Bangalore District Court
Babulal vs Manikchand on 14 January, 2022
KABC010155522006
IN THE COURT OF THE XXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY : (CCH.07)
Dated this 14th day of January, 2022.
Present
Present SRI.DINESH HEGDE, B.A.,LL.B.,
C/c XXII ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.9138/2006
PLAINTIFFS :: 1. Babulal, S/o. Misrimal
Aged about 48 years,
Residing at No.8, 2nd cross,
Lakshmi Road, Shanthi Nagar
Bangalore.
2. Smt. Nirmala Kumari
Wife of Babulal, A/a 46 years
R/at. No.8, 2nd cross, Lakshmi Road
Shanthi Nagar
Bangalore.
3. Praveen Kumar,
S/o. Babulal, A/a 22 years
R/at No:8, 2nd cross, Lakshmi Road
Shanthi Nagar, Bangalore.
(By Sri.P.D.SURANA, Advocate)
V/s.
DEFENDANTS :: 1. Manikchand,
S/o. Misrimal, A/a 52 years
R/a. 'SANKALP' No.10,
2
O.S.No.9138/2006
Lakshmi Road, Shanthi Nagar
Bangalore.
2. Smt. Susheela,
Wife of Manikchand, A/a 50 years
R/at 'Sankalp' No.10,
Lakshmi Road
Shanthi Nagar, Bangalore.
3. Kamalesh Kumar
S/o. Manikchand, A/a 29 years
R/at. 'Sankalp' No.10, Lakshmi Road,
Shanthi Nagar, Bangalore.
4. Gyanchand,
S/o. Sukhraj, A/a 63 years,
Carrying business in Textiles,
at M/s. Pramo Tex,
1st floor, Rajatha Complex
A.M.Lane, Chickpet,
Bangalore.
5. Ashok R. Jain
S/o. Rickhabchand Jain,
A/a 34 years, Textile Merchant
carrying business at Lakshmi Trading
Co., D.K.Lane, Chickpet
Bangalore.
6. R. Gopalakrishna Murthy,
S/o. Ramanna, Aged about 85 years,
Carrying business at
M/s. SOMU Saree Centre, Radha
Apartments, No.1, Basappa Road,
Shanthi Nagar, Bangalore.
7. Mohanlal S/o. Chandmal
A/a 66 years, carrying business at
Mohan Jewellers, Pudunellu Mandy
Street, Annasalai, Arcot,
North Arcot District, Tamil Nadu State.
3
O.S.No.9138/2006
8. Hemraj S/o. Chandmal
Aged about 62 years
M/s. Rishab Jewellers,
Jewellers Bazar, Arcot,
Near Pudunallu Mandy Street,
Annasalai, Arcot, North Arcot District,
Tamil Nadu State.
9. Sohanraj S/o. Chandmal
Aged about 58 years
M/s. Padma Jewellers,
Near Pudunallu Mandy Street,
Annasalai, Arcot, North Arcot District,
Tamil Nadu State.
10. Gouthamchand,
S/o. Jugraj Ji Setheia,
Aged about 58 years,
M/s. Jagadeesh Jewellers, Near Ratna
Cafe, Triplican High Road, Madras-5.
11.Ramesh Kumar (Ramesh Chand) S/o.
Chandanmal,
Aged about 48 years,
Mahatma Jewellers, No:102,
Eladmas Road, Tainapet,
CHENNAI-18.
12. Somashekar,
S/o. Gopala Krishna Murthy
A/a 62 years,
M/s. Somu Saree House,
Radha Apartments, No.1,
Basappa Road,
Shanthi Nagar, Bangalore-27.
(By Sri. PARAS JAIN,
for defendant Nos.1 & 2
4
O.S.No.9138/2006
For D3 party in person / Sri.M.G.Advocate,
For D4, D6 M.S.Purushotham Rao
For D5 - Goutam
For D12 - S.Venkataramaiah
For D7 to 11 - Paras Jain)
Date of institution of the : 18.10.2006
suit
Nature of the suit : PARTITION
Date of commencement 07.02.2011
of recording of the
evidence.
Date on which the : 14.01.2022
Judgment was pronounced.
: Year/s Month/s Day/s
Total duration
15 02 26
(DINESH HEGDE)
C/C XXII ACCJ, B'LURU.
JUDGMENT
This suit is filed by the plaintiffs for partition and separate possession of 'A' to 'I' of plaint schedule properties and divide the assets mentioned in 'J' schedule among the plaintiff and first defendant by dissolving the firm.
5
O.S.No.9138/2006
2. The case of plaintiffs in nutshell:
It is the case of the plaintiffs that the second plaintiff is the wife of the first plaintiff. Third plaintiff is the son of the first and second plaintiffs. The second defendant is the wife of the first defendant. Third defendant is the son of the defendant Nos. 1 and 2. The first plaintiff and the first defendant are brothers and they are sons of Late.Sri.Misrimal.
3. The plaintiffs and defendants 1 to 3 are members of family. The joint family of late Misrimal consisted of himself and his 3 sons namely Rajmal, first plaintiff and first defendant. They were co-parceners. The said joint family was a Trading family. They are the natives of Khinwar village, Desuri Taluk, Pali District, Rajasthan State. The family was carrying business at Mudagere Town in Pawn Broking and it was also trading in Cardamum, Pepper etc. The first plaintiffs father Misrimal established a business in wholesale cloth, at Devatha Market, A.M.Lane, Chickpet, Bangalore. In the first instance business was commenced in Shop No.11. To 6 O.S.No.9138/2006 meet the growing needs of the business, shop No.10 and shop No.4 of the said Devatha Market were also obtained on lease. The said 3 shops were obtained on lease from the owner of the said commercial Complex. Shop. No.11 was obtained on lease in the name of the father of the 1 st plaintiff/ 1st defendant Sri. Misrimal and the other two shops were taken on lease, one in the name of the 1 st plaintiff/ 1st defendant's mother and the other in the name of the second defendant. For the purpose of establishing business, it was also desired that a person having experience in wholesale textile business is to be associated. In view of the fact that a stranger having experience in textile business was to be joined in business, it was desired to constitute a firm. The interest of the Joint Family is to be represented by few members of the Joint Family, and thus the firm was constituted by inducting Badam Bai, wife of Misrimal (mother of first plaintiff and 1st defendant) Gopi Devi, wife of Rajmal the 1st defendant and one Sri.Kantilal. The said Kanthilal was a stranger to the family and he was inducted as a working 7 O.S.No.9138/2006 partner to utilize his experience in the wholesale textile trade. Thus, for the benefit of the joint family and by the Joint Family, the firm of M/s. M.Misrimal & Co., was constituted during the year 1975. The working partner Sri. Kanthilal retired from the firm during 1981. On retirement of said Kanthilal the firm was re-constituted on 28.10.1981. The reconstituted firm had the following partners:
a) Manikchand, S/o. Misrimal (1st defendant )
b) Gopi Devi, wife of Rajmal.
c) Badam Bai, wife of Misrimal.
d) Nirmala Kumari, wife of Babulal (the 2nd plaintiff).
4. During the year 1987, Badam Bai the mother of first plaintiff/ first defendant expired. In view of the same, Mahaveer Chand S/o. Rajmal was inducted as a partner. The said Rajmal is the elder brother of the first plaintiff and the first defendant. He was inducted as a partner as the firm was constituted for the benefit of the family and by the Joint family. During the year 1992, Rajmal separated from the family. Joint Family has established 8 O.S.No.9138/2006 the business at Mudagere Town several years prior to establishing the firm of M/s. M.Misrimal & Co., at Bangalore. The business at Mudagere was also carried on under the name and style of M/s. M. Misrimal & Co., During the life time of late Misrimal an immovable property was acquired at Mudagere which consisted of a shop and a house. The shop premises was used for carrying on the business and the house premises was used for the residence of the family. At Mudagere the family was doing business in Pawn Broking, sale and purchase of cardamom and Pepper.
5. Rajmal the elder brother of 1 st plaintiff /1st defendant separated from the family during the year 1992. Towards the share of Rajmal the properties which were given to him are, the house property owned by the family at Mudagere. The property bearing No.63, Hospital Road, Bangalore, the family house located at the Native village of Khinwara, the entire trade of M/s. Misrimal & Co., which was carried on at Mudagere. In view of the separation of Rajmal from the family, the members of the 9 O.S.No.9138/2006 family belonging to his branch retired from the firm of M/s. Misrimal & Co., Bangalore. Accordingly, Rajmal's wife Gopi Devi and their son, Mahaveer chand retired from the firm of M.Misrimal & Co., Devatha Market, Chickpet, Bangalore. Thereafter the family of the 1st plaintiff and the family of the 1st defendant continued in joint family, therefore the 1st defendant and the 2nd plaintiff continued as partners of M/s. Misrimal & Co., Devatha Market, Chickpet, Bangalore.
6. The ancestral house located at Badavas Khinwara village, Rajasthan State fell to the share of Rajmal the elder brother of the 1 st plaintiff /1st defendant. The family also owned a site in the said village which was purchased about 50 years ago, by late Misrimal. This property owned by the family in Khinwara village is described as 'A' schedule property. That 'B' schedule property is an agricultural land forming part of Sy.Nos. 62, 63, 64, 65, 66 and 67 of Bellahalli village and Sy.NO.102 and 103 of Kogilu village. The total extent of 'B' schedule property is 52 acres and 25 guntas. The 'B' schedule property was owned by Jyothi Anil Patel, Smt. Vidya Bai, 10 O.S.No.9138/2006 wife of Sukhraj, defendants 5 and 6. Vidya Bai wife of Sukhraj, expired. The 4th defendant is the son of the said Vidya Bai who has succeeded to the estate of his mother Vidya Bai. They together were owning 52 acres and 25 guntas of land comprised in 'B' schedule property. Each of them were owning 25% of the undivided interest in the said land.
7. One of the joint owner Jyothi Anil Patel desired to sell her 25% of the share and she offered to sell the same for a sale price of Rs.6,53,000/-. The offer was accepted by the first plaintiff and the first defendant and 25% of interest in 'B' schedule property is purchased for the benefit of the family. The sale deed dated 29.03.1995 is executed by Jyothi Anil Patel to transfer her 25% of share in 'B' schedule property in favour of the 3 rd defendant. The 3rd defendant is a co-parcener, being the member of the family. The 25% of 'B' schedule property is purchased for the benefit of the joint family of the first plaintiff and first defendant. The first plaintiff had transferred by giving the necessary cheque encashable 11 O.S.No.9138/2006 from the account of the plaintiff and thus money so credited to the account of the third defendant was made available for being paid to the vendor namely Jyothi Anil Patel.
8. Out of 52 acres 25 guntas of land comprised in the 'B' schedule property 25% of the share works out to 13 acres and 6 ¼ guntas. The said area out of 'B' schedule property is to be divided equally amongst first plaintiff and the first defendant, namely the respective branches of the family. The 12 th defendant is the son of the 6th defendant. The 12th defendant is managing the interest of 6th defendant in 'B' schedule property. The defendants 4, 5, 6 and 12 are made parties to the suit for the reasons that the family of the 1 st plaintiff/ 1st defendant are owning 'B' schedule property along with the defendants 4, 5 and 6. For separating the share of the plaintiffs in the 'B' schedule property they are required as necessary parties to the suit. The defendant No.12 is managing the affairs of defendant No.6 so far as 'B' 12 O.S.No.9138/2006 schedule property is concerned. Hence, defendant No.12 is made as party to the suit.
9. The defendants 7 and 11 and the family of the plaintiff and the first defendant have together purchased the property described in 'B' schedule. The extent of interest purchased in the 'C' schedule property by the family of 1st plaintiff/ 1st defendant is 1/6th out of the total extent. The remaining 5/6th a interest in 'C' schedule property is owned by defendants 7 to 11. It is submitted that the 1/6th interest in the total area of 'C' schedule property is purchased under a sale deed dated 17-11- 1995 executed by one Sri.B.C.Balakrishnan in favour of the first plaintiff. Similarly, 1/5th interest in the 'D' schedule property is purchased during November, 1996. The remaining 4/5th interest is purchased by defendants 7 to 9 and 11. The undivided interest as aforesaid in 'C' schedule property and in 'D' schedule property is also purchased for the benefit of the joint family consisting of 1st plaintiff and 1st defendant. As stated above the 'C' schedule property is jointly purchased by defendants 7 to 13 O.S.No.9138/2006 11 and family of the plaintiff / defendant No.1. In 'C' schedule property the share of the plaintiffs have to be separated and therefore defendant No.7 and 8 are impleaded as parties. Likewise the property described in 'D' schedule property is jointly owned by defendants 7,8,9 and 11 and family of 1st plaintiff/1st defendant . In 'D' schedule property the share of the plaintiffs has to be separated hence defendants 7, 9 and 11 are made as parties in this suit.
10. The property described in 'E' schedule is a house property belonging to the joint family of 1 st plaintiff and 1st defendant which has been used for the residential use of the family, presently it is used as a residence for the members of the family of the first defendant. The 'E' schedule property is purchased by the joint family for the benefit of the joint family under the registered sale deed dated 10.06.1994, registered in the office of the Sub- Registrar, Jayanagar, Bangalore on 11.08.1994. The said sale deed is executed by Smt. Nanjarajamma in favour of the first plaintiff and the first defendant. Similarly, the 14 O.S.No.9138/2006 property described in 'F' schedule is purchased by the undivided family under a registered sale deed dated 05.05.1990 executed by O.K.M.Annamalai and others in favour of the second plaintiff and second defendant. Thereafter, the sale deed dated 05.05.1990 is also confirmed followed by a release deed executed by one of the sons of Annamalai. This 'F' schedule property is presently used as a residence by the family of the plaintiffs. Since the first plaintiff and second defendant are the members of the family.
11. The property described in 'C' schedule is also a joint family property and is purchased under a sale deed obtained in favour of the first defendant and in the matter of registration, legal proceedings had ensued and they have been looked after by the first defendant. The 'C' schedule property is also in the possession of joint family. The property described in 'H' schedule is a site formed by Mahaveernagar Housing Co-operative Society. In the said society first plaintiff, first defendant, late Misrimal and Rajmal were the members of the said society. Four sites 15 O.S.No.9138/2006 were allotted by the said society for each of the members. The site allotted in favour of Rajmal is owned and possessed by Rajmal as he is separated. The site allotted in favour of the 1st plaintiff is also allowed to be owned by the 1st plaintiff separately. Similarly, the site allotted in favour of the 1st defendant is allowed to be owned by the 1st defendant. Late Misrimal being the member of the above said society was entitled to allotment of site. Before the allotment could be made, he expired. The site which was to be allotted in favour of Misrimal was got allotted in favour of the 2nd defendant.
12. In view of the allotment, the said society executed the sale deed dated 30.12.1981 in favour of the 2nd defendant. Thus 'H' schedule property is purchased by the joint family for the benefit of the joint family and not for the benefit of the 2nd defendant. The membership fees for becoming member of the said society was paid by late Misrimal during the early part of 1962-63. The said Misrimal had also paid a sum of Rs.800/- towards the value of each site, in respect of all four sites which were 16 O.S.No.9138/2006 allotted by the said society as aforesaid. Even, the 'H' Schedule is a joint family property. The amounts for acquiring the same was paid by late Misrimal during 1962-63.
13. The joint family had also purchased a site at Anand Nagar, Pali District, Rajasthan. The said Anand Nagar site was a revenue layout without any conversation, which had no value and the purchase is made in the name of the 1st defendant. Two flats were acquired in the apartment complex known as 'ROYAL PALACE' located at Ghod Daud Road, Surat from M/s. Parishot Developers (P) Ltd. Out of the two flats one flat bearing No.303 was acquired in the name of the 1 st defendant by making payment from the firm of M/s. Misrimal & Co. Another flat bearing No.203 was acquired in the name of the 3 rd plaintiff, in the said apartment complex. The 1 st defendant sold flat No.303 and appropriated the amount, it was agreed between the parties in the Panchayat held as narrated hereinafter that the flat No.203 forming part of 'ROYA PALACE' apartment located at Ghod Daud Road, 17 O.S.No.9138/2006 Surat is to be retained by the family represented by the 1 st plaintiff. A Housing society named as Renuka Housing Society is formed by the owners of the flat who are the purchasers of the flat. The said 'ROYAL PALACE' Apartments is developed by M/s. Paritosh Developers (P) Ltd., In view of that, each flat owner owns a share in the society of owners.
14. The share certificate is issued to each flat owner. For flat No.203 the share certificate is issued in favour of the 3rd plaintiff. The said share certificate is collected by the 1st defendant and the keys of the flat No.203 is to be retained by the family of the plaintiffs. Similarly, the site purchased in Anand Nagar, Pali District is also to be retained by the family of the plaintiffs. In view of the fact that flat No.203 was to be retained by the family of 1st plaintiff, the 1st defendant agreed to hand over the documents relating to the said flat and also the keys of the said flat to plaintiffs within a period of one month from 18.11.2001, as per the memorandum drawn 18 O.S.No.9138/2006 which is referred hereinafter. The said flat is morefully described in schedule 'I' annexed to this plaint.
15. The firm of Misrimal & Co., was formed by the members of the joint family for the benefit of the joint family. The necessity of floating the firm was found at the commencement of the business as a third party to the family was required to be associated to meet the requirement of experienced man power which was necessary. Though the 2nd plaintiff was the partner of the said firm for all practical purposes she was representing the branch of the 1 st plaintiff's family. For the purpose of payment of income tax the accounts of the firm was maintained according to the requirement of Income Tax Act and taxes were paid accordingly. But being co-parceners the properties are acquired for the benefit of the co-parceners of the family. As submitted above when Rajmal the elder brother of 1st plaintiff and 1st defendant separated from the family and the properties which fell to his 19 O.S.No.9138/2006 share were given to him. After separation of Rajmal, the family of 1st plaintiff and family of 1t defendant is continued as a joint family. The properties which are purchased are of the benefit of the family of 1 st plaintiff and 1st defendant, the purchases were made in the name of one or other members of the family or in the name of two persons of the family, one belonging to the family of 1 st plaintiff and the other belonging to the family of 1st defendant.
16. The 1st plaintiff was staying at Mudagere and he was also attending to the family business before his marriage. The 1st plaintiff came over to Bangalore during the year 1980-81. The 1st plaintiff was attending to the business of the firm carried on at Devatha Market being the member of the family. From the year 1980-81, the 1st plaintiff was associated with the business affairs of the Bangalore firm up to end of March 1997. The accounting year adopted was from 1st April of the given year to the ending with and 20 O.S.No.9138/2006 31st March of the succeeding year. The 1 st plaintiff expressed his firm opinion to separate from the family, during the first week of April, 1997. He also requested the 1st defendant to divide the properties and partition them by metes and bounds. He also stopped attending the firm of M/s. Misrimal & Co. The 1st defendant did not head to the said request.
17. In the circumstances, Sri. Sukanraj the uncle of the 1st plaintiff/1st defendant along with Dhanraj mediated the matter and a decision to divide the properties available for partition amongst the respective families of 1st defendant and 1st plaintiff was decided. The said Dhanraj was also one of the common relative of 1st plaintiff and the 1st defendant. Dhanraj's father Heerchand was the brother of the grand mother of 1st plaintiff/1st defendant. The decision was made to divide the properties between families of 1st plaintiff and 1st defendant as per the memorandum drawn; Thereafter the requests was 21 O.S.No.9138/2006 made to the 1st defendant to divide the properties by metes and bounds as per the memorandum drawn as aforesaid was not carried out.
18. The request was made to the 1 st defendant to divide the properties with effect from 1 st April, 1997. The 1st plaintiff stopped attending the business of M/s. M.Misrimal & Co., the 1st defendant was the custodian of the assets of the firm of M/s. Misrimal & Co., taking advantage of the said situation the 1 st defendant prepared the records to show the business of M/s. M.Misrimal & Co., as Nil. He obtained the sales tax dealership in the name of M/s.M.Misrimal's as if the said concern of M.Misrimal's is a separate concern of the 1st defendant and members of his family. Thus, on record he transplanted the business of M/s.M.Misrimal & Co., as a business of M.Misrimal's and this mischief was intended to hoodwink the family of 1st plaintiff. It is submitted that the business carried 22 O.S.No.9138/2006 in the name of M/s. M.Misrimal's is in fact the business of M/s.M.Misrimal & Co.
19. The conduct of the 1st defendant to devise a means of transferring the assets of M.Misrimal & Co., to the name of M/s. Misrimal's constrained to filing of O.S.4338/2000 by the 2nd plaintiff seeking mandatory injunction to change the management of the firm and custody of assets of the firm. Except the said relief no other relief was sought for in the said suit. That the marriage of the 1st defendant's daughter was schedule for being celebrated on 04.02.2001. During that time the relatives of 1st defendant / 1st plaintiff had gathered. Few relatives suggested that the brothers should settle their dispute of dividing the properties amicably. The said suggestion was welcome so far as the plaintiffs are concerned. The first defendant to divide the properties by metes and bounds imposed two conditions. He insisted that unless the two conditions are fulfilled he will not participate in the discussion which would be held by the 23 O.S.No.9138/2006 mediators for giving a quitus to the dispute of dividing the properties. The two conditions imposed by the 1 st defendant are as follows:
i) The 2nd plaintiff should file a necessary application to withdraw O.S.4338/2000.
ii) The 2nd plaintiff shall sign the deed of dissolution which was to be prepared by the 1st defendant.
20. The mediators Sri.Kevalchand S/o. Gyanmalji who is a common relative and resident of Bangalore and who is also carrying on business in Devatha Market suggested to sign the dissolution deed to be prepared by the 1st defendant, assuring that the dissolution deed signed by the 2nd plaintiff would remain in the custody in his custody till the division is finally made. And he also advised to file necessary application to withdraw O.S.4338/2000. In view of the said advise to give a quitus to the dispute of dividing the properties, the 2nd plaintiff filed an application before this Hon'ble Court under Order 23 Rule 1 of CPC to withdraw O.S.4338/2000 on 01.02.2001. The 2nd plaintiff also signed the deed of 24 O.S.No.9138/2006 dissolution which was got prepared by the 1 st defendant dated 02.02.2001.
21. The dissolution deed was signed on the night of 03.02.2001 and the same was handed over to Sri. Kewalchand. The 1st defendant was informed about this fact. The 1st defendant insisted for the deed of dissolution to be handed over to him for it being shown to his advocate. He was very adamant on this aspect of the matter. In those circumstances, another common relative of the 1st plaintiff and 1st defendant Sri. Uttamchand s/o. Misrimal intervened in the matter. He requested Kevalchand to handover the dissolution deed for being given to the 1st defendant and he also stated that the partition would be made smoothly without any hurdles, this statement was made by said Uttamchand on the assurance given by the 1st defendant to the said Uttamchand to effect a partition, after the celebration of his daughter's marriage. In that circumstances, the 1 st defendant came in to the custody of the deed of dissolution duly signed by the 2nd plaintiff. The marriage 25 O.S.No.9138/2006 of 1st defendants daughter was celebrated on 04.02.2001. The plaintiffs have attended the said marriage.
22. During March, 2001 the 1st defendant gave a cheque for Rs.4,13,203-72 paise dated 30.03.2001 payable to the 2nd plaintiff. The said cheque was handed over by the 1st defendant to Sri. Uttamchand. He in turn handed over the same to the 1st plaintiff and he told the 1st plaintiff that the cheque be encashed and further he informed that the 1st defendant would settle the matter in few days. In view of the same the cheque given by the 1 st defendant was encashed. Thereafter, the requests made to the 1st defendant through said Uttamchand and Sri. Kewalchand did not yield the result of partitioning the properties. The 1st defendant expressed that the matter has to be thrashed again and he brought in Sri.Udayaraj Mandoth to mediate between the 1st defendant and the 1st plaintiff. In view of that Sri. Udayaraj Mandoth along with Dhanraj and Uttamchand again had a lengthy discussions and the terms to divide the properties were finalised. This was also reduced into writing and a memorandum was 26 O.S.No.9138/2006 drawn on 18.11.2001 which was signed by 1 st plaintiff, 1st defendant and the said intervenors.
23. Memorandum was drawn by the aforesaid Udayaraj. The said Udayaraj is also known to the family of the plaintiff and 1st defendant. He is also carrying business in D.S.Lane, Chickpet, Bangalore for over 40 years. As per the said memorandum the agreed division of properties was required to be down between the first plaintiff and the 1st defendant as follows:
a) The assets of the firm of M/s. M.Misrimal & Co., the Good Will of the firm, the tenancy rights of shop No.4, 10 and 11 of Devatha Market, A.M.Lane, Chickpet, Bangalore and liabilities of the firm are to be allotted towards the share of the 1st defendant. This asset is described in 'B' schedule.
b) The properties described in schedule 'A' is to be divided equally amongst the 1st plaintiff and 1st defendant.
c) The properties described in schedule 'I' is to be allotted to the share of the 1st plaintiff.
d) The 1/6th share owned by the family of the plaintiff and 1st defendant in schedule 'C' property is to be divided equally amongst 1st plaintiff and 1st defendant.
e) The 1/5th share owned by the family of 1 st plaintiff and 1st defendant in schedule 'D' property is to be divided equally amongst 1st plaintiff and 1st defendant.27
O.S.No.9138/2006
f) The 25% of interest held by the family of 1 st plaintiff and 1st defendant in schedule 'B' property is to be divided equally amongst the 1 st plaintiff and the 1st defendant.
g) The property described in schedule 'E' is to be allotted to the share of the 1st defendant.
h) The property described in schedule 'F' is to be allotted to the share of the 1st plaintiff.
i) The property described in schedule 'G' is to be share equally between 1 st plaintiff and 1st defendant.
(j) The site allotted by Mahaveer Nagar Housing Co-operative Society morefully described in 'H' schedule has to be retained to the share of the 1st plaintiff.
(k) A site in Anand Nagar of Pali District, Rajasthan State is to be retained towards the share of the 1st plaintiff.
24. In normal course the division of the properties amongst the family of 1st plaintiff and 1st defendant ought to have been reached as above but the 1 st defendant did not give effect to the said understanding and did not co- operate in the matter of finally dividing the properties. He was happy with the fact of securing the signature on the dissolution deed and even exhorted that he will take advantage of the blank paper on which signature is made 28 O.S.No.9138/2006 by the 2nd plaintiff and which were available in the custody of 1st defendant. In fact, in view of the said availability of blank papers containing signature of the 2nd plaintiff it was also incorporated in the memorandum dated 18.11.2001 that the 1st defendant should return all the blank papers containing the signatures of the 2nd plaintiff as mentioned in the said Memorandum. But the 1 st defendant did not even care to return the blank papers containing the signatures of the 2nd plaintiff in spite of requests made to him.
25. The assets of the firm which are described in schedule 'J' consisted of the Goodwill of the firm, the tenancy rights in shop No.4, 10 and 11 of Devatha Market, Chickpet, Bangalore, Stock-intrade and other assets and liabilities. Its value was quantified on a lower side at Rs.60,00,000/-. The plaintiffs family has ½ share in 'J' schedule assets. As the 1st defendant were to retain the 'J' schedule assets the 1st defendant was required to pay a sum plaintiff Rs.30,00,000/- (Thirty Lakhs) to the 1 st plaintiff in 3 installments of Rs.10,00,000/- each in 29 O.S.No.9138/2006 between 15.12.2001 and 15.02.2002. The 1 st defendant did not pay the said amount and defendant even did not bothered to pay even a single paise towards the agreement of Rs.30,00,000/- (Thirty lakhs). Thus the defendant No.1 has not acted according to the Memorandum drawn on 18.11.2001 though the plaintiffs are willing to act upon the same.
26. The dissolution deed was signed by the 2 nd plaintiff in the circumstances narrated above. The dissolution deed was signed under the fond hope that final division of properties will be made between the family of 1st plaintiff and 1st defendant. It was never expected that the 1st defendant would again dodge the division of the properties as per the entitlement between the 1 st plaintiff and the 1st defendant. But to the dismay of the plaintiffs the 1st defendant has hoodwinked the plaintiffs in obtaining the signature on the dissolution deed. The dissolution deed is therefore not supported by consideration and it is not a binding contract between the 30 O.S.No.9138/2006 parties. This dissolution deed obtained by the 1 st defendant has remained as a paper transaction only.
27. Despite the drawing of memorandum dated 18.11.2001 the properties were not divided by metes and bounds. The assets of the firm of M/s.Misrimal & Co., remained in the hands of the 1st defendant not in his own right but he continued to manage the assets on behalf of the family of plaintiffs also. The 1 st defendant has to submit the accounts of the profits earned by the firm, whether the business is carried in the firms name M/s. M.Misrimal & Co., or in the name of M.MISRIMAL's. The Assets of M/s. M.Misrimal's are in effect the assets of M/s. Misrimal & Co. After 18.11.2001 and thereafter continuously requests were made to effect the division of the properties. But the 1st defendant has merely postponed the same and has failed to effect the partition by metes and bounds. Finally demand was made on 1 st October, 2006 requesting the first defendant to divide the properties by metes and bounds. The first defendant is not inclined to heed to the said just request and on the 31 O.S.No.9138/2006 other hand attempts are made by the defendants 1 to 3 along with defendant Nos. 4, 5, 6 and 12 to sell off 'B' schedule property. The plaintiffs are having 1/8th share in the 'B' schedule property, as plaintiffs 1 to 3 and defendants 1 to 3 are together entitled to 25% of 'B' schedule property.
28. The 1st defendant as per the memorandum dated 18.11.2001 ought to have delivered the keys of the flat bearing No.203 forming 2nd floor portion of a Residential apartment-cum-commercial Apartment building namely 'Royal Palace' which is morefully described in schedule 'I'. He had also agreed to surrender the share certificate issued in favour of the 3 rd plaintiff evidencing that the 3rd plaintiff is the share holder and which in turn empowers the 3rd plaintiff to hold, possess and enjoy the beneficial right of ownership in 'I' schedule property. 'I' Schedule property was agreed to be retained by the plaintiffs towards the share of the first plaintiffs family. The 1st defendant did not comply with the said 32 O.S.No.9138/2006 understanding by delivering the keys of the said apartment and the share certificate.
29. The first defendant is still holding the custody of the share certificate and the keys of the 'I' schedule apartment. The 'I' schedule apartment on being tenanted would yield at least Rs.10,000/- to Rs.15,000/- as a monthly rent. The plaintiffs and defendants 1 to 3 are in joint possession of the suit properties. It is submitted that so far 'B' schedule 'C' and 'D' schedule are concerned the plaintiffs are in joint possession with defendants 1 to 3 and respective other sharers of the plaint 'B' schedule, plaint 'C' schedule and plaint 'D' schedule properties. The 'J' schedule property are the assets of the firm of M/s. M.Misrimal & Co. The partnership formed as aforesaid was devised in the circumstances mentioned above. None the less the schedule property described in 'J' schedule is also available for partition. The 1st defendant is liable to furnish the true and correct accounts of 'J' schedule property and whatever the appreciation which was accrued in the assets of the firm in view of the continuous 33 O.S.No.9138/2006 income earned by 'J' schedule property also has to be shared equally amongst the plaintiff and defendants 1 to 3.
30. The cause of action for the suit arose on 01.04.1997, when the plaintiff expressed his intention to separate himself from the family and thereafter continuously and again on 18.11.2001 when the second memorandum was drawn indicating the manner in which the properties are to be divided among the family of the first plaintiff and first defendant. Wherefore, the plaintiffs pray for a Judgment and Decree in their favour and against the defendants for partition of properties described in the plaint schedule. Hence, the suit.
31. After service of the suit summons, the defendants appeared through their respective counsels and filed their written statements.
The case of the defendant No.1 and 2 in nutshell:
34
O.S.No.9138/2006 The defendant Nos.1 and 2 denied that plaintiffs and the defendants 1 to 3 are members of the family. Sri. Manik Chand the defendant No.1 herein was studying in Bangalore. After completing his studies, he wanted to start business at Bangalore. Before he could start business, he went to Mudigere to live with his parents for few months until he commences his new business. In the business which was carried on by his father, he had no interest. One distant relative (Nihalchand S/o. Pukhra) was also residing in the house, said distant relative misappropriated some gold ornaments, which were pawned by the father. When such gold ornaments could not be traced, Sri. Manikchand was accused of having misappropriated the same. Despite his explanation that he has nothing to do with missing of said gold ornaments from the shop, he was not believed. Subsequently, after few days it was revealed that said distant relative had misappropriated the same and at that stage, it was realized that for no fault of Sri.Manik Chand was abused as an accused. The said incident made Sri.Manik Chand to 35 O.S.No.9138/2006 severe all his rights with the family and immediately he left for Bangalore. He joined in one wholesale textile shop to gain experience in the said business. He joined in the service of M/s. Mahalakshmi Silk Centre, D.K.Lane Chickpet, Bangalore to learn about wholesale textile business. He was in service for more than one year during the year 1974-75.
32. Thereafter, gaining sufficient experience in the wholesale business, the defendant No.1 Sri. Manik Chand started his own business, the defendant No.1 Sri. Manik Chand started his own business in the name of M/s. M.Misrimal's at Devatha Market Chickpet, Bangalore. He started said business with Partner Sri. Kanthilal. The said business was exclusive of his father or his brothers.
33. The joint family of the father Sri. Misrimal also had no right over the said business. The brothers of Sri. Manik Chand also had no rights in the said business. The said business absolutely belonged to a Partnership firm of M/s. M.Misrimal of which Manik Chand and Kanthilal were the partners. Sri. Kanthilal retired from the Partnership 36 O.S.No.9138/2006 firm in the year 1981, after taking his share of profit from the firm. Sri. Manik Chand the defendant No.1 herein, worked hard to improve the business. He used to go to Surat, which is man manufacturing capital of India in Manufacturing artificial synthetic Sarees viz., man made fabrics, for purchasing and used to get the same to Bangalore by transportation and sell the same to the retailers.
34. By his hard work and dedication the business in a short span of time, he was successful in the business and got secured good contacts with the manufacturers at Surat, who were ready and willing to sell merchandise to him on credit also. No doubt the firm of M/s. M.Misrimal was reconstituted on 28.10.1981 and new partners were inducted in the firm. Badam Bai expired in the year 1987. The firm was reconstituted and Mahaveer Chand was inducted as partner. His Mother expired in the year 1987. It is absolutely false that Mahaveer Chand was inducted as a partner, as the firm was constituted for the benefit of 37 O.S.No.9138/2006 the family and by the joint family. The joint family had no stakes in the said partnership firm.
35. The plaintiff wants to concoct a story which has no nexus to the truth and for that reason, to every sentence written in the plaint, a word and by the joint family is inserted and added forgetting the fact that mere writing of such word will not make a partnership firm business of the joint family. Rajmal got separated from the family during the lifetime of the father by executing Release Deed in favour of the father and he was carrying on business separately. The averments of the plaint that, the joint family has established the business at Mudigere town several years prior to establishing the firm of M/s. M.Misrimal & Co., at Bangalore is vague, bald and absurd. It is absolutely false that the joint family has established the business at Mudigere town several years prior to establishing the firm of M/s. M.Misrimal & Co., at Bangalore and the plaintiff is put to strict proof of the same. Business at Bangalore under the name and style of M/s. Misrimal & Co. a partnership firm was established by 38 O.S.No.9138/2006 Sri. Manikchand the defendant No.1 by his own efforts and labour and joint family has nothing to do with the said business.
36. It is true that father acquired immovable property at Mudigere and the said property in his last Will was bequeathed to his 3 daughter-in-laws viz., Smt. Gopi Bai, Smt. Susheela and Smt. Nirmala and as per the said Will, they are the legatees. The said Will confirms the fact that, joint family of the father comprised of two coparceners. The said Will also confirms the fact that, during his lifetime his two elder son's viz., Rajmal and Manikchand severed the rights with the family and released themselves from the Hindu Undivided family and they are living separately. Under the Will of the father, house property at Khinwar village was bequeathed to Babulal, the plot at Khinwar village was bequeathed to Rajmal and Manikchand. The property at Hospital Road was purchased by Rajmal and it belongs to him. Partnership business which was being carried on at Bangalore by the defendant No.1 had nothing to do with 39 O.S.No.9138/2006 the joint family of Sri.Misrimal and Sri.Babulal. Under the Will of the father, house property at Khinwar village was bequeathed to Babulal, the plot at Khinwar village was bequeathed to Rajmal and Manikchand.
37. The averments made in Para-11 regarding agricultural land more fully described in 'B' schedule of the suit that, it has been purchased for the benefit of the family is absolutely false. Sri. Kamalesh Kumar, son of this defendant has purchased the same under registered sale deed and he is the absolute owner thereof and except him, no other person has any title or interest over the said property. Averments made therein that 3 rd defendant is coparcener being the member of the family is absolutely false. Under no stretch of imagination, defendant No.1 can be member of the family of the plaintiff. Further averment that 25% of 'B' schedule property was purchased for the benefit of the joint family of the 1 st plaintiff and the 1st defendant is absolutely false. Averments that the plaintiff No.1 has transferred the amount by giving the necessary cheque from his account 40 O.S.No.9138/2006 is absolutely false. Averments that said 25% of 'B' schedule property to be divided equally among the 1 st plaintiff and the 1st defendant, speaks volumes. Under what authority, the plaintiff or his branch has right over the said property is not stated in the plaint. Further, the property which absolutely belongs to Kamalesh Kumar, why it should be divided between the branches of the plaintiff -1 and the defendant -1 is also not stated.
38. Defendants - 4, 5 , 6 & 12 are not the co- parceners of the family. Even the defendants-1 to 3 are not Co-parceners of the family. Defendant-7 and 11 and the family of the plaintiff and the 1 st defendant have together purchased the property located at Anna Salai, ARCOT Town, Tamil Nadu State is absolutely false. Plaintiff
-1 has purchased the same under sale deed dated 17.11.1995. If it is so, it belongs to plaintiff No.1 absolutely. The defendant No.1 has no right or interest in the same. The defendant No.1 has nothing to do with the said property. Undivided interest in 'C' schedule property is purchased for the benefit of the joint family consisting 41 O.S.No.9138/2006 of 1st plaintiff and 1st defendant is absolutely false. The defendant No.1 or his wife or his son has no right, title or interest in the schedule 'C' & 'D' property and they have no claim against the same. 'E' & 'F' schedule property viz., No.10 Lakshmi Road and No.8, Lakshmi Road, belonging to the joint family of the 1st plaintiff and the 1st defendant is absolutely false.
39. Further averments that, it is being used for the residence of the family is also false, frivolous and vexatious and the same has no nexus to the truth and the plaintiff is put to strict proof of the same. Further, statement that 'E' schedule property is purchased by the joint family is also false. It is true that plaintiff No.1 and defendant No.1 have purchased the same jointly under one sale deed. This means both have 50% share in the property purchased under the impugned sale deed. Merely, because they have purchased jointly under one sale deed, it does not mean that it is purchased by joint family or their exists joint family. The 'F' schedule property is purchased jointly in the name of Smt.Susheela 42 O.S.No.9138/2006 Bai and Smt.Nirmala Bai and they are the co-owners of the said property. It is up to them to have their respective 50% share in the property divided between them.
40. Further averments that, 1st plaintiff and 2nd defendant are members of the family is absolutely false. 'G' schedule property viz., No.87/2, 4 th cross, R.T.Street is a joint family property and that it is in possession of the joint family is absolutely false. 'H' Schedule property is purchased by the joint family for the benefit of the joint family is absolutely false. Joint Family purchased site at Anand Nagar, Pali District is absolutely false and that two flats were acquired at Surat is true. The said flat No.303 was acquired by the defendant No.1 herein and it absolutely belongs to him. Further averments that it was agreed between the parties before the Panchayat that Apartment No.203 is to be retained by the family represented by the plaintiff No.1 is absolutely false. Averments that flat No.203 is to be retained by the family of the plaintiffs is absolutely false. Site at Anand Nagar, 43 O.S.No.9138/2006 Pali District is to be retained by the family of the plaintiffs is absolutely false.
41. The averments that firm of Misrimal & Co., was formed by the members of the joint family for the benefit of the joint family is absolutely false and same is concocted and fabricated version of the plaintiffs for the purpose of filing this case. Averments that 2 nd plaintiff who was partner of the said firm, for all practical purpose represented the branch of the 1st plaintiff family is also false. Averment that, after separation of Rajmal, the family of the 1st plaintiff and the family of the 1st defendant continued as joint family is absolutely false. Brother Sri. Rajmal got separated from the family during the life time of the father itself. Similarly, the 1 st defendant got separate from the family during the lifetime of the father itself. Question of any joint family between the brothers' viz., the 1st plaintiff and the 1st defendant does not arise at all. Just to knock away the wealth of the 1st defendant, who has earned by his hard word, this frivolous suit has been filed. Similarly, the defendant No.3 44 O.S.No.9138/2006 having purchased agricultural land that agricultural land being located near Devanahalli International Airport and its value has multiplied, to claim share in that land also, this frivolous suit has been filed.
42. First defendant was staying at Mudigere and he was also attending business before his marriage at Mudigere is absolutely false. During his childhood the defendant No.1 lived with his father. He studied at Bangalore. After attaining majority, neither he stayed with his father nor attended business of father. Further averments that, 1st plaintiff was attending the business of the firm carried on at Devatha Market being the member of the family, that he was associated with the business affairs of the Bangalore firm up to the end of March 1997 is absolutely false and same is concocted and fabricated version of the plaintiffs for the purpose of filing this case and same has no nexus to the truth. Averments that plaintiff No.1 expressed his opinion to separate from the family during first week of April 1997, that he requested 1st defendant to divide the properties and partition them 45 O.S.No.9138/2006 by metes and bounds is absolutely false. In the absence of any joint family question of demand of partition by metes and bounds does not arise at all. Business was being carried on by the defendant No.1 herein.
43. Smt. Nirmala wife of the plaintiff No.1 was partner of the said firm for few years and she retired from the said partnership firm and Dissolution Deed has been executed between them and she has collected her share of profit long back from the defendant No.1 and after dissolution of the firm she or any members of her family have no right to claim any interest in the said business. Averments that one Dhanraj mediated the matter along with Sukan Raj is absolutely false. Smt. Nirmala got filed an original suit in the Court of City Civil Judge, Bangalore in O.S.No.4338/2000 interalia praying that she may be put in management of the schedule assets viz., business of M.Misrimal & Co., which is being carried at Devatha Market, Chickpet, Bangalore including the stock-in trade account books and documents in entirety further, along with the said suit an I.A, was filed with the prayer that 46 O.S.No.9138/2006 Mr.M.Manikchand the defendant therein may be directed to hand over to the defendant management of the firm. In the said suit, very same advocate who is representing the plaintiffs herein, appeared.
44. The plaint in O.S.No.4338/2000 makes it very clear that there is no joint family between the parties hereto. During the pendency of said Original suit filed by Nirmala Kumari against Manikchand to resolve said dispute of partnership firm. Blank signatures were obtained of both the partners by the so-called Panchayatdars that they will solve the dispute in amicable manner but, they failed. The said blank signatures signed on blank paper might have been misused by the plaintiffs and probably such misused papers are being referred to in the plaint. In fact and in truth, there is no memorandum drawn between the parties hereto for dividing the properties between the families of the 1 st plaintiff and the 1st defendant as the same does not arise at all. Further, in the absence of any joint family question of division or dividing the properties does not arise at all. 47
O.S.No.9138/2006
45. It is absolutely false that any request was made to the defendant to divide the properties w.e.f 01.04.1997. It is true that daughter of the 1st defendant got married on 04.02.2001. It is also true that family members and relatives spoke about dispute between both the partners, pending in O.S.No.4338/2000 and called upon both of them to settle the dispute. But there was no suggestion by family members or relatives regarding division of the property by metes and bounds. As there was neither joint family nor any ancestral properties which was subject to partition between the said two brothers. Everyone were aware of the fact that both brothers are carrying on business separately and individually and that both of them are well settled in the life. Averments stated therein that two conditions were imposed by the 1st defendant for discussion are absolutely false. Averments that there were mediators by name Keval Chand and that pursuant to such mediation, an application was filed before the court under Order 23 Rule 1 of CPC for withdrawal of the case are absolutely false.
48
O.S.No.9138/2006
46. It is true that there was dissolution of the firm of M/s. Misrimal & Co., and the share of the profit and the capital amount payable to the partner Smt. Nirmala was paid. A sum of Rs.4,13,202.72/- was paid by cheque bearing No.506980 drawn on Vijaya Bank, City Market branch, Bangalore in favour of the plaintiff No.2, the Ex- Partner said cheque and the said partnership between Manikchand and Nirmala Kumari, the plaintiff No.2 and the defendant No.1 herein came to an end. Further averments that one Sri. Uttam Chand intervened for delivery of the original of Dissolution Deed, that assurance given by the defendant No.1 to affect partition after daughter's marriage are absolutely false.
47. Further averments that in such circumstance, the Defendant No.1 came into the custody of Dissolution Deed signed by the Plaintiff No.2 is also absolutely false. All these statements are after thought story created and concocted for the purpose of filing this false and frivolous Partition Suit. Dissolution Deed was executed on 02-02- 2001 by the partners on their own volition and pursuant to 49 O.S.No.9138/2006 Dissolution Deed, the accounts between the said two partners were settled and ever since then both the partners are living peacefully. After 5 years 10 months from the date of execution of said Dissolution Deed, this Partition suit is filed, in respect of very same issues, which were subject matter of earlier suit in O.S.4338/2000 and it is not maintainable, under the provisions of Civil Procedure Code.
48. Averments of the fact regarding delivery of cheque of Rs.4,13,202.72 paid by the defendant No.1 to the plaintiff No.2, on dissolution of Partnership firm, in full and final settlement of all claims by the plaintiff No.2 against the defendant No.1. It is absolutely false that said cheque was handed over to Utham Chand by the defendant No.1 and in turn the defendant No.1 handed over the same to the plaintiff No.1 and further statement that said Utham Chand informed plaintiff No.1 that defendant No.1 settled the matter in few days is also absolutely false.
50
O.S.No.9138/2006
49. Further statement that request was made through Utham Chand and Keval Chand for partition and in such circumstance one Sri. Udayaraj Mandoth was brought to mediate between the defendant No.1 and the plaintiff No.1 are also absolutely false. Further statement that same was reduced into writing and memorandum was drawn on 18.11.2001 and it has been signed by the defendant No.1 is also absolutely false. The Defendant No.1 has not signed any memorandum regarding partition.
50. The question of allotting assets of the M.Misrimal & Co., morefully described in "J" Schedule are to be allotted to the share of the defendant -1, does not arise at all, as it absolutely belong to him. The business of M.Misrimal & Co., is the result of 30 years of hard work of the Defendant No.1 and the Defendant No.1 is the proprietor of the said firm as on today and none of the plaintiffs have any right, title or interest over the same. No doubt, the plaintiff No.2 was a partner of the said firm in the past but after dissolution of said partnership firm and after payment of amount standing to her name in the 51 O.S.No.9138/2006 books of accounts of the said firm in full and final settlement of all her claims and demands, she too has no right, title or interest over the same.
51. Schedule-A to be divided among the 1st plaintiff and the 1st defendant also does not arise at all, as in the Will executed by the father, the said plot has been bequeathed to Rajmal and Manikchand in equal share and as such partition of said plot between the plaintiff No.1 and the defendant No.1 does not arise at all. Under the very same Will the father has bequeathed the residential house at Khinwar village to the Plaintiff No.1 and the Plaintiff No.I is in enjoyment of the same and for that reason only the said property does not appear in any of the schedule mentioned in the plaint. The property described as 'I' schedule is flat No.203 and the said property is neither ancestral property not property of joint family which can be subject to partition and as such question of allotting the same to Plaintiff No.1 does not arise at all.
52
O.S.No.9138/2006
52. M/s. M.Misrimal and Co., is a trade name. Further, firm of M.Misrimal and Co., was originally a partnership firm and same has been dissolved in the year 2001, vide dissolution deed dated 02-02-2001 and as on today it is not in existence. The defendants submit that M.Misrimal is father of the plaintiff No.1 and the defendant No.1 Sri.M.Misrimal was carrying on business at Mudigere in the name and style M.Misrimal and Co. Sri. M.Misrimal was carrying on business in Pawn Broking and Spices at Mudigere. Sri.M.Misrimal had 3 sons viz., Sri. Rajmal, Sri. Manikchand and Sri.Babulal and two daughters by name Smt. Umrao Bai and Smt. Pushpa Bai. Smt. Badam Bai is mother of the plaintiff No.1 and the defendant No.1 and wife of Sri.M.Misrimal. Sri. Misrimal executed his last Will on 02-10-1979. As per the said Will he owned immovable properties at Khiwara Village, Rajasthan, house property at Mudigere and agricultural lands. Further, he also owned movable properties viz., deposits in bank shares, post office bonds, Gold etc. Under the said Will dated 02.10.1979, he has bequeathed a sum of Rs.20,000/- each 53 O.S.No.9138/2006 to his 3 grandsons viz., Mahaveer Kumar, Manoj Kumar and Sanjay Kumar. Under the said Will dated 02-10-1979 he has also bequeathed a sum of Rs.35,000/- to his grandson by name Kamalesh Kumar.
53. He also bequeathed a sum of Rs.5,000/- each to two granddaughters by name Aruna Kumari and Seema. He also bequeathed a sum of Rs.15,000/- to a granddaughter by name Babitha. He bequeathed the house property which was also being used for carrying on business, to his 3 daughter-in-laws viz., Smt. Gopi Bai, Smt. Susheela and Smt. Nirmala. He bequeathed house property at Khinwar village to Sri.Babulal and a residential plot at Khinwar village to Sri.Rajmal and Manikchand. Under the said Will all the residue properties have been bequeathed to first son Sri.Rajmal and he was directed to discharge and pay all liabilities including Estate duty and Income Tax. Under the said Will all his HUF properties was bequeathed to his 4 grandchildren viz., Mahaveer Kumar, Mano Kumar, Kamalesh Kumar and Sanjay Kumar. Further, in the said Will he has affirmed that his HUF comprises of 54 O.S.No.9138/2006 himself and Babulal and he is the Kartha of the said HUF, as his other two sons have released themselves from the HUF earlier. He died on 11.06.1980.
54. After his death, estate duty return was filed and estate duty was paid. The total estate as per the said estate duty return was worth Rs.1,83,100/-. As on the date of the death, he was partner in a partnership firm known and called as M/s. M.Misrimal and Co., Gandhi Bazaar, Mudigere and it had 3 partners by name M.Misrimal, M.Rajmal and M.Babulal. After death of Sri.M.Misrimal, the remaining 2 partners, viz., M.Rajmal and M.Babulal continued the said business under fresh Partnership deed dated 18.07.1980 and same is evident from the Assessment Order passed by the ITO., Chikmagalur and also by partnership Deed executed between them. The said partnership of M.Rajmal and M.Babulal came to end on 31.03.1992 and Release Deed was executed by Babulal in favour of Rajmal and Babulal relinquished all his rights in the said Partnership Firm w.e.f 55 O.S.No.9138/2006 01.04.1992. Sri.M.Babulal is carrying on business independently and separately ever since then.
55. Babulal at no point of time carried on any business with his brother Sri.Manikchand. Sri. Manikchand got separated from his father long back in the year 1974 and joined service at Bangalore to learn the business of textiles and started his own business in 1975 by taking shops on rent in Devatha Market under the name and Style of M.Misrimal and Co. Sri. Manikchand carried on business in the name and style of M.Misrimal and Co., in partnership with various persons at different point of time. Ultimately, the said partnership firm M.Misrimal and Co., was dissolved on 02.02.2001. As on the date of the dissolution Smt. Nirmala Kumari the Plaintiff No.2 herein was partner along with Sri.Manik Chand and she retired from the said partnership firm taking her share in the profit and capital. Before dissolution of the said partnership firm, Smt. Nirmala Kumari, the then partner of M/s. M.Misrimal and Co., filed an original suit in O.S.No.4338/2000, interalia praying that 56 O.S.No.9138/2006 she may be permitted to take the management of the said firm and to that effect direction was sought to be issued against other partner Sri. Manik Chand.
56. The said suit came to be compromised and compromise petition was filed and ultimately suit was dismissed for non-prosecution, as the plaintiff Smt. Nirmala Kumari or her counsel, never bothered to appear before the court for years together to affirm execution of Dissolution Deed and receipt of Rs.4,13,202.72 paid by cheque bearing No.506980 drawn on Vijaya Bank, City Market branch, Bangalore in favour of Smt.Nirmala Kumari, in full and final settlement of all her claims against Manikchand. After having lost battle in O.S.No.4338/2000, Smt. Nirmala along with her husband and son has filed this partition suit, on false and frivolous grounds, knowing fully well that question of any partition between them does not arise at all. The Defendant No.1 is not member of joint family as he had severed all his rights from the joint family during the life time of his father long back in the year 1974-75 and ever since, then he is carrying on 57 O.S.No.9138/2006 business individually and separately and residing separately earning his livelihood.
57. The properties mentioned in schedule 'A' were purchased by father and same has been bequeathed by the father in his Will. The schedule 'B' property was neither ancestral property nor joint family property. The said property has been purchased by the Defendant No.3 under sale deed dated 29-03-1995. The schedule 'C' and 'D' property absolutely belongs to the Plaintiff No.1 who has purchased the same. The schedule 'E' property was purchased jointly by Sri.Manik Chand and Sri. Babulal under sale deed dated 10.06.1994 and it belongs jointly to them. The schedule 'F' property was purchased jointly by Smt. Susheela and Smt. Nirmala under registered sale deed and it belongs jointly to them. The property mentioned in schedule 'G' was purchased by Sri.Manik Chand, the Defendant-1 herein and same belong absolutely to him. The property mentioned in schedule 'H' was purchased by Smt. Susheela the Defendant-II herein and same belong absolutely to her. 58
O.S.No.9138/2006 The property mentioned in schedule-III is located at Surat and this Court has no jurisdiction over the same. 'I' schedule property is not the property which was acquired by the father or by the joint family and as such no question of partition of said property arises.
58. The property mentioned in schedule 'J' pertains to lease hold rights of 3 shops located in the Devatha Market, Chickpet, Bangalore and stock-in-trade and Goodwill of the firm M/s. M.Misrimal and Co. M/s. Misrimal and Co., was a partnership firm and same has been dissolved in accordance with law and the Defendant No.1 is the continuing partner, to who the said business along with all rights was allotted under the Dissolution Deed. As such the plaintiffs have no manner of right, title or interest over the same. M/s. M.Misrimal's is a proprietorship concern of the Defendant No.1 and he is the absolute owner of the said proprietorship business. As such the Plaintiffs have no manner of right, title or interest over the same.
59
O.S.No.9138/2006
59. Order 2 Rule 2 is applicable to the facts of this case and Smt. Nirmala, the erstwhile partner of Manikchand, in a partnership firm of M/s.M.Misrimal and Co., has no right to institute this suit agitating the same issue, which became final on execution of Dissolution Deed and on receipt of her share by way of cheque and after encashment of said cheque. Further the Plaintiff No.1 being the husband of Nirmala Kumari, has no locus standi to question said Dissolution Deed and has no manner of right, title or interest in the Partnership business which was being carried by the Plaintiff-I and the Defendant No.1. Suit is barred by principles of Resjudicate, as the litigation pending between Smt. Nirmala and Sri.Manikchand in respect of 'J' schedule property morefully described in the plaint was subject matter of O.S.No.4338/2000 and the said suit has been compromised and compromise petition has been filed in the Court.
