Bangalore District Court
) Smt.Savitha.C vs ) Chikkaabayappa @ Eshwa on 4 June, 2016
IN THE COURT OF IX ADDL.CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE (C.C.H.5)
Dated: This the 4th day of June 2016
Present: Shri Krishnamurthy B.Sangannanavar,
B.Com.LL.B., (Special)
IX Addl. C.C & S.J, Bangalore.
O.S. NO.1009/2012
Plaintiffs: 1) Smt.Savitha.C, W/o. Chandra
Murthy, D/o.Chikkaabayappa @
Eshwarappa, Aged about 39 years,
R/o. u/s.151 of C.P.C Sri Krishna
Nilaya, 1st Cross, Near Basawesh-
wara Temple, Cholanayakanahalli,
R.T.Nagar Post, Bangalore 560
032.
2)Smt.Usha.C, W/o. Vishwanatha
M.S. D/o.Chikkaabayappa @
Eshwarappa, Aged about 33 years,
R/o.33, Manjunatha Nilaya,
Muniyellappa Garden, 21 Cross,
st
Ejipura, Vivekanagar Post,
Bangalore 560 047.
[By Sri.T.K.Rajagopala, advocate]
-Vs-
Defendants: 1) Chikkaabayappa @ Eshwa-
rappa, S/o.late Chikkaabaiappa,
aged 65 years, R/o.16, S.S.A.
Road, 4th Main Road, Hebbal,
Kasaba Hobli, Bangalore 560 024.
2 O.S.No.1009/2012
2) Mohanlal P.Jain, S/o.Prem-
chandji,
Since deceased by his LRs:
2(a) Smt.Tulasi Bai, W/o. late
Mohanlal P.Jain, R/a No.65/30,
Venkusahji Lane, Chickpet Cross,
Bangalore 560 053.
Business address : No.179, Mohan
Fashions, Anand Bhavan Building,
Chickpet, Bangalore 560 053.
3) S.Raghunath, S/o.late H.
Shankar, Major, R/a NO.306, 17th
"C" Main, 3rd Block, Rajajinagar,
Bangalore.
4) Dasappa, S/o.Venkatachala,
Major, R/a No.14, Kempanna
Nilaya, 4th Main Road, S.S.A.Road,
Hebbal, Kasaba Hobli, Bangalore
560 024.
5) The Special Land Acquisition
Officer, KIADB, Peenya Industrial
Estate, Bangalore city.
(D1 & 4 : Exparte
D2(a) By Sri.BR, advocate
D3 : By Sri.VMG, advocate)
Date of institution of the suit 02.02.2012
Nature of the suit Partition
Date of commencement of 30.01.2014
recording the evidence
3 O.S.No.1009/2012
Date on which the judgment 04.06.2016
was pronounced
Total duration : Day/s Month/s Year/s
02 04 04
JUDGMENT
This is a suit filed by plaintiffs for partition of schedule properties by metes and bounds and to allot 2/3rd share in item No.1 and to direct defendant No.5 to pay their 2/3rd compensation amount in respect of item No.1 of the suit schedule property. Further, to restrain 1st defendant from alienating items 2 and 3 of the schedule properties and to restrain defendant No.5 from disbursing compensation amount in respect of item No.1 to defendant No.2.
2. On facts, case of the plaintiffs is pleaded below:
1st defendant is their father, 2nd defendant is purchaser of item No.1 of the schedule property under sale deed dated 6.7.1992. Item No.1 has been acquired by defendant No.5. Defendants 3 and 4 are formal parties as defendant No.1 has executed GPA in favour of defendant No.3 which 4 O.S.No.1009/2012 has been revoked on 2.3.2007 as to item No.2 of the schedule property. Similarly, defendant No.4 is alleged GPA holder of defendant No.1. Their father 1st defendant got share in the family partition dated 8.10.19072 between him and his two brothers H.C.Anjanappa and H.C.Govindappa. The properties are ancestral joint family properties, plaintiffs have got 1/3rd share each. They are in joint possession and enjoyment of schedule properties. As 1st defendant has refused to effect partition of their share filed this suit for partition of their 2/3rd share and similar share in compensation payable by defendant No.5 and as consequential relief sought restraining the 1st defendant from alienating item No.2 and 3 of the suit properties and to restrain defendant No.5 from disbursing compensation amount in respect of item No.1 of the property.
