Skip to content


Smt. Gowramma Vs. Smt. Padmamma - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberRFA 19/2013
Judge
AppellantSmt. Gowramma
RespondentSmt. Padmamma
Excerpt:
1 r in the high court of karnataka at bengaluru dated this the27h day of february2020before the hon'ble mr.justice s. sunil dutt yadav regular first appeal no.19/2013 c/w writ petition no.35239/2013 (gm-cpc) r.f.a. no.19/2013 between : 1.2.3. smt. gowramma, w/o late sri r. nagaraju, 59 years. smt. n. hemavathi, d/o late sri r. nagaraju, 36 years. sri n. umesh, since deceased by his lrs 3(a) smt. sujatha, w/o late sri n. ramesh, 34 years. 3(b) kum. pooja, d/o late sri n. ramesh, 15 years. 3(c) kum. deepika d/o late sri n. ramesh, 10 years. 3(b) & (c) being minors rep. by their natural guardian mother 4. sri n. umesh, s/o late sri r. nagaraju, 32 years. 2 all are r/a no.87/a, old no.13, new no.38, 2nd floor, 2nd cross, 4th main, gandhi nagar, bangalore 560 009. (by sri r.b. sadasivappa,.....
Judgment:

1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE27H DAY OF FEBRUARY2020BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV REGULAR FIRST APPEAL No.19/2013 C/W WRIT PETITION No.35239/2013 (GM-CPC) R.F.A. No.19/2013

BETWEEN :

1.

2.

3. Smt. Gowramma, W/o Late Sri R. Nagaraju, 59 years. Smt. N. Hemavathi, D/o Late Sri R. Nagaraju, 36 years. Sri N. Umesh, Since deceased by his LRs 3(a) Smt. Sujatha, W/o Late Sri N. Ramesh, 34 years. 3(b) Kum. Pooja, D/o Late Sri N. Ramesh, 15 years. 3(c) Kum. Deepika D/o Late Sri N. Ramesh, 10 years. 3(b) & (c) being minors rep. by their natural guardian mother 4. Sri N. Umesh, S/o Late Sri R. Nagaraju, 32 years. 2 All are r/a No.87/A, Old No.13, New No.38, 2nd Floor, 2nd Cross, 4th Main, Gandhi Nagar, Bangalore 560 009. (By Sri R.B. Sadasivappa, Advocate) And:

1. Smt. Padmamma, D/o Late Sri Rangappa, C/o Sri K.N. Ramaiah, 61 years, R/a No.6, 3rd Cross, R.K. Puram, S.C. Road, Gandhi Nagar, Bangalore 560 009. Appellants 2. Smt. Girija, D/o Late Sri Rangappa, 46 years, R/a No.38, 4th Main, 7th A Cross, RPC Layout, Vijayanagar, Bangalore 560 040.

3. M/s. Gokul Promoters Pvt. Ltd., By its Sri M.R.R. Setty, S/o Late Sri Ramasubba Setty, 72 years, R/a No.87/A (Old No.13), New No.38, 4th Main Road, Gandhi Nagar, Bangalore 560 009. Sri M. Manchaiah, S/o Late M. Manche Gowda, 67 years. Sri M. Chandrashekar, S/o Late M. Manche Gowda, 41 years, R/a No.456, M.C. Layout, 3rd Main, 5th Cross, Vijayanagar, Bangalore 560 040.

4. 5.

6. 7.

8. 3 Sri M. Shiva Kumar, S/o Late M. Manche Gowda, 36 years. 4 & 6 are r/a No.73, P.F. Layout, Vijayanagar, Bangalore 560 040. Smt. Rajalakshmi, W/o Sri Shankar, Since deceased by her LRs (a) (b) Sri M.V. Shankar, Fathers name not known to the petitioners, 36 years. Kum. Rumitha, D/o Sri M.V. Shankar, 13 years, Since minor rep. by her natural Guardian father 7(a) & (b) are r/a No.8355, 247, Belli Post, New York 11426, U.S.A. Smt. Jamuna, W/o Sri Basavaraju, D/o Sri Manchaiah, Major, R/a No.J-57, 3rd Cross, R.K. Puram, Gandhi Nagar, Bangalore 560 009.

... RESPONDENTS

[By Sri Shantha Reddy, Advocate for R1, R2, R4, R6 & R8; Sri L.S. Venkatakrishna, Advocate for C/R3; Sri N.V. Vasantha, Advocate for R5; Appeal dismissed as against R7(a)]. 4 This Regular First Appeal is filed under Section 96 of CPC, against the judgment and decree dated 17.10.2012 passed in O.S. No.2201/1995 on the file of XXII-Additional City Civil Judge, Bangalore, dismissing the suit for partition and separate possession. W.P. No.35239/2013 (GM-CPC)

BETWEEN :

1.

2.

3. Smt. Gowramma, W/o Late Sri R. Nagaraju, 59 years. Smt. N. Hemavathi, D/o Late Sri R. Nagaraju, 36 years. Sri N. Umesh, S/o Late Sri R. Nagaraju, 29 years. All are r/a No.87/A, Old No.13, New No.38, 2nd Floor, 2nd Cross, 4th Main, Gandhi Nagar, Bangalore 560 009.

... Petitioner

s (By Sri R.B. Sadasivappa, Advocate) And: M/s. Gokul Promoters Pvt. Ltd., A Company registered under the Companies Act No.3, 4th Cross, Gandhi Nagar, Bangalore 560 009 Rep. by its Managing Director, Sri M.R.R. Setty. (By Sri L.S. Venkatakrishna, Advocate) Respondent 5 This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order dated 12.07.2013 passed by the III Additional City Civil Judge, Bangalore on IA No.9 in O.S. 6249/2005 vide Annexure-A and etc. These R.F.A. and W.P. having been heard and reserved on 10.12.2019 and coming on for pronouncement of judgment, this day, the Court delivered the following: JUDGMENT The present appeal has been filed by the plaintiffs aggrieved by the dismissal of their suit in O.S.No.2201/1995.

2. The parties are referred to by their rank before the trial Court.

3. The plaintiffs who are children of late R. Nagaraju, the son of late L.Rangappa have filed a suit for declaration that they are entitled for partition to an extent of one-fourth share in schedule A property, one-half share each out of schedule B property and one-half share in schedule C property and seek for a decree to put them in possession with respect to their 6 shares. Further, a declaration is sought that sale deed executed by defendant Nos.1 to 4, viz., wife and children of late L.Rangappa in favour of defendant No.5 is not binding on the plaintiffs. The plaintiffs have also sought for an order of permanent injunction to restrain the defendants from interfering with the peaceful possession and occupation of second floor of schedule A property.

4. It is stated that late L.Rangappa had acquired the schedule properties and was residing alongwith his children as a Hindu undivided joint family governed by Mithakshara law. The defendant Nos.1 to 4 who have been arrayed in the suit are the wife and children of late L.Rangappa. Defendant No.5-M/s.Gokul Promoters Pvt. Ltd., represented by Sri M.R.R.Setty is the purchaser of the property transferred by defendant Nos.1 to 4. 7 5. It is stated that said late L.Rangappa alongwith his son R.Nagaraju had constructed schedule A property consisting of ground, first and second floor and while the ground floor has been let out on rent, the second floor was in occupation of the family of late L.Rangappa. The first floor is stated to have been let out on rent to various tenants.

6. Late L. Rangappa had executed a Will on 30.08.1980 bequeathing rights amongst his wife, sons and daughters equally with a condition to share proportionate rent, though without any right to alienate or encumber the properties. It is stated that L.Rangappa had died on 01.10.1983 and thereupon succession to the properties was as prescribed in the Will.

7. It is stated that schedule A property was sold to the tenant, i.e. defendant No.5, who was residing in the ground floor of schedule A property, by sale 8 deeds dated 24.02.1995 and 25.02.1995 executed by defendant Nos.1 to 4.

8. The plaintiffs contending that sale deeds were not binding upon them, as sale transactions were in violation of conditions imposed under the Will insofar as the grandchildren were conferred with rights and the children of late L.Rangappa possessed only limited rights, have sought to set aside the sale deeds.

9. The defendant Nos.1 to 4 have filed their written statement. While admitting that defendant No.1, i.e. wife of late L.Rangappa was collecting the rents after the demise of late L.Rangappa, it was contended that the Will has been rendered inconsequential, as all the legatees under the Will who are the ultimate beneficiaries were entitled to decide as to how the property is to be dealt with and have executed the sale deeds. It is further contended that 9 defendant No.2, who is the father of plaintiff Nos.2 to 4 is entitled to bind the interests of minor children.

10. The defendant No.5 had filed written statement reiterating the contentions of defendant Nos.1 to 4 as made out in the written statement. It is averred that the Khatha has been transferred into the name of defendant No.5 and that notices of attornment have been issued to the tenants in the ground and first floor. It is contended that the Will is not an impediment for the legal representatives of late L.Rangappa to execute the sale deed and that he is a bona fide purchaser for value.

11. The plaintiffs have led evidence through PW1 to PW3 and marked documents as Exhibits-P1 to P9, while the defendants have led evidence through DW1 and marked the documents as Exhibits D1 to D8. 10 12. The trial Court has interpreted the Will and the conditions imposed in the Will and while observing that there is no certainty in vesting of property in favour of any person has held that the beneficiaries of the Will are entitled to enjoy the property without right of any alienation and that conditions in the Will is in violation of the Rule against perpetuity. Accordingly, the trial Court has held that the legal heirs of late L.Rangappa would inherit the property under the law of succession, without reference to the Will, as the Will offends the Rule against perpetuity.

13. The trial Court has negatived the contention of plaintiffs regarding their claim in schedule B property by holding that such right cannot be asserted during the life time of defendant No.2. The trial Court has also rejected the claim with respect to schedule C property consisting of jewellery by holding that no evidence was forthcoming as regards such claim. 11 Against the said judgment and decree of the trial Court, present appeal has been filed.

14. Contentions of the appellants-plaintiffs.- Sri R.B. Sadasivappa, learned counsel appearing for the plaintiffs has contended that defendant Nos.1 to 4 in their written statement have admitted the execution of Will and that further, the trial Court has also recorded a finding that the Will is proved. However, it is contended that the trial Court has not appreciated the tone and tenor of the Will in an appropriate manner by finding that the Will is hit by the principle of Rule against perpetuity, and not endeavouring to save the Will giving due regard to the intention of the testator. It is contended that a reading of the Will in its entirety would reveal that the intention of the testator is that the property is to be enjoyed by the family with a specific rider that the children would not have the right to sell. If it is, that the Will is hit by the prohibition of 12 Rule against perpetuity as contained under Section 114 of the Indian Succession Act, 1925, offending condition ought to have been read down to the extent as provided for under Section 114 of the Indian Succession Act, 1925 and conferment of life interest in favour of the children ought to have been taken note of and validity of the Will ought to have been upheld. Accordingly, it is contended that the plaintiffs who have been conferred life interest are entitled to challenge the alienation by their father in favour of the defendant No.5. The learned counsel for the plaintiffs has further contended that the words vamshaparamparya (succession through successive generations without limiting it) as found in the Will has to be appropriately interpreted and taking note of the principle embodied in Section 83 of the Indian Succession Act, whereby restrictive interpretation to the word vamshaparamparya referred could be assigned. It is 13 contended that while interpreting the Will, if clause is susceptible to two constructions, then that construction which would have the effect of saving the Will would have to be adopted taking note of the principle under Section 84 of the Indian Succession Act. In addition, it is contended that the intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it to the extent possible as per Section 87 of the Indian Succession Act. It is submitted that defendant Nos.1 to 4 except for filing of the written statement have not participated in the proceedings and it is only the purchasers who have led in evidence and who are contesting and that the question as regards the interpretation of Will cannot be raised by strangers to the family.

15. Contentions of the respondents.- Sri L.S.Venkatakrishna, learned counsel appearing for caveator-respondent No.3 contends that 14 the condition in the Will is in breach of the Rule against perpetuity, and a reading of the Will in its entirety would make it clear that right of alienation is not conferred on any of the beneficiary nor is there any vesting of rights in any specific person and the bequest is violative of the Rule against perpetuity, and accordingly, the bequest would fail in its entirety. It is also contended that the Will provides for enjoyment of the property in perpetuity by the members of the family without having any right of alienation and hence such a bequest is bad in law. It is further contended that the Court cannot substitute its interpretation contrary to the intention of the testator by any creative effort to save the Will. It is also contended that the court fee is required to be paid on the basis of market value of the property and as plaintiff No.2 had admitted that the ground and first floor of the schedule property are in possession of 15 defendant No.5 in whose name Khatha was transferred and taxes were being paid, the valuation was required to be made under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1956. It is submitted that the bequest being invalid, the rights have devolved through succession and if that were to be so, the sale deed executed by the legal representatives of late L.Rangappa with respect to his self-acquired property is not open for challenge by way of the present proceedings.

16. Heard learned counsel appearing for the parties. The questions that fall for determination are as follows: (a) Whether the Will executed by late L.Rangappa was a void bequest as being in violation of Rule against perpetuity as contained in Section 114 of the Indian Succession Act, 1925?. 16 (b) Whether the finding that valuation is to be made under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1956, is sustainable?. (c) Whether the plaintiffs are entitled for the relief as regards B and C schedule properties?.

17. The Will executed by late L.Rangappa when read In re.question (a).- in its entirety is unambiguous as regards the intention that rights in the property would not be vested in its entirety at any point of time in an identified person. The following extract in the Will clarifies the above aspect. ...... w gu 0vg t PU v U0q U00v i0V qzP0q CgU00gV CsvPz gv gsg iqvP P Eg. M0z 17 0qg Aiigg DU q v gsg irz C0v g HfvUvPz. English Translation After the death of my wife, my daughters and my son would accept the property in equal shares and would enjoy the same by themselves and their successive generations (vamshaparamparya) and will not have any right of sale. In the event anyone alienates the schedule property, such transaction would not convey any rights. Though it is specifically averred that the wife, daughters and son of the testator were to enjoy the property equally and that the wife was entrusted with the responsibility of collecting the rent and paying property tax, it is unambiguous as per the recitals in the Will that the property could not be alienated nor third party interest could be created. It is further provided expressly that the property would be enjoyed 18 in perpetuity (Vamshaparamparyavagi) by successive generations without absolute vesting of rights in any person at any point of time. It has been reiterated that any sale of the schedule property, if made, would not convey any right. Though the learned counsel for the plaintiffs submits that intention of the testator is to be given effect to as far as possible taking note of Section 87 of the Indian Succession Act and that effort must be made to read down certain clauses so as to render the Will legal and valid, which is the only way to give effect to the intention of the testator, the said contention cannot be accepted. The question of trying to save the Will by reconciling various clauses would not arise in the present case, as the intention of testator is clear and unambiguous. Even the resort to principle of Arm Chair would be impermissible, as the contents of Will admit of no 19 ambiguity. It is clear that the intention of testator was that the property would be enjoyed by the descendants of the children in perpetuity without vesting of property absolutely in any identifiable person. The Rule against perpetuity is enshrined under Section 114 of Indian Succession Act which reads as follows:-

"114. No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life-time of one or more persons living at a testators death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong. In the present case, as there is no vesting of absolute right at any point of time, clearly, the vesting of the thing bequeathed is postponed in perpetuity and accordingly, the bequest itself would be void as being impermissible in light of the mandate of Section 114 of the Indian Succession Act, which provides no bequest 20 is valid, if there is a breach of the prohibition contained. The Rule against perpetuity embodies the principle of public policy and is stated to have taken note of various apprehensions which affect, free trade of property, optimum development of property till vesting occurs and postponement of vesting for large periods of time leading to uncertainty as regards succession amongst the heirs amongst other justifiable causes. The following extract from Mulla on the Transfer of Property Act, 1882 (7th Edition, page

242) throws light on the said objective as follows:-

"the Rule against perpetuity is founded on the general principle of policy guiding judges that the liberty of alienation shall not be exercised to its own destruction and that all contrivances shall be void which tend to create a perpetuity or place property forever out of the reach of the exercise of the power of alienation (Williams Real Property, 24th Ed., p.485). As 21 long as 1732 Jekyll M.R., said that the rule were otherwise the mischief that would arise to the public from estates remaining forever, or for a long time unalienable or untranferable from one hand to another, being a damp to industry, and prejudice to trade, to which may be added the inconvenience and distress that would be brought on families, whose estates are so fettered (Stanley v. Leigh (1732) 2 P.Wms.686). In one of the earliest cases on this principle in Duke of Norfolks case (1682 3 Chancery Cases 1; 22 England Reports