60. 'J' schedule property absolutely belongs to Manikchand. None of the plaintiffs have any right over the 60 O.S.No.9138/2006 same. As such they have no right to claim any right in the said property. Whatever right the plaintiff No.2 had as partner in the said firm got extinguished on execution of Dissolution Deed long back in the year 2001. Moreover, the Defendant-1 got separated from the family in the year 1975 and ever since then he is carrying on business independently and individually. Further, even to start the business the defendant No.1 had not taken aid of the joint family. The said business was started by him and the firm under which he was carrying on business has been registered under the Income Tax Act, 1961. Ever since from the date of constitution of the Partnership Firm and the Income so arising from the said partnership business has been distributed among the partners of the firm. From very same firm, the defendant-1 has paid lakhs of rupees to the Plaintiff No.2, as she was partner of the said firm and on dissolution of the firm between the Plaintiff No.2 and the Defendant No.1 in full and final settlement of all her claims, the Defendant No.1 has paid a sum of Rs.4,13,203-72/- to the plaintiff No.2 by account payee 61 O.S.No.9138/2006 cheque and same is evident from the Dissolution Deed Bank Statement and the records of O.S.No.4338/2000.
61. The Defendants are entitle for cost of one Million rupees, as they are being compelled to prosecute this false and frivolous suit, under Sec.35b of CPC and as per the law declared by the Apex Court in the case of Salem Bar Association at Para-35, 36 and 37. This court has no jurisdiction to entertain the suit as 'B' and 'H' schedule property is located beyond the jurisdiction of this Hon'ble Court. Similarly, 'C' and 'D' schedule properties are located in the State of Tamil Nadu and this court has no jurisdiction. Similarly 'I' schedule property is located at Gujarat State. The suit is bad for misjoinders of the parties, the defendants 4 to 12 are neither related to blood nor they have anything to do with the family of the Plaintiff and Defendant No.1. Wherefore, prayed to dismiss the suit with huge costs as per the law declared by the Apex Court in Salem Bar Association Case. 62
O.S.No.9138/2006
62. The case of the defendant No.3 in nutshell:
In his written statement the defendant No.3 has contended that 'B' schedule property is an agricultural land forming part of Survey No.62, 63, 64, 65, 66 and 67 of Bellahalli village and survey No.102 and 103 of Kogilu village and the total extent of the 'B' schedule property is 52 acres and 25 guntas and that the B schedule property was owned by Jyothi Anil Patel, Smt. Vidya Bai, wife of Sukhraj, defendants 5 and 6. At the outset before dealing with the averments, it is submitted that averments are too vague to be dealt with. It is true that each of them were owning 25% of the undivided interest in the said land and one of the joint owner Jyothi Anil Patel desired to sell her 25% of the share and she offered to sell the same for a sale price of Rs.6,53,000/-. The defendant No.3 denies the averment that the offer was accepted by the first plaintiff and the first defendant and 25% of interest in 'B' schedule property is purchased for the benefit of the family.
Undoubtedly, the sale deed dated 29.03.1995 is executed 63 O.S.No.9138/2006 by Jyothi Anil Patel to transfer her 25% of share in 'B' schedule property in favour of the 3rd defendant.
63. The defendant No.3 denies the averment that he is a coparcener, being the member of the family and the 25% of the 'B' schedule property is purchased for the benefit of the alleged joint family of the first plaintiff and the first defendant. The defendant No.3 does not admit that the 1st plaintiff had transferred the amount by giving the necessary cheque encashable from his account and the money so credited to his account was made available for being paid to the vendor namely Jyoti Patel and the plaintiffs are put to strict proof thereof. The defendant No.3 denies that the area of B schedule property is to be divided equally amongst first plaintiff and the first defendant namely the respective branches of the family. As regards the averments made, it is respectfully submitted that the joining of defendants 4,5,6 and 12 is bad in law as the defendant No.3 was never ever a co- parcener in the alleged joint family. The reason given as 64 O.S.No.9138/2006 to joining them is untenable and in fact respondent Nos.4, 5, 6 and 11 should not have been joined at all.
64. As a matter of fact the property as described in schedule B was purchased by defendant No.3 vide sale deed dated 29.03.1995 and it is a self acquired property of defendant No.3 which he has purchased on his own from his savings, income and by borrowing money without the aid of any alleged joint family. The B schedule property is neither ancestral property nor has the property been purchased with the aid of any alleged joint family. In fact each and every paisa of money so raised for the purchase of the B schedule property was repaid by defendant No.3. Further, sale deed dated 29.03.1995 clearly provided that the payment was made by way of two post dated cheques viz, dated 12.04.1995 and 10.05.1995. Both the cheques were issued by the defendant No.3 on the account maintained by him. The defendant No.3 submits that both the cheques were cleared on the first date when the same were presented for clearance. Again, it is a matter of record that the entire transaction was completed by way 65 O.S.No.9138/2006 of execution of sale deed even though the vendor had actually not received cheque money.
65. Actually in the negotiations for the sale of the property, which is described in the schedule B, the plaintiffs were not at all there in picture and they never participated in the discussions so held with the vendor. The plaintiffs have deliberately not joined the vendor Jyothi Patel as one of the defendant in the matter and she being one of the necessary party to the present suit, hence the suit suffers from non-joinder of necessary parties and therefore liable to be dismissed on that count. As regards the averments made in para 11 are concerned it is submitted, on the point of law, that the present transaction is also barred by the provisions as contained in Benami Transactions Act, 1988. The Section 3 of the Act, prohibits any type of benami transactions to be entered into except for the exception made in that section.
66. There has never been existence of any joint family as alleged by the plaintiffs. At any rate the property in schedule B is purchased in the year 1995 i.e., 66 O.S.No.9138/2006 much after the demise of the grand father in the year 1980, therefore there is no co-relation whatsoever between alleged joined Hindu Family and the schedule B property which is purchased in the year 1995 by the defendant No.3 without aid of alleged joint family and is entirely self acquired. The defendant No.3 submits that the very fact that the plaintiff No.1 had partnership as well as Hindu Undivided Family interests with the elder brother Mr.Rajmal and father Misrimal goes to show that the alleged Hindu Undivided family or the alleged joint family consisting of the plaintiff No.1 and defendant No.1 with that of father Misrimal never existed. Therefore, the question of seeking partition of the family properties on the ground that the same were joint properties does not arise at all. The present suit which is filed is nothing but an attempt on the part of the plaintiffs to grab the properties in the name of alleged joint family properties.
67. As per the knowledge all other male members were doing their respective work and especially the plaintiff No.1 is having his own independent business 67 O.S.No.9138/2006 called Seema Trading Company. Similarly, Mr.Rajmal as well as defendant No.1 was having their independent businesses. So, in the given scenario the concept of joint property was not in existence amongst the plaintiff No.1 and defendant No.1. The fact that the plaintiffs themselves do not whisper about the karta of alleged joint family or any account being maintained in the name of the alleged joint family goes to show that the contentions raised by the plaintiff are false and frivolous to their knowledge. It has not been the case of the plaintiffs that out of the alleged joint family business they were getting remuneration of any type or they were contributing in the business activities of the alleged joint family business and at the same time, they were having their own businesses to meet their personal expenses.
68. The plaintiff No.1 is conveniently keeping quiet about the separation of Rajmal long back and the separation goes to show that the concept of alleged joint family business was not there. The plaintiff No.1 had independent partnership deal with Mr.Rajmal. If the notion 68 O.S.No.9138/2006 of joint family business was really in existence then there was no need on the part of the plaintiff No.1 to enter into any such transaction with Mr.Rajmal or for that matter for plaintiff No.2 to have partnership firm with the defendant No.1. The property mentioned in Schedule-B was purchased in the name of the defendant No.3 only. And for that purpose whatever money was raised the same has already been repaid and nothing remains unpaid. The plaintiff No.1 is conveniently keeping quiet about the business activities which were conducted by him and he is also keeping quite about the properties purchased by him independently in his own name and that of in the name of plaintiff No.2 and 3. If the contention of the plaintiffs as to the alleged joint family business is to be accepted then the question which arises is that how come the plaintiffs purchased their properties in their names and what was the source of payments so made.
69. The plaintiffs are seeking separation of those properties which are not situated within the jurisdiction of this court, so the present suit becomes bad in law on that 69 O.S.No.9138/2006 count also. The entire suit is based on oral allegations only and hardly any documentary materials are relied upon by the plaintiffs. In a business which is running over decades the plaintiffs should have had some documentary evidence in their hands to support their contention which is raised in the suit. Absence of such documents does indicate that the present suit is nothing but a mischievous attempt on the part of the plaintiffs to become owner of the properties to which they are not entitled to. Wherefore, it is prayed this Court be pleased to dismiss the suit with exemplary costs.
70. The case of defendant Nos.4 to 12 in nutshell:
The defendant No.4 filed written statement contending that the suit is not permissible and liable to be rejected in limine as this defendant is neither necessary nor a proper party and the item No.B of the suit schedule is incapable of being added as a suit schedule as it is a property owned by 4 persons and the plaintiff cannot have any kind of claim in the property. It is also to be stated this defendant succeeded to the interest of his mother 70 O.S.No.9138/2006 who was the original purchaser in the property. Since the estate is that of the mother and in exclusive estate and becomes a part and parcel of the B-schedule property the claim of the plaintiff as against the interest of the mother of this defendant is not permissible and liable to be rejected. It is to be stated that plaintiff has no claim of any kind in respect of the investment made on the property by 4 individuals in their independent, individual capacity and the allegation that the investment made by Sri Kamalesh Kumar, defendant No.3 is that of joint family income and it is the investment of Kamalesh Kumar and therefore, the suit is not permissible.
71. This defendant submits that at any event under any set of circumstances the suit as against the defendant No.3 to 6 is not permissible as it has nothing to do with the alleged joint family estate of plaintiff. The investment made by defendant No.3 is in respect of an undivided share in the B-Schedule property and cannot be a subject matter of the present suit. This defendant submits that he is interested only in respect of B-Schedule property and he 71 O.S.No.9138/2006 has no interest in all other properties in the suit and therefore this written statement is confined only in respect of allegations in plaint in respect of B schedule property only. This defendant succeeds to the interest of Smt. Vidya Bai by being a legatee under a Will executed by Smt.Vidya Bai. This defendant adopts the written statement filed by defendant No.6 and in addition to the statement already filed by the defendant No.6 this defendant submits that he has been a legatee under a Will executed by Smt.Vidya Bai who was one of the purchasers of B-schedule property along with 3 other persons. The Will has come into force and therefore he has been a person in possession and enjoyment of the property along with the defendant Nos.3, 5 and 6. The plaintiff has no right of any kind and therefore the suit of the plaintiff is liable to be dismissed. Wherefore, this defendant prays to dismiss the suit so far as 'B' schedule property with exemplary costs.
72. The defendant No.5 in his written statement contending that the sale deed dated 29.03.1995 is 72 O.S.No.9138/2006 executed by Jyothi Anil Patel where under she transferred her 25% of share in 'B' schedule property in favour of the 3rd defendant. The 12 th defendant is the son of the 6 th defendant and he represents the interest of the 6 th defendant in 'B' schedule property. However, this defendant takes strong exception to joining him along with the defendants 4, 6 and 12 as party to the suit, as they have got nothing to do with the plaintiffs and defendants 1 and 2. As far as this defendant is concerned, the plaintiffs and defendants 1 and 2 are strangers to the 'B' schedule property who have no right, title and interest over the same. There is no cause of action for the suit. The cause of action alleged is false and frivolous. The alleged cause of action between the plaintiffs an defendants 1 to 3 cannot be joined with the alleged cause of action of plaintiffs 1 to 3 vis-a-vis defendants 1 to 3 and that of other defendants of the suit. The suit is bad for multifarious. The plaintiffs are not entitled to the relief of partition and separate possession in respect of 1/8th share in the 'B' schedule property.
73
O.S.No.9138/2006
73. The defendant No.6 in his written statement contending that these defendants and three persons by name Smt.Jyothi Anil Patil and 2 others entered in to a venture of purchasing agricultural land and maintaining it as an agricultural garden and in the course of such activity they purchased the 'B' schedule property. At one point of time Smt.Jyothi Anil Patil sold her share in favour of Sri.K.Kamalesh Kumar, third defendant herein who purchased it from out of personal, individual income. The purchaser by Sri.K.Kamalesh Kumar third defendant has nothing to do with the joint family as Sri.K.Kamalesh Kumar had an independent individual income of his own and out of his income he purchased the property under reference. In this view of the matter the suit in respect of 'B' schedule is liable to be rejected. The plaintiff in order to make a wrongful gain have made these defendants as parties to the proceedings which is not permissible. Wherefore, the defendants pray that this Hon'ble court be pleased to dismiss the suit with costs. 74
O.S.No.9138/2006
74. Defendant No.10 and 12 in their written statement have contended as follows:
These defendants are not the members of the family of the plaintiff. As such question of partition between the plaintiff and this defendant does not arise at all. More over this defendant and the plaintiff does not own any property located within the jurisdiction of this Hon'ble Court, as Co-owners, which has to be partitioned. The defendant No.10 is a resident of Chennai. The defendant No.10 has no right, title or interest in the suit schedule properties. Neither the defendant No.10 is necessary party to this suit nor any cause of action arises against this defendant. For no reason, the defendant No.10 has been made as party to this suit. Because of this frivolous suit filed against the defendant No.10, the defendant No.10 is compelled to prosecute this suit and spend his precious rime, energy and money on this frivolous suit. Wherefore, it is prayed that suit may be dismissed with costs, as per the law declared by the Apex Court in Salem Bar Association case.75
O.S.No.9138/2006
75. It is also to be pointed out that schedule 'B' to the plaint is incapable of being added to the schedule to the plaint as it has not been a joint family property of the plaintiffs and defendant No.3. To the best of the knowledge of these defendants, there is no joint family as such in between defendant No.3 and plaintiffs herein and therefore suit schedule item of schedule 'B' had to be deleted from the suit. He is managing the entire extent mentioned in schedule 'B' which cannot be a property for the purpose of present suit for partition and possession. In the light of the fact that plaintiffs have stated that this Somashekar who has been managing the property, the plaintiffs are not in possession of the property.
76. The suit is liable to be valued under Sec.37(c) of the Karnataka Court Fees and Suits Valuation Act, 1958 and therefore, the suit is not permissible. He has been in management of the entire property in 'B' schedule and not the interest of 6th defendant only. Third defendant Sri. Kamalesh Kumar has not been in management of the 76 O.S.No.9138/2006 property and therefore the suit as against defendant No.3 and 12 in this regard has to fail. Wherefore, this defendant prays that this Hon'ble Court be pleased to dismiss the suit as against this defendant.
77. Based on the above pleadings, the following issues were framed:-
ISSUES
1) Whether plaintiffs prove that suit properties are undivided family properties of plaintiffs and defendant No.1 to defendant No.3?
2) Whether the plaintiffs prove that they are entitled for relief of dissolution of firm M/s. M.Misrimal & Co.?
3) Whether the plaintiffs are entitled for a share in the suit properties?
4) Whether the plaintiffs are entitled for allotment of some of the properties exclusively to them, as pleaded by them?
5) Whether defendant No.1 and defendant No.2 prove valid execution of Will by late M.Misrimal on 2.10.1979 out of free will and sound mind?77
O.S.No.9138/2006
6) Whether defendant No.1 and defendant No.2 prove the valid execution of release deed on 31.03.1992 by plaintiff No.1?
7) Whether defendant No.1 and defendant No.2 prove that M/s.M.Misrimal & Co., was dissolved on 02.02.2001 itself?
8) Whether defendant No.1 and defendant No.2 prove that suit is not maintainable in view of the compromise decree in O.S.No.4358/2000?
9) Whether suit is barred by principles of resjudicata?
10) Whether suit is barred under Order II Rule 2 of CPC?
11)Whether defendant No.1 to defendant No.3 prove that 'B' schedule property is self acquired property of defendant No.3?
12)Whether defendant No.1 and defendant No.2 prove that 'C' and 'D' schedule properties are self acquisitions of plaintiff No.1?
13) Whether defendant No.1 and defendant No.2 prove that 'F' & 'H' schedule properties are self acquisitions of plaintiff No.2 and defendant No.2?
14)Whether defendant No.1 and defendant No.2 prove that 'G' schedule property is self acquisition of defendant No.1?
78
O.S.No.9138/2006
15)Whether defendant No.4 proves valid execution of Will by Smt. Vidya Bai about 'B' schedule property out of her free will and sound mind?
16)Whether defendant No.5 proves that suit is hit by provisions of Banami Transactions Prohibition Act?
17)Whether suit is bad for mis-joinder of necessary parties?
18) Whether suit is bad for non-joinder of necessary parties?
19) What decree or order?
78. On behalf of the plaintiffs PW's.1 to 3 have been examined, got marked Ex.P.1 to Ex.P.68 and closed their side. On behalf of defendant's DW's 1 to 4 are examined and Ex.D1 to Ex.D320 were marked.
79. Heard the arguments, perused the records and written arguments filed by both the sides.
80. My finding on the above issues are as under :-
ISSUE NO.1:- In the Negative ISSUE NO.2:- In the Negative ISSUE NO.3:- Partly in the Affirmative ISSUE NO.4:- Partly in the Affirmative ISSUE NO.5:- In the Negative 79 O.S.No.9138/2006 ISSUE NO.6:- In the Affirmative ISSUE NO.7:- Partly in the Affirmative ISSUE NO.8:- In the Negative ISSUE NO.9:- In the Negative ISSUE NO.10:- In the Negative ISSUE NO.11:- In the Affirmative ISSUE NO.12:- In the Affirmative ISSUE NO.13:- In the Affirmative ISSUE NO.14:- In the Affirmative ISSUE NO.15:- In the Negative ISSUE NO.16:- In the Negative ISSUE NO.17:- In the Negative ISSUE NO.18:- In the Negative ISSUE NO.19:- As per the final order for the following:-
REASONS
81. ISSUE NOs.1, 3, 4 and 11 to 14:
These issues are taken up together for consideration to avoid repetition of facts.
Admittedly, suit is for partition and the parties are Jains by religion. Therefore, the Hindu Succession Act, 80 O.S.No.9138/2006 1956 applies to them. Here, the plaintiffs have filed suit against the defendants for the relief of partition and separate possession of their share in the suit schedule 'A' to 'I' properties with consequential reliefs dissolving the 'J' schedule firm.
82. The partition according to Mithakshara Law consists in defining the shares of the co-parceners in the Joint properties. The institution of the suit by a co- parcener for partition of the joint family property is an undoubted and unequivocal intimation of his intention to separate himself from rest of the joint family. It is the contention of the plaintiffs the immovable properties were purchased by Joint family for the benefit of the Joint family. Therefore, if the defendant disputes there exists joint family properties, the burden of proof lies upon the plaintiff to prove that there exist Joint family and properties are joint family properties. If the defendant disputes the joint family nature of some of the properties and contends that some of the properties are his separate properties, then also burden of proof lies upon the plaintiff to prove that 81 O.S.No.9138/2006 those properties are also joint family properties and an issue casting the burden on the defendant to prove that they are his self acquisitions or separate properties.
83. Undisputed facts of the case are, Sri. Misrimal and Smt.Badam Bai are the husband and wife. Sri.Rajmal, Sri. Babulal, Sri.Manikchand are three sons of Sri.Misrimal and Smt. Badam Bai. According to the plaintiffs Sri.Rajmal son of Misrimal was separated from the joint family way back in the year 1992 by taking his share. This fact is not in dispute but, it is the contention of defendant No.1 to 3 that plaintiff No.1 also separated. Babulal s/o Misrimal who is the plaintiff No.1 herein as well as Manikchand who is the defendant No.1 herein are the remaining two sons of Misrimal. Plaintiff No.2 Smt. Nirmala Kumari is the wife of plaintiff No.1. Plaintiff No.3 Praveen Kumar is the son of plaintiff No.1 and 2.
84. Likewise, defendant No.2 Smt. Susheela is the wife of defendant No.1. Defendant No.3 Sri. Kamalesh Kumar is the son of defendant No.1 and 2. 82
O.S.No.9138/2006 According to the plaintiffs, since the 'B' schedule properties totally measuring 52 acres 25 guntas was purchased by defendant No.3 to 6 in which the defendant No.3 purchased 25% i.e., measuring 13.149 acres and hence, the defendant No.4 to 6 are also made as parties to the suit. The defendants No.7 to 11 are made as parties to the suit since the plaintiffs and themselves acquired the 'C' schedule property. The defendant No.11 and 12 are made as parties to the suit contending that, they are the Managers of defendant No.4 to 6 with regard to 'B' schedule properties. However, the main dispute in the suit is between the plaintiff No.1 to 3 and defendant No.1 to 3.
85. It is admitted fact that, Sri.Misrimal is from Badavas of Khinwara village, State of Rajasthan. Sri. Misrimal died on 11.06.1980. His wife, Smt. Badam Bai died in the year 1987. It is also admitted fact that, the family was doing business and trade. Sri. Misrimal had business at Mudigere Town of Chikkamagalur District, Karnataka State. A business firm was established in Mudigere, under the name and style M/s.M.Misrimal & Co., 83 O.S.No.9138/2006 Mudigere. A firm was also established at Devatha Market, A.M.Lane, Chickpet, Bangalore under the name and Style M/s. M.Misrimal & Co., but it is the case of defendant No.1 that Bangalore firm was not established by him only.
86. According to the defendant No.1 to 3, 'A' schedule property is belonging to the plaintiff No.1 and defendant No.1 who are the sons of Late.Misrimal. It is the contention of the defendants that 'B' schedule property was purchased by the defendant No.3 and it is his absolute property. They contended that 'C' and 'D' schedule property are the absolute property of plaintiff No.1 in which the defendant No.1 to 3 have no right. They also contended that 'E' schedule property was jointly purchased by plaintiff No.1 and defendant No.1 in which they are entitled for equal share. It is further case of the defendant No.1 to 3 that 'F' schedule property was jointly purchased by the plaintiff No.2 and defendant No.2 and hence, the plaintiff No.2 and defendant No.2 are entitled for equal share. It is also the case of the defendants that 'G' schedule property was purchased by the defendant No.1 84 O.S.No.9138/2006 and the plaintiff No.1 sold the same and there is no document in respect of this schedule property. It is also the case of the defendants that 'H' schedule property was purchased by M.Misrimal in the name of defendant No.2 and hence, defendant No.2 is the owner.
87. It is the further contention of defendant that 'I' schedule property is in the name of plaintiff No.3 and the defendants have no claim over this property. 'J' schedule property in which the defendant No.1 is a tenant and hence, the property under tenancy cannot be partitioned.
88. With these rival contentions both the parties to the suit adduced their oral as well as documentary evidence. To prove the case of the plaintiffs the plaintiff No.1 has been examined as PW.1. Two witnesses are examined as PW.2 and PW.3. Exhibits P-1 to P-68 are marked.
89. PW.1 in his examination-in-Chief as well as in his further examination in chief reiterated facts stated in the pleadings. Ex.P1 is the certified copy of the sale deed dated 30.12.1981 reveal that 'H' schedule property bearing 85 O.S.No.9138/2006 site No.165 situated at Vaddarapalya village, Uttarhalli Hobli, Bengaluru South Taluk was purchased by defendant No.2 Smt. Susheela W/o of Manikchand from Mahaveer Nagara Housing Co-operative Society for a consideration amount of Rs.2,640/- According to the plaintiffs this property is the joint family property in which the plaintiffs and defendant Nos.1 to 3 have equal share. On the other hand, it is the contention of the defendant No.1 to 3 that, it is absolute property of defendant No.2 and hence, she is the owner of the 'H' schedule property in view of Section 14 of the Hindu Succession Act. Under Section 14 of the Hindu Succession Act, the property acquired by a female Hindu is her absolute property. Therefore, it is for the plaintiffs to prove that Misrimal had purchased 'H' schedule property for the joint family in the name of defendant No.2.
90. Ex.P2 to 4 are the three letters dated 22.09.1988, said to have been issued by the landlords of 'J' schedule property addressed to M/s. Misrimal & Sons, Badam Bai and M.Susheela to enhance monthly rent of 'J' schedule property. So, it is clear that 'J' schedule property 86 O.S.No.9138/2006 is not belonging to the plaintiffs and the defendants but they are tenants under their landlords.
91. Ex.P5 is the copy of the notice dated 16.01.1989 issued by a landlord of the 'J' schedule property to M.Misrimal and Sons to quit and vacate and deliver vacant possession of the premises No.11. Ex.P6 is the plan reflects the location of shop No.4, 10 and 11 mentioned in the 'J' schedule property. Ex.P7 is the Notice dated 16.01.1989 reveal that she also issued a notice to the defendant No.2 calling upon her to quit and vacate shop premises No.4 i.e., portion of the 'J' schedule property.
92. Ex.P8 is the birth certificate shows that on 01.02.1980, the plaintiff No.2 Smt.Nirmala was born at Brahmanara Beedi of Sakaleshpura of Hassan District. Ex.P9 & 10 are the rent receipts and it discloses the rent from Smt. Badam Bai and M.Misrimal. Ex.P11 is the certified copy of the power of Attorney dated 19.06.1987 executed by Manikchand S/o of Misrimal in favour of M.Babulal son of Misrimal. According to the plaintiffs, if they were not in Hindu Undivided Joint Family what was the 87 O.S.No.9138/2006 necessity for the defendant No.1 to execute the power of attorney in favour of plaintiff No.1 to authorize him to appear and represent the firm M/s. M.Misrimal & Co., a partnership firm. The counsel for the plaintiffs has contended that even on 29.06.1987 the joint family was in existence and hence, the first defendant executed a power of attorney in favour of the plaintiff No.1.
93. Ex.P12 is an endorsement issued by the Rent Controller dated 26.12.1981 with reference to the regularization of the occupation of the premises bearing No.8, Laxmi Road, 2nd cross, Shanthinagara, Bangalore. In view of the application made by Babulal, the applicants occupation of the premises in question was regularized. This order of the Rent Controller is in respect of 'F' schedule property. The copy of this order was addressed to plaintiff No.2 and defendant No.2 and there is no dispute in this regard. Ex.P16 is the certified copy of the sale deed dated 15.05.1999 discloses the 'F' schedule property was purchased by plaintiff No.2 and defendant No.2. 88
O.S.No.9138/2006
94. Ex.P13 is a reply notice dated 28.02.1989 issued by M/s. M.Misrimal & Sons and Smt. M.Susheela to the landlord requesting her to drop the decision of filing eviction petition. Ex.P-14 and Ex.D-292(same documents) are copies of a partnership deed dated 11.12.1975 shows that Sri. Manikchand, Smt. Gopi Bai Wife of Rajmal, Smt. Badami Bai Wife of Misrimal and Mr.Kantilal son of Anand Raj, totally four persons have entered into a unregistered Partnership Firm by name M.Misrimal & Co., at No.11, Devatha Market, Chickpet, Bangalore commencing from 07.12.1975. As per the Deed, business of the partners is divided as Sri.Manikchand 37%, Smt. Gopi Bai 50%, Smt. Badam Bai 15%, Sri.A.Kanthilal 30%. Ex.P15 is the unregistered original Power of Attorney dated 22.01.1994 executed by Smt. Jyothi Anil Patel in favour of Manikchand s/o. Misrimal authorising him to do the things including sign and execute the sale deed with respect of her immovable properties in Sy.No.62, 63, 64, 65, 66 and 67 of Belahalli village and Sy.No.102 and 103 of Kogilu village i.e., portion of 'B' schedule property. 89
O.S.No.9138/2006
95. Ex.P17 is a copy of sale deed dated 10.06.1994 shows that Smt. Nanjarajamma executed a sale deed in favour of M.Manikchand and M.Babulal. Under this sale deed plaintiff No.1 and defendant No.1 jointly purchased plaint 'E' schedule property for valuable sale consideration. According to the plaintiffs, schedule 'E' property is the joint family property purchased from the joint family and the plaintiffs and defendant Nos.1 to 3 are entitled for equal share. On the other hand, the contention of the defendant No.1 to 3 that schedule 'E' property was jointly purchased by the plaintiff No.1 and defendant No.1 and hence, they are only entitled for equal share.
96. Ex.P18 is the letter dated 15.09.1999 shows that M/s. Paritosh Developers (P) Ltd., wrote a letter addressed to the plaintiff No.2 informing that they received an amount of Rs.6,17,050/- from M/s. M.Misrimal & Co., with respect of a plot. Ex.P19 is the certified copy of the petition filed under Karnataka Rent Control Act, 1961 shows that, the plaintiff No.2 and the defendant No.2 jointly filed a petition on the file of Addl. Small Causes 90 O.S.No.9138/2006 Judge, B'luru against Mr. Benjamin Paul to direct him to quit, vacate and deliver the vacant possession of the portion of the first floor of premises No.8, 2 nd cross, Laxmi road, Shanthinagara, Bangalore-27 i.e., 'F' schedule property. Admittedly, this property was jointly purchased by plaintiff No.2 and defendant No.2. The plaintiff No.2 is none other than the wife of plaintiff No.1 Babulal. The defendant No.2 Smt. Susheela is none other than the wife of defendant No.1 Manikchand. However, there is no dispute that the purchase of this property by them under a registered sale deed marked at Ex.P16 referred above. It is the contention of the plaintiffs that since both the plaintiffs and defendant Nos.1 to 3 were in the joint family, the property with respect of 'F' schedule was purchased in the names of the wives of Babulal and Manikchand.
97. Ex.P20 is the certified copy of the order passed in HRC NO.10503/1991 wherein the learned Addl. Judge of SCCH.No.19 passed an order of eviction on the petition filed by the plaintiff No.2 and defendant No.2 herein against Benjamin Paul directing him to quit and vacate the 91 O.S.No.9138/2006 vacant possession of the schedule premises i.e., plaint 'F' schedule property herein. In the eviction proceedings, it was contended that the entire building was purchased for their personal use and occupation since the family of the petitioners consist of all ten members, six children of petitioners were studying in schools and colleges and there was no understanding between the petitioners and they cannot continue to live together and therefore, they have decided to live separately with their respective family members.
98. Ex.P21 to 23 are alleged Panchayat Parikath, statement of account and its translated copies. Ex.P21 is a document styled as 'Panchayat Parikat' said to have been executed between Manikchand and Babulal wherein various properties were mentioned. However, defendant No.3 is not a signatory to Ex.P21. Ex.P22, the statement of account said to have been executed by Manikchand and Babulal with respect of Misrimal & Co., Balance sheet but it does not discloses date on which it was executed. 92
O.S.No.9138/2006
99. Ex.P24 to Ex.P27 are the certified copies of order sheet, plaint, written statement, application filed under Order 23 Rule 1 of CPC reveal that, the plaintiff No.2 herein filed the above mentioned suit for direction to put the plaintiff in the management of M/s. M.Misrimal & Co. The said suit was filed 27.06.2000 on the file of the City Civil Court, Bangalore and that case was assigned to CCH.No.13. The order sheet in O.S.No.4338/2000 dated 11.12.2000 reveal that the plaintiff filed an application under Order 23 Rule 1 of CPC to permit the plaintiff to withdraw the suit reserving the liberty to file a fresh suit. The reason for filing application under Order 23 Rule 1 of CPC as per Ex.P27, "that the matter is likely to be settled and in view of certain pleas that the alleged tenancy of the shops is standing in the name of son of the defendant and this fact brought to the notice of the plaintiff after filing of the written statement and therefore, it has become necessary to file the comprehensive suit by making them as parties. To avoid complications that may arise in execution and to realize the ultimate relief, it is advised to 93 O.S.No.9138/2006 file a comprehensive suit by making all of them parties and therefore, to file a fresh suit with a liberty reserved".
100. Ex.P28 is a statement said to have been entered between Manikchand and Babulal with some understanding in respect of immovable properties. The Ex.P29 to 37 are the RTC extracts of schedule 'B' property to certain extent and measurement which reflects the name of Kamalesh Kumar S/o. Manikchand i.e., the defendant No.3 herein. Ex.P38 is tax paid receipts and Ex.P39 is a letter of allotment issued by Paritosh Developers.
101. Ex.P-40 is the copy of bank passbook pertaining to the plaintiff No.1 Babulal. He had a bank account No.4412 in Vijaya Bank, City Market Branch, Bengaluru- 560053. Based on this bank statement, the plaintiffs would contend that as per relevant entries in the passbook in Ex.P40(a) to (e) amount was credited into the bank account of the defendant No.3 from the bank account of plaintiff No.1. On 20.05.1995 a sum of Rs.25,000/- was debited from the account of plaintiff No.1 through Cheque 94 O.S.No.9138/2006 No.324011. On 16.11.2015, a sum of 175,000/- was credited into his account from current account No.1219. According to the defendants this amount was paid by Misrimal & Co., to the plaintiff No.1 as per Ex.D-239. Entry dated 16.11.1995 reveal that a sum of Rs.1,00,000/- was debited from the account of plaintiff No.1 through cheque No.324014 to M.M.Distributors as per Ex.P40. On 28.03.1996 a sum of Rs.2,50,000/- was debited from the account of plaintiff No.1 through a cheque No.324018. On 29.03.1996 sum of Rs.50,000/- was debited from the account of plaintiff No.1 and on the same day another sum of Rs.50,000/- was debited from the account of plaintiff No.1 as per the particulars given in the bank pass book marked at Ex.P40(a to e).
102. Based on the above bank pass book the plaintiffs would contend that plaintiff No.1 contributed consideration amount to purchase the 'B' schedule property. Admittedly, the 'B' schedule property was purchased on 29.03.1995 and that was registered on 06.04.1996 in the name of Sri. Kamalesh Kumar who is the 95 O.S.No.9138/2006 defendant No.3 herein. Whether certain amount flown from the bank account of the plaintiff No.1 into the defendant No.3 was to purchase the 'B' schedule property in the name of the defendant No.3 for and on behalf of the joint family has to be proved by the plaintiffs. Once, the plaintiff proves that money is flown from the bank account of the plaintiff No.1 to defendant No.3 and the 'B' schedule property was purchased for the benefit of the joint family, onus shifts to the defendant No.3 to show that the money transferred by plaintiff No.1 is not for purchase of the 'B' schedule property as joint family property but for some other transactions and he had independent income to acquire the 'B' schedule property. In the course of evidence the age of defendant No.3 was elicited as 19 years as on the date of purchase of 'B' schedule property in his name.
103. Ex.P41 is a receipt dated 13.11.1984 issued by the landlord to M/s. Misrimal & Co., Cloth merchants, Bangalore acknowledged demand draft for Rs.6000/- towards building rent for the month of May to October 1994. Ex.P42 is the receipt dated 08.11.1985. Ex.P42(a) is 96 O.S.No.9138/2006 the translated copy reveal the collection of rent for the month of November 1984 to October 1985 for 12 months. Ex.P43 is a rent receipt dated 20.09.1984 and Ex.P43(a) is the translated copy that reveal collection of rent for 6 months from November to April 1984. Therefore, it is clear till the schedule 'F' property was purchased rent was paid by the firm.
104. Ex.P44 is the registered partition deed dated 03.07.1974 between M.Misrimal on the one part and J.Premaraj, J.Sukanraj on the other part have entered into partition with respect of immovable properties in which certain properties were allotted to M.Misrimal. However, these properties are not the plaint schedule properties.
105. Ex.P45 is the birth certificate of a child born to Manikchand and Susheela i.e., defendant No.1 and 2. According to the plaintiffs it is the birth certificate of defendant No.3. It reveal that defendant No.3 was born on 03.05.1976 at CSI Redfurn Memorial Hospital, R.C.Road, Hassan District, Karnataka. Based on this birth certificate the plaintiffs would contend that age of the defendant No.3 97 O.S.No.9138/2006 as on the date of sale deed executed in the year 1995 in respect of the 'B' schedule property was 19 years.
106. The learned advocate appearing for the plaintiffs have vehemently contended that what was the source of income to the defendant No.3 to purchase the plaint 'B' schedule property is not forthcoming in the entire evidence and on the other hand, he contended that Ex.P40 the bank pass book reveal that plaintiff No.1 financially contributed certain amount to purchase the 'B' schedule property and hence, the 'B' schedule property is also joint family property. However, on such plea court cannot arrive to the conclusion and such plea must be proved.
107. Ex.P46 is the acknowledgement issued by Registrar of Firms shows that the Registrar of Firms Karnataka acknowledged the receipt of statement prescribed by Sec.58(1) of the Indian Partnership Act, 1932 and the statement has been filed in the name of a firm M.Misrimal & Co., has been entered in the register of firm No.1305/1984-85. It also reveal that M.Misrimal & Co., is situated at No.11, Devatha Market, Chikpet, Bangalore. 98
O.S.No.9138/2006 Therefore, it would reveal that a firm was existing under the name and style of M.Misrimal & Co., as on 27.08.1984.
108. Ex.P47 is Register of Firms reflects the name of Manikchand, Smt. Gopidevi, Smt.Badam Devi and Smt.Nirmala Devi at No.11, Devatha Market, Chickpet, Bangalore. This register of firms was duly signed by Registrar of Firm, Bangalore Urban District, Bangalore. Ex.P48 is copy of the sale deed with respect of 'C and D' schedule properties which stands in the name of plaintiff No.1 i.e., property situated at Arcot Town, State of Tamil Nadu. Under the Ex.P48 the plaintiff No.1 purchased the 'C and D' schedule properties from Bala Thyagarajan on 21.11.1996. According to the plaintiffs as on this day the joint family was in existence and this property was purchased by the joint family but in the name of plaintiff No.1. Again, this plea has to be proved by the plaintiffs.
109. Ex.P49 (Ex.D2) is the certified copy of the sale deed dated 05.09.1985 executed by Smt.Jamuna Devi Champalal in favour of Smt.Badam Bai and Smt.Gopi Devi. However, this property is not the subject matter of the suit 99 O.S.No.9138/2006 schedule property. Ex.P50 is a letter dated 13.07.1999 issued by Nirmala Kumari the plaintiff No.2 herein to M.Misrimal & Co., seeking complete details of the rent paid on the shop No.4, 10 and 11 for the financial year 1996- 1997, 1997-1998. Ex.P51 is the postal acknowledgement and Ex.P52 is the postal receipt and Ex.P53 is the letter dated 27.07.1999 issued by Nirmala Kumari to Manikchand(partner) M/s. M.Misrimal & Co., seeking the details of balance sheet and profit & Loss Account of office of M.Misrimal & Co., for the financial year 1990-91 to 1998- 1999. Ex.P56 is a letter dated 01.09.1999 issued by Nirmala Kumari to Manikchand, partner M/s. M.Misrimal & Co., seeking the details of payment made by the firm to M/s. Paritosh Developers (P) Ltd., Surat. Ex.P57 is the postal receipt. Ex.P58 is the letter dated 03.11.1999 issued by Nirmala Kumari to Manikchand, partner M/s. M.Misrimal & Co., seeking the details of accounts for the year 1999-2000 and Ex.P59 is the postal receipt.
110. Ex.P60 is a letter dated 09.05.2000 issued by P.M.Kankriya chartered Accountants, Chickpet, Bangalore 100 O.S.No.9138/2006 to Smt.Nirmala Kumari which reveal that with reference to the letter they enclosed a copy of the statement of purchase and sale for the year 1998-99 and closure of business letter dated 03.04.1999 and M.Manikchand informed that not to part with any information relating to M.Manikchand and his family and in view of this, may contact M.Manikchand directly for any information.
111. Ex.P61(Ex.D204 & 204(a)) is the copy of partnership deed dated 01.04.1992 between Sri.M.Manikchand and Smt.Nirmala Kumari i.e., between defendant No.1 and plaintiff No.2 under the name and style of M/s. M.Misrimal & Co. As per the recital of Ex.P61 the profit or loss of the partnership business shall be divided or borne among the partners in equal proportion. According to the plaintiffs, the 50% of profit and loss reserved in the partnership deed between the plaintiff No.2 and defendant No.1 because they were still in joint family and they were dealing in joint family business.
112. Ex.P63 is the copy of sale deed dated 12.11.1995 in respect of 'C and D' schedule properties 101 O.S.No.9138/2006 which was purchased in the name of plaintiff No.1 pertaining to the property situated at Arcot Town, Tamil Nadu. Ex.P64 is a letter dated 11.04.2015 issued by Babulal to the Bank Manager, Vijaya Bank, City Market branch requesting to issue the certified copy of the ledger extract of S.B.Account No.5475 of Sri.Kamalesh Kumar for the period of 01.01.1995 to 31.03.1997. In this letter Babulal has mentioned that he had issued cheque from his account in favour of Kamalesh Kumar and the cheque issued were encashed by Kamalesh Kumar and the account statement is necessary for being produced in O.S.No.9138/2006. Hence, he requested to issue the certified copy of the same. In turn, the Vijaya Bank issued a reply to Mr.Babulal stating that the S.B.A/c. 5475 is pertaining to the third party and hence, the bank cannot issue ledger extract of S.B.A/c of 5475 to him. Ex.P64 & 65 were produced by the plaintiffs to show that the plaintiffs have made efforts to show that amount was credited in to the account of the defendant No.3 from the plaintiff No.1. Admittedly the plaintiff No. 1 to 3 and defendant No. 1 to 3 102 O.S.No.9138/2006 are kin relatives and they were in good terms at undisputed time. They were business men and there may be chances of exchange of money transaction. Therefore, it is for the plaintiffs prove that amount transferred to defendant No. 3 is for and on behalf of the joint family to purchase the B schedule property.
113. Ex.P66 (Ex.D6) is the copy of the sale deed dated 29.03.1995 reveal that on 29.03.1995 Smt.Jyothi Anil Patel executed sale deed in favour of Kamalesh Kumar alienating the 'B' schedule property in which 25% undivided share measuring 13.149 acres out of total extent of 52 acres 25 guntas for valuable sale consideration. Therefore, it is clear that only 13.149 acres of land was purchased in the name of Kamalesh Kumar under the sale deed dated 29.03.1995 and not the entire extent mentioned in the B schedule.
114. The learned counsel for the plaintiff has relied upon the following decisions:
1)AIR 1992 AP 270 Between Purna Bai and Others v/s. Ranchhoddas and others.103
O.S.No.9138/2006 In this decision it was held that, "When members of the joint family, by their joint labour do the business and acquire the properties, the properties so acquired in the absence of an intention to a contrary effect would be the joint family properties. Thus, where the business started by the father was carried on and developed by joint efforts of the father and his sons the business would be joint family business and properties acquired out of the earnings of such business would constitute joint family properties. Absence of ancestral nucleus for starting the business is irrelevant in such cases. Nature of the joint family property does not change merely because co- parceners live separately. The joint family property managed only by some members does not seize to be joint property unless exclusion of other members is proved. Self Acquired property of member, proof, members doing family business, properties purchased in the name of the members, plea that properties were purchased by each member from his self earnings, sale deeds and witnesses to prove purchase from self earnings, however, not 104 O.S.No.9138/2006 produced by members-held, properties were joint family properties."
115. In AIR 2003 SC 1880, between Madanlan (Dead) by Lrs and others v/s. Yoga Bai (Dead) by Lrs, in this decision, the decision of the Hon'ble High Court of Andhra Pradesh reported in AIR 1992 AP 270, referred in Sl.No.1 was challenged before the Hon'ble Apex Court and the decision of the Hon'ble High Court of Andhra Pradesh reported in AIR 1992 AP 270 was confirmed by the Hon'ble Apex Court and the Apex Court held that, "The property in question raised and developed by joint efforts of father and his sons-it is joint family property amenable for partition among father and his sons. Plea by defendant that there was earlier family settlement not supported by evidence. Partnership deeds which were entered into between the different members of the family in different combinations would be no proof of separation. Family which carries number of business, carries them under different names and styles by constituting different companies or partnerships. Finding of fact recorded by 105 O.S.No.9138/2006 High Court that there was no family settlement before suit for partition was filed. Based on the evidence and cogent reasons, cannot be interfered by the Supreme Court."
116. In AIR 2002 KAR 83, between Virupakshappa Malleshappa and others v/s. Smt. Akkamahadevi and others, the Hon'ble High Court of Karnataka held that, "Nucleus provided for constitution of business in question was out of income and assets of joint family. Income earned by business or firm was utilized for expenses of joint family. Induction of son-in-law of family in business not making any change in the nature of business being carried out. For accounting or tax purposes joint family business was carried on by constituting partnership firm. Majority of members were of joint family. In the circumstances, it must be held that as a business of joint family and not as a business of partners of firm."
117. In ILR 2002 KAR 3757, b etween Smt. M.Printer and others v/s. Marcel Martins, it was held that, "Both the plaintiffs and defendants agreed to 106 O.S.No.9138/2006 contribute for the purchase of the suit premises and enjoy it as co-owners. Plaintiffs 2 to 4 and defendant paid an agreed amount of Rs.5,000/- each and plaintiff No.1 was the major contributor. The plaintiffs agreed for the sale deed in favour of defendant as he undertook to hold the property in trust for other members. If the person in whose name the property is purchased also has contributed consideration for purchase of property in his name along with others whose name is not reflected in the sale deed, it would not amount to a Benami transaction."
It was further held that, "22. Therefore, it follows that two or more persons purchase a property out of common fund, the share of each of those persons would be same as their interest in the common fund, then the rule in Section 45 of the Transfer of Property, Act would be automatically attracted. The fact that the property was purchased in the name of one of the co-owners would not make a serious dent on the above rule of good conscience. Provided, however it is established by acceptable evidence, when such purchase 107 O.S.No.9138/2006 in the name of co-owner was by consent and that be consideration for such purchase emanates from common fund. The person in whose name the property was purchased could not set up an exclusive title in himself and ward off the just and equitable claims of other sharers who have contributed for purchase and with whose consent the purchase was made in his name. All the persons who contributed fund for purchase of the said property would be co-owners and each of them would have right in the said property in proportion with the fund they have contributed for purchase of the said property."
118. In AIR 1965 MADRAS 340, between Gunna.J Krishnan and others v/s. K.Rengachari and others, it was held that, "If members of a joint family who are joint in status and carry on business and acquire the property by their joint labour and excersions without the aid of any ancestral nucleus the presumption is that the property so acquired by them would be joint family property in which the sons of the acquirers would get a right by birth, unless it is proved that the acquirers 108 O.S.No.9138/2006 intended to own the property as co-owners between themselves in which case alone it will be joint property as distinguished from joint family properties. The presumption is in favour of its being regarded as joint family properties. "
119. In AIR 1954 SC 379 between Srinivas Krishnarao Kango v/s. Narayan Devji Kango and others, it was held that, "Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that, there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of nucleus. The important thing to consider is the income which the nucleus yields a building in the occupation of the members of a family and yielding in income could not be a nucleus out of which acquisition could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income which may well from the 109 O.S.No.9138/2006 foundation of the subsequent acquisition. These are not abstract question of law, but questions of fact to be determined on the evidence in the case."
120. In AIR 1959 SC 906 between Mallappa Girimallappa Betgeri & others V/s.
R.Yellappagouda Patil and others, wherein it was held that, "where the manager of the Joint Hindu Family acquired certain properties in his own name and there was sufficient nucleus of joint family properties out of which those properties might have been acquired and part of those properties the manager had no other source of income, the presumption arises that the newly acquired properties were the properties of the joint family. Unless that presumption was rebutted, it must prevail."
121. In AIR 1994 HP 87, between Parma Nand v/s.Sudama Ram and others, it was held that, "No doubt, it is well settled by now, that there is no presumption that a Hindu Joint Family possesses joint family properties. The burden of proving that a particular 110 O.S.No.9138/2006 property is a joint family property is on the person who claims it as such. But if the possession of a nucleus of a joint family property is either admitted or proved, any property acquired by a member of the joint Hindu Family is presumed to be the joint family property."
122. In 2013 AIR SCW 3444, between V.K.Surendra v/s. V.K.Thimmaiah and others, in the above referred decision it was held that, "we have noticed that though the appellant examined himself as DW.4 he failed to produce either documentary or oral evidence to show the lands at item No.2, 3 and 5 situated at village, Kaikere are the self acquired properties of Kunnaiah. In absence of any division in the family of Kunnaiah and his sons we hold that, the family of Kunnaiah continued to be the joint family. If a co-parcener of the joint family claims that properties are his self acquired properties, the burden is on him to prove that the same are the self acquired properties. In that background, the High Court has rightly held that Kunnaiah had no right to change the character of the joint family properties by 111 O.S.No.9138/2006 transferring the same either under the Will or a gift to any party without the consent of the other co-parceners."
123. In AIR 1993 MADHYA PRADESH 5, between Mohinuddin and another v/s. President Municipal Committee, Khargon, the Hon'ble Madhypradesh High Court held that, "if the document produced or proved to be 30 years old is produced from custody which the court considers to be proper, the presumption that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting and, in the case of document executed or attested that it was duly executed and attested. Assuming that the document is more than 30 years old and comes from proper custody there would be no presumption that contents of the same are true. The portion of Ex.P1 reciting delivery of possession to plaintiffs father cannot be considered to be proved in absence of proof of delivery of piece of land to plaintiffs father."
112
O.S.No.9138/2006
124. In AIR 1982 SC 20 between Smt. Gangabai v/s. Chhabubai, in this decision it was held that, "it seems to us that when a finding as to title to immovable property is rendered by a Court of Small Causes resjudicata cannot be pleaded as a bar in subsequent regular civil suit for determination or enforcement of any right or interest in immovable property. " Based on this decision the learned advocate appearing for the plaintiff would contend that the observation made by the income tax department is not conclusive proof of partition."
125. In AIR 1968 SC 1413 between Gopal Krishnaji Kelkar v/s. Mohamed Haji Latif and others, Wherein, the Apex Court held that, "a party in possession of best evidence which would throw light on the issue in controversy withholding it - Court ought to draw an adverse inference against him notwithstanding that ounus of proof does not lie on him - party cannot rely on abstract doctrine of ounus of proof or on the fact that he was not called upon to produce it."
113
O.S.No.9138/2006
126. 2010 (4) SCC 491 between Life Insurance Corporation of India and Another v/s. Rampal Singh Bisen, in this decision it was held that, "mere filing or exhibiting of a document in court does not amount to proof of its contents. Admission of a document to court may amount to admission of its contents but not their truth. Document not having been produced and marked as required under the Evidence Act, cannot be relied upon by court. "
This decision is produced by the counsel for the plaintiff contending that the defendants except produced the documents pertaining to the Income Tax Department not proved the contents of document as per the provisions of Indian Evidence Act.
127. 2003 SC 4319 between Rajgopal (dead) by L.Rs v/s. Kishan Gopal and another, in this decision it was held that, "in the absence of any pleadings whatsoever on the question as to whether Govardhan Das was given in adaption by his father Mothilal or brother Kisan Lal, there was no lis between the parties on this 114 O.S.No.9138/2006 question as such courts could not have gone into the same, even if some evidence was adduced."
This decision is relied to canvas the arguments that in the evidence the defendant No.3 had borrowed money to purchase the property but there is no such pleadings in his written statement.
128. AIR 2005 KAR 393, between Hanumath Bheemappa Sanadi and others v/s. Rudrappa Thammanna Sanadi and others, in this decision it was held that, "a partition can be effected between the members of the joint family either under a partition deed or by referring the matter to panchayatdars. There can also be oral partition. No averments in the written statement as to who were panchayatdars and as to whether panchayat took place and whether there was any palupatti or joint wardi prepared at the time of alleged panchayat and oral partition. Entries made in record of rights would not prove partition by metes and bounds. Mere fact that, parties have been in separate possession and enjoyment of the properties belonging to family would 115 O.S.No.9138/2006 not by itself lead to inference of partition by metes and bounds. There is a strong presumption in favour of jointness of family. Regrant of land in favour of any of members of joint family would ensure the benefit of family."
This decision was relied by the plaintiffs to canvas that no partition was effected between the plaintiffs and the defendant No.1 to 3.
129. 2015 (4) SCC 601, between OM Prakash (Dead) through its Lrs v/s. Shanti Devi and others, In these decisions, how and when a presumption under Section 90 of the Indian Evidence Act with respect of 30 year old document can be drawn and when it cannot be drawn is dealt with.
130. ILR 2006 1080, between Sanjay K Shetty V/s. B.Narayana Shetty, in this decision it was held that, "non examination of the Handwriting expert and non consideration of the objections filed by the defendant to the expert opinion and finding recorded by 116 O.S.No.9138/2006 the trial court on the legal issues against the defendant are unsustainable and same are erroneous is law."
This decision is relied by the plaintiffs contending that handwriting expert with respect of disputed signatures was not examined by the defendants.
131. (2015) 16 SCC 46, between Shreya Vidyarthi v/s. Ashok Vidyarthi and others, in this decision wherein, it was held that, "the execution of the sale deed dated 27.09.1961 in a name of Ramavidyarthi and in the absence of any mention thereof that she was acting on behalf of the joint family has also been rightly construed by the High Court with reference to the young age of the plaintiffs (21 years), which may have inhibited any objection to the dominant position of Ramavidyarthi in the joint family, a fact also evidence from the other materials on record. Accordingly, there can be no justification to cause any interference with the conclusion reached by the High Court on the issue of existence of the joint family. "
117
O.S.No.9138/2006 This decision is relied by the plaintiffs to demonstrate that mere attestation or signature as a witness to the sale deed by the plaintiffs itself to the sale deed with respect of 'B' schedule property cannot be held that the property purchased under the sale deed is the individual property of defendant No.3.
132. Under Section 61 of the Indian Evidence Act, the contents of the document may be proved either by primary or secondary evidence. It is cardinal rule of evidence that, where written documents exist, they shall be produced as being the best evidence of their own contents. Mere marking of a document as an exhibit does not dispense with its proof.
133. Under Section 68 of the Indian Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there being an attesting witness alive and subject to the process of the court and capable of giving evidence. 118
O.S.No.9138/2006
134. To rebut the evidence of the plaintiffs, the defendants No.1 and 3 stepped into the witness box and examined themselves as Dw.1 and 2 and two witnesses are examined as DW.3 and DW.4. Ex.D1 to Ex.D311 are marked. Out of which Ex.D309, Ex.D310, Ex.D306. Ex.D307, Ex.D266 and Ex.D272(A) were discarded as per the orders dated 30.10.2021. It is the contention of the defendant No.1 that he got separated from his father long back in the year 1974 and joined service at Bangalore to learn the business of textiles and started his own business in the year 1975 by taking shops on rent in Devatha Market under the name and style of M.Misrimal & Co. with various partners at different point of time and ultimately the partnership firm was dissolved on 02.02.2001 and as on the date of dissolution of firm the plaintiff No.2 was partner with defendant No.1. The plaintiff No.2 retired from partnership firm taking her share in the profit and capital. Therefore, it is the contention of the defendant No.1 to 3 that their exists neither joint family nor joint family property. It is the contention of the defendant No.3 119 O.S.No.9138/2006 that 'B' schedule property in which to an extent of 25% share was purchased by him under the sale deed dated 29.03.1995 for a consideration amount paid by him and hence, he is the absolute owner of 13 acres and 6 ¼ guntas in the 'B' schedule property.
135. Ex.D1 is a photograph of Sukanraj Sesmalji and Kali Bai. Ex.D2 (Ex.P49) is a copy of the sale deed dated 05.09.1985 referred above. Ex.D3 is a unregistered release deed dated 04.01.1993 wherein Mr. Babulal i.e., the plaintiff No.1 executed a release deed in favour of one of his brother Mr.Rajmal son of M.Misrimal. In this unregistered release deed it is mentioned that the releasers and releasee carried the business till 31.03.1992 in partnership under the name and style of M/s. M.Misrimal & Co., Mudigere under the terms and conditions set out in the partnership deed and by mutural consent they have agreed that releaser should release and relinquish all his rights in the partnership of the business from 01.04.1992. As per the condition No.7 the releaser i.e., plaintiff No.1 declares that he has no right and interest over the 120 O.S.No.9138/2006 immovable properties such as sites and buildings situated at Mudigere which are previously being the property of Late.Sri.Misrimal. In the said Ex.D3 signature of the Releaser is marked.
136. The Release Deed or relinquishment deed is a deed in which a person gives up the property with his consent to release the right from any previous lawful rights. Admittedly, in clause No.7 of Ex.D3 there is a recital that, "the releaser declares that he has no right or interest over the immovable properties situated at Mudigere." A release deed with respect of immovable property is a document which requires compulsory registration under Sec.17 of The Indian Registration Act, 1908. Moreover, none of the attesting witnesses of Ex.D3 are examined. Therefore, the Ex.D3 cannot be considered as admissible instrument to hold that plaintiff No.1 executed a Release Deed with respect of his immovable family properties situated at Mudigere. 121
O.S.No.9138/2006
137. Ex.D4 and D5 are the photographs. According to the defendants Mr.Kevalchand DW.2, Mr.Uttam and Mr.Kapoor are visible in the photograph. However, there is no dispute in this regard. Ex.D5(a to c) are also three more photos. Ex.D6 (Ex.P67) is a unregistered dissolution deed dated 02.02.2001 between M.Manikchand (defendant No.1) and Smt. Nirmala Kumari (defendant No.2) with the understanding that, "the second party filed O.S.No.4338/2000 for mandatory injunction against the first party and whereas, it has been agreed between the parties that the partnership subsisting between them shall be dissolved by mutual consent as per the date hereof. Second party agreed to dissolve the partnership and to withdraw the original suit filed by her and to continue the harmonious relationship between the first party...". "The first party has agreed to pay the outstanding capital amount of the second party to her within 4 weeks from today in full and final settlement of all claims of the second party in respect of the business including goodwill, telephone and other assets of the partnership firm." 122
O.S.No.9138/2006
138. Ex.P46 and Ex.P47 are the acknowledgements issued by the Registrar of firms reveal that the firm by name M.Misrimal & Co, was registered before Registrar of Firms. The Registration of a firm is to have a right to proceed against the firm and the partners. There is a difference between the dissolution of partnership and dissolution of firm. Dissolution of partnership occurs when a partner ceases to be associated with the business, where as dissolution of firm is the winding up of the business. On perusal of Ex.D6, in para No.3 of page No.2 it is mentioned that it has been agreed between the parties that a partnership subsisting between them shall be dissolved by mutual consent. Para No.4 reveal that firm has closed its business activities. Para No.6 reveal that it has been agreed that first party i.e., M.Manikchand shall be at liberty to carry on the business in the same premises.
139. In case of the dissolution of partnership, the business of the firm does not come to an end but there 123 O.S.No.9138/2006 will be a new agreement between the remaining partners but in case of dissolution of the firm, the business of the firm is closed up. The nomenclature of the Ex.D6 is mentioned only as a "dissolution deed" but it was not mention as to whether it is a dissolution of partnership or dissolution of a firm.
140. In para No.22, page No.17 of the plaint it is averred that, "relatives suggested that the brothers should settle their dispute by dividing the properties amicably. The first defendant insisted that unless the two conditions are fulfilled he will not participate in the discussion, which would be held by the mediators i.e.,
a) the first plaintiff should file necessary application to withdraw O.S.No.4338/2000 and
b) the second plaintiff shall sign the deed of dissolution which was prepared by the first defendant;"
141. "For that reason the second plaintiff signed the deed of dissolution which was got prepared by the first 124 O.S.No.9138/2006 defendant on 02.02.2001 and it was signed in the night of 03.02.2001 and it was handed over to Kevalchand. According to the plaintiffs, this deed was signed on the assurance given by the first defendant to Uttamchand to effect partition after the celebration of his daughters marriage and in that circumstances, the first defendant came into the custody of deed of dissolution duly signed by the second plaintiff and in view of the same the cheque given by the first defendant was encashed. It is also averred in the plaint that on 18.11.2001 a Memorandum was reduced into writing which was signed by the first plaintiff and first defendant agreed to divide the properties but no division of property was effected." When such a specific plea is taken in the plaint, burden of lies upon the plaintiffs to prove that on the circumstances averred in the plaint the dissolution of firm was effected.
142. Ex.D7 to Ex.D30 are the income tax returns for the various assessment years filed by M/s.Misrimal & Co. Ex.D31 to Ex.D34 are the House Assessment extracts. Ex.D35 certified copy of the sale deed dated 19.05.1960 125 O.S.No.9138/2006 reveal that the partners of M/s. Misrimal & Co., at Mudigere i.e., M.Misrimal, M.Premraj and Sukandraj have alienated an immovable property. However, it is not any one of the suit schedule property. It is the contention of the plaintiffs that this property was the joint family property of M.Misrimal. Ex.D36 is the notarized copy of the sale deed dated 03.07.1974 shows that J.Nemichand had purchased an immovable property from M.Misrimal, C.Joharlal and J.Premraj as well as J.Sukandraj. Ex.D37 is a letter dated 26.07.1978 issued by M.Misrimal to the Income Tax Department, Chikkamagalur stating that M.Rajamal and M.Manikchand have themselves released from Hindi Undivided family but the date of release is kept blank.
143. In Page No.16 of the cross-examination of DW.1, he has stated that he cannot say the assessment year of Ex.D37 since certain documents are yet to be marked.
144. Ex.D38 is the undated letter said to have been issued by Misrimal stating that he paid a sum of Rs.25,000/- to defendant No.1 as his share. Whether this document is proved or not and whether this document is a 126 O.S.No.9138/2006 piece of proof of division of the joint family has to be established by the defendants No.1 to 3.
145. Ex.D39 to Ex.D202 are the assessment orders issued by the Wealth Tax Officer from the year 1992 regarding payment of advance tax, wealth tax, demand notice, order of Appellate Assistant Commissioner, challan disclosing the payment of tax, intimation of the income tax department under Sec.143(1) of the Income Tax Act etc., These documents goes to show that there was a family business as Hindu Undivided family and Sri.M.Misrimal & Co., was the assessee. Ex.D203 is a receipt for the year 1998-1999 and Ex.D203(a & b) are the two receipts dated 10.03.1999. Ex.D203(a) shows that on 10.03.1999 a sum of Rs.9,450/- was paid as maintenance charge of flat No.303 from M.Misrimal & Co., Ex.D203(b) shows that on the same day Praveen.D.Jain paid Rs.9450/- as maintenance charges of flat No.203.
146. Ex.D204 and 204(a) is the copy of partnership deed dated 01.04.1992 between Sri.M.Manikchand and 127 O.S.No.9138/2006 Smt.Nirmala Kumari i.e., between defendant No.1 and plaintiff No.2 under the name and style of M/s. M.Misrimal & Co. As per its recital, the profit or loss of the partnership business shall be divided or borne among the partners in equal proportion. According to the plaintiffs 50% of profit and loss reserved in the partnership deed between the plaintiff No.2 and defendant No.1 because they were still in joint family and they were dealing in joint family properties.
147. Ex.D205 is the original unregistered dissolution deed dated 02.02.2001 which is already discussed above as Ex.D6 and Ex.P67. Ex.D206 & Ex.D207 are the letters dated 01.09.1999 by Nirmala Kumari the plaintiff No.2 as partner of M.Misrimal & Co., to Manikchand asking for the details of the accounts. Ex.D208 is the challan of payment of income tax by the defendant No.1 for the year 1978. Ex.D209 to Ex.D212 are the debenture certificates of Reliance Petroleum Ltd., reflects that Babulal son of M.Misrimal is the holder of the certificate as on 30.07.1998. Ex.D213 is the receipt for having received the 128 O.S.No.9138/2006 debenture certificate. Ex.D214 to Ex.D218 are the share transfer certificates by Babulal, Chetan, Bhavana, Tulasi and Bharati. Ex.D-219 is the certified copy of sale deed dated 29.10.1997 wherein an immovable property situated at D.K.Lane was purchased by Babulal and his wife Nirmala Kumari from Ghisulal Jain.
148. Ex.D-220 is the certified copy of the sale deed dated 03.05.1997 shows that Babulal and his wife Nirmala Kumari purchased a property situated at D.K.Lane from Pannalalji. Ex.D221 is a postal card/letter said to have been written by Rajmal to H.C.Khincha and Co., regarding complaint of Babulal on 20.01.1991. Ex.D222 is the certified copy of the sale deed dated 28.01.1983 with respect of property situated at Pali.
149. Ex.D223 is the police acknowledgement for having lodged a police complaint by Manikchand with respect of missing of a registered document of flat No.121, Anandanagar, Maandiya Road, Pali, Rajasthan. Ex.D224 is the copy of the complaint that reveal Mr.Manikchand lodged a police complaint before the Sub-Inspector of 129 O.S.No.9138/2006 Police, Chickpet Police Station, Bangalore with regard to missing of document. Ex.D225 is a Registration fee receipt issued by the Sub-Registrar at Pali. Ex.D226 is the copy of the sale deed dated 28.01.1973 that was marked with objection that shows a property owned by Babulal and others. 150. Ex.D227 is the acknowledgement reveal that Manikchand lodged a police complaint against Babulal on 09.03.2011 and Ex.D228 is the police complaint dated 09.03.2011 wherein Manikchand complained blackmail from Babulal stating that Babulal is holding some blank papers containing the signature of Manikchand. However, the evidence on record does not reveal such investigation and final report by the police on the said complaint. Ex.D.229 is the bank account of M.Misrimal & Co., Devatha Market, Bangalore that was from 01.01.2002 to 22.01.2007. Ex.D230 is the bank statement from 02.03.2001 to 02.04.2001 with respect of Vijaya Bank, City Market Branch which discloses certain transactions of M/s. Misrimal & Co., Nirmala Kumari and Babulal. According to the defendant No.1 to 3 this is full and final settlement 130 O.S.No.9138/2006 between the firm Misrimal & Co., and Nirmala Kumari as well as Babulal as per Ex.D205 Dissolution Deed dated 02.02.2001.
151. Ex.D231 is the xerox copy of income and expenditure account which reflects the name of M.Manikchand and plaintiff No.1. However, this document is not proved by producing the original or by examining the officer of the income tax department. Ex.D232 to EX.D238 are counter files. According to the defendant No.1 to 3 these counter files are with respect of closure of Vijaya Bank Account standing in the name of M.Misrimal & Co. Ex.D239 is the statement dated 28.12.2000 to 28.03.2001 reveal that as on 28.03.2001 closing balance was Rs.11,530/-.
152. Ex.D-240 is another unregistered partnership deed dated 17.12.1981 reveal that, Sri. Manikchand, Smt. Gopidevi, Smt. Badam Bai and Smt. Nirmala Devi entered into a partnership deed in which they reconstituted the firm stating that earlier partner A.Kanthilal was retired on 27.10.1981 and admitted the plaintiff No.2 Nirmala Devi as 131 O.S.No.9138/2006 one of the partner to M.Misrimal & Co., in which the busines of Smt. Nirmala Devi was divided as 25%.
153. Ex.D-241 another unregistered partnership deed dated 10.11.1987 shows that, the defendant No.1 M.Manikchand, R.Mahaveer Kumar, Smt. Gopidevi, the plaintiff No.2 Smt. Nirmala Devi entered into a deed stating that Smt. Badam Bai expressed her desire to retire from the partnership due to old age and all the other partners have agreed for her retirement effective from 22.10.1987 and all the remaining partners agreed to admit Sri.R.Mahaveer Kumar as one of the partner effective from 23.10.1987 and his business share was fixed at 35%.
154. Ex.D243 and Ex.D244 are the letters issued to Manikchand. Ex.245 is the certified copy of the order sheet in O.S.181/2016 and Ex.D246 is the copy of the memo dated 16.02.2017 filed in O.S.No.181/2016. Ex.D247 is the copy of the plaint. Ex.D248 to Ex.D251 are the vakalathnama. Ex.D252 is the copy of interlocutory application filed in O.S.No.181/2016. Ex.D253 is the copy 132 O.S.No.9138/2006 of objections. Ex.D254 is the copy of order sheet in SC.No.2803/2011. Ex.D255 is the copy of the application dated 02.12.2011. Ex.D256 and Ex.D257 are 2 more copies of the application based on Ex.D245 to Ex.D257, the defendant No.1 to 3 would contend that Sri.P.D.Surana nexus with Babulal. However, it is not forthcoming as to how this documents are relevant to the facts in dispute.
155. Ex.D-258 is another unregistered Partnership Deed dated 06.02.1964 between Misrimal, Prem Raj, Sukan Raj wherein they agreed to change their profit sharing ratio from 17.11.1963 wherein profit of Misrimal shown as 50%, Premraj 30% and Sukanraj 20%. Ex.D-259 is at another Unregistered Dissolution Deed dated 26.10.1973 between M.Misrimal, Premraj and Sukanraj wherein they dissolved the partnership on 26.10.1973 distributing the assets among the partners. Ex.D-260 is a copy of the unregistered partnership dated 07.11.1973 between M.Misrimal, M.Rajmal and M.Manikchand that is between father and his two sons with sharing ratio of M.Misrimal 133 O.S.No.9138/2006 10%, M.Rajmal 30%, M.Manikchand 30% and M.Babulal(minor) 30%.
156. Ex.D-261 is a unregistered dissolution deed dated 27.11.1980 between J.Nemichand, S.Prasmal, Smt.Kalibai and Smt.Savita Bai wherein they dissolved the partnership on 07.11.1980 giving all the assets and liabilities to J.Nemichand with respect of firm "Nemichand Chhothmal". Ex.D-262 is the copy of the partnership deed dated 18.07.1980 between M.Rajmal and M.Babulal (plaintiff No.1) wherein, they agreed to continue the business in partnership on the terms and conditions mutually agreed with respect of the firm by name "M.Misrimal & Co."
157. Ex.D263 is the original partnership deed and its copy is already marked as Ex.D260 as discussed above. Ex.D264 shows that on 17.12.1981 i.e., on the same day Ex.D240 executed, reveal that Sri.A.Kanthilal son of Anandaraj executed a unregistered release deed in favour of Manikchand S/o. Misrimal, Smt. Gopi Bai wife of 134 O.S.No.9138/2006 M.Rajmal and Smt. Badambai W/o. Misrimal wherein A.Kanthilal S/o. Anandaraj retired from the partnership of M.Misrimal & Co effective from 27.10.1981. Ex.D265 is another unregistered release deed dated 31.03.1992 wherein R.Mahaveer Kumar retired from the partnership of M/s. M.Misrimal & Co., effective from 01.04.1992.
158. Ex.D266 and Ex.D272(A) are the Form No.15(A) said to have been filed by M.Misrimal and sons before the Income Tax Authorities to disclose the income of Babulal. However, both Ex.D266 and Ex.D272(A) are discarded as per the observations of the Hon'ble High Court in W.P.No.16731/2021 and followed by the orders dated 30.10.2021 passed by this court. Ex.D267 is the certificate by a chartered accountant with respect of the balance sheet of M/s. M.Misrimal & Co., as on 22.10.1987. Ex.D267(a & b) are the portion of the chartered Accountant certificate. Ex.D268 the report of chartered accountant dated 23.10.1992 wherein he had examined the balance sheet of M/s. M.Misrimal & Co., as on 31.03.1992. Ex.D269 is profit and loss account of M.Misrimal & Co., for 135 O.S.No.9138/2006 the assessment year 1990-91. Ex.D270 is the statement of particulars in Form No.3CD pertaining to a person carrying on business.
159. Ex.D271 is the profit and loss account for the assessment year 1999-2000. Ex.D273 is also a Form No.3CD filed by a person carrying on business duly signed by chartered accountant. Ex.D274 is profit and loss account for the assessment year 1989-90. Ex.D275 to Ex.D285 are the statement for the assessment year 1987, 1994, 1995, 1996 and 1997. Ex.D286 to Ex.D291 are the share certificates in the name of Nirmala Kumari that discloses allotment of 100 share certificates and refund of remaining amount.
160. Ex.D293 and Ex.D294 are two postal envelopes and Ex.D293(a) and Ex.D294(a) are the intimation regarding transfer of equity shares with respect of unclaimed dividend and income tax computation of Smt.Nirmala Kumari. Ex.D.295 is copy of a memo filed by the petitioners i.e., Babulal and another in W.P.No.4720/18 136 O.S.No.9138/2006 and 4721/2018 wherein opinion of the handwriting expert was submitted. This memo is accompanied by a xerox copy of expert opinion said to have been examined by a handwriting expert. However, this document is purely a xerox document and no evidentiary value can be attached and it cannot look into as a document. Ex.D296 is the bank challan of Vijaya Bank, City Market Branch, Bangalore.
161. Ex.D297 is a copy of the acknowledgement issued by the Ulsoor Gate Police for having received a complaint from Sri.Kamalesh Kumar.M. S/o of Manikchand wherein it was alleged that a person by name Srinath, Advocate who is the colleague of Sri.P.D.Surana, advocate has threatened him. Ex.D298 is a transcript along with the pendrive as electronic evidence and Ex.D298(a) is the certificate U/Sec.65B of the Indian Evidence Act, to comply the production of the electronic evidence which is reduced into a transcript in Kannada language which reveal the conversation between Sri.Kamalesh Kumar who is defendant No.3 herein and Sri. Srinath Advocate, wherein 137 O.S.No.9138/2006 the said advocate requested the defendant No.3 to forgive him and withdraw the complaint lodged against him. However, this is not a forum to adjudicate the dispute between Adv.Srinath and Sri.Kamalesh Kumar and it is also not relevant to adjudicate the dispute between the plaintiffs and defendants.
162. Ex.D299 is the certified copy of the order sheet in RFA 1432/2003 shows that Mr.Kevalchand filed an appeal against the Manager, Kerala Roadways Ltd., wherein Sri.P.D.Surana was the advocate for the appellant. Ex.D300 is the copy of the application filed before the Karnataka Appellate Tribunal, Bangalore in Appeal No.264/2007 by Sri.Udayraj and another. Ex.D301 is the complaint by Sri.Kamalesh Kumar lodged before Station House Officer, Pali Police Station.
163. Ex.D302 is a notice in writing dated 09.09.1999 issued by an advocate on the instructions of Babulal to Manikchand and Kamalesh Kumar i.e., by plaintiff No.1 to defendant No.1 and 3 calling upon them to effect partition 138 O.S.No.9138/2006 of plaint 'B' schedule property. Ex.D303 is the certified copy of the plaint in O.S.No.2793/2005 shows that Mr.Vinod.M and another filed a suit against A.Srinivas for the relief of ejectment wherein Sri.P.D.Surana is an advocate for the plaintiff.
164. Ex.D304 is an unregistered release deed wherein M.Rajmal said to have been executed a release deed in favour of M.Misrimal, M.Manikchand and Babulal on 13.08.1977. The Hon'ble High Court of Karnataka in W.P.No.16731/2021 vide order dated 23.09.2021 in page No.9, para No.8 observed that, 'if the respondents have given up the reliance on the Will, the codicil and release deed, it will also follow that they cannot place reliance on Ex.D266 and Ex.D272(A) as these are only brought on record as exhibits to establish the Will and Codicil. As regards the efficacy of the release deed Ex.D304, it must be additionally observed to allay all anxieties and as permissible in law, these would be tenuous piece of evidence because of the respondents 139 O.S.No.9138/2006 present concession and because of the petitioners are not parties to the document.'
165. Clause NO.3 of the unregistered release deed reveal that the releaser has no right whatsoever in the property left behind the Hindu Undivided Family nor he is liable for the liabilities. Admittedly, this document is unregistered document and its nomenclature and the contents show that the release of rights in the immovable properties of the Hindu Undivided Family. When such being the facts, the release deed requires compulsory registration under Sec.17 of the Indian Registration Act. This document is admittedly a unregistered document. Therefore, though this document is admitted in evidence, it cannot be looked into for any purpose.
166. Ex.D305 which is the unregistered release deed dated 17.12.1981 in which A.Kanthilal released his right and which is also unregistered document that cannot be looked into as documentary evidence. Ex.D306 is a true copy of the Will and Ex.D307 is the codicil dated 140 O.S.No.9138/2006 08.01.1993 said to have been executed by Sri.Misrimal dividing his properties between his family members. These documents were also challenged by the plaintiffs and in W.P.No.16731/2021 the defendants have filed a memo before the Hon'ble High Court of Karnataka that they will no seek to prove the Ex.D.306 and Ex.D307. Accordingly, both Ex.D306 and D307 were discarded. Hence, the defence put forwarded by the defendant No.1 to 3 that M.Misrimal had executed a Will and a Codicil bequeathing the joint family properties fails and not proved as per Section 68 of the Indian Evidence Act.
167. Ex.D308 is a true copy of unregistered consent deed dated 08.01.1993 said to have been executed by Smt.Susheela Kumari i.e., defendant No.2 and Smt. Nirmala Kumari the plaintiff No.2 in favour of Gopidevi wife of Rajmal. This document is also a xerox document certified as true copy by the Karnataka Bank Ltd., when this document said to have been produced to obtain a bank loan. This document is also a unregistered document 141 O.S.No.9138/2006 which cannot be looked into and its contents are not proved in accordance with law.
168. Ex.D309 and Ex.D310 are list of sundry creditors and profit and loss accounts statements and both Ex.D309 and Ex.D310 are discarded as per the orders dated 30.10.2021. Ex.D311 is the Memorandum of deposit of title deeds with Karnataka Bank Ltd., that shows deposit of documents such as sale deeds, mortgage deeds, Will etc. However, the Will and Codicil itself is discarded from the evidence and hence, question of appreciation of the evidence on Will and Codicil does not arise.
169. Ex.D312 and Ex.D313 are equity demand of M.Misrimal of Vijaya Bank and Equity Demand dividend of Smt.Badam Bai. Ex.D314 is the certificate of deduction of income tax of Badam Bai, Misrimal dated 20.04.1983. Ex.D315 is the certificate of deduction of tax from interest of M/s.M.Misrimal & Co., dated 30.07.1980. Ex.D316 is the acknowledgement for having filed tax assessment for the year 1978-79. Ex.D317 is the letter by Vadami Bai 142 O.S.No.9138/2006 Misrimal to the Income Tax Department, Chikkamagalur with respect of confirmation of a loan given by her to an extent of Rs.15,000/- to M/s. Devichand Deepchand, Mudigere on 10.10.1973. Ex.P318 is a letter by the Government of India to Vijayalakshmi Industries stating that Sukanraj is not dependent only on M.Misrimal & Co., Ex.D319 is a letter issued by Asst. Commissioner, Income Tax Department, M.G.Road, Bangalore dated 30.04.1981 with respect of no acquisition proceedings under chapter XXA of the IT Act, 1961 have been initiated with respect of the above property. Ex.D320 is an expert opinion of handwriting issued by Forensic Lab called as 'Clue 4 Evidence' said to have examined the signature of Babulal i.e., income tax filing document and another document. Ex.D321 is another report of the expert said to have been compared the signature with a letter to the Addl. Income Tax Officer and the Dissolution Deed. Except producing these reports of an expert its contents are not proved as per law. Moreover, most of the documents relied by the defendant Nos.1 to 3 are pertaining to the Income Tax 143 O.S.No.9138/2006 Department. However, the disputed documents at Ex.D309, Ex.D310, Ex.D306, Ex.D307 followed by Ex.D266 and Ex.D272(A) were already discarded. Further, the Ex.D304 unregistered release deed dated 30.08.1977 is also not proved as per law.
170. Learned advocates appearing for the defendant Nos.1 to 3 have relied upon the following decisions:
SCC (1994) 1 - S.P.Chengalvaraya Naidu v. Jagannath and Ors, in this decision, it was held that, "Decree obtained by non-disclosure of the release deed amounted to fraud on court and hence, decree liable to be set aside. "
171. In (2010) 14 SCC 38 - Ramjas Foundation and Anr. v. Union of India and Ors , it was held that, "a person who does not come to court with clean hands is not entitled to be heard on merits of his grievance and he is not entitled to any relief. "
172. In AIR 2013 SCC 523- Bhaskar Laxman Jadhav & Others vs. Karamveer Kakasaheb 144 O.S.No.9138/2006 Wagh Education Society & Others, it was held that, "It is not for a litigant to decide what fact is material for adjudicating the case and what is not material. It is the obligation of the litigant for disclose all the facts of the case and leave the decision making to the court."
173. In the decision (2003) 8 SCC 319 -
Ramchandra Singh v. Savitri Devi and Ors, it was held that, the scope of Order 23 Rule 1 consent order and scope of a third party right was dealt with and it was held that, a third party right cannot be set at naught by a consent order.
174. In (2010) 2 SCC 114 - Dilip Singh v/s. State of Uttar Pradesh and Ors, wherein, the Hon'ble Apex Court in Para No.2 it was observed that, in the last 40 years a new creed of litigants has cropped up. Those who belonging to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their 145 O.S.No.9138/2006 goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time evolve new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with dated hands, is not entitled to any relief, interim or final.
The above decisions relied by the defendants to canvas the suppression of material facts, fraud and falsehood.
175. In (2009) 5 SCC 713 - Vimal Chand Ghevarchan Jain v. Ramakant Eknath Jadoo, in Para No. 34 of the above decisions, it was held that, "the right of possession over a property is a facet of title. As soon as a deed of sale is registered, the title passes to the vendee. The vendor, in terms of the stipulations made in the deed of sale, is bound to deliver possession of the property, if he does not do 146 O.S.No.9138/2006 so, he makes himself liable for damages. The indemnity clause should have been construed keeping in view that legal principle in mind."
It was further held that, "A registered deed of sale carries presumption that the transaction was genuine. If execution of sale deed is proved, ounus is on the defendant to prove that deed was not executed and it was sham document."
176. In (2006) 5 SCC 353 - Prem Singh and Ors. v. Birbal and Ors, in para No.27 of this decision, it was held that, "according to the law laid down by this court in Ramegowda V/s.
M.Varadappa Naidu (2004) 1 SCC 769, it is settled legal position that possessory suit is proved against the whole world except the rightful owner. It is not maintainable against the true owner."
177. In (2012) 5 SCC 370 - Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira, 147 O.S.No.9138/2006 in para No.52 of this decision it was held that, "truth is the foundation of justice. It must be endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents, inorder to ascertain the truth."
Apart from the above documentary evidence and legal positions, the parties to the suit heavily relied upon the oral evidence also.
178. Coming to the oral evidence of the parties to the suit is concerned, PW.1 in his cross-examination stated that, 'It is not true that my father got his brothers from their native place to Mudigere around 1964. Witness volunteers that, 'My father brought his brothers to Mudigere earlier to 1964. I do not know that my father and his brothers formed a firm by name M.Misrimal & Co., Mudigere in the year 1964 but they were doing business together before 1964.' 148 O.S.No.9138/2006
179. In page No.33 of his cross-examination, he has stated that, 'My father was doing business with Premraj and Sukan raj in Mudigere.'
180. In page No.35 of the cross-examination of DW.1, he has deposed that, ' It is true that all kinds of business of the family were run under the name of Misrimal and Co., at Mudigere. I do not know when this Misrimal and Co., was established. I did not make any attempt to find out also as to when this Misrimal and Co was established. It is true that my father migrated to Mudigere from Khiwara village. I do not know that after migrating to Mudigere, 1 to 2 years, my father brought his brothers Sukanraj and Premraj to Mudigere. I do not know that for qujn ite number of years, his father and his brothers were doing business jointly. I do not know if the family expenditure was run from the business income of Misrimal and Co., Bengaluru. I was never an associate in the business of Misrimal and Co., Bengaluru.'
181. Ex.D258 reveal the partnership firm between Misrimal, Premraj and Sukanraj by name and Style 149 O.S.No.9138/2006 M.Misrimal & Co., as on 06.02.1964. Ex.D259 is the partnership deed shows that as per clause No.10 remaining partners retired from the partnership firm and M.Misrimal alone continued as the sole owner of the firm effective from 26.10.1973. Ex.D260 shows that it was executed between Misrimal, Rajmal and Manikchand and they continued the business of M.Misrimal and Co., at Mudigere. So it appears that, the business concern of M.Misrimal & Co., is a business concern of family belonging to M.Misrimal & sons. Admittedly, M.Misrimal died on 11.06.1980 as admitted in the cross-examination of DW.1. After his demise another partnership deed dated 18.07.1980 was entered under Ex.D262.
