Karnataka High Court
Smt. Sarala vs Smt. Padmavathi on 15 May, 2025
Author: K.Somashekar
Bench: K.Somashekar
1
RFA No.2676/2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MAY, 2025
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO.2676 OF 2024 (PAR)
BETWEEN
1. SMT. SARALA
D/O LATE. P. SIDDAPPA,
W/O SRI. JAYAKUMAR,
AGED ABOUT 65 YEARS,
RESIDING AT NO.1332,
SARAKKI I PHASE, J.P.NAGAR,
BENGALURU-560 078
2. SMT. PARAN JYOTHI,
D/O LATE. P.SIDDAPPA,
W/O SRI. V.SHANKAR,
AGED ABOUT 63 YEARS
RESIDING AT GURU DATTA NILAYA,
23RD CROSS, 6TH BLOCK,
JAYANAGAR, BENGALURU-560 041.
3. SMT. NALINAKSHI,
D/O LATE. P. SIDDAPPA,
W/O NARAYANASWAMY,
(CORRECT NAME LATE. C. VENKATASWAMY)
AGED ABOUT 58 YEARS,
RESIDING AT NO.1332,
SARAKKI I PHASE, J.P.NAGAR,
BENGALURU-560 078
4. SRI. J. MANOJ KUMAR,
S/O LATE. JAGADISH KUMAR,
AGED ABOUT 38 YEARS
(CORRECT AGE 30 YEARS)
R/AT NO.1332, SARAKKI I PHASE,
J.P.NAGAR, BENGALURU-560 078
2
RFA No.2676/2024
5. KUMARI. J. HARSHITHA
D/O LATE. JAGADISH KUMAR,
AGED ABOUT 30 YEARS,
(CORRECT AGE 24 YEARS)
RESIDING AT NO.1332,
SARAKKI I PHASE, J.P.NAGAR,
BENGALURU-560 078
...APPELLANTS
(BY SRI K K VASANTH, ADVOCATE)
AND
1. SMT. PADMAVATHI
W/O S. JAGADISH KUMAR,
AGED ABOUT 55 YEARS,
2. MISS. NITHYASHREE,
D/O S. JAGADISH KUMAR,
AGED ABOUT 35 YEARS
RESPONDENT NO.1 AND 2 ARE
R/AT NO.21/1, NANDANAVANAM
C STREET, JOGUPAPLYA, ULSOOR,
BENGALURU-560 008.
SMT. RUKMINI,
D/O LATE. P. SIDDAPPA,
W/O SRI. RAMACHANDRA,
SINCE DECEASED BY HER LR'S
3. SRI. M.RAMACHANDRA,
S/O LATE. MUNIVEERAPPA,
AGED ABOUT 75 YEARS,
4. SRI. M.R.SHIVA PRASAD,
S/O M.RAMACHANDRA,
AGED ABOUT 48 YEARS,
5. SRI. M.R.VISHNU PRASAD,
S/O M.RAMACHANDRA,
AGED ABOUT 41 YEARS
THE RESPONDENTS 3 TO 5 ARE
R/AT NO.629/A, 17TH CROSS,
3
RFA No.2676/2024
5TH MAIN ROAD, 2ND STAGE,
INDIRANAGAR, BENGALURU-560 008.
SMT. JAYAMMA,
W/O P. SIDDAPPA,
SINCE DECEASED BY HER LR'S
VIZ., APPELLANTS NO.1 TO 5 AND
RESPONDENTS 1 TO 5
(JAYAMMA DIED ON 18.11.2008)
SRI. JAGADISH KUMAR,
S/O LATE. P.SIDDAPPA,
SINCE DECEASED BY HIS LR'S
APPELLANTS NO. 4 AND 5 AND
RESPONDENTS NO.1 AND 2
(JAGADISH KUMAR DIED ON 9.10.2002)
SMT. VASANTHA (VASANTHA KUMARI),
D/O LATE. P.SIDDAPPA,
W/O LATE. VEERANNA
...RESPONDENTS
(BY SRI P D SURANA, ADVOCATE FOR R1 & R2
SRI S V MANJUNATH, ADVOCATE FOR R3 TO R5)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SEC.96 OF
CPC., AGAINST THE ORDER DATED 22.11.2024 PASSED ON
FDP.NO.82/220 BY I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU., PARTLY ALLOWING THE PETITION FILED UNDER
ORDER 20 RULE 18 OF CPC., TO DRAW FINAL DECREE FOR
SEPARATION.
THIS RFA HAVING BEEN HEARD AND RESERVED ON
18-3-2025, COMING ON FOR PRONOUNCEMENT, THIS DAY,
VENKATESH NAIK T. J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE VENKATESH NAIK T
4
RFA No.2676/2024
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE VENKATESH NAIK T.) This appeal is filed by the appellants/defendant Nos.5, 6, 7, 8 and 9 challenging the order dated 22.11.2024 passed in FDP No.82/2020 by learned I Additional City Civil and Sessions Judge, Bengaluru (CCH-2).