3. 2nd defendant died during pendency of the suit, as such, his wife defendant No.2(a) is brought on record. Defendant No.1 and 4 are set exparte. defendant No.2(a) submitted her written statement contending that item No.1 measuring 7 guntas at Hebbal village was purchased by her husband 5 O.S.No.1009/2012 under registered sale deed dated 6.7.1992 and since then, her husband and after his death, she became owner of the said property which was acquired by defendant No.5. However, compensation is not received since are agitating, questioning the very acquisition itself. Item No.1 of the property was allotted to the share of defendant No.1 in a partition effected in his family consisting of his two brothers along with other properties and the 1st defendant as owner in possession of the said property sold under registered sale deed which is not available for partition. In fact, 1st defendant agreed to sell the said property in favour of J.Chandrakeerthi under an agreement of sale dated 17.1.1992. However, Mr.J.Chandrakeerthi could not able to pay the balance sale consideration as such, 1st defendant in terms of agreement of sale dated 8.4.1992 executed a registered sale deed by receiving balance sale consideration of Rs.40,000/- on 6.7.1992 duly registered on 9.7.1992 which was in possession since 1992 till his death. The suit of the plaintiffs is collusive suit filed after lapse of 21 years. This property was acquired by 5th defendant for the purpose of formation of ring road and she has 6 O.S.No.1009/2012 applied for de-notification of the said property. The plaintiffs are not in joint possession of schedule property. Their suit is not maintainable as they failed to pay court fee u/s.35(1) K.C.F. & S.V.Act.
4. 3rd defendant submitted written statement contending that suit filed by plaintiffs is filed in collusion with defendant No.1 their father. The plaintiffs could not maintain such suit as the 5th defendant has acquired item No.1 of the property vide notification dated 23.2.2004 for the benefit of M/s.Lakeview Tourism Corporation. Knowing fully well that said property is alienated in favour of one M.S.Mahadevaiah, 1st defendant filed suit for injunction in O.S.No.2361/2008 which came to be dismissed for non-prosecution. The registered GPA executed by 1st defendant in his favour could not be revoked. The court fee paid on the plaint is totally insufficient and the suit is liable to be dismissed.
5. In view of the above prime pleadings, this court formulated the following issues for the purpose of trial:
7 O.S.No.1009/2012(1) Whether plaintiffs prove their 2/3rd share in suit item Nos.2 and 3 and prove their entitlement of compensation amount from defendant No.5?
(2) Do they prove the alleged obstruction of defendants 1, 2 and 5 in respect of items 1 to 3 properties?
(3) Whether defendant No.2(a) has perfected his title to the schedule property by law of adverse possession?
(4) Does he prove that suit is barred by law of limitation?
(5) Whether court fee paid and valuation made is correct?
(6) Whether plaintiffs are entitled for the relief sought for?
(7) What order and decree?
6. In support of the above issues, 1st plaintiff examined herself as P.W.1 and through her, Exs. P-1 to P-52 documents got marked. On the contrary, GPA of defendant No.2(a) examined as D.W.1 and through him, Exs.D-1 to D-11 got marked.
8 O.S.No.1009/20127. After closure of evidence on either side, having heard the learned counsels on record, this court would prefer to record the following findings on the above issues:
Issue Nos.1 & 2: In the Negative Issue Nos.3 & 4: Do not survive for consideration.
Issue No.5 : Court fee paid u/s.
35(2) of K.C.F. & S.V.
