Karnataka High Court

Smt Anasuya Bai W/O Late B.M. Rama ... vs Sri B R Raghunath Rao Since Decd By ... on 13 October, 2023

Bench: K.S.Mudagal, C M Joshi

                              1
                                           RFA NO. 272/2009


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF OCTOBER, 2023

                        PRESENT

         THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
                           AND
            THE HON'BLE MR. JUSTICE C.M.JOSHI

      REGULAR FIRST APPEAL NO. 272/2009 (PAR)

BETWEEN:

1 . SMT. ANASUYA BAI,
    W/O. LATE B.M.RAMA RAO,
    AGED ABOUT 86 YEARS,
    R/A: NO.9, 8TH CROSS,
    4TH MAIN, CHAMARAJAPET,
    BANGALORE-560 018.

2 . SRI B.R.VISHWANATH,
    S/O. LATE B.M.RAMA RAO,
    AGED ABOUT 66 YEARS,
    R/A: DOOR NO.1,
    BEHIND KAMAKKYA THEATRE,
    BANASHANKARI III STAGE, III PHASE,
    BANGALORE-560 085.

3 . SRI B.R.NARENDRANATH,
    S/O. LATE B.M.RAMA RAO,
    AGED ABOUT 53 YEARS,
    R/A: NO.9, 8TH CROSS, 4TH MAIN,
    CHAMARAJAPET, BANGALORE-560 018.
                                             ...APPELLANTS

(BY SRI GURURAJ KULKARNI, ADVOCATE [PH])
                              2
                                          RFA NO. 272/2009


AND:
1.   SRI B.R.RAGHUNATH RAO,
     SINCE DECEASED BY HIS LR'S,

     a) SMT. SHANTHAMMA,
        W/O. LATE B.R.RAGHUNATH RAO,
        AGED ABOUT 53 YEARS.

     b) SRI B.R.MUKUNDA,
        S/O. LATE B.R.RAGHUNATH RAO,
        AGED ABOUT 33 YEARS.

     c) SRI. B.R.PRADEEP KUMAR,
        S/O. LATE B.R. RAGHUNATH RAO,
        AGED ABOUT 30 YEARS.

     AMENDED AS PER THE COURT ORDER
     DATED 03.08.2009.

     ALL ARE R/AT: NO. 267,
     6TH CROSS, SOUTH OF KUMBAR KOPPAL,
     3RD STAGE, DOCTORS CORNER,
     GOKULAM,
     MYSORE - 560 002.
                                          ...RESPONDENTS
(BY SRI K S BHEEMAIAH, ADVOCATE FOR R1 (A TO C) [PH])

     THIS REGULAR FIRST APPEAL IS FILED U/S.96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.10.2008
PASSED IN O.S.NO.94/2002 ON THE FILE OF THE XXII ADDL.
CITY CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION, DECLARATION AND
MESNE PROFITS.

     THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED ON 09.08.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, C.M.JOSHI J., DELIVERED THE
FOLLOWING:
                                        3
                                                             RFA NO. 272/2009


                              JUDGMENT

This Regular First Appeal is filed by the defendants

under Section 96 of CPC against the judgment and decree

dated 24.10.2008 passed in O.S.No.94/2002 by the learned

XXII Additional City Civil Judge, Bangalore, whereby the

suit filed by the plaintiff for partition and separate

possession of his 1/4th share in the suit schedule property

and for declaration that Wills are not binding on him came

to be decreed.

2. The parties would be referred to as per their

rankings before the trial Court in the original suit.

3. The suit schedule property is the premises bearing

No.9, 4th Main, 8th Cross, Chamarajpet, Bangalore-18,

measuring 30 x 50 feet with constructed area of 10 x 50

feet.

4. In brief, the case of the plaintiff is as below:

The plaintiff and the defendant Nos.2 and 3 are the

brothers. Defendant No.1-Anasuya Bai is their mother and

RFA NO. 272/2009

one B.M. Rama Rao was the husband of defendant No.1 and

father of plaintiff and defendant Nos.2 and 3. He had

ancestral properties. The suit schedule property had fallen

to the share of their father B.M. Rama Rao under a

registered partition deed dated 18.3.1953 entered into

between B.M.Rama Rao, his father and brothers.

5. The plaintiff contended that he and the defendants

were coparceners of the hindu undivided family and

B.M.Rama Rao, was the Kartha of the family. He further

contended that even though the plaintiff and defendants are

residing separately for their convenience and to eke out

their lively hood at different places, there was no partition

in the joint family properties. It is stated that the plaintiff

was serving in Forest Department as a Ranger at different

places till his retirement.

6. The plaintiff also contended that the deceased B.M.

Rama Rao was working in KEB as Assistant Engineer and

out of his self earnings he had purchased the property at

Basavanagudi, Bengaluru. The said property was sold by

RFA NO. 272/2009

B.M.Rama Rao, during his life time for a valuable

consideration and he distributed the money among the

plaintiff and the defendants according to his wish and that

major portion of sale proceeds was paid to the defendants.