2. For the purpose of convenience, the parties are referred to as per their rankings before the trial Court. The appellants are defendant Nos.5 to 9 and the respondents are plaintiff Nos.1, 2 and defendant Nos.3, 1, 2 and 4 respectively.
3. The brief facts of the case are that respondent Nos.1 and 2 (plaintiffs) had filed FDP No.82/2020 against the appellants and other respondents before FDP Court, to draw a final decree for separation of their share of 973/2520 in respect of the suit schedule properties and for separate possession and also mesne profits of their share pursuant to the judgment and decree passed in O.S.No.5633/2000 dated 07.04.2014 and the judgment and decree passed in RFA No.916/2014 dated 15.05.2020, modifying the share. The appellants being defendant Nos.5 to 9 in FDP No.82/2020 filed their statement 5 RFA No.2676/2024 of objections to the application filed under Order XX Rule 18 of CPC before FDP Court. In FDP proceedings, respondent Nos.1 and 2 had filed an application under Order XX Rule 18 of CPC for grant of mesne profit and also filed IA No.II under Order XXVI Rule 13 of CPC for appointment of Court Commissioner, hence, the FDP Court appointed one Arun R, Advocate, as Court Commissioner, who visited the schedule property and submitted his report on 26.07.2024, based on the market value of the schedule properties and without ascertaining actual market value of the property, he has submitted his report, which is not in accordance with law. Hence, the appellants had filed objections to the Court Commissioner's report. The appellants also filed memo for division of schedule properties, simplifying the allotment of shares in accordance with guidance value, without dividing the properties into several shares and suggesting the simple modalities to allot shares, considering the good relationship of the parties and possession and residence of appellant Nos.4 and 5. However, the FDP Court without considering the memo for proper division of the schedule properties as suggested by the appellants, erred in allowing the petition filed under Order XX Rule 18 of CPC in-part, by accepting the Commissioner's Report, wherein, the 6 RFA No.2676/2024 FDP Court directed to draw final decree in terms of the report of Court Commissioner and sketch produced along with report in respect of suit schedule 'A' and 'B' properties.
4. Being aggrieved by the judgment and final decree passed in FDP No.82/2020, the appellants have filed this appeal.
5. After institution of the FDP proceedings, the respondents appeared through their counsel before FDP Court and submitted that the Court may pass suitable shares in terms of the decree.
6. Heard learned counsel for appellants and respondent.
7. Learned counsel for the appellants vehemently contended that the impugned order passed by FDP Court is liable to be set aside as the same suffers from arbitrariness besides being perverse. The learned trial judge ought to have rejected the report of the Court Commissioner, which is not only cumbersome, but also complicated one and the same cannot be understood by any prudent man. The Court Commissioner has grossly erred in accepting the valuation of the properties given by respondent Nos.1 and 2 without any 7 RFA No.2676/2024 basis whatsoever and moreover, respondent Nos.1 and 2 had not produced any documents in support of the imaginary valuation given by them. The Court Commissioner ought to have made necessary enquiry to secure the tentative value of the schedule properties either by securing necessary documents or by taking the assistance of the experts to arrive at the market value of the property, but, however in this case, the Court Commissioner was simply carried away by the imaginary valuation given by respondents Nos.1 and 2 to suit their convenience, as the ascertainment of the market value should be the first and foremost thing before proceeding to submit the report. In the absence of the above said facts, the Court Commissioner ought to have taken the guidance value of the properties.
8. Further, it is contended that the appellants herein have given memo of instructions to the Court Commissioner for taking measurement of the existing properties and also receive the keys in respect of Shedule C2 property from the receiver Sri. Kiran Kumar and suggest the modalities to divide the properties amicably without dividing certain properties by metes and bounds as Schedule 'A' and 'B' properties are larger properties and Schedule C1 and C2 are smaller properties and 8 RFA No.2676/2024 however, the Court Commissioner's report on the face of it appears to be in the favour of respondent Nos.1 and 2, by neglecting the interest of the other parties.
9. It is further contended that the Court Commissioner has erred in dividing Schedule 'A' property into four portions, viz., allotting 1882 sq.ft in favour of respondent No. 1 and 2, 1315 sq.ft in favour of appellants Nos.4 and 5, 860 sq.ft in favour of share of deceased Vasantha Kumari and 470 sq. ft in favour of respondents Nos.3 to 5 herein being the LR's of deceased Rukmini and allotted Schedule 'C1' property in favour of respondents Nos.1 and 2. Thus, the Court Commissioner allotted excess area than the one respondents No.1 and 2 were entitled to, without considering feasibility of the same.
