Karnataka High Court
Smt. Sarala vs Smt. Padmavathi on 15 May, 2025
Author: K.Somashekar
Bench: K.Somashekar
1
RFA No.2676/2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MAY, 2025
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO.2676 OF 2024 (PAR)
BETWEEN
1. SMT. SARALA
D/O LATE. P. SIDDAPPA,
W/O SRI. JAYAKUMAR,
AGED ABOUT 65 YEARS,
RESIDING AT NO.1332,
SARAKKI I PHASE, J.P.NAGAR,
BENGALURU-560 078
2. SMT. PARAN JYOTHI,
D/O LATE. P.SIDDAPPA,
W/O SRI. V.SHANKAR,
AGED ABOUT 63 YEARS
RESIDING AT GURU DATTA NILAYA,
23RD CROSS, 6TH BLOCK,
JAYANAGAR, BENGALURU-560 041.
3. SMT. NALINAKSHI,
D/O LATE. P. SIDDAPPA,
W/O NARAYANASWAMY,
(CORRECT NAME LATE. C. VENKATASWAMY)
AGED ABOUT 58 YEARS,
RESIDING AT NO.1332,
SARAKKI I PHASE, J.P.NAGAR,
BENGALURU-560 078
4. SRI. J. MANOJ KUMAR,
S/O LATE. JAGADISH KUMAR,
AGED ABOUT 38 YEARS
(CORRECT AGE 30 YEARS)
R/AT NO.1332, SARAKKI I PHASE,
J.P.NAGAR, BENGALURU-560 078
2
RFA No.2676/2024
5. KUMARI. J. HARSHITHA
D/O LATE. JAGADISH KUMAR,
AGED ABOUT 30 YEARS,
(CORRECT AGE 24 YEARS)
RESIDING AT NO.1332,
SARAKKI I PHASE, J.P.NAGAR,
BENGALURU-560 078
...APPELLANTS
(BY SRI K K VASANTH, ADVOCATE)
AND
1. SMT. PADMAVATHI
W/O S. JAGADISH KUMAR,
AGED ABOUT 55 YEARS,
2. MISS. NITHYASHREE,
D/O S. JAGADISH KUMAR,
AGED ABOUT 35 YEARS
RESPONDENT NO.1 AND 2 ARE
R/AT NO.21/1, NANDANAVANAM
C STREET, JOGUPAPLYA, ULSOOR,
BENGALURU-560 008.
SMT. RUKMINI,
D/O LATE. P. SIDDAPPA,
W/O SRI. RAMACHANDRA,
SINCE DECEASED BY HER LR'S
3. SRI. M.RAMACHANDRA,
S/O LATE. MUNIVEERAPPA,
AGED ABOUT 75 YEARS,
4. SRI. M.R.SHIVA PRASAD,
S/O M.RAMACHANDRA,
AGED ABOUT 48 YEARS,
5. SRI. M.R.VISHNU PRASAD,
S/O M.RAMACHANDRA,
AGED ABOUT 41 YEARS
THE RESPONDENTS 3 TO 5 ARE
R/AT NO.629/A, 17TH CROSS,
3
RFA No.2676/2024
5TH MAIN ROAD, 2ND STAGE,
INDIRANAGAR, BENGALURU-560 008.
SMT. JAYAMMA,
W/O P. SIDDAPPA,
SINCE DECEASED BY HER LR'S
VIZ., APPELLANTS NO.1 TO 5 AND
RESPONDENTS 1 TO 5
(JAYAMMA DIED ON 18.11.2008)
SRI. JAGADISH KUMAR,
S/O LATE. P.SIDDAPPA,
SINCE DECEASED BY HIS LR'S
APPELLANTS NO. 4 AND 5 AND
RESPONDENTS NO.1 AND 2
(JAGADISH KUMAR DIED ON 9.10.2002)
SMT. VASANTHA (VASANTHA KUMARI),
D/O LATE. P.SIDDAPPA,
W/O LATE. VEERANNA
...RESPONDENTS
(BY SRI P D SURANA, ADVOCATE FOR R1 & R2
SRI S V MANJUNATH, ADVOCATE FOR R3 TO R5)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SEC.96 OF
CPC., AGAINST THE ORDER DATED 22.11.2024 PASSED ON
FDP.NO.82/220 BY I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU., PARTLY ALLOWING THE PETITION FILED UNDER
ORDER 20 RULE 18 OF CPC., TO DRAW FINAL DECREE FOR
SEPARATION.
THIS RFA HAVING BEEN HEARD AND RESERVED ON
18-3-2025, COMING ON FOR PRONOUNCEMENT, THIS DAY,
VENKATESH NAIK T. J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE VENKATESH NAIK T
4
RFA No.2676/2024
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE VENKATESH NAIK T.)
This appeal is filed by the appellants/defendant Nos.5, 6,
7, 8 and 9 challenging the order dated 22.11.2024 passed in
FDP No.82/2020 by learned I Additional City Civil and Sessions
Judge, Bengaluru (CCH-2).
