Bangalore District Court
W/O Sri.Venkatappa vs S/O Late Hanumanthappa on 16 February, 2015
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgement in Suits
(R.P.91)
IN THE COURT OF THE XXII ADDL.CITY CIVIL JUDGE,
BANGALORE.
PRESENT:-SRI.K.C.RAMAKRISHNAIAH
B.A,.LL.B
XXII ADDL.CITY CIVIL JUDGE.
O.S.No.1782/1992.
Smt.Narasamma,
Plaintiff W/o Sri.Venkatappa,
Aged about 60 years,
R/a No.15,
Lottegollahalli,
R.M.V.II Stage,
Bangalore - 56 094.
Vs
Sri.Narasimhaiah,
Defendants: S/o late Hanumanthappa,
Aged about 55 years,
R/a No.15,
Lottegollahalli,
R.M.V II Stage,
Bangalore - 560 094.
Since dead by his L.Rs:
1)Smt.Lakshmamma,
Aged about 40 years,
2
O.S.No.
1782/92.
W/o late Narasimhaiah.
2)Smt.Anuradha,
Aged about 24 years,
S/o late Narasimhaiah.
3) Smt.Vijaya,
Aged about 22 years,
D/o late Narasimhaiah.
4) Sri.Jayarama,
Aged about 20 years,
S/o late Narasimhaiah.
5)Sri.Narasimha Murthy,
Aged about 18 years,
S/o late Narasimhaiah.
6)Kum.Vanaja,
Aged about 16 years,
D/o late Narasimhaiah.
7)Kum.Bindu,
Aged about 14 years,
S/o late Narasimhaiah.
Nos.6 & 7 are minors,
Reptd., by mother and natural
guardian - Smt.Lakshmamma.
All are r/a No.15,
Lottegollahalli,
R.M.V. II AStage,
Bangalore - 560 094.
8.Smt.M.Shanthi,
3
O.S.No.
1782/92.
W/o.Somashekara Raju,
Major,
R/a.35, 15th Cross,
6th Temple Road,
Malleswaram,
Bangalore - 3.
Date of the institution of the suit
18.3.1992
Nature of the suit Partition and separate possession.
Date of the commencement of
Recording of evidence 28.7.2004.
Date on which the Judgment
was pronounced. 3.12.2004
Total Duration 12 years, 8 months
16 days.
(K.C.RAMAKRISHNAIAH)
XXII Addl.City Civil Judge,
Bangalore.
4
O.S.No.
1782/92.
JUDGMENT
The plaintiff has filed this suit against the defendant for partition and separate possession of her half share in the suit schedule properties, mesne profits and for such other reliefs as the Court deems fit under the circumstances of the case.
2. The case of the plaintiff, in brief, are as follows:-
The plaintiff and defendant - Narasimhaiah are the children of late Hanumanthappa. They constitute an un-divided joint Hindu family and are governed by Mithaksshara School of Hindu Law. It is the further case of the plaintiff that during the life time of Hanumanthappa, he purchased the land measuring to an extent of 2 acres 03 guntas in sy.No.3/3 of Lottegollahalli Village, Kasaba hobli, Bangalore under a registered sale deed dated 11.6.1942.5
O.S.No. 1782/92.
Hanumanthappa died in the year 1959, leaving behind him the plaintiff and the defendant as his legal heirs, who succeeded to his estate.
3. It is the further case of the plaintiff that after the death of Hanumanthappa, defendant - Narasimhaiah, being the kartha of the family was looking after the above said property and was deriving the income out of the same. From the income of the above said property, Narasimhaiah purchased an extent of 1 acre 01 gunta of land in Sy.No.3/3 of Lottegollahalli village, Kasaba Hobli, Bangalore North Taluk under a registered sale deed dated 3.7.1945. She has further stated that from the income of the above said properties, the defendant - Narasimhaiah purchased Item Nos.1 to 5 of plaint schedule. The plaintiff submits that though herself and defendant are residing separately, they are in joint possession of the suit schedule properties. Though the plaintiff demanded the defendant to effect partition 6 O.S.No. 1782/92.
of the suit schedule properties, the defendant though initially agreed for partition of the suit schedule properties , but later on refused the demand of the plaintiff for partition and separate possession of her half share. The cause of action for the suit arose on the death of her father and about two months back when she demanded for partition of the schedule properties and when the defendant refused the same. Hence, this suit.
