N. SATISH KUMAR Vs. D. GOWRAMMA AND ORS.

JUDGEMENT

(1.) This appeal is preferred by the 3rd defendant challenging the judgment and decree passed by the Trial Court decreeing the suit of the plaintiff as prayed for. The 11th respondent in this appeal, who is the purchaser of 'B' schedule property has preferred a cross-objection challenging that portion of the judgment and decree, which affects her interest. Therefore, both the appeal and the cross-objection are taken up for consideration together and disposed of by this common judgment. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

(2.) The case of the plaintiffs is that Sri P. Narasimhaiah alias Appaji Gowda is the owner of the plaint schedule properties. The 1st defendant claims to be the first wife i.e., the legally wedded wife of Sri P. Narasimhaiah. Defendants 2 and 3 are his sons through his first wife. Defendants 5 to 8 are his daughters through his first wife. During the subsistence of the marriage with the first wife, concealing the said fact, he married the 1st plaintiff on 24-11-1967. Plaintiffs 2 to 4, daughters were born to him through the second wife. It is the further case of the plaintiffs that Sri P. Narasimhaiah was carrying on the avocation of Excise Contractor. He had earned the properties both movables and immovables. He had obtained licence at different places of the State like Shimoga, Ranibennur, Chitradurga, Magadi etc. and the 1st plaintiff was residing with him at those places and he was performing his marital obligations with the 1st plaintiff. Sri P. Narasimhaiah, died on 15-5-1979 at C.M.C. Hospital, Vellore, Tamil Nadu. After the death of Sri P. Narasimhaiah, defendants took the control of his properties. Sri P. Narasimhaiah had deposited a sum of Rs. 16,50,000/- in the office of the Deputy Commissioner, Bangalore towards his licensing fee of obtaining contract to deal with excisable items. The 1st defendant by misrepresentation and by practicing fraud obtained the signature of the 1st plaintiff, on a white paper and has utilised the same to claim refund of deposit from the Deputy, Commissioner and thereafter misappropriated the said amount. Plaintiffs have been claiming their legitimate and rightful share in the schedule properties, from the defendants. The defendants are denying the same on some pretext or the other in giving their legitimate share. Till the end of 1992, the defendants were paying about Rs. 5,000/- to Rs. 7,000/- per annum to the plaintiffs in piecemeal manner, by stating that due to crop and rain failure, only such amount has accrued to their share from the agricultural lands. On 13-6-1994 when the plaintiffs demanded 50% as their share, they were abused. Hence, they were constrained to lodge a complaint with the jurisdictional police. The defendants refused to heed to the advice of the Sub-Inspector. Therefore, they were constrained to file the suit for partition and separate possession of their legitimate 1/10th share in all the plaint schedule properties. In the plaint at Schedule 'A', agricultural lands situated at Harohalli Village, Kanakapura Taluk, Bangalore District are set out. In the Schedule 'B', agricultural lands in Kirangere Village, Harohalli Hobli, Kanakapura Taluk, Bangalore District are set out. In Schedule 'C', the residential three storeyed house building built on Site No. 431 bearing name of "Sathyahari Krupa" in 5th Block, 40th Cross, Jayanagar, Bangalore are set out. In Schedule 'D' property, the particulars of a Benz Car and in Schedule 'E', particulars of a Fiat car owned by Sri P. Narasimhaiah is set out. In Schedule 'F', the amount of Rs. 16,50,000/- deposited by late Sri P. Narasimhaiah with the Deputy Commissioner, Bangalore towards excise licencing deposits, which was received by the defendants is set out. The plaintiffs are seeking half share in all the plaint schedule properties and they also sought for mesne profits.

(3.) After service of summons, defendants 1 to 3 filed a detailed written statement. It is denied that Sri P. Narasimhaiah was called Appaji Gowda. They also denied that he earned properties both movables and immovables as set out in the plaint schedules. However, they admit that Sri P. Narasimhaiah was Karnataka State Excise licensed contractor. The 1st defendant's, brother Sri Dasappa was pioneer and bigwig in the field and was supporting all through the life of late Sri P. Narasimhaiah. The 1st defendant was quite affluent, born with silver spoon in her mouth and had brought dowry both in the form of cash and in kind, so that Sri P. Narasimhaiah could amass wealth both movables and immovable properties. They have denied the allegation that Sri P. Narasimhaiah had obtained licence as an Excise Contractor at different places of the State and used to keep the 1st plaintiff at such places, continuously performing his marital obligations with the 1st plaintiff. They contended that the 1st defendant had obtained a succession certificate after the demise of her husband, through the jurisdictional Court by impleading all the family members of the 1st defendant. The said Succession Certificate was obtained about 15 years back. The plaintiffs did not appear and contest the matter. It is after obtaining the Succession Certificate, the amount of Rs. 16,50,000/- was withdrawn from the Excise Department by producing the same. Therefore, the allegation that by misrepresentation and fraud the defendants obtained the signature of the 1st plaintiff and that the amount was withdrawn are false. The plaintiffs are utter strangers to the defendants and they denied in toto that the 1st plaintiff was married to late Sri P. Narasimhaiah and that 2nd, 3rd and 4th plaintiffs were born to him. When they have specifically denied the relationship between the 1st plaintiff and Sri P. Narasimhaiah, the question of traversing the documents produced by the plaintiffs does not arise. Therefore, they sought for dismissal of the suit. They also contended that the suit is hopelessly barred by limitation. The Court has no jurisdiction to entertain the suit. All the schedules mentioned in the plaint are not correct. Some of the properties do not belong to any of the defendants and some are recently purchased by earnings of 2nd and 3rd defendants, who are Doctor and Engineer by profession. In fact the 2nd and 3rd defendants are carrying on business too. Plaintiffs have not approached the Court with clean hands. The 1st defendant is suffering from Myo Cardiac infarction and other maladies of old age. She is unable to take any tension or stress. In the circumstances, the 1st defendant is unable to give proper instructions completely at this juncture. The 2nd and 3rd defendants were minors when their father expired. Hence, the delay in filing the written statement is quite obvious. It is further stated that when the 1st defendant completely recuperates from his ailments, she would reserve her rights to file additional written statements, if need be, in due course, etc.