Bangalore District Court
Smt.Lakshmikanthamma vs Smt.Geetha on 24 September, 2016
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26)
Dated this the 24th day of September, 2016.
Present
Shri KRISHNAMURTHY B. SANGANNANAVAR,
B.Com., LL.B.(Spl.),
IX Addl. City Civil & Sessions Judge,
In-charge of X Addl. City Civil & Sessions Judge,
Bangalore.
O.S. NO.6420/2014
Plaintiff: 1. Smt.Lakshmikanthamma
W/o.Late Veeranna
Aged about 70 years
2. Sri Manjunath
S/o.Late Shylendra
Aged about 24 years
3. Sri Vijayachandra
S/o.Late Veeranna
Aged about 43 years
4. Sri Gajendra
S/o.Late Veeranna
Aged about 40 years
All are R/a.No.53/1,
3rd Cross, Sampige Road,
Malleshwaram,
Bangalore-560 003.
[By Sri.S.Nagaraja, Advocate]
-Vs-
Defendants: 1. Smt.Geetha
W/o.Late Sriram
Aged about 65 years
2 OS No.6420/2014
2. Sri S.Bharath Kumar
S/o.Late Sriram
Aged about 43 years
The defendant No.1 and 2
R/a.No.9, 5th Cross, Kilari Road
Bangalore-560 053.
3. Smt.Kavitha @ Rani
D/o.Late Sriram
W/o.Muniraju
Aged about 41 years
R/a.Flat No.TIT2
Kannaiah Residency,
KHB Colony,
1st Stage, BVNR
BANGALORE-560 030.
Date of institution of the suit 21.8.2014
Nature of the suit Partition
Date of commencement of 5.11.2015
recording the evidence
Date on which the judgment 24.09.2016
was pronounced
Total duration : Days Month/s Year/s
02 01 03
JUDGMENT
This is a suit filed by plaintiff to declare their half share in the schedule property and to effect partition by metes and bounds.
3 OS No.6420/20142. On facts, plaintiffs have pleaded below:
First plaintiff is the wife of Late Veeranna. Plaintiffs No.3 and 4 are her sons, second plaintiff is her grand son. First defendant is wife of Late Sriram. Defendants No.1 and 2 are her children. One Siddappa had two sons by name Mr.Veeranna and Mr.Sriram. The schedule property is the joint family property of plaintiffs and defendants. During the life time of husband of plaintiff No.1, they were in occupation, possession and enjoyment of the suit property as members of joint family, since first defendant was managing the affairs of the joint family as kartha. The third defendant has executed the release deed on 27.5.2013 infavour of defendant No.1 and 2 releasing her right in respect of the suit schedule property in favour of defendants No.1 and 2 and in the recent past after obtaining khatha extract found names of defendants No.1 and 2 and they have demanded for their half share in the joint family property. In this regard on 30th June 2014 a panchayath was conveyed to effect partition in the joint family properties and when defendants are denied to part with their share, have approached Court to declare their half share in the schedule property to effect partition by metes and bounds.4 OS No.6420/2014
3. The defendants No.1 to 3 have submitted their defence denying categorically that plaintiffs and defendants are members of joint family. They denied that schedule property is their joint family property. It is their defence that on 15.8.1957 there was a partition between Siddappa and his brothers and in the said partition schedule property was allotted to Siddappa. After effect of the said partition, Late Veeranna has executed registered release deed releasing his share in the said property in favour of Mr.Siddappa by receiving Rs.300/- in the year 1958 itself and he left the joint family forever. The schedule property is not the joint family property of plaintiffs and defendants. The plaintiffs have suppressed these material facts. The suit for partition filed after severance of their status members of the joint family is barred by law of limitation. They denied convening of panchayath to effect partition of the suit schedule property and the plaintiffs are not entitled for any share much less half share in the schedule property.
5 OS No.6420/20144. In view of the above prime pleadings, this court formulated the following issues for the purpose of trial:
(1) Whether plaintiff proves that the suit schedule property is of the joint family property?
(2) Whether the plaintiff proves that they are jointly enjoying the suit schedule property?
(3) Whether the plaintiff proves that defendant No.3 has executed release deed dt.27.5.2013 in favour of the defendant No.1 and 2?
