IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.743 OF 2009 C/W REGULAR FIRST APPEAL No.682 OF 2009 In RFA No.743/2009 BETWEEN 1. Smt. N.R.Padmavathi, W/o. Sri. B.G.Sathya Murthy, Aged about 57 years, R/o. No.53/4-W, 23rd Cross, Someswara Extension, Behind Kempamma Mutt, Bannerghatta Road, Hulimavu, Bengaluru-560076.
2. Smt. N.R.Meena W/o. Sri. Venkatarama Rao, Aged about 51 years, R/o. Achar Street, Clerk Seenappa Compound, Tumkur.
(Appeal against appellants 1 & 2 dismissed as per order dated 27/02/2017) 3. Smt. N.R.Chandrika, W/o. Shri. S.Raja Rao, Aged about 48 years, R/o. No.956/25, New No.13, 12th Main, 4th Cross, K.K.Hebbar Road, Hanumanthanagar, Bengaluru-560019. …Appellants AND (By Sri. S.S.Srinivasa Rao, Advocate and Sri. Yeshu Mishra, Advocate) 1. Shri. N.R.Gururaja Rao, S/o. Late N.Ramachandra Rao, Aged about 46 years, R/o. No.891/A Shri. Sathyanarayana Sannidhi, 7th Main Road, Prakash Nagar, Bengaluru-560021.
2. Sri. N.R.Govinda Rao, S/o. Late Ramachandra Rao, Aged about 70 years, R/o. No.1107, Sri. Raghavendraswamy, Sannidhi, 6th Cross, 11th Main, Prakashnagar, Bengaluru-560021.
3. Sri. N.R.Nagaraja Rao, S/o. Late N.Ramachandra Rao, Aged about 63 years, 4. Sri. N.R.Ananda Rao, S/o. Late N.Ramachandra Rao, Aged about 61 years, 5. Sri. N.R.Shridharamurthy, S/o. Late N.Ramachandra Rao, Aged about 59 years, 6. Sri. N.R.Venugopala, S/o. Late N.Ramachandra Rao, Aged about 54 years, R3 to R6 are R/o. No.1107, Sri. Raghavendraswamy Sannidhi, 6th Cross, 11th Main, Prakash Nagar, Bengaluru-560021.
7. Sri. N.R.Krishnamurthy, S/o. Late N.Ramachandra Rao, Aged about 68 years, R/o. Panduranga Ashrama, Vedopalani, Kodambokam, Madras-26.
8. Smt. Sarojamma, W/o. Late N.R.Srinivasamurthy, Aged about 75 years, 9. Sri. N.S.Shyamasundar, S/o. Late N.R.Srinivasamurthy, Aged about 55 years, 10. Sri. N.S.Raghavendra Rao, S/o. Late N.R.Srinivasamurthy, Aged about 55 years, 11. Sri. N.S.Subramanya, S/o. Late N.R.Srinivasamurthy, Aged about 50 years, 12. Shri. N.S.Prasanna S/o. Late Sri. N.S.Srinivasamurthy, Aged about 45 years, 13. Sri. N.S.Murali, S/o. Late N.R.Srinivasamurthy, Aged about 45 years, R8 to R13 are R/o. 79/2 Ranga Rao Road, Shankarapuram, Bengaluru-560004.
14. Smt. Jayamma, W/o. Sri. Narayana Rao, Major, 15. Smt. Pramila, W/o. Madhava Rao, Aged about 83 years, Both are R/o. No.146, 20th Main, Banashankari 1st Stage, Srinagar, Bengaluru-50.
16. Smt. Saraswathi, W/o. Srinivasa Rao, Aged about 71 years, R/at No.V-90, Gurukrupa, Pipeline, 5th Cross, Malleswaram, Bengaluru-560003.
17. Shri. Kashipra Prasad, Shri. Anjaneya Shri Shri 108 Sri Raghavendraswamigala Brindhavana Sannidhi Trust, No.107, 6th Cross, 11th Main, Prakashnagar, 3rd Stage, Rajajinagar, Bengaluru-560021.
18. Smt. Bhagyalakshmi, W/o. Sri.N.R.Govinda Rao, Major, R/o. No.1107, 6th Cross, 11th Main, Prakashnagar, 3rd Stage, Rajajinagar, Bengaluru-560021. …Respondents (By Sri. C.N.Satyanarayana Shastry, Advocate for R1; Sri. P.A.Kulakarni, Advocate for R2 to R6, R17 & R18; Appeal against R7 – Abated; R8 to R13 & R16 - Served) This RFA is filed under Section 96 of CPC read with Order 41 Rule 1 of CPC against the judgment and decree dated 28.03.2009 passed in O.S.No.5112/1988 on the file of the I Additional City Civil & Sessions Judge, Bengaluru, partly decreeing for the item Nos.1 to 3 & 7 and dismissing for the item Nos. 4 to 6 of suit schedule properties, the suit for partition & separate possession and mesne profits.
In RFA 682/2009 BETWEEN 1. Sri. N.R.Govinda Rao, Aged about 70 years, Since deceased by his LRs 1(a). Sri. N.G.Venkatesh Murthy, 1(b). Sri. Badri Narayana N.G., 2. Sri. N.R.Nagaraja Rao, Aged about 63 years, 3. Sri. N.R.Ananda Rao, Aged about 61 years, 4. Sri. N.R.Shridharamurthy, Aged about 59 years, 5. Sri. N.R.Venugopala Rao, Aged about 54 years, A1(a) & A1(b), 2 to 5 are R/o. No.1107, Sri. Raghavendra Swamy Sannidhi, 6th Cross, 11th Main, Prakash Nagar, Bengaluru-560021.
(Appellants 1(a) & (b) amended as per Court order dated 8.3.2012) …Appellants (By Sri. P.A.Kulkarni, Advocate) AND 1. Shri. N.R.Gururaja Rao, S/o. Late N.Ramachandra Rao, Aged about 66 years, R/o. No.891/A Shri. Sathyanarayana Sannidhi, 7th Main Road, Prakash Nagar, Bengaluru-560021.
2. Sri. N.R.Krishnamurthy, S/o. Late N.Ramachandra Rao, Aged about 68 years, R/o. Panduranga Ashrama, Vedapalani, Kodambakam, Madras-26.
3. Smt. Sarojamma, W/o. Late N.R.Srinivasamurthy, Aged about 75 years, 4. Sri. N.S.Shyamasundar, S/o. Late N.R.Srinivasamurthy, Aged about 55 years, 5. Sri. N.S.Raghavendra Rao, S/o. Late N.R.Srinivasamurthy, Aged about 53 years, 6. Sri. N.S.Subramanya, S/o. Late N.R.Srinivasamurthy, Aged about 50 years, 7. Shri. N.S.Prasanna S/o. Late Sri. N.S.Srinivasamurthy, Aged about 45 years, 8. Sri. N.S.Murali, S/o. Late N.R.Srinivasamurthy, Aged about 45 years, R3 to R8 are R/a. 79/2 Ranga Rao Road, Shankarapuram, Bengaluru-560004.
9. Smt. Jayamma, W/o. Sri. Narayana Rao, Aged about 78 years, 10. Smt. Pramila, W/o. Madhava Rao, Aged about 83 years, R9 & R10 are R/o. No.146, 20th Main, Banashankari 1st Stage, Srinagar, Bengaluru-50.
11. Smt. Saraswathi, W/o. Srinivasa Rao, Aged about 71 years, R/at No.V-90, Gurukrupa, Pipeline, 5th Cross, Malleswaram, Bengaluru-560003.
12. Smt. Padmavathi, W/o. B.S.Sathyamurthy, Aged about 65 years, R/a. No.51, I ‘B’ Cross, 5th Block, Banashankari 3rd Stage, Bengaluru-560085.
13. Smt. Meena, Aged about 63 years, W/o. Venkataram, R/a. Clerk Seenappa’s House, Achar Street, Chickpet, Tumkur.
14. Smt. Chandrika, Aged about 60 years, W/o. Raja Rao, R/a No.19/20, 2nd Cross, 5th Main Road, Chamarajpet, Bengaluru-560018.
15. Shri. Kashipra Prasada Shri. Anjaneya Shri Shri 108 Sri Raghavendra Swamigala Brindhavana Sannidhi Trust, No.107, 6th Cross, 11th Main, Prakashnagar, 3rd Stage, Rajajinagar, Bengaluru-560021.
