SRI B P MOHANKUMAR v. B.P.RAMESH

#5. SMT.B.P.DHANALAKSHMI AGED ABOUT 43 YEARS, W/O MAHESH, R/AT BYRAVESHWARNAGAR, JALAHALLI, BENGALURU.

#6. SMT.B.P.NANDINI AGED ABOUT 43 YEARS, W/O LAKSHMIKANTH R/AT 6/A, 2ND MAIN, 3RD CROSS, GROUND FLOOR, BAPUJINAGAR, MYSORE ROAD, BENGALURU-560 026. …RESPONDENTS (BY SRI. R HARINATH, ADVOCATE FOR R1; R2 AND R4 ARE SERVED AND UNREPRESENTED; VIDE ORDER DATED 06.02.2024 NOTICE TO R3 AND R5 IS HELD SUFFICIENT) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.02.2015 PASSED IN O.S NO.6695/2009 ON THE FILE OF THE XXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-39), PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA - 3 - NC: 2024:KHC:37424 RFA No. 737 of 2015 ORAL JUDGMENT Heard Sri Prasanna V.R, learned counsel appellant and Sri R.Harinath, learned counsel for respondent No.1.

#2. Appeal by defendant No.6 in O.S.No.6695/2009 on the file of the XXXVIII Addl. City Civil and Sessions Judge, Bengaluru City, (CCH-39). There were four items of properties which were subject matter of the aforesaid suit, which are culled out hereunder for ready reference and hereinafter referred to as ‘suit properties’. “SCHEDULE PROPERTIES

#1. All that piece and parcel of the vacant house property bearing No.6/3-11 measuring East to West 75 feet and North to South 30 feet situated at Byatarayanapura, Corporation Division No.24, Mysore Road, Bangalore-26 and bounded on: East by : Private property, West by : Vrushabhavathi river, North by : Mayamma’s property, South by : Sharadamma and Mayamma’s property.

#2. All that piece and parcel of the vacant house property bearing No.6/3-11 measuring East to West 33 feet and North to South 66 feet situated at Byatarayanapura, - 4 - NC: 2024:KHC:37424 RFA No. 737 of 2015 Corporation Division No.24, Mysore Road, Bangalore-26 and bounded on: East by : Private property, West by : Sharadamma’s property, North by : Private property, South by : Boramma’s property.

#3. All that piece and parcel of the vacant house property bearing No.6/A measuring East to West 25 feet and North to South 40 feet consisting of ground, first and second floor house building, situated at 3rd Cross, Bapujinagar, Mysore Road, Bangalore-26 and bounded on: East by : House No.5/B, West by : House No.6/B, North by : House No.21/B, South by : Sharadamma and Mayamma’s property.

#4. All that piece and parcel of the vacant house property bearing No.37, measuring East to West 15.6 feet and North to South 27 feet consisting of ground, first and second floor building, situated at 3rd Cross, Bapujinagar, Mysore Road, Bangalore-26 and bounded on: East by : Site No.37/A, West by : Road, North by : Road, South by : Site No.36.

#3. Facts in brief which are utmost necessary for disposal of the present appeal are as under: - 5 - NC: 2024:KHC:37424 RFA No. 737 of 2015 A suit came to be filed by B.P.Ramesh, being one of the children of Sri K.Puttaswamy and Susheelamma, against his mother Susheelamma and his sisters and brothers. Suit properties earlier belonged to K.Puttaswamy and it is his self earning. After the death of K.Puttaswamy on 16.06.2009, property devolved on his legal heirs viz., Susheelamma, being wife, Yamuna, Pushpalatha, Dhanalakshmi, Nandini and Mohan Kumar, being the children, in equal share.

#4. Susheelamma said to have died on 22.10.2009 i.e., soon after institution of the suit for partition by Ramesh on

08.10.2009. Plaintiff sought for his 1/6th share in the suit properties.

#5. Suit on contest came to be decreed and operative portion of the judgment and decree reads as under: “Suit is partly decreed with cost. The plaintiff is entitled for 1/6th share in item Nos.3 and 4 properties by way of partition and for separate possession of his share in the said properties by metes and bounds. The defendants No.2 to 6 are entitled for 1/6th share each in item Nos.3 and 4 properties. - 6 - NC: 2024:KHC:37424 RFA No. 737 of 2015 The plaintiff is entitled for mesne profit i.e., share out of income from item Nos.3 and 4 properties from the date of suit till handing over possession of his share in it. A separate enquiry is to be held to determine quantum of mesne profit payable to the plaintiff. Draw a preliminary decree accordingly.”

#6. Being aggrieved by the same, defendant No.6 is in appeal.

#7. Sri Prasanna V.R. learned counsel for the appellant, reiterating the grounds urged in the appeal memorandum, contends that appellant is aggrieved only with regard to item No.3 of the suit properties, inasmuch as his sisters who are defendant Nos.2 to 5 have executed a registered relinquishment deed in his favour. Therefore, ignoring the same and granting decree in the impugned judgment has resulted in miscarriage of justice and sought for allowing the appeal to that extent.

#8. Per contra, Sri Harinath, learned counsel representing the respondent No.1/plaintiff supports the impugned judgment and - 7 - NC: 2024:KHC:37424 RFA No. 737 of 2015 contends that the sisters executing the relinquishment deed in favour of the appellant/defendant No.6 do not take away the right of the plaintiff in item No.3 as well, and sought for dismissal of the appeal.

#9. Having heard the parties in detail, this Court perused the material on record meticulously.

#10. On such perusal of the material on record, having regard to the dispute which is to be decided in this appeal, the sole point that would arise for consideration is: “Whether the appellant has made out a case that he is the owner of 5/6th share in item No.3 of the suit property?”

#11. In the case on hand, relationship among the parties is not in dispute. So also, there is no dispute that the properties earlier belonged to K.Puttaswamy who died on 16.06.2009. Mother of the parties viz., Susheelamma died on 22.10.2009.

#12. In the absence of any testamentary disposition either by K.Puttaswamy or by Susheelamma, the children who are - 8 - NC: 2024:KHC:37424 RFA No. 737 of 2015 appellant and respondents in the present appeal are entitled to 1/6th share in all the suit properties.

#13. Item Nos.1 and 2 of the suit properties said to have been sold earlier. Therefore, suit came to be dismissed in respect of item Nos.1 and 2.

#14. In respect of item Nos.3 and 4, plaintiff has been granted 1/6th share. Defendant Nos.2 to 6 are also entitled to 1/6th share each as could be seen from the operative portion of the judgment of the Trial Court.

#15. So passing the judgment by the Trial Court granting 1/6th share for defendant Nos.2 to 6 is not in consonance with the material evidence on record inasmuch as the registered relinquishment deed executed by the sisters in favour of the appellant who is defendant No.6 is not taken into consideration by the Trial Court.

#16. Likewise, the relinquishment deed only grants the share of the sisters in favour of defendant No.6 and not the share of the plaintiff. Therefore, a case is made out that appellant should be declared as 5/6th share owner in respect of item - 9 - NC: 2024:KHC:37424 RFA No. 737 of 2015 No.3, in view of the registered relinquishment deed executed by the sisters in his favour.

#17. To that extent, impugned judgment and decree needs modification.

#18. Accordingly, point raised for consideration is answered in the affirmative and the following: (i) (ii) ORDER Appeal is allowed. The decree of the Trial Court in respect of item No.3 is modified as under: “Appellant/defendant No.6 is declared as owner of 5/6th share of item No.3 of suit properties and plaintiff is entitled to 1/6th share in item No.3 of the suit properties.” (iii) It is made clear that rest of the judgment and decree stands unaltered. Sd/- (V SRISHANANDA) JUDGE List No.: 1 Sl No.: 69