1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 19th DAY OF APRIL 2013

PRESENT

THE HON’BLE MR. JUSTICE K.SREEDHAR RAO

AND

THE HON’BLE MR.JUSTICE B.V.PINTO

R.F.A.NO.1722/2005 (PAR)

C/W

R.F.A.NOs.1723/2005 & 537/2006 (PAR)

In R.F.A.No.1722/2005:

BETWEEN

1. P B R ANAND

S/O LATE BASAPPA

AGED ABOUT 60 YEARS

NO.17/34, 4TH CROSS

GAVIPURAM EXTENSION

BANGALORE-560 019

SINCE DECEASED, BY HIS LRs.,

1(a) P.R.SHANTA

W/O LATE P B R ANAND

AGED 71 YEARS

1(a) P.R.DINESH

S/O LATE P B R ANAND

AGED 50 YEARS

1(a) CHANDRA PRABHA

D/O LATE P B R ANAND

AGED 47 YEARS

2

ALL ARE R/AT NO.17/34, 4TH CROSS,

GAVIPURAM EXTENSION

BANGALORE-560 019 ... APPELLANTS

(By Sri SANDEEP S PATIL, ADV., FOR M/s.ASHOK HARANAHALLI

ASSTS)

AND

1. P B EKAMBARESHWAR

S/O LATE BASAVAPPA

AGED ABOUT 50 YEARS

R/AT NO.35, RANGA RAO ROAD

SHANKARAPURAM

BANGALORE-560 004

2. P B SHIVAKUMAR

S/O LATE BASAVAPPA

AGED ABOUT 48 YEARS

R/AT NO.35, RANGA RAO ROAD

SHANKARAPURAM

BANGALORE-560 004

3. P B NIRANJAN

S/O LATE BASAVAPPA

AGED ABOUT 44 YEARS

R/AT NO.35, RANGA RAO ROAD

SHANKARAPURAM

BANGALORE-560 004

4. K V AMBIKA

W/O LATE K R REVANNA

MAJOR

R/AT NO.22, GEETHA COLONY

JAYANAGAR 4TH BLOCK

BANGALORE-560 011 ... RESPONDENTS

(BY Sri K K VASANTH, ADV., FOR R1.

R2 TO R4 ARE SERVED)

THIS RFA IS FILED U/S 96(1) OF CPC AGAINST THE

JUDGMENT AND DECREE DT. 18.08.2005 PASSED IN

3

O.S.NO.4988/91 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.1723/2005:

BETWEEN

1. P B R ANAND

S/O LATE BASAPPA

AGED ABOUT 60 YEARS

NO.17/34, 4TH CROSS

GAVIPURAM EXTENSION

BANGALORE-560 019

SINCE DECEASED, BY HIS LRs.,

1(a) P.R.SHANTA

W/O LATE P B R ANAND

AGED 71 YEARS

1(a) P.R.DINESH

S/O LATE P B R ANAND

AGED 50 YEARS

1(a) CHANDRA PRABHA

D/O LATE P B R ANAND

AGED 47 YEARS

ALL ARE R/AT NO.17/34, 4TH CROSS,

GAVIPURAM EXTENSION

BANGALORE-560 019 ... APPELLANTS

(By Sri SANDEEP S PATIL, ADV., FOR M/s.ASHOK HARANAHALLI

ASSTS)