182. PW.1 in his cross-examination dated 13.07.2015 at page No.26 has stated that, "M/s.Misrimal & Company, Mudigere is a partnership firm consisting of himself, his father and Rajmal. Witness further volunteers that in Bengaluru also they had a partnership firm for saving tax."
Further, he has stated that, 150 O.S.No.9138/2006 "In M/s. Misrimal & Company, Mudigere, himself and his brother Rajmal had each 50% share and income and also 50% share and income for income tax purpose. It is true that, his wife had received a sum of Rs.4,13,203.72/- on 30.03.2001 and the said amount is given to his wife by one Utthamchand."
183. PW.1 in his cross-examination dated 02.07.2015 in page No.23 has stated that, 'It is true that, I have shown in my income tax return that the property of Arcot of Tamilnadu is myself acquired property and it is shown in income tax return as myself acquired property although it is joint family property.
My wife has shown in her income tax return that 50% in property bearing no.8, 2nd cross, Laxshmi road, Shanthi nagar, Bangalore is herself acquired property and 50% of the said property belongs to defendant no.2 and PW.1 states that it is shown in income tax return as 50% of the said property belongs to his wife and 50% of the said property belongs to 2nd defendant, although it is joint family property.
He has further stated that, I have shown in my income tax return that 50% of the property No.10, Lakshmi Road, Shanthinagar, 151 O.S.No.9138/2006 Bengaluru is myself acquired property and 50% of the said property is purchased by 1 st defendant and it is shown in income tax return as 50% of the said property belongs to plaintiff (PW.1) and 50% of the said property is purchased by 1st defendant although it is joint family property.'
184. He has mentioned in his personal income tax return to the effect that he is receiving Rs.13,200/- per annum as rent, in respect of property bearing no.51 Basavanna temple street, Anchepete, RT Street, Bangalore but the said property had been sold jointly by PW.1 and his brother Manikchand in the year 1995 and the sale proceeds is mentioned in the suspense accounts of M.Misrimal & Company, Benagluru and there is no registered sale deed executed by both of them.
185. Pw.1 in his cross-examination on 10.08.2015, in page No.31 and 32 has stated that, " I have not produced any documents to show that joint family funds are used to purchase E- schedule property. PW.1 states that, income tax 152 O.S.No.9138/2006 returns filed by him, his son and wife are signed by all of them in the said returns. Ex.P.28 is written by 3 Panchayathdars. Ex.P.21 and Ex.P.28 are in Hindi language. Ex.P.21 to Ex.P.23 are signed by PW.1 in first week of April-1997. He has signed Ex.P.28 on 18.11.2001. PW.1 states that he has not issued lawyers notice to Defendant no.1 and Defendant No.3 on dated 09.09.1999. He denies that himself, Kamalesh, his wife and daughters were not the members of joint family. He has not made the children of Manikchand as parties to this suit. He states that, property no.8 of Shanthi Nagar is jointly acquired by his wife Nirmala Kumari and Defendant no.3 (F-schedule). '
186. PW.1 in his further cross examination dated 07.09.2015, has stated that, 'Myself and my wife have never had any financial transaction with Misrimal & Company. It is true that, my wife has signed in Ex.P.67 as a party and I have signed in it as a witness. We have signed in Ex.P.67 on 03.02.2001. Myself, my wife and my son have signed the returns individually. '
187. PW.1 in his further cross examination on 11-3-2016 has stated that, 153 O.S.No.9138/2006 'I received Sum of Rs.3,50,000/- from Misrimal and Company, which I have transferred the same to defendant No.3 account. The said amount was transferred to my account for purchase of B schedule property by way of adjustment of account. Defendant No.1 had transferred the said sum of Rs. 3,50,000/- to myaccount which in term I had transferred to the account of defendant No.3 for showing it to the Income Tax Department. For the purpose of purchasing B schedule property, the amount from Misrimal and Company, Bengaluru had come to my account which in turn I have transferred to the account of defendant No.3 for purchasing B schedule property. The entire amount of consideration is paid by Misrimal and Company, Bengaluru through my account. B schedule property is purchased in the name of defendant No. 3 out of the money of Misrimal and Company, Bengaluru, as defendant No.3 was member of the joint family. Myself and my wife had no other source of income except the income of Misrimal and Company, Bengaluru, till 31-3-1997. ' He has further deposed that, 154 O.S.No.9138/2006 It is true that, 'I was trading in shares on behalf of joint family including defendant No.1 and defendant No.3. lt is not true that, I was signing on the transfer forms in respect of shares purchased in name of defendant No.1 and defendant No.3.
The amount of Rs.2,50,000/-, 50,000/- and 50,000/- was transferred from my account to defendant No.3 has come from Misrimal and Company. It is not true that, B schedule property was purchased in the name of defendant No.3 as it would have been for the beneficial from the point of view of taxation. For the purpose of showing Agricultural Income, the B schedule property is purchased in the name of defendant No.3.' PW.1 further states that, 'I have been showing in my Income Tax returns about my contribution in respect of B schedule property and I will be able to tell my contribution in respect of B schedule property if papers are shown to me and on seeing papers I state that my contribution is about Rs.3,50,000/- in respect of purchase of B schedule property. It is not true that that I have shown falsely in the Income Tax return that I have contributed about Rs.3,50,000/- 155
O.S.No.9138/2006 in purchase of B schedule property and third defendant has not arranged money to purchase B schedule property. PW.1 further states that I have not threatened defendant No.1 in 2011 about misusing of blank papers signed by defendant No.1. As per market value 'B' schedule property is more valuable than other suit schedule properties.'
188. PW.2 is Mr. Kevalchand son of Late Gyanmal. He is one of the person visible in the photo marked at Ex.D4. In his evidence, he has stated that he know the first plaintiff and the first defendant as he is doing business adjoining the shop of M/s.M.Misrimal & Co., located at Devatha Market. He has stated that, the father- in-law of the 1st defendant is one Sri.Bhawarlal Bansali who approached him on day prior to the marriage of the daughter of the first defendant stating that they have to secure the signature of second plaintiff on the dissolution deed which was prepared and handed over by the first defendant to Bhawarlal Bansali. It was informed that after obtaining the signature of Nirmala Kumari on the dissolution deed, he has to retain its custody till the 156 O.S.No.9138/2006 partition of the property between the first defendant and the first plaintiff. Accordingly, the signature of Nirmala Kumari was taken on the dissolution deed. After the signature of Nirmala Kumari, Bhawarlal requested him and the first plaintiff to sign the dissolution deed as witness. Accordingly, Babulal and himself affixed the signatures as witnesses. At that point of time, the first defendant did not sign the dissolution deed. This deed was given to him to retain till the partition is affected and on the said night Uttamchand who is the relative of first plaintiff and the first defendant came to his house and requested him to handover the dissolution deed to show the same to his advocate and at these circumstances, it was handed over to Uttamchand.
189. According to the defendants, it is a concocted story of the plaintiffs. It is also the contention of the defendants that, if this is the fact why it was not brought to the notice of the court in O.S.No.4338/2000 when the suit was pending.
In his cross-examination, PW.2 has stated, 157 O.S.No.9138/2006 'It is true that families of bride and bridegroom are busy one day earlier to the marriage. I do not know, what was the urgency for getting Ex.P67 signed by plaintiff No.2 one day earlier to the marriage.'
190. PW.3 is one Mr.Dhanraj S/o. Heerachand in his evidence has stated that, he know Babulal and his elder brother Manikchand. He has stated that Ex.P21 and P22 are in his handwriting. He went to discuss and settle the dispute between Babulal and Manikchand and reduce the same into writing. He bought papers and after matter is discussed he wrote Ex.P21 as per the details of settlement entered into between Babulal and Manikchand regarding each of the properties. The contents of Ex.P21 was accepted by Babulal and Manikchand and then he took the signature of Babulal and Manikchand as Ex.P21 (a to c). The signature of Babulal are marked as Ex.P21(e to g) His signature is marked as Ex.P21(j). Ex.P22 and Ex.P23 were also marked as balance sheets including the share of Misrimal & Co., Certain signatures were marked in 158 O.S.No.9138/2006 Ex.P28 also.
191. In his cross-examination he has stated that, 'I do not know Kevalachand, I cannot identify the persons in photos of Ex.D4 and D5 except my photo.' He denied the suggestion that the signatures were taken in the blank papers.
192. On perusal of the Ex.P21 and P22, they are marked as Panchayatparikat that discloses the signature of plaintiff No.1 and defendant No.1. However, the defendants No.1 to 3 have disputed these documents.
193. DW.1 in his cross-examination in page No.36 has stated that, 'It may be that, the first plaintiff has dealt with all the business transactions of M/s.Misrimal & Co, Bangalore from 1981. It is false to suggest that, the first plaintiff was an associate of business M/s. Misrimal & Co, Bangalore from 1981 to 31.03.1997. I do not know if there are documents available in Misrimal & Co, Bangalore to show that he was its associate till 31.03.1997.' 159 O.S.No.9138/2006 In page No.39, he has deposed that, 'It is true that in this very same house at Laxmi Road, even my younger brother first plaintiff and his family were also residing with me. '
194. On 23.02.2018 DW.1 in his cross-examination has deposed that, "I do not remember if Rs.2,00,000/- was the capital investment for the commencement of Misrimal & Co., Bengaluru. It is false to suggest that, the entire Rs.2,00,000/-was from Misrimal & Co., Mudigere. Witness volunteers that, I have taken loan for the commencement of the business Misrimal & Co., Bengaluru. I do not remember how much amount was taken from Misrimal & Co., Mudigere as a loan.
Question: Your father as a taxing device, inducted all the 3 sons in Misrimal & Co., Mudigere and converted into a firm?
Ans: I left Mudigere in 1974.
I do not remember, now if all the 3 sons were inducted as partners in Misrimal & Co., Mudigere prior to 1974. I do not remember from whom how much amount was taken for commencement of Misrimal & Co., Bengaluru. 160
O.S.No.9138/2006 Witness volunteers that, there was no amount was transferred to Misrimal & Co., Bengaluru and that only loan was taken."
"In Page No.7 of Ex.D.267 pertains to the details of the loans given to Misrimal & Co., Bengaluru. There is entry at Sl. No.2 in page No.7 of Ex.D.267, Misrimal & Co., Mudigere as a creditor. In case he had taken a loan from Misrimal & Co., Mudigere, that would be shown in the accounts. At the commencement of Misrimal & Co., Bengaluru, money received from Misrimal & Co., Mudigere is shown as a loan in the firm of Misrimal & Co., Bengaluru.
It is true that there is credit entry at Sl. No.35 in the name of M Babulal( 1 st plaintiff) on page No.7 of Ex.D.267. It is also true that there is similar credit entry at Sl. No.30 in the name of M. Rajmal ( Elder brother) on page No.7 of Ex.D.267. In case at that time i.e., commencement of Misrimal & Co., Bengaluru, 1 st plaintiff and Rajmal had given the amount, the same are shown in the accounts.
Question: There are credit entries in the names of Misrimal & Co., Mudigere, M.Babulal, Rajmal at the commencement of Misrimal & Co., Bengaluru ?161
O.S.No.9138/2006 Ans: It may be."
195. DW.2 in his cross-examination in page No.14 has stated that, "It is true that to say that, my date of Birth is 03.05.1976 and Ex.P.45 is my birth certificate. Since my birth I was staying with my parents till 1999-2000 thereafter I am staying at top floor and my parents stay at ground floor i.e. no. 10 'E' schedule property. I cannot exactly when building was constructed in 'E' schedule property. I do not know whether the said building was constructed prior to 01.04.1997. I have studied up to 1 st year B.Com,. Up to my 10th standard I was brought up by my parents. I was staying with my parents till 2001 approximately according to me. My marriage expenses was borne by my parents. I got married in the year 1998.
5. He further deposed that, I have completed SSLC may be in the year 1992. I do not remember its exact year. I have to see whether I have SSLC and PUC marks card . I do not have any records of examination of 1 st 162 O.S.No.9138/2006 B.Com,. I have studied 1st B.Com. in Jain college. It is false to suggest that, I have attended entire 3 years B.Com., course. I do not remember exactly when I joined 1 st B.Com,. I do not remember exact year when I left College.
6. I am doing share Business and I am assisting my wife in her business in the name Misrimal Exclusive which is started in the year 2011. I used to conduct Cricket Tournaments and was getting income out of it. For this there are no records to show that I had attended in the Cricket camps. There are no records to till 2000 and that I was conducting Cricket Tournaments. I have to search is there any such records till filing of this suit. I was income tax assesee in the year 2006. I do not remember the exact year when I have submitted my 1st returns. I do not remember exactly whether I have submitted any returns before filing this suit. I had some income which was sufficient to meet my expenses. I was getting income from share business and Cricket Tournaments. I have to search for the records in respect of income from share business and Cricket Tournaments before filing this suit.
7. It is false to suggest that, I had no 163 O.S.No.9138/2006 income before filing this suit and I had to depend on family business of Misrimals. Witness volunteers that, Misrimal is a proprietorship and not family business. I do not know whether my wife had no knowledge of any business. I do not remember whether my wife was not income tax assesee till 2011. I do not know whether she had no own earnings prior till 2011. It is false to suggest that, she had capital to start the business of M/s Misrimals exclusive in 2011. It is false to suggest that, the necessary goods and funds were transfer from the Firm of M/s Misrimals exclusive which is looked after by my father. I do not remember the exact year from when the Income tax returns are filed M/s Misrimals exclusive.
8. I do not remember from where the funds are shown to have come to start the concern of M/s Misrimals Exclusive. It is false to suggest that, M/s Misrimals Exclusive is one of the concern of M Misrimals which is looked after by my father. I do not remember exactly what was my 1st income disclosed to Income tax department. I do not remember what was my 1st tax amount paid in the 1st year. I do not remember after 1st year till now how many 164 O.S.No.9138/2006 Income tax returns are filed by me. I do not remember what is the income disclosed by year by year till now in filing my Income tax returns. I have shown income from share business and commission from saree business. I do not remember exactly how much income I have shown on last year. My Charted accountant is one Ramesh Babu who looks after my preparation and filing of Income tax returns. I give instruction to my Charted accountant."
197. DW.2 in his further Cross-examination on 24.11.2018 has stated that, Qus : Plaintiff No.1 was also staying in F schedule property ?
Ans:- He used to come and go.
I do not know whether after the death of Mr.Misrimal Plaintiff No.1 migrated to Bengaluru from Mudigere. I do not know after migrating he is continuously staying at Bengaluru.
Qus : Even today he is residing in F schedule property ?
Ans: At present he is residing in F schedule property.
165
O.S.No.9138/2006 Qus : F schedule property was a residence of both families ?
Ans: It is a residence of my mother and aunt i.e., 2nd Plaintiff.
Qus : You have no knowledge of joint family of Misrimal and his sons ?
Ans: There was no joint family at all.
198. In the cross examination, at page No.20, DW.2 has deposed that, ' It is false to suggest that, in order to take different stand I have filed separate written statement. I do not remember exactly how many days after signing on the written statement of my parents, I have filed a separate written statement. It is true to say that I have been to the office of Paras Jain to sign on the written statement signed by my parents. It is false to suggest that I have discussed about the stand taken in the written statement of my parents. At that time except Paras Jain I was not knowing any Lawyers when this case was filed. I knew him only and hence I went to his office alone along with summons to ask him about it. I do not remember for how many times I went to his office thereafter. I do not 166 O.S.No.9138/2006 remember exactly when I went to his office after receipt of summons, it may be after Depawali. I do not remember for how many days after Depawali. I do not know whether there is no time gap of receipt of summons my myself and my parents.'
199. The learned advocate appearing for the plaintiffs has argued that, initially defendant No.1 to 3 filed joint written statement but subsequently, defendant No.3 filed separate written statement to contend the 'B' schedule property is not at all joint family property. However, the defendant No.3 has already filed the separate written statement and it is a matter of record.
200. DW.2 in his cross-examination, in page No.25 has deposed that, 'It is true to say that, Rs.25,000/- is transferred to my account from the account of 1 st plaintiff as per entry at Ex.P.40(e) dated 20.05.1995 and that Rs. 2,50,000/- was transferred to account from the account of 1st plaintiff as per entry at Ex.P. 40(b) on 28.03.1996 and that on 29.03.1996 by way of two payment of Rs.
50,000/- each as per entry at Ex.P.40(c) and (d) 167 O.S.No.9138/2006 to my account from the account of 1 st plaintiff. All the above said payment are received by me by way of encashment of cheque issued by 1st plaintiff. Witness volunteers that, he has given me a loan. This Rs. 3,50,000/- was received from the account of 1st plaintiff was transferred to the account of M Misrimal and co. Bengaluru before 31.03.1996. Witness volunteers that, it is was loan taken by me from M Misrimal and co. Bengaluru. I do not know whether 31.03.1996 was year ending day of accounting year of 1995- 96 M Misrimal and co. Bengaluru.
Que: Rs. 3,50,000/- was transferred to the account of 1st plaintiff at Ex.P.40 from the Bank account of M Misrimal and co.
Bengaluru, this in turn was transferred to my account and I in turn transferred said amount to Misrimal and co. Bengaluru. and all these transaction were completed before 31.03.1996?
Ans:- I have taken loan from Misrimal and co. Bengaluru and repaid it.
It is false to suggest that, I am deposing falsely that I have taken loan from Misrimal and co. Bengaluru and repaid it and that I am making this statement for the 1st time. It is false to 168 O.S.No.9138/2006 suggest that, this transaction was arranged to allot to adjust the account by showing 50 % of sale consideration for purchase of the B schedule property into the account of the 1st plaintiff family. It is false to suggest that, entire Rs. 6,53,000/- registration charges have come from funds made available by Misrimal and co. Bengaluru to purchase plaint 'B" schedule property. It is false to suggest that, I had no funds of my own to purchase B schedule property as on the date of registration. It is true to say that, I have taken money from my parents and Plaintiff no. 1 to purchase B schedule property. Witness volunteers that, it was a loan and I repaid it.'
201. DW.3 is the witness by name Nagin Kincha son of H.C.Kincha claims to be the chartered Accountant, Banglore. In his evidence he has stated that:-
"I am a partner of M/s H. C. Khincha and Company. Our firm is in existence since 1943. Plaintiff no.1 is my client. We filed returns of his income.
We are required to compute the correct taxable income and therefore, we collect the information based on Books of accounts, Bank 169 O.S.No.9138/2006 statement etc. We collect the various source of income from the client. After collecting information they try to relate the information to connected documents. The clients are required to sign the statements after looking into it.
The procedure in our office is the clients instruct their assistants who see the books of accounts and documents and prepare the return which is then signed by the client after finalization.
Now I see Ex.D.58 and Ex.D63. My brother had attended in Ex.D.58 and I personally attended in Ex.D.63 proceedings. I do not remember who had given instructions to appear in Ex.D. 63. Ex.D.63 relates M Misrimal HUF. "
In his cross-examination, he has stated that :-
"I have seen Misrimal, Rajmal, Plaintiff no.1 and Defendant no.1. I am practicing since 1974. I know 1st defendant since 40 years. Defendant no.1 never came to my office for tax purpose. Myself and Defendant no.1 are members of one common NGO. Defendant no.1 did not come to our office to collect Income tax papers. There are more than 25 Charted accountants in my office. Three are more than 40 to 50 trainees. It is true 170 O.S.No.9138/2006 to say that, Income tax returns are prepared by the trainees and other Chartered accountants.
We have large number of clients. Plaintiff no.1 comes to our office and depending on the availability of assistants or Chartered accountants they attend. I cannot say exactly which of my assistants prepared returns of Plaintiff no.1 from the year 1980 onwards. On the instructions of Plaintiff no.1 we prepare statements and returns. Anyone from the firm and partner of the firm or the accountant can give instructions. I do not remember whether any accountant was giving instructions to files returns of Plaintiff no.1 prior 1997. I cannot say who gave instructions to prepare returns of Plaintiff no.1 up to 1997. Witness volunteers that, as a matter is very old.
I do not remember whether accountant alone deputed by Misrimal and co., Mudigere was attending to our office for Plaintiff no.1.
Witness volunteers that, ultimate responsibility will be always on the person who signs the returns. I do not remember whether Plaintiff no.1 has personally signed the returns in my presence as a matter is very old. Each member of the family having independent income files return if there is a taxable income. " 171
O.S.No.9138/2006
202. DW.4 is an advocate by name N.Jayaprakash Rao, Bangalore in his evidence stated that:-
"I know the Plaintiff no. 1 very well since 25 years. Now I see Ex.D. 302 and I have issued this notice to Defendant no.1 and 3 on behalf of Plaintiff no.1. The signature found on Ex.D. 302 belongs to my colleague Ashok Kumar."
203. In his cross-examination, he has deposed as follows:-
"It is false to suggest that, whenever I issue notice I used to sign on it. Ex.D. 302 was dictated by me and was signed by my colleague. My colleague did not prepare Ex.D.302. The person who has signed Ex.D.302 has not prepared the same. Our office might have issued more than thousands notices from 1999 onwards. We do not maintain any records regarding who is given instructions and we are not taking signature of instructors on the notice. As on today I do not have records to show that Ex.D.302 was dispatched from their office. I do not maintain 20 years old records.172
O.S.No.9138/2006 It is false to suggest that, I have not issued Ex.D.302 on behalf of Plaintiff no.1. For several times Plaintiff no.1 came to his office. I do not know Defendant no.1 and 3. Plaintiff no.1 once had brought Defendant no.3 with him. "
204. On perusal of Ex.D.302 reveal that, the plaintiff No.1 issued a notice to defendant No.1 and 3 on 09.09.1999, wherein para No.4 it is stated, "after the purchase of the property('B' schedule) the second of you, at the instigation of the first of you has been totally ignoring my client and my client for the past two years has been demanding the partition of the schedule property for allotting my client's half share since he has contributed 50% of the investment made including the expenses incurred for the Registration of the sale deed."
205. The contents of Ex.D.302 notice reveal that, as on 09.09.1999 a demand for partition of 'B' schedule property was made. So, the question is whether the joint family continued even after the 173 O.S.No.9138/2006 death of Misrimal and suit schedule properties including B schedule property continued as joint family property is the crux of the dispute. Regarding B schedule property:
206. It is admitted fact that Misrimal died on 11.06.1980. If there was a joint family, succession opens immediately after his death. Admittedly B schedule property was purchased in the name of defendant No.3 in the year 1995. So, as on the death of Misrimal "B" schedule property was neither in the name of defendant No.3 nor with the joint family. In other words it was aquired in the year 1995 in the name of defendant No.3. i.e., 15 years after the death of Misrimal.
207. In Srinivas Krishna Rao kango Vs Narayana Devji Kango reported in AIR 1954SC 379 Apex Court held that, merely because there is a joint family, there is no presumption that property possessed by it`s members is joint family property. 174
O.S.No.9138/2006
208. In Chattanatha Karayalar Vs Ramachandra Iyer reported in AIR 1955 SC 799, it was held that, " under Hindu law , there is no presumption that a business standing in the name of any member is a joint family one even the member is the manager of the family, and it makes no difference in this respect that the manager is the father of the coparceners."
209. With regard to blending of the property into common hot potch is concerned, the Apex Court in a decision reported in AIR 1963 SC 1601 between Lakki reddi Chinna Venkata reddi Vs Lakki reddi lakshmama held that," Law relating to blending of separate property with joint family property is well-settled. Property separate or self acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his 175 O.S.No.9138/2006 separate claim therein: but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other member of the family were allowed to use the property jointly with himself, or the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation."
210. Regarding existence of joint family is concerned there must be proof. In (2020)6 SCC 387 between Bhagawat Sharan Vs Purushotham and others, it was held that," the law is well settled that the burdon lies upon the person who alleges the existence of the Hindu Undivided Family (HUF) to prove the same. It is clear that not only jointness of the family has to be proved but burden lies upon the 176 O.S.No.9138/2006 person alleging existence of a joint family to prove that the property belongs to the joint Hindu family unless there is material on record to show that the property is the nucleus of the joint Hindu family or purchased through funds coming out of this nucleus." Therefore at any stretch, there is no evidence on record to show that B schedule property is the joint family property liable to partition.
211. Evidence on record reveals that, as on the date of filing of the suit the firm Misrimal & Co, Bangalore was no longer in existence. Evidence on record also reveals that plaintiff No.2 separated from the firm way back in year 2001. There is no evidence on record to show that firm was dissolved with assurance of partition. When there is no such firm in existence, dissolving the firm does not arise.
212. No doubt A and E schedule property stands in the joint names of plaintiff No.1 and Defendant No.1 as they purchased in their joint 177 O.S.No.9138/2006 names. So, they are as joint owners entitled for equal share. Likewise, B schedule property was purchased by defendant No.3 and hence it is his absolute property. Similarly, C and D schedule properties are the absolute property of plaintiff No.1. purchased by him. But, he made an attempt to blend this property as joint family property but the defendants do not admit.
213. Similarly, F schedule property was jointly purchased by the plaintiff No.2 and the defendant No.2 and hence they are joint owners but not as joint family members. So, the plaintiff No.2 and the defendant No.2 are entitled for equal share in the F schedule property. So far as G schedule property is concerned it was the property purchased by defendant No.1. However, no document is produced on record to show it is a joint family property available for partition. Further the H schedule property was purchased in the name of the defendant 2 who is a 178 O.S.No.9138/2006 woman. Under Section 14 of the Hindu succession Act 1956 property acquired by a woman is her absolute property.
214. 'I' schedule property is absolutely belonging to plaintiff No.3 in which defendants have no claim. Hence it is the absolute property of plaintiff No.3. With respect of J schedule property is concerned it is a tenanted premises in which defanant No.1 is an individual tenant as on the date of filing suit. Hence, it cannot be partitioned since business which the defendant No. 3 is running in these premises was his own business. For the above reasons, I answer the Issue No.1 in the Negative, Issue No.3 & 4 partly in the Affirmative and Issue No.11 to 14 in the Affirmative.
215. Issue Nos.8 to 10: These issues are taken up together for consideration to avoid repetition of facts.
It is specific case of the defendants No.1 to 3 the present suit for partition and separate possession is not maintainable in view of the compromise decree in 179 O.S.No.9138/2006 O.S.No.4338/2000. It is also their contention that suit is barred by principles of resjudicata and the suit is barred under Order 2 Rule 2 of CPC. Therefore, the burden is upon the defendants to prove that O.S.No.4338/2000 was ended in compromise decree and hence, the subsequent suit is hit by principles of res-judicata.
226. It is not in dispute that Smt. Nirmala Kumari who is the plaintiff No.2 herein, filed a suit against the defendant No.1 for the relief of direction to the defendant to put the plaintiff in management of the firm M/s.M.Misrimal & Co., and the assets purported to be shown in the name of M/s. M.Misrimal's carrying business at the shop No.4, 10 and 11 of Devatha Market, Armugam Mudaliar Lane, Chickpet, Bangalore, including the stock in trade, accounts books, documents in its entirety, managed by the plaintiff as a partner of the partnership firm. Ex.P24 to Ex.P27 are the certified copies of order sheet, plaint, written statement, application filed under Order 23 Rule 1 of CPC reveal that, the plaintiff No.2 herein filed the above 180 O.S.No.9138/2006 mentioned suit for direction to put the plaintiff in the management of M/s. M.Misrimal & Co.
