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2019 Supreme(Kar) 1426
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.B. PRABHAKARA SASTRY, J.
Sri. Surya Prakash S/o. Late Revanna - Appellants
Versus
Mrs. Renuka Devi D/o. Late Revanna – Respondent
R.F.A. No.420 of 2014
Decided on : 09-12-2019
Advocate Appeared:
For the Appellant :Sri. H.Manjunath, for Sri. Saket Bisani, Advocate
For the Respondent:Sri. Eugene Prabhu B., Advocate
Headnote:
Limitation Act - Article 113 - Indian Succession Act - Section 63 - Payment of Court Fee - Suit schedule property - Whether plaintiff proves that the suit properties are joint family properties liable for partition - Whether plaintiff is entitled for 1/3rd share - Whether Will is false and void - Whether defendants prove that father of plaintiff and defendant executed a Will bequeathing the suit property in favour of D3 who became absolute owners - What order or decree– Held, Suit was for partition alleging that suit properties were Joint Family Properties - As plaintiff had valued them for purpose of jurisdiction valued his share laths and had paid fixed Court Feet defense was that partition had already taken place and hence all properties are not Joint Family Properties and some are acquired by defendants after partition setup - Trial Court accepting defense held that plaintiff was liable to pay adv alarm Court Fee and while dismissing suit had awarded compensatory costs - In appeal filed by plaintiff defendants requested Court to determine Court Fee payable on Memorandum appeals required Section Court Fees Act - It was by Division Bench of this Court that payment of Court Fee has to be determined with reference to plaint averments alone - Court cannot at instance defendant or sue mote convert suit as one Section Court Fees Act - Property being self-acquired property all three children of Ravenna plaintiff defendant being his children are equally entitled for their respective share in suit schedule property – Order accordingly
JUDGMENT :
The defendant Nos.1 and 3 in O.S.No.26928/2009 in the Court of the learned XXVIII Additional City Civil Judge at Mayo Hall Unit, Bangalore (CCCH.29) (hereinafter for brevity referred to as the “Trial Court”) have filed the present appeal challenging the judgment and decree passed in the said suit and dated 06-12-2013.
2. The present respondent No.1 had instituted a suit against the present appellant No.1, respondent No.2 and appellant No.2 arraigning them as defendants No.1, 2 and 3 respectively in the said O.S.No.26928/2009 for the relief of partition and separate possession of plaintiff’s 1/3rd share in the suit schedule property and also to hold that the transactions taken place on the basis of the Will dated 27-05-1985 including the said Will were not binding on the plaintiff.
3. It was the summary of the case of the plaintiff in the Trial Court that, the suit schedule property which is a house property bearing No.3408 measuring 20’X30’ situated at Banashankari II Stage, Bengaluru, was the self-acquired property of her father Sri. Revanna, who is also the father of defendants No.1 and 2 and grandfather of defendant No.3. The suit schedule property was allotted to their father – Sri. Revanna, by the then City Improvement Trust Board (CITB) under a lease-cum-sale agreement dated 03-01-1977. Thereafter, Revanna died leaving behind the plaintiff and defendants 1 and 2 as his legal heirs, who jointly succeeded to the suit schedule property. The defendants No.1 and 3 making a false representation before the Bangalore Development Authority (BDA) which was the successor to the CITB, Bengaluru, that, they are the only legal heirs of Revanna and based upon the alleged Will said to have been executed by Revanna, bequeathing the suit property in favour of the defendant No.3 and dated 27-05-1985, could able to succeed in getting the Sale Deed executed in favour of the defendant No.3 by the BDA on 11-08-2009.
The plaintiff further contended that the defendant No.3 was trying to alienate the suit schedule property and despite requests made by the plaintiff to give her share in the suit schedule property, defendants 1 and 3 refused to give her the share. Stating that her father – Sri. Revanna had never executed any Will, much less the Will dated 27-05-1985, the plaintiff had sought for a decree to declare that, she was entitled for 1/3rd share in the suit schedule property by holding that the transactions taken place based on the false and void Will dated 27-05-1985 are not binding on the plaintiff and for other reliefs.
4. In response to the suit summons, it is only Defendants No.1 and 3 who filed their Written Statement in the Trial Court. In their Written Statement, Defendants 1 and 3, though admitted that, the deceased Revanna is the father of plaintiff, defendant No.1 and defendant No. 2, they denied that deceased Revanna died intestate. They contended that the deceased Revanna had executed a Will on 27-05-1985, bequeathing the suit schedule property in favour of the defendant No.3, as such, after the death of Sri. Revanna, defendant No.3 became the absolute owner of the suit schedule property. Later, the said Defendant No.3 bringing to the notice of BDA about the Will of the deceased Revanna, got executed the Sale Deed in his favour. As such, defendant No.3 has become the absolute owner in possession of the suit schedule property. They denied that after the death of Revanna, the plaintiff and defendants jointly succeeded to the suit schedule property.
5. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:
“[1] Whether the plaintiff proves that the suit properties are the joint family properties liable for partition?
[2] Whether the plaintiff is entitled for 1/3rd share?
[3] Whether the Will dated 27-05-1985 is false and void?
[4] Whether defendants prove that father of plaintiff and defendant No.1 and 2 executed a Will on 27-05-1985 bequeathing the suit property in favour of D3,
