Dismissed

Dr v. Girish Kumar v Smt R Hemavathi

Karnataka HC18 May 2023RFA/1784/2011

Case brief

AI extract

What is this about?

This Court disposed of a regular first appeal against a decree dismissing a partition suit. The High Court upheld the trial Court's finding that the appellant was not entitled to a share in self-acquired property and dismissed the appeal, confirming the original decree.

What did the court decide?

The appeal is dismissed with costs; the impugned judgment and decree of 21.03.2011 passed in O.S. No. 4256/1996 is confirmed.

Dr v Girish Kumar Vs Smt R Hemavathi — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF MAY, 2023

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BEFORE

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THE HON’BLE MRS. JUSTICE M G UMA

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REGULAR FIRST APPEAL NO. 1784 OF 2011 (PAR)

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BETWEEN:

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DR. V. GIRISH KUMAR S/O. LATE. V. VENKATASWAMY, AGED ABOUT 51 YEARS RESIDING AT PORTION OF PREMISES BEARING NO.9, OLD NO.72, SUNKALPET MAIN ROAD BANGALORE - 560 002.

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... APPELLANT

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(BY SRI: K.N. DAYALU, ADVOCATE FOR K. N. DAYALU & ASSTS)

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AND:

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SMT. R. HEMAVATHI DIED ON 06.04.2017 SINCE DEAD BY LRS APPELLANT - DR. V. GIRISH KUMAR, II RESPONDENT - V. VENKATESH KUMAR, RESPONDENT NO. 3 - V. KALAVATHI, RESPONDENT NO. 4 - V. SHASHIKALA

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SRI. V. VENAKTESH KUMAR S/O. LATE V. VENKATASWAMY AGED ABOUT 53 YEARS, RESIDING AT PORTION OF PREMISES BEARING NO.9, OLD NO.72, SUNKALPET MAIN ROAD BANGALORE - 560 002.

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SMT V. KALAVATHI D/O. LATE V. VENKATASWAMY, AGED ABOUT 49 YEARS, C/O NO.6, II MAIN,

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WEAVERS COLONY GANGANAGAR, BANGALORE - 560 032.

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SMT V. SHASHIKALA W/O. SRI B.R. RAVIPRAKASH D/O LATE V. VENKATASWAMY AGED ABOUT 47 YEARS, C/O NO.6, II MAIN, WEAVERS COLONY GANGANAGAR, BANGALORE - 560 032.

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SRI PADMANABH (DELETED) S/O. CHINNAPPA AGED ABOUT 55 YEARS RESIDING AT PORTION OF PREMISES BEARING NO. 9, OLD NO. 72, SUNKALPET MAIN ROAD BANGALORE - 560 002.

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SRI. CHIKKANNA (DEAD) S/O. LATE GOVINDAPPA AGED ABOUT 56 YEARS PREMISE BEARING NO.9 OLD NO. 72, SUNALPET MAIN ROAD, BANGALORE - 560 002.

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... RESPONDENTS

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(BY SRI: MUSHTAQ AHMED, ADVOCATE FOR R4 (ABSENT) SRI: M. MURALI, ADVOCATE FOR R2 (ABSENT) R3 SERVED. V/O DTD 30/11/18, R5 IS TREATED AS LR OF DECEASED R6. V/O DTD 25/06/21 R5 DELETED.)

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THIS R.F.A. IS FILED UNDER SECTION 96 OF THE CPC., AGAINST THE JUDGMENT AND DECREE DATED:21.3.2011 PASSED IN O.S.NO.4256/1996 ON THE FILE OF THE I ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH 2), DISMISSING THE SUIT FOR PARTITION, SEPARATE POSSESSION.

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THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 18.04.2023 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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The plaintiff in O.S.No.4256/1996 on the file of the learned I Additional City Civil and Sessions Judge, Bengaluru City, (CCH No.2) (hereinafter referred to as ‘the trial Court’ for brevity), is impugning the judgment and decree dated 21.03.2011, dismissing the suit and rejecting the claim for partition and separate possession of Schedule ‘A’ to ‘C’ Properties by allotting 1/5^th share in his favour by metes and bounds, to restrain defendant Nos.1 and 2 from alienating the Schedule Properties in favour of any third parties and for mesne profits.

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For the purpose of convenience, parties are

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referred to as per their rank before the trial Court.

