P N Raghu vs Sharadamma on 22 November, 2010

Qg

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22"" DAY OF' NOVEMBER 2010

BEFORE

THE HON'I:3LE MRJUSTICE SUB}-IASH 13.. ;;{i f  _

REGULAR FIRST APPEAL NO.g35/2005» .{i'1jj\j;Jj"-f  "

BETWEEN

SR1. P.N. RAGHU,  _
S /O. LATE B.N. NARAYANA SWAMY,
AGED ABOUT 33 YEARS,  *
R/O. NO. 14, 6TH CROSS,

MAGADI ROAD, _ ._ 5 1- ___ _ 
BANGALORE A 560 023.  ~  '     APPELLANT

(BY SRLT. SESHAGIRI  ."G§jE*fHA, ADVS.)

AND

1. SMT. sHARABj_AMMA;»..4 
w/ O- 4LA'FE"B.N, RARAYANASWAMY.
AGED"'ABOmf BGYEARS.
 R/O. N014', 6'?!--I CROSS.
MAGAD1 ROAB;-~ "

  BANGALORE 560 023.

  

'  cANARA*'BANK,

 MAGAO1 ROAD BRANCH.
MAG-Am ROAD.
BANGALORE 560 023.

    BAGBANNA,

S / O. LATE NANJUNDAPPA.
AGED ABOUT 68 YEARS.
LAND LORD, BF-JGUR,
BANGALORE NORTH
TALUK~ 560 013.  RESPONDENTS

[BY SR1. S. CHENNARAYA RIEIDDY, ADV. FOR C/RI.

SR1. 1-“LS. RU KKOJ I RAO. ADV. FOR R2. R3 SERVED}

THIS Rm IS FILED UNDER SECTION 96 R/W O 41. ‘R
I OF’ CPC AGAINST THE JUDGMENT AND DEGREE
DT.30.II_.04 PASSED IN O.S.NO.6i92/92 ON THE FILE OF
THE XXII ADDL. CITY CIVIL JUDGE. BANGALORE.
DISMISSING THE SUIT FOR PERPECTUAL INJUNCI”I.QI\§.
PROIIIBITOR ORDER AND FOR PARTITION AND
POSSESSION. ..

S.SI*AR.rIj:EA« V.

THIS RFA COMING ON FORHIIIa:ARIIsII;.~-IIIVISQ.Dgiif

THE COURT MADE THE FOLLOVVING: ”

JUDGMEN’f,_ ‘ 3

This appeal is by Vthjé”»~.bp1eIintiff Jithe ‘V

judgment and decree i.I*I~..Q.S.NO.ESn.,1 On the file of
the XXII Addl. City Civiliei

2. The”;3.gI%–tieS__ w;i11~’be«. feife-rr_eV<:i' to as per their

ranking. before .. .C'CI,1i"t;

3. ” I The’SI_1iI_fiSVfaifhpermaneiit injunction and for

prohibitery uOI'(ie’I’S”‘I’eStfS.inin.g the Defendant: No.1 and

v’i’}]’S.x” VVh’1=e:_preSeI1tat.iveS from alienating the Suit

at Item No.1 and also from

wi’IhdI”a;WiII.g”‘ti1e Fixed Deposit mentioned in Item NOE

H H ‘A Def the Schedule.

The Case Of the p1_ai:m;.iff is that,

.~B;N.Nara aIiaSw:«.1m . 801} Of Mestri Nana )3. had two
}

wives namely, l\/iunibayamma and Sharadamma.

Narayanaswamy died on 24-07-1965 intestate leaying

behind only his two wives. He had no issues out..o”f
the wives. He had three immovable properties *
residential premises bearing Nos..l4 and

60* Cross, Magadi Road, Banga1ore_’land”–4f’

agricultural land ‘avillage,
Uttarahalli Hobli, Bang_alore””f-lonth-»r._fil’aldka; also
possessed movable silver
articles etc. pA}l:i:VV’p:t.heVlll’self acquired
properties” the death of
Snt. lvlunibayamma and

Smt. _S_hara4d’arnma’– managing all the properties.