(4) Whether the plaintiff further proves that the suit schedule property is stands in the name of defendant No.3 as Kartha of the joint family?
(5) Whether the defendants prove that the suit is barred by limitation?
(6) Whether the suit is not maintainable?
(7) Whether the Court fee paid by plaintiff is insufficient?
(8) Whether the plaintiff is entitled for half share in the suit schedule property?
(9) What order and decree?6 OS No.6420/2014
5. In support of the above issues, the plaintiffs examined P.W.1 and 2, through them Exs.P-1 to Ex.P-15 documents got marked. On the contrary, the defendants examined DW-1, through him Ex.D.1 to Ex.D.36 documents got marked.
6. After closure of evidence on either side, having heard the learned counsels on record, this court would preferred to record the following findings on the above issues:
Issue No.1: In the negative
Issue No.2: In the negative
Issue No.3: In the affirmative
Issue No.4: In the negative
Issue No.5: In the affirmative
Issue No.6: Suit for partition is not
maintainable
Issue No.7: Court fee paid
u/S.35(2) of KCF and
SV Act 1958 is
incorrect
Issue No.8: In the negative
Issue No.9: As per final order,
for the following:
7 OS No.6420/2014
REASONS
7. Issue No.1 to 4:- The suit filed by the plaintiffs is for partition of their half share in the schedule property by metes and bounds on the ground that the said property is the joint family property and they are in joint possession. The schedule property which they have described under plaint is site No.9, Old No.203/1, PID No.28- 50-9, RCC roof house measuring East to West 29½ feet, North to South 10¼ feet situated at Kilari Road, 5th Cross, Bangalore-53 bounded by east- road, west by Siddarammanna @ Kenchappa's house, north by G.Dathappa's House, South by passage.
8. Thus, for the above such property, plaintiffs herein filed suit for partition of their share. They say that 1st defendant - is kartha of their joint family and when they demanded for partition, as she has refused, approached court of law to effect partition to declare their half share and to separate such share by metes and bounds in their favour. In this regard, initially one Mr.Vijaychandra S/o.Late Veeranna, aged about 44 years was examined as PW-1, through him as 8 OS No.6420/2014 many as 11 documents got marked as per Ex.P.1 to Ex.P.11. Since a memo was submitted by plaintiffs, that as he is not feeling well to give his further evidence and as the Doctor advised him to take rest, could not be able to tender him for cross- examination sought for discarding of his evidence, accordingly, the Court ordered to discard the evidence of PW-1 thereby permitted Smt. Lakshmikanthamma, the first plaintiff to depose her evidence and she is examined as PW-2, through her Ex.P.1 to Ex.P.15 got marked. On the contrary one Mr.S.Bharath Kumar S/o.Late Sriram aged about 46 years examined as DW-1 on behalf of defendants and through him as many as 36 documents got marked. It is therefore, this Court to examine evidence of PW-2, DW-1 and the documentary evidence placed by them to record findings on these issues.
9. Before appreciation of the evidence on record in this suit for partition, Court has to bear certain cardinal principles, which are normally applies to the Hindu Joint Family, that partition may be either total or partial and a partition may be partial either as regards the persons making it or the property divided. It is also open to the 9 OS No.6420/2014 members of the joint family to severe in interest in respect of a part of the joint estate while retaining their status of a joint family and holding the rest as the properties of an undivided family until some positive action is taken to have partition of joint family property and it would remain joint family property. Further, every suit for a partition should ordinarily embrace all the family properties where coparceners sue for partition of the property in the hands of other coparceners. They must bring into hotch-pot any undivided property held by them. Further, where there has been a partition, presumption is that it was a complete one both as to parties and property. In other words to say that there is no presumption that any property was excluded from partition. On the contrary, burden is always lies upon the person who alleges such exclusion to establish his assertion, presumption however one of fact and not of law and its strength is must necessarily vary with the circumstances of each case. Thus, keeping in mind such principles in mind, if we examine evidence of PW-2, the second wife of Late Veeranna, who is aged about 70 years as found in her affidavit evidence, that schedule property is joint family property of themselves and defendants. In this regard, she has 10 OS No.6420/2014 produced Ex.P.1 certified copy of the partition deed dated 19.8.1957 effected in the name of Mr.Siddappa, her father-in-law between his brothers, which in fact is not disputed by the defendants herein, that the property described under the said partition deed in such status was allotted to the share of Mr.Siddappa. It is not in dispute that said Siddappa had two sons by name Veeranna and Sriram and they are no more. Ex.P.2 is the genealogical tree submitted to explain that Siddappa and Siddamma had sons by name Veeranna and Sriram.
10. The plaintiffs in the suit are claiming their half share in the schedule property in the present status which would be discussed at the latter stage. The plaintiffs are claiming through Late Veeranna. It is not in dispute that 1st defendant is wife of Late Sriram and other defendants are their children. Ex.P.3 and P.4 are the BBMP khatha extract and khatha certificate dt.19.6.2013, which are standing in the name of 1st defendant. Ex.P.5 is the certified copy of the registered deed dt.27.5.2013 executed by Smt.Kavitha @ Rani wife of Mr.Muniraju infavour of Smt.Geetha and Sri.S.Bharath Kumar, namely 3rd defendant has 11 OS No.6420/2014 released her right in the schedule property in the present status in favour of defendants No.1 and 2 her mother and brother. Ex.P.6 is the Encumbrance Certificate. It is pertinent to note here that the schedule property is mortgaged by deposit of title infavour of Deepak Sahakari bank Ltd., for Rs.55, 00,000/- (Rupees Fifty Five Lakhs). The schedule property is now standing in the name of defendants No.1 and 2 subject to such encumbrance. The bank is not made a party in this suit, through from the encumbrance certificate, we could make out that the said property is mortgaged with the said Bank. Ex.P.7 is the Khatha Extract dt.7.7.2014 standing in the name of defendants No.1 and 2. Ex.P.8 is Uttarapatra, is also standing in the name of defendants. The plaintiffs have produced Ex.P.13 a document to show that she is receiving family pension from Canara Bank C.A.O. Branch, N.T. Road, Bangalore. This is produced to show that she is the wife of late Veeranna, since the defendants denied her relationship with him. Ex.P.15 is the Marriage Invitation Card.
11. Thus, the above are the documents produced by the plaintiffs to seek partition. It is important to note herein that the defendants 12 OS No.6420/2014 through DW-1, the 2nd defendant has produced original ration card marked as per Ex.D.1, was commenced in the year 1988, wherein found Sriram is head of the family and the defendants here in are listed as members of the said family. In other words to say could not find names either of the plaintiffs or late Veeranna. This is produced to show that the plaintiffs are not members of family and they are not residing jointly with them. Ex.D.2 to Ex.D.4 are their Identity Card issued by the Election Commission of India in respect of late Sriram, Defendant No.1 and 2. The place of residence is none other the schedule property and the cause title address. DW-1 has produced tax paid receipts as per Ex.D.5 to Ex.D.26 commencing from 1969 till date to show that schedule property is exclusive possessed by Sriram, his wife and his children separately. Further DW-1 has produced Ex.D.27 and Ex.D.28 BBMP Khatha certificate and Khatha Extract which are standing in the name of defendants No.1 and 2 in respect of schedule property, in fact they are also produced by plaintiffs and in so far as such documents are concerned they did not dispute, as such they are to be accepted as they are to decide the facts in issue between the parties.
13 OS No.6420/2014Ex.D.29 is the Encumbrance Certificate is also produced by plaintiffs, wherein found mortgage of schedule property of Rs.55,00,000/- in favour of Deepak Sahakari Bank Ltd., which is not a party in the present suit. Ex.D.30 is Memorandum of deposit of title deeds. It is important to note here that schedule property which was received by Mr.Siddappa in the partition effected between his brother in the year 1957 was a property with dimension as found under the said document and a small house. Further, Mr.Veeranna, by receiving Rs.300/- as his share in the said property in favour of Mr.Siddappa released and gone away from the joint family as he was working as a government servant, severing his joint status, which could be seen from the recital of the release deed, as such with such status said property is not in existence but in a different status. The family of defendant no.1, her husband and their children all the while enjoyed the same as their exclusive property and they have also invested huge amount to make the property in the present status and the property now described by plaintiffs is entirely different, since it is found from the evidence that they have availed loan of Rs.55,00,000/- have built 14 OS No.6420/2014 up a storied building, which can be found from evidence of PW-2 and DW-1.
12. DW-1 has also produced certified copy of the partition deed effected in the family of Siddappa as per Ex.D.31, which infact plaintiffs have also produced. The most important document which defendants have produced is Ex.D.32 release deed executed by Late Siddappa on 15.9.1958. If we examine Ex.D.31 partition deed Mr.Siddappa was allotted a share. It was valued at Rs.1,000/-. Subsequently when he got such property in Ex.D.31 his son Mr.Veeranna on 15.9.1958 by relinquishing his rights in the schedule property by receiving Rs.300/- severed from the joint family. It is to be noted herein that Rs.300/- was not a small amount, since the very property was valued under Ex.D.1 for Rs.1,000/- and in Ex.D.32 on 15.9.1958 received Rs.300/- has relinquished his right in the said property infavour of his father Siddappa. It is also to be noted herein that he has severed from joint status went away from joint family, resided separately with his wife and children, infact PW-2 in her evidence has deposed that her husband died in the house of his kept mistress, they are residing for 15 OS No.6420/2014 away from schedule property. Under such circumstances, viewed from any angle 1st defendant cannot be held a kartha of her family as her husband by relinquished his right in favour of his father under Ex.D.32 went away from the family, now plaintiffs cannot seek for partition in the schedule property. It is therefore, at the very outset, this Court has to make mention of the principles governed as to how partition has to be effected in respect of parties and property.
13. Ex.D.33 is the certificate of death in respect of Siddappa, he died on 11.8.1978 in the suit house. He died about 35 years ago. Ex.D.34 is certificate of death of Mr.Sriram. He died on 21.11.2003. This suit is filed by plaintiffs on 21.8.2014. The plaintiffs have not sought for relief in their suit in respect of Ex.D.32 the registered release deed executed by Late Siddappa. Ex.D.36 is the release deed executed in favour of defendant No.1 and 2, which in fact the plaintiffs have produced and the said document is between the family of defendants. In other words to say inter-se transaction, as such not necessary to appreciate in this suit, since dispute is between plaintiffs and the defendants and between the defendants 1, 2 16 OS No.6420/2014 and 3 in the matter of Ex.D.36. It is to be noted herein that effect of the said document is nothing to do with this dispute. In the opinion of this court perhaps the said document is made basis to file suit by inventing cause of action to save limitation.
14. Ex.D.35 is an approved blue print plan for construction of building on the schedule property issued for the period from 27.5.2013 to 26.5.2015 which would play a vital importance herein that the plaintiffs herein have instituted suit only after putting up construction of storied building on the schedule property, even without questioning the release deed executed by Late Veeranna in favour of his father Mr.Siddappa. If we examine evidence of PW-2, she admits that, she is 2nd wife of Late Veeranna. Her marriage was performed only after the death of 1st wife. It is not known whether had a children or whether they were also residing, with her jointly. She is aged about 70 years, which could be ascertained from her affidavit evidence. Though she has deposed that she is residing in the schedule property, since 25 to 30 years, along with her husband, his brother Sriram nothing has been placed to prove such evidence. She could not able to say the boundary of the suit schedule property.
17 OS No.6420/2014She does not know when Sriram died. Further for a question that her husband was residing in the house of 3rd wife, her answer would be he died in the house of his kept mistress in other words to say house of concubine. Thus, from such evidence, court to infer that, she does not knew how her husband died and she does not knew about the status of Veeranna, whether he died in the house of his third wife or as stated by 1st plaintiff house of kept mistress, facts remain that she has not furnished full particulars of such status. According to her, the said house is situated at Jakkasandra. Thus, such evidence viewed from any angle would not come to the assistance of plaintiffs to establish that schedule property is the joint family property of them and the defendants and they are the members of joint family along with defendants. Even according to plaintiffs if marriage of PW-1 was performed on 28.6.1964 with Late Veeranna, it would be said 50 years prior to institution of suit and even if their contention that since, 1994 they were in joint possession it would be said 20 years prior to institution of the suit. As already stated above that Veeranna according to plaintiffs was a Government Employee and his joint status was severed under Ex.D.32 release deed executed 18 OS No.6420/2014 infavour of his father and his father died on 11.8.1978. It is therefore, contention of learned counsel for plaintiffs that plaintiffs are entitled for share in the share of Late Siddappa could not be acceptable considering the fact that Siddappa died on 11.8.1978 and the suit filed 35 years after death of Siddappa. Schedule property is originally, as found under the partition deed and the release deed could be seen as a small property and the defendants herein have availed loan of Rs.55,00,000/- which could be seen from the documents produced by the plaintiffs namely the encumbrance certificate and the documents produced by the defendants through D.W.1 as stated above and the said property even as on the date of the suit was mortgaged to bank. The have put up construction and these plaintiffs only after putting up of such construction, have sought for partition, which has to be held not only time barred but not maintainable. In such view of the matter and with such conclusion, finding on issue Nos.1, 2 and 4 would be recorded in the negative and on issue No.3 finding would be in the affirmative.
19 OS No.6420/201415. Issue No.5:- In view of the discussion made above, considering the date of institution of the suit, date of Ex.D.32, date of death of Late Siddappa and considering findings recorded on issue Nos.1, 2 and 4, defendants have to be held proved this issue and the Court held that suit is barred by Law of limitation, as such finding on this issue would be record in the affirmative.
16. Issue No.6:- In view of the findings recorded on issues No.1 to 5, suit filed by the plaintiffs for partition in the present form is held not maintainable, accordingly recorded finding on this issue.
17. Issue No.7:- In view of the findings recorded on issue Nos.1 to 6, the Court fee paid by the plaintiffs under Section 35(2) of K.C.F. & S.V.Act, 1958 is held incorrect. In other words to say the plaintiffs have miserably failed to prove that the property is the joint family property and they are the members of joint family and as on the date of suit, they are in joint possession of the suit property, as such, court fee paid is held in incorrect.
20 OS No.6420/201418. Issue No.8:- In view of the above findings, plaintiffs are held not entitled for any share much less, share what claimed in the suit, as such finding on this issue would be record in the negative.
19. Issue No.9:- In view of the above findings and in the result, this court passes the following:
O R D E R The suit filed by plaintiffs is hereby dismissed with no order as to costs.
Draw a decree accordingly.
(Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the open court, on this the 24th day of September 2016).
(KRISHNAMURTHY B. SANGANNANAVAR) IX Addl. City Civil & Sessions Judge, I/c X Addl. City Civil & Sessions Judge, Bangalore.
A N N E X U R E List of witnesses examined for plaintiff:
P.W.1 Vijayachandra (Discarded)
P.W.2 Smt.Lakshmikanthamma
21 OS No.6420/2014
List of witnesses examined for defendants:
D.W.1 S.Bharath Kumar List of documents exhibited for plaintiff:
Ex.P-1 Certified copy of the partition deed dt.19.8.1957 Ex.P-2 Genealogical tree Ex.P-3 Certified copy of the khatha extract Ex.P-4 Certified copy of the Khatha certificate Ex.P-5 Certified copy of the release deed dt.27.5.2013 Ex.P-6 Encumbrance certificate from 1.4.2004 to 1.7.2014 Ex.P-7 Khatha Extract Ex.P-8 Certified copy of the Suvarna Khatha Extract Ex.P-9 Suvarna Khatha Application Ex.P-10 Affidavit of family genealogical tree Ex.P-11 Affidavit Ex.P-12 Aadhar card of Smt.Lakshmikanthamma Ex.P-13 Letter dt.7.12.07 of DTO Bangalore Ex.P-14 Letter dt.8.8.07 Ex.P-15 Wedding card 22 OS No.6420/2014 List of documents exhibited for defendants:
Ex.D-1 Ration card
Ex.D-2 to 4 ID Card
Ex.D-5 to 26 Tax receipts
Ex.D-27 Khatha Extract
Ex.D-28 Khatha certificate
Ex.D-29 Encumbrance Certificate
Ex.D-30 MOD dt.19.9.13
Ex.D-31 Certified copy of partition deed
dt.19.8.57
Ex.D-32 Certified copy of release deed
dt.15.9.58
Ex.D-33 Death Certificate
Ex.D-34 Death Certificate
Ex.D-35 Sketch
Ex.D-36 Release deed dt.27.5.13
IX Addl. City Civil & Sessions Judge, I/c X Addl. City Civil & Sessions Judge, Bangalore.