Bangalore District Court
Smt.G.Kanthamani vs Sri.N.S.Ganganna on 3 January, 2017
IN THE COURT OF THE 42nd ADDL. CITY CIVIL & SESSIONS
JUDGE AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.BAILUR SHANKAR RAMA,
B.Sc., M.A., LL.B.(Spl),
nd
42 ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 3rd day of January 2017.
O.S.No.7882/2010 c/w. O.S.No.6195/2010
IN O.S.No.7882/2010
Plaintiffs:- 1. Smt.G.Kanthamani,
W/o.Sri.K.Shivaramu,
Aged about 52 years,
R/at No.4/53, 1st Main,
2nd Cross, "Manuvana",
Vijayanagar,
Bangalore-560 040.
2. Smt.G.Pushpavathi,
W/o.Sri.Manjegowda,
Aged about 46 years,
No.127, 4th Main Road,
Chandana Layout,
Srigandhadakavalu,
Sunkadakatte,
Bangalore-560 091.
(By - Sri.V.B.Shivakumar, Adv.)
v.
2 O.S.No.7882/2010
c/w
O.S.No.6195/2010
Defendants:- 1. Sri.N.S.Ganganna,
S/o.Late Nanjundaiah,
Aged about 76 years,
Lions Surabi Old Age Homes,
No.66, 3rd Cross,
Sagar Layout,
Devarachikkanahalli,
Bangalore -560 076.
2. Smt.Kempamma,
W/o.Sri.N.S.Ganganna,
Aged about 66 years,
No.51, 12th Cross,
Ideal Homes Township,
Rajarajeshwarinagar,
Bangalore.
3. Smt.G.Leelavathi,
W/o.Sri.Prakash,
Aged about 44 years,
R/at No.51, 12th Cross,
Ideal Homes Township,
Rajarajeshwarinagar,
Bangalore.
(D1 -By Sri.D.R.Rajashekarappa, Adv.
D2 & D3 - by Sri.M.Byregowda, Adv.)
Date of institution of the suit : 12.11.2010
Nature of the suit : Partition & Injunction
Date of commencement of : 17.07.2013
Recording of the evidence
Date on which the Judgment : 03.01.2017
was pronounced
Total Duration : Years Months Days
06 01 21
3 O.S.No.7882/2010
c/w
O.S.No.6195/2010
IN O.S.No.6195/2010
Plaintiff:- Sri.N.S.Ganganna,
S/o.Late Nanjundaiah,
Aged about 75 years,
R/at Lions Surabi Old Age Homes,
No.66, 3rd Cross, Sagar Layout,
Devarachikkanahalli,
Bangalore -560 076.
(By - Sri.Nagaraja.N., Adv.
v.
Defendant:- Sri.K.Shivaram,
S/o.Late Kempanna,
No.4/53, 2nd Cross,
1st A Main Road,
Manuvana, Vijayanagara,
Bangalore-560 040.
(By - Sri.V.B.Shivakumar, Adv.)
Date of institution of the suit : 01.09.2010
Nature of the suit : Declaration & Possession
Date of commencement of : 17.07.2013
Recording of the evidence
Date on which the Judgment : 03.01.2017
was pronounced
Total Duration : Years Months Days
06 04 02
(BAILUR SHANKAR RAMA)
nd
42 ADDL. CITY CIVIL & SESSIONS JUDGE,
Bengaluru.
4 O.S.No.7882/2010
c/w
O.S.No.6195/2010
JUDGMENT
The plaintiffs in O.S.No.7882/2010 have filed the suit for the relief of partition, perpetual injunction, determination of mesne profits and costs.
2. The brief facts as averred in the plaint are that:-
The defendant No.1 was the Kartha of Hindu Undivided Family. One Sri.Nanjundaiah, who was the propositus of the joint family, holding undivided joint family properties, which are agricultural lands, situated in Magadi Taluk, Marisomanahalli and Doddasomanahalli. The sisters of defendant No.1 - Sri.N.S.Ganganna namely Smt.Parvathamma and Smt.Gowramma died. The plaintiffs and defendant No.3 are the daughters of Sri.N.S.Ganganna, he had one son - Sri.Keshava Murthy, who died in the year 1974. The defendant No.2 is the wife of Sri.N.S.Ganganna. Thus, plaintiffs and defendants constitute Hindu Undivided Joint Family and the plaintiffs are having share in it. It is submitted that defendant No.1 was stated to be working as a Primary School Teacher, who had no source of income except the meagre salary. It was not possible for him to 5 O.S.No.7882/2010 c/w O.S.No.6195/2010 pay sale consideration to purchase any of immovable properties much less sites in Bangalore. The defendant No.1 has sold joint family properties and sale proceeds have been invested in purchase of Schedule-B, C and D properties, which are residential sites. Therefore, as Schedule-B, C and D properties were purchased by utilizing joint family nucleus, the plaintiffs being female coparceners had right in respect of schedule properties. It is submitted that the husband of plaintiff No.1, who had been permitted to develop the property by borrowing loan, accordingly as he was working as a State Government Employee borrowed loan and undertook construction, got telephone and other amenities provided in the properties. He has spent huge sum of money. The plaintiff No.2 and the defendants 2 and
3 agreed to transfer right, title and interest in respect of the properties as sharer in the name of plaintiff No.1. It is submitted that defendant No.1 has been showing a very different character by himself, instigated by some other persons, is trying to sell away the properties since he is having title. Schedule-D property has been alienated by him and part of sale proceeds have been deposited with the 6 O.S.No.7882/2010 c/w O.S.No.6195/2010 Dharmasthala Manjunatha Temple Trust and Mookambika Temple Trust, Udupi District. Because of his intention and attitude, the plaintiffs have been put to great difficulty. The plaintiffs submit that agricultural lands which are described as Schedule-A and immovable properties derived out of nucleus of Schedule-A property. Therefore, all the properties are the joint family properties. Once defendant No.1 gained the properties allotted by way of a share in a partition and there are surviving coparceners, who are born on the date when partition properties are allotted to the share of defendant No.1, as such defendant No.1 constituting branch of himself and his heirs upon himself representing the branch of his divided joint family, as such the properties are coparcenary joint family properties and each of the female heirs, who are born namely plaintiffs and defendant No.3 as on the date of suit had equal rights. As such, defendant No.1 had no independent right or individual right. When properties were allotted to the share of branch of defendant No.1, his deceased son - Sri.Keshava Murthy was also alive. Therefore, the alienations made by defendant No.1 in respect of Schedule-D property was not 7 O.S.No.7882/2010 c/w O.S.No.6195/2010 for the benefit of joint family, as such the said alienations are not binding on other members of the joint family. The defendant No.1 must have been got frustrated due to the death of his son - Sri.Keshava Murthy. The defendant No.1 cannot divest the properties for different purposes, depriving right, title and interest of the plaintiffs. Therefore, the plaintiffs submit that they called upon defendant No.1 to effect partition. However, defendant No.1 showed an attitude along with third party and decline to effect partition. Hence, the suit.
3. After the service of suit summons, defendant No.1 has appeared through his advocate -
Sri.D.R.Rajashekarappa and defendants 2 and 3 through their advocate - Sri.M.Byregowda and filed the written statements. The defendant No.1 admits the plaint genealogy, but denied the allegations that the plaintiffs and defendants constitute Hindu Undivided Joint Family and plaint schedule properties are coparcenary joint family properties and the plaintiffs are entitled to get their legitimate share in it. The defendant No.1 contends that there are no joint family and ancestral properties available 8 O.S.No.7882/2010 c/w O.S.No.6195/2010 for partition, hence suit is not maintainable. The marriages of the plaintiff Nos.1, 2 and defendant No.3 took place in the year 1979, 1989 and 1994 respectively and they are residing in their respective matrimonial houses along with their respective husbands. The defendant No.1 is the only male issue of his parents - late Sri.Nanjundaiah and Smt.Kenchamma. Suit Item Nos.1 to 8 in A-schedule are agricultural lands. Item Nos.1 to 3 are situated at Marisomanahalli, Magadi Taluk and Item Nos.4 to 8 are situated at Doddasomanahalli, Magadi Taluk. Therefore, defendant No.1 submits that suit Item Nos.1 to 3 of A- schedule were originally belonging to late Sri.Nanjundaiah, father of defendant No.1. Sri.Nanjundaiah sold above 3 items of the properties in favour of Sri.Archakara Ramanna of Kenchanahalli Village, Magadi Taluk. Therefore, mother of defendant No.1 and his maternal uncle - Sri.Kempahonnaiah, contributed the money and purchased properties at Item Nos.1 to 3 of A-schedule in the name of defendant No.1 and thus, defendant No.1 by virtue of Sale Deed in respect of 3 items executed by Sri.Archakara Ramanna, he became absolute exclusive owner of the 9 O.S.No.7882/2010 c/w O.S.No.6195/2010 properties at Item Nos.1 to 3 of A-schedule. Therefore, the contention of the plaintiffs that Item Nos.1 to 3 in A- schedule were stood in the name of their grand father - Sri.Nanjundaiah and it is their ancestral property is not correct and denied by defendant No.1. Suit Item Nos.4 to 8 in A-schedule were originally belonging to grand father of defendant No.1 i.e., late Sri.Muddurangaiah and from him, his son - Sri.Nanjundaiah, father of defendant No.1, inherited the said properties. After the death of Sri.Nanjundaiah, defendant No.1 being the coparcener of the family succeeded to these properties and became absolute owner of Suit Item Nos.4 to 8 of A-schedule. He submits that suit Item Nos.4 to 8 were sold in favour of Sri.Nanjundaiah S/o. Basavaiah of Doddasomanahalli Village of Magadi Taluk in the year 1975 by him. The consideration amount he had derived from the said Sale Deeds was utilized by him for performing the marriage of plaintiff No.1
- Smt.G.Kanthamani in the year 1979 and also to meet other family legal necessities. Thereafter, in the year 1989 defendant No.1 had performed the marriage of plaintiff No.2
- Smt.G.Pushpavathi and again in the year 1994 performed 10 O.S.No.7882/2010 c/w O.S.No.6195/2010 the marriage of defendant No.3 - Smt.G.Leelavathi. Therefore, defendant No.1 did not retain any money which he got by selling the properties at Item Nos.4 to 8 in A- schedule. The defendant No.1 further submits that property at Item No.3 in A-schedule which is the self acquired property of him, has been sold in favour of Sri.Patel Veerabalaiah of Doddasomanahalli in the year 1975. As Item No.3 of A-schedule property is the self acquired property of defendant No.1, the plaintiffs do not have any legal right to question his right to alienate the said property. He submits that the allegation that the plaintiffs, defendants 1 to 3 constitute coparceners of the joint family is specifically denied. As per the Hindu Succession Act, 1956, Amendment with effect from 09.09.2005, the alienations of the properties in Item Nos.4 to 8 in plaint A-schedule properties were taken place much prior to 20.12.2004 under Registered Sale Deeds in favour of Sri.Nanjundaiah S/o. Basavaiah, as such the plaintiffs have no right to question the said alienations and have no right to claim share in suit Item Nos.1 to 8 in A-schedule and also in Schedule-B, C and D properties. The defendant No.1 11 O.S.No.7882/2010 c/w O.S.No.6195/2010 admits that he had worked as a Primary School Teacher from the year 1958 and retired from service on 30.06.1993 after attaining the age of superannuation, but denied the allegation that he was drawing meagre income and had no sufficient source to purchase the properties i.e., sites at Bangalore namely Schedule-B, C and D properties. The allegation that amount earned from the alleged sale proceeds of Hindu Undivided Joint Family properties have been utilized in purchase of Schedule-B, C and D properties, as the joint family nucleus was utilized they are having share in the properties are specifically denied by defendant No.1. The allegation that husband of plaintiff No.1 had been permitted to develop C-schedule property and as he was a Government Servant by borrowing loan invested huge amount in developing the said property and undertook construction, provided facilities to it, plaintiffs and defendant No.1 had agreed to transfer right, title and interest in respect of C-schedule property in favour of him, are all false and denied by him. The defendant No.1 submits that Schedule-D property has been sold by him in the year 2003 and the said amount had been utilized for 12 O.S.No.7882/2010 c/w O.S.No.6195/2010 repayment of Housing Loan, which he had borrowed for construction of house on C-schedule property and part of amount has been deposited in Dharmasthala Manjunatha Temple Trust and Mookambika Temple Trust to satisfy his philanthropic commitments in memory of his deceased son
- Sri.Keshava Murthy. He had every right to sell his self acquired properties according to his choice and such acts done by defendant No.1 cannot be construed as squandering away the amounts as alleged by the plaintiffs. Schedule-B property is a residential premises, which was jointly purchased by defendant No.2 and one Sri.Chikkarangaiah @ Chittappa as per Registered Sale Deed dated 30.05.1963. As per Registered Sale Deed dated 16.05.1972 the above said Sri.Chikkarangaiah @ Chittappa has sold northern half portion of B-schedule property in favour of defendant No.1. The defendant No.2 had retained her southern half portion of B-schedule property. Therefore, defendants 1 and 2 become joint owners of B- schedule property. Therefore, neither the plaintiffs nor defendant No.3 have got any right or share over B-schedule property. The defendant No.1 submits that at the 13 O.S.No.7882/2010 c/w O.S.No.6195/2010 instigation of the plaintiffs, defendant No.2 had instituted O.S.No.6631/2009 before this court, seeking decree of temporary injunction in respect of Schedule-B and C properties against defendant No.1, same came to be decreed by judgment dated 07.03.2012, in respect of southern half portion of B-schedule property which is in peaceful possession and enjoyment of defendant No.2. The court has neither granted any relief in respect of northern half portion of B-schedule property or in respect of C- schedule property, as the court held that they are the self acquired properties of defendant No.1. The C-schedule house property was allotted in favour of defendant No.1 by Karnataka Housing Board in the 1977, which was a vacant site. The defendant No.1 being member of Malleshwaram Co-operative Bank had borrowed money for purchase of C- schedule property, which has been repaid by him only. The defendant No.1 had put up construction on C-schedule site by utilizing his own funds and also from borrowings, as such C-schedule property is his self acquired property. Under such circumstances, the contention of the plaintiffs that husband of plaintiff No.1 invested money for construction of 14 O.S.No.7882/2010 c/w O.S.No.6195/2010 house in C-schedule property is not correct and specifically denied by defendant No.1. As the husband of plaintiff No.1
- Sri.Shivaramu did not vacate C-schedule property, defendant No.1 had instituted suit against him at O.S.No.6195/2010, same is pending. As regards, suit D- schedule property which is vacant site, which was allotted in favour of defendant No.1 by Bangalore Development Authority in the year 1993, defendant No.1 did not put up any construction on the said site and sold vacant site in favour of third party during 2003 itself and the purchaser has put up construction and has been in possession and enjoyment of D-schedule property as its absolute and exclusive owner. Therefore, the plaintiffs have no right to claim share in D-schedule property. The claim of the plaintiffs that the plaintiffs and defendant No.3 are having equal share in all the schedule properties is specifically denied by defendant No.1 and allegation that defendant No.1 had alienated D-schedule property and portion of A- schedule property clandestinely and alienations are not for the benefit of joint family or legal necessity, is totally false. In fact, the plaintiffs do not have any right to claim share in 15 O.S.No.7882/2010 c/w O.S.No.6195/2010 the schedule properties. The plaintiffs have never approached defendant No.1 seeking partition and allegations made against defendant No.1 are specifically denied. There is no cause of action to file the suit. The plaintiffs do not have any right to claim share in the suit schedule properties and suit itself is not maintainable and prayed that suit be dismissed with costs.
