Partly allowed

Smt. Indrani Anand v. Smt. Kusuma K Arasikere

Karnataka HC18 Jan 2021RFA/357/2011

Case brief

AI extract

What is this about?

A partition dispute concerned a house gifted by the mother to one daughter and other family assets. The court held the gift non-binding on the plaintiff, awarded the two daughters equal shares, and directed an enquiry into the availability of movable assets. The plaintiff's appeal was partly allowed; the other daughter's appeal was dismissed.

What did the court decide?

Decree modified to award equal shares in item No.1 to the plaintiff and second defendant; enquiry directed into availability of item Nos.3 to 5 through parties' affidavits.

Smt. Indrani Anand Vs Smt. Kusuma K Arasikere — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JANUARY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

R.F.A.No.1124/2011

C/W

R.F.A.No.357/2011

IN RFA No.1124/2011

BETWEEN:

SMT.KUSUMA K ARASIKERE W/O KUMAR ARASIKERE AGED ABOUT 64 YEARS R/AT No.6, 1^ST CROSS 4^TH BLOCK, 3^RD STAGE BASAVESHWARANAGAR BANGALORE – 560 079.

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…APPELLANT

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(BY SRI TEJASWINI RAJKUMAR, ADVOCATE)

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AND:

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SMT.INDRANI ANAND W/O LATE SHRI ANAND AGED ABOUT 57 YEARS R/AT No.139, 29^TH CROSS 7^TH BLOCK, JAYANAGAR BANGALORE.

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PARESH KUMAR SINCE DEAD BY HIS LRs.

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2a. SMT.USHA PARESH KUMAR

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W/O LATE PARESH KUMAR AGED ABOUT 57 YEARS.

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2b. Ms.MANSI PARESH KUMAR D/O LATE PRESH KUMAR

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BOTH ARE R/AT No.27/1, PATTALAMMA TEMPLE ROAD BASAVANAGUDI BANGALORE – 560 004. …RESPONDENTS

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(BY SRI MS.RITHIKA RAVI KUMAR, ADVOCATE, INDUS LAW FOR R-1 R2(a) AND (b) ARE SERVED)

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THIS RFA IS FILED UNDER SECTION 96(1) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:19.11.2010 PASSED IN O.S.No.660/2002 ON THE FILE OF THE XLIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, PARTLY DECREEING AND PARTLY DISMISSING THE SUIT ENTITLING THE PLAINTIFF THEREIN TO TAKE SHARE IN ITEM No.1 REJECTING THE CLAIM OF THE PLAINTIFF THEREIN IN AMENDMENT APPLICATION IN RESPECT OF ITEM No.2 AND NOT ENTITLING THE PLAINTIFF TO TAKE ANY SHARE IN SUIT ITEM No.3 TO 5.

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IN RFA No.357/2011

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BETWEEN:

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SMT.INDRANI ANAND W/O LATE SHRI ANAND AGED ABOUT 57 YEARS DAUGHTER OF LATE SHRI B S SIDDALINGAIAH AND LATE SMT.PARVATHA DEVI RESIDING AT:No.139, 29^TH CROSS, 7^TH BLOCK,

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JAYANAGAR, BANGALORE – 560 082. ..APPELLANT (BY MS. RITHIKA RAVI KUAMR, ADVOCATE, INDUS LAW) AND:

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SMT.KUSUMA K ARASIKERE AGED ABOUT 64 YEARS W/O SRI KUMAR S ARASIKERE D/O LATE SRI B S SIDDALINGAIAH AND LATE SMT.PARVATHA DEVI RESIDING AT No.6, 1^ST CROSS 4^TH BLOCK, 3^RD STAGE BASAVESHWARANAGAR BANGALORE – 560 079. REPRESENTED HEREIN BY HER GPA HOLDER: SHRI KUMAR S ARASIKERE.

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SHRI PARESH KUMAR SINCE DEAD BY HIS LRs

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2a. SMT.USHA PARESH KUMAR W/O LATE PARESH KUMAR AGED ABOUT 51 YEARS.

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2b. MS.MANSI PARESH KUMAR D/O LATE PARESH KUMAR AGED ABOUT 33 YEARS. BOTH ARE RESIDING AT 27, PATALAMMA STREET SOUT END CIRCLE BASAVANGUDI, BANGALORE. …RESPONDENTS (BY SRI MS.TEJASWINI RAJKUMAR,

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ADVOCATE FOR R1. R2(a) AND (b) ARE SERVED)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:19.11.2010 PASSED IN O.S.No.660/2002 ON THE FILE OF THE XLIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, CCH-44, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THESE APPEALS COMING ON FOR FURTHER DICTATION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These two appeals are directed against the judgment and decree dated 19-11-2010 passed in O.S.No.660/2002 by the learned XLIII Additional City

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Civil and Sessions Judge, Bangalore, wherein the suit of the plaintiff came to be partly decreed and partly

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dismissed. The operative portion reads as under:

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‘The suit is partly decreed partly dismissed.

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The plaintiff is entitled to take 1/3^rd share in suit item No.1 being an heir of defendant No1.

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The claim of plaintiff in the amendment application in respect of suit item No.2 is rejected.

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Plaintiff is not entitled to take any share in the suit item Nos. 3 to 5 as claimed by her.

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Parties to bear their own costs.

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Draw decree accordingly.”