4. In response to the suit summons, the defendant appeared through his counsel and filed his written statement. At the very outset the defendant contended that the suit filed by the plaintiff is not maintainable in law and also the genealogy tree furnished by the plaintiff is incorrect. It is stated by the defendant that his father died when he was aged about 10 years. His father died in the beginning of the year 1956 and not in the year 1959 as stated by the plaintiff in the plaint. It 7 O.S.No. 1782/92.
is stated by the defendant that property measuring 2 acres 3 guntas in Sy.No.3/3 was purchased by his father late Hanumanthappa under a sale deed dated 11.6.1942, but it is not the joint family property as alleged by the plaintiff. It is stated by the defendant that the property measuring 1 acre 1 gunta in Sy.No.3/3 of Lottegollahally village purchased long prior to the death of his father i.e., in the year 1945 i.e., on 3.7.1945. But he denied the claim made by the plaintiff that it is a joint family property. On the other hand it is stated by the defendant that it is his self acquired property. In his written statement he has further contended that Hanumanthappa out of 2 acres 3 guntas purchased by his father under registered sale deed dated 11.6.1942, 11 guntas of land was sold by his father and himself and his brothers in favour of one Narasimhaiah, who is the son of Hanumanthappa through his first wife i.e., land measuring 11 guntas under a registered sale deed dated 12.5.1955. 8
O.S.No. 1782/92.
Thereafter 37 guntas of land in the above said survey number was sold by the above said persons in favour of one Smt.Lingamma under the registered sale deed dated 1.9.1955.
5. It is stated by the defendant that by virtue of the General Power of Attorney dated 25.7.1962 executed by Smt.Lingamma in favour of one Shambulingappa, the defendant herein purchased 37 guntas of land in Sy.No.3/2 and 31 guntas of land in Sy.No.3/3 of Lottegollahally village from the above said Lingamma, represented by her G.P.A.Holder P.V.Shambulingappa under the registered sale deed dated 7.4.1965. The said sale came into existence after the partition effected in the family. Therefore, the properties described in suit schedule Item Nos.1 & 2 are the self acquired properties of the defendant and not the joint family properties as claimed by this plaintiff. It 9 O.S.No. 1782/92.
is also stated by the defendant that he once again effected the oral partition among himself, his wife and his children on 10.6.1991 after making the layout of sites and each one of them having taken possession of the portions in the said Sy.No.3/3 and one another land bearing Sy.No.3/2 of Lottegollahally village and they have been exercising their rights over the sites allotted in their favour as per the lay out plan and they have also put up constructions over the sites allotted to them and some sites have been sold by this defendant and other members of his family and also they have entered into Memorandum of Partition Deed dated 15.12.1991. Though the above said facts were within the knowledge of this plaintiff, no objections or obstructions were made by the plaintiff to enjoy the properties by the above said persons as they were the self acquired properties of this defendant. 10
O.S.No. 1782/92.
6. It is also stated by the defendant that he purchased the suit schedule Item No.2 from one Siddappa, son of Basappa under a registered sale deed dated 3.7.1945 and he sold the same in favour of one Byrappa, son of Kalappa in the year 1951 i.e., on 28.5.1951. Thereafter he again purchased the very property from Byrappa in the year 1956 i.e., on 11.12.1956. Therefore, the said item is the self acquired property of the defendant over which this plaintiff has no right whatsoever in the said property.
7. The 1st defendant in his written statement has claimed that suit schedule Item No.3 is also his self acquired property. According to the defendant, he purchased the property described at Item No.3 on 30.12.1955 from one Dasappa @ Chikka Munidasappa and his wife Yellamma and others and also he purchased suit schedule Item No.4 on 21.3.1971 from 11 O.S.No. 1782/92.
the said Dasappa. Therefore, the suit schedule Item Nos.3 & 4 measuring each 21 guntas i.e., in all 1 acre 02 guntas is the self acquired property of this defendant.
8. The defendant in his written statement specifically contended that the very plaintiff purchased the house property under a registered sale deed dated 22.11.1968 from one Munishamappa, son of Narayanappa. The said Munishamappa purchased the said property measuring 30 x 35 carved out of Sy.No.3/2 under the registered sale deed dated 10.4.1957 from one Venkoba Rao, who in turn purchased the said site from the defendant herein under the sale deed dated 11.10.1954. Therefore, the very fact of purchase made by this plaintiff i.e., the site formed in Sy.No.3/2 from Munishamappa formed by this defendant establishes the fact that a partition was taken place long prior to 1955 among the decedents of 12 O.S.No. 1782/92.
Hanumanthappa. The same has not been challenged by this plaintiff and by suppressing the material facts the plaintiff approached this Court, seeking partition and separate possession of the property though she has no right whatsoever and as such the suit filed by the plaintiff is not maintainable and the claim made by the plaintiff is not maintainable and the claim made by the plaintiff is barred by law of limitation and the suit is bad for non-joinder of necessary parties.
9. It is stated by the defendant that the properties have been notified for being acquired by the B.D.A for the formation of Raja Mahal Vilas Extension, II Stage Layout and they have issued preliminary notification dated 3.1.1977 and final notification dated 2.8.1978. The said facts are well within the knowledge of this plaintiff, but she has not raised any objection or filed any written statement before the B.D.A. Therefore, on this ground also the suit filed by the plaintiff in respect 13 O.S.No. 1782/92.
of the properties which are not available for partition is liable to be dismissed. The property vested with the B.D.A. The plaintiff being not a co-parcener and who is a married lady, she having been married 40 to 45 years back the suit as brought is not maintainable and she is prohibited from filing the suit under the provisions of Hindu Womens Right to Property Act of 1933. Eversince the date of her marriage for over 45 years she has been residing with her husband, having severed all her connections with her parents. Therefore, the claim made by the plaintiff that she is in joint possession of the suit property is not sustainable. Since the plaintiff has no right whatsoever in the properties, question of demanding the defendants , claiming her share in the property does not arise. There is no cause of action to file this suit. Therefore, the plaintiff is not entitled to get any of the reliefs prayed for in the suit. Accordingly, this defendant prays this Court to dismiss the very suit filed by the plaintiff. 14
O.S.No. 1782/92.
10. During the pendency of this suit, the defendant died and his legal representatives are brought on record. The legal representatives of the defendant filed their written statement wherein also they have took up the same contentions, which were taken by the 1st defendant in his written statement.
11. The plaintiff got amended the plaint by incorporating two more items of the properties as Item Nos.5 & 6 stating that those properties are also the joint family properties and she is entitled to get a share in the same. In order to controvert the same, the legal representatives of the defendant, who filed their written statement got amended their written statement wherein it is contended by the defendants that the defendant Narasimhaiah entered into a sale agreement with one Rajasekharappa, who was the 15 O.S.No. 1782/92.
owner of suit Item No.5 i.e., the land measuring 2 acres 22 guntas of land in Sy.No.9/1. But as the said Rajasekharappa did not execute the sale deed in terms of the above said agreement, the defendant Narasimhaiah filed a suit in O.S.No.483/73 on the file of the II Munsiff, Bangalore. The same was ended in decree and they have filed an Execution Petition in Ex.Case No.1458/80. The same was transferred to the City Civil Court. During the pendency of the said execution petition Narasimhaiah died. So, these defendants have come on record as legal representatives of said Narasimhaiah and got the sale deed from Rjasekharappa by virtue of the G.P.A filed in the above suit. The sale consideration for the purchase of the said property was paid by Narasimhaiah, who is vendor out of his self earned funds. Therefore, the purchase money has nothing to do with the father of the plaintiff and the deceased Narasimhaiah. Accordingly, the said property was the 16 O.S.No. 1782/92.
self acquired property of the defendant - Narasimhaiah and not the joint family property as claimed by this plaintiff.
12. It is also contended by the defendant that 3 acres 37 guntas of land in Sy.No.6 described at No.6 had taken on lease by Narasimhaiah from its owner Rajashekarappa in his individual capacity. Therefore. father of Narasimhaiah has nothing to do with the said right acquired by Narasimhaiah individually and for his own benefit. After the Land Reforms Amendment Act, 1974,Narasimhaiah filed an application under Sec.48 A of the Act in Form No.7 for grant of occupancy rights in respect of the above said land. During the pendency of the said proceedings Narasimhaiah died. The defendants substituted in his place as his legal representatives. The plaintiff also filed an application to come on record, claiming that she has also got interest in the said property. But after enquiry, the 17 O.S.No. 1782/92.
Land Tribunal by its Order 27.7.2002 upheld the claim of deceased Narasimhaiah and rejected the claim of the plaintiff, holding that the plaintiff cannot set up any right over the said property. Therefore, as the occupancy right was granted in favour of Narasimhaiah, as he was cultivating the land in his individual capacity as tenant of Rajashekarappa, the said property was also the self acquired property of Narasimhaiah. The plaintiff cannot claim any right over the same. Therefore, they too prayed this Court to dismiss the very suit filed by the plaintiff.
13. The 8th defendant, who appeared before Court in answer to suit summons filed her written statement wherein she has stated that she is the bona fide purchaser for valuable sale consideration of the property from defendant Nos.1 to 7 under a registered sale deed dated 26.11.2001 under which she 18 O.S.No. 1782/92.
purchased a site measuring 35 x 46 feet in Sy.No.3/3 of Lottegollahalli village. Thereafter she had put up construction of a house with a compound wall by spending considerable amount. The plaintiff came near the property and disclosed that the suit filed by her is pending on the file of this Court and the very plaintiff filed an application to get impleaded this defendant as one of the parties. Thereafter she came to know about the suit filed by the plaintiff against her vendors. The said suit was dismissed on 12.1.1998. Thereafter the plaintiff filed a Mis.Petition claiming restoration of the suit. The said petition was allowed. During the pendency of the suit or during the pendency of Mis.Petition, there was no interim order against this defendant or any other defendants. They have executed a registered sale deed in her favour, but they have not disclosed the pendency of the suit or the other proceedings at the time of executing the sale deed in her favour.
19
O.S.No. 1782/92.