After the death of B.M.Rama Rao, the plaintiff and

defendants succeeded to the suit schedule property as joint

owners. The plaintiff further contended that defendant No.3

with fraudulent intention filed an application to the

Assistant Revenue Officer of the Bangalore City

Corporation, Chamarajpet, Bengaluru, for effecting transfer

of the khatha of the suit property to his name on the basis

of alleged unregistered Wills dated 2-2-1996 and 21-2-1996

executed by B.M. Rama Rao, which were not valid in the

eye of law. The plaintiff, having come to know about the act

of the defendant No.3 enquired further and came to know

that on the basis of a joint affidavit of no objection, the

defendant No.3 had got his name entered in the khatha. It

was alleged that the signature of the plaintiff was forged

and as such, an objection was filed to the Bangalore City

RFA NO. 272/2009

Corporation. It was stated that the defendants made

request for a settlement through their relatives but

thereafter, they did not come forward for any settlement

and as such, he was constrained to file a criminal complaint

to the jurisdictional Magistrate on 20-12-2000 in PCR

No.731/2000. In the meanwhile, the objections filed to the

Bangalore City Corporation went in vain. Thereafter, again,

the defendants came up with a proposal for partition in

respect of the suit schedule property and accordingly, the

plaintiff had also agreed for receiving the value of his 1/4th

share in the suit schedule property and as such made

necessary preparations by valuing the suit schedule

property through a registered valuer. The defendants again

resiled from the compromise proposal and changed their

minds. The plaintiff also contended that the suit schedule

property was all along in the joint possession and

enjoyment of the plaintiff and defendant Nos. 1 to 3; with

an intention of grabbing entire property, they are trying to

alienate the suit schedule property to the third parties and

RFA NO. 272/2009

therefore, the plaintiff was left with no other way than to

file the suit seeking his 1/4th share in the suit schedule

property.

7. On being served with summons by the trial Court,

the defendants appeared and filed their joint written

statement. They admitted the relationship, but they denied

that the plaintiff and defendants are coparceners of the

joint hindu family and that B.M.Rama Rao, was the kartha

of the family till his death i.e. 13-10-1998. They denied that

the plaintiff and defendants have succeeded to the suit

schedule property as members of the undivided joint family.

8. They also contended that the plaintiff was a

Government Employee working at Mysore and he had a

desire to purchase a house at Gokulam Mysore. The

defendant No.2 was residing at Banashankari and he had a

desire to purchase a house at Banashankari, Bangalore.

They also contended that the plaintiff and the defendant

No.2 compelled B.M.Rama Rao to sell away all the suit

schedule property and give their share so as to enable them

RFA NO. 272/2009

to purchase the house properties of their choice. On

account of the persistent demand by the plaintiff and

defendant No. 2, B.M. Rama Rao sold his self acquired

property situated at Anjaneya Temple Street,

Basavanagudi, Bangalore, during February 1995 to Ashok

Leyland and distributed the sale proceeds to the plaintiff

and defendant No.2. Out of such amounts distributed by

B.M. Rama Rao, the plaintiff acquired the house property at

Gokulam, Mysore, and defendant No.2 purchased a house

at Banashankari III Stage, Bangalore. They contended that

at the time of disbursement of sale proceeds, B.M.Rama

Rao, had imposed a condition to the plaintiff and defendant

No.2 that they shall not be entitled for any share in the

remaining small house, i.e., the suit property situated at

Chamarajpet, where himself, defendant Nos. 1 and 3 were

residing. Therefore, there was a family settlement which

was amicably accepted by all the parties. They contended

that the defendant No.1 and the defendant No.3 continued

to reside in the suit schedule property even after the death

RFA NO. 272/2009

of B.M.Rama Rao. During the life time of B.M.Rama Rao, he

had executed a Will on 21-9-1996, narrating all the above

facts and bequeathed the property to the defendant No.3.

9. They contended that the plaintiff being the eldest

son of B.M.Ram Rao was close and affectionate towards

B.M.Rama Rao and as such, all the documents pertaining to

the family properties; along with gold, silver and other

valuables were with him. They also contended that the

plaintiff was also demanding money from B.M.Rama Rao,

for his various needs i.e. for purchase of a house at MUDA

Colony, Mysore, to come out of mis-appropriation charges

and suspension of the plaintiff in Forest Department,

medical treatment, donation to admit his children to the

school etc. Therefore, it is contended that the entire

property of the joint family was divided by B.M.Rama Rao

during his life time and as such, the suit schedule property

is not available for partition. They also contended that when

the plaintiff had given in writing that he does not claim any

share in the ancestral property after receiving the proceeds

RFA NO. 272/2009

from the sale of self acquired property by signing on the

Will/settlement deed, now cannot contend that the Will

executed by B.M.Rama Rao is not valid. On these grounds,

the defendants contended that the transfer of khatha of suit

schedule property in favour of defendant No.3 is proper and

correct. Hence, they sought for dismissal of the suit.