4. Defendant No.2 - Smt.Kempamma is the wife defendant No.1, mother of plaintiffs and defendant No.3, filed written statement admitting the plaint genealogy. She contends that she has legally and lawfully succeeded to the estate of her beloved son - Sri.Keshava Murthy, who was born to defendant No.1 and being only son in the family. The said Sri.Keshava Murthy was born in the year 1963, marriage of defendant No.1 with defendant No.2 taken place in the year 1958. It is her say that, the plaintiffs and defendants constitute members of Hindu Undivided Joint Family and on the death of Sri.Keshava Murthy, she has succeeded to his estate as mother and Class I heir. The defendant No.1 was working as a Primary School Teacher. He has spent money along with his friends in Madappa 16 O.S.No.7882/2010 c/w O.S.No.6195/2010 Mess, having a luxury lunch and dinner, because of such habits he lost his health. He did not spend any money for the well being of the family and neglected them. The defendant No.2, plaintiffs and defendant No.3 were looking after the agricultural operations, maintaining the properties. The defendant No.2 herself got performed the marriages of all the three daughters. She submits that husband of plaintiff No.1 borrowed loan and assisted her in performing the marriages of plaintiff No.2 and defendant No.3. The defendant No.1 had executed Sale Deed in respect of joint family property on 07.05.1973 with an intention to purchase house property in Bangalore. The name of her son - Sri.Keshava Murthy is mentioned in the said Sale Deed. Thus, defendant No.1 received the sale consideration amount on behalf of the joint family. Another joint family property was sold on 22.04.1974 for the purpose of education of the children and purchasing the joint family properties at Bangalore. Thus, Schedule-B, C and D properties were purchased by utilizing the joint family nucleus, as such they are joint family properties. She also submits that defendant No.1 has also taken assistance of 17 O.S.No.7882/2010 c/w O.S.No.6195/2010 husband of plaintiff No.1 - Sri.Shivaramu, who was employed in a State Government as an Officer for the purpose of borrowing loan and constructed house in B- schedule. The defendant No.1 had not contributed any amount, as he was aged and retired, no bank or financial institution came forward to advance the loan. Therefore, husband of plaintiff No.1 had developed the property and discharged the loan. That is the reason, as defendant No.1 tried to eject them she has filed the suit for injunction. She submits that C-schedule property was alienated by defendant No.1 for unjustifiable purpose, that was not for the benefit of family members. Even he has filed divorce petition against her on false and baseless allegations. In fact, defendant No.2 had served him when he had fallen ill, defendant No.1 filed M.C.No.2852/2010 with an intention to harass her and successful in getting decree. The defendant No.2 filed MFA.No.3792/2014 before the Hon'ble High Court of Karnataka and obtained an interim order of stay of judgment granting decree of divorce, same is pending consideration. A false statement was made, inclusive of chastity of defendant No.2 at the age of 79 years. With the 18 O.S.No.7882/2010 c/w O.S.No.6195/2010 sole purpose of denying maintenance and property right as she had succeeded on the death of her son - Sri.Keshava Murthy, defendant No.1 had done all these overt acts. If decree for partition is not granted, the legitimate legal right accrued to her will be defeated. She and her 3 daughters being members of Hindu Undivided Joint Family and they are entitled to get their legitimate share in all the properties and prayed that suit be decreed by allotting share to her. She has paid court fee towards her share.
5. The defendant No.3 adopted the written statement filed by defendant No.2.
6. Plaintiff - Sri.N.S.Ganganna in O.S.No.6195/2010 has filed this suit against defendant - Sri.K.Shivaramu, to declare him as an absolute owner of schedule property and for vacant possession of basement floor and damages and costs.
7. The briefs facts as averred in the plaint are that:-
Karnataka Housing Board had provisionally allotted MIG House at Agarahara Dasarahalli, II Stage Extension, Bangalore, in favour of the plaintiff subject to deposit of 19 O.S.No.7882/2010 c/w O.S.No.6195/2010 Rs.13,000/-. The plaintiff could not pay the said amount in one lumpsum, that is the reason KHB have cancelled the provisional allotment by its Order dated 09.03.1981. The plaintiff preferred Writ Petition No.1961/1984 on the file of Hon'ble High Court of Karnataka, for direction to allot alternative house formed in Vijayanagara and also obtained interim order dated 23.09.1985. The W.P. came to be allowed. Even thereafter they did not allot the plot, again he has filed CCC No.436/1981 before the Hon'ble High Court of Karnataka for disobedience of the Order. In the said contempt proceedings, compromise was arrived at and KHB have agreed to allot open residential site for total consideration of Rs.42,000/- dated 09.11.1990. Accordingly, allotment was made to him and Corporation City of Bangalore, issued special notice dated 07.08.1996 effected katha in favour of the plaintiff, as such the plaintiff is the absolute owner of the schedule property and has been making payment of kandayam in respect of suit schedule property. As the site was with full of rocks, by spending huge amount he had removed and extracted rocks and granites. By selling the granites and rocks thus extracted 20 O.S.No.7882/2010 c/w O.S.No.6195/2010 from the site, he was able to get Rs.2,00,000/-. The plaintiff is a retired teacher, by utilizing his retirement benefits he started construction of cellar portion, consisting of 13 pillars, sump, storage water tank and borewell. The defendant, who is his son-in-law, approached the plaintiff for lease of cellar floor to use it as a godown for storing electroplating materials. Accordingly, the plaintiff leased the same on security deposit of Rs.50,000/- and on monthly rent of Rs.8,000/- for 11 months. The plaintiff could not complete the basement floor even though he had borrowed loan from two of his best friends namely Sri.K.V.Nagaraj and Sri.Jayaramaiah. When construction of basement floor is in progress, he has applied to KHB for permission to mortgage the site in favour of Malleshwaram Co-operative Bank, Malleshwaram, Bangalore-3, accordingly permission was accorded. He has borrowed loan of Rs.2,93,000/- from the Bank by mortgage of Deposit of Title Deeds dated 03.07.1998. The plaintiff submits that the defendant, who took cellar floor on lease, has sublet the same to one Mohammedan person against the express terms in the Lease Deed. Thereafter, he has rectified and discharged the 21 O.S.No.7882/2010 c/w O.S.No.6195/2010 loan borrowed from Malleshwaram Co-operative Bank and obtained registered shara of discharge dated 07.10.2008 executed by Malleshwaram Co-operative Bank. The defendant, who was working as Horticulture Officer at Tumkur, requested the plaintiff to accommodate in the newly constructed house due to transfer from Tumkur to Bangalore as the plaintiff was having house at Magadi Road and site at Kalyana Nagar, wanted to bequeath each properties to his daughters. Accordingly, in the year 1997 he had executed a Will, bequeathing the properties to his daughter out of love and affection. Later on, he had cancelled the Will in favour of Smt.G.Kanthamani, wife of defendant by Revocation Deed dated 26.11.2009 and issued notice through his advocate. Thereafter, the defendant started meddling with the property and illegally demolished portion of schedule property without the knowledge of the plaintiff, that is the reason the plaintiff got issued legal notice dated 11.03.2010 to the defendant. For that the defendant had sent an untenable reply through his advocate, that is the reason the plaintiff has filed the suit for declaration, vacant possession of basement floor 22 O.S.No.7882/2010 c/w O.S.No.6195/2010 portion. He has made it clear that he has not filed any suit in respect of cellar portion, where the defendant is continuing in possession as tenant. The plaintiff is therefore reserves his right to file separate suit for eviction of cellar portion after terminating the tenancy. Hence, the suit.
8. After the service of suit summons, the defendant appeared through his advocate and filed the written statement, contending that suit is not maintainable as it is barred by limitation. He has denied the allegations made by the plaintiff against him. The defendant has perfected his right, title, interest, ownership and possession openly and exclusively within the knowledge of the plaintiff, his wife and other daughters including wife of the defendant, in respect of property by way of adverse possession. Therefore, he is in possession of the suit property as absolute owner thereof. As regards the Provisional Order passed by the KHB, approaching the Hon'ble High Court of Karnataka, compromise before Hon'ble High Court in a Contempt Proceedings and subsequently again allotted to him, are not within his knowledge. He submits that payment of amount for securing title to the property is by 23 O.S.No.7882/2010 c/w O.S.No.6195/2010 the contribution made from out of the joint family funds and property was jointly acquired by his 3 daughters namely Smt.G.Kanthamani, Smt.G.Pushavathi & Smt.G.Leelavathi. As such, the defendant submits that the plaintiff has no absolute right and interest in respect of the property. It is denied that by spending huge amount he has cleared rocks and granites and by selling the same, he has received Rs.2,00,000/-. It is the defendant had spent more than Rs.5,00,000/- for removing all such rocks and bande and thereafter, constructed the cellar floor consisting of 13 pillars, provided sump for storage of water, dug a borewell on the eastern side of the building and he has been in enjoyment of the suit schedule property as absolute owner thereof. His say that cellar portion was availed by the defendant on lease on security deposit of Rs.50,000/- and monthly rent of Rs.8,000/- for 11 months is false. By availing the loan from Sri.K.V.Nagaraj and Sri.Jayaramaiah he had constructed the basement floor and again by mortgage by Deposit of Title Deeds availed loan from Malleshwaram Co-operative Bank of Rs.2,93,000/- is incorrect. In fact, the defendant being the Government 24 O.S.No.7882/2010 c/w O.S.No.6195/2010 Servant borrowed loans from his relatives, friends and out is his own savings developed the property. The plaintiff had created false documents. He admits that his wife - Smt.G.Kanthamani is the eldest daughter of the plaintiff. The defendant requested the plaintiff to accommodate in newly constructed house due to transfer from Tumkur to Bangalore and he submits that right, title, interest and possession has been transferred to him. With an intention to bequeath the property in favour of his daughter, he has bequeathed the property by executing Will, is true. The defendant submits that the property was bequeathed in favour of his wife - Smt.G.Kanthamani and she was inducted in possession of the property. Basing on the oral arrangements made by him, title and possession has been completed. It is under these circumstances, from 1997 till this day the defendant and his wife and children are in lawful possession and enjoyment of the suit property. He has been in continuous uninterrupted possession of the suit schedule property, constructed a building out of his own costs, as such suit is not maintainable. His wife - G.Kanthamani and others have filed O.S.No.7882/2010 for 25 O.S.No.7882/2010 c/w O.S.No.6195/2010 partition and injunction, in which Smt.G.Kanthamani had pleaded that the suit property is in her lawful possession and enjoyment. Therefore, claim of declaration is not maintainable. The defendant being the son-in-law of the plaintiff and was inducted in the suit schedule property by the plaintiff himself, assuring to transfer of title and possession, he did execute a Will, delivered possession. He himself has permitted the defendant to proceed with construction and the defendant completed the construction by spending huge money. Therefore, the present suit seeking possession of basement portion under the guise that it was leased to him is totally false. The plaintiff is not entitled to any of the reliefs. The defendant submits that there are some differences between plaintiff and defendant's mother-in-law. Therefore, some third agencies have spoiled the mind of the plaintiff. At this old age, he is trying to made much of an issue with regard to property, he is a spendthrift and his intention was to misuse the property. As the defendant has perfected his title by adverse possession, present suit is not maintainable and sought for dismissal of the same.
26 O.S.No.7882/2010
c/w O.S.No.6195/2010
9. Basing on the rival pleadings the following issues are framed:-
ISSUES IN O.S.No.7882/2010
1. Whether the plaintiffs prove that the suit schedule properties are the joint family properties of the plaintiffs and the defendants?
2. Whether the plaintiffs are entitled to get share in the suit schedule properties? If so, to what share?
3. What order or decree?
ADDITIONAL ISSUE
1. Whether defendant No.2 - Smt.Kempamma proves that she has succeeded her son -
Sri.Keshava Murthy, who was coparcener, as such entitled to get half share in the schedule properties?
ISSUES IN O.S.No.6195/2010
1. Whether plaintiff proves that he is the absolute owner of the suit schedule property?
2. Whether plaintiff proves that on request of the defendant, plaintiff accommodated him in the suit property?
27 O.S.No.7882/2010
c/w O.S.No.6195/2010
3. Whether defendant proves that he has perfected his title over the suit property by way of adverse possession?
4. Whether defendant proves that he is in lawful possession and enjoyment of the cellar portion as an absolute owner as contended in para-5 of the written statement?
5. Whether suit is barred by limitation?
6. Whether plaintiff is entitled to the reliefs sought for?
7. What order or decree?
10. As the learned counsel appearing for both the suits requested the court to club O.S.No.6195/2010 with the main suit O.S.No.7882/2010. Both the suits are clubbed with a direction to the parties to lead common evidence in the main suit itself.
11. The plaintiff No.1 got herself examined as PW-1 and her husband is examined as PW-2, who is the defendant in O.S.No.6195/2010 and got marked Ex.P1 to P106 and closed their side. The defendant No.1 got himself examined as DW-1. The defendant No.1 got examined one witness - Sri.K.V.Nagaraj as DW-2. The defendant No.2 got herself 28 O.S.No.7882/2010 c/w O.S.No.6195/2010 examined as DW-3. On behalf of defendants Ex.D1 to Ex.D46 are marked.
12. After the closure of the evidence, arguments were heard.
13. My answers to the above issues are as under:-
IN O.S.No.7882/2010 Issue No.1:- In the negative.
Issue No.2:- In the negative.
Addl.Issue No.1:- In the negative.
Issue No.3:- As per final Order.
IN O.S.No.6195/2010
Issue No.1:- In the affirmative.
Issue No.2:- In the affirmative.
Issue No.3:- In the negative.
Issue No.4:- In the negative.
Issue No.5:- In the negative.
Issue No.6:- In the affirmative.
Issue No.7:- As per final order.
For the following:
29 O.S.No.7882/2010
c/w
O.S.No.6195/2010
REASONS
14. ISSUE NOS.1 & 2 AND ADDITIONAL ISSUE NO.1 IN O.S.NO.7882/2010:-
For the sake of convenience these issues are taken up together for discussion to avoid repetition of facts and evidence.
15. The pleaded case of the plaintiffs is that, suit Schedule-A, B, C and D properties are Hindu Undivided Joint Family properties of the plaintiffs and the defendants. The plaintiffs and defendant No.3 are the daughters of defendants 1 and 2, they are having 1/4th share each in the properties. The admitted plaint genealogy is as under:-
Muddurangaiah
--------------------------
Sri.Nanjundaiah Rangaiah
-------------------------------------
Ganganna Parvathamma Gowramma
(deceased) (deceased)
Kempamma (wife)
--- ------------------------------------------------- Keshavamurthy G.Kanthamani G.Pushpavathi G.Leelavathi (deceased) (Plaintiff No.1) (Plaintiff No.2) (Defendant No.3) 30 O.S.No.7882/2010 c/w O.S.No.6195/2010 The entire pleadings reveal that the main contention of the plaintiffs is that all the suit schedule properties are Hindu Undivided Joint Family properties. Some properties derived from ancestral coparcenary through Sri.Nanjundaiah, father of defendant No.1 and some other properties are purchased from out of nucleus of the joint family. It is further contended that suit Schedule-D property was sold by defendant No.1 - Sri.N.S.Ganganna without the consent of other members of the joint family and he has made alienations of Item Nos.3 to 8 in A-schedule and that was not to meet the joint family necessities. As such, such alienations are not binding on the rights of the plaintiffs and defendants 2 and 3. It is further contention of the plaintiffs that, son of defendants 1 and 2 by name Sri.Keshava Murthy was alive on the date A-schedule Item Nos.3 to 8 properties were sold and to the said Sale Deeds the plaintiffs and defendants 2 and 3 were not consenting parties and had not signed to the Sale Deeds. Subsequently B-schedule property was also sold by defendant No.1. Therefore, it is the positive case of the 31 O.S.No.7882/2010 c/w O.S.No.6195/2010 plaintiffs that they are entitled to get 1/4th share in all the properties.
16. The written statement filed by defendant No.1, wherein he admits the relationship. He was working as a Primary School Teacher, joined service in the year 1958 and retired on attaining age of superannuation on 30.06.1993.
He has denied the contention of the plaintiffs that A- schedule properties are the ancestral properties and by utilizing the joint family nucleus Schedule-B, C and D properties are purchased. He has stated in his evidence that the properties are not the joint family or coparcenary properties. In fact, all the properties are his self acquired properties. B-schedule property was purchased by defendant No.2 and Sri.Chikkarangaiah @ Chittappa jointly and northern portion was purchased from the said Sri.Chikkarangaiah @ Chittappa through a Registered Sale Deed by defendant No.1 - Sri.N.S.Ganganna. The defendant No.2 is owner of only southern half portion of B- schedule property. It is his case that C-schedule property is the absolute property of defendant No.1 and had leased the cellar portion in favour of his son-in-law - Sri.Shivaramu. 32 O.S.No.7882/2010
c/w O.S.No.6195/2010 By availing loan by mortgage of Deposit of Title Deeds, he had put up construction and as regards the basement portion which was leased to Sri.Shivaramu, who is examined as PW-2, who was the defendant in O.S.No.6195/2010, for recovery of said portion in his possession and declaration. Therefore, according to him, B and C schedule properties are also his self acquired properties. D-schedule property was already sold by him and all the alienations made by him were much prior to 20.12.2004 before coming into force of the Hindu Succession (Amendment) Act, 2005, with effect from 09.09.2005. Therefore, it is contended that he has sold the properties for the education of his children and marriages of his daughters and to discharge the loan borrowed and to meet the legal necessities of the family, as such same cannot be questioned by the plaintiffs. Therefore, a specific defence was raised by him that the plaintiffs and defendants 2 and 3 are not entitled to claim any share in the suit schedule properties, as such suit is liable to be dismissed.
17. The main contention raised by defendant No.2 - Smt.Kempamma is that son of defendant No.1 - 33 O.S.No.7882/2010
c/w O.S.No.6195/2010 Sri.Keshava Murthy died on 24.03.1984, unmarried and intestate, who was the coparcener, as such defendant No.2
- Smt.Kempamma, who is the mother being a Class-I heir under Sections 14 and 8(1) of the Hindu Succession Act, entitled to get half share in all the suit schedule properties. She is entitled to claim as an absolute owner in respect of B-schedule southern portion. She has stated that the plaintiffs and defendant No.3 are her married daughters, are also entitled to get their legitimate share in the schedule properties.
18. The learned counsel for defendant No.1 vehemently argued that the plaintiffs were aware of the facts that except A-schedule Item Nos.1 and 2 other items of the properties namely Item Nos.3 to 8 were already sold long back, were not available for partition. They suppressed the material facts. He drew the attention of the court to Ex.P7 to Ex.P9 - Registered Sale Deeds. As regards B-schedule property is concerned only northern half portion was purchased by defendant No.1 - Sri.N.S.Ganganna and southern portion was held by defendant No.2 - Smt.Kempamma. But entire B-schedule 34 O.S.No.7882/2010 c/w O.S.No.6195/2010 property was included wrongly. He pointed out that the plaintiffs and all the defendants have set out their own separate defences and plaintiffs' case is contrary to the defence taken by defendant No.2 - Smt.Kempamma. No doubt, defendant - Sri.K.Shivaramu in O.S.No.6195/2010 examined as PW-2, is not a coparcener or joint family member. Therefore, learned counsel for defendant No.1 argued that as far as Item Nos.1 to 3 in A-schedule are concerned, which were sold to one Sri.Archarakara Ramanna of Kenchanahalli Village, Magadi Taluk by his father - Sri.Nanjundaiah. Again, his mother and maternal uncle contributed money and purchased Item Nos.1 to 3 in A-schedule in the name defendant No.1, then he was a minor, as such it is his exclusive absolute property and denied that it is the ancestral joint family property. Therefore, as he has worked as a Teacher, having his own income and also from his self acquired property he has earned money and by raising loan he has purchased Schedule-B, C and D properties. D-schedule property was acquired by him from KHB, subsequently the vacant site was sold for the benefit of family necessities. Therefore, he 35 O.S.No.7882/2010 c/w O.S.No.6195/2010 urged that suit filed by the plaintiffs is not maintainable and liable to be dismissed.
19. Now, whether the plaintiffs are able to show that all the A-schedule properties are the ancestral properties and defendant No.1 had sold Item Nos.3 to 8 properties without their consent and it was not for joint family necessity. Schedule-B, C and D properties were purchased by utilizing joint family nucleus. Therefore, all Schedule-A, B, C and D properties are Hindu Undivided Joint Family properties of the plaintiffs and the defendants and they are entitled to get 1/4th share each. What is noticed by the court that, as on the date of arising out of cause of action what is pleaded, Suit Item Nos.3 to 8 of A-schedule and D- schedule properties were already been sold to third party through Registered Sale Deeds and this fact has not been pleaded either by the plaintiffs or by defendants 2 and 3 in their written statement.
20. Initially defendants 2 and 3 did not file written statement, after recording the evidence, arguments heard, again by recalling defendant No.2 filed written statement 36 O.S.No.7882/2010 c/w O.S.No.6195/2010 contending that she is the wife of defendant No.1 and mother of deceased Sri.Keshava Murthy, who died on 24.03.1984. As her son died in the year 1984, having succeeded to the estate of late Sri.Keshava Murthy as she being Class I heir and successor to the coparcenary joint family successive right and she claims partition of 1/4th share in all suit schedule properties and her written statement was adopted by defendant No.3.
21. In the light of the arguments canvassed by the learned counsel for defendant No.1 it is necessary to appreciate the documentary evidence produced. Ex.P1 is the Sale Deed dated 17/22.10.1941 executed by Sri.Kendaiah and his wife - Smt.Hanumakka in favour of Sri.Patel Nanjundaiah and Sri.Hemojiraya in respect of the property situated at Marisomanahalli Village, bearing Sy.No.48 to an extent of 2 acres and house bearing Khaneshumari No.6, measuring 20 ankans in respect of suit Item No.1 in A-schedule. Ex.P2 is the Encumbrance Certificate for the year from 31.03.1943 to 01.04.2010 in respect of Item No.2 of A-schedule property indicating sale transactions between Sri.Govindadasaiah, Sri.Hanumamma, 37 O.S.No.7882/2010 c/w O.S.No.6195/2010 Sri.Kondaiah and Sri.Nanjundaiah. Ex.P3 is the Registered Sale Deed dated 12.09.1941 executed by Sri.Patel Kempegowda in favour of Sri.Patel Nanjundegowda pertaining to property bearing Sy.No.13, extent 30 guntas in respect of Item No.3 of A-schedule property, situated at Marisomanhalli Village. Ex.P4 is the Registered Sale Deed dated 05.02.1943 executed by Sri.Patel Nanjundaiah in favour of Sri.Patel Ramanna in respect of property bearing No.48/4, extent 2 acres 20 guntas, Sy.No.48/2 32 guntas, East to West: 52 gaja and North to South: 93 gaja, total 32 guntas, i.e., in respect of Item Nos.1 and 2 of A-schedule. Ex.P5 is the Registered Sale Deed dated 05.08.1942 executed by Sri.Patel Nanjundaiah in favour of Sri.Patel Ramanna in respect of Sy.No.7/10, extent 6 guntas, out of 12 guntas in Sy.No.8 extent half hissa of 16 cents and other properties, pertains to suit Item No.4 in A-schedule. Ex.P6 is the Sale Deed dated 01.12.1947 executed by Sri.Patel Ramanna s/o.Nanjudaiah in favour of defendant No.1 - Sri.N.S.Ganganna, who is son of Sri.Patel Nanjundaiah, in respect of Sy.No.7/10, to an extent of 6 guntas, Sy.No.8 extent of 8 guntas, Sy.No.16/8 14½ guntas, Sy.No.29/1 38 O.S.No.7882/2010 c/w O.S.No.6195/2010 extent 2 acres 5½ guntas, Sy.No.21/1 to an extent 2 acres 3 guntas and Sy.No.48/4 extent of 4 acres and Sy.No.13 an extent of 1 acre. Therefore, Ex.P1 to P6 pertains to suit Item Nos.1 to 8 of A-schedule properties, which the plaintiffs claim that these properties were derived by defendant No.1 - Sri.N.S.Ganganna through his father - Sri.Nanjundaiah. Therefore, it is the contention of the plaintiffs that when properties were purchased under Ex.P6 through Registered Sale Deed dated 01.12.1947 DW-1 was hardly a boy of 12 years, minor, as his Date of Birth admittedly is 20.06.1935 as he had admitted the same in his cross-examination. Therefore, it is the specific case of the plaintiffs that his say that it is his self acquired property is false. Ex.P1 to Ex.P6 - Registered Sale Deeds, its typed copies in Kannada vernacular are also furnished by the plaintiffs.
22. In the cross-examination of DW-1, he has deposed that his father - Sri.Nanjundaiah had 3 children - Sri.N.S.Ganganna, Smt.Parvathama and Smt.Gowramma, both his sisters are died long back. His father was an agriculturist and Patel, had possessed agricultural lands at 39 O.S.No.7882/2010 c/w O.S.No.6195/2010 Doddasomanahalli and Marisomanahalli of Magadi Taluk. The Item Nos.1 to 8 of A-schedule are the properties situated at Doddasomanahalli and Marisomanahalli, can very well be gathered. He admits that when property was purchased in his name under Ex.P6 dated 01.12.1947, he was a school going boy, studying in primary school and he was not having any income. But he has stated that the property was purchased in his name by his mother and maternal uncle - Sri.Kenchahonnaiah, what he has pleaded in his written statement. He admits that all the properties showed in Ex.P6 - Registered Sale Deed dated 01.12.1947 was being cultivated by all the family members. When Ex.P7 - Registered Sale Deed dated 07.05.1973 through which he has sold suit Item No.4 of A-schedule property of Doddasomanahalli Village, in Sy.No.7/10 4½ guntas and in 16/8 5¼ guntas, it is mentioned that the said properties are ancestral properties. Therefore, the plaintiffs assert that all the properties purchased under Ex.P6 - Registered Sale Deed are their ancestral properties derived by defendant No.1. Here, question is that merely in Sale Deed executed by him while selling these 2 items of the property under 40 O.S.No.7882/2010 c/w O.S.No.6195/2010 Ex.P7 that he intends to sell the property to purchase house site at Bangalore stating that it is ancestral property, that cannot be taken advantage by the plaintiffs to claim that it is the ancestral property and that cannot be treated as an admission of a fact. The other circumstances need be appreciated that, whether it was flowed directly from his ancestors - Sri.Nanjundaiah, because it has come in the evidence that after the death of Sri.Nanjundaiah, whatever the property possessed by him, there was no partition taken place between the family members and this Sale Deed - Ex.P7 refers to 07.05.1973 at that time father of defendant No.1 - Sri.Nanjundaiah and son of defendant No.1 - Sri.Keshava Murthy were alive. Father of defendant No.1 - Sri.Nanjundaiah died in the year 1981. Son of defendant No.1 - Sri.Keshava Murthy is admittedly died on 24.03.1984. Therefore, learned counsel for the plaintiffs drew the attention of the court in the cross-examination page No.12 wherein DW-1 has clearly stated that suit Item Nos.1 to 8 properties in A-schedule are joint family properties and in their family, there was no Partition Deed effected after the death of his father, who died in the year 41 O.S.No.7882/2010 c/w O.S.No.6195/2010 1981. He has categorically stated that there are no other joint family members except his 3 daughters, who are plaintiffs and defendant No.3. Therefore, he pointed out that by producing Ex.P1 to P7 he has proved that suit Item Nos.1 to 8 of A-schedule was derived through father of defendant No.1 - Sri.Nanjundaiah, as such it is ancestral coparcenary property and there was no division took place in the family as admitted by him and without the consent of the plaintiffs and defendants 2 and 3, he had sold the property Item Nos.3 to 8 in A-schedule as per Ex.P7 to P10. Therefore, he urged that his son - Sri.Keshava Murthy had a birth right in the said coparcenary properties and on his death, it devolved on his mother - defendant No.2 - Smt.Kempamma as she being Class I legal heir of deceased Sri.Keshava Murthy under Section 15 r/w Section 8 of the Hindu Succession Act and this right cannot be taken away by the acts of defendant No.1, as such these alienations made are not binding on the rights of Smt.Kempamma as well as other coparceners i.e., plaintiffs and defendant No.3.