10. It is further contended that the Court Commissioner has also erred in allotting Schedule 'B' property in favour of appellants Nos.1 to 3 herein and allotting schedule 'C2' property in favour of respondent Nos.3 to 5 herein, in addition to 470 sq.ft in schedule 'A' property and directing appellant No.3 herein to pay Rs.9,80,280/- to them without any justifiable reasons.
9RFA No.2676/2024
11. It is further contended that respondent No.1 herein was married to Jagadeesh Kumar on 01.06.1987 and she gave birth to Respondent No.2 on 28.06.1988 and she left the matrimonial home in the year 1989 along with respondent No.2 and thereafter she never joined her husband and on the other hand she went on filing criminal cases against him and at last, respondents No. 1 and 2 had filed O.S No.5633/2000 against the mother-in-law of respondent No.1 and grandmother of respondent No.2 Smt.Jayamma and against the husband of respondent No.1 and father of respondent No.2 Sri.S.Jagadeesh Kumar and his five sisters viz., Rukmini, Vasantha Kumari, Rani Sarala Devi, Paranjyothi and Nalinakshi, for partition and separate possession of their 1/3rd share in all the schedule properties. However, the said Jagadeesh Kumar died on 09.10.2002 and appellants No.4 and 5 got impleaded as defendants being the LR's of said Jagadeesh Kumar, who were born to him through his second wife Smt.Manjula and the said Jayamma also died on 18.11.2008. Thus, respondents No.1 and 2 had no sentimental value towards family members and also the properties and as such it is just and feasible to allot share in the Schedule 'B' property along with respondents No.3 to 5 10 RFA No.2676/2024 herein, who are in good terms and in cordial relationship, which value of the property was more than the value of their share.
12. It is further contended that appellants Nos.1 to 3 having taken care of their father, mother and their only brother and also appellants No.4 and 5 and having sentimental value of their ancestral home and they being in good terms, it is feasible to allot schedule 'A' property to them, who would be in a position to enjoy the said property jointly and develop the same without any hassle.
13. Further that appellant Nos.4 and 5 being taken care of by their grand mother and their paternal aunties and they being residing in schedule 'C1' property, it is feasible to allot the same in their favour, as the same is the only residence for them to reside and they are taking care of themselves after the demise of their paternal Aunt Smt. Vasantha Kumari and they do not have any other lucrative avocation. Appellant No.4 having secured a law degree in the year 2016, he has started his law practise in various courts at Bengaluru and appellant No.5 herein has just completed her education. However, it is feasible to allot schedule 'C2' property to the share of deceased Vasantha Kumari, who has bequeathed her undivided share in 11 RFA No.2676/2024 the schedule properties in favour of appellants Nos.4 and 5 herein. On the other hand, respondent No.2 and her husband are MBBS. MD (ENT) Doctors by profession and they are gainfully employed.
14. It is contended that, it is feasible to allot shares to the respective parties in the Schedule properties as follows:
a) Value of schedule A property 4528.44 sq.ft X Rs.5760 = Rs.2,60,83,814.40/-
b) Value of schedule B property 3,066.80 sq.ft X Rs.13,935 =Rs.4,27,35,858/-
c) Value of schedule C1 property 1,830 sq.ft X Rs.7,269 =Rs.1,33,02,270/-
d) Value of schedule C2 property 243.63 sq.ft X Rs.26,410 =Rs.64,34,268.30/-
Total Value of the properties: 8,85,56,210.70/-
e) Respondent No.1 and 2 together are entitled to 973/2520 share and the same works out to Rs.3,41,92,536/-
f) Respondent No.3 to 5 are together entitled to 237/2520 share the same works out to Rs.83,28,500/-
12RFA No.2676/2024
g) Respondents No.1 to 5's share put together, their share works out to Rs.4,25,21,036/-. They being in good harmony, the schedule B property is feasible to be allotted to their share, directing them to pay Rs.2,40,822/- to makegood to the share of Smt. Vasantha Kumari.
h) Appellants No.1, 2 and 3 being sisters' having the sentimental value to their ancestral property i.e., the A schedule property is feasible to be allotted them as their 237/2520 share which works out to Rs.83,28,500/- each and if it is put together, it works out to Rs.2,49,85,500/. As the total value of the A schedule property being Rs. 2,60,83,814.40/-, directing them to makegood the value of the Vasantha Kumari by paying Rs.10,98,314/-.
i) Appellants No.4 and 5 being brother and sister, who are residing in schedule C1 property, the same is feasible to be allotted to them. Their share if put together 362/2520, which works out to Rs.1,27,21,170/-, directing them to pay Rs.5,81,100/- to the share of Smt. Vasantha Kumari.
j) It is feasible to Allot schedule C2 property to the share of deceased Vasantha Kumari as share being 237/2520, which works out at Rs.83,28,500/-.
