Karnataka High Court
J Jaimunirao vs J Dasaratha Rao on 16 February, 2024
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NC: 2024:KHC:7559
RFA No. 631 of 2008
C/W RFA No. 584 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL. NO. 631 OF 2008 (PAR)
C/W
REGULAR FIRST APPEAL. NO. 584 OF 2008 (DEC)
IN RFA NO 631 OF 2008
BETWEEN:
1. J JAIMUNI RAO,
S/O LATE GNANOJI RAO,
BY HER GPA SMT. S RUKMINI,
W/O J JAIMUNI RAO.
SINCE DECEASED BY HIS LR'S
1(A) SMT. S. RUKMINI,
W/O LATE J JAIMUNI RAO,
AGED ABOUT 53 YEARS,
R/AT NO. 15/A, 2ND MAIN,
2ND CROSS, GEF BLOCK,
INDUSTRIAL TOWN RAJAJINAGAR,
Digitally signed BENGALURU- 560 010.
by
ANNAPURNA G 1(B) SRI DIWAKAR.J,
S/O LATE J.JAIMUNI RAO,
Location: High
Court of AGED ABOUT 35 YEARS,
Karnataka R/AT NO. 15/A, 2ND MAIN,
2ND CROSS, GEF BLOCK,
INDUSTRIAL TOWN, RAJAJINAGAR,
BENGALURU- 560 010.
1(C) SMT. DIVYA J. SAVANTH,
W/O RAKESH BHONSLE,
D/O LATE J JAIMUNI RAO,
AGED ABOUT 24 YEARS,
R/AT NO. 50/4, 8TH CROSS,
3RD MAIN, GANESHA BLOCK,
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NC: 2024:KHC:7559
RFA No. 631 of 2008
C/W RFA No. 584 of 2008
MAHALAKSHMI LAYOUT,
BENGALURU-560 086.
...APPELLANTS
(BY SRI V B SHIVAKUMAR, ADVOCATE)
AND:
1. SRI J DASARATHA RAO,
S/O LATE SRI GNANOJI RAO,
SINCE DEAD BY LR'S
1(A) SMT. RUKMINI BAI,
W/O LATE J. DASARATHA RAO,
AGED ABOUT 60 YEARS.
1(B) SMT. D LATHA BAI,
D/O LATE J.DASARATHA RAO,
AGED ABOUT 41 YEARS.
1(C) SRI BABU RAO,
S/O LATE J.DASARATHA RAO,
AGED ABOUT 39 YEARS.
1(D) SRI D KRISHNOJI RAO,
S/O LATE J.DASARATHA RAO,
AGED ABOUT 37 YEARS.
1(E) SRI D.YESHWANTH RAO,
S/O LATE J.DASARATHA RAO,
AGED ABOUT 35 YEARS.
1(F) SMT. D MANJULA BAI,
D/O LATE J.DASARATHA RAO,
AGED ABOUT 33 YEARS.
ALL ARE R/AT NO.A-15,
I FLOOR, II CROSS,
GEF BLOCK, INDUSTRIAL TOWN,
RAJAJINAGAR,
BENGALURU-560 044.
2. SRI J ANANDA RAO,
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NC: 2024:KHC:7559
RFA No. 631 of 2008
C/W RFA No. 584 of 2008
S/O SRI GNANOJI RAO,
AGED ABOUT 32 YEARS,
R/AT: NO.M-26, 7TH CROSS,
'B' STREET, MAGADI RAOD,
BANGALORE-560 023.
3. SMT. SARASWATHI BAI,
W/O SRI LAKSHMAN RAO,
SINCE DEAD BY LRS
3(A) SHRI AMARNATH,
S/O LATE SARASWATHI BAI,
AGED ABOUT 45 YEARS,
R/AT NO.7, 12TH CROSS,
RAGHAVENDRA BLOCK, SRINAGAR,
BANGALORE-560 019.
3(B) SHRI SRINIVASA RAO,
S/O LATE SARASWATHI BAI &
LAKSHMANA RAO,
AGED ABOUT 43 YEARS.
R/AT: NO.7, 12TH CROSS,
RAGHAVENDRA BLOCK, SRINAGAR,
BANGALORE- 560 019.
3(C) SHRI UMASHANKAR @ GUNDA,
S/O LATE SARASWATHI BAI &
LAKSHMANA RAO,
AGED ABOUT 41 YEARS,
R/AT NO.7, 12TH CROSS,
RAGHAVENDRA BLOCK, SRINAGAR,
BANGALORE-560 019.
3(D) SHRI RAMESH,
S/O LATE SARASWATHI BAI &
LAKSHMANA RAO,
AGED ABOUT 39 YEARS,
R/AT NO.7, 12TH CROSS,
RAGHAVENDRA BLOCK, SRINAGAR,
BANGALORE-560 019.
3(E) SHRI NAGARAJ,
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RFA No. 631 of 2008
C/W RFA No. 584 of 2008
S/O LATE SARASWATHI BAI &
LAKSHMANA RAO,
AGED ABOUT 37 YEARS,
R/AT NO.7, 12TH CROSS,
RAGHAVENDRA BLOCK, SRINAGAR,
BANGALORE-560 019.
4. SMT. LEELA BAI,
W/O SRI NARASINGA RAO,
SINCE DEAD BY LR'S
4(A) SHRI RAJA,
S/O LATE LEELA BAI & NARASINGA RAO,
AGED ABOUT 36 YEARS,
R/AT NO.21/1, 2ND CROSS,
CHOLURPALYA, MAGADI ROAD,
BANGALORE-560 023.
4(B) SHRI SHEKAR,
S/O LATE LEELA BAI & NARASINGA RAO,
AGED ABOUT 34 YEARS,
R/AT NO.21/1, 2ND CROSS,
CHOLURPALYA, MAGADI ROAD,
BANGALORE-560 023.
4(C) SMT. SHAKUNTHALA BAI,
D/O LATE LEELA BAI & NARASINGA RAO,
AGED ABOUT 40 YEARS,
R/AT NO. 21/1, 2ND CROSS,
CHOLURPALYA, MAGADI ROAD,
BANGALORE-560 023.
4(D) SMT. CHANDRA BAI,
D/O LATE LEELA BAI & NARASINGA RAO,
AGED ABOUT 38 YEARS,
R/AT NO. 21/1, 2ND CROSS,
CHOLURPALYA, MAGADI ROAD,
BANGALORE-560 023.
5. SMT. PARVATHI BAI,
W/O SRI MANNAJI RAO,
AGED ABOUT 50 YEARS,
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NC: 2024:KHC:7559
RFA No. 631 of 2008
C/W RFA No. 584 of 2008
R/AT: NO.59, 5TH CROSS,
MAGADI ROAD,
BANGALORE-560 023.
6. SMT. GIRIRAJA BAI,
W/O SRI VENKOBA RAO,
AGED ABOUT 37 YEARS,
R/AT: NO. 346-1-1, 9TH 'F'
MAIN ROAD, HOSAHALLI, PIPELINE,
BANGALORE-560 040.
...RESPONDENTS
(APPEAL AGAINST R1 ABATED V/O DATED 25.06.2014;
R3(A), R3(B), R3(C), R3(E) & R5 ARE SERVED;
SERVICE OF NOTICE TO R2, R3(D), R4(A-D) & R6 ARE H/S
THROUGH PAPER PUBLICATION V/O DATED 29.09.2015)
THIS RFA IS FILED U/S 96 ORDER XLI RULE 1 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 12.2.08 PASSED
IN OS 9104/01 ON THE FILE OF THE VII ADDL. CITY CIVIL
JUDGE, BANGALORE (CCH.NO.19), DECREEING THE SUIT FOR
PARTITION AND RENDITION OF ACCOUNT
IN RFA NO 584 OF 2008
BETWEEN:
1. J JAIMUNI RAO,
S/O LATE GNANOJI RAO,
BY HER GPA SMT. S RUKMINI,
W/O J JAIMUNI RAO.
SINCE DECEASED BY HIS LR'S
1(A) SMT. S. RUKMINI,
W/O LATE J JAIMUNI RAO,
AGED ABOUT 53 YEARS,
R/AT NO. 15/A, 2ND MAIN,
2ND CROSS, GEF BLOCK,
INDUSTRIAL TOWN RAJAJINAGAR,
BENGALURU- 560 010.
1(B) SRI DIWAKAR.J,
S/O LATE J.JAIMUNI RAO,
AGED ABOUT 35 YEARS,
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NC: 2024:KHC:7559
RFA No. 631 of 2008
C/W RFA No. 584 of 2008
R/AT NO. 15/A, 2ND MAIN,
2ND CROSS, GEF BLOCK,
INDUSTRIAL TOWN, RAJAJINAGAR,
BENGALURU- 560 010.
1(C) SMT. DIVYA J. SAVANTH,
W/O RAKESH BHONSLE,
D/O LATE J JAIMUNI RAO,
AGED ABOUT 24 YEARS,
R/AT NO. 50/4, 8TH CROSS,
3RD MAIN, GANESHA BLOCK,
MAHALAKSHMI LAYOUT,
BENGALURU-560 086.
...APPELLANTS
(BY SRI V B SHIVAKUMAR, ADVOCATE)
AND:
1. SRI J DASARATHA RAO,
S/O LATE SRI GNANOJI RAO,
SINCE DEAD BY LR'S
1(A) SMT. RUKMINI BAI,
W/O LATE J. DASARATHA RAO,
AGED ABOUT 60 YEARS.
1(B) SMT. D LATHA BAI,
D/O LATE J.DASARATHA RAO,
AGED ABOUT 41 YEARS.
1(C) SRI BABU RAO,
S/O LATE J.DASARATHA RAO,
AGED ABOUT 39 YEARS.
1(D) SRI D KRISHNOJI RAO,
S/O LATE J.DASARATHA RAO,
AGED ABOUT 37 YEARS.
1(E) SRI D.YESHWANTH RAO,
S/O LATE J.DASARATHA RAO,
AGED ABOUT 35 YEARS.
1(F) SMT. D MANJULA BAI,
D/O LATE J.DASARATHA RAO,
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RFA No. 631 of 2008
C/W RFA No. 584 of 2008
AGED ABOUT 33 YEARS.
ALL ARE R/AT NO.A-15,
I FLOOR, II CROSS,
GEF BLOCK, INDUSTRIAL TOWN,
RAJAJINAGAR,
BENGALURU-560 044.
2. SRI J ANANDA RAO,
S/O SRI GNANOJI RAO,
AGED ABOUT 32 YEARS,
R/AT: NO.M-26, 7TH CROSS,
'B' STREET, MAGADI RAOD,
BANGALORE-560 023.
3. SMT. SARASWATHI BAI,
W/O SRI LAKSHMAN RAO,
SINCE DEAD BY LRS
3(A) SHRI AMARNATH,
S/O LATE SARASWATHI BAI,
AGED ABOUT 45 YEARS,
R/AT NO.7, 12TH CROSS,
RAGHAVENDRA BLOCK, SRINAGAR,
BANGALORE-560 019.
3(B) SHRI SRINIVASA RAO,
S/O LATE SARASWATHI BAI &
LAKSHMANA RAO,
AGED ABOUT 43 YEARS.
R/AT: NO.7, 12TH CROSS,
RAGHAVENDRA BLOCK, SRINAGAR,
BANGALORE- 560 019.
3(C) SHRI UMASHANKAR @ GUNDA,
S/O LATE SARASWATHI BAI &
LAKSHMANA RAO,
AGED ABOUT 41 YEARS,
R/AT NO.7, 12TH CROSS,
RAGHAVENDRA BLOCK, SRINAGAR,
BANGALORE-560 019.
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RFA No. 631 of 2008
C/W RFA No. 584 of 2008
3(D) SHRI RAMESH,
S/O LATE SARASWATHI BAI &
LAKSHMANA RAO,
AGED ABOUT 39 YEARS,
R/AT NO.7, 12TH CROSS,
RAGHAVENDRA BLOCK, SRINAGAR,
BANGALORE-560 019.
3(E) SHRI NAGARAJ,
S/O LATE SARASWATHI BAI &
LAKSHMANA RAO,
AGED ABOUT 37 YEARS,
R/AT NO.7, 12TH CROSS,
RAGHAVENDRA BLOCK, SRINAGAR,
BANGALORE-560 019.
4. SMT. LEELA BAI,
W/O SRI NARASINGA RAO,
SINCE DEAD BY LR'S
4(A) SHRI RAJA,
S/O LATE LEELA BAI & NARASINGA RAO,
AGED ABOUT 36 YEARS,
R/AT NO.21/1, 2ND CROSS,
CHOLURPALYA, MAGADI ROAD,
BANGALORE-560 023.
4(B) SHRI SHEKAR,
S/O LATE LEELA BAI & NARASINGA RAO,
AGED ABOUT 34 YEARS,
R/AT NO.21/1, 2ND CROSS,
CHOLURPALYA, MAGADI ROAD,
BANGALORE-560 023.
4(C) SMT. SHAKUNTHALA BAI,
D/O LATE LEELA BAI & NARASINGA RAO,
AGED ABOUT 40 YEARS,
R/AT NO. 21/1, 2ND CROSS,
CHOLURPALYA, MAGADI ROAD,
BANGALORE-560 023.
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RFA No. 631 of 2008
C/W RFA No. 584 of 2008
4(D) SMT. CHANDRA BAI,
D/O LATE LEELA BAI & NARASINGA RAO,
AGED ABOUT 38 YEARS,
R/AT NO. 21/1, 2ND CROSS,
CHOLURPALYA, MAGADI ROAD,
BANGALORE-560 023.
5. SMT. PARVATHI BAI,
W/O SRI MANNAJI RAO,
AGED ABOUT 50 YEARS,
R/AT: NO.59, 5TH CROSS,
MAGADI ROAD,
BANGALORE-560 023.
6. SMT. GIRIRAJA BAI,
W/O SRI VENKOBA RAO,
AGED ABOUT 37 YEARS,
R/AT: NO. 346-1-1, 9TH 'F'
MAIN ROAD, HOSAHALLI, PIPELINE,
BANGALORE-560 040.
...RESPONDENTS
(BY SRI M JAIPRAKASH RAO, ADVOCATE FOR R1(A-F);
R2, R3(A), R3(B), R3(C), R3(D), R3(E), R5 ARE SERVED;
SERVICE OF NOTICE TO R4 (A TO D) & R6 ARE H/S
THROUGH PAPER PUBLICATION)
THIS RFA IS FILED U/S 96 O-XLI, R-1 OF CPC AGAINST
THE JUDGEMENT AND DECREE DATED 12.02.2008 PASSED IN
OS.NO.7867/2001 ON THE FILE OF THE VII ADDL.CITY CIVIL
JUDGE, BANGALORE, CCH.NO.19, DISMISSING THE SUIT FOR
DECLARATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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RFA No. 631 of 2008
C/W RFA No. 584 of 2008
JUDGMENT
RFA No.631/2008 and RFA No.584/2008 are filed by
one J.Jai Munirao (defendant in OS No.9104/2001 and
plaintiff in OS No.7867/2001) against the common
judgment and decree dated 12.02.2008 passed in
O.S.No.9104/2001 and O.S.No.7867/2001 by the learned
VII Additional City Civil Judge, Bangalore (CCH-19),
respectively.
2. By the impugned common judgment and
decree, O.S.No.9104/2001 filed by defendant-J.Dasaratha
Rao against J.Jai Munirao came to be decreed and
O.S.No.7867/2001 filed by plaintiff-J.Jai Munirao against
J.Dasaratha Rao came to be dismissed.
3. The parties would be referred to as per their
rank in O.S.No.7867/2001 for the sake of convenience, as
has been done by the trial Court.
4. Brief facts of the case in both the suits are as
below:
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5. The plaintiff-J.Jai Munirao and defendant No.1-
J.Dasaratha Rao, defendant No.2-J.Ananda Rao and
defendant Nos.3 to 6 are the sons and daughters of
Gnanoji Rao and his wife Savithri Bai. Gnanoji Rao died on
05.09.1881 and Savithri Bai died on 24.11.1991. The
plaintiff- J.Jai Munirao contended that during the year
1996, all the defendants approached the plaintiff under the
instigation of defendant No.1 stating that the defendant
Nos.2 to 6 would relinquish their rights in the schedule
(item No.3 of the suit schedule) property, if the defendant
Nos.2 to 6 are paid Rs.1 Lakh. They are assured that the
rest of the properties of the father would be shared among
them in the days to come. Accordingly, the plaintiff paid a
sum of Rs.50,000/- towards his contribution and the
remaining Rs.50,000/- was contributed by defendant No.1.
After receiving the amount, defendant Nos.2 to 6 executed
a release deed on 19.01.1996 in favour of plaintiff and
defendant No.1. The plaintiff was residing in the ground
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floor and the defendant No.1 was residing in the 1st floor
of the schedule property. It is alleged that at the time of
the execution of the release deed, none of the defendants
had informed the plaintiff about any documents executed
by late Gnanoji Rao during his lifetime expressing his wish
for the disposal of the properties acquired by him. When
the plaintiff started residing in the ground floor of the suit
schedule property, defendant No.1 did not occupy the first
floor of the same. It was the plaintiff who is maintaining
the suit schedule property. When the plaintiff demanded to
get the self acquired properties of their father partitioned
(which are situated at Magadi Road and Hosa Guddada
Halli i.e., item Nos.1 and 2 of the suit schedule), he came
to know that during the life time, his father Gnanoji Rao
had executed three Wills. As per the said Will, the property
at Magadi Road was bequeathed to defendant No.2 for
lifetime and then to devolve upon his children. The
property at Hosaguddadahalli was divided into two parts
and was bequeathed to defendant Nos.1 and 3. The
property at Rajajinagar i.e., item No.3 of suit schedule was
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NC: 2024:KHC:7559
bequeathed to the plaintiff for life and thereafter, to his
children. It was alleged that defendant No.1 had
suppressed all these facts and induced the plaintiff to part
with Rs.50,000/- and to enter into the release deed. It is
contended that the release deed is liable to be cancelled
since it is an outcome of suppression, fraud and
misrepresentation of the facts by defendant No.1 and that
he is entitled for the entire item No.3 of the suit schedule
property as per the Will. It is also admitted that all the suit
schedule properties are the self acquired properties of
their father Gnanoji Rao. Hence, the plaintiff prayed for
cancellation of the release deed dated 07.02.1996, to
declare that the cancellation of the Will alleged to have
been executed by Gnanoji Rao dated 20.05.1981 is null
and void.
6. On appearance, defendant No.1 filed his written
statement but the defendant Nos.2 to 6 did not appear
and as such, placed ex-parte. defendant No.1 denied the
plaint averments and that he had suppressed any material
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facts and had played fraud on the plaintiff. He contended
that Gnanoji Rao had died intestate in the year 1981 and
the plaintiff has no locus standi to file the suit when he is
collecting rents from the tenants occupying the suit
schedule property. He contended that he has filed
O.S.No.9104/2001 for partition and sought for dismissal of
this suit.
7. This suit pertains to the property bearing No.A-
15/11 (Old No.A-15) situated at II Cross, GEF Block,
Industrial Town, Rajajinagar, Bengaluru only. In this suit,
the defendant No.1-Dasaratha Rao (as plaintiff) contended
that the plaintiff, defendant No.1 and their brother and
sisters have succeeded to their parents and all the
properties held by their parents are acquired by the father
Gnanoji Rao, who died intestate. He contended that a
release deed was executed on 07.02.1996 in favour of the
plaintiff and defendant No.1 and thereby, the item No.3 of
the suit schedule i.e., the property at Rajajinagar devolved
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upon the plaintiff and defendant No.1 only. It was alleged
that the plaintiff alone is collecting the rentals of
Rs.5,000/- per month but he is not accounting for the
same. Therefore, he had issued notice to the plaintiff on
19.10.2000 calling upon the plaintiff to pay the same. It
was contended that though Gnanoji Rao had executed
registered Will dated 30.07.1980, later he cancelled the
same on 20.05.1981. Hence, he sought for partition of the
suit schedule properties by metes and bounds and for
mesne profits, accounts of the rent collected by the
plaintiff.
8. On appearance, the plaintiff (who is the
defendant in O.S.No.9104/2001) filed his written
statement contending that the suit averments are false
fabricated and the alleged will executed by Gnanoji Rao
was not cancelled by him. He has taken the contentions as
taken by him in O.S.No.7867/2001. It was alleged that
defendant No.1 is trying to knock off the property which
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had been bequeathed to him by his father. As such, he
sought for dismissal of the suit.
9. On the basis of the above pleadings, the trial
Court framed the following issues in both the suits:
In OS No.9104/2001:
"1. Does plaintiff prove that suit property is the self-
acquired property of his father late Gnanoji Rao?
2. Does plaintiff prove the Release Deed dated
7.2.1996?
3. Does defendant prove that suit property was
bequeathed to him under a registered will executed
by his father?
4. Does defendant prove that there is no cause of
action and the plaintiff is entitled to any relief in this
suit in view of pending of O.S 7867/2001 for
cancellation of Release Deed?
5. Is he suit competent for non-joinder of parties
mentioned in Para-3 of the plaint?
6. Is plaintiff entitled to 1/2 share in the suit scheduled
property?
7. Is plaintiff entitled to rendition of accounts as
claimed in para (defendant) of prayer column?
8. What order or decree?
In OS No.7867/2001:
1. Whether plaintiff is entitled for cancellation of release
deed dated 7.2.1996?
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2. Whether defendant No.1 proves that his father has
revoked will dated 20.5.1981 by executing
cancellation deed?
3. Whether defendant No.1 is entitled for compensatory
cost of Rs.25,000/-?
4. Whether plaintiff is entitled for any relief?
5. What order? What Decree?"
10. The trial Court after clubbing both the suits
recorded the common evidence and Smt.Rukmini, wife
and general power of attorney holder of J.Jai Munirao was
examined as PW.1 and the evidence of L.Narayanaswamy
as PW.2 and got marked Exs.P1 to P7. On the other hand,
defendant No.1 Sri J. Dasaratha rao was examined as
DW.1 and Exs.D1 to D14 were marked.
11. The trial Court after hearing both the sides,
has answered in the above issues as below:
"In OS No.9104/2001:
Issue No.1: In the affirmative.
Issue No.2: In the affirmative.
Issue No.3: In the negative.
Issue No.4: In the negative.
Issue No.5: In the affirmative.
Issue No.6: As per the findings.
Issue No.7: In the affirmative
Issue No.8: As per the final order
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In OS No.7867/2001:
Issue No.1: In the negative.
Issue No.2: In the negative.
Issue No.3: In the negative.
Issue No.4: As per the findings
Issue No.5: As per the final order"
12. By impugned common judgment, the trial Court
dismissed the suit of the plaintiff-J.Jai Munirao in
O.S.No.7867/2001 and decreed the suit of defendant
J.Dasaratha Rao directing half share to be allotted to
J.Dasaratha Rao and that the plaintiff to render account
from 01.12.2000 till partition by metes and bounds and
also for mesne profits.
13. The said common judgment and decree is
challenged by J.Jai Munirao in these appeals.
14. During the pendency of these appeals, both
J.Jai Munirao and J.Dasaratha Rao died and their LRs were
brought on record. In RFA No.631/2008, respondent No.3-
Saraswathi Bai and respondent No.4-Leela Bai died and
their LRs were brought on record.
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15. On issuance of notice in RFA.No.631/2008,
notice to respondent No.3(A, B, C and E) and respondent
No.5 are served and service of notice through paper
publication to respondent No.2, respondent No.3(D),
respondent No.4(A-D) and respondent No.6 held sufficient.
16. In RFA.No.584/2008, respondent No.1(A-F)
appeared through their counsel, respondent No.2,
respondent No.3(A-E)and respondent No.5 are served.
Service of notice through paper publication to respondent
No.4(A to D) and respondent No.6 held sufficient.
17. On admitting the appeal, the trial Court records
have been secured.
18. The arguments by the respective counsels were
heard.
19. The learned counsel for the appellant submits
that the trial Court while discussing issue No.1 in
O.S.No.7867/2001 and issue No.2 in O.S.No.9104/2001,
has not dealt with the contentions in respect of the release
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deed. He submits that the discussion revolves around the
will but not in respect of the release deed. He submits that
adequate consideration had not been passed under the
release deed produced at Ex.D3 and the sum of
Rs.1,00,000/- was a paltry sum. He submits that the
release deed is not proved by the defendant No.1 as
required under law it did not extinguish the rights of the
parties to it. It is submitted that the said release deed is
not legal and it is a non-est in the eye of law. He points
out that there is no reasoning on the issues by the trial
Court. He also pointed out that there was no answer by
the trial Court regarding the issue on release deed and
therefore, the release deed could not have been accepted
to have been proved.