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Being aggrieved by the said judgment and

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decree passed by the trial court, plaintiff-Kusuma K. Arasikere filed RFA No.1124/2011 and 2^nd defendant

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-Indrani filed RFA No.357/2011.

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In RSA 1124/2011, plaintiff-Kusuma K.

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Arasikere has sought to set aside the finding of the

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learned trial Judge in O.S.No.660/2002 in respect of issue Nos. 1 to 5,7 and 10 as against the plaintiff and

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to hold that the suit schedule properties are joint family properties and to declare that the Will Ex.D10

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has not proved and hence it is null and void.

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In RSA 357/2011, 2^nd defendant -Indrani has

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sought to set aside the judgment and decree dated

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19-11-2010 passed by the learned trial Judge in O.S.No.660/2002 insofar as 1/3^rd share in suit item No.1 has been awarded there under to each of the respondent Nos. 1 and 2 herein and to dismiss the said suit in its entirety.

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In order to avoid confusion and overlapping, the parties are addressed in accordance with the rankings held by them before the trial court.

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Plaintiff-Kusuma K. Arasikere filed original suit against defendants for partition and separate possession of her share in the suit schedule properties and consequential relief of permanent injunction to restrain the defendants from alienating or crating any permanent or temporary interest, right, title in favour of third parties or interest between them to the extent of plaintiff’s share.

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The substance of the case of the plaintiff is:

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One Sri. B.S.Siddalingaiah is the father of

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plaintiff and defendant Nos. 2 and 3 and husband of defendant No.1. Defendant No.3 is the son and plaintiff and defendant No.2 are the daughters of defendant No.1 and late B.S.Siddalingaiah died intestate on 24-5-1997 now in the form of defendant No.1-Parvathadevi wife, defendant No.2 Indrani, daughter, defendant No.3 Paresh kumar son and defendant No.4/Keshava Murthy is formal party.

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B.S.Siddalingaiah. had three brothers who

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got partitioned their joint family properties on 14-08-1952 through registered partition deed and B.S.Siddalingaiah. got 1/4^th share in the moveable and immoveable properties. B.S.Siddalingaiah. being the guardian of defendant No.3 sold immovable property situate at Bijjahalli, Belipura, Hunasenahalli under registered sale deed in respect of properties fallen to

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his share in the partition dated 14-08-1952. By the

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sale of said properties, he has purchased the property in the name of defendant No.1 (wife). Out of the sale consideration, suit item No.1 was purchased with a constructed portion of ground floor in the name of defendant No.1 who is a housewife throughout and has no income nor any movable or immovable property of her own. B.S.Siddalingaiah purchased suit item No.1 by selling joint family property and he also constructed the first floor.

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It is further contended that after the death of B.S.Siddalingaiah, plaintiff and defendant Nos. 1 to 3 being class one heirs succeeded to the same and plaintiff being class one heir is entitled for partition and separate possession of her share. But defendant Nos. 1 and 2 in whose custody suit items are available are trying to change its nature and to alienate them. When plaintiff demanded for her share, defendants have not complied with the same. It is further

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contended that B.S.Siddalingaiah never executed any Will and since he was holding joint family properties as kartha, he cannot execute any Will. Thus, according to the plaintiff, she claims 1/3^rd share in the schedule property.

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Defendant Nos. 1 and 2 admitted the relationship of the parties but denied all other allegations. It is the contention of defendant Nos. 1 and 2 that schedule item No.1 was never a joint family property and it was purchased by Parvathadevi on 13-2-1963 out of the money gifted by her grandfather and from certain investments made by her and denied that it was acquired by selling joint family property. It is contended that B.S.Siddalingaiah died intestate and plaintiff had received some properties specified in the Will executed by B.S.Siddalingaiah and admitted that

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plaintiff had transferred her rights with regard to suit item No.2 .

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For a moment, it is necessary to mention

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the total schedule properties and the genealogy at this stage itself, which are as under:

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“Item No.1:

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House including the ground floor and the first floor bearing No.139, 29^th Cross, 7^th Block, Jayanagar, Bangalore bounded by:

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East : House No.138; West : House No.140; North: House No.134; South: Road.

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Item No.2:

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House including open space bearing No.27, (Old 19-C) Patalamma Street, South End Circle,Basavanagudi, Bangalore, bounded by:

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East : Hotel Shop No.8; West: Road; North: House No.26; South: House No.28

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Item No.3:

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a) Consolidated coffee share No.3000 b) TataTea shares No.1500 c) Park devis shares No. 500

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d) Midland Rubber shares No.2000 Total 7000

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Worth of 5 Lakhs.

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Item No.4:

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a) Fixed deposit of four lakhs in State Bank of Mysore, Kanakapura road, Bangalore;

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b) Fixed deposit of four lakhs in the Canara Bank at Yediur Branch, Bangalore;

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c) Fixed deposit of two lakhs at Veerashiva Cooperative bank, Akkipet, Jayanagar Branch, Bangalore;

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ItemNo.5:

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a) Gold Nagaru

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b) Gold Bangles No.20

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c) Gold necklace No.4

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d) Gold necklace no.4;

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e) Pear necklace;

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f) Diamond ear studs – 3 pairs

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g) Diamond nose stud – 2 pairs

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h) Diamond rings No.4

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Total work Rs.5 lakhs.

