SMT.UMA RAMAIAH v. SMT.SARASWATHI GOPINATH

The plaintiffs filed a suit seeking a decree of partition by metes and bounds and for separate possession of the plaintiffs' 17/24th share in the suit schedule property, by holding that the alleged Will dated 03.03.1956 is not binding on the plaintiffs. Further prayer was made for granting mandatory injunction to render accounts, to pay money after reconciling the accounts, to deposit the rents in respect of the schedule property before the Court, prohibitory injunction for restraining the defendants from alienating, altering, encumbering or - 4 - RFA No. 254 of 2013 creating any third party rights in respect of the suit schedule property and for award of costs of the suit. The suit schedule property is described as follows: “SCHEDULE PROPERTY All that piece and parcel of the Immovable property bearing Municipal No.495, situated at Jamma Masjid Road also called as Old Poor House Road, Bangalore within the limits of Ward No.79 of Bangalore Mahanagara Palike, Bangalore, comprising of site dimension as per the Sketch and in all measuring 735.4 Sq.,mts., in area and is bounded on:- East By : Private Property West By : O.P.H. Road North By : Private Property, and South By : private Property. Comprising of Multi Storied commercial building containing tenements used for Restaurants and lodging.”

4. The plaint case to the extent it is relevant for purpose of decision of the instant appeal is as follows: That plaintiff Nos.1 to 4 are the children of late Sri B.R.Ram, son of late B.C.Ramalingam. Plaintiff Nos.1 and 2 are stated to be unmarried. The said Sri B.R.Ram had a son by the name of Sri Gopinath, who had died leaving behind him defendant Nos.1 to 3 as his heirs. The said Sri B.R.Ram had one more daughter by the name of Smt.Shara Subbu, who expired on 13.02.2002, leaving behind her husband- plaintiff No.5. It was stated that late Sri B.C.Ramalingam had acquired - 5 - RFA No. 254 of 2013 an immovable property bearing No.495, Old Poor House Road, also called as Jamma Masjid Road, Bangalore, which is the suit schedule property through a registered partition deed dated

04.07.1940. Sri B.C.Ramalingam died intestate, leaving behind his only son Sri.B.R.Ram. Sri B.R.Ram inherited the suit schedule property and he died intestate on 30.09.2001 leaving behind the plaintiffs and the defendants as heirs in respect of the properties.

5. It is stated that the suit schedule property had been let out during lifetime of Sri B.R.Ram to one Sri V.Ramamurthy for a period of thirty seven years. It is stated that the scheduled property is occupied by the tenant whose leasehold right would expire on 31.12.2010. It is stated that the suit schedule property continues to be in the lawful and joint possession of the plaintiffs and the defendants as on that date.

6. It is stated that plaintiff Nos.1 and 2 filed a suit bearing O.S.No.9264/1997 which is pending in the file of the City Civil Judge, Bangalore (CCH-07) against their father and defendant Nos.1 and 2 herein for the relief of partition of another immovable property in respect of which the defendants contended that there existed a settlement deed; that for the - 6 - RFA No. 254 of 2013 relief of partition in O.S.No.9264/1997, plaintiff Nos.1 and 2 had not included the suit schedule property as they were made to believe that during subsistency of the leasehold rights, the property cannot be partitioned; that during the year 2000, the father of the plaintiffs filed a suit for partition in respect of the suit schedule property, bearing O.S.No.990/2000 against plaintiff Nos.1 to 4 with the deceased daughter Smt. Sharasubbu, and against defendant Nos.1 and 2 seeking partition of the suit schedule property. The said suit came to be dismissed on 18.08.2005 for not taking steps to bring the legal representatives of the deceased plaintiff therein on record.

7. In paragraph 11 of the plaint, it is stated that the cause of action to file the suit arose when the suit schedule property devolved on the father of plaintiff Nos.1 to 4 during the year 1957 and the father of plaintiff Nos.1 to 4 filed O.S.No.990/2000 in the year 2000 for partition of the suit schedule property; when their father Sri B.R.Ram died intestate on 30.09.2001; on 18.08.2005 when O.S.No.990/2000 was dismissed for not taking steps to bring the legal representatives of Sri B.R.Ram on record and on all subsequent dates when defendant Nos.1 to 3 have failed to concur with the plaintiff's demand for partitioning the scheduled property. - 7 - RFA No. 254 of 2013

8. A written statement was filed by the defendants- respondents which was amended. It is stated therein that in O.S.No.9264/1997, which was filed for an identical relief of partition, the plaintiffs had specifically stated that the cause of action accrued to them on 11.11.1997, and even according to that, the present suit filed after a long lapse of nine years, is barred by limitation. It is stated that even otherwise, the plaintiffs have, in paragraph No.11 of the plaint, alleged that the cause of action arose on 30.09.2001, when their father Sri B.R.Ram died and from that date also, the suit is not within time, as such, it deserves to be dismissed on the ground of limitation.

9. In the written statement, is stated O.S.No.990/2000 which was filed by their father was dismissed on 18.08.2005 for not taking steps to bring the legal representatives on record and therefore, the present suit is not maintainable under Order XXII Rule 9 of CPC.

10. It is also stated, inter alia, that in 1958 the husband of defendant No.1, got the khata of the suit schedule property made in his name when his grandfather Sri B.C.Ramalingam died and ever since then was exclusively enjoying the same as absolute owner of the property, continuously adverse to the - 8 - RFA No. 254 of 2013 interest of the plaintiffs to their knowledge which had the effect of repudiating their rights, paying the municipal taxes till

11.06.1987 when he died and thereafter, his wife Smt. Saraswati Gopinath continues to enjoy the suit schedule property as absolute owner, adverse to the interest of the plaintiffs to their knowledge, paying municipal taxes and got the khata made in her name on 17.07.1989.

11. It is stated that it is false to say that suit property was leased out by Sri B.R.Ram as the karta of the family. Sri Gopinath claimed to be the owner on the basis of the Will dated 03.03.1956 made by Sri B.C.Ramalingam in favour of his only grandson Sri Gopinath. Since Sri Gopinath was the owner of the schedule property and a high ranking personnel in the Defence Sector and was working at a far off place, he had executed a Power of Attorney in favour of his father Sri B.R.Ram to manage the schedule property and on the strength of the same, Sri B.R.Ram leased the schedule property on behalf of his son and was managing it. It is stated that the plaintiffs were aware of the legal position at the time of filing of O.S.No.9264/1997.

12. The point for determination that arises in this appeal is “whether the suit is barred by limitation?”. - 9 - RFA No. 254 of 2013

13. By an order dated 22.09.2011, it was held by the trial Court that recording of khata in the name of anybody would not result in denial of title or right of the real holder. It was observed that there is no plea raised by the defendants that plaintiffs were at any time ousted from suit property. It was held that Article 113 of the Schedule to the Limitation Act would apply in the case. There being no denial of title of the plaintiffs, the suit was held to be well within time and the plaintiffs got the right to sue only on the death of Sri B.C.Ram on 30.09.2001.

14. Against the aforesaid order dated 22.09.2011, C.R.P.No.282/2011 was filed before this Court which came to be allowed by means of an order dated 16.04.2012 whereby the order of the trial Court dated 22.09.2011 was set aside and the matter was remanded to the trial Court reconsideration in accordance with law, leaving all contentions of both parties open.

15. It is thereafter, after remand, that the impugned order dated 07.11.2012 came to be passed. Issue No.11 being “whether the suit is barred by time?” which was answered in the affirmative by the trial Court. It was noted that the plaintiffs admitted the earlier proceedings in O.S.No.9264/1997 - 10 - RFA No. 254 of 2013 filed by plaintiff Nos.1 and 2 herein against their father Sri B.R.Ram as well as defendant Nos.1 and 2 herein seeking partition in which the present suit property was not included. It was also not disputed by the plaintiffs that their father in the year 2000 had filed a suit for partition in O.S.No.990/2000 against plaintiff Nos.1 to 4 herein and his daughter Smt.Shara Subbu as well as defendant Nos.1 and 2 herein and that the father of the plaintiffs died during pendency of the suit and the suit came to be dismissed on 18.08.2005. It is stated in the order that it is also not in dispute that defendant Nos.1 and 2 in the said suit of O.S.No.990/2000 had set up the Will dated

03.03.1956 in their written statement whereby the suit property was bequeathed by Sri B.C.Ramalingam in favour of his grandson Sri Gopinath. It was held that therefore the plaintiffs were very much aware of denial of their title by these defendants over the suit schedule property. It was further noted that in paragraph 11 of the plaint wherein the cause of action is shown by the plaintiffs, they had stated that the cause of action arose on 30.09.2001 when their father Sri B.R.Ram died and since infringement continued even after Sri B.R.Ram's demise, as such, the present suit was filed on 27.07.2006. The suit in O.S.No.990/2000 came to be abated in the month of - 11 - RFA No. 254 of 2013 February 2002 itself, after the death of Sri B.R.Ram on

30.09.2001 during pendency of the suit. It was further noted that even in the prayer made, the plaintiffs have prayed for decree of partition by metes and bound and sought for declaration to hold that the alleged Will dated 03.03.1956 is not binding on them.

16. Therefore, the conclusion was drawn that the suit filed by the plaintiffs is barred by time. It was held that the plaintiffs have slept over the matter much after abatement till the year 2006 when they filed the present suit long after the expiry of three years from the date of accrual of the cause of action. Therefore under Article 113 of the Limitation Act, 1963, the plaintiff should have filed the suit within three years from the date of accrual of cause of action which was not done by them. Accordingly, it was ordered that the suit is barred by time and the suit was dismissed.

17. The appellants have relied upon the judgment of a Co-ordinate Bench of this Court in S.K.Lakshminarasappa, since deceased by his L.Rs., vs. Sri B.Rudraiah and others1 to contend that for a suit for partition filed by co-sharers and coparceners, no period of limitation is prescribed for filing of 1 ILR 2012 KAR 4129 - 12 - RFA No. 254 of 2013 such a suit and another judgment in the case of K.Laxmanan v. Thekkayil Padmini2.

18. On the other hand, learned Counsel for the respondents have relied upon the judgment in Krishna Pillai Rajasekharan v. Padmanabha Pillai3 to contend that the Supreme Court has held that where the suit for partition is primarily and predominantly filed for that relief and the relief of redemption being sought for only pursuant to the direction made by the High Court in its order of remand, the limitation for the suit would be governed by Article 120 of the Limitation Act, 1908. It is contented that Article 120 of Limitation Act, 1908 is pari materia Article 113 of Limitation Act, 1963. It is contented that in the said judgment, it is also held that the starting point of limitation for a suit of partition is when the plaintiff has notice of his entitlement to partition being denied. Further, a three-judge bench decision of the Supreme Court in Shakti Bhog Food Industries Ltd. v. Central Bank of India4 is relied on to contend that if the limitation for filing a suit is not covered by any specific Article of the Limitation Act, 1963, then it would fall within the residuary Article 113.