2. For the purpose of convenience, the parties are
referred to as per their rankings before the trial Court. The
appellants are defendant Nos.5 to 9 and the respondents are
plaintiff Nos.1, 2 and defendant Nos.3, 1, 2 and 4 respectively.
3. The brief facts of the case are that respondent Nos.1
and 2 (plaintiffs) had filed FDP No.82/2020 against the
appellants and other respondents before FDP Court, to draw a
final decree for separation of their share of 973/2520 in respect
of the suit schedule properties and for separate possession and
also mesne profits of their share pursuant to the judgment and
decree passed in O.S.No.5633/2000 dated 07.04.2014 and the
judgment and decree passed in RFA No.916/2014 dated
15.05.2020, modifying the share. The appellants being
defendant Nos.5 to 9 in FDP No.82/2020 filed their statement
of objections to the application filed under Order XX Rule 18 of
CPC before FDP Court. In FDP proceedings, respondent Nos.1
and 2 had filed an application under Order XX Rule 18 of CPC
for grant of mesne profit and also filed IA No.II under Order
XXVI Rule 13 of CPC for appointment of Court Commissioner,
hence, the FDP Court appointed one Arun R, Advocate, as Court
Commissioner, who visited the schedule property and
submitted his report on 26.07.2024, based on the market value
of the schedule properties and without ascertaining actual
market value of the property, he has submitted his report,
which is not in accordance with law. Hence, the appellants had
filed objections to the Court Commissioner's report. The
appellants also filed memo for division of schedule properties,
simplifying the allotment of shares in accordance with guidance
value, without dividing the properties into several shares and
suggesting the simple modalities to allot shares, considering
the good relationship of the parties and possession and
residence of appellant Nos.4 and 5. However, the FDP Court
without considering the memo for proper division of the
schedule properties as suggested by the appellants, erred in
allowing the petition filed under Order XX Rule 18 of CPC
in-part, by accepting the Commissioner's Report, wherein, the
FDP Court directed to draw final decree in terms of the report
of Court Commissioner and sketch produced along with report
in respect of suit schedule 'A' and 'B' properties.
4. Being aggrieved by the judgment and final decree
passed in FDP No.82/2020, the appellants have filed this
appeal.
5. After institution of the FDP proceedings, the
respondents appeared through their counsel before FDP Court
and submitted that the Court may pass suitable shares in terms
of the decree.
6. Heard learned counsel for appellants and respondent.
7. Learned counsel for the appellants vehemently
contended that the impugned order passed by FDP Court is
liable to be set aside as the same suffers from arbitrariness
besides being perverse. The learned trial judge ought to have
rejected the report of the Court Commissioner, which is not
only cumbersome, but also complicated one and the same
cannot be understood by any prudent man. The Court
Commissioner has grossly erred in accepting the valuation of
the properties given by respondent Nos.1 and 2 without any
basis whatsoever and moreover, respondent Nos.1 and 2 had
not produced any documents in support of the imaginary
valuation given by them. The Court Commissioner ought to
have made necessary enquiry to secure the tentative value of
the schedule properties either by securing necessary
documents or by taking the assistance of the experts to arrive
at the market value of the property, but, however in this case,
the Court Commissioner was simply carried away by the
imaginary valuation given by respondents Nos.1 and 2 to suit
their convenience, as the ascertainment of the market value
should be the first and foremost thing before proceeding to
submit the report. In the absence of the above said facts, the
Court Commissioner ought to have taken the guidance value of
the properties.
8. Further, it is contended that the appellants herein have
given memo of instructions to the Court Commissioner for
taking measurement of the existing properties and also receive
the keys in respect of Shedule C2 property from the receiver
Sri. Kiran Kumar and suggest the modalities to divide the
properties amicably without dividing certain properties by
metes and bounds as Schedule 'A' and 'B' properties are larger
properties and Schedule C1 and C2 are smaller properties and
however, the Court Commissioner's report on the face of it
appears to be in the favour of respondent Nos.1 and 2, by
neglecting the interest of the other parties.
9. It is further contended that the Court Commissioner
has erred in dividing Schedule 'A' property into four portions,
viz., allotting 1882 sq.ft in favour of respondent No. 1 and 2,
1315 sq.ft in favour of appellants Nos.4 and 5, 860 sq.ft in
favour of share of deceased Vasantha Kumari and 470 sq. ft in
favour of respondents Nos.3 to 5 herein being the LR's of
deceased Rukmini and allotted Schedule 'C1' property in favour
of respondents Nos.1 and 2. Thus, the Court Commissioner
allotted excess area than the one respondents No.1 and 2 were
entitled to, without considering feasibility of the same.
10. It is further contended that the Court Commissioner
has also erred in allotting Schedule 'B' property in favour of
appellants Nos.1 to 3 herein and allotting schedule 'C2'
property in favour of respondent Nos.3 to 5 herein, in addition
to 470 sq.ft in schedule 'A' property and directing appellant
No.3 herein to pay Rs.9,80,280/- to them without any
justifiable reasons.
11. It is further contended that respondent No.1 herein
was married to Jagadeesh Kumar on 01.06.1987 and she gave
birth to Respondent No.2 on 28.06.1988 and she left the
matrimonial home in the year 1989 along with respondent No.2
and thereafter she never joined her husband and on the other
hand she went on filing criminal cases against him and at last,
respondents No. 1 and 2 had filed O.S No.5633/2000 against
the mother-in-law of respondent No.1 and grandmother of
respondent No.2 Smt.Jayamma and against the husband of
respondent No.1 and father of respondent No.2 Sri.S.Jagadeesh
Kumar and his five sisters viz., Rukmini, Vasantha Kumari, Rani
Sarala Devi, Paranjyothi and Nalinakshi, for partition and
separate possession of their 1/3rd share in all the schedule
properties. However, the said Jagadeesh Kumar died on
09.10.2002 and appellants No.4 and 5 got impleaded as
defendants being the LR's of said Jagadeesh Kumar, who were
born to him through his second wife Smt.Manjula and the said
Jayamma also died on 18.11.2008. Thus, respondents No.1 and
2 had no sentimental value towards family members and also
the properties and as such it is just and feasible to allot share
in the Schedule 'B' property along with respondents No.3 to 5
herein, who are in good terms and in cordial relationship, which
value of the property was more than the value of their share.
12. It is further contended that appellants Nos.1 to 3
having taken care of their father, mother and their only brother
and also appellants No.4 and 5 and having sentimental value of
their ancestral home and they being in good terms, it is feasible
to allot schedule 'A' property to them, who would be in a
position to enjoy the said property jointly and develop the same
without any hassle.
13. Further that appellant Nos.4 and 5 being taken care
of by their grand mother and their paternal aunties and they
being residing in schedule 'C1' property, it is feasible to allot
the same in their favour, as the same is the only residence for
them to reside and they are taking care of themselves after the
demise of their paternal Aunt Smt. Vasantha Kumari and they
do not have any other lucrative avocation. Appellant No.4
having secured a law degree in the year 2016, he has started
his law practise in various courts at Bengaluru and appellant
No.5 herein has just completed her education. However, it is
feasible to allot schedule 'C2' property to the share of deceased
Vasantha Kumari, who has bequeathed her undivided share in
the schedule properties in favour of appellants Nos.4 and 5
herein. On the other hand, respondent No.2 and her husband
are MBBS. MD (ENT) Doctors by profession and they are
gainfully employed.
14. It is contended that, it is feasible to allot shares to
the respective parties in the Schedule properties as follows:
a) Value of schedule A property
4528.44 sq.ft X Rs.5760 = Rs.2,60,83,814.40/-
b) Value of schedule B property
3,066.80 sq.ft X Rs.13,935 =Rs.4,27,35,858/-
c) Value of schedule C1 property
1,830 sq.ft X Rs.7,269 =Rs.1,33,02,270/-
d) Value of schedule C2 property
243.63 sq.ft X Rs.26,410 =Rs.64,34,268.30/-
Total Value of the properties: 8,85,56,210.70/-
e) Respondent No.1 and 2 together are entitled
to 973/2520 share and the same works out to
Rs.3,41,92,536/-
f) Respondent No.3 to 5 are together entitled to
237/2520 share the same works out to
Rs.83,28,500/-
g) Respondents No.1 to 5's share put together,
their share works out to Rs.4,25,21,036/-. They being
in good harmony, the schedule B property is feasible
to be allotted to their share, directing them to pay
Rs.2,40,822/- to makegood to the share of Smt.
Vasantha Kumari.
h) Appellants No.1, 2 and 3 being sisters'
having the sentimental value to their ancestral
property i.e., the A schedule property is feasible to be
allotted them as their 237/2520 share which works
out to Rs.83,28,500/- each and if it is put together, it
works out to Rs.2,49,85,500/. As the total value of
the A schedule property being Rs. 2,60,83,814.40/-,
directing them to makegood the value of the
Vasantha Kumari by paying Rs.10,98,314/-.
i) Appellants No.4 and 5 being brother and
sister, who are residing in schedule C1 property, the
same is feasible to be allotted to them. Their share if
put together 362/2520, which works out to
Rs.1,27,21,170/-, directing them to pay
Rs.5,81,100/- to the share of Smt. Vasantha Kumari.
j) It is feasible to Allot schedule C2 property to
the share of deceased Vasantha Kumari as share
being 237/2520, which works out at Rs.83,28,500/-.
The value of C2 property works out at
Rs. 64,34,268.30/- + payment of Rs.2,40,822/- by
respondents No.1 and 2, Rs.10,98,314/- by
appellants No.1 to 3 and Rs.5,81,100/- by appellants
No.4 and 5, as the schedule C2 property is a small
property for which appellants No.4 and 5 are entitled
to as per the will dated 09.10.2020 executed by the
said Vasantha Kumari in their favour.
15. It is further contended that, the above said allotment
is just and proper without causing any embarrassment or
inconvenience to any of the parties, much less, the respondents
herein.
16. Further, without taking the above said cut and clear
position into consideration, the learned trial judge has erred in
passing the impugned order by accepting the report of the
Court Commissioner, though the same is not convincing, but
also confusing and not in accordance with all cannons of law.
17. It is further contended that, it is always advisable to
simplify the matter rather than complicating it, so as to put the
parties in proper and just position to avoid any future claim or
complication or disharmony against one another and also
keeping in mind to encourage future development of the
immovable properties. As such, acceptance of Court
Commissioner's report, as is where is status, by the learned
trial judge, without considering the objections raised by the
appellants and the memo for just and proper division of the
schedule properties filed by them and without examining the
Court Commissioner is liable to be set aside by directing the
trial court to exercise its jurisdiction in conveniently dividing the
schedule properties as per the suggestions made by the
appellants so as to resolve the dispute between the parties
once and for all, after examining the Court Commissioner's
report. Hence, learned counsel for the appellants prayed to
allow the appeal.
18. In support of his contentions, learned counsel for
appellants relied upon following judgments:
1. AIR 2002 SC 2066 reported in the case of M.L.
Subbaraya Setty and others v. M.L. Nagappa
Setty and Others;
2. ILR 2003 KAR 4558 reported in the case of
Vasudeva Murthy, since dead by his LRs and
Others v. Mariyappa, since dead by his LRs and
others.
19. Per contra, learned counsel for the respondents
contended that the first plaintiff Smt. Padmavathi is the mother
of second plaintiff Nithyashree (respondent Nos.1 and 2 in the
present appeal). One Siddappa was the propositor. He and his
son Jagadeesh Kumar were the coparceners of the family, each
having half share in the suit properties. Siddappa expired in the
year 1975 leaving behind his wife Jayamma (first defendant),
his son Jagadeesh Kumar (defendant No.2), his daughters
namely Smt. Rukmini (defendant No.3), since deceased by her
legal representatives viz., respondent Nos.3 to 5 in the present
appeal. Smt. Vasantha Kumari (defendant No.4) expired during
the pendency of FDP proceedings and her share was allotted to
appellant Nos.4 and 5(children of defendant No.2 Jagadeesh
Kumar, born through his 2nd wife-Manjula). Another daughter
Smt. Sarala (defendant No.5) is the first appellant in this
appeal, Smt. Paran Jyothi (defendant No.6) is the second
appellant in this appeal, Smt. Nalinakshi (defendant No.7) is
third appellant in FDP. Appellant No.4 - Manoj Kumar and
appellant No.5-Harshitha are son and daughter of Late
Jagadeesh Kumar, who are defendant Nos.8 and 9 respectively.
20. Plaintiff Nos.1 and 2 had filed a suit for partition in
O.S.No.5633/2000 for the relief of partition and separate
possession in respect of A, B and C schedule properties. During
the pendency of the suit, i.e., 09.10.2002, son Jagadeesh
Kumar (defendant No.2) died. Ultimately, suit was decreed and
the trial Court granted shares to the parties. Thus, respondent
Nos.1 and 2 herein have filed FDP No.82/2020, against the
appellants and other respondents herein before the I Additional
City Civil and Sessions Judge, Bengaluru, CCH-2, to draw a
final decree for separation of their share of 973/2520 of the
schedule properties and for separate possession and also for
mesne profit of their share, pursuant to the judgment and
decree passed in OS No.5633/2000 dated 07.04.2014 and the
judgment and decree in RFA No.916/2014 dated 15.05.2020,
modifying the shares. The appellants herein have filed
statement of objections to the petition filed by respondents
Nos.1 and 2 under Order XX Rule 18 of CPC.
21. Further, respondent Nos.1 and 2 having filed IA No.2
in FDP No.82/2020 under Order XXVI Rule 13 of CPC, the
learned trial judge appointed one Sri. Arun. R, Advocate as
Court Commissioner, who has submitted his report on
26.07.2024, basing on the market value of the schedule
properties as stated by respondent Nos.1 and 2.
22. Ultimately, the FDP Court allowed the petition in-part
and granted shares to the parties in terms of the report of the
Court Commissioner.
23. Being aggrieved by the order passed by the FDP
Court, the appellants have preferred this appeal.
24. We have perused the appeal memo, order of FDP
Court and evidence of the parties and the Court Commissioner's
report.
25. In order to prove their case, appellant No.1/plaintiff
No.1) was examined on oath as PW.1. In her chief examination,
she has reiterated the averments made in the suit.
26. In the evidence of PW.1, there is no averment or any
evidence regarding disproving of Will that was claimed by
respondent Nos.8 & 9. In the cross-examination of PW.1, the
counsel for respondent Nos.8 & 9 has suggested that,
respondent No.4 deceased Smt. Vasantha Kumari executed the
Will in favour of respondent Nos.8 & 9 regarding her share in
the suit schedule properties, however, PW.1 denied it.
27. Respondent No.8 Sri. Manoj Kumar was examined on
oath as RW.1. RW.1 has deposed that, on 12.01.2023,
Smt. Vasantha Kumari died. He performed her last rites.
Thereafter, on 24.01.2023, one Sri. Navaneetha V Swamy and
respondent No.7 Smt.Nalinakshi came to his house and handed
over the document stating that, Smt. Vasantha Kumari has
executed the registered Will on 09.10.2020 in the presence of
Sri. Navaneetha V Swamy and one Rakshit R. The Will is
registered in the office of Sub-Registrar, Jayanagar, Bengaluru.
The said Will is marked as per Ex.R.2. As per the judgment
passed in RFA No.916/2014, Smt. Vasantha Kumari being
respondent No.4 is entitled for 237/2520th share in the suit
schedule properties along with proportionate mesne profit.
Hence, after the death of Smt. Vasantha Kumari, the Will came
into effect and as per the Will, respondent Nos.8 & 9 together
entitled for share of Smt. Vasantha Kumari i.e., 237/2520th
share.
28. In the cross-examination of RW.1, the counsel for the
petitioners has suggested that, in the partition suit filed
between the husband of Smt. Vasantha Kumari and his
brothers, respondent No.1 has filed application stating that, he
is adoptive son of Smt. Vasantha Kumari, for which, RW.1
denied. RW.1 admitted that, during the lifetime of
Smt. Vasantha Kumari, she was paying the taxes in respect of
the suit schedule properties. RW.1 admitted that, prior to the
death of Smt. Vasantha Kumari, RW.1 and his sister i.e.,
respondent No.9 were residing with Smt. Vasantha Kumari in
the suit schedule 'C' property. In the year 2018, they shifted to
the suit schedule 'A' property.
29. RW.1 further admitted that, one Sri Premnath,
Advocate was representing him in O.S.No.5633/2000. RW.1
has pleaded ignorance that, said Sri. Premnath, Advocate, has
drafted the Will Ex.R.2. RW.1 denies that, he himself has
created the Will Ex.R.2. RW.1 admitted that, as on the date of
death of Smt. Vasantha Kumari, Sri. Navaneetha Swamy had
come to the house of Smt. Vasantha Kumari. RW.1 admitted
that, in the year 2019, when the husband of Smt. Vasantha
Kumari expired, at that time, he himself, his sister i.e.,
respondent No.9 and Smt. Vasantha Kumari were residing
jointly. RW.1 denied that, after the death of husband of
Smt. Vasantha Kumari, he got created the Will in respect of all
the properties of Smt. Vasantha Kumari. RW.1 denied that, at
the time of execution of the Will on 09.10.2020, Smt. Vasantha
Kumari was not physically and mentally fit. RW.1 denied that,
he himself prepared Will and asked the witnesses to come to
the Sub-Registrar's office and got it registered. RW.1 denied
that, from 3 years prior to the death of Smt. Vasantha Kumari,
she was completely depending on him i.e., RW.1.
30. RW.2 Sri.Navaneetha V Swmay is the attesting
witness to the Will Ex.R.2. RW.2 is a Doctor by profession. In
his evidence, he has stated that, he was giving medical advise
to deceased Smt. Vasantha Kumari, hence, Smt. Vasantha
Kumari was having love and affection towards him and she
asked him to accompany her at the time of execution of the
Will. Accordingly, Smt. Vasantha Kumari executed the Will in
his presence as per Ex.R.2, to which, he has put his signature
as attesting witness. At the time of execution of the Will,
Smt. Vasantha Kumari was hail and healthy and she had
control over all her senses and capable of understanding the
pros and cons of execution of the Will. As she had no issues,
Sri. Manoj Kumar and Harshitha J i.e., respondent Nos.8 & 9
were dependent on her and she was taking care of them, in
turn, they were also taking care of Smt. Vasantha Kumari with
all love and affection.
31. RW.2 in his cross-examination has admitted that,
from last 20 years, Smt. Vasantha Kumari was suffering from
diabetes and heart related diseases. Smt. Vasantha Kumari
also suffered COVID-19. RW.2 has denied that, as on
09.10.2020, Smt. Vasantha Kumari was bedridden. RW.2 has
stated that, Smt. Vasantha Kumari had drafted the Will from
Advocate Sri. Premnath. RW.2 denied that, RW.1 Sri. Manoj
Kumar had participated in drafting the Will. RW.2 admitted
that, as on 09.10.2020, respondent No.8 was residing with
Smt. Vasantha Kumari.
32. In this case, respondent No.4 Smt. Vasantha Kumari
is the aunt of (Father's sister) respondent Nos.8 & 9.
Smt. Vasantha Kumari was issueless. Respondent Nos.8 & 9
were residing with Smt. Vasantha Kumari and Smt. Vasantha
Kumari was taking care of respondent Nos.8 & 9 from their
childhood. It is not the case of the petitioners that
Smt. Vasantha Kumari was having any special love and
affection towards anybody other than respondent Nos.8 & 9.
Thus, Smt. Vasantha Kumari was taking care of respondent
Nos.8 & 9 from their childhood and till the last breath of
Smt Vasantha Kumari, respondent Nos.8 & 9 were residing with
her, naturally she will have love and affection towards
respondent Nos.8 and 9, who are none other than the children
of her brother.
33. On perusal of Ex.R.2 Will and evidence of RWs.1 & 2,
there is nothing unnatural or there are no suspicious
circumstances to believe that, the Will Ex.R.2 might be created
etc. It is common behavior of a human that the person, who
takes care in the evening of his life will be benefited by his
property or other things.
34. Smt. Vasantha Kumari was an educated lady and she
was aged about 65 years at the time of execution of the Will.
Ex.R.2 Will is a registered document. Smt. Vasantha Kumari
appeared in the office of the Sub-Registrar.
35. RW.2 is the attesting witness to the Will, who has
naturally deposed before the Court that, he is a Doctor by
profession and Smt Vasantha Kumari was taking medical advise
from him. He was also visiting the house of Smt. Vasantha
Kumari and Smt. Vasantha Kumari was having love and
affection towards him. Smt. Vasantha Kumari asked him to
accompany to the office of the Sub-Registrar and accordingly,
he has seen Smt. Vasantha Kumari executing the Will as per
Ex.R2. He has put his signature to Ex.R2 as Ex.R2(a). RW.2 has
identified the signature of Smt. Vasantha Kumari on Ex.R2
Under all these circumstances, respondent Nos.8 & 9 have
proved that, they succeeded to the estate of respondent No.4
Smt. Vasantha Kumari by virtue of the Will Ex.R.2.
36. In the instant case, the Will Ex.R2 executed by Smt.
Vasantha Kumari has been proved to be genuine and validly
executed by her, wherein she has bequeathed her entire
property to her brother's son and daughter. Admittedly, Ex.R2
Will is a registered instrument. To substantiate the contentions
of the appellants, they have not produced any documents.
37. Before the FDP Court, the Court Commissioner was
appointed to prepare scheme of partition to allot the petition
schedule properties to the parties in view of the order passed
by Co-ordinate Bench of this Court in RFA No.916/2014. The
Commissioner issued the warrant and pursuant to the same,
both the parties submitted their memo of instructions and after
considering such memo of instructions, the Court Commissioner
executed the Commission work, measured the property and
prepared sketch of suit schedule A and B properties with the
aid of Civil Engineer. Before the FDP Court, respondent Nos.5
to 7 had filed objections to the report of the Court
Commissioner on the ground that, the guidance value of the
suit property is lower than the valuation furnished by the
petitioners. In fact, the Commissioner has not taken into
consideration the prevailing market value of the suit schedule
properties. Respondent Nos.8 and 9 are also claiming their
share by virtue of Will Ex.R2.
38. We have perused the report of the Court
Commissioner. It appears that the Court Commissioner had
issued Commission warrant, he received memo of instructions
from the concerned parties, he visited the schedule properties
after issue of notice, got measured the properties and the
petitioners and respondents were present at the time of
measurements. As per the report of the Commissioner:
'A' schedule property is measured at 4528.44 sq.ft,
'B' schedule property is measured at 3066.8 sq.ft,
C1 schedule property is measured at 1830 sq.ft and
C2 schedule property is measured at 243.60 sq.ft.
39. Accordingly, the Commissioner allotted shares as
under:
Plaintiff No.1/respondent No.1, the wife of Late Jagadish
Kumar(defendant No.2) was allotted share at 162/2520.
Plaintiff No.2/respondent No.2, the daughter of Late
Jagadish Kumar was allotted share at 811/2520, thus,
petitioner Nos.1 and 2 together were entitled to 973/2520
share.
Accordingly, the plaintiffs were allotted shares in
Schedule A property - 4528.44 x 973/2520 = 1748.52 sq.ft
B schedule -3066.8 x 973/2520 = 1184.15 sq.ft
C1 property -1830 x 973/2520 = 706.60 sq.ft
C2 property - 243.60 x 973/2520 = 94.06 sq.ft
So also, defendant No.3(a) to (c)/respondent Nos.1 to 3
who are heirs of deceased Smt. Rukmini(defendant No.3), they
are entitled to one share of Smt. Rukmini at 237/2520th,
similarly, defendant Nos.3 to 7 are also entitled to 237/2520th
share each which are as under:
A schedule property 4528.44 x 237/2520 = 425.9 sq.ft
B schedule property 3066.8 x 237/2520 = 288.43 sq.ft
C1 schedule property 1830 x 237/2520 = 172.11 sq.ft
C2 schedule property 243.60 x 237/2520 = 22.91 sq.ft
In this case, by virtue of Commissioner's report and
registered Will executed by defendant No.4-Vasantha Kumari,
respondent Nos.8 and 9 are also entitled to 181/2520 share
each which is as under:
A schedule property 4528.44 x 362/2520 = 650.56 sq.ft
B schedule property 3066.8 x 362/2520 = 440.58 sq.ft
C1 schedule property 1830 x 362/2520 = 262.09 sq.ft
Item No.2 property 243.60 x 362/2520 = 35 sq.ft
Further, the Commissioner has calculated the share of the
parties in the suit schedule properties and thereafter as per the
valuation arrived at, he has divided the suit schedule
properties.
