Narayanaswamy and Others vs Rathnamma and Others

Anand Byrareddy, J.—The appeal coming on for hearing, the learned counsel for the appellants as well as the respondents are heard.

The appellants are defendant Nos. 6 and 7 before the court below. Respondent Nos. 1 and 2 were the plaintiffs. Respondent No. 2 is no more and she is now represented by respondents 2(a) to 2(l). Respondent Nos. 3 to 6 were the other defendants. Respondent No. 4 is no more and she is now represented by respondents 4(a) to 4(c). Respondents No. 1 and 2 were the plaintiffs and the other respondents were defendants and sisters of the appellants.

The suit was for partition and separate possession. Plaintiffs were claiming 1/3rd share each in the suit properties on the basis that their grand father late Muniyappa had three sons namely Ramaiah Reddy, Papaiah Reddy and Sidda Reddy. The plaintiffs were the daughters and husband of defendant No. 1 and father of defendant Nos. 2 to 7. Late Krishna Reddy was the son of late Ramaiah Reddy. Their father and mother were no more and after the death of their father there was a partition in respect of the ancestral property between their brother late Krishnareddy and the children of their uncles Papaiah Reddy and Sidda Reddy under the registered partition deed said to have been executed on 26.10.1969 and all the suit properties had been allotted to the share of their father. Hence it is claimed that all the suit properties are joint family properties consisting of themselves and defendants. There was no partition effected in the suit properties and hence they were entitled to claim 1/3rd share each and all the defendants together were entitled to 1/3rd in the suit properties. It was thereafter claimed that even during the lifetime of their brother late Krishnareddy they had demanded that the partition of the suit properties be effected and as their brother Krishnareddy failed to effect the partition and even after death of his brother, they requested defendants to effect partition in the suit schedule properties, but the same was refused and therefore they had filed the suit against the defendants. These appellants had filed written statement admitting the relationship with the plaintiff. They had not disputed the case of the plaintiff that in the partition which took place between late Krishna Reddy and children of Sri Papaiah Reddy and Sri Sidda Reddy under the registered partition deed dated 26.10.1969, but the suit schedule properties had fallen to the share of their father late Ramaiah Reddy and hence the suit properties were joint family properties. But they contended that on 30.12.1982 the plaintiffs No. 1 and 2 had received a sum of Rs. 2,00,000/- each from their brother late Krishna Reddy and a release deed has been executed on 30.12.1982 in favour of Krishna Reddy and they have released all their right, title and interest in the property towards Krishna Reddy. Hence they were not entitled to any share in the suit properties. In the meantime plaintiff No. 2 had dead and her legal heirs had come on record.

On the basis of the above pleadings, the court below had framed the following issues.

Whether plaintiffs prove that plaint schedule properties are the joint family properties consisting of themselves and defendants?

Whether defendants No. 1, 6 and 7 proves that on 30.12.1982 plaintiffs have received amount of Rs. 2,00,000/- each from husband of defendant No. 1 late Sri M.R. Krishna Reddy and executed deed of relinquishment and relinquished their right, interest and title over the suit properties?

Whether plaintiffs are entitled to a share in the suit property and if so, to what share?

What order or decree?

The court below has decided issue No. 1 in the affirmative, issue No. 2 in the negative, issue No. 3 in the affirmative and has held that the plaintiffs are entitled for 1/6th share in all the suit properties and has accordingly decreed the suit and also directed for drawing up of the preliminary decree. It is this which is under challenge in the present appeal.

The appeal is of the year 2009 and the appeal having come up for final hearing, now the appellants have filed one application seeking amendment of the written statement, two applications seeking to produce additional documents and the learned counsel for the appellants would contend that there is a crucial aspect which has been lost sight of. In that, the plaintiffs not having indicated the date of death of their father Ramaiah Reddy and it has now come to the knowledge of the appellants that their father Ramaiah Reddy had died as early as in the year 1952, before coming into force of the Hindu Succession Act, 1956, and therefore it is crucial as to when the right to succession of the plaintiffs opened in determining their share and right and hence the court bellow having proceeded on the basis that the rights of the plaintiffs will have to be decided under the unamended Hindu Succession Act of 1956 may not be tenable on more than one count. If the date of judgment is taken into account which is 21.04.2009, the Central Amendment Act 39 of 2005 had come into force with effect from 09.09.2005 and therefore the court would have had to apply the law as prevalent on the date of judgment. When the date of death of the father was not indicated in the plaint, there was no basis for the court to have proceeded as if the amended Act applied when the Act itself is not applicable if the father had died prior to the year 1956. Therefore, it is contended that the additional documents now produced under IA 1/2014 is necessary to be taken into account.

It is further contended that one other crucial aspect that has been over looked in the proceedings is that Sidda Reddy has left behind a will dated 25.05.1985 and he had bequeathed the properties in favour of these appellants under the said will, which was not discovered till 2013. Immediately on such discovery the appellants had filed for probate in P. and SC 397/13 and the said proceedings having run its course after following all the procedures prescribed, the probate court had granted probate on the will which would have to be acted upon as all circumstances were proved to the satisfaction of the court. The said documents are now produced alongwith IA No. 2 and 3 of 2014. The certified copy of the petition in P and SC No. 397/13 and the probate granted by the probate court as well as the original sale deed under which the property was purchased by the father of the appellants is sought to be produced under I.A. 3/14.

The appellant has filed one more application seeking amendment of the written statement to the following effect:

The appellant seeks the following amendments to be incorporated as paragraphs 4(a) to 4(d). The said proposed amendment reads as follows:

I. Add PARA 4A after PARA 4.

PARA 4A. The defendants 6 and 7 submit that, the suit schedule properties at item Nos. 1, 6, 7 and 9 are the self acquired properties of Sidda Reddy S/o Muniyappa, the paternal uncle of Krishna Reddy, who was the brother of the plaintiffs and the father of defendants 6 and 7. The above said Sidda Reddy executed a Will dated 25.05.1985 in respect of the suit schedule properties at item Nos. 1, 6, 7 and 9 bequeathing the same to the defendants 6 and 7. The said Sidda Reddy passed away on 19.10.1994. However, the defendants 6 and 7 were not aware of the said Will. Their father, Krishna Reddy, brother of the plaintiffs passed away on 04.09.1992.

II. Add PARA 4B after PARA 4A.

PARA 4B. The defendants 6 and 7 submit that, they discovered the Will of Sidda Reddy only in the year 2013. They filed P and SC No. 397/2013 before the City Civil Court, Bangalore, seeking Probate of the aforementioned Will of Sidda Reddy. After following the due process of law like issuing public notice and recording the evidence of the attesting witnesses etc., the City Civil Court, Bengaluru, allowed the petition by order dated 19.08.2014. The defendants 6 and 7 have taken steps for payment of court fee stamp etc., as per the directions in the above said order.

III. Add PARA 4C after PARA 4B.

PARA 4C. The defendants 6 and 7 submit that, the order dated 19.08.2014 in P and SC No. 397/2013 is an order under rem and therefore it is binding on all, including the plaintiffs/respondents in RFA No. 714/2009. Therefore, on this ground also the suit of the plaintiffs in respect of suit schedule properties in item Nos. 1, 6, 7 and 9 is liable to be dismissed.

IV. Add PARA 4D after PARA 4C.

PARA 4D. The defendants 6 and 7 submit that, the suit schedule property at item No. 8 bearing survey No. 72/5 of Munekolalu Village, Varathur Hobli, Bengaluru South Taluk, measuring 27 guntas is the self acquired property of their father, Krishna Reddy, who purchased the said land under the Sale Deed dated 09.05.1963. Therefore, the plaintiffs have no right to seek partition in respect of the said land and the other lands also.

The proposed amendments only seek to incorporate the facts and circumstances discovered by the appellants by hindsight and as stated above in so far as discovery of the will of Sidda Reddy and having obtained probate on the said will and therefore on the basis of the same, the rights sought to be set up by the said appellants is sought to be urged by way of amendment.

The respondents however have vehemently contested all the applications. In so far as the applications pertaining to production of additional documents are concerned, the learned counsel would contend that the invitation of the obsequies ceremony of late Ramaiah Reddy is seriously disputed as it is a got up document, so also the photograph of Ramaiah Reddy indicating the date of death of Ramaiah Reddy at the foot of the photograph is also seriously disputed as a got up document and in so far as the will that is sought to be set up at this point of time is concerned, is also seriously disputed and even though it is claimed that probate has been obtained on the same it does not attain finality, it is always open for the respondents to seek revocation, as there is no period of limitation to seek such revocation and they shall now take steps that the probation was obtained in 2014 and the application was filed in September, 2014. It cannot be said that the respondents are precluded from seeking revocation of the probate obtained and therefore they oppose these applications and submit that if the applications are allowed it would further procrastinate matters. One of the plaintiff having died and the other having attained the age of 85, if the applications are allowed, it would certainly result in further procrastination of the matter and hence seek rejection of the same.

However, as rightly contended by the learned counsel for the appellants, to decide the rights of the parties it would be very much necessary to ascertain the date of death of Ramaiah Reddy. This is not forthcoming from the record. Therefore, to proceed on the basis that he had died subsequent to the coming into force of the Hindu Succession Act, 1956 would leave a lose end to the proceedings and the rights of the parties may be jeopardized. Therefore, some materials to contend that the date of death of Ramaiah Reddy was 3.3.1952 having been produced, it would be essential for this court to be satisfied that he had indeed died as on that date, by which the entire dimension of the case would change. Accordingly, in terms of Order XLI Rule 27(b) CPC, this Court feels the necessity of these documents and therefore allows the application I.A. 1/14. Similarly, the application seeking probate of the will having been granted by the probate court, the same would have to be given credence, notwithstanding the claim of the respondents that it is a got up will of which a probate has been obtained behind their back and that they are not precluded from seeking revocation of the probate, which they are at liberty to exercise. The fact remains that probate has been granted on the will and that is sought to be placed on record. There is hence no injustice caused if the application being allowed.

In so far as the amendment application in IA 2/14 is concerned, since the proposed amendments only relates to the events as to the discovery of the will and the claim of the defendants/appellants which is sought to be reinforced, there is also justification in allowing the same. Accordingly, the application in IA 2/14 for amendment of the written statement is allowed.

The applications for additional documents in IA Nos. 1/14 and 3/14 are allowed. The documents sought to be produced alongwith the applications are directed to be remitted to the trial court.

In view of the contentions now raised, an additional issue would arise, namely,

"Whether the defendants No. 6 and 7 prove that the Ramaiah Reddy died as on 03.03.1952 and consequently, if he had died on 03.03.1952, what would be the rights and privileges of the parties in determining their respective shares?" 15. The court below shall give its findings after evidence is tendered on behalf of the defendants in this regard. The plaintiffs are permitted to file their objections to the amended written statement if they so desire.

Having regard to the fact that the suit is of the year 2005 and one of the plaintiff is no more and the others are also very old, it is appropriate that the further proceedings be expedited by the trial court and the matter is remitted back to this court by 30.04.2015.

The parties shall cooperate before the trial court and they shall appear before the trial court on 23.02.2015 without any further notice.

The appellants shall carry out the necessary amendments.

In so far as additional issue now framed is concerned, the plaintiffs are also permitted to lead rebuttal evidence.

The appellants to file their amended written statement.

The registry is directed to remit the papers forthwith to the trial court.