AND

1. Dr P M PRABHUDEV

S/O SRI.MRUTHUNJAYA

AGED AOBUT 34 YEARS

4

R/AT NO.63, BASAPPA LAYOUT

BANGALORE–560 019

2. Smt P S SUNANDAMMA

W/O P B MRUTHUNJAYA

AGED ABOUT 64 YEARS

R/AT NO.63, IV MAIN

GAVIPURAM EXTENSION

BASAPPA LAYOUT

BANGALORE-560 019

3. Smt P M ANITHA

D/O P B MRUTHUNJAYA

AGED ABOUT 64 YEARS

RA/T NO.63, IV MAIN

GAVIPURAM EXTENSION

BASAPPA LAYOUT

BANGALORE–560 019

4. P B EKAMBARESHWAR

S/O LATE BASAVAPPA

AGED ABOUT 50 YEARS

R/AT NO.35, RANGA RAO ROAD

SHANKARAPURAM

BANGALORE–560 004

5. P B SHIVAKUMAR

S/O LATE BASAVAPPA

AGED AOBUT 48 YEARS

R/AT NO.35, RANGA RAO ROAD

SHANKARAPURAM

BANGALORE-560 004

6. P B NIRANJAN

S/O LATE BASAVAPPA

AGED AOBUT 44 YEARS

R/AT NO.35, RANGA RAO ROAD

SHANKARAPURAM

BANGALORE–560 004

5

7. K V AMBIKA

W/O LATE K R REVANNA

MAJOR

R/AT NO.22, GEETHA COLONY

JAYANAGAR 4TH BLOCK

BANGALORE–560 011 ... RESPONDENTS

(BY Sri D L JAGADEESH, ADV., FOR R4-R6;

Sri K.K.VASANTH, ADV., FOR R4

& R1, R2, R3 & R7 ARE SERVED)

THIS RFA IS FILED U/S 96(1) OF CPC AGAINST THE

JUDGMENT AND DECREE DT.18.8.2005 PASSED IN

O.S.NO.3350/91 ON THE FILE OF THE XXII ADDL. CITY CIVIL

JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR

PARTITION AND SEPARATE POSSESSION.

In RFA NO.537/2006:

BETWEEN

1. Sri P B EKAMBARESHWARA

S/O LATE P R BASAVAPPA

AGED ABOUT 64 YEARS

R/AT NO.35, RANGA RAO ROAD

SHANKARAPURAM

BANGALORE-560 004

2. Sri P B SHIVAKUMAR

S/O LATE P.R.BASAVAPPA

AGED ABOUT 62 YEARS

R/AT NO 35, RANGA RAO ROAD

BANGALORE-560 004

3. Sri P B NIRANJAN KUMAR

S/O LATE P.R.BASAVAPPA

AGED ABOUT 58 YEARS

R/AT NO.35, RANGA RAO ROAD

BANGALORE-560 004 ... APPELLANTS

(BY Sri D L JAGADEESH & Sri OMKARESH, ADVs.,)

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AND

1. P B R ANAND

S/O LATE P R BASAVAPPA

AGED ABOUT 74 YEARS

NO.17/34, 4TH CROSS

GAVIPURAM EXTENSION

BANGALORE-560 019

SINCE DECEASED, BY HIS LRs.,

1(a) P.R.SHANTA

W/O LATE P B R ANAND

AGED ABOUT 60 YEARS

1(a) P.R.DINESH

S/O LATE P B R ANAND

AGED ABOUT 45 YEARS

1(a) Smt CHANDRA PRABHA

D/O LATE P B R ANAND

AGED ABOUT 43 YEARS

ALL ARE R/AT NO.17/34, 4TH CROSS

GAVIPURAM EXTENSION

BANGALORE-560 019

2. SMT K V AMBIKA

W/O K.R.VEERANNA

MAJOR

NO.22, GEETHA COLONY

IV BLOCK, JAYANAGAR

BANGALORE-560 011

SINCE DEAD, BY HER LRs.,

2(a) K.V.ESHWAR

S/O K R VEERANNA

AGED ABOUT 60 YEARS

R/O NO.566, 12TH CROSS

8TH MAIN, J P NAGAR

BANGALORE-560 078

7

2(b) K.V.PRABUDEV

S/O K R VEERANNA

AGED ABOUT 58 YEARS

R/O NO.1, 6TH MAIN

12TH CROSS, B T M 2ND STAGE

MICO LAYOUT

POST OFFICE ROAD

BANGALORE-560 076

2(c) K.V.PRAKASH

S/O K R VEERANNA

AGED ABOUT 54 YEARS

R/O NO.135, 19TH CROSS

18TH MAIN, 5TH PHASE

J P NAGAR

BANGALORE-560 078

2(d) K.V.GEETHA

D/O K R VEERANNA

AGED ABOUT 52 YEARS

R/O NO.667, 14TH CROSS

14TH MAIN, NEAR VET SCHOOL

J P NAGAR, 2ND PHASE

BANGALORE-560 078 ... RESPONDENTS

(BY Sri SANDEEP S PATIL, ADV., FOR M/s ASHOK HARANAHALLI

ASSTS. FOR R1.

R2 (a, c & d) SERVICE HELD SUFFICIENT

R2(b) SERVED)

THIS RFA FILED U/S 96 OF CPC AGAINST THE JUDGMENT

AND DECREE DT.18.08.2005 PASSED IN O.S.NO.4988/1991 ON

THE FILE OF THE XXII ADDL.CITY CIVIL JUDGE, BANGALORE,

PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE

POSSESSION.

THESE APPEALS ARE HAVING BEEN HEARD, RESERVED

AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS

DAY, B.V.PINTO J., DELIVERED THE FOLLOWING:-

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JUDGMENT

These three Regular First Appeals are filed

challenging the common Judgment dated 18.8.2005

passed in O.S.Nos.4988/1991 and 3350/1991 by the XXII

Addl. City Civil Judge, Bangalore [hereinafter referred to as

‘trial Court’]. By the impugned Judgment, the trial Court

has held that the plaintiff in O.S.No.3350/1991 is entitled

to 16/189 (1/11.815) share in the suit schedule properties

described in the plaint and property bearing No.34 situated

on 2nd main road, Gavipuram standing in the name of one

P.B.R.Anand, who is the third defendant in the said suit.

Further, the trial Court has decreed O.S.No.4988/1991

filed by P.B.R.Anand holding that he is entitled to 4/21st

share in all the suit schedule properties including property

bearing No.34 situated on 2nd main road, Gavipuram. The

trial Court further declared that defendant No.6 in

O.S.No.3350/1991 is entitled to 4/21st share in all the suit

schedule properties.

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2. RFA No.1722/2005 has been filed by

P.B.R.Anand, who is the plaintiff questioning the Judgment

in O.S.No.4988/1991 and RFA No.1723/2005 is also filed

by him questioning the Judgment in O.S.No.3350/1991.

Whereas, RFA No.537/2006 is filed by defendants No.1 to

3 in O.S.No.4988/1991, challenging the judgment in the

said suit.

3. The aforesaid appeals pertain to partition

between the family of Smt.Neelamma, who is the wife of

one Basavappa, who claims to be the legal heir of

Revanna, the propositus. Neelamma & Basavappa had 5

sons and one daughter. Plaintiff in O.S.No.3350/1991 is

the son of Sri P.B.Mruthyunjaya, who is the son of

Basavappa & Neelamma. It is the case of the plaintiff that

the propositus Revanna died intestate leaving behind the

landed properties comprised in Schedule ‘A’. Basavappa

s/o Revanna, shifted to Bangalore and started his oil

business and acquired ‘B’ & ‘C’ schedule properties out of

his own earnings. He died intestate in 1970 leaving behind

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his wife and 6 children. The oil business was run in the

name and style of ‘P.R.Basavappa & Sons’. The plaintiff

claims that he is entitled to 1/7th share in all the suit

schedule properties comprised in Schedule ‘A’, ‘B’ & ‘C’

properties. However, in the prayer column he has asserted

that he is entitled to 1/6th share in all the suit schedule

properties. ‘A’ schedule property consists 7 agricultural

lands and ‘B’ schedule property consists of 3 landed

properties in the city of Bangalore and ‘C’ schedule

property is the wholesale business in edible oils run at

No.22, New Tharagupet, Bangalore together with goodwill,

stock-in-trade etc.,

4. The defendants in O.S.No.3350/1991 have

contested the aforesaid suit by filing the written statement.

In the meantime, Neelamma died and the other

defendants namely., the sons and daughter of the

aforesaid Neelamma & Basavappa continued in the suit as

defendants No.2 to 7. It is the case of the defendants that

while admitting that the ‘A’ schedule properties are the

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ancestral properties of the defendants, item No.1 of ‘B’

schedule properties was purchased by partnership firm of

M/s P.R.Basavappa & Sons. So also item No.3 of ‘B’

schedule properties was purchased by the husband of

Neelamma. The oil business was carried on separately by

the defendants No.3, 4, 5 and one P.R.Dinesh as partners.

The father of the plaintiff who is arrayed as defendant No.2

executed a Release Deed dated 13.11.1962 after receiving

the money and relinquished his interest in the family

property. Hence, without seeking cancellation of the said

Release Deed, plaintiff could not have maintained the

present suit. It is further stated that item No.3 of ‘B’

schedule property is purchased by the husband of the first

defendant out of the agricultural income. It is submitted

by the first defendant that partition could be claimed only

in respect of ‘A’ schedule properties and item No.3 of ‘B’

schedule properties.