14. It is contended by the 8th defendant that after the plaintiff started interfering and claiming the right over the property purchased by her, she approached defendant Nos.1 to 7 and appraised the above said facts in respect of which the defendant Nos.1 to 7 have executed an agreement in her favour, stating and undertaking that in the event of suit filed by the plaintiff goes adverse to their interest, they would provide an alternative site or compensate the loss incurred by this defendant. Since she is a bona fide purchaser for valuable consideration, she has derived right, title and interest over the property purchased from defendant Nos.1 to 7. If the suit of the plaintiff is decreed, she requested this Court to allot the said property purchased by her from the defendant Nos.1 to 7 to the share of defendant Nos.1 to 7 as the said property right has to be devolved upon this defendant 20 O.S.No. 1782/92.
by virtue of the registered sale deed. Further, she contended that the other averments are not within her knowledge and the same relates to the family members of the plaintiff and defendants. Therefore, she requested this Court to pass appropriate Orders.
15. On the strength of the plaint averments and also the contentions taken up by the defendants in their written statement, the following issues have been framed.
1.Whether the plaintiff proves that she and the defendants form a joint Hindu family and are in joint possession and enjoyment of the suit schedule property as contended?
2.Whether the plaintiff proves that she is entitled for share in the suit properties?
3.Whether the defendants prove that the suit is bad for non-joinder of necessary parties?
4.Whether the plaintiff proves that her father died in 1959 as contended?
21
O.S.No. 1782/92.
5.Whether the suit as brought is maintainable in view of the Sec.132 of Land Revenue Act?
6.Whether the plaintiff proves the identity, extent and description of the property as stated?
7.Whether the plaintiff proves cause of action for the suit?
8.Whether the suit is properly valued and proper Court fee is paid?
9.Whether the plaintiff is entitled for the relief sought for?
10.What Order or Decree?
22
O.S.No. 1782/92.
Addl.Issue:
1.Whether the Lrs. of the 1st defendant proves that the suit schedule Item Nos.5 & 6 are the self acquired property of late Narasimhaiah?
16. The plaintiff got examined herself as P.W.1 and one more witness as P.W.2 and got marked Exts.P.1 to P.29. On the other hand, son of the deceased Narasimhaiah got examined himself as Dw.1 and one more witness as D.W.2 and got marked Exts.D.1 to D.17. Heard the arguments.
17. My findings on the above issues are as follows:
Issue No.1:Negative.
Issue No.2:Negative.
Issue No.3:Negative.
Issue No.4:Negative.
Issue No.5:Suit is maintainable. Issue No.6:Affirmative.
Issue No.7:Affirmative.
Issue No.8:Affirmative.23
O.S.No. 1782/92.
Issue No.9:Negative.
Issue No.10:As per final order for the following reasons. Addl Issue No.1:Item No.5 is the self acquired property of Narasimhaiah. So far as Item No.6 is concerned, the tenancy dispute is not reached finality. Therefore, at this juncture it cannot be said that it is neither the self acquired property of the defendant nor the joint family property of the plaintiff as claimed by her.
REASONS
18. ISSUE NO.1 & Addl.ISSUE:-As these issues are inter related with each other, I propose to discuss them together. The burden of proving the first issue lies on the plaintiff. Whereas, the burden of proving the additional issues lies on the Legal Representatives of the 1st defendant.
19. The plaintiff - P.W.1 in the plaint as well as in her evidence has specifically stated that the defendant -
Narasimhaiah is her brother and they constitute an un-divided 24 O.S.No. 1782/92.
Hindu joint family governing by Mithakshara School of Law and the schedule properties are the joint family properties of herself and defendant and they are in joint possession and enjoyment of the schedule property. But the defendants have contended that the schedule properties are the self acquired properties of Narasimhaiah and not the joint family properties as claimed by this Plaintiff.
20. In this case it is pertinent to note that there is no dispute with regard to the relationship in between the parties i.e., the deceased Narasimhaiah is the brother of the plaintiff and Legal Representative No.1 is the wife and Legal Representatives Nos.2 to 7 are the children of Narasimhaiah. P.w.1 in her evidence has stated that Hanumanthappa in his life time that is in the year 1942 purchased land measuring 2 acres 3 guntas in Sy.No.3/3 situated at Lottegollahalli village, Kasaba Hobli, Bangalore North Taluk under a registered sale deed dated 11.6.1942. To substantiate the same she has produced the certified copy of the sale deed which stands in the name of her father marked at Ext.P.2 i.e., the suit schedule Item No.1 of the property. It is also stated by this P.W.1 that defendant - 25
O.S.No. 1782/92.
Narasimhaiah, who became the kartha of their joint family, out of the income derived from the suit schedule Item No.1, he purchased the suit schedule Item No.2 after the death of the said Hanumanthappa. To substantiate the same, she produced the certified copy of the sale deed dated 3.7.1945, which stands in the name of this defendant Narasimhaiah. It is stated by the plaintiff - P.W.1 that out of the income getting out of the above said properties, other suit schedule properties at Item Nos.3 & 4 were purchased by the defendant and also Item No.5 was also purchased from one Rajashekarappa from this defendant by virtue of the Decree passed in O.S.No.483/73. Therefore, it is also the joint family property of the plaintiff and defendant. It is also stated by P.W.1 that their father performed her marriage with one Venkatappa of Kallumanjari village in Kolar District and kept him in his house as mane aliya. Out of the self earned money of joint efforts of both plaintiff and defendant, they purchased the properties. Therefore, according to the plaintiff, all the schedule properties are the joint family properties of plaintiff and defendant.
26
O.S.No. 1782/92.
21. The legal representative of defendant - Narasimhaiah i.e., D.W.1 in his evidence has stated that the properties are the self acquired properties of Narasimhaiah and not the joint family properties. It is also stated by this D.W.1 in his evidence that his father in his life time was doing milk vending business and out of the income got from the milk vending business, he purchased the properties under different sale deeds ons different occasions. Therefore, those properties are the self acquired properties of the defendant and not the joint family properties, as claimed by this plaintiff. It is also stated by D.w.1 that his grand father performed the marriage of this P.W.1 with one Venkatappa of Kallumanjari in Kolar Disgtrict and thereafter she began to reside in her husband's house and not in the house of Narasimhaiah. Therefore, question of purchasing the property out of the income earned by the plaintiff and defendant does not arise. More over, he has stated that as his father was doing milk vending business, he was getting substantial income and out of that income, he purchased the properties under different sale deeds. Therefore, the plaintiff has no manner of any right, title or interest over the suit schedule properties. To substantiate his case D.W.1 has produced 27 O.S.No. 1782/92.
the different alienations which had taken place in respect of suit schedule items i.e., Item Nos.1 to 4, which are marked at Exgts.D.1 to D.7 and D.9. It is also stated by this D.w.1 that his father in his individual capacity entered into sale agreement with one Rajashekarappa - the owner of suit Item No.5 and as the said Rajashekarappa failed to comply with the terms of the sale agreement, his father - Narasimhaiah filed a suit claiming specific performance of the contract in O.S.No.483/73 and the same was ended in decree and they have filed an Execution Petition in which they obtained the sale deed from the said Rajashekarappa by executing the said Decree. Therefore, it is not the joint family property as claimed by this plaintiff. On the other hand, it is the self acquired property of the said Narasimhaiah. To prove the same, D.W.1 produced certified copy of the Judgment and Decree, which are marked at Ext.D.11 and D.12 and also the sale deed marked at Ext.D.13. Therefore, according to the defendants, the suit schedule Item Nos.1 to 5 are the self acquired properties of the defendant - Narasimhaiah and not the joint family property as claimed by this plaintiff.
28
O.S.No. 1782/92.
22. It is stated by P.W.1 that his father was cultivating suit Item No.6 as tenant and after the demise of his father, he continued to be the tenant of that land. Therefore, the said property is also the joint family property of the plaintiff and defendant - Narasimhaiah. But in respect of it, the Land Tribunal granted occupancy right in favour of the defendant. Against the said order the very plaintiff preferred a Writ Petition in W.P.No.47471/2003 and the same is pending on the file of Hon'ble High Court of Karnataka. Since the dispute with regard to the tenancy right is pending and it has not reached finality, it is too early to decide the claim of the parties in this suit. Therefore, under the above said circumstances, it cannot be said neither it is the self acquired property of the defendant nor joint family property as claimed by this plaintiff. The parties are at liberty to adjudicate their claim only after the tenancy dispute reached finality.
23. The learned counsel for the plaintiff submitted his argument in support of the case of the plaintiff stating that all the properties are the joint family properties of plaintiff and defendant - Narasimhaiah. Contra to the same, the defendant's 29 O.S.No. 1782/92.
counsel submitted his argument stating that the properties are self acquired properties of the defendant.
24. I have perused the plaint allegations and also the contentions taken by the defendant and the evidence let in by both plaintiff and defendant in support of their respective contentions. It is the specific case of the plaintiff that her father in his life time purchased the suit l schedule Item No.1 i.e., 2 acres 3 guntas of land in Sy.No.3/3 under Ext.P.2. The said fact has been admitted by the defendant. But it is the contention of the defendant that the very Hanumanthappa in his life time sold the said property purchased under Ext.P.2 to different persons and he does not own any property of his own as on the date of his death. A perusal of the documents relied upon by both plaintiff and defendant establishes the fact that the said Hanumanthappa in his life time sold the property purchased under Ext.P.2 to different persons. Though it is stated by P.w.1 that her father performed her marriage with one Venkatappa and kept him in his house as mane aliya, to prove the same except the self serving statement, no other material is produced by the plaintiff to know that she was 30 O.S.No. 1782/92.
staying with her father along with her husband and her father treated her husband as mane aliya.
25. It is contended by the defendant that after the marriage of this plaintiff with Venkatappa, they are residing separately and not in their house. To substantiate his claim the defendant produced the voters list pertains to the year 1975 which goes to show that the plaintiff and her husband were residing separately and not in the house of her father. More over, it has also come in the evidence of D.W.1 that in the year 1968 the very plaintiff purchased a house property from one Munishamappa i.e., the house property carved out of Sy.No.3/3. Therefore, the very fact goes to show that the said property was not the joint family property of the plaintiff and defendant as claimed by her in this suit. If really it was the joint family property, definitely this plaintiff would hve raised objection when the series of alienations were made and taken place in respect of the properties by the 1st defendant herein. But no such objections are raised by the plaintiff. Therefore, according to the defendants, the suit schedule Item Nos.1 to 4 are not the joint family properties of the plaintiff and defendant. 31
O.S.No. 1782/92.
On the other hand, those properties are the self acquired properties of the 1st defendant.
26. The plaintiff - P.w.1 during the course of her cross-examination she has specifically admitted that her brother was doing milk vending business and getting income out of the said business. Though it is stated by her that she and her husband were also assisting him in doing the said business, but no material is forth coming to appreciate the claim made by the plaintiff in this suit. More over it is stated by the plaintiff that after the death of Hanumanthappa, Narasimhaiah became the kartha of the family and he was managing the affairs of the family and subsequently he purchased the suit Item No.2. But the said say of the plaintiff cannot be accepted, because the suit schedule Item No.2 was purchased long prior to the death of Hanumanthappa. Therefore, the say of the plaintiff that out of the income derived from suit schedule Item No.1, the said property was purchased by Narasimhaiah cannot be accepted.
32
O.S.No. 1782/92.
27. As already stated above, the father of the plaintiff - Hanumanthappa in his life time sold the property purchased by him in the year 1947 to different persons under different sale deeds. But subsequently out of the income getting out of his milk vending business, the defendant Narasimhaiah purchased the property which were sold by his father to different persons i.e., suit schedule Item No.1. The very documents i.e., the sale deeds executed by the Power of Attorney - Ext.D.6 dated 7.4.1965 and also the sale deed executed by one Ranganayakamma - Ext.D.7 which is of the year 1963 in favour of the 1st defendant herein establishes the fact that the property was purchased by the 1st defendant on respective dates and at that time Hanumanthappa was not alive and also the plaintiff was residing in the house of this defendant. Therefore, a doubt arises in the claim made by this plaintiff that those properties are the joint family properties of plaintiff and defendant. The other properties at Item Nos.3 & 4 are also purchased by the defendant Narasimhaiah out of his self earned money. Therefore, the claim made by the plaintiff that those properties are the joint family properties cannot be accepted. In this case, as already discussed above, Narasimhaiah in his 33 O.S.No. 1782/92.
life time entered into sale agreement with one Rajashekarappa, who was the owner of Item No.5 and as he failed to comply with the terms of the sale agreement, he filed a suit and obtained decree. Thereafter the legal representatives of the deceased Narasimhaiah got the sale deed through Court by filing an Execution Petition in their name. Therefore, the claim made by the plaintiff that it is the joint family property cannot be accepted. If really she had any right, definitely she would have got impleaded as one of the defendants in the said suit as she filed an application to get impleaded as party to the proceedings in Land Acquisition Cases. Therefore, the claim made by the plaintiff that it is also the joint family properties cannot be accepted. So far as Item No.6 is concerned, the tenancy dispute is not reached finality. Therefore, at this juncture it cannot be said that it is neither the self acquired property of the defendant nor the joint family property of the plaintiff as claimed by her. Therefore, from the aforesaid discussion made by me, I am of the opinion that the plaintiff failed to establish that she constituted an un-divided Hindu Joint family and the properties are the joint family properties and the same are in joint possession of this plaintiff and defendant. 34
O.S.No. 1782/92.
Accordingly, I answer Issue No.1 in 'negative' and Addl.Issue No.1 holding that suit schedule Item No.5 is the self acquired property of the defendant - Narasimhaiah.
28. ISSUE NO.3:-The defendants in their written statement have took up the contention that the suit is bad for non-joinder of necessary parties. The plaintiff filed this suit, seeking partition and separate possession of her share in the properties, claiming that they are the joint family properties of plaintiff and defendant - Narasimhaiah, but without making the L.R of another Narasimhaiah, son of Hanumanthappa through his first wife as a party to this suit. Therefore, according to the defendant, the suit is bad for non-joinder of necessary parties. But a perusal of Ext.D.5 relied upon by the defendants, which is the sale deed executed by Hanumanthappa and his children through his second wife, which is of the year 1955, there is a recital at Page No.2 to the effect " £À£Àß MAzÀ£Éà ºÉAqÀw ªÀÄUÀ¤UÀÆ £ÀªÀÄUÀÆ «¨sÁUÀªÁV CAzÀgÉ £ÀgÀ¹ªÀÄäAiÀÄå¤UÀÆ £ÀªÀÄUÀÆ «¨sÁUÀªÁV C¯ÁUÁAiÀÄÄÛ CªÀgÀªÀjUÉ §AzÀ ¸ÉÆvÀÄÛUÀ¼ÀÄ 35 O.S.No. 1782/92.
CªÀgÀªÀgÉà C£ÀĨÀs«¹ F ¢£À £ÀªÀÄä C£ÀĨÀsªÀzÀ ¸ÉÆvÀÄÛ £ÁªÀÅ PÀæAiÀiÁ ªÀiÁr ......"
The above said recitals establish the fact that there was a partition among Narasimhaiah and Hanumanthappa i.e., in between the son of Hanumanthappa through his first wife and Hanumanthappa prior to 1955. Since there was a partition in between them, question of impleading them as parties to this suit by this plaintiff does not arise and there was severance of status long back and there was partition in between them, question of making them as parties to this suit as contended by the defendant does not arise. As such, it cannot be said that the suit is bad for non-joinder of necessary parties. Accordingly, I answer this Issue No.3 in 'negative'.
29. ISSUE NO.4:-According to the plaintiff, her father died in the year 1959. But the said fact has been denied by the defendant. According to the defendant, father of Narasimhaiah i.e., Hanumanthappa died in the beginning of the year 1965 and not in the year 1959 as stated by the plaintiff. But neither the plaintiff nor the defendant have produced the death certificate 36 O.S.No. 1782/92.
to know the date of death of Hanumanthappa. But in this case the defendant produced the sale deed of the year 1956 i.e., the sale deed which is marked at Ext.D.4 dated 11.12.1956 executed by one Byrappa in favour of defendant Narasimhaiah. A perusal of the said document goes to show that as on the date of the above said document, Hanumanthappa was alive, because there is a recital in Ext.D.4 stating that " ¨ÉAUÀ¼ÀÆgÀÄ £ÁvÀð vÁ®ÆèPï PÀ¸À¨Á ºÉÆç½ £ÁUÀ±ÉlÖºÀ½î UÁæªÀÄzÀ°ègÀĪÀ ºÀ£ÀĪÀÄAvÀ¥Àà£ÀªÀgÀ ªÀÄUÀ £ÀgÀ¹AºÀAiÀÄå£ÀªÀjUÉà ...... "
But in the document which came into existence subsequent to 1956, it has been stated that late Hanumanthappanavara maga Narasimhaiah, but it is not so in this document. Therefore, it establishes the fact that as on the date of the above said document, Hanumanthappa was very much alive. Therefore, it goes to show that Hanumanthappa died either in the early part of 1957 or subsequent to Ext.D.4.
Accordingly, I answer this Issue.
30. ISSUE NO.5:-At the inception of the suit an objection was raised as per Sec.132 of the Karnataka Land Revenue Act. 37
O.S.No. 1782/92.
The plaintiff who filed the suit has to furnish the certified copy of any entry in the record of rights or mutation register pertains to the subject matter of the suit. But in this case the plaintiff not furnished the revenue documents pertain to the subject matter of this suit. But subsequently with memo and with the lieu of the Court she has furnished the document and those documents i.e., the R.T.C extracts, etc., are marked as Exts.P.4 to P.17. Therefore, it cannot be said that the suit as brought is maintainable in view of Sec.132 of the Land Revenue Act. Accordingly, I answer this Issue No.5 holding that the suit is maintainable.
31. ISSUE NO.6:-The burden of proving this issue lies on the plaintiff. In this case there is no dispute with regard to identity, extent and description of the property. The plaintiff in her plaint has specifically mentioned the schedule properties with survey numbers, extents and boundaries and the same has not been disputed by the defendant. In her evidence she has also spoken with regard to the schedule properties and the same has not been denied by the defendant during the course of cross-examination of this P.W.1 and more over the counsel 38 O.S.No. 1782/92.
appearing for the defendant also submits that there is no dispute with regard to identity, extent and description of the properties. When such being the case, I can safely hold that the plaintiff proved this Issue. Accordingly, I answer this Issue in 'affirmative'.
32. ISSUE No.7:-The plaintiff in her plaint at Para - 10 has stated that the cause of action to this suit arose on the death of Hanumanthappa and also when she demanded for partition of the schedule properties and when the defendant refused to comply with her demand. But the said fact has been denied by the defendant contending that there is no cause of action to this suit. The very plaintiff - P.W.1 in her examination-in-chief has specifically stated that she demanded this defendant to effect partition of the schedule property by metes and bounds and to give her half legitimate share in the schedule properties. It is also stated by this P.W.1 that eventhough at first instance the defendant agreed for the same, but later on refused to give her share. Therefore, the very recitals of the plaint and also the evidence given by this P.W.1 goes to show that there was demand made by this plaintiff to effect 39 O.S.No. 1782/92.
partition with the defendant. Therefore, the contention taken by the defendant that there is no cause of action for this suit, is not tenable and sustainable. Accordingly, I answer this issue in the 'affirmative'.
33. ISSUE NO.8:-The plaintiff in the plaint while filing the suit valued the suit for the purpose of Court fee and jurisdiction and paid the Court fee of Rs.200/-. She valued the suit under Sec.35 (2) of the Court Fee & Suit Valuation Act of 1958. The defendant in the written statement at Para - 19 questioned the very valuation made by the plaintiff contending that the valuation is incorrect. She was never in possession of the properties at any time. Therefore, the Court fee paid is incorrect. But when the plaintiff has come up with this specific plea that the properties are the family properties and the same are in joint possession of the plaintiff and defendant, as per the averments and allegations made in the plaint, it cannot be said that the valuation made by the plaintiff for the purpose of Court fee and jurisdiction is incorrect. Therefore, the contentions taken by the defendant are not tenable. Accordingly, I answer this Issue in 'affirmative'. 40
O.S.No. 1782/92.
34. ISSUE NOs.2 & 9:- Both these issues are inter related with each other and I propose to discuss them together.
35. It is the case of the plaintiff that the schedule properties are the joint family properties of the plaintiff and defendant. She being the Class - 1 heir of the deceased Hanumanthappa, succeeded to the estate of the deceased Hanumanthappa. Therefore, as the said Hanumanthappa died intestate leaving behind him a son and a daughter, she is entitled to half share in the schedule properties. But the claim of the plaintiff has been denied by the defendant, claiming that the properties are the self acquired properties of the defendant and not the joint family properties as claimed by the plaintiff. While discussing Issue No.1 and Addl.Issue, it has already been held by me that the properties are not the joint family properties, on the other hand, the said properties are the self acquired properties of the defendant. Therefore, the plaintiff is not entitled to any share in the suit schedule properties. As such, she is not entitled for the relief as sought for in this suit. Accordingly, I answer these two issues in the 'negative'.
41
O.S.No. 1782/92.
36. ISSUE NO.10:-In view of my aforesaid discussion, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed.
Under the circumstances of the case, I direct the parties to bear their own costs.
Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court this the 3rd day of December, 2004.
(K.C.RAMAKRISHNAIAH) XXII Addl.City Civil Judge, Bangalore.
Appendix Plaintiff's Witnesses:
1. P.W.1.Narasamma.42
O.S.No. 1782/92.
2. P.W.2.M.Shamanna Defendants Witnesses:
1. D.W.1.Narasimhamurthy.
2. D.W.2.Somashekar Raju.
Plaintiff's Exhibits:
1. Ext.P.1 Geneological Tree.
2. Ext.P.2 C.C of the sale deed dated 11.6.1942..
3. Ext.P.3 C.C of the sale deed dated 3.7.1945.
4. Ext.P.4 to R.T.C Extracts.
Ext.P.17
5. Ext.P.18 C.C of the order passed in L.A.56/91 & 107/91.
6. Ext.P.19 & Two photos.
Ext.P.20
7. Ext.P.21 C.C of the sale deed dated 26.11.2001.
8. Ext.P.22 Police complaint.
9. Ext.P.23 C.C of the sale deed dated 30.12.1965.
10. Ext.P.24 C.C of the sale deed dated
21..3.1970.
11. Ext.P.25 C.C of the Order passed 43 O.S.No. 1782/92.
by the Asst.Commissioner in L.R.F.No.906/74-75.
12. Ext.P.26 C.C of the Writ Petition No.47471/2003.
13. Ext.P.27 C.C of the stay order in W.P.No.47471/2003.
14. Ext.P.28 & R.T.C Extracts.
Ext.P.29 Defendants' Exhibits:
1. Ext.D.1 C.C of the sale deed pertains to Item No.2.
2. Ext.D.2 C.C of the sale deed pertains to Item No.2.
3. Ext.D.3 C.C of the sale deed executed by Narasimhaiah in favour of one Byrappa.
4. Ext.D.4 C.C of the sale deed executed by Byrappa in favour of Narasimhaiah.
5. Ext.D.5 C.C of the sale deed.
6. Ext.D.6 C.C of the sale deed dated 7.4.1965.
7. Ext.D.7 Original sale deed executed by Ranganayakamma.
8. Ext.D.8 Encumberance Certificate pertains to Property No.3/3.
9. Ext.D.9 C.C of sale deed pertains to Nagashettihalli property.
10. Ext.D.10 C.C of sale deed pertains to Nagashettihalli property.
11. Ext.D.11 C.C of the Judgment and & Decree in O.S.No.486/1973.
Ext.D.12
12. Ext.D.13 C.C of the sale deed dated 26.9.1998.
13. Ext.D.14 Order passed by the Land Tribunal.44
O.S.No. 1782/92.
14. Ext.D.15 Copy of the Voters List.
15. Ext.D.16 C.C of the sale deed dated 22.11.1968.
16. Ext.D.17 C.C of the sale deed.
(K.C.RAMAKRISHNAIAH) XXII Addl.City Civil Judge, Bangalore.
45
O.S.No. 1782/92.
3.12.2004 Judgment pronounced in open Court.
(Vide separate Judgment)
The suit of the plaintiff is hereby
dismissed.
Under the circumstances of the case, I direct the parties to bear their own costs.
XXII Addl.City Civil Judge, Bangalore.
46O.S.No. 1782/92.