Mr Ravi Vs Smt Shobha

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96, R/W ORDER XLI, RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.07.2013 PASSED IN O.S.2611/2010 ON THE FILE OF V-ADDITIONAL CITY CIVIL JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND MESNE PROFITS.

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IN RFA NO. 101 OF 2014

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BETWEEN:

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SMT. BHAGYAMMA W/O LATE PUTTASWAMAIAH AGED ABOUT 56 YEARS R/A #13/A, 8TH CROSS SHIVASHAKTHI NAGAR KONANKUNTE CROSS BENGALURU - 560062.

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SMT. JANAKI W/O BASAVARAJ AGED ABOUT 40 YEARS R/O ANJANAPURA, NEAR BUS STOP BENGALURU-560079.

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MR. MAHADEVA S/O LATE PUTTASWAMAIAH AGED ABOUT 26 YEARS R/A #13/A, 8TH CROSS SHIVASHAKTHI NAGAR KONANKUNTE CROSS BENGALURU - 560062.

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...APPELLANTS

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(BY SRI. NATARAJ H.C., ADVOCATE)

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HC-KAR

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AND:

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SMT. SHOBHA D/O LATE PUTTASWAMAIAH AND BHAGYAMMA AGED ABOUT 32 YEARS R/A BEERESWARA NAGAR CHUNCHAGATTA MAIN ROAD KONANKUNTE BENGALURU - 560082.

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MR. MAHADEVA S/O LATE PUTTASWAMAIAH AGED ABOUT 25 YEARS R/A #13/A, 8TH CROSS SHIVASHAKTHI NAGAR KONANKUNTE CROSS BENGALURU - 560062.

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...RESPONDENTS

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(BY SRI. PRAKASH M.H., ADVOCATE FOR R1; R2 SERVED AND UNREPRESENTED)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96, R/W ORDER XLI, RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.07.2013 PASSED IN O.S.2611/2010 ON THE FILE OF V-ADDITIONAL CITY CIVIL JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH

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5 - NC: 2025:KHC:42310 RFA No.161 of 2014 C/W RFA No.101 of 2014

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HC-KAR

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ORAL JUDGMENT

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RFA No.161 of 2014 is filed by one Ravi, (not a

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party before the Trial Court) challenging the judgment and decree dated 22.07.2013 passed in O.S. No. 2611 of 2010 on the file of the V Additional City Civil Judge, Bengaluru, wherein, the Trial Court has decreed the suit of the plaintiff in part.

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RFA No.101 of 2014 is filed by the defendant No.1 challenging the judgment and decree dated 22.07.2013 passed in O.S. No.2611 of 2010 on the file

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of the V Additional City Civil Judge, Bengaluru Court, wherein, the Trial Court has decreed the suit of the plaintiff in part.

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For the sake of convenience, the parties in these appeals shall be referred to in terms of their status and ranking before the trial Court.

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HC-KAR

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The brief facts leading to the suit, as averred in

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the plaint are that, the plaintiff and defendant Nos.2 to 4 are the children of late Puttaswamaiah and defendant No.1. It is further stated in the plaint that, late Puttaswamaiah had certain ancestral properties and some were sold and thereafter, schedule 'A' property was purchased through the income derived from the Joint Family consisting of plaintiff and defendants. It is also stated that the defendant No.1 purchased the schedule 'B' property as per the registered Sale Deed dated 28.01.2004 and the said property was also purchased through the joint family nucleus. It is also stated that the defendants have constructed building in schedule 'B' property pursuant to the compensation received from KIADB as the land belonging to the father of the plaintiff was acquired by KIADB. It is also stated that, at the time of construction of the building the defendants promised

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HC-KAR

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the plaintiff to give share in the constructed building, however, the defendants refused to give her the legitimate share of the plaintiff and refused for the partition of the suit schedule property and as such, the plaintiff has filed suit in OS No.2611 of 2010 before the Trial Court, seeking relief of partition and separate possession in respect of the suit schedule property.

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After service of summons, defendant Nos. 3 and

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4 remained absent. Defendant Nos. 1 and 2 entered appearance, however, the defendant No.2 did not contested the matter by filing written statement. Defendant No.1, alone, filed written statement, denying the averments made in the plaint. It is the case of the defendant No.1 that, suit schedule properties were acquired by the defendant No.1 through her independent income and further contended that, the plaintiff and remaining defendants

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HC-KAR

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have no right in respect of the suit schedule property. Accordingly, sought for dismissal of the suit.