16. Smt. Bhagyalakshmi, W/o. Sri.N.R.Govinda Rao, Aged about 58 years, No.1107, 6th Cross, 11th Main, Prakashnagar, 3rd Stage, Rajajinagar, Bengaluru-560021. …Respondents (By Sri. C.N.Satyanarayana Shastry, Advocate for R1, R2, R15, R16-served, R3 to R14 – Notice dispensed with.) This RFA is filed under Section 96 read with Order 41 Rule 1 of CPC against the judgment and decree dated 28.03.2009 passed in O.S.No.5112/1988 on the file of the I Additional City Civil & Sessions Judge, Bengaluru, partly decreeing the suit for partition and separate possession.
These appeals having been heard and reserved on 26.2.2019, coming on for pronouncement this day, the court pronounced the following:
JUDGMENT These two appeals arise out of judgment and decree dated 28.03.2009 in O.S.No.5112/1988 on the file of I Additional City Civil and Sessions Judge, Bengaluru. The defendants 1 to 5 in the said suit are the appellants in RFA No.682/2009. Defendants 16, 17 and 18 have filed the other appeal RFA No.743/2009, but this appeal now survives only with respect to defendant no.18, as in respect of the other two, there was a settlement.
2. Referring to the parties with respect to their respective rank in the suit, the pleadings are set out briefly as below:-
3. The plaintiff and the defendant Nos.1 to 6 are the sons of one N.Ramachandra Rao. This Ramachandra Rao had another son by name Srinivasamurthy through his first wife. Defendant Nos.7 is the wife and 8 to 12 are the children of Srinivasamurthy. Defendants 13 to 18 are the daughters of Ramachandra Rao. Ramachandra Rao died in the month of October 1970. His second wife Jayalakshmamma died in the year 1982. It is the plaintiff’s case that his father Ramachandra Rao earned the properties described in items 1 to 7 of the plaint schedule. Ramachandra Rao constructed a Mutt of Sri Raghavendra Swamy Sannidhi in item No.1 of the plaint schedule out of his own earnings and he was doing Pooja in the said Mutt through out his life time. He also trained the plaintiff in doing Pooja. After death the of Ramachandra Rao, the first defendant started managing all the properties left behind by the father. The plaintiff and the defendants succeeded to the properties of their father. The first defendant prevented the plaintiff from doing Pooja at Sri Raghavendra Swamy Sannidhi and he engaged an Archak for doing Pooja at the Mutt depriving the legitimate right of the plaintiff. The plaintiff was using a portion of the item No.1 of the plaint schedule property, but because of intolerable troubles created by the first defendant, he left that portion by mortgaging it to one Keshavamurthy and set up his residence at another place. The plaintiff started mismanaging the joint family properties for his selfish acts ignoring the welfare of the joint family. The plaintiff expressed his desire to become separated from the joint family, but the defendant did not show any interest and therefore brought a suit seeking partition of the joint family properties and for mesne profits.
4. The first defendant filed written statement and the same was adopted by defendants 2 to 5. They have admitted the relationship as stated by the plaintiff, but have denied the right of the plaintiff to claim partition in all the items of the plaint schedule properties. According to them only item No.2 was the self acquired property of their father Ramachandra Rao. The property described in item No.3 belonged to their mother Jayalakshmamma. Even item No.2 of the plaint schedule stood in the name of their mother and she was exercising her right. In item No.1 of the plaint schedule, Moola Mrithika Brundavana of Sri Raghavendra Swamy exists and it belongs to first defendant. It was dedicated to the Brindavana during the lifetime of his father and therefore nobody can lay claim on this property on the ground that it belongs to joint family. This property has never been considered as the property of the joint family. Actually the said item No.1 was acquired by first defendant and Brindavana was built by his late father. Because of dedication to the Mutt during the time of his father, a trust called Sri Kshipra Prasada Sri Anjaneya Shri Shri 108 Shri Shri Raghavendraswamigalavara Brindavana Sannidhi Trust was established. The plaintiff never performed Pooja at the Mutt. The items mentioned in 4 to 6 of the plaint schedule also belonged to the Mutt as it is a part of dedication. It is also contended that during the lifetime of the father, the plaintiff separated from joint family and at that time some portion in item No.1 of the suit schedule adjoining to Mutt was given to the plaintiff. The plaintiff started residing at Prakasha Nagara in his own house by mortgaging portion of item No.1 of the plaint schedule. This shows that plaintiff was separated from joint family during the lifetime of his father and therefore he cannot claim partition. The suit is to be dismissed.
