Bangalore District Court
Rajeshwari P Alias Radha vs Anupama S G on 21 September, 2024
Judgment 1 OS.2189/2008
0KABC010105812008
BEFORE THE COURT OF XXXIX ADDITIONAL
CITY CIVIL & SESSIONS JUDGE, (CCH-40),
BENGALURU CITY.
PRESENT: K. Vidya B.Sc., M.A., LL.M.,
XXXIX Additional City Civil &
Sessions Judge, Bengaluru City.
O.S.2189/2008
Dated this the 21st day of September, 2024
BETWEEN:
PLAINTIFF:
P. Rajeshwari @ Radha
W/o H.S. Vijaykumar,
Judgment 2 OS.2189/2008
Aged about 51 years,
Nagasri Nilaya,
Ramakrishna Layout,
Near Gandhi circle,
Channarayapatna,
Hassan district.
(By Sri.B.R.Ramachandra
Reddy. Advocate)
DEFENDANTS:
1. S.G. Anupama
W/o late P. Mahesh,
Aged about 36 years,
2. M. Shreyas Patel
S/o late P. Mahesh,
Aged about 16 years,
3. M. Shantipriya
D/o late P. Mahesh,
Aged about 13 years,
Judgment 3 OS.2189/2008
Sl. Nos.2 & 3 since minors
represented by their mother
Smt. S.G. Annapurna
(during pendency of suit attained
Majority and Natural guardian ship
of mothers came to be discharged)
All residing at
Jayalakshmi rice mill,
River Bank Road,
Holenarasipura,
Hassan District.
4. Jawaharlal Agarwal
S/o C.L. Agarwal,
Aged about 69 years,
#444, VIII Cross, V Main,
RMV II Stage,
Sadashivanagar,
Bengaluru - 560 094.
5. Apoorva C. Anantharamu,
D/o C. Anantharamu,
Aged about 32 years,
H.No.84/A, 10th Cross,1st Main,
Mahalakshmipuram,
Bengaluru - 560 086.
Judgment 4 OS.2189/2008
6. Ambika Prevesh
W/o Prevesh Kuzhipally,
Aged about 42 years,
7. Pravesh Kuzhipally
S/o Krishna DAS
Aged about 48 years,
Defendant No.6 & 7 are
R/at No.230, 5th Cross,
2nd stage,2nd Block,
RMV Extension,
Bengaluru - 560 094.
(D.1 to 3 By Sri.G.S. Balagangadhar.
D.4 & D.5 - Deleted
D.6 & 7 by Srinivasa N.
Advocate)
Date of Institution of Suit 30/01/2008
Nature of Suit Partition & Separate
Possession, coupled with
Mesne Profits and
Declaration
Judgment 5 OS.2189/2008
Date of Commencement
of Recording of evidence 29/06/2011
Date of which Judgment 21/09/2024
was pronounced
Total Duration Year/s Month/s Day/s
16 07 21
( K.VIDYA)
XXXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY.
:J U D G M E N T:
That, the instant Plaintiff has filed suit seeking comprehensive relief of Declaration to Declare that the Sale Deed dated 04/11/2015 is not binding on the share of Plaintiff and Judgment 6 OS.2189/2008 consequential relief of Partition & Separate Possession in respect of her legitimate share in Suit Schedule Properties as one of the joint member of Hindu undivided family coupled with Mesne Profits in the following terms:-
Firstly, to declare that the Plaintiff is entitled for her ½ legitimate share over each item of the Suit Schedule Properties.
Secondly, to pass an order for inquiry into Mesne profits.
Thirdly, to declare that, the Sale Deed dated 04/11/2015 transpired between Defendant No.3 & Defendant No.5 in Judgment 7 OS.2189/2008 respect of suit item No.5 of Suit Schedule Property is not binding on the share of the Plaintiff and to grant such other ancillary reliefs this court deems fit in facts circumstances of the case.
2. At the outset, it is impeccable to state that the Defendant No.2 & 3 during pendency of Proceedings had attained majority, hence on allowing the application filed akin to provisions contemplated under Order XXXII Rule 12 of Civil Procedure Code, the Defacto Guardianship of Defendant No.1 namely Judgment 8 OS.2189/2008 Smt. S.G. Anupama in favour of minor wards so as Defendant No.2 & 3 came to be discharged after application came to be duly allowed and further they had adopted additional written statement filed by Defendant No.1 and in furtherance to this the Plaintiff had resorted to file Application for addition of parties and properties which came to be allowed and accordingly permitted to implead parties and properties.
Judgment 9 OS.2189/2008
3. Schedule of the properties:-
1.All that piece & parcel of residential apartment constructed by Karnataka Housing Board in National Games Housing Complex, Koramangala, Bengaluru bearing Flat No.211, in II Floor, Malaprabha Block measuring 1435.22 sft. Along with car parking area bearing No.9 measuring East-West 13 ft & North - South 9 ft., totally measuring 117 sft., bounded on :
East by : Plot No.212 West by : Corridor Judgment 10 OS.2189/2008 North by : Plot No.204 South by : Vacant space
2.All that piece & parcel of vacant site property bearing No.75, situated at IV Block, II Stage, RMV Extension.
(Lottegollahalli), Bengaluru, measuring East-West 58' & North-South 125', totally measuring 7250 sft., bounded on :
East by : Site No.76 West by : Site No.74 North by : Road South by : Private property Judgment 11 OS.2189/2008
3.All that piece & parcel of property bearing Plot No.34-B, situated at I Block, Doddanekundi, Krishnarajapura Hobli, Industrial Area, Bengaluru South taluk, measuring 4510 sqm., bounded on :
East by : KIADB Road West by : Private property North by : Plot No.35P South by : Plot No.34A
4.All that piece & parcel of residential property together with house bearing No.444, situated at 8th cross, V Main, Dollars Colony, RMV II Stage, Bengaluru Judgment 12 OS.2189/2008 measuring East-West (17.70+16.90)/2m & North-South : 21.60m bounded on :
East by : Property No.442 West by : 5th Main road North by : Property No.478 South by : 9th Main road
5.All that piece & parcel of vacant site property bearing No.271, situated at D- Block Extension III Stage, Vijayanagar, Mysuru measuring East-West 15m & North-South 24m, totally measuring 360 sqm., bounded on :
East by : Site No.272 Judgment 13 OS.2189/2008 West by : Site No.270 North by : Road South by : Site Nos.253 & 254
6.All the piece & parcel of Flat No.35/B, KIADB of Doddanekkundi K.R.Puram Hobli, Bengaluru East taluk measuring 43560 Sq. ft bounded on :
East by : KIADB Road West by : Private property North by : Flat No.34/A South by : Flat No.35/P Judgment 14 OS.2189/2008
7.Agricultural properties situated at Keregodu village, Mysooru Hobli, Holenarasipura taluk, Hassan district.
a) Sy.No.114/2 - 4 guntas
b) Sy.No.104/3 - 7 guntas
c) Sy.No.104/2 - 5 guntas
d) Sy.No.104/1B - 1 guntas
e) Sy.No.103/4B - 3 guntas
f) Sy.No.103/3 - 3 guntas conjointly situated and all bounded on the East by : Sy.No.98 West by : Sy.No.101 North by : Sy.No.109 South by : Sy.No.99 Judgment 15 OS.2189/2008
8.Agricultural properties situated at Keregodu village, Mysooru Hobli, Holenarasipura taluk, Hassan district.
a) Sy.No.171/2 - 1 acre 26 guntas
b) Sy.No.170/2 - 3 Acre 16 guntas
c) Sy.No.170/3 - 1 Acre 37 guntas
d) Sy.No.5/2 - 1 Acre 3 guntas
e) Sy.No.71/2 - 3 Acre 23 guntas
f) Sy.No.71/3 - 5 Acre 28 guntas
g) Sy.No.73 - 13 Acres 25 guntas
h) Sy.No.12/1B - 1 Acre 13 guntas conjointly situated and all bounded on the Judgment 16 OS.2189/2008 East by : Road West by : Sy.No.27 North by : Katte South by : Sy.No.169
9.Agricultural properties situated at Keregodu village, Mysooru Hobli, Holenarasipura taluk, Hassan district.
a) Sy.No.114/15 - 36 guntas
b) Sy.No.114/13 - 6 guntas
c) Sy.No.103/2 - 33 guntas
d) Sy.No.114/4 - 08 guntas
e) Sy.No.127/7 - 19 guntas Judgment 17 OS.2189/2008 conjointly situated and all bounded on the East by : Sy.No.117 & 118 West by : Road North by : Sy.No.126 South by : Sy.No.111
10.Agricultural properties situated at Keregodu village, Mysooru Hobli, Holenarasipura taluk, Hassan district.
a)Sy.No.162/3 - 3 Acres 10 guntas East by : Road West by : Sy.No.164 Judgment 18 OS.2189/2008 North by : Sy.No.166 South by : Road & Sy.No.163
b) Sy.No.165/2 - 5 Acres 10 guntas conjointly situated and all bounded on the
11.Agricultural properties situated at Paduvalahippe village, Kasaba Hobli, Holenarasipura taluk, Hassan district.
a) Sy.No.50/P1 - 4 Acres
b) Sy.No.52/2B - 12 guntas c) Sy.No.52/2A - 04 Acre 08 guntas d) Sy.No.52/1 - 04 Acre 23 guntas conjointly situated and all bounded on the Judgment 19 OS.2189/2008 East by : Ramegowda's property West by : Haraduru Boundary North by : Venkavalli Boundary South by : Road
12. Agricultural properties situated at Makavalli village, Kasaba Hobli, Holenarasipura taluk, Hassan district.
a) Sy.No.68 - 1 acre 35 guntas
b) Sy.No.81 - 1 acre 10 guntas
c) Sy.No.51/2 - 4 Acre 2 guntas
d) Sy.No.51/3 - 3 Acre 31guntas
e) Sy.No.82 - 4 acres
f) Sy.No.79 - 1 Acre 30 guntas Judgment 20 OS.2189/2008
d) Sy.No.67 - 1 Acre 35 guntas
e) Sy.No.10/8 - 2 acres 32 guntas conjointly situated and all bounded on the East by : Road West by : Sy.No.27 & Kere North by : Kattu South by : Venkategowda's property
13. Agricultural property in Sy.No.239/1 measuring 1 acre Khuski in Kasaba village, Hosenarasipura ( river / tank bund ) :
East by : Jayalakshmi Rice Mill West by : Hemavathi river Judgment 21 OS.2189/2008 North by : Khadi Board South by : Plaintiff's property Property No.171/161 measuring 50 X 40 feet situated at Holebeedhi, Ward No.11, Holenarasipura town, bounded bounded on :
East by : Devamma's property West by : Devamma's property North by : Road South by : Anjanegowda's property
14.Property No.174/164 measuring (50 +
49)/2X (50+50)/2 ft. situated at Judgment 22 OS.2189/2008 Holebeedhi, Ward No.11, Holenarasipura town, bounded on :
East by : Plaintiff's property West by : Plaintiff's property North by : Plaintiff's property South by : Drain
15.Property No.175/165 measuring (63 +
48)/2 X (40+55)/2 ft. situated at Holebeedhi, Ward No.11, Holenarasipura town, bounded on :
East by : Police Quarters West by : Plaintiff's property North by : Plaintiff's property Judgment 23 OS.2189/2008 South by : Plaintiff's property
17. Property No.176/166 measuring (50 +
63)/2 X (40+20)/2 ft. situated at Holebeedhi, Ward No.11, Holenarasipura town, bounded on :
East by : Road West by : Devamma Rice Mill North by : Anjanegowda's property South by : Plaintiff's property 18. Property No.178/168 measuring 112 X 55 ft. situated at Holebeedhi, Ward Judgment 24 OS.2189/2008 No.11, Holenarasipura town, bounded on:
East by : Road West by : Plaintiff's property North by : Urdu School South by : PLD Bank
19. Site in property No.182/171 measuring 83 X 90 & 25 X 52 ft. (Zinc sheet Rice mill) situated at Holebeedhi, Ward No.11, Holenarasipura town, bounded on :
East by : Plaintiff's property West by : Plaintiff's property Judgment 25 OS.2189/2008 North by : Plaintiff's property South by : Plaintiff's property
20. Property No.184/172 measuring 33 X 47 ft. (building ) situated at Holebeedhi, Ward No.11, Holenarasipura town, bounded on :
East by : Road West by : Jayalakshmi Rice Mill North by : Jayalakshmi Rice Mill South by : Police quarters
21. Property No.196/184 measuring 183/4 X 461/2 (building) situated at Judgment 26 OS.2189/2008 Holebeedhi, Ward No.11, Holenarasipura town, bounded on :
East by : Plaintiff's property West by : Plaintiff's property North by : Municipal property South by : Drain
22. Property No.210/195 measuring 491/2X99 ft. situated at Holebeedhi, Ward No.11, Holenarasipura town, bounded on :
East by : Plaintiff's property West by : Plaintiff's property Judgment 27 OS.2189/2008 North by : Plaintiff's property South by : Plaintiff's property
23. Property No.210/195 measuring 491/2 X 99 ft. situated at Holebeedhi, Ward No.11, Holenarasipura town.
24. Site in property No.214/99 measuring 34 X 21 & 48 X 42 ft. situated at Holebeedhi, Ward No.11, Holenarasipura town. Judgment 28 OS.2189/2008
25. Property No.213/198 measuring 60 X 50 ft. situated at Holebeedhi, Ward No.11, Holenarasipura town bounded on :
East by : Marigowda & Srinivas's property West by : Khadi Board North by : Khadi Board South by : Plaintiff's property
26. Property No.172/162 (RCC house), measuring 22/10 X 33 ¼ ft. + 4 X 35 ft inner path situated at Holebeedhi, Ward No.11, Holenarasipura town bounded on :
East by : Government Road West by : Devamma's property Judgment 29 OS.2189/2008 North by : river path (ಹೊಳೆ ದಾರಿ) South by : Anjanegowda's property {Herein after ascribed to as Suit Schedule Properties for the sake of brevity}
4. The Factual Matrix circumventing Plaint averments leading to cause of action is as follows:-
i. That, Plaintiff and her brother deceased P.Mahesh being biological children of deceased Couple G. Puttaswamy Gowda & Shantamma being members of Hindu Undivided Family and governed by Mithakshara Judgment 30 OS.2189/2008 School of Thought, wherein which, Defendant No.1 herein is the wife of deceased P.Mahesh and the Defendant No.2 & 3 are their children who are representing the estate of said Mahesh who predeceased his father, whereupon the Plaintiff and the Defendant No.1 to 3 herein are the lonely legal heirs of deceased G.Puttaswamy Gowda when factual matrix stood so, during lifetime of G.Puttaswamy Gowda, he had acquired several immovable properties, which are morefully Judgment 31 OS.2189/2008 ascribed and arrayed under various items of the schedule hereunder & hereinafter referred to as the Suit Schedule Properties (comprises intoto 22 items).
ii. That, said G.Puttaswamy Gowda, after prolonged ill health and ailments succumbed on 18/08/2006, leaving behind the Plaintiff and the Defendant No.1 to 3 as his lonely legal heirs to inherit and succeed to the estate left over by him, That after demise of Puttaswamy Gowda, the Defendant Judgment 32 OS.2189/2008 No.1 herein utterly failed to maintain the commitments of family which had high esteem and prestige in the society, as deceased Puttaswamy had garnered wide accolades and reputation as politician on account of his familial and social philanthropic values in society.
iii. That, after demise of said Puttaswamy Gowda, there was no limit whatsoever over the spend thriftiness of Defendant No.1 who was hell bent on on entering politics and claiming to Judgment 33 OS.2189/2008 protect the interest of her minor children i.e., Defendant No.2 & 3, when situation stood so, in order to curb such illegal and antagonizing acts and protect the beneficial interest of the Defendant No.2 & 3 and family as a whole, the Plaintiff had called an explanation during the month of May 2007 and in furtherance had sought for partition over the Suit Schedule Properties, but to the dismay of the Plaintiff, Defendant No.1 on one or the other pretext procrastinated the said issue Judgment 34 OS.2189/2008 and failed to arrive at common consensus despite timely interference of well wishers and elder members of the family, when situation stood so, during the first week of January 2008, she had learnt from reliable sources that Defendant No.1 surreptitiously and clandestinely is intending to dispose off all the schedule properties to represent herself as aspiring candidate in forthcoming assembly elections, wherein which in order to avoid future entanglements she was advised not to Judgment 35 OS.2189/2008 indulge in such endeavors by keeping family reputation at stake, despite which the Defendant had given deaf ears to the advise of family members and indulged in alienating the family properties i.e., the Suit Schedule Properties which would not only prejudice the interest of the Plaintiff but also tumult the beneficial interest of minor children so as Defendant No.2 and 3 and lead to multiplicity of proceedings.
Judgment 36 OS.2189/2008iv. That, considering the merits of the case, this court was pleased to grant an ad-interim order of Temporary Injunction restraining Defendant No.1 to 3 from alienating the Suit Schedule Properties in any manner whatsoever, and the same was duly communicated to the Defendant No.1 to 3, wherein which the said interim orders is in operation as on date, despite having specific knowledge about subsistence of the interim order of Temporary Injunction the Defendant No.3 in utter violation of the said interim order, had Judgment 37 OS.2189/2008 indulged in executing Registered Sale Deed dated 04/11/2015 conveying item No.5 of the Suit Schedule Property. The said sale deed executed by the Defendant No.3 in favour of the Defendant No.5 is not binding on the Plaintiff share over item No.5 of the Suit Schedule Property. Hence finding no other alternative the Plaintiff was constrained to file instant suit.
5. That, pursuant to due service of summons as against the Defendants, the primordial Defendant No.1 to 3 (wherein minor Judgment 38 OS.2189/2008 Defendant No.2 & 3 represented by their Defacto Guardian Defendant No.1) had appeared before court through their counsel, and had filed detailed written statement by denying the averments made by the Plaintiff in the Plaint and set up specific denials that late G. Puttaswamy Gowda had separated from his biological father and brothers at Keragodu village of Holenarasipur taluk and after availing loan from his friends, had started a Fertilizer shop at Holenarasipura in Hassan Taluk during the year 1950 and by carrying business in Fertilizers for substantial period had generated income Judgment 39 OS.2189/2008 and in furtherance to this after availing loan from various sources, had started Rice Mill in small scale and out of the income generated from Fertilizers and Rice Mill, had started acquiring properties out of his individual efforts, exertions and hard working, at that juncture his lonely son P. Mahesh, husband of the Defendant No.1 predeceased his father during the year 1988 at young age survived by him his wife and children, so as Defendant No.1 to 3 and said Puttaswamy Gowda, wherein which Defendant No.1 had taken up the herculean task of saving family from savages and Judgment 40 OS.2189/2008 ravages, wherein which said G.Puttaswamy Gowda who had reposed confidence in Defendant no.1 for the reasons she had become widow at early age had made up his mind to confabulate better security on the minor Defendants, whereupon had executed Registered Will dated 16/06/2006 bequeathing the properties in favour of the Defendant No.2 and 3 wherein which wife of Puttaswamy Gowda so as Shanthamma had also demised during year 1988 and unfortunately his son Sri.P.Mahesh, the lonely son of Sri.G.Puttaswamy Gowda also had predeceased in his young age leaving Judgment 41 OS.2189/2008 behind him the Defendants as stated supra, and on account of which the family of G.Puttaswamy Gowda, after the death of P.Mahesh was left in lurch as G.Puttaswamy Gowda has lost his lonely son, at that juncture Defendant No.1 had taken up the task of management and up liftment of the family and the properties and on the said walk had toiled hard to look after welfare of family of G.Puttaswamy Gowda and family properties owned by him.
6. That, during the year 1999 G.Puttaswamy Gowda succeeded in the parliamentary Judgment 42 OS.2189/2008 elections and whereupon reposed confidence and showered utmost love and affections towards these Defendants and had realized the fact that necessary and relevant measures has to be taken to safeguard the interest of the minor Defendants and accordingly had expressed his desire to execute a Will with regard to the properties under lis. Though, he was ailing intermittently was in sound state of mind and disposition as a prudent persona of rational thinking till his last breath. Accordingly, when he was of sound health and disposing state of mind had executed a Judgment 43 OS.2189/2008 Registered Will dated 16/06/2006 bequeathing all his properties out of his free will and volition and factually deceased G.Puttaswamy Gowda in order to up keep the Suit Schedule Properties, establishing Rice Mill and achieving progress of the minor children, had hired loan to the tune of ₹.68,00,000/- outstanding in the State Bank of Mysuru, APMC Branch and loan to the tune of ₹.71,00,000/- outstanding with Karnataka State Financial Corporation, Hassan, wherein which agricultural loan to the tune of ₹.28,00,000/- before corporation Bank was availed. These loans were incurred Judgment 44 OS.2189/2008 by G.Puttaswamy Gowda during his life time and the Defendants are burdened with discharging the above loan due to his demise as legal duty is cast on them.
7. That, the Plaintiff after obtaining the copy of the Registered Will has made the properties mentioned in the schedule therein as subject matter of suit, which have already taken various ramifications and manifestations on account of valid sale transactions to prospective purchasers and whereupon instant suit sans merit.
Judgment 45 OS.2189/2008
8. That, the item No.1 of the property mentioned in the Suit Schedule Property came to be allotted to Sri.G.Puttaswamy Gowda by Karnataka Housing Board, similarly Item No.2 of the suit schedule is a site which is allotted in favour of G.Puttaswamy Gowda by the Bengaluru Development Authority, Bengaluru akin to quota of Member of Legislative Assembly, Item No.3 is allotted in favour of G.Puttaswamy Gowda by Karnataka Industrial Area Development Board Bengaluru, Item No.4 is the property for which an Agreement of Sale is executed by Judgment 46 OS.2189/2008 one Sri.Ghanashyam in favour of Sri.G.Puttaswamy Gowda and accordingly a suit for specific performance came to be filed by G.Puttaswamy Gowda with regard to this property and in furtherance to this law suit had been filed against Mr. Ganashyam and the said suit is pending before the City Civil Court at Bengaluru in OS No.1511/03. However under the Registered Will G.Puttaswamy Gowda has reserved the right to prosecute the suit and bequeath same in favour of Defendant No.2 subject to its outcome. Item No.5 is the vacant site which is allotted by Musuru Urban Development Judgment 47 OS.2189/2008 Authority in favour of Sri.G.Puttaswamy Gowda and under the above said Will the property came to be bequeathed in favour of the Defendant No.3. The agricultural lands situated at Keragodu village are the properties bequeathed by late Sri.Patel Gidde Gowda in favour of Sri.P.Mahesh, the husband of the Defendant No.1 and the father of Defendant No.2 & 3 respectively. The agricultural property situated at Padavala hippe village mentioned in item No.7 was acquired by G.Puttaswamy Gowda on his own strength and so also the properties at item No.8. The properties at Judgment 48 OS.2189/2008 Holenarasipura town mentioned in item No.9 were all acquired by G.Puttaswamy Gowda out of his own personal skill and exertions. Thus the properties mentioned in the suit schedule are all self acquired properties of G.Puttaswamy Gowda and hence he had unfettered rights and title to dispose those properties to any person of his own choice and accordingly under the extenuating circumstances narrated above, Sri.G.Puttaswamy Gowda out of his free will and volition had executed the Registered Will dated 16/06/2006 bequeathing the Suit Schedule Properties thereunder. In view of Judgment 49 OS.2189/2008 the said Will item No.1 of the Suit Schedule Property is bequeathed in favour of the Defendant No.3 and other items are all bequeathed in favour of the Defendant No.2, who is sole male member of the family of G.Puttaswamy Gowda. It is the Defendant No.1 who is leading kind light of the family of Sri.G.Puttaswamy Gowda as daughter-in- law and accordingly, these properties are bequeathed in their favour.
9. That, the Plaintiff who is very well aware of all these factors has confirmed and affirmed the factum of execution of the purported Judgment 50 OS.2189/2008 Will and also the fact that the Will is made to be operative after the death of deceased G.Puttaswamy Gowda, despite which the Plaintiff out of ill-will and with personal vengeance though given in marriage to Mr. Sreekantaiah who was several times in the portfolio of Minister ship of benign Government and is owning movable and immovable properties worth millions, despite this she has chosen to file this vituperative suit seeking relief of partition in guise of declaration to avoid court fees. Judgment 51 OS.2189/2008
10. That, the various averments, allegations and accusations made by her in the plaint against these Defendants is loaded and jaded with falsehood, shoddiness and disparaging version.
11. That, the Defendant No.1 reserves her right to initiate appropriate action against the Plaintiff for having made the defamatory and derogatory allegations. Hence, on these amongst other grounds prayed to dismiss the suit with exemplary costs and deserving rights to filed additional written statement. Judgment 52 OS.2189/2008
12. Per contra, Defendant No. 5 maintained separate memorandum of Written Statement and had adopted additional written statement of Defendant No.1 to 3 and in furtherance to this urged that Defendant No.3 who is the grand daughter and successor, to item No.5 of the Suit Schedule Property in accordance with the Registered Will dated 16/06/2006 of her grandfather Deceased G.Puttaswamy Gowda, who died on 18/08/2006 was initially being represented by the Defendant No.1 who is her mother and natural guardian in the suit. On 25/03/2008 an ad-interim ex-parte Judgment 53 OS.2189/2008 order of Temporary Injunction came to be granted and on 26/11/2009 it has been recorded in the order sheet that the Counsel for Plaintiff is present and none were allowed to take advantage of Ad-interim order of Temporary Injunction passed. Wherefore, the ad-interim order of Temporary injunction was ordered to be in force till the next date of hearing, accordingly the interim order of Temporary Injunction was in operation till 09/12/2009. Further, on 09/02/2015 Learned Counsel had filed power for Defendant No.3 with a copy of the Secondary School Leave Certificate marks sheet and the Judgment 54 OS.2189/2008 date of birth of Defendant No.3 in the said SSLC Marks card shown as 17/05/1994 and accordingly Interlocutory Application titled I.A.No.XVIII came to be allowed and guardianship of Defendant No.3 was discharged and cased posted for further evidence of Defendant on 31/03/2015.
13. That, Defendant No.3 after attaining majority being in possession and without suffering any Order of Injunction has sold and delivered possession to the Defendant No.5 so as the item No.5 of the Suit Schedule Property through Registered Sale Judgment 55 OS.2189/2008 Deed dated 04/11/2015 relying on her title, based on the bequeath made from her grand father Deceased G. Puttaswamy Gowda through Registered Will dated 16/06/2006 as stated supra.
14. That Defendant No.5 by virtue of Gift Deed dated 29/10/2018 has gifted item No.5 of the Suit Schedule Property purchased by her to her father Sri.C.Anantharamu and put him in possession of the property for raising funds and utilize his funds to put up the structure thereon and which activity has been accomplished by him. That, the said Judgment 56 OS.2189/2008 Defendant No.5 has spent substantial amount for the purpose of Item No. 5 of the Suit Schedule Property and her father has spent his terminal benefits and borrowed the funds by pledging the property as security and had completed the construction thereon. In the said circumstances the Defendant No.5, her father and fund providers, will be put to substantial hardship in respect of Item No. 5 of the Suit Schedule Property which is already partitioned and result in multifariousness and monetary loss, hence on these amongst other grounds prayed for dismissal of case. Judgment 57 OS.2189/2008
15. Penultimately Defendant No.6 filed memorandum of Written Statement on the lines of Defendant No.5 which came to be adopted by Defendant No.7 and urged that Defendant No.3 being grand daughter, Defendant No.2 being grandson of deceased G. Puttaswamy Gowda and Defendant No.2 is the successor to item No.2 of the Suit Schedule Property in accordance with the Registered Will dated 16/06/2006 testated by his grandfather deceased G.Puttaswamy Gowda who died on 18/08/2006 and admittedly the properties of deceased Judgment 58 OS.2189/2008 G.Puttaswamy Gowda which form the Suit Schedule Properties, was his self acquired property and on strength of the same had executed a registered sale Will dated 16/06/2006 in favour of the Plaintiff and Defendants. The Plaintiff has admittedly benefited from the Will for having sold her share of property which came to her under the very same Testament in which the item No.2 of the Suit Schedule Property was bequeathed in favour of Defendant No.2 and in furtherance to this the consequent revenue records and khatha were also transferred in the name of the Defendant Judgment 59 OS.2189/2008 No.2, who is none other than the vendor of Defendant No.6 & 7, on account of which right to sue by instant Plaintiff as against Defendant No.2 nor Defendant 6 & 7 does not survive for consideration, whereupon the question of seeking alleged partition does not arise.
16. That, the Plaintiff at no point in time is in joint possession as alleged by her and plain pleading is not sufficient to substantiate the joint possession on the properties as there is severance of status as the Will is acted upon by Plaintiff as she has taken away her share, Judgment 60 OS.2189/2008 by acting upon the Will and had exercised her right of selling her share to third parties.
17. That, the Defendant No.6 & 7 are bonafide purchasers for valid consideration and have purchased the same under due care and caution after due scrutiny of title of the property.
18. That, the Plaintiff has no right to challenge the same in guise of vituperative litigation on imaginary grounds and on the foothold of blatant misrepresentation suit is filed in the Judgment 61 OS.2189/2008 present frame in order to avoid court fees moreso it suffers from law of limitation.
19. That, Defendant No.6 & 7 have spent substantial amount for the purchase of item No.2 of the Suit Schedule Property with an intention to refurbish their property and are facing several facades before Bruhat Bengaluru Mahanagara Palike for not amalgamating the Khata of Defendants No.6 & 7 and it had intimated the Defendant No.6 & 7 that necessary clearance would be given only after outcome of this suit. Judgment 62 OS.2189/2008
20. That, in furtherance to the Written Statement the Defendant No.1 & 2 had maintained Additional written statement after amendment came to be effected to the Plaint by Plaintiff, who interalia had asserted that the allegations made in paragraph No. 9-A whilst denying that interim order was in force and knowing well, in violation of interim order, Sale Deed dated 04/11/2015 came to be executed wherein which on 09/12/2009 interim order was not in operative and wherefore the purported allegations that in violation of the interim order there was alienation on 04/11/2015 Judgment 63 OS.2189/2008 with regard to item No.5 of the Suit Schedule Property is neither tenable nor sustainable.
21. That, whilst negating the allegations in respect of item No.5 of the Suit Schedule Property, so as to say it has been alienated in favour of Defendant No.5 to deprive the rights of Plaintiff over her legitimate right in respect of item No.5 of the Suit Schedule Property false urged that the alienation so as the sale deed executed by the Defendant No.3 in favour of Defendant No.5 is not binding on the Plaintiff's share over item Judgment 64 OS.2189/2008 No.5 of the Suit Schedule Property. The relief of declaration sought with regard to sale deed dated 04/11/2015 is barred by limitation and it is also barred by principle of Estoppel as the Plaintiff had acknowledged the recitals of Registered Will dated 16/06/2006 and has alienated the property i.e., item No.1 of Suit Schedule Property which is bequeathed in favour of Plaintiff and also under Registered Sale Deed dated 12/07/2011 in favour of Smt. Sumithra and Sri.H.Murthy and on the same pedestal Defendant No.3 filed memo seeking adoption of Additional Written Judgment 65 OS.2189/2008 Statement filed by the Defendant No.1 and 2 respectively.
22. That, based on the material proposition asserted by Plaintiff and rival contentions and plea set up parties to lis Learned Predecessors in Office had framed issues and Additional Issues, which are extracted infra:-
:ISSUES:
1. Does the Defendants prove that late Puttaswamy Gowda father of Plaintiff and father-in-law of Defendant No.1 has executed will in favour of Defendants ? Judgment 66 OS.2189/2008
2. Whether Plaintiff proved that she is entitled to partition ?
3. If so, what decree or order ?
:ADDITIONAL ISSUES DATED 23/08/2019:
1. Whether the Plaintiff proves that the sale deed executed by Defendant No.3 in favour of Defendant No.5 dated 04/11/2015 is not binding upon her ?Judgment 67 OS.2189/2008
2. Whether the Defendant No.5 proves that she is the bonafide purchaser of suit schedule item No.5 property ?
3. Whether the court fee paid by the Plaintiff is proper?
:ADDITIONAL ISSUES FRAMED ON 07/03/2020:
4. Whether the Plaintiff proves that Suit Schedule Properties are joint family properties of Plaintiff and Defendant No. 1 to 3 ?Judgment 68 OS.2189/2008
23. That, the Plaintiff in order to bring home the fact that, she is entitled for her legitimate shares in respect of Suit Schedule Properties and declaration of sale deed dated 04/11/2015 as null and void, got examined perse as PW.1 and coupled to oral evidence, during ocular evidence got exhibited documents at Ex.P1 to Ex.P42 and closed her side.
24. On contra during rebuttal, on behalf of contesting Defendants, Defendant No.3 had offered to examine herself as DW.1 and Judgment 69 OS.2189/2008 deposed in consonance with Written Statement Averments, interalia examined one supporting witness as DW2 and Defendant No.2 and Defendant No. 7 as DW3 and DW4 respectively coupled with oral evidence, interalia during ocular evidence got exhibited documents at Ex.D1 to Ex.D19 respectively and closed their side.
25. That, Heard the Learned counsel for Plaintiff Sri. P.R.R. and Counsel appearing on behalf of contesting Defendants. wherein besides forceful arguments Learned Counsel for Defendant No.1 to 3 Sri. G.S.B maintained Judgment 70 OS.2189/2008 memorandum of written arguments in form of synopsis cited in succeeding paragraphs.
26. That, during arguments Learned Counsel for Plaintiff forcefully argued on pedestal of facta probantia and facta probanda and appraised that the purported Will has not been proved on the touch stone of arm chair rule and hence it is non-est in eyes of law as it is shrouded with infirmities and irregularities, on contra Learned Counsel for Defendant No.1 to 3 argued on touch stone of Written Statement and Additional Written Statement and further relied on the dictums Judgment 71 OS.2189/2008 titled and cited infra, which are taken note off and referred as and when required in given set of circumstances.
AIR 1988 KARNATAKA 116
Regular appeal No.6 of
1976, D/- 30-04-1987
Hindu Law- Mitakshara
School-Will by father-
Testator whether intended to confer absolute estate on his sons exclusively or it is a scheme for allotment of their due shares - Intention Judgment 72 OS.2189/2008 to be gathered from language of document along with surrounding circumstances. Succession Act (39 of 1925), S.95 -
Where a father from Mitakshara School executes a will in favour of his sons, whether the testator intended to confer an absolute estate on his sons exclusively or is it a scheme for allotment of their due Judgment 73 OS.2189/2008 shares, is to be gathered from the language of the document taken along with the surrounding circumstances.
In the instant case the properties bequeathed under the will were the self acquisition of the testator.
The testator after reciting the reasons for execution of a will and referring to his two earlier wills had stated Judgment 74 OS.2189/2008 that the present deed shall be the final will distributing all his assets amongst his sons with a view to obviate future troubles; and the particulars of properties bequeathed to each of his sons were also set out in schedule to the deed. He had not retained a share to himself as is done in the case of partition as amongst the members of joint Hindu family. There is no reference Judgment 75 OS.2189/2008 to right of female heirs, if any.
Held that, from a reading of the document as a whole, and the surrounding circumstances, the intention of the testator was explicit, i.e., to confer an absolute right of enjoyment on his sons with unrestricted power of alienation.
Partition, under Hindu Law, has its own connotation.
Judgment 76 OS.2189/2008
There is a world of difference between partition and distribution. Partition effected by a father as a ' patria protesta ' implies equal allotment of shares, but distribution may be equal or unequal. Partition implies a right of a member of a joint Hindu family or of a co-owner ; but distribution need not necessarily flow from an existing right.
Judgment 77 OS.2189/2008Thus, the purport of the deed was to bequeath all his belongings in favour of his sons and it is not possible to infer that the testator wanted simply to make a division of his properties with a view to avoid disputes in future. The words found in the deed must be construed according to their strict and primary meaning unless from the context in which they are Judgment 78 OS.2189/2008 used, they bear different sense or meaning.
2004(1) KCCR 508 S. Padamavathamma Vs S.R.Srinivasa and Others A. INDIAN SUCCESSION ACT, 1925 - Section 68 - Proof of will - when a party has admitted in a previous litigation the existence of Will, it is not necessary to prove the Will by examining attesting witnesses. . Hindu Judgment 79 OS.2189/2008 Succession Act, 1956 -
Section 15 - The provision of section 15(2) applies only when the property is acquired by a female by way of intestate succession, otherwise , the property will devolve as directed under Section 15(1) of the Act. The word "inherited" employed in Section 15(2) does not include in its fold acquisition of right by other modes and devises like Judgment 80 OS.2189/2008 inter-vivos transfer of right or by will.
This appeal is filed against the judgment and decree passed in RA 21 of 2000 on the file of Civil Judge (Sr.Divn), Mysore arising out of the judgment and decree passed in O.S.1434 of 1990 which was originally numbered as O.S.No.195 of 1986.
Judgment 81 OS.2189/2008The appellant are the Lrs of the Defendant no.1.
Respondents 1 to 5 filed the suit for declaration of title to the suit property and possession from the 1st Defendant. The Plaintiff contend that Smt.Puttathayamma is the propositus. Her son, subbarao pre-deceased her without any issues. After the demise of Puttathayamma, her three Judgment 82 OS.2189/2008 daughters, Smt.Lalithamma Smt. Kalamma and Smt. Indiramma were entitled to succession in equal share of 1/3rd each.
Smt.Kamalamma dies issueless. The Plaintiff contend that Indiramma also died issueless.
Therefore, the Plaintiff who are the the children of Lalithamma claim that their mother would be entitled to succeed to the Judgment 83 OS.2189/2008 estate of Indiramma and inturn after the demise of their mother, are entitled to the estate. Defendants 2 and 3 were tenants in the premises under the 1st Defendant. The 1st Defendant disputes title of the Plaintiff and contends that Puttathayamma executed a Will in favour of Indiramma and that the heirs of the husband are entitled to succeed to the Judgment 84 OS.2189/2008 estate and not the Plaintiff.
Hence, pray for dismissal of the suit.
The trial court upholds the contention of the 1st Defendant that Puttathayamma executed a Will in favour of Indiramma and also finds that the Plaintiff are not entitled to succeed to the estate of Indiramma, in view of the provisions contained in Judgment 85 OS.2189/2008 Section 15 of the Hindu Succession Act ( in short, referred to as the Act). Thus, rejects the claim of the Plaintiff. The first appellate court finds that the will set up by the 1st Defendant executed by Puttathayamma in favour of Indiramma under Ex.D7 is shrouded with suspicious circumstances and that the 1st Defendant as the propounder, has not Judgment 86 OS.2189/2008 explained convincingly the suspicious circumstances to establish genuineness and validity of the Will. Thus, holds that the Plaintiff have proved their title to the suit property as the natural successors to the estate and set aside the judgment and decree of the trial court, and allowed the appeal and t he suit. Being aggrieved, the Lrs of the 1st Defendant have preferred this appeal.
Judgment 87 OS.2189/2008
27. That, after careful perusal of pleadings, materials on records, oral and documentary evidence and bestowing anxious consideration to the arguments addressed by Learned Counsel for Plaintiff and Defendants the findings on the above issues are as follows:
Issue No.1: In the Affirmative (In light of Discussions) Issue No.2 : In the Negative Additional Issue No. 1: In the Negative (In light of Discussions) Judgment 88 OS.2189/2008 Additional Issue No.2 : In the Affirmative Additional Issue No.3: Does not survive for consideration Additional Issue No.4: In the Negative Issue No.3: As per final order for the following:
:R E A S O N S:
28. Issue No.1, 2 and Additional Issue No.1 to 4:-
As these Issues are intricated with each other and findings given on one Issue has great bearing with another, they are taken together for consideration in order to avoid repetition of facts and appreciation of evidence.Judgment 89 OS.2189/2008
29. At the outset, it is vital to take note of the fact that, the instant suit is filed by the Plaintiff seeking to enure the relief of partition and separate possession of her legitimate share over the Suit Schedule Properties and declare that the alleged sale transactions interse amongst Defendants is non est on the count that, it is emanating from joint family nucleus without there being partition amongst the members of joint family.
Judgment 90 OS.2189/2008
30. Per contra, amongst seriously contesting Defendant No.1 to 3, Defendant No.5 to 7 have taken defense that they are bonafide purchasers for valid consideration who had purchased same through Registered Sale Deed executed by Defendant No.2 & 3 banking upon the registered Will foreseeing the legal consequences and hence it is incumbent upon them to prove same as the burden of proving same rests with them.
31. That, during trial in order bring home the bone of contention assailed by Plaintiff in Judgment 91 OS.2189/2008 plaint, Plaintiff perse got examined herself as PW.1 and deposed in consonance with plaint averments and in furtherance to oral evidence, during ocular evidence got exhibited documents at Ex.P1 to Ex.P42, wherein which Ex.P1 is the certified copy of Registered Sale Deed dated 24/09/2009 Ex.P2 comprises five R.T.C. Extracts, Ex.P3 is Death Certificate of deceased Puttaswamy Gowda, Ex.P4 is Encumbrance Certificate, Ex.P5 comprises Certified Copy Sale Deed dated 04/11/2015, Ex.P6 comprise Encumbrance Certificate issued in respect of property No.15 dated 10th August 2018, Judgment 92 OS.2189/2008 Ex.P7 comprises Mutation Register Extract No.27 in respect of Property situated at Holenarasipura Taluk, Hassan, Ex.P8 comprises Certified Copy of the Mutation Register Extract No.8 in respect of Property situated at Keregodu, Ex.P9 comprises Certified Copy of the Mutation Register Extract issued in respect of property No.16 situated at Makavalli, Ex.P10 comprises Certified Copy of the Mutation Register Extract No.18 issued in respect of Property situated at Paduvalahippe, Ex.P11 comprise Demand Register Extract and Property tax paid register extract issued in respect of Judgment 93 OS.2189/2008 property No.210/195, Ex.P12 comprise Demand Register Extract and Property tax paid register extract issued in respect of property No.209/194, Ex.P13 comprise Demand Register Extract and Property tax paid register extract issued in respect of property No.208/193, Ex.P14 comprise Demand Register Extract and Property tax paid register extract issued in respect of property No.196/184, Ex.P15 comprise Demand Register Extract and Property tax paid register extract issued in respect of property No.184/172, Ex.P16 comprise Demand Register Extract and Property tax Judgment 94 OS.2189/2008 paid register extract issued in respect of property No.183/171/A, Ex.P17 comprise Demand Register Extract and Property tax paid register extract issued in respect of property No.182/171, Ex.P18 comprise Demand Register Extract and Property tax paid register extract issued in respect of property No.180/169/17, Ex.P19 comprise Demand Register Extract and Property tax paid register extract issued in respect of property No.179/169, Ex.P20 comprise Demand Register Extract and Property tax paid register extract issued in respect of property No.178/168, Ex.P21 comprise Judgment 95 OS.2189/2008 Demand Register Extract and Property tax paid register extract issued in respect of property No.177/167, Ex.P22 comprise Demand Register Extract and Property tax paid register extract issued in respect of property No.176/166, Ex.P23 comprise Demand Register Extract and Property tax paid register extract issued in respect of property No.175/165, Ex.P24 comprise Demand Register Extract and Property tax paid register extract issued in respect of property No.174/164, Ex.P25 comprise Demand Register Extract and Property tax paid register extract issued in respect of Judgment 96 OS.2189/2008 property No.172/162, Ex.P26 comprise Demand Register Extract and Property tax paid register extract issued in respect of property No.171/161, Ex.P27 comprise Demand Register Extract and Property tax paid register extract issued in respect of property No.213/198, Ex.P28 comprise Demand Register Extract and Property tax paid register extract issued in respect of property No.214/199, Ex.P29 comprise certified copy of R.T.C. Register Extract in respect of property bearing Re.Sy.No.82 of Paduvalahippe village, Ex.P30 comprise certified copy of R.T.C. Register Extract in Judgment 97 OS.2189/2008 respect of property bearing Re.Sy.No.51/3 of Paduvalahippe village, Ex.P31 comprise certified copy of R.T.C. Register Extract in respect of property bearing Re.Sy.No.52/1 of Paduvalahippe village, Ex.P32 comprise certified copy of R.T.C. Register Extract in respect of property bearing Re.Sy.No.51/2 of Paduvalahippe village, Ex.P33 comprise certified copy of R.T.C. Register Extract in respect of property bearing Re.Sy.No.52/2A of Paduvalahippe village, Ex.P34 comprise certified copy of R.T.C. Register Extract in respect of property bearing Re.Sy.No.50/1P of Paduvalahippe village, Ex.P35 comprise Judgment 98 OS.2189/2008 certified copy of R.T.C. Register Extract in respect of property bearing Re.Sy.No.68 of Makavalli village, Ex.P36 comprise certified copy of R.T.C. Register Extract in respect of property bearing Re.Sy.No.81 of Makavalli village, Ex.P37 comprise certified copy of R.T.C. Register Extract in respect of property bearing Re.Sy.No.103/4B of Keregodu village, Ex.P38 comprise certified copy of R.T.C. Register Extract in respect of property bearing Re.Sy.No.103/3 of Keregodu village, Ex.P39 comprise certified copy of R.T.C. Register Extract in respect of property bearing Re.Sy.No.104/1B of Keregodu Judgment 99 OS.2189/2008 village, Ex.P40 comprise certified copy of R.T.C. Register Extract in respect of property bearing Re.Sy.No.104/2 of Keregodu village, Ex.41 comprise certified copy of R.T.C. Register Extract in respect of property bearing Re.Sy.No.239/1 of Holenarasipura village, Ex.P42 comprise certified copy of R.T.C. Register Extract in respect of property bearing Re.Sy.No.104/3 of Keregodu village.
32. On contra, during rebuttal Defendant No.1 got examined herself as DW1 and deposed in consonance to written statement averments and had got exhibited documents Judgment 100 OS.2189/2008 at Ex.D1 to Ex.D5 and in furtherance to this got examined Defendant No.2 as DW2 and through him had got exhibited documents at Ex.D6 to Ex.D19 and further examined corroborating one corroborating witness by name H.N.Ramakrishnaiah as DW3 and Defendant No.7 as DW4, wherein Ex.D.1 comprise registered Will dated 16/06/2006 executed by G.Puttaswamy Gowda, Ex.D2(1) to Ex.D2(20) comprises of RTC extracts, Ex.D3(1) and D3(2) comprises of encumbrance certificates, Ex.D4 comprise certified copy of the Will dated 29/01/1976 executed by Patel Giddegowda, Ex.D5(1) to Judgment 101 OS.2189/2008 Ex.D5(18) comprises of khata certificates issued by Town Municipality, Holenarasipura, Ex.D.6 comprise absolute sale deed dated 12/07/2011 executed by Smt.P.Rajeshwari so as Plaintiff in favour of Smt.Sumithra M and another, Ex.D7 comprise sale deed dated 13/01/1963 executed by H.R.Venkatakrishna shetty in favour of G.Puttaswamy Gowda, Ex.D8 to D11 comprises Sale deeds dated 07/05/1963, 24/04/1963, 25/03/1966 & 19/08/1967 respectively, Ex.D12 comprise certified copy of Will dated 30/01/1976 executed by Patel Giddegowda, Ex.D13 to Judgment 102 OS.2189/2008 D19 comprises of certified copy of Sale Deeds dated 18/01/1982, 19/08/1983, 26/04/1984, 28/01/1985, 26/11/1985, 31/01/2004 & 15/12/1989 respectively revealing the acquisition, flow and exchange of titles.
33. At the outset it is vital to state that in suit for partition where the Plaintiff asserts that the properties in lis partake character of joint family and there is no severance of status, the initial burden rests on the very Plaintiff to bring home the said bone of contention on the foothold of cogent Judgment 103 OS.2189/2008 materials without barging on the weakness of opponent as the initial burden rests with the party who has come before court seeking relief and on the said pedestal this court derives support from the salubrious dictum of Hon'ble Apex Court cited in 2007(1) KLJ 177(SC) titled as AP.Chandegade Vs. DP.Chandegade and others and Division Bench decision of Hon'ble High Court of Karnataka cited as ILR 1990 KAR 2303 titled as Rajasekarappa Vs. Siddananjappa. In the decision cited as 2007(1) KLJ 177(SC) wherein their lordships have intellectually deliberated and Judgment 104 OS.2189/2008 laid down as under and it is profitable to catch glimpse of same:-
"....Whenever a suit for
partition and
determination of share
and possession thereof is
filed, then initial burden is on the plaintiff to show that entire property was a joint Hindu family and after initial discharge of the burden, it shifts on the Defendants to show that Judgment 105 OS.2189/2008 the property claimed by them was not purchased out of the joint family nucleus and it was purchased independent of them..."
Further in another salubrious dictum of Hon'ble Apex Court titled Seethabai & Another Vs. Ramachandran cited at 1970 AIR SC 343 At part 'A' of the said decision their lordships have held as under : Judgment 106 OS.2189/2008
"....Under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and the property of a joint family does not cease to belong to a joint family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property may possess. The property which was joint family Judgment 107 OS.2189/2008 property of the Hindu Undivided Family does not cease to be so because of "Temporary reduction of coparcenery unit to a single individual" The Character of the property, viz., it was joint family property of a Hindu Undivided Family remains same...."
On the said backdrop when the given set of circumstances are deciphered and marshalled it becomes palpable that there Judgment 108 OS.2189/2008 is no clinching evidence to bring home that the Suit Schedule Properties resumed and emulated out of the joint family nucleus which had remained joint in the hands of Plaintiff and Defendant No.1 to 3 for the reasons that admittedly the Properties under lis were self acquired properties of deceased G. Puttaswamy Gowda and thus it crystallizes the fact that the properties at no point of time resumed joint family status, wherein though PW1 has taken specific stand that properties in lis are joint in the hands of Plaintiff and Defendant No.1 to 3, but during her cross-examination has Judgment 109 OS.2189/2008 candidly in categorical terms conceded the factum of acquisition of properties by her father during his life time and further vividly explicated that by virtue of Ex.D1 Registered Will dated 16th June 2006 executed by her father the property which was bequeathed in her favour was sold to prospective purchaser Smt.Sumithra M and another by virtue of absolute sale deed dated 12/07/2011 and in the said context it becomes relentable to extract the relevant portion of Cross-examination of PW1 which reads thus:-
Judgment 110 OS.2189/2008
"...ಸದರಿ ನಿಡಿ-1 ರಂತೆ ನನ್ನ ತಂದೆ ಮಾಡಿದಂತಹ ಮೃತ್ಯ ಪತ್ರದಲ್ಲಿ ನನಗೂ ಒಂದು ಸ್ವ ತ್ತು ಕೊಟ್ಟಿರುತ್ತಾರೆ. ವಾದಪತ್ರದ ಶೆಡ್ಯೂ ಲ್ ಅನುಕ್ರಮ ನಂ.1 ಸ್ವ ತ್ತನ್ನು ಸದರಿ ವಿಲ್ ಮುಖಾಂತರ ನನ್ನ ತಂದೆ ನನಗೆ ಕೊಟ್ಟಿರುತ್ತಾರೆ ಎನ್ನು ವುದು ನಿಜ. ಸದರಿ ವಿಲ್ ಮೂಲಕ ಬಂದ ಆಸ್ತಿಯನ್ನು ದಿಃ12.7.2011 ರಂದು ನಿಪಿ-6 ರಂತೆ ಶ್ರೀಮತಿ.ಸುಮಿತ್ರ ಮತ್ತು ಹೆಚ್.ಮೂರ್ತಿ ಎಂಬುವವರಿಗೆ ಮಾರಾಟ ಮಾಡಿರುತ್ತೇನೆ ಎನ್ನು ವುದು ನಿಜ..."Judgment 111 OS.2189/2008
in addition to this she had further in candidly and categorical terms admitted the factum of execution of Will by her father deceased Puttaswamy Gowda in favour of Plaintiff and Defendant No.1 to 3 out of his free will, volition and sound state of disposition out of his self acquired property which was not ancestral in nature, and by virtue of the recitals of said Ex.D1 Will acting upon same Defendant No.3 had sold Item No.2 of property to Defendant No.5 after attainment of majority who interalia had sold same to prospective purchasers, on the said pedestal it becomes explicable Judgment 112 OS.2189/2008 to state that those candid admissions given by PW1 on strength of documentary evidence shakes the credibility of version of Plaintiff in admitted Ex.D6 Sale Deed confronted during cross-examination for the reasons that admissions are best piece of evidence and admissions given by the maker in evidence on strength of documents goes against the maker, further it is also un-understandable to the court as to why the Plaintiff is aprobating and reprobating the purport of Will and at one stretch she affirms that Will was executed by her father out of free Will and Volition Judgment 113 OS.2189/2008 and in furtherance to this she had sold her share bequeathed out of Will to the prospective purchaser and at another stretch she has taken emphatic stand that Will is shrouded with suspicion. That, on the said backdrop when the candid admissions given by Plaintiff are deciphered on the touch stone of materials on records it becomes crystal that Plaintiff knowingfully well the status and character of Properties under lis had bent upon filing lucrative suit with mere conjuntures and surmises without challenging the validity of Will as agreed by her, when the said Judgment 114 OS.2189/2008 contentious assertions are juxtaposed with the specific defence setup by seriously contesting Defendant No.1 to 3, it becomes crystal that the prospective purchaser so as Defendant No.5 had purchased Item No. 2 amongst Suit Schedule Properties from Defendant No. 3 through registered title deed for valid consideration came in possession of the same and in this regard there is no nexus between the Plaintiff and these Suit Schedule Properties as the Defendant No.5 had verified the title and the pendency of instant suit has become stumble block for getting transferred Judgment 115 OS.2189/2008 Katha , hence a genuine doubt lurks in the mind of court that Plaintiff knowingfully well all these ground realities and factualities has filed instant frivolous suit in order to make wrongful gain though she has been given in marriage to prestigious family of Minister lineage wherein the marriage was held with pomp and show and leading aristocratic marital life after severance of joint family status and in connection a careful and vigilant perusal of materials on record placed by Defendants fortifies the primordial bone of contention that the properties in lis at no point of time Judgment 116 OS.2189/2008 evolved and emulated from joint family properties and sheerly partook character of self acquired properties of deceased G. Puttaswamy Gowda who had acquired out of his own skill and exertions and on the said pedestal in order to cull out truth when material suggestion was posed to the key witnesses examined at DW.1 to 4 respectively, they have sustained the tenor and rigour of cross-examination and thoroughly vindicated the litmus test of trial which compels the court to concur with the defence setup by Defendants in their rebuttal, hence having due regards to the Judgment 117 OS.2189/2008 oral testimony coupled with primary evidence there is no hesitation to hold that Defendant No.5 is bonafide purchaser of Item No.2 of the property for valid consideration and this court rely on the dictum of Hon'ble High Court Cited in ILR 1993 KAR 1182 titled as DR.Hampali Vs. Renukappa. Wherein their Lordships have held that:
"...The initial burden is to establish the existence of some joint family property, capable of being the nucleus from which new property or Judgment 118 OS.2189/2008 asset could have been acquired; it is not sufficient to show that the joint family possessed some assets; it is necessary to prove that the assets of the joint family may have formed the nucleus from which the disputed assets may have been acquired. Whether joint family assets could have formed the nucleus, again, depends upon their nature and relative value. Existence Judgment 119 OS.2189/2008 of such joint family property which could have formed the nucleus for the acquisition of new assets, by itself would not lead that the new assets acquired by any member of the family would be joint family property, because, such a member may not have control or command over the joint family assets. The idea is that the member who acquired the new assets may Judgment 120 OS.2189/2008 have utilised the joint family assets to acquire further assets; this is possible only if the said member was in a position to utilise the joint family asset to acquire further asset or assets."
"...the initial burden to prove the existence of sufficient family property which could form a nucleus
for other acquisition or for Judgment 121 OS.2189/2008 the business carried on by the brothers, is on the plaintiff. Existence of sufficient family asset so as to form a nucleus for further acquisition is a question of fact. Such a fact can be proved by direct evidence or circumstantial evidence.
However, circumstantial evidence should be clear,
unequivocal and clinching, as otherwise, there is every danger of the self-Judgment 122 OS.2189/2008
acquisitions of a person being lost to another who claims a share in it, based on the past prosperity of the family..."
Further in another salubrious dictum of our Hon'ble High Court of Karnataka reported in ILR 1993 KAR 1865, titled as RB.Palled Vs. Smt. Basavva. Wherein their lordships have held that :
"...If the joint family was not possessed of any sufficient nucleus from which the new Judgment 123 OS.2189/2008 property was acquired, the acquirer of the property cannot be denied the benefit of acquisition, solely because, the acquirer happened to be the manager of a joint family, in the absence of proof as to other circumstances, such as, the acquirer treating the acquired property as of the joint family, or other members of the family considering it as a joint family property by participating in its cultivation Judgment 124 OS.2189/2008 and development. A joint family is presumably "joint in food, worship and estate".
However such a presumption does not inevitably lead to the conclusion that every joint family possesses joint family properties..."
"...Two conditions require to be satisfied before holding the newly acquired property by the manager as of the property of the join family; (i) There was sufficient nucleus Judgment 125 OS.2189/2008 of the joint family property out of which the property could have been acquired; and
(ii) apart from the said joint family property, the manager had no other source of income."
"...While appreciating the evidence necessarily, the court has to look into the pleadings of the parties, because the basic facts are to be pleaded by the parties. When a definite case is pleaded by the Judgment 126 OS.2189/2008 plaintiff, normally, court will be disinclined to give relief to the plaintiff on the basis of a different set of facts nor pleaded by the plaintiff, unless the plaintiff is entitled to any relief, even on the basis of the case pleaded or proved by the Defendant..."
in so far as the bone of contention of non payment of advalorem fees is concerned as stated in superior paragraphs, when it is opined on touchstone of materials on records Judgment 127 OS.2189/2008 that Plaintiff is not entitled for any relief as prayed in prayer column of Plaint the factum of non-payment of advalorem Court Fees does not survive for consideration.
34. At this juncture, After bestowing anxious consideration to the forceful arguments addressed by Learned Counsels representing either side and decisions relied by them, At the risk of repetition it is vital to state that that the initial burden is upon the Plaintiff to prove that the Suit Schedule Properties are the joint family properties. If the Plaintiff is able to discharge the initial burden on the settled Judgment 128 OS.2189/2008 principles of preponderance of probabilities, then onus shifts on Defendants added to this the oral and ocular evidence of Plaintiff should inspire confidence in the minds of court, but in this context it is relentable to state that except self serving statement of PW1 nothing material is out coming from her evidence which would come to the aid and assistance of Plaintiff, hence the forceful contention of the Plaintiff that she is entitled for her respective share in suit schedule properties does not hold field and thereby it can be safely held that, Suit Schedule Properties were not formed out of the nucleus of joint family property rather it is self Judgment 129 OS.2189/2008 acquired property of deceased G. Puttaswamy Gowda and thereby the question of division does not arise and the very factum of Partition becomes non est in the eyes of law and on the backdrop of the said detailed deliberations it can be opined humbly that the Plaintiff has failed to discharge the initial burden cast on her, on contra the contesting Defendants during rebuttal have withstood the acid test of trial coupled with tenor and rigor of cross- examination, wherein they have deposed in unequivocal terms on the backdrop of Ex.D1 to Ex.D19 vital documents which clinches the fact that the Suit Schedule Properties were self Judgment 130 OS.2189/2008 acquired properties of deceased G. Puttaswamy Gowda, in light of which having due regards to facts and circumstances of case, Issue No.1 & Additional Issue No.2 are answered in the affirmative, Issue No.2 & Additional Issue No.1 & 4 are answered in the Negative and Additional Issue No.3 as Does not survive for consideration.
35. ISSUE No. 3:- Thus, having due regards to the facts and circumstances of the case and on the backdrop of the reasons marshaled supra this court proceeds to pass following:- Judgment 131 OS.2189/2008
ORDER That, the suit filed by the Plaintiff seeking Comprehensive relief of declaration to declare that the Registered Sale Deeds dated 04/11/2015 and 14/04/2021 respectively are not binding on the share of Plaintiff coupled with Partition and separate possession of Suit Schedule Properties by way of metes and bounds and ancillary relief of Judgment 132 OS.2189/2008 Mesne Profits stands dismissed thereof.
Looking into peculiar set of circumstances and relationship of parties costs made easy.
Office to Draw Decree Accordingly.
(Directly dictated to the Grade III stenographer over computer system, the computer script generated by her is corrected, rectified and revised by me, and then pronounced in open court on this the 21st day of September 2024) (K.VIDYA) XXXIX Additional City Civil & Sessions Judge, Bengaluru City. Judgment 133 OS.2189/2008 ANNEXURES LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFF :-
PW.1 P. Rajeshwari @ Radha
LIST OF DOCUMENTS MARKED ON
BEHALF OF PLAINTIFF :-
Ex.P1 Certified copy of Sale Deed
dated 24/09/2009
Ex.P2 Five RTC extracts
Ex.P3 Death certificate of
Puttaswamy Gowda
Ex.P4 Encumbrance Certificate
Judgment 134 OS.2189/2008
Ex.P5 Certified copy of sale deed
dated 04/11/2015
Ex.P6 Encumbrance certificate
Ex.P7 Certified copy of MR No. 27
Ex.P8 Certified copy of MR No.8
Ex.P9 Certified copy of MR No.16
Ex.P10 Certified copy of MR No.18
Ex.P11 to Demand register extracts P28 Ex.P29 to RTC extracts P42 LIST OF WITNESSES EXAMINED ON BEHALF OF DEFENDANTS:
DW.1 S.G.Anupama
Judgment 135 OS.2189/2008
DW.2 M. Shreyas Patel
DW.3 H.N.Ramakishnaiah
DW.4 Mr. Praveen Kuzhipally
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENDANTS :
Ex.D1 Registered Will dated 16/06/2006 Ex.D2(1) RTC extracts to Ex.D2(20) Ex.D3(1) Encumbrance certificates & D3(2) Ex.D4 Certified copy of the Will dated 29/01/1976 Ex.D5(1) Khata certificates to Ex.D5(18) Judgment 136 OS.2189/2008 Ex.D6 Certified copy of Sale Deed dated 12/07/2011 Ex.D6(a) Signature of PW.1 to (g) Ex.D6(h) Photograph and signature Ex.D6(i) Portion of extract in Page No.2 of Ex.D.6 Ex.D7 Certified copy of Sale Deed dated 13/01/1963 Ex.D8 Certified copy of Sale Deed dated 07/05/1963 Ex.D9 Certified copy of Sale Deed dated 24/06/1963 Ex.D10 Certified copy of Sale Deed dated 25/03/1966 Ex.D11 Certified copy of Sale Deed dated 19/08/1967 Judgment 137 OS.2189/2008 Ex.D12 Certified copy of Will dated 30/01/1976 Ex.D13 Certified copy of Sale Deed dated 18/01/1982 Ex.D14 Certified copy of Sale Deed dated 19/08/1983 Ex.D15 Certified copy of Sale Deed dated 26/04/1984 Ex.D16 Certified copy of Sale Deed dated 28/01/1985 Ex.D17 Certified copy of Sale Deed dated 26/11/1985 Ex.D18 Certified copy of Sale Deed dated 31/01/2004 Ex.D19 Certified copy of Sale Deed dated 15/12/1989 XXXIX ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
Digitally
signed by
KALASHETTY
KALASHETTY VIDYA
VIDYA Date:
2024.09.24
16:57:41
+0530