217. The said suit was filed 27.06.2000 on the file of the City Civil Court, Bangalore and that case was assigned to CCH.No.13. The order sheet in O.S.No.4338/2000 dated 11.12.2000 reveal that the plaintiff filed an application under Order 23 Rule 1 of CPC to permit the plaintiff to withdraw the suit reserving liberty to file a fresh suit. The reason for filing application under Order 23 Rule 1 of CPC as per Ex.P27, "that the matter is likely to be settled and in view of certain pleas that the arranged tenancy of the shops is standing in the name of son of the defendant and this fact brought to the notice of the plaintiff after filing of the written statement and therefore, it has become necessary to file the comprehensive suit by making them as parties. To avoid complications that may arise in execution and to realise the ultimate relief, it is advised to file a comprehensive suit by making all of them parties and therefore, to file a fresh suit with a liberty reserved". 181
O.S.No.9138/2006
218. Therefore, it is clear that though the plaintiff No.2 filed the above mentioned suit, she has decided to withdraw the suit for the reasons mentioned in Ex.P27 i.e., application under Order 23 Rule 1 of CPC, despite the application was filed and pending for consideration, no considered orders were passed by the Civil Court in O.S.4338/2000 either rejecting or allowing the application. The order sheet in the said suit reveal that the case was posted for evidence and ultimately, the suit came to be dismissed for non-prosecution as per the order dated 31.05.2006. After disposal of the above suit for non- prosecution, the plaintiffs have filed the present suit for partition.
219. Under Sec. 11 of the Code of Civil Procedure 1908, res-judicata means:
'No courts shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties or between the parties whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suits or a suit in which such issue has been 182 O.S.No.9138/2006 subsequently raised, and has been heard and finally decided by such Court.' Under Order 2 Rule 2 of Code of Civil Procedure, every suit shall include the whole of the plaint which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his plaint in order to bring the suit within the jurisdiction of any court.
220. Where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterward sue in respect of the portion of so omitted or relinquished. To attract Sec.11 of the Code of Civil Procedure, the previous decision on a matter in issue alone is resjudicata.
221. To attract Order 2 Rule 2 of CPC, the defendant will have to establish precisely the cause of action upon which the previous suit was filed. A plea can be raised only if the defendant files as evidence the pleadings in the previous suit, thus providing the perspective to identify the cause of action in the two suits. The object of Rule 1 and 2 of the Order 2 is to prevent multiplicity of 183 O.S.No.9138/2006 suit. A person shall not be vexed twice on the same cause of action. The term cause of action means the cause of action for which a suit was brought. There is no question of applying Order 2 Rule 2, when the cause of action for the suit is different from the cause of action in the earlier suit.
222. Under Order 23 Rule 1 of CPC, at any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. Under Order 23 Rule 3 of CPC, where the court is satisfied (a) that a suit must fail by reason of by some formal defect or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of a claim with a liberty to institute a fresh suit in respect of the subject matter of such suit or part of the claim.
223. Admittedly, there is no such dispute was heard on merits and finally decided the dispute by the 184 O.S.No.9138/2006 competent court in O.S.No.4338/2000. Hence, the plaintiffs are not estopped from instituting suit for partition and the present suit is not barred by the principles of resjudicata. Though, the plaintiff filed an application in O.S.No.4338/2000 seeking the leave of the court to institute a fresh suit, neither the application was allowed nor rejected but the suit was came to be dismissed for non-prosecution without passing the orders on the application filed by the plaintiff seeking leave of the court to file separate suit. Therefore, the present suit is not barred by Order 2 Rule 2 of CPC. There is no material produced by the defendants to show that, the parties to the suit in O.S.NO.4338/2000 entered into amicable settlement or partition effected and there is no such decree to that effect. For the above reasons, l answer Issue Nos. 8 to 10 in the Negative. 185
O.S.No.9138/2006
224. ISSUE NO.5, 6 and 15:
These issues are taken up together for consideration to avoid repetition of facts.
It is the specific contention of defendant No.1 and 2 that during the life time of M.Misrimal, he executed a Will dated 22.10.1979 directing the mode of distribution of his assets after his death as per Ex.D306. It is further case of the defendants that M.Misrimal had executed a codicil dated 31.03.1980 as per Ex.D307 making certain changes to the Will dated 22.10.1979. Admittedly, both the Ex.D306 and Ex.D307 are the xerox copies attested as a true copy by the Karnataka Bank Branch Ltd., Mudigere Branch. These documents were seriously disputed by the plaintiffs and they filed I.A.No.14 under Order 26 Rule 10(A) of CPC to refer the document to an handwriting expert. The said I.A.No.14 was came to be rejected vide the considered order dated 13.09.2021 holding that xerox document containing disputed signature cannot be sent to an expert. Against the orders passed in I.A.No.14, the plaintiffs preferred a writ petition before the Hon'ble High 186 O.S.No.9138/2006 Court of Karnataka in W.P.NO.16731/2021. Before the Hon'ble High Court of Karnataka, the defendants No.1 to 3 herein, in the said writ petition filed a memo stating that, "The undersigned counsel for respondent Nos.1 and 2 states that the Will and Codicil Ex.D306 and Ex.D307 are not proved and they will not seek to prove them, hereafter. The 3rd respondent states that, Will and Codicil Ex.D306 and Ex.D307 are not proved and he will not seek to prove them hereafter."
225. Taking into consideration of the memos filed by the counsel for defendants, the Hon'ble High Court held that, "The defendants cannot insist on the genuineness for the probative value of these documents. It was further held that, Ex.D266 and Ex.D272(A) have also been marked as Exhibits which are neither original nor certified copies but a copy retained by the chartered accountant to establish the Will and Codicil as also the release deed. If the respondents have given up their reliance on the Will, the Codicil and the release deed for the reasons stated above, it will also follow that they cannot place 187 O.S.No.9138/2006 reliance on Ex.D266 or Ex.D272(A) as these are only brought on record as exhibits to establish the Will and the Codicil. As regards the efficacy of the release deed Ex.D304, it must be additionally observed, to alley all anxieties and as permissible in law, this would be tenuous pieces of evidence because of the respondents' present concession and because the petitioners are not parties to the document. It is clarified that every observation in the course of order is set at rest, the controversy over the respondents' reliance upon Ex.D306, Ex.D307 and Ex.D304 and would be in the light of the respondents' concession in this regard and the ensuing consequences. The Civil Court will have to answer every issue independent of these exhibits and in the light of the observations herein, in so far as they relate to these exhibits."
226. After the disposal of the Writ Petition No.16731/2021, the learned Advocate appearing for the plaintiffs filed a memo dated 28.09.2021 to pass necessary orders in view of the orders of the Hon'ble High Court in W.P.No.11/2019, W.P.6495/2019 and W.P.No.16731/2021. 188
O.S.No.9138/2006 After hearing both the sides and based on the orders of the Hon'ble High Court in the above writ petition, Ex.D309 (list of sundry creditors), Ex.D310 (Profit and Loss Account Statement of Misrimal & Co.) Ex.D306 (Will dated 22.10.1979), Ex.D307 (Codicil dated 31.03.1980) followed by Ex.D266 (Form No.50A) and Ex.D272(A) (statement for the assessment year 1991-92, page No.5 of Ex.D272) were discarded. This order remains in force.
227. Therefore, both Ex.D306 Will dated 22.10.1979 and Ex.D307 Codicil dated 31.03.1980 does not survive for consideration. Further, the Will requires compulsory attestation as per Sec.68 of the Indian Evidence Act and it shall not be used as evidence unless one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of court and capable of giving evidence.
228. The Will is not proved in accordance with law. Therefore, the defendant No.1 and 2 have failed to prove the due execution of the Will by late M.Misrimal on 189 O.S.No.9138/2006 22.10.1979 and Codicil dated 31.03.1980. Further, there is no evidence from the defendant No.4 to prove the valid execution of the Will by Smt.Vidhya Bai.
229. So far as, the execution of the release deed dated 31.03.1992 is concerned, it is the specific contention of the defendant No.1 and 2 that on 31.03.1992 the valid release deed came into existence as per Ex.D.265. On perusal of Ex.D265, nevertheless it was marked with no objection from the counsel for the plaintiff and also the document is not disputed. Though it is a unregistered deed, it is not pertaining to relinquishment of a right over an immovable property to attract bar under Section 17 of the Indian Registration Act. The contents of this deed shows that R.Mahaveer Kumar S/o. M.Rajmal and Smt.Gopidevi wife of Sri.M.Rajmal as a releasers executed this deed in favour of defendant No.1 and plaintiff No.2. By mutual consent, they have agreed that the releasers should release and relinquish all their rights in the partnership of the said business from 01.04.1992. The releasers shall not in any way liable for the losses if any. 190
O.S.No.9138/2006 The Releasees are at liberty to carry on the business in partnership. Therefore, the defendant No.1 and 2 have proved the valid execution of the Release Deed dated 31.03.1992. For the above reasons, I answer Issue No.5 and 15 in the Negative and Issue No.6 in the Affirmative.
230. ISSUE NO. 2 and 7:
These issues are taken up together for consideration to avoid repetition of facts.
According to plaintiffs M/s. M.Misrimal & Co., and M.Misrimals' partnership firm belong to the Hindu Undivided Family is still in existence and these firms is liable to be dissolved and shares to be allotted between the plaintiff and first defendant equally or allot the same to the defendant No.1 subject to the defendant complying with the division of the properties as per the understanding dated 18.11.2001. On the other hand, it is the contention of the defendant No.1 and 2 that the partnership firm namely M/s. Misrimal & Co., was dissolved on 02.02.2001, itself and hence dissolution of firm does not arise.191
O.S.No.9138/2006
231. Under Section 4 of the Indian Partnership Act, 1932, 'partnership' is the relation between the persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individual 'partners' and collectively, 'a firm' and the name under which their business is carried on is called the ' firm'.
232. Under Section 39 of the Partnership Act, the dissolution of partnership between all the parties of the firm is called the dissolution of the firm. Under Section 44 of the Partnership Act, at the suit of a partner the court may dissolve a firm on any of the following grounds, namely:
(a) that a partner has become of unsound mind, in which case the suit may be brought as well by the next friend of the partner who has become of unsound mind as by any other partner.
(b) that a partner, other than the partner suing, has become in any way permanently incapable of performing his duties as partner. 192
O.S.No.9138/2006
(c) that a partner other than the partner suing, is guilty of conduct which is likely to affect prejudicially the carrying out of the business, regard being had to the nature of the business.
(d) that partner, other than the partner suing, willfully or persistently commits breach of agreements relating to the management of the affairs of the firms or the conduct of its business, or otherwise so conducts himself in matters relating to the business that it is not reasonably practicable for the other partners to carry on the business in partnership with him.
(e) that a partner, other than the partner suing, has in any way transferred the whole of his interest in the firm to a 3rd party, or has allowed to be charged under the provisions of Rule 49 of the Order 31 of the First Schedule, to the Code of Civil Procedure, 1908, or has allowed it to be sold in the recovery of arrears of land revenue or of any dues recoverable as arrears of land revenue due by the partner.
(f) that the business of the firm cannot be carried on save at a loss, or
(g) On any other ground which renders it just and equitable that the firm should be dissolved. 193
O.S.No.9138/2006
233. A statutory jurisdiction conferred on a Court to order dissolution of the firm on the grounds mentioned in this Section and the corresponding statutory right given to a partner to institute a suit for dissolution of the partnership on the above grounds cannot be taken away by any private contract made between the parties unless express or by necessary implication makes the statutory right subject to the contract of the parties.
234. Section 59 of the Partnership Act, deals with the registration of partnership firm. When the Registrar is satisfied that the provisions of Sec.58 (Application for Registration) have been duly complied with, he shall record an entry of the statement in a Register called the Register of Firms, and shall file the statement.
235. Section 69 of the Partnership Act, deals with effect of non-registration.
Section 69(1) : No suit to enforce a right arising from a contract or conferred by this Act, shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the 194 O.S.No.9138/2006 firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
(2) No suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the register of firms as partner in the firm.
(3) The provisions of Sub Section (1) and (2) shall apply also to a claim of a set-off or other proceedings to enforce a right arising from a contract but shall not affect-,
(a) The enforcement of any right to sue for a dissolution of a firm for accounts of a dissolved firm or any right or power to realize the property of a dissolved firm;
(b) The power of an official assignee, receiver or court under the presidency towns insolvency Act, 1909 or the Provisional Insolvency Act, 1920 to realize to property of an insolvent partner;
(4) This Section shall not apply-
(a) To firms or to partners in firms which have no place of business in the territories to 195 O.S.No.9138/2006 which this Act extends, or whose places of business in the said territories are situated in areas to which, by notifications under Section 56, this chapter does not apply, or
(b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency Towns, is not of a kind specified in Sec.19 of the Presidency Small Cause Courts Act 1882, or outside the Presidency Town, is not of a kind specified in the second schedule to the Presidency Small Cause Courts Act 1887, or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.
236. By reading Sub Section (1) of Section 69, 'Suing as a partner in a firm include a suit on a cause of action which is based on a right acquired solely as a partner in a firm, and hence, if a firm is unregistered, no suit on the basis of transaction in the unregistered partnership can be brought. However, this sub section cannot be applied to a suit instituted by a person who claims to have been a partner in the dissolved firm or to a suit instituted by or on behalf of a dissolved firm.
196
O.S.No.9138/2006
237. The learned advocate appearing for the plaintiff has relied upon a decision reported in AIR 2016 BOMBAY 63 between Shivram Mahadev Shinde v/s. Maharashtra Housing and Area Development Authority and Anr, wherein it was held that, "A document can be taken on record, if it is 30 years old. Under Section 90, if the document is produced from proper custody, the presumption exists about the execution and attestation of that document. Such presumption is rebutted. Moreover, though execution and attestation is presumed, the truthfulness of the contents therein of the matter is challenge and proof. "
238. On careful reading of the plaint, it is the contention of the plaintiffs that the plaintiff No.2 is one of the partner of M/s. M.Misrimal & Co., and also M/s. M.Misrimals' which is still in existence having business in 'J' Schedule property. The plaintiffs have sought for the relief of dissolving the firms and divide the shares among the plaintiff and the first defendant and deliver half share of the plaintiff. Therefore, it is clear that 197 O.S.No.9138/2006 one of the relief claimed by the plaintiffs as a partner of firm for dissolution of partnership which is admittedly a unregistered partnership firm.
239. Apart from the above mentioned legal implications, Ex.P-14 and Ex.D-292(same documents) are copies of a partnership deed dated 11.12.1975 shows that Sri. Manikchand, Smt. Gopi Bai Wife of Rajmal, Smt. Badami Bai Wife of Misrimal and a Kantilal son of Anand Raj, totally four persons entered into a unregistered Partnership Firm by name M.Misrimal & Co., at No.11, Devatha Market, Chickpet, Bangalore commending from 07.12.1975. As per the Deed business of the partners is divided into, Sri.Manikchand 37/100, Smt. Gopi Bai 50/100, Smt. Badam Bai 15/100, Sri. A.Kanthilal 33/100.
240. Ex.D-240 is another unregistered partnership deed dated 17.12.1981 reveal that, Sri. Manikchand, Smt. Gopidevi, Smt. Badam Bai and Smt. Nirmala Devi entered into a partnership deed in which they reconstituted the firm stating that earlier partner A.Kanthilal was retired on 27.10.1981 and admitted the plaintiff No.2 Nirmala Devi 198 O.S.No.9138/2006 as one of the partner to M.Misrimal & Co., in which the busines of Smt. Nirmala Devi was divided as 25%.
241. Ex.D-241 another unregistered partnership deed dated 10.11.1987 shows that, the defendant No.1 M.Manikchand, R.Mahaveer Kumar, Smt. Gopidevi, the plaintiff No.2 Smt. Nirmala Devi entered into a deed stating that Smt. Badam Bai expressed her desire to retire from the partnership due to old age and all the other partners have agreed for her retirement effective from 22.10.1987 and all the remaining partners agreed to admit Sri.R.Mahaveer Kumar as one of the partner effective from 23.10.1987 and his business was fixed at 35%.
242. Ex.D-258 is another unregistered Partnership Deed dated 06.02.1964 between Misrimal, Prem Raj, Sukan Raj wherein they agreed to change their profit sharing ratio from 17.11.1963 wherein profit of Misrimal shown as 50%, Premraj 30% and Sukanraj 20%. Ex.D-259 is at another Unregistered Dissolution 199 O.S.No.9138/2006 Deed dated 26.10.1973 between M.Misrimal, Premraj and Sukanraj wherein they dissolve the firm on 26.10.1973 distributing the assets among the partners. Ex.D-260 is a copy of the unregistered partnership dated 07.11.1973 between M.Misrimal, M.Rajmal and M.Manikchand that is between father and his two sons with sharing ratio of M.Misrimal 10%, M.Rajmal 30%, M.Manikchand 30% and M.Babulal(minor) 30%.
243. Ex.D-261 is a unregistered dissolution deed dated 27.11.1980 between J.Nemichand, S.Prasmal, Smt.Kalibai and Smt.Savita Bai wherein they dissolved the firm on 07.11.1980 giving all the assets and liabilities to J.Nemichand with respect of firm "Nemichand Chhothmal".
Ex.D-262 is the copy of the partnership deed dated 18.07.1980 between M.Rajmal and M.Babulal (plaintiff No.1) wherein, they agreed to continue the business in partnership on the terms and conditions mutually agreed with respect of the firm by name "M.Misrimal & Co." 200
O.S.No.9138/2006
244. One of the witness examined on behalf of plaintiff as PW.2 in his cross-examination in page No.2 has stated that, " It is true that Ex.P67 is prepared and executed for closure of business pertaining to Misrimal & Co., Bangalore. Babulal and Nirmala were knowing about myself going to his house with Ex.P67. I retained Ex.P67 with me. I took original of Ex.P67 with me to my home and retained the same with me."
245. In page No.3, in his cross-examination, he has stated, "In my presence plaintiff has signed Ex.P67 and Babulal is a witness for the same. It is true that, first defendant has got signed in Ex.P67 in my presence. I do not know when Manikchand signed in Ex.P67. It is transpired that the property dispute be settled by mutual consent and that the request of Bhawarlal, I went to the house of Babulal and signed Ex.P67. Ex.P67 is written in english. I have signed Ex.P67 with my open eyes. I have not read Ex.P67 but I signed it as a witness. Only Nirmal Kumari had signed 201 O.S.No.9138/2006 to Ex.P67 when I have signed to it as a witness. Manikchand had not signed to the original of Ex.P67 in my presence and now the xerox copy of Ex.P67 is signed by Manikchand. Ex.P67 is prepared in only one set and not in copies. On the same night, I gave original document to Uttamchand since he is common relative of the first plaintiff and first defendant but I had no instruction to hand over the original of Ex.P67 by the first plaintiff and the first defendant."
246. On perusal of Ex.P67, is a dissolution deed said to have been executed on 02.02.2001 between M.Manikchand (defendant No.1) and Smt. Nirmala Kumari (defendant No.2) with the understanding that, "the second party filed O.S.No.4338/2000 for mandatory injunction against the first party and whereas, it has been agreed between the parties that the partnership subsisting between them shall be dissolved by mutual consent as per the date hereof. Second party agreed to dissolve the partnership and to withdraw the original suit filed by her and to continue the harmonious relationship between the first party...". "The first party has agreed to pay the 202 O.S.No.9138/2006 outstanding capital amount of the second party to her within 4 weeks from today in full and final settlement of all claims of the second party in respect of the business including goodwill, telephone and other assets of the partnership firm."
247. In the cross-examination of DW.1(defendant No.1), he has stated that in page No.139 as under:
" It is false to suggest that, Plaintiff no.2 has not verified Audited Balance Sheet before signing on Ex.P.67. I do not remember she had not signed on any Audit Balance Sheets for 3 years as stated in the original of Ex.P.67. I do not remember shop no.4 of Devatha Market was in the name of Misrimal and sons., I do not remember shop no.10 and 11 of Devatha Market were in the name of his mother Badam Bai and my wife Shusheela as on 02.02.2001. I do not remember shop no.4,10 and 11 were not in the name of my son as tenant. I do not remember why signature of 2nd plaintiff was not obtained on the Balance Sheet ending 31.03.1998, 31.03.1999 and 31.03.2000. Witness volunteers that, at that time my daughter's marriage was there.203
O.S.No.9138/2006 Ques:- It is stated in the Dissolution Deed about the amount due to the 2nd plaintiff, do you have any documents to show that, that statement was accepted by the 2 nd plaintiff or 1st plaintiff?
Ans:- Whatever I have, I have produced it. Que:- You have not produced any documents before the court to substantiate your above answer?
Ans:- Whatever I have got, I have produced it.
Que:- No such document came into
existence?
Ans:- Whatever I have got, I have produced it. I do not remember that, said Kevalchand was required to retain original of Ex.P.67 after securing signature of Plaintiff No.2 with me. It is false to suggest that, on 3rd night I had secured original of Ex.P.67 from Kevalchand to Uttamchand for scrutinizing signature of plaintiff no.2. I do not remember whether whatever the papers sent by me through Kevalchand to secure the signature of 2nd plaintiff were secured back after getting her signature by Kevalchand. It is false to suggest that, this document is not executed after negotiation and agreement between the parties. I do not remember no Panchayath was held at the time of daughter's marriage. I do not remember there was no 204 O.S.No.9138/2006 Panchayath before signing on Ex.P.67 by Plaintiff no.2.
248. It is the contention of the plaintiffs that the Dissolution Deed Ex.P67 was signed under the hope that the final division of the properties will be made between the family of first plaintiff and first defendant, but to the dismay of the plaintiff the first defendant has took the Signature of the plaintiffs' for the dissolution deed and the dissolution deed is not supported by consideration and it is not binding contract between the parties and the deed obtained by the first defendant has remained as a paper transaction only. So, this pleadings of the plaintiffs shows that rightly or not there was a dissolution of firm as per Ex. P. 67 was came into effect.
249. When such being the pleadings of the plaintiffs, it is for them to prove that, under the circumstances narrated in the plaint the Dissolution Deed came to be executed. Except the pleadings in the plaint, there is no documentary evidence to show that the partnership firm is still in existence and liable for dissolution. Evidence on 205 O.S.No.9138/2006 record does not reveal that M/s.Misrimal & Co., is still in existence. However, the evidence on record reveal that family business is taken over by the defendant No.1 and entire business is handled by him. Therefore, the plaintiffs have failed to prove the existence of firm by name M/s. M.Misrimal & Co., as on the date of filing of suit. Therefore, I answer the Issue No.2 in the negative and Issue No.7 in the Affirmative.
250. ISSUE NO.16:
In the written statement particularly, the written statement of defendant No.5 in para No.2 it is averred that, 'The suit of the plaintiff is barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988. The third defendant has not represented to this defendant that, he is the co-parcener of any family or that, he is owning his share in the 'B' schedule property for the benefit of any co-parcenery. On the other hand, he has claimed himself to be the absolute owner of his share in the 'B' schedule property and as such, the suit brought by the plaintiffs is barred under the provisions of the said Act.' 206 O.S.No.9138/2006
251. The Benami Transactions (Prohibition) Act, 1988 was enacted by the Legislature to prohibit Benami transactions and the right to recover property held in Benami and matters connected therewith or incidental thereto. As per Sec.2(8) of the said Act, Benami Property means any property which is the subject matter of a Benami Transaction and also includes the proceeds from such property. As per Sec.2(9) of the said Act, Benami transactions means, a transaction or an arrangement where a property is transferred to or held by a person and the consideration for such property has been provided by another person.
252. In this regard Ex.D14(A) reveal the income tax assessment of M.Babulal for the year 2007-2008 in which property at Yelhanka, Sy.No.62-67, Bellahalli village worth Rs.3,50,000/- is mentioned.
253. Learned Advocate for the plaintiffs has relied upon a decision of the Hon'ble High Court of Karnataka 207 O.S.No.9138/2006 reported in ILR 2002 KAR 3757 held between Smt. M.Printer and others v/s. Marcel Martins, "30. Viewed from that angle in the instant case, the specific stand taken by the defendant is that the entire consideration for the purchase of the property in his name was provided by him and the plaintiffs have not contributed any portion of the sale consideration. Having taken such a specific plea and having failed to prove the said plea, the defendant could be estopped from contending that, in the event the court comes to the conclusion that the plaintiffs have contributed to the purchase of the suit schedule property in the name of the defendant such transaction is hit by the Act. Secondly, it is not the case of the plaintiffs that they contributed the entire sale consideration and purchased the property in the name of the defendant and that defendant did not contribute any portion of the sale consideration and that defendant has no title to the suit schedule property. Their specific case is the plaintiffs No.2 to 4 have contributed Rs.5000/- and defendant has contributed Rs.5000/- being his share and the balance 208 O.S.No.9138/2006 sale consideration was contributed by their father and it is out of that common fund, the schedule property was purchased in the name of the defendant.
Further, it is nobody's case that the property was purchased in the name of the defendant with the intention of
evading public revenue or whether there is any dishonesty in not mentioning the name of the plaintiffs. Similarly, the material on record discloses that the purchase was not made out of any unaccounted income or with intention of avoiding payment of any tax. Under these circumstances, it cannot be said that the purchase in question is hit by the provisions of 1988 Act."
It was further held, "Therefore, all of them are co-owners and defendant cannot claim exclusive title to the suit schedule property. The said plea is not a plea of Benami as contended by the defendant which falls within the mischief of the Act. Therefore, I do not find any substance in the contention of the defendant that the transaction in question is hit by the provision of the Act and as such, no declaration in favour of the plaintiffs could be granted. There is no prohibition in law 209 O.S.No.9138/2006 for declaring the plaintiffs along with the defendant as co-owners of the suit schedule property."
254. In the instant case, in para No.11 of the plaint there is a specific pleadings that, "The first plaintiff and the first defendant accepted the offer of the vendor to sell the property and 25% of interest in 'B' schedule property was purchased for the benefit of the family. The sale deed dated 29.03.1995 was executed by Jyothi Anil Patel to transfer her 25% of her share in the B schedule property in favour of third defendant. The third defendant is a co- parcener being the member of the family. The 25% of 'B' schedule property was purchased for the benefit of joint of the first plaintiff and the first defendant. The first plaintiff had transferred the amount by giving the necessary cheque encashable from the account of the plaintiff and thus, money so credited in the account of the third defendant was made available for being paid to the vendor namely, Jyothi Anil Patel."
210
O.S.No.9138/2006
255. Whether the plaintiffs have proved that, 'B' schedule property was purchased for and behalf of the joint family and whether the amount transferred by the plaintiff No.1 into the bank account of defendant No.3 as the contribution of the plaintiff No.1 to purchase the 'B' schedule property is already dealt in Issue No.1, 4 and Issue No.11 to 14.
256. With respect of issue No.16 is concerned, it is suffice to hold that, there is a specific pleading to the effect that, the plaintiff No.1 has also contributed his financial help to purchase the 'B' schedule property. When such being the contention of the plaintiffs, the decision reported in ILR 2002 KAR 3757 referred above is aptly applicable to the facts of this case. The suit of the plaintiffs is not barred by the provisions of the Benami Transactions (Prohibition) Act, 1988. For the above reasons, I answer Issue No.16 in the Negative. 211
O.S.No.9138/2006
257. ISSUE NO.17 and 18:
These issues are taken up together for consideration to avoid repetition of facts.
The defendants in their written statement contended that the suit is bad for mis-joinder of necessary parties and non-joinder of necessary parties. Under Order 1 Rule 9 of CPC, No suit shall be defeated by reason of the mis-
joinder or non-joinder of parties, and the court may in every suit dea with the matter in controversy so far as regards of the rights and interest of the parties actually before it. Provided that, nothing in this rule shall apply to a non-joinder of necessary party.
258. In a suit for partition failure to implead a person entitled to a share in the property, would amount to the suit being bad for non-joinder of parties. In such an event, the court can direct the plaintiff to implead such person. Admittedly, the first plaintiff and the first defendant are the brothers and they are the sons of late Sri.Misrimal. Misrimal had three sons by name Sri.Babulal, Rajmal and 212 O.S.No.9138/2006 Manikchand. It is the case of plaintiffs and defendant No.1 to 3 that Rajmal son of Misrimal was separated from the joint family in the year 1992. Both Sri.Misrimal and Badam Bai i.e., father and mother are dead leaving behind their three sons. The defendants never disputed the fact that Rajmal separated from the joint family in the year 1992 by taking his share which was given to him that is the house property owned by the family at Mudigere and property No.63, Hospital Road, Bangalore, property situated at Khinwara, the entire trade of M/s. M.Misrimal & Co., which was carried on at Mudigere. In view of the separation of Rajmal from the family, the members of the family belonging to his branch retired from the firm of M/s. Misrimal & Co., Bangalore. Accordingly, Rajmal's wife Gopidevi and his son Mahaveer Chand retired from the firm. It is the contention of the plaintiffs that first plaintiffs family and the first defendants family continued in the joint family. When such being the pleadings, the defendant Nos.1 to 3 have not denied the fact that, Rajmal separated from the joint family. Therefore, suit is not bad 213 O.S.No.9138/2006 for mis-joinder of necessary parties or non-joinder of necessary parties. Hence, I answer Issue Nos.17 and 18 in the Negative.
259. ISSUE NO.19:
In view of findings on Issue Nos.1 to 18, I pass the following:-
ORDER Suit filed by the plaintiffs is partly decreed.
It is hereby decreed that the plaintiff No.1 and defendant No.1 being the joint owners of 'A' and 'E' schedule property are entitled for half share each by metes and bounds.
It is further decreed that plaintiff No.2 and defendant No.2 being the joint owners of 'F' schedule property are entitled for half share each by metes and bounds.
It is further decreed that the defendants are not entitled for any share in 'C', 'D' and 'I' schedule properties since the plaintiff No.1 is the owner of 'C' 214 O.S.No.9138/2006 and 'D' schedule properties and plaintiff No.3 is the owner of 'I' schedule property. The suit of the plaintiffs for partition of the schedule 'B', 'G', 'H' and 'J' is hereby dismissed.
Under the facts and circumstances of the case, the parties to bear their own costs.
Draw preliminary decree
accordingly.
(Dictated to the Stenographer directly on computer, then corrected and pronounced by me in the open Court on this the 14th day of January, 2022.) (DINESH HEGDE), C/c. XXII Addl. City Civil & Sessions Judge, Bengaluru City.
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
PW.1 : Babulal
PW.2 : Kevalchand
PW.3 : Dhanraj
b) Defendant's side :
DW.1 : Manikchand
DW.2 : Kamalesh Kumar
DW.3 : Nagin Khincha
DW.4 : N. Jaiprakash Rao
215
O.S.No.9138/2006
II. List of documents exhibited on behalf of :
Plaintiff's side :
Ex.P1 Certified copy of Sale Deed dated 30.12.1981 Ex.P2 Letter written by B.Susheela in respect of shop no.11.
Ex.P3 Letter written by B.Susheela in respect of shop no.10.
Ex.P4 Letter written by Susheela in
respect of shop no.4.
Ex.P5 Legal Notice dated 16.01.1989
Ex.P6 Hand sketch plan of three shops.
Ex.P7 Another notice dated 16.01.1989
Ex.P8 Birth certificate of Seema.
Ex.P9 & 10 Rent receipts
Ex.P11 Certified copy of power of Attorney
Ex.P12 Endorsement issued by Rent Controller
Ex.P13 Reply notice
Ex.P13 Postal receipt
(a)
Ex.P14 Copy of partnership deed dated 11.12.1975
Ex.P14 First partner Manikchand signed page No.3
(a)
Ex.P14 Second partner Gopidevi signed at page No.3
(b)
Ex.P14 Third partner Badham Bai signed at page No.3
(c)
Ex.P14 Fourth partner Kantilal signed at page No.3
(d)
216
O.S.No.9138/2006
Ex.P15 Power of Attorney
Ex.P16 Certified copy of sale deed dt:15.05.1990
Ex.P17 copy of sale deed dt:10.08.1994
Ex.P17(a) True copy of Ex.P17
Ex.P18 Letter dated 15.09.1999
Ex.P19 Certified copy of petition in HRC 10503/1991
Ex.P20 Certified copy of order passed in HRC No.10503/91
Ex.P21 Panchayat Parkiath
Ex.P21(A) Translation copy of Ex.P21 Ex.P21 signatures
(a)-(c) Ex.P21(d) The contents written by first defendant Ex.P21 signatures (e,f,g) Ex.P21 signatures (h,j,k,l) Ex.P22 Statement of account Ex.P22(A) Translation copy of Ex.P22 Ex.P22 signatures (a to d) Ex.P23 Statement of account Ex.P23(A) Translation copy of Ex.P23 Ex.P23 signatures (a & b) Ex.P24 Certified copy of order sheet in O.S.4338/2000 Ex.P25 Certified copy of plaint in O.S.No.4338/2000 Ex.P26 Certified copy of written statement in O.S.4338/00 217 O.S.No.9138/2006 Ex.P26(a) Portion of written statement in O.S.No.4338/00 Ex.P27 Application and affidavit filed in O.S.No.4338/00 Ex.P28 Second statement dated :18.11.2001 Ex.P28 signatures (a to g) Ex.P28 Translated copy of Ex.P28 marked on 13.04.2015
(h) Ex.P29 to 9 pahanis (RTC) 37 Ex.P38 Tax paid receipts Ex.P39 Allotment letter issued by Paritosh developers Ex.P40 Statement of accounts (Bank pass book) Ex.P40 Relevant entries in pass book (a,b,c,d) Ex.P40(e) Encashment of cheque for Rs.25000/-(marked on 13.04.2015) Ex.P41 Receipt dated 13.11.1984 Ex.P42 Receipt dated 08.11.1985 Ex.P42(a) English translation of Ex.P42 Ex.P43 Receipt dt.20.09.1984 Ex.P43(a) English translation of Ex.P43 Ex.P44 Partition Deed dated 03.07.1974 Ex.P44 signatures (a to c) Ex.P45 Birth certificate Ex.P46 Acknowledgement issued by Registrar of firms Ex.P47 Register of firms Ex.P48 Copy of sale deed pertaining Arkaat property 218 O.S.No.9138/2006 Ex.P48(a) English translation of Ex.P48 Ex.P49 Copy of sale deed pertaining to property No.63 Ex.P49(a) Typed copy of Ex.P49 Ex.P50 Letter dt:13.07.99 Ex.P51 Postal acknowledgement Ex.P52 Postal receipt Ex.P53 Letter dated 27.07.1999 Ex.P54 Postal Acknowledgement Ex.P55 Postal receipt Ex.P56 Letter dated 1.09.1999 Ex.P57 Postal receipt Ex.P58 Letter dated 03.11.1999 Ex.P59 Postal receipt Ex.P60 Letter dated 09.05.2000 Ex.P61 Xerox copy of partnership deed dt. 01.04.1992 Ex.P62 Nil Ex.P63 sale deed dated 12.11.1995 Ex.P64 Letter dated 11.04.2015 Ex.P65 Reply letter dated 13.04.2015 by Vijaya Bank Ex.P66 Photostat copy of sale deed dated .29.03.1995 Ex.P66(a) Signature Ex.P67 Dissolution deed dated 02.02.2001 Ex.P67(A) The concerned inspector has endorsed as received 219 O.S.No.9138/2006 Ex.D301 ( through DW.2) dated 27.11.2018.
Ex.P67 signatures
(a& b)
Ex.P68 Defendant 1 & 2 Signatures in written statement
dt:09.07.2018 on Ex.D222
Ex.P68 Signatures through DW.1
(1 to 111)
III. List of documents exhibited on behalf of :
Defendants side : -
Ex.D1 Photograph Ex.D.2 Xerox copy of sale deed pertaining to Ex.P49 Ex.D2(a to Signatures c) Ex.D.3 Release Deed Ex.D.3 Signature (DW.1) (a,b,c,d) Ex.D.4 & Two photos D5 Ex.D.5 3 photos ( a to c) Ex.D.6 Dissolution Deed Ex.D.7 Income Tax Return Verification
Form of plaintiff No.1 for the assessment year 2015-2016 Ex.D.8 Income Tax Return Verification Form of plaintiff No.1 for the assessment year 2014- 2015.
Ex.D.9 Income Tax Return Verification Form of plaintiff No.1 for the assessment year 2013-2014 Ex.D.10 Income Tax Return Verification Form of plaintiff No.1 for the assessment year 2011-2012.220
O.S.No.9138/2006 Ex.D.11 Income Tax Return Verification Form of plaintiff No.1 for the assessment year 2012-2013 Ex.D.12 Income Tax Return Verification Form of plaintiff No.1 for the assessment year 2010-2011 Ex.D.13 Income Tax Return Verification Form of plaintiff No.1 for the assessment year 2009-2010 Ex.D.14 Income Tax Return Verification Form of plaintiff No.1 for the assessment year 2008-2009 Income Tax Return Verification Form of plaintiff No.1 for the assessment year 2015-2016 Ex.D14(a) Statement of total income ( through DW.1) Ex.D.15 Income Tax Return Verification Form of plaintiff No.1 for the assessment year 2007-2008 Ex.D.16 Income Tax Return Verification Form of plaintiff No.1 for the assessment year 2006-2007 Ex.D.17 Income Tax Return Verification Form of plaintiff No.1 for the assessment year 2005-2006 Ex.D.18 Income Tax Return Verification Form of plaintiff No.1 for the assessment year 2003-2004 Ex.D19 Income Tax Return Verification Form of plaintiff No.1 for the assessment year 2002-2003 Ex.D20 Income Tax returns for the year 2003-2004 of the plaintiff No.2 221 O.S.No.9138/2006 Ex.D21 Income Tax returns for the year 2005-2006 of the plaintiff No.2 Ex.D22 Income Tax returns for the year 2006-2007 of the plaintiff No.2 Ex.D23 Income Tax returns for the year 2008-2009 of the plaintiff No.2 Ex.D24 Income Tax returns for the year 2009-2010 of the plaintiff No.2 Ex.D25 Income Tax returns for the year 2010-2011 of the plaintiff No.2 Ex.D26 Income Tax returns for the year 2011-2012 of the plaintiff No.2 Ex.D27 Income Tax returns for the year 2012-2013 of the plaintiff No.2 Ex.D28 Income Tax returns for the year 2013-2014 of the plaintiff No.2 Ex.D29 Income Tax returns for the year 2014-2015 of the plaintiff No.2 Ex.D30 Income Tax returns for the year 2015-2016 of the plaintiff No.2 Ex.D31 House Assessment extract for the year 75-76. Ex.D32 House Assessment Extract for the year 81-82 Ex.D33 House Assessment Extract for the year 86-87 Ex.D34 House Assessment Extract for the year 97-98 Ex.D35 True copy of the sale deed dated 19.05.1960 (Marked subject to production of original) Ex.D36 True copy of the sale deed dated 03.07.1974 (Marked subject to production of original) Ex.D36 Signatures 222 O.S.No.9138/2006 (a,b,c,d,e,f) Ex.D37 Letter dated 26.07.1978 Ex.D37 Signature
(a) Ex.D38 Letter undated by Misrimal Company Ex.D39 Assessment order issued by Wealth Tax Officer dated 18.03.1982 Ex.D40 Assessment order assessed by the Wealth Tax Officer dated 24.09.1981 Ex.D41 & Assessment Order issued by Wealth Tax Officer dated 41(a) 18.03.1982 and enclosure of demand notice.
Ex.D42 & Assessment order issued by Income Tax dated 42(a) 29.01.1980 along with notice.
Ex.D43 to 3 advance tax paid challans for the year of 1980-81. 45 Ex.D.46 Wealth Tax Assessment in individual name of Misrimal for the year 1980-81.
Ex.D47 Demand Notice issued under Section 30 of the Wealth Tax.
Ex.D48 and Its challan- two in number
D49
Ex.D50 Wealth Tax in the HUF name for the year 1980-81
Ex.D51 Its Challan
Ex.D52 Proceedings of the Wealth Tax Officer, dated 20-8-
1980
Ex.D53 Challan in the individual name of Misrimal, for the
Assessment Year 1977-78.
Exs.D54 Challan for payment of Income Tax for the year 1981-
and D55 82-Two in number
Ex.D56 Self Assessment Tax for the year 1980-81, in the
individual name of Misrimal
Ex.D57 Proceedings of the Asst. Controller, Estate Duty,
223
O.S.No.9138/2006
Mangalore.
Ex.D58 Proceedings of the Asst.Controller, Estate Duty,
Mangalore, dtd.4-7-1985
Ex.D59 C.A. Letter to the Department dated 21-8-1982
Ex.D60 & 2 postal receipts under certificate of posting
61
Ex.D 62 Estate duty challan for the year 1982-83
Ex.D63 Order of the Appellate Asst. Commissioner dated
25.10.1985
Ex.D64 & Challan 2 in nos. for the year 1981-82
65
Ex.D66 Assessment order for the year 1981-82
Ex.D67 Demand Notice U/S 151 of Income Tax Act
Ex.D68 & Notice U/Sec. 274 R/w 273 of
69 Income Tax Act 30.10.1982
Ex.D70 Treasury challan
Ex.D71 Assessment order for the year 1981-82
Ex.D72 Assessment order for the year 1981-82
Ex.D73 & COP 2 in nos.
74
Ex.D75 Acknowledgment dated 10.06.1982
Ex.D76 Letter dated 09.08.1982
Ex.D77 Another letter dated 15.09.1982
Ex.D78 Acknowledgment of document 08.06.1981
Ex.D79 Challan 1982-83
Ex.D80 Challan 1982-83
Ex.D81 to Account copy of my mother Badambai, Gopidevi, 83 224 O.S.No.9138/2006 myself (Counsel for plaintiff dispute the signature in those documents).
Ex.D84 & Letter dated 25.05.1982, 2 in nos.
85 Ex.D86 Letter dated 26.08.1982 Ex.D87 & Assessment order for 1982-83 (2)in nos. 88 Ex.D89 to Statement dated 03.11.1983 U/S 194 of Income Tax 91 Act, 3 in nos. Ex.D89(a) Signature (through DW.1) Ex.D90(a) Signature (through DW.1) Ex.D91(a) Signature (through DW.1) Ex.D92 Demand Notice dated 21.09.1983 Ex.D93 Assessment order for the year 1983-84 Ex.D94 Statement dated 06.06.1984 Ex.D95 to Acknowledgment 3 in nos. 97 Ex.D98 Assessment order for the year 1983-84 Ex.D99 & Acknowledgment of documents 2 in nos. 100 Ex.D101 COP Ex.D102 & Acknowledgment 2 in nos. 103
Ex.D104 to Statement dated 22.10.1984 108 5 in nos.
Ex.D106(a) Signature through DW.1
Ex.D107(a) Signature through DW.1
Ex.D108(a) Signature through DW.1
Ex.D109 Assessment for the year
1984-85
225
O.S.No.9138/2006
Ex.D110 Acknowledgment dt:
15.06.1984
Ex.D111 Assessment order dated 25.07.1984
Ex.D112 Letter dated 15.06.1984 by the C.A.
Ex.D113 Challan
Ex.D114 to Acknowledgment, 3 in nos.
116
Ex.D117 Challan for 1985-86
Ex.D118 Challan for 1985-86
Ex.D119 Challan for 1985-86
Ex.D120 Letter dated 22.06.1985
Ex.D121 Letter 05.07.1985
Ex.D122 to Statement for 1985-86,
124 3 in nos.
Ex.D125 Challan for the year 1986-87
Ex.D126 to Acknowledgment 3 in nos.
128
Ex.D129 Letter dated 21.06.1986
Ex.D130 to Statement dated 15.10.1987, 132 3 in nos. Exhibit Serial Number corrected as per the orders dated 10.01.2022.
Ex.D133 & Challan 1987-88, 2 in nos.
134
Ex.D135 Letter of the Asst. Commissioner of
Income Tax Act.
Ex.D136 Acknowledgment of document
Ex.D137 Letter dated 09.05.1987
Ex.D138 Acknowledgment of document.
226
O.S.No.9138/2006
Ex.D139 Assessment Order
Ex.D140 Acknowledgement
Ex.D140(a) Signature
Ex.D141 Another Acknowledgment
Ex.D142 Challan
Ex.D143 Letter dated 25.7.1990
Ex.D144 Letter dated 29.5.1989
Ex.D145 Acknowledgment for the assessment year
1990-91
Ex. D146 Intimation u/sec 143(1) (a) of the Income Tax Act for
the year 1990-91.
Ex. D147 Self assessment tax for the year
1990-91
Ex.D148 & Two Challans
149
Ex. D150 Intimation u/sec 143(1) (a) of the Income Tax Act for
the year 1991-92.
Ex. D151 Self assessment Tax for the year 1991-92
Ex. D152 Challan
Ex. D153 Intimation u/sec 143(1) (a) of the Income Tax Act for
the year 1992-93
Ex. D154 Challan
Ex. D155 Self assessment Tax for the year 1992-93
Ex. D156 Letter carbon copy 25/5/2015
Ex. D157 & Letter dated 15.11.1999 and its postal cover
158
Ex. D159 & Letter dated 22.7.2000 & its postal cover
227
O.S.No.9138/2006
160
Ex. D161 Gold Voucher dated 27.10.1986
Ex. D162 Purchased certificate dated 27.10.1986
Ex. D163 Letter dated 28.12.1987
Ex. D164 Acknowledgment
Ex. D165 Assessment order for the year 1978-79.
Ex. D166 Notice of Demand
Ex. D167 Assessment Order
Ex.D168, Receipt Book for the year 1999-2000and relevant
D168(a),(b) receipts dated 18.5.1999 and 23.6.1999 Ex.D169, Another Receipt Book for the year 1997-98 and D169(a),(b) relevant receipts dated 20.12.1997 and 10.3.1999. Ex.D170, Receipt Book for the year 1995-96 and relevant D170(a),(b) receipts dated 15.7.1996 two in numbers Ex. D171 Assessment Order for the year 1970-71 Ex. D172 Notice on Demand Ex. D173 Receipt Ex. D174 Assessment order for the year 1971-72 Ex. D175 Notice on Demand Ex. D176 Receipt Ex. D177 Assessment Order for the year 1972-73 Ex. D178 Notice on Demand Ex. D179 Receipt Ex. D180 Bill dated 6.11.1973 Ex. D181 Assessment order for the year 1977-78 228 O.S.No.9138/2006 Ex. D182 Order dated 17.8.1978 Ex. D183 Proceedings of the Income Tax authority 17.8.1978 Ex. D184 Notice on Demand Ex. D185 Order by the appellant Assistant Commissioner Appeal dated 28.4.1978.
Ex. D186 Notice on Demand Ex. D187 Income Tax Expenditure Account Ex. D188 Acknowledgement Ex. D189 Self Assessment Tax Ex. D190 Assessment order for the year 1978-79 Ex. D191 Assessment order for the year 1978-79 Ex. D192 Assessment order for the year 1982-83 Ex. D193 Order u/sec 158 Ex. D194 Acknowledgement Ex. D195 Acknowledgement Ex. D196 Application for registration of the firm Ex. D197, Four Challans to 200 Ex.D201 Intimation u/sec 143 Ex.D202 Form 16(A) Ex.D203, Receipt Book for the year 1998-99 and relevant
D203(a),(b) receipts dated 10.3.1999 two in numbers. Ex.D.204, Copy of the Partnership Deed dated 01.04.1992. its D204(a) Xerox copy is marked to show signatures of the 229 O.S.No.9138/2006 witnesses and same is not objected by the counsel for the plaintiff.
Ex.D205 Dissolution Deed dated 02.02.2001 Ex. D206 Letter dated 1.9.1999 Ex. D207 Letter dated 27.7.1999 Ex. D208 Challan for payment of Tax
Ex. D209 to Debenture Certificate four in numbers 212 Ex. D213 Letter dated 4.5.1999 Ex. D214 to Share transfer form Five in numbers 218 Ex.D214 Signatures (a&b) Ex.D215 Signatures (a&b) Ex.D216 Signatures (a&b) Ex.D217 Signatures (a&b) Ex.D218 Signatures (a&b) Ex. D219 Certified copy of Sale deed dated 29.10.1997 (original is with the plaintiffs) Ex. D220 Another certified copy of Sale deed dated 03.05.1997 Ex. D221 One postal card Ex. D222 Certified copy of the Sale deed dated 28.1.1983 (Marked subject to production of typed copy as it is in Hindi).
Ex. D223 Acknowledgement issued by the Chickpet Police Station.
230
O.S.No.9138/2006 Ex. D224 Attested copy of the complaint issued by the police dated 11.2.2015 Ex. D225 Fee receipt issued by the Sub Registrar Rajasthan Ex. D226 Certified copy of Sale deed dated 28.1.1983 (Marked subject to production of typed copy as it is in Hindi).
Ex. D227 Police receipt dated 9.3.2011 Ex. D228 Copy of the Police complaint 9.3.2011 Ex. D229 Bank Statement of Vijaya Bank from 1.2.2002 to 22.1.2007.
Ex. D230 Statement from 2.3.2001 to 2.4.2001. Ex. D231 Income and Expenditure account for year ending 31 st March 2000.
Ex. D232 to Counter foils 7 in numbers.
238 Ex. D239 Statement from 28.12.2000 to 28.03.2001 issued by Vijaya Bank.
Ex. D240 Partnership deed dated 17.12.1981
Ex. D241 Partnership deed dated 10.11.1987
Ex. D242 Rough sketch
Ex.D242 (a) Signature
Ex. D243 & Letter dated 17.10.2006 and 21.3.1997
D244
Ex. D245 Certified copy of the Order sheet in OS. No.181/2016
Ex. D246 Certified copy of the memo 16.2.2017 in OS. No.
181/2016
Ex. D247 Plaint
Ex.D248 Vakalath 4 in numbers
231
O.S.No.9138/2006
to 251
Ex. D252 Certified copy of the IA U/o 1 rule 10(2) of CPC
Ex. D253 Objections
Ex. D254 Certified copy of the Order sheet in SC 2803/11
Ex. D255 Certified copy of the IA dated 2.12.2011 U/sec 148.
Ex. D256 Certified copy of the IA dated 15.12.2011
Ex. D257 Certified copy of the IA dated 22.2.2012
Ex.D.258 Partnership deed dated 06.02.1964
Ex.D.258 Signature
(a)
Ex.D.259 Dissolution partnership deed between my father and
their brothers dated 26.10.1973.
Ex.D259 Signatures
(a,b,c,d)
Ex.D.260 Copy of the partnership deed dated 7.11.1973
between my father, my brother and myself Ex.D.260 Signatures
(a) Ex.D.261 Copy of the Dissolution deed dated 27.11.1980 between father's brothers and copy co-sister Ex.D.262 Copy of partnership deed dated 18.7.1980 between my brothers Ex.D.263 Partnership deed dated 17.11.1973 Ex.D.264 Released deed dated 17.12.1981 (counsel for plaintiff submit no objection for marking this document and also the document is not disputed) Ex.D.265 Released deed dated 31.03.1992(counsel for plaintiff submit no objection for marking this document and also the document is not disputed) Ex.D.266 Form No.15(a) 232 O.S.No.9138/2006 Discarded as per order dated 30.10.2021. Ex.D.267 Charted accountant dated 20.06.1988(pages 1 to 9) Ex.D.267 Portion of Ex.D267 (a & b) Ex.D267 Page No.9 of Ex.D267 debit entries
(c) Ex.D.268 Charted accountant report dated 23.10.1992(12 pages)counsel submits that this is not primary evidence Ex.D.268 Page No.8 of Ex.D268 debit entries
(a) Ex.D.269 Profit and loss account for the assessment year 1991 dated 31.03.1980 Ex.D.270 Statement of particulars form No. 3CD 1 to 17 page numbers Ex.D.271 Profit and loss account for the assessment year 1999 ( 1 to 3 Pages) Ex.D.272 Statement for the assessment year 1991-92(24 pages) Ex.D.272 Page no.5 of Ex.D272
(a) Ex.D.272 Page no.16 of Ex.D272 (A) Discarded as per order dated 30.10.2021. Ex.D.273 Form No. 3CD for the year 1993-94(14 pages) Ex.D.274 Profit and loss account for the assessment year 1989-90(7 Pages) Ex.D.274 Page No.2 of Ex.D274 (Mahaveer Chand)
(a) Ex.D.274 Page No.1 of Ex.D274 ( Balance sheet)
(b) Ex.D.274 Page No.2 of Ex.D274 (Smt. Gopidevi)
(c) Ex.D.275 Statement of particulars form No. 3CD 233 O.S.No.9138/2006 for the year 1987-88(7pages) Ex.D.276 Statement for the assessment of 1994-95(copy) Ex.D.277 Form No.3CD Ex.D.278 Form NO. 3CD Ex.D.279 Statement of the assessment year 1994-95(11 pages) Ex.D.280 Statement of the assessment year 1995-96(9 pages) Ex.D.281 Statement of the assessment year 1997-98(9 pages) Ex.D.281(a) Portion of Ex.D281 Ex.D.282 One postal receipt No.2847 Ex.D.283 Letter dated 1.1.1996 Ex.D.284 Letter dated 6.12.1995 with enclosures and statement from page 3 to 17 Ex.D.285 Statement for the assessment year 1996-97(from Sl.No. 1 to 21, 1 sheet) Ex.D.286 to Share certificates 291 Ex.D289(a) Signature Ex.D290(a) Signature Ex.D.292 Partnership dated 11.12.1975(copy) Ex.D.293 & Two covers 294 Ex.D.293 Share and Income tax (marked on 29.10.2018)
(a) & 294(a) Ex.D.295 W.P.No.4720 & 4721/18 through PW.1 dated :
30.10.2018.234
O.S.No.9138/2006 Ex.D.296 Nine original Bank challans through Vijaya Bank, City Market Branch, Bengaluru.
Ex.D.297 Certified copy of complaint dt:20.07.2016 collected under RTI.
Ex.D.298 Transcript of the conversation held between Mr. Srinath and defendant No.3 along with pendrive. Ex.D.298 65B certificate.
(a) Ex.D.299 Certified copy of the proceeding viz RFA 1432/03 Ex.D.300 Certified copy of the proceeding viz revision application 264/2007 Ex.D.301 Complaint of DW3 dated 12.02.2016 along with translation copies.
Ex.D.302 Original notice dated 09.09.1999 from JP & Associates issued on behalf of plaintiff 1 to DW.3. Ex.D.303 Certified copy of proceeding viz O.S.No.2793/05 as filed by Vinod M and B.Praveen Kumar P3 Ex.D.304 Original Released Deed dated 30.08.1977 Ex.D.304 (a to f) Signatures.
Ex.D.305 Original Release Deed dated 17.12.1981 Ex.D.306 Will dated 22.10.1979 certified by Karnataka Bank ,Branch Mudigere.
Discarded as per order dated 30.10.2021. Ex.D.307 Codicil dated 31.03.1980 certified by Karnataka Bank ,Branch Mudigere.
Discarded as per order dated 30.10.2021. Ex.D.308 Oppige Pathra dated 08.01.1993 certified by Karnataka Bank ,Branch Mudigere.
Ex.D.309 List of sundry creditors.
Discarded as per order dated 30.10.2021. 235
O.S.No.9138/2006 Ex.D.310 Profit and loss account statement of Misrimal and co.
Mudigere of various years (69 pages) Discarded as per order dated 30.10.2021. Ex.D.311 Memorandum of deposit of Title Deeds dated 28.10.2016 issued by Karnataka Bank ,Branch Mudigere.
Ex.D.312 & 2 share certificates.
313 Ex.D.314 & 2 Certificates of deduction of tax.
15 Ex.D.316 Acknowledgement. Ex.D.317 Undated letter. Ex.D.318 Letter dated 23.11.1970. Ex.D.319 letter dated 30.04.1981.
Ex.D.320 & Report of the experts(Two in no.) 321 (DINESH HEGDE), C/c. XXII Addl. City Civil & Sessions Judge, Bengaluru City.
236 O.S.No.9138/2006