IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA REGULAR FIRST APPEAL NO.100/2013(PAR) BETWEEN:
1. SRI. EDWARD GNANA SEKARAN, AGED ABOUT 56 YEARS, S/O LATE SWAMIDAS, R/O NO.214, 4TH CROSS, GANDHIPURA, HAGADUR DHAKLE, WHITEFIELD POST, BANGALORE-560066.
2. SMT. J. PREMA, AGED ABOUT 41 YEARS, W/O EDWARD GNANA SEKARAN, R/O NO.214, 4TH CROSS, GANDHIPURA, HAGADUR DHAKLE, WHITEFIELD POST, BANGALORE-560066.
(BY SRI N. KRISHNA KISHOR, ADVOCATE) AND:
SRI. CHRISTI VIJAYAKUMAR, AGED ABOUT 35 YEARS, S/O EDWARD GNANA SEKARAN, ... APPELLANTS R/O NO.496, 3RD CROSS, WHITEFIELD, BANGALORE 560 066.
(BY SRI KUMARA L., ADVOCATE FOR C/R) ***** ... RESPONDENT THIS RFA IS FILED UNDER ORDER 41, RULE-1, READ WITH SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED: 17.12.2011 PASSED IN O.S.NO.67/2009 ON THE FILE OF THE II-ADDITIONAL DISTRICT JUDGE AND IN CHARGE JUDGE, FAST TRACK COURT-I, BANGALORE RURAL DISTRICT, BANGALORE, DECREEING THE SUIT FOR PARTITION.
THIS RFA COMING UP FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING.
J U D G M E N T The defendants filed the present appeal against the Judgment & Decree dated 17.12.2011 made in O.S. No.67/2009 on the file of the Fast Track Court-I, Bangalore Rural district, Bangalore decreeing the suit filed by the respondent – plaintiff for partition awarding 1/4th share in the suit schedule property to the plaintiff by metes and bounds etc., 2. The respondent/plaintiff filed O.S. NO.67/2009 for partition and separate possession in respect of the suit schedule property contending that the plaintiff and the defendants are members of the joint family and the suit schedule property is the joint family property of the plaintiff and the defendants and there was no partition in the joint family. It was further contended that the plaintiff requested legal share, but the defendants were not worried to give the legal share of the plaintiff. The 2nd defendant with the help of the 1st defendant tried to alienate/transfer the suit schedule property to the 3rd party without giving share to the plaintiff etc., and therefore filed the suit.
3. The defendants filed the written statement and admitted the relationship of the parties stated in paragraph-
3 of the plaint and denied the remaining averments and contended that the suit schedule property is the self acquired property of the 1st defendant and the 1st defendant has got every right to alienate the property in the name of anyone he likes and no one can question the same. He further contended that the plaintiff was a major when his mother – Mary Lilly expired in the year 2000 and the present suit property was purchased by the 2nd defendant in the year 2004 and the plaintiff cannot claim partition of the property of the 2nd defendant – step mother and that too during the life time of the defendants etc. and prays for dismissal of the suit.
4. Based on the pleadings, the trial Court framed the following issues:
1. Whether the plaintiff prove that he has got legal right to seek partition and separate possession in respect to suit schedule property as alleged in the plaint?
2. Whether the defendants prove that suit schedule property is the self acquired property of defendants, hence plaintiff is not entitled for the relief of partition as alleged in the written statement?
3. Whether the defendants prove that court fee paid by the plaintiff is incorrect and insufficient as alleged in the written statement?
4. Whether plaintiffs are entitle for the reliefs sought?
5. What decree or order?
5. In order to establish the plaintiff’s case, the plaintiff examined himself as PW.1 and stated on oath that he is the son of the 1st defendant and Mary Lily (1st wife of defendant no.1). The suit schedule property was purchased in the name of the 1st defendant and it is the joint family property of the plaintiff and the defendants and his mother died on 12.9.2000. It was further stated on oath that the 1st defendant to escape from the situation, without the knowledge of the plaintiff has sold the suit property to the defendant no.2 on 8.6.2004 by way of registered sale deed and subsequently the 2nd defendant is trying to alienate the suit schedule property with the help of the defendant no.1; The plaintiff is entitled to share in the suit schedule property which is the joint family property of the plaintiff and the defendants. The plaintiff produced genealogical tree – Ex.P1. The defendants have not cross-examined PW.1 nor adduced any evidence.
6. The trial Court considering the pleadings of both the parties and the evidence and Ex.P1 – genealogical tree has recorded a finding that the plaintiff proved that he has got legal right to seek partition and separate possession in respect of the suit schedule property morefully described in the plaint; the defendants failed to prove that the suit schedule property is the self acquired property of the defendants and hence the plaintiff is entitled to the relief of partition; the defendants failed to prove that the Court fee paid by the plaintiff is incorrect and insufficient as alleged in the written statement; and the plaintiff is entitled to 1/4th share in the suit schedule property. Accordingly, the suit came to be decreed by the impugned judgment & decree dated 17.12.2011. Hence the present Regular First Appeal was filed.
7. I have heard the learned counsel for the appellants.
None appears for the respondent/caveator.
8. Sri N. Krishna Kishor, learned counsel for the appellants - defendants vehemently contended that the impugned Judgment & Decree passed by the trial Court granting 1/4th share to the plaintiff is erroneous and contrary to the material on record. He further contended that the plaintiff is not entitled to share being the son of the 1st wife of defendant No.1 and except genealogical tree, the plaintiff has not produced any documents and therefore he is not entitled to any share. The Court below failed to afford an opportunity to the appellants to putforth their pleadings and the impugned judgment passed by the trial Court is without any basis. Therefore he sought to set aside the impugned Judgment & Decree passed by the Court below by allowing the present appeal.
9. In view of the aforesaid contentions raised by learned counsel for the appellants, the only point that arises for consideration in the present Regular First Appeal is:
Whether the trial Court is justified in granting 1/4th share in the suit schedule property to the plaintiff in the facts and circumstances of the present case ?
10. I have given my anxious consideration to the arguments advanced by the learned counsel for the appellants and perused the entire material on record carefully. It is the specific case of the respondent - plaintiff before the trial Court that the suit schedule property belongs to the joint family of the plaintiff and the defendants and there was no partition in the joint family. The defendants filed the written statement and admitted the relationship of the parties, but denied that suit schedule property is the joint family property and according to the defendants, it is a self acquired property of the defendants. The plaintiff examined himself as PW.1. While reiterating the plaint averments in examination-in-chief, PW.1 categorically stated on oath that the plaintiff and the defendants are members of the joint family and the suit schedule property is the joint family property and there was no partition in the joint family property.
11. The defendants though have taken the specific defence in the written statement that suit schedule property is their self acquired property, they have not cross- examined the plaintiff and no contra material is produced before the Court to disprove the contentions of the plaintiff. Having admitted the relationship of the plaintiff and the defendants and not proved that the suit schedule property is a self acquired property of the defendants, the trial Court proceeded to decide the suit holding that inspite of sufficient opportunities, the defendants did not come forward to cross-examine PW.1 and rebut the evidence of PW.1. Learned counsel for the plaintiff has relied upon the evidence of PW.1 and the document Ex.P1 – genealogical tree. PW.1 reiterated on oath the averments made in the plaint. Ex.P1 – genealogical tree reflect the genealogy of the family of the plaintiff and the defendants. The evidence of PW.1 coupled with the referred documents establish that plaintiff is the son of defendant No.1 born to Mary Lillly, who was the 1st wife of defendant No.1. The evidence of PW.1 coupled with the documents establish that there was no partition among the plaintiff and the defendants and the plaintiff has got legal right to seek partition and separate possession in respect of the suit schedule property.
12. The evidence of PW.1 remained unrebutted and the defendants not adduced any evidence. Though heavy burden lies on the defendants to prove issue Nos.2 and 3, they have not entered the witness box and rebutted the case of the plaintiff and the evidence of PW.1 and Ex.P1. Therefore the trial Court rightly come to the conclusion that the defendants failed to prove that the suit schedule property is the self acquired property of the defendants and the defendants failed to prove that the plaintiff paid insufficient court fee. Accordingly, the trial Court decreed the suit with costs holding that the plaintiff is entitled to 1/4th share in the suit schedule property by metes and bounds.
13. The records clearly depict that the relationship of the parties is not in dispute. Though the defendants have taken specific defence in the written statement that the suit schedule property is their self acquired property, they have not adduced or produced any oral or documentary evidence in support of their defence. Thus the defendants failed to prove that the suit schedule property is their self acquired property. In the absence of any contra material except the defence in the written statement, the trial Court has no option except to accept Ex.P1 – genealogical tree and the evidence of the plaintiff. Accordingly, the trial Court on the basis of the evidence of plaintiff and Ex.P1 – genealogical tree has rightly decreed the suit.
14. In view of the aforesaid reasons, the point raised in the present appeal has to be answered in the affirmative holding that the trial court is justified in granting 1/4th share in the suit schedule property to the plaintiff in the facts and circumstances of the case. The same is in accordance with law. The appellants have not made out any ground to interfere with the impugned Judgment & Order passed by the trial Court exercising the powers under the provisions of Section 96 of Code of Civil Procedure.
Accordingly, the appeal is dismissed.
Sd/- JUDGE Gss/-