10. On the basis of the above pleadings, the following

issues were framed by the trial Court and were answered as

below after letting in the evidence of the parties and

hearing them. Plaintiff No.1 was examined as PW1 and got

two witnesses examined as PWs.2 and 3 and Exs.P1 to P11

were marked on behalf of the plaintiff. Defendant Nos.1 and

3 were examined as DWs. 1 and 2, the attestor to the Will

has been examined as DW3 and a witness to the registered

sale deed is examined as DW4 and Exs.D1 to D13 were

marked on behalf of the defendants.

Issues Answer

1. Does plaintiff prove that suit schedule Affirmative property is the joint family property as alleged

2. Do the defendants prove that B.M.Rama Affirmative

RFA NO. 272/2009

Rao sold his self acquired property in February, 1995 as contended inPara-4 of his written statement?

3. Do the defendants further prove that Negative plaintiff acquired properties at Mysore by using the sale proceeds and other payments of B.M.Rama Rao?

4. Do the defendants prove the Will dated Affirmative 21.2.1996 executed by B.M.Rama Rao?

5. Do the defendants prove the family Negative settlement as contended in Para-4 of his written statement?

6. Is plaintiff entitled to 1/4 share in the Affirmative suit property

7. Is plaintiff entitled to the relief of Affirmative declaration as sought for?

  8. What order or decree?                         As per       final
                                                   order

11. By the impugned judgment, the suit of the plaintiff

came to be decreed holding that the plaintiff is entitled for

partition and separate possession of his 1/4th share and

that the Will at Ex.D4 dated 21-2-1996 by B.M.Rama Rao is

not binding on the plaintiff.

12. Being aggrieved by the said judgment and decree,

the defendant Nos. 1 to 3 have approached this Court in

appeal.

RFA NO. 272/2009

13. The plaintiff/ respondent No.1 herein died on

24-10-2008 i.e. before filing this appeal on 13-3-2009. The

appellants while complying the office objections on the

appeal, brought the legal heirs of the respondent No.1 on

record and the office has raised objections pursuant to

which applications under Order 22 of CPC were filed, and

after hearing counsel for the appellants and the caveators,

who are none else than the LRs of the respondent No.1, the

applications came to be allowed by this Court vide order

dated 3.8.2009.

14. The appellants contend that though the plaintiff

had not at all contended that the Will is the out come of any

undue influence or coercion on the part of the defendants,

the Trial Court held that the Will is not binding on the

plaintiff. This conclusion is apparently erroneous when the

trial Court comes to a definite conclusion that the

defendants had proved the execution of the Will at Ex.D4 as

required under Law and had answered issue No.4 in the

affirmative. Therefore, when the Will is proved, its contents

RFA NO. 272/2009

automatically bind the plaintiff and the trial Court could not

have found fault with the applicability of the said Will and

the capacity of the testator to bequeath the property.

Therefore, it is contended that the impugned judgment is

erroneous and the same is liable to be set aside.

15. On admitting the appeal, the trial Court records

have been secured and the arguments by learned counsel

appearing for the appellants and learned counsel appearing

for respondent Nos. 1(a) to (c) were heard.

16. The learned counsel for the appellants would

contend that the father of the plaintiff B.M.Rama Rao was

working as an Engineer in MSEB (Later known as KEB). Out

of his earnings and savings, he acquired the property

bearing No.72, East Anjaneya Temple Street Basavanagudi,

measuring 110 x 30 ft. On account of the demands for

partition made by the plaintiff and defendant No.2, he sold

the above said self acquired property in favour of Ashok

Leyland under Registered sale deed dated 4-5-1995. Prior

to it, an agreement for sale was also entered into on

RFA NO. 272/2009

25-1-1995. In both these documents, the plaintiff, his sons

and the defendants are also parties and signatories despite

the fact that the property was the self acquired property of

B.M.Rama Rao. He would contend that acceding to the

requests made by his sons, he sold the above said property

for a consideration of `23.5 lakhs and distributed the same

to the plaintiff as well as defendant No.2. He also

bequeathed the ancestral property i.e. the suit schedule

property in favour of the defendant No.3 and thereby

effected a settlement, which he mention in his Holographic

Will dated 21-2-1996. The said Will was in the presence of

two attesting witnesses and it was also signed by the

plaintiff, his sons and the defendant Nos. 2 and 3. The

learned counsel would also submit that the contents of the

said Will were known to the plaintiff and his sons. He also

draws the attention of the Court to the letters written by

the plaintiff dated 25-7-1994 and 27-5-1992 which are

Exs.D1 and D2, wherein, the plaintiff had expressed that he

would prefer to obtain money instead of the property

RFA NO. 272/2009

towards his share. Therefore, the learned counsel for the

appellants submits that the trial Court had erred in holding

that the Will executed by deceased B.M.Rama Rao would

not bind the entire ancestral property, but it binds only in

respect of the share of Rama Rao in it. Hence, he has

sought for intervention by this Court.

17. Per contra, the learned counsel appearing for the

respondents submit that the existence of the joint family of

the plaintiff and the defendants and that the said joint

family inherited the suit schedule property as ancestral

property is not in dispute. He also submits that the property

at Anjaneya Temple Street, Basavanagudi, was self

acquired property of B.M.Rama Rao is also not in dispute.

