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2019 DIGILAW 2203 (KAR)

Shivaji Rao Maney v. Kum. Pushpa Bai

2019-11-25

H.P.SANDESH

body2019
JUDGMENT : H.P. SANDESH, J. 1. This appeal is filed by defendant No.2 challenging the judgment and decree passed in O.S.No.5372/1992 dated 11.11.2011 passed by the XXXVIII Additional City Civil and Sessions Judge, Bengaluru granting 1/6th share in the suit schedule property in favour of plaintiff No.1(b). 2. The parties are referred to as per their original rankings before the Court below in order to avoid confusion and for the convenience of the Court. 3. Plaintiff Nos.1 and 2 had filed the suit against defendant Nos.1 to 5 seeking the relief of partition and separate possession of 2/7th share in the suit property and for mesne profits describing the suit schedule property as the joint family property. 4. It is the case of the plaintiffs that defendant Nos.1 to 5 are their brothers and sisters and they are the children of late Narasinga Rao Maney and late Smt.Manubai Maney. The grand father of the plaintiffs late Siddaoji Rao Maney had purchased the suit schedule property from its previous owner under the registered sale deed dated 17.01.1935 for consideration of Rs.600/-. Later their grand father had gifted the suit property in favour of his daughter-in-law i.e., their mother Smt.Manubai Maney. Hence, their mother was the absolute owner of the suit property. Their mother died in testate on 24.11.1971 leaving behind them, defendant Nos.1 to 5 and their father late Sri Narasinga Rao Maney as her legal heirs. Their father died in the year 1976 leaving behind them and defendant Nos.1 to 5 as his legal heirs. Hence, they succeeded to the suit property and became entitled to 1/7th share each in the suit property. No partition was effected between them. However, they themselves and defendants are residing separately in different portions of the suit property. It is also the case of the plaintiffs that defendant Nos.1 and 2 are collecting monthly rent of Rs.2740/-from the tenants and they are not sharing the same with them. Plaintiff No.1 had also filed the suit against defendant Nos.1 and 2 in O.S.No.912/2002 praying the relief of permanent injunction restraining them from taking water from common water tap, the said suit is pending. Inspite of their request and demand, defendant Nos.1 and 2 have refused to effect partition in the suit property and to give their 2/7th share. Plaintiff No.1 had also filed the suit against defendant Nos.1 and 2 in O.S.No.912/2002 praying the relief of permanent injunction restraining them from taking water from common water tap, the said suit is pending. Inspite of their request and demand, defendant Nos.1 and 2 have refused to effect partition in the suit property and to give their 2/7th share. It is also their case that there was some agreement in the year 1992, but under the said agreement, no shares were allotted in suit property to plaintiff No.2 and defendant Nos.3 to 5. The said agreement cannot be considered as partition. In view of provisions of Hindu Succession Act, plaintiff No.2 and defendant Nos.3 to 5 are also entitle to 1/7th share each in the suit schedule property. Defendant Nos.1 and 2 refused to effect partition in the suit property and to give 1/7th share each. Thus, they were constrained to file the suit for partition against the defendants. 5. In pursuance of the suit summons, defendant Nos.3 to 5 have failed to appear before the Court and placed exparte. Defendant Nos.1 and 2 have appeared through their counsel and filed their written statements separately. In their written statement, defendant Nos.1 and 2 have admitted their relationship with plaintiffs and defendant Nos.3 to 5 and contended that their grand father late Siddoji Rao Maney was the owner of the suit property and he had gifted the same in favour of his daughter-in-law i.e., their mother. They have also admitted that she died on 24.11.1971. After her death, their father also died on 17.12.1978 leaving behind them, plaintiffs and defendant Nos.3 to 5. 6. Defendant No.1 has contended in his written statement that after the death of their mother and father, he himself and plaintiff No.1 and defendant No.2 had succeeded to the suit property and that on 09.06.1982, himself, plaintiff No.1 and defendant No.2 had entered into an agreement and agreed to effect partition in respect of the suit schedule property among themselves. They had also agreed to purchase a vacant site for plaintiff No.2 and defendant Nos.3 and 4. He has contended that partition effected pursuant to the agreement dated 09.06.1982 has been acted upon and has become final. Hence, plaintiff No.2 and defendant Nos.3 to 5 are not entitled to any share in the suit schedule property. 7. They had also agreed to purchase a vacant site for plaintiff No.2 and defendant Nos.3 and 4. He has contended that partition effected pursuant to the agreement dated 09.06.1982 has been acted upon and has become final. Hence, plaintiff No.2 and defendant Nos.3 to 5 are not entitled to any share in the suit schedule property. 7. Defendant No.2 in his written statement contended that plaintiff No.2 and defendant Nos.3 to 5 are married and well settled in their respective matrimonial homes. At the time of their marriages, dowry, gold and other monetary benefits were given to them. He has further contended that they had another property bearing Site No.165 situated at 4th Block, Rajajinagar, Bengaluru and they had sold the said property and the sale proceeds were given to plaintiff No.2 and defendant Nos.3 to 5. He has further contended that on 09.06.1982, himself, defendant No.1 and plaintiff No.1 had entered into an agreement and effected partition in respect of the suit property. Since the date of partition, he himself, defendant No.1 and plaintiff No.1 are residing separately. Though plaintiff No.2 is not entitled to any share in the suit property, but she instigated plaintiff No.1 to file the false suit. Defendant No.2 further contended that during the pendency of the suit, plaintiff No.1 had died and his 1/3rd share in the suit property had devolved upon him and defendantNo.1. Hence, now he is entitled to Vi share and defendant No.1 is also entitled to Vi share in the suit property. 8. Defendant Nos.1 and 2 have contended that at the instigation of plaintiff No.2, plaintiff No.1 had filed a false suit. Hence, they prayed this Court to dismiss the suit. 9. Based on the pleadings of the plaintiffs and the contentions raised by the defendants in their written statements, the Court below has framed the following issues:- 1. Whether the plaintiffs and defendants are entitled to succeeds Class-I heirs of late Narasinga Rao Maney and Manu Bai Maney? 2. Whether the 1st defendant proves that under an agreement, the first plaintiff, second defendant divided the suit property among themselves on 9.6.1982? 3. Whether the first defendant proves that the daughters of Narasingarao Maney are not entitled to any share in the suit schedule property as contended in Para (d) of written statement? 4. 2. Whether the 1st defendant proves that under an agreement, the first plaintiff, second defendant divided the suit property among themselves on 9.6.1982? 3. Whether the first defendant proves that the daughters of Narasingarao Maney are not entitled to any share in the suit schedule property as contended in Para (d) of written statement? 4. Whether the plaintiffs are entitled to a share in the suit property and if so what share? 5. What order? 10. In the meantime, plaintiff No.1 had died. After the death of plaintiff No.1, plaintiff No.2 and her daughter have filed interim application under Order 1 Rule 10 of Code of Civil Procedure praying permission of the Court to come on record as legal representatives (legatees) of deceased plaintiff No.1 alleging that by executing a Will dated 29.05.1998 deceased plaintiff No.1 had bequeathed his share in the suit schedule property in their favour. Subject to proof of execution of Will dated 29.05.1998, by deceased plaintiff No.1, the interim application filed by plaintiff No.2 and her daughter was allowed. During pendency of suit i.e., on 16.02.2010, plaintiff No.2 had died, her daughter Kumari Pushpa Bai was already on record as plaintiff No.1(b). In the meantime, defendant No.2 had died and his legal heirs have been brought on record as defendantNos.1(a) and (b) and they have appeared before the Court through their counsel. Defendant No.5 also passed away. Defendant No.5(c) failed to appear before the Court and placed exparte. 11. The plaintiffs to substantiate their claim examined themselves as P.Ws.1 and 2 and got marked the documents at Exs.P.1 to P3. After the death of plaintiff Nos.1 and 2, plaintiff No.1(b) Smt.Pushpabhai examined herself as P.W.3. In support of his case, defendant No.2 examined himself as D.W.1 and got marked 18 documents at Exs.D1 to D18. Legal representatives of deceased defendant No.1 had not led any evidence on their behalf. 12. The Court below, after hearing the learned counsel answered issue No.1 in the affirmative and issue Nos.2 and 3 in the negative and issue No.4 in the affirmative by holding that plaintiff No.1(b) is entitled to 1/6th share in the suit property. Hence, the present appeal is filed before this Court by defendant No.2. 13. 12. The Court below, after hearing the learned counsel answered issue No.1 in the affirmative and issue Nos.2 and 3 in the negative and issue No.4 in the affirmative by holding that plaintiff No.1(b) is entitled to 1/6th share in the suit property. Hence, the present appeal is filed before this Court by defendant No.2. 13. The main contention of defendant No.2 before this Court is that the Trial Court while allowing the interlocutory application has observed that subject to proof of execution of the Will dated 29.05.1998, the interlocutory application was allowed. They were treated as plaintiff Nos.1(a) and (b) on the basis of interlocutory application filed under Order 1 Rule 10 of Code of Civil Procedure. The plaintiff No.1(a) also passed away and the plaintiff No.1(b) prosecuted the suit, but she has also not proved the execution of the alleged Will dated 29.05.1998 and therefore, the Trial Court ought to have dismissed the suit. 14. It is further contended that plaintiff No.1(b) was impleaded as beneficiary in the alleged Will dated 29.5.1998 by filing an impleading application and plaintiff No.1(b) was neither the legal representative of the original plaintiff nor that of plaintiff No.1(a). Therefore, she cannot claim succession from the joint family property. The further contention of defendant No.2 is that plaintiff No.1(a) and defendant Nos.3 to 5 were born prior to 1956 and hence, they are not entitled for any claim. This aspect of the law was not at all considered by the Court below while passing the judgment and decree. 15. It is further contended that defendant No.1 who was examined as D.W.1 was also not cross-examined by the plaintiffs. So also plaintiff No.1(b) was examined as P.W.3, the only survivor i.e., plaintiff No.1(b) was not subjected for cross-examination. Therefore, examination in chief of plaintiff No.1(b) as P.W.3 will not have any importance under the Evidence Act. Inspite of the same, the Trial Court has decreed the suit granting the 1/6th share in the suit schedule property which is erroneous. 16. Learned counsel appearing for the appellant in his arguments also reiterated the grounds urged in the appeal memo and further contended that plaintiff No.2(b) is also no more. Though she claims that there was a Will by plaintiff No.1, but the same has not been produced and proved. Hence, the judgment and decree of the Trial Court is erroneous. 16. Learned counsel appearing for the appellant in his arguments also reiterated the grounds urged in the appeal memo and further contended that plaintiff No.2(b) is also no more. Though she claims that there was a Will by plaintiff No.1, but the same has not been produced and proved. Hence, the judgment and decree of the Trial Court is erroneous. It is further contended that there was a partition in the year 1982 between plaintiff No.1, defendant Nos.1 and 2 and they have acted upon. Defendant Nos.3 to 5 are also not claiming any share. Since the whereabouts of defendant Nos.3 to 5 were not known, the paper publication was taken against them and they also did not choose to claim any share in the suit schedule property. 17. Learned counsel for defendant No.1 also in his arguments contends that they are also sailing along with appellant. Subsequently, defendant No.1(b) also passed away and she has also not executed any testamentary document during her life time. Hence, the judgment and decree of the Trial Court is liable to be modified. 18. Having heard the arguments of the appellant's counsel and also the counsel appearing for the respondents and considering the contentions urged by the respective parties, the points that arise for consideration of this Court are:- 1. Whether the Court below has committed an error in granting 1/6th share in favour of plaintiff No.1(b) and it requires interference of this Court? 2. What order? 19. The main contention of plaintiff Nos.1 and 2 before the Court below is that the property originally belongs to Siddoji Rao Maney and the same was purchased by him on 17.01.1935 and later on, their grand father gifted the suit property in favour of his daughter-in-law i.e., their mother Manubai Maney. Hence, their mother was the absolute owner of the property. Their mother also died intestate leaving behind her husband and children. Her husband also died in the year 1976. Hence, they constitute Hindu Undivided Joint Family and they are entitled for equal share. Defendant Nos.1 and 2 in their written statements have contended that there was an agreement of partition in the year 1982 and hence, the property was not available for partition. 20. The plaintiffs, in order to substantiate their claim examined the first plaintiff as P.W.1 and before subjecting for cross-examination, he passed away. Defendant Nos.1 and 2 in their written statements have contended that there was an agreement of partition in the year 1982 and hence, the property was not available for partition. 20. The plaintiffs, in order to substantiate their claim examined the first plaintiff as P.W.1 and before subjecting for cross-examination, he passed away. Thereafter, P.Ws.2 and 3 who are claiming as legatees and also the daughter-in-law of Smt.Manubai Maney, claimed the share on the ground that there was no any testamentary document in favour of the family members. P.W.2 though has been examined, not subjected for cross-examination and subsequently, she also passed away. Thereafter, P.W.3 daughter of P.W.2 has been examined in chief and she was also not subjected for cross-examination. Defendant No.2 examined himself as D.W.1 and he was also not cross-examined by the plaintiffs. The plaintiffs have relied upon the documents Exs.P1-death certificate of mother of P.W.1, Ex.P.2 -notice to pay betterment charges and Ex.P.3 the katha extract. The defendants have relied upon Exs.D1 to 15-the tax paid receipts and Ex.D.16-the partition deed dated 17.02.2001 and Exs.D17 and D18, the two endorsements issued by BBMP. 21. Having considered both oral and documentary evidence available on record and also the pleadings of the parties, there is no dispute with regard to the fact that the property originally belongs to Siddajoi Rao Maney and the same was purchased in the year 1935. Thereafter, he gifted the property in favour of his daughter-in-law Smt.Manubai Maney. There is also no dispute with regard to gifting of the property in favour of Smt.Manubai Maney. Plaintiff Nos.1 and 2 and defendant Nos.1 to 5 are the children of Smt.Manubai Maney. Their mother died intestate on 24.11.1971 leaving behind the plaintiff Nos.1 and 2 and also defendant Nos.1 to 5. When there is no testamentary document by the mother in favour of any of her children and she died intestate, her children are equally entitled for the share. The claim of defendant Nos.1 and 2 is that there was an agreement of partition between defendant Nos.1 and 2 and plaintiff No.1 and all of them acted upon the said partition entered into between them. In support of the said contention, the document has not been placed before the Court. The claim of defendant Nos.1 and 2 is that there was an agreement of partition between defendant Nos.1 and 2 and plaintiff No.1 and all of them acted upon the said partition entered into between them. In support of the said contention, the document has not been placed before the Court. Even if it is placed before the Court, when the mother died intestate leaving behind her children, the same would not bind on any of the parties. The other contention that defendant Nos.1 and 2 acted upon in pursuance of the agreement of partition also cannot be accepted. It is also important to note that plaintiff No.1 during the pendency of the suit passed away and thereafter, plaintiff Nos.1(a) and (b) have been examined. They stated that plaintiff No.1 has executed the Will in their favour. The said Will has also not been produced before the Court and also its execution in favour of plaintiff Nos.1(a) and (b) has not been proved by examining any witnesses. 22. Learned counsel appearing for the appellant would contend that plaintiff Nos.1(a) and (b) came on record as legatees of plaintiff No.1 and the same was subject to the proof of the Will. The said contention cannot be accepted since plaintiff No.1(b) is the daughter of plaintiff No.2 and the plaintiff No.2 is also claiming 1/7th share in the property along with plaintiff No.1 in the suit schedule property of her mother. 23. It is also important to note that plaintiff No.2 also passed away during the pendency of the suit on 16.2.2010. The plaintiff No.1(b) is also the legal heir of plaintiff No.2 as she is her daughter. It is to be noted that when plaintiff No.1 passed away and though there is a claim that the Will has been executed in favour of plaintiff Nos.1(a) and (b), the same has not been proved. When the Will has not been proved and there was no any testamentary document, the property of plaintiff No.1 automatically devolves upon the other legal heirs. The plaintiff No.2 is also the daughter. All the property originally belongs to their mother and she claims that she is entitled for 1/7th share and hence the Court below, considering the material on record and also on question of law granted 1/6th share in favour of plaintiff No.1(b) as she is not the legatee but as legal heir of plaintiff No.2. All the property originally belongs to their mother and she claims that she is entitled for 1/7th share and hence the Court below, considering the material on record and also on question of law granted 1/6th share in favour of plaintiff No.1(b) as she is not the legatee but as legal heir of plaintiff No.2. 24. Having considered the question of law, I do not find any error committed by the Court below in granting 1/6th share in favour of plaintiff No.1(b), but it is unfortunate that plaintiffNo.1(b) also passed away and there is no any legal heir since she is unmarried. Hence, on account of death of plaintiff No.1(b), the share of plaintiff No.2 also devolves upon the other legal heirs of Smt.Manubai Maney. 25. The Court below though granted 1/6th share in favour of plaintiff No.2, failed to consider the fact that defendant Nos.3 to 5 are also the daughters of Smt.Manubai Maney and they are also entitled for share. Consequently, upon the death of plaintiff No.2 and also her legal heir plaintiff No.1(b), as already observed, the property devolves upon the other legal heirs. 26. The contention of the appellant's counsel that there was a partition between defendant Nos.1 and 2 and plaintiff No.1 and thus, they are the exclusive owners cannot be accepted. The main contention of the appellant's counsel that defendant Nos.3 to 5 have also not claimed any share and that does not mean that they are not having any share in the property belongs to their mother. The other contention that the sisters are already married and all of them were born prior to 1956 and they are not entitle for any share cannot be accepted. The fact that the mother passed away in the year 1971 is not in dispute and on the death of the mother succession opens. The fact that the father also died in the year 1976 is also not in dispute. Thereafter only children are entitled for equal share. The agreement of partition doesn't binds the other sharers since they cannot make any such agreement among themselves excluding the others. The Court below has rightly granted decree and not committed any error. However, in view of changed circumstances, the judgment and decree is to be modified. 27. In view of the discussion made above, I pass the following:- ORDER: The appeal is allowed in part. The Court below has rightly granted decree and not committed any error. However, in view of changed circumstances, the judgment and decree is to be modified. 27. In view of the discussion made above, I pass the following:- ORDER: The appeal is allowed in part. In view of the death of plaintiff Nos.1, 1(b) and plaintiff No.2, the share of the parties i.e., remaining legal heirs of Smt. Manubai Maney is enlarged as 1/5th share each. Modify the judgment and decree accordingly.