23. It has come in the evidence that DW-1 had sold A-schedule Item Nos.3 to 8 and D-schedule properties. 42 O.S.No.7882/2010
c/w O.S.No.6195/2010 Ex.P8 - Registered Sale Deed dated 22.04.1974 executed by Sri.N.S.Ganganna and his minor son - Sri.Keshava Murthy, who was 12 years old, represented as minor guardian in favour of Sri.Nanjundaiah s/o.Kivuda Marammana Basaiah in respect of Sy.No.29/1, an extent of 2 acres 5½ guntas, in Sy.No.27/1 to an extent of 2 acres 3 guntas namely A-schedule Item Nos.5 and 6. As per the recitals stated in the said Sale Deed the above said properties were sold for purchasing house at Bengaluru and to meet the education expenses of his minor children. Ex.P9 is the Registered Sale Deed dated 18.09.1974 executed by Sri.N.S.Ganganna in favour of Sri.Patel Veerbalegowda s/o.Balegowda in respect of Sy.No.13, to an extent of 31 guntas i.e., in respect of Item No.3 of A- schedule. It has come in the evidence that the above said property was sold for meeting the construction expenses of the building at Bengaluru. Ex.P10 is the Mortgage Deed dated 29.05.1968 executed by DW.1 - Sri.N.S.Ganganna in favour of Yalakappa S/o.Mudalagiriyappa. The property bearing Sy.No.48/4, extent of 3 acres and Sy.No.13, extent 1 acre was mortgaged for a period of 5 years and this 43 O.S.No.7882/2010 c/w O.S.No.6195/2010 property was mortgaged towards clearance of the loan obtained for purchase of house in Magadi Road, Bangalore. Ex.P11 is the Sale Deed dated 30.05.1963 executed by Smt.Muttamma D/o.Perumal Reddy in favour of Smt.Kempamma D/o.Cheluvappa and Sri.Chikkarangaiah @ Chittappa i.e., B-schedule property. Here, it has come in the evidence that this property was purchased by Smt.Kempamma, out of sale consideration Rs.5,000/- paid, Smt.Kempamma paid Rs.2,500/- and remaining half consideration was paid by her father - Sri.Cheluvappa. Therefore, southern half portion in B-schedule as rightly argued by the learned counsel for DW-1 belonged to Smt.Kempamma and northern half portion was purchased by DW-1 from his father-in-law through Registered Sale Deed and has become owner and possessor thereof. Therefore, instead of claiming only southern half portion in B-schedule, defendant No.2 has come with the version that entire B-schedule property is the coparcenary property as it was purchased by utilizing the joint family nucleus. The said argument has no legs to stand before the court. Therefore, if at all, defendant No.2 is having any right in 44 O.S.No.7882/2010 c/w O.S.No.6195/2010 respect of B-schedule property is only in respect of southern half portion, as it was her self acquired property. Ex.P12 is the Encumbrance Certificate in Form No.16 for the year from 01.04.2004 to 03.07.2012. Ex.P13 is the Sale Deed dated 16.05.1972 executed by Sri.Bettappa @ Sri.Chikkarangaiah S/o. late Muddppa Rangaiah in favour of Sri.N.S.Ganganna in respect of property bearing site No.7, Municipal Katha No.50/1 and 76, situated at Kempapura Agrahara, Corporation Division No.22, Bangalore, measuring East to West: 30 feet and North to South: 12.6 feet. Ex.P14 is the Encumbrance Certificate in Form No.15 from the year 01.04.2014 to 03.07.2012. As regards, D- schedule property is concerned, PW-1 has produced allotment Letter dated 17.06.1983 issued by Sri.J.Vasudevan, Housing Commissioner, Bengaluru, in favour of DW.1 - Sri.N.S.Ganganna, for allotment of house under Middle Income Group Housing Scheme at Agrahara Dasarahalli, II Stage on 12.02.1976. It is the case of the plaintiffs and defendants 2 and 3 that DW-1 had assured of giving C-schedule property in favour of Sri.K.Shivaramu and by availing loan the said Sri.K.Shivaramu (PW-2) had 45 O.S.No.7882/2010 c/w O.S.No.6195/2010 improved the property. Ex.P16 is the On-demand Certificate dated 20.05.1981 between Sri.K.Shivaramu and Sri.N.S.Ganganna, amount for Rs.5,000/- paid by Sri.K.Shivaramu to Sri.N.S.Ganganna with amount paid receipt with signature of the witness. This document is not admitted by DW-1. Even he has denied his signatures on it. Ex.P17 is the Sale Deed dated 30.12.1995 executed by Executive Engineer, Karnataka Housing Board, in favour of Sri.N.S.Ganganna in respect of property bearing No.4, Manuvana. Ex.P18 to P53 are the challans for amount paid by Sri.N.S.Ganganna to the Karnataka Bank Ltd., Bangalore. Ex.P54 is the letter dated 28.12.2011 issued by Karnataka Bank Ltd. to PW.2 - Sri.K.Shivaramu for request for information under R.T.I. Act, 2005, is not applicable. Therefore, these documents manifestly make it clear that the properties were mortgaged by DW-1 and he himself has repaid and redeemed the mortgage. PW-1 admits that tax paid receipts produced by her in this case was paid by DW.1.
24. The suggestion to DW-1 that Ex.P18 to Ex.P53 - the challan amount paid receipts to the Karnataka Bank 46 O.S.No.7882/2010 c/w O.S.No.6195/2010 were actually deposited by PW.2 - Sri.K.Shivaramu and receipts were with him is denied by DW-1. Here, at the relevant point of time the relationship of DW-1 with his daughter was cordial. Even it has come in the evidence that at once stage he has made up his mind to bequeath one house property in favour of his daughter - Smt.G.Kanthamani, later on by issuing notice he has revoked the Will. Therefore, mere production of such challans and other receipts cannot be a ground to view that it was paid by Sri.K.Shivaramu. No doubt, it is an admitted fact that PW.2 - Sri.K.Shivaramu had worked as an Officer in Horticulture Department. The assertion made by him that DW-1 assured him of giving C-schedule property to him, that is the reason he has raised loan and withdraw the amount from GPF and put up construction of house by spending his own money is denied by DW-1. Here, as far as this suit is concerned, it is not necessary to dwell upon much about the contribution made by PW-2 and he has improved the C-schedule property, now residing in the basement portion of the said house. DW-1 admits that cellar portion is in possession of PW-2 and he has made it 47 O.S.No.7882/2010 c/w O.S.No.6195/2010 clear in his pleadings that he would take necessary steps against him to evict him and to take possession of cellar portion, which was leased to him. But one thing is clear that the plaintiffs have produced number of documents i.e., Ex.P55 to Ex.P65 to show that Sri.K.Shivaramu has contributed money for improving the said property and for construction.
25. Here, the positive case of DW-1 is that, he had his own income as he was working as a Teacher and on his retirement he has received amount, pensionary benefits and he had sold some of the properties and income through agricultural source, were utilized in construction of the house. He has also deposed that he had availed the loan and later on discharged it, produced the documents to evidence the same. Therefore, he had sufficient income of his own. He was eldest in the family, in those olden days was getting less salary and not sufficient to invest such a huge amount, is the assertion made by PW-2. But the evidence of PW-1 in the cross-examination and also cross- examination of DW.3 - Smt.Kempamma shows that he had sufficient source of income. Sri.K.Shivaramu is son-in-law 48 O.S.No.7882/2010 c/w O.S.No.6195/2010 and not a member of joint family or coparcener. Therefore, as far as right to claim share in the property is concerned, PW-2 not being a family member, doesn't have any right in respect of suit schedule property. The right of his wife - Smt.G.Kanthamani will be appreciated by the court if she is able to prove that it is the joint family property and she is having share in it. But it has nothing to do with the claim made by PW-2. As he being the defendant in the connected suit O.S.No.6195/2010, the schedule property in that suit is C-schedule property in the present suit, only to that extent the defence set up by Sri.K.Shivaramu could be appreciated while answering issues raised in that suit.
26. The documents produced by DW-1 reveal that, the relationship of DW-1 with his son-in-law i.e., Sri.K.Shivaramu is strained. Ex.D1 is the Will dated 29.08.1996 executed by DW.1 - Sri.N.S.Ganganna in favour of his daughter - Smt.G.Kanthamma w/o. Sri.K.Shivaram pertains to C-schedule property. Ex.D2 is the police complaint filed by Sri.N.S.Ganganna dated 01.12.2009, alleging that PW-2 has made attempt to demolish the structure, requested the police assistance against him. 49 O.S.No.7882/2010
c/w O.S.No.6195/2010 Ex.D9 is the legal notice dated 12.03.2010 issued by DW-1 to PW-2 not to alter the existing structure in C-schedule property. Ex.D10 is the reply notice given by PW-2 dated 26.03.2010. That means, under what circumstances he has revoked the Will Deed executed in favour of wife of Sri.K.Shivaramu and filing of police complaint against him, issuance of legal notice, filing of O.S.No.6195/2010, which throw light on the fact that under what circumstances the plaintiffs have filed this suit against DW.1 - Sri.N.S.Ganganna. But as far as partition suit is concerned, it is only on proof of establishing the legal right to claim share and also on proving the facts satisfactorily with evidence that all the properties are the ancestral joint family properties or properties purchased by Sri.N.S.Ganganna by utilizing the joint family nucleus, then only the plaintiffs and defendants 2 and 3 could succeed in claiming partition.
27. Much is made by the learned counsel for the plaintiffs drawing the attention of the court that DW-1 was working as a Teacher and in those olden days his salary was very meagre. When he joined service in the year 1958, his 50 O.S.No.7882/2010 c/w O.S.No.6195/2010 salary was Rs.50/- per month and at the time of retirement DW-1 has stated that he was getting Rs.9,000/- per month as his basic pay. Here, even though he admits that from 1958 to 1981 his salary was not exceeding Rs.1,000/- per month and prior to 1976, he, his wife and all the children were resided together and he admits that there was no partition between him, his son and daughters. When they resided jointly and at that time his wife and daughters worked in the agricultural land, that itself cannot be a ground to consider that the property is the joint family property or derived through ancestors. DW-1 has stated that he and his family used to get income through agriculture and used to get by the efforts of the family members and himself. It has come in the evidence that the Sale Deeds which the plaintiffs have produced, DW-1 also produced the very same documents. But the property sold by him namely Item Nos.3 to 8 in A-schedule is admitted by DW-1 and according to him, to meet the education expenses of the children and to perform the marriages of his daughters and some part of said amount was utilized in acquiring Schedule-B, C and D properties and to put up 51 O.S.No.7882/2010 c/w O.S.No.6195/2010 structures, he has availed loan, mortgaged the property and discharged the mortgage amount as well as loan amount. Therefore, totality of the evidence brought on record, more particularly the evidence in the cross-examination of DW-1 and the facts stated by DW-3 in her cross-examination, we can gather that he had sufficient income from his employment and also through agricultural sources and he has purchased Schedule - B, C and D properties and improved the same.
28. Therefore, one thing is clear that suit Item Nos.3 to 8 properties in A-schedule were already sold out long back by DW-1, as such they are not available for partition. As regards B-schedule property is concerned, for the reasons discussed defendant No.2 - Smt.Kempamma and Sri.Chikkarangaiah @ Chittappa having jointly purchased, in which Smt.Kempamma had paid 50% of consideration amount. The northern portion belonged to Sri.Chikkarangaiah @ Chittappa was sold in favour of Sri.N.S.Ganganna through a Registered Sale Deed dated 16.05.1972. Therefore, only to the northern half portion in B-schedule property DW.1- Sri.N.S.Ganganna is the owner, 52 O.S.No.7882/2010 c/w O.S.No.6195/2010 southern half portion is belonged to DW.3 - Smt.Kempamma. There is no sufficient evidence worth to believe that joint family nucleus was utilized in purchase of northern half portion. Therefore, northern half portion is the absolute self acquired property of Sri.N.S.Ganganna as rightly argued by the learned counsel for defendant No.1. The very defence taken by her claiming that southern half portion is her exclusive property that itself shows that she was not sure about her right in respect of northern half portion. But at random by showing entire property as the joint family property in B-schedule and has come forward to claim share, but that property is not available for partition, can very well be gathered. As regards C-schedule property is concerned, manifest pleadings of the parties to O.S.No.6195/2010 makes it clear that DW.1 - Sri.N.S.Ganganna claims that he is the absolute owner of the said property and he has leased the cellar portion in favour of his son-in-law i.e., PW.2 - Sri.K.Shivaramu on security deposit of Rs.50,000/- and monthly rental of Rs.8,000/- for a period of 11 months, already he has got issued legal notice and also lodged a police complaint and 53 O.S.No.7882/2010 c/w O.S.No.6195/2010 has clarified in his pleading and evidence that he reserves his right to take appropriate legal steps to recover the possession of the cellar portion from Sri.K.Shivaramu. In this suit, defendant No.1 has sought for possession of ground floor from PW.2 - Sri.K.Shivaramu on the ground that, he and his family members are in permissive possession under him. This contention will be appreciated while dealing with the issues raised in that suit. But the point remains the same that this property is also the absolute property of Sri.N.S.Ganganna. The very statement of the defendant in O.S.No.6195/2010, who is none else than husband of PW.1- Smt.G.Kanthamani by claiming that, he is in continuous uninterrupted possession of C-schedule property and perfected his title by adverse possession and it is contended in the suit that suit is barred by limitation. It goes to show that Smt.G.Kanthamani and her husband admit that it is the absolute property of DW.1- Sri.N.S.Ganganna and he is the owner of the property, having title. As regards D-schedule property is concerned, the vacant site was purchased by Sri.N.S.Ganganna and he had sold the said property through a Registered Sale Deed 54 O.S.No.7882/2010 c/w O.S.No.6195/2010 dated 06.06.2002 in favour of Sri.D.S.Mukunda S/o.G.Suryanarayanaiah and this transaction was within the knowledge of the plaintiffs and defendants 2 and 3. DW-1 in his evidence stated that portion of sale proceeds received by him have been depositing with Sri.Dharmasthala Manjunatha Temple Trust and Sri.Kollur Mookambika Temple Trust and that property is also not available for partition.
29. As far as B-schedule property is concerned, the southern half portion is exclusively belonged to Smt.Kempamma and she is not a coparcener. Of course, she is the wife of Sri.N.S.Ganganna. But evidence goes to show that Sri.N.S.Ganganna had filed divorce petition before the family court, Bangalore and obtained a decree of divorce against her. Against the said judgment, she has preferred MFA.No.3792/2014 at Ex.D39 and obtained a stay order against the judgement and decree passed in M.C.No.2852/2010 on the file of V Addl. Prl. Judge, Family Court, Bangalore. The certified copy of order is produced at Ex.D37.
55 O.S.No.7882/2010
c/w O.S.No.6195/2010
30. The learned counsel for the plaintiffs vehemently argued that as per the contentions raised by DW-1 in his written statement the plaintiffs and defendant No.3 being the daughters are not entitled for any relief of partition and separate possession and they are disentitled to maintain the present suit. The learned counsel for the plaintiffs relied on a decision reported in AIR 2016 Supreme Court 769, in the case of Prakash and others v. Phulavathi and others. In para 23 of the said decision the lordships have ruled that:-
"Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September 2005, irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December 2004 as per law applicable prior to the said date will remain unaffected. Any transactions will be governed by the Explanation".
Therefore, he urged that in the cross-examination of DW-1 he admits that Item Nos.1 to 8 of A-schedule are joint family properties and in his family there was no partition 56 O.S.No.7882/2010 c/w O.S.No.6195/2010 effected after the death of his father - Sri.Nanjundaiah in the year 1981. In the cross-examination he admits that, he and his family members were cultivated the properties and the properties were mentioned in Ex.P6 and Ex.P7 it is shown that they are ancestral properties. Therefore, defendant No.1 is a living coparcener, there is not only living coparcenary, successive coparcenary interest in the name of defendant No.2 - Smt.Kempamma who succeeded the estate of her son - Keshava Murthy, who died on 24.03.1984. Therefore, in the written statement it is contended that the properties are self earned and self acquisition of Sri.N.S.Ganganna. But, what is suggested to PW-1, PW-2 and DW-3 that, he being the eldest member in the family, as a Kartha, had sold the property for the benefit of the family and he stressed on the point that indirectly admits that they belonged to Hindu Undivided Coparcenary and Joint Family and the properties are the joint family properties. To acquire sites i.e., Schedule B, C and D properties and to put up construction and improvement, Item Nos.3 to 8 of A-schedule were sold. This also shows that, sufficient nucleus was in the hands of 57 O.S.No.7882/2010 c/w O.S.No.6195/2010 DW.1-Sri.N.S.Ganganna that was utilized in acquiring Schedule - B, C and D properties.
31. He has relied on a decision reported in AIR 1959 Supreme Court 906, in the case of Mallappa Girimallappa Betgeri and others v. R.Yallappagouda Patil and others, wherein their lordships have ruled that, independent source of income will have to be established. Here, according to learned counsel for the plaintiffs DW-1 has failed to prove his independent source of income which is sufficient to acquire properties. On the contrary, he has produced the documentary evidence and the admission in the cross-examination of DW-1 shows that his salary was meagre, not sufficient to acquire such huge properties.
32. He has also relied on a decision reported in AIR 1954 Supreme Court 379, in the case of Srinivas Krishnarao Kango v. Narayan Devji Kango and others, wherein the lordships have held that:
"Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon anyone asserting that 58 O.S.No.7882/2010 c/w O.S.No.6195/2010 any item of property was joint to establish the fact. But where it is established that the family possessed some joint family which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition".
Therefore, he stressed on the point that burden to prove that it is the self acquired property of defendant No.1 is on DW-1, has no effective evidence or documents are produced by him to prove this crucial aspect. The evidence given by the plaintiffs and DW-3 that it is the joint family property holds good. Therefore, existence of the joint family property and character of coparcenary property is proved, because A-schedule properties were derived through father of defendant No.1 - Sri.Nanjundaiah and there was no division took place in the family, is an admitted fact. As such, he urged that every member of joint family is entitled to get a share.
33. He has also relied on a decision reported AIR 1965 Supreme Court 289, in the case of 59 O.S.No.7882/2010 c/w O.S.No.6195/2010 K.V.Narayanaswami Iyer v. K.V.Ramakrishna Iyer and others, wherein it is held that:
"On the date of acquisition of particular property, the joint family had sufficient nucleus for acquiring it, the property in the name of any member of joint family should be presumed to be acquired from out of the family funds and so to form part of joint family property, unless contrary is shown."
Therefore, learned counsel drew the attention of the court to Ex.P6, Ex.P7 and Ex.P8 to show that how property is flowed to DW-1 and there was sufficient nucleus for the joint family to acquire the said property.
34. He has relied on a decision reported in AIR 1937 Privy Council 61, in the case of Nutbehari Das v. Nanilal Das and others and AIR 2003 Karnataka 245, in the case of V.K.Thimmaiah and others v. Smt.V.K.Parvathi and others on the same principles.
35. Subsequently, DW.3 - Smt.Kempamma who is wife of Sri.N.S.Ganganna filed written statement and put forth her separate defence that she has succeeded the coparcenary interest of her deceased son - Keshava Murthy 60 O.S.No.7882/2010 c/w O.S.No.6195/2010 as his legal heir under Sections 6, 8 and 14 of the Hindu Succession Act. As Keshava Murthy died unmarried while in coparcenary, DW.3 - Smt.Kempamma being his mother, succeeds to his estate, as she being the Class-I heir. The successive right had become absolute right and acquisition of right as a coparcenary right Smt.Kempamma succeeds to his estate.
36. He has relied on a decision reported in:
1. AIR 1959 Supreme Court 577, in the case of Gummalapura Taggina Matada Kotturuswamy v. Setra Veeravva and others;
2. AIR 1966 Supreme Court 1879, in the case of Eramma v. Veerupana and others;
3. AIR 1970 Supreme Court 1963, in the case of Badri Pershad V. Smt.Kanso Devi and
4. AIR 1987 Supreme Court 1493, in the case of Jagannathan Pillai v.
Kunjithapadam Pillai and others.
Therefore, the learned counsel argued that by reading Sections, 6, 8 and 14 of the Hindu Succession Act makes it clear that Smt.Kempamma being Class I heir of deceased 61 O.S.No.7882/2010 c/w O.S.No.6195/2010 coparcener - Keshava Murthy. Therefore, he pointed out that father of Sri.N.S.Ganganna - Sri.Nanjundaiah died in the year 1981, son of Sri.N.S.Ganganna - Keshava Murthy died on 24.03.1984 unmarried, issueless, Sri.N.S.Ganganna is the only male surviving.
37. The learned counsel has relied on a decision (1998) 2 Supreme Court Cases 126 in the case of Dharma Sham Rao Agalawe v. Pandurang Miragu Agalawe and others, wherein it is held that:
"The joint family property does not cease to be so when it passes to the hands of sole surviving coparcener. If a son is born to the sole surviving coparcener, the said properties become joint family properties in his hands and in the hands of his son. The only difference between the rights of the manager of a joint Hindu family over the joint family properties where there are two or more coparceners and the right of a sole surviving coparcener in respect of the joint family properties is that while sole coparcener can alienate the joint family properties only for legal necessity or for family benefit....."62 O.S.No.7882/2010
c/w O.S.No.6195/2010
38. He has also relied on a decision reported in (2006) 8 Supreme Court Cases 581, in the case of Sheeladevi and others v. Lal Chand and others, their lordships have ruled out that:
"After coming into force of Hindu Succession Act 1956, once a son was born, he acquired an interest in coparcenary property as an incident of his birth".
Therefore, the learned counsel argued that Smt.Kempamma succeeded the coparcenary right and interest which was accrued by birth of Sri.Keshava Murthy, succeeded by his mother being Class I heir and she is entitled to get the said share though she is not a coparcener.
39. Therefore, learned counsel for the plaintiffs urged that the evidence of the plaintiffs and DW-3 makes it clear that, the adamant attitude of DW-1 in keeping himself away from the family, wife and daughters have lost love towards him, his intention was to avoid them. Therefore, the alienations made by him, for which the plaintiffs and defendants 2 and 3 are not consenting parties, he has no right to alienate the properties, as such, such alienations 63 O.S.No.7882/2010 c/w O.S.No.6195/2010 made by him are not binding on the rights of the plaintiffs. As such, the plaintiffs are entitled to get share in all the items of Schedule - A, B, C and D properties.
40. On the date of D-schedule property was sold Sri.Keshava Murthy was not alive and sale consideration was exclusively used by DW.1 - Sri.N.S.Ganganna. Properties i.e., Item Nos.3 to 8 in A-schedule were also not sold for family necessity and now by selling B-schedule property he wanted to give donations to the temples and other religious institutions, that cannot be regarded as a pious obligations and act done by a Kartha for the family necessity, but it is a voluntary act done by him. Therefore, he contends that the property be adjusted towards his share and legitimate share of the plaintiffs and defendants 2 and 3 be declared by decreeing the suit for partition.
41. Per contra, learned counsel for defendant No.1 drew the attention of the court to the point that the Hindu Succession (Amendment) Act was brought into effect from 09.09.2005 and daughters are treated on par with coparceners as that of a son only from 09.09.2005 and 64 O.S.No.7882/2010 c/w O.S.No.6195/2010 effect of legislation is prospective in nature. He drew the attention of the court that the alienations made by DW-1 in respect of Item Nos.3 to 8 in A-schedule and D-schedule properties through registered Deeds are much earlier to 20.12.2004. Therefore, those transactions are unaffected. The properties are not proved that they are ancestral joint family properties or coparcenary properties and the plaintiffs are having share in it.
42. In para 9 of the plaint, learned counsel for the plaintiffs has pleaded that:
"It is the gainsaid that once the properties are allotted to the share of defendant No.1 and defendant No.1 constituting branch of himself and his heirs upon himself representing the branch of his divided joint family (sub joint family), the properties are coparcenary joint family and each of the female heirs who are born namely plaintiffs and defendant No.3 as on the date of the said suit had equal rights and defendant No.1 had no independent or individual right.
Even assuming that defendant No.1, as father, defendant No.2 is the mother, they have no alienable rights, for the reasons that 65 O.S.No.7882/2010 c/w O.S.No.6195/2010 they have only a coparcenary right as that of the plaintiffs and defendant No.3 and deceased son who was alive as on the date of when properties allotted to the share of the branch represented by defendant No.1".
On plain reading of the said pleadings, which arrest the attention of the court that the plaintiffs' case is that there was a division in the family and A-schedule properties were allotted to the share of Sri.N.S.Ganganna.
43. Therefore, it is necessary to trace out that whether such contention is having any proof of evidence. It must be established that the partition between defendant No.1 - Sri.N.S.Ganganna and his father - Sri.Nanjundaiah, who died in the year 1981 during his lifetime. As regards the said partition is concerned, pleading is silent. If really, Sri.Nanjundaiah and his son - N.S.Ganganna lived in a joint family, possessed ancestral properties, wherein Sri.Nanjundaiah claims that he had the right in the property, as rightly argued by the learned counsel for defendant No.1 that in the sale transactions - Ex.P7, Ex.P8 and Ex.P9 and the mortgage Deed Ex.P10 executed, which are the authenticated documents relied by the plaintiffs 66 O.S.No.7882/2010 c/w O.S.No.6195/2010 occurred between 1968 to 1973 admittedly during the lifetime of Sri.Nanjundaiah. Then why Sri.Nanjundaiah has not joined to the said Ex.P7 to Ex.P10 is again a question. No explanation is forth coming from the plaintiffs' side. Therefore, it is clear from where conduct itself that Sri.Nanjundaiah and Sri.N.S.Ganganna do not possess any coparcenary property. PW-1 in the cross-examination admits that none of the properties were standing in the name of her grand father. The evidence of PW-1 goes to show that Sri.Patel Nanjundaiah and Sri.Himojirao purchased 2 acres in Sy.No.18/2 of Marisomanahlli Village from Sri.Kondaiah and Smt.Hanumamma through a Registered Sale Deed dated 17.10.1941. Sri.Patel Nanjundaiah purchased 30 guntas in Sy.No.13 of Marisomanahlli Village from Sri.Patel Kempegowda under Ex.P3 and the very same Sri.Patel Sri.Nanjundaiah, father of Sri.N.S.Ganganna, sold the property which he had purchased under Ex.P1 to P3 through Registered Sale Deeds dated 05.02.1943 in favour of Sri.Patel Ramanna of Kenchanahalli under Ex.P4. Under Ex.P5 dated 05.08.1942 Sri.Patel Nanjundaiah sold A-schedule property Item Nos.3 67 O.S.No.7882/2010 c/w O.S.No.6195/2010 to 8. Therefore, all the properties situated at Doddasomahalli were sold by Sri.Patel Nanjundaiah in favour of Sri.Patel Ramanna to discharge antecedent debts and other legal necessities as per the recitals of the registered Deeds. Therefore, as rightly argued by the learned counsel for defendant No.1, Ex.P4 and Ex.P5 discloses that alleged joint family consisting of Sri.Nanjundaiah and Sri.N.S.Ganganna had lost all the joint family properties long back on 05.08.1942 itself and joint family of Sri.Nanjundaiah and Sri.N.S.Ganganna has not possessed any joint family or ancestral property as alleged by the plaintiffs. Further, at the relevant point of time, no allotment of share was given in the joint family properties possessed by Sri.Nanjundaiah in favour of Sri.N.S.Ganganna and no partition was effected between them. Once A-schedule properties were sold to third party, treating those properties again as ancestral joint family properties doesn't arise at all. Therefore, point remains that by virtue of Registered Sale Deed dated 01.02.1947 from Sri.Patel Ramanna the properties were purchased in the name of Sri.N.S.Ganganna, at that time he was a minor. 68 O.S.No.7882/2010
c/w O.S.No.6195/2010 But he has made it clear that his mother and maternal uncle purchased through Ex.P6 in his name. Therefore, learned counsel for defendant No.1 argued that recitals in Ex.P6, on careful consideration it shows that real and ostensible owner is Sri.N.S.Ganganna and this suit is filed in the year 2009, the provisions contained in Section 4(1) of Benami Transaction (Prohibition Act), 1988, prohibition of the right to recover property held benami, as such Section 4(2) of the said Act is also not applicable as the plaintiffs are not coparceners as on that date.
44. Here, no doubt, during the minority ship of DW-1 when he was hardly 12 years old boy A-schedule properties were purchased under Ex.P6 and again he had exercised his full right over the said properties i.e., Item Nos.3 to 8 in A- schedule was sold by him to third party through Registered Sale Deeds. Therefore, claim made by the plaintiffs under the garb that it is the ancestral joint family property and it is also a joint family property cannot be appreciated. Once properties were sold to Sri.Patel Ramanna who is a third party, again the properties cannot be considered as ancestral joint family properties of the plaintiffs. Even if in 69 O.S.No.7882/2010 c/w O.S.No.6195/2010 Ex.P7 there is a recital that the properties are joint family properties and DW-1 in the cross-examination has stated that he and his family members cultivated together the schedule properties, that cannot change the nature of the properties. Therefore, the express conduct of Sri.Nanjundaiah, not joining along with Sri.N.S.Ganganna in Ex.P7 to Ex.P10 shows that, he had not exercised his right that it is a joint family property or coparcenary property. What DW-1 has stated that he had sold Item Nos.3 to 8 in A-schedule to meet the education expenses of his children and to perform the marriages of his daughters and also to purchase Schedule-B, C and D properties. Here, we have to bear in mind that Schedule - B, C and D properties were purchased by Sri.N.S.Ganganna subsequent to 07.05.1973.
45. The recital in Ex.P8 the Sale Deed through which Sy.No.29/1 and 27/1 of Marisomanahalli was sold in favour of Sri.Basaiah, wherein as a minor guardian to Keshava Murthy Sri.N.S.Ganganna had executed, was made much to treat the properties are joint family properties and it is an admission by DW-1. Here, the entire recitals of the said document need be read in between the lines. In the second 70 O.S.No.7882/2010 c/w O.S.No.6195/2010 page, DW.1 - Sri.N.S.Ganganna has clearly stated that the said properties are his self acquired properties, he has purchased it through a Registered Sale Deed dated 11.12.1947 and has been in his possession and enjoyment. Therefore, he asserts his exclusive right over the property. While interpreting the document, the meaning emerged out by reading the recitals in between the lines will have to be appreciated and we cannot import some foreign things to give a meaning to it. Similar recitals are found in Ex.P9 - Sale Deed dated 18.09.1974, through which Sy.No.13 was sold in favour of Sri.Veerabaleggowda, in page 2 from 4th line he has stated asserting that it is his absolute property. Therefore, the plaintiffs cannot take advantage of the fact that in the Sale Deeds he admits that it is joint family property.
46. As per the evidence of PW-1 and DW-3 even in respect of A-schedule Item Nos.1 and 2 properties there is a litigation pending between Sri.N.S.Ganganna and Sri.Thimmarayappa of Magadi and PW-1 admits that said property is in possession of Sri.Thimmarayappa, he has been cultivating and harvesting the crops. The litigation is 71 O.S.No.7882/2010 c/w O.S.No.6195/2010 also pending. When Item Nos.1 and 2 of A-schedule property was sold by Sri.Nanjundaiah in favour of Sri.Patel Ramanna, therefore even Item Nos.1 and 2 property also cannot be regarded as a joint family ancestral property or coparcenary property as alleged by the plaintiffs and the defendants 2 and 3. In this view of the matter, the allegations of DW.3 - Smt.Kempamma that she succeeded coparcenary interest of her deceased son - Keshava Murthy doesn't survive for consideration. Even prior to coming into force of Hindu Succession Act, there were 2 modes of succession i.e., unobstructed heritage and obstructed heritage. No doubt, the parties are governed by Mithakshara Law of Inheritance, therefore property inherited by a Hindu from its father, father's father and great grand father is the ancestral property (unobstructed heritage). Therefore, the male issues acquire an interest in such property from the moment of their birth and they become coparceners with their paternal ancestors. Therefore, as per the earlier customary law prevailing, no female can be a coparcener although female can be a member of joint family. Therefore, it is needless to say that 72 O.S.No.7882/2010 c/w O.S.No.6195/2010 in case of unobstructed heritage property devolves by survivorship, whereas in case of obstructed heritage it should be by succession. Therefore, females cannot be coparceners under Mithakshara Law. Even though wife is entitled to maintenance out of her husband's property and she is not a coparcener. Even mother is also cannot be regarded as coparcener with her son. Therefore, even under the customary Hindu Law the mother who gets right on the death of Keshava Murthy, entitled as successor in interest provided if it is proved that Sri.N.S.Ganganna has been enjoying the property derived through his ancestors and they lived in coparcenary. As rightly argued by the learned counsel for defendant No.1 that, joint undivided family ceases from the moment of death of Keshava Murthy. As such, there cannot be any joint Hindu Undivided Family as alleged by the plaintiffs who are admittedly daughters of Sri.N.S.Ganganna and mother who claims that she succeeded the coparcenary right of her deceased son - Keshava Murthy, cannot be a coparcener to her husband - Sri.N.S.Ganganna. It is needless to say that for the first time after coming into force of Hindu Succession 73 O.S.No.7882/2010 c/w O.S.No.6195/2010 (Amendment) Act, with effect from 09.09.2005, coparcenary right was conferred on daughter on par with the son. Therefore, the plain analogy is that the right of the plaintiffs if any is certainly after the death of their father
- Sri.N.S.Ganganna. Therefore, neither Smt.Kempamma being the wife of Sri.N.S.Ganganna nor the plaintiffs and defendant No.3 who are daughters of Sri.N.S.Ganganna, cannot claim right of share in the suit schedule properties.
47. A thorough cross-examination is made to PW-1, PW-2 and DW-3 and it is noticed by the court that the stand taken by PW-1 and DW-3 is self contradictory to each other. It has come in the evidence that no property was with Sri.Nanjundaiah, father of Sri.N.S.Ganganna and he has never exercised his right in respect of schedule - A, B, C and D properties. That means, throughout Sri.N.S.Ganganna alone had exercised his absolute right in respect of the properties. Even Hindu Law Women's Right (1933), Mysore Act No.10 of 1933, the concept of inheritance and right of female in the property which is prevailing over in this area also speaks in line with the Hindu Succession Act, 1956 and drastic changes brought 74 O.S.No.7882/2010 c/w O.S.No.6195/2010 into effect by new amended act came into force from 09.09.2005.
48. The learned counsel of defendant No.1 has relied on a decision reported in AIR 2012 Bombay 101, in the case of Ms.Vaishali Satish Ganorkar and another v. Satish Keshorao Ganorkar and others, wherein it is held:
"(A) Hindu Succession Act (30 of 1956), S. 6 (As amended in 2005) - Devolution of interest in coparcenary property - Right of daughters of coparcener - Amended provision of S.6 came into effect from 9-9-2005 -
Daughters born after 9-9-2005 would be coparceners by virtue of birth - However, daughters born before 9-9-2005 would be coparcener only upon devolution of interest in coparcenary property taking place - Until a coparcener dies and his succession opens there is no devolution of interest."
Therefore, it is clear from the evidence brought on record that the plaintiffs are not coparceners and their right if any is only after the death of Sri.N.S.Ganganna to claim share in the property and not earlier to it. Even the claim of 75 O.S.No.7882/2010 c/w O.S.No.6195/2010 Smt.Kempamma is concerned, there were no properties enjoyed by Sri.N.S.Ganganna derived through his ancestors and it has not been proved by the plaintiffs or defendants 2 and 3 and DW-3 cannot claim that she has succeeded the coparcenary interest of her deceased son - Keshava Murthy. The relevant documents that are produced by DW.1 in his evidence namely Ex.D3 to Ex.D35. The analysis of the documents goes to show that Schedule - B, C and D properties were purchased by him and he himself has developed the same. He has acquired BDA site situated at Nagarabavi and D-schedule property was sold by him much previous to 20.12.2004 and he has exercised his right as absolute owner by raising loan from the Malleshwaram Co- operative Bank and he has been making payment of tax to BBMP and all these documents would go to show that except southern half portion in B-schedule, Schedule-B, C and D properties are the absolute properties of Sri.N.S.Ganganna. Even though he had executed Will Deed in favour of the plaintiffs 1 and 2 and later on, revoked the Will Deed executed in favour of the plaintiffs and it has come in the evidence that he has sold the D-schedule 76 O.S.No.7882/2010 c/w O.S.No.6195/2010 property and out of the sale consideration received he has deposited amount to Dharmasthala Manjunatha Temple Trust and Kollur Mookambika Temple Trust as he has lost his son - Keshava Murthy. May be, he has thought up his mind to do some charitable work by giving donations to the temples and that cannot be a considered that he has acted detrimental to the interest of his wife and daughters. The documents produced by him, Registered Sale Deeds in respect of Schedule - A, B, C and D properties are also produced by the plaintiffs. It has come in the evidence that now he has joined to Ashram, having his meals in Madappa Mess and that is made much by PW-1 and DW-3 in their evidence that he has showed neglect towards them. At this age, when defendant No.1 made up his mind to join Ashram and taking his meals in a Mess, it also goes to show that what made him to act in that manner, because of the difficulties faced by him in the hands of wife and daughters. But for the purpose of deciding the rights of the plaintiffs or defendants 2 and 3, taking meal in the Mess or residing in the Ashram by DW-1 is of no relevance. The plaintiffs must establish their rights.
77 O.S.No.7882/2010
c/w O.S.No.6195/2010
49. Here, Smt.Kempamma has produced Ex.D36 - copy of the plaint in O.S.No.364/2009 filed by Smt.Kempamma against her husband - Sri.N.S.Ganganna on the file Civil Judge (Jr.Dvn.) Court, Magadi, seeking maintenance and attachment of property. It also shows that her relationship with her husband - Sri.N.S.Ganganna was strained. Ex.D37 is the certified copy of the judgment in O.S.No.6631/2009 passed by this court, wherein her claim with regard to entire B-schedule property was not appreciated, only in respect of the southern half portion suit was decreed holding that she is having title and possession and Sri.N.S.Ganganna has admitted the said fact in his evidence. But contrary to her stand and decree passed by the court, the plaintiffs who are the daughters of Smt.Kempamma, have showed the entire B-schedule property and claiming share in it stating that the property belonged to joint family. Ex.D38 is the plaint in O.S.No.6631/2009. The allegations made by Smt.Kempamma against her husband and she has even gone to the extent of making allegation against him that her husband has got improper mental capacity and mental 78 O.S.No.7882/2010 c/w O.S.No.6195/2010 imbalance and he has neglected his family. Further, as Sri.N.S.Ganganna has obtained decree of divorce from the family court in M.C.No.2852/2010, she has preferred MFA.No.3792/2014 on the file of Hon'ble High Court of Karnataka and obtained stay order. All these documents goes to show that now she is residing along with her daughters and even she has executed the Will Deed in respect of B-schedule property in favour of her daughters and she claims that her intention was to see that after her death, it should go to her daughters. Whatever may be her wish, question remains that the northern half portion of B- schedule property is exclusively belonged to Sri.N.S.Ganganna and she has failed to prove that she has succeeded to the coparcenary interest of her deceased son
- Keshava Murthy. Even otherwise, in one breath she supports the case of the plaintiffs and at the same breath supports the case of her son-in-law - Sri.K.Shivaramu examined as PW-2, who was defendant in connected case O.S.No.6195/2010. The stand taken by PW-1 is also self- contradictory. Therefore, the evidence led by the parties 79 O.S.No.7882/2010 c/w O.S.No.6195/2010 which is against the foundation of pleadings cannot be appreciated at all.
50. Even the documentary evidence produced by DW-1, Ex.D40 - Deposition of Smt.Kempamma recorded in O.S.No.364/2009, Ex.D41 and Ex.D42 - Record of Rights, Ex.D43 - Genealogy Tree, Ex.D44 - Deposition of DW.1- Sri.N.S.Ganganna in O.S.No.364/2009 and Ex.D45 - Depositioon of RW.1 - Smt.Kempamma recorded in M.C.No.2852/2010. Ex.D46 is written statement filed by Sri.N.S.Ganganna in O.S.No.364/2009. Wherein Sri.N.S.Ganganna has maintained his defence that all the properties are his self acquired properties and he is the absolute owner of the properties. He has stated that he has exercised his right over the properties in his individual capacity and denied the allegations made by Smt.Kempamma against him. Of course, learned counsel appearing for Smt.Kempamma argued before the court that at this old age by filing a divorce petition and obtained decree, residing in a Ashram, having his meals at Mess, wasting amount derived from the property, thus at this old age he has acted derogatory to the interest of his aged wife 80 O.S.No.7882/2010 c/w O.S.No.6195/2010 and daughters and he claims that the property be preserved by granting share to Smt.Kempamma. To claim share in the property Smt.Kempamma has to establish that she succeeded the coparcenary interest of her deceased son - Keshava Murthy, because she being the wife of Sri.N.S.Ganganna is not a coparcener. When the properties Item Nos.3 to 8 in A-schedule and D-schedule properties were sold through Registered Sale Deeds, the rights of the daughters to claim share in the properties as coparceners was not recognized and even otherwise, the evidence brought on record would go to show that it is the property belonged to Sri.N.S.Ganganna and he had exercised his right throughout. As such, except southern portion of B- schedule property, rest all the properties were the absolute properties of Sri.N.S.Ganganna and the plaintiffs can't claim right by virtue of the Hindu Succession (Amendment) Act, 2005, which came into force from 09.09.2005.
51. Therefore, all the alienations made by Sri.N.S.Ganganna i.e., Items Nos.3 to 8 in A-schedule and D-schedule properties through Registered Sale Deed in favour of third parties are effected earlier to 20.12.2004. 81 O.S.No.7882/2010
c/w O.S.No.6195/2010 Therefore, proviso to amended sub-section (1) of main sub- section (5) such alienations were saved. On principles we can take the succor of decision of Hon'ble Apex Court AIR 2016 Supreme Court 269, in the case of Praskah and others v. Phulavathi and others. The plaintiffs filed the suit claiming all the properties on an allegation that without their consent Sri.N.S.Ganganna has sold the properties, therefore it is not binding on their rights. More particularly, even though all the items of the properties were shown, no separate relief is claimed seeking declaration that alienations made through Registered Sale Deeds in respect of suit Item Nos.3 to 8 of A-schedule and D-schedule properties are not binding on their right. Simply, suit for partition is filed. Even otherwise, their existing right to claim share itself has not been proved to the satisfaction of the court. Whereas, the Registered Sale Deeds produced by the plaintiffs as well as defendant No.1 - Sri.N.S.Ganganna discussed hereinabove, none of the documents establishes that suit properties are ancestral and joint family properties of Sri.N.S.Ganganna and Sri.Keshava Murthy. Therefore, it is needless to say that defendant No.2 - Smt.Kempamma 82 O.S.No.7882/2010 c/w O.S.No.6195/2010 has not at all succeeded any property from her deceased son - Keshava Murthy as his Class-I heir.
52. The plaintiffs have failed to prove that the suit properties are ancestral and joint family properties. They failed to prove that they are coparceners as on the date of filing the suit Therefore, their right if any to claim share arise for consideration only after the death of defendant No.1 - Sri.N.S.Ganganna and not before. Therefore, suit filed by the plaintiffs claiming 1/4th share in all the suit schedule properties is liable to be dismissed. Equally the claim made by defendant No.2 - Smt.Kempamma that she has succeeded the coparcenary interest of her deceased son
- Keshava Murthy also not proved to the satisfaction of the court and her claim is liable to be rejected. For the detailed discussions made hereinabove the suit filed by the plaintiffs against the defendants in O.S.No.7882/2010 is merits to be dismissed. Accordingly, I answer Issue No.1 and 2 and Addl. Issue No.1 in the negative.
53. ISSUE NOS.1 TO 4 IN O.S.NO.6195/2010:-
For the sake of convenience these issues are taken up together for discussion to avoid repetition of facts. 83 O.S.No.7882/2010
c/w O.S.No.6195/2010
54. It is the pleaded case of the plaintiff that suit schedule property measuring East to West:40 feet and North to South:45 feet, Manuvana, Vijayanagar, Bangalore, consisting of 3 bed rooms, kitchen, bounded on:
East by: KHB House, West by: Road, North by: House belonging to Smt.Chandrakalavathi and South by: House of Sri.Nanjundaiah, more particularly mentioned in the schedule, of which he is the absolute owner having title. He himself had constructed the house standing therein. The plaintiff is a Retired School Teacher by utilizing his savings, income through properties and retirement benefits, he started construction of cellar floor consisting of 13 pillars of 9" x 13", sump and for storage of water and borewell on eastern side of building. Immediately after the construction, the defendant who is his son-in-law approached him for lease of cellar floor for godown for storing electroplating materials. Therefore, the plaintiff has leased the same on security deposit of Rs.50,000/- and on monthly rent of Rs.8,000/- for 11 84 O.S.No.7882/2010 c/w O.S.No.6195/2010 months. By borrowing loans he has put construction. He has further alleged that the defendant has sublet the cellar portion to some Mohammedan person against the express terms in the Lease Deed. As the defendant was then working as an Officer in Horticulture Department at Tumkur, requested the plaintiff to accommodate in the newly constructed house due to transfer from Tumkur to Bangalore. As the plaintiff was having house at Magadi Road and at Kalyana Nagar apart from the schedule property, wanted to bequeath each property to his daughters. In the year 1997, he has executed a Will out of love and affection and subsequently he has cancelled the Will executed in favour of wife of the defendant i.e., Smt.G.Kanthamani on 26.11.2009 and issued notice through his advocate. The defendant is in possession of basement floor and residing therein along with his wife and family members, that is the reason by issuing notice he has demanded vacant possession of basement floor portion morefully mentioned in the suit schedule and also for declaration. He has made it clear in his pleadings itself that in the cellar portion the defendant continuing in possession 85 O.S.No.7882/2010 c/w O.S.No.6195/2010 as a tenant and he reserves his right to file separate suit for eviction of cellar portion after terminating the tenancy.
55. The defence set out by the defendant is manifold. He has contended that he has perfected right, title, interest ownership and possession in respect of suit schedule property openly and exclusively within the knowledge of the plaintiff, his wife and other daughters including his own wife for the purpose of possession in respect of the property by way of adverse possession. He claims that he is the owner and possessor of the suit schedule property. As in the reply notice himself he has set up his title. The plaintiff has filed this suit for the relief of declaration and vacant possession. The defendant also contended that the suit schedule property was acquired by the plaintiff by the contribution made from out of the joint family funds and the property was jointly acquired by his 3 daughters namely Smt.G.Kanthamani, Smt.G.Pushpavathi & Smt.G.Leelavathi, as such the plaintiff had no exclusive and absolute right or interest in respect of the property.
86 O.S.No.7882/2010
c/w O.S.No.6195/2010
56. However, in the evidence of PW-2 the present defendant who is examined in the main case O.S.No.7882/2010 which was filed by his wife against the present plaintiff in this suit for partition. As this property is showed as C-schedule in the partition suit filed by the wife of the present defendant and he has set up that out of the contribution of his wife also the present plaintiff - Sri.N.S.Ganganna has acquired the property and denied the exclusive title in respect of the property. As the counsels representing in both the suits consented for clubbing this matter with the main partition suit, it would be easier to determine the rights of the parties. This case is clubbed with the main case O.S.No.7882/2010 and common evidence was recorded.