20. In this regard, he relied on the judgment in the
case of RANGANAYAKAMMA AND ANOTHER VS.
K.S.PRAKASH1, which lays down the essential
requirements of a release deed.
2008 AIR SCW 6476
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21. Per contra, learned counsel appearing for the
respondent contended that there was a consideration of
Rs.1 Lakh which had passed under the release deed at
Ex.D3. Therefore, the release deed cannot be said to be
bereft of consideration. He points out that no evidence is
led by the plaintiff to show that the consideration was
much below the market value. He points out that in a
settlement among the members of the family, there would
be give and take and the consideration need not be as per
the market value of the share. So also, He submits that
when the will had been cancelled by Gnanoji Rao by
executing a registered cancellation deed, the burden was
on the plaintiff to prove the will. No such effort was made
by the plaintiff and therefore, no fault can be found in the
impugned judgment. Hence, he has sought for dismissal of
the appeals.
22. In the light of the above submissions, the
points that arise for consideration are:
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1) Whether the plaintiff/appellant has proved that
the release deed at Ex.P6 is an outcome of
fraud, misrepresentation?
2) Whether defendant No. 1 is entitled for the
partition in the suit schedule property?
23. At the outset, it is necessary to note that
O.S.No.7864/2001 describe to item Nos.1 to 3 as suit
schedule properties and O.S.No.9104/2001 describe the
suit schedule property as property bearing No.A-15/11
(Old No.A-15) situated at II Cross, GEF Block, Industrial
Town, Rajajinagar, Bengaluru (which is item No.3 in
O.S.No.7864/2001).
24. The fact that father of the plaintiff and
defendants acquired the suit schedule properties during
his lifetime and as such they are his self acquired
properties is not in dispute. So also the date of death of
Gnanoji Rao and Savithri Bai is also not in dispute. Thus,
the father of the plaintiff and defendants, Gnanoji Rao was
absolute owner of all the 3 items of the suit schedule
properties (as mentioned in OS No.7864/2001) is an
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admitted fact. It is relevant to note that defendant No.1 in
his suite OS.No.9104/2001 has not shown the item No.1
and 2 of the properties mentioned in OS No.7864/2001.
25. It is the case of the plaintiff Jai Munirao that,
defendant No.1 had represented to the plaintiff that the
defendant Nos. 2 to 6 are willing to relinquish their rights
in the suit schedule item No.3 property, which is the house
property acquired by their father Gnanoji Rao from CITB
by way of allotment and as such, it was his self acquired
property. The plaintiff contends that defendant No.1
represented that defendant Nos.2 to 6 are willing to
relinquish their rights if plaintiff and defendant No.1 jointly
pay a sum of Rs.1,00,000/- to defendant Nos. 2 to 6.
Believing the same, the plaintiff parted with the sum of
Rs.50,000/- and defendant No.1 gave a sum of
Rs.50,000/- to defendant Nos. 2 to 6 and as such, they
executed the relinquishment deed as per Ex.P6.
26. A perusal of Ex.P6 would show that on 17-09-
1996, defendant Nos. 2 to 6 relinquished their rights in the
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house property situated at Rajajinagar, i.e. item No.3 of
the suit schedule in favour of plaintiff and defendant No.1.
The relinquishment deed also mention that Gnanoji Rao as
well as his wife Savithri Bai were no more and they died
on 05-09-1981 and 24-11-1991 respectively. The
relinquishment deed also states that the property is small
and it cannot be divided and therefore, it can only be
enjoyed by the plaintiff and defendant No.1 effectively. It
was also stated that defendant Nos. 2 to 6 are not in need
of the said property. It is also mentioned that the plaintiff
and defendant No.1 being the brothers of defendant Nos.
2 to 6, can enjoy the same as they are residing in the
same as on the date of relinquishment deed. The
document is registered before the Sub-Registrar and
therefore, prima facie it appears to be a valid document.
27. Though the plaintiff has contended in the plaint
that defendant No.1 and defendant Nos. 2 to 6 induced
him to part with a sum of Rs.50,000/- and made him to
enter into the relinquishment deed executed by defendant
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Nos. 2 to 6, it was under inducement and
misrepresentation. It is his case that defendant No.1 did
not disclose to him that Gnanoji Rao had executed a Will
as per Ex.P2 and under the said Will, the entire property
which was subject matter of the relinquishment deed, was
bequeathed to the plaintiff. Therefore, the plaintiff
contend that there was misrepresentation and fraud
played upon him. Though the plaintiff contend that there
was a fraud played upon him, there is no other document
which show that soon after the plaintiff came to know that
he had been cheated or a fraud had been played upon
him, had taken any action against defendant Nos. 1 to 6.
The perusal of the cross- examination of DW.1 who is
none else than defendant No.1 herein, show that much of
the cross- examination is in respect of the Will at Ex.P2.
There is hardly any cross-examination of DW1 regarding
the fraud played upon the plaintiff. It is relevant to note
that DW.1 is suggested that without giving the plaintiff
any idea about the Will executed by their father, he was
made to enter into a release deed as per Ex.P6. The said
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suggestion has been denied by him. There was also a
suggestion that the parties have settled that the entire
Ground Floor of item No.3 of the suit schedule property
including the leased portion shall be given to the share of
the plaintiff and the First Floor would be given to
defendant No.1. The said suggestion is also denied by
him. He admits that under the release deed, there was no
division of the property between the plaintiff and
defendant No.1. He also admits that the Will was also in
respect of the property which was the subject matter of
the release deed. In the entire cross-examination of DW1,
there is nothing which would show that the plaintiff was
mislead and fraud was played upon him so that the
plaintiff would be entitled only for half portion in the suit
schedule property and such fraud was played by defendant
No.1 with a view to usurp the remaining half portion. The
cross-examination does not disclose under what
circumstances, the plaintiff agreed to be a party to the
release deed and as to how he was convinced and as to
how the plaintiff paid a sum of Rs.50,000/- to defendant
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Nos. 2 to 6. In other words, the necessary ingredients
which would show that there was a fraud played upon the
plaintiff are not either elicited from PW1 in his
examination-in-chief or elicited in the cross-examination of
DW1.
28. A perusal of Ex.P6, Release Deed would show
that the parties had agreed to relinquish their rights since
the property was measuring 30 ft. x 38 ft., and it was fit
for the enjoyment only by plaintiff and defendant No.1. It
is relevant to note that defendant Nos. 2 to 6 are none
else than the siblings of plaintiff and defendant No.1 and
they agreed to receive a sum of Rs.1,00,000/- to
relinquish their right in entirety in respect of item No.3 in
the suit schedule property. Obviously, item Nos. 1 and 2
of the suit schedule are not the subject matter of suit for
partition which was instituted by defendant No.1.
29. The learned counsel appearing for appellant-
plaintiff has submitted that adequate consideration had
not passed under the release deed at Ex.P6 and therefore,
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it is invalid. It is pertinent to note that the release deed is
executed by defendant Nos. 2 to 6 who were none else
than the siblings of the plaintiff. The reason for
relinquishment is also mentioned in Ex.P6 as noted supra.
By taking share in the suit schedule property, defendant
Nos. 2 to 6 could not have enjoyed the same. Therefore,
no fault can be found with defendant Nos. 2 to 6 that they
intended to relinquish their right. Moreover, it is defendant
Nos. 2 to 6 who should have to complained that there is
inadequate consideration to them. Defendant Nos. 2 to 6
have not raised any dispute stating that the consideration
has not been passed to them. It is the plaintiff who is
contending that he has been induced to pay the sum of
Rs.50,000/- to defendant Nos. 2 to 6. Under the
relinquishment deed, it is the plaintiff who is the
beneficiary. His share in the suit schedule property was
enlarged. It is obvious that the plaintiff is seeking
cancellation of the relinquishment deed on the ground that
the deceased Gnanoji Rao had executed the Will as per
Ex.P2 under which the plaintiff would be the full
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beneficiary of item No.3 of the suit schedule property.
Therefore, keeping an eye on the said Will at Ex.P2, the
plaintiff has filed the suit seeking cancellation of the
release deed.
30. Under these circumstances, the ground of
inadequate consideration having been paid to defendant
Nos. 2 to 6 and on that ground that release deed is not
valid cannot be accepted. The grounds in respect of
inadequate consideration is to be raised by the person
who is affected by it. Obviously, the plaintiff has not been
affected by the same. Therefore, the ground of
inadequate consideration having been passed under the
said deed of relinquishment is not available to the plaintiff.
Secondly, defendant No.1 also has not raised such a
contention. It is the specific contention of the defendant
that the Will executed by Gnanoji Rao had been cancelled
by him. Such cancellation deed is also produced at Ex.P3.
In Ex.P3, Gnanoji Rao writes that he had executed the Will
on 30-07-1980 but subsequently, there was a necessity to
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raise a loan on the said property for the marriage of the
daughter. Therefore, he is cancelling his earlier Will dated
30-7-1980 which is at Ex.P2. Therefore, the cancellation
deed has been disputed by the plaintiff. He contend that it
was not at all executed by Gnanoji Rao. In order to
establish that the father of the plaintiff Gnanoji Rao had
executed the Will at Ex.P2 and he had not executed the
cancellation deed at Ex.P3, no cogent evidence is produced
by the plaintiff. Obviously, the plaintiff should have
proved Ex.P2 Will if he wanted to succeed in the matter.
31. Evidently, the Will at Ex.P2 was signed by
witnesses and drafted by one M.C. Vishwanathan. None of
the attesting witnesses have been examined by the
plaintiff in order to prove the said Will. Moreover,
evidently, the deceased Gnanoji Rao has executed Ex.P3
and to show that Ex.P3 was not executed by Gnanoji Rao,
though attending circumstances or any other reasons are
forthcoming from the evidence adduced by the plaintiff.
When Gnanoji Rao had executed Ex.P2 and he himself had
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cancelled the same by way of Ex.P3 heavy burden is on
the plaintiff to show that Will at Ex.P2 was executed by
Gnanoji Rao on 30-07-1980.
32. PW.2 is a tenant under the plaintiff and he is in
no way concerned to either the Will or the Cancellation
deed. Therefore, the Will at Ex.P2 is not proved. The
original of the Will is produced at Ex.D3. In order to
succeed in the matter the plaintiff had not only to prove
the said Will-Ex.P3 was not to executed by Gnanoji Rao
but also at Ex.P2 is last Will of Gnanoji Rao. No effort has
been made by the plaintiff in this regard.
33. The learned counsel appearing for the plaintiff
has placed reliance on the judgment in the case of
Ranganayakamma and another Vs. K.S. Prakash referred
supra. In this judgment, the Apex Court had the occasion
to consider the requirements of deed of release. In the
said judgment, it was observed that, 'for a family
settlement give and take is necessary for arriving at a
settlement for achieving the peace and harmony for the
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Society'. It was also held that unilateral relinquishment by
sister in favour of brother is permissible; and the purpose
for which the relinquishment is made and on consideration
there of need not be disclosed. Such relinquishment for
consideration or absence of it stands on different footing.
It was held that the provisions of Section 25 of the
Contract Act has to be read and construed having regard
to the facts and situation obtained in the case. It is
pertinent to note that in the said judgment, the person
who had relinquished the rights had alleged that such a
relinquishment is out of fraud. In the case on hand,
defendant Nos.2 to 6 have not contended that there was
inadequate consideration paid to them. None of the
persons the who relinquished their rights have complained
that there was inadequate consideration paid to them. It
is permissible in law that out of love and affection and also
to achieve peace in the family and also put the property
for better use, some of the members of the family decided
to relinquish their rights. Therefore, it was not open for
the plaintiff to contend that the consideration paid to
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defendant Nos. 2 to 6 was inadequate. Such contention
could only have been raised by defendant Nos. 2 to 6.
Therefore, the above judgment can very well be
distinguished on facts.
34. The trial Court has held that the plaintiff being
the propounder of the Will at Ex.P2, has not proved the
said Will and there is scanty discussion in respect of
relinquishment deed as contended by the plaintiff.
However, the trial Court has come to the conclusion that
defendant No.1 had proved the release deed dated
07-02-1996. Obviously, the said finding can be found in
para 11 of the judgment. It is pertinent to note that the
trial Court points out that the question of inducement and
playing fraud on the plaintiff was relating to only out of the
suit schedule property, but not to other properties in which
the plaintiff also become entitled for half share. Therefore,
it was observed by the trial Court that by deed of
relinquishment, the share of the plaintiff gets enlarged,
but it do not affect the share of the plaintiff in other
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properties any way. Any how, defendant Nos. 2 to 6 have
relinquished their rights in item No.3 of the suit schedule
in favour of the plaintiff and defendant No.1 and thereby
both of them are entitled for half share. In the remaining
two properties, the plaintiff and defendant Nos. 1 to 6 are
entitled for equal share as Class I heirs of Gnanoji Rao.
Therefore, the relinquishment deed, in fact, helps the
plaintiff and it being a registered document, no fault can
be found with the same. The said finding of the trial Court
cannot be said to be either illegal or perverse.
35. Under these circumstances, this Court also
comes to the conclusion that the plaintiff has failed to
establish that any fraud or misrepresentation or
inducement was played upon him for the purpose of
parting with Rs.50,000/- towards the relinquishment of the
shares of defendant Nos. 2 to 6. So also, the plaintiff failed
to prove Ex.D3 Will executed by Gnanoji Rao. On the part
of the defendants, defendant No.1 has relied on Ex.P3, the
cancellation deed. Even the cancellation deed is also not
proved to be null and void.
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36. It would suffice to observe that OS
No.9104/2001 filed by defendant No.1 was only in respect
of item No.3 of the suit schedule property. Moreover,
defendant Nos. 2 to 6 were not parties in OS
No.9104/2001. The plaintiff and defendant No.1 were the
only title holders to the said property in view of the
relinquishment deed executed by defendant Nos. 2 to 6.
Therefore, the claim of defendant No.1 to partition the suit
schedule property has to be allowed. Rightly, the trial
Court has decreed the said claim. Under these
circumstances, Point Nos. 1 and 2 are answered in the
negative. No fault can be found with the conclusions
reached by the trial Court in this regard. Consequently,
both the appeals fail. Hence, no interference is required in
the decree passed by the trial Court in both the suits.
Hence, the following:
ORDER
(i) Both the appeals filed by the plaintiff
are dismissed with costs.
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(ii) The judgment and decree passed by
the trial Court in OS No.9104/2001 and OS
No.7867/2001 on 12-02-2008 are hereby
confirmed.
Sd/-
JUDGE
NR/tsn*