5. Defendant No.3 in O.S.No.3350/1991 filed his

separate written statement contending that their late

12

father Basavappa purchased item No.1 of ‘B’ schedule

property under two separate sale deeds dated 24.12.1954

and 20.9.1957.The Corporation has assigned two numbers

namely., 21 and 22. Item No.2 of ‘B’ schedule properties

was purchased by the firm P.R.Basavappa and Sons under

a Sale Deed dated 6.6.1977 and item No.3 of ‘B’ schedule

property was purchased by late Basavappa from the

income of agricultural lands comprised in ‘A’ schedule

property. This defendant has further denied any share to

the plaintiff in such properties and also in the business of

the firm, which was dissolved in the year 1954. The

premises bearing No.21 was purchased by late Basavappa

and was continued as a proprietory concern and it is run as

a partnership firm independently. However, it is denied

that item No.1 and 2 of ‘B’ schedule properties are joint

family properties since they belong to the firm. It is also

his case that in view of the registered release deed dated

13.12.1962 executed by defendant No.2, who is the father

of the plaintiff, plaintiff has no share in the entire property

either ‘A’ schedule or ‘B’ schedule. It is his specific case

13

that item Nos.1 and 2 of ‘B’ schedule properties and ‘C’

schedule properties belong to the firm and were never

been joint family properties of defendants 2, 4, 5 & 6.

6. While defendant No.5 has admitted the plaint

averments in his separate written statement, defendant

No.6 has also filed a separate written statement supporting

the claim of the plaintiff in respect of ‘A’, ‘B’ & ‘C’ schedule

properties. However, it is the case of defendant No.6 that

P.Basavappa & Sons is a firm started by making use of

joint family nucleus and therefore the income of the said

firm forms part of the joint family property of plaintiff and

defendants.

7. In O.S.No.4988/1991 filed by Smt.Neelamma,

after the death of plaintiff-Neelamma Sri P.B.R.Anand was

transposed as plaintiff No.2. It is the case of the plaintiff

that ‘A’ schedule properties belong to the joint family and

‘B’ schedule properties also forms part of joint family

property. It is her case that item No.2 of ‘B’ schedule

property also forms part of Hindu undivided family

14

property. It is her case that O.S.No.3350/1991 is filed in

collusion with defendants No.3, 4 and P.B.Mruthyunjaya,

who is the father of the plaintiff in the said suit. Plaintiff-

Neelamma has categorically stated that Dr.Prabhudev-

plaintiff in O.S.No.3350/1991 is not at all entitled to any

share in the family properties. Defendant No.2 in the

above suit has filed a separate written statement so also

defendant Nos.3 and 4. While defendant No.2 admits that

P.R.Basavappa & Sons was joint family business and the

alleged partnership firm was formed out of the income of

the joint family funds, properties bearing Nos.21, 22 &

72/1 are also joint family properties. It is also stated by

defendant No.2 that the first defendant had no

independent income of his own and the house claimed by

him was constructed out of the joint family income.

Defendant Nos.3 & 4 admit that ‘A’ & ‘B’ schedule

properties were acquired by late Basavappa and that the

said properties are joint family properties. However, the

claim of defendant No.1 that he had constructed the house

out of his own earnings is denied by these defendants.

15

8. On the basis of the above pleadings, the trial

Court has framed the following issues in

O.S.No.3550/1991:-

1. Whether plaintiff proves that suit

property is the joint family property of himself

and defendants?

2. Whether plaintiff has 1/6th share towards

joint father share consisting of himself, 2nd

defendant and his mother?

3. Whether defendants prove that 2nd

defendant divided under a registered release

deed dated: 13.11.1962?

4. Whether suit is barred by Limitation?

5. Whether suit is bad for non-joinder of

necessary parties?

6. Whether defendants prove that plaintiff

has no right in any of the property of joint

family of late Basappa?

7. Whether plaintiff is entitled for suit relief?

8. What Order or Decree?

16

Additional Issue-1:

Do the defendants prove that the

properties described in Schedule-1 to 4 in the

written statement are also the joint family

properties?

The following issues are framed in

O.S.No.4988/1991.

1. Whether the Plaintiff proves that ‘A’ & ‘B’

Schedule properties are the only properties of

the joint family consisting of plaintiff and the

defendants?

2. Whether the plaintiff proves that her son

P B Mruthunjayappa has released his share in

the joint family properties by a deed of release

dated 13.11.1962 as alleged?

3. Whether the plaintiff proves that the

business carried on by the defendants-1, 2, 3

& one P.R.Dinesh under the name and style as

P R Basavappa and sons in premises No.21, 22

and 72/1 in New Tharagupet, Bangalore is not

the joint family property?

17

4. What is entitlement of P B R Anand

(Plaintiff-2 in O S 4988/91)?

5. Whether the plaintiff proves that the

defendants 2 and 3 are liable to account the

income from the suit properties for the past

three years and pay her share till plaintiff No.2

is put in possession of his share?

6. Is the suit not maintainable as alleged by

the 2nd defendant?

7. What Decree or Order?

9. Since both the suits pertain to the same family

and same property, the trial Court had clubbed the said

suits and common evidence has been recorded. Dr.

P.M.Prabhudev, the plaintiff in O.S.No.3350/1991 has

examined himself as PW.1 but has not produced any

documents in support of his claim. Defendants have

examined 4 witnesses and produced Exs.D1 to D24. The

trial Court after appreciating the evidence has held that the

plaintiff Dr.P.M.Prabhudev is entitled to 16/189 [1/11.815]

share in the suit schedule property described in the plaint

18

and also for the property bearing No.34 situated on II Main

Road, Gavipuram standing in the name of Sri P.B.R.Anand.

Further, the trial Court decreed the suit in

O.S.No.4988/1991 in part holding that plaintiff

P.B.R.Anand is entitled to 4/21st share in all the suit

schedule properties including property bearing No.34

situated on II Main road, Gavipuram and further holding

defendant No.6-Sri P.B.Niranjan in O.S.No.3350/1991 is

also entitled to similar share namely., 4/21 in all the said

properties. Challenging the above decision of the trial

Court, these appeals have been filed.

10. Heard Sri Sandeep S Patil, learned Counsel

appearing for the appellants in RFA Nos.1722/2005 &

1723/2005 and Sri D.L.Jagadeesh, learned Counsel

appearing for the appellants in RFA No.537/2006 and Sri

K.K.Vasanth, learned Counsel appearing for the contesting

R1 in RFA Nos.1722/2005 and R4 in RFA Nos.1723/2005,

Sri D.L.Jagadeesh, learned Counsel appearing for R4 to R6

and Sri Sandeep S.Patil, learned Counsel appearing for R1.

19

11. It is contended by the learned Counsel for the

appellants that the suit filed by the plaintiff in

O.S.No.3350/1991 is not maintainable since the plaintiff in

the said suit is the son of one P.B.Mruthunjaya, who has

separated from the family property by executing a Release

Deed on 13.11.1962. Hence, the trial Court has erred in

decreeing the suit. On the other hand since no efforts have

been made either to cancel or nullify the effect of Release

Deed dated 13.1.1962, the said document is in force and

therefore the trial Court could not have legally decreed the

suit filed by the plaintiff, the same deserves to be

dismissed.

12. So far as the claim in O.S.No.4988/1991 is

concerned, the properties mentioned in the suit schedule

except item Nos.1 and 2 in ‘B’ Schedule and ‘C’ Schedule

properties, the other properties are the joint family

properties of the plaintiff and the defendants. Therefore,

the said suit deserves to be decreed among the plaintiff

and defendants.

20

13. So far as the RFA No.537/2006 is concerned,

the said appeal does not survive in view of the decree

sought in O.S.No.4988/91 among all the family members.

Hence, he submits that while dismissing RFA No.537/2006,

RFA No.1723/2005 may be allowed and decree in

O.S.No.3350/1991 may be set aside and O.S.No.4988/91

may be decreed, declaring that the plaintiff and defendants

No.1 to 4 are entitled to the share in the suit schedule

properties except item Nos.1 and 2 in ‘B’ schedule property

and the business in ‘C’ schedule properties in

O.S.No.3350/1991. It is fu rther submitted by him so far

as the partnership business mentioned in schedule ‘C’ in

O.S.No.3350/1991 is concerned, a suit in

O.S.No.4629/2000 is still pending before the trial Court.

Therefore, the said items of property cannot be part of the

present suit. Hence, he submits that the aforesaid

properties may be excluded from being divided in the suit,

as the same is not the Hindu Undivided Family property.

21

14. Learned Counsel for the respondents on the

other hand submits that it has been elicited from the

evidence of the plaintiff in O.S.No.3350/1991 that his

father Sri Mruthyunjaya was forced to go to the Registrar’s

Office and sign the so called Release Deed and the said

Release Deed has been executed by coercion and force

without the consent of his father and therefore the same

has no force in law and since his father is the brother of

the plaintiff in O.S.No.4988/1991, he is also entitled to an

equal share in the suit schedule property being the son of

late Neelamma. Hence, he submits that the appeals may

be dismissed.

15. After hearing both the parties, the points for

consideration in this appeal are:-

(i) Whether the plaintiff in O.S.No.3350/1991 has

proved that he is entitled to a share in the suit

schedule properties?

(ii) Whether plaintiffs in O.S.No.4988/1991 have

proved that they are entitled to the share in the

22

suit schedule properties being the members of the

Hindu Undivided Family property?

(iii) Whether the defendants have proved that the

items 1 and 2 in ‘B’ Schedule and ‘C’ Schedule are

the properties of the partnership firm viz.,

‘M/s.P.R.Basavappa & Sons’ and are not a part of

the joint family property of plaintiffs and the

defendants?

(iv) What Order?

16. My answers to the above points are:-

(i) Plaintiff in O.S.No.3350/1991 is not entitled

to any share in the suit schedule properties.

(ii) Plaintiff and defendants are entitled to share

in the joint family properties except item

No.2 of ‘B’ schedule property.

(iii) Item Nos.1 & 2 of ‘B’ schedule and ‘C’

schedule in O.S.No.3350/1991 belongs to

the firm ‘M/s.P.R.Basavappa & Sons’ and

are not available for partition.

(iv) As per final order, for the following:-

23

REASONS

17. The plaintiffs have filed the suit seeking for

partition in the ‘A’ suit schedule properties, which

comprises of 7 items of agricultural lands, situated in

Magadi Taluk, Bangalore Rural District.. It is the case of

the plaintiff as well as the defendants that the said

property belongs to late Sri Revanna, who is the father of

Basavappa, husband of Smt. Neelamma. There is

absolutely no dispute regarding these properties being the

ancestral property and hence, the trial Court has also held

that the said property is the Hindu Undivided Family

property available for partition.

18. So far as schedule ‘B’ properties are

concerned, there are three items of properties. The

evidence of DW.1-P.M.Prabhudev is to the effect that his

great grand father late Revanna had acquired the said

properties, who died in the year 1945, he was living in

Magadi Taluk. His grand father late Basavappa succeeded

to the said properties as legal heirs. Late Basavappa

24

moved to Bangalore and he purchased ‘B’ & ‘C’ schedule

properties in Bangalore. His grand father late Basavappa

started oil business in Bangalore in premises bearing

No.22, New Taragupet, Bangalore City and also carried on

the business in the name and style of ‘M/s.P.R.Basavappa

& Sons’, he has stated that these properties are in his joint

possession and enjoyment. However, in the cross-

examination, it is elicited i.e., his father Mruthyunjaya is

the eldest son of P.R.Basavappa and his father is a

Diploma holder in Automobile Engineering and was working

under the State Transport Department. Except his father

none of his uncles were in Government service. The

plaintiff has studied MBBS degree with a Diploma in Child

Health. He also has an American MD. His father died on

15.2.2002. He has stated that he is not aware about the

Release Deed executed by his father on 13.11.1962 and

also he is not aware as to whether his father received

consideration of `5,000/- for relinquishing the interest of

himself and his children in the suit schedule properties.

However, he has admitted that from 1962, his father was

25

living separately along with his wife and children. He has

further admitted that ‘A’ schedule property is in the

possession of P.B.Shivakumar and P.B.Niranjan and they

are cultivating the land. He has not made any enquiry

regarding the income from ‘A’ schedule property from

P.B.Shivakumar and P.B.Niranjan. It is also suggested to

him that the property bearing No.21 in New Taragupet

belongs to the partnership firm and it is not a part of joint

family property. However, item No.3 in ‘B’ schedule

property i.e., property No.35 situated at Ranga Rao Road,

Shankarapuram was purchased by his grand father-

Basavappa. Item No.3 is a residential property. He is not

aware as to the activities carried on in item Nos.1 and 2 of

‘B’ schedule properties nor its assessment etc., and also as

to whether Sri P.B.R.Anand is collecting the rents in

respect of item Nos.1 and 2 of ‘B’ schedule properties. It is

also further suggested to him that house bearing No.34, II

Main Road, Gavipuram and house property bearing

No.448, V Block, Jayanagar, which are shown as item

Nos.1 and 2 in the written statement of defendant No.6 are

26

not the joint family properties. He is also not aware as to

when the same was acquired. However, he admits that Sri

P.B.R.Anand might have purchased the said properties

after he started living separately. He is not aware as to

whether Sri P.B.R.Anand has acquired those properties out

of his individual funds. It is suggested to him that his

father had asked his share in the suit schedule properties

and after receiving consideration, his father has executed a

Release Deed and that he has filed a false suit.

19. DW.1 is the plaintiff in O.S.No.4988/1991. He

has stated before the Court that the suit of the plaintiff-

Dr.P.M.Prabhudev is a false suit and that father of plaintiff

in O.S.No.3350/1991 had severed his relationship from the

family way back in 1962 and executed a Release Deed and

hence the plaintiff in the said suit has no manner of right,

title or interest in the suit schedule properties. He has stated

that defendant No.7-K.V.Ambika is their sister. She is also

entitled to 1/5th share out of the share left behind

by their late father and mother. He has further stated that

27

his father late Basavappa died intestate on 30.9.1970 and

his mother Neelamma died during the pendency of the

suit. After the death of his mother, who had filed

O.S.No.4988/1991, he has been transposed as plaintiff.

His late father has 6 sons and one daughter, out of whom

one Sri P.B.Udaykumar has died without marrying and Sri

P.B.Mruthyunjaya, the eldest son has severed his

relationship with the family by executing a Release Deed.

Hence, himself, three brothers and his sister are entitled to

the share in the suit schedule properties. It is also his

case that item Nos.1 and 2 of schedule ‘B’ and schedule ‘C’

properties in O.S.No.3350/1991 are the properties

belonging to the partnership firm by name

‘M/s.P.R.Basavappa & Sons’ and that the said properties do

not belong to the Hindu Undivided Family. The partnership

firm was re-constituted once on 7.10.1964 and again on

1.4.1988, whereunder himself, P.B.Ekambaram,

P.B.Shivakumar and P.R.Dinesh are the partners. The said

partnership firm by name ‘M/s.P.R.Basavappa & Sons’ has

a separate legal entity and the property belonging to the

28

said firm namely., item Nos.1 and 2 in ‘B’ schedule and the

entire ‘C’ schedule property belongs to the said firm and

not a part of this suit in these proceedings. He further

states that the said properties are subject to another suit

pending before the Court. It is therefore stated by him that

partition is to be effected in respect of ‘A’ schedule

properties as well as item No.3 of ‘B’ schedule properties

namely., property No.35 situated at Shankarapura. He has

further stated that though item Nos.1 and 2 are separately

mentioned in ‘B’ schedule as one property where the oil

business is carried on by the firm, that is not the subject

matter of the suit. Hence, he has requested for a decree

for partition of the family properties available for partition.

20. DW.2-D.Sathyam, has spoken regarding the

business carried on by ‘M/s.P.R.Basavappa & Sons’. He

has stated that he has also entered into an oil business

since 1965 and that Basavappa was carrying on the oil

business in item Nos.1 and 2 of ‘B’ schedule properties

since 1962 according to his knowledge.

29

21. DW.3-C.Rama Mohan is a Chartered

Accountant, who has spoken regarding the business of

‘M/s.P.R.Basavappa & Sons’. It is his evidence that the

partnership firm had acquired commercial building bearing

No.72/1, 3rd Main, New Taragupet, Bangalore. The

business of the said firm has nothing to do with the joint

family property, no part of the profit and loss of the said

firm is credited into any account to the said partnership

firm. In the cross-examination, it is brought out that he

knows the plaintiff family since from the past 10 to 15

years prior to his giving evidence. He knows them

personally.

22. DW.4-Sri P.B.Shivakumar is defendant No.2 in

O.S.No.4988/1991 and he is the brother of the plaintiff. It

is his case that all the properties mentioned in schedule to

O.S.No.3350/1991 are joint family properties including the

oil business of ‘M/s.P.R.Basavappa & Sons’. It is also his

case that the land, wherein, the joint family business is

carried on at No.72/1 also belongs to the joint family

30

property. However, he does not speak about the Release

Deed executed by Mruthyunjaya-father of the plaintiff in

O.S.No.3350/1991. In the cross-examination, he has

admitted that property No.34 at Gavipuram, has not been

mentioned as joint family property, so also, they have not

included property bearing No.408, 8th Main, Jayanagar IV

Block in the joint family property. It is suggested to him

that Mruthyunjaya has executed registered Release Deed

on 13.11.1962. However, he has denied knowledge about

the same. It is further suggested to him that because of

the rift between himself and DW.1-P.B.R.Anand, he has

supported Dr.P.M.Prabhudev in O.S.No.3350/191.

However, he has denied the said suggestion. He has

admitted in the cross-examination that he has not

produced any document to prove that oil business was

started by making use of sale proceeds of joint family

properties at Banasawadi Village. However, he has

admitted that the proprietary concern in respect of oil mill

was converted into a partnership firm w.e.f. 1.7.1964 in

the name and style of ‘M/s.P.R.Basavappa & Sons’. He has

31

further admitted that the partnership firm contains details

about the share of the partners and that no where it

contains any averment that Basavappa had invested the

capital from out of the family property.

23. From the above evidence of the witnesses, it is

clear that the father of the plaintiff in O.S.No.3350/1991

namely., Sri P.B.Mruthyunjaya had executed a Release

Deed dated 13.11.1962 and the said Release Deed is in

force. Further, the said Mruthyunjaya has been paid his

share in the ancestral property as per the document

marked as Ex.D1. Hence, the plaintiff in O.S.No.3350/1991

is not entitled to any share in the suit schedule properties

and hence the suit filed by him deserves to be dismissed.

24. So far as the suit filed by Sri P.B.R.Anand is

concerned, the properties mentioned in ‘A’ schedule and

item No.3 of ‘B’ schedule in O.S.No.3350/1991 are the

only properties, which are available for partition. Whereas

properties are at item Nos.1 and 2 of ‘B’ schedule and

property in ‘C’ schedule are the properties of partnership

32

firm viz., ‘M/s.P.R.Basavappa & Sons’. Therefore, they are

not available for partition. The only property available for

partition is ‘A’ schedule properties containing 7 items of

agricultural lands and item No.3 of ‘B’ schedule properties.

25. So far as the share of each of the parties are

concerned, the succession devolves on the plaintiff and the

defendants after the death of Basavappa. Since

Mruthyunjaya has already taken his share, Neelamma,

Anand, Ekambareshwar, Shivakumar, Niranjan and Ambika

formed part of Hindu Undivided family and each one of

them are entitled to 1/6th share in the suit schedule

property. Since Neelamma is no more, the legal heirs of

Mruthyunjaya, Anand, Ekambareshwar, Shivakumar,

Niranjan and Ambika are entitled to 1/6th share out of 1/6th

share of Neelamma that means 1/36th share in the suit

schedule property. Therefore, the plaitniffs-Anand,

Ekambareshwar, Shivakumar, Niranjan and Ambika are

entitled to 7/36th share each and the legal heirs of

33

Mruthyunjaya are entitled to 1/36th share in the suit

schedule properties.

26. Accordingly, the appeals are partly allowed.

RFA No.1723/2005 is allowed and Judgment and Decree

passed in O.S.No.3350/1991 is hereby set aside. RFA

No.1722/2005 is allowed in part holding that the plaintiff

and defendants 1, 2 and 3 and are entitled to 7/36th share

in the suit schedule property except the properties as

mentioned above and legal heirs of defendant No.1-

Mruthyunjaya in O.S.No.3350/1991 are entitled to 1/36th

share in the suit schedule property.

27. Draw the preliminary decree accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

cp*