Obviously, B.M.Rama Rao could not have Willed away the

share of his sons, who were the co-parceners without their

consent. Therefore, he contends that the Will executed by

B.M.Rama Rao binds only in respect of his share in the

property and therefore, the impugned judgment is proper

and correct. Moreover, there is variance between the

RFA NO. 272/2009

pleadings and the proof in respect of the insistence by the

plaintiffs and the defendant No.2 to effect a partition. This

aspect is observed by the trial Court in para 14 of its

judgment and therefore, no fault can be found with the

impugned judgment.

18. After hearing both the sides, the points that arise

for our consideration are:

(i) Whether the last Will of B.M. Rama Rao

produced at Ex.D4 is proved?

(ii) Whether there was family settlement

between the plaintiff and the defendants as stated in

the Will at Ex.D4 executed by B.M.Rama Rao?

(iii) Whether the suit property remains to be an

ancestral joint family property after such family

settlement?

(iv) Whether the impugned judgment suffers

from perversity and arbitrariness?

19. The fact that B.M.Rama Rao had inherited the suit

schedule property under Ex.P1 the partition deed between

RFA NO. 272/2009

his father and brothers is not in dispute. It is an admitted

fact the suit schedule property was ancestral property of

the plaintiff and defendants. It is also an admitted fact that

B.M.Rama Rao purchased the property at Anjaneya Temple

Street, Basavanagudi, under a sale deed dated 25-8-1967

out of his own earnings. It is also an admitted fact that

B.M.Rama Rao along with the plaintiff and defendants sold

the said property under a registered sale deed dated

4-5-1995 in favour of Ashok Leyland as per Ex.D6.

20. The dispute between the parties is only in respect

of the Will executed by B.M.Rama Rao and the availability

of the suit schedule property for partition after the said Will.

The plaintiff contend that B.M.Rama Rao sold the property

acquired by him in favour of Ashok Leyland and distributed

the sale proceeds as per his wish. Such distribution was

oblivious to the shares of the parties in the ancestral joint

family property.

21. Whereas the defendants who are the mother and

brothers of the plaintiff contend that there was a family

RFA NO. 272/2009

settlement which is depicted in the Will executed by

B.M.Rama Rao, wherein, the self acquired property was sold

by him and in order to satisfy the share of the plaintiff and

defendant No.2, the sale proceeds were distributed to the

plaintiff and the defendant No.2 only. This aspect was

narrated by B.M.Rama Rao in his Will which is subscribed by

the plaintiff and the defendant Nos. 2 and 3. Therefore, the

plaintiff cannot ignore his consent to such family settlement

which is mentioned in the Holographic Will of B.M.Rama

Rao. It is relevant to note that the plaintiff has denied

about the Will executed by his father, B.M.Rama Rao.

22. Evidently, the burden of proving the Will of

B.M.Rama Rao is on the defendants. The said Will is

produced by the defendants at Ex.D4. Prior to the said Will,

B.M.Rama Rao had also executed another Will as per Ex.D3

which is not attested by any attesting witnesses. However,

it appears, realizing that the Will is not valid in the absence

of any attesting witnesses, another Will as per Ex.D4 came

to be executed. The last Will of the testator is dated

RFA NO. 272/2009

21-2-1996 and is at Ex.D4. The testator died on

13-10-1998.

23. The perusal of the said Wills at Ex.D3 and D4

show that they were written in the hand writing of testator

B.M.Rama Rao. The contents of both these Wills are one

and the same.

24. In order to prove the said Will, in compliance with

Section 63 of the Indian Succession Act, and Section 68 of

the Indian Evidence Act, the defendants have examined the

attesting witness as DW3. He has stated that the Will was

executed by B.M.Rama Rao in his presence and also in the

presence of another attesting witness Raghavendra Rao and

they have signed it as attesting witnesses. In his affidavit

evidence, he stated that the testator has sold the

Basavanagudi property and has shared the sale proceeds

equally between the first and second sons and the present

residential house was allotted to the third son, defendant

No.3.

RFA NO. 272/2009

25. In the detailed cross-examination, it is elicited

that he is also the resident of the neighborhood, the Will

was written by B.M.Rama Rao in his house. It is also elicited

in the cross- examination that at the time of the execution

of the Will the plaintiff as well as defendant No. 1 to 3 and

grandchildren of B.M.Rama Rao and his daughters-in-law

were also present. It is also elicited that children of

B.M.Rama Rao have also signed the said document. There

is nothing in the cross-examination of DW3 which would

show any suspicious circumstance. It is also relevant to

note that Ex.D4 being a Holographic Will, there is no room

to suspect the same. Evidently, B.M.Rama Rao was a

retired Assistant Engineer of MSEB and was aged about

85-86 years and was capable of writing the document. It is

also pertinent to note that in Exs.D3 and D4, the testator

has signed wherever there are corrections/insertions. It is

not the case of the plaintiff that B.M.Rama Rao was not in

disposable state of mind at the time of executing the Will.

