Dismissed

Sri R Ravi Naidu v. Smt Manjula v Krishnan

Karnataka HC22 Feb 2024RFA/2191/2017

Case brief

AI extract

What is this about?

This revision appeal challenged a trial court decree granting partition of properties to the appellant. The High Court upheld the lower court's finding that the mother's will was valid and acted upon by the parties, confirming the appellant's co-ownership status and liability to render accounts.

What did the court decide?

The appeal was dismissed and the impugned judgment and decree were confirmed.

Sri R Ravi Naidu Vs Smt Manjula v Krishnan — Partition | Karnataka HC (2024)

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RFA 2191/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF FEBRUARY, 2024

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PRESENT

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THE HON’BLE MR.P.S.DINESH KUMAR, CHIEF JUSTICE

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AND

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THE HON’BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

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RFA NO.2191 OF 2017 (PAR)

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BETWEEN:

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SRI. R.RAVI NAIDU AGED ABOUT 61 YEARS S/O LATE V.R.NAIDU R/AT C-901, MANTRI GREENS SAMPIGE ROAD, MALLESHWARAM BENGALURU - 560 003 …APPELLANT

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(BY SRI.V.B.SHIVAKUMAR, ADV.)

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AND:

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SMT. MANJULA V. KRISHNAN AGED ABOUT 71 YEARS W/O DR.R.VENKATAKRISHNAN R/AT NO.907, AJ, 19^TH STREET VAIGAI COLONY, J BLOCK ANNANAGAR WEST, CHENNAI - 600 040

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SRI. R. BHASKAR S/O LATE V.R.NAIDU AGED ABOUT 75 YEARS NO.33, 4^TH MAIN ROAD POSTAL COLONY - I SANJAY NAGAR BENGALURU - 560 094 … RESPONDENTS

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(BY SRI.PADMANABHA MAHALE, SR. ADV. FOR SRI. H. DEVENDRAPPA, ADV. FOR C/R1; SRI. R. BHASKAR, R2[ABSENT])

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RFA 2191/2017

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THIS RFA IS FILED UNDER SECTION 96(1) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.10.2017 PASSED IN OS.NO.3590/2011 ON THE FILE OF THE XLII ADDL. CITY CIVIL AND SESSIONS JUDGE BANGALORE, DECREEING THE SUIT FOR PARTITION AND MESNE PROFITS.

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THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 11.12.2023 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, T.G.SHIVASHANKARE GOWDA J. , DELIVERED THE FOLLOWING:

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J U D G M E N T

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In this appeal, defendant has challenged the judgment and decree dated 30.10.2017 in O.S.No.3590/2011 passed by the XLII Additional City Civil and Sessions Judge, Bengaluru City (for brevity 'the Trial Court').

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For the sake of convenience, parties shall be referred as per their status before the Trial Court.

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Brief facts of the case are, the plaintiff (Smt. Manjula V. Krishnan), the defendant (Sri. R. Ravi Naidu) and Sri. R. Bhaskar are the children of Sri. V.R. Naidu and Smt. Lalitha Naidu. Property bearing Old Survey No.11 and 11A, New Survey No.7 and 8, Magrath Road, measuring

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37270.68 sq.ft. was acquired by Smt. Lalitha Naidu, the defendant and Sri. R. Bhaskar vide sale deed dated 10.12.1955. At the time of acquisition, both the sons were minors and represented by their mother as guardian. They were in joint possession and enjoyment of the property. After attaining majority, Sri. R. Bhaskar obtained his 1/3^rd share measuring 11,664 sq.ft. in the said property and got separated from the family. Remaining 25,606 sq.ft. was retained by Lalitha Naidu and the defendant. Based on the application filed by Sri. R. Bhaskar, B.B.M.P.¹ has segregated his share by assigning separate khata as property No.7. The remaining 2/3^rd property was assigned as property No.8, which is described as suit 'A' schedule property.

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3.1. Smt. Lalitha Naidu during her lifetime

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executed a registered Will on 05.10.1997 bequeathing her 1/3^rd share in the suit 'A' schedule property in favour of the plaintiff. Smt. Lalitha 1 Bruhat Bengaluru Mahanagara Palike

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Naidu died on 23.01.2002. After her death, plaintiff succeeded to her 1/3^rd share of her mother. Plaintiff applied for joint-khata along with defendant and it was considered by the B.B.M.P. Thereby, the plaintiff and the defendant are enjoying 'A' schedule property as co-owners.

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3.2. It is averred that plaintiff and the defendants are co-owners of 'A' schedule property. In order to develop the said property, they entered into a joint development agreement ('J.D.A.' for short) on 10.08.2006 with M/s Allied Investment and Housing Private Limited. As per the terms of J.D.A., plaintiff and defendant are together entitled to 65% of built-up area and proportionate undivided share in the land, whereas the developer/their nominees are entitled to 35% of built-up area with proportionate undivided share in the land.

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3.3. After completion of the project, the developer desired to transfer his share of 35% in

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favour of M/s Nalli Trust. Plaintiff, defendant and the developer jointly executed tripartite agreement on 13.04.2006 in favour of M/s Nalli Trust. The plaintiff and defendant have executed separate power of attorneys in the name of Sri. Abdul Wadood, who is the representative of the developer, authorizing him to sell 35% of developer's share in favour of M/s Nalli Trust. On the strength of said power of attorneys, Sri. Abdul Wadood, sold 35% of developer's share in favour of M/s Nalli Trust on 03.05.2006, 22.12.2006 and 20.06.2007. By virtue of the said sale deeds, defendant and the plaintiff got 65% built-up area in the commercial complex on 15.10.2008 from the developer company.

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3.4. The defendant, with a malafide intention to

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retain the entire commercial complex, filed a frivolous suit in O.S.No.25274/2010 seeking relief of permanent injunction against the plaintiff. The suit was contested by the plaintiff. When the plaintiff

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and her husband on 10.11.2010, visited the suit 'A' schedule property, they were informed by the watchman that the defendant is trying to let-out the premises to third-parties and has already let-out the parking space.

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3.5. Suit 'B' and 'C' schedule properties are agricultural lands, measuring 6 acres 37 guntas in Survey No.180 and 16 acres 17 guntas in Survey No.195, situated at Barlhalli hamlet of Avalagurki Village, Kasaba Hobli, Chikkaballapur Taluk. Suit 'B' and 'C' schedule properties are jointly purchased by plaintiff and defendant through registered sale deed dated 24.10.1981. Plaintiff called upon the defendant to effect partition and to give her half share in the suit 'A','B' and 'C' schedule properties. As defendant refused to effect the partition, she has filed the instant suit.

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The defendant has opposed the suit by filing written statement contending interalia that the suit

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schedule 'A' property was acquired by his father and his grandmother Smt. B.S. Ammaniammal on behalf of 2 minor sons. Smt. Lalitha Naidu had no right over suit 'A' schedule property as she represented her minor sons as guardian only.

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4.1. Smt. Lalitha Naidu was aged, bed-ridden and suffering from Rheumatoid Arthritis . The alleged Will by the plaintiff is not executed by Smt. Lalitha Naidu out of her free will and volition. Smt. Lalitha Naidu had no right to execute the Will in favour of the plaintiff and the proposed Will is a bogus document. Plaintiff has not probated the Will, thereby she cannot acquire title over suit 'A' schedule property. The plaintiff in collusion with the B.B.M.P. Officers has got changed the khata in her name. The plaintiff has threatened the defendant and made to sign the J.D.A. which is not registered and it cannot be relied upon. The defendant has not executed any sale deed. In connection with

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execution of these documents, he has already filed a private complaint against Sri. Abdul Wadood in P.C.R. No.83/2010 and also filed the suit for injunction against the plaintiff in O.S.No.25274/2010. Suit 'B' and 'C' schedule properties are outside the jurisdiction of the Court, no income is derived from the said properties; the Court has no jurisdiction to entertain the suit and sought for dismissal of the suit.

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On the basis of the pleadings, the Trial Court framed the following issues and additional issues:

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ISSUES DATED : 16.08.2024

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1. Whether the plaintiff proves that, on 05.10.1997 her mother had executed the WILL in her favour?

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2. Whether the defendant proves that, this court territorial jurisdiction to try the suit?

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3. Whether the plaintiff is entitle for relief as sought for ?

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4. What order or decree?

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ADDITIONAL ISSUES DATED : 05.11.2015

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1. Whether the plaintiff proves that her mother has executed a WILL dated 05.10.1997 in

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favour of plaintiff and defendant and defendant has acted upon the WILL?

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2. Whether the plaintiff proves that on the basis of the WILL, Sale Deed has been executed by the defendant in favour of Nalli Trust?

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ADDITIONALISSUE DATED: 12.10.2017

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1. Whether plaintiff proves that "A" schedule property was purchased by Lalitha Naidu in her name and in the name of her minor sons as contended in the plaint?

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On behalf of the plaintiff, she examined herself as PW-1, one witness as PW-2 and marked 22 documents as per Exs.P1 to P22. On behalf of the defendant, he examined himself as DW-1 and marked 10 documents as per Exs.D1 to D10.

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The Trial Court after hearing both the

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parties, recorded all the issues in favour of the plaintiff, decreed the suit with costs, declaring that the plaintiff is entitled to half share in the suit 'A','B'

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and 'C' schedule properties. Further directed the defendants to render proper accounts in respect of 'A' schedule property from 15.10.2008 till the date of filing the suit and also, half share in the rents and

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deposits received by the defendant in respect of 'A' schedule property. Aggrieved by the said finding, the defendant has filed the instant appeal on various grounds.

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Heard the arguments of

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Sri. V.B. Shivakumar, learned counsel for the defendant and Sri. Padmanabha V. Mahale, learned Senior Counsel supported by Sri. H. Devendrappa, learned counsel for the plaintiff.

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Sri. V.B. Shivakumar submitted that, the suit is based on Will, without seeking declaratory relief, suit

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for partition by the alleged co-owner is not maintainable. The suit is based on the co-ownership between the plaintiff and the defendant. There cannot be a transfer of coownership in a property as contemplated under Section 44 of Transfer of Property Act, 1882. The entire 'A' schedule property was in joint possession

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of plaintiff, defendant and Smt. Lalitha Naidu. Smt. Lalitha Naidu cannot execute the Will bequeathing 1/3^rd share through the Will. Co-owner is barred from executing a Will in respect of an undivided share without consent of other sharers. The plaintiff has propounded the Will, which is surrounded by suspicious circumstances. The Will is not proved under Section 67 of the Indian Evidence Act, 1872. There is no proof in support of the signature of Smt. Lalitha Naidu on the propounded Will. The witness examined on behalf of the plaintiff does not support the Will as required under Section 69 of Indian Evidence Act. At the time of execution of the alleged Will, Smt. Lalitha Naidu was unwell, she was suffering from multiple ailments, she was not in a sound state of mind and health. Hence, the Will has to be disbelieved. The suit is bad for nonjoinder of Sri. R. Bhaskar, the other brother of the plaintiff and defendant. Another sister of the plaintiff

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Smt. Vimala died leaving behind her husband and children. They are also necessary parties to the suit.

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In support of the impugned judgment, learned Senior Counsel has contended that the relationship is not in dispute; there is a specific pleading in the plaint that brother of plaintiff and defendant 'Sri. R. Bhaskar' has taken his 1/3^rd share in suit 'A' schedule property and he got separated from the joint family. When suit 'A' schedule property was acquired, defendant and Sri. R. Bhaskar were minors. The property was acquired by Smt. Lalitha Naidu. She and her 2 minor sons have

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equal share in suit 'A' schedule property. Smt. Lalitha Naidu executed the Will in respect of her undivided 1/3^rd share bequeathing in favour of the plaintiff. The plaintiff has proved the Will, Will is

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not shrouded with suspicious circumstances. The evidence on record clearly demonstrates that the Will under Ex.P1 was accepted by the defendant, Will is

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acted upon the parties have withdrawn the money kept in fixed deposits in the bank. The defendant, for drawing money from the bank, accepted plaintiff as the co-owner of suit 'A' schedule property and got release of deposit from the bank. They joined together to execute the joint development agreement on 2/3^rd share by taking 65% of share in the developed property, giving 35% of developed property to the developer. They have joined hands with the developer in execution of sale in favour of M/s Nalli Trust as per J.D.A. When the point of sharing arose, defendant is blowing hot and cold. The property is enjoyed jointly, both have exercised their right recognizing themselves as co-owners. Suit 'B' and 'C' schedule properties are admittedly joint acquisition by both plaintiff and defendant. Suit 'A' schedule property is situated in Bengaluru, suit 'B' and 'C' schedule properties are situated at Chikkaballapur. Court at Bengaluru is having

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jurisdiction to entertain the suit and sought for dismissal of the appeal.

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We have given our anxious consideration to

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the rival contentions argued on behalf of both sides and perused the materials placed before the Court.

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The points that arise for consideration are:

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(1) Whether the plaintiff has proved the Will under Ex.P1?

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(2) Whether the plaintiff is the co-owner of suit schedule properties?

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(3) Whether the plaintiff is entitled to partition and possession of her half share in the suit schedule properties and accounts in respect of suit 'A' schedule property?

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(4) Whether the impugned judgment is perverse and calls for interference?

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Reg. Point No.1:

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Plaintiff's suit is based on the Will in respect

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of item No.1 of suit 'A' schedule property. Plaintiff is

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the propounder of the Will. Ex.P1 is the original Will. The relationship between the plaintiff and the defendant is not in dispute. The defendant denied the execution of the Will by his mother, her authority to execute the Will alleging that Will is a created document and it is shrouded with doubtful circumstances.

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In order to prove the execution of the Will,

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apart from deposing as a witness about the execution, attestation and registration of the Will by her mother, plaintiff has also examined one of the attester of the Will Sri. B. Keshub Chander as PW-2. We have carefully perused the evidence of plaintiff as well as PW-2. PW-1 has been cross-examined on behalf of the defendant. The tenor of crossexamination is on the point that Smt. Lalitha Naidu had no right to execute the Will. Whether Smt. Lalitha Naidu is having any right over the property or

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not will be dealt with while answering point No.2 later.

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The PW-2 has stated that Smt. Lalitha

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Naidu was not in a position to walk and move around and she was confined to the first-floor of her house in Chennai. She was being taken care by a Nurse. Witness states that he was visiting Smt. Lalitha Naidu frequently. During one such visit, she told him that she had intended to execute a Will in respect of suit 'A' schedule property. He and one Dr. Senthilnathan visited house of Smt. Lalitha Naidu on 05.10.1997. The entire Will was

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hand-written by Smt. Lalitha Naidu. Only the schedule is typed and attested by her including him. The Sub-Registrar visited the house and got registered Ex.P1. The cross-examination suggests that Smt. Lalitha Naidu was not in sound state of health to execute the document and the same has been denied by him asserting that she was having

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rheumatoid arthritis for her both the knees, which confined her to the bed. Except this, she was keeping sound state of mind and also good health. Smt. Lalitha Naidu had informed him that she was an Advocate and according to him, she was a knowledgeable person. Except suggesting that the Will is created, Smt. Lalitha Naidu was not in a sound state of mind, nothing is extracted from PW-2.

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As noted supra, even the crossexamination of PW-2 does not demonstrate anything suspicious circumstance regarding execution of the Will. When the Will was scribed by Smt. Lalitha Naidu, plaintiff was not present. Ex.P1, it is a handwritten Will, the age mentioned is 79 years. The evidence of PW-2 clearly suggests that Smt. Lalitha Naidu was confined to the bed because of knee arthritis, but she was in good health and sound state of mind. Absolutely there is no material on record to

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hold that the Will is shrouded with suspicious circumstances.

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A person who propounds the Will is

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required to prove the Will in accordance with law. On behalf of the defendant, decision in

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V. Prabhakara -Vs.- Basavaraj. K (Dead) by L.R.² is relied upon to contend that the propounder has to explain the exclusion of the other beneficiaries

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in bequeathing the property. Any suspicious circumstances surrounding execution of the Will has to be established. As referred supra, the evidence speaks that Smt. Lalitha Naidu was aged 79 years,

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she was an Advocate, she was suffering from knee arthritis and confined to the bed. Except that, she was in sound state of mind and she herself scribed the Will in her hand-writing in presence of both the attesters. Before writing the Will,

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Smt. Lalitha Naidu expressed her desire to execute

2 AIR 2021 SC 4830

RFA 2191/2017

the Will and accordingly, she secured both the attesters and in their presence, scribed the Will, attached the typed schedule to the Will in their presence. This demonstrates the execution of the Will by Smt. Lalitha Naidu, and its proof under Sections 63 and 68 of the Evidence Act. The plaintiff is able to prove the Will and the Will is not shrouded with suspicious circumstances.

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The other suspicious circumstance canvassed on behalf of the defendant in the course of argument is that the other beneficiaries are excluded. Suit 'A' schedule property was purchased in the name of Smt. Lalitha Naidu and 2 of her minor sons represented by herself as guardian. Smt. Lalitha Naidu was having 5 children; the plaintiff, the defendant, Sri. R. Bhaskar, Smt. Vimala and one more son who died at the young age. The sister of the plaintiff Smt. Vimala is also dead. The Will points out the allotment of 1/3^rd share each to

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the plaintiff, the defendant and Sri. R. Bhaskar. There is a reference in the Will that a fixed deposit of Rs.1,00,00,000/- (One Crore) was kept in the bank at Chennai, which was equally apportioned between the plaintiff, the defendant and Sri. R. Bhaskar.

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The defendant himself entered the witness box. In the cross-examination, he has categorically admitted that on the basis of Ex.P1/Will, he, plaintiff and Sri. R. Bhaskar have withdrawn the money from bank. The defendant admits that his brother Sri. R. Bhaskar has taken 1/3^rd share in item No.1 of suit 'A' schedule property, leaving behind 2/3^rd share. 1/3^rd share taken by Sri. R. Bhaskar is on the strength of Ex.P1/Will. This clearly indicates that the plaintiff, defendant and Sri. R. Bhaskar have accepted the execution of Ex.P1/Will; presenting the suit document before the bank, apportioned Rs.1,00,00,000/- (One Crore) fixed deposit made by their mother. This points out that at an undisputed

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point of time, the plaintiff, the defendant and Sri. R. Bhaskar were aware of the execution of Ex.P1/Will by their mother. After her death, they have realized Rs.1,00,00,000/- (One Crore) bank deposit on the strength of the Will. This points out that Smt. Lalitha Naidu has not deprived any share to her 3 children and the other two children are dead. The evidence relied upon by the parties does not demonstrate anything against the execution, attestation and registration of the Will. The parties have accepted it, realized the fruits under the Will. Hence, Will is acted upon. Accordingly, we answer point No.1.

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Reg. Point No.2:

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The plaintiff claims that she is a co-owner

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of the suit schedule properties. Suit 'B' and 'C' schedule properties are the agricultural lands situated at Chikkaballapur. During the course of cross-examination, defendant has admitted that 'B'

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and 'C' schedule properties are jointly acquired by him and the plaintiff in the year 1981. Such admission of the defendant can be found at internal page No.14 of his cross-examination, which is extracted as follows:

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"B and C properties have purchased jointly by myself and my sister in the year 1980. The question put to the witness that in the said property my sister is having share and witness states that he can simply say that they are joint owners as purchased together and it is left to the court to decide………"

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In view of unequivocal admission, the issue regarding 'B' and 'C' schedule properties is resolved.

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As regarding 'A' schedule property, the defendant admits that his brother Sri. R. Bhaskar has taken his 1/3^rd share, obtained B.B.M.P. khata separately and 2/3^rd share is left behind. The defendant contends that his mother Smt. Lalitha Naidu was only a legal guardian, suit 'A' schedule property was purchased by his father in the name of himself and Sri. R. Bhaskar. His mother had no share in the property. In the year 2010, there was a

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dispute between the plaintiff and the defendant with regard to suit 'A' schedule property. Defendant had filed a suit in O.S.No.25274/2010 and the plaintiff has filed another suit in O.S.No.26920/2010. Both the suits are filed seeking grant of permanent injunction. The copy of plaint in O.S.No.25274/2010 is marked at Ex.P11. In the cross-examination, the defendant has admitted the same. At para No.2 of the plaint, it is averred that the plaintiff and the defendant are the absolute owners. The relevant pleadings is extracted herein:

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"2. That the plaintiff is the absolute owner along with his sister now the defendant herein. But, the exclusively possession and enjoyment is by the plaintiff only. The defendant is having ownership as it is the ancestral property. The defendant is not having any concern, for the development of the property. Because of the joint ownership, she wanted to derive maximum benefit at the cost of plaintiff’s loss. "

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Now, the admission made by the defendant in his suit filed against the plaintiff makes it clear that the he and the plaintiff are the co-owners of suit 'A' schedule property. Therefore, we are not persuaded

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to accept the contention of the defendant that Smt. Lalitha Naidu had no right in suit 'A' schedule property. As discussed above while answering point No.1, the Will has been proved and thereby, the plaintiff succeeded to her 1/3^rd share of the mother as bequeathed in the Will. Accordingly, we answer point No.2.

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Reg. Point No.3:

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The suit of the plaintiff is one for partition. The suit 'A' schedule property is site property developed as per the JDA. The parties have released 35% of the developed property in favour of the developer and retained remaining 65% in joint custody. Suit 'B' and 'C' schedule properties are the agricultural lands jointly acquired by them and thereby, the plaintiff is entitled to half share along with the defendant. In a suit for partition, the plaintiff is entitled to accounts in respect of suit 'A' schedule property and mesne profits under Order XX

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Rule 12 of C.P.C. from the date of suit till she be put in the physical possession of her share of property. Accordingly, we answer point No.3.

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Reg. Point No.4:

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We have carefully perused the impugned judgment with reference to the argument canvassed on behalf of the defendant and also with reference to the pleadings. As discussed above, while answering points No.1 and 3, the suit 'A' schedule property is jointly acquired by the mother and her 2 minor sons, the mother bequeathed her 1/3^rd share in favour of the plaintiff under the Will. Will is proved. Suit 'B' and 'C' schedule properties are jointly acquired by the plaintiff and the defendant. The Trial Court after hearing the facts pleaded by both the parties and perusing the oral and documentary evidence has recorded its finding that the plaintiff is the co-owner, she is entitled to half share in the suit schedule properties. We do not find any error or perversion in

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the impugned judgment. Accordingly, point No.4 is answered.

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In view of the findings recorded

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hereinabove, the appeal is devoid of merits. In the result, the following:

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ORDER

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i) The appeal is dismissed ;

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ii) The impugned judgment and decree is confirmed.

Sd/-

CHIEF JUSTICE

Sd/JUDGE

PA CT:HS

Sri R Ravi Naidu v. Smt Manjula v Krishnan

Case brief

What is this about?

What did the court decide?

Sri R Ravi Naidu v. Smt Manjula v Krishnan

Case brief

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What did the court decide?

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