Bangalore District Court
Smt.Kaveramma vs Sri Muniraju on 17 March, 2020
IN THE COURT OF XLIV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-45)
Dated this the 17th day of March, 2020
PRESENT: Smt.Latha,
XLIV Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.11229/2006
Plaintiffs :1. Smt.Kaveramma,
D/o late Juttiga,
Aged about 80 years,
2. Smt.Ramakka,
D/o late Juttiga,
Aged about 75 years,
3. Sri B.T.Muniyappa,
S/o late Muneeramma,
Aged about 45 years,
4. Sri Thimmarayappa,
S/o late Muneeramma,
Aged about 43 years,
All are R/at Bellandur Village,
Varthur Hobli,
Bangalore East Taluk.
(By Sri M.Srinivasaiah, Adv.,)
Vs
Defendants :1. Sri Muniraju,
S/o late Ramaiah,
Aged about 35 years,
(Exparte)
2. Sri Muniyappa,
S/o late Ramaiah,
Aged about 34 years,
O.S.NO.11229/2006
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3. Smt.Sumitra,
D/o late Ramaiah,
Aged about 33 years,
4. Smt.Parvathamma,
D/o late Ramaiah,
Aged about 32 years,
5. Sri Seenappa,
S/o late Ramaiah,
Aged about 30 years,
6. Sri Krishnappa,
S/o late Annaiah,
Aged about 50 years,
(D.2 to D.6 by Sri G.H.S. Adv.,)
7. Smt.Narayanamma,
D/o late Annaiah,
Aged about 48 years,
8. Sri Muniyappa,
S/o late Smt.Munivenkatamma,
Aged about 60 years,
9. Smt.Thimmakka,
D/o late Smt.Munivenkatamma,
Aged about 58 years,
(D.7 to D.9 Exparte)
10. Smt.Chikkolamma,
D/o late Smt.Munivenkatamma,
Aged about 56 years,
(By Sri G.H.S. Adv.,)
11. Smt.Munirathnamma,
D/o late Smt.Munivenkatamma,
Aged about 54 years,
(Exparte)
O.S.NO.11229/2006
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12. Sri Venkatesh @ Doddavenkatesh,
S/o late Smt.Munivenkatamma,
Aged about 52 years,
(By Sri S.S. Adv.,)
13. Sri Chikkanna,
S/o late Smt.Munivenkatamma,
Aged about 50 years,
14. Sri Annayappa,
S/o late Smt.Munivenkatamma,
Aged about 48 years,
15. Sri Chikkavenkatesh,
D/o late Smt.Munivenkatamma,
Aged about 46 years,
16. Thimmarayappa
S/o late Smt.Munivenkatamma,
Aged about 42 years,
17. Smt.Yellamma,
D/o late Smt.Munivenkatamma,
Aged about 40 years,
All the above are R/at
Bellandur village, Varthur Hobli,
Bangalore East Taluk.
18. Sri Pillappa, S/o Munegowda,
Aged about 50 years,
R/at No.1/47, Sunkenahalli,
Hanumanthanagar, Bangalore.
19. Sri M.Muniswamy,
S/o late Munivenkatappa,
Aged about 59 years,
R/at Bukkasagram Village,
Hosur Taluk, Dharamapuri District,
Tamil Nadu.
O.S.NO.11229/2006
4
20. M.Krishna,
S/o late Munivenkatappa,
Aged about 57 years,
No.327, 14th Main, Rajmahal Vilas,
I Stage, Bangalore - 80.
(D.13 to D.20 Exparte)
21. M/s.Real Value Promoters Pvt Ltd.,
Represented by R.Vijay Anand,
R/at No.113, Ground Floor,
Oxford Towers, NO.139,
Airport Road, Kodihalli,
Bangalore - 17.
(By Sri M.D.A. Adv.,)
22. M/s.Shoba Developers Limited (Regd)
Office NO.E-106, Sunrise Chambers,
Ulsoor Road, Bangalore - 42.
Represented by its authorized Signatory
Mr.D.S.Patil.
(By Sri Sanjay Nair, Adv.,)
Date of Institution of the suit: 22.12.2006
Nature of the suit : Partition & permanent
injunction
Date of recording evidence: 10.8.2015
Date of Judgment : 17.3.2020
Total Duration : Day/s Month/s Year/s
25 02 13
J UD GM E N T
This is a suit filed by the plaintiffs against the
defendants for the relief of partition.
2. According to the plaintiffs, defendant Nos.1 to 17 and
themselves constitute a Hindu undivided Joint family having
O.S.NO.11229/2006
5
joint interest and status over the suit schedule property. The
deceased Juttiga and Chikkamuniyamma had 4 daughters
and one son by name Smt.Muneramma,
Smt.Munivenkatamma, Smt.Kaveramma, Smt.Ramakka and
the son Annaiah. Smt.Muneeramma died leaving behind
plaintiff Nos.3 and 4. Smt.Munivenkatamma died leaving
behind defendant Nos.8 to 17. The plaintiff Nos.1 and 2 are
the daughters of Juttiga and Chikkamuniyamma. The son of
Juttiga namely Annaiah died leaving behind defendant Nos.1
to 5. Son of Annaiah is the 6th defendant and Narayanamma
the daughter of Annaiah is the 7th defendant.
The plaintiffs further contended that the suit schedule
property namely the property comprised in Sy.No.100
measuring 32 guntas of Bellandur village, Varthur hobli,
Bangalore South Taluk, now within the jurisdiction of
Bangalore East Taluk is the suit schedule property, that the
plaintiffs and defendant Nos.1 to 7 are the joint members of
the said property, that after the death of Juttiga, the plaintiffs
and defendant Nos.1 to 17 were in joint possession and
enjoyment of the suit schedule property, that the property
remained as Hindu joint family property and the plaintiffs
O.S.NO.11229/2006
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have got their legitimate 3/5th share in the suit schedule
property, that the brother of plaintiff Nos.1 and 2 did not
effect partition of the said property, that when they demanded
for partition, they refused to gave share in the suit schedule
property, that finally they came to know that the 19 th
defendant had purchased the suit schedule property through
the alleged sale deed, that defendant No.18 created General
Power of Attorney on 8.3.1995 and sold the property to
defendant No.22, that defendant No.19 has not acquired any
right, title and interest over the property, that since the
property is the ancestral property of the plaintiffs, they
sought for partition and allotment of their separate
possession over the suit schedule property.