Act, is incorrect.
Issue No.6 : In the Negative
Issue No.7 : As per final order,
for the following:
REASONS
8. Issue Nos.1 to 6: This is a suit filed by plaintiffs 1 and 2, the daughters of 1st defendant, for partition of their 2/3rd share in schedule 1 to 3 of the properties. Further sought to restrain their father from alienating items 2 and 3 of the schedule properties and sought for grant of permanent injunction restraining 5th defendant from disbursing compensation amount in respect of item No.1 of the schedule property to defendant No.2. It is to be noted here that defendant No.2 died during pendency of the suit and his wife 9 O.S.No.1009/2012 brought on record as defendant No.2(a) as such, henceforth defendant No.2 refers to defendant No.2(a) as she is one of the legal representative, since plaintiffs are the other legal representative are already on record in such capacity.
9. The cause of action for these two daughters to sue their father and 5th defendant - The Special Land Acquisition Officer, KIADB could be found in paragraph-24, that was arose on 26.1.2012 when their father refused to effect partition of the schedule properties. They have valued suit for Rs.14.00 lakhs for the purpose of payment of court fee and jurisdiction thereby, paid Rs.400/-
u/s.35(2) of K.C.F. & S.V.Act, 1958. Further paid Rs.50/- u/s.26(c) of the said Act valuing their suit for injunction at Rs.1000/-. In other words to say that to such suit, such payment of court fee as pleaded, if would be said that they have first of all to prove their joint possession of schedule properties with their father 1st defendant. Further to be noted here that they have not questioned the registered sale deed dated 6.7.1992 executed by their father in favour of 2nd defendant in respect of item No.1 of the property. Similarly, having been 10 O.S.No.1009/2012 made defendant No.3 Mr.S.Raghunath, Defendant No.4 Dasappa have not questioned the GPA said to have been executed by defendant No.1 in their favour in respect of item No.2 and 3 properties. However, pleaded that they are only formal parties. Under such circumstances, Court has to examine the evidence of P.W.1 coupled with Ex.P-1 to P-52 and evidence of D.W.1 coupled with Ex.D-1 to D-11.
10. 1st plaintiff Smt.Savitha in her evidence deposed categorically that 1st defendant is her father, 2nd defendant is purchaser of item No.1 of the property from his father under registered sale deed dated 6.7.1992 and the said property has been acquired by defendant No.5. Her father got schedule properties in a family partition dated 8.10.1972 held between him and his brothers H.C.Anjanappa and H.C.Govindappa. Though she has impleaded defendant No.3 as formal party on the ground that her father executed GPA in his favour, has shown her ignorance in cross- examination. Similarly, has shown her ignorance that she is not aware of the fact that 3rd defendant has nominated Mr.Abdul Rafiq through special 11 O.S.No.1009/2012 power of attorney transferring the property bearing Survey No.83/3 measuring 9½ guntas. She is not aware of the fact that said Abdul Rafiq has executed a sale deed in respect of said property under registered sale deed dated 16.1.2007 in favour of Mr.M.S.Mahadevaiah. She has not produced GPA said to have been revoked by 1st defendant appointing defendant No.3 as his GPA and she is not aware why O.S.No.2361/2008 is filed by her father against 3rd defendant. It is elicited through her evidence that the said alienation of her father in favour of 3rd defendant through GPA was even prior to 15 years ago. However, she could not able to say definitely when it was transferred by her father through GPA. It has come in the evidence that suit filed by 1st defendant against defendant No.3 for grant of permanent injunction came to be dismissed for non-prosecution and the status would be that said suit is dismissed. It is found from her evidence that item No.1 and 2 properties are already acquired are not in joint possession of plaintiffs and 1st defendant. Learned counsel for defendant No.2(a) and defendant No.3 submit that suit filed by plaintiffs is a collusive suit which could be borne 12 O.S.No.1009/2012 from documents as all the documents produced by plaintiffs were obtained by 1st defendant. However, he is set exparte for the reasons best known to him. Even she admits in her evidence that Ex.P-52 and other documents produced by her were supplied by her father, suffice to hold that suit filed by plaintiffs is a collusive suit praying to effect partition of their 2/3rd share although they are not in joint possession as on the date of the institution of the suit. When they failed to prove that they are in joint possession of the schedule properties, question of considering their case on the basis of payment of court fee of Rs.200/- + Rs.200/- u/s.35(2) of K.C.F. & S.V.Act, and considering their case for grant of permanent injunction does not arise at all.
11. If we examine Ex.D-4 could see that on 8.10.1972 besides items 1 to 3, Survey No.58/1 measuring 3½ guntas was also allotted to the share of 1st defendant which is not brought under the suit and they failed to bring house property under this suit corroborate the fact that suit filed by plaintiffs in collusion with their father 1st defendant. It is found from defence statement of 3rd 13 O.S.No.1009/2012 defendant that defendant No.3 executed sale deed on 16.1.2007 in favour of M.S.Mahadevaiah and at that time comes to his knowledge about acquisition of the said property by defendant No.5 for the benefit of M/s.Lakeview Tourism Corporation. Further, Ex.P-51 GPA executed by 1st defendant in favour of defendant No.3 dated 26.10.1990 is a registered GPA which cannot be revoked under Ex.P-52 dated 2.3.2007 after lapse of 17 years as contended has some legal force.
12. It is elicited from evidence of P.W.1 that her marriage was performed during 1994 and she was residing with 1st defendant, since the year of her marriage and she thereafter, went to the house of her husband. She has deposed that since Survey No.58/1 measuring 7 guntas is not available was not included in the plaint schedule. It is to be noted here that defendant No.2(a) and defendant No.3 have shown that other properties are also not available for partition. In other words to say that item No.1 and 2 properties are acquired as stated above are not in joint possession of plaintiffs and defendant No.1, as such question of effecting 14 O.S.No.1009/2012 partition of share of plaintiffs in those properties does not arise at all.
13. Further, plaintiffs have not produced any documents to show as to why 4th defendant is made a party in the present suit. It is not known whether item No.3 property also alienated by 1st defendant in favour of any third parties. If we examine Ex.P-11 recited that property under the said schedule was sold for the benefit of family, in particular for the benefit of her daughters. It is also found in her cross-examination evidence that four houses were built in the site of her father of which three are let out and in one such house, she is residing, yet, they are not brought under the plaint schedule to seek partition would establish that her suit is a collusive suit.
14. As already stated above, what she has produced documents into Court were obtained from her father is categorically admitted in her evidence, yet, her father is set exparte. In so far evidence of D.W.1 is concerned, he is GPA of defendant No.2(a), aged about 36 years and has reiterated defence statement of defendant No.2(a).
15 O.S.No.1009/2012Further, has deposed categorically that deceased defendant No.2 has purchased Survey No.94/1 measuring 7 guntas which is item No.1 under registered sale deed marked as per Ex.D-2 dated 6.7.1992. Besides, has produced Ex.D-3 and D-4 mutation register extract that pursuant to Ex.D-2, name of defendant No.2 got mutated. Ex.D-5 to D-7 are RTC also corroborate that deceased defendant No.2 has purchased item No.1 property under Ex.D-2. Even prior to Ex.D-2 since 1st defendant entered into an agreement of sale of item No.1 of the property with Mr.J.Chandrakeerthi as per Ex.D-8 and said Chandrakeerthi has received Rs.6000/- from defendant No.2 on 27.1.1992 as there was an agreement of sale under Ex.D-10 on 17.1.1992 which came to be repudiated or cancelled. Only thereafter, agreement of sale was entered between 1st defendant and 2nd defendant as per Ex.D-11 to which previous purchaser Mr.J.Chandrakeerthi signed as witness. Thus, these documents go to show that since 1992 namely, since the date of Ex.D-2, defendant No.2 as owner in possession of the said property has enjoyed however is not in joint possession of plaintiffs and 1st defendant. It is found that the 16 O.S.No.1009/2012 said property is acquired by defendant No.5 and the 2nd defendant is still agitating to de-notify which cannot be said that said property is in joint possession of plaintiffs and 1st defendant available for partition. Further nowhere, plaintiffs pleaded that their father sold the property not for the benefit of their family and he has sold or alienated for his bad debts. 1st plaintiff at the time of sale of item No.1 of the property was 19 years and 2nd plaintiff was 13 years and the items 1 and 2 were alienated by 1st defendant in 1992 and as stated above, are not challenged the alienation within 12 years from such alienation, though they were residing with 1st defendant. Defendants 2 to 4 after they had knowledge of alienation, failed to bring all the properties of the family under hotch-potch to seek partition of their share also establish that their suit is collusive suit for the reason best known to them.
15. In the above such circumstances, as rightly submitted by learned counsel for defendant No.2(a) and 3 that Sec.6 of Hindu Succession Act does not come to the assistance of plaintiffs followed by judgment of the Hon'ble Apex Court in 17 O.S.No.1009/2012 Civil Appeal No.7217/2013 in Prakash & Others vs. Phulavati & others wherein in para-22 & 23 held, "22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20th December 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20th December, 2004. In 18 O.S.No.1009/2012 no case statutory notional partition even after 20th December, 2004 could be covered by the Explanation or the proviso in question.
23. 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 transaction of partition effected thereafter will be governed by the Explanation."
16. Further, to be noted here that they failed to establish that alienation by 1st defendant - father, as kartha of the joint Hindu family were tainted by any immoral or illegal purpose or for bad vices and not for the benefit or welfare of the family, as such, 1st defendant father as kartha of the family is legally entitled to alienate property. Further to be noted here that when he has already alienated properties, plaintiffs with his collusion 19 O.S.No.1009/2012 cannot seek for partition in respect of properties which are not available to their family. In other words to say that they are miserably failed to prove their joint possession of these properties and they failed to show that they are in joint possession or still available to their family.
17. In this regard, learned counsel for defendant No.2(a) placed a reliance reported in (1997) 9 SCC 701 in Sunder Das and others vs. Gajananrao and others wherein it was held, "Father-kartha legally entitled to alienate the property of the joint family and interest of minor member of the family for his own requirement unless it is shown that the transaction was tainted by any immoral or illegal purpose."
18. Further, under Article 58 of Schedule-II Limitation Act, period of limitation provide is three years to obtain any other declaration whereas under Article 109, the period described is 12 years, suit filed not for declaration of right but to declare that alienation of joint family property null and void to which Article 109 of Schedule-II is 20 O.S.No.1009/2012 applicable. It is therefore, even if plaintiffs could have sought for such relief, viewed from any angle, since P.W.1 was residing with 1st defendant till the years of her marriage had knowledge of the alienation, as such she has to be held had knowledge of the alienations of 1st plaintiff. Further, her own evidence establish that all the documents are supplied by 1st defendant, which also could be corroborate from the documents that they were applied and received by 1st defendant were being supplied to plaintiffs for the purpose of filing of this suit is made out from the evidence on record, as such, even if such relief could have been made, would be barred by law of limitation. However, plaintiffs herein the suit have sought for simple partition with a plea that they are still in joint possession and they are available to the family, as such, issue on limitation does not survive for consideration.
19. Learned counsel for plaintiffs placed a reliance reported in (1985) 2 KLJ 104 in Ganapati Santaram Bhosale and another vs. Ramachandra Subbarao Kulkarni and others wherein it was held, 21 O.S.No.1009/2012 "It is now well settled that in a suit for partition by Hindu coparcener it is not necessary for him to seek the setting aside of the sale. It is sufficient if he asks for his share in the joint family properties and he be put in possession thereof and for a declaration that he is not bound by any alienations or interest of others created in such properties." does not come to the assistance of plaintiffs since they have miserably failed to prove their joint possession of schedule properties with 1st defendant.
