P Suresh Babu Vs Smt B R Manjula

SMT MEENA RAMESH AGE :MAJOR, 58 YEARS WIFE OF SRI B RAMESH AND D/O LATE S PURUSHOTHAMAN RESIDING PRESENTLY AT NO.1752/99 EAST END ‘A’ MAIN ROAD 9^TH BLOCK, JAYANAGAR BENGALURU-560 069

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…RESPONDENTS

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(BY SRI. CHANDRASHEKAR, ADVOCATE FOR C/R1 TO R3)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 24.09.2019 PASSED IN O.S.No.7252/2017 ON THE FILE OF THE LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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ORAL JUDGMENT

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This appeal by the defendant in O.S.No.7252/2017 on the file of LVI Additional City Civil and Sessions Judge, Bengaluru, is directed against the impugned judgment and decree dated 24.09.2019 whereby the said suit filed by the respondent Nos.1 to 3/plaintiffs for partition and separate possession of their alleged share in the suit schedule immovable properties was decreed by the Trial Court in favour of the respondents/plaintiffs.

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The brief facts of the present appeal are as under: The suit schedule immovable properties were originally owned by Smt. Lakshminarasu, W/o Purushothaman, who had predeceased her. It is an undisputed fact and a matter of record that aforesaid Smt. Lakshminarasu died on 23.01.2017 leaving behind P.Suresh Babu, the defendant herein and Smt. P.Meena Ramesh, the plaintiff No.3 herein along with Smt. B.R. Manjula and Smt. Yashaswini Srinivas, the plaintiff Nos.1 and 2 herein who are the wife and daughter of predeceased son P. Srinivasan, to succeed to her estate including the suit schedule immovable properties as her heirs and legal representatives.

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Pursuant to the demise of aforesaid Smt.

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Lakshminarasu, the plaintiff Nos.1 and 2 being the wife and daughter of P.Srinivasan, the predeceased son of Smt. Lakshminarasu along with Smt. P. Meena Ramesh, D/o Smt. Lakshminarasu instituted the aforesaid suit against the defendant herein - P. Suresh Babu, S/o Smt. Lakshminarasu for partition and separate possession of their alleged shares in the suit schedule properties and for other reliefs.

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The said suit was contested by the appellant/defendant. Apart from the denying the various claims and contentions urged by the plaintiffs, the appellant/defendant also propounded an alleged Will dated 22.02.2015 said to have been executed in his favour by Smt. Lakshminarasu.

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Pursuant to the pleading of the parties, the Trial Court framed the following issues:

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1. Whether the plaintiffs prove that they are in joint possession and enjoyment of suit property together with the defendant?

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2. Whether the defendant proves that the father of first plaintiff and husband of the second plaintiff namely

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Late P.Srinivasan had executed relinquishment deed dated:21.10.1992 and thereby released his right of share over the suit property?

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3. Whether the defendant proves that Lakshminarasu had executed will dated:22.02.2015 in his favour and bequeathed the suit property in his favour?

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4. Whether the plaintiffs are entitled to the relief of partition?

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5. What order or decree?

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On behalf of the plaintiffs, plaintiff No.1 examined herself as P.W.1 and documentary evidence as per Exs.P.1 to 6 were marked. While the appellant/defendant examined himself as D.W.1, no documentary evidence was exhibited on his behalf.

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After hearing the parties, the Trial Court has come to the conclusion that the appellant had not proved the alleged hand written Will dated 22.02.2015 said to have been executed in his favour by Smt. Lakshminarasu and accordingly rejected the claim of the appellant/defendant and upheld the claim of the respondents/plaintiffs and decreed the suit in their favour

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by passing the impugned judgment and decree which is assailed in the present appeal.

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On perusal of the material on record, it would indicate that during pendency of the present appeal, the appellant as well as respondent No.1 expired and their legal representatives have been brought on record.

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During the course of the present appeal, the legal representatives of appellant/defendant has filed an application I.A.No.1/2024 under Order XLI Rule 27 CPC for permission to produce two documents viz., alleged hand written Will dated 22.02.2015, said to have been executed by Smt. Lakshminarasu in favour of P. Suresh Babu as well as alleged unregistered/notarized Swayam Ghoshana Pramana Pathra (Hakku Bidugade partra) dated 21.10.1992, alleged to have been executed by late P. Srinivasan, who expired on 26.08.2021.

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The respondents have filed their objections to I.A.No.1/2024 and have specifically denied the legality, validity, execution etc., of the alleged documents produced by the appellant/defendant along with the application.

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Heard learned counsel for the appellants and

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learned counsel for the respondents and perused the material on record.

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The following points arise for consideration in the present appeal:

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(1) Whether the application I.A.No.1/2024 filed by the appellant/defendant under Order XLI Rule 27 CPC deserves to be allowed?

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(2) Whether the impugned judgment and decree passed by the Trial Court warrants interference in the present appeal?

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(3) What order?

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Regarding Point Nos.1 and 2 :

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Since both the points are interlinked, they are taken up together for consideration.

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A perusal of the material on record including the impugned judgment and decree would indicate that, it is the specific contention of the appellant/defendant that late P. Srinivasan, husband of plaintiff No.1 and father of plaintiff No.2

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had executed unregistered relinquishment deed dated 22.10.1992 in favour of the appellant/defendant herein who became the owner of the suit schedule property. It is also alleged and contended by the appellant/defendant that during the life time of Smt. Lakshminarasu, she had executed her last unregistered Will dated 22.02.2015 bequeathing her right in the suit schedule property in favour of the appellant/defendant.

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However, the said documents were not marked as exhibits during the course of evidence of the appellant/defendant, as a result of which the Trial Court rejected the claim of the appellant and upheld the claim for partition put forth by the respondents/plaintiffs by holding as under:

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“13. In order to prove the case of the plaintiff, plaintiff No.1 got examined herself as P.W.1 by filing her affidavit evidence reiterated the plaint averments and deposed that, she is the daughter-in-law and plaintiff No.3 is her daughter and plaintiff No.2 is the grand-daughter of Late Purushothaman and late Smt.Lakshminarasu. The defendant is the son of late Purushothaman and Smt.Lakshminarasu. S.Purushothaman died on 14.10.1998 and Smt.Lakshminarasu died on 23.01.2017 intestate

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leaving behind the plaintiffs and defendant as legal representatives. It is further deposed by PW.1 that, her husband Srinivasan P. and father of 2^nd plaintiff herein died on 11.01.2013 leaving behind them as the legal representatives. In order to prove the same the genealogical tree is marked as Ex.P.1 and even otherwise there is no dispute with regard to the relationship of the parties as averred by the plaintiffs in the present suit. PW.1 has produced the death certificates of S.Purushothaman, Smt.Lakshiminarasu and P.Srinivasan which are marked as Ex.P.3 to P.5. There is no dispute with regard to the death of said persons in the present suit.

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14. PW.1 further deposed that, during the life time of Smt.Lakshminarasu she had purchased the suit property under Register Sale Deed dated 11.03.1992 for valuable consideration. In order the substantiate the same certified copy of the Sale Deed is marked as Ex.P.2. On going through the recitals of Ex.P.2 it is pertinent to note that, the suit property was purchased by said Smt.Lakshminarasu for valuable consideration under the said Sale Deed and Encumbrance Certificate is marked as Ex.P.6. The recitals of Ex.P.6 clearly discloses that, the suit property was alienated in favour of Smt.Lakshminarasu under Ex.P.2. It is further deposed by PW.1 that, the said Smt.Lakshminarasu died intestate leaving behind plaintiffs and defendant herein to succeed the suit property as legal representatives. It is also deposed by PW.1 that, after the death of Smt.Lakshminarasu the plaintiffs and defendant

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became the joint owners of the suit property and suit property is not yet divided between them.

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15. On the other hand the defendant contended that, during the life time of P.Srinivasan who is the husband of PW.1 herein has relinquished his right over the suit property by executing Relinquishment Deed dated 21.10.1992 and transferred the right of deceased P.Srinivasan in the suit property in favour of defendant and also contended that, during the life time of Smt.Lakshminarasu she has executed unregistered Will dated 22.02.2015 bequeathing the right of the suit property in favour of defendant herein. In order to substantiate the said contention of defendant the defendant got examined himself as DW.1 by filing his affidavit evidence and deposed that, the suit property was acquired by Smt.Lakshminarasu during her life time under Register Sale Deed dated 11.03.1992 this fact is not in dispute between the parties to the suit. As already discussed above as per Ex.P.2 the suit property was purchased by Smt.Lakshminarasu during her life time. Admittedly, the house was constructed on the suit property consisting of ground floor and first floor. DW.1 further deposed that, his brother P.Srinivasan has relinquished his right over the suit property by executing Relinquishment Deed dated 21.10.1992. But in order to substantiate the same no such documents produced on behalf of DW.1. It is also claimed by DW.1 that, Smt.Lakshminarasu executed unregistered Will on 22.02.2015 bequeathing the entire right over the