26. The trial Court after examining the evidence

RFA NO. 272/2009

available on record has come to the conclusion that the said

Will at Ex.D4 is executed by B M Ramarao. It has also

referred to the Judgment of the Apex Court in the case of

Mrs. Joyce Primrose Prestor (Nee Vas) vs Miss Vera

Marie Vas and others reported in 1996 (9) SCC 324,

wherein, it was held that in case of a holographic Will, the

greater presumption of the Will arises. The trial Court has

also observed that the plaintiff has not denied that Exs.D3

and D4 are in the handwriting of B.M.Rama Rao. Under

these circumstances, we also come to the conclusion that

the defendants have proved the Will Ex.D4. Thus, the

finding on issue No.4 cannot be found fault with.

27. The next question that arises is, Whether

B.M.Rama Rao had sold his self acquired property alone or

it was in furtherance of a family settlement?.

28. It is the case of the plaintiff that the Will-Ex.D4

does not bind him in respect of his share in the ancestral

property inherited as coparcener. The defendants contend

that the sale proceeds of the self acquired property were

RFA NO. 272/2009

distributed among the plaintiff and defendant No.2 only.

The plaintiff, out of such sale proceeds purchased the

property at Goklulam, Mysore and the defendant No.2

purchased the property at Banashankari, Bangalore.

Defendant No.2 has admitted that he has purchased the

property at Banashankari. However, the plaintiff denied that

he had applied such sale proceeds for the purchase of the

property at Gokulam Mysore.

29. Para 12 of the cross-examination of PW1-

B.R.Raghunath, dated 12-12-2006 reads as follows:

"12. It is not correct to suggest that I own a house in Gokulam Extension, Mysore. (Witness volunteers to state that there is a house in the name of his wife in Gokulam Extension, Mysore which was purchased out of the money given by his father). It is true that I own a house in Kalyanagiri Extension, Mysore."

30. Further the cross-examination of PW1-Raghunath

dated 15-3-2007 at para 16 reads as below:

"16. It is true that all the vendors shown in Ex.D.5 have joined the execution of Sale Deed infavour of Ashok Layland Finance Ltd., for the sale of Basavanagudi property. It is true that from out of the amount paid to me after the sale of

RFA NO. 272/2009

Basavanagudi property I purchased property at Mysore."

31. Thus, it is evident that PW1 in unequivocal terms

has admitted that he had purchased the property at Mysore

out of the money he obtained from the sale of the self

acquired property of B.M.Rama Rao.

32. The Ex.D4, Will reads as below:

"£À£ÀUÉ FUÀ 85-86 ªÀµÀð ªÀAiÀÄ¸ÁìVzÉ. £À£ÀUÉ ªÀÄÆªÀgÄÀ UÀAqÀÄ ªÀÄPÀÌ½zÁÝgÉ. £À£ÀUÉ ¦vÁæfðÀvÀªÁV ZÁªÀÄgÁd¥ÉÃmÉ 4£ÉÃ ªÀÄÄRå gÀ¸ÉÛ 8£ÉÃ PÁæ¸ï gÀ¸ÀÛAiÀÄ°ègÀÄªÀ 9 £ÀA§gï ªÀÄ£É 30 Cr * 50 CrAiÀÄ°è 10 Cr * 50 CrAiÀÄ°è ¸ÀÄªÀiÁgÀÄ 80 ªÀµÀðUÀ¼À »AzÉ PÀlÖqÀ »Aa£À ªÀÄ£É ªÀÄvÀÄÛ ¥ÀÆªÀðPÉÌ ¸ÉÃjzÀ SÁ° eÁUÀ £À£ÀUÉ §AzÀ »¸Éì 30 Cr * 50 Cr §¸ÀªÀ£ÀUÄÀ r CAd£ÉÃAiÀÄ ¸Áé«Ä gÀ¸ÉÛAiÀÄ°è 30 Cr * 110 Cr eÁUÀzÀ°è £À£ßÀ ¸ÀéAiÀiÁfðvÀªÁzÀ MAzÀÄ ªÀÄ£É EvÀÄÛ. £À£Àß ¦vÁæfðvÀ ¸ÀévÀÄÛ M§âgÀ ¸ÀA¸ÁgÀPÉÌ ªÀiÁvÀæ ¸ÁPÁUÀÄvÉÛ. £À£ßÀ ªÉÆzÀ®£ÉÃ ªÀÄUÀ ©.Dgï gÀ¥ÄÀs £ÁxÀ£ÄÀ ªÉÄÊ¸ÀÆj£À¯èÉÃ ªÁ¸ÀªÁVgÀ ¨ÉÃPÉAzÀÄ JgÀqÀ£ÉÃ ªÀÄUÀ ©.Dgï «±Àé£ÁxÀ£ÄÀ vÁ£ÀÄ ¸ÀévÀAvÀæªÁV ¨ÉÃgÉAiÉÄÃ EgÀ®Ä EµÀÖ¥n À ÖzÝÀ jAzÀ®Æ £À£Àß ¸ÀéAiÀiÁfðvÀ ªÀÄ£ÉAiÀÄ£ÀÄß C±ÉÆÃPï ¯ÉÃ¯ÉAqï CªÀjUÉ ¥sÉ§æªÀj 9gÀ°è ªÀiÁj §£À±ÀAPÀj 3£ÉÃ ºÀAvÀzÀ°è ©.Dgï «±Àé£ÁxÀ¤UÀÆ ªÉÄÊ¸ÀÆgÀÄ UÉÆÃPÀÄ® §qÁªÀuÉAiÀÄ°è £À£Àß ªÉÆzÀ® ªÀÄUÀ ©.Dgï gÀ¥ÄÀs £ÁxÀ¤UÀÆ CªÀgÀªÀgÉÃ EµÀÖ¥ÀlÄÖ ªÀÄ£É ªÀÄ£ÉPÉÆ¼Àî®Ä ºÀt PÉÆnÖgÄÀ vÉÛÃ£É. CªÀgÄÀ DAiÀiÁ ªÀÄ£ÉUÀ¼À£ÀÄß PÉÆAqÀÄ C°è ¸ÀAvÉÆÃµÀªÁVgÀÄvÁÛgÉ. DzÀÝjAzÀ EzÀgÀ ªÉÄÃ¯É CªÀgÄÀ AiÀiÁjUÀÆ ¦vÁæfðvÀ¸ÀéwÛ£À°è AiÀiÁªÀ ºÀPÄÀ Ì E®è.