During the pendency of suit, the plaintiffs impleaded
defendant No.22 and sought for the declaration that the sale
deed executed in favour of defendant No.22 is not binding on
the plaintiffs.
3. The defendant Nos.2 to 6 & 10 have filed the written
statements by denying the plaint averments, which are
traversed against their contention and specifically contended
O.S.NO.11229/2006
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that the property was granted in favour of the father of
defendant Nos.2 to 5, that the father of defendant 2 to 5
executed General Power of Attorney in respect of the suit
schedule property in favour of defendant No.18, that
defendant No.18 sold the suit schedule property in favour of
defendant No.19, that the plaintiffs have no right, title and
interest over the suit schedule property. Accordingly, they
prayed to dismiss the suit.
4. After impleading, the defendant No.22 filed the written
statement by contending that defendant No.22 is the bonafide
purchaser of the property comprised in Sy.No.100/4 from
defendant No.21 under the registered sale deed dated
14.9.2006, that the suit filed by the plaintiffs is totally false,
frivolous and vexatious and it is not maintainable either in
law or on facts, that the suit is liable to be dismissed in
limine, that the plaintiffs have filed this suit with the sole
intention of harrasing and blackmailing, that the plaintiffs
have not approached the court with clean hands and are
guilty of suppressing material facts and misleading the court,
that the plaintiffs have not in possession of the suit schedule
O.S.NO.11229/2006
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property, that they have admitted in the plaint that the suit
schedule property had been sold to defendant No.19, that the
property in dispute is the converted property from
agricultural into non-agricultural purpose, that the plaintiffs
shall pay the requisite court fee under the provisions of
Karnataka Court Fees and Suits Valuation Act 1958, that the
family tree produced along with the plaint is a created one,
that the suit of the plaintiff is liable to be dismissed for the
reason that the plaintiffs have not included other joint family
property for partition namely the property comprised in
Sy.No.63 of Bellandur village, Varthur Hobli, Bangalore South
Taluk, measuring 18 guntas, that the said property has also
been granted in favour of late Ramaiah.
The defendant No.22 further contended that the
defendant No.22 without prejudice to his contention already
taken in his written statement, also pleaded that the plaintiffs
from the date of order of regrant have been excluded from the
enjoyment of the suit schedule property by the defendants,
that the defendants were enjoying the property exclusively,
that the plaintiffs have kept calm for long time allowed the
defendants to enjoy the suit schedule property exclusively
O.S.NO.11229/2006
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and also allowed the defendants to deal with the property,
that the order of regrant was passed in favour of late Ramaiah
and not in favour of father of the plaintiff No.1 and 2, that the
plaintiffs 1 and 2 ought to have claimed their right before the
authority who passed the said order, that without challenging
the order of regrant, the present suit for partition is not
maintainable.
The defendant No.22 further contended that originally
the portion of the property in Sy.No. 100 (new Sy.No. 100/4)
situated at Bellandur Village, Bangalore South Taluk,
measuring 31 guntas was regranted to one Ramaiah by the
Asst. Commissioner in case No.HOA(S) 197/68-69 on
5.11.1971, that subsequent to the said order, the said
Ramaiah was registered as Khatedar of the said property, that
the said Ramaiah along with his sons defendant Nos.1 to 5
and his brother Krishnappa executed registered Power of
Attorney in favour of defendant No.18 Pillappa on 8.3.1995,
that the said Pillappa sold the said property in favour of
defendant No.19 under the registered sale deed dated
24.3.1998, that subsequent to the purchase, defendant No.19
got changed the mutation of the said property in his name,
O.S.NO.11229/2006
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that the defendant No.19 executed Power of Attorney in
favour of defendant No.20 M.Krishna on 3.5.2000 and the
original owners have also executed Rectification deed on
9.6.2000, that the defendant No.19 had made an application
for conversion of the said property from agricultural into non-
agricultural use and the Special Deputy Commissioner
Bangalore district had passed an order on 4.12.2002
converting the said property into non-agricultural purpose,
defendant No.19 through his General Power of Attorney
holder namely defendant No.20 sold the suit schedule
property in favour of defendant No.21 under the registered
sale deed dated 5.5.2003, that defendant Nos.2 to 6 executed
Confirmation Deeds in favour of defendant No.21.
The defendant No.22 also contended that the defendant
No.21 in turn executed sale deed in favour of defendant
No.22, that defendant No.22 became the absolute owner of
the suit schedule property as defendant No.22 is the bonafide
purchaser of the suit schedule property. Accordingly,
defendant N.22 prayed to dismiss the suit.
O.S.NO.11229/2006
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5. On the basis of the pleadings, the Presiding Officer of
XVII Addl.City Civil & Sessions Judge, had framed the
following issues:
1. Whether the plaintiffs prove that Juttiga had
acquired the schedule property?
2. Whether the 2nd defendant proves that the
schedule property was granted to the father of
defendants 3, 4 and 5?
3. Whether the valuation of the suit is proper and
the court fee paid is correct?
4. Whether the plaintiffs are entitled to 3/5th
share in the schedule property?
5. Whether the registered General Power of
Attorney dated 8.3.1995 and registered sale
deed dated 24.3.1998 are not binding on the
plaintiffs?
6. To what decree or order?
6. However, on going through the pleadings of defendant
No.22, the defendant No.22 has taken the specific contention
that the suit of the plaintiffs is barred by limitation and also
the suit is bad for partial partition. On the basis of these
pleadings, by oversight issues on those points are not framed.
It is the considered view of this court that issues regarding
limitation and partial partition are framed, no additional
evidence need be recorded, because the parties to the suit
O.S.NO.11229/2006
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have extensively adduced evidence by covering both those
issues also. Therefore, the following additional Issues are
framed:
Additional Issues:_
1. Whether the defendant No.22 proves that the
suit is bad for partial partition?
2. Whether the suit is barred by limitation?
7. To substantiate the contention of plaintiffs, the plaintiff
No.4 got himself examined as PW.1, examined one witness as
PW.2, got 16 documents marked as Ex.P.1 to P.16 and closed
their side of evidence. On the other hand, the defendant
No.22 got the authorized signatory examined as DW.1, got 18
documents marked as Ex.D.1 to D.18 and closed the evidence
of defendant No.22's side. Perused the written submission of
D.22 and citations produced on his behalf.
8. Heard the arguments of learned counsel for the
plaintiffs and the learned counsel for the defendant for
defendant No.22.
9. The findings of the Court on the above issues are:
Issue No.1 : In the Negative
Issue No.2 : In the Affirmative;
O.S.NO.11229/2006
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Issue No.3 : In the Affirmative;
Issue No.4 : In the Negative;
Issue No.5 : In the Negative;
Addl. Issue No.1 : In the Affirmative;
Addl. Issue No.2 : In the Negative;
Issue No.6 : As per final order;
for the following:
REASONS
10. Issue No.1 & 2 :- Since these issues require
common discussion, these issues are taken up together for
discussion. According to the plaintiffs, the plaintiffs namely
Smt.Kaveramma, Smt.Ramakka, B.T.Muniyappa and
Thimmarayappa filed this suit seeking partition in the
property comprised in Sy.No.100 (new No.100/4), measuring
32 guntas of Bellandur Village, Varthur Hobli, Bangalore
South Taluk, (now within the jurisdiction of Bangalore East
Taluk. The defendant Nos.1 to 17 and themselves constitute
a Hindu undivided joint family having joint interest and
status over the suit schedule property. The deceased Juttiga
and Chikkamuniyamma had 4 daughters and one son by
name Smt.Muneramma, Smt.Munivenkatamma,
Smt.Kaveramma, Smt.Ramakka and the son Annaiah.
Smt.Muneeramma died leaving behind plaintiff Nos.3 and 4.
O.S.NO.11229/2006
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Smt.Munivenkatamma died leaving behind defendant Nos.8
to 17. The plaintiff Nos.1 and 2 are the daughters of Juttiga
and Chikkamuniyamma. The son of Juttiga namely Annaiah
died leaving behind defendant Nos.1 to 5. Son of Annaiah is
the 6th defendant and defendant No.7, Narayanamma is the
daughter of Annaiah is the 7th defendant.
The plaintiffs further contended that the suit schedule
property namely the property comprised in Sy.No.100
measuring 32 guntas of Bellandur village, Varthur hobli,
Bangalore South Taluk, now within the jurisdiction of
Bangalore East Taluk is the suit schedule property, that the
plaintiffs and defendant Nos.1 to 17 are the joint members of
the said property, that after the death of Juttiga, the plaintiffs
and defendant Nos.1 to 17 were in joint possession and
enjoyment of the suit schedule property, that the property
remained as Hindu undivided joint family property and the
plaintiffs have got their legitimate 3/5th share in the suit
schedule property, that the brother of plaintiff Nos.1 and 2
did not effect partition of the said property, that when they
demanded for partition, they refused to give share in the suit
schedule property, that finally they came to know that the
O.S.NO.11229/2006
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19th defendant has purchased the suit schedule property
through the alleged sale deed, that defendant No.18 got
created General Power of Attorney on 8.3.1995 and sold the
property to defendant No.19, that defendant No.19 has not
acquired any right, title and interest over the suit schedule
property, that since the property is the ancestral property of
the plaintiffs, they sought for partition and allotment of their
separate possession over the suit schedule property.
11. It is the specific contention of the plaintiffs that in para
No.4 of the plaint that the deceased Juttiga had acquired the
suit schedule property through Thoti and Neeraganti officers
of Bellandur village, that the said property granted to him in
case HOA(S 197/68-69) dated 5.11.1971,
The plaintiffs further contended that plaintiffs and
defendant Nos.1 to 17 are in joint possession and enjoyment
of the suit schedule property as members of undivided joint
family, that they were cultivated in the suit schedule property
by growing food grains, varieties of fruit bearing trees, and
other trees.
O.S.NO.11229/2006
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12. On the other hand, the defendant Nos.2 to 6 and 10 in
their written statement have specifically contended that the
suit schedule property granted in favour of Ramaiah, the
father of defendant Nos.1 to 5, by denying the averments
made by the plaintiffs in the plaint.
13. Likewise, defendant No.22 also contended that the suit
schedule property was belonging to Ramaiah, that during his
life time he along with his brother and children sold the suit
schedule property in favour of defendant No.19, through
General Power of Attorney holder namely defendant No.18,
that the said Ramaiah was the absolute owner of the suit
schedule property, that plaintiffs are not entitled to any share
in the suit schedule property, that the contention taken by
the plaintiffs that the suit schedule property was granted in
favour of the father of plaintiff Nos.1 and 2 and grandfather of
plaintiff Nos.3 and 4 namely Juttiga is false.
14. On the basis of the specific pleadings of the parties the
parties to the suit have adduced evidence. The plaintiff No.4
examined himself as PW1. He has also got a witness
examined as PW.2 and also got 16 documents as Ex.P.1 to.