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The genealogical tree:

B.S.SIDDALINGAIAH

(DIED ON 24.5.1997)

PARVATH DEVI

WIFE OF LATE B.S.SIDDALINGAIAH (Defendant No.1) (died during pendency on 29-7-2007)

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Kusuma K. Dr. Paresh Kumar Indrani Arasikerei (Defendant No.3) (Defendant No.2)

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(Plaintiff)

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The learned trial judge based on the materials available before him framed the following issues:

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Issues:

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“1. Whether the plaintiff proves that the suit schedule properties are the joint family properties of herself and defendants 1 to 3 ?

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Whether the defendants prove that item No.1 of plaint schedule is the self acquired property of the 1^st defendant?

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Whether the plaintiff’s plea with regard to item No.1 of the plaint schedule is hit by the provisions of Benami Transaction (Prohibition) Act, 1988?

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Whether the plaintiff proves that 1^st floor of item No.1 of the schedule property was put up by B.S.Siddalingiah?

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Whether the defendants prove that there was a portion entered into between B.S.Siddalingiah and defendant No.3 on 9.3.1978 and that item No.2 of the plaint schedule had fallen to the share of defendant No.3?

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Whether the defendants prove that during the lifetime of B.S.Siddalingiah, the plaintiff has received Rs.10 lakhs and jewellary from him?

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Whether the defendants prove that B.S.Siddalingiah had executed a Will and that the said Will is in the custody of Shivarudraswamy of Belimatt?

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Whether the 2^nd defendant proves that the 1^st defendant had executed a gift deed in her favour on 11.6.2001 and gifted item No.1 of the schedule property?

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Whether the 2^nd defendant proves that she has become the absolute owner of item No.1 by virtue of the gift deed?

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Whether the plaintiff proves that she is entitled for partition and separate possession of her share in the suit properties?

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What decree or order?”

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The learned trial judge was accommodated

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with the oral evidence of PW1-Kumar S. Arasikere and documentary evidence of Exs.P1 to P6 on behalf of plaintiff and oral evidence of DW1-Indrani Anand, DW2-Sri.Sri.Shivarudra Mahaswamigalu; DW3- Y.M. Manjunth and DW4-Shivashankar and documentary evidence of Exs.D1 to D12 on behalf of defendants.

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Upon conclusion of the trial, learned trial

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judge partly decreed and partly dismissed the suit and granted 1/3^rd share in suit Item No.1 and the claim of amendment application in respect of suit item No.2 is rejected and holding that plaintiff is not entitled from suit item Nos.3 to 5 and the same is challenged in these appeals as mentioned above.

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Before proceeding on the other aspects of

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the case, it is necessary to mention that, the family consists of one B.S.Siddalingaiah, his wife

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Paravathadevi, two daughters, namely Kusuma S. Arasikere and Indrani and one son namely Paresh kumar. B.S.Siddalingaiah, is stated to be an Advocate

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by profession and also had three brothers with properties with jointness and partition was effected between them on 14-8-1952 and said B.S.Siddalingaiah is stated to have got 1/4^th share for his kitty. It is in these background, plaintiff claims

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that other properties were also allotted in the partition to B.S.Siddalingaiah who sold among them and had sufficient funds arising from the sale of properties that fell to his share. With these, plaintiff claims that item Nos. 1 to 5 are liable to be partitioned.

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The application in respect of item No.2 is rejected by the trial court. In respect of which, I come to the discussion later.

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The bone of contention between the parties is there is no dispute regarding relationship between the plaintiff and defendants and the nature of properties. As per defendant No.2 Indrani, the scheduled property is an out and out absolute property of her mother and funds were adequate and it is purchased out of the money given by her grandfather. Similarly, gift deed was executed by her mother, who had acquired the schedule property

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through an absolute sale deed and she had every right to dispose of the property as per her decision that was done in the year 2001 by gifting the schedule property infavour of defendant No.2 Indrani.

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Though these appeals are filed under Section 96 CPC, the points of law are also involved in it regarding the nature and claim that suit schedule item No.1 is disputed regarding the nature of its ownership and on the other hand, it is the self acquired properties of mother Vs. Joint family property. In the circumstances blood relationship between the parties as stated above are not disputed.

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Heard learned counsel Smt. Tejaswini Rajkumar for plaintiff and Smt. Ritika Ravikumar for respondent No.1 in both the appeals.

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Before the trial court, plaintiff is one

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Kusuma K.Arasikere W/o. of Kumar S.Arasikere and

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defendants are: 1) Parvatha Devi W/o. late B.S.Siddalingaiah; 2) Indrani W/o. Anand; 3) Paresh Kumar S/o. B.S.Siddalingaiah; and 4) Keshamurthy.

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Insofar as, two appeals are concerned, RFA No.1124/2011 is filed by Kusuma S. Arasikere i.e., the plaintiff.

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Insofar as, RFA No.357/2011 is concerned, it is filed by Indrani Anand who is defendant No.2. The judgment and decree passed in O.S.No.660/2002 is challenged by the plaintiff and defendant No.2 in the above two appeals. Insofar as, the claim of plaintiffKusuma S. Arasikere is concerned, she is seeking 1/4^th share in the schedule properties excluding item No.2 and insofar as appeal RFA No.357/2011 is concerned, defendant No.2- Indrani Anand prays for setting aside the judgment and decree passed in O.S.No.660/2002 whereby, the trial court decreed the

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suit and ordered that 1/3^rd share of the suit item No.1

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was awarded to plaintiff – Kusuma K. Arasikere.

