Dismissed

Smt Pramila Devi B., v. Smt L Padmini

Karnataka HC4 Dec 2023RFA/861/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the first appeal filed by defendants against the trial court's decree. The trial court had decreed a partition suit only for Item No. 1, declaring it self-acquired property of the deceased father, entitling the widow (defendant in lower court/appellant) to a 1/4th share, while dismissing claims for Items 2 and 3. The appellate court found no merit in the appea

What did the court decide?

The appeal has been dismissed. The previous decree granting 1/4th share in Item No. 1 and dismissing claims for Items 2 and 3 is affirmed.

Smt Pramila Devi B., Vs Smt L Padmini — Partition | Karnataka HC (2023)

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NC: 2023:KHC:43726 RFA No. 861 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 861 OF 2018 (PAR)

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BETWEEN:

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SMT PRAMILA DEVI B., W/O LATE T. PILLANNA., AGED ABOUT 72 YEARS., R/AT NO. 3391, 2ND MAIN, 10TH CROSS, AMARAVATHI LAYOUT, BANGARAPET TALUK, KOLAR DISTRICT - 560 101.

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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SMT. RAJESHWARI, W/O. ANANTHARAJ, MAJOR # 936, MALLATHAHALLI VILLAGE, YESHWANTHAPURA HOBLI, BENGALURU NORTH TALUK - 560 042.

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SRI HRISHIKESH @ KESHAV, S/O. LATE PILLANNA, AGED MAJOR, WORKING BEML KGF KOLAR, R/AT NO. 3391, 2ND MAIN, 10TH CROSS, AMARAVATHI LAYOUT, BANGARAPET TALUK, KOLAR DISTRICT - 560 101.

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…APPELLANTS

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(BY SRI. JAGADEESWARA N.R., ADVOCATE)

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NC: 2023:KHC:43726 RFA No. 861 of 2018

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AND:

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SMT. L. PADMINI, W/O. LATE P.YOGESH GOVINDARAJ, AGED ABOUT 47 YEARS, 46/2, 12TH MAIN, 80 FEET ROAD, 6TH BLOCK, RAJAJINAGAR, BENGALURU - 560 010.

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…RESPONDENT

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(BY SRI. RAVISHANKAR S., ADVOCATE FOR C/R)

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THIS RFA IS FILED U/S. 96 R/W ORDER XLI RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 26.03.2018 PASSED IN OS. NO. 8569/2006 ON THE FILE OF THE XXII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND MESNE PROFITS.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is directed against the impugned judgment and decree dated 26.03.2018 passed in O.S.No.8569/2006 by the XXII Additional City Civil and Sessions Judge, Bengaluru (hereinafter referred to as the 'Trial Court' for short) whereby the said suit filed by the respondent-plaintiff against the appellants-defendants for the partition and separate possession of the plaintiff's alleged 1/4th share in respect of Item No.1 of the suit schedule properties was

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decreed. By the impugned judgment and decree, the Trial Court dismissed the suit of the plaintiff in respect of remaining Item Nos.2 and 3 of the suit schedule properties.

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Heard the learned counsel for the appellantsdefendants and learned counsel for the respondent-plaintiff.

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The material on record discloses that the respondent-

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plaintiff is the wife of one Sri. Yogesh Govindaraj, who was the son of the late T. Pillanna and Smt. B. Pramila Devi. It is an undisputed fact that the aforesaid Pillanna expired on 01.02.1994 leaving behind his son, the aforesaid Yogesh Govindaraj, wife Pramila Devi, daughter Rajeshwari and one more son, Hrishikesh, who succeeded to his estate including the suit schedule properties. Subsequently, the aforesaid Yogesh Govindaraj also expired on 22.07.2002 leaving behind the respondent/plaintiff as his sole heir/legalrepresentative. Pursuant to the demise of her husband Yogesh Govindaraj, the respondent-plaintiff instituted the aforesaid suit against the aforesaid Prameela Devi, wife of Pillanna and their two children viz.. daughter and son, for partition and separate possession after alleged share in the suit schedule properties. The said suit was contested by defendant No.1-Prameela Devi-wife,

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defendnat Nos.2 and 3 her children remained exparte and did not contest the suit.

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Based on the aforesaid pleadings of the parties, the Trial Court framed the following:

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ISSUES

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1. "Whether the plaintiff proves the relationship pleaded by her?

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2. Whether the plaintiff proves that suit properties are the joint family properties of plaintiff and defendant?