20. Further, on facts, (2015) 3 AKR 706 in Nanjamma vs. Akkayamma & others wherein it was held, "Hindu Succession Act, 1956 - Section 6, 8 -Karnataka Court Fees and Suits Valuation Act, 1958 - Section 11, 35, 35(2), 35(1), 35(2) - Tamil Nadu Court Fees and Suits Valuation Act, 1955 - Section 37(1)" is also not come to their assistance. Thus, this court reaching to such conclusions, as plaintiffs have miserably failed to prove that items 1 to 3 are still in their joint possession with 1st defendant, as such question of alleged obstructions of defendants 1, 2 and 5 does not arise at all, as 22 O.S.No.1009/2012 such findings on issue Nos.1, 2 and 6 would be held without saying in the Negative.
In view of the negative findings on issue Nos.1, 2 and 6, recording finding on issue Nos.3 and 4 do not survive for consideration at all. Accordingly, recorded finding on these issues.
Further, to record that court fee paid by plaintiffs u/s.35(2) of K.C.F. & S.V.Act, is incorrect and even on this ground, plaintiffs are held not entitled for any reliefs in respect of items 1 to 3 of the properties, since they are not in joint possession of the suit properties.
21. Issue No.7: In view of the above findings and in the result, this court passes the following:
O R D E R
(a) The suit of the plaintiffs 1 and 2 in O.S.No.1009/2012 is hereby dismissed with cost.
(b) Draw a decree accordingly.
(Dictated to the J.W., transcribed by her, corrected and then pronounced by me in the open court, on this the 4th day of June 2016).
(Krishnamurthy B.Sangannanavar) IX Addl. City Civil & Sessions Judge, Bangalore.
23 O.S.No.1009/2012A N N E X U R E List of witnesses examined for plaintiffs:
P.W.1 Savitha C List of witnesses examined for defendants:
D.W.1 Rajesh Kumar B.Jain List of documents exhibited for plaintiffs:
Ex.P-1 Family tree
Ex.P-2 to 7 RTCs
Ex.P-8 Mutation copy
Ex.P-9 M.R.register extract
Ex.P-10 RTC of Survey No.59/5
Ex.P-11 Certified copy of sale deed dated
6.7.1992
Ex.P-12 Encumbrance certificate
Ex.P-13 to 15 Endorsements issued by BBMP
Ex.P-16 & 17 Mutation register extract
Ex.P-18 to 23 RTCs
Ex.P-24 Sketch
Ex.P-25 Encumbrance certificate
Ex.P-26 to 35 RTCs
Ex.P-36 Mutation copy
Ex.P-37 & 38 Copy of tippani
24 O.S.No.1009/2012
Ex.P-39 Encumbrance certificate
Ex.P-40 to 46 RTCs
Ex.P-47 & 48 Tippani copies
Ex.P-49 Encumbrance certificate
Ex.P-50 Certified copy of sale deed dated
6.12.1937
Ex.P-51 Certified copy of GPA dated
26.10.1990
Ex.P-52 Certified copy of GPA revocation
List of documents exhibited for defendants:
Ex.D-1 SPA
Ex.D-2 Sale deed dated 6.7.1992
Ex.D-3 & 4 Mutation register
Ex.D-5 to 7 RTCs
Ex.D-8 Panchayat parikath palupatti
Ex.D-9 Receipt dt.27.1.1992
Ex.D-10 Advance agreement dt.17.1.92
Ex.D-11 Agreement for sale dt.8.4.1992
Ex.D-11(a) Endorsement by 1st defendant
IX Addl. City Civil & Sessions
Judge, Bangalore.