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Smt. Tejaswini Rajkumar, learned counsel

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for the appellant/plaintiff – Kusuma K.Arasikere, submits that the flow of events from day one disclose

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that there are activities which corroborates and confirm the existence of the joint family lead by plaintiff’s father – B.S.Siddalingaiah consisting of other members such as, mother – Parvatha Devi, sister – Indrani Anand/defendant No.2 and brother – Pareshkumar/defendant No.3. She would further submit that the schedule property consists of the following items:

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“Suit schedule Properties:-

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Item No.1: House including the Ground Floor and the First Floor, bearing No.139, 29^th Cross, 7^th Block, Jayanagar, Bangalore, bounded by:

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East : House No.138 West : House No.140

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North : House No.134 South : Road.

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Item No.2: House including open space bearing No.27 (old 19-C), Patalamma Street, South End Circle, Basavanagudi, Bangalore, bounded by:

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East : Hotel Shop No.8 West : Road North : House No.26 South : House No.28

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Item No.3:

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a) Consolidated coffee shares No.3000 b) Tata Tea Shares No.1500 c) Park devis Shares No.0500 d) Midland Rubber shares No.2000 Total shares 7000 worth of 5 lakhs.

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Item No.4: a) Fixed deposit of Four lakhs in State Bank of Mysore, Kanakapura Road, Bangalore.

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b) Fixed deposit of Four lakhs in the Canara Bank at Yediur Branch, Bangalore.

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c) Fixed deposit of Two lakhs at Veerashiva Co-operative Bank, Akkipt, Jayanagar Branch, Bangalore.

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Total worth Rs.10 lakhs.

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Item No.5: a) Gold Nagaru b) Gold waist belt No.1 c) Gold Bangles No.20

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d) Gold Necklaces No.4 e) Pearl Necklaces No.4 f) Diamond Ear Studs - 3 pairs g) Diamond Nose Studs - 2 pairs h) Diamond Rings No.4

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Total worth Rs.5 lakh and she claims equal share

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among all the siblings.

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defendants is concerned, it is reported that she died during the pendency of the suit. Regard being had to the fact that her LR’s are nothing but remaining parties to the suit. She further strenuously submitted that the gift deed – Ex.D9 stated to have been executed by late Parvatha Devi in favour of defendant No.2 – Indrani Anand on 11.06.2001 is a concocted document and the same is made against the established principles of joint family. The writing or executing the gift deed of the joint family by one of its member to the other makes no meaning and it does

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not convey the entire right and insofar as other items are concerned, there is no much dispute. Regard being had to the fact that the learned trial judge has stated that question of plaintiff’s entitlement to take any share in suit item Nos.3 and 5 of the properties,

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as claimed by her and there is no evidence. On the whole, the claim of the appellant in RFA No.1124/2011 i.e., plaintiff is the division of properties has to start

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from scratch and the properties by metes and bounds are to be effected ignoring the gift deed dated 11.06.2001 - Ex.D9.

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Learned counsel Smt. Ritika Ravikumar, for defendant No.2/Indrani Anand would submit that the property was purchased by Parvathadevi under the registered sale deed dated 13.02.1963 as per Ex.D12 and the resources for purchase of the said properties has been that her grand father helped her in buying the properties and there was no contribution of any

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sought by buying the suit schedule property from her marital house either by her husband or by offspring. She would further submit that it was within the reach of mother-Parvatha Devi who is deceased/defendant No.1 to gift the property to defendant No.2 – Indrani Anand her natural daughter. Late Smt. Parvatha Devi has passionate towards Indrani Anand and voluntarily without consideration, she gifted the schedule property in favour of second defendant – Indrani Anand. She would further submit that there is no flaws in gift deed nor it is colluded by any embargo, nor was any restraint on the same. Thus, the trial court erred seriously in considering item No.1 which is the subject matter of the gift deed also along with other items of property for effecting partition to grant 1/3^rd share to plaintiff.

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The suit was preferred by a daughter for partition. In the beginning, there were three

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defendants, such as, defendant No.1 – Parvatha Devi, defendant No.2 – Indrani Ananda, defendant No.3 – Paresh Kumar and defendant No.4 – Keshavamurthy who is a stranger.

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Parvatha Devi – defendant No.1 is reported

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dead during the pendency of the proceedings before the trial court and legally defendant No.2 and plaintiff being the daughters and defendant No.3 being the son formed the legal heirs as such, there is no separate enclosure of parties. Insofar as, defendant No.4 - Keshavamurthy is concerned, he has stated to be an old tenant in item No.1 of the property and he is not a necessary party.

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The another document also comes for consideration in the proceedings i.e., Will - Ex.D10 dated 25.12.1989 i.e., testament stated to have been executed by B.S. Siddalingaiah, who was stated to be

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an advocate by profession. In the Will he has stated that he was residing in the house belonging to his wife who purchased it on 13.02.1963 and she bequeathed the said property in favour of defendant No.2 – Indrani Anand. The testator – Siddalingaiah did not possess any movable or immovable property and he has only right to dispose of movable property consisting of gold, silver, cash, shares and other house vessels. Shares and bonds are jointly standing in the name of his wife and himself and his wife – Parvatha Devi expressed her desire to dispose it according to her request and the same is accepted by him. Thus, all the movable properties are decided to be shared among Kusuma K. Arasikere – plaintiff, then Pareshkumar – son/defendant No.3 and Indrani Anand – defendant No.2 along with Chaithnya Anand who is the son of defendant No.2.

