IN THE HIGH COURT or KARNATAKA AT BANGATLORE Dated this the 151 day of Decembelfi . PRESENFwH THE I-ION'BLE MR. JUS1*I<:_'_E~N KIINLQR ' 'AND THE I-ION'BLE MR. JUs'p:§:;'s_o..1; KUNLAQAQWAMY REGULAR FIRST of 2003 BETWEEN: K. Sujathzi ,1'. , W/o BUR Kuma17'.g~.._» ' » . Aged a'o'out._32 grearsp [' , No.2. 5/1;V.6""~ Cro--ss'"'f . " Srinivasa Road" . X Kadigrerxahalli, 'S.1;bran1a,nyapura Main Road Ba1ia<shan}:a'ri 11 Stage" "Ban"galor'€: 5550 070 ,..Appe1lar1t . ' 2 Sri Sharath N, Advocate for 'jE\/ifs. Pavamana Associates, Advocates} 1A' Nifmaia = _ §W/o Late M Krishna Rae Aged about 55 years t\) 2 M K Sudarshan S/o late M Krishna Rao Aged about 30 years 3 Sri M K Sunitha W/o S. Babu @ Rafa Aged about 26 years 4 M K Sunil S/o M Krishna Rao Aged about 23 years All are residing at__No.9Ol_____R:' 33"' A Cross, 9%" Main Road A .' 4m Block, Jayanagaar' _ j AA Bangaiore m 560 011 V Respondents S. for R}: Srt Bhiat Y N A.dvoVcate"for R2 to R4] This_RFA'fi}ed'.ur1die'r.,._SeC.tion 96 r/W/o 41 R 1 of CPC against dated 21--12~2002 passed in OS No.4O(V)VV'7-/_VA}9.9;'i' on'._ti'i'e..."~'i'iie of the XX Additional City Civil Judge 'Bangaiore_Vfi(v3ity:(CCH No.32), dismissing the suit for partition-"Land separate possession. on for hearing' this day, N. KUMAR J deliiveredt -the foilouringz L;-J JUDGMENT
This is a plaintiff’s appeal against theij_i1dgnien”te~
decree of the trial Court, which has”disn’iiss.edz”the stititvdlfordi’
paI’titiOI1 and separate possession.
2. For the purpose of…cAorw’en_ience,’ =the..~parties are
referred as they are referredT -to*:’h the o1″igir:al_suit..
3. The’Si.it$jeCt¥__111at:te1′ includes ancestral
properties a5s4’Vvv:ei’1 ‘property of the father of the
plair1t.if{. SChVevd.’t1]e¥:I«.pis'<..t.he___aneestral property. A tiled roof
resident:ia1..V_ at Rama Mandira Road.
Basavanagudi, Bpangalorest, valued at Rs.3 lakhs. Scheduie II
'"hasV"t:'nre.e'A itvems of properties. The first item is the house
propertgtIstaridingirz the name of the plainiiiffs father, valued at
Rsflfldlakvhsii'4E}Seco'nd item is yet another house property valued
hat Rs.-4!1at3.hs standing in the name of the first defendant, the
of the plaintiff. Third item is the death benefit fund
h?/..
received due to the death of the father. to
Rs. 1 ,75.000«OO.
4. The plaintiff is the d.aughter”3\/lllfi .i§::_s-zqnla j.
Rao. The first defendant is her “”iJ’hell
MK. Sudarshan and 4th defendyarit, Su_}1il!ar.e”‘th€ ‘lsonsof
M. Krishna Rao and the first the mother.
Third defendant Sunith’al,iilS. Plaintiff is married
and she is livingewith her” V l
5. Z_. Rao died on 3011:
October. _’ schedule properties. The
defendant.s; 1, in item. No.2{a] of the suit
schedule properties. ‘Schedule I is the ancestral properties left
. .lV”beh’indE”Al5’y plaintiffsulgrand father, M. Shankar Rao, who died in
the plaintiff being the eldest daughter of M.
Kris_hna.~P?ao.; has equal rights and equal share in the ancestral
p’ropert.i_es. Therefore she requested the defendant. to give her
V”‘ll_AAiegiti:nate share. When it was declined. she got issued legal
riotice, A reply was also sent denying the right. Schedule ll is
l/..
‘..l§
the self acquired property of M. Krishna Rao. in whieh;i:.aftierA’his
death, she has equal riglit with other legal V ‘*i’at’i<1el~.'
died during service. 'i"°he1'efo1'e, at .S'zfi;Ii»}_Of Rs. 'was' . i
paid towards his retirement benefits.
the plaintiff has got equal
When her share was denied, lfilecirithe partition and
separate possession of ./in the suit schedule
property.
6. _ The l:”d_efe.ndaritv tiled Written statement
eoi1i,est1hg’ thieiyelaifhi; eohiiehded that the plaintiff was
never inpossessioti schedule property and she does
not have ‘title toltheA’so.ii.’-*’lschedule property. She is residing
sep’ai3.ate_ly withAAher..__h.usband and Children and therefore. she
no suit schedule property. The relationship set
outtn theA*.v«VP–l£l1\’i§i9lt. was admitted. It is admitted that her father
‘V died’on”30§lO..l987. In respect of the Schedule I properties.
“‘_*.,’£AhvE’3i”‘-‘3.’ was partition as early as in the year 1982 between the
— father of the plaintiff and his brother, wherein M. Krishna Rao.
kl/.
(3
the father of the plaintiff received Rs.24,000wO0 his
share with respect to the properties t-elf’-:)yi’
Schedule 11 property, where the
acquired by sale of jewels of the first if
the time of her marriage. Item {to} off?-.chedul€;”l’i self
acquired property of the _:h<%f The first
defendant was workin(:%'_.a.s thefpe1'iod from
.1955 to 1977 and Md From out of he}:
earnings, she 11 property from
Karnataka ‘payit;g’t:he sale consideration in
instalriients. of Schedule 11 property is the self
acquiredp_roperty-ofthefirstffdefendant and no one other than
the defendaynthasfany right, title and interest over item (b)
‘ll. p1’operty. The plaintiff is not entitled to 1/5?”
I s-ai::i«:”propei*ty.
j 7. z .V’fl1e issue of legal notice and sending of reply was
“V.’i~.a1:ir:1-itcted’. The first defendant: was not a house wife without
— any income of her own. She denied that plaintiff was
V I
totally ignored. Plaintiff is not entitled to any beneji”it.s”«deijived
from item {e} of Schedule Ii in the ease. The truth oiéfiftfiiié matter
is that during the life time of M. Krishna ineuri’ed~ _
debts and the amounts mentioned iitfiiteini ii
was utilized for clearing the ‘deb.ts. Tne’1’ernai:nAing«-vdebV’ts we–_re
cleared by the first The first
defendant has cleared in this
regard necessary claim has the plaintiffs
e0nt1*ibutio1*1’_Vi.§f. has already received
gotd jeweitaitiesi father before his death
and s;1’§1«,§a:ia.;i:;t after his death. An oral
ar1’angen1ent’. between the family members.
Hence has Qbiiigatibnfto clear the debts of her father. She
“‘”had” aisefzindertakeiriiifto contribute her share but till today no
contributed by the plaintiff. The entire debt
eiaim in Schedule Ii (C) is barred by lirnitation.
eie_ared}einly during early part of 1993. Even otherwise,
9
undertaken to clear the debts of her father. no
amount is paid by the plaintiff. The piaintiffjs 4_
Rs. 1o,00o_0o to the first defendant, »~~’Ihe1″etohre,i ‘t:1§.;::,r 4sot_1j;};hi..,pfoVr’ ; x
dismissa} of the suit and decreeing the ;{.{ou’nu=;:1-. eI.:1tr1;, ” t A
10. The other defelidéints» did V’n.o_t,°’f-ivie dainy written
statement.
11. On the aforesai.d:=p1Ve–etd1nés;_ Court framed
the followingflfisuesti .
1] pr;-Does that the 135 Schedule
J ortcestral and jotntifamtty properties
‘ ofthe the defendants?
_ 2} the ptatn.ttj]’ proves that the Ilrtd Scheduie
. ._tterr1sV”Vc’u*e-«–thejoint family properties of the plaintiff
A the defendants?
‘ ‘ P3} V. .”i%j’Iieth,er the defendants prove that the Ist schedule
‘ property is not the joint’ family property of the
plaintiff and the defendants?
\k/..
I G
4) Whether the defendants prove schedule H (19)
property is the setf acquired property of the first
Ciefendant?
5) Whether the court fee paid is proper? ‘TV
6) Whether the defendants prove t’hat”
by the ptaintzff to schedule in _,c1″f ba£~.red’v..’bxg ;
Irimitation?
7) Whether the defendants pioper “ptdtntff’
liable to pay Rs. 1 o,ooa}oo_ to thefirst defendant?
8} Whether that they are entitted
‘ “_–f:C:’T pdftiimh’ separate possession of 1/5″”! share
‘ hjofpLiuritjteiptstatement schedule properties?
9) V’ L ‘w hat order “dec ree?
12.. The ‘pIa,i.nt}.ff executed a power of attorney in favour
» of-hex’ BR. Kumar, who was examined on behalf of
pléintivfiv Nine documents were produced which were
mer1:ed–V:es’I§’3Xs.Pw1 to Peg. The first defendant Smi. Ni1*r1″fal.a
V,
was the self acquired property of the first deiendani.i:'”in:so..far
as third item of the II Schedule is Concerned,’thought-“‘o’1i.the
death of M. Krishna Rao. a sum of”‘wasv j i
the first defendant, the first deI’en’dant_Aihvasziutiliaed
amount towards discharge ofVincurred b_yVM.”Ki*i’shna Rao;
In fact, she has spent: about .n1o’re._thAah what she
got. out of which the 1/5”] share.
namely Rs. 10,000–QO. is not entitled to
any portion. é trial Court was
justified in disVrnis§:_ing ihe s”uit«.
17. it 31.63 aforesaid submissions. the
points thatiiarise fo’r~__oo11si*deii”ation are:
it ) A””‘Wh_et.-her the property mentioned in
..A:.«S:i:hedt1le was available for partition on the
‘ the suit: P
” .__d3~{2) Whether Schedule II items are joint
family properties or self acquired properties of
the mother. namely thefirst defendant ?
K/’
I9
Karnataka Housing Board by paying the sale consideration in
instaliinents. In the cross–examination it is elicited7th’at her
father was working as a Head Master in Kote _._and
after retirement. he was running Venkatesliwara-..InstituteItand
she was working in the said Institute. b”Sh.e'”.i_s a she I
was teaching to the students. of and
schools. She has also done ‘l”a.ilorin_g”a$Junior
Music. She has not deposited”aiiyilainount invtliyljjflnk. She
was spending the ‘jewellery to her.
Venkateshwara Institute 1’un~.:i’;”i_ Gavipuram. Her father
died infli9?’4.1AV aftiei-her 1’ather” death, the said Institute
was closed. ‘One was the Principal of the said
Institute, In tli-eufirsi place she was not working as a teacher in
I ‘t11¢”sr§1u35i she Working in a tutorial institute. There is
inVcV’ii–i.caLe students studying in primary and middle
school attending to the school to be taught by her. No
V’~»evidence__is adduced to show that she was working during the
1955 to I977. There is nothing to indicate that the said
infistitute was in existence from the year 1955. Secondly, the
E//,
acquired out of the funds made available by the first
and her husband and, therefore. they are jo.ifn”t’:.i:l”‘_
properties and she should be grantedwl»./4513* sharefllf there Was’ .
no joint faniily, if all the propertieas«pst:o_od’lv
first defendant and her husbla.nd…pare self a.cqtiire:d'”propertiestit
merely because they pi:().Vid€dAV_fi:ll’:1’Cl1S”€19 the and the
property was purchased” husband, it would
not partake thepich.araQter»..o’1:”:a lfproperty. At any
rate the anyflsevidence to prove the
said claini. The–ti:ial rejected the said claim.
24. ‘ _A’ put forth seeking recovery of
Rs.lO,OO(lll/i=–._yfronilt_he._pla,ir1titl’. The case of the defendants is
thgy~3–haqe spentA’Rs.5_Q,.000/~ towards the discharge of amounts
‘of’the faniily,ll”‘vAt the time of marriage plaintiff has been given
therefore, she is iiable to pay the family debt
and44’l1er’~Vsh.are is Rs. 10,000/m. Again all those allegations have
“‘–.x1″Cf11.aiI1f3HC’l unsubstantiated by any evidence on record.
. Thterefore, the trial Court was right in rejecting the said ease.
ck} / –
25. The plaintiff has fiied an app1ication~1.A. 1 /_
producing additional documents under Order XL! .
CPC. In the light of the discussion mac_ie..a’_oovei–We” see
any need to ailow the said appiicatiorijgasjeven witho’uii’ti5i’€\se:iVe_’
documents we are granting the .i¥§Hence.
the said application is rejeCt’eei:.«. i i’ V. V
In the resuit. we pass
(1′) Appeai ‘Qatari-ly:i.g:lltjLoed;”~ 2 V
{ii} the trial Court rejecting
schedule is aflimted. In
iespeet the plaintiff is entitled to
. _ I/5*’? share; A it it
1jP.a1’vt,ies to beariheir own costs’
Sd/-
JUDGE
Sd/-
JUDGE