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3. Whether the plaintiff is entitled for a share in the suit properties?

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4. Whether the plaintiff is entitled for mesne profits?

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5. Whether the suit is barred by time?

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6. Whether suit is bad for non-joinder of necessary parties?

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7. What Decree or Order?"

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The plaintiff examined herself as PW.1 and

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documentary evidence at Exs.P1 to P5 were marked. Defendant No.1 examined herself as DW.1 and Exs.D1 to D3 were marked on her behalf.

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After hearing the parties, the Trial Court came to the conclusion that Item No.1 of the suit schedule properties was separate and self acquired property of the aforesaid Pillanna, who acquired the same vide Will dated 30.06.1993 executed by his father B.S.Thimmaiah in his favour. The Trial Court also examined the oral and documentary evidence on record and found that the said property was prescribed at Item No.1 was a separate and self acquired property of Pillanna upon whose demise the plaintiff and defendants would become entitled to 1/4th share each in the said Item No.1 of the suit schedule properties. However, in respect of the remaining suit schedule properties, the Trial Court came to the conclusion that the plaintiff was not entitled to a share in the said properties. While arriving to the said conclusion, the trial court recorded the following findings.

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"Reasons

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8. Issue Nos. 1 to 3: The plaintiff has claimed that the plaintiff and the defendant to be related and the suit schedule properties to be joint family properties of the plaintiff and the defendant, therefore to be entitled for the share in the suit schedule properties. These issues therefore are inter-linked and discussed and answered together, in order to avoid repetition.

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As per the plaint, there is no averments against the defendants 2 and 3, who have been subsequently added by virtue of Order of this Court dated 11-1-2016. The relationship between the parties is that the

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plaintiff is the wife of Yogesh Govindaraj. This Yogesh Govindaraj was the son of Pillanna and the defendant.

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In the oral evidence P.W.1 has identified the Death Certificate of Pillanna as Ex.P3, which shows that he passed away on 16-2-1999. Yogesh Govindaraj has also passed away. His Death Certificate is also identified by the plaintiff as Ex.P4, which shows that he passed away on 22-7-2002. Thereby, the dispute before the Court is between the daughter-in-law and the mother-in-law and hence Exs.P3 and P4 are formal documents.

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The description of the suit schedule properties are as follows:

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"( Deleted Item No.1 : All that piece and parcel of the property bearing No.46/2, which was a part of Sy No. 18/9, Jedahalli Village, now called as 80 feet road, 12 Main Rajajinagar, Bengaluru-560010, measuring East to West on northern side 58 feet and on southern side 71 feet and North to South on western side 34 feet and on eastern side 52.6 feet and bounded on : East by : Property of Marichikanna, West by:80 feet road, North by Property of Hucchappa, South by: Property of Venkatagiriyappa.)

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Item No.1 (old Item No.2) :

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All that piece and parcel of the property bearing No.916 in the layout formed by the ITI Employees Housing Co-operative Society Ltd., situated at Mallathahalli Village, Yeshwanthpur Hobli, Bengaluru North Taluk, measuring East to West 30 feet and North to South 53 feet and bounded on:

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East by :	Site No.917.
West by	: Site No.915,
North by	: Road.
South by	: Private Property

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Item No. 2 (Old Item No. 3)

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All that piece and parcel of the property bearing No.57 formed in Sy No. 18/1 of Hegganahalli Village, Yeshwanthpur Hobli Bengaluru North

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Taluk, measuring East to West 30 feet and North to South 40 feet and bounded on:

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East by	:	Site No.56,
West by	:	Site No.58.
North by	:	25 feet Road,
South by	:	Site No. 62

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Item No. 3 (Old Item No. 4)

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All that piece and parcel of the property bearing No. 734, Lakshman Nagar Hegganahalli Cross, Yeshwanthpur Hobli, Bengaluru North Taluk, measuring East to West 30 feet and North to South 40 feet and bounded on:

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East by	:	Private property.
West by	:	Private property,
North by	:	Road,
South by	:	Private property."

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By way of amendment, the earlier Item No.1 property has been deleted and subsequently the remaining Items No. 2 to 4 have been renumbered as Items No. 1 to 3. In spite of that, the reference of the property as Items 2 to 4 still appears in the averments of the plaint, therefore while discussing the nature of the properties, the reference is made noting the property number and the present renumbered suit schedule properties.