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The properties that are allotted in favour of

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the Paresh kumar are: gold waist belt, diamond ears studs, gold Karadige which means, the covering of wholly Linga with silver metal, one wholly gold ring, two silver plates, one sprinklers and one small silver plate and one copper vessel and other copper articles were disposed of in favour of Indrani. He has maintained the equity shares numbering - 2514 of Consolidated Coffee Estate Company limited, 300 Midland shares, 220 Parkside explosive company shares. Calcutta Tata company have afforded several offers and on the basis of the same, they returned the shares to the said company. According to that shares of Tata Tea company had given in return 1257 Tata Tea Company shares and cash of Rs.1,25,000/- to be given by Tata Tea company. If shares and the money comes from Tata Tea company, 257 Tata Tea Shares and a sum of Rs.35,000/- should go to defendant No.3

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– Paresh kumar and if Rs.1,25,000/- and 1257 shares

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do not come from Tata Tea Company, 500 Consolidated Coffee shares should go to him. Fixed deposit of Rs.30,000/-, Rs.35,000/- and Rs.16,000/should go to Paresh kumar.

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For Kusuma K.Arasikere, 500 Tata Tea equity shares and if the amount does not come the Consolidated Coffee Estate shares of 1500 should go to her. Out of fixed deposits in Mysore Bank Rs.20,000/- and Rs.22,000/-, totally Rs.42,000/should go to Kusuma. Further, necklace of Navarathna, pair of bangles, a pair of pearl bangles, one pair of gomodhika ear rings and silver pooja articles also should go to Kusuma.

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Insofar as, Indrani Anand is concerned, if Tata Tea Company gives 1257 shares and a fund of Rs.1,25,000/-, 500 shares of Rs.45,000/-, fixed

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deposit Rs.40,000/- kep in Mysore bank, silver articles at home such as, silver plate, silver chombu, pooja spoon, silver plate and other items along with one silver plate and intimate sprinklers should go to her. Gold articles were given to Paresh kumar and Kusuma apart from this, excluding those articles remaining gold should go to Indrani. To Master. Chaithanaya Anand, one diamond ring, Parvathadevi diamond ring, nose stud and one gold article, the amount of Rs.10,000/receivable from Shivamurthy of Kanakapura, Rs.8,000/receivable from Jalaja, Rs.5,000/- Nagaraja, Nimhans hospital, Rs.500 to be receivable from Smt.Prema Shivaswamy who is working as servant in their home, the onida color TV should go to him. One zenith refrigerator to Kusuma and teakwood, dalla cot, national tape recorder, beds and collapsible cots and one singer stitching machine should go to Indrani Anand. He further says that if he

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were to die before his wife all the properties shall go to Parvathadevi and she can enjoy the same, later, meanwhile after her death, dispositions in the Will has to take place. The amount of Rs.3,036/- has donated to complete the Gaddige work, if it is not possible, it is to be given to Kanakapura temple. Rs.6,600/- should be go to Manasi daughter of Pareshkumar. He has appointed son-in-law-Mr.Anand husband of Indrani - defendant No.2 has executor of the Will.

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It could be seen from Will – Ex.D10 and it discloses regarding the disposal of the properties stated to have been executed by the B.S. Siddalingaiah who died intestate on 25.05.1987. It is stated that in the partition of the joint family property between B.S.Siddalingaiah and his three brothers, he got 1/4^th share in the movable and immovable properties and thereafter B.S.Siddalingaiah’s minor son - defendant No.3/Pareshkumar become the

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coparcener to the extent of 1/4^th share. Partition deed

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is marked as Ex.P2.

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B.S.Siddalingaiah sold immovable property situated at Bijjahalli, Kodihalli hobli, Kanakapura Taluk on 06.04.1964 under the registered sale deed as per Ex.P3 which was fallen to his share and out of the sale consideration which derived as stated above, he purchased and constructed portion of ground floor. The said partition deed between B.S. Siddalingaiah and his brother dated 14.08.1952 is marked as Ex.P2. B.S. Siddalingaiah sold ‘B’ schedule and there are 21 items of properties that were allotted to him. Insofar as Ex.D2 is concerned, where properties have fallen to the share of B.S. Siddalingaiah and the said partition is not disputed either by plaintiff or defendants. Some of the items are stated to have been sold and i.e., averred by the plaintiff in the pleadings. Now, the other properties are not being considered, the parties

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are not having any issue regarding non-impleading of any other properties. Moreover apart from item No.1 – residential property and item No.2 – residential house, the other properties are given goby, wherein when the particulars are given in the Will, it is not a question of stating that no properties details are coming forth. But when the details are mentioned in the Will, i.e., deposits, shares or identifiable articles, the trial court should have looked into and asked the parties to furnish details. On the other hand, trial court has mechanically written that plaintiff is not entitled to take share in the suit item Nos.1 and 2 as claimed by her does not make any sense at all, when identifiable details are given regarding movable and immovable shares, fixed deposits & savings account, the trial court should have put efforts to understand the Will.