O.S.NO.11229/2006
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Ex.P.16. Ex.P.1 is the Genealogical tree relating to the family
of plaintiffs and defendant Nos.1 to 17. Ex.P.2 is also the
Genealogical tree. Ex.P.3 is the copy of the grant order in case
NO.HOA(S) 197/68-69 dated 5.11.1971 Ex.P.4 to P.8 are the
certified copies of the RTCs pertaining to the suit schedule
property. Ex.P.9 to P.11 are the extract of mutation register,
survey tippani and settlement Akarbandh. Ex.P.12 is the
copy of the General Power of Attorney executed by deceased
Ramaiah, his children and brother in favour of defendant
No.18, dated 8.3.1995. Ex.P.13 is the sale deed executed by
General Power of Attorney holder of Ramaiah and others in
favour of defendant No.19 dated 24.3.1998. Ex.P.14 is the
Deed of indemnity dated 27.3.2007. Ex.P.15 is the certified
copy of the sale deed dated 5.5.2003 and Ex.P.16 is the
certified copy of the Confirmation Deed and Consent Deed
dated 12.7.2006 executed by Narayanamma and others in
favour of defendant No.21.
15. The learned counsel for the defendant No.22 subjected
the PW.1 for cross-examination. PW.1 is the grandson of the
so called prepositus of the family namely Juttiga. The
O.S.NO.11229/2006
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learned counsel for defendant No.22 throughly cross-
examined PW.1 regarding the regrant of the property granted
in the year 1971. However, PW.1 has pleaded ignorance on
the suggestions posed by the learned counsel for defendant
No.22. PW.1 pleaded ignorance regarding the regrant of the
property also. PW.1 has not deposed anything except the
plaint averments and the contentions taken in the
examination-in-chief. Ex.P.3 is the Regrant order. Though the
plaintiffs in the plaint have pleaded that the land in question
was acquired by late Juttiga vide Grant Order bearing
No.HOA(S) 197/68-69 dated 5.11.1971, the Ex.P.3 speaks
otherwise. As seen from Ex.P.3 the grant order, the property
in Sy.No.100 and 63 had been granted in the name of
Ramaiah the grandson of Juttiga. There is no mention of
the name of Sri Juttiga in the Grant Order. Therefore, the
very assertion of the plaintiffs in the plaint, on the face of it
are false.
16. The plaintiffs have also contended in para No.5 of the
plaint that they along with defendant Nos.1 to 17 were in
joint possession and enjoyment of the suit schedule property
O.S.NO.11229/2006
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as members of the joint family property as on the date of
filing of the suit. They have also contended in para No.5 that
ever since the demise of the said Juttiga and till the date of
filing of the suit, the joint Hindu family members have been
cultivating the said properties by growing food grains and
also variety of trees. But the documents produced on behalf
of the defendants speak otherwise. In the year 1998 itself
Ramaiah and his children along with his brother sold the suit
schedule property in favour of defendant No.19 through their
General Power of Attorney holder defendant No.18 on the
basis of the registered General Power of Attorney dated
8.3.1995. The documents produced on behalf of defendants
falsifies the contention taken by the plaintiffs in the plaint.
17. Further the learned counsel for the plaintiffs
vehemently argued that though the property is granted in
favour of Ramaiah it is granted for and on behalf of his family
as his grandfather was cultivating the suit schedule property
and the plaintiffs are also equally entitled to share in the suit
schedule property. On the contrary, the learned counsel for
the defendant No.22 submitted that there is no iota of
O.S.NO.11229/2006
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evidence to show that Juttiga was cultivating the suit
schedule property and it was belonging to him. The learned
counsel for the defendant No.22 has also submitted that as
can be seen from Ex.P.3 i.e. the order of grant, the suit
property was granted in favour of Sri Ramaiah in his
individual capacity and under the circumstances, the regour
of Section 5 of Village Officers Abolition Act of 1961 cannot be
called into consultation in the facts and circumstances of the
case in as much as there is no material available either in
the pleadings or in the evidence to establish that the family
was united as joint Hindu family either at the time grant was
made or at the time the first sale deed was executed on
24.3.1998 as per Ex.P.13, therefore, the existence of joint
family status at the relevant point of time neither pleaded nor
established and the plaintiffs have failed to discharge the
burden of proof cast on them to establish the joint status,
they cannot rely on Section 5 of the said Act.
18. As contended by the learned counsel for the defendant
No.22 it is clear that there is no specific pleadings in the
plaint the plaintiffs and defendant Nos.1 to 17 at which point
O.S.NO.11229/2006
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of time enjoyed the property as joint Hindu family members
and also there is no document to show that the property is
granted on behalf of the joint Hindu family as per Ex.P.3.
Therefore, it is the considered view of this court that as per
the recital of Ex.P.3, the property was granted to Sri Ramaiah
in his individual capacity, that the land in question became a
separate estate and self acquired property of Ramaiah and
the order not showing that the grant so made was intended to
be made in favour of the joint family.
19. The learned counsel for the defendant No.22 in support
of his arguments has also relied on the decision reported in
ILR 2014 Kar. Page 4491, in the case of Thimmanna and
others Vs Smt.Doddamma and another, wherein the following
observations are made:-
2f)Their specific contention is, the properties
described in item Nos. 1, 3, 4 and 5 of the schedule
were the self-acquired properties of Thimmappa by
virtue of the re-grant Order dated 1.1.1965 passed
by the Special Deputy Commissioner, Inam
Abolition, Bangalore, and in pursuance thereto, all
revenue records were mutated in the name of
Thimmappa and he continued to enjoy the schedule
properties as the absolute owner. After his demise,
defendants 1 to 7 as his successors, have been
enjoying the properties in question.
O.S.NO.11229/2006
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18. As regards item Nos. 1, 3, 4 and 5 of the
schedule are concerned, the order passed by
the Special Deputy Commissioner dated
1.1.1965 is produced as Ex. D1 and D2 and it
is a clincher to show it was an individual grant
in favour of Thimmappa, predecessor in title of
the appellants and from the date of grant till
filing of the suit, revenue records also stand in
his name.
19....... AIR 1954 S.C. 379 wherein the Apex
Court opined 'Where there is assertion by one
that the subject matter of adjudication is joint
family property and denial by the other who
sets up title in himself/herself, primarily proof
of existence of joint family does not lead to a
presumption that the property held by any
member of the family is joint and the burden
rests on the person who asserts that any item
of the property was joint, to establish the fact.
20. What clearly emerges from the decision is,
there is always primary burden on the one who
asserts that the property which is the subject
matter of acquisition is either joint family
property or acquired from the estate as source
but mere living in joint family as HUF does not
lead to an inference that the property is always
joint family property.
22. Since in 1965, Buddappa was not alive
and Junjappa is said to have left the joint family, it
lends credence to the contention of the appellants
that Thimmappa was the owner and being
applicant for re-grant based on his personal
cultivation, it resulted in grant in his favour.
23. From the undisputed facts and the situation
that was prevalent in the families of the
plaintiff and defendants as in the year 1965, it
could be seen that Thimmappa had applied to
the Special Deputy Commissioner for re-grant of
O.S.NO.11229/2006
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land under the provisions of the Karnataka
(Personal and Miscellaneous) Inams Abolition
Act and had submitted application vide Ex.
D14. He had spelled out in Ex. D14 that he was
in cultivation of lands described in item Nos. 1,
3, 4 and 5 for over 50 years and thus sought
for re-grant. The Special Deputy Commissioner
who is the prescribed officer under the Act has
registered the application and after due
enquiry, re-granted unto him. Plaintiff could not
dispute the fact that except Thimmappa, neither
her father-Thayappa nor uncle-Junjappa had
filed any application or disputed the claim of
Thimmappa.
24. The proceedings before the Special Deputy
Commissioner are of the year 1965. It is a
settled position of law that by operation of the
provisions of the Inams Abolition Act, the lands
on abolition of Inams vested in the State. It
could only be re-granted on satisfaction that the
applicant was cultivating the land by virtue of
the earlier Inam. The order of re-grant in favour
of Thimmappa is preceded by enquiry in which
it is revealed that being cultivator, he was
paying land revenue. The statutory officer has
granted the land in his name individually and
therefore even if there was any subsisting
right, title and interest by virtue or the order
under Sections 5 and 6 of the said Act, all
earlier rights of the parties dissipated and the
grantee gets absolute right. Of course the order
is amenable to challenge by the affected
persons. In the instant case, neither plaintiff
nor her uncle-Junjappa had questioned the
order of re-grant in favour of Thimmappa till
1987. Even if we give margin to the plaintiff as
she could not have challenged it, there is no
explanation why her father-Thayappa had not
questioned the said order and even after his
demise 10 years prior to the filing of the suit,
O.S.NO.11229/2006
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plaintiff did not take any action. All these
factors make it abundantly clear that non-
challenge of the order of re-grant gives finality
to it and it cannot be questioned in a civil suit.
25. In fact, the decision of this Court in the case
of Stump Schedule and Somappa Pvt. Ltd. v.
S.M Chandrappa10, and the decision of the
Apex Court in the case of Pushpagir Math Vs
Akopparaju Veerabhadra Rao reported in
Judgment Today MANU/SC/0567/1996 :
1996(5) S.C. 590, are binding precedents on
this point and supports the view that the grant
in favour of Thimmappa has to be construed
only as an individual grant and not in favour of
the joint family.
26. In view of the discussion as above, I am
satisfied the finding of the Trial Court and the
Appellate Court treating the properties
described in the schedule as joint family
properties can hardly be sustained and as both
the Courts have failed to record a finding
regarding existence of joint family status
between the plaintiff and defendants, the first
substantial question of law is answered in
favour of the appellants against and
respondents.
27. Similarly the reasoning assigned by the
Learned Trial Judge and Appellate Judge does
not justify the conclusion that the properties are
to be held as joint family properties in the
absence of plaintiff discharging the burden of
proof which is cast on her. Consequently the
second substantial question of law is also
answered in favour of the appellants and
against the respondents.
O.S.NO.11229/2006
25
28. While arriving at the above said conclusion,
I have kept in mind the case laws cited by the
Learned Senior Counsel, Mr. Srivatsa and
various decisions cited by Mr. G.L Vishwanath.
The legal proposition emerging from all the
decisions is, even if it is shown that the parties
to the suit were members of the joint family
living in coparcenery, there is no presumption
that the properties owned individually by
coparceners are also to be treated as joint
family properties unless material proof is laid,
firstly about existence of nucleus of joint family
sufficient to generate funds for acquisition of
properties by individuals and secondly, that
the properties were purchased in the name of
one of the coparceners for and on behalf of the
joint family. In short, merely living together in
joint family leads to no presumption that the
property acquired individually by coparceners
or properties purchased in the name of
individual coparceners are joint family
properties.
20. The learned counsel for the defendant No.22 has also
submitted that the findings of Hon'ble High Court have
neither been disturbed or dislodged by the Hon'ble Supreme
Court and the finding given by the Hon'ble High Court was
merged with the order dated 26.3.2018 passed by the
Hon'ble Supreme Court in the case of Smt.Doddamma Vs
Thimma & others.
O.S.NO.11229/2006
26
21. The learned counsel for the defendant No.22 has also
relied on the decision of Hon'ble High Court of Karnataka in
R.F.A.NO.683/20003, in the case of S.P.Subba Rao Vs
M.Lakshmana Rao & others and submitted that the grant of
land in favour of one member of the joint family cannot be
held to have enured to the benefit of th joint family. In the
said decision the Hon'ble High Court has made the following
observations:
13.........To support his argument, he further
relied on Ex.D1, the Grant Certificate (Darkast)
granting suit item No.1. Any grant made even
in favour of a member of joint family, it
becomes his separate property unless it is
shown that the grant was intended on behalf
of the joint family. Even if the grantee is a
Kartha of the joint family, such grant in favour
of the Kartha will not became joint family
property, it will be his separate property unless
it is shown that the grant was intended in
favour of joint family.
25. Suit item No.1 is a Darkhast land granted
in favour of Panduranga Rao as per Ex.D1. It is
not in dispute that, grant is made in favour of
Panduranga Rao on upset price. Under Article
228 of the Hindu Law, grant of property by
Government to a member of the joint family is a
separate property of the grantee unless it
appears from the grant that it is intended for
the benefit of the family. Ex.D1 does not refer
that the grant was intended in favour of the
joint family, but it specifically states that, the
O.S.NO.11229/2006
27
land was granted in favour of S.B.Panduranga
Rao, son of Buddojappa. He had acquired this
property in a public auction on payment of
upset price. By virtue of this grant,
presumption arises in favour of Panduranga
Rao that it was his separate property. To rebut
the same, plaintiffs were required to prove that
it was intended for the benefit or on behalf of
the family. Though law requires that grant
itself must show that, it was intended for the
joint family, even otherwise to hold that,
Panduranga Rao paid the upset price out of
joint income, the plaintiffs were required to
show that there was a joint income in 1950-51.
30..............It is settled law that, even in case of
joint family or coparcenery, any property
granted in favour of one of the coparcener or
even in favour of the Kartha, it would become
his separate property unless it is shown from
the grant itself that it was intended to be for
the joint family. Ex.D1 is the grant made in
favour of Panduranga Rao, the said grant is
made in favour of Panduranga Rao alone,
there is nothing to suggest that, it was
intended to be granted in favour of the joint
family. Once it is individual grant, it becomes
the separate property of the grantee. Just
because Mallaiah Rao also joined the sale
deed ExP11, wherein a portion of land granted
to Panduranga Rao was sold, the grant or the
said property will not become property of
both......
32. As far as suit item No.1 is concerned, law
itself makes it clear that, it is a grant in
individual capacity and there is no evidence
that it is intended in favour of joint family.
O.S.NO.11229/2006
28
33. The trial court misreading the evidence has
held the suit item Nos.1 and 2 as joint family
property without looking into the relevant
provisions, without even looking into the
evidence and without even looking into the
proposition of law as laid down by this Court
and this Apex Court. Hence, those findings
being perverse, contrary to law and the
evidence, are required to be set aside.
21. In view of the observations made by the Hon'ble High
Court and also in the absence of legally acceptable
documentary evidence on behalf of the plaintiffs to show that
the property was granted for and on behalf of the joint family
in the name of Juttiga, the contention of the plaintiffs cannot
be accepted. On the other hand, defendant No.22 is able to
establish that the property is granted in the individual name
of Ramaiah. Therefore, issue No.1 is answered in the
Negative and issue No.2 is answered in the Affirmative.
22. Addl.issue No.1:- The defendant No.22 in his
written statement has also taken the specific contention that
the suit is bad for partial partition. As seen from Ex.P.3,
admittedly two pieces of property in Sy.No.100 and Sy.No. 63
had been granted in favour of Ramaiah. However, as seen
from the schedule of the plaint, the plaintiffs have sought for
O.S.NO.11229/2006
29
partition only in respect of the property in Sy.No. 100. There
is no explanation by the plaintiffs as to why they have left the
other property granted under Ex.P.3 to include in the suit.
The learned counsel for the defendant No.22 has also cross-
examined PW.1 on this aspect. Inspite of that, the plaintiffs
have not ventured to include the said property in the plaint
schedule. The learned counsel for the defendant No.22
submitted that the suit is bad for partial partition and in
support of his arguments, the learned counsel has also relied
on the decision reported Kenchgowda Vs Siddegowda,
reported in (1994) 4 S.C.C. 294 the Hon'ble Hon'ble High
Court of Karnataka by relying on the said decision in the case
of M.Lakshman Goud Vs M.Narasan Goud and 4 others in
R.F.ANO.9131/2010 has held that a suit for partial partition
is not maintainable and deserves to be dismissed on that
ground alone. It is not that the plaintiffs did not know about
the grant of the property in Sy.No. 63 along with the property
in Sy.No. 100 as per the Grant order. Moreover, the
defendant No.22 in his written statement has taken the
specific contention that the suit is bad for partial partition for
non inclusion of property in Sy.No. 63. When such being the
O.S.NO.11229/2006
30
case, the plaintiffs had ample opportunity to include the said
property, but for the reasons best known to them, they have
not included the said property in the schedule of the plaint.
Therefore, it is the considered view of this court that as
contended by defendant No.22 the suit of the plaintiff is bad
for partial partition. Accordingly, this issue is answered in
the Affirmative.
23. Addl.Issue No.2:- As seen from the cause of action
in the plaint, the cause of action for the suit arose on
4.12.2006 when the defendant Nos.1, 2 5 6 refused to effect
partition and the defendant No.19 was trying to alienate the
suit schedule property in favour of third party. The learned
counsel for the defendant No.22 submitted that on the plain
reading of the cause of action paragraph, it is clear that the
plaintiffs had knowledge that the suit schedule property had
already been sold to defendant No.19, that under Section 3 of
the Transfer of Property Act the word 'registered' is explained.
Explanation 1 to the said word it is explained that where any
transaction relating to immovable property is required by law
to be and has been effected by a registered instrument, any
O.S.NO.11229/2006
31
person acquiring such property or any part of, or share or
interest in, such property shall be deemed to have notice of
such instrument as from the date of registration or, where the
property is not at all situate in one sub-district or where the
registered instrument has been registered under Sub-Section
(2) of Section 30 of Indian Registration Act, 1908, from the
earliest date on which any memorandum of such registered
instrument has been filed by any Sub-Registrar within whose
sub-district any part of the property which is being acquired, or
of the property wherein a share or interest is being, acquired is
situated.
24. On plain reading of the definition of 'registered' defined
under T.P.Act, it is clear that the registration of document is
nothing but giving public notice of registration of document.
The plaintiffs are claiming that they are the joint family
members including Ramaiah. Therefore, they might have the
knowledge of registration of sale deed in favour of defendant
No.19 in the year 1998. This suit is filed on 22.12.2006.
Admittedly, the plaintiffs are Hindus, governed under Hindu
Succession Act. In this suit, the plaintiffs challenged the
O.S.NO.11229/2006
32
General Power of Attorney dated 8.3.1995 and sale deed
dated 24.3.1998, and the plaintiffs have also sought for
partition in the suit schedule property by contending that
they are also the members of undivided Hindu joint family.
Therefore, this suit is governed under Article 110 of the
Limitation Act. Article 110 of Limitation Act reads under:
By a person excluded 12 years When the exclusion
from a joint family becomes known to
property to enforce a the plaintiff
right to share therein
The plaintiffs ought to have brought this suit within 12
years from the date of General Power of Attorney dated
8.3.1995 and admittedly, the plaintiffs have filed this suit
within 12 years from the date 8.3.1995. Hence, the
arguments advanced by the learned counsel for the defendant
No.22 cannot be accepted and the suit of the plaintiffs is
within time. Accordingly, Addl.Issue No.2 is answered in the
Negative.
25. Issue No.3:- The defendant No.22 in his written
statement has taken the contention that the plaintiffs have
not properly valued the suit schedule property and court fee
O.S.NO.11229/2006
33
paid is insufficient. In view of the defence taken by defendant
No.22, this issue got framed. If at all the plaintiffs have
established before the court that as on the date of suit they
were in joint possession of the suit schedule property, then
the matter would have been different. However, in the present
suit though the plaintiffs in the plaint have specifically
contended that they along with defendant Nos.1 to 17 are in
joint possession and enjoyment of the suit schedule property
as members of joint family, the learned counsel for the
defendant No.22 drawn the attention of this court to the
evidence of PW.1. In the cross-examination it has been
elicited from PW.1 that in Sy.No.100 there is huge apartment,
that the said building is in the name of defendant No.22, that
the said apartment had been constructed by defendant No.22,
that at the time of filing of the suit, the construction work of
apartment was going on, that prior to filing of the suit they
had commenced work of construction, This part of evidence of
PW.1 is the clear admission by him that as on the date of suit
the defendant NO.22 was in possession of the suit schedule
property and they had the knowledge that they are not in
joint possession of the property as pleaded in the plaint. By
O.S.NO.11229/2006
34
enlightening the court on the admission of PW.1, learned
counsel for the defendant No.22 specifically contended that
the plaintiffs ought to have paid court fee under Section 35
(1) of the Karnataka Court Fees and Suits Valuation Act. In
support of the contention learned counsel, learned counsel
has also relied on the decision reported in 2001 AIR (Kar)
page 384, in the case of B.S.Malleshappa Vs Koratagere
B.Shvialingappa, wherein it is held as under:-
If the plaintiff claims that he is in joint
possession of a property and seeks partition
separate possession, he categories the suit
under S.35(2) fo the Act. He is , therefore, liable
to pay court fee only under S.35(2). If on
evidence, temporary injunction is found that he
was not in joint possession, the consequence is
that the relief may be refused in regard to such
property or the suit may be dismissed. But the
question of court treating the suit as one falling
under S.35(1) of the Act and directing the
plaintiff to pay the court fee under S.35(1) of
the Act does not arise. Even after written
statement and evidence, (which may
demonstrate absence of possession or joint
possession) if the plaintiff chooses not to
amend the plaint to bring the suit under S.35(1)
and pay court fee applicable under S.35 (1) and
pay court fee applicable thereto, he takes the
chance of suit getting dismissed or relief being
denied.
On appreciation of evidence, if the court
disbelieves the claim of plaintiff regrading joint
possession, it can only hold that the case does
O.S.NO.11229/2006
35
not fall under S.35(2) and, therefore, plaintiff is
not entitled to relief. It cannot. In the judgment
hold that the case of plaintiff should be
categorized under S.35(1) nor direct the plaintiff
to pay court fee on market value under S.35(1)
of the Act.
In view of the aforesaid observation of Hon'ble High
Court as this court is of the considered view that, as on the
date of suit the plaintiffs were not in joint possession of the
suit schedule property. Therefore, the plaintiffs are liable to
pay court fee under Section 35(1) of Karnataka Court Fees
and Suits Valuation Act on the basis of the actual market
value of property and since the plaintiffs have not paid
sufficient court fee on the basis of the actual market value,
inspite of framing of issue regarding the court fee, now the
plaintiffs are liable to pay the court fee under Section 35(1) of
Karnataka Court Fees and Suits Valuation Act. Accordingly,
issue No.3 is answered in the Affirmative.
26. Issue No.4 & 5:- Since these issues require
common discussion, these issues are taken up together for
discussion. The plaintiffs failed to establish that the regrant
order dated 5.11.1971 vide Ex.P.3 granted in the name of
Juttiga. On the other hand, on the face of the document
O.S.NO.11229/2006
36
itself, the said grant order is passed in the name of Ramaiah.
Since he had filed application under the provisions of 1961.
As this court has already observed above on the basis of the
decisions relied on by the counsel for defendant No.22, the
court has to consider that in whose name the grant order is
passed, the court has to hold that the grant is made in the
individual name of said person. In view of the grant order,
the property was the self acquired property of late Ramaiah.
Admittedly, the plaintiffs or the other members of the family
have not challenged the said grant order. Therefore, the said
order of grant has become a fait accompli. Therefore, it is the
considered view of this court that without challenging the
said order, the plaintiffs cannot claim right over the suit
schedule property. The grantee namely Ramaiah with his
absolute right over the suit schedule property executed
General Power of Attorney in favour of defendant NO.18 on
8.3.1995 along with his children and his brother defendant
No.6. The defendants 2 to 6 and 10 though filed written
statement, have not appeared before the court and challenged
the General Power of Attorney executed in favour of
defendant No.18 dated 8.3.1995. Therefore, the plaintiffs
O.S.NO.11229/2006
37
have no locus standi to contend that the General Power of
Attorney executed by Ramaiah and others in favour of
defendant No.18 is without valid title over the suit schedule
property. It is also evident from the records that on the
strength of General Power of Attorney in favour of defendant
NO.18 he executed registered sale deed in favour of defendant
No.19 on 24.3.1998 in respect of the suit schedule property,
that defendant No.19 subsequently got changed the khata of
the suit schedule property in his name and it is clear that as
absolute owner of the suit schedule property, defendant
No.19 executed Power of attorney in favour of defendant
No.20 on 2.5.2000 as per Ex.P.6 and Ramaiah and others
have also executed Rectification deed in respect of the suit
schedule property as per Ex.D.7 dated 9.6.2000, that
defendant No.19 after getting the property converted into
non-agricultural property he sold the property in favour of
defendant No.21 under the registered sale deed dated
5.5.2003 and after purchasing the suit schedule property had
also issued public notice in the newspaper dated 19.8.2005.
The other sharers have also executed Deed of Confirmation
and consent to defendant Nos.21 and as admitted by PW.1
O.S.NO.11229/2006
38
prior to filing of the suit, the defendant No.22 had started
construction of building the suit schedule property.
Therefore, it is the considered view of this court that as the
plaintiffs have no right over the suit schedule property, it
cannot be held that the General Power of Attorney dated
8.3.1995 and sale deed dated 24.3.1998 are not binding on
them.
27. The learned counsel for the defendant No.22 has also
relied on Section 6 of Hindu Succession Act and submitted
that the plaintiffs cannot seek shelter under Section 6 of the
Hindu Succession Act. However, since this suit is filed by the
daughters of late Juttiga, the plaintiff Nos.1 and 2, though
they claimed that the suit schedule property is ancestral
property, in view of their own contention, it cannot be
considered as ancestral property. If at all it was granted in
the name of Juttiga, it would have been his self acquired
property. In that case his children cannot claim share under
Section 6 of the Hindu Succession Act and Section 8 of Hindu
Succession Act will come into play. For that reason, the
arguments advanced on behalf of defendant No.22 cannot be
O.S.NO.11229/2006
39
accepted. The deceased Ramaiah being the absolute owner
of the suit schedule property had executed those documents
in favour of defendant Nos.18 and 19. Since the plaintiffs
have no right, title and interest, in the suit schedule property,
they are not entitled to any share in the suit schedule
property. The learned counsel for the defendant No.22 has
also argued that the plaintiffs knowing fully well that they
have no right over the suit schedule property, have filed this
suit with an ulterior intention to extract money from the
purchasers of the suit schedule property. It is true that, as
contended by the learned counsel for the defendant No.22,
the plaintiffs have filed this suit without any legally
acceptable document showing their right over the suit
schedule property only to harass the defendant No.22. Hence,
the suit is liable to be dismissed with costs. Accordingly,
issue Nos. 4 and 5 are answered in the Negative.
28. Issue No.6: In view of the discussions made above and
findings given on Issue Nos.1 to 5 and Addl.issue No.1 and 2,
this Court proceed to pass the following:
O.S.NO.11229/2006
40
ORDER
The suit filed by the plaintiffs is hereby dismissed with costs.
Draw decree only if the plaintiffs paid court fee on the basis of the market value of the suit schedule property.
(Dictated to the Judgment Writer directly on computer, corrected and then pronounced in the open court on this the 17th day of March, 2020).
(Latha) XLIV Addl. City Civil & Sessions Judge, Bengaluru.
A NN EX U R E List of witnesses examined for Plaintiff:
P.W.1 Thimmarayappa PW.2 Krishnappa
List of witnesses examined for Defendant:
DW.1 Keshavamurthy List of documents marked for the Plaintiff : Ex.P.1 & P.2 Genealogical Trees Ex.P.3 Order passed by Asst. commissioner Ex.P.4 to P.8 RTC extracts Ex.P.9 to P.11 M.R.Register extract, Hissa survey
Tippani and Settlement Akarband Ex.P.12 GPA Ex.P.13 Certified copy of the sale deed Ex.P.14 Certified copy of the indemnity bond Ex.P.15 Certified copy of the sale deed dated 5.5.2003 O.S.NO.11229/2006 41 Ex.P.16 Deed of Confirmation and Consent List of documents marked for the Defendant :
Ex.D.1 Authorization letter dated 7/11/2017 Ex.D.2 Certified copy of the mutation register reflecting the name of Sri. Ramaiah Ex.D.3 Certified copy of the GPA dated 8/3/1995 Ex.D.4 Certified copy of the sale deed dated 24/3/1998 Ex.D.5 Copy of the mutation register extract Ex.D.6 Certified copy of the GPA dated 2/5/2000 Ex.D.7 Certified copy of the rectification deed dated 9/6/2000 Ex.D.8 Certified copy of the official memorandum dated 4/12/2002 Ex.D.9 Certified copy of the sale deed dated 5/5/2003 Ex.D.10 Certified copy of the confirmation and consent deed dated 19/1/2006 Ex.D.11 to D.14 Certified copies of four confirmation deeds dated 6/6/2006, 12/7/2006 and 2/6/2006 Ex.D.15 Certified copy of the sale deed dated 14/9/2006 Ex.D.16 Certified copy of the RTC of Survey No.90/4 of Bellandur Village Ex.D.17 Certified copy of RTC Survey No.100/4 of Bellandur Village.
Ex.D.18 Certified copy of order dated 5/11/1971 in the proceedings HOA(S)197/68-69.
XLIV Addl. City Civil & Sessions Judge, Bengaluru.
O.S.NO.11229/2006 42