K. S. RAMESH Vs. K. S. RANGASWAMY

JUDGEMENT

(1.) The appeal in R.F.A.No.1676/2019 is preferred by the appellant Shri K.S. Ramesh, challenging the judgment and decree dtd. 11/6/2019 rendered by the XXXIX Addl. City Civil Judge, Bangalore City, in O.S. No.4955/2013 and seeking to set aside the judgment and decree dtd. 11/6/2019 allowing I.A.No.6 filed by the respondents under Order XXII Rule 6 CPC and consequently, to direct the trial Court to restore the suit.

(2.) For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The appellant is defendant and respondent Nos.1 to 8 are plaintiff Nos.1 to 8.

(3.) The factual matrix of the appeal is as follows:- Respondents had filed a suit for partition and separate possession against the appellant seeking the relief of declaration that the plaintiffs and defendant are joint family members and to divide the property and alternatively, if the defendant is not agreeing the suit properties be divided into five shares among the children of K.R. Seetharamaiah and allot 1/5th share each. As per the case of the plaintiffs, one K.R. Seetharamaiah was the original propositus of the family, who married Smt. K.S. Nagalaxmi as per Hindu customs and rituals. Out of their wedlock, four sons and a daughter were born viz., K.S. Rangaswamy, K.S. Nagesh, V.G. Jayashree, K.S. Murali and K.S. Ramesh. K.S. Murali died on 4/3/2013 leaving behind plaintiff Nos.3 to 5. The daughter V.G. Jayashree died on 9/8/2011 leaving behind plaintiff Nos.6 to 8. During the lifetime of K.R. Seetharamaiah, he acquired movable and immovable properties out of his earnings in and around Bengaluru and Mysuru. During the life time of K.R. Seetharamaiah, he was allotted a site bearing No.434, 1st Block, Rajajinagar, Bengaluru-560 010 by the then C.I.T.B.(Now known as BDA) measuring East- West 90 feet and South - North 45 ft and accordingly, executed lease-cum-Sale deed in favour of K.R. Seetharamaiah and thereafter, obtained absolute sale deed from CITB, Bengaluru. Thereafter, K.R. Seetharamaiah sold a portion of his property to an extent of East - West 30 feet, North - South 45 feet on the eastern side of the property in favour of one S.N. Murthy under registered Sale Deed dtd. 10/4/1974 and remaining extent measuring East - West 60 feet and North- South 45 feet along with vacant land lying to the East is the 'A' schedule suit property. In the year 1993, K.R. Seethramaiah applied for allotment of site before Mysore Urban Development Authority (for short 'MUDA') and on consideration of the same, site bearing No.2089 measuring 30 x 40 feet ('B' schedule property) was allotted in favour of K.R. Seetharamaiah and hence, an absolute sale deed was executed in his favour by MUDA on 19/9/2003. During the life time of K.R. Seetharamaiah, he executed a Will in respect of suit schedule properties on 3/3/2007 bequeathing the same in favour of his sons and daughter. Smt. K.S. Nagalaxmi, W/o. K.R. Seetharamaiah died on 8/1/2013 and K.R. Seetharamaiah died on account of old age on 7/2/2013, leaving behind his children as his legal representatives. There are no other ancestral properties belonging to the plaintiffs and defendant, except the suit properties, which was acquired by K.R. Seetharamaiah, out of his earnings. Thus, these properties are self-acquired properties of K.R. Seetharamaiah. As per the Will executed by K.R. Seetharamaiah, schedule 'B' property shall devolve to the defendant and in 'A' Schedule property, the ground floor shall be divided among four sons and 1st Floor portion was given to the children of his daughter Smt. V.G. Jayashree. In the Will, it is recited that in respect of ground floor, if the property was not able to divide among the sons and legal representatives of K.S. Murali, in which, eventuality, the property may be sold and the sale proceeds shall be divided among the children of K.R. Seetharamaiah. Therefore, the plaintiffs requested the defendant to divide the property by metes and bounds.