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suit property in his favour. But in order to substantiate the same he has not produced any such Will. But in the crossexamination of DW.1 by the plaintiff's counsel he has specifically admitted that, plaintiffs and defendant herein have got equal right over the suit property and admittedly the rent derived out of suit property is utilized by DW.1 and he has not partitioned the said rent between plaintiffs and defendant herein. It is also admitted by DW.1 in the crossexamination by plaintiffs counsel that, in March 2017 the plaintiffs 1 and 2 have demanded for partition and separate possession of their legitimate share in the suit property and further admitted that, after the death of Smt.Lakshminarasu the plaintiffs and defendant being the legal representatives have succeeded the suit property. It is further admitted by DW.1 in the cross-examination of plaintiffs counsel that, plaintiff No.1 along with plaintiff No.2 and plaintiff No.3 and defendant herein have got equal share in the suit property.

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16. Since DW.1 not produced any such documents to prove that, husband of PW.1 and father of 2^nd plaintiff executed Relinquishment Deed, they are entitled for 1/3^rd share being the wife and daughter of deceased P.Srinivasan who is the brother of DW.1 herein. Likewise the 3^rd plaintiff being the sister of defendant herein is also entitled for 1/3^rd share in the suit property and defendant is entitled for remaining 1/3^rd share in the suit property. Since there is no dispute with regard to the relationship of parities to the suit and Smt.Lakshminarasu died intestate leaving behind

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plaintiffs and defendant as the legal representatives they are entitled for partition and separate possession of their legitimate share in the suit property and since the plaintiffs have got equal share in the suit property the defendant can be restrained from alienating the same in favour of 3^rd parties. Accordingly, I hold Issues No.1 and 4 as Affirmative, Issues No.2 and 3 as Negative.”

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As can be seen from the impugned judgment and decree, the Trial Court came to be conclusion that the appellant had not proved the alleged unregistered relinquishment deed said to have been executed by P.Srinivasan or the alleged hand written Will said to have been executed by Smt. Lakshminarasu and thereby came to the conclusion that the claim of the appellant/defendant would be liable to be rejected.

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However, during the course of the present appeal, the legal representatives of the appellant/defendant having filed an application seeking permission to produce the additional evidence, it would be necessary to record to the averments made by the appellant/defendant in the affidavit in support of the application which read as under:

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“Affidavit of Appellant No.1(a)

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In support of her accompanying I.A. filed for production two vital original documents

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Under Order 41 Rule No. 27.(1)@a), r/w. Section - 151 of CPC, 1908)

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I, Smt. Pramila Babu, wife of late Sri Suresh Babu, the Appellant No. 1(a) herein submit most respectively as under:

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1. My husband, late Sri Suresh Babu was constrained and compelled to approach this Hon'ble Court on 03-032020, challenging the impugned unjust, untenable, erroneous and capricious Judgment passed on 24-09-2019 and the resultant impugned Preliminary Decree notified on 04-10-2019, by the Hon'ble Trial Court of LVI Additional City Civil & Sessions Judge, Bengaluru (CCCH-57)

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2. Subsequent to the sad demise of my husband, the said late Sri Suresh Babu, on 26-08-2021, I have come on record as Appellant No. 1(a), along with my son, Akshay, Appellant No.1(b), and daughter Smt. Aishwaryalakshmi, Appellant No. 1(c).

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3. I am Well versed with the facts and circumstances of the case and hence, am competent to swear in this affidavit.

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4. Our prime grievance has been that the said Hon'ble Trial Court has gone on record erroneously in para - 15, page No.11 there-at, (page -27 here-in), saying:

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"But in order to substantiate the same no such document produced on behalf of DW-1,"

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The said reference pertains to the Original Relinquishment Deed dated 21-10-1992, executed by late Sri P. Sreenivasan, which was already very much on record, vide: the recordings in the Order Sheet dated 0102-2019, with regard to allowing the IA.III of the Defendant, after hearing both the sides and payment of cost of Rs.200/- by the Defendant.