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With respect to the Item No.1 property bearing No 916, as per the plaint, it is said to have been acquired by the deceased Pillanna, vide registered sale deed dated: 28-12-1996, which is marked as Ex. P5. The original of this Ex. P5 is said to be with the defendant. This Ex. P5 is dated 28-12-1996 executed between the ITI Employees Housing Cooperative Society Ltd., represented by the President Venkatappa as the vendor in favour of T.Pillanna s/o Thammalah. As per this sale deed, the property sold in favour of Pillanna is the site bearing No.916, measuring East to West 30 feet, North to South 53 feet, in total 175.66 square yards

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or 1950 square feet, with the boundaries as above noted This document states that the ITI Employees Housing Co-operative Society Ltd. being the absolute owner of number of survey numbers, had formed the layout after its acquisitions in the proceedings before the LAO.

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In the oral evidence, P.W.1 has admitted that Pillanna was the employee of the ITI. The suggestion put-forth to P.W.1 is that, indeed this property is the self acquired property of Pillanna and It is as follows:

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"It is true that, thereafter the Society had executed the registered sale deed in favour of Pillanna and therefore that property is the self acquired property of Pillanna."

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The mother of deceased Yogesh, i.e., the defendant, examined as D.W.1, has stated in support of this Ex. P5. Further D.W.1 has stated that the Khatha of that document to have been transferred to her name and then she has sold that property in favour of Smt. Gangamma, vide sale deed dated: 5-4-2004 and in return, Gangamma has sold the very same property in favour of Hemalatha, vide sale deed dated: 16-9-2004. Those sale deeds have been identified by P.W.1 as Exs.P1 and D1. They are the certified copies and the originals are said to be with the purchasers. The certified copies of the sale deed in favour of Hemalatha has been produced by the defendant during the confrontation of P.W.1 and marked as Ex.D1. Therefore, it is admitted fact of P.W.1 that the possession of this property to be with Hemalatha.

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As per Ex.P2, which is the certified copy of the sale deed dated: 25-9-2006, the item No.2 is sold by the 1 defendant in favour of one Shekhar. The father of P.W.1 is said to have informed her about the said alienation and therefore it may be that the said Shekhar to be in its possession. This P.W.1 hasIdentified one more sale deed dated:2-122002, marked as Ex.D2 in favour of defendant. No.1 by Channappa pertaining to Item No.2 property. Entire evidence of P.W.1 goes to show that the suggestion put-forth has been admitted by her and therefore it means that, as per Ex.P1 and Ex.D1, the possession of the item No.2 property is with Hemalatha. Ex.P1 dated:5-4-2004 shows that it is executed in favour of Gangamma by the 1st defendant, her children Rajalakshmi, P.Hrishikesh. There is reference of Ex.P5 in this Ex. P1.

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Ex.D1-certified copy of the sale deed executed in favour of Smt. Hemalatha by this Gangamma, pertaining to the very same property. Ex.P2 is the certified copy of the sale deed dated: 25-9-2006 executed in favour of one Shekhar by the present 1st defendant and the property sold is Assessment No.18/1, with Khatha No.57, which is the present item No.2 property. In oral evidence D.W.1 has stated not to have any document to show that they are tenants of item No.2 property. In the affidavit for chief examination, D.W.1 has stated that, this property was purchased vide sale deed dated: 2-12-2002 and therefore it is her self acquired property. Her son was said to be not alive. But the death certificate of her son-Ex.P4, shows that he passed away on 22-7-2002. Therefore, when this property was purchased, the son was not alive. Her husband Pillanna passed away much earlier on 16-2-1999 as noted above-Ex.P3.

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P.W.1 has further stated not to know who is the original owner of the item No.2 property. The plaintiff has not contributed any finance towards purchase of the item No.2 property and in fact they did not have the requisite finance also to purchase that property. When the item No.2 property was purchased, this P.W.1 was said to be residing at her father's house. Similarly, P.W.1 does not know as to who is the owner or in possession of Item No.3 property. Item No.3 is property No.734. As on today, she has admitted not to have purchased any documents by stating as follows:

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"As on today, I have not produced any documents pertaining to item No.3 property."

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When the husband had passed away, Indeed, the gold ornaments were said to be pledged and that they were released after the repayment of the amount due, in terms of document-Ex.D3. This Ex.D3 is an Affidavit stating, the gold ornaments that were pledged to have been returned. It is the affidavit of the plaintiff herself. P.W.1 has also admitted that her mother-in-law to have contributed sum of Rs.19,000/- towards the release of those gold ornaments.

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10. On the other hand, D.W.1 has stated that after the demise of her husband, the house to have been maintained out of the retirement

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benefits of her deceased husband and with the help from her mother. After four years of retirement, the husband is said to have passed away. Item No.1 property was said to be a vacant site and the amount towards the allotment of item No.1 property was said to have been paid periodically out of the salary of her husband.

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11. Regarding the maintenance of the household expenditure, D.W.1 has stated that her mother's house supplied ration to maintain the family and that, she had also utilized the retirement benefits for other household expenditure

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12. Though in the plaint it is averred that Item Nos 3 and 4 are the self acquired properties of the husband of the plaintiff, in the oral evidence the plaintiff herself, as above noted, has not stated anything about the ownership or the possession of the properties. In fact there are no documents produced in this regard before the Court. Actually there is no item Nos.3 and 4 properties. They are renumbered as suit item Nos.2 and 3. It was the husband of the plaintiff who is said to have put up construction In these properties and that they have been let out to the tenants. In regard to the pledging of the gold ornaments, etc., it is noted that the suit schedule properties 1 to 3 are only immovable properties.

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In the plaint it is pleaded that, item Nos.3 and 4, i.e., Items 2, 3, are the self acquired properties of Yogesh Govindaraj, husband of the plaintiff. How these properties have been acquired by the husband of the plaintiff, is not forthcoming in the plaint, but it is averred that the husband of the plaintiff to have put up construction in these properties and let out to the tenants, D.W.1 herself has sold the property Item No.1, No.916 to the third parties in 2004. In respect of this property, it is the self acquired property of Pillanna. As per Ex.P1, the item No.1 has been alienated on the ground to repay the debts and for house necessity and sold on behalf of the children. This Ex.P1 is dated: 5-4-2004, is after the son Yogesh passed away, which is on 22-7- 2002. This property has been further sold in favour of Hemalatha, as per Ex.D1 dated: 16-9-2004, The only relief claimed by the plaintiff has been for partition. After the death of Pillanna, this sale deed has been executed by his widow-D.W.1 and their children Rajalakshmi and Hrishikesh, No doubt, on account of the son Yogesh had passed away, the plaintiff had become a widow, but the

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widow is not a party to that sale deed. When Pillanna passed away, the succession opens and that property being the self acquired property of Pillanna, as per Section 8 of the Hindu Succession Act, the widow, their children as well as the plaintiff being the widow of the predeceased son, fall in the category of class-I heirs.

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13. The marriage of the plaintiff has taken place in the year 1998 and the husband has passed away in the year 2002. It could be that, after the son passed away, daughter-in-law, I.e., the plaintiff and the mother-in-law, i.e., the 1st defendant, were not residing together. But the fact remains that, by operation of Section 8 of the Hindu Succession Act, the daughter-in-law, one of the legal heirs under class-I of the schedule.

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14. The item No.2 property of the schedule property has been purchased by the 1st defendant as per the sale deed-Ex.D2 and it is sold to Shekhar, as per Ex.P2. When the son of the 1st defendant, who is the husband of the plaintiff, had passed away prior to Ex.D2, then item No.2 cannot be the self acquired property of the husband of the plaintiff. The 1 defendant in the oral evidence has deposed not to be connected to the item No.3 property, as it is said to not belong either to her or the joint family. P.W.1 has also admitted, as above noted, not to have produced any documents pertaining to item No.3 property. Therefore, these properties i.e., Items 2 and 3, are not the joint family properties of the plaintiff and the 1" defendant.

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15. The alienation with respect to the suit Item No.1 property has taken place and the question of the right of the third party has to be decided in the subsequent proceedings. For the purpose of the suit, the main sharers only are necessary, as the relief is confined only to the partition. The right of extent of share of the plaintiff as the widow of the pre-deceased son, cannot be taken away by virtue of the sale deed executed by the widow of the original propositor-Pillanna. At the same time, it is also noted that, there is no relief sought in respect of the sale deed, but the fact remains that there has been execution of the sale deed with respect to the suit schedule property, After Pillanna has passed away, the class-I legal heirs under the Schedule of the Hindu Succession Act by operation of Section 8 has to be divided equally. In the facts and circumstances of the case, they would be his widow i.e, the

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1st defendant, her son and daughter, as well as the widow of the predeceased. Thereby, each of them would get 1/4th share, but in the plaint, the plaintiff has sought for half share in the suit schedule properties.