The value of C2 property works out at Rs. 64,34,268.30/- + payment of Rs.2,40,822/- by respondents No.1 and 2, Rs.10,98,314/- by appellants No.1 to 3 and Rs.5,81,100/- by appellants 13 RFA No.2676/2024 No.4 and 5, as the schedule C2 property is a small property for which appellants No.4 and 5 are entitled to as per the will dated 09.10.2020 executed by the said Vasantha Kumari in their favour.
15. It is further contended that, the above said allotment is just and proper without causing any embarrassment or inconvenience to any of the parties, much less, the respondents herein.
16. Further, without taking the above said cut and clear position into consideration, the learned trial judge has erred in passing the impugned order by accepting the report of the Court Commissioner, though the same is not convincing, but also confusing and not in accordance with all cannons of law.
17. It is further contended that, it is always advisable to simplify the matter rather than complicating it, so as to put the parties in proper and just position to avoid any future claim or complication or disharmony against one another and also keeping in mind to encourage future development of the immovable properties. As such, acceptance of Court Commissioner's report, as is where is status, by the learned trial judge, without considering the objections raised by the 14 RFA No.2676/2024 appellants and the memo for just and proper division of the schedule properties filed by them and without examining the Court Commissioner is liable to be set aside by directing the trial court to exercise its jurisdiction in conveniently dividing the schedule properties as per the suggestions made by the appellants so as to resolve the dispute between the parties once and for all, after examining the Court Commissioner's report. Hence, learned counsel for the appellants prayed to allow the appeal.
18. In support of his contentions, learned counsel for appellants relied upon following judgments:
1. AIR 2002 SC 2066 reported in the case of M.L. Subbaraya Setty and others v. M.L. Nagappa Setty and Others;
2. ILR 2003 KAR 4558 reported in the case of Vasudeva Murthy, since dead by his LRs and Others v. Mariyappa, since dead by his LRs and others.
19. Per contra, learned counsel for the respondents contended that the first plaintiff Smt. Padmavathi is the mother of second plaintiff Nithyashree (respondent Nos.1 and 2 in the present appeal). One Siddappa was the propositor. He and his 15 RFA No.2676/2024 son Jagadeesh Kumar were the coparceners of the family, each having half share in the suit properties. Siddappa expired in the year 1975 leaving behind his wife Jayamma (first defendant), his son Jagadeesh Kumar (defendant No.2), his daughters namely Smt. Rukmini (defendant No.3), since deceased by her legal representatives viz., respondent Nos.3 to 5 in the present appeal. Smt. Vasantha Kumari (defendant No.4) expired during the pendency of FDP proceedings and her share was allotted to appellant Nos.4 and 5(children of defendant No.2 Jagadeesh Kumar, born through his 2nd wife-Manjula). Another daughter Smt. Sarala (defendant No.5) is the first appellant in this appeal, Smt. Paran Jyothi (defendant No.6) is the second appellant in this appeal, Smt. Nalinakshi (defendant No.7) is third appellant in FDP. Appellant No.4 - Manoj Kumar and appellant No.5-Harshitha are son and daughter of Late Jagadeesh Kumar, who are defendant Nos.8 and 9 respectively.
20. Plaintiff Nos.1 and 2 had filed a suit for partition in O.S.No.5633/2000 for the relief of partition and separate possession in respect of A, B and C schedule properties. During the pendency of the suit, i.e., 09.10.2002, son Jagadeesh Kumar (defendant No.2) died. Ultimately, suit was decreed and the trial Court granted shares to the parties. Thus, respondent 16 RFA No.2676/2024 Nos.1 and 2 herein have filed FDP No.82/2020, against the appellants and other respondents herein before the I Additional City Civil and Sessions Judge, Bengaluru, CCH-2, to draw a final decree for separation of their share of 973/2520 of the schedule properties and for separate possession and also for mesne profit of their share, pursuant to the judgment and decree passed in OS No.5633/2000 dated 07.04.2014 and the judgment and decree in RFA No.916/2014 dated 15.05.2020, modifying the shares. The appellants herein have filed statement of objections to the petition filed by respondents Nos.1 and 2 under Order XX Rule 18 of CPC.
21. Further, respondent Nos.1 and 2 having filed IA No.2 in FDP No.82/2020 under Order XXVI Rule 13 of CPC, the learned trial judge appointed one Sri. Arun. R, Advocate as Court Commissioner, who has submitted his report on 26.07.2024, basing on the market value of the schedule properties as stated by respondent Nos.1 and 2.
22. Ultimately, the FDP Court allowed the petition in-part and granted shares to the parties in terms of the report of the Court Commissioner.
17RFA No.2676/2024
23. Being aggrieved by the order passed by the FDP Court, the appellants have preferred this appeal.
24. We have perused the appeal memo, order of FDP Court and evidence of the parties and the Court Commissioner's report.
25. In order to prove their case, appellant No.1/plaintiff No.1) was examined on oath as PW.1. In her chief examination, she has reiterated the averments made in the suit.
