site bearing old No.3, Present site No.68 in katha No.84/A situated at Kempapura Agrahara, Cholurpalya, Magadi Road, Bangalore measuring East to West 15 feet and North to South 45 feet bounded on East by; Eastern portion of site No.3, West
--11-- O.S.No.5290/2007 by; Private property, North by; Road, South by; Site No.6. The plaint averments disclose that A and B schedule properties are the self- acquired properties of late Shankarachari. Plaintiff No.1 and 2 are the grand children of late Shankarachari. No doubt plaintiff No.1 and 2 are not the legal heirs of late Shankarachari under section 8 of Hindu Succession Act when their father second defendant who is transposed as plaintiff No.3 is alive. It is apparent from record that the A schedule property is sold in favour of defendants 6 and 7 by the defendants 1, 3 to 5. Plaintiff No.3 who is transposed claimed share in A schedule property under section 8 of Hindu Succession Act as a legal of late Shankarachari. The right of plaintiff No.3 subsists as he is not a party to the sale made in favour of defendants 6 and 7. Therefore the alienation made by defendants 1, 3 to 5 in favour of defendants 6 and 7 do not binds the share of plaintiff No.3. Therefore, the contention of the defendants 1, 3 to 6 that suit A schedule property is not available for partition cannot be accepted. Thus in view of foregoing reasons and under the circumstances I answered Issue No.2 in the 'Negative'.
10. Issue No.3 & 4;- The plaintiffs 1 and 2 being the grand children of late Shankarachari claimed 1/18th share each in all the suit schedule properties. The defendant No.2 who is transposed as
--12-- O.S.No.5290/2007 plaintiff No.3 claimed his legitimate share in all the suit schedule properties. It is to be noted that the defendants 1, 3 to 7 denied the claim of plaintiffs 1 and 2 as the suit A and B schedule properties are the self-acquired properties of late Shankarachari and they cannot claim any share in C and D schedule properties during the life time of their father defendant No.2/plaintiff No.3. It is to be noted that the defendants 1, 3 to 6 has failed to prove their assertion that the defendant No.2 given share in the form job on compassionate ground. It is held in issue No.1 that the defendants 1, 3 to 6 cannot claim that the job given to defendant No.2 on compassionate ground is their family property. Looking to the contention taken by defendants 1, 3 to 6 let me peruse the evidence placed on record by both plaintiffs and the defendants.
11. PW1 is the second plaintiff has reiterated the averments of plaint during the course of his oral evidence. PW2 is the defendant No.2/transposed as Plaintiff No.3 has reiterated the contention taken in his written statement. On going through the cross examination of PW1 and PW2 it is seen that suit A and B schedule properties are the self-acquired properties of late Shankarachari. Ex.P1 is the genealogical tree of the family. There is no dispute about the relationship of the parties to the suit. Therefore the plaintiffs and
--13-- O.S.No.5290/2007 defendants are belongs to one family. Ex.P2 evident that Shankarachari died on 21/12/1983. There is no dispute about the death of late Shankarachari. Thus, Ex.P2 proves the date of death of late Shankarachari. Ex.P3 to Ex.P5 are the RTC extracts of suit 'C' schedule properties. Ex.P3 to Ex.P5 would indicate that the Katha of suit schedule 'C' property stands in the name of first defendant. It has come up in the cross examination of DW1 that the suit schedule 'C' property is the joint family property. DW1 further admits in the cross- examination that the suit schedule 'D' property is their joint family. DW1 is no other than the defendant No.1 has reiterated the contents of written statement. DW1 admits in the cross-examination that 'C' and 'D' schedule properties are the ancestral properties of her husband. The admission made by DW1 corroborates the case of the plaintiffs in respect of nature of suit schedule 'C' and 'D' properties. The documents Ex.D1 is the wedding card and Ex.D2 to Ex.D6 are the marriage photos of defendant No.2 who is transposed as plaintiff No.3. There is no dispute about the fact that defendant No.2/plaintiff No.3 was married on 14.4.1985. Thus, production of Ex.D1 to Ex.D6 would indicate the admitted fact and nothing more.
12. Looking to the admission made by PW1 and PW2, suit schedule A and B properties are the self-acquired of Shankarachari
--14-- O.S.No.5290/2007 and suit schedule C and D properties are the joint family properties of plaintiffs and defendants 1, 3 to 6. The plaintiff No.3 and defendants 1, 3 to 6 succeeded to A and B schedule properties as legal heirs of late Shankarachari under section 8 of Hindu Succession Act as Class-I heirs. The plaintiffs 1 and 2 cannot held to be the Class-I heirs of late Shankarachari under section 8 of Hindu Succession Act during the lifetime of plaintiff No.3/defendant No.2. Therefore, the plaintiffs cannot claim any share in the suit 'A' and 'B' schedule properties during the lifetime of plaintiff No.3/defendant No.2. The plaintiffs 1 and 2 became coparceners along with plaintiff No.3, defendants 1, 3 to 6. Admittedly, the suit schedule 'C' and 'D' properties are the ancestral properties of plaintiffs and defendants 1, 3 to 6. Thus, the plaintiffs 1 to 3 are entitled for a share as that of defendants 3 to 6 in the suit schedule 'C' and 'D' properties. The plaintiff No.3 and defendants 1, 3 to 6 are entitled for equal share in the suit schedule 'A' and 'B' schedule properties. The plaintiff No.1 and 2 are not entitled for a share in the suit schedule 'A' and 'B' properties.
13. Therefore in view of foregoing reasons and under the circumstances it is crystal clear that the plaintiffs 1 to 3 are entitled for 1/8th share in the suit schedule 'C' and 'D' properties. The
--15-- O.S.No.5290/2007 plaintiffs 1 and 2 are not entitled for a share in the suit schedule 'A' and 'B' properties. However, the plaintiff No.3 is entitled for 1/6th share in the suit schedule 'A' and 'B' properties. Hence, I answered Issue No.1 to 4 accordingly and proceed to pass the following.
ORDER The suit filed by the plaintiffs 1 to 3 is partly decreed. The plaintiffs 1 to 3 are entitled for 1/8th share each in the suit C and D schedule properties. The suit filed by the plaintiffs 1 and 2 in respect of suit A and B schedule properties is dismissed. The suit of the plaintiff No.3 is decreed in respect of suit A and B schedule properties. The plaintiff No.3 is entitled for 1/6th share in the suit A and B schedule properties. Further, it is declared that sale deed dated; 22.9.1997 executed by defendant No.1 in favour of defendant No.5 Prabha @ Chandraprabha and defendant No.6 Devaraju S/o Chikkannacahri in respect of suit A schedule property is not binding on the third plaintiffs share. The defendants 1 to 6 shall put the plaintiffs 1 to 3 in separate possession of 1/8th share each in suit C and D schedule properties by metes and bounds. Further the defendants 1 to 6 shall put the third plaintiff in separate possession of 1/6th in suit A and B schedule properties by metes and bounds.
Failing which the plaintiffs 1 to 3 shall take
--16-- O.S.No.5290/2007 their shares by initiating final decree proceedings.
Under the circumstances no order as to costs.
Draw preliminary decree accordingly.
[Prepared by me on the Laptop, Print out by the judgment writer, corrected and then pronounced by me in the open court dated this day the 25th February, 2015] [K.AMARANARAYANA] XVIII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURES
1. No. of witnesses examined on behalf of plaintiff;
PW1 ; R.Prashanth Kumar. PW2 ; Rachachari.
2. No. of documents marked on behalf of plaintiff;
Ex.P1 ; Genealogical Tree. Ex.P2 ; Death Certificate of Shankarachari. Ex.P3 to P5 ; Three RTC Extracts. Ex.P6 ; Copy of Legal Notice. Ex.P7 to P12; Postal Acknowledgments. Ex.P13 ; C/C of Sale Deed dated; 22.09.1997.
3. No. of witnesses examined on behalf of defendants;
DW1 ; Neelamma.
--17-- O.S.No.5290/2007
4. No. of documents marked on behalf of defendants;
Ex.D1 ; Wedding Card.
Ex.D2 to D6 ; Five Photos.
[K.AMARANARAYANA]
XVIII Addl. City Civil and Sessions Judge,
Bengaluru.