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On the basis of the rival pleadings, the Trial Court has formulated the following issues for its consideration.

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"1. Whether the plaintiff proves that during the lifetime of late Puttaswamaiah he has ancestral properties and sold few of them and purchased the suit schedule properties in the name of first defendant?

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2. Whether the plaintiff further proves that defendant No.1,3 and 4 have constructed the building on the "B" schedule property from the compensation amount from KIADB for having acquired the joint family property at Harohalli?

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RT3. Whether the plaintiff proves that the suit properties are joint family properties and they are in joint possession and they have all succeeded to the estate of late Puttaswamaiah?

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4. Whether the first defendant proves that the suit schedule properties are her self acquired properties and neither the plaintiff nor the other defendants have any manner of right?

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HC-KAR

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5. Whether plaintiff is entitled for relief claimed in the suit?

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6. What order or decree?"

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In support of their case, the plaintiff examined

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herself as PW1 and marked 03 documents as Exhibits P1 to P3. The defendants examined 03 witnesses as DW1 to DW3 and marked 02 documents as Exhibits D1 and D2.

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The Trial Court, after appreciating the pleadings and evidence on record, by its judgment and decree dated 22.07.2013 decreed the suit of the plaintiff in part, holding that, the plaintiff is entitled for 1/5^th share in suit schedule properties. Being aggrieved by the judgment and decree passed by the Trial Court, the defendant No.1 has preferred RFA No.101 of 2014 and one Sri. Ravi, claims to be the son late Puttaswamaiah and defendant No.1 and brother of the

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HC-KAR

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plaintiff, has preferred RFA No. 161 of 2014, under

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Section 96 of CPC.

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I have heard Sri. Nataraj H.C., learned counsel

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for the appellants and Sri. Prakash M.H., learned counsel appearing for the contesting respondents.

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Sri. Nataraja H.C., learned counsel for the appellants contended that, since the suit schedule properties are the self acquired properties of

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defendant No.1 and as such, the Trial Court has ignored the scope and ambit of Section 14 of the Hindu Succession Act, (hereinafter referred to as 'Act') and therefore, sought for interference of this Court. It is also argued by the learned counsel for the appellants by referring to the averments made in the plaint, at paragraphs 3 and 4 that plaintiff has utterly failed to establish that, the suit schedule properties have been acquired by the defendant No.1 through

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HC-KAR

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the joint family income and that apart, the defendant No.1 was working with one Kanaka Silk Mills as per Ex.D1, and was drawing a salary of Rs.4,000/- per month and therefore, submitted that the finding recorded by the Trial Court requires to be set aside. It is also argued by the learned counsel for the appellants that, the defendant Nos.3 and 4 are same parties before the Trial Court proceedings, and plaintiff has not arraigned the appellant in RFA No.161 of 2014 (Sri. Ravi) as a party before the Trial Court and therefore, the Trial Court has not properly appreciated the material on record and as such, sought for interference of this court.

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Per contra, Sri M.H. Prakash, learned counsel for the contesting respondents submits that the Trial Court after considering the material on record as the suit schedule properties have been acquired through the joint family nucleus and that apart, the husband of

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the defendant No.1 and father of the plaintiffPuttaswamaiah was working as 'D' group employee in the Government and having taken note of the entire material on record, the Trial Court has decreed the suit holding that the plaintiff is entitled for 1/5^th share in the suit schedule properties and the said finding

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requires to be confirmed in these appeals.

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In the light of the submission made by the learned counsel appearing for the parties, the points for determination in the present appeals are as follows:

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i) Whether the defendant No.1 proved that the suit schedule properties have been acquired through her independent income?

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ii) Whether the judgment and decree passed by

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the Trial Court requires interference in these appeals.

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HC-KAR

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Having heard the learned counsel appearing for the parties, I have perused the original records. In order to understand the relationship between the parties, the Genealogical Tree of the parties is

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reproduced as follows:

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	PUTTASWAMY
	/
SHOBHA	JANAKI MAHADEVA	RAVI

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Perusal of the family tree would indicate that the plaintiff, defendant No.2, defendant No.3, and Sri. Ravi (appellant in RFA No.161 of 2014) are the children of Puttaswamaiah and Bhagyamma (Defendant No.1). Perusal of the records would indicate that, the husband of the defendant No.1 Puttaswamaiah died on 07.02.2002 (Ex.D2). It is the case of the plaintiff that the suit schedule properties have been acquired through the joint family income,