40. It is well settled that preliminary decree only declares
the share of the parties and the properties that are to be
divided. The properties are to be divided by metes and bounds
in the final decree proceedings and while doing the same, the
object would be to preserve protect and respect possession as
far as possible. It is well settled that merely because the decree
declares that the suit schedule A property is proposed to be
allotted to the petitioners, respondent Nos.8 and 9, respondent
No.4 and also respondent Nos.1 to 3 i.e., 3(a) to (c) and as per
the sketch of the suit schedule 'B' property, it is proposed to be
allotted to respondent Nos.5, 6 and 7 as per the
Commissioner's report, what is to be borne in mind is that, only
requirement is that the property allotted to each co-sharer in
correspondence to his share and it is also well settled that
Court should make an endeavour to equalise the share which is
recognised in law by making provision for payment of owelty.
The law of the land on the subject has been laid down by the
Hon'ble Supreme Court in the case of M.L.SUBBARAYA
SETTY(Dead) by LRs and Others vs M.L. NAGAPPA
SETTY(dead) by LRs and Others reported in AIR 2002 SC
2066 wherein, the Hon'ble Apex Court held as follows:
"28. xxxxxxxxxxxx The direction that the plaintiff is
entitled to 2/19th share in the joint family property and
that he shall be put in separate possession of the
properties giving him share by metes and bounds does
not mean that every item of the property is to be
divided between co-sharers. It is correct that the only
requirement is that property allotted to each co-sharer
should bear approximately the same value as
corresponds to his share. It may also not be necessary
that if the properties consist of movable and immovable
properties then each party must necessarily be given a
share in all movable and immovable properties. While
effecting partition of joint family properties, it may not
be possible to divide every property by metes and
bounds. The allocation of properties of unequal value
may come to the share of a member of a joint family at
the time of effecting partition but for that necessary
adjustments have to be made. It can also happen that
some of the co-sharers on partition may not get any
share in immovable property. No hard and fast rule can
be laid. It depends upon the facts of each case. It
depends upon the nature of the immovable property
and number of such properties as also the number of
members amongst whom it is required to be divided.
Properties of a larger value may go to one member.
Property of lesser value may go to another. What is
necessary however, is the adjustment of the value by
providing for payment of one who gets property of
higher value. In short, there has to be equalisation of
shares."
"29. Another question to be determined is as to the
date of valuation of the properties in a suit for partition.
Ordinarily, it has to be the date of the passing of the
final decree and not the date of filing of the suit for
partition. In a given case, however, there may be
exception of this general rule. It is a matter of common
knowledge that such suits for partition take
considerable time for disposal. There is a big time lag
between date of filing of the suit and date of the
decision thereof. There is also considerable lapse of
time between passing of preliminary decree and
passing of final decree. Take the present case, suit was
filed in the year 1948, preliminary decree proceedings
were finalised in 1971 by decision of this Court.
Thereafter more than 30 years have elapsed, the
parties are still no way near the final partition. It would
be absurd if it was to be held that the valuation of 1940
or 1948 should be taken. It is also possible that in a
given case, the value of one property may appreciate
drastically while not so in the case of other properties
or it may even decline and some of the parties may be
in possession of those properties. It has been the
endeavour of the Courts in such suits to protect,
preserve and respect the possession of the parties as
far as possible. While so protecting, there has to be
equalisation of shares which has been recognised in law
"by making a provision for payment of owelty."
41. It is clear from the perusal of the order passed by the
trial Court that the Commissioner has taken into consideration
the feasibility of the division with respect to use and enjoyment
of the properties by the parties and has prepared a detailed
report. It is further held that in the present case, the
Commissioner requested both the parties to furnish valuation of
the properties, however, valuation was furnished only by the
petitioners and respondents did not furnish the valuation for
the reasons best known to them and on perusal of the guidance
value and other material available before the Court, it was
found that the valuation of the suit schedule A property was
higher than the guidance value and major portion of the suit
schedule A property was proposed to be allotted to the
petitioners. Further, the trial court was of the opinion that when
the parties, who are the owners of the property had not come
forward for division of the properties, by considering the actual
market value and other aspects, there was no reason to reject
the Commissioner's report. It is clear that the value of the
property has to be ascertained as on the date of the final
decree proceedings and it is necessary if the parties so desire
to appoint a commissioner to ascertain market value of the
property and pass appropriate orders in the light of the
principle laid by the Supreme Court in SUBBARAYA SETTY's
case and having regard to facts and circumstances of this case
to workout equity between the parties.
42. Another question to be determined is as to the date
of valuation of the properties in a suit for partition. Ordinarily, it
has to be the date of the passing of the final decree and not the
date of filing of the suit for partition. In a given case, however,
there may be exception of this general rule. It is a matter of
common knowledge that such suits for partition take
considerable time for disposal. There is a big time lag between
date of filing of the suit and date of the decision thereof. There
is also considerable lapse of time between passing of
preliminary decree and passing of final decree.
43. Take the present case, suit in O.S.No.5633/2020 was
filed in the year 2000, preliminary decree proceedings were
concluded on 07.04.2014 and confirmed in RFA No.916/2014
on 15.05.2020 by decision of this Court. Thereafter, more than
4 years have lapsed, the parties are still no way near the final
partition. It would be absurd if it was to be held that the
valuation of 2000 should be taken. It is also possible that in a
given case, the value of one property may appreciate
drastically while not so in the case of other properties or it may
even decline and some of the parties may be in possession of
those properties. It has been the endeavour of the Courts in
such suits to protect, preserve and respect the possession of
the parties as far as possible. While so protecting, there has to
be equalization of shares which has been recognized in law "by
making a provision for payment of Owelty(a pecuniary sum
paid to effect an equitable partition of property).
44. Reverting to the present case, regarding the shares
etc. in possession of the plaintiffs, it already stands settled
between the parties that it was an ad hoc arrangement. If the
plaintiffs have dispersed those shares, then they are required
to account for it. The value of those shares said to have been
dissipated (dispersed) may have to be worked out. It is not
possible, at this stage, to hold that such valuation is not
practicable. Assuming the plaintiffs have dissipated those
shares, that cannot result in denial of shares to them in the
joint family properties in terms of the decree finally passed by
FDP Court as referred to hereinbefore.
45. A contention was also urged that there is generally a
time gap between the report of Commissioner submitted
pursuant to the directions in the preliminary decree and passing
of the final decree and it would not be practicable to value the
assets as on the date of the final decree. There is no
impracticability. Ordinarily, though it is the date of the final
decree, but in reality, the date of valuation which the
Commissioner takes into view in the report, is to be taken into
consideration by the Court. But that would again depend on the
facts of each case: In a given case, there may be gap of years
between the date of the report of the Commissioner and the
date of the final partition. In the meanwhile, there may have
been a sharp increase or decrease in the value of the property
or properties. In such event, the Court may have to balance the
equities and pass other directions in order to partition the
properties between the parties as per their respective shares.
The preliminary decree declares the shares of the parties and
the properties which are joint and are required to be divided
between the co-sharers. Regarding valuation, reference may
also be made to Order 20, Rule 18 and Order 26, Rules 13 and
14 of the Code of Civil Procedure, which read as under:
"Order 20, Rule 18. Decree in suit for partition
of property or separate possession of a share
therein-
Where the Court passes a decree for the partition of
property or for the separate possession of a share
therein, then,-
(1) if and in so far as the decree relates to an estate
assessed to the payment of revenue to the
Government, the decree shall declare the rights of
the several parties interested in the property, but
shall direct such partition or separation to be made
by the Collector, or any gazetted subordinate of
the Collector deputed by him in this behalf, in
accordance with such declaration and with the
provisions of Section 54;
(2) if and in so far as such decree relates to any other
immovable property or to movable property, the
Court may, if the partition or separation cannot be
conveniently made without further inquiry, pass a
preliminary decree declaring the rights of the
several parties interested in the property and
giving such further directions as may be required.
Order 26, Rule 13 CPC: Commission to make
partition of immovable property-
Where a preliminary decree for partition has
been passed, the Court may, in any case not provided
for by Section 54, issue a commission to such person
as it thinks fit to make the partition or separation
according to the rights as declared in such decree.
Order 26 Rule 14 CPC: Procedure of
Commissioner-
(1) The Commissioner shall, after such inquiry as may
be necessary, divide the property into as many shares
as may be directed by the order under which the
commission was issued, and shall allot such shares to
the parties, and may, if authorized thereto by the said
order, award sums to be paid for the purpose of
equalizing the value of the shares.
(2) The Commissioner shall then prepare and sign a
report or the Commissioners (where the commission
was issued to more than one person and they cannot
agree) shall prepare and sign separate reports
appointing the share of each party and distinguishing
each share (if so directed by the said order) by metes
and bounds. Such report or reports shall be annexed to
the commission and transmitted to the Court, and the
Court, after hearing any objections which the parties
may make to the report or reports, shall confirm, vary
or set aside the same.
(3) Where the Court confirms or varies the report or
reports it shall pass a decree in accordance with the
same as confirmed or varied, but where the Court sets
aside the report or reports it shall either issue a new
commission or make such other order as it shall think
fit."
46. The actual partition is effected by passing of the final
decree. The valuation has, thus, to be as on the date of final
decree.
47. Before concluding, we wish to clarify that the
observation of the High Court is that the plaintiffs are entitled
to share in each of the joint family properties, mean, the
actual partition of all such properties by metes and bounds.
When the Court directs that the present possession of the
parties shall be respected, it means that if partition of the
property is to be effected, then as far as possible, the person
in possession of a property should be allowed to retain it by
equalization of share, but it does not mean that, a person out
of possession of all immovable properties should not be
allotted any part of the immovable property whatsoever. In
view of the same, the FDP Court has correctly analysed the
facts of the case, preliminary decree, Commissioner's report
and granted share to the parties, which is in accordance with
law, thus, do not require any interference. Hence, the appeal is
liable to be dismissed.
Accordingly, we pass the following:
ORDER
1. The appeal is dismissed.
2. The order dated 22.11.2024 passed by I Addl. City Civil &
Sessions Judge, Bengaluru in FDP No.82/2020 is hereby
confirmed.
3. No order as to costs.
Sd/-
(K.SOMASHEKAR)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
MN
