Bangalore District Court
) Smt.Vasanthi vs ) Smt.Savitramma on 2 November, 2021
KABC010199232012
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26).
Dated this the 2nd day of October 2021
Present
Smt. SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.5237/2014
Plaintiffs: 1) Smt.Vasanthi
w/o Late Saravanan
aged about 30 years
2) Kum.Jeevitha
d/o Late Saravanan
aged about 6 years
Both are r/at No.24
2nd Cross, Shivaganga Colony
Matha Hospital Road
Subramanyapura Post
Uttarahalli, Bengaluru-560 061.
(By Sri Sunil Kumar, G.S., Adv.)
V/s
Defendants: 1) Smt.Savitramma
w/o Late K.P. Raju
aged about 65 years
2) Sri Harisha
s/o Late K.P. Raju
aged about 46 years
3) Sri Jagadeesh
(Since dead by LRs)
(a) Smt.Shashikala
w/o Late Jagadeesh
aged about 35 years
(b) Master Likhith
s/o Late Jagadeesh
2 O.S.No.5237/2014
aged about 11 years
since minor, rep by his
mother and natural guardian.
4) Sri Yogesh
s/o Late K.P. Raju
aged about 33 years
All are r/at No.1026, 14th Main Road
4th Cross, Maruthi Circle, Hanumantha
Nagar, Bengaluru-560 019.
(By Sri T. Subramanya, Adv. for D.1,2
& 4 and D.3(a) & (b)- placed exparte)
Date of institution of the suit 10.07.2014
Nature of the suit For partition
Date of the commencement
of recording of evidence 13.08.2018
Date on which the judgment 02.11.2021
Pronounced
Total duration Years Months Days
07 03 22
JUDGMENT
This suit is filed by the plaintiff No.1 for herself and on behalf of minor plaintiff No.2 as his Next Friend against the defendants seeking relief of partition in the suit schedule properties.
2. The brief facts leading to the plaintiffs' case are summarized as under:-
3 O.S.No.5237/2014
That the subject matter of the litigation is detailed in the schedule of the plaint at item No.1 & 2. Item No.1 is said to be an immoveable property bearing new No.2/1, old No.1026 situate in Srinagar, Bengaluru and item No.2 is said to be another property bearing new No.345, Old No.181/4 situate in Kittur Rani Chennamma Road, Bengaluru. The defendant No.1 is said to be the mother of the rest of the defendants and husband of plaintiff No.1 and father of plaintiff No.2- one late Saravanan. The plaintiff No.1 claims to be the daughter-in-law and the plaintiff No.2 is said to be the grand-daughter of the defendant No.1 and as such the parties to the suit are said to be constituting a Hindu undivided family and all are members of the joint family. It is further stated that the defendant No.1 is the absolute owner of the suit item No.1 property which she said to have acquired through her mother- Rangamma and the khatha is also said to be standing in the name of the defendant No.1. The plaintiffs have further stated that the defendant No.1 has 4 issues i.e., late Saravanan and the present defendant Nos.2 to 4 and late Saravanan and the plaintiff No.1 said to have two issues i.e., plaintiff No.2 and one Jeevan who is said to be no more. The plaintiff No.2 is said to be under the 4 O.S.No.5237/2014 care and custody of plaintiff No.1. The plaintiffs have further urged that they along with defendants were residing in the suit schedule properties but due to some mis-understanding and incompatibility the defendants alleged to have thrown them out of the house and apprehending that the plaintiffs may claim right over the schedule property, in order to avoid their legitimate share the defendants are alleged to be trying to create third party interest in the suit schedule properties. The plaintiffs have further stated that till this date no partition has taken place between the parties with respect to schedule properties and as such all are in the joint possession of the said properties. The plaintiff No.1 has further alleged that inspite of her several demands made to the defendants to effect partition in the suit schedule properties and though the panchayath was also held and elders had advised the defendants to effect partition and to give share of the plaintiffs in the schedule property, they alleged to have refused to effect partition thereby denying the right of the plaintiffs. It is further alleged that now the plaintiffs have learnt that the defendants are making hectic efforts to alienate the schedule properties in order to defeat their rights in the suit schedule 5 O.S.No.5237/2014 properties. The plaintiff No.1 has further stated that they have satisfied the required essentials of coparcenery status to seek share in the suit schedule properties. They said to have demanded their share on 02.07.2014 which was denied by the defendants and therefore they have to come up with the present suit seeking the relief. During the pendency of the proceeding the plaintiffs got amended the plaint with regard to the averment regarding cause of action stating that the cause of action to abide the suit arose when they were thrown out of the schedule properties and when they demanded partition on 02.07.2014 to which the defendants denied and hence the suit.
