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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
N.K. SUDHINDRARAO, J.
SMT. B K PADMAVATHI - APPELLANTS
Vs.
SRI B.K. GANESH - RESPONDENTS
R.F.A.No.1582/2010 C/W R.F.A No.450/2009 IN R.F.A.No.1582/2010
Decided On : 10-10-2019
Hindu Succession Act, 1956 - Section 23 - Suit schedule properties - Claim or to contend regarding joint family - Oral evidence - documentary evidence - Plaintiffs is plaintiff are daughters of Regard being had to the fact plaintiff who is predeceased - Defendant are sons suit schedule properties consisting of ‘A’ schedule (two items) and ‘B’ schedule (6 items) belonged to was working as an Accounts Officer under Central Government - He died leaving behind the plaintiffs 1 to 4 and defendant plaintiff No.5 is son predeceased daughter - Plaintiff entered appearance and filed written statements. Defendants No. 1 and 2 chose to file written statements separately and defendant adopted the written statement filed by defendants– Held, learned counsel for plaintiff would submit question was posed to the PW1 by contesting defendant regarding another item of property was available, for which, PW1 has answered in the affirmative during cross examined - Learned trial Judge though was right in appreciating the demand of the plaintiffs regarding Item No.1 of ‘A’ schedule property and granting 1/8th share to each of the parties erred in not sparing the attention regarding the identity of properties, more particularly, identity of item 2(b) of ‘A’ schedule property, more particularly, when the clue was given by the plaintiff through - Court learned trial Judge erred in respect of recording the finding regarding item No.2(b) of ‘A’ schedule property - Insofar as rest of the finding is concerned – Court concur with the judgment and decree passed by learned trial Judge - RFA No.450/2009 is dismissed – Ordered Accordingly
JUDGMENT :
These two appeals by the plaintiffs as well as by the defendants 2 and 3 are directed against the judgment and decree dated 06/01/2009 passed in O.S.NO.7651/1999 by the learned First Additional City Civil and Sessions Judge, Bangalore City.
2. In order to avoid confusion and overlapping, the parties herein are referred to with their rankings as stood before the trial Court.
3. Suit in O.S.No.7651/1999 was filed by (1) Smt.B.K.Padmavathi; (2) Smt. B.K.Nagalaxmi; (3) Smt. B.K.Gayathri; (4)Smt. B.K.Subbalaxmi and (5) Mr. Tejaswi Raghu, for partition and separate possession of the suit schedule ‘A’ and ‘B’ properties.
Item No.2 of ‘A’ schedule consists of three sites, namely:
(a) Site at Ekalavyanagar – 30’ x 40’;(exact location not known);
(b) Site at Sarvabhoumanagar – 30’ x 40’ (exact location not known)
(c) Site at Krishnarajapuram – 30’ x 40’ two sites (exact location not known)
‘B’ schedule property consists of totally six items of moveable properties, including house hold articles, gold jewelries; silver articles, bank deposits and S.B. Accounts, Chit funds, Shares, Pension Account at Canara bank and valuables;
4. In the suit filed by the plaintiffs, they sought 1/8th share in all the schedule properties for each of them having admitted the said extent of share each for the defendants 1 to 3.
5. The case of the plaintiffs is that, plaintiff Nos.1 to 4 viz., B.K.Padmavathi; B.K.Nagalaxmi; B.K.Gayathri; B.K.Subbalaxmi and one B.K.Nagarathna are the daughters of late B.R.Krishnamurthy Rao. Regard being had to the fact that plaintiff No.5Tejaswi Raghu is the son of Smt. B.K.Nagarathna who is the predeceased daughter of late B.R.Krishnamurthy Rao and since said Nagarathna is dead, the 5th plaintiff Tejaswi Raghu represents her rights in share.
6. The defendant Nos. (1) B.K.Ganesh; (2) B.K.Srinivas and (3) B.K.venkatesh are the sons of the late B.R.Krishnamurthy Rao. The suit schedule properties consisting of ‘A’ schedule (two items) and ‘B’ schedule (6 items) belonged to said B.R.Krishnamurthy Rao who was working as an Accounts Officer under Central Government. He died leaving behind the plaintiffs 1 to 4 and defendant Nos. 1 to 3, whereas, plaintiff No.5 is the son of B.K.Nagarathna, predeceased daughter of B.R.Krishnamurthy Rao.
7. Defendants No.1 to 3 being the siblings of plaintiffs No. 1 to 4 and uncle of plaintiff No.5 entered appearance and filed written statements. Defendants No. 1 and 2 chose to file their written statements separately and defendant No.3 adopted the written statement filed by defendants No. 1 and 2.
8. The substance of the written statements endorses the pleadings of the plaintiffs to a substantial extent as the defendants do not dispute many of the material areas, such as, parental relationship between the plaintiffs and defendants with late B.R.Krishnamurthy Rao, ownership and possession of Item No.1 of ‘A’ schedule properties, the non disposal of the said property by Sri. B.R.Krishnamurthy Rao during his life time. It is not the case of neither of the parties to claim or to contend regarding the joint family or the coparcenery. However, the lis between the parties is in respect of Item No.2 of ‘A’ schedule property which consist of three vacant sites said to have been situated at Ekalavyanagar, Sarvabhoumanagar and Krishnarajapuram respectively is a nonest. Equally, ‘B’ schedule properties. As both item No.2 of ‘A’ schedule property and Item Nos. 1 to 6 of ‘B’ schedule properties according to the defendants never existed much less were under the ownership of their late father Sri.B.R.Krishnamur
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