26. In the evidence of PW.1, there is no averment or any evidence regarding disproving of Will that was claimed by respondent Nos.8 & 9. In the cross-examination of PW.1, the counsel for respondent Nos.8 & 9 has suggested that, respondent No.4 deceased Smt. Vasantha Kumari executed the Will in favour of respondent Nos.8 & 9 regarding her share in the suit schedule properties, however, PW.1 denied it.
27. Respondent No.8 Sri. Manoj Kumar was examined on oath as RW.1. RW.1 has deposed that, on 12.01.2023, Smt. Vasantha Kumari died. He performed her last rites. Thereafter, on 24.01.2023, one Sri. Navaneetha V Swamy and respondent No.7 Smt.Nalinakshi came to his house and handed over the document stating that, Smt. Vasantha Kumari has 18 RFA No.2676/2024 executed the registered Will on 09.10.2020 in the presence of Sri. Navaneetha V Swamy and one Rakshit R. The Will is registered in the office of Sub-Registrar, Jayanagar, Bengaluru. The said Will is marked as per Ex.R.2. As per the judgment passed in RFA No.916/2014, Smt. Vasantha Kumari being respondent No.4 is entitled for 237/2520th share in the suit schedule properties along with proportionate mesne profit. Hence, after the death of Smt. Vasantha Kumari, the Will came into effect and as per the Will, respondent Nos.8 & 9 together entitled for share of Smt. Vasantha Kumari i.e., 237/2520th share.
28. In the cross-examination of RW.1, the counsel for the petitioners has suggested that, in the partition suit filed between the husband of Smt. Vasantha Kumari and his brothers, respondent No.1 has filed application stating that, he is adoptive son of Smt. Vasantha Kumari, for which, RW.1 denied. RW.1 admitted that, during the lifetime of Smt. Vasantha Kumari, she was paying the taxes in respect of the suit schedule properties. RW.1 admitted that, prior to the death of Smt. Vasantha Kumari, RW.1 and his sister i.e., respondent No.9 were residing with Smt. Vasantha Kumari in 19 RFA No.2676/2024 the suit schedule 'C' property. In the year 2018, they shifted to the suit schedule 'A' property.
29. RW.1 further admitted that, one Sri Premnath, Advocate was representing him in O.S.No.5633/2000. RW.1 has pleaded ignorance that, said Sri. Premnath, Advocate, has drafted the Will Ex.R.2. RW.1 denies that, he himself has created the Will Ex.R.2. RW.1 admitted that, as on the date of death of Smt. Vasantha Kumari, Sri. Navaneetha Swamy had come to the house of Smt. Vasantha Kumari. RW.1 admitted that, in the year 2019, when the husband of Smt. Vasantha Kumari expired, at that time, he himself, his sister i.e., respondent No.9 and Smt. Vasantha Kumari were residing jointly. RW.1 denied that, after the death of husband of Smt. Vasantha Kumari, he got created the Will in respect of all the properties of Smt. Vasantha Kumari. RW.1 denied that, at the time of execution of the Will on 09.10.2020, Smt. Vasantha Kumari was not physically and mentally fit. RW.1 denied that, he himself prepared Will and asked the witnesses to come to the Sub-Registrar's office and got it registered. RW.1 denied that, from 3 years prior to the death of Smt. Vasantha Kumari, she was completely depending on him i.e., RW.1. 20 RFA No.2676/2024
30. RW.2 Sri.Navaneetha V Swmay is the attesting witness to the Will Ex.R.2. RW.2 is a Doctor by profession. In his evidence, he has stated that, he was giving medical advise to deceased Smt. Vasantha Kumari, hence, Smt. Vasantha Kumari was having love and affection towards him and she asked him to accompany her at the time of execution of the Will. Accordingly, Smt. Vasantha Kumari executed the Will in his presence as per Ex.R.2, to which, he has put his signature as attesting witness. At the time of execution of the Will, Smt. Vasantha Kumari was hail and healthy and she had control over all her senses and capable of understanding the pros and cons of execution of the Will. As she had no issues, Sri. Manoj Kumar and Harshitha J i.e., respondent Nos.8 & 9 were dependent on her and she was taking care of them, in turn, they were also taking care of Smt. Vasantha Kumari with all love and affection.
31. RW.2 in his cross-examination has admitted that, from last 20 years, Smt. Vasantha Kumari was suffering from diabetes and heart related diseases. Smt. Vasantha Kumari also suffered COVID-19. RW.2 has denied that, as on 09.10.2020, Smt. Vasantha Kumari was bedridden. RW.2 has stated that, Smt. Vasantha Kumari had drafted the Will from 21 RFA No.2676/2024 Advocate Sri. Premnath. RW.2 denied that, RW.1 Sri. Manoj Kumar had participated in drafting the Will. RW.2 admitted that, as on 09.10.2020, respondent No.8 was residing with Smt. Vasantha Kumari.
32. In this case, respondent No.4 Smt. Vasantha Kumari is the aunt of (Father's sister) respondent Nos.8 & 9. Smt. Vasantha Kumari was issueless. Respondent Nos.8 & 9 were residing with Smt. Vasantha Kumari and Smt. Vasantha Kumari was taking care of respondent Nos.8 & 9 from their childhood. It is not the case of the petitioners that Smt. Vasantha Kumari was having any special love and affection towards anybody other than respondent Nos.8 & 9. Thus, Smt. Vasantha Kumari was taking care of respondent Nos.8 & 9 from their childhood and till the last breath of Smt Vasantha Kumari, respondent Nos.8 & 9 were residing with her, naturally she will have love and affection towards respondent Nos.8 and 9, who are none other than the children of her brother.
33. On perusal of Ex.R.2 Will and evidence of RWs.1 & 2, there is nothing unnatural or there are no suspicious circumstances to believe that, the Will Ex.R.2 might be created 22 RFA No.2676/2024 etc. It is common behavior of a human that the person, who takes care in the evening of his life will be benefited by his property or other things.
34. Smt. Vasantha Kumari was an educated lady and she was aged about 65 years at the time of execution of the Will. Ex.R.2 Will is a registered document. Smt. Vasantha Kumari appeared in the office of the Sub-Registrar.
35. RW.2 is the attesting witness to the Will, who has naturally deposed before the Court that, he is a Doctor by profession and Smt Vasantha Kumari was taking medical advise from him. He was also visiting the house of Smt. Vasantha Kumari and Smt. Vasantha Kumari was having love and affection towards him. Smt. Vasantha Kumari asked him to accompany to the office of the Sub-Registrar and accordingly, he has seen Smt. Vasantha Kumari executing the Will as per Ex.R2. He has put his signature to Ex.R2 as Ex.R2(a). RW.2 has identified the signature of Smt. Vasantha Kumari on Ex.R2 Under all these circumstances, respondent Nos.8 & 9 have proved that, they succeeded to the estate of respondent No.4 Smt. Vasantha Kumari by virtue of the Will Ex.R.2. 23 RFA No.2676/2024
36. In the instant case, the Will Ex.R2 executed by Smt. Vasantha Kumari has been proved to be genuine and validly executed by her, wherein she has bequeathed her entire property to her brother's son and daughter. Admittedly, Ex.R2 Will is a registered instrument. To substantiate the contentions of the appellants, they have not produced any documents.
37. Before the FDP Court, the Court Commissioner was appointed to prepare scheme of partition to allot the petition schedule properties to the parties in view of the order passed by Co-ordinate Bench of this Court in RFA No.916/2014. The Commissioner issued the warrant and pursuant to the same, both the parties submitted their memo of instructions and after considering such memo of instructions, the Court Commissioner executed the Commission work, measured the property and prepared sketch of suit schedule A and B properties with the aid of Civil Engineer. Before the FDP Court, respondent Nos.5 to 7 had filed objections to the report of the Court Commissioner on the ground that, the guidance value of the suit property is lower than the valuation furnished by the petitioners. In fact, the Commissioner has not taken into consideration the prevailing market value of the suit schedule 24 RFA No.2676/2024 properties. Respondent Nos.8 and 9 are also claiming their share by virtue of Will Ex.R2.
38. We have perused the report of the Court Commissioner. It appears that the Court Commissioner had issued Commission warrant, he received memo of instructions from the concerned parties, he visited the schedule properties after issue of notice, got measured the properties and the petitioners and respondents were present at the time of measurements. As per the report of the Commissioner:
'A' schedule property is measured at 4528.44 sq.ft, 'B' schedule property is measured at 3066.8 sq.ft, C1 schedule property is measured at 1830 sq.ft and C2 schedule property is measured at 243.60 sq.ft.
39. Accordingly, the Commissioner allotted shares as under:
Plaintiff No.1/respondent No.1, the wife of Late Jagadish Kumar(defendant No.2) was allotted share at 162/2520.
Plaintiff No.2/respondent No.2, the daughter of Late Jagadish Kumar was allotted share at 811/2520, thus, 25 RFA No.2676/2024 petitioner Nos.1 and 2 together were entitled to 973/2520 share.
Accordingly, the plaintiffs were allotted shares in Schedule A property - 4528.44 x 973/2520 = 1748.52 sq.ft B schedule -3066.8 x 973/2520 = 1184.15 sq.ft C1 property -1830 x 973/2520 = 706.60 sq.ft C2 property - 243.60 x 973/2520 = 94.06 sq.ft So also, defendant No.3(a) to (c)/respondent Nos.1 to 3 who are heirs of deceased Smt. Rukmini(defendant No.3), they are entitled to one share of Smt. Rukmini at 237/2520th, similarly, defendant Nos.3 to 7 are also entitled to 237/2520th share each which are as under:
A schedule property 4528.44 x 237/2520 = 425.9 sq.ft B schedule property 3066.8 x 237/2520 = 288.43 sq.ft C1 schedule property 1830 x 237/2520 = 172.11 sq.ft C2 schedule property 243.60 x 237/2520 = 22.91 sq.ft In this case, by virtue of Commissioner's report and registered Will executed by defendant No.4-Vasantha Kumari, respondent Nos.8 and 9 are also entitled to 181/2520 share each which is as under:26 RFA No.2676/2024
A schedule property 4528.44 x 362/2520 = 650.56 sq.ft B schedule property 3066.8 x 362/2520 = 440.58 sq.ft C1 schedule property 1830 x 362/2520 = 262.09 sq.ft Item No.2 property 243.60 x 362/2520 = 35 sq.ft Further, the Commissioner has calculated the share of the parties in the suit schedule properties and thereafter as per the valuation arrived at, he has divided the suit schedule properties.
40. It is well settled that preliminary decree only declares the share of the parties and the properties that are to be divided. The properties are to be divided by metes and bounds in the final decree proceedings and while doing the same, the object would be to preserve protect and respect possession as far as possible. It is well settled that merely because the decree declares that the suit schedule A property is proposed to be allotted to the petitioners, respondent Nos.8 and 9, respondent No.4 and also respondent Nos.1 to 3 i.e., 3(a) to (c) and as per the sketch of the suit schedule 'B' property, it is proposed to be allotted to respondent Nos.5, 6 and 7 as per the Commissioner's report, what is to be borne in mind is that, only requirement is that the property allotted to each co-sharer in 27 RFA No.2676/2024 correspondence to his share and it is also well settled that Court should make an endeavour to equalise the share which is recognised in law by making provision for payment of owelty. The law of the land on the subject has been laid down by the Hon'ble Supreme Court in the case of M.L.SUBBARAYA SETTY(Dead) by LRs and Others vs M.L. NAGAPPA SETTY(dead) by LRs and Others reported in AIR 2002 SC 2066 wherein, the Hon'ble Apex Court held as follows:
"28. xxxxxxxxxxxx The direction that the plaintiff is entitled to 2/19th share in the joint family property and that he shall be put in separate possession of the properties giving him share by metes and bounds does not mean that every item of the property is to be divided between co-sharers. It is correct that the only requirement is that property allotted to each co-sharer should bear approximately the same value as corresponds to his share. It may also not be necessary that if the properties consist of movable and immovable properties then each party must necessarily be given a share in all movable and immovable properties. While effecting partition of joint family properties, it may not be possible to divide every property by metes and bounds. The allocation of properties of unequal value may come to the share of a member of a joint family at the time of effecting partition but for that necessary adjustments have to be made. It can also happen that some of the co-sharers on partition may not get any share in immovable property. No hard and fast rule can be laid. It depends upon the facts of each case. It depends upon the nature of the immovable property and number of such properties as also the number of members amongst whom it is required to be divided. Properties of a larger value may go to one member. Property of lesser value may go to another. What is necessary however, is the adjustment of the value by 28 RFA No.2676/2024 providing for payment of one who gets property of higher value. In short, there has to be equalisation of shares."
"29. Another question to be determined is as to the date of valuation of the properties in a suit for partition. Ordinarily, it has to be the date of the passing of the final decree and not the date of filing of the suit for partition. In a given case, however, there may be exception of this general rule. It is a matter of common knowledge that such suits for partition take considerable time for disposal. There is a big time lag between date of filing of the suit and date of the decision thereof. There is also considerable lapse of time between passing of preliminary decree and passing of final decree. Take the present case, suit was filed in the year 1948, preliminary decree proceedings were finalised in 1971 by decision of this Court. Thereafter more than 30 years have elapsed, the parties are still no way near the final partition. It would be absurd if it was to be held that the valuation of 1940 or 1948 should be taken. It is also possible that in a given case, the value of one property may appreciate drastically while not so in the case of other properties or it may even decline and some of the parties may be in possession of those properties. It has been the endeavour of the Courts in such suits to protect, preserve and respect the possession of the parties as far as possible. While so protecting, there has to be equalisation of shares which has been recognised in law "by making a provision for payment of owelty."
41. It is clear from the perusal of the order passed by the trial Court that the Commissioner has taken into consideration the feasibility of the division with respect to use and enjoyment of the properties by the parties and has prepared a detailed report. It is further held that in the present case, the Commissioner requested both the parties to furnish valuation of 29 RFA No.2676/2024 the properties, however, valuation was furnished only by the petitioners and respondents did not furnish the valuation for the reasons best known to them and on perusal of the guidance value and other material available before the Court, it was found that the valuation of the suit schedule A property was higher than the guidance value and major portion of the suit schedule A property was proposed to be allotted to the petitioners. Further, the trial court was of the opinion that when the parties, who are the owners of the property had not come forward for division of the properties, by considering the actual market value and other aspects, there was no reason to reject the Commissioner's report. It is clear that the value of the property has to be ascertained as on the date of the final decree proceedings and it is necessary if the parties so desire to appoint a commissioner to ascertain market value of the property and pass appropriate orders in the light of the principle laid by the Supreme Court in SUBBARAYA SETTY's case and having regard to facts and circumstances of this case to workout equity between the parties.
42. Another question to be determined is as to the date of valuation of the properties in a suit for partition. Ordinarily, it has to be the date of the passing of the final decree and not the 30 RFA No.2676/2024 date of filing of the suit for partition. In a given case, however, there may be exception of this general rule. It is a matter of common knowledge that such suits for partition take considerable time for disposal. There is a big time lag between date of filing of the suit and date of the decision thereof. There is also considerable lapse of time between passing of preliminary decree and passing of final decree.
43. Take the present case, suit in O.S.No.5633/2020 was filed in the year 2000, preliminary decree proceedings were concluded on 07.04.2014 and confirmed in RFA No.916/2014 on 15.05.2020 by decision of this Court. Thereafter, more than 4 years have lapsed, the parties are still no way near the final partition. It would be absurd if it was to be held that the valuation of 2000 should be taken. It is also possible that in a given case, the value of one property may appreciate drastically while not so in the case of other properties or it may even decline and some of the parties may be in possession of those properties. It has been the endeavour of the Courts in such suits to protect, preserve and respect the possession of the parties as far as possible. While so protecting, there has to be equalization of shares which has been recognized in law "by 31 RFA No.2676/2024 making a provision for payment of Owelty(a pecuniary sum paid to effect an equitable partition of property).
44. Reverting to the present case, regarding the shares etc. in possession of the plaintiffs, it already stands settled between the parties that it was an ad hoc arrangement. If the plaintiffs have dispersed those shares, then they are required to account for it. The value of those shares said to have been dissipated (dispersed) may have to be worked out. It is not possible, at this stage, to hold that such valuation is not practicable. Assuming the plaintiffs have dissipated those shares, that cannot result in denial of shares to them in the joint family properties in terms of the decree finally passed by FDP Court as referred to hereinbefore.
45. A contention was also urged that there is generally a time gap between the report of Commissioner submitted pursuant to the directions in the preliminary decree and passing of the final decree and it would not be practicable to value the assets as on the date of the final decree. There is no impracticability. Ordinarily, though it is the date of the final decree, but in reality, the date of valuation which the Commissioner takes into view in the report, is to be taken into 32 RFA No.2676/2024 consideration by the Court. But that would again depend on the facts of each case: In a given case, there may be gap of years between the date of the report of the Commissioner and the date of the final partition. In the meanwhile, there may have been a sharp increase or decrease in the value of the property or properties. In such event, the Court may have to balance the equities and pass other directions in order to partition the properties between the parties as per their respective shares. The preliminary decree declares the shares of the parties and the properties which are joint and are required to be divided between the co-sharers. Regarding valuation, reference may also be made to Order 20, Rule 18 and Order 26, Rules 13 and 14 of the Code of Civil Procedure, which read as under:
"Order 20, Rule 18. Decree in suit for partition of property or separate possession of a share therein-
Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,-
(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in 33 RFA No.2676/2024 accordance with such declaration and with the provisions of Section 54;
(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.
Order 26, Rule 13 CPC: Commission to make partition of immovable property-
Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by Section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.
Order 26 Rule 14 CPC: Procedure of Commissioner-
(1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.
(2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court, and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary 34 RFA No.2676/2024 or set aside the same.
(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied, but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit."
46. The actual partition is effected by passing of the final decree. The valuation has, thus, to be as on the date of final decree.
47. Before concluding, we wish to clarify that the observation of the High Court is that the plaintiffs are entitled to share in each of the joint family properties, mean, the actual partition of all such properties by metes and bounds. When the Court directs that the present possession of the parties shall be respected, it means that if partition of the property is to be effected, then as far as possible, the person in possession of a property should be allowed to retain it by equalization of share, but it does not mean that, a person out of possession of all immovable properties should not be allotted any part of the immovable property whatsoever. In view of the same, the FDP Court has correctly analysed the facts of the case, preliminary decree, Commissioner's report 35 RFA No.2676/2024 and granted share to the parties, which is in accordance with law, thus, do not require any interference. Hence, the appeal is liable to be dismissed.
Accordingly, we pass the following:
ORDER
1. The appeal is dismissed.
2. The order dated 22.11.2024 passed by I Addl. City Civil & Sessions Judge, Bengaluru in FDP No.82/2020 is hereby confirmed.
3. No order as to costs.
Sd/-
(K.SOMASHEKAR) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE MN