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Karnataka High Court · body

2020 DIGILAW 883 (KAR)

Narasimha Murthy v. Chandramani

2020-05-18

ARAVIND KUMAR, E.S.INDIRESH

body2020
JUDGMENT : 1. This appeal is directed against the judgment and decree dated 30th August, 2014 passed by the II Additional Senior Civil Judge at Mysore in OS No.54 of 1997, whereunder suit filed by the respondents No.1 and 2 herein against the appellants as well as respondents No.3 to 5 for partition and separate possession claiming 1/5th share came to be decreed in part namely in respect of item No.1 of suit schedule properties. 2. For the sake of convenience, parties in this appeal shall be referred to in terms of their status before the trial Court. 3. The plaintiffs filed suit OS No.54 of 1997 seeking partition and separate possession claiming one-fifth share in respect of suit schedule properties by metes and bounds. Plaint schedule properties consisted three immovable properties which is described as items No.1 to 3 respectively in the plaint and item No.4 is the movable property. First plaintiff is the mother of second plaintiff and first defendant is the mother-in-law and grand-mother of plaintiffs 1 and 2 respectively; and other defendants are the sisters-in-law and brothers-in-law of the first plaintiff. Since plaintiff had filed the suit for partition and separate possession in respect of the plaint schedule properties the genealogical tree of the family consisting of plaintiffs and defendants, is described herein below: Genealogical tree MAHADEVAPPA DIED SHIVARUDRAMMA (WIFE) (D.1) DIED Narasimha Murthy (D.2) Chandra Shekar (D.3) Shantha (D.4) Vanajakshi (D.5) Nagaraju (died) Smt. Chandramani (Wife) (P.1) N.Poornima (Daughter) (P.2) 4. The factual matrix of the case as made out in the plaint is as follows: The husband of the first defendant-Sri Mahadevappa was working at a Private Mill and drawing salary. During his life-time, husband of the first plaintiff-Sri Nagaraju, was residing along with his father and mother i.e. Sri Mahadevappa and the first defendant respectively. The said Sri Nagaraju was initially working at a private Mill and also working at Central Food Technological Research Institute (CFTRI) and it was claimed by plaintiffs that Sri.Nagaraju had contributed his salary/earnings for acquisition of suit schedule properties. It is contended that out of the savings of Sri Nagaraju, his father-Sri.Mahadevappa had purchased the immovable property mentioned in the plaint Schedule at Item No.1 i.e. the house property bearing No.226, 1st Main Road, II Stage, Gokulam, Mysore which was a vacant site and later construction was commenced on the contribution made by said Sri Nagaraju. It is contended that out of the savings of Sri Nagaraju, his father-Sri.Mahadevappa had purchased the immovable property mentioned in the plaint Schedule at Item No.1 i.e. the house property bearing No.226, 1st Main Road, II Stage, Gokulam, Mysore which was a vacant site and later construction was commenced on the contribution made by said Sri Nagaraju. After the death of Sri Nagaraju, his father-Sri Mahadevappa was inclined to give equal share in an extent of one-third to all sons, however, the said Sri Mahadevappa died in the year 1991 and after his death, defendants No.1 to 5 have taken the signature of the first plaintiff on some blank papers on the ground that her signature was required for reduction of House Tax and also for the purpose of change of khatha. In the meanwhile, the plaintiff No.1 made a demand of her legitimate share in respect of the suit schedule property and as such, the first defendant though initially agreed to allot the same, but, subsequently developed hostile attitude and refused to allot the legitimate share to the plaintiffs who are the legal heirs of the deceased-Sri Nagaraju, the son of the first defendant, and as such, plaintiffs have filed OS No.54 of 1997 on the file of the II Additional Senior Civil Judge at Mysore and sought for one-fifth share in all the suit schedule property by metes and bounds, inter alia sought for enquiry insofar as mense profits are concerned from the date of suit till plaintiffs were put in exclusive possession of their one-fifth share of the suit schedule property. 