Madhumalini S.R. and Others vs S.S. Ravindranath and Others

B. Sreenivas Gowda, J.—Plaintiffs in O.S. No. 11248/2006 on the file of 27th Additional City Civil and Sessions Judge, Bengaluru (CCH.16) have preferred this Regular First Appeal challenging the judgment and decree of the trial Court in dismissing their suit.

I have heard the learned counsel appearing for the parties and perused the judgment and decree of the trial Court.

For the sake of convenience, the parties are referred to as they are referred to in the original suit before the trial Court.

The case of the plaintiffs is that they are the children of defendant Nos. 1 and 8 and grand children of defendant No. 2. The other defendants are their paternal uncles and aunts. The parties to the suits are descendants of Suryakantha Rao, husband of defendant No. 2. He and his children constituted a Hindu Joint Family. He got allotted the suit site out of the assets came to him from his forefathers and the joint efforts of the members of the joint family and constructed a house thereon. Initially, it was allotted on a lease-cum-sale basis and later, it was registered in the name of defendant No. 2, as Suryakantha Rao died by then. The first floor was constructed in the year 1986 and cost was met by the parents of defendant No. 8 to an extent of Rs. 90,000/-. She also gave jewels weighing 40 grams. The suit property was improved with additional floors out of the joint family funds. Defendant No. 1 has been collecting the rent from the same. The plaintiffs have 2/3rd share in the share of their father. Defendant No. 1 became wayward and stopped taking care of his wife and children. Defendant No. 5 who is inimically disposed of towards the plaintiffs, kept them in dark about the assets of the joint family and he promised to make provision for the accommodation of the plaintiffs in the suit schedule property and prepared a document dated 26.6.2004, but nothing was done. Hence, plaintiffs have brought the suit for partition and separate possession of their share in the suit property.

The written statement filed by defendant No. 1 is adopted by defendant Nos. 2 to 4, 6 and 7. Defendant No. 5 has filed his separate written statement. Defendants have denied the case of the plaintiffs and inter-alia contending that Suryakantha Rao got the site of the suit property allotted to him and constructed ground floor in the suit site. He was a State Government employee and obtained its allotment out of his income. It was his self-acquired property. He died on 16.05.1988 and suit schedule property was transferred to the name of his wife by a transfer agreement dated 17.3.1993. Later it was registered in her name under the registered deed dated 24.7.1993. It is also denied that out of the assets came to the share of Suryakantha Rao from his father, he got the suit schedule property allotted to him. It is also denied that suit schedule property was improved out of the contributions of the sons of Suryakantha Rao. Ground floor was constructed by Suryakantah Rao in the year 1981 by obtaining loan from the Government and first floor was constructed by defendant No. 5 in the year 1986 out of his savings. It is denied that the cost of construction of first floor is met by parents of defendant No. 8 to an extent of Rs. 90,000/-. After the death of Suryakantha Rao, his wife and other children decided to release their right in the suit property in favour of defendant No. 5 on receipt of sums and accordingly, they entered into a family settlement dated 21.4.1993. All the brothers and sister of defendant No. 5 by taking Rs. 1,25,000/- each towards the value of their share in the suit schedule property have executed a joint receipt dated 8.4.1993 and later, they executed a registered release deed dated 29.1.1997 in favour of defendant No. 5. The Khatha of suit property is transferred to the name of defendant No. 5. Defendants have denied the claim of the plaintiffs that they have got 2/3rd share in the suit schedule property and prayed for dismissal of the suit.

On the basis of the pleadings of the parties, the trial Court has framed the following issues:

"1. Whether the plaintiffs prove that the schedule property is the joint family property of the parties?

Whether the defendants 1 to 7 prove that the schedule property was self-acquired property of Suryakanth Rao?

Whether the defendants 1 to 7 prove that the schedule property absolutely belongs to the 5th defendant?

Whether the plaintiffs are entitled to 2/3rd share in the 1/5th share of their father in the schedule property?

To what decree of order?"

The plaintiffs in support of their case have examined plaintiff No. 1 as P.W. 1 and two more witnesses as P.W. 2 and P.W. 3 and have produced eight documents which were marked as Exs. P1 to P8. On behalf of the defendants, defendant Nos. 1 and 5 were examined as D.W. 1 and D.W. 2 respectively and documents produced by them were marked as Exs. D1 to D43.

The trial Court after hearing the learned counsel appearing for the parties and perusing the oral and documentary evidence on record has dismissed the suit. It is against the said judgment and decree of the trial Court, plaintiffs have preferred this appeal.

Learned counsel for the plaintiffs submits that suit property was allotted in the name of Suryakantha Rao and it was acquired from the funds of the properties came to his share in a family partition. The trial Court has committed an error in holding that it was his self acquired property. He further submits that suit site was allotted by Bangalore Development Authority in favour of Suryakantha Rao by executing lease-cum-sale agreement in his favour and after his death, transfer deed and registered sale deed were executed by Bangalore Development Authority in favour of his wife and all the children of Suryakantha Rao have got equal share in the suit property.

Further he submits that alleged Memorandum of Settlement dated 21.04.1993 is a notarized copy. It was not registered and it was not acted upon and that Ravindranath, father of the plaintiffs has not relinquished his share in the suit property in favour of the defendants. He submits that alleged release deed executed by him in favour of defendant No. 5 is not in the interest of his wife and children and that the said deed is not binding on the share of the plaintiffs. The trial Court without considering the same committed an error in dismissing the suit of the plaintiffs. With these, he prays for allowing the appeal.

Per contra, learned counsel appearing for contesting respondents submits that there is no illegality or infirmity in the judgment and decree of the trial Court warranting interference of this Court. Hence, he prays for dismissal of the appeal.

It is not in dispute that the suit schedule property originally a residential site allotted by Bangalore Development Authority in favour of Suryakantha Rao, husband of defendant No. 2 and father of defendant Nos. 1 and 3 to 7. As he died before executing an absolute sale deed in his favour, allotment made by Bangalore Development Authority in favour of Suryakantha Rao was transferred in favour of his wife as per Ex. D12 and absolute sale deed was executed and registered in her favour on 27.04.1993 as per Ex. D13. Subsequently, wife and children of Suryakantha Rao decided to release their right in the suit property in favour of one of the sons of Suryakantha Rao namely defendant No. 5. Accordingly, Memorandum of Settlement came to be entered into on 21.04.1993 whereby wife and other children of Suryakantha Rao including Ravindranath, father of plaintiffs by receiving Rs. 1,25,000/- each and acknowledging the payment by issuing receipt in favour of defendant No. 5 have relinquished their right, title and interest in the suit property in favour of defendant No. 5. In the year 1997, defendant Nos. 2 to 7 who are the wife and other children of Suryakantha Rao had executed a registered release deed in favour of defendant No. 5 by taking Rs. 1,25,000/- each. Though plaintiffs initially denied the receipt of Rs. 1,25,000/- by their father Ravindranath from the 5th defendant, when it was confronted during the cross-examination of P.W. 1, she admitted the receipt of Rs. 1,25,000/- by her father.

Plaintiffs in support of their contention that suit property has been acquired by Suryakantha Rao from the income of the properties that were allotted to his share in a family partition, neither they have produced the said alleged partition deed nor have adduced any cogent evidence to that effect.

On the other hand, there is evidence to show that Suryakantha Rao was a Government Employee and he was allotted suit site. As he died before execution of registered sale deed in his favour, Bangalore Development Authority transferred the suit site in favour of his wife and executed and registered the absolute sale deed in her favour. It is thereafter, the wife and other children of Surya Kantha Rao executed memorandum of settlement and release deed in favour of defendant No. 5 releasing their right, title and interest in the suit property in his favour by receiving Rs. 1,25,000/- each towards value of their share in the suit property. Considering this material evidence on record, the trial was justified in dismissing the suit of the plaintiff.

I have carefully gone through the judgment and decree of the trial Court and I do not see any merit warranting interference.

Accordingly, appeal is dismissed as devoid of merit.

In view of disposal of the appeal, I.A. No. 1/2013 is also rejected as it does not survive for consideration.