5. The learned trial Judge, on the basis of oral and documentary evidence came to conclusion that the plaintiff was entitled to 1/7th share in items 2 and 3 of the plaint schedule properties. With regard to item No.1 of the schedule property, the trial Court has held that the plaintiff and defendants 1 to 6 should hold the property in their joint possession and that they could attend to Pooja and other religious ceremonies at the Mutt on yearly rotation basis. The claim for partition in respect of item 4 to 6 was dismissed.
5.1. The trial court has given reasons that items 2 and 3 of the plaint schedule were actually purchased by Ramachandra Rao although the sale deeds stand in the name of his wife Jayalakshamma. She was a housewife and had no income of her own to acquire properties. For this reason what the plaintiff has stated that item no.3 property was also purchased by Ramachandra Rao is believable. The trial court has also referred to answers given by DW-1 in his cross examination to arrive at this conclusion.
5.2. As regards item no.1 of the plaint schedule, it is held that Brindavana of Sri. Raghavendra Swamy exists there. But this property was also acquisition of Ramchandra Rao from his own income. There is no dispute that Ramachandra Rao had no ancestral property. The contention of defendant no.1 that item no.1 of plaint schedule is his acquisition has no proof. The trial court has considered the answers given by DW-1 in his cross examination to come to conclusion that from his own admission it becomes very clear that he is in possession of all the plaint schedule properties on behalf of the joint family and that he is ready to divide items 1 to 3 of the plaint schedule. One specific plea taken up by defendant about an earlier partition has been rejected. With regard to Ex.D.1, it has been observed that the plaintiff does not admit such a settlement to have come into existence, and the say of plaintiff that his signature was forcibly taken on that document is believed. This document is disbelieved for another reason that it came into existence after the plaintiff instituted the suit.
5.3. With regard to right to worship in the Sri.
Raghavendra Swamy Sannidhana, it is held that Sri. Ramachandra Rao constructed the Mutt and was doing Pooja and, after his death his children inherited that right; the first defendant cannot claim exclusive right. The plaintiff is as much entitled to that right as the other children of Ramachandra Rao, but the property where Brindavana exists cannot be partitioned; it should be kept in joint possession of all and the Pooja and other religious ceremonies and functions can be performed on yearly rotation basis. In regard to items no. 4 to 7 of the plaint schedule, the trial court has held that no effective decree can be passed because of want of clear pleadings.
6. I have heard the arguments of learned counsel for the appellants and respondents in both the appeals and perused the records of the trial court.
7. It is the argument of Sri. P.A. Kulkarni, learned counsel appearing for appellants in RFA.No.682/2009 that the findings of the trial court are erroneous in as much as the evidence on record discloses separation of plaintiff from the joint family long back. It is undisputed fact that the plaintiff has been residing separately for a quite long time. He has also mortgaged a portion of item no.1 of the plaint schedule. Ex.D.1 evidences separation. Therefore the trial court should not have held that plaintiff is entitled to a share. With regard to ‘Pooja’ right of plaintiff, the learned counsel argued that item no.1 is dedicated to Sri. Raghavendra Swamy Sannidhana and a trust has been created as per Ex.D15, for management of the Mutt. The plaintiff having separated from the joint family and having established a temple for ‘Lord Satyanarayana Swamy’ cannot claim Pooja right. The trial court’s conclusion that Pooja and other religious ceremonies must be performed on yearly turn is opposed to dedication made as per Ex.D15. He also argued that plaintiff cannot claim partition without challenging Ex.D15. The suit should have been dismissed, he argued.
8. Sri. C.N.S. Shastry, counsel for respondent no.1 /plaintiff has argued that the trial court’s findings are sustainable as they are based on proper appreciation of evidence. The properties were the self acquisition of the father; he constructed the Mutt of Sri. Raghavendra Swamy and was doing Pooja. The respondent no.1 /plaintiff has clearly admitted in the cross examination that he is only managing the properties after the death of father. He cannot claim exclusive right over the items of plaint schedule merely because he obtained sale deed from BDA to his name; actually the property was acquired by father from his own income. DW1 has given clear admission in cross examination that plaintiff is entitled to equal share in all the properties. Ex.D1 is not acted upon, the plaintiff may be living separately, it does not mean that he has given up his right to claim partition.
8.1. He further argued that there is a presumption about jointness of the family, and in this case it is proved by the plaintiff that no partition has taken place. Above all, the plaintiff has been deprived of his right to worship in the Mutt. It was the plaintiff who was doing Pooja even during the life time of father. On rotation basis, the plaintiff gets his turn once in six years and the trial court has rightly recognized his right. Therefore the appeal deserves dismissal.
9. The counsel for appellant in RFA.No.743/2009 submits that the appellant is also a daughter of Ramachandra Rao, she should have been made a party to the suit. She too has Pooja right. She can engage an “Archaka” for the purpose of doing Pooja. Supposing that she were to be only daughter of Ramachandra Rao, the entire property and Pooja right would have devolved on her. Therefore Pooja right cannot be denied to her just because she is female. He also highlights one point that ‘Brindavana’ is situated in item no.1 of plaint schedule and item 2 of the same is adjacent to item no.1 and this portion is being used for other religious activities.
10. The above arguments give rise to following points for discussion:-
i. Has the trial court come to right conclusion that the plaintiff is entitled to a share in items 2 and 3 of the plaint schedule ?
ii. Is the finding of trial court that item no.1 is impartible and it should be kept in joint possession, correct?
iii. What order?
Points (i) and (ii):
11. These two points can be discussed together.
It is the plea of plaintiff that all the plaint schedule properties were self acquisitions of his father and the main defence of defendants 1 to 5 appears to be that plaintiff had separated from the joint family long back and thus he cannot claim partition.
12. Since this is first appeal, evidence requires re- appreciation. Given a look at the oral evidence of PW.1, he has spoken in tandem with his plaint averments. His cross examination discloses an effort having been made by the defendants’ counsel to elicit from him that he got separated from the joint family. But PW1 has rejected all the suggestions made to him. It is not impossible to say that PW1 has not been impeached. DW1 appears to have been discredited. His specific defence has not stood established, rather his answers in the cross examination very well indicate that he held the plaint schedule properties with him as a manager of the family after the death of his father. He has admitted that the Bangalore Development Authority executed sale deed in his favour on the no objection said by other members of the family; that his brothers also have share and that he is ready to give whatever the share they are entitled to. He has also admitted that the properties that stand in the name of his mother were actually acquisitions of his father.
13. Therefore from the oral evidence it becomes clear that it was Ramachandra Rao who acquired all the properties and particularly with reference to item no.2 of the plaint schedule, DW1 has made it clear that said property was purchased by Ramachandra Rao though sale deed stands in the name of his wife. It is undisputed fact that Ramachandra Rao and his wife Jayalakshamma died intestate. To defeat the right of plaintiff, defendants 1 to 5 have pleaded about past partition. They have produced Ex.D1. The plaintiff does not admit Ex.D1, rather he has taken a stand that his signature was forcibly taken on it. Though PW1 admits to have received Rs.10,000/- and that Rs.15,000/- appears to have been paid to plaintiff’s tenant, Indiramma, remaining amount of Rs.4,07,000/- as has been stipulated in Ex.D1 to be payable to plaintiff was not paid and therefore a clear conclusion can be drawn that Ex.D1 was not acted upon. Moreover Ex.D1 does not evidence the contention of defendants 1 to 5 about plaintiff’s separation from the joint family having taken his share, rather it came into existence during pendency of the suit. If really parties could arrive at such an agreement, the same could have been reported to court according to Order 23 Rule 3 of CPC. If the plaintiff pursued the suit even after coming into being of Ex.D1, the inference that can be drawn is that it was not acted upon. The other contention of defendants 1 to 5 about plaintiff getting separated from the family taking his share is also not proved. It is a fact that plaintiff is living separately and that he built a temple for Lord Satyanarayana Swamy. His separate living does not prove his separation from the joint family. It is also another fact that plaintiff has under his control a portion of property in item No.1 of plaint schedule, but this also does not prove plaintiff’s separation from joint family. Therefore, juxtaposing of oral and documentary evidence leads to draw conclusions that all the properties belonged to Ramachandra Rao being his self acquisition and after his death, all his children succeeded to his property. Even if it is assumed that plaint schedule 2 and 3 belonged to Jayalakshamma, as she died intestate, her children inherit her property. If the evidence is re- appreciated, I have to concur with findings of trial court; there are no grounds to hold contrary view.
14. Item No.1 of plaint schedule, a place of consecration of Mrittika Brindavana of Sri Raghavendra Swamy, as has been rightly held by the trial court, is impartible. No share can be carved in it. But the learned counsel for appellant has argued that because of formation of trust as per Ex.D15, plaintiff cannot claim share and without challenging the said trust, suit for partition is not maintainable in respect of first item of plaint schedule. This argument is untenable, reason being that the first defendant could not dedicate the property for the trust as he had no absolute and exclusive right. The plaintiff who has also an interest in item no.1 was not included and the evidence in fact shows his protest for creation of trust. When very apparently first defendant’s right to create a trust is lacking, the defendants cannot put forward that document to defeat the right of plaintiff. The conclusion of trial court in this regard is acceptable.
15. Though it is held that trust does not stand in the eye of law, there is no scope for effecting division of item no.1. What is involved in first item of plaint schedule is right to worship. The learned counsel for respondent-plaintiff very much argued in vindication of plaintiff’s right to worship. The facts and circumstances show that plaintiff is justified in claiming that right to worship. I find that the trial court has rightly come to this conclusion. Hence, these points are answered in affirmative.
Point No. (iii):-
16. The discussion on points 1 and 2 leads to conclude that the judgment of the trial court has to be upheld. But, in my opinion, item no.2 of the schedule property also appears to be impartible. There is no dispute that item No.2 is adjacent to item No.1. If in item No.1, ‘Mrittika Brindavana’ of Sri Raghavendra Swamy exists, in item No.2 other religious activities do take place; it has always been treated as part of item No.1 and for this reason both these properties must be held jointly by all the shareholders. In respect of properties mentioned in schedules 4 to 6 of the plaint, the trial court has held that the plaint lacks particulars and no order could be passed with respect to them. This may be right conclusion, but to make it more clear, all the movables as described in schedules 4 to 6, including the items that might have been purchased during pendency of suit and this appeal, as also anything to be bought in future for purpose of doing Pooja and carrying out religious and spiritual activities shall ever remain the property of the Mutt.
17. There is another undisputed fact that a portion in item No.1 of the plaint schedule appears to be in possession of plaintiff and he has leased or mortgaged that portion to somebody. The plaintiff having sought partition in item No.1 impliedly indicates that there was no disposition of that portion in his favour by his father to claim exclusive right. Since item No.1 is held to be impartible, the plaintiff cannot claim exclusive right over that portion and he shall surrender it to Sannidhana of Sri. Raghavendra Swamy Mrittika Brindavana. It is needless to say that the aforesaid observations are made to mould the relief in accordance with Order 41 Rule 33 of CPC.
18. The daughters of Ramachandra Rao are also entitled to share, but not all daughters because of some developments that have taken place. It is observed in para 11.03 of the judgment of the trial court that the plaintiff has given up claim against defendants No. 13 and 18, Smt. Jayamma and Chandrika respectively. It is also observed that defendants 14 to 17 cannot be considered for allotment of shares in their favour as they chose not to contest. It is another undisputed fact that defendants 6 to 12 representing the branch of N.R.Srinivas Murthy, another son of Ramachandra Rao through his first wife, are not entitled to any share in view of separation of N.R.Srinivasa Murthy from the joint family very long back. Therefore, the trial court came to conclusion that totally 7 shares had to be carved out and held that plaintiff was entitled to 1/7th share.
19. But RFA 743/2009 was initially filed by three daughters of Ramachandra Rao namely Smt. Padmavati, Smt. N.R.Meena and Smt.N.R.Chandrika, defendants 16, 17 and 18 respectively. The order dated 27.2.2017 in RFA 743/2009 shows that Smt. N.R.Padmavati and Smt.N.R.Meena were deleted from the appeal in view of an out of court settlement, and it was submitted by counsel appearing for appellant in RFA 743/2009 that the said appeal survives only in respect of third appellant namely Smt.Chandrika. Though the trial court denied share to Chandrika, it is a fact that she is also entitled to a share being a daughter of Ramachandra Rao.
20. There is another aspect to be mentioned here.
The sixth defendant in the suit, Mr. N.R.Krishna Murthy, who is arrayed as respondent No.2 in RFA 682/2009 died during pendency of the appeal. The learned counsel for appellant, Sri P.A.Kulkarni, made an application under Order XXII Rule 4 (4) of CPC seeking dispensation of impleadment of the legal representatives of the deceased as he did not contest the suit. This application was granted. Sri P.A.Kulkarni also made a submission that the legal representatives of the deceased are not interested in claiming their share, and this submission is not controverted by other two counsel. These circumstances indicate that for time being there are only 7 shareholders, i.e., the plaintiff and the defendants 1, 2, 3, 4, 5 and 18 and they take 1/7 share each in the third item of plaint schedule.
21. So far as Pooja right is concerned, it should be on yearly rotation basis only and every party can perform Pooja at Sri.Raghavendra Swamygalavara Sannidhana for one year period. The learned counsel Sri C.N.S.Shastry submitted that since the plaintiff has been deprived of his right to do Pooja all these years, he should be given two years period and when his turn comes in the next round, he will confine it to one year. No doubt the plaintiff has been deprived of his right all these years, but, in my opinion, the plaintiff cannot claim that privilege, because obviously a question arises as to from whom the rotation system should begin? To put an end to all these complications, it can be held that the yearly rotation must commence from that party who is older in age among the seven and then pass on to the next party in the descending order.
22. For managing the affairs of the Mutt and other religious activities, it is better that a new managing body consisting of all the parties having right to worship shall come into existence. The new managing body shall have over all control over the Mutt, maintenance of items No.1 and 2 of the plaint schedule and all other religious activities. Party doing Pooja in his/her rotation period cannot claim exclusive right of management of Mutt, it shall always be with the managing body only.
23. The appellants in RFA 682/2009 have filed an application I.A.1/2018 under section 151 of CPC seeking permission to demolish the Mutt building that exists in items No.1 and 2 of the plaint schedule and to reconstruct a new Mutt building. They have also filed another application as per I.A.1/2019 requesting this court to inspect the property in items No.1 and 2 of the plaint schedule. It is stated in the affidavits filed along with the application that the existing building is very old, it has to be demolished and a new building has to be constructed. I have already held that a new body of management shall be constituted for managing the affairs of the Mutt, it may take a decision in this regard. There is no need to pass an order on these applications separately.
24. From the above discussion, I proceed to pass the following order :-
(i) RFA 682/2009 is dismissed.
(ii) RFA 743/2009 is allowed.
(iii) Judgment of the court below is confirmed with the following modifications : -
(a) Items No.1 and 2 of the plaint schedule shall always remain property of Mutt where the ‘Mrittika Brindavana of Sri Raghavendra Swamy’ exists. Even all other items described in items No. 4 to 6 of the plaint schedule shall also belong to the Mutt.
(b) The plaintiff and the defendants 1, 2, 3, 4, 5 and 18 are entitled to perform Pooja at the Mutt on yearly rotation basis. The rotation period shall commence from 1st June of every English calendar month and end on 31st May of the succeeding calendar month. It shall be on the basis of the age of the parties, i.e., the eldest among the seven shall commence the rotation first and the party next in age to the immediate former will take over Pooja and after completion of one year, shall hand over the Pooja right to the other in the descending order of age. Since the eldest among the brothers and sisters, N.R.Govinda Rao is not alive, his legal representatives shall first commence the rotation of Pooja on 1.6.2019.
(c) All the parties having right to perform Pooja shall constitute/form a new body for managing all the affairs of the Mutt – incorporating in the instrument all such clauses as are necessary for effective, proper and smooth management of the Mutt. It is made clear that the party who performs Pooja in a particular rotation cannot claim exclusive right of management of Mutt, it shall always be with the management only .
(d) The plaintiff and the defendants 1, 2, 3, 4, 5 and 18 are each entitled to 1/7th share in item No.3 of the plaint schedule. Preliminary decree is ordered to be drawn in respect of this property only.
(e) I.A.1/2018 and I.A.1/2019 stand disposed of in terms of the observations made in para 23 of this judgment.
There is no order as to costs.
Sd/- JUDGE Ckl/sd/-