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The said Original Relinquishment Deed dated 21.10.1992 is submitted here-with as Annexure No.2, herein. 5. Similarly, the Hon'ble Trial Court has come to an erroneous conclusion further by saying:

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"But in order to substantiate the same he (DW-1) has not produced any such Will."

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But the fact remains that a self-hand written Original Will executed on 22-02-2015 voluntarily and duly witnessed by two independent M.S BALLAL BENGAL URWitnesses, left behind by the Testator, late Smt. Lakshminarasu (Dead on 23-01-2017), Was brought on record on 01-02-2019 (IA-3) and further on 25-01-2019, through Examination-in-Chief of the Defendant (DW-1), by way of Affidavit.

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The said Original Will dated 22-02-2015, is submitted here-with as Annexure No.1 herein.

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6. However, the said DW-1, late Sri Suresh Babu, was not allowed to get marked the said two vital original

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documents as exhibits, in his further evidence dated 27-022019.

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7. Further, the Hon'ble Trial Court has come to an unjust and erroneous conclusion in para -28 of the Judgement dated 24-09-2019 saying:

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“and Smt. Lakshminarasu died intestate (2)-"", ignoring altogether the said two vital original documents, by denying the legitimate right to DW-1 to prove the contents of the said two vital documents, which has resulted in gross injustice to us.

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8. Even at this belated stage, we are ready to prove the genuineness and the validity of the said Will dated 2202-2015, in the ongoing proceedings in F.D.P. No.12/2020 before the Hon'ble Trial Court, through the said independent witnesses, recorded therein.

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9. We, therefore, pray most respectfully that this Hon'ble Court be pleased to stay, in the interest of equity and justice, the impugned judgement dated 24-09-2019 and the resultant impugned Decree notified on 04-102019, by remanding the above referred two vital original documents to the Hon'ble Trial Court, for further proceedings in the ongoing F.D.P. No.12/2020. which is in advanced stage of consideration of the Court Commissioner's Report dated 30-10-2023, submitted on 18-12-2023.

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I, state and declare solemnly that what has been stated by me above is all true and correct to the best of my knowledge, information and belief.”

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Though the respondents/plaintiffs have specifically denied and disputed both the aforesaid relinquishment deed as well as the alleged hand written Will propounded by the appellant/defendant, I am of the considered opinion that the averments made in the affidavit in support of the application I.A.No.1/2024 constitute valid and sufficient cause which demonstrates that despite exercise of due diligence, the appellant could not produce the documents as evidence before the Trial Court.

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It is also seen that the said documents are relevant and necessary for the purpose of adjudication of the issues in controversy between the parties and consequently without expressing any opinion on the merits and demerits on the rival contentions on all aspects of the matter including the aforesaid documents, I am of the considered opinion that it would be just and appropriate to provide one more opportunity to the appellant/defendant to produce the said documents in evidence by reserving liberty in favour of the respondents/plaintiffs to impeach the same during the course of the Trial, by setting

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aside the impugned judgment and decree and by remitting the matter to the Trial Court for reconsideration afresh in accordance with law within a stipulated time frame.

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In the result, point Nos.1 and 2 are answered accordingly.

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Regarding Point No.3 :

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In view of the foregoing discussion, following:

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ORDER

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(i) The appeal is allowed .

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(ii) The impugned judgment and decree dated 24.09.2019 passed in O.S. No.7252/2017 on the file of LVI Additional City Civil and Sessions Judge, Bengaluru is hereby set aside.

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(iii) I.A.No.1/2024 is hereby allowed.

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(iv) The documents produced along with the I.A.No.1/2024 are hereby received on record.

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(v) The matter is remitted to the Trial Court for reconsideration afresh in accordance with law.

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(vi) The parties are hereby directed to appear before the Trial Court on 01.04.2025 without awaiting further notice from the Trial Court.

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(vii) The Registry is directed to transmit I.A.No.1/2024 along with the documents produced with the said application to the Trial Court for reconsideration afresh.

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(viii) It is however made clear that all objections of the respondents/plaintiffs as regards admissibility, proof, relevance, probative value, etc., of the additional documents are kept open to be decided by the Trial Court and no opinion is expressed on the same.

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