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Now insofar as, the joint family or coparcener is concerned, the joint hindu family is not

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created by agreement, on the other hand, it comes by status. There is no concept of minimum requirement of each of the coparcener has to earn a particular amount to qualify to be a coparcener. Only requirement is a manager of joint family must be a Kartha who is free from vicious, bias, prejudice and partiality. His interest should extend over the entire family and not being favourable to one and betrayal to another.

¶211

In this connection, the genesis of the family contain in the partition as per Ex.P2 dated 14.08.1952 and in the said partition, various joint family properties are partitioned and the joint family was disrupted and B.S.Siddalingaiah tells that a fresh coparcener consisting of himself and his son – Pareshkumar existed. Thus, family separates as a abrupt family or one man’s family, on the other hand, it would coparcener. It is not necessary that every

¶212

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joint family must possess properties. There are joint families which may not possess properties or it may possess properties consisting of some of properties exclusively earned by a particular person. At the same time, blended family, so far as the joint family consisting of ancestoral property, if any property earned out of such properties, or the same is earned by the joint family members, the property separately blended into the joint family property.

¶214

As I have stated earlier, it is a question of fact that who earns what or non-earning member is demarcated from the joint family possession? Even if he was disabled, cannot earn and crippled as well, he is the member of the joint family, because, physical disability is due to of his no fault.

¶215

As I have discussed earlier Kartha’s sacred duty is of being non-prejudiceship, bias and impartial. On the other hand, the conduct of the Kartha is

¶216

¶217

studious to his conduct in managing the family. Nature of the properties of family will have to be assessed and concluded not by what Kartha says or other member says or Kartha who is either offer, tells and on the other hand, attendants circumstances, the materials available upon relevance. On the other hand, activities in a joint family properties regarding the partition is just a trial barrel. Net asset and balance sheet, wherein specific interest of each of the parties neglect. Suppose a person earning his separate properties puts into joint family property, he is acting in the interest of the joint family and he has unheard properties of the joint family. But contrary to the factor of considering the joint family property as self acquired property, whether Kartha, or senior manager who is not concerned, it is accepted, because when a person wants to declare the joint family property is his own property may be elders or Kartha

¶218

¶219

act his prejudice. Prejudice is no way not the system of joint family.

¶220

In the whole consideration,

¶221

B.S.Siddalingaiah himself tells, he got 21 items of the properties and some of them were sold and whatever it is, no material is placed to show that Parvatha Devi was capable of buying the schedule properties by herself or there is no iota evidence to show that her grand father gifted money to her to buy this property and insofar as the sale of other property is concerned, as Ex.P3 wherein, property bearing No.83 was sold for Rs.2100/- it is in the year 1964. But the purchase of the property by Parvatha Devi is in the year 1963.

¶222

To a question of this Court, the learned counsel answered that the amount in Ex.P3 was received as an advance and no amount was received at the time of registration of the property. In fact, the

¶223

¶224

earlier amount received was contribution for vending the property under Ex.P1. There is no bar for the female to earn a separate property. Of course, the present trend is she is also a coparcener. She is not only can enjoy her rights seeking partition to her and her earnings also would count now. She not only gets right of coparcener and liability of coparcener in the larger perception.

¶225

In the absence of material to show that Parvatha Devi earning separately or she had separately earned movable or immovable asset or that she was gifted or granted money and out of that money, she purchased item No.1 of the schedule property.

¶226

Learned counsel for defendant No.2 –

¶227

Indrani Anand would submit that Ex.D3 indicates the details of refund. The refund endorsement and refund

¶228

¶229

do not go to establish the quantum of income nor depict the activity. The income tax returns of 196061, 1961-62, 1962-63, 1963-64, 1964-65 appear to have filed at once on 26.06.1964. It appears to be the clever move by Parvatha Devi to claim her income tax status from 1961. She would also submit that Parvatha Devi came from affluent family and she had good resources in her and her grand father had invested substantial money in the investment shares, deposits but no document is produced in this extent except to glorify economical position of her grand father.

¶230

Per contra, as I have found earlier, the properties mentioned in item Nos.1 or 2 or even other properties are all having the valid features of the joint family and they are available for partition. No amount was declared in Will Ex.D3 or in the gift deed – Ex.P1 or in the sale deed contrary to the circumstances,

¶231

¶232

cannot be accepted. Because, material factor of the nature of the family being joint hindu family, just because kartha given one statement and has stated that it is his self-acquired properties of all of the other daughters.

¶233

In the circumstance, I find, learned trial judge has granted decree. Though he held it as joint family granted plaintiff to take 1/3 rd share in the suit item No.1. In this connection, it is further to be noted that Ex.D7 is the partition deed, wherein, Pareshkumar S/o. B.S.Siddalingaiah and B.S.Siddalingaiah themselves have partitioned the schedule property.

¶234

Thus, the document Ex.D7 dated 9.3.1978 shows that there was full fledged partition between B.S.Siddalingaiah and his family wherein item No2 of

¶235

¶236

the present schedule was allotted to him. This partition is not disputed by either of the parties.

¶237

Further, it is necessary to observe that Paresh Kumar, defendant No.3 did not appear and contest the suit in the trial court. He was set exparte. He was dead and now he is represented by his legal representatives. It is necessary to note that partition deed Ex.D7 is not disputed by either of the parties. However, plaintiff has included item no.2 in the suit schedule that was already allotted to Paresh Kumar in the partition deed dated 9-3-1978 marked as Ex.D7.