3. During pendency of the proceeding the defendant No.3 died and his LRs were though brought on record as defendant No.3(a) & (b), but they have also remained exparte. The defendant Nos.1,2 & 4 contested the matter. The defendant No.1 filed her written statement denying the claim of the plaintiffs. Though the relationship inter-se the parties is admitted by this defendant, but she has denied that the parties are the members of the joint family and that the suit schedule properties are the joint family properties as claimed by 6 O.S.No.5237/2014 the plaintiff No.1. It is the specific contention of the defendant No.1 that the suit item No.1 property is her absolute property which she acquired through her mother- Rangamma and as such the plaintiffs are the other defendants have no right over the said property. It is her contention that this property was gifted by her mother to her to the extent of half of the property through gift deed dated 04.12.1985 and even today the entire extent of item No.1 property is under the control of her mother who is collecting rents for her survival and even if it is assumed that half of the property was gifted to this defendant it is her Stridhana and therefore plaintiffs cannot claim any share in this property. It is her further contention that even this half portion of item No.1 is not completely handed over to her by her mother who is still alive and therefore this property cannot be partitioned. The defendant No.1 has further contended that the suit item No.2 property was the absolute property of her deceased husband Raju who was allotted the site of this property from BDA during his lifetime as a Slum Dweller under lease-cum-sale basis which was registered in his name and as such this property is also his self acquired property in which nobody can claim any 7 O.S.No.5237/2014 share. She has further contended that before the lease period was expired her husband died and as per the order of the Secretary of BDA the sale deed of this property has been executed in her exclusive name and she has been residing in a portion of the house constructed in this property and getting a monthly rental of Rs.2,000/ from this property which she is utilizing for her survival and as such this property has also become her absolute property in which the plaintiffs or other defendants have no right to claim share. It is however the grievance of this defendant that even defendant Nos.2 & 4 are leading their lives with their family without looking after the defendant No.1 nor assisting her and since the defendant No.3 also expired there is no one to look after her and the income earned from this property is the only source of her survival. The other allegations made in the plaint that the plaintiffs demanded share in the suit schedule properties which were denied by the defendants have been denied by this defendant. Even she has categorically refuted the allegations of the plaintiffs that the defendants are attempting to alienate the suit schedule properties to third parties to defeat the share of the plaintiffs over the suit schedule properties etc., as 8 O.S.No.5237/2014 alleged. For these reasons the defendant No.1 has sought for dismissal of the suit..
4. The rest of the defendants have not filed any written statement in this case.
5. On the rival contentions of the parties, the following issues have been framed:-
1) Whether plaintiffs prove their joint possession in the schedule properties?
2) Do they prove their 1/5th share in the schedule properties?
3) Do they entitle for partition of their share by metes and bounds?
4) Whether first defendant proves that suit item No.1 of the properties is not available for partition as contended in para-5 & 6 of the written statement?
5) Does she prove that suit item No.2 is self acquired property of Mr.Raju as contended in para-7 of the written statement?
6) Does she prove that plaintiffs have no cause of action to file this suit?
7) Whether Court fee paid on the plaint is correct?9 O.S.No.5237/2014
8) Whether plaintiffs are entitled for relief of partition as prayed?
9) What order and decree?
6. To substantiate her claim, the plaintiff No.1 has deposed before the Court as P.W.1 and she has relied on 4 documents marked from Ex.P.1 to Ex.P.4. Per contra the defendants have not led any evidence in support of their defence. No documents are also got marked from the defendant's side.
7. Heard arguments from the plaintiffs' counsel whereas no arguments have been canvassed on behalf of contesting defendant No.1.
