Karnataka High Court
Sri R Ravi Naidu vs Smt Manjula V Krishnan on 22 February, 2024
Author: Chief Justice
Bench: Chief Justice
1
RFA 2191/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
PRESENT
THE HON'B LE MR.P .S. DINES H KUMA R, C HIEF J U ST ICE
AN D
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
RFA NO.2191 OF 2017 (PAR)
BETWEEN:
SRI. R.RAVI NAIDU
AGED ABOUT 61 YEARS
S/O LATE V.R.NAIDU
R/AT C-901, MANTRI GREENS
SAMPIGE ROAD, MALLESHWARAM
BENGALURU - 560 003 ...APPELLANT
(BY SRI.V.B.SHIVAKUMAR, ADV.)
AND:
1. SMT. MANJULA V. KRISHNAN
AGED ABOUT 71 YEARS
W/O DR.R.VENKATAKRISHNAN
R/AT NO.907, AJ, 19TH STREET
VAIGAI COLONY, J BLOCK
ANNANAGAR WEST, CHENNAI - 600 040
2. SRI. R. BHASKAR
S/O LATE V.R.NAIDU
AGED ABOUT 75 YEARS
NO.33, 4TH MAIN ROAD
POSTAL COLONY - I
SANJAY NAGAR
BENGALURU - 560 094 ... RESPONDENTS
(BY SRI.PADMANABHA MAHALE, SR. ADV. FOR
SRI. H. DEVENDRAPPA, ADV. FOR C/R1;
SRI. R. BHASKAR, R2[ABSENT])
2
RFA 2191/2017
THIS RFA IS FILED UNDER SECTION 96(1) OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 30.10.2017
PASSED IN OS.NO.3590/2011 ON THE FILE OF THE XLII
ADDL. CITY CIVIL AND SESSIONS JUDGE BANGALORE,
DECREEING THE SUIT FOR PARTITION AND MESNE PROFITS.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 11.12.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
T.G.SHIVASHANKARE GOWDA J., DELIVERED THE
FOLLOWING:
JUDGMENT
In this appeal, defendant has challenged the
judgment and decree dated 30.10.2017 in
O.S.No.3590/2011 passed by the XLII Additional City
Civil and Sessions Judge, Bengaluru City (for brevity
'the Trial Court').
2. For the sake of convenience, parties shall
be referred as per their status before the Trial Court.
3. Brief facts of the case are, the plaintiff
(Smt. Manjula V. Krishnan), the defendant
(Sri. R. Ravi Naidu) and Sri. R. Bhaskar are the
children of Sri. V.R. Naidu and Smt. Lalitha Naidu.
Property bearing Old Survey No.11 and 11A, New
Survey No.7 and 8, Magrath Road, measuring
37270.68 sq.ft. was acquired by Smt. Lalitha Naidu,
the defendant and Sri. R. Bhaskar vide sale deed
dated 10.12.1955. At the time of acquisition, both
the sons were minors and represented by their
mother as guardian. They were in joint possession
and enjoyment of the property. After attaining
majority, Sri. R. Bhaskar obtained his 1/3rd share
measuring 11,664 sq.ft. in the said property and got
separated from the family. Remaining 25,606 sq.ft.
was retained by Lalitha Naidu and the defendant.
Based on the application filed by Sri. R. Bhaskar,
B.B.M.P.1 has segregated his share by assigning
separate khata as property No.7. The remaining
2/3rd property was assigned as property No.8, which
is described as suit 'A' schedule property.
3.1. Smt. Lalitha Naidu during her lifetime
executed a registered Will on 05.10.1997
bequeathing her 1/3rd share in the suit 'A' schedule
property in favour of the plaintiff. Smt. Lalitha
Bruhat Bengaluru Mahanagara Palike
Naidu died on 23.01.2002. After her death, plaintiff
succeeded to her 1/3rd share of her mother. Plaintiff
applied for joint-khata along with defendant and it
was considered by the B.B.M.P. Thereby, the plaintiff
and the defendant are enjoying 'A' schedule property
as co-owners.
3.2. It is averred that plaintiff and the
defendants are co-owners of 'A' schedule property.
In order to develop the said property, they entered
into a joint development agreement ('J.D.A.' for
short) on 10.08.2006 with M/s Allied Investment and
Housing Private Limited. As per the terms of J.D.A.,
plaintiff and defendant are together entitled to 65%
of built-up area and proportionate undivided share in
the land, whereas the developer/their nominees are
entitled to 35% of built-up area with proportionate
undivided share in the land.
3.3. After completion of the project, the
developer desired to transfer his share of 35% in
favour of M/s Nalli Trust. Plaintiff, defendant and the
developer jointly executed tripartite agreement on
13.04.2006 in favour of M/s Nalli Trust. The plaintiff
and defendant have executed separate power of
attorneys in the name of Sri. Abdul Wadood, who is
the representative of the developer, authorizing him
to sell 35% of developer's share in favour of M/s
Nalli Trust. On the strength of said power of
attorneys, Sri. Abdul Wadood, sold 35% of
developer's share in favour of M/s Nalli Trust on
03.05.2006, 22.12.2006 and 20.06.2007. By virtue
of the said sale deeds, defendant and the plaintiff
got 65% built-up area in the commercial complex on
15.10.2008 from the developer company.
3.4. The defendant, with a malafide intention to
retain the entire commercial complex, filed a
frivolous suit in O.S.No.25274/2010 seeking relief of
permanent injunction against the plaintiff. The suit
was contested by the plaintiff. When the plaintiff
and her husband on 10.11.2010, visited the suit 'A'
schedule property, they were informed by the
watchman that the defendant is trying to let-out the
premises to third-parties and has already let-out the
parking space.
3.5. Suit 'B' and 'C' schedule properties are
agricultural lands, measuring 6 acres 37 guntas in
Survey No.180 and 16 acres 17 guntas in Survey
No.195, situated at Barlhalli hamlet of Avalagurki
Village, Kasaba Hobli, Chikkaballapur Taluk. Suit 'B'
and 'C' schedule properties are jointly purchased by
plaintiff and defendant through registered sale deed
dated 24.10.1981. Plaintiff called upon the
defendant to effect partition and to give her half
share in the suit 'A','B' and 'C' schedule properties.
As defendant refused to effect the partition, she has
filed the instant suit.
4. The defendant has opposed the suit by filing
written statement contending interalia that the suit
schedule 'A' property was acquired by his father and
his grandmother Smt. B.S. Ammaniammal on behalf
of 2 minor sons. Smt. Lalitha Naidu had no right
over suit 'A' schedule property as she represented
her minor sons as guardian only.
4.1. Smt. Lalitha Naidu was aged, bed-ridden
and suffering from Rheumatoid Arthritis. The alleged
Will by the plaintiff is not executed by Smt. Lalitha
Naidu out of her free will and volition. Smt. Lalitha
Naidu had no right to execute the Will in favour of
the plaintiff and the proposed Will is a bogus
document. Plaintiff has not probated the Will,
thereby she cannot acquire title over suit 'A'
schedule property. The plaintiff in collusion with the
B.B.M.P. Officers has got changed the khata in her
name. The plaintiff has threatened the defendant
and made to sign the J.D.A. which is not registered
and it cannot be relied upon. The defendant has not
executed any sale deed. In connection with
execution of these documents, he has already filed a
private complaint against Sri. Abdul Wadood in
P.C.R. No.83/2010 and also filed the suit for
injunction against the plaintiff in
O.S.No.25274/2010. Suit 'B' and 'C' schedule
properties are outside the jurisdiction of the Court,
no income is derived from the said properties; the
Court has no jurisdiction to entertain the suit and
sought for dismissal of the suit.
5. On the basis of the pleadings, the Trial Court
framed the following issues and additional issues:
ISSUES DATED : 16.08.2024
1. Whether the plaintiff proves that, on
05.10.1997 her mother had executed the
WILL in her favour?
2. Whether the defendant proves that, this court
territorial jurisdiction to try the suit?
3. Whether the plaintiff is entitle for relief as
sought for ?
4. What order or decree?
ADDITIONAL ISSUES DATED : 05.11.2015
1. Whether the plaintiff proves that her mother
has executed a WILL dated 05.10.1997 in
favour of plaintiff and defendant and
defendant has acted upon the WILL?
2. Whether the plaintiff proves that on the basis
of the WILL, Sale Deed has been executed by
the defendant in favour of Nalli Trust?
ADDITIONALISSUE DATED: 12.10.2017
1. Whether plaintiff proves that "A" schedule
property was purchased by Lalitha Naidu in
her name and in the name of her minor sons
as contended in the plaint?
6. On behalf of the plaintiff, she examined
herself as PW-1, one witness as PW-2 and marked
22 documents as per Exs.P1 to P22. On behalf of
the defendant, he examined himself as DW-1 and
marked 10 documents as per Exs.D1 to D10.
7. The Trial Court after hearing both the
parties, recorded all the issues in favour of the
plaintiff, decreed the suit with costs, declaring that
the plaintiff is entitled to half share in the suit 'A','B'
and 'C' schedule properties. Further directed the
defendants to render proper accounts in respect of
'A' schedule property from 15.10.2008 till the date of
filing the suit and also, half share in the rents and
deposits received by the defendant in respect of 'A'
schedule property. Aggrieved by the said finding,
the defendant has filed the instant appeal on various
grounds.
8. Heard the arguments of
Sri. V.B. Shivakumar, learned counsel for the
defendant and Sri. Padmanabha V. Mahale, learned
Senior Counsel supported by Sri. H. Devendrappa,
learned counsel for the plaintiff.
9. Seeking dismissal of suit
Sri. V.B. Shivakumar submitted that, the suit is
based on Will, without seeking declaratory relief, suit
for partition by the alleged co-owner is not
maintainable. The suit is based on the
co-ownership between the plaintiff and the
defendant. There cannot be a transfer of co-
ownership in a property as contemplated under
Section 44 of Transfer of Property Act, 1882. The
entire 'A' schedule property was in joint possession
of plaintiff, defendant and Smt. Lalitha Naidu.
Smt. Lalitha Naidu cannot execute the Will
bequeathing 1/3rd share through the Will. Co-owner
is barred from executing a Will in respect of an
undivided share without consent of other sharers.
The plaintiff has propounded the Will, which is
surrounded by suspicious circumstances. The Will is
not proved under Section 67 of the Indian Evidence
Act, 1872. There is no proof in support of the
signature of Smt. Lalitha Naidu on the propounded
Will. The witness examined on behalf of the plaintiff
does not support the Will as required under Section
69 of Indian Evidence Act. At the time of execution
of the alleged Will, Smt. Lalitha Naidu was unwell,
she was suffering from multiple ailments, she was
not in a sound state of mind and health. Hence, the
Will has to be disbelieved. The suit is bad for non-
joinder of Sri. R. Bhaskar, the other brother of the
plaintiff and defendant. Another sister of the plaintiff
Smt. Vimala died leaving behind her husband and
children. They are also necessary parties to the suit.
10. In support of the impugned judgment,
learned Senior Counsel has contended that the
relationship is not in dispute; there is a specific
pleading in the plaint that brother of plaintiff and
defendant 'Sri. R. Bhaskar' has taken his 1/3rd share
in suit 'A' schedule property and he got separated
from the joint family. When suit 'A' schedule
property was acquired, defendant and Sri. R.
Bhaskar were minors. The property was acquired by
Smt. Lalitha Naidu. She and her 2 minor sons have
equal share in suit 'A' schedule property.
Smt. Lalitha Naidu executed the Will in respect of
her undivided 1/3rd share bequeathing in favour of
the plaintiff. The plaintiff has proved the Will, Will is
not shrouded with suspicious circumstances. The
evidence on record clearly demonstrates that the Will
under Ex.P1 was accepted by the defendant, Will is
acted upon the parties have withdrawn the money
kept in fixed deposits in the bank. The defendant,
for drawing money from the bank, accepted plaintiff
as the co-owner of suit 'A' schedule property and got
release of deposit from the bank. They joined
together to execute the joint development
agreement on 2/3rd share by taking 65% of share in
the developed property, giving 35% of developed
property to the developer. They have joined hands
with the developer in execution of sale in favour of
M/s Nalli Trust as per J.D.A. When the point of
sharing arose, defendant is blowing hot and cold.
The property is enjoyed jointly, both have exercised
their right recognizing themselves as co-owners.
Suit 'B' and 'C' schedule properties are admittedly
joint acquisition by both plaintiff and defendant. Suit
'A' schedule property is situated in Bengaluru, suit 'B'
and 'C' schedule properties are situated at
Chikkaballapur. Court at Bengaluru is having
jurisdiction to entertain the suit and sought for
dismissal of the appeal.
11. We have given our anxious consideration to
the rival contentions argued on behalf of both sides
and perused the materials placed before the Court.
12. The points that arise for consideration are:
(1) Whether the plaintiff has proved the
Will under Ex.P1?
(2) Whether the plaintiff is the co-owner
of suit schedule properties?
(3) Whether the plaintiff is entitled to
partition and possession of her half
share in the suit schedule properties
and accounts in respect of suit 'A'
schedule property?
(4) Whether the impugned judgment is
perverse and calls for interference?
Reg. Point No.1:
13. Plaintiff's suit is based on the Will in respect
of item No.1 of suit 'A' schedule property. Plaintiff is
the propounder of the Will. Ex.P1 is the original
Will. The relationship between the plaintiff and the
defendant is not in dispute. The defendant denied
the execution of the Will by his mother, her authority
to execute the Will alleging that Will is a created
document and it is shrouded with doubtful
circumstances.
14. In order to prove the execution of the Will,
apart from deposing as a witness about the
execution, attestation and registration of the Will by
her mother, plaintiff has also examined one of the
attester of the Will Sri. B. Keshub Chander as PW-2.
We have carefully perused the evidence of plaintiff
as well as PW-2. PW-1 has been cross-examined on
behalf of the defendant. The tenor of cross-
examination is on the point that Smt. Lalitha Naidu
had no right to execute the Will. Whether Smt.
Lalitha Naidu is having any right over the property or
not will be dealt with while answering point No.2
later.
15. The PW-2 has stated that Smt. Lalitha
Naidu was not in a position to walk and move around
and she was confined to the first-floor of her house
in Chennai. She was being taken care by a Nurse.
Witness states that he was visiting Smt. Lalitha
Naidu frequently. During one such visit, she told
him that she had intended to execute a Will in
respect of suit 'A' schedule property. He and one
Dr. Senthilnathan visited house of Smt. Lalitha Naidu
on 05.10.1997. The entire Will was
hand-written by Smt. Lalitha Naidu. Only the
schedule is typed and attested by her including him.
The Sub-Registrar visited the house and got
registered Ex.P1. The cross-examination suggests
that Smt. Lalitha Naidu was not in sound state of
health to execute the document and the same has
been denied by him asserting that she was having
rheumatoid arthritis for her both the knees, which
confined her to the bed. Except this, she was
keeping sound state of mind and also good health.
Smt. Lalitha Naidu had informed him that she was an
Advocate and according to him, she was a
knowledgeable person. Except suggesting that the
Will is created, Smt. Lalitha Naidu was not in a sound
state of mind, nothing is extracted from PW-2.
16. As noted supra, even the cross-
examination of PW-2 does not demonstrate anything
suspicious circumstance regarding execution of the
Will. When the Will was scribed by Smt. Lalitha
Naidu, plaintiff was not present. Ex.P1, it is a hand-
written Will, the age mentioned is 79 years. The
evidence of PW-2 clearly suggests that Smt. Lalitha
Naidu was confined to the bed because of knee
arthritis, but she was in good health and sound state
of mind. Absolutely there is no material on record to
hold that the Will is shrouded with suspicious
circumstances.
17. A person who propounds the Will is
required to prove the Will in accordance with law.
On behalf of the defendant, decision in
V. Prabhakara -Vs.- Basavaraj. K (Dead) by
L.R.2 is relied upon to contend that the propounder
has to explain the exclusion of the other beneficiaries
in bequeathing the property. Any suspicious
circumstances surrounding execution of the Will has
to be established. As referred supra, the evidence
speaks that Smt. Lalitha Naidu was aged 79 years,
she was an Advocate, she was suffering from knee
arthritis and confined to the bed. Except that, she
was in sound state of mind and she herself scribed
the Will in her hand-writing in presence of both the
attesters. Before writing the Will,
Smt. Lalitha Naidu expressed her desire to execute
AIR 2021 SC 4830
the Will and accordingly, she secured both the
attesters and in their presence, scribed the Will,
attached the typed schedule to the Will in their
presence. This demonstrates the execution of the
Will by Smt. Lalitha Naidu, and its proof under
Sections 63 and 68 of the Evidence Act. The plaintiff
is able to prove the Will and the Will is not shrouded
with suspicious circumstances.
18. The other suspicious circumstance
canvassed on behalf of the defendant in the course
of argument is that the other beneficiaries are
excluded. Suit 'A' schedule property was purchased
in the name of Smt. Lalitha Naidu and 2 of her
minor sons represented by herself as guardian.
Smt. Lalitha Naidu was having 5 children; the
plaintiff, the defendant, Sri. R. Bhaskar, Smt. Vimala
and one more son who died at the young age. The
sister of the plaintiff Smt. Vimala is also dead. The
Will points out the allotment of 1/3rd share each to
the plaintiff, the defendant and Sri. R. Bhaskar.
There is a reference in the Will that a fixed deposit of
Rs.1,00,00,000/- (One Crore) was kept in the bank
at Chennai, which was equally apportioned between
the plaintiff, the defendant and Sri. R. Bhaskar.
19. The defendant himself entered the witness
box. In the cross-examination, he has categorically
admitted that on the basis of Ex.P1/Will, he, plaintiff
and Sri. R. Bhaskar have withdrawn the money from
bank. The defendant admits that his brother Sri. R.
Bhaskar has taken 1/3rd share in item No.1 of suit 'A'
schedule property, leaving behind 2/3rd share. 1/3rd
share taken by Sri. R. Bhaskar is on the strength of
Ex.P1/Will. This clearly indicates that the plaintiff,
defendant and Sri. R. Bhaskar have accepted the
execution of Ex.P1/Will; presenting the suit
document before the bank, apportioned
Rs.1,00,00,000/- (One Crore) fixed deposit made by
their mother. This points out that at an undisputed
point of time, the plaintiff, the defendant and Sri. R.
Bhaskar were aware of the execution of Ex.P1/Will
by their mother. After her death, they have realized
Rs.1,00,00,000/- (One Crore) bank deposit on the
strength of the Will. This points out that
Smt. Lalitha Naidu has not deprived any share to her
3 children and the other two children are dead.
The evidence relied upon by the parties does not
demonstrate anything against the execution,
attestation and registration of the Will. The parties
have accepted it, realized the fruits under the Will.
Hence, Will is acted upon. Accordingly, we answer
point No.1.
Reg. Point No.2:
20. The plaintiff claims that she is a co-owner
of the suit schedule properties. Suit 'B' and 'C'
schedule properties are the agricultural lands
situated at Chikkaballapur. During the course of
cross-examination, defendant has admitted that 'B'
and 'C' schedule properties are jointly acquired by
him and the plaintiff in the year 1981. Such
admission of the defendant can be found at internal
page No.14 of his cross-examination, which is
extracted as follows:
"B and C properties have purchased jointly by
myself and my sister in the year 1980. The
question put to the witness that in the said
property my sister is having share and witness
states that he can simply say that they are joint
owners as purchased together and it is left to the
court to decide........."
In view of unequivocal admission, the issue
regarding 'B' and 'C' schedule properties is resolved.
21. As regarding 'A' schedule property, the
defendant admits that his brother Sri. R. Bhaskar
has taken his 1/3rd share, obtained B.B.M.P. khata
separately and 2/3rd share is left behind. The
defendant contends that his mother Smt. Lalitha
Naidu was only a legal guardian, suit 'A' schedule
property was purchased by his father in the name of
himself and Sri. R. Bhaskar. His mother had no
share in the property. In the year 2010, there was a
dispute between the plaintiff and the defendant with
regard to suit 'A' schedule property. Defendant had
filed a suit in O.S.No.25274/2010 and the plaintiff
has filed another suit in O.S.No.26920/2010. Both
the suits are filed seeking grant of permanent
injunction. The copy of plaint in O.S.No.25274/2010
is marked at Ex.P11. In the cross-examination, the
defendant has admitted the same. At para No.2 of
the plaint, it is averred that the plaintiff and the
defendant are the absolute owners. The relevant
pleadings is extracted herein:
"2. That the plaintiff is the absolute owner along
with his sister now the defendant herein. But,
the exclusively possession and enjoyment is by
the plaintiff only. The defendant is having
ownership as it is the ancestral property. The
defendant is not having any concern, for the
development of the property. Because of the
joint ownership, she wanted to derive maximum
benefit at the cost of plaintiff's loss. "
Now, the admission made by the defendant in his
suit filed against the plaintiff makes it clear that the
he and the plaintiff are the co-owners of suit 'A'
schedule property. Therefore, we are not persuaded
to accept the contention of the defendant that Smt.
Lalitha Naidu had no right in suit 'A' schedule
property. As discussed above while answering point
No.1, the Will has been proved and thereby, the
plaintiff succeeded to her 1/3rd share of the mother
as bequeathed in the Will. Accordingly, we answer
point No.2.
Reg. Point No.3:
22. The suit of the plaintiff is one for partition.
The suit 'A' schedule property is site property
developed as per the JDA. The parties have released
35% of the developed property in favour of the
developer and retained remaining 65% in joint
custody. Suit 'B' and 'C' schedule properties are the
agricultural lands jointly acquired by them and
thereby, the plaintiff is entitled to half share along
with the defendant. In a suit for partition, the
plaintiff is entitled to accounts in respect of suit 'A'
schedule property and mesne profits under Order XX
Rule 12 of C.P.C. from the date of suit till she be put
in the physical possession of her share of property.
Accordingly, we answer point No.3.
Reg. Point No.4:
23. We have carefully perused the impugned
judgment with reference to the argument canvassed
on behalf of the defendant and also with reference to
the pleadings. As discussed above, while answering
points No.1 and 3, the suit 'A' schedule property is
jointly acquired by the mother and her 2 minor sons,
the mother bequeathed her 1/3rd share in favour of
the plaintiff under the Will. Will is proved. Suit 'B'
and 'C' schedule properties are jointly acquired by
the plaintiff and the defendant. The Trial Court after
hearing the facts pleaded by both the parties and
perusing the oral and documentary evidence has
recorded its finding that the plaintiff is the co-owner,
she is entitled to half share in the suit schedule
properties. We do not find any error or perversion in
the impugned judgment. Accordingly, point No.4 is
answered.
24. In view of the findings recorded
hereinabove, the appeal is devoid of merits. In the
result, the following:
ORDER
i) The appeal is dismissed;
ii) The impugned judgment and decree is
confirmed.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
PA
CT:HS
