Karnataka High Court
Smt Pramila Devi B vs Smt L Padmini on 4 December, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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RFA No. 861 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 861 OF 2018 (PAR)
BETWEEN:
1. SMT PRAMILA DEVI B.,
W/O LATE T. PILLANNA.,
AGED ABOUT 72 YEARS.,
R/AT NO. 3391, 2ND MAIN,
10TH CROSS,
AMARAVATHI LAYOUT,
BANGARAPET TALUK,
KOLAR DISTRICT - 560 101.
2. SMT. RAJESHWARI,
W/O. ANANTHARAJ,
MAJOR # 936,
MALLATHAHALLI VILLAGE,
YESHWANTHAPURA HOBLI,
Digitally BENGALURU NORTH TALUK - 560 042.
signed by
VANDANA S 3. SRI HRISHIKESH @ KESHAV,
Location: S/O. LATE PILLANNA,
HIGH
COURT OF AGED MAJOR,
KARNATAKA WORKING BEML KGF KOLAR,
R/AT NO. 3391, 2ND MAIN,
10TH CROSS,
AMARAVATHI LAYOUT,
BANGARAPET TALUK,
KOLAR DISTRICT - 560 101.
...APPELLANTS
(BY SRI. JAGADEESWARA N.R., ADVOCATE)
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RFA No. 861 of 2018
AND:
SMT. L. PADMINI,
W/O. LATE P.YOGESH GOVINDARAJ,
AGED ABOUT 47 YEARS,
46/2, 12TH MAIN, 80 FEET ROAD,
6TH BLOCK, RAJAJINAGAR,
BENGALURU - 560 010.
...RESPONDENT
(BY SRI. RAVISHANKAR S., ADVOCATE FOR C/R)
THIS RFA IS FILED U/S. 96 R/W ORDER XLI RULE 1 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 26.03.2018
PASSED IN OS. NO. 8569/2006 ON THE FILE OF THE XXII ADDL.
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY
DECREEING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION AND MESNE PROFITS.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the impugned judgment and
decree dated 26.03.2018 passed in O.S.No.8569/2006 by the XXII
Additional City Civil and Sessions Judge, Bengaluru (hereinafter
referred to as the 'Trial Court' for short) whereby the said suit filed
by the respondent-plaintiff against the appellants-defendants for
the partition and separate possession of the plaintiff's alleged 1/4th
share in respect of Item No.1 of the suit schedule properties was
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decreed. By the impugned judgment and decree, the Trial Court
dismissed the suit of the plaintiff in respect of remaining Item Nos.2
and 3 of the suit schedule properties.
2. Heard the learned counsel for the appellants-
defendants and learned counsel for the respondent-plaintiff.
3. The material on record discloses that the respondent-
plaintiff is the wife of one Sri. Yogesh Govindaraj, who was the son
of the late T. Pillanna and Smt. B. Pramila Devi. It is an undisputed
fact that the aforesaid Pillanna expired on 01.02.1994 leaving
behind his son, the aforesaid Yogesh Govindaraj, wife Pramila
Devi, daughter Rajeshwari and one more son, Hrishikesh, who
succeeded to his estate including the suit schedule properties.
Subsequently, the aforesaid Yogesh Govindaraj also expired on
22.07.2002 leaving behind the respondent/plaintiff as his sole
heir/legalrepresentative. Pursuant to the demise of her husband
Yogesh Govindaraj, the respondent-plaintiff instituted the aforesaid
suit against the aforesaid Prameela Devi, wife of Pillanna and their
two children viz.. daughter and son, for partition and separate
possession after alleged share in the suit schedule properties. The
said suit was contested by defendant No.1-Prameela Devi-wife,
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defendnat Nos.2 and 3 her children remained exparte and did not
contest the suit.
4. Based on the aforesaid pleadings of the parties, the
Trial Court framed the following:
ISSUES
1. "Whether the plaintiff proves the relationship pleaded
by her?
2. Whether the plaintiff proves that suit properties are the
joint family properties of plaintiff and defendant?
3. Whether the plaintiff is entitled for a share in the suit
properties?
4. Whether the plaintiff is entitled for mesne profits?
5. Whether the suit is barred by time?
6. Whether suit is bad for non-joinder of necessary
parties?
7. What Decree or Order?"
5. The plaintiff examined herself as PW.1 and
documentary evidence at Exs.P1 to P5 were marked. Defendant
No.1 examined herself as DW.1 and Exs.D1 to D3 were marked on
her behalf.
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6. After hearing the parties, the Trial Court came to the
conclusion that Item No.1 of the suit schedule properties was
separate and self acquired property of the aforesaid Pillanna, who
acquired the same vide Will dated 30.06.1993 executed by his
father B.S.Thimmaiah in his favour. The Trial Court also examined
the oral and documentary evidence on record and found that the
said property was prescribed at Item No.1 was a separate and self
acquired property of Pillanna upon whose demise the plaintiff and
defendants would become entitled to 1/4th share each in the said
Item No.1 of the suit schedule properties. However, in respect of
the remaining suit schedule properties, the Trial Court came to the
conclusion that the plaintiff was not entitled to a share in the said
properties. While arriving to the said conclusion, the trial court
recorded the following findings.
"Reasons
8. Issue Nos. 1 to 3: The plaintiff has claimed that the plaintiff
and the defendant to be related and the suit schedule properties to be
joint family properties of the plaintiff and the defendant, therefore to be
entitled for the share in the suit schedule properties. These issues
therefore are inter-linked and discussed and answered together, in order
to avoid repetition.
As per the plaint, there is no averments against the defendants 2
and 3, who have been subsequently added by virtue of Order of this
Court dated 11-1-2016. The relationship between the parties is that the
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plaintiff is the wife of Yogesh Govindaraj. This Yogesh Govindaraj was
the son of Pillanna and the defendant.
In the oral evidence P.W.1 has identified the Death Certificate of
Pillanna as Ex.P3, which shows that he passed away on 16-2-1999.
Yogesh Govindaraj has also passed away. His Death Certificate is also
identified by the plaintiff as Ex.P4, which shows that he passed away on
22-7-2002. Thereby, the dispute before the Court is between the
daughter-in-law and the mother-in-law and hence Exs.P3 and P4 are
formal documents.
The description of the suit schedule properties are as follows:
"(Deleted Item No.1: All that piece and parcel of the property bearing
No.46/2, which was a part of Sy No. 18/9, Jedahalli Village, now called
as 80 feet road, 12 Main Rajajinagar, Bengaluru-560010, measuring East
to West on northern side 58 feet and on southern side 71 feet and North
to South on western side 34 feet and on eastern side 52.6 feet and
bounded on : East by : Property of Marichikanna, West by:80 feet road,
North by Property of Hucchappa, South by: Property of
Venkatagiriyappa.)
Item No.1 (old Item No.2):
All that piece and parcel of the property bearing No.916 in the layout
formed by the ITI Employees Housing Co-operative Society Ltd., situated
at Mallathahalli Village, Yeshwanthpur Hobli, Bengaluru North Taluk,
measuring East to West 30 feet and North to South 53 feet and bounded
on:
East by : Site No.917.
West by : Site No.915,
North by : Road.
South by : Private Property
Item No. 2 (Old Item No. 3)
All that piece and parcel of the property bearing No.57 formed in Sy No.
18/1 of Hegganahalli Village, Yeshwanthpur Hobli Bengaluru North
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Taluk, measuring East to West 30 feet and North to South 40 feet and
bounded on:
East by : Site No.56,
West by : Site No.58.
North by : 25 feet Road,
Item No. 3 (Old Item No. 4)
All that piece and parcel of the property bearing No. 734, Lakshman
Nagar Hegganahalli Cross, Yeshwanthpur Hobli, Bengaluru North Taluk,
measuring East to West 30 feet and North to South 40 feet and bounded
on:
East by : Private property.
West by : Private property,
North by : Road,
South by : Private property."
By way of amendment, the earlier Item No.1 property has been
deleted and subsequently the remaining Items No. 2 to 4 have been
renumbered as Items No. 1 to 3. In spite of that, the reference of the
property as Items 2 to 4 still appears in the averments of the plaint,
therefore while discussing the nature of the properties, the reference is
made noting the property number and the present renumbered suit
schedule properties.
With respect to the Item No.1 property bearing No 916, as per
the plaint, it is said to have been acquired by the deceased Pillanna, vide
registered sale deed dated: 28-12-1996, which is marked as Ex. P5. The
original of this Ex. P5 is said to be with the defendant. This Ex. P5 is
dated 28-12-1996 executed between the ITI Employees Housing Co-
operative Society Ltd., represented by the President Venkatappa as the
vendor in favour of T.Pillanna s/o Thammalah. As per this sale deed, the
property sold in favour of Pillanna is the site bearing No.916, measuring
East to West 30 feet, North to South 53 feet, in total 175.66 square yards
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or 1950 square feet, with the boundaries as above noted This document
states that the ITI Employees Housing Co-operative Society Ltd. being
the absolute owner of number of survey numbers, had formed the layout
after its acquisitions in the proceedings before the LAO.
In the oral evidence, P.W.1 has admitted that Pillanna was the
employee of the ITI. The suggestion put-forth to P.W.1 is that, indeed
this property is the self acquired property of Pillanna and It is as follows:
"It is true that, thereafter the Society had executed the
registered sale deed in favour of Pillanna and therefore
that property is the self acquired property of Pillanna."
The mother of deceased Yogesh, i.e., the defendant, examined
as D.W.1, has stated in support of this Ex. P5. Further D.W.1 has stated
that the Khatha of that document to have been transferred to her name
and then she has sold that property in favour of Smt. Gangamma, vide
sale deed dated: 5-4-2004 and in return, Gangamma has sold the very
same property in favour of Hemalatha, vide sale deed dated: 16-9-2004.
Those sale deeds have been identified by P.W.1 as Exs.P1 and D1.
They are the certified copies and the originals are said to be with the
purchasers. The certified copies of the sale deed in favour of Hemalatha
has been produced by the defendant during the confrontation of P.W.1
and marked as Ex.D1. Therefore, it is admitted fact of P.W.1 that the
possession of this property to be with Hemalatha.
As per Ex.P2, which is the certified copy of the sale deed dated:
25-9-2006, the item No.2 is sold by the 1 defendant in favour of one
Shekhar. The father of P.W.1 is said to have informed her about the said
alienation and therefore it may be that the said Shekhar to be in its
possession. This P.W.1 hasIdentified one more sale deed dated:2-12-
2002, marked as Ex.D2 in favour of defendant. No.1 by Channappa
pertaining to Item No.2 property. Entire evidence of P.W.1 goes to show
that the suggestion put-forth has been admitted by her and therefore it
means that, as per Ex.P1 and Ex.D1, the possession of the item No.2
property is with Hemalatha. Ex.P1 dated:5-4-2004 shows that it is
executed in favour of Gangamma by the 1st defendant, her children
Rajalakshmi, P.Hrishikesh. There is reference of Ex.P5 in this Ex. P1.
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Ex.D1-certified copy of the sale deed executed in favour of Smt.
Hemalatha by this Gangamma, pertaining to the very same property.
Ex.P2 is the certified copy of the sale deed dated: 25-9-2006 executed in
favour of one Shekhar by the present 1st defendant and the property
sold is Assessment No.18/1, with Khatha No.57, which is the present
item No.2 property. In oral evidence D.W.1 has stated not to have any
document to show that they are tenants of item No.2 property. In the
affidavit for chief examination, D.W.1 has stated that, this property was
purchased vide sale deed dated: 2-12-2002 and therefore it is her self
acquired property. Her son was said to be not alive. But the death
certificate of her son-Ex.P4, shows that he passed away on 22-7-2002.
Therefore, when this property was purchased, the son was not alive. Her
husband Pillanna passed away much earlier on 16-2-1999 as noted
above-Ex.P3.
P.W.1 has further stated not to know who is the original owner of
the item No.2 property. The plaintiff has not contributed any finance
towards purchase of the item No.2 property and in fact they did not have
the requisite finance also to purchase that property. When the item No.2
property was purchased, this P.W.1 was said to be residing at her
father's house. Similarly, P.W.1 does not know as to who is the owner or
in possession of Item No.3 property. Item No.3 is property No.734. As on
today, she has admitted not to have purchased any documents by
stating as follows:
"As on today, I have not produced any documents
pertaining to item No.3 property."
When the husband had passed away, Indeed, the gold ornaments
were said to be pledged and that they were released after the repayment
of the amount due, in terms of document-Ex.D3. This Ex.D3 is an
Affidavit stating, the gold ornaments that were pledged to have been
returned. It is the affidavit of the plaintiff herself. P.W.1 has also admitted
that her mother-in-law to have contributed sum of Rs.19,000/- towards
the release of those gold ornaments.
10. On the other hand, D.W.1 has stated that after the demise of her
husband, the house to have been maintained out of the retirement
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benefits of her deceased husband and with the help from her mother.
After four years of retirement, the husband is said to have passed away.
Item No.1 property was said to be a vacant site and the amount towards
the allotment of item No.1 property was said to have been paid
periodically out of the salary of her husband.
11. Regarding the maintenance of the household expenditure,
D.W.1 has stated that her mother's house supplied ration to maintain the
family and that, she had also utilized the retirement benefits for other
household expenditure
12. Though in the plaint it is averred that Item Nos 3 and 4 are the
self acquired properties of the husband of the plaintiff, in the oral
evidence the plaintiff herself, as above noted, has not stated anything
about the ownership or the possession of the properties. In fact there are
no documents produced in this regard before the Court. Actually there is
no item Nos.3 and 4 properties. They are renumbered as suit item Nos.2
and 3. It was the husband of the plaintiff who is said to have put up
construction In these properties and that they have been let out to the
tenants. In regard to the pledging of the gold ornaments, etc., it is noted
that the suit schedule properties 1 to 3 are only immovable properties.
In the plaint it is pleaded that, item Nos.3 and 4, i.e., Items 2, 3, are
the self acquired properties of Yogesh Govindaraj, husband of the
plaintiff. How these properties have been acquired by the husband of the
plaintiff, is not forthcoming in the plaint, but it is averred that the husband
of the plaintiff to have put up construction in these properties and let out
to the tenants, D.W.1 herself has sold the property Item No.1, No.916 to
the third parties in 2004. In respect of this property, it is the self acquired
property of Pillanna. As per Ex.P1, the item No.1 has been alienated on
the ground to repay the debts and for house necessity and sold on behalf
of the children. This Ex.P1 is dated: 5-4-2004, is after the son Yogesh
passed away, which is on 22-7- 2002. This property has been further
sold in favour of Hemalatha, as per Ex.D1 dated: 16-9-2004, The only
relief claimed by the plaintiff has been for partition. After the death of
Pillanna, this sale deed has been executed by his widow-D.W.1 and their
children Rajalakshmi and Hrishikesh, No doubt, on account of the son
Yogesh had passed away, the plaintiff had become a widow, but the
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widow is not a party to that sale deed. When Pillanna passed away, the
succession opens and that property being the self acquired property of
Pillanna, as per Section 8 of the Hindu Succession Act, the widow, their
children as well as the plaintiff being the widow of the predeceased son,
fall in the category of class-I heirs.
13. The marriage of the plaintiff has taken place in the year 1998
and the husband has passed away in the year 2002. It could be that,
after the son passed away, daughter-in-law, I.e., the plaintiff and the
mother-in-law, i.e., the 1st defendant, were not residing together. But the
fact remains that, by operation of Section 8 of the Hindu Succession Act,
the daughter-in-law, one of the legal heirs under class-I of the schedule.
14. The item No.2 property of the schedule property has been
purchased by the 1st defendant as per the sale deed-Ex.D2 and it is
sold to Shekhar, as per Ex.P2. When the son of the 1st defendant, who
is the husband of the plaintiff, had passed away prior to Ex.D2, then item
No.2 cannot be the self acquired property of the husband of the plaintiff.
The 1 defendant in the oral evidence has deposed not to be connected
to the item No.3 property, as it is said to not belong either to her or the
joint family. P.W.1 has also admitted, as above noted, not to have
produced any documents pertaining to item No.3 property. Therefore,
these properties i.e., Items 2 and 3, are not the joint family properties of
the plaintiff and the 1" defendant.
15. The alienation with respect to the suit Item No.1 property has
taken place and the question of the right of the third party has to be
decided in the subsequent proceedings. For the purpose of the suit, the
main sharers only are necessary, as the relief is confined only to the
partition. The right of extent of share of the plaintiff as the widow of the
pre-deceased son, cannot be taken away by virtue of the sale deed
executed by the widow of the original propositor-Pillanna. At the same
time, it is also noted that, there is no relief sought in respect of the sale
deed, but the fact remains that there has been execution of the sale
deed with respect to the suit schedule property, After Pillanna has
passed away, the class-I legal heirs under the Schedule of the Hindu
Succession Act by operation of Section 8 has to be divided equally. In
the facts and circumstances of the case, they would be his widow i.e, the
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1st defendant, her son and daughter, as well as the widow of the pre-
deceased. Thereby, each of them would get 1/4th share, but in the plaint,
the plaintiff has sought for half share in the suit schedule properties.
16. On account of item No.1 suit property being the self acquired
property, invariably, the extent of the share of the plaintiff would be 1/4th
in the suit item No.1 property. Hence, the relationship is proved and the
nature of the suit schedule properties are proved only with respect to the
suit item No.1 property. The Issues No:1 to 3 are therefore answered in
the affirmative.
17. Issue No. 4: Admittedly, in the present case, the suit item No.1
being the self acquired property of Piilanna and that the sale has taken
place in 2004 itself, it means that the plaintiff has not been in enjoyment
of her 1/4th share in this property. After the death of Pillanna, the widow
alone cannot be the absolute owner of the suit schedule property. Such
being the case, the plaintiff will be entitled for the Mesne Profits to the
extent of her 1/4th share only in the suit item No.1 property. For this
purpose, there is need of separate enquiry. In addition, the right of the
third party has to be also decided and determined in the appropriate
F.D.P. proceedings. Such being the case, this issue is answered in the
affirmative in terms of the Final Order.
18. Issue No. 5: During the course of the arguments, learned
counsel for the plaintiff has referred the citation reported in 2013(4)
KCCR 3170 (Gopalaiah and others vs. Smt. Jayakumari and others),
wherein it is held as under:
"C. Hindu Law-Partition-Suit for maintainability-Plea of earlier partition-
Registered deed excluding a member of family as he was deceased by
then- Omission to include his heirs also-They are entitled to their
legitimate share-Their suit maintainable.
D. Limitation Act, 1963-Article 110-Suit for partition-Limitation-Ouster of a
member-Suit to be filed within twelve years from that date otherwise, no
period of limitation is prescribed for a suit for partition-Exclusion of
deceased member and his heirs in earlier partition-Hence, family
remaining undivided-Suit for plaintiffs/heirs of deceased member not
barred by limitation.
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E. Limitation Act, 1963-Articles 74 and 75-Adverse possession-Plea in
partition suit-Is different from other suits-There should be specific plea of
ouster in a suit for partition."
No doubt, the scope of the present suit is only for partition, but
the plaintiff is not a party to the sale deed executed by the mother and
her existing children. In spite of that, the right claimed by the plaintiff,
which is to the extent of 1/4th share, in the given facts and
circumstances of the case, has been sought for within the span of three
years from the date of that sale, which has taken place in 2004 and the
above suit has been filed in 2006. Therefore, in view of the averments of
the plaint and the admitted facts, hence this issue is answered in the
negative.
19. Issue No. 6:. It is only the widow of the pre-deceased son of
the defendant No.1, who has sought for Partition. Such being the case,
the right claimed by the plaintiff will only be in terms of the extent, which
as per Section 8 of the Hindu Succession Act, entitles this plaintiff for
1/4th share only. All the class-I legal heirs under the Schedule, Hindu
Succession Act, are entitled to enjoy together equally. Such being the
case, this suit therefore cannot be said to be bad for non-joinder of
necessary parties. The right of the third parties, it is settled law that it has
to be determined in the F.D.P. proceedings on the principles of equity
and this issue is answered in the negative,
20. Issue No. 7: Due to the findings as above, the following:
ORDER
Suit of the plaintiff is hereby decreed in part, as follows:
The plaintiff is entitled for 1/4th share in the suit schedule Item
No.1 property only and the claim of the plaintiff in respect of the suit
items No.2 and 3 is hereby dismissed.
The plaintiff is entitled for separate enquiry regarding the Mesne
Profits in the F.D.P.
Under the circumstances, parties to bear their own costs.
Draw Preliminary Decree accordingly."
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7. As can be seen from the aforesaid reasoning, the trial
Court has come to the proper and correct conclusion that Item No.1
of the suit schedule properties was separate and self acquired
property of Pillanna upon whose demise the property devolved
upon the plaintiff and defendant Nos.1 to 3 under Section 8 of the
Hindu Succession Act, 1956, consequent upon which each one of
them would be entitled to 1/4th share in the said property.
8. Upon re-appreciation, re-evaluation and
reconsideration of the entire material on record, I do not find any
illegality or infirmity in the impugned judgment and decree insofar
as Item No.1 of the suit schedule properties is concerned,
warranting interference by this Court in the present appeal,
9. Accordingly, there is no merit in the appeal and the
same is hereby dismissed.
Sd/-
JUDGE
KTY