“‘Fhe”iplair1t’ii’f wasltalkeri in adoption in 1975 as they had

the plaintiff being the nephew of

Sharada_n’1rnaland also as Narayanaswarny was very

arid affectionate with the plaintiff, when the
sfplpaintniff was 4 years old. However, Sharadarnrna
detreloped bad character, fell into the company of

” undesirable people and ran away from the house. Few

months after on the advise of the elders, having regard

to the family respect and for future security, she came

back and joined Mtmibayamma. A partition took place

between Munibayamnia and Sharadamma in tl_i”e._.y–ear

1977. The said partition was registered. I11

partition, house bearing No. 14. ESv%?1″‘C»ross.’_” Ru

fell to the share of Munibayamma”wh.iehv

‘A’ schedule property. The ‘B’ l’ V

schedule bearing l\i’o,i5, to. the”‘~~s»hare of
Sharadamma, who is was no

partition in so..far_ as 4I_aCre_s’ of.Vl’a:idVVof ‘Kothanur Village.

Both arirjl”Sharadamma and the plaintiff
iived _V bearing No.14. Both

Munibayaniriia a.r1’c1 Sharadamma in order to safeguard

llV'”-the-V.’pro’perty aiidV””‘t.’oV avoid future misuriderstanding

and to settle the property they

eXe=C_t1t.ev_d Will dated 22-3~1985 bequeathing

properties in favour of the plaintiff as a legatee. In
svo-.far as the Kothariur property, 3 lakhs was kept in

…E?ixed Deposit in Canara Bank. However, the defendant:

is now attempting to sell the remaining properties

described in Item No.1. cietrimemal to the interest. of the

plaintiff. In these circtimstances, t.he plaintiff was

constrained to file the suit for injunction.

5. During the pendency of the suit. the plaintiff

also got the plaint. amended and Claimed

become absolute owner of 3 items of

neither Munibayamma or Sharatlllarnrriary

title or interest in the suit propertyf-They hay-eindo lpoiiver
to alienate the property. Itedm._lll’No.1 ofythe ‘plaintiff
schedule property wasi__p’;.1t itself 1977.

The defe11dadn:tl5lhas§:i3no”right! ti’t£ev’or interest in the suit
schedule prpopertihf fell sick and became

weak and *contraet.edfl’ heart disease. Sharadamma

._treatir1g= —- -~’Mur1ibayamma and Plaintiff;

the house property bearing No. 15, 6″:

Road. It came to the knowledge of

7..«._l*Munibayamma that portion of the sale price was spent
V.’-h},?._S’h.aradan3ma and the rest was deposited in Bank.
fipprehendirig some more alienation. Munibayamma

« V executed an aigreemeiiti of sale in favour of the plaintiff

on 25–10~l987. Under the said agreement, 4 acres

rag’?

landed property at Kothanur Village fell in the hands of
the plaint.iff. Hence, he has desired to stay separately.
Under’ the said agreement, Munibayamma also
gold, jewels worth Rs.6 lakhs between Smt. ~
and the plaintiff and stated ”

take effect after the deathiip T ”

Munibayamma died on of ” if
Munibayamrna, SharadammVa”*olo’pldportion ‘of and
she also made attempt property.

Since the Defendant 2x-1:1 defendant

and iytfyinegliivfto the deposit in the
Bank, hence he ::nadeflf’pa1-~ty. On these averments, the

plaintiff songht fo.r’-afd.ec’r:ee of permanent injunction.

suilte-.u_n1mons were served on defendants

written statement. The defense of the

de’fenda.ntse:’i._was that Narayanaswarny had two wives

‘».,,na.me1yV Munibayamma and Sharadamma and they were

“‘i”_1n.an’a.ging the properties. However. they denied the

iritentioii of Narayanaswaniy to adopt the plaintiff and

alleged that the plaintiff is not taken in adoption. The

; 53
I (-

defendants admitted that there was a partition betyveen

Munibayanirna and Sharadamzna since the

property at Koizhanur was the subject n1at.t.er_.uo’f *

it was not included in the partition.

contended that they wanted t.he.”‘pla.i_i”itifi”

son. However, he did not thern’ .inspilt~e”of’ first ”

defendant’s love and…’ affet:tion– He
cultivated bad habits of the first
defendant. It and first
defendant the properties in
favouriof they had retained
the during their lifetime. it

is further th’at”‘the first defendant being the

f if suit schedule property bearing No.15,

the same during the life time of

Mniaibayaninila. The sale proceeds from the suit

“property..tvvas used for improvement of the property and

.l’i”oVr=maii1t.enance of their family. The plaintiff had not

~qLiest.ior1ed the alienation made by the first defendant

and therefore Caniiet maintaiii the suit for bare

injunction. They denied the aileged agreement: alleged to

t

have been executed by Muinibaiarnrna in favour of the
plaintiff is a concocted document. ‘1’ he sigriatiurelaof
l\/iunibayarnrna is a forged. After the
Munibayamrna with intention to ”

property during the iife of first
suit. Late Naraya11aswamy.»i’l1_axd ” the
lands under the Land }has no
right whatsoever in revs’1:ie’ct’ agricultural land. The
Bank deposit ijelongirig to the

first deferidant.u”Iii§:§.:1 son cannot
question in dealing with the

suit not entitled for any relief.

He never ‘possession of the suit schedule

.”‘pro’p-erty”*.ar’1d question of his dispossession does not

allegations and others, they sought for

disriaissai’oifi’.»’the suit. The Trial Court in pursuance of

pleadings framed issues 1 to 5 and additional issues

” , li.VVto- as under:

“i. Does plaintiff prove his lawful possession of the

suit properties on the date of suit’?

%’l’:~

2. Does he prove that the 1%’ Defendant is trying

to alienate the suit properties?

3. Whether the suit in the pi~esen’t._: ll

maintainable’?

4. Is plaintiff entitled reliefs as

5. What decree or order?ifj»’ 1 if V

Additional
“l. the that item No.2 of
if ” sjchledulelllllwas not put to the
partition was effected
_ henirevenl l\JIiinfii3.,a”yamma and Sharadamma?
plaintiff is entitled to 50% share
Tinljplaint ‘B’ schedule property?

the plaintiff became the absolute

gov ‘

of the item No.1 of the schedule
/igfoperty’?

A’ Before the Trial Court. the plaintiff got

himself examined as PW.l. He also examined

ll”,Wlllzirayzmappa as PW.2 and Mimibyrappa as PW.8 and

l0

got marked Exs.P.l to P3. The first defendant got

herself examined as DW,l, her brother as Defendant

No.2 and Exs.D.1 to D.18 were marked

evidence.

8. The Trial Court on .appreciation of e_vide’;nc’e

held that, the plaintiff has thatffhe is in
lawful possession of that
the plaintiff has failed defendant is
trying to the property. The
plaintiff suit item No.2 was
not p1,i”t._in* partition Was effected and

he has failed4l’ttot.p.i’ove that he has become the

oWner’~0f._suit item No.1 and accordingly

rasistssss suit. It is against the said judgment and

decree, ‘jplaintiff is in appeal.

it hf xLea.rned counsel appearing for the appellant

A plaintiff stibrnitted that though the suit was for bare
injtinci,ion. however the plaint got amended the plaint,

and plaintiff sought for partition and separate

possession in respect of schedule property. It is not

5;

in dispute that the suit schedule properties are the
properties acquired by Narayanaswamy, the husband of

first defendant and Munibayamma. In the written

statement filed by Defendant No.1, she has
execution of a registered Will dated 223- also’
not in dispute that l\/lunibayamrriai-andu’–aSli.arad’a§1nm:aa

got divided the propertiessunpderhlregistered’yipartitiion

deed dated 3.8.1977 and properties
became their exclusivel’ __Mur1ibayamrr1a

anticipating the harm “to the plaintiff

after herwdenlised’:§ha§1~.yA¢xecutedlV an agreement dated

25.l0.lVlQ.8:T«. Thoiigh_ll’thle-sdefendants have denied the

agreen_1Vent,lhowever,A’the’°’plaintiff has specifically stated

.lVl.”«.i.£1 %,.A’-epleadingls”that by virtue of registered Will

r.e>’&e.etit.-ed»..yljyVhM:u1nibayamma and Sharadamma. after the

death of.llVl..unibayamma. properties devolved on the

K”‘~.__l”‘»plaintiff__AAas a legatee under the Will and for which
A y:.”lSh«21Tr?’idan1ma has no right to prevent the plaintiff from
.,Vclaiming the property under t.est:amenta1’y succession.

it He stibmitted that though the suit is for bare

injunction, since the issue as regards to the title of the

ti

£2.

properties has been considered by the Trial Court, as

there was no dispute of execution of Will by Defendant.

No.1, it does not call for proving the Will in

Section 63 of the Indian Succession Act *

of evidence Act. He subrnitted..t~hat_ if

produced by the defendant

the tax paid receipts havingcome into e.2;isteVnce”a’fter ”

the suit is filed they not_.c’arry- any probative: value.
The defendants have not anyf_»ey’idence to show

that they have..eier_cise3d property after

the dernliseifMtittibayanimauftiil”the filing of the suit.
Admittedly the minor and defendant No.1

was the culstodian-. ofithelllw plaintiff and the Will being a

“v;7egi’s.terecl. Will, afte’r”‘the death of Munibayamma, it will

‘i4he:fplaintiff. He also submitted that in case

of Willl.£’..iflVone of the testatoz’ dies, the legatee under

Willvsas against the interest of the deceased testator

-gets the right to acquire the property and this is well
W ..se}ttled law in View of the judgment reported in AIR 1971

A Mysore 143 [Leo Sequiera Vs. Magdalene Sequiera Bai

and others] and AIR 1959 SC 71 [Kochu Govindan

C 3

£3

Kaimal and others Vs. Thayaiikoot Thekkot Lakshmi

Amnia and others]. He further submitted that the

question of proving the Will in accordance

provisions of Section 63 of the Indian Suec_essio’nfAet’;~…_p’W.

arises only where the execution ofthe Wililis

However, Ex.P.1 having not

execution of the Will is notfdilspputed, th:erev~V_is’:.._noheed ” if

for the plaintiff to see}: deeiiaraitoriy,relielfagaihst the
defendant. It is in this leoriteficflthe has filed the

suit for bare, “sale of property

bearingNodSivipwillfiigpnof–.djsentitl’efor affect the plaintiffs
rights tinder right after the death of

one of_Vthef’testator is also not in dispute that

if filing the sL1it;”‘i\/Iuiiibayaninia died. When the Will

.is’.L1i1ariib’igijons and being registered and one of the

testat.ors .is”;dead, there remains nothing to be proved by

plaintiff in so far as the properties of Munibayamma

is’e.o_ncerned. It is aiso clear from the Written statement

…as well as the evidence of DWJ wherein she has

V adrnitted the exeemioii of the Will. It is also admitted

that before the Wili was executed, there was a partition

by registered pa.rt.ition deed. These facts have been

admitted, the plaintiffs right as far as the proper1;iesll*of

Munibayarnma is concerned. Once, title is _pi:o\?ed;’g:’~–t.h’§:._.1″.

plaintiff is entitled for the decree arr§[g1.aanegnt~

injunction. He furt.her snbmitted”«’th7a:t”

Property is only a i3r0I3ert}:’.:’\’~~?3pearii;g. ‘B’ * if

schedule property is eo.ncern’eo.Q_:*.it”~is acr.es.:of land.
admittedly, in respect no partition.
However, had a share in
the the suit for injunction
restrajning”thveg ihterfering or alienating
the not only rnaintainable, but

the plaintiff hVav.iVrigA’pro’\}ed his right, title and interest

. V. ~oVetrf:the’.sui.t sclieldiilfe property is entitled for a decree of

if injumrtion.

v:On the other hand, learned counsel

3 appearing for the defenda.nt.s subrnitted that the Will
does not confer any right. on the plaintiff during

life time of the testator. in this regard. he relied on

EX.P.1 and submitted that though both the wives of

Narayan aswamy namely. Munibayarnma and

g :1′?

‘,.a—-I
‘Q-?’¥

s5

Sharadamma had partitioried the properties amongst

themselves, however in the Will which is subsequent to

the partition, they categorically stated th_atVl_fl..tll:.e
properties are in their possession. They .
right over the suit schedule p1’ope.rt_y dtiringpfthleirp”life.V W”

time and no other person will havzeranyi

of death of one of the testatorsefihe’plaintifftofijperfolrm
the last rites. They had alsoffretained ” the right to
alienate the properties’ lifetime and the

legatee would get the under the

Will only llafterfithe::f%;i’ea:th£of the testators and after
performing on this averrnent in

the Will, slubri:-JttedV””that when the testators have

disclosedltheirvrights in the Will, the ‘Nill will be

‘rrf»:1vllC_C()I'(li11g to terms of the same. Plaintiff

woulyd get.~th:eAproperties only after the death of the both

tesltatiors, and it is made clear in the Will. It is also
_fclpear_.uthat the testator had absolute rights to enjoy the
properties and right: alienate during their lifetime.

V Death of one test.at.or does not give right to the plaintiff

to claim the properties. Defendant No.1 has infact sold

:6

item No.2 in the Will and this fact is not in dispute as
the plaintiff himself has admitted in the pleadings and

has not questioned the sale, this clearly amonntsito

admitting that till the death. of

plaintiff has no right to claim t.he.,p_rope’rty”

Will. Further submitted that l1itestia’:nleln”tafyi_i

document is an intention ofthie testator to of -. L’

the property as they wish. Nolite.stat_nienltary_Hdoenrnent
would come into force ::of the testator. If
the testators _w¢;re_ c1¢a}i’i1it§l ‘as regards the
disposal anld”‘if”they have made it clear
that they have right to alienate the property

and one of theV’pro’per’tyl has been alienated by one of the

V’ .i,esiat’oi:A”during tl”£e”‘i’i’fe time of another testator, it clearly

testators intended to enjoy the

propertiesl’ijn’lthe manner they like and having made

”!.hat the legatee would get the properties

A y:.”vbeqd.ethed only after the death of both the testator. the

it __plai1’1tiff will not get any right during the iife time of the

V defendant No.1 who is admittedly one of the testator. He

also submitted that Ex.P.1 discloses that the properties

I9

and not Narayanaswamy. Hence, submitted that only

for the purpose of knocking out the properties«._f_lo.f

Sharadamma. the plaintiff has filed the

injunction. y

12. He further reli’_ed..__.onf”~the V
examination of PW–l and in the
marriage invitation neither the
name of name of
it shows the
name of. These documents
have l:ieen– l plaintiff and this evidence

itself clearly that the plaintiff was not

Mmiibyainnia and Sharadamma, but he

with his father even at the time of

and’V’t:’i_tlriereafter and even at the time of his

“,marriage;;. In the examination–in–chief. he claims that
adopted in 1985 and he was four years. Whereas
aecording to Ex.D1, by 1985, he was nearly 13 years.