8. On hearing and on perusal of the relevant materials and the available evidence on record, my findings on the above issues are as follows:-
ISSUE No.1:- In the negative ISSUE No.2:- In the negative ISSUE No.3:- In the negative ISSUE No.4:- In the affirmative ISSUE No.5:- In the affirmative ISSUE No.6:- In the affirmative 10 O.S.No.5237/2014 ISSUE No.7:- In the negative ISSUE No.8:- In the negative ISSUE No.9:- As per final order, for the following:-
REASONS
9. Issue No.1:- The plaintiffs have specifically claimed that the suit item Nos.1 & 2 properties are their joint family properties and as such they are in joint possession of these properties along with defendants.
The plaintiff No.1 is the natural mother and guardian of the plaintiff No.2 and daughter-in-law of the defendant No.1. It is an admitted fact that the defendant No.1 is the mother of defendant Nos.2 to 4 and late Saravanan who was the husband of the plaintiff No.1 and father of the plaintiff No.2. The material disputed issue involved in the case is as to the rights of the plaintiffs to claim share in the suit properties. The contesting defendant No.1 has categorically refuted the fact that the parties constitute joint family and all are the co-parceners or the members of the joint family having their legitimate share in the suit properties. At the very outset the alleged joint possession of the plaintiffs over the suit properties is also categorically denied by the defendant No.1. Under such circumstances the burden is cast on the plaintiff No.1 to 11 O.S.No.5237/2014 prove their joint possession over the schedule properties as on the date of filing of the suit.
10. To substantiate her claim the plaintiff No.1 by deposing herself before the Court as P.W.1, has relied on as many as 4 documents of which Ex.P.1 is the genealogical tree furnished by her by way of her affidavit which is not in dispute. Ex.P.2 & P.3 are the khatha extracts of suit item No.2 & 1 properties respectively. Ex.P.2 reveals that suit item No.2 property is standing in the name of the defendant No.1 whereas as per Ex.P.3 suit item No.1 property is shown to be standing in the name of her mother- Rangamma. As regards Ex.P4, it is the death extract of husband of P.W.1. It is relevant to note that although the contesting defendant No.1 has filed her written statement disputing the claim of the plaintiffs, but she has not made any attempt to enter into the witness box to prove her defence nor she has cross- examined P.W.1 as could be borne-out from the records. However even in the absence of any effective defence from the contesting defendant, the initial burden always casts on the plaintiffs to prove their case independently.
11. As discussed supra, it has been the definite case made out by P.W.1 that both the suit schedule 12 O.S.No.5237/2014 properties are their joint family properties and she being the daughter-in-law of the defendant No.1 and wife of the deceased son of the defendant No.1, she is entitled to her legitimate share in these properties. She has also specifically stated that all were residing in the suit properties as members of the joint family till they were thrown out of the house by the defendants. However according to her claim even today their possession being constructive possession over the schedule properties, the same needs to be considered. It is relevant to note that except producing Ex.P.1 to Ex.P.4 documents, P.W.1 has not placed before the Court any other supporting materials to prove her alleged joint possession over the schedule properties either on the date of filing of the suit or even prior to it.
12. It is to be noted that as per the own document of PW1 at Ex.P3 khata extract of item No.1 property, the name of the mother of the first defendant is shown as lessee of this property which clearly indicates that she has let out this property to tenants. Even this fact is reiterated by the first defendant in her written statement. Under such circumstances a reasonable suspicion certainly arises as to whether the parties are in actual 13 O.S.No.5237/2014 possession over this property. It is also not her case that even during the lifetime of her husband late Saravanan she was residing in the suit schedule house properties along with the defendants. Therefore, from Ex.P.1 to P.4 documents their alleged joint possession over the schedule properties cannot be made out.
13. Moreover except the interested version of P.W.1 in this regard we have no evidence of any other independent witnesses on behalf of plaintiffs who would have stated that the plaintiffs were also residing in the suit properties prior to filing of this suit or that they have seen their joint possession over the schedule properties along with defendants. Therefore in the absence of any convincing materials in this regard either oral or documentary, the interested version of P.W.1 cannot be believed merely because she has not been cross- examined by the contesting defendant No.1 or that the defendant No.1 has not led any contra evidence. Since the burden is on P.W.1 to prove the said issue, the failure of the defendant No.1 to lead any defence evidence will not automatically entitle P.W.1 to prove her case in the absence of any convincing materials. Therefore this issue 14 O.S.No.5237/2014 will have to be answered against the plaintiffs in the negative.
