M/S VOLVO INDIA PVT LTD vs. THE COMMISSIONER OF INCOME TAX (LTU)

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NC: 2025:KHC:11520 RFA No. 400 of 2016

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 400 OF 2016 (POS)

BETWEEN:

S/O. LATE. Y. NANJUNDAIAH,

AGED ABOUT 36 YEARS,

W/O. SRI.N.CHANDRAKANTHA

AGED ABOUT 33 YEARS

LR’S OF 2ND APPELLANT

2(A) DRUTHI

D/O CHANDRAKANTHA

AGED ABOUT 20 YEARS

BOTH ARE R/AT 2ND FLOOR NO.5

SUNKALPET, DASOPANTHA LANE

CUBBONPET

BANGALORE – 560 002. …APPELLANTS (BY SRI. SHIVARUDRA, ADVOCATE) AND:

SRI.N.CHANDRASHEKAR S/O. LATE. Y. NANJUNDAIAH, AGED ABOUT 58 YEARS, R/AT NO.5, 2ND FLOOR, SUNKALPET, DASOPANTH LANE, CUBBONPET, BANGALORE – 560 002. …RESPONDENT (BY SRI. N. CHANDRASHEKAR, ADVOCATE (SERVED) )

THIS RFA IS FIELD UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.11.2015 PASSED IN OS.No.440/2011 ON THE FILE OF THE XIV ADDL.

Digitally signed by CHANDANA B M Location: High Court of Karnataka

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CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR POSSESSION AND DAMAGES.

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

ORAL JUDGMENT This appeal by the unsuccessful plaintiffs in O.S.No.440/2011 on the file of the XIV Additional City Civil Judge, Bengaluru (for short “the Trial Court”), is directed against the impugned judgment and decree dated 23.11.2015, whereby the said suit filed by the appellants-plaintiffs against the respondent- defendant for recovery of possession, damages and other reliefs in relation to the suit schedule premises was dismissed by the Trial Court.

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No.2(a) is their daughter and that the defendant is none other than the brother of plaintiff No.1. The plaintiffs filed the instant suit claiming that they are the owners of the suit schedule premises, which is a portion of second floor of premises bearing No.5, Sunkalpet, Dasopanth Lane, BBMP Division No.47, Bengaluru-02, measuring about 300 Sq.Ft., having acquired the same under registered Will dated 27.02.2004 executed by late Y. Nanjundaiah, father of plaintiff No.1, who expired on 23.12.2006, pursuant to which the plaintiffs became the owners of the suit schedule property. It was contended that the entire aforesaid premises comprises of ground floor, first floor and second floor, out of which the plaintiffs are in occupation of the southern half of the second floor, while the defendant was in permissive possession of the northern half, which is the present suit schedule premises. It was also contended that under the aforesaid Will dated 27.02.2004, the first floor portion of the same building was allotted to the defendant, who relinquished his right in the same in favour of one more brother, Umashankar, registered Release Deed dated 25.08.2010 after receiving a sum of Rs.3,50,000/- from him. It was further contended that the ground floor portion was bequeathed under the said Will dated 27.02.2004 in favour of the said Umashankar and

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that pursuant to the aforesaid Release Deed dated 25.08.2010, Umashankar is in possession and enjoyment of the ground floor and first floor portions of the buildings.

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Issue No.2 is recasted as under : Whether the plaintiff proves that on 25.08.2010 the defendant has executed a registered release deed by relinquishing his rights over first floor portion of the suit property allotted to him under the registered Will dated 27.02.2004 in favour of N. Umashankar as pleaded under para No.6 of the plaint?

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Re. Point Nos.(i) and (ii):

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states that the suit schedule premises is the northern half portion of the second floor of the residential house bearing Municipal No.5/1- 1; undisputedly, the said building comprises of ground floor, first floor and second floor, amongst which the suit schedule premises is restricted/limited only to the northern portion of the second floor and the subject matter of the suit is not related to either the ground floor portion or the first floor portion.

“7. ISSUE Nos. 1 to 4: The case of the plaintiff is that he is the absolute owner of the suit schedule property and the defendant is said to be in permissive possession of the suit schedule property and that permission is said to nave

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been revoked by the plaintiff. Further the defendant is said to have executed registered release deed on 25-10-2010. These issues being interlinked therefore are discussed and answered together in order to avoid repetition.