Even without. looking” into the evidence of the

defendants, the evidence of the piaintiff itself is

20
sufficient to hold that he does not get any right under
the will nor he is an adopted son of Munibyarnma and

Sharadamrna nor there is any agreement which confers

any title. Though the plaintiff has only sought

injunction, the trial court has rightly V’

additional issue and has also deeided of-thev..

property and submitted that the has

the well reasoned judgment for it

interference.

13. In the light of’ the e.onteLn”t*ions, the point

that arises this appeal is as to;

d ‘*-_i_’V’fhe’the’rA’ th:e’:»i.llplaintiff has proved his
‘case has ‘become the owner of the
s-eliednle'”property under Ex.Pl, the will
;”‘e:n’titled for permanent injunction

defendants”?

‘ -.A*;’Whetrher plaintiff prove the adoption”.

The facts, which are not in dispute are that,

_ ‘ Narayanaswamy had married l\/iunibaymma and

…_Sharadamma and the suit schedule property and other

properties were acquired by Narayanaswaniy. He died

properties. but they continued to enjoy jointly. “l’hey
also make it clear that in case of death of
them the other heir would get the .

deceased. From the partition deed it K”
properties of any one of the
one on her death but must in ” it
light of the deed of.partitiion.”p’:~th{er’. intentvionf of the

testators under Will is 1;eqt1’i19e.d..i¥’t(i

19. U:_r1d'”e1-__ the testators have made
it clear…t«ha’f;..y/lythegg .._wé.ll .eir1j’oy._t_h§e properties till their
death, they hay*e’rightito__:ali.eriate on death of one of the

testator the_Vddp1*ope_rtAies’.:o’f the deceased to go to other

__Thep.l_aintiff as legatee to perform the

last rites of both the testator and to enjoy

There is clear declaration of intention of

”._both ‘;.testators that till the death of the last testator

the pleiintifi” will not get any right to the properties. The

division of the properties has not given any right to the

plaintiff when the test.ator did not intend to create any

interest: in the properties till their death, the plaintiff

»éi”/’L

(w

of the will the properties have to be disposed of.

does not get any right during the life time of defendant.

No.1. In the entire Will the testators have refeitred

themselves as “they” it makes it clear that .

intend to give the properties duriiigtheir l_ife’ 4′

20. In this case, it is n-otfltheipro’perties–7urould

devolve on the another testato’I=».:.o11 one
of the testator but it both testators
have disclosed their properties
shall be it clear that
during enjoy and they have
made death, they have every right
to aliendteitlievlproiiertyliFtirther, it is made clear that

thegnleiiztiff xivould get the possession only after their

performing the last rites. It is not a
dying and another testator living
vvouid claim the right, but when he claim his
v:rigi:t.s tinder the Will, which clearly stipulates as to how

‘ theyihave to be enjoyed. It only accordingly to the terms

As
such, the trial court on proper int4erpret:at.ion of EXs.P1

8: P2 and in the iight of the evidence has held that the

3.’?

Sharadarnrna were mentioned in the wedding invitation
card. If the plaintiff was the adopted son.___ of
Munibayamrna and Sliiaradamrna. he could
omitted to show the name of Mtiiiibaya-rnmailri ll
Sharadamrna. The evidence of the’
examination clearly proves that
prove the alleged adoption. V l n V V 2

22. Insofar as the giilegetduaéirelefnent lisconeemed,
there is no material less even

documentary jeviizlehjilcelgangd-:~rightIvi,”-theft trial Court has

held that proved any agreement.

Considerin’g_these* elvidenctellon record. the trial court by

well considered’ judgment has dismissed the suit.

. l.E3ve’nVon reconsidering the evidence on record,

error committed by the trial court in

-‘dismissing the suit. Hence. there is no reason to

lijiziterferevvitli the judgment and decree of the trial court.

ll accordingly. I pass the following : @’

K’

order

Appeal is dismissed. The parties to bear their 0x.=.%i1– “~«_ “*.

costs.

.. V. __ .

JL.(1w~ 10)
Sr1.(11 — end)