¶238

Learned counsel for plaintiff submits that originally amendment application was allowed later due to non compliance of any amendment it was rejected and more over, they are not pressing item no.2. In the over all context and subject matter of the case, item No.2 being already allotted to

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defendant No.3 Paresh Kumar now represented by his legal representatives is no more the property of the family land even plaintiff has no claim over it.

¶241

The main contention in the case is

¶242

regarding item no.1 residential house and other properties at item nos. 3 to 5.

¶243

Learned counsel for defendants would draw

¶244

attention to Section 14 of the Hindu Succession Act, wherein limited right of a hindu female is enlarged into absolute estate and her disabilities were removed and submits that whatever the property acquired by a hindu female becomes the property.

¶245

Section 14 of the Hindu Succession Act which is as under:

¶246

“14. Property of a female Hindu to be her absolute property.—

¶247

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof

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and not as a limited owner. Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

¶250

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

¶251

Learned counsel for defendant No.2 Indrani

¶252

would submit that at no point of time ;father made rival claims against Indrani. The property was purely purchased as a self acquired property and her mother out of love and affection volunteered as gifted it to Indrani and the same is not objected by father.

¶253

¶254

Basically, Section 14 of the Hindu

¶255

Succession Act has two limbs in the form of Sub Sections 1 and 2.

¶256

Under first one any property acquired by a female hindu whether before or after commencement of the act shall be held by her as the owner not as limited owner. This question would arise if he had only limited estate or has limited right and property held by female earlier to placing of the act she could have only life interest and upon her death that would devolve on nearest male heir who is called as reversioner. The right of reversioner is termed as spec successness. Here that question does not arise. The fact remains that property was purchased in the year 1963 admittedly after the enforcement of the Act and sub section 2 is not applicable to the case on hand.

¶257

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Learned counsel for appellant/plaintiff Kusuma K.Arasikere, relied on the following

¶259

judgments:

¶260

(i) Mangal Singh V.Harkesh – AIR 1958 All 42;

¶261

(ii) Bhimavarapu Subba Reddy Vs.Nagireddy and another – AIR 1973 AP 184;

¶262

(iii)Jaswant Kaur Vs. Amrit Kaur and others (1977) 1 SCC 369;

¶263

(iv) K. Lakshmanan vs.Thekkayil Padmini and others (2009) 1 SCC 354.

¶264

So also, Learned counsel for

¶265

appellant/defendant No.2 relied on the following judgments:

¶266

(i) Gangamma and others Vs. G.Nagarathnamma and others (2009) 15 SCC 756 (Para Nos. 9 and 10); (ii) Surendra Kuamr vs. Nathulal and antoehr (2001) 5 SCC 46 (Para 13 and 14);

¶267

(iii) Prem Singh Vs.Birbal (2006) 5 SCC 353 (para 27):

¶268

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54. In the present case, the following points

¶270

are amply clear.

¶271

There existed a joint family prior to 1952 among B.S.Siddallingaiah and his other three brothers that joint family disrupted under Ex.P2 and B.S.Siddalingaiah got B schedule property in the suit schedule which consist of 24 items. Of course the plaintiff and defendants are not at issue regarding non inclusion of any other property. Particularly, plaintiff says that many of the properties were sold by B.S.Siddalingaiah. Here one point is admitted that there is no attribution against B.S.Siddalingaiah about vagabond, womanizer and man of vices and spend free as such there is no occasion to look into addicting regarding sale and disposal of the property is there is no dispute regarding present schedule properties are considered as plaint schedule properties.

¶272

It is also the strong contention of the defendant No.2 that her father never disputed the gift. Mother never disputed the gift. The existence of joint family is evidenced by two documents. One is

¶273

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partition deed Ex.D2 between the brothers of B.S.Siddalingaiah and himself. Next deed is between B.S.Siddalingaiah and his son that has effected in 1978 as per Ex.D7 after passing of the Hindu Succession Act of 1956. Thus what matters is family consisted B.S.Siddalingaiah AS sole coparcener. Now the question is there were enough number of properties as indicated in the schedule to Ex.P2. By any stretch of imagination each and every incident go to show that it was the properties that belonged to family and nothing is explained about the proceeds of the sale of ancestral properties if any. The disposal of properties and purchase of properties was made BY Parvatha devi prior to the partition between B.S.Siddalingaiah and his son in 1978.

¶275

The partition was effected as per Ex.D7 in the year 1978 till then joint family was in existence. On the date of purchase of property in the year 1963

¶276

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under Ex.D12 the joint family was existing in full fledged manner and it is admitted by

¶278

B.S.Siddalingaiah alone in the partition deed of the year 1978, as such, no further discussion is required regarding existence of the joint family.

¶279

Insofar as funds are concerned, the property was purchased for Rs.15,000/-. Nodoubt, even in the Will stated to have been executed by said B.S.Siddalingaiah he has further passion towards his wife and says that in case if he pre deceased his wife entire bequeathal shall go to her hand and children were entitled for disposal by her only.

¶280

If kartha says a particular property is the separate property it cannot become the separate property in the presence of strong circumstances of availability of joint family funds and absence of circumstances showing the flow of funds to kartha, no

¶281

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further dissection is required to hold item No.2 of the schedule property is a joint family property.

¶283

In a joint family where jointness is

¶284

presumed, to read a particular document it is not only of the document but also the attending circumstances

¶285

are to be read. Here, insofar as gift deed is concerned, item No.1 was purchased in the year 1963 and there was enough resources admittedly not quantified and there is no explanation as to what happened to the proceeds of the property and it is not known whether the grandfather of the Parvathadevi was alive or not on the date of gift deed.

¶286

The property under Ex-D12 sale deed dated 13-2-1963 is concerned, the purchaser is Parvathadevi and seller is one T.N.G. Rao s/o. T. Narayana Rai Proprietor, Bombay Luminous Signs, He was real mortgager of the schedule property to

¶287

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Mysore housing Board wherein he had availed the loan for constructing a house and there was debit balance of loan of Rs13,724-45. Regard being had to the fact that the loan amount from Mysore Housing Board it was assigned at Rs.13,724/- and left with purchaser authorizing the purchaser to redeem mortgage deed and the same is stated to have been duly discharged. However the discharge certificate is not produced. In the circumstances, it is to be understood that amount paid to the vendor on the date of Ex.D12 was Rs.1,275-55 and balance was undertaken to pay at the time of getting the redemption deed. But the contention is that, the property is purchased out of the funds gifted by grand father plus investment that were made by her grandfather. They have stated 3 years income returns is filed on 1964 to ensure that she could be called as assessee from 1961. This only tells that she was

¶289

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expecting rejection one day or the other and it happened.

¶291

In the overall context and circumstances of

¶292

the case insofar as judgment of granting 1/3 share to the plaintiff by learned trial judge, does suffer from any infirmity, illegality or perversity. However also dropping item No.2 by dismissing the amendment application, I do not find any defect. Further regarding item Nos. 3 to 5 it should have been ordered for an enquiry as there are details of names of the company with shares bank details regarding savings bank and other deposit. Without ascertaining the details the trial judge erred in stating that plaintiff is not entitled to take any item Nos. 2 to 5 as claimed by her.

¶293

Insofar as share of the defendant No.3Paresh Kumar is concerned, as stated above, there was a partition in the year 1978 as per Ex.D7 and he

¶294

¶295

was allotted item no.2 of the property by virtue of partial partition as a partial partition may be in respect of persons i.e. members of the family or in respect of the particular property. It is open for a joint family wherein 1 or 2 or members get released or partition from the family and remaining continued and some of the properties are partition among themselves living other properties. With all the circumstances item No.2 of the property which owns it as wholly owned which he holds it as absolute owner. In the circumstances, among the family that consisted of B.S.Siddalingaiah, Parvathadevi, Indrani and Kusuma K. Arasikere and Paresh Kumar. B.S. Siddalingaiah died during 1997, Parvathadevi died in 2007 and Paresh kumar died. Thus, finding of the trial court granting 1/3^rd share to each of the member is mis conceived and shows the learned trial judge has not fully understood that properties ore particularly

¶296

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when already released member who is defendant in this case. It is the case that, Paresh kumar is defendant No.3 has abandoned the partition deed in the year 1978 and agreed to put as property also into a hotchpot of the joint family the matters would be different. If he is not allotted in the property never objected for partition did not participate dint he proceedings and he is dead and represented by his legal representatives.

¶298

Thus, the division of property of item No.1 ought to have been made in equal shares between the plaintiff and defendant No.2 and having rejected the amendment application may be of procedural reason. The learned trial judge should have applied his mind regarding the remaining persons and who are entitled for the share. In this connection, the judgment and decree of the trial court deserves to be set aside in part.

¶299

¶300

Insofar as Will Ex.D10 dated 25-12-1989 is

¶301

concerned it only mentions the property and there are no clarifications given regarding the available of that property or existence or it is already shared among the members. In this connection settlement by way of affidavit of each of the parties and the other interest parties should have been considered.

¶302

In the light of the discussions already made above, gift deed is not binding on the plaintiff. By virtue of non binding of the gift deed, issue Nos. 8 and 9 regarding proving of absolute ownership by defendant No.2 does not arise for consideration.

¶303

In the circumstances, total entitlement of the property by the plaintiff invariably stands between the plaintiff and defendant No.2 Indrani in equal share. The gift deed executed by Parvathadevi in favour of Indrani has no sanctity or illegality and

¶304

¶305

not binding on the rights of the plaintiff. Thus, I find the learned trial judge though was right in holding the existence of joint family and its properties, erred seriously in calculating the share wherein the separated member with property in the year 1978 itself is granted the share and it is liable to be ignored or set aside.

¶306

Accordingly, I pass the following:

¶307

ORDER

¶308

(i) Appeal filed by plaintiff/appellant Kusuma K. Arasikere in RFA No. 1124/2010 is partly allowed.

¶309

(ii) Appeal filed by the defendant No.2Indrani in RFA No. 357/2010 is dismissed.

¶310

(iii) The judgment and decree dated 19-11-2010 in O.S.No.660/2002 passed by the trial judge granting 1/3^rd share to the plaintiff is modified holding that plaintiff and defendant No.2- indrani are entitled for equal shares.

¶311

¶312

Insofar as item Nos. 3 to 5 are concerned, the trial court shall hold an enquiry if they are available directing the parties to file affidavits regarding existence or otherwise.

¶313

Sd/JUDGE

¶314

tsn*/HJ/tsn*

Smt. Indrani Anand v. Smt. Kusuma K Arasikere

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Smt. Indrani Anand v. Smt. Kusuma K Arasikere

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