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however, same was denied by the defendant No.1. In the cause title before the Trial Court, the name of the defendant Nos.3 and 4 are one and the same. Appellant-Sri. Ravi in RFA No.161 of 2014 has not been arraigned as party before the Trial Court, however, the Trial Court after the considering the examination-in-chief, particularly, paragraph 2 of DW1 and DW3, arrived at a conclusion that, the appellant in RFA No.161 of 2014-Ravi, was son of the deceased Puttaswamaiah and defendant No.1. It is also forthcoming from the records that, the address of the cause title of defendant No.1, defendant No.3 and the appellant-Ravi in RFA No. 161 of 2014 are one and the same, which fortifies the fact that, both defendant No.3 and Sri. Ravi (appellant in RFA No.161 of 2014) are residing along with defendant No.1. Perusal of the evidence of the DW1, wherein the DW1 had purchased, the schedule 'A' property as per the

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registered Sale Deed dated 13.10.2003 (Ex.P1), and the Schedule 'B' property as per the registered Sale Deed dated 28.01.2004 (Ex.P2). Evidence on record would also indicate that Puttaswamaiah was working as 'D' group employee in the Department of Survey and had immovable properties and same was acquired by KIADB. The compensation was released in respect of the such acquisition and thereafter, distributed between the family members of deceased Puttaswamaiah and his brothers. DW1, has deposed in paragraph 5 of the Cross-Examination that she was working in Kanaka Silk Mills and was earning Rs.4,000/- per month. However, the said aspect is not reflected in the written statement as she was working and earning Rs.4,000/- per month as stated in her deposition. Except for paragraph 10 of the written statement, wherein it is stated that the properties are self-acquired, there is no material or explanation

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HC-KAR

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provided in the written statement as to the source of income or means by which Defendant No.1 acquired the suit schedule properties. However, in the Examination-in-Chief DW1 further deposed that she availed Rs. 5 lakhs from one Sri. Kempegowda, who is father in law of defendant No.3. It is also to be noted

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that defendant No.3, is a witness to the registered Sale Deeds produced at Exhibit P1 and P2. It is also not forthcoming from the records as to defendant No.1 has examined the employer to prove Exhibit D1 strangely it is to be noted that, no date is mentioned in the Exhibit D1 as to ascertain the employment details of DW1 (defendant No.1). It is also to be noted that at the time of filing of the suit, age of defendant No.1, was 56 years. Taking into consideration the aforementioned aspects, on record fortifies that, the defendant No.1 has failed to prove with regard to income derived from her in employment or through

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any other source of income as to purchase the suit schedule property as per Exhibits P1 and P2, and therefore, I am of the view that, the Trial Court, after appreciating the material on record, rightly arrived at a conclusion with regard to the issue No.4, which requires to be confirmed in these appeals. The Trial Court also took into account the genealogy of the parties and noted that Sri. Ravi (the appellant in RFA No.161 of 2014) had been omitted from the array of

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parties, however, considering the undisputed fact, as stated in the written statement, regarding protecting the interest of Sri. Ravi’s share, the Trial Court decreed the suit by holding that the plaintiff and defendants Nos.1 to 3, along with Sri. Ravi, are entitled for a one-fifth (1/5th) share each in the suit schedule properties. It is well established principle in law that, in a suit for partition and separate possession, if the plaintiff had taken a plea that the

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suit schedule properties are the joint family properties

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and on the other hand the defendants took up a specific plea with regard to self acquisition, then it is the duty of the defendants to prove that such self acquisition is based on independent income of the defendants and not through the joint family nucleus. In that view of the matter, taking into consideration the finding recorded by the Trial Court, I am of the view that, the Trial Court has properly assessed the material on record and rightly arrived at a conclusion as to the fact that the defendant No.1 has no independent income to purchase the suit schedule properties and on the other hand, it is not disputed that, the father of the plaintiff -Puttaswamaiah had immovable properties and same were acquired by KIADB and in furtherance of the same, the compensation has been released in favour of Puttaswamaiah and his family. Therefore, I am of the

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view that, the points for consideration referred to above, favours the plaintiff and accordingly, the appellants have not made out a case for interference as to the finding recorded by the Trial Court. In the result, the Regular First Appeals are dismissed .

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SD/- (E.S.INDIRESH) JUDGE

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SB List No.: 1 Sl No.: 6

Mr Ravi v. Smt Shobha

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Mr Ravi v. Smt Shobha

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