5. In response to the suit summons issued by the trial court, defendants No.1 to 5 have entered their appearance through their respective counsel and contested the matter by filing written statement. During the pendency of the suit, defendant No.1 died on 07th April 2003. Defendants No.2, 3 and 5 have filed common written statement contending that plaintiffs have colluded with defendant No.4, and stated that plaintiffs have filed a false and frivolous suit against them. Defendants have not disputed the relationship between the parties. They have further contended that item No.1 of the plaint schedule was granted in favour of the deceased-Mahadevappa and it was his individual and self-acquired property. Defendants have not disputed the relationship between the parties. They have further contended that item No.1 of the plaint schedule was granted in favour of the deceased-Mahadevappa and it was his individual and self-acquired property. They have further stated that since 1960 Mahadevappa was residing in item No.1 of the plaint schedule property along with his family members including deceased-Sri Nagaraju. These defendants have refuted the averments of the plaintiff that deceased Sri Nagaraju had contributed his share towards the joint family and after the death of Sri Mahadevappa, defendant No.1 being the wife, had succeeded to item No.1 of the plaint schedule property and as such first defendant herein has executed a registered Will dated 23rd January, 1995 in respect of item No.1 of the plaint schedule in favour of the defendants No.2 and 3 by excluding other children, and therefore, it is the contention of defendants No.1 and 2 that plaintiffs have no right to claim any share insofar as item No.1 of the plaint schedule property is concerned. 6. They further contended that defendant No.1, during her lifetime, had decided to confer certain benefits in favour of defendant No.4 and in fact, first defendant had purchased item No.2 of the plaint schedule in the name of the defendant No.4. Defendant No.1 has paid the entire sale consideration insofar as acquisition of item No.2 of suit schedule property by defendant No.4, and therefore, defendants No.1 and 2 contended that defendant No.4 cannot claim any right over item No.2 of the plaint schedule property and further stated that defendant No.4 has sold item No.2 of the plaint schedule property by impersonating herself as Kanthamma. However, the defendant No.4 has relinquished all her rights subsequently, and therefore, the fourth defendant has no right to claim share in the family properties. The defendants No.2 and 3 further contended that item No.3 of the plaint schedule was sold in favour of defendant No.1 by its previous owner; and therefore, item No.3 is the exclusive property of defendant No.1. The defendants No.2 and 3 further contended that item No.3 of the plaint schedule was sold in favour of defendant No.1 by its previous owner; and therefore, item No.3 is the exclusive property of defendant No.1. The defendant No.1 has put up construction over item No.3 of the plaint schedule and in fact, first defendant had purchased item No.3 of the plaint schedule out of her own source of income derived from vending milk, and therefore, the first defendant has exclusive and absolute right over item No.3 of the plaint schedule property and by virtue of said right, first defendant has executed gift deed dated 18th February, 1999 in favour of defendant No.5 and pursuant to the said gift deed, the fifth defendant has become absolute owner of item No.3 of the plaint schedule property and therefore plaintiffs and other defendants have no right or share insofar as plaint schedule properties and therefore sought for dismissal of the suit. 7. Defendant No.4 has filed separate written statement admitting the relationship between the parties and sought for decreeing the suit as sought for by the plaintiffs stating that she is also entitled for one-fifth share along with the plaintiffs and defendants in respect the plaint schedule property. 8. The defendants No.2 and 3 have filed additional written statement to the effect that claim of the defendant No.5 over item No.1 of the plaint schedule property was not correct and same is barred by principle of estoppel. They further contended that defendant No.5 has already relinquished her right in the family properties, and therefore, sought for rejection of claim made by the fifth defendant. 9. Defendant No.6(a) has filed a separate written statement stating that sixth defendant-Madashetty has purchased property bearing No.238 in Mahadeshwara Layout from its previous owner and thereafter got effected khatha in his name in respect of the said property and has executed gift deed in favour of his son and daughter by gifting said property in equal share in their favour in the year 2006 itself, and therefore, contended that plaintiffs and other defendants have no right in any manner over said property as it belonging to the sixth defendant. 10. During the pendency of the suit, the defendants No.2 and 3 have filed memo dated 06th September 2013. 10. During the pendency of the suit, the defendants No.2 and 3 have filed memo dated 06th September 2013. It reads: “Memo filed by Defendants No.2 and 3 Defendants No.2 and 3 submit that the plaintiffs be conferred with a preliminary decree by granting 1/6th share in and upon the plaint schedule Item No.1.” 11. The Trial Court, on the basis of the pleadings of the parties, had framed the following issues for adjudication. 1. Whether the plaintiffs prove that the deceased Nagaraju and Mahadevappa being the members of joint family have jointly purchased the suit schedule properties? 2. Whether the defendant No.2 and 3 prove that 1st defendant has bequeathed the suit Item No.1 property in their favour as per the Will dated 23.01.1995? 3. Whether the plaintiffs prove that the existence of item No.4 properties? 4. Whether the defendants prove that the suit is not properly valued and Court fee paid is not sufficient? 5. Whether the plaintiffs prove that by virtue of death of Nagaraju and Mahadevappa are entitled for 1/6th share over the suit schedule properties? 6. What order or decree? Additional issue: 1. Whether defendant No.2 proves that the defendant No.4 has sold item No.2 of the plaint schedule by impersonating herself as Khanthamma and relinquished all her rights by receiving item No.1 of the plaint schedule? 2. Whether defendant No.2 further proves that the defendant No.5 has relinquished her rights by receiving item No.2 as Gift from defendant No.1? 12. First plaintiff was examined as PW1 and got marked documents as Exhibits P1 to P14. The defendant No.5 was examined as DW1 and; defendant No.2 was examined as DW2; defendant No.4 was examined as DW3. Defendants have examined Sri Devaraju as DW4 and got marked only one document, i.e. Will dated 23rd January 1995, as Exhibit D1. 13. Trial Court, has taken up all the issues together and insofar as issues No.1 to 4 are concerned, it came to be held that late Sri Mahadevappa was the absolute owner of item No.1 of schedule property and after his death, item No.1 has devolved on his legal heirs. 13. Trial Court, has taken up all the issues together and insofar as issues No.1 to 4 are concerned, it came to be held that late Sri Mahadevappa was the absolute owner of item No.1 of schedule property and after his death, item No.1 has devolved on his legal heirs. On issue No.2 the trial court has independently dealt and held that defendants Nos.2 and 3 have categorically admitted that they have no exclusive rights and did not acquire any valid title and exclusive possession over item No.1 of plaint schedule property under registered Will dated 23rd January, 1995. Issues No.3 and 4 are answered in the negative. However, trial court has answered issue No.5 in the affirmative. 14. Trial Court answered Additional issues in the negative and accordingly decreed the suit filed by the plaintiff against the defendants for relief of partition and separate possession and mesne profits partly and held that plaintiffs along with defendants 2 to 5 are entitled to one-fifth share jointly in Item No.1 of plaint schedule property and accordingly observed that there shall be an enquiry for ascertaining the mesne profits. 15. Being aggrieved by the judgment and decree passed by the trial court, defendant Nos.2 and 3 herein have filed the instant Regular First Appeal challenging the same by contending Trial Court had erred in decreeing the suit for one-fifth share without assigning any share to defendant No.1 who is also entitled for share under Section 8 of the Hindu Succession Act, 1956. 16. We have heard the learned Advocates appearing for parties. 17. Shri B.S. Nagaraju, learned counsel appearing for the appellants contends that Trial Court had failed to consider the registered Will executed by defendant No.1 in favour of defendants No.2 and 3 in respect of item No.1 of suit schedule property at least to the extent of defendant No.1 share, and the finding recorded by the Trial Court with regard to issue No.2 requires to be interfered with by this Court. 18. Shri M. Lokesh A.V., learned counsel appearing for Shri K.V. Narasimhan, for Respondent No.5 has supported the judgment of trial court. The learned counsel appearing for the respondents sought to justify the judgment and decree passed by the Trial Court. 19. 18. Shri M. Lokesh A.V., learned counsel appearing for Shri K.V. Narasimhan, for Respondent No.5 has supported the judgment of trial court. The learned counsel appearing for the respondents sought to justify the judgment and decree passed by the Trial Court. 19. After hearing the learned Advocates appearing for parties, we are of the considered view that following points would arise for our consideration: (1) Whether suit schedule properties are self acquired properties of late Sri Mahadevappa? And, if so, whether 1/5th share allotted to each of the parties by the suit trial court is just and proper or allotment of shares is to be redone? (2) Whether the defendants No.2 and 3-appellants herein have proved due execution of Will dated 23rd January, 1995 said to have been executed by their mother-Smt.Shivarudramma (Defendant No.1)? RE: POINT NO.(1) 20. A perusal of the entire pleadings and evidence on record would indicate that only contention raised by the plaintiffs in the suit was that item No.1 of plaint schedule property was purchased by deceased Sri Mahadevappa by virtue of contribution made by the husband of the first plaintiff and father of second plaintiff. However, said plea came to be denied by the defendants. It is an admitted fact that sale deed of item No.1 of the plaint schedule property stood in the name of late Sri Mahadevappa. Plaintiffs had not placed any documentary evidence before the Trial Court in proof of their claim that Sri Nagaraju had contributed money for purchase of said property by Sri Mahadevappa. Plaintiffs had also failed to establish about contribution made by deceased Sri Nagaraju for purchase of item No.1 by late Sri Mahadevappa. In view of plaintiffs failing to produce cogent and positive evidence to prove that deceased Sri Nagaraju had contributed money for purchasing item No.1 of suit schedule property, it cannot be gainsaid by the plaintiffs that it was the joint family property. It is not in dispute that Sri.Mahadevappa had expired in the year 1991. During his life time, he had not executed any Will bequeathing item No.1 of suit schedule property in favour of any of the defendants. Thus, on his demise, succession opened up and his legal heirs, namely, plaintiffs and defendants i.e., wife and children having succeeded to his estate were entitled to claim share in item No.1 of suit schedule property. 21. Thus, on his demise, succession opened up and his legal heirs, namely, plaintiffs and defendants i.e., wife and children having succeeded to his estate were entitled to claim share in item No.1 of suit schedule property. 21. The main contention of defendants No.2 and 3appellants herein is that the defendant No.1 has executed a Will dated 23rd January, 1995 in their favour, whereunder item No.1 of plaint schedule property had been bequeathed to them and they being beneficiary under the Will were entitled to claim exclusive right, title and interest over item No.1 of the schedule property. However, by Memo dated 06th September, 2013 filed before Trial Court, defendants No.2 and 3 have categorically admitted that they have no exclusive right over item No.1 of suit schedule property and they did not acquire any valid title and exclusive possession over the said property under the Will – Ex.D-1. Hence, a finding came to be recorded by the Trial Court to the effect that on demise of Sri Mahadevappa, his wife and children were entitled to claim share in suit schedule property. Said finding recorded by trial Court is correct and as such, contentions raised by the appellants herein do not merit acceptance. 22. The finding recorded by the Trial Court on issue No.2 negating the contentions raised by defendants No.2 and 3 is that the defendant No.1 has bequeathed the suit item No.1 property in their favour as per Will dated 23rd January, 1995. Notwithstanding the fact that the defendants No.2 and 3 have filed a memo dated 06th September, 2013 before the Trial Court admitting the fact that they have no exclusive right and did not acquire any valid title and exclusive possession over item No.1 of the plaint schedule under the alleged will dated 23rd January, 1995, inter alia the defendants, have despite marking the Will as Exhibit D1, did not take any steps to prove the execution of Will which is condition precedent for recording a finding in their favour as held by the Hon'ble Supreme Court in the case of H. VENKATACHALA IYENGAR VS B. N. THIMMAJAMMA & OTHERS reported in AIR 1959 SC 443 as under: “What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters.” 23. The Hon'ble Supreme Court, while enunciating the term “parties”, in the case of KALYANI (DEAD) BY LRS. VS NARAYANAN AND OTHERS reported in AIR 1980 SC 1173 has held under: “To constitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family. What form such intimation, indication or representation of such interest should take would depend upon the circumstances of each case. A further requirement is that this unequivocal indication of intention to separate must be to the knowledge of the persons affected by such declaration. A review of the decisions shows that this intention to separate may be manifested in diverse ways. It may be by notice or by filing a suit. Undoubtedly, indication or intimation must be to members of the joint family likely to be affected by such a declaration. Partition is a word of technical import in Hindu Law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. Undoubtedly, indication or intimation must be to members of the joint family likely to be affected by such a declaration. Partition is a word of technical import in Hindu Law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention to a member of joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of share of such member. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property. A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.” 24. At paragraph 20 of its judgment, trial court has pointed out that plaintiffs are not claiming any share in items No.2 and 3 of the plaint schedule. However, defendants 2 to 5 had also claimed share in item No.2 of the plaint schedule properties. But in order to prove the same, none of the defendants have produced any material evidence before the Trial Court, and as such, finding recorded by the Trial Court on item Nos.2 and 3 does not call for interference by this Court. Insofar as item No.4 which is a moveable property is concerned, trial court having considered the pleadings and evidence on record has held that plaintiffs have not placed any material evidence on record to prove their claim over item No.4. Insofar as item No.4 which is a moveable property is concerned, trial court having considered the pleadings and evidence on record has held that plaintiffs have not placed any material evidence on record to prove their claim over item No.4. Hence, trial court has not decreed the suit in respect of item No.4 of the plaint schedule. We are of the considered view that findings recorded by the trial court would not call for interference and it is hereby affirmed. RE: POINT NO.(2) 25. Defendant Nos-2, 3 and 5 had filed a common written statement whereunder it was specifically pleaded that plaintiffs and fourth defendant had colluded and had filed a frivolous suit. They also specifically denied that husband of first plaintiff namely, deceased Sri Nagaraju had contributed large share of his earning to the family. It was their specific contention that on the demise of Sri Mahadevappa, first defendant being the wife had succeeded to item No.1 of the suit schedule property and by virtue of the same, she had executed a Will on 23.01.1995 – Ex.D-1 bequeathing item No.1 of the suit schedule property in favour of defendants-2 and 3 by excluding others. Defendant Nos.5, 2 and 3 got examined themselves as D.Ws.1 to 3. The learned trial Judge while examining the right of first defendant over item No.1 of suit schedule property, has held that deceased Sri Mahadevappa had acquired title to item No.1 of suit schedule property by purchasing the same in his name and as such, he had acquired absolute right, title and interest over the same. There is no dispute to the fact that deceased Sri Mahadevappa having died intestate. Thus, on his demise, all his legal heirs succeeded to his estate and thereby the first defendant namely, his wife could not have claimed absolute and exclusive right over the said property. In fact, defendants have not established or proved as to how first defendant acquired title to the property. On the other hand, they have admitted the fact that deceased Sri Mahadevappa having died intestate. It is on account of this evidence available on record, learned trial Judge has rightly held that merely on account of first defendant having managed item No.1 of the suit property, it did not confer any title over the said property in favour of first defendant. It is on account of this evidence available on record, learned trial Judge has rightly held that merely on account of first defendant having managed item No.1 of the suit property, it did not confer any title over the said property in favour of first defendant. Said finding is based on proper and correct appreciation of available evidence on record. In fact, defendant Nos.2 and 3 have filed a memo on 06.09.2013 to the effect that “plaintiffs be conferred with a preliminary decree by granting 1/6th share in and upon the plaint schedule item No.1”. Hence, learned trial Judge has rightly arrived at a conclusion that defendant Nos.2 and 3 have categorically admitted that they have no exclusive right, title and interest over item No.1 of the suit schedule property under the Will – Ex.D-1. Said Will having not been proved as required under Section 68 of the Evidence Act, 1872 defendant Nos.2 and 3 could not have rested their oars on the said Will to stake their claim over item No.1 of suit schedule property. Hence, we answer point No.(2) in the negative. Hence, we proceed to pass the following: JUDGMENT 1. Regular First Appeal is dismissed. 2. Judgment and decree dated 30th August, 2014 passed in Original Suit No.54 of 1997 by II Additional Senior Civil Judge at Mysore, stands confirmed. 3. Parties to bear their own costs. 4. Registry to draw the decree accordingly.