As per the plaint description of the suit schedule property has been as follows:

SCHEDULE "All that piece and parcel of the Northern half portion of measuring 150 sq. feet consists of a residential house of 2nd floor in property bearing Municipal No.5/1-1 situated at Sunkalpet, Dasopanth lane, Ward/Div.No.47, Β.Β.Μ.Ρ., Bangalore and bounded on: East by : Private property West by: Property of Sharadamma North by: Common passage and property of Thimma Setty @ Chandrasetty South by : House property of Honnappa"

The relationship between the parties is that the plaintiff and the defendant are brothers. The plaintiffs No. 1 and 2 are husband and wife. The address mentioned in the cause title of the parties to the suit are same. The rig claimed by the plaintiffs has been that the plaintiffs to have acquired the property bearing Municipal No.5, measuring 300 sq. feet situated at Sulkalpet, Dasopanth lane on the second floor by virtue of the will said to have been executed by father Nanjundaiah dated 27-04-2004. The father Nanjundaiah to have passed away is an undisputed fact therefore death

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certificate Ex.P-1 of Nanjundaiah is a formal document. It mentions the date of death as 23-12-2006. The will referred to in the plaint has been marked as Ex.P-19. Before discussing the validity of the Will in the oral evidence it is admitted fact of the parties that the suit schedule property to be self acquired property of the father Nanjundalah. Further that the father during his life time to have constructed ground, first and second floor in the suit schedule building. The suggestion put forth to this D.W.1 in this regard has been as follows:

"It is true that the suit schedule property is self acquired property of my father. It is true that my father during his life time constructed ground, first and second floor in the suit schedule building."

The father, according to D.W.1 was said to be residing in the ground, first and second floor. He himself has admitted not to have any basis to show that the suit schedule property to be joint family property. The 1st plaintiff and the defendant have an another brother Umashankar. In regard to the Will, this D.W.1 has stated not to be aware of the will and that the ground floor is said to have been bequeathed by his father to his brother Umashankar, first floor to himself and 2nd floor to the plaintiffs No.1 and 2. His evidence is as follows:

"I do not know that my father has executed the will bequeathing the ground floor to my brother Umashankar, first floor to me and the 2nd floor to the plaintiffs No.1 and 2 jointly."

Further he also does not know if he has become the owner of the first floor of the suit property. P.W.1 in the oral evidence has stated hat the defendant to have relinquished

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their right in respect of the first floor in favour of brother Umashankar vide release deed dated 25-which has been marked as Ex.P-13. But, D.W.1 in the oral evidence has denied about Ex.P-13 and has stated that his brother to called upon him to sign on Ex.P-13.

"It is true that all the three brothers had co- ownership over the entire suit schedule building. It is true that either me or my brothers were never paying rents to any of the brothers and our father."

Thereby this nature of the suggestion put forth to P.W.1 goes to show that the three brothers viz., 1st plaintiff, defendant and Umashankar to be co-owner of the suit schedule property. The will in question has been marked as Ex.P-19. This P.W.1 has stated that the attesting witness Rangaswamy not to know to read and write. The nature of the suggestion put forth to this witness has been created for the purpose to knock off the property of the father. No doubt in the written statement the defendant has clearly stated that he and his wife to residing in the suit schedule property as a co-owner and not be in permissive possession under any person or the father. This aspect has been in fact suggested

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to P.w.1as above noted. The Will has been vehemently disputed in written statement by the defendant as the defendant along with the plaintiffs and the brother Umashankar are said to be co-owners. He has stated that the attesting witness P.W.2 was said to be present at the time of his cross-examination. This attesting witness examined as P.W.2 has stated to be well known to the plaintiff and the defendant. He has identified the signature of his father Nanjundaiah on Ex.P-19 and Ex.P-19(a) to Ex.P- 19(e). identified his signature as Ex.P-19(f). He has further The signature of another attesting witness to the will is Ex.P- 19(g). This witness in consonance with the evidence of P.W.1 undoubtedly has stated to be present during the cross-examination of P.W.1, but is said to have not head the cross-examination. He has stated not to know to read and write Kannada. He has particularly in regard to the will stated not to know the contents of the Will, but it was said to be read over and explained to him. According to him, the father Nanjundaiah is said to have bequeathed the ground, first, second floor to each of the sons viz., plaintiff, defendant and Umashankar. Further Nanjundaiah is said to have disclosed the debts of the family to amount to Rs.6,00,000/- particularly, apart from these facts said to not to know the other facts in the will stating as follows:

"Except those facts I do not know any other facts in the will,

In the plaint, it has been claimed that by virtue of the will Ex.P-19 first floor was said to be allotted to the defendants and his wife. The ground floor was said to have

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been allotted to the 1st son Umashankar and his wife Vedavathi, The 2nd floor is said to consist of 2 portions and the plaintiffs are said to be in the southern half portions and the defendants to be in occupation of the northern half portion. D.W.1 in the affidavit filled for cross-examination has stated as follows:

"2. I submit that, myself, plaintiff and my elder brother are the co-owners of the property bearing No.5, situated at Dasopanth Galli, Sunkalpet main road, Cubbon Pet, Bangalore-560002 and we are residing in the aforesaid property as the co-owners peacefully.

Therefore, when the evidence of the attesting witness P.W.2 is compared with the above para of D.W.1 it onl means that the plaintiff and his brothers viz., defendant ar Umashankar to be the co-owners of the suit schedu property.

"
ೆಂಗಳರು ಾ ೕೇಷ 47ೇ ಜೆ ೇರುವ ಾೋಪಂ ೕ ಸುಣ#ಕ% &ೇ'ೆ ಮು) ದ% 3ೇ ನಂಬ- ಸ./0ನ &ೈ2 23ನ45ರುವ ¸ÀéwÛUÉ ZÀPÀÄ̧A¢: ಪ6ವೆ3:
ೇೆಯವರ ಮೆ

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NC: 2025:KHC:11520 RFA No. 400 of 2016

ಪ89ಮೆ3 : :ಾರದಮ;ನವರ ಮೆ

ಉತ0ರೆ3: ಬಹುತ.ದ &ಾ?ೇಜು ಮತು0 ಇೇ ನಂಬ- &ೈ2 /ಮ;:ೆ A ಉರುB ಚಂದD:ೆ Aಯವರ ಉತ0ಾಧ Fಾಗದ ಸ.ತು0 zÀQëtPÉÌ : ºÉÆ£ÀߥÀà£ÀªÀgÀ ªÀÄ£É F ಮGೆ?Hರುವ ಪ6ವ ಪ89ಮ 17-0 (ಹ ೇಳI) ಅಗಳI ಉತ0ರ ದKಣ 19-00 (ಹLೊ0ಂಬತು0) ಅಗಳI ಅಳLೆಯುಳM )Nೇಶನ Pಾಗೂ )Nೇಶನದ45 ಕ Aರತಕ3 ೆಲ ಅಂತಸು0 Rದಲೆಯ ಮಹ ಮೆ ಎರಡೇ ಮಹ ಮೆ ದು? )ೕರು ಒಳಚರಂ ವ?ವೆVHರುವ ಮೆ ಸ.ತು0 ಈ % Xಾ ಮರಣ :ಾಸನ ಪತDೆ3 ಒಳಪ Aರುತ0ೆ."

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NC: 2025:KHC:11520 RFA No. 400 of 2016

Umashankar measuring 323 sq. feet and built up 600 sq. feet. Ex.P-8 is the khatha certificate in regard to Umasharikar. Ex.P-14 is the khatha extract in the name of the plaintiffs in regard to property I.D. No.47-132-5/1-1 and it mentions built up area as 300 sq. feet. Ex.P-15 is the khatha certificate in the name of the plaintiffs in regard to the property PID No.47/132-5/1-1. The tax paid receipt in the name of the father has been produced for the year 2010- 2011 as per Ex.P-16. Ex.P-17 is the acknowledgment for the year 2010-2011 issued by BBMP towards the receipt of the tax from the father for the year 1997. Therefore, the above said documents are only revenue in nature. But, the relief claimed by the plaintiff has been for possession from the defendant of the suit schedule property and also to direct the defendant to pay the damages at the rate of 2,000/- p.m., from the date of filing of the suit for illegal occupation till delivery of the vacant possession.

The oral evidence adduced in the present case and the recitals will Ex.P-19 undoubtedly shown that the 1st plaintiff, defendant and Umashankar were allotted each floor they are the co-owner of the property.

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NC: 2025:KHC:11520 RFA No. 400 of 2016

defendant who have received sum of Rs.3,50,000/-. Undoubtedly, that release deed has been marked as Ex.P- 13. D.W.1 in the oral evidence has vehemently stated that not to have paid any rents to the plaintiff and that there is said to be no agreement. In regard to the relinquishment deed, he has stated as follows:

"It is false to suggest after execution of the relinquishment deed in favour of my brother Umashankar I used to stay in a portion of the suit schedule property with the permission of plaintiffs.

Therefore, execution of this relinquishment deed has been vehemently disputed by D.W.1 then the p who has produced that document to take the relinquishment deed has to prove execution of the release deed. The signature on the will of other attesting witness to the will has been examined on behalf of the defendants as D.W.2. He has in terms of the plaintiff and the defendant stated that he is acquainted to both the plaintiff and the defendant. Further that he is said to be residing in the house adjoining the suit property. But, he himself has stated that he was not aware that Ex.P-19 to be a will and subsequently only he is said to have come to know that Ex.P-19 to be a will. The suggestion put forth to this witness has been "it is true that Nanjundaiah bequeathed ground, first and second floor to his sons i.e., the plaintiffs and the defendant herein." The witness voluntarily states that "subsequently I came to know about this fact".

Therefore, the perusal of the nature of the evidence goes to show that P.W.2 as well as D.W.2 attesting

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witnesses to the will Ex.P-19 to be examined. In the present facts and circumstances of the case, proof is required for the execution of the relinquishment deed, of the reason that after the will there is said to relinquishment of the deed by the defendant in favour Umashankar and thereby the defendant is said to be Permissive possession of the schedule property. Umashankar has not been examined by the plaintiff. In the plaint as above noted vehemently it is stated that the relinquishment was in favour of Umashankar, but unfortunately this Umashankar though he is said to be beneficiary is not examined in the present suit. When the nature of suit schedule property is said to be acquired property of the father Nanjundaiah and the will Ex.P-19 is undisputed fact whereby the ground, first and second floor has been allotted to three brothers i.e., 1st plaintiff, defendant and Umashankar then production of the will as per Ex.P-19 is a formal document.

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Supreme Court in SLP (C) Nos.7421-7422 of 2008 (Shehammal Vs Hasan Khani Rawther and others). This matter pertains to the doctrine of spes successionis and the application of the concept of estoppel to the law of inheritance under the Mohamaden Law. In the present facts and circumstances of the case execution of the release deed itself has been vehemently disputed by the defendant. The benefit of the judgment of the above said case stated supra cannot be therefore extended to the plaintiff. As per the will all the three brothers have been bequeathed with each share of the suit schedule property. Then relinquishment of right by the defendant in respect of property which is said to have been bequeathed by his father in his favour himself, he is said to have given up hi right in regard to that property. The relinquishment of the right requires proof by its executant. The perusal of Ex 13 shows that this deed is said to have been execute favour of Umashankar by the defendant which is already noted above. The property described in this deed has been follows: "
ೆಂಗಳರು ಾ ೕೇಷ 47ೇ ಜೆ ೇರುವ ಾೋಪಂ ೕ ಸುಣ#ಕ% &ೇ'ೆ ಮು) ದ% 3ೇ ನಂಬ- ಸ./0ನ &ೈ2 23ನ45ರುವ ¸ÀéwÛUÉ ZÀPÀÄ̧A¢: ಪ6ವೆ3:
ೇೆಯವರ ಮೆ

ಪ89ಮೆ3 : :ಾರದಮ;ನವರ ಮೆ

ಉತ0ರೆ3: ಬಹುತ.ದ &ಾ?ೇಜು ಮತು0 ಇೇ ನಂಬ- &ೈ2 /ಮ;:ೆ A ಉರುB ಚಂದD:ೆ Aಯವರ ಉತ0ಾಧ Fಾಗದ ಸ.ತು0 zÀQëtPÉÌ : ºÉÆ£ÀߥÀà£ÀªÀgÀ ªÀÄ£É F ಮGೆ?Hರುವ ಪ6ವ ಪ89ಮ 17-0 (ಹ ೇಳI) ಅಗಳI ಉತ0ರ ದKಣ 19-00 (ಹLೊ0ಂಬತು0) ಅಗಳI ಅಳLೆಯುಳM )Nೇಶನ Pಾಗೂ )Nೇಶನದ45

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NC: 2025:KHC:11520 RFA No. 400 of 2016

ಕ Aರತಕ3 ೆಲ ಅಂತಸು0 Rದಲೆಯ ಮಹ ಮೆ ಎರಡೇ ಮಹ ಮೆ ದು? )ೕರು ಒಳಚರಂ ವ?ವೆVHರುವ ಮೆ ಸ.ತು0 ಈ % Xಾ ಮರಣ :ಾಸನ ಪತDೆ3 ಒಳಪ Aರುತ0ೆ."

This is the certified copy of the release deed, it is registered document, but when this execution of this document is disputed it is incumbent the plaintiff to prove the execution of the document. In this regard, it is necessary to apply the citation reported in 2003(3) Kar.L.J.177 (DB) Ranganayakamma and Another vs. K.S.Prakash (deceased by LRs and Others Partition-relinquishment Deed-whether in respect of separate property Held, No. Relinquishment Deed is effective as regards joint or joint family properties, but not as to separate properties which could be done only by a conveyance. At a partition, it is open to the parties to arrive at an arrangement, which, according to them, is just and equitable in the circumstances of the family. A partition is an agreement between two or more persons who are bound by it. A release deed is a one-sided document which binds the executants alone. Release In law may be affected either for consideration or for no consideration.

AIR 1972 Supreme Court page 2096 (Chaudhri Raghubans Narain Singh State of Uttar Pradesh and Others Vs K.S. Prakash (deceased by LRS and others) Partition Relinquishment of right - The relinquishment of his rights in the family properties by one of the member of the family does not result in a general partition in the family. "AIR 1975 Supreme Court 895 (Rajagopal Pillai Vs - Pakkiam Ammal)

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Succession- Relinquishment: In case of relinquishment by a son of his rights in his father's property, It is necessary to ascertain the nature of the right relinquished. The words of release do not mean release of rights other than those then put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed."

Therefore, requisite proof is not in terms of above citations. When there is existence of the will and that will has not been contravened it means that the Ist plaintiff, defendant and Umashankar and co-owners of the property. The plaintiff alone thereby cannot be the owner of the suit schedule property. Consequently, the possession as sought for cannot be granted. Hence, issue No.1 to 4 are answered in the NEGATIVE.

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facts and circumstances therefore this contention of the defendant is not tenable and this additional issue answered in the NEGATIVE.”

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entire building had been distributed amongst his three sons including the suit schedule premises in favour of the plaintiff, the Trial Court clearly misdirected itself in dismissing the suit filed by the appellant-plaintiff by passing the impugned judgment and decree, which deserves to be set aside.

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nexus or connection whatsoever to the suit or the subject matter of dispute and consequently, the said Release Deed or its proof or surrounding circumstances could not have been relied upon or made the basis by the Trial Court to reject the claim of the plaintiff, which was only in relation to the second floor portion, which was undisputedly not the subject matter of the Release Deed and failure to appreciate this by the Trial Court has resulted in erroneous conclusion.

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floor since all the parties were co-owners of all the three floors. In this context, the Trial Court has clearly misread, misconstrued and misinterpreted the contents of the Will dated 27.02.2004, which clearly establishes that the entire building had been bequeathed by Nanjundaiah by allotting ground floor to Umashankar, 1st floor to defendant and second floor plaintiff along with their respective wives as noticed by the Trial Court at paragraph No.9 of the impugned judgment and decree referred to supra. Despite having noticed the contents of the Will and recorded the aforesaid findings, the Trial Court clearly erred in dismissing the claim of the plaintiffs by assigning wholly erroneous and untenable reasons, which deserves to be set aside.

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Point Nos.(i) and (ii) are accordingly answered in favour of the appellants and against the respondents.

Re. Point No.(iii):

Point No.(iii) is also accordingly answered in favour of the appellants and against the defendants..

ORDER

(i) Appeal is hereby allowed. (ii) The impugned judgment and decree dated 23.11.2015 passed in O.S.No.440/2011 by the XIV Additional City Civil Judge, Bangalore (CCH28) is hereby set aside.

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(iii) Suit of the appellants-plaintiffs is decreed in their favour against the respondent-defendant as sought for in the plaint. (iii) The respondent – defendant is granted a period of five months from today to quit and deliver vacant possession of the suit schedule premises to the appellants- plaintiffs.

Sd/- (S.R.KRISHNA KUMAR) JUDGE

BMC List No.: 1 Sl No.: 34