£À£Àß ªÀÄÆgÀ£É ªÀÄUÀ ©.Dgï £ÀgÉÃAzÀæ£ÁxÀ£ÄÀ ªÁ¸ÀPÌÉ AiÉÆÃUÀåªÀ®è¢zÀÝgÀÆ £À£Àß ¦vÁæfðvÀ ªÀÄ£ÉAiÀÄ¯ÉèÃ EgÀ®Ä EZÉÑ ¥ÀnÖzÀÝjAzÀ ZÁªÀÄgÁd¥ÉÃmÉ 4£ÉÃ ªÀÄÄRå gÀ¸ÉÛ 8£ÉÃ PÁæ¸ï 9£ÉÃ £ÀA§gï (100/2/9) ªÀÄvÀÄÛ SÁ° eÁUÀ 3£ÉÃ ªÀÄUÀ ©.Dgï £ÀgÉÃAzÀæ£ÁxÀ¤UÉÃ ¸ÉÃgÀvÀPÌÀ zÉÝAzÀÄ §gÉzÀ G¬Ä®Ä AiÀiÁ ªÀÄgÀt ±Á¸À£À ¥Àvæ.À "

RFA NO. 272/2009

33. Thus it is evident that B.M.Rama Rao was aware

of the fact that he had the ancestral property at

Chamarajpet (suit property) and he had self acquired

property at Anjaneya Temple Street, Basavanagudi. He has

stated that the plaintiff desired to stay at Mysore and the

defendant No.2 desired to live independently and therefore,

he has sold his self acquired property to Ashok Leyland

during February 1995 and has distributed the money to the

plaintiff and the defendant No.2 to acquire properties at

Gokula Extension, Mysore and Banashankari III Stage,

Bangalore, respectively. Accordingly, they had purchased

the properties and are staying there and therefore, they do

not have any right in the ancestral property and therefore,

he is bequeathing the ancestral property to defendant No.3.

34. It is also evident from the perusal of Ex.D4 that it

was signed by the plaintiff, his wife Sandhya, sons - B.R.

Mukunda and B.R. Pradeep Kumar and the defendant No.2.

These signatures are admitted by the PW1-plaintiff, PW2-

RFA NO. 272/2009

B.R. Mukunda and PW3-B.R. Pradeep kumar as well as

DW1-defendant No.2.

35. It is the contention of the plaintiff that though,

himself, his sons and wife have signed Ex.D4, the

signatures were taken by B.M.Rama Rao in the guise of a

mutation being effected in favour of Ashok Leyland in

pursuance to the sale deed. It is evident from the perusal of

Exs.D3 and D4 that, the stamp papers for Ex.D3 were

purchased on 17-1-1996 and stamp paper for Ex.D4 was

purchased on 8-2-1996 by B.M.Rama Rao himself. The sale

deed as per Ex.D6 was executed in favour of Ashok Leyland

on 4-5-1995. Prior to it, an agreement of sale was executed

as per Ex.D5 on 25-1-1995. For both these documents,

B.M.Rama Rao, his three sons, sons of the plaintiff and wife

of the plaintiff have signed. It was not explained why the

plaintiff, his sons and wife also signed Exs.D5 and D6 even

though the said property was the self acquired property of

B.M.Rama Rao alone. This aspect attains significance when

RFA NO. 272/2009

it is stated by plaintiff that they signed Ex. D4 blindly at the

instance of B. M. Rama Rao.

36. It is evident that there is no recital either in Ex.D4

or in any other documents about the equal distribution of

the sale proceeds. The plaintiff contends that the sale

proceeds were distributed to all equally. He does not clarify

as to whether his sons and wife also received the equal

amount in the sale proceeds.

37. On the contrary, the defendants contend that the

sale proceeds were distributed to the plaintiff and defendant

No.2 only. DW.1 states in his testimony that he had

received `11,55,000/- which is half the sale consideration.

The defendants rely on the two letters written by the

plaintiff to defendant No.2 and B.M.Rama Rao which are at

Exs.D1 and 2. These letters were marked by confronting

the same to the PW1, who admitted that they were in his

handwriting. In Ex.D1 dated 25-7-1994 written to

defendant No.2 the plaintiff states that he is unable to come

to Bangalore and therefore, defendant No.2 and defendant

RFA NO. 272/2009

No.3 have to choose their share and the leftover has to be

given to him. He also expressed that he does not desire to

come to Bangalore and it would suffice that the property be

sold and the money be given to him. Apart from that, he

has also refers to some differences between his parents and

wife. He has also mentioned that he was suspended from

his job and he is yet to receive the balance of the salary.

Thus it is evident that the plaintiff desired that the

properties at Bangalore have to be chosen by defendant No.

2 and 3 and only the left over should be given to him.

38. Further the perusal of Ex.D2, the letter dated

25.07.1994 written by the plaintiff to B.M.Rama Rao shows

that, he had received the DD and he was trying to sell the

property which he had purchased at Kalyanagiri Nagar and

he would sell that when he gets proper price and out of

that, he would return a sum of `50,000/- or else, if

B.M.Rama Rao desires, the entire amount of `1,00,000/-

would be paid after his retirement, from the gratuity

RFA NO. 272/2009

amount received by him. He also expressed that B.M.Rama

Rao had lost the trust in the plaintiff.

39. These letters would show that the plaintiff was in

need of money and he had borrowed money from

B.M.Rama Rao. Therefore, in furtherance of such intention

and expression by the plaintiff, B.M.Rama Rao decided to

sell the self acquired property and satisfy the claim of the

plaintiff and defendant No.2. The recitals in Exs.D3 and D4

show the same. In other words, B.M.Rama Rao treated the

self acquired property as the joint family property and

satisfied the claim of the plaintiff. The plaintiff and his

family members not only signed the agreement with the

purchaser but also signed the sale deed. If the property

sold was not the joint family property, there was no reason

for the plaintiff and his family members to join in executing

the agreement as well as the sale deed. Not only that, the

plaintiff and his family members have signed Ex.D4 also.

40. The plaintiff was a Range Forest Officer, and was

not a layman. PW2-B.R. Mukunda and PW3-B.R. Pradeep

RFA NO. 272/2009

Kumar were the major sons of PW1. All of them say that

they did not know the contents of the Ex.D4, the Will

executed by B.M.Rama Rao. This contention of PWs 1 to 3

that their signatures were taken by B.M.Rama Rao in the

guise of a requirement to complete the sale of the self

acquired property in favour of Ashok Leyland cannot be

accepted. They were not the laymen and it was subsequent

to the agreement of sale as per Ex.D5 and the sale deed as

per Ex.D6. Moreover, DW3 Nagaraj states that he has

signed the Ex.D4 after it was signed by the testator and

PWs 1 to 3 and defendant No.2. Under these circumstances,

it cannot be held that the plaintiff and his sons have signed

on a blank stamp paper at the instance of B.M.Rama Rao.

Evidently, plaintiff had expressed that B.M.Rama Rao had

lost the trust in him. Therefore, it cannot be said that

plaintiff was oblivious to the contents of Ex.D4.

41. From the above evidence on record, it is clear that

plaintiff has acquiesced to the contents of Ex.D4, the

holographic Will executed by B.M.Rama Rao. In fact, Ex.D4

RFA NO. 272/2009

speaks of a settlement effected by the testator. It is an

admitted fact that B.M.Rama Rao was the kartha of the

family and therefore, he had the power to effect the

settlement by throwing his self acquired property into the

family hotchpot. This arrangement made by B.M.Rama Rao

was well within the knowledge of the plaintiff and his family

members. For obvious reasons, B.M.Rama Rao did not spell

out the amounts which were given to the plaintiff and the

defendant No.2. The defendant No.2 in his evidence has

stated that he and the plaintiff were given `11,55,000/-

each. However, the plaintiff states that he had received

only `6,00,000/-. It is also evident that there were money

transactions between B.M.Rama Rao and the plaintiff. The

plaintiff is totally silent in respect of the promise made by

him to his father as per letter at Ex.D2. Under such

circumstances, the plaintiff cannot go back on the contents

of Ex.D4 which was within his knowledge.

42. The perusal of the judgment of the trial Court

discloses that it has not bestowed its attention on the

RFA NO. 272/2009

contents of Exs.D3 and D4. It says that Ex.D4 can bind only

the share of B.M.Rama Rao as the suit property is the

ancestral property. It did not bestow its attention on the

acts of B.M.Rama Rao as stated in Ex.D4, which is

supported by the letters written by the plaintiff as per

Exs.D1 and D2. When the trial court had accepted Ex.D4, a

holographic Will, there was no reason to discard the say of

the testator that he has settled all the family properties.

Testator B.M.Rama Rao had considered the suit schedule

property as well as self acquired property in achieving a

family settlement. It is also pertinent to note that there is

no evidence to show that B.M.Rama Rao had treated the

property at Anjaneya Temple Street as his exclusive

property and had kept the same separately from the joint

family properties. Plaintiff admits in his letter at Ex.D1 that

the defendant Nos. 2 and 3 can retain any of the properties.

Therefore, the conclusions reached by the trial Court that

the self acquired property was kept separately from the suit

schedule property and the sale proceeds of the property

RFA NO. 272/2009

even though distributed to the sons, would not amount to

giving their share from the ancestral property is erroneous

and unsustainable in law. Further, the conclusions reached

by the trial Court in respect of issue No.3 are also

erroneous as demonstrated above. Obviously, the trial

Court did not bestow its attention on the contents of Ex.D4

where testator B.M.Rama Rao had sold his self acquired

property with the consent of the all the family members and

distributed the proceeds to all the family members. This

Court does not find any bias or one sided approach in the

conduct of B.M.Rama Rao. It is evident that he has thrown

his self acquired property into the hotchpot and distributed

the sale proceeds to the plaintiff and defendant No.2 and

settled the property inherited by him in favour of defendant

No.3.

43. The above view of ours on the competence of a

Kartha of HUF gets impetus from a decision of Madras high

Court. The competence of the Manager of a HUF, especially

father, was dealt by Madras High Court in the case of

RFA NO. 272/2009

Ramayya Goundan vs Kolanda Goundan and three

others1 in following words:

"I think it is perfectly within the competence of the manager of a Hindu family to allot to individual, members a sufficient portion of the family property having regard to its status and circumstances in order to enable them to maintain themselves out of its income. So long as the provision is fair and reasonable and the manager acts in good faith, without making the occasion a pretext for favouritism or injustice, the arrangement would be upheld by a Court as within the powers of the managing, member. For it cannot be denied that every member of the family, while it remains joint, has a right to be maintained out of the common assets. When the manager, proceeds bona fide to satisfy such a claim, which is plainly the inherent right of every member, he is merely discharging a duty incumbent upon him under the law. In fact, the propriety of his act in this behalf cannot be questioned. For, when the manager acts in such circumstances, it must be regarded as the act of the entire family not capable of being impeached at the instance, of a single dissentient member. His consent will be presumed for every dealing, with the family estate by the manager dictated by the necessities of the family or of the individuals composing it."

(Emphasis supplied)

44. A perusal of Ex.D4, the Holographic Will executed

by the testator B.M.Rama Rao would speak his mind. When

we have come to the conclusion that the Will executed by

ILR 1940 Mad 322

RFA NO. 272/2009

the testator is proved, the next question would be, whether

he was competent to bequeath the suit schedule property

to the defendant No.3? The mind of the testator as may be

found from Ex.D4 would show that he intended to effect a

settlement by throwing his self acquired property into the

hotchpot and to buy peace among his children. Exs.D1 and

D2 show that there was trust deficit between the plaintiff

and the testator B.M.Rama Rao. In order to bridge this gap

and also to see that there would not be any litigation

between his sons, the testator had thrown his property into

the hotchpot and included the plaintiff and defendant Nos. 2

and 3 and also the wife and children of the plaintiff in the

transaction with Ashok Leyland while selling his self

acquired property. Otherwise, there was no reason for

B.M.Rama Rao to include the plaintiff, his wife and children,

defendant Nos. 2 and 3 in the sale transactions. The

intention of the testator was to blend his self acquired

property into the joint family and to settle the shares of his

children.

RFA NO. 272/2009

45. Whether the self acquired property can be blended

with the joint family property was considered by the Apex

Court in the case of D.S. Lakshmaiah v. L.

Balasubramanyam2 in following words:

"19. Another contention urged for the respondents was that assuming Item 1 property to be self-acquired property of Appellant 1, he blended the said property with the joint family property and, therefore, it has become joint family property. Assuming the respondents can be permitted to raise such a plea without evidence in support thereof, the law on the aspect of blending is well settled that property separate or self- acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation."

(emphasis supplied by us)

(2003) 10 SCC 310

RFA NO. 272/2009

46. Thus, it is clear from the reading of Ex.D4 that

the testator B.M.Rama Rao had intended that the plaintiff

and the defendant No.2 were sufficiently compensated out

of the money acquired by selling his self acquired property

in lieu of their share in the joint family property and then

Willed away the suit schedule property in favour of

defendant No.3. This act of the testator was within his

realm of powers as Kartha of the family. This intention of

B.M.Rama Rao as Kartha of the family was not considered

by the trial Court while appreciating the contents of the Will

at Exs.D3 and D4. Obviously, B.M. Rama Rao had spoken

his mind through Exs.D3 and D4.