14. ISSUE Nos.2 TO 5 AND 8:- Since all these issues are interconnected they are tried to avoid repetition of facts. As stated above, it is the definite case made out by the plaintiffs that suit item No.1 property is though standing in the name of defendant No.1, it is their joint family property and all have got their legitimate share in this property. Per contra this claim of P.W.1 has been categorically refuted by the defendant No.1 who has asserted her exclusive ownership and right over this property. It is material to note that even as per the claim of P.W.1 this property is the absolute property of the defendant No.1 who acquired through her mother Rangamma and the khatha is also standing in the name of the mother of defendant No.1. This fact is also proved from the Ex.P.3 khatha extract of this property which is admittedly standing in the name of the mother of the defendant No.1 Rangamma. As stated above, from this document it is revealed that the said Rangamma had leased out this property since her status has been shown as lessee in this document. This document and the contents of the same would probablise the defence of the 15 O.S.No.5237/2014 defendant No.1 that the said Rangamma had let out this property and is utilizing the rental amount.
15. It is further to be noted that the said Rangamma, the mother of the first defendant is not made as party to the present proceeding despite knowing the fact that she is the exclusive owner of item No.1 property even as per the own claim of PW1. Even she has not produced any documents to show as to how the first defendant acquired this property. The first defendant in her written statement has specifically contended that half portion of this property has been gifted to her by her mother, but still the entire extent of the property is in the exclusive possession of her mother. This fact is also fortified by Ex.P3. Under such circumstances when the defendant No.1 has not at all given possession of even her portion in this property, the plaintiffs have no right to claim any partition in this property.
16. As regards suit item No.2 property, the plaintiffs have also claimed share in this property on the grounds that it is also their joint family property. Per contra the defendant No.1 even this property to be her absolute property. It is her contention that her deceased husband Raju had applied for a site to BDA during his 16 O.S.No.5237/2014 lifetime and accordingly he was allotted this property under lease-cum-sale basis and the said document was duly registered and the possession of the said property was handed over to him and as such it was his self acquired property. She has further contended that before the expiry of lease period her husband died and thereafter the sale deed was executed in her name and her name came to be entered to the records of this property and therefore it is also her self acquired property. We have no document of title pertaining to this property produced by either P.W.1 or by the defendant No.1.
17. However P.W.1 has produced the khatha extract of Item No.2 property at Ex.P.2 which once again reveals the name of the present defendant No.1 as owner. This document admittedly does not stand in the name of the father-in-law of P.W.1. No explanation has been offered by P.W.1 as to how this document exclusively stands in the name of the defendant No.1. It is further relevant to note that though P.W.1 has claimed even this property as the joint family/coparcenery property, she has not stated nor proved as to how this property was acquired by the joint family or whether it was acquired by utilizing the joint 17 O.S.No.5237/2014 family funds. At the first instance she has utterly failed to prove the joint family nucleus so as to acquire this property to consider it as the joint family or the coparcenery property.
18. It is well established position of law that before a property could be claimed as the coparcenery or joint family property, the party must necessarily plead and prove at the first instance the existence of joint family and thereafter joint family nucleus or the source of acquisition of such property is to be necessarily proved. The Hon'ble High Court in a decision reported in K. Madhav Raj Nayak v/s K. Sridhar Nayak and others in 2009(2) KCCR 1206 has well settled the position of law while dealing with coparcenery property, ancestral property and separate property. Before proceeding for further discussion with regard to the claim of the parties in the instant case it would be relevant to refer the principles laid down in this decision which read thus:-
A. Hindu Law property - Coparcenary property, ancestral property and separate property--Availability for division in partition suit--Discussed. In this context, it would be relevant to note that the property under Hindu Law can be classified under two heads: (1) Coparcenary property and (2) separate 18 O.S.No.5237/2014 property. Coparcenary property is again divisible into
(i) ancestral property and (ii) joint family property which is not ancestral. This latter kind of the property consists of property acquired with the aid of ancestral property and property acquired by individual coparceners without such aid, but treated by them as property of the whole family. Joint family property is qualified in a twofold manner viz., it must be a joint family property and it must also be ancestral. It is obvious that there must have been a nucleus of joint family property before an ancestral joint family property can come into existence because the word ancestral connotes descent and hence, preexistence.
Where there is ancestral joint family property, every member of the family acquires in it a right by birth which cannot be defeated by individual alienation or disposition of any kind except under certain peculiar circumstances. This is equally true of joint family property, where a sufficient nucleus of the property in the possession of the members of a joint family has come to them from a paternal ancestor, the presumption is that the whole property is ancestral and any member alleging that it is not, will have to prove his selfacquisition. Similarly, where property is admitted or proved to be joint family property, but if the same has been treated by them as the property of the whole family, it is subject to exactly the same legal incidents as the ancestral joint family property. 19 O.S.No.5237/2014
Thus, coparcenery property means and includes (1) ancestral property, (2) acquisitions made by the coparceners with the help of ancestral property, (3) joint acquisitions of the coparceners even without such help provided there was no proof of intention on their part that the property should not be treated as joint family property and (3) separate property of the coparceners thrown into the common stock.
The term "ancestral property" has a special meaning in Hindu Law. That means only such property as is inherited by a male from father, father's father and father's father's father and such inheritor's son, son's son and son's son's son get an interest in it by birth. Hence, unless there is a nucleus of ancestral property with the aid of which the acquisitions are made, the acquisitions cannot be included within the concept of coparcenary property available for partition between the members of the joint family. The coparcenary property is the property held by a coparcener absolutely and free of all claims from the rest of the coparceners which is known as separate or selfacquired property.
Separate property of a person is property in respect of which other coparcenars can claim no right and on the death of the coparcener, the same is succeeded to not by survivorship but by inheritance, either testamentary or by intestate succession.
19. Thus what could be gathered from the plain reading of the proposition of law laid down in the above 20 O.S.No.5237/2014 cited decision is that in order to claim a particular property as the coparcenery property, it must be shown that such property was acquired by the coparceners with the help of ancestral property. Further though the property is also sought to be claimed as joint family property, it must be shown and proved that the joint acquisition of the coparcenery even without such help but with the intention to treat such property as the joint family property. If these essentials are absent in a case then the only interference which has to be drawn is that such property is the separate property of the coparcener.
20. It has been further well settled that ancestral property means only such property which is inherited by a male from father, father's father and father's father's father and unless there is proof of nucleus of ancestral property with the aid of which the acquisition are made, the acquisitions cannot be included within the concept of coparcenery property available for partition between the members of the joint family. None of these essentials have been satisfied by P.W.1 in the instant case since there are absolutely no pleadings by the plaintiffs that suit item No.2 property was though purchased by the deceased husband of the defendant No.1, but that it was 21 O.S.No.5237/2014 acquired with the help of the joint family nucleus. The plaint is totally silent as to these material averments. It is also not the claim of P.W.1 that there was joint family nucleus or fund available so as to acquire this property.
21. As regards item No.1 property, as discussed above at any rate this property cannot be termed as either coparcenery property or joint family property for the simple reason that this property has been admittedly acquired by the defendant No.1 through her mother and as such this property even to the extent of half portion as contended by the defendant No.1 becomes her absolute property in which neither the plaintiffs nor the rest of the defendants can claim any share. Therefore viewed from any angle it cannot be said that P.W.1 is able to establish before the Court with supporting materials to show that the suit schedule properties are the joint family or coparcenery properties so as to seek share in these properties.
22. However the learned counsel for plaintiffs has vehemently argued that the case made out by the plaintiffs will have to be accepted since there is no defence evidence from the contesting defendant No.1 nor she has cross-examined P.W.1. This line of argument 22 O.S.No.5237/2014 canvassed on behalf of plaintiffs is totally misconceived for the simple reason that at the first instance the plaintiffs themselves have miserably failed to prove the joint character or coparcenery character of the suit schedule properties so as to claim share in these properties. When the plaintiffs themselves have failed to establish their right over the suit schedule properties, they cannot rely on the weakness or infirmities crept in the defence of the defendants.
23. The law is well settled that where the Court can decide the issues involved in the case solely on the basis of the available materials and evidence adduced by the plaintiffs themselves, then the defendant need not be called upon to prove the negative aspects by entering into the witness box. My conception is supported by decision of the Hon'ble Supreme Court reported in Panduranga v/s Ramachandra in AIR 1981 SC 2235 wherein this aspect has been well settled as under:-
"Evidence Act Section 114 Party failing to appear in Court Drawing an adverse inference Question as to would arise only when there is no other evidence on record on the point in issue". 23 O.S.No.5237/2014
24. The principles laid down in the above cited decision could aptly be extended to the facts on hand since even in the instant case the plaintiffs themselves could not prove before the Court that the suit properties are their joint family properties to claim share in these properties. The plaintiffs could be non-suited on the basis of their own pleadings and evidence for which the contesting defendant No.1 need not step into the witness box. Therefore the failure of the defendant No.1 either to cross-examine P.W.1 or to adduce her own evidence has not become fatal so as to entitle the plaintiffs to seek the suit relief. Hence all these issues will have to be answered accordingly thereby answering issue Nos.2, 3 & 8 against the plaintiffs in the negative and issue No.4 & 5 in favour of the defendant No.1 in the affirmative.
25. ISSUE No.6:- The contesting defendant No.1 has specifically contended that the plaintiffs have no cause of action to file this suit and the one shown is imaginary and cannot be accepted. In view of my findings given on the above issues now it is proved that the suit item Nos.1 & 2 properties are the absolute properties of the defendant No.1 over which neither the plaintiffs nor the other defendants could lay their claim. Moreover the 24 O.S.No.5237/2014 plaintiff No.1 being the daughter-in-law of the defendant No.1 she cannot claim herself as the coparcener since she is not the daughter of the defendant No.1. As regards the plaintiff No.2, though she is the grand-daughter of the defendant No.1 and the family member of defendants, but in view of the fact that the suit schedule properties are not proved to be their joint family properties even she cannot become the coparcener so as to claim share in these properties. Under such circumstances as rightly contended by the defendant No.1 the plaintiffs have absolutely no cause of action to come up with the present suit and hence even this issue is answered in favour of the defendant No.1 in the affirmative.
26. ISSUE NO.7:- The defendant No.1 has also taken up a contention with regard to correctness of the Court fee paid by the plaintiffs on the suit relief. It is to be noted that though my predecessor-in-office has framed this particular issue, but on perusal of the written statement of the defendant No.1 it is found that there is absolutely no such contention being raised by this defendant questioning the correctness of the Court fee paid in this case. Even otherwise it is to be noted that the suit of the plaintiffs is one for partition in the schedule 25 O.S.No.5237/2014 property, but however they have valued this relief U/S 7(2) of the Karnataka Court Fees and Suit Valuation Act and accordingly paid Court fee of Rs.225/- on the basis of the revenue paid. It is to be noted that even according to their claim both the suit properties are the house properties situate within the BBMP limit. Under such circumstances certainly these properties are not the revenue lands so as to value the suit relief U/S 7 of the Act. Therefore on this count also the suit of the plaintiffs have to fail. Hence even this issue will have to be answered in the negative.
27. ISSUE No.9:- In view of the findings rendered on the above issues and in the facts and circumstances of the case, the parties to this suit having regard to their close relationship are directed to bear their own costs of litigation on this suit. In the result the Court hereby proceeds to pass the following:-
ORDER The suit filed by the plaintiffs against the defendants for the relief of partition is hereby dismissed.
No order as to costs.26 O.S.No.5237/2014
The exparte temporary injunction
granted on 11.07.2014 hereby stands
vacated.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by him on computer, carried out corrections, print out taken and then pronounced in the Open Court on this the 2nd day of November, 2021) (SAVITRI SHIVAPUTRA KUJJI) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiffs:
PW.1 : Savitramma List of documents exhibited for plaintiffs:
Ex.P1 : G-tree Ex.P2,3 : Khatha extracts Ex.P4 : Death certificate
List of witnesses examined and documents got exhibited for the defendants:-
Nil X Addl. City Civil & Sessions Judge, Bangalore.