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Brief facts of the case are that, the plaintiff filed the suit O.S.No.4256/1996 before the trial Court against defendant Nos.1 to 6 for partition and separate possession of his 1/5^th share in the Schedule Properties by metes and bounds, for mesne profits and also for permanent injunction restraining defendant Nos.1 and 2 from alienating the Schedule properties. Schedule ‘A’ appended to the plaint describes the property bearing No.9, situated at Sunkalpet

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Main Road, Bengaluru, measuring East to West 14.11 feet and North to South 19.9 feet with the boundaries mentioned therein. Schedule ‘B’ describes the house property bearing No.6, situated at II Main, Weavers Colony, Ganganagar, Bengaluru along with the jewellery, steel and wooden items and Schedule ‘C’ describes the textile machineries kept in the premises forming the rear portion of Schedule ‘A’, along with five power looms with dobby, 5 fern windings and 16 spindle windings machineries.

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It is contended by the plaintiff that the plaintiff and defendant Nos.2 to 4 are the children of late V. Venkataswamy and defendant No.1. Said V. Venktaswamy died on 25.02.1992 leaving behind him the plaintiff and the defendants and one more son by name Sri V.G.Srinivas who also died during August 1994. The said V.G.Srinivas was a bachelor and died intestate. Late V. Venkataswamy inherited Schedule ‘A’ property and out of the joint family funds, he purchased ‘B’ and ‘C’ Schedule Properties. The property described in Schedule ‘A’ was divided amongst the plaintiff, defendant No.2 and late V.G.Srinivas on 23.04.1992 under the deed described as an agreement of partition. As per the

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said document, the rear portion of the premises bearing No.9, situated at Sunkalpet Main Road, measuring East to West 19.11 feet and North to South 19.9 feet along with the movables kept therein i.e., Mysore make power looms with dobby motor and switches (2 numbers), warping machine (1 number) and steel Almairah (1 number) were allotted to the share of defendant No.2. The middle portion of the premises bearing No.9, measuring East to West 17.11 feet and North to South 19.9 feet along with the movables kept therein i.e., local make drop box power loom with motor dobby and switch (1 number), 12 spindles winding machine (1 number), pern winding machine (3 numbers), machine spares iron scrap and tools and Mysore make power loom with switch and motor were allotted to the share of the plaintiff and the portion forming the front side of the building bearing No.9 described in Schedule ‘A’, measuring East to West 14.11 feet and North to South 19.9 feet along with the movables i.e., 200 spindle twisting machine (1 number), 60 spindles and aluminium tubes, 10 hankes reeling machine (2 numbers), bobbling and aluminium tubes and art silks weighing 13 kgs and electronic automatic timer (1 number) were allotted to the share of of

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V.G.Srinivas. It was also agreed to allot 120 spindles twisting machines (1 number) and 36 spindles winding machine (1 number) worth Rs.10,000/- in favour of defendant No.3 and cash of Rs.30,000/- to defendant No.4.

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It is contended that the plaintiff, defendant No.2 and their brother V.G.Srinivas were put in possession of the property fallen to their respective shares under the agreement of partition dated 23.04.1992. Defendant No.2 instead of handing over the possession of the movable properties to the plaintiff and defendant Nos.3 and 4, colluding with defendant No.1, sold the same. Out of the sale proceeds, defendant No.2 purchased other properties. The sale proceeds were never shared with the plaintiff and other defendants.

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It is contended that after the death of V.G.Srinivas, the plaintiff and defendants are entitled for 1/5^th share each in Schedule ‘A’ and B properties. But defendant No.2 leased out the premises described in Schedule ‘A’ in favour of defendant No.5 for Rs.80,000/-. It is also contended that defendant No.1 cunningly drafted the agreement of partition to suit her convenience that is to say

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defendant No.1 was held entitled to be continued in possession and enjoyment of Schedule ‘B’ property being her self acquired property. In fact, Schedule ‘B’ Property is the Joint Family Property and is liable to be divided amongst all the family members. Defendant Nos.1 and 2 in collusion, have played fraud on the plaintiff. They have sold the movables in the portions of the properties that have fallen to the shares of the plaintiff and other defendants. Even though the plaintiff demanded for partition and separate possession of the Schedule Properties, defendant No.2 was not ready and willing to effect the same. Leasing of the premise by defendant No.2 in favour of defendant No.5 was without the consent of the plaintiff and other defendants. Hence, the plaintiff sought for partition and separate possession of the Schedule Properties by metes and bounds and to allot 1/5^th share with mesne profits.

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Defendant No.1 filed the written statement

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denying the contentions taken by the plaintiff in the plaint. However, the relationship between the parties is admitted. It is also admitted that the younger son V.G.Srinivas died unmarried and intestate, during August 1994. It is stated

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that even before the death of late V. Venkatswamy-the husband of defendant No.1, defendant No.2- V. Venkatesh Kumar was residing separately with his wife at Bengaluru. He had inherited part of ‘A’ Schedule Property and purchased the remaining portion of the same from his brother under the registered deed. dated 25.11.1953 .

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It is contended by defendant No.1 that the property bearing No.6, situated at Weavers Colony, Ganganagar, Bengaluru is her self acquired property as she purchased it out of her own funds under the registered sale deed dated 05.09.1966. The same was reiterated in the agreement of partition dated 23.04.1992 which is a memorandum of partition, reducing into writing the oral partition entered into between the plaintiff, defendant No.2 and late V.G.Srinivas. Defendant No.2 is named as V.V.Kumar and he leased out the property bearing No.9, situated at Sunkalpet, Bengaluru in favour of a tenant. She pleaded ignorance regarding the ownership of ‘C’ Schedule Property. However, it is contended that the plaintiff, defendant No.2 and V.G.Srinivas took possession of the movables soon after the agreement of partition dated

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23.04.1992 without giving any share to her. It is also contended that pursuant to the oral partition i.e., the agreement of partition, the plaintiff, defendant No.2 and V.G.Srinivas took possession of their respective shares of movable and immovable properties. The plaintiff and defendant No.2 have leased out their portions of the properties fallen to their shares. No share was allotted to defendant No.1 in the said partition. Even though it is recited in the agreement that cash is to be paid to defendant Nos.3 and 4, nothing has been paid to them. The property that had fallen to the share of late V.G.Srinivas was agreed to be divided amongst the plaintiff and defendant Nos.1 to 4 and not only to the plaintiff and defendant No.2. Late V.G.Srinivas during his lifetime had also leased out a portion of the property fallen to his share in favour a tenant by name Chikkanna. It is specifically contended that Schedule ‘B’ property is her self acquired property and therefore, none of the parties are entitled for any share.

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It is contended that the plaintiff is throughout

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demanding to allot all the Schedule Properties only in his favour and in favour of defendant No.2. He offered to pay

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Rs.800/- per month to defendant No.1 with a condition that she should live elsewhere. This fact reveals that the plaintiff and defendant No.2 were willing to drive defendnat No.1 out of the house, so that they can enjoy ‘B’ Schedule Property exclusively. Therefore, it is contended that the suit of the plaintiff for partition and separate possesion is not maintainable and prays for dismissal of the suit.

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Defendant No.2 filed the written statement admitting the relationship between the parties. It is contended that by virtue of the agreement of partition dated 23.04.1992, all the parties were allotted their respective shares and they were put in possession and enjoyment of their respective shares. Defendant No.2 sold the movables fallen to his share to meet his financial requirements. The claim of the plaintiff regarding 120 spinning machineries etc., it is contended that the same were collected by late V.G.Srinivas since defendant No.3 had no place to store those machineries. Pursuant to the partition, the plaintiff, defendant No.2 and V.G.Srinivas were put in possession of their respective shares. The property that was allotted to the share of V.G.Srinivas was leased out for a sum of Rs.65,000/-

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in favour of one Chikkanna and the lease amount was utilized by him. It is stated that there is no cause of action for the suit and prays for dismissal of the same.

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Defendant No.3 filed the written statement

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admitting the contentions taken by the plaintiff including the relationship between the parties. Therefore, he prays for decreeing the suit allotting 1/5^th share in favour of the plaintiff, defendant Nos.1 to 4 each in Schedule ‘A’ and ‘B’ properties and 1/3^rd share to the plaintiff, defendant Nos.2 and 3 in ‘C’ Schedule Property.

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Defendant No.6 has filed his written statement

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denying the contentions taken by the plaintiff. It is contended that ‘C’ Schedule movable properties are exclusively belonging to defendant No.6 and none else are having any share in the same. It is again contended that there was a partition between the parties under the partition deed dated 23.04.1992 and accordingly, the parties were put in possession of the same. The movables allotted to their respective shares were already sold. Defendant No.6 prayed

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for dismissal of the claim of the plaintiff in respect of ‘C’ Schedule Property in the interest of justice.

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On the basis of these pleadings, the trial Court

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framed the issues and additional issues as under ;

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"1. Does the plaintiff prove the 2^nd defendant appropriated to himself of the properties allotted to deceased V.G. Srinivas?

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2. Does the plaintiff proves that he is entitled for 1/5^th share in schedule A, B & C properties?

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3. Does the first defendant prove that B schedule property is her self-acquired property and she has been in possession and enjoyment?

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4. Does the plaintiff prove that the first and 2^nd defendants sold the movables after the death of V.G. Srinivas?

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5. Does the 2^nd defendant proves that suit for partition is not maintainable in view of the earlier partition that took place on 23.4.1992?

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6. Does the 2^nd defendant proves that the movables mentioned in 'C' schedule were installed by his tenant Chikkanna?

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7. Does the 2^nd defendant proves that 'C' schedule property was leased to Chikkanna?

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8. Does the 6^th defendant proves that 'C' schedule property belongs to him exclusively and not liable for partition as stated in paras 3 and 5 of his written statement?

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9. What decree or Order?"

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Addl . Issue dated 28.2.2006

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"1. Does the 6^th defendant proves that the description of machinery as given in 'C' schedule is wrong?"

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The plaintiff examined himself as PW-1 and got marked Exs.P1 to P18 in support of his contention. Defendant No.1 examined herself as DW-1 and got marked Exs.D1 to D26 in support of her defence. The trial Court after taking into consideration all these materials on record, answered issue Nos.1, 2, 4, 6 to 8 and additional issue No.1 in the ‘Negative’ and issue Nos.3 and 5 in the ‘Affirmative’ and as a result, the suit of the plaintiff was dismissed with cost.

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Being aggrieved by the same, the plaintiff is before this Court.

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Heard Sri. K.N.Dayalu, learned counsel for the appellant.

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Learned counsel for the appellant contended that the relationship between the parties is admitted by all the defendants. V.G.Srinivas is one of the sons of defendant No.1 and he died intestate on 17.08.1994. Item No.10 in Ex.P10

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was allotted to the share of V.G.Srinivas and the same is described in Schedule ‘A’ of the plaint. After the death of V.G.Srinivaas, the plaintiff and other defendants are entitled for equal share. The property described in Schedule ‘B’ was not the subject matter of Ex.P10. Even though the same was purchased in the name of defendant No.1, it was out of the joint family fund and therefore, the plaintiff is entitled for a share. Schedule ‘C’ refers to the movable properties which is also to be shared equally amongst the members of the family. The trial Court has not properly appreciated the materials on record and dismissed the suit of the plaintiff, even though sufficient materials are placed to prove the existence of the properties that to, when the relationship between the parties are admitted.

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Lastly, learned counsel for the appellant contended that even defendant No.1 died on 06.04.2017 and therefore, her share in the property is to be allotted equally amongst the sharers and thus, the plaintiff is entitled for 1/4^th share in ‘B’ Schedule Property. Accordingly, he prays for allowing the appeal and decreeing the suit of the plaintiff.

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Learned counsel for the respondents have not addressed his argument in spite of giving sufficient opportunity. Hence, their argument is taken as nil. Perused the materials including the trial Court Records.

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In view of the rival contentions taken by the parties to the lis, the point that would arise for my consideration is;

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"Whether the impugned judgment and decree passed by the trial Court calls for interference by this Court? What Order?"

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My answer to the above point is in the ‘Negative’ for the

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following;

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REASONS

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The plaintiff has categorically stated in the plaint that he is the son of late V.Venkataswamy. Defendant No.1 is the wife of V. Venkatswamy while plaintiff and defendant Nos.2 to 4 are the children of V.Venkataswamy and defendant No.1. There was a partition in the family as per the memorandum of partition marked as Ex.P10 and ‘A’ Schedule Property was allotted to the share of V.G.Srinivas- brother of the plaintiff who died on 17.08.1994 intestate without leaving

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behind him any legal heirs. Therefore, it is the contention of the plaintiff that he is entitled for 1/4^th share in ‘A’ Schedule Property.

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It is pertinent to note that defendant No.1 is the

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mother of the plaintiff as well as the said V.G.Srinivas who died on 17.08.1994. When V.G.Srinivas died, the property that was allotted to his share under Ex.P10 naturally devolves on class-I heir i.e., defendant No.1 being his mother. The plaintiff being the brother will be class-II heir under the Hindu Succession Act and he is not entitled for any share when class-I heir is alive. Learned counsel for the appellant could not justify his claim over ‘A’ Schedule Property during the lifetime of defendant No.1. The suit was filed in the year 1996 after the death of V.G.Srinivas on 17.08.1994. Defendant No.1 was very much alive during the pendency of the suit before the trial Court. It is defendant No.1 who repaid the loan standing in the name of V.G.Srinivas as is evident from Exs.D4 to 6. Under such circumstances, I am of the opinion that the plaintiff is not entitled for any share in ‘A’ Schedule Property.

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The plaintiff claims share in ‘B’ Schedule Property

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contending that the same was not self acquired property of defendant No.1, but it was purchased in her name from out of the joint family fund. The plaintiff has not placed any material to substantiate the said contention. On the other hand, the recitals in Ex.P10 to which the plaintiff is also a party disclose that ‘B’ Schedule Property is acknowledged to be the property belonging to defendant No.1. Under such circumstances, the plaintiff cannot go around and say that ‘B’ Schedule Property was not self acquired property of defendant No.1. Simply because defendant No.1 could not produce any material to substantiate her contention that she purchased ‘B’ Schedule Property by selling her gold jewellery, that will not lead to a conclusion that the plaintiff and the other defendants

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are entitled for share in the same. There is absolutely no explanation as to why the plaintiff conceded the fact that ‘B’ Schedule Property belongs to defendant No.1 when he is a party to Ex.P10. Ex.D1 is the sale deed under which, defendant No.1 purchased ‘B’ Schedule Property. She paid the tax as per the tax paid receipts-Exs.D3 and D7 to D22. Exs.D23 to D26 also stand in the name of defendant No.1

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which substantiates her contention. Therefore, I am of the opinion that the plaintiff is not entitled for any share in the same which belongs to defendant No.1.

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Even though the plaintiff claims share in ‘C’ Schedule Property, nothing has been placed before the Court to prove its existence. Defendant No.6- Chikkanna has taken a specific stand that he installed the machineries. Even though he was not examined to speak about the merits of the case, he appears to have been examined on the application filed under Order 1 Rule 10 of CPC. Even though the Court Commissioner was appointed, nothing is placed on record regarding existence of the movables as described in Schedule ‘C’.

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It is pertinent to note that the plaintiff admitted the previous partition as per Ex.P10 which is dated 23.04.1992. He is not seeking to reopen the partition. He

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has not justified as to how he is entitled for a share in Schedule ‘A’ during the lifetime of defendant No.1. He has not produced any material to substantiate his contention that ‘B’ Schedule Property was purchased from out of the joint

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family fund in spite of the recital in Ex.P10. Similarly, there is nothing on record to establish the contention of the plaintiff with regard to ‘C’ Schedule Property. Under such circumstances, I am of the opinion that the plaintiff is not entitled for any relief as prayed.

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Even though learned counsel for the appellant contended that since defendant No.1 who is arrayed as respondent No.1 died during the pendency of the appeal, the plaintiff is entitled for his share, it is unfortunate for the plaintiff, being the son sued his mother claiming share in ‘B’ Schedule Property even after admitting in Ex.P10 that it is her self acquired property. Defendant No.1 even stated that the plaintiff and defendant No.2 offered her only Rs.800/- towards her maintenance and wanted to grab ‘B’ Schedule Property for themselves. This shows the conduct of the sons i.e., the plaintiff and defendant No.2. Of course, it is a fact that defendant No.1 who is arrayed as respondent No.1 died during the pendency of the appeal i.e., on 06.04.2017, but the fact remains that when the plaintiff filed the suit and when the same was pending before the trial Court, defendant No.1 was very much alive and the plaintiff could not have sought

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for any share in any of the Schedule Properties. After the death of respondent No.1, the cause title was amended to show her as ‘since deceased’. None of the defendants who are represented by their respective learned counsel have addressed their arguments. Defendant No.5 is deleted as per the order dated 25.06.2021. There is no necessary pleadings to claim the share in the property after the death of defendant No.1. It is not made known as to whether defendant No.1/respondent No.1 died intestate or not. Under such circumstances, I am not inclined to pass any order with regard to entitlement of the plaintiff/appellant in any of the properties after the death of respondent No.1.

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I have gone through the impugned judgment and decree passed by the trial Court. The trial Court has taken into consideration all the materials placed before it and has arrived at a right conclusion. I do not find any reason to interfere with the same. Hence, I answer the above points in the ‘Negative’ and proceed to pass the following;

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ORDER

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The appeal is dismissed with costs.

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1. The impugned judgment and decree dated 21.03.2011 passed in O.S.No.4256/1996 by the learned I Additional City Civil and Sessions Judge, Bengaluru (CCH-2), is confirmed.

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Registry is directed to send back the trial Court Records

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along with copy of the judgment.

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Sd/JUDGE

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Dr v. Girish Kumar v Smt R Hemavathi

Case brief

What is this about?

What did the court decide?

Dr v. Girish Kumar v Smt R Hemavathi

Case brief

What is this about?

What did the court decide?

What the court decided

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