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16. On account of item No.1 suit property being the self acquired property, invariably, the extent of the share of the plaintiff would be 1/4th in the suit item No.1 property. Hence, the relationship is proved and the nature of the suit schedule properties are proved only with respect to the suit item No.1 property. The Issues No:1 to 3 are therefore answered in the affirmative.

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17. Issue No. 4: Admittedly, in the present case, the suit item No.1 being the self acquired property of Piilanna and that the sale has taken place in 2004 itself, it means that the plaintiff has not been in enjoyment of her 1/4th share in this property. After the death of Pillanna, the widow alone cannot be the absolute owner of the suit schedule property. Such being the case, the plaintiff will be entitled for the Mesne Profits to the extent of her 1/4th share only in the suit item No.1 property. For this purpose, there is need of separate enquiry. In addition, the right of the third party has to be also decided and determined in the appropriate F.D.P. proceedings. Such being the case, this issue is answered in the affirmative in terms of the Final Order.

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18. Issue No. 5: During the course of the arguments, learned counsel for the plaintiff has referred the citation reported in 2013(4) KCCR 3170 (Gopalaiah and others vs. Smt. Jayakumari and others), wherein it is held as under:

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"C. Hindu Law-Partition-Suit for maintainability-Plea of earlier partitionRegistered deed excluding a member of family as he was deceased by then- Omission to include his heirs also-They are entitled to their legitimate share-Their suit maintainable.

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D. Limitation Act, 1963-Article 110-Suit for partition-Limitation-Ouster of a member-Suit to be filed within twelve years from that date otherwise, no period of limitation is prescribed for a suit for partition-Exclusion of deceased member and his heirs in earlier partition-Hence, family remaining undivided-Suit for plaintiffs/heirs of deceased member not barred by limitation.

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E. Limitation Act, 1963-Articles 74 and 75-Adverse possession-Plea in partition suit-Is different from other suits-There should be specific plea of ouster in a suit for partition."

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No doubt, the scope of the present suit is only for partition, but the plaintiff is not a party to the sale deed executed by the mother and her existing children. In spite of that, the right claimed by the plaintiff, which is to the extent of 1/4th share, in the given facts and circumstances of the case, has been sought for within the span of three years from the date of that sale, which has taken place in 2004 and the above suit has been filed in 2006. Therefore, in view of the averments of the plaint and the admitted facts, hence this issue is answered in the negative.

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19. Issue No. 6 :. It is only the widow of the pre-deceased son of the defendant No.1, who has sought for Partition. Such being the case, the right claimed by the plaintiff will only be in terms of the extent, which as per Section 8 of the Hindu Succession Act, entitles this plaintiff for 1/4th share only. All the class-I legal heirs under the Schedule, Hindu Succession Act, are entitled to enjoy together equally. Such being the case, this suit therefore cannot be said to be bad for non-joinder of necessary parties. The right of the third parties, it is settled law that it has to be determined in the F.D.P. proceedings on the principles of equity and this issue is answered in the negative,

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20. Issue No. 7 : Due to the findings as above, the following:

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ORDER

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Suit of the plaintiff is hereby decreed in part, as follows:

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The plaintiff is entitled for 1/4th share in the suit schedule Item No.1 property only and the claim of the plaintiff in respect of the suit items No.2 and 3 is hereby dismissed.

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The plaintiff is entitled for separate enquiry regarding the Mesne Profits in the F.D.P.

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Under the circumstances, parties to bear their own costs.

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Draw Preliminary Decree accordingly."

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7. As can be seen from the aforesaid reasoning, the trial

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Court has come to the proper and correct conclusion that Item No.1 of the suit schedule properties was separate and self acquired property of Pillanna upon whose demise the property devolved upon the plaintiff and defendant Nos.1 to 3 under Section 8 of the Hindu Succession Act, 1956, consequent upon which each one of them would be entitled to 1/4th share in the said property.

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Upon re-appreciation, re-evaluation and

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reconsideration of the entire material on record, I do not find any illegality or infirmity in the impugned judgment and decree insofar as Item No.1 of the suit schedule properties is concerned, warranting interference by this Court in the present appeal,

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Accordingly, there is no merit in the appeal and the same is hereby dismissed.

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List No.: 1 Sl No.: 3

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Sd/- JUDGE

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KTY

Smt Pramila Devi B., v. Smt L Padmini

Case brief

What is this about?

What did the court decide?

Smt Pramila Devi B., v. Smt L Padmini

Case brief

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