N. Ananda
1. The appellant (hereinafter referred to as plaintiff) is the plaintiff before the trial court and respondent (hereinafter referred to as defendant) is the sole defendant before the trial court. The suit is filed for partition and separate possession of plaintiffs half share in suit schedule properties described as hereunder:-
''A'' SCHEDULE PROPERTY
All that piece and parcel of the land bearing Old No. 28, New No. 28/1 measuring 3 acres 10 guntas including karab thereon situated at Malathahalli Village, Yeshwanthpura Hobli, Bangalore North Taluk, Bangalore District, now coming within the jurisdiction of Bruhat Bangalore Mahanagara Palike limits, and bounded on :
East by : Nagarabhavi Kere Angala
West by : Government Gomal Land
North by : Land held by Surappa
South by : Government Gomal Land
''B'' SCHEDULE PROPERTY
All that piece and parcel of the land bearing Old No. 28, New No. 28/1 measuring 2 acres situated at Malathahalli Village, Yeshwanthpura Hobli, Bangalore North Taluk, Bangalore District, now coming within the jurisdiction of Bruhat Bangalore Mahanagara Palike limits, bounded on :
East by : Kere Angala
West by : Sy. No. 19 held by Muniswamappa
North by : Land held by Puttarudraiah
South by : Land held by Muni Hanumaiah
The averments of plaint in brief are stated thus:-
The suit schedule'': properties are the self-acquired properties of Late. M.H. Jayaprakash Narayan. The plaintiff is the daughter and defendant is the wife of Late. M.H. Jayaprakash Narayan who died intestate on 06.04.1995, leaving behind plaintiff and defendant as successors to the estate of Late. M.H. Jayaprakash Narayan including suit schedule properties. The plaintiff and defendant are in joint possession of suit schedule properties as absolute owners.
2. There is reference to acquisition of suit schedule properties by the State subsequent to denotification. The plaintiff has referred to various writ proceedings that were instituted after denotification of the aforestated lands. The plaintiff has referred to representations given by the defendant wherein, defendant has alleged that plaintiff is not her daughter, in fact, plaintiff is the daughter of younger brother of defendant namely Muniyappa. After denotification of suit schedule properties, the defendant had made a representation to the Tahsildar, Bangalore North Taluk to enter her name in revenue records in respect of suit schedule properties.
The plaintiff has referred to proceedings in P & SC No. 10045/1997, wherein, defendant on her behalf and also as natural guardian of plaintiff had made an application to receive the fixed deposits held and left by Late M.H. Jayaprakash Narayan.
3. The plaintiff has stated that the defendant, all these days, from the childhood of plaintiff for the last 29 years had brought up plaintiff and accepted plaintiff as her daughter. Late. M.H. Jayaprakash Narayan and defendant had brought up the plaintiff as their own daughter but, now, for the first time before the Tahsildar, Bangalore North Taluk, defendant has denied that plaintiff is not the daughter of Late. M.H. Jayaprakash Narayan and defendant, at the instigation of Muniyappa (younger brother of defendant) who claims to be the natural father of plaintiff.
4. The plaintiff reiterating plaint averments had filed applications under Order 39 Rules 1 & 2 CPC (IA. No. 1 & IA. No. 2), to restrain defendant from dispossessing plaintiff from suit schedule properties and also to restrain defendant from alienating suit schedule properties pending disposal of suit.
5. In brief, averments of written statement and objection statement to IA. No. 1 & IA. No. 2 are as follows:
The defendant has denied that plaintiff is the daughter of Late. M.H. Jayaprakash Narayan and defendant. The defendant has specifically contended that plaintiff is the daughter of Muniyappa (younger brother of defendant) and Smt. Ammayamma of Honnasandra village, Kasaba Hobli Nelamangala Taluk. The plaintiff was born on 18.06.1981, the mother of plaintiff namely Smt. Ammayamma died on 09.01.1982; the defendant and- her husband Late. M.H. Jayaprakash Narayan had brought the plaintiff when she was hardly a child of six months; the defendant and her husband Late. M.H. Jayaprakash Narayan fostered the plaintiff, therefore, plaintiff is the foster daughter of Late. M.H. Jayaprakash Narayan and defendant. The plaintiff cannot maintain the suit for partition. The defendant has admitted acquisition of suit schedule properties and subsequent denotification.
6. During lifetime of M.H. Jayaprakash Narayan, he had married one Prabhavathidevi. On account of personal differences, the marriage was dissolved by a decree of nullity granted by the court of competent jurisdiction in the year 1981. Upon dissolution and separation with Prabhavathidevi, Late. M.H. Jayaprakash Narayan married defendant in the year 1981 and they were living together in house bearing No. 126, Rajagruha, Mahalakshmipuram, Bangalore. Late. M.H. Jayaprakash Narayan and defendant had no issues. Therefore, they brought up plaintiff who is none other than the daughter of the younger brother of defendant and fostered her. The plaintiff is the foster daughter of Late. M.H. Jayaprakash Narayan and defendant and plaintiff has not right to claim half share in suit schedule properties.
The defendant has admitted that M.H. Jayaprakash Narayan died intestate on 06.04.1995. The defendant has admitted that suit schedule properties are the self-acquired properties of Late. M.H. Jayaprakash Narayan. The defendant has contended that after the death of husband, she has succeeded to suit schedule properties as the only legal heir of late M.H. Jayaprakash Narayan and she is the absolute owner in possession and enjoyment of suit schedule properties.
7. The plaintiff while prosecuting her studies in Engineering (Information Science) had fallen in love with one Marshetty and married him against wishes of the defendant. After marriage, the plaintiff started blackmailing the defendant by adopting several methods. The plaintiff in connivance with her husband Marshetty had obtained signatures of defendant on several documents. The plaintiff at the instance of her husband has filed the instant suit to grab and knock off suit schedule properties, which were held and left by Late. M.H. Jayaprakash Narayan.
8. The learned trial judge by order dated 05.03.2012 dismissed applications (IA. No. 1 & IA. No. 2) for grant of temporary injunction. The learned trial judge has held that judgment in P & SC 10045/1997 cannot be relied upon to decide the relationship between parties. The learned trial judge has held that, in school records of plaintiff, the name of M.H. Jayaprakash Narayan is shown as the father of plaintiff but, the averments of plaint of the instant suit would show that plaintiff is not the daughter of Late. M.H. Jayaprakash Narayan and defendant.
The learned trial judge referring to averments of Para 19 of plaint has held that, plaintiff has specifically contended that both Jayaprakash Narayan and defendant had brought up plaintiff as their daughter and gave her education. The learned trial judge has held that these averments would prima-facie establish that plaintiff is not the natural daughter of Late. M.H. Jayaprakash Narayan and defendant.
The defendant has specifically contended that plaintiff is the daughter of her younger brother Muniyappa and Ammayamma. The learned trial judge has relied on the affidavit filed by Muniyappa (younger brother of defendant) to hold that plaintiff is the daughter of Muniyappa. The learned trial judge has held that there is prima-facie material to hold that plaintiff had been brought up by Late. M.H. Jayaprakash Narayan and defendant and plaintiff is their foster daughter. The learned trial judge has held that plaintiff has failed to make out prima-facie case and plaintiff is not entitled to an order of temporary injunction and dismissed the applications.
The plaintiff has filed MFA 2789/2012 against order of dismissal of I.A. No. 1 and MFA 2790/2012 against order of dismissal of I.A. No. 2.
9. I have heard Sri. C.V. Nagesh, learned Senior counsel for plaintiff and Sri. Uday Holla, learned Senior counsel for defendant.
10. The plaintiff had filed I.A. No. 1 for grant of temporary injunction to restrain defendant from dispossessing plaintiff from suit schedule properties and I.A. No. 2 to restrain defendant from alienating suit schedule properties during pendency of suit.
11. Before adverting to pleadings, documents relied upon by parties and submissions of learned senior counsel for parties, it is necessary to state certain facts, which are not in dispute:
The defendant is the wife of M.H. Jayaprakash Narayan who died intestate on 06.04.1995. The suit schedule properties are the self-acquired properties of Late. M.H. Jayaprakash Narayan. The suit schedule properties were acquired by the State of Karnataka vide preliminary notification dated 20.12.1992 and final notification dated 14.04.1994. Thereafter, notification u/s 16(2) of the Land Acquisition Act was issued on 15.09.1997. The land owners had made representations to the Government of Karnataka to denotify the acquired lands. The Government of Karnataka after considering representations issued a notification u/s 48 of the Land Acquisition Act, denotifying plaint A'' and ''B'' schedule properties amongst other lands. Against the order of denotification, M/s. Panchajanya Vidyapeetha Welfare Trust had filed WP. No. 4805/1997 and it was dismissed on 11.08.2000. Aggrieved by the same, abovesaid M/s. Panchajanya Vidyapeetha Welfare Trust had filed Writ Appeal No. 72342-66/2000 and these appeals were also dismissed and denotification order passed by the Government of Karnataka has attained finality. The defendant had given representation to revenue authorities to remove the name of M/s. Panchajanaya Vidyapeetha Welfare Trust from revenue records in respect of suit schedule properties and substitute her name. The representation was not considered. Therefore, defendant had filed W.P. No. 18674/2010. The writ petition was allowed and direction was issued to revenue authorities to consider the representation given by defendant. The plaintiff had given representation to the Tahsildar, Bangalore North Taluk on 07.07.2010 to enter her name in revenue records in respect of suit schedule properties. As there were rival claims, RRT dispute 49/2010-11 was registered and it is pending consideration.
12. In the RTC extract relating to land bearing Sy. No. 28 of Malathahalli village (suit schedule properties), the name of Late. M.H. Jayaprakash Narayan is shown in Column No. 9. The extent of land mentioned against his name is 5 Acres 10 guntas. The RTC extracts do not indicate the name of plaintiff either in Column No. 9 or in Column No. 12. As already stated, M.H. Jayaprakash Narayan died intestate on 06.04.1995. Therefore, entries in revenue records indicating the name of Late. M.H. Jayaprakash Narayan as Khatedar do not lend support to plaintiff to contend that she is in possession of suit schedule properties. This apart, the educational records relied upon by plaintiff would reveal that, plaintiff was studying Bachelor degree of Engineering (Information Science) till the year 2005 and she completed her 8th Semester in the examination held during December'' 2005.
The documents relied upon by defendant would reveal that after denotification, defendant had filed writ petition before this court. Therefore, there is no prima-facie material to prove that plaintiff was in possession of suit schedule property as on the date of suit. In the circumstances, the learned trial judge was justified in dismissing I.A. No. 1.
13. The plaintiff had filed IA. No. 2 for grant of an order of temporary injunction to restrain defendant from alienating suit schedule properties, pending disposal of suit.
The defendant has denied that plaintiff is the daughter of Late. M.H. Jayaprakash Narayan and defendant. Therefore, this court will have to consider if the trial court was justified in refusing the order of temporary injunction to restrain defendant from alienating suit schedule properties in the light of pleadings, documents relied upon by parties and submissions made by learned senior counsel for parties.
14. Sri. C.V. Nagesh, learned Senior counsel for plaintiff has made following submissions:
I In W.P. No. 18674/2010 filed by defendant in Para 8, defendant has stated that M.H. Jayaprakash Narayan died intestate on 06.04 1995 leaving behind one Smt. Huchamma (defendant herein) and Kum. Shobha Rani, his daughter (plaintiff herein).
II The defendant had filed P & SC 10045/1997 before the 13th Addl. City Civil Judge for grant of succession certificate in relation to fixed deposits held and left by Late. M.H. Jayaprakash Narayan in co-operative banks. The defendant had filed the petition P & SC 10045/1997 on her behalf and also on behalf of plaintiff, wherein, defendant had categorically stated that Kum. Shobha Rani (plaintiff herein), aged about 16 years, daughter of Late. M.H. Jayaprakash Narayan is represented by her mother Smt. Huchamma (defendant herein) as her guardian and next friend. The succession certificate was granted by the court in terms of order dated 22.09.1997. The court had directed that out of amount in deposit held by Late. M.H. Jayaprakash Narayan, the first petitioner (defendant herein) shall deposit a sum of Rs. 2 Lakhs in the name of second petitioner (plaintiff herein) until she attains the age of majority in any nationalized bank. In P & SC 10045/1997, defendant herein had executed an Indemnity Bond to receive a sum of Rs. 4,25,000/-. The defendant herein had undertaken to deposit a sum of Rs. 2,00,000/- in the name of her minor daughter Kum. Shobha Rani (plaintiff herein).
III On 15.04.2010, plaintiff and defendant executed a registered sale deed in respect of residential house held and left by Late. M.H. Jayaprakash Narayan, in favour of one M. Suresh Kothari. In this document, it is specifically stated that Jayaprakash Narayan died intestate on 06.04.1995 leaving behind his wife (defendant herein) and his daughter (plaintiff herein). The document was executed by defendant and plaintiff herein.
IV In the deposition recorded in P & SC 10045/1997, defendant herein has deposed that herself and petitioner No. 2 (plaintiff herein) are the only legal heirs of her husband M.H. Jayaprakash Narayan who died intestate on 06.04.1995.
V In P & SC 10045/1997, petitioner (defendant herein) had sought for extension of succession certificate to receive fixed deposit held and left by her husband Jayaprakash Narayan in State Bank of Mysore, Mahalakshmi Layout Branch in all aggregating to a sum of Rs. 1,57,000/-.
VI In P & SC 10045/1997, first petitioner (defendant herein) had filed an affidavit along with application under Order 32 Rule 1 CPC, to appoint her as next friend and guardian of second petitioner (plaintiff herein). In the affidavit, she has specifically stated that second petitioner (plaintiff herein) is her daughter and II-petitioner is a minor aged about 16 years. She is residing with I-petitioner and there is no conflict of interest between first petitioner (defendant herein) and second petitioner (plaintiff herein).
VII The defendant herein had filed O.S. No. 5156/1996 against the Commissioner, Bangalore City Corporation and others. The said suit was filed by defendant herein for herself and also as next friend and natural guardian of second plaintiff (plaintiff herein). In O.S. No. 5156/1996, first plaintiff (defendant herein) had filed an affidavit stating that defendant and her daughter Kum. Shobha Rani (plaintiff herein) have filed the above suit against defendants for permanent injunction of mandatory nature for transfer of katha in respect of house property held and left by Late. M.H. Jayaprakash Narayan in favour of plaintiff No. 1 and 2 (plaintiff and defendant herein). In the aforestated suit, defendant herein had filed an affidavit stating that her daughter Kum. Shobha Rani (plaintiff herein) is aged about 14 years and she is a minor. The defendant herein had filed an application for appointing her as natural guard and next friend of Kum. Shobha Rani (plaintiff herein) and suit is filed to safeguard the interest of both the parties namely plaintiff and defendant herein. The first plaintiff (defendant herein) had filed another affidavit in O.S. No. 5156/1996 stating that M.H. Jayaprakash Narayan died intestate leaving behind two heirs to succeed his estate i.e., defendant and plaintiff herein. The defendant had also categorically stated that plaintiff and defendant herein were living together in the suit schedule property and even after the death of Jayaprakash Narayan, defendant and plaintiff herein continued to reside in the ground floor of suit schedule property of O.S. No. 5156/1996.
15. The learned Senior counsel for plaintiff relying upon these documents would submit that these documents would prima-facie establish relationship between parties. The defendant cannot be permitted to approbate and reprobate. The defendant cannot disown admissions made by her in judicial proceedings.
16. Sri. Udaya Holla, learned Senior counsel for defendant has made following submissions:
I The averments of plaint are not consistent. In Para 25 of plaint, plaintiff has stated that from the childhood of plaintiff till now for the last 29 years, defendant has accepted plaintiff as daughter of herself and M.H. Jayaprakash Narayan and they had brought up plaintiff as their own natural daughter, showed love and affection and gave her education. After the death of late M.H. Jayaprakash Narayan, defendant took care of plaintiff and defendant performed the marriage of plaintiff with Marshetty and at no point of time, there was any such attitude on the part of defendant treating the plaintiff as daughter of other person.
II In M.C. No. 443/1980 filed by Jayaprakash Narayan against Prabhavathidevi (first wife of M.H. Jayaprakash Narayan) and one Hanumantappa, the marriage between M.H. Jayaprakash Narayan and Prabhavathidevi was annulled by judgment dated 23.02.1981. As per school records relied upon by plaintiff and affidavit filed by plaintiff, she was born on 18.06.1981. The marriage of Jayaprakash Narayan and the defendant was performed after decree made in M.C. No. 443/1980. Therefore, it is impossible to conceive that plaintiff is the daughter of Late. M.H. Jayaprakash Narayan born through defendant.
17. Before appreciating submissions made by learned Senior counsel for parties in the light of pleadings and documents relied upon parties, it is necessary to state that during pendency of these appeals, plaintiff has filed an application under Order 41 Rule 27 CPC for production of certain documents and defendant has filed an application under Order 26 Rule 10-A C.P.C., to subject plaintiff and defendant for DNA test to ascertain whether there is any biological relationship of daughter and mother between them and if need be, also subject natural father of plaintiff, Muniyappa S/o Dodda Huchappa to DNA test.
18. The application filed under Order 41 Rule 27 CPC is resisted by defendant however, this court having regard to the fact that some of the documents filed alongwith application have been referred to in the pleadings, has considered affidavits filed in O.S. No. 1753/1996 and also relied on copies of application and other documents filed in P & SC 10045/1997.
19. The main controversy between the parties is the status of plaintiff as the daughter of Late. M.H. Jayaprakash Narayan and defendant. The plaintiff has contended that she is the daughter of Late. M.H. Jayaprakash Narayan and defendant. The defendant has contended that plaintiff is the foster daughter of Late. M.H. Jayaprakash Narayan and defendant and plaintiff is the daughter of Muniyappa (the younger brother of defendant). The defendant has also filed the Affidavit of Muniyappa (her younger brother) wherein, said Muniyappa has sworn that plaintiff is the daughter of Muniyappa and his wife Ammayamma.
20. The plaintiff has relied on admissions made by defendant in judicial proceeding. The plaintiff has also relied on judgment made in P& SC 10045/1997. At this juncture, it is relevant to state that P & SC and O.S. No. 5156/1996 had been instituted by defendant herein. The plaintiff herein was a minor and she was represented by the defendant herein. In the aforestated proceedings, defendant herein has categorically stated that plaintiff is the daughter of Late. M.H. Jayaprakash Narayan and defendant.
21. In order to appreciate evidentiary value of admissions in pleadings of the parties in civil suits, it will be useful to refer to the judgment of Supreme Court reported in
(5)..... Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in a pleading and other admissions. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true.
22. In the judgment reported in
15. It is well-settled that a party''s admission as defined in sections 17 to 20 fulfilling the requirements of section 21,. Evidence Act is substantive evidence proprio vigore. An admission, if clearly and unequivocally made is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that "what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted the fact admitted must be taken to be established.
23. In the discussion made supra, I have referred to various judicial proceedings and also admissions of defendant in judicial proceedings regarding relationship of plaintiff and defendant. This would provide prima-facie evidence regarding relationship however, defendant during trial can adduce evidence to prove that what has been admitted by her is not true or it is an erroneous representation or such representation was made under misconception of facts.
24. Sri. Udaya Holla, learned Senior counsel for defendant has relied on the judgment of Supreme Court reported in
The learned Senior counsel has relied on judgment reported in
25. On consideration of above judgments, I find that judgments are rendered on merits. The law is fairly well settled that grant of succession certificate and findings recorded therein do not operate as resjudicata in subsequent suits however, such proceedings would provide prima-facie proof of rights of parties.
26. After going through the contents of judgment made in M.C. No. 443/1980, I find that marriage between Late. M.H. Jayaprakash Narayan and Prabhavathidevi has been declared as nullity. The question whether Jayaprakash Narayan had married the first defendant after the decree in the aforestated case or when the proceedings were still pending is a matter to be decided on merits of case.
27. The learned trial judge relying on averments made in Para 25 of plaint has held that plaintiff is not the natural daughter of Late. M.H. Jayaprakash Narayan and defendant, therefore, she has failed to make out a prima-facie case.
28. On careful consideration of plaint, I find that in Paras 4, 5, 6, 7, 12, 23 plaintiff has averred that she is the daughter of Late. M.H. Jayaprakash Narayan and defendant however, in Para 25, the plaintiff has averred that defendant having treated plaintiff since her childhood (for 29 years) and having accepted plaintiff as daughter of defendant and Late. M.H. Jayaprakash Narayan, for the first time before the Tahsildar, Bangalore North Taluk, has denied that plaintiff is not the daughter of Late. M.H. Jayaprakash Narayan and defendant. The plaintiff has made these averments to show the motive of defendant to deny her relationship with the plaintiff and status of plaintiff as the daughter of Late. M.H. Jayaprakash Narayan and defendant.
29. The law is fairly well settled that pleadings will have to be read in entirety and pleadings cannot be read in isolation to reach at one conclusion or the other. Therefore, the submission of learned counsel for defendant that plaintiff has described herself as the foster daughter of Late. M.H. Jayaprakash Narayan and defendant cannot be accepted. In any event, there is serious dispute between parties regarding relationship, which cannot be decided till a full-fledged trial is held. These are the questions to be gone into during trial.
30. The plaintiff has relied upon the admissions made by defendant in judicial proceedings, which at this stage cannot be ignored by this court. It is for the defendant to establish that admissions made by her were under misconception of facts or such admissions were made under peculiar circumstances without there being any intention to accept plaintiff as the daughter of late M.H. Jayaprakash Narayan and defendant. The defendant can rebut evidentiary value available in favour of plaintiff at this stage, by adducing evidence during trial.
31. The learned trial judge without considering documents relied upon by parties has held that plaintiff has failed to make out a prima-facie case. The learned trial judge entirely relying on plaint averments has held that plaintiff has failed to aver that she is the natural daughter of Late. M.H. Jayaprakash Narayan and defendant.
The learned trial judge entirely relying on averments made in Para 19, 20, 22 and 25 of plaint has held that plaintiff is not sure that she is the natural daughter of Late. M.H. Jayaprakash Narayan and defendant. As already stated, the pleadings will have to be read in entirety and not in isolation. The learned trial judge has failed to consider the evidentiary value and admissions made by defendant in judicial proceedings. Therefore, the impugned order cannot be sustained.
32. The next point for consideration is:
Whether plaintiff is entitled to an order of Temporary Injunction to restrain defendant from alienating suit schedule property during pendency of suit?
The entitlement of plaintiff to half share in suit schedule properties is disputed however, entitlement of defendant to half share in suit schedule properties has not been disputed. In Para 1 of this judgment, I have given the description of suit schedule properties. They are part and parcel of land bearing Sy. No. 28. Therefore, there is no justification for plaintiff to seek an order of temporary injunction to restrain defendant from alienating her undivided half share in suit schedule properties. However, in order to protect the interest of plaintiff, it is necessary to restrain defendant from alienating half share in plaint ''A'' and ''B'' schedule properties.
33. In view of the discussion made supra, I hold that the learned trial judge has failed to appreciate pleadings and documents in proper perspective. The approach of the learned trial judge is perverse and capricious. Therefore, the impugned order cannot be sustained.
34. As already stated, defendant had made an application under Order 26 Rule 10-A CPC, to subject plaintiff and defendant for DNA test to ascertain whether there is any biological relationship of daughter and mother between them and if need be, also subject natural father of plaintiff, Muniyappa S/o Dodda Huchappa to DNA test.
35. Sri. Uday Holla, learned Senior counsel for defendant would submit that DNA test as aforestated would put an end to the litigation once and for all.
36. In the discussion made supra, I have held that status of the plaintiff as natural daughter of Late. M.H. Jayaprakash Narayan and defendant is the core issue in the suit. Therefore, in these appeals filed under Order 43 Rule 1 CPC, it would not be proper for this court to undertake such an exercise. In the circumstances, liberty is reserved to defendant to pursue this application before the trial court. In the result, I pass the following:
ORDER
i) MFA 2789/2012 is dismissed.
ii) MFA 2790/2012 is accepted in part. The impugned order in MFA 2790/2012 is modified. The defendant is restrained from alienating half share in pliant ''A'' and ''B'' schedule properties, pending disposal of suit.
iii) The defendant is at liberty to pursue the application filed under Order 26 Rule 10-A CPC before the trial court.
The learned trial judge shall decide the case on merits within a period of six months from today, for which both parties shall extend their co-operation.