57. The present defendant is examined as PW-2 in the main case, has deposed the facts pleaded by him on par with the written statement contentions. The basement floor which is admittedly in possession of the defendant is the subject matter of this suit. In the evidence of DW.1- Sri.N.S.Ganganna has deposed that the C-schedule property in the main partition suit which is the subject matter of the 87 O.S.No.7882/2010 c/w O.S.No.6195/2010 present suit is his exclusive absolute property. Though PW.2 - Sri.K.Shivaramu in his evidence has stated that as DW-1 did not make payment within time stipulated by Karnataka Housing Board the allotment was cancelled, thereby after obtaining orders from the Hon'ble High Court of Karnataka, again property was resumed during 1995 and a Conditional Sale Deed thereafter was executed. There was a condition that within 2 years he has to construct a house in the property, otherwise the property would again be taken by the Karnataka Housing Board. As DW.1- Sri.N.S.Ganganna was not having sufficient funds called PW-2 who is his son-in-law and requested him to obtain loan and invest it to put up construction in his name and thereafter he would effect transfer of the said property into the name of Sri.K.Shivaramu. He admits that Lease-cum- Sale Agreement the period of alienation had not completed until the absolute Registered Sale Deed is executed. The transfer of property was impossible. To keep up his promise, he has executed a Will in the name of Smt.G.Kanthamani, his wife and handed over the original Will to him, which is produced at Ex.D1.
88 O.S.No.7882/2010
c/w O.S.No.6195/2010
58. Here, at length the rights of the wife of PW-2 i.e., Smt.G.Kanthamani who is the plaintiff in O.S.No.7882/2010 in respect of the C-schedule property in that suit along with Schedule - A, B and D properties was discussed appreciating the evidence on merits while dealing with Issue Nos.1 and 2 and Additional Issue No.1 in the said comprehensive suit filed by the wife of PW-2 against her father. It is held that the contention of PW-2 that his wife and her sisters have also contributed in acquiring and developing C-schedule property cannot be appreciated and it is the exclusive absolute property of DW.1 - Sri.N.S.Ganganna. The wife of the present defendant and her sisters and mother are not entitled to claim any share in the suit schedule properties and the said suit is dismissed. Therefore, there is no need to again dwell upon to decide the title in respect of suit schedule property, merely because the present defendant who is son-in-law of the plaintiff has denied the title of Sri.N.S.Ganganna.
59. Added to that, he has made manifold defence and very fact that he has claimed that he has perfected his title by adverse possession and the suit filed by the plaintiff 89 O.S.No.7882/2010 c/w O.S.No.6195/2010 seeking possession and declaration is barred by limitation, is a clear admission of PW-2 admitting the title and ownership of Sri.N.S.Ganganna (DW-1) in respect of suit schedule property.
60. PW.1- Smt.G.Kanthamani is none else than the wife of Sri.K.Shivaramu, has produced number of documents in her evidence in respect of C-schedule property in O.S.No.7882/2010. Ex.P15 is the Allotment Letter dated 17.06.1983 issued by Sri.J.Vasudevan, Housing Commissioner, Bangalore, in favour of DW.1- Sri.N.S.Ganganna, for the allotment of house under Middle Income Group Housing Scheme at Agrahara Dasarahalli II Stage on 12.02.2976. Ex.P16 is the On-demand Certificate dated 20.05.1981 between PW.2- Sri.K.Shivaramu and DW.1-Sri.N.S.Ganganna. According to contention of PW-1 that the said amount was paid to Sri.N.S.Ganganna to acquire C-schedule property. But nothing is mentioned in said D.P.Note. PW-1 in the cross-examination has stated that Sri.N.S.Ganganna did not paid the said amount covered under D.P.Note. Ex.P17 is the Sale Deed executed by Executive Engineer, Karnataka Housing Board, Bangalore 90 O.S.No.7882/2010 c/w O.S.No.6195/2010 dated 30.12.1995 in favour of Sri.N.S.Ganganna, property bearing Site No.4 at Manuvana and on the said site construction was erected. There is no mention in the recital of the document that any contribution was made by his daughters, wife, much less PW.2-Sri.K.Shivaramu. Ex.P18 to Ex.P53 are the challans for amount paid by Sri.N.S.Ganganna to the Karnataka Bank Limited, Bangalore. It is contended that as Sri.K.Shivaramu had paid the amount in discharge of the loan, that is the reason these originals receipts are with PW-1. Merely because it was produced from the custody of PW-1 it cannot be said that, though loan was availed in the name of Sri.N.S.Ganganna it was discharged by Sri.K.Shivaramu and there was an understanding that the property would be given to Sri.K.Shivaramu by Sri.N.S.Ganganna. Because, Smt.G.Kanthamani is his daughter and they resided together and it has come in the evidence that relationship of Smt.G.Kanthamani and her mother with Sri.N.S.Ganganna at the relevant point of time was cordial.
61. Here, DW-1 has categorically stated in his evidence, has deposed that the Engineer has estimated the 91 O.S.No.7882/2010 c/w O.S.No.6195/2010 construction cost at Rs.10,00,000/- but it went upto Rs.14,00,0000/- at the time of construction. He doesn't have any document to show that he has let out cellar portion for Rs.8,000/- to Sri.K.Shivaramu and one shop for Rs.1,000/- rent. However, he admits that rent of cellar portion and shop was received by husband of Smt.G.Kanthamani i.e., Sri.K.Shivaramu and he has directed him to deposit the same to the Malleshwaram Co- operative Bank and the Lease Deed was in the name of Sri.K.Shivaramu. No doubt, at the relevant point of time Sri.K.Shivaramu was in Government Service and had no right to do any business. However, he has stated that Sri.K.Shivaramu was not working at Bangalore, he had worked at Tumkur and other places as an Horticulture Officer. It is contended by PW-2 that he has availed GPF Loan for the purpose of construction of building in C- schedule property. He has produced Ex.P55 - Annual Statement of GPF Accounts bearing Account No.AGR 20072. But that cannot be helpful to show that he had availed loan for the purpose of construction of building in C-schedule property. Ex.P56 is the Letter dated 17.01.1968 issued by 92 O.S.No.7882/2010 c/w O.S.No.6195/2010 Sri.K.Shvaram to the Managing Director, DCC Bank, Tumkur, to sanction of loan, that was for purchase of household articles and in the year 1968 the property was not at all acquired by Sri.N.S.Ganganna. Ex.P57 the Undertaking Letter dated 24.01.1998 given by Sri.K.Shvaramu to DCC Bank Ltd., Tumkur to avail loan. May be these documents reveal the fact that he has availed the loan from DCC Bank and from GPF, but it cannot be said that it was for the purpose of erection of building in C- schedule. Ex.P58 is Loan Sanction Letter dated 03.04.1998. Ex.P59 is the Debt Clearance Certificate dated 16.03.2002 obtained from DCC Bank Ltd., Tumkur. Ex.P60 is another Debt Clearance Certificate dated 16.03.2002 issued by DCC Bank Ltd., Tumkur. Ex.P61 to Ex.P63 are the Statements of GPF Accounts for the year 2001-2002 to 2006-2007. As he was a Government Servant, amount deducted from his salary regarding contribution and in Ex.P62 withdrawal of Rs.1,97,000/- is mentioned and again in Ex.P63 Rs.2,98,425/- is seen. But until and unless with cogent evidence it is established that with the consent of Sri.N.S.Ganganna he had invested amount in construction 93 O.S.No.7882/2010 c/w O.S.No.6195/2010 of the house with the assurance that property would be given to him he had availed loan cannot be attributed that it was so availed for the purpose of construction of building in the property belonged to Sri.N.S.Ganganna.
62. Ex.P64 is Loan pay-in-slips by Sri.N.S.Ganganna to the Malleshwaram Co-operative Bank Limited, which shows that Sri.N.S.Ganganna has cleared the loan borrowed from the Malleshwaram Co-operative Bank, Rajajinagar, Bangalore. Ex.P65 is the Letter dated 27.06.2012 given to PW-2 by the Malleshwaram Co-operative Bank Ltd. Rajajinagar, Bangalore, that his request to furnish documents pertains to Sri.N.S.Ganganna under R.T.I.Act. It has come in the evidence that Sri.N.S.Ganganna had obtained loan dated 03.07.1998 from the Malleshwaram Co- operative Bank Ltd., Rajajinagar, Bangalore as evidenced by the Agreement - Ex.P66, that is at the relevant point of time over C-schedule property building was erected. In respect of tax paid receipts pertains to property at Manuvana, KHB, he has produced Ex.P67 to Ex.P69 are produced. These are the several receipts evidencing payment of tax by Sri.N.S.Ganganna who is the owner of 94 O.S.No.7882/2010 c/w O.S.No.6195/2010 the property and also he has availed the loan from bank and discharged it. Ex.P70 is the Lease-cum-Sale Agreement 10.04.1989 executed by Bangalore Development Authority in favour of Sri.N.S.Ganganna pertains to Nagarabavi site and PW-2 claims that in the year 1987 he has paid Rs.10,000/- to Sri.N.S.Ganganna to purchase the said property. Except his say nothing is on record worth to believe such contention. Further documents produced shows that Sri.N.S.Ganganna was having salary and savings and there are ample documents produced by the defendant as well as the plaintiff to appreciate that he had income through agricultural source and also from out of his salary, not only purchased the site and also put up construction. Ex.P75 and Ex.P76 shows about his Pensionary Benefits he has received and it is his case that he had worked as Accountant, the salary statement of Sri.N.S.Ganganna is also produced. Much is made that by selling D-schedule property in main partition suit he has made deposits in Sri.Dharmasthala Manjunatha Temple Trust and Sri.Kollur Mookambika Temple Trust as evidenced by Ex.P77. PW.2- Sri.K.Shivaramu had made Herculean effort to show that in 95 O.S.No.7882/2010 c/w O.S.No.6195/2010 his own right he has constructed the building and to the knowledge of his father-in-law he has been in possession of the property adverse to the title and perfected his title by adverse possession. To show the said fact he has produced Ex.P78 the Demand Note dated 22.04.1999 issued by Department of Telecommunications and amount was deposited by him. Ex.P79 is the Telephone Bill dated 06.04.2003 standing in the name of Sri.K.Shivaramu. Ex.P80 are several photographs along with negatives produced at Ex.P81 taken at the time of "Gruahapravesham Ceremony", these photographs were taken. No doubt, Sri.N.S.Ganganna had lost his only son in the year 1984 itself and according to him he had constructed the building and he had permitted his son-in-law to reside in the basement floor and specifically denied the assertion made by PW-2 and his wife PW-1 that Sri.K.Shivaramu had constructed the building. Merely because these photographs were taken, Sri.K.Shivaramu and Smt.G.Kanthamani were seen while performing the pooja, cannot be an evidence to believe that house was constructed by Sri.K.Shivaramu.
96 O.S.No.7882/2010
c/w O.S.No.6195/2010
63. Therefore, other documents produced at Ex.P87 is the letter dated 14.10.1996 issued by Sri.N.S.Ganganna to the Director, Planning Gani and Bhoovignana Department, Bangalore, towards removal of stone in his site and it is his case that he has removed those marble stone and sold it and earned lakhs of rupees. Estimate Letter is produced at Ex.P88. Ex.P89 to Ex.P100 are the approved building plan, katha certificate, water bill and purchase of cement, all are standing in the name of Sri.N.S.Ganganna. Under these circumstances, though Sri.K.Shivaramu in this case has contended that he has made payments for the construction of the building, merely by producing the documents from the custody of the plaintiffs in the main suit who is none else his wife that itself is not a ground to believe that building was constructed by making investment by Sri.K.Shivaramu.
64. But one thing can be gathered from the documentary evidence that cellar portion was leased to him and he has sublet to a Mohammedan person against the conditions of the Lease Deed, that is the reason Sri.N.S.Ganganna had lodged a police complaint, seeking 97 O.S.No.7882/2010 c/w O.S.No.6195/2010 assistance of the police and also got issued legal notice through his advocate, cautioning him not to alter the structure. Because by vacating the tenant as he started altering the existing structure, that was objected by Sri.N.S.Ganganna, can be gathered from the issuance of notice and police complaint.
65. In detail Sri.N.S.Ganganna in his evidence has deposed how he has acquired the site and also he has received amount by taking marble stones and sold it, put up 13 pillars in June 1993 and also he has stated that from the Malleshwaram Co-operative Bank, he had availed loan of Rs.2,93,000/- and cellar portion was leased to Sri.K.Shivaramu, who sublet the same to the Mohammedan person. All these transactions can be gathered from the documents produced. Therefore, under what circumstances he has changed his mind to cancel the Will Deed - Ex.D1 which was executed by him in favour of wife of Sri.K.Shivaramu. The defendant had indulged in demolition of structure, that is the reason he got issued notice dated 12.03.2010. As he has set up his own title in the reply 98 O.S.No.7882/2010 c/w O.S.No.6195/2010 notice, which prompted him to file a suit claiming the relief of declaration.
66. The evidence of K.V.Nagaraj, who is examined as DW.2 has supported the case of DW-1, has stated that Manuvana Site was acquired by Sri.N.S.Ganganna and he himself has constructed the house by removing the stones and he has raised hand loans from others. The said house was constructed in the year 1997-1998 and he has also paid amount to Sri.Ganganna at the time of construction. Merely because he happens to be close friend of Sri.N.S.Ganganna, it cannot be said that his evidence is false. He withstood the cross-examination . Whatever the facts within his knowledge about the borrowing of loan and discharge of loan by Sri.N.S.Ganganna and he himself had constructed the house is deposed by him. Therefore, it is needless to say that by appreciating the evidence of PW-1, PW-2 and also evidence of DW-3 it can be said that Sri.K.Shivaramu has failed to prove that in his own right he has constructed the building and he is in possession and enjoyment of the property.
99 O.S.No.7882/2010
c/w O.S.No.6195/2010
67. No doubt, DW-1 himself admits that he has inducted PW-2 on lease as to the cellar portion is concerned. But regarding the basement portion in which now he is residing along with PW-1, the case of the DW-1 that on the request of the defendant he had accommodated him in the present suit schedule property. Though DW-3 has supported the case of her son-in-law that Sri.K.Shivaramu had constructed the house and thereafter, Sri.N.S.Ganganna and she herself lived along with them in that house for 3 years. It is the positive case of Sri.N.S.Ganganna that he had constructed house by spending huge amount and it cannot be disbelieved because the documentary evidence produced goes to show that he has availed loan from the bank and out of his pensionary benefits income through properties and consideration amount by selling the property and by the evidence of DW- 2 which fortified his stand that he had taken hand loans from his friends. Therefore, the probability of the case if it is tested that Sri.N.S.Ganganna is justified in contending that as per the request made by his son-in-law as he was transferred from Tumkur he had permitted him to occupy 100 O.S.No.7882/2010 c/w O.S.No.6195/2010 basement portion of the suit schedule property and because he was acted against Sri.N.S.Ganganna, he lodged a police complaint as well as issued notice and filed this suit for declaration and seeking vacant possession of basement portion of suit schedule property which is in possession of PW.2-Sri.K.Shivaramu. Therefore, even if we consider the evidence of PW-1 and DW-3 it is clear that Sri.K.Shivaramu occupied the basement portion with the consent and permission of the owner - Sri.N.S.Ganganna and not in any individual right. Because he has not produced any document to show his title. On the contrary, he has set up the title by adverse possession.
68. In the cross-examination of DW-3 she has stated that Sri.N.S.Ganganna has filed S.C.No.292/2013 on the file of Small Causes Court (SCCH-13) for recovery of possession, seeking ejectment of Sri.K.Shivaramu in cellar portion of Manuvana property. But she has stated that still the said case is pending. She admits that she has filed impleadment application in that suit and also claiming share in the said property and her application is pending for consideration. Therefore, one thing is clear that the 101 O.S.No.7882/2010 c/w O.S.No.6195/2010 assertion made by DW.1 - Sri.N.S.Ganganna that Sri.K.Shivaramu has sublet the cellar prtion to a Mohammedan person, that is the reason he got issued legal notice and also filed police complaint stands proved. He has also initiated legal action fro eviction from the cellar portion, for which he has inducted him on lease. That is the subject matter to be decided in S.C.No.392/2013. But in the present suit relief is claimed only in respect of basement portion which is in occupation by Sri.K.Shivaramu. Therefore, all the circumstances, both oral and documentary evidence placed on record would go to show that Sri.K.Shivaramu - PW.2 is in permissive possession of basement portion. Therefore, owner has every right to seek vacant possession by canceling the permission given. Therefore, the evidence of witnesses goes to show that Sri.K.Shivaramu was lawfully inducted under permissive possession, but now by issuing reply notice he has denied the title of the plaintiff. But he has failed to prove the ingredients to claim title by adverse possession. For the simple reason, he has to prove from which date, time and place he started enjoying the premises adverse to the title 102 O.S.No.7882/2010 c/w O.S.No.6195/2010 of the real owner - Sri.N.S.Ganganna. Merely enjoying the property for any length of time doesn't confer any title by adverse possession.
69. In the reply notice dated 26.03.2010, he has contended that by availing the loan he has constructed the house and acquired absolute ownership having right, title and interest over that building. But it is never pleaded that when his possession become adverse to the title of the real owner. The facts pleaded by him may be inter-se what had happened between Sri.N.S.Ganganna and his daughter and under what circumstances he has executed the Will - Ex.D1, later on it was revoked. Therefore, to seek relief of declaration of title by adverse possession, burden is on Sri.K.Shivaramu to establish the said fact and even for the first time in the reply notice he asserts that he has constructed the building, therefore he acquired absolute tile over the building in his possession. Even for argument sake the date of the reply notice is taken as the date he asserts his title hostile to the owner not stated specifically with manifest intention. The continuous uninterrupted possession hostile to the title of the real owner need be 103 O.S.No.7882/2010 c/w O.S.No.6195/2010 proved to succeed to get the relief. In the first place, pleading is silent. He has not raised any counter claim and not paid any court fee on it. Therefore, when in a comprehensive suit it is declared that Sri.N.S.Ganganna is the absolute owner of the property and he himself had constructed the building, it is needless to say that the possession of Sri.K.Shivaramu and his wife - Smt.G.Kanthamani, who are the son-in-law and daughter of Sri.N.S.Ganganna, their possession is permissive and DW-1 by issuing notice sought vacant possession of the basement portion of the building. The defendant has failed to prove Issue Nos.3 and 4. Even he can't contend that he is in lawful possession and absolute owner of cellar portion as well as basement portion and his assertions in this suit is liable to be rejected. On the contrary, in continuation of the detailed discussions made in the main suit, DW.1- Sri.N.S.Ganganna is the absolute owner of the property and entitled to recover vacant possession of the basement floor of the schedule building from PW.2-Sri.K.Shivaramu and from the date of issue of notice at Ex.D9 he has demanded for vacant possession, as such for unauthorized occupation 104 O.S.No.7882/2010 c/w O.S.No.6195/2010 of the suit premises Sri.K.Shivaramu is liable to pay damages from the date of suit till the delivery of possession and that will be determined separately. Accordingly, I answer Issue Nos.1 and 2 in the affirmative and Issue No.3 and 4 in the negative.
70. Issue NO.5 in O.S.No.6195/2010:-
In this case, defendant - Sri.K.Shivaramu has contended that the relief claimed by the plaintiff seeking vacant possession of suit schedule premises i.e., basement floor from him is barred by limitation. But in his evidence he has not come up with clear statement from which date he claims that his possession is hostile to the title of the real owner and with manifest intention to enjoy the property as if it belonged to him adverse to the title of the real owner - Sri.N.S.Ganganna he has been enjoying the same and all these particulars are lacking in his pleadings. Even in reply notice - Ex.D10 nothing is stated except asserted that he had constructed the building and enjoying it as an absolute owner. Therefore, the date of issue of legal notice by Sri.N.S.Ganganna on 12.03.2010 cautioning him not to alter 105 O.S.No.7882/2010 c/w O.S.No.6195/2010 the existing building, filed the police complaint and demanded vacant possession and he has filed the present suit on 01.09.2010. Therefore, suit filed by him is perfectly within limitation. Merely because the defendant- Sri.K.Shivaramu has claimed that he has constructed the building and has been in possession and claim made by his father-in-law is barred by limitation, cannot be a ground to take a view that the relief is barred. Here, the positive evidence given by DW-1 that he has allowed his son-in-law on his request to occupy the basement portion and he has demanded the vacant possession by issuing legal notice. Therefore, cause of action for the suit arose to him from the date of issue of legal notice. The defendant has not proved to the satisfaction of the court about the plea raised by him on limitation. Accordingly, it is held that the defendant has failed to prove that the suit is barred by limitation. Accordingly, I answer this Issue No.5 in the negative.
71. Issue No.6 in O.S.No.6195/2010:
For the detailed discussions made while answering Issue Nos.1 to 5 in O.S.No.6195/2010 it is held that the 106 O.S.No.7882/2010 c/w O.S.No.6195/2010 plaintiff is entitled to get the relief of declaration that he is the absolute owner of the schedule property and in the partition suit in O.S.No.7882/2010 itself this court has recorded its findings about his title and this property is not available for partition in a suit filed by wife of the defendant by name Smt.G.Kanthamani and it is held that the plaintiff
- Sri.N.S.Ganganna is entitled to get vacant possession of the basement floor of suit schedule building from the defendant - Sri.K.Shivaramu. As by issuing legal notice the plaintiff has demanded vacant possession, therefore the defendant is unauthorisedly enjoying the property and it is not his case that he is in occupation as a tenant nor he has paid any rentals to Sri.N.S.Ganganna. On the contrary, he has asserted that he himself has constructed the building and he is the owner of the building, but failed to prove the same to the satisfaction of the court. Therefore, from the date of suit till handing over of vacant possession he is liable to pay damages, same will be determined separately. Accordingly, I answer Issue No.6 in the affirmative. 107 O.S.No.7882/2010
c/w O.S.No.6195/2010
72. Issue No.3 in O.S.No.7882/2010 and Issue No.7 in O.S.No.6195/2010:
As this court has given clear findings in the partition suit in O.S.No.7882/2010 holding that the plaintiffs are not entitled to seek partition in the suit schedule properties and suit filed by the plaintiffs against the defendants seeking partition is liable to be dismissed. Hence, I proceed to pass the following:-
ORDER Suit filed by the plaintiffs against the defendants in O.S.No.7882/2010 is hereby accordingly dismissed.
The claim made by defendant No.2- Smt.Kempamma seeking share in the suit schedule properties is also dismissed.
Under the circumstances taking into consideration of the close relationship of the parties, they shall bear their own costs.
Suit filed by the plaintiff against the defendant in O.S.No.6195/2010 is hereby decreed with costs. 108 O.S.No.7882/2010
c/w O.S.No.6195/2010 It is declared that the plaintiff is the absolute owner of the suit schedule property. The plaintiff is entitled to get vacant possession of basement floor from the defendant. The plaintiff is entitled to get damages for use and occupation of basement portion of suit schedule property by the defendant from the date of suit till the actual delivery of vacant possession and same will be determined separately.
Draw a decree accordingly.
Copy of the judgment shall be kept in O.S.No.6195/2010.
(Dictated to the Judgment Writer on computer, typed by her, the transcript thereof corrected and then pronounced by me, in open Court, this the 3rd day of January 2017) (BAILUR SHANKAR RAMA) ND 42 ADDL. CITY CIVIL & SESSIONS JUDGE, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiffs' side in O.S.No.7882/2010:
PW.1 - Smt.G.Kanthamani 109 O.S.No.7882/2010 c/w O.S.No.6195/2010 PW.2 - Sri.K.Shivaramu
(b) Defendants' side:
DW.1 - Sri.N.S.Ganganna DW.2 - Sri.K.V.Nagaraja DW.3 - Smt.Kempamma II. List of documents exhibited on behalf of:
(a) Plaintiffs' side:
Ex.P1 : Certified copy of Sale Deed dated
17.10.1941
Ex.P2 : Encumbrance Certificate
Ex.P3 : Certified copy of Sale Deed dated
12.09.1941
Ex.P4 : Certified copy of Sale Deed dated
05.02.1943
Ex.P5 : Certified copy of Sale Deed dated
05.08.1942
Ex.P6 : Certified copy of Sale Deed dated
01.12.1947
Ex.P7 : Certified copy of Sale Deed dated
07.05.1973
Ex.P8 : Certified copy of Sale Deed dated
22.04.1974
Ex.P9 : Certified copy of Sale Deed dated
18.09.1974
Ex.P10 : Certified copy of Sale Deed dated
29.05.1968
Ex.P11 : Certified copy of Sale Deed dated
30.05.1963
Ex.P12 : Encumbrance Certificate
Ex.P13 : Certified copy of Sale Deed dated
16.05.1972
Ex.P14 : Encumbrance Certificate
Ex.P15 : Letter of Allotment of House dated
17.06.1983
Ex.P16 : On-demand Certificate with
Receipt dated 20.05.1981
Ex.P17 : Certified copy of Sale Deed dated
110 O.S.No.7882/2010
c/w
O.S.No.6195/2010
30.12.1995
Ex.P18 to 53 : Bank Challans
Ex.P54 : Letter of Karnataka Bank Ltd.
dated 28.12.2011
Ex.P55 : Annual Statement of GPF Account
Ex.P56 : Letter to DCC Bank dated
17.01.1998
Ex.P57 : Undertaking Letter dated
24.01.1998
Ex.P58 : Loan Sanction Letter dated
03.04.1998
Ex.P59 & 60 : Loan Clearance Letters
Ex.P61 to 63 : GPF Statements
Ex.P64 : 90 Pay-in-Slips
Ex.P65 : Letter from the Malleshwaram Co-
operative Bank Ltd. dated
27.06.2012
Ex.P66 : Loan Agreement dated 03.07.1988
Ex.P67 : 20 Tax Paid Receipts
Ex.P68 & 69 : Encumbrance Certificates
Ex.P70 : Certified copy of Lease-cum-Sale
Agreement dated 10.04.1989
Ex.P71 : Encumbrance Certificate
Ex.P72 : Certified copy of Sale Deed dated
06.06.2002
Ex.P73 : Copy of Service Register
Ex.P74 : Salary Statement
Ex.P75 : DCRG Statement
Ex.P76 : Intimation of AG's regarding
Pensionary Benefits
Ex.P77 : Letter from Sri.Mookambika
Temple, Kollur dated 07.12.2010
Ex.P78 : Demand Note
Ex.P79 : Telephone Bill
Ex.P80 : 30 Photographs
Ex.P81 : Negatives
Ex.P82 : Genealogical Tree
Ex.P83 : Deed of Revocation of Will dated
26.11.2009
Ex.P84 : Certified copy of written statement
in O.S.No.364/2009
Ex.P85 : Certified copy of Allotment Letter
111 O.S.No.7882/2010
c/w
O.S.No.6195/2010
dated 11.11.1987
Ex.P86 : Application Form for Allotment of
Site
Ex.P87 : Letter dated 14.10.1996
Ex.P88 : Certified copy of Estimate dated
12.09.1994 of KHB
Ex.P89 : Notice-cum-Special Notice from
Bangalore Mahanagara Palike
dated 20.11.1999
Ex.P90 : Water Connection Card issued
from BWSSB
Ex.P91 : Uttara Pathra dated 05.09.1994
Ex.P92 : Building Plan
Ex.P93 : Letter from ACC - RMC dated
24.01.1998
Ex.P94 to 99 : Receipts and Invoices
Ex.P100 : Bill
Ex.P101 : Certified copy of Sale Agreement
dated 17.11.1974
Ex.P102 : Certified copy of Judgment passed
in O.S.No.86/1989
Ex.P103 & 104 : 2 Diaries
Ex.P105 : Statement of Expenditure
Ex.P106 : Pass Book of DW-1 maintained at
Syndicate Bank
(b) Defendants' side:
Ex.D1 : Will dated 29.08.2006
Ex.D2 : Complaint to S.I. of Vijayanagara
Police Station
Ex.D3 : Intimation of Allotment from
Karnataka Housing Board
Ex.D4 : Memo (Possession Certificate) from
Karnataka Housing Board
Ex.D5 : Absolute Sale Deed dated
29.09.2006
Ex.D6 : Certified copy of Order of
C.C.C.No.436/1991
Ex.D7 Certificate from Corporation of the
City of Bangalore
112 O.S.No.7882/2010
c/w
O.S.No.6195/2010
Ex.D8 Plan
Ex.D9 Legal Notice dated 12.03.2010
Ex.D10 Reply dated 26.03.2010
Ex.D11 : Certified copy of Sale Deed dated
01.12.1947
Ex.D12 : Certified copy of Sale Deed dated
22.04,1974
Ex.D13 : Certified copy of Sale Deed dated
18.09.1974
Ex.D14 : Certified copy of Sale Deed dated
06.06.2002
Ex.D15 : Memorandum relating to Deposit of
Title Deeds
Ex.D16 : Suit Notice dated 18.09.2008 from
The Malleshwaram Co-operative
Bank Ltd
Ex.D17 : Receipt from The Malleshwaram Co-
operative Bank Limited
Ex.D18 : Notice dated 07.08.1996
Ex.D19 & 20 : Tax Paid Receipts
Ex.D21 : Notice-cum-Special Notice dated
06.06.1998
Ex.D22 : Permission Certificate dated
22.11.1996
Ex.D23 : Encumbrance Certificate
Ex.D24 & 25 : Mutation Register Extracts
Ex.D26 : Intimation of Allotment dated
20.09.1995
Ex.D27 : Absolute Sale Deed dated
29.09.2006
Ex.D28 : Possession Memo dated 24.06.1996
Ex.D29 : Katha Certificate dated 22.08.1998
Ex.D30 : Approved Plan
Ex.D31 : Receipt
Ex.D32 to 34 : 3 RTCs
Ex.D35 : Original Sale Deed dated 01.12.1947
Ex.D36 : Certified copy plaint in O.S.364/2009
Ex.D37 : Certified copy Judgement & Decree
dated 07.03.2012 in O.S.6631/2009
Ex.D38 : Certified copy of plaint in
O.S.6631/2009
Ex.D39 : Order copy in MFA.No.3792/2014
113 O.S.No.7882/2010
c/w
O.S.No.6195/2010
Ex.D40 : Certified copy of Deposition of
Smt.Kempamma in O.S.No.364/2009
Ex.D41 & 42 : 2 RTCs
Ex.D43 : Genealogical Tree
Ex.D44 : Certified copy of Deposition of
Sri.N.S.Ganganna in O.S.364/2009
Ex.D45 : Certified copy of Deposition of
Smt.Kempamma in M.C.2852/2010
Ex.D46 : Certified copy of Written statement
in O.S.No.364/2009
42nd ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU.