IN THE HIGH COURT OF KARNATAKA AT BENGALURU PRESENT THE HON BLE MR. JUSTICE N.KUMAR AND THE HON BLE MR. JUSTICE ARAVIND KUMAR

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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25 TH DAY OF AUGUST 2015 PRESENT THE HON BLE MR. JUSTICE N.KUMAR AND THE HON BLE MR. JUSTICE ARAVIND KUMAR R.F.A.No.1914/2007 c/w R.F.A.No.756/2008 & R.F.A. Crob. No.28/2010 In R.F.A.No.1914/2007: BETWEEN: 1. Sri Madan Raj S/o K.S.Mani, Aged about 40 years 2. Sri Praveen Kumar S/o K.S.Mani, Aged about 34 years Both are r/at No.5, Damodar Mudaliar Street Ulsoor, Bangalore APPELLANTS AND: (By SriT.N. Raghupathy a/w Sri K.Somasekhar Reddy, Advs.) 1. Smt.Parvathi D/o K.G.Keshavan W/o G.Ranganathan Aged about 62 years R/at No.423, MIG, 4 th Link 5 th Main, MKB Nagar

2 - 2 - Vysarpadi, Chennai Smt.V.Emayavalli D/o K.G.Keshavan W/o G.Vaseegaran Aged about 54 years R/at No.20, K.B.Dasan Road Teynampet, Chennai Sri B.Ramadas S/o Late M.Babu, Aged about 56 years R/at No.6/11, SNT Cross Nalla Road, Gupta Layout, Ulsoor, Bangalore Sri G.Gnanasekaran S/o E.Govindaraju Aged about 64 years 5. Sri G.Satish Kumar S/o E.Gnanasekaran, Major Respondent Nos.4 & 5 are r/at No.C-7, Breeze Apartments TNHB Colony, Jayaram Extension Chennai G.Devalatha D/o E.Gnanasekaran Aged about 35 years 7. G.Prathiba D/o E.Govindaraju Aged about 31 years Respondents Nos.6 & 7 are r/at No.12/1, Sathyanarayana Temple Street 5 th Cross, Guptha Layout

3 - 3 - Ulsoor, Bangalore Smt.Vijaya W/o Late K.Shiva K.S.Mani, Aged about 57 years, R/at No.5, Damodaran Mudaliar Street Ulsoor, Bangalore-8... RESPONDENTS (By Sri Vishnu Hegde, Adv. for M/s Lex Scientia for R-1 & 2; Sri A.Y.N.Gupta, Adv. for R-3; Sri Ranga Associates, Adv. for R-4, 6 & 7; R-5 & 8 Served.) This RFA is filed under Section 96 of CPC against the judgment and decree dated passed in O.S.No.6980/1991 on the file of the XXII Addl. City Civil Judge, Bangalore, partly decreeing the suit for partition and separate possession. In R.F.A.No.756/2008: BETWEEN: 1. Smt.R.Parvathi D/o K.G.Kesavan W/o G.Ranganathan Aged about 62 years No.423, MIG, 4 th Links 5 th Main, MKB Nagar Vyshyapadi, Chennai Smt.V.Emayavalli Aged about 54 years, D/o K.G.Kesavan W/o G.Vaseegaran R/at No.20, K.B.Dasan Road Teynampet, Chennai APPELLANTS (By Sri Vishnu Hegde, Adv. for M/s Lex Scientia.)

4 - 4 - AND: 1. Sri K.G.Kesavan (Now dead) S/o Late Govindaraj Pillai No.5, Old No.36 Damodar Mudaliar Street Ulsoor, Bangalore (The 1 st Plaintiff dead & Rep. by Defendant No.1 & Plaintiff Nos.1 & 2) 2. Sri K.Shiva K.S.Mani (Now dead) No.5, Old No.36, Damodar Street, Ulsoor, Bangalore (The Defendant No.1 died Rep. by Defendant Nos.32, 33 & 38.) 3. Sri B.Ramdas S/o Late M.Babu Aged about 61 years No.6/11, SNT Cross Nalla Road Guptha Layout Ulsoor, Bangalore Sri Madanraj S/o K.S.Mani, Aged about 44 years 5. Sri Praveen Kumar S/o S.Mani, Aged about 38 years Respondent Nos.4 & 5 are r/at No.5 Damodaram Mudaliar Street Ulsoor, Bangalore Sri G.Gnashekaran S/o Govindaraj, Aged about 63 years

5 Sri G.Devalatha S/o Gnashekaran Aged about 43 years 8. Sri G.Sathiskumar S/o Gnashekaran Aged about 35 years 9. Smt.G.Prathibha S/o Gnashekaran Aged about 33 years The Respondent Nos.6 to 9 are r/at No.C.7, Breeze Apartment TNHB Colony, Jayaram Extension Chennai Smt.Vijaya W/o Late K.Shiva Subramani Aged about 61 years, No.10, Damodar Mudaliar Street 1 st Cross, Ulsoor, Bangalore Mr.K.Ramachandran S/o Sri Kullakarni, Aged about 59 years, No.39/3, Car Street, Ulsoor, Bangalore Smt.Malini G., W/o P.Prakash Aged about 40 years, No.34, Yellamman Koli Street Ulsoor, Bangalore Mrs.Shilpa W/o Mr.Thivahar Arthur Aged about 33 years, No.339/358, Ground Floor,

6 - 6 - New Thippasandra Main Road, Bangalore Sri Khetha Ram Choyal A., S/o Late Amed Ramji Aged about 30 years, No.338/41, Next To Vijaya Bank New Thippasandra Main Road Bangalore Sri V.Ravi S/o Late Mr.Vasudeva Redy Aged about 48 years No.1, Gurumurthy Street, Ulsoor, Bangalore Sri Anand Nagaraja S/o Nagaraja, Aged about 33 years, No.2363, Sanjeevini Nagar, Sahakarnagar Post, Bangalore Smt.B.Shantha Kumari Aged about 54 years D/o Late Bhaktha Vastsala Naidu No.2, Shivashakthi Nilaya, Damodara Mudaliar Street, Ulsoor, Bangalore RESPONDENTS (By Sri T.N.Raghupathy a/w Sri K.Somashekar Reddy, Advs. for R-4, 5 & 10, Sri A.Y.N.Gupta, Adv. for R-3, Sri N.G.Satish Chander, Adv. for R-6 to 9; R-11, 14 & 15 are Served, Sri Dhananjaya Joshi Associates, Advs. for R-12 & 17; PR & DR Associates, Advs. for R-12 & 13; Sri Chaitanya Hegde, Adv. for R-16.)

7 - 7 - This RFA is filed under Section 96 of CPC against the judgment and decree dated passed in O.S.No.6980/1991 on the file of the XXII Addl. City Civil Judge, Bangalore, partly decreeing the suit for partition and separate possession by holding that the appellants herein are entitled to 1/8 th share each in all the suit schedule items. In R.F.A. Crob. No.28/2010: BETWEEN: 1. Sri Madhan Raj S/o K.S.Mani, Aged about 44 years 2. Sri Praveen Kumar S/o K.S.Mani, Aged about 38 years Both are r/at No.5, Damodar Mudaliar Street Ulsoor, Bangalore CROSS OBJECTORS (By Sri T.N.Raghupathy, a/w Sri Somashekara Reddy, Advs.) AND: 1. Smt.Parvathi D/o K.G.Keshavan W/o G.Ranganathan Aged about 62 years R/at No.423, MIG, 4 th Links 5 th Main, MKB Nagar Vysarpadi, Chennai Smt.V.Emayavalli Aged about 54 years, D/o K.G.Keshavan W/o G.Vaseegaran R/at No.20, K.B.Dasan Road

8 - 8 - Teynampet, Chennai Sri B.Ramadas S/o Late M.Babu Aged about 61 years R/at No.6/11, SNT Cross, Nalla Road, Gupta Layout, Ulsoor, Bangalore Sri G.Gnanasekaran S/o E.Govindaraju Aged about 63 years R/at No.C-7, Breeze Apartments TNHB Colony, Jayaram Extension Chennai G.Devalatha D/o E.Gnanasekaran Aged about 43 years R/at No.C.7, Breeze Apartment, TNHB Colony, Jayaram Extension Chennai Sri G.Satish Kumar S/o E.Gnanasekaran Aged about 35 years R/at No.C-7, Breeze Apartments TNHB Colony, Jayaram Extension Chennai G.Prathiba D/o Gnanashekaran Aged about 33 years R/at No.C-7, Breeze Apartments TNHB Colony, Jayaram Extension Chennai Smt.Vijaya W/o Late K.Shiva K.S.Mani, Aged about 61 years

9 - 9 - R/at No.10, 1 st Cross, Damodaran Mudaliar Street Ulsoor, Bangalore-08...Respondents This RFA Crob. is filed under Order XLI, Rule-22 of CPC, against the judgment and decree dated passed in O.S.No.6980/1991 on the file of the XXII Addl. City Civil Judge, Bangalore, partly decreeing the suit for the partition and separate possession. These RFAs & RFA Crob. coming on for final hearing, this day, N.Kumar J, Delivered the following: J U D G M E N T Defendant Nos.32 and 33 have preferred this Regular First Appeal challenging that portion of the Judgment and decree where the court below declined to grant relief in respect of item No.1, 2 and 3 mentioned in the written statement. Plaintiff No.2 and 3 also have filed an appeal claiming equal share in the schedule properties. Therefore both these appeals are taken up together and disposed of by this common Judgment. 2. For the purpose of convenience, parties are referred to as in the original suit.

10 First plaintiff is the father of plaintiffs 2 and 3. First defendant is the only son of first plaintiff. Defendants 2 to 30 are all tenants in respect of portions of suit schedule property. 31 st defendant is an agreement holder. Defendants 32 and 33 are the sons of first defendant. Defendants 34 to 37 are alienees. 38 th defendant is the wife of first defendant. 4. The case of the plaintiffs is first plaintiff s grandfather late Sri.Kandaswamy Pillai purchased immovable property bearing No.26, Gurumurthy Lane, Ulsoor, Bangalore under a registered sale deed dated Said Sri.Kandaswamy Pillai expired in the year After his death his son Sri.K.Govindaraj Pillai succeeded to the said estate. On his death first defendant inherited the property. First plaintiff father late Sri.Govindaraj Pillai expired in the year During his life time he had acquired the suit schedule properties which are more particularly described in Annexures B, C, D and E. The suit schedule properties are all joint and undivided properties of late Sri.Kandaswamy Pillai and late

11 Sri.Govindaraj Pillai. Plaintiffs and defendant No.1 are the only legal claimants to the suit schedule properties. Therefore they are entitled to 1/4 th share each. Defendants 2 to 30 are all tenants. They are paying rents regularly to the plaintiffs upto 1992 thereafter their relationship strained. The first defendant is collecting rents from defendants 2 to 30. Therefore all the tenants were impleaded. The corporation khatha of schedule properties stands in the name of first plaintiff. He has paid taxes due to the corporation. Though first defendant is collecting the rents he has not paid the corporation taxes. As the first defendant was attempting to alienate the property and create third party interest the plaintiffs were constrained to file suit for partition and separate possession. First plaintiff died during the pendency of the suit leaving behind plaintiffs 2 and 3 and first defendant to succeed to the estate. He executed a Will bequeathing the property in favour of plaintiffs 2 and 3 alone. Therefore they are also entitled to the share of first plaintiff. Therefore they sought for partition

12 and separate possession of their legitimate share in the plaint schedule properties. 5. After service of summons first defendant filed his written statement. He did not dispute the relationship set out in the plaint. He contended that plaintiffs 2 and 3 are the married sisters and that their marriages were performed in the year 1964 and 1973 respectively and they are living in their marital houses. Plaintiff No.1 passed away on Plaintiffs 2 and 3 are not the members of coparcenary. They have no right to maintain the suit nor claim any share in the schedule property. They admit the purchase of `A schedule property by Sri.Kandaswamy Pillai and schedule B, C, D and E properties by Sri.Govindaraj Pillai. They admit that the schedule properties are all coparcenary joint family properties. However they denied the plaintiffs claim for 1/4 th share in all the properties. Then they have referred to the tenants who have vacated the premises and therefore he sought for dismissal of the suit. After plaint was amended they also filed additional written statement denying the execution of the Will set up by

13 plaintiffs in respect of property belonging to first plaintiff. Defendant No.31 has filed written statement setting up his claim for the property which is claimed under agreement of sale dated Defendants 32 and 33 also filed separate written statement reiterating what their father has stated in the written statement. They admit that all the plaint schedule properties are all co-parcenary joint family properties. As plaintiffs 2 and 3 are married daughters they ceased to be members of the joint family and they are not entitled to any share in the joint family properties. They also deny execution of the Will by first plaintiff in favour of plaintiffs 2 and 3. They have specifically pleaded that the grandfather of defendants 32 and 33 Sri.K.G.Keshavan purchased three properties bearing Sy.No.10, 12/1 and 34 (new No.13) situated at Satynarayana Temple Street, 4 th Cross, Ulsoor, Bangalore which are more particularly described to the schedule to written statement and referred to as written statement schedule property in the name of plaintiff No.2 Smt.R.Parvathi and Smt.Hemavathi, the other daughter of Sri.K.G.Keshavan.

14 Property bearing No.10 was purchased in the name of Smt.Parvathi under registered sale deed dated Similarly property bearing No.12/1 was purchased in the name of Smt.Hemavathi under registered sale deed dated The third property bearing No.34 (New No.13) was purchased in the name of Smt.Hemavathi under registered sale deed dated These properties were purchased by late K.G.Keshavan from out of the Joint Family Funds and as such those properties are also required to be included in the plaint schedule as joint family properties. Otherwise, the suit for partial partition is liable to be dismissed. The accounts maintained by Sri.K.G.Keshavan shows that he used to mix up his salary income with the rents collected by him from the suit schedule properties. The salary received by him was not sufficient for the maintenance of the family. The amount given to him for sale consideration was collected in respect of the suit schedule properties. Therefore as the properties were purchased from

15 and out of the Joint family nucleus, they are required to be included at the time of partition. ` 7. On the basis of the aforesaid pleadings, the Trial Court framed the following seven issues: (1) Whether the plaintiffs prove that the suit schedule properties are the joint family properties of the plaintiffs and defendant No.1? (2) Whether they further prove that they are in possession and enjoyment of the suit schedule property along with defendant No.1? (3) Whether the plaintiffs are entitled for partition and separate possession of their legitimate share? (4) Whether the defendant No.1 proves that the suit suffers from non-joinder of necessary parties? (5) Whether there is cause of action to file the suit? (6) Whether the defendant No.1 proves that the suit is not valued properly and court fee paid is not proper?

16 (7) What Decree or Order? 8. The plaintiffs in order to substantiate their claim examined G.Vaseegaran, husband of the 3 rd plaintiff as P.W.1 and they also examined two witnesses K.Mohan and M.Shantha as P.W.2 and P.W.3 respectively. They produced 38 documents, which are marked as Ex.P1 to Ex.P38. On behalf of defendants, one Madan Raj was examined as D.W.1 and B.Ramdas was examined as D.W.2 and they have produced 15 documents, which are marked as Ex.D1 to Ex.D The Trial Court, in the course of evidence, recast the issues as under: (1) Whether the plaintiffs prove that the suit schedule properties are the joint family properties of the plaintiffs and defendant No.1? (2) Whether they further prove that they are in possession and enjoyment of the suit schedule property along with defendant No.1?

17 (3) Whether the plaintiffs are entitled to partition and separate possession of their legitimate share? (4) Whether defendant No.1 proves that the suit suffers from non-joinder of necessary parties? (5) Whether there is cause of action to file the suit? (6) Whether defendant No.1 proves that the suit is not valued properly and court fee paid is not proper? (7) What Order or Decree? Additional Issues: (1) Do the plaintiffs 2 and 3 prove that Will dated executed by plaintiff No.1 in their favour is valid? (2) Do defendants 32 and 33 prove that written statement schedule are the joint family properties as alleged? 10. The Trial Court, on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiffs have proved that the suit schedule properties are

18 the joint family properties of the plaintiffs and defendant No.1. They further proved that they are in possession and enjoyment of the suit schedule property along with defendant No.1. As the plaintiffs 2 and 3 were married daughters on the day the suit was filed, the Court held that the plaintiffs 2 and 3 are entitled to 1/8 th share in each of the suit schedule items. It also held that the suit is also bad for non-joinder of necessary parties. It also recorded a categorical finding that plaintiffs 2 and 3 have failed to prove the due execution of Will dated , said to have been executed by their father, plaintiff No.1. Further, it also held that the written statement schedule properties are not joint family properties as alleged by defendants 32 and 33 and therefore, they are not entitled to any share in the said properties. 11. Aggrieved by the said judgment and decree, the defendants 32 and 33 have preferred this R.F.A. No.1914/2007 challenging the finding of the Trial Court that the written statement schedule properties are not the joint family properties and that they are not entitled to a share

19 therein. The plaintiffs have preferred R.F.A. No.756/2008 challenging the judgment and decree of the Trial Court denying them equal share in all the plaint schedule properties along with their brother the 1 st defendant. 12. The learned counsel for defendants 31 and 32 Sri.T.N.Raghupathy, submitted that the evidence on record clearly establishes that the written statement schedule properties were purchased in the name of the daughters by the 1 st plaintiff out of the joint family nucleus and therefore, it is a joint family property. As the suit is one for partition of the joint family properties, plaintiffs ought to have included the said property as otherwise the suit for partition is liable to be dismissed on the ground that all the properties are not included in the schedule. Therefore, the defendants wanted to include the same adding in the written statement and the Trial Court was not justified in granting a share to them. Even otherwise, he submitted that in view of Section 4(3)(b) of the Benami Transaction (Prohibition) Act, 1988, there is no prohibition for initiation of legal proceedings for securing a share in the property though it stands in the name of the

20 daughters and therefore, he submits that to that extent, the judgment and decree of the Trial Court requires to be setaside and the defendants 1, 32 and 33 are to be given equal share in the said written statement schedule properties. 13. Per contra, the learned counsel appearing for plaintiffs 2 and 3, Sri.Vishnu Hegde, submitted that as there was no partition in the family by way of a registered partition deed in view of the amendment to Section 6 of the Hindu Succession Act, even a married daughter is conferred the status of coparcenor and therefore, she is entitled to equal share in all the plaint schedule properties and therefore, he submits that the decree granting share is to be modified. 14. In fact defendants 31 and 32 have filed crossobjection to the appeal filed by the plaintiffs contending that on the death of Govindaraja Pillai his only son K.G.Keshavan became the sole surviving partner and therefore others have no right in the property.

21 In the light of the aforesaid facts and rival contentions, the points that arise for our consideration are as under: (1) Whether defendant Nos. 1, 32 and 33 are entitled to any share in the written statement schedule properties, which according to them is joint family properties? (2) Whether the plaintiffs 2 and 3 are entitled to equal share with the 1 st defendant in the plaint schedule properties? Point No The facts are not in dispute. There is no partition in the family after the death of Govindaraja Pillai as he died leaving behind K.G.Keshavan, the only son. He became a sole surviving partner. Keshavan had a son by name K.S.Mani, the 1 st defendant, three daughters Parvathi the 2 nd plaintiff, Hemavathi, who is dead and Emayavalli the 3 rd plaintiff. With the birth of a son K.G.Keshavan and K.S.Mani became coparcenors. It is not in dispute that K.G.Keshava was employed in the Bangalore City Corporation. It is also not in dispute that item No.1 of the

22 schedule property has number of tenements, which were given on rent to various tenants and the rents were being collected. Keshavan performed the marriages of the 2 nd plaintiff Parvathi and Hemavathi in the year 1964 and 1973 respectively. After their marriage, he purchased item No.1 of the written statement schedule property in the name of Smt.Parvathi on as per Ex.D1. The consideration for the purchase is from Keshavan as is clear from the recital in the sale deed itself. Similarly, he purchased the second item of the written statement schedule property in the name of his daughter Smt.Hemavathi on as per Ex.D12, for which consideration has flown from Keshavan as is clear from the recitals therein. He also purchased item No.3 of the written statement schedule property in the name of his another daughter Smt.Parvathi. The question for consideration is: When these three properties were purchased by the father in the name of his married daughters, though the consideration has flown from him, can it be said to be a joint family property?

23 It is well settled that though only the male members constitute coparcenary but in the case of joint family, even the daughters are members of the joint family. If any property is purchased in the name of any joint family member, the presumption is that the property belongs to him or her however, it is a rebuttable presumption. The person claiming it to be a joint family property could always adduce evidence to show that there was sufficient joint family nucleus and from the said joint family nucleus, the said property is purchased and notwithstanding the fact that the property stands in the name of any member of the joint family, the said property is treated as a joint family property and all members will get a legitimate share in the said property. Such a member in whose name the property is purchased, should be a member of the joint family. If a property is purchased in the name of a person, who is not a member of the joint family even though the consideration has flown from the joint family funds, the said property cannot be treated as a joint family property.

24 In the instant case, admittedly, Smt.Parvathi and Smt.Hemavathi, the two daughters were got married in the year 1964 and 1973 respectively, by their father K.G.Keshavan. With their marriage, they ceased to be the members of the joint family. It is after their marriage, Keshavan purchased the properties in their names as per Ex.D1, Ex.D2 and Ex.D12. The consideration also has been paid by him. Once properties are purchased in their name, the properties belong to them exclusively. Merely because the father paid the consideration or the consideration was paid out of the joint family funds would not make any difference in law. This is precisely what the Trial Court has held and on that ground, it has declined to grant any relief to defendants 32 and 33. Therefore, we do not find any justification to interfere with the said finding of fact recorded by the Trial Court, which is also in accordance with law. 19. Insofar as the contention that in view of Section 4(3)(b) of the Benami Transactions (Prohibition) Act, 1988, a claim can be put forth in respect of the property standing in the name of a person, who has not paid the consideration is

25 concerned, we do not find any substance. What Section 4(3) of the said Act postulates is, the prohibition contained in sub-section(1) and (2) of Section 4 has no application to a case where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity and the property is held for the benefit of another person, for whom he is a trustee or towards whom he stands in such capacity, then the said prohibition is not attracted. 20. In the instant case, in the written statement filed, there is no whisper about the daughters holding this property as a trustee or standing in a fiduciary capacity as members of the joint family. No evidence is also adduced. Therefore, the Trial Court did not go into the said question. In the facts of this case, we are satisfied that the said provision has no application. No specific plea is taken in the written statement by defendants 32 and 33 and also there is no evidence on record in support of such a case. Point No No doubt there is no registered partition in the family. Section 6 as amended by the Amendment act, 2005

26 conferred right of married daughters and also the status of coparcenors and they are held to be entitled to a share equal to that of the son. The said question was raised before this Court earlier and it is held that such a right is conferred on the married daughters, who are born subsequent to 1956 Act. The said Act is not applicable to persons, who are born prior to the Act, as a right, which is not conferred under the original Act cannot be conferred by way of an amendment of the said Act. Therefore, when admittedly, these two daughters were born prior to 1956 i.e., prior to the coming into force of the Hindu Succession Act, they are not entitled for the benefit of the status of coparcenors and they are not entitled to equal share. By virtue of the amended Section, as their father had died leaving behind a female heir, they are entitled to equal share with the sons in the property to be allotted to the father. Therefore, the Trial Court has rightly granted 1/8 th share to each of the daughters. The order passed by the Trial Court is in accordance with law and do not call for any interference. Hence, for the aforesaid reasons we pass the following order:

27 dismissed. 22. Both the appeals and the cross-objection are No order as to costs. Sd/- JUDGE Sd/- JUDGE SBN/SPS