931) where the facts were that: Henry Fredrick (late Earl of Arundel) made a settlement with regard to certain estates to himself for life, then to his wife for life and then, after the death of his wife to the other trustees for 200 years under a Trust with the limitation of the inheritance and included a provision for shifting of titles till many generations later upon happening of certain contingencies, Lord Chancellor Nottingham has held that for most certainly it is a void Limitation to Edward in Tail, and a void Limitation to the 22 other Brothers in Tail. It was further opined that If it tends to a Perpetuity, there needs no more to be said, for the Law has so long laboured against Perpetuities, that it is an undeniable Reason against any Settlement, if it can be found to tend to a Perpetuity. It would not be out of place to note that despite wide spread perception that the Rule of perpetuity is a principle of law propounded and accepted by the English Courts that has been adopted and incorporated in the Indian Succession Act, the Indian Courts as well have accepted this principle. The Privy Council was called upon to consider the same question in the case of Sookhmoy Chunder Dass and Another v. Srimati Monohurri Dasi reported in (1884-85) 12 IA103 The facts of the said case were that the testator who was a Hindu had executed the Will, which provided as follows:-

"23 I do hereby provide that my houses, zemindaris, talooks, and other immoveable properties, and my business of various descriptions, and the capital stock thereof, shall always remain intact as at present, and my heirs, sons, sons sons, and great grandsons, and so on in succession, shall be entitled to enjoy the profits thereof. No one shall be competent to alienate by sale or gift the immovable property, to close any business, to misappropriate the capital stock thereof, or to divide the same. If any one succeeds in doing so, or will do so, it shall be disallowed by the authorities. While incorporating the said Will, the Privy Council has observed as follows:-

"His object appears to have been to create a perpetuity as regards the estate, and to limit, for an indefinite period, the enjoyment of the profits of it, which would not be allowed by Hindu law. 24 Hence the Privy Council had upheld the judgment of the trial and Appellate Courts which was taken up in appeal, holding that Will was contrary to Hindu law. Though the Privy Council has not spelt out principle of Hindu law which had incorporated Rule against perpetuity, said judgment passed in 1885 is one of the earliest judgments upholding the Rule against perpetuity under Indian Law. This principle has been engrafted into Section 114 of the Indian Succession Act, 1925. Whereby the postponement of bequest beyond the life time of persons living at the time of the testators death and upto the minority of a person in existence is a void bequest. It is also relevant that Section 113 of Indian Succession Act also interprets broadly the principle of Rule against perpetuity, as it provides, that in the event of a bequest to a person not in existence at the testators death, subject to prior bequest could be upheld only if the subsequent bequest comprises whole of the remaining interests of the testator in the thing 25 bequeathed. In effect, absolute vesting at some point appears to be the principle as incorporated under Section 113 of the Indian Succession Act which needs to be kept in mind while interpreting Section 114 of the Indian Succession Act also. The intention of the testator as reflected in the bequest, of postponing vesting indefinitely is in violation of the Rule against perpetuity engrafted in Section 114 of the Indian Succession Act and accordingly, the bequest is void and permits of no effort by courts to save the bequest. The bequest being void, the exercise of rights by the children as reflected in Exhibit-P1 cannot be found fault with, as rights have flowed to the sons and daughters of late L.Rangappa as per the rule of succession which right has been asserted by execution of sale deed in favour of defendant No.5. 26 The learned counsel for the plaintiffs has relied on the following judgments, which are considered as hereinbelow:-

"(i) (2010) 7 SCC603- K. Naina Mohamed (dead) Through LRs. v. A.M. Vasudevan Chettiar (dead) Through LRs. and others.- The facts of the case provided conferment of absolute rights in male heirs after the life interest of the sister. The Apex Court conferred a preferential right of preemption upon the male heirs. In the present case on hand, there is no conferment of absolute rights on any beneficiary. (ii) (1991) 1 SCC489- Veerattalingam and Others v. Ramesh and Others.- The Apex Court dealing with the case wherein it was provided that there would be vesting of absolute interests after the great grandson attains majority. However, in the present case, there is no vesting of absolute interest at any point of time. 27 (iii) AIR1970SC1872- R. Kempraj v. M/s. Burton Son and Co. Private Ltd.- The said case dealt with Section 14 of Transfer of Property Act and with respect to option to renew the lease. That was a case under Section 14 of T.P. Act and the considerations in the present case relate directly to the principles under Section 114 of the Indian Succession Act. (iv) AIR1967SC744- Ram Baran Prasad v. Ram Mohit Hazra and others.- This is also case where the rule against perpetuity was sought to be extended to contracts and the Court held that the rule does not apply to personal contract which does not create interest in property. (v) AIR1983AP139- Javvadi Venkata Satyanarayana v. Pyboyina Manikyam and others.- 28 The case relates to vesting of interests to the sons of Gangaraju absolutely on their birth, the Court held that as there was vesting on the birth of beneficiary, i.e. sons of Gangaraju, there was no violation. The factual matrix in the present case is different. (vi) AIR1991ORISSA332- Chetti Balakrishnamma alias Balakrishna v. Chetti Chandrasekhar Rao and others.- This was a case where though the beneficiary was not alive on the death of the testator, but was born during the life time of the testators wife, and on the death of the testators wife, the bequest to the beneficiary was held to be valid as being an exception to the Rule against perpetuity. This would not be applicable in the present case where there is no vesting of absolute interest at any point of time. (vii) AIR1960KERALA54- Punnen Punnen v. Vareky Anna and others.- 29 This was a case where absolute interest was conveyed to the second son of Varkey Punnen and hence, the bequest under the Will was held to be valid. However, in the present case there is no absolute vesting of property and hence, the law laid down is inapplicable. In fact, the Madras High Court in the case of Kaliappan (Died) and others v. A.K.Somasundaram (Died) and others reported in 2012 (6) Mad LJ492 while dealing with a Will, which provided for enjoyment of property for successive generations without power of alienation has held that the Will which provides . Grandsons heir line generation after generation are to enjoy the properties without power of alienation. in male would offend Rule against perpetuity.

18. In re. Question (b) The appellants have also called in question the finding on issue No.11 whereby the trial Court has 30 arrived at a finding that the plaintiffs being strangers to the schedule property could not have claimed the relief during the life time of Class-1 heirs and hence, the relief ought to have been valued under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1956. It has rightly been contended by learned counsel for the plaintiffs-appellants that the valuation of the relief falls within the purview of Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1956. The basis for the claim is that the plaintiffs, who are the wife and children of late R.Nagaraju, one of the sons of late L. Rangappa was that they were entitled to be in joint possession and enjoyment of schedule properties by virtue of the Clause in the Will which provides for succeeding generations of lineal descendants to continue to enjoy in perpetuity the property without enjoying the rights of alienation. If that were to be so, 31 the relief sought for is for demarcation of share of the plaintiffs. Learned counsel for the appellants plaintiffs has relied on judgment of the Apex Court in the case of Jagannath Amin v. Seetharama (Dead) by LRs and Others reported in (2007) 1 SCC694wherein the Apex Court has referred to the observations made in Neelavathi v. N. Natarajan reported in (1980) 2 SCC247and approved the same holding that in case of co-owners, the possession of one is possession in law of all and that for being in joint possession in law, it is not necessary that the plaintiff should be in actual possession. The law laid down would be applicable in the facts of present case also, as the claim of plaintiffs is that they are entitled to be in joint possession, in fact, the plaintiffs are in possession of second floor of schedule A property and admittedly, the defendant 32 No.5 has sought for recovery of possession from the plaintiffs. It is also to be noted that averments in the plaint in suits for partition relating to joint possession are to be accepted. The Division Bench of this Court in the case of Smt. Nanjamma v. Smt. Akkayamma and others reported in (2015) 2 KCCR1437while considering the valuation under Section 35 of the Karnataka Court Fees and Suits Valuation Act, 1956 has reiterated the law laid down by the Apex Court and held, that to hold that the plaintiff is in joint possession, it is not necessary that the plaintiff should be in actual possession nor is it necessary that plaintiff should be getting a share in the income of the property. So long as the plaintiff has right to a share, the law presumes that he is in joint possession. In the present case, in light of possession of the plaintiffs of a portion of schedule A property, the same would entitle the 33 plaintiffs to value the property on the premise that they are in joint possession. It is also to be noted that it is not as if the pleadings are so contrived and made out only to avoid payment of court fee, which if found to be made, could be treated to be a mala fide attempt to avoid payment of court fee. The basis of the case is that plaintiffs are entitled for joint possession in terms of the Will, which is the basis of their claim for partition. Even, the declining of relief to the plaintiffs on merits will not have the effect of holding that the valuation made by the plaintiffs ought to have been made under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1956. In fact, the Division Bench of this Court in Nanjammas case while passing orders on office objections regarding court fee has observed as follows:

17. In view of the declaration of law as above, merely because the Trial court has held that the plaintiff is not in possession and has 34 been excluded from possession, there will be no change in the Court fee payable in the appeal by the plaintiff against the judgment and decree of the Trial Court. The Court fee payable on appeal is the same as the Court fee paid on the plaint in the Court of first instance i.e., in terms of Section 49 of the Act.. Accordingly, the finding of the Court as noted above that plaintiffs were strangers and could not have claimed partition cannot have the effect of holding that valuation made on the premise of their right to joint possession is erroneous. The Division Bench of this Court in the case of B.S.Malleshappa v. Koratagigere B. Shivalingappa and others reported in AIR2001KAR384has held that the payment of court fee will depend on plaint averments alone. Neither the averments in the written statement, nor the evidence nor the final decision would have a bearing on the decision relating to court fee. 35 Accordingly, the finding of the trial Court on issue No.11 is set aside and the valuation made by the plaintiffs is held to be in order.

19. In re. question (c): The assertion by the plaintiffs regarding schedule B property does not contain sufficient evidence to make out a case for the wife and children to seek for partition during the life time of late R.Nagaraju who was defendant No.2 before the trial Court. Whether the schedule B property was ancestral or self-acquired property of late L.Rangappa is neither pleaded nor proved in a legally acceptable manner. The only assertion in the plaint is that the plaintiffs were entitled for a share in schedule B property. The unequivocal stand of the plaintiffs is that schedules A, B and C properties are acquired during the life time of late L. Rangappa as made out in para-2 of the plaint. In the absence of any evidence to demonstrate otherwise the 36 finding of the trial Court that schedule B property was the absolute property of late L. Rangappa does not deserve interference. The trial Court at para-27 has rightly held that the claim of the plaintiffs with respect to schedule B property during the life time of defendant No.2, who was the husband of defendant No.1 and father of plaintiff Nos.2 to 4 is not maintainable, does not merit interference. Insofar as schedule C property is concerned, which are moveable properties, the trial Court has arrived at a finding that no evidence is adduced to prove the existence of schedule C property (moveables in the nature of jewellery), the plaintiffs have not made out any fresh grounds to interfere with the said finding.

20. In re. W.P. No.35239/2013 Writ petition No.35239/2013 was filed by appellant Nos.1, 2 and 4 in R.F.A.No.19/2013 herein assailing the order passed on I.A.No.9 under Section 10 37 read with Section 151 of C.P.C. whereby the trial Court had dismissed the application filed by appellants herein seeking stay of proceedings of O.S.No.6249/2005 till conclusion of R.F.A.No.19/2013 filed by the defendant No.5 herein seeking recovery of possession from the appellants. O.S.No.6249/2005 came to be filed by defendant No.5 seeking recovery of possession of second floor of the property bearing No.13, 2nd Cross Road, Gandhinagar, Bengaluru 560 009, which was stated to be in possession of the plaintiffs who had filed O.S.No.2201/1995. The suit came to filed resting their rights on the basis of sale deed executed in favour of defendant No.5 in the present proceedings. An application viz., I.A. No.9 under Section 10 of C.P.C. came to be filed seeking stay of the proceedings in O.S.No.6249/2005 till disposal of R.F.A. No.19/2013. The plaintiffs in O.S.No.2201/1995 had filed a suit 38 seeking for the relief of partition with respect to the property which was also subject matter of suit in O.S.No.6249/2005. The suit for partition having been dismissed, R.F.A. No.19/2013 was filed. It is contended that, if the plaintiffs in O.S.No.2201/1995 who are appellants in R.F.A. No.19/2013 were to succeed, they would derive rights to the property, the possession of which is sought to be recovered in O.S.No.6249/2005. In light of dismissal of O.S.No.2201/1995 and affirmation of such judgment in R.F.A. No.19/2013, which has been disposed off as above, the proceedings in O.S.No.6249/2005 is to be permitted to be continued and the interim order granted in W.P.No.35239/2013 stands discharged. Accordingly, the case made out for consideration of validity of the order under I.A.No.9 does not survive for adjudication in light of final order passed in R.F.A. No.19/2013 affirming the dismissal of suit in O.S.No.2201/1995. 39 Accordingly, R.F.A. No.19/2013 is disposed off in light of the findings on the points for consideration. Writ Petition No.35239/2013 is disposed off as per the observations made supra. Sd/- JUDGE VGR


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //