THE DIRECTOR OF INCOME TAX vs. M/S. ANZ OPERATIONS AND TECHNOLOGY PVT. LTD.,

SMT.INDRANI ANAND

PARESH KUMAR

SMT.KUSUMA K ARASIKERE AGED ABOUT 64 YEARS W/O SRI KUMAR S ARASIKERE D/O LATE SRI B S SIDDALINGAIAH AND LATE SMT.PARVATHA DEVI RESIDING AT No.6, 1ST CROSS 4TH BLOCK, 3RD STAGE BASAVESHWARANAGAR BANGALORE – 560 079.

SHRI PARESH KUMAR

Being aggrieved by the said judgment and decree passed by the trial court, plaintiff-Kusuma K. Arasikere filed RFA No.1124/2011 and 2nd defendant -Indrani filed RFA No.357/2011.

In RSA 1124/2011, plaintiff-Kusuma K. Arasikere has sought to set aside the finding of the learned trial Judge in O.S.No.660/2002 in respect of issue Nos. 1 to 5,7 and 10 as against the plaintiff and to hold that the suit schedule properties are joint family properties and to declare that the Will Ex.D10 has not proved and hence it is null and void.

In RSA 357/2011, 2nd defendant -Indrani has sought to set aside the judgment and decree dated

In order to avoid confusion and overlapping, the parties are addressed in accordance with the rankings held by them before the trial court.

Plaintiff-Kusuma K. Arasikere filed original suit against defendants for partition and separate possession of her share in the suit schedule properties and consequential relief of permanent injunction to restrain the defendants from alienating or crating any permanent or temporary interest, right, title in favour of third parties or interest between them to the extent of plaintiff’s share.

The substance of the case of the plaintiff is:

B.S.Siddalingaiah. had three brothers who got partitioned their joint family properties on 14-08-1952 through registered partition deed and B.S.Siddalingaiah. got 1/4th share in the moveable and immoveable properties. B.S.Siddalingaiah. being the guardian of defendant No.3 sold immovable property situate at Bijjahalli, Belipura, Hunasenahalli under registered sale deed in respect of properties fallen to his share in the partition dated 14-08-1952. By the

It is further contended that after the death of B.S.Siddalingaiah, plaintiff and defendant Nos. 1 to 3 being class one heirs succeeded to the same and plaintiff being class one heir is entitled for partition and separate possession of her share. But defendant Nos. 1 and 2 in whose custody suit items are available are trying to change its nature and to alienate them. When plaintiff demanded for her share, defendants have not complied with the same. It is further

Defendant Nos. 1 and 2 admitted the relationship of the parties but denied all other allegations. It is the contention of defendant Nos. 1 and 2 that schedule item No.1 was never a joint family property and it was purchased by Parvathadevi on 13-2-1963 out of the money gifted by her grandfather and from certain investments made by her and denied that it was acquired by selling joint family property. It is contended that B.S.Siddalingaiah died intestate and plaintiff had received some properties specified in the Will executed by B.S.Siddalingaiah and admitted that

For a moment, it is necessary to mention the total schedule properties and the genealogy at this stage itself, which are as under:

The learned trial judge based on the materials available before him framed the following issues: Issues:

Whether the defendants prove that item No.1 of plaint schedule is the self acquired property of the 1st defendant?

Whether the plaintiff’s plea with regard to item No.1 of the plaint schedule is hit by the provisions of Benami Transaction (Prohibition) Act, 1988?

Whether the plaintiff proves that 1st floor of item No.1 of the schedule property was put up by B.S.Siddalingiah?

Whether the defendants prove that there was a portion entered into between B.S.Siddalingiah and defendant No.3 on 9.3.1978 and that item No.2 of the plaint schedule had fallen to the share of defendant No.3?

Whether the defendants prove that during the lifetime of B.S.Siddalingiah, the plaintiff has received Rs.10 lakhs and jewellary from him?

Whether the defendants prove that B.S.Siddalingiah had executed a Will and that the said Will is in the custody of Shivarudraswamy of Belimatt?

Whether the 2nd defendant proves that the 1st defendant had executed a gift deed in her favour on 11.6.2001 and gifted item No.1 of the schedule property?

Whether the 2nd defendant proves that she has become the absolute owner of item No.1 by virtue of the gift deed?

Whether the plaintiff proves that she is entitled for partition and separate possession of her share in the suit properties?

What decree or order?”

The learned trial judge was accommodated with the oral evidence of PW1-Kumar S. Arasikere and documentary evidence of Exs.P1 to P6 on behalf of plaintiff and oral evidence of DW1-Indrani Anand, DW2-Sri.Sri.Shivarudra Mahaswamigalu; DW3- Y.M. Manjunth and DW4-Shivashankar and documentary evidence of Exs.D1 to D12 on behalf of defendants.

Upon conclusion of the trial, learned trial judge partly decreed and partly dismissed the suit and granted 1/3rd share in suit Item No.1 and the claim of amendment application in respect of suit item No.2 is rejected and holding that plaintiff is not entitled from suit item Nos.3 to 5 and the same is challenged in these appeals as mentioned above.

Before proceeding on the other aspects of the case, it is necessary to mention that, the family consists of one B.S.Siddalingaiah, his wife Paravathadevi, two daughters, namely Kusuma S. Arasikere and Indrani and one son namely Paresh kumar. B.S.Siddalingaiah, is stated to be an Advocate by profession and also had three brothers with properties with jointness and partition was effected between them on

The application in respect of item No.2 is rejected by the trial court. In respect of which, I come to the discussion later.

The bone of contention between the parties is there is no dispute regarding relationship between the plaintiff and defendants and the nature of properties. As per defendant No.2 Indrani, the scheduled property is an out and out absolute property of her mother and funds were adequate and it is purchased out of the money given by her grandfather. Similarly, gift deed was executed by her mother, who had acquired the schedule property

Though these appeals are filed under Section 96 CPC, the points of law are also involved in it regarding the nature and claim that suit schedule item No.1 is disputed regarding the nature of its ownership and on the other hand, it is the self acquired properties of mother Vs. Joint family property. In the circumstances blood relationship between the parties as stated above are not disputed.

Heard learned counsel Smt. Tejaswini Rajkumar for plaintiff and Smt. Ritika Ravikumar for respondent No.1 in both the appeals.

Before the trial court, plaintiff is one Kusuma K.Arasikere W/o. of Kumar S.Arasikere and

Insofar as, two appeals are concerned, RFA No.1124/2011 is filed by Kusuma S. Arasikere i.e., the plaintiff. 22. Insofar as, RFA No.357/2011 is concerned, it is filed by Indrani Anand who is defendant No.2. The judgment and decree passed in O.S.No.660/2002 is challenged by the plaintiff and defendant No.2 in the above two appeals. Insofar as, the claim of plaintiff- Kusuma S. Arasikere is concerned, she is seeking 1/4th share in the schedule properties excluding item No.2 and insofar as appeal RFA No.357/2011 is concerned, defendant No.2- Indrani Anand prays for setting aside the judgment and decree passed in O.S.No.660/2002 whereby, the trial court decreed the

Smt. Tejaswini Rajkumar, learned counsel for the appellant/plaintiff – Kusuma K.Arasikere, submits that the flow of events from day one disclose that there are activities which corroborates and confirm the existence of the joint family lead by plaintiff’s father – B.S.Siddalingaiah consisting of other members such as, mother – Parvatha Devi, sister – Indrani Anand/defendant No.2 and brother – Pareshkumar/defendant No.3. She would further submit that the schedule property consists of the following items: “Suit schedule Properties:- Item No.1: House including the Ground Floor and the First Floor, bearing No.139, 29th Cross, 7th Block, Jayanagar, Bangalore, bounded by:

Insofar as Parvatha Devi w/o B.S.Siddalingaiah and mother of plaintiff and defendants is concerned, it is reported that she died during the pendency of the suit. Regard being had to the fact that her LR’s are nothing but remaining parties to the suit. She further strenuously submitted that the gift deed – Ex.D9 stated to have been executed by late Parvatha Devi in favour of defendant No.2 – Indrani Anand on 11.06.2001 is a concocted document and the same is made against the established principles of joint family. The writing or executing the gift deed of the joint family by one of its member to the other makes no meaning and it does

Learned counsel Smt. Ritika Ravikumar, for defendant No.2/Indrani Anand would submit that the property was purchased by Parvathadevi under the registered sale deed dated 13.02.1963 as per Ex.D12 and the resources for purchase of the said properties has been that her grand father helped her in buying the properties and there was no contribution of any

The suit was preferred by a daughter for partition. In the beginning, there were three

Parvatha Devi – defendant No.1 is reported dead during the pendency of the proceedings before the trial court and legally defendant No.2 and plaintiff being the daughters and defendant No.3 being the son formed the legal heirs as such, there is no separate enclosure of parties. Insofar as, defendant No.4 - Keshavamurthy is concerned, he has stated to be an old tenant in item No.1 of the property and he is not a necessary party.

The another document also comes for consideration in the proceedings i.e., Will - Ex.D10 dated 25.12.1989 i.e., testament stated to have been executed by B.S. Siddalingaiah, who was stated to be

The properties that are allotted in favour of the Paresh kumar are: gold waist belt, diamond ears studs, gold Karadige which means, the covering of wholly Linga with silver metal, one wholly gold ring, two silver plates, one sprinklers and one small silver plate and one copper vessel and other copper articles were disposed of in favour of Indrani. He has maintained the equity shares numbering - 2514 of Consolidated Coffee Estate Company limited, 300 Midland shares, 220 Parkside explosive company shares. Calcutta Tata company have afforded several offers and on the basis of the same, they returned the shares to the said company. According to that shares of Tata Tea company had given in return 1257 Tata Tea Company shares and cash of Rs.1,25,000/- to be given by Tata Tea company. If shares and the money comes from Tata Tea company, 257 Tata Tea Shares and a sum of Rs.35,000/- should go to defendant No.3

For Kusuma K.Arasikere, 500 Tata Tea equity shares and if the amount does not come the Consolidated Coffee Estate shares of 1500 should go to her. Out of fixed deposits in Mysore Bank Rs.20,000/- and Rs.22,000/-, totally Rs.42,000/- should go to Kusuma. Further, necklace of Navarathna, pair of bangles, a pair of pearl bangles, one pair of gomodhika ear rings and silver pooja articles also should go to Kusuma.

Insofar as, Indrani Anand is concerned, if Tata Tea Company gives 1257 shares and a fund of Rs.1,25,000/-, 500 shares of Rs.45,000/-, fixed

It could be seen from Will – Ex.D10 and it discloses regarding the disposal of the properties stated to have been executed by the B.S. Siddalingaiah who died intestate on 25.05.1987. It is stated that in the partition of the joint family property between B.S.Siddalingaiah and his three brothers, he got 1/4th share in the movable and immovable properties and thereafter B.S.Siddalingaiah’s minor son - defendant No.3/Pareshkumar become the

B.S.Siddalingaiah sold immovable property situated at Bijjahalli, Kodihalli hobli, Kanakapura Taluk on 06.04.1964 under the registered sale deed as per Ex.P3 which was fallen to his share and out of the sale consideration which derived as stated above, he purchased and constructed portion of ground floor. The said partition deed between B.S. Siddalingaiah and his brother dated 14.08.1952 is marked as Ex.P2. B.S. Siddalingaiah sold ‘B’ schedule and there are 21 items of properties that were allotted to him. Insofar as Ex.D2 is concerned, where properties have fallen to the share of B.S. Siddalingaiah and the said partition is not disputed either by plaintiff or defendants. Some of the items are stated to have been sold and i.e., averred by the plaintiff in the pleadings. Now, the other properties are not being considered, the parties

Now insofar as, the joint family or coparcener is concerned, the joint hindu family is not

In this connection, the genesis of the family contain in the partition as per Ex.P2 dated 14.08.1952 and in the said partition, various joint family properties are partitioned and the joint family was disrupted and B.S.Siddalingaiah tells that a fresh coparcener consisting of himself and his son – Pareshkumar existed. Thus, family separates as a abrupt family or one man’s family, on the other hand, it would coparcener. It is not necessary that every

As I have stated earlier, it is a question of fact that who earns what or non-earning member is demarcated from the joint family possession? Even if he was disabled, cannot earn and crippled as well, he is the member of the joint family, because, physical disability is due to of his no fault.

As I have discussed earlier Kartha’s sacred duty is of being non-prejudiceship, bias and impartial. On the other hand, the conduct of the Kartha is

In the whole consideration, B.S.Siddalingaiah himself tells, he got 21 items of the properties and some of them were sold and whatever it is, no material is placed to show that Parvatha Devi was capable of buying the schedule properties by herself or there is no iota evidence to show that her grand father gifted money to her to buy this property and insofar as the sale of other property is concerned, as Ex.P3 wherein, property bearing No.83 was sold for Rs.2100/- it is in the year 1964. But the purchase of the property by Parvatha Devi is in the year 1963.

To a question of this Court, the learned counsel answered that the amount in Ex.P3 was received as an advance and no amount was received at the time of registration of the property. In fact, the

In the absence of material to show that Parvatha Devi earning separately or she had separately earned movable or immovable asset or that she was gifted or granted money and out of that money, she purchased item No.1 of the schedule property.

Learned counsel for defendant No.2 – Indrani Anand would submit that Ex.D3 indicates the details of refund. The refund endorsement and refund

Per contra, as I have found earlier, the properties mentioned in item Nos.1 or 2 or even other properties are all having the valid features of the joint family and they are available for partition. No amount was declared in Will Ex.D3 or in the gift deed – Ex.P1 or in the sale deed contrary to the circumstances,

In the circumstance, I find, learned trial judge has granted decree. Though he held it as joint family granted plaintiff to take 1/3 rd share in the suit item No.1. In this connection, it is further to be noted that Ex.D7 is the partition deed, wherein, Pareshkumar S/o. B.S.Siddalingaiah and B.S.Siddalingaiah themselves have partitioned the schedule property.

Thus, the document Ex.D7 dated 9.3.1978 shows that there was full fledged partition between B.S.Siddalingaiah and his family wherein item No2 of

Further, it is necessary to observe that Paresh Kumar, defendant No.3 did not appear and contest the suit in the trial court. He was set exparte. He was dead and now he is represented by his legal representatives. It is necessary to note that partition deed Ex.D7 is not disputed by either of the parties. However, plaintiff has included item no.2 in the suit schedule that was already allotted to Paresh Kumar in the partition deed dated 9-3-1978 marked as Ex.D7.

Learned counsel for plaintiff submits that originally amendment application was allowed later due to non compliance of any amendment it was rejected and more over, they are not pressing item no.2. In the over all context and subject matter of the case, item No.2 being already allotted to

The main contention in the case is regarding item no.1 residential house and other properties at item nos. 3 to 5.

Learned counsel for defendants would draw attention to Section 14 of the Hindu Succession Act, wherein limited right of a hindu female is enlarged into absolute estate and her disabilities were removed and submits that whatever the property acquired by a hindu female becomes the property.

Section 14 of the Hindu Succession Act which is as under: “14. Property of a female Hindu to be her absolute property.—

Learned counsel for defendant No.2 Indrani would submit that at no point of time ;father made rival claims against Indrani. The property was purely purchased as a self acquired property and her mother out of love and affection volunteered as gifted it to Indrani and the same is not objected by father.

Basically, Section 14 of the Hindu Succession Act has two limbs in the form of Sub Sections 1 and 2.

Under first one any property acquired by a female hindu whether before or after commencement of the act shall be held by her as the owner not as limited owner. This question would arise if he had only limited estate or has limited right and property held by female earlier to placing of the act she could have only life interest and upon her death that would devolve on nearest male heir who is called as reversioner. The right of reversioner is termed as spec successness. Here that question does not arise. The fact remains that property was purchased in the year 1963 admittedly after the enforcement of the Act and sub section 2 is not applicable to the case on hand.

Learned counsel for appellant/plaintiff Kusuma K.Arasikere, relied on the following judgments:

In the present case, the following points are amply clear. There existed a joint family prior to 1952 among B.S.Siddallingaiah and his other three brothers that joint family disrupted under Ex.P2 and B.S.Siddalingaiah got B schedule property in the suit schedule which consist of 24 items. Of course the plaintiff and defendants are not at issue regarding non inclusion of any other property. Particularly, plaintiff says that many of the properties were sold by B.S.Siddalingaiah. Here one point is admitted that there is no attribution against B.S.Siddalingaiah about vagabond, womanizer and man of vices and spend free as such there is no occasion to look into addicting regarding sale and disposal of the property is there is no dispute regarding present schedule properties are considered as plaint schedule properties.

It is also the strong contention of the defendant No.2 that her father never disputed the gift. Mother never disputed the gift. The existence of joint family is evidenced by two documents. One is

The partition was effected as per Ex.D7 in the year 1978 till then joint family was in existence. On the date of purchase of property in the year 1963

Insofar as funds are concerned, the property was purchased for Rs.15,000/-. Nodoubt, even in the Will stated to have been executed by said B.S.Siddalingaiah he has further passion towards his wife and says that in case if he pre deceased his wife entire bequeathal shall go to her hand and children were entitled for disposal by her only.

If kartha says a particular property is the separate property it cannot become the separate property in the presence of strong circumstances of availability of joint family funds and absence of circumstances showing the flow of funds to kartha, no

In a joint family where jointness is presumed, to read a particular document it is not only of the document but also the attending circumstances are to be read. Here, insofar as gift deed is concerned, item No.1 was purchased in the year 1963 and there was enough resources admittedly not quantified and there is no explanation as to what happened to the proceeds of the property and it is not known whether the grandfather of the Parvathadevi was alive or not on the date of gift deed.

The property under Ex-D12 sale deed dated 13-2-1963 is concerned, the purchaser is Parvathadevi and seller is one T.N.G. Rao s/o. T. Narayana Rai Proprietor, Bombay Luminous Signs, He was real mortgager of the schedule property to

In the overall context and circumstances of the case insofar as judgment of granting 1/3 share to the plaintiff by learned trial judge, does suffer from any infirmity, illegality or perversity. However also dropping item No.2 by dismissing the amendment application, I do not find any defect. Further regarding item Nos. 3 to 5 it should have been ordered for an enquiry as there are details of names of the company with shares bank details regarding savings bank and other deposit. Without ascertaining the details the trial judge erred in stating that plaintiff is not entitled to take any item Nos. 2 to 5 as claimed by her.

Insofar as share of the defendant No.3- Paresh Kumar is concerned, as stated above, there was a partition in the year 1978 as per Ex.D7 and he

Thus, the division of property of item No.1 ought to have been made in equal shares between the plaintiff and defendant No.2 and having rejected the amendment application may be of procedural reason. The learned trial judge should have applied his mind regarding the remaining persons and who are entitled for the share. In this connection, the judgment and decree of the trial court deserves to be set aside in part.

Insofar as Will Ex.D10 dated 25-12-1989 is concerned it only mentions the property and there are no clarifications given regarding the available of that property or existence or it is already shared among the members. In this connection settlement by way of affidavit of each of the parties and the other interest parties should have been considered.

In the light of the discussions already made above, gift deed is not binding on the plaintiff. By virtue of non binding of the gift deed, issue Nos. 8 and 9 regarding proving of absolute ownership by defendant No.2 does not arise for consideration.

In the circumstances, total entitlement of the property by the plaintiff invariably stands between the plaintiff and defendant No.2 Indrani in equal share. The gift deed executed by Parvathadevi in favour of Indrani has no sanctity or illegality and

Accordingly, I pass the following: