Bangalore District Court
In Smt. Lokamba.D vs In 1) Smt.Leelavathi on 18 August, 2016
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 18th August 2016
PRESENT
SRI MUSTAFA HUSSAIN.S.A., B.A., LL.M.
XVIII Addl.City Civil Judge.
O.S.Nos.8480/2001 & 531/2002
Plaintiff in Smt. Lokamba.D.
OS.No.8480/2001 W/o Sambashivachari,
Aged about 48 years,
R/at In a portion of old No.45
New No.26, Subramanya Lane,
Bhashyam Road Cross,
Cottonpet (Aralepet),
B A N G A L O R E - 53.
[By Sri.K.K.T., Advocate]
/VS/
Defendants in 1) Smt.Leelavathi,
OS.No.8480/2001 W/o N.Krishnamurthy,
Aged about 50 years,
2. K.Srinivasalu,
S/o N.Krishnamurthy,
Aged about 36 years,
2 O.S.No.8480/2001 & 531/2002
3. Prabhakara,
S/o N.Krishnamurthy,
Aged about 28 years,
4. Smt.Hemavathi,
D/o N.Krishnamurthy,
Aged about 32 years,
All are R/at in a portion of
Old no.5, New No.26,
Subramanya Lane,
Bhashyam Road Cross,
Cottonpet (Aralepet)
B A N G A L O R E - 53.
5.K.Ramamurthy,
S/o N.Krishnamurthy,
Aged about 34 years,
C/o Sri.E.Mohanachari,
No.176, Raghavendra Block,
Srinagar,
B A N G A L O R E - 50.
[By Sri.G.M.R.,Adv., of D1, 3 & 4,
Sri.J.M.Y., Adv., for D2, Sri.J.S.S.,
Adv., for D5]
Plaintiff in
OS.No.531/2002: D.Srinivaslu @ D.Srinivas,
Adopted son of E.Doresway @
Doreswamy Chari,
Major in age,
R/at 1st Floor, attached to Door No.26,
Subramanya Lane, Cottonpet(Aralepet)
B A N G A L O R E - 53.
[By Sri.G.N.Advocate]
/VS/
3 O.S.No.8480/2001 & 531/2002
Defendants in 1. E.Doreswamy @ Doreswamy Achari,
OS.NO.531/2002 S/o Late Eswarachari,
Major in age,
R/at No.26, Ground Floor,
Subramanyam Lane,
Cottonpet (Aralepet)
B A N G A L O R E - 53.
2. Smt.D.Lokamba,
W/o Sambashivachari,
Major in age,
R/at In a portion of old Door No.5
New No.26, Subramanya Lane,
Cottonpet (Aralepet),
B A N G A L O R E - 53.
3. Smt. Leelavathi,
W/o N.Krishnamurthy,
Aged about 62 years,
R/at No.26, Ground Floor,
Subramanya Lane,
Cottonpet (Aralepet),
B A N G A L O R E - 53.
[By Sri.B.S.S. Adv. for D1 & 2
Sri.GM.R., Adv., for D3.]
Date of institution of OS.No.8480/2001 - 08.11.2001
suit OS.No.531/2002 - 22.01.2002
Nature of the Suit OS.No.8480/01 -Possession and
(suit on pronote, suit Mesne profits.
for declaration and
possession suit for OS.No.531/02 - Partition and
injunction,) etc. declaration.
Date of the OS.No.8480/01 - 24.3.2008
commencement of
recording of the OS.No.531/02 - 04.1.2011.
evidence.
4 O.S.No.8480/2001 & 531/2002
Date on which the 18.08.2016
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: OS.8480/01 - 14 09 10
OS.531/02 - 14 06 26
(MUSTAFA HUSSAIN.S.A.)
XVIII Addl.City Civil Judge,
Bangalore.
COMMON JUDGMENT
The plaintiff in OS.No.8480/2001 has filed this
suit against the defendants 1 to 5 for the relief of
recovery of possession of suit B schedule properties,
mesne profits and costs.
2. The plaintiff in OS.No.531/2002 has filed
the suit against the defendants 1 to 3 for the relief of
partition and separate possession of his half share in
suit A, B & C schedule properties or to declare that he
is the owner of B Schedule property as per partition
list-cum-deed executed by 1st defendant
dtd.26.12.1999 and to declare the gift deed
dtd.31.3.2000 executed by 1st defendant in favour of
5 O.S.No.8480/2001 & 531/2002
2nd defendant as null and void, as not binding on the
him and for costs.
3. Before adverting to other aspects it is
necessary to mention the suit in OS.No.8480/2001
was pending on the file of learned CCH-32 and
thereafter it was withdrawn and transferred by virtue
of the orders in Mis.No.951 /2008 to this court.
Subsequently the suit in OS.NNo.8480/2001 and
OS.NO.531/2002 were clubbed by this court vide
orders dtd.9.9.2009 for common trial and disposal.
Thereafter common evidence has been recorded in
OS.NO.8480/2001.
4. The plaintiff in OS.No.8480/2001 is the 2nd
defendant in OS.NO.531/2002. The 2nd defendant in
OS.No.8480/2001 is the plaintiff in OS.NO.531/2002.
For the sake of convenience the parties in both the
suits are referred as per their ranking in
OS.NO.8480/2001.
5. The brief and relevant facts as alleged in the
plaint in OS.No.8480/2001 are as follows:
6 O.S.No.8480/2001 & 531/2002
The plaintiff has alleged that she and 1st
defendant are the daughters of Sri.E.Doraiswamy and
the said E.Doraiswamy was the absolute owner of the
property bearing Old No.5, New No.26, situated at
Subramanya lane, Bashayam Road Cross, Cottonpet,
consisting of a site measuring east-west 24 feet, north
- south 46 feet, with two buildings consisting of
ground floor, first floor and second floor which is the
suit A schedule property and herein after referred to as
suit A schedule property for the purpose of brevity and
convenience. It is further alleged that the said
E.Doraiswamy was a Goldsmith by profession and had
sufficient income and out of his earnings and with the
financial support from the grand mother of his wife
purchased the suit A schedule property as such it was
his self acquired property.
6. It is further alleged that her father had a son
who died unmarried at young age and thereafter
Doraiswamy performed the marriages of plaintiff and
1st defendant.
7. It is further alleged that E.Doraiswamy
gifted a sum of Rs.2,14,351/- on 1.8.1997 from his
personal savings and he also persuaded his sister
7 O.S.No.8480/2001 & 531/2002
Smt.R.Pushpamma who was a childless to bequeath
her immovable properties in favour of the 1st
defendant. It is further alleged that as the
E.Doraiswamy had lost his son and hence compelled
the plaintiff and her husband to reside with him and
they respected his sentiments and took care of him
without any expectations.
8. It is further alleged that E.Doraiswamy out
of natural love and affection, gifted suit A schedule
property under a registered Gift Deed dtd. 31.3.2000
in favour of the plaintiff which the plaintiff also
accepted and thereafter got katha of suit A schedule
property transferred to her name.
9. The defendants are residing in a portion of
suit A schedule property which is separately shown as
suit B schedule property. It is alleged that the 1st
defendant and her husband were not financially sound
hence, E.Doraiswamy took care of their children ie.,
defendant No.2 to 4 by providing schooling.
10. It is further alleged that after the gift of suit
A schedule property the plaintiff requested the
defendants to vacate and handover the possession of
8 O.S.No.8480/2001 & 531/2002
suit B schedule property and though they promised to
vacate but kept on postponing on one or the other
pretext. It is alleged that on 4.6.2001 the plaintiff once
again demanded the defendants to vacate the
possession stating that the 5th defendant has already
shifted from suit B schedule property, but they
refused, hence she got issued legal notice to
defendants 1 to 4.
11. It is further alleged that the defendants 1 to
4 in their reply have claimed that suit A schedule
property belongs to the joint family and suit B
schedule property was given to 1st defendant in a
alleged oral settlement and the 2nd defendant also
claimed that he is the alleged adopted son of
E.Doraiswamy and that the suit B schedule property
has fallen to his share. It is alleged that the
defendants have no right, or interest over suit B
schedule property and their possession of suit B
schedule property is illegal and hence they are liable to
vacate and handover the possession of suit B schedule
property and to pay mesne profits at the rate of
Rs.4,500/- per month from the date of suit till delivery
of vacant possession of suit B schedule property.
9 O.S.No.8480/2001 & 531/2002
12. The defendants 1, 3 & 4 have filed their
common written statement and the defendant No.2 has
filed his separate written statement interalia
contending as under:
The defendants have admitted their relationship
with the plaintiff. But the defendant No.1, 3 & 4 have
denied that the suit A schedule property is the
absolute property of E.Doraiswamy. They contends
that the suit A schedule property was purchased in the
name of E.Doraiswamy in the year 1947 when he was
a minor and out of the joint family funds and the sale
proceeds of agricultural land situated at Masanoor
village of Gudiyatham District, Tamil Nadu was utilized
to a considerable extent for acquiring suit A schedule
property. They also contends that the suit is bad for
non-joinder of necessary parties. It is further
contended that reasonable comforts were provided to
the 1st defendant by her father and contends that the
1st defendant is living in suit B schedule property for
about 35 years to maintain the joint family status.
13. It is further contended by defendant No.1,3
& 4 that in the year 1997 and in lieu of advanced age
of E.Doraiswamy a family oral settlement was arrived
10 O.S.No.8480/2001 & 531/2002
amongst them wherein the 1st defendant was designed
to be the absolute owner of an area measuring 24 X 16
feet out of suit A schedule property in which she is
presently residing and remaining portion of 24 X 30
feet was allotted to the share of plaintiff with a
common access available to both the portions. And
the said division was effected on the basis of factual
possession. It is further contended that as the portions
allotted to the 1st defendant was smaller and hence a
sum of Rs.1,00,000/- was paid to her for securing
equality among the shares of plaintiff and 1st
defendant. The alleged gift of Rs.2,14,351/- is denied.
The defendants 1, 3 & 4 have also disputed the gift
dated 31.3.2010 and the subsequent katha in the
name of plaintiff and have contended that the said gift
deed is no enforceable.
14. The defendant No.2 in OS.No.8480/2001
has filed his separate written statement resisting the
suit of the plaintiff and so also has filed his suit in
OS.No.531/2002 interalia contending as under:
The 2nd defendant has admitted the relationship
between the parties. But according to him, suit A
schedule property was originally owned by late
11 O.S.No.8480/2001 & 531/2002
Eshwarachari, the father of E.Doraiswamy. It is further
the case of the 2nd defendant that said Eshwarachari
borrowed loan of Rs.5000/- from one K.V.Rangaiah on
the security of suit A schedule property through a
conditional sale and within couple of months
Eshwarachari repaid entire loan amount and got the
suit A schedule property in the name of his son
E.Doraiswmy. It is further case of the 2nd defendant
that Eshwarachari was having another property
bearing Door No.68 and out of the said earnings of
said house property he discharged the above loan.
15. It is further case of the 2nd defendant that
plaintiff was married long back and at no point of time,
she took care of her father E.Doraiswamy. He contends
that E.Doraiswamy had one son and two daughters
and the son died at the young age as such,
E.Doraiswamy took him in adoption in the year 1968
as per the customs and traditions prevailing in the
community. Thereafter E.Doraiswamy admitted him to
school by showing his name as father of 2nd defendant.
It is further contended by him that E.Doraiswamy also
performed his marriage and he looked after
E.Doraiswamy till 1999 and thereafter differences
started in the family, as such E.Doraiswamy executed
12 O.S.No.8480/2001 & 531/2002
a partition deed in his favour and allotted suit B
schedule property and agreed to execute registered
partition deed. It is further contended by him that
E.Doraiswamy had no absolute right over suit A
schedule property as such, the alleged gift deed
dtd.31.3.2000 executed by E.Doraiswamy in favour of
plaintiff is null and void. It is further contended by him
that he has already filed his suit for partition against
E.Doraiswamy and his two daughters claiming his
share in the properties. The alleged permissive
possession of suit B schedule property is denied and
contended that unless the dispute between
E.Doraiswamy and himself is adjudicated, there is no
question of vacating suit B schedule property. The
mesne profits at the rate of Rs.4,500/- per month is
also denied.
16. It is further contended that 2nd was adopted
in the year 1968 and he was residing along with
E.Doraiswamy as a members of joint family. It is also
contended that now plaintiff in collusion with
E.Doraiswamy has concocted the gift deed and he is in
possession and enjoyment of suit B schedule property
by virtue of the partition list cum deed dtd.
26.12.1999. The 2nd defendant has further contended
13 O.S.No.8480/2001 & 531/2002
that besides suit A & B schedule properties in
OS.No.8480/2001, he is also entitled for his half share
in suit C schedule property in OS.No.531/2002.
Therefore on all these grounds, 2nd defendant has
sought for dismissal of the suit in OS.No.8480/2001
and to decree his suit in OS.No.531/2002.
17. The defendant No.1 & 2 in OS.No.531/2002
have resisted the suit by filing their written statement
and additional written statement interalia contending
as under:
The 1st defendant has denied that the suit A
schedule property is joint family property. According to
him, he is the absolute owner of suit A schedule
property which he acquired out of his own earnings
from goldsmith profession. He admits that
Eshwarachari executed gift deed in favour of his sister
Pushpamma in the year 1971 in respect of property
No.68. According to him, his father was absolute
owner of suit A schedule property and sold the
property for valuable consideration of Rs.5,000/- on
31.7.1947 in favour of one K.V.Rangaiah. He contends
that thereafter on 24.9.1947 he purchased the suit A
schedule property from K.V.Rangaiah and was in
14 O.S.No.8480/2001 & 531/2002
possession of suit A schedule property till 31.3.2000
when he gifted in favour of plaintiff. He specifically
contends that he acquired the suit A schedule property
out of his own income as such, it was his self acquired
property. He further contends that he also gifted a sum
of Rs.2,14,351/- in favour of his elder daughter
Leelavathi on 1.8.1997 out of his personal savings. He
further contends that his elder daughter was not
financially sound and her husband had also neglected
his family. It is for that reason, he provided schooling
to the 2nd defendant and other children of elder
daughter and performed their marriages. He denied the
alleged adoption of 2nd defendant and contends that
the adoption story is concocted for the purpose of the
suit. He admits that plaintiff and her husband looked
after him and only acted as a guardian of 2nd
defendant. He has denied the alleged partition list cum
deed dtd.26.12.1999 and contends that 2nd defendant
after his marriage was living along with his wife for
about 4 - 5 years and thereafter 2nd defendant
addicted to alcohol as such differences started between
the couple and his wife left him and residing in her
maternal house. He admits that 2nd defendant in
OS.No.8480/2001 is in permissive possession of suit B
schedule property.
15 O.S.No.8480/2001 & 531/2002
18. In his additional written statement, he
contends that his relationship with his father was not
cordial and that his father purchased property No.68
by selling ancestral property situated at Masanoor
village, Tamil Nadu. He further contends that he
studied up to 2nd standard in Telugu language and he
do not know reading and writing of Kannada and
learnt to puts his signature in English. It is further
contended that 2nd defendant used to take money
forcibly from his pocket and even stolen gold and silver
articles from his locker and now he is 83 years old
being looked after by Plaintiff - Lokamba and her
family.
19. It is further contended that he executed
registered Will dated 8.9.1980 bequeathing a portion of
suit A schedule property to his 2nd daughter -
Lokamba and the remaining portion in favour of 2nd
defendant - Srinivas. And after he came to know the
illegal acts of 2nd defendant, he cancelled the Will and
executed another Will dtd.15.7.1981 bequeathing suit
A schedule property in the name of his wife
Padmavathamma and after her death his two
daughters to get the property. He further contends
that his father gifted the property No.68 in favour of
16 O.S.No.8480/2001 & 531/2002
his sister Pushpamma and the said Pushpamma
bequeathed the property No.68 in favour of his elder
daughter - Leelavathi and her son Srinivas. And after
coming to know bout the character of 2nd defendant,
said Pushpamma also cancelled her Will and executed
fresh Will bequeathing entire property in favour of
Leelavathi. According to him, he made Pushpamma to
execute the Will in favour of Leelavathi and thereafter
he executed gift deed in favour of plaintiff and gifted
suit A schedule property and delivered possession to
her. He specifically contends that the 2nd defendant
came in possession of suit B schedule property only
after his marriage.
20. The defendant No.3 was impleaded during
the pendency of the suit vide orders dtd. 9.9.2009 and
she was directed to file her written statement within 30
days but subsequently she failed to file her written
statement.
21. The 2nd defendant - Lokamba in
O.S.No.531/2002 in her written statement has
reiterated the allegations made by her in her plaint in
OS.No.8480/2001 and contends that she is the
absolute owner of suit A schedule property. And she
17 O.S.No.8480/2001 & 531/2002
also contends that the suit filed by 2nd defendant is
frivolous. Therefore on all these grounds the
defendants in OS.No.531/2002 have sought for
dismissal of the suit.
22. On the basis of the rival pleadings and
contentions, my learned predecessor has framed the
following issues:
ISSUES IN OS.No.8480/2001:
1. Whether the plaintiff proves that she is
the owner of suit schedule B property?
2. Whether the 2nd defendant proves that
Doraiswamy had adopted him in the year
1968 as contended in para 16 of the
written statement of 2nd defendant and he
is in possession of B schedule property?
3. Whether plaintiff proves that defendants
1 to 4 are residing in a portion of B
schedule property, which has been
permitted by Sri.Doraiswamy as
contended in para 5 of the plaint?
4. Whether plaintiff is entitled for mesne
profits?
5. Whether plaintiff is entitled for the reliefs
sought?
6. What order or decree?
18 O.S.No.8480/2001 & 531/2002
23. During the course of argument it was
noticed that Issue No.1 framed in OS.No.8480/2001 is
only restricted to suit item B schedule property. The
plaintiff in the said suit has alleged her title over suit A
schedule property and suit B schedule property is part
of suit A schedule property. Therefore said issue is
recasted as under:
Recasted Issue No.1;
Whether the plaintiff proves that she is the
owner of suit A schedule property?
ISSUES IN OS.No.531/2002:
1. Whether the plaintiff proves that he is the
adopted son of 1st defendant?
2. Whether the plaintiff proves that the
partial partition of the suit schedule
properties was effected on 26.12.1999
and the parties were put in separate
possession of the respective shares by
metes and bounds?
3. Whether the plaintiff proves that the gift
deed executed by the 1st defendant in
favour of the 2nd defendant on 30.3.2000
in respect of the suit schedule property is
null and void?
4. Whether the plaintiff proves that he is
entitled for half share in the suit schedule
19 O.S.No.8480/2001 & 531/2002
property and separate possession of the
same by metes and bounds?
5. Whether the 1st defendant proves that the
suit schedule property is his self acquired
property?
6. Whether the 1st defendant proves that the
possession of the plaintiff in respect of
plaint B schedule property is permissive
possession?
7. To what order or decree?
24. The plaintiff in OS.No.8480 & 1st defendant
in OS.No.531/2002 are examined themselves as PW1
& 2 respectively and got marked Ex.P1 to P22. Ex.P1
to P15, 21 & 22 were marked through PW1 and Ex.P16
to 19 were marked through PW2 and closed their side.
The defendant No.1 in OS.No.8480/2001 and plaintiff
in OS.No.531/2002 got themselves examined as DW1
& 2 respectively and examined 3 witnesses as DW3 to
5, got marked Ex.D1 to D33 on their behalf and closed
their side.
25. The learned counsel for plaintiff in
OS.NO.8480/2001 as well as for defendant No.1 & 2 in
OS.No.531/2002 has filed written arguments.
Similarly the learned counsel for 2nd defendant in
20 O.S.No.8480/2001 & 531/2002
OS.No.531/2002 and the plaintiff in
OS.NO.8480/2001 has filed written arguments and
they also submitted their oral arguments.
26. During the course of arguments the learned
counsel for the plaintiff in OS.No.8480/2001
vehemently argued that suit A schedule property was
originally owned by Eshwarachari, the father of
E.Doraiswamy and that he sold the suit A schedule
property in favour of one K.V.Rangaiah in the year
1947 and thereafter E.Doraiswamy purchased the suit
A schedule property in his name from aforesaid
K.V.Rangaiah under Ex.P2. It was further argued that
E.Doraiswamy was already engaged in goldsmith
profession and had sufficient earnings and so also was
already married at the time of purchase of suit A
schedule property. It was further argued that
defendants have wrongly contended that
E.Doraiswamy was a minor as on the date of purchase
of suit A schedule property in his name. Much reliance
was placed on the defense taken by the contesting
defendants as well as the evidence of defendants in
particular and argued that 2nd defendant or other
parties to the suit were not at all born as on the date of
purchase of suit A schedule property under Ex.P2. It
21 O.S.No.8480/2001 & 531/2002
was further argued that DW1 & 2 in their evidence
have also deposed so many ignorances about the
income of E.Doraiswamy as on the date of purchase of
suit A schedule property. Much reliance was also
placed on the evidence of PW2 E.Doraiswamy and it
was argued that PW2 in his evidence has categorically
spoken that suit A schedule property was purchased
by him out of his own earnings as such it was his self
acquired property. It was further argued that Ex.P2
supports the case of the plaintiff about right of
E.Doraiswamy over suit A schedule property.
27. It was further argued that E.Doraiswamy
had two daughters and one son and said son died at
younger age and E.Doraiswamy also performed the
marriages of his two daughters and out of which elder
daughter Leelavathi started residing with her husband
at Chittoor, Andhra Pradesh and 2nd daughter
Lokamba along with her husband was staying with
E.Doraiswamy for looking after him. It was further
argued that husband of Leelavathi was addicted to bad
habits as such, neglected his family and hence
E.Doraiswamy went and took back his daughter
Leelavathi and her children to Bangalore and
thereafter provided schooling, accommodation and was
22 O.S.No.8480/2001 & 531/2002
also extending financial assistance. The alleged
adoption of 2nd defendant is denied and it was argued
that as father of 2nd defendant was not staying along
with family, as such, E.Doraiswamy in the capacity of
guardian admitted him in the school and not as a
adoptive father. It was further argued that 2nd
defendant has not at all pleaded and proved that the
adoption took place as per rites and customs and that
he was given in adoption by his parents to
E.Doraiswamy. It was further argued that the other
documents produced by the plaintiff also establishes
that there was no adoption of 2nd defendant and that
he was only under care and protection of
E.Doraiswamy. Much reliance is also placed on the
evidence of DW1, 2 & 4 and it was argued that none of
them have spoken about the alleged adoption
ceremony.
28. It was further argued that 2nd defendant was
staying along with E.Doraiswamy and was addicted to
bad habits including stealing money and gold
ornaments from him. The alleged partition list cum
deed is also denied. It was also argued that
E.Doraiswamy on his own Will and due to love and
affection and for the services rendered by his younger
23 O.S.No.8480/2001 & 531/2002
daughter Lokamba, voluntarily executed the gift deed
and put the plaintiff Lokamba in possession of suit A
schedule property. It was further argued that other
defendants are only in permissive possession of suit B
schedule property and they are bound to vacate, hand
over possession to the plaintiff. It was further argued
that E.Doraiswamy also gifted a sum of Rs.2,14,351/-
to his elder daughter Leelavathi out of his personal
savings and therefore as a father had made
arrangements of the properties amongst his daughters.
It was also argued that E.Doraiswamy pressurized his
sister Pushpamma to bequeath the property No.68
which was gifted by her father in favour of Leelavathi.
Therefore it was further argued that the 2nd defendant
has come up with a false story of adoption and earlier
partition, only to deprive the plaintiff of her legitimate
right over suit A schedule property.
29. The learned counsel for the defendant No.2
has filed written arguments wherein it is stated that
son of E.Doraiswamy died admittedly as a bachelor at
an young age and thereafter E.Doraiswamy took 2nd
defendant in adoption and also admitted him in the
school as adoptive father and 2nd defendant was
residing along with E.Doraiswamy till 1999 as a
24 O.S.No.8480/2001 & 531/2002
member of joint family. It was further argued that DW2
& 4 in their evidence have also spoken about the
factum of adoption of 2nd defendant and the school
records of 2nd defendant reveals that E.Doraiswamy as
adoptive father. It is also argued that 2nd defendant
took care of E.Doraiswamy in the capacity of adopted
son and there was no dispute between them till 1999.
It is further argued that suit A schedule property was
purchased by Eshwarachari in the year 1946 and
thereafter he borrowed loan of Rs.5,000/- on
conditional sale of suit A schedule property in favour of
K.V.Rangaiah and within couple of months repaid
entire loan amount and got sale deed nominally
registered in the name of E.Doraiswamy. It is further
argued that E.Doraiswamy was a minor as on that day
and he had no independent source of income and was
incapable to purchasing suit A schedule property. It
was further argued that E.Doraiswamy inherited family
property from his father and 2nd defendant being
adopted son as well as member of joint family enjoyed
equal share along with E.Doraiswamy in suit A
schedule property. Therefore it was argued that
E.Doraiswamy had no independent right or title over
suit A schedule property so as to gift away the same in
favour of plaintiff and hence the gift deed is illegal and
25 O.S.No.8480/2001 & 531/2002
not binding to the extent of the share of 2nd defendant.
The theory of permissive possession as put forth by the
plaintiff is also seriously disputed and it was argued
that there was a family arrangement under Ex.D33 in
which suit B schedule property was allotted to 2nd
defendant and that the 2nd defendant is in possession
of suit B schedule property in his own right and not
with permission of E.Doraiswamy or his daughter
Lokamba. Much reliance is also placed in the evidence
of DW1, 3 & 5 and it is argued that DW3 & 5 being the
independent witnesses have also spoken about the
family arrangement under Ex.D33. It is further argued
that E.Doraiswamy has simply denied the adoption to
deprive 2nd defendant of his legitimate right in the
family property.
30. The learned counsel for the defendants 1, 3
& 4 also argued about the right of these defendants in
suit A schedule property, mainly stating that the
property was inherited by E.Doraiswamy from his
father and that his daughter Leelavathi is entitled for
equal share in the said property. In support of his
arguments the learned counsel for 2nd defendant has
relied on the following decisions:
26 O.S.No.8480/2001 & 531/2002
1. ILR 2008 KAR 2159 - Veerappa & others
Vs. Smt. Halavva & others of Karnataka
High Court.
2. Smt.J.Yashoda Vs. Smt.K.Shobha Rani of
Hon'ble Supreme Court of India.
3. Civil Appeal No.4195 of 2008 in the case
of Renikuntla Rajamma (D) by Lrs., Vs.
K.Sarwanamma in Hon'ble Supreme Court
of India.
31. I have heard the arguments, perused the
written arguments filed on behalf of the parties and
other materials placed on record. Having regards to the
materials placed on record and arguments heard, my
findings on the above issues are as under:
Issue No.1 in OS.No.8480/2001: In the affirmative
Issue No.2 in OS.No.8480/2001: In the negative
Issue No.3 in OS.No.8480/2001: In the affirmative
Issue No.4 in OS.No.8480/2001: Partly affirmative
Issue No.5 in OS.No.8480/2001: Partly affirmative
Issue No.6 in OS.No.8480/2001: As per final order,
Issue No.1 in OS.No.531/2002: In the negative
Issue No.2 in OS.No.531/2002: In the negative
Issue No.3 in OS.No.531/2002: In the negative
Issue No.4 in OS.No.531/2002: In the negative
Issue No.5 in OS.No.531/2002: In the affirmative
Issue No.6 in OS.No.531/2002: In the affirmative
Issue No.7 in OS.No.531/2002: As per final order,
for the following:
27 O.S.No.8480/2001 & 531/2002
REASONS
32. Issue No.2 in OS.8480/2001 and Issue
No.1 in OS.NO.531/2002: As these issues are
interlinked and have direct bearing over other issues,
hence they are taken up first for discussion.
33. The 2nd defendant being the plaintiff in
OS.No.531/2002 has asserted that he is the adopted
son of E.Doraiswamy and the said adoption took place
on 27.12.1968 as per Hindu rites and customs and
since then he is residing along with him in the capacity
of adoptive son as well as member of the joint family.
Per contra, the plaintiff in OS.NO.8480/2001 and in
the capacity of 2nd defendant and the 1st defendant
E.Doraiswamy in OS.No.531/2002 in their written
statements have denied the alleged adoption of the 2nd
defendant and have specifically contended that 2nd
defendant is the grand son of E.Doraiswamy and that
the father of 2nd defendant was addicted to bad habits
and started neglecting his wife and children as such
E.Doraiswamy brought back his daughter and her
children and was taking care of them by providing
schooling as well as extending financial support. With
28 O.S.No.8480/2001 & 531/2002
these rival pleadings and contentions, parties have
lead oral as well as documentary evidences.
34. Plaintiff has got examined herself as PW1
and she has sworn to affidavit by way of her chief
examination which is on par with the allegations made
in the plaint and her written statement. According to
PW1, her father E.Doraiswamy permitted 2nd defendant
and his mother to stay separately in a portion of suit A
schedule property and she has also denied the alleged
adoption as set up by the 2nd defendant. In support of
her evidence PW1 has got marked various documents
as per Ex.P1 to P15, 21 & 22. Ex.P1 is the Gift deed
dtd.31.3.2000, Ex.P2 is the sale deed dtd. 31.7.1947,
Ex.P3 is the sale deed, Ex.P4 is the encumbrance
certificate, Ex.P5 to 11 are the tax paid receipts,
Ex.P12 is the katha endorsement, Ex.P13 is the office
copy of legal notice, Ex.P14 is the reply notice, Ex.P15
is another reply notice, Ex.P21 is the certified copy of
sale deed dtd.17.5.1948, Ex.P22 is the voter list of
ward No.29 of Chickpet, Constituency, Bangalore.
The 1st defendant E.Doraiswamy has got examined
himself as PW2 and he has sworn to affidavit by way of
his chief examination wherein he has corroborated the
contentions taken by him in his written statement. In
29 O.S.No.8480/2001 & 531/2002
support of his evidence PW2 has got marked Ex.P16 to
P19. Ex.P16 is the Will, Ex.P17 is the Will
dtd.9.2.1998, Ex.P18 is the certified copy of sale deed,
Ex.P19 is the certified copy of sale deed dtd.8.9.1980.
At this juncture it is necessary to mention that Ex.P20
the wedding card of 2nd defendant was got marked by
confronting to him. There is no effective cross
examination directed to PW1 about the alleged
adoption set up by 2nd defendant.
35. In the cross examination directed to PW2,
he admits that his son died at young age of 16. But
denies that he took 2nd defendant in adoption and
since then 2nd defendant is living with him as a
adopted son. He admits that he got 2nd defendant
admitted in the school, but denies that he put his
signature in the school records declaring himself as
father of 2nd defendant. An attempt is made to
establish that he performed the marriage of 2nd
defendant in the capacity of his father, but nothing
worth is elicited from his mouth. But PW2 has
reiterated that he only attended the marriage. A
further attempt is made to establish that soon after the
marriage of 2nd defendant, he started residing with his
wife along with him, but he has denied the same and
30 O.S.No.8480/2001 & 531/2002
has volunteered that he only permitted the 2nd
defendant to stay with him.
36. The 1st defendant in OS.No.8480/2001 as
well as 3rd defendant in OS.No.531/2002 has got
examined herself as DW1 and this DW1 has sworn to
affidavit by way of her chief examination wherein she
has corroborated the contention taken by her in her
written statement. But interestingly at para 2 of her
chief examination, she has stated that 2nd defendant is
the adopted son of her father. The cross examination
directed to DW1 is worth appreciating because
amongst other things, it is elicited from her mouth that
her father performed Dattakahoma ceremony after
attaining the age of 60 and according to her, adoption
of her son took place on the same occasion. It is
brought on record that no separate Dattakahoma
ceremony took place. She is also unable to speak
about the preparation of adoption deed. At page 12 of
the cross examination she admits that her husband
left her about 13 years back and she also admits that
her father brought her son from Chittoor to Bangalore
in order to provide good education and he kept him in
his house and provided education. She further admits
that E.Doraiswamy admitted the 2nd defendant to
31 O.S.No.8480/2001 & 531/2002
school as her husband was not in Bangalore. The
relevant admission reads as under:
It is true that my father brought
my son from Chittoor to
Bengaluru in order to provide
good education and he kept him
in his house. It is true that my
father has provided education to
my son Srinivas. It is true that
my father got admitted my son
Srinivas to school as my husband
was not in Bengaluru.
37. The 2nd defendant in OS.No.8480/2001 and
being the plaintiff in OS.No.531/2002 has got
examined himself as DW2 and this DW2 has sworn to
affidavit by way of his chief examination wherein he
has corroborated all the contentions taken by him in
his written statement as well as in his plaint about the
alleged adoption as well as his status as adopted son
of E.Doraiswamy. In support of his evidence DW2 has
got marked various documents at Ex.D1 to D33. Ex.D1
to 4 are the encumbrance certificates, Ex.D5 is the
certified copy of sale deed dtd.31.4.1947, Ex.D6 to 8
are three marks cards, Ex.D9 is the cumulative
record, Ex.D10 is the transfer certificate, Ex.D11 & 12
are the SSLC & PUC Marks cards, Ex.D13 is the marks
card of English Typewriting, Ex.D14 & 15 are the
32 O.S.No.8480/2001 & 531/2002
certificates issued by National College, Ex.D16 is the
passport, Ex.D17 is the show cause notice issued by
Central Excise, Tamil Nadu, Ex.D18 is the notice
issued by Superintendent of Central Excise, Thiruchy,
Ex.D19 is the order passed by Asst.Collector of
customs, Thiruchy, Ex.D20 is the notice issued u/s.28
of Customs Act, Ex.D21 is the reply notice given to
Lokamba, Ex.D22 is the postal receipt, Ex.D23 is the
postal acknowledgement, Ex.D24 is the notice issued
by Lokamba, Ex.D25 is the reply notice issued by
Doraiswamy, Ex.D26 is the postal acknowledgment,
Ex.D27 is the postal receipt and UCP, Ex.D28 is the
assessment register extract, Ex.D29 & 30 are the legal
notice copies, Ex.D31 is the certified copy of Gift deed
dtd.31.3.2000, Ex.D32 is four CDs. Ex.D33 is the
xerox copy of the partition list cum deed and Ex.D33(b)
is the signature of DW5.
38. The cross examination directed to DW2 is
also worth appreciating because amongst other things,
it is elicited from his mouth that whereabouts of his
father is not known for the last 13 years. At para 4 of
the cross examination it is brought on record that he is
not aware that E.Doraiswamy has shown him as the
son of Leelavathy in Ex.P16. He pleads ignorance that
33 O.S.No.8480/2001 & 531/2002
E.Doraiswamy studied in Telugu school at Bengaluru
and do not know reading and writing of Kannada. He
pleads ignorance about the pooja performed by
E.Doriaswamy after attaining the age of 60 years. At
page 21 of the cross examination it is brought on
record that E.Doraiswamy also attended the marriage.
At para 25 of the cross examination he deposes that
E.Doraiswamy produced adoption deed at the time of
his admission to the school. In the same para he
admits that he has not produced the copy of the
application form given to the school at the time of his
admission. At page 29 of the cross examination it is
brought on record that he is not in possession of his
marriage invitation card, but admits that the invitation
card was printed in Telugu and English languages.
And according to him, his father E.Doraiswamy got
printed the card and that the invitation card was
confronted and marked as Ex.P20. He admits that
under Ex.P20, he is shown as eldest son of
N.Krishnamurthy and grandson of E,Doraiswamy. The
relevant admission reads as under:
It is true in Ex.P20 it is shown
that I am the eldest son of
N.Krishnamurthy and grand son
of Doraiswamachari in both
English and Telugu Language
34 O.S.No.8480/2001 & 531/2002
39. He also pleads ignorance that he is shown
as son of N.Krishnamurthy in the corporation records.
At page 31 of the cross examination he admits that his
father was not in Bangalore when E.Doraiswamy got
admitted him in the school. At page 32 of the cross
examination he reiterates that the adoption ceremony
took place on 27.12.1968, but he is unable to speak
the persons who participated in the occasion as well as
the name of the archak who performed the ceremony.
It is brought on record the prohit wrote deed of
adoption and according to him, same is with
E.Doraiswamy which was signed by all the elders.
Again he deposes that he do not know who are the
signatories to the adoption deed stating that he was
minor at that time. It is further brought on record that
the conversation recorded in CDs was during the
pendency of the suit. Though he admits that Lokamba
and her husband are staying with E.Doraiswamy,
according to him, he has not seen the voter list, ration
card and other documents wherein E.Doraiswamy is
shown as staying with his 2nd daughter and son in law.
An attempt is made to establish that E.Doraiswamy
was unaware that he is shown as father of 2nd
defendant in the school records till the litigation
started which he has denied.
35 O.S.No.8480/2001 & 531/2002
40. The 2nd defendant has also got examined
DW4 in support of his case and this DW4 has also
sworn to affidavit by way of his chief examination
wherein, he has corroborated the evidence of DW2
about the alleged adoption. In particular, it is the
evidence of DW4 that in the year 1968 E.Doraiswamy
took 2nd defendant in adoption as per Hindu rites and
customs in the presence of elders and well-wishers of
the family and performed ceremony Dattasweekarna
Pooja which was also reduced in writing by prohit and
duly signed by E.Doraiswamy. He has also
corroborated the evidence of DW2 to the effect that
E.Doraiswamy himself admitted DW2 to the school as
adopted father. The cross examination directed to him
is worth appreciating because at para 3 of the cross
examination it is elicited from his mouth that he did
not attend 60th year ceremony of E.Doraiswamy and
according to him his wife attended the said ceremony.
He is unable to speak when the said ceremony took
place. He admits that he was minor in the year 1968.
At para 4 of the cross examination he reiterates that
adoption took place in 1968 and he came to know
about the adoption deed subsequently. This is all the
oral and documentary evidence placed on record by
the parties with regard to the alleged adoption.
36 O.S.No.8480/2001 & 531/2002
41. So far as the principles governing adoption
are concerned, the act of adoption has effect of
removing adopted son from his natural in to adoptive
family and thereby most materially and irrevocably
affects his prospectus in life and as the ceremony
almost in voluntarily take place when the adoptee is of
tender years and unable to exercise any discretion of
his own in the matter, it allows only those who have
domain over the child have the power of giving in
adoption and the giving and receiving of a child in
adoption are absolutely necessary for a valid adoption.
And they are operative part of the ceremony being that
part of it which transfer the boy from one family to
another. The physical act of giving and taking must be
proved and even if exception and consent a deed of
adoption. And the document must be free of suspicion.
The performance of rituals is also absolutely necessary
to the establishment of filial relation. And it is
therefore established that the filial relation of adopted
son is occasioned only by proper ceremony. It is also
requirement of a valid adoption that the natural father
shall be asked by the adoptive parents to give his son
in adoption and the boy shall be handed over. It is also
settled precedent law that where the act of giving and
taking is lacking, adoption is invalid and the burden is
37 O.S.No.8480/2001 & 531/2002
on the adopted son to prove the act of giving and
taking. The effect of adoption is that ties of the adopted
child in his family of birth are severed and replaced by
those of the adoptive family. It is also the settled
precedent law that mere proof of taking in adoption by
the adoptive father with intend to take the child in
adoption will not be sufficient, there must be giving of
the child with the requisite intent also. As stated supra
an adoption results in changing the course of
succession, therefore it is necessary that the document
should be such that it is free from all suspicion and
must be so consistent and probable as to leave no
occasion for doubting its truth. With these principles
in my mind let me consider entire materials placed on
record regarding adoption.
42. As could be seen from the materials placed
on record, defendant No.2 in his written statement as
well as plaint has asserted that he is the adopted son
of E.Doraiswamy and said adoption took place on
27.12.1968. 2nd defendant who is also examined as
DW2 in his evidence has also spoken to that effect. It
is his case that he was aged 4 years at the time of
adoption in the year 1968. He has also pleaded that
said adoption took place as per Hindu rites and
38 O.S.No.8480/2001 & 531/2002
customs. Interestingly 2nd defendant nowhere has
pleaded or deposed about the kind of rituals and
customs that were followed at the time of adoption.
There is no pleading on his behalf about the act of
giving and taking in adoption by performing the
adoption ceremony as recognized by law. DW2 has
baldly pleaded that some customs and rituals were
followed at the time of alleged adoption, but same are
neither pleaded nor proved before the court in
accordance with law. Absolutely there is no evidence
placed on record as to when E.Doraiswamy
approached his parents seeking him in adoption and
the willingness of his parents to give in adoption and
so also subsequent act of giving and taking in
adoption. Therefore the material ingredients which are
essential for valid adoption are missing in the material
placed on record by 2nd defendant.
43. But however DW2 in his evidence
throughout maintain that adoption ceremony took
place on 27.12.1968 and since then he is adopted son
of E.Doraiswamy. As stated supra, DW2 in his cross
examination has pleaded so many ignorance about the
persons who participated in the adoption ceremony,
archak who performed the ceremony and subsequently
39 O.S.No.8480/2001 & 531/2002
was reduced in to writing as adoption deed. DW2 has
reiterated that adoption deed was prepared soon after
the ceremony and same is in possession of
E.Doraiswamy, but for the reasons best known to him,
2nd defendant did not took any steps for securing the
alleged adoption deed from E.Doraiswamy. At this
juncture if evidence of DW4 is perused through he has
corroborated the evidence of DW2 about the alleged
adoption, but according to him he was also present in
the adoption ceremony. But interestingly in his cross
examination he admits that he did not attend 60th
birth celebration of E.Doraiswamy and he categorically
admitted that he was a minor in the year 1968. He
deposes that his wife attended the said 60th year
ceremony of E.Doraiswamy. Admittedly this DW4 was
aged 63 years as on the date of his evidence on
9.11.2015. Therefore he must be around 15 years of
age when the alleged adoption ceremony took place in
the year 1968. But however he wants this court to
believe that he participated in the adoption ceremony
which is said to have been taken place in the house of
E.Doraiswamy and that DW2 was given and taken in
adoption in his presence. Admittedly he was aged 15
years as on that day. Therefore his participation in the
alleged adoption ceremony appears to be make believe
40 O.S.No.8480/2001 & 531/2002
and does not inspire the confidence of this court. At
this juncture if the evidence of DW1 is perused, she is
admittedly the biological mother of DW2 and she has
also contested the suit in OS.No.8480/2001 by filing
her written statement. And if the said written
statement filed by DW1 is perused, she has no where
stated that her son was given in adoption and so also
about performance of all rituals at the time of adoption
ceremony. But interestingly in her cross examination
she deposed that the adoption ceremony took place on
the 60th birth anniversary of E.Doraiswamy and she
has also gone to the extent of deposing that no
separate Dattahoma was performed in respect of
alleged adoption. In this context if the evidence of DW4
is perused he has spoken that his wife attended the
60th birth anniversary of E.Doraiswamy and he did not
attended it. Therefore the evidence of DW1 plays a
major role because she being biological mother of 2nd
defendant has spoken about adoption ceremony on the
eve of 60th birth ceremony of E.Doraiswamy. Therefore
her evidence gives room for suspicion about the
evidence given by DW4. Therefore the evidence of DW4
cannot be accepted about the alleged adoption of 2nd
defendant by E.Doraiswamy. This part it is also
pertinent to note that according to DW2, the adoption
41 O.S.No.8480/2001 & 531/2002
took place on 27.12.1968. DW1 being his biological
mother has spoken that the said adoption was
coincided with 60th birth anniversary of her father
E.Doraiswamy. At this juncture, if the evidence of
PW2 is perused, this PW2 was aged 83 years as on
16.4.2008 when his evidence was recorded before
court. Therefore his 60th birth anniversary must have
been celebrated about 23 years prior to his date of
evidence before the court, which also presupposes that
the 60th birth anniversary must have taken place some
where in 1995. And this important aspect also gives
room for suspicion about the alleged adoption as
stated by 2nd defendant. Because DW2 has come up
with a definite case that his adoption took place on
27.12.1968 when perhaps E.Doraiswamy was aged
around 37 years. At this juncture, it is necessary to
mention that DW2 was born on 1.7.1964 as per the
date of birth in his TC, Cumulative Record and Marks
Card produced at Ex.D9 to 12. Therefore this DW2
must have been 31 years of age in the year 1995 when
60th birth anniversary of E.Doraiswamy took place. But
however DW4 throughout asserts that his adoption
taken place on 27.12.1968. But the evidence of his
own biological mother goes against the case set up by
2nd defendant and when actually the adoption took
42 O.S.No.8480/2001 & 531/2002
place itself has become doubtful, inview of the
contradictory statement of DW1 & 2. Therefore the
theory of adoption set up by 2nd defendant is clouded
with suspicion.
44. But DW2 has also produced various
documents to establish that he is the adopted son of
E.Doraiswamy. Much reliance is placed on the
document at Ex.D6 to 20. It was vehemently argued on
his behalf that in all these documents, DW2 is shown
as son of E.Doraiswamy. But on perusal of Ex.D6 to 8,
D14 & 15 it is noticed that the name of 2nd defendant
is shown as D.Srinivaslu but no where father name is
shown as E.Doraiswamy. Therefore these documents
at Ex.D6 to 8, 14 & 15 does not help the case of 2nd
defendant. Much reliance is also placed on Ex.D9 to
13 and on perusal of these Ex.D9 to 13 it is noticed
that the 2nd defendant is shown as son of
E.Doraiswamy. It is the case of 2nd defendant that soon
after adoption, E.Doraiswamy admitted him to the
school as an adoptive father. In the written argument
filed on behalf of the 2nd defendant it is vehemently
canvassed that these documents itself establish the
factum of the adoption of 2nd defendant by
E.Doraiswamy. But according to PW2 E.Doraiswamy,
43 O.S.No.8480/2001 & 531/2002
he performed the marriage of his elder daughter
Leelavathi who started residing with her husband at
Chittoor in Andhra Pradesh and subsequently he
learnt that his son in law is not taking care of his wife
and children as such he went and brought her to
Bangalore and started taking care of his elder daughter
Leelavathi as well as DW2 Srinivas. He has also
deposed that he put DW2 in school only when his
biological father was not in Bangalore. At this juncture
if the evidence of DW1 is perused she being the
biological mother of this 2nd defendant has also spoken
in her cross examination that her father admitted the
2nd defendant to the school when her husband was not
in Bangalore. PW2 has spoken that he studied up to
2nd standard and he do not know reading and writing
of Kannada. Therefore he has pleaded ignorance about
the entries made in Ex.D9 to 13 wherein he is shown
as father of 2nd defendant. DW2 in his cross
examination has also pleaded ignorance when it was
suggested to him that E.Doraiswamy was not unaware
of reading and writing Kannada. Therefore the
ignorance on the part of 2nd defendant not only gives
room for suspicion about his case but also probabilises
the case of PW2. The fact that father of DW2 was not
taking care of the family is concerned same is also
44 O.S.No.8480/2001 & 531/2002
admitted by DW1. Therefore the evidence of PW2 that
he being the grand father started taking care of his
elder daughter as well as her children appears to be
more probable than the case set up by 2nd defendant.
PW2 in his evidence has spoken that he only acted as
a guardian, when he first admitted DW2 to the school
And in the cross examination directed to him, nothing
worth is elicited from his mouth on this aspect to
establish that PW2 acted only as a adoptive father and
not as a guardian. So for as the entries made in Ex.D9
to 13 are concerned, same are seriously challenged on
behalf of PW2 stating that he was only intended as a
guardian. When once the entry is made at initial stage
same will continue through out the education carrier
and the said entry will remain unchanged so long as it
is not get rectified. Therefore taking advantage of
entries in Ex.D9 to 13, 2nd defendant wants this court
to believe that the entries made at the instance of
E.Doraiswamy and in the capacity of adoptive father.
Now the question remains before this court is whether
the entries made in Ex.D9 to 13 showing
E.Doraiswamy as father of 2nd defendant are sufficient
to hold that he was an adoptive father. Admittedly the
school authorities are not examined before court to
prove the genuineness of these entries. As stated supra
45 O.S.No.8480/2001 & 531/2002
DW2 for the best reason known to him, has also not
got examined his mother as a witness to establish that
E.Doraiswamy is adoptive father and in that capacity,
admitted to the school. In this connection the Hon'ble
Division Bench of our Hon'ble High Court in the
decision reported in 1977(1) KLJ 206 was pleased to
held that in the absence of testimony by some witness
competent to speak to matters either as to knowledge
of relationship or source of information of which
recitals came to be incorporated in the school records,
recitals themselves cannot be treated as substantial
evidence and not admissible to prove the paternity of a
child. The principle laid down in the above authority
are also amply applicable to the case on hand, because
DW2 has very much relied on the recitals of Ex.D9 to
13 in proof of his relationship as adoptive son of
E.Doraiswamy. Therefore inview of law laid down by
our Hon'ble High Court, the entries made in these
documents cannot be considered as proof of his
adoption.
45. The 2nd defendant has also relied on Ex.D16
which is a passport wherein the name of
E.Doraiswamy is shown as his father and the name of
natural father is also shown in the column relating to
46 O.S.No.8480/2001 & 531/2002
the particulars of the relatives and friends to be
intimated in the event of death or accident. Much
reliance was also placed on this Ex.D16. The entries in
Ex.D16 might have been entered as per the
instructions of 2nd defendant. Therefore these entries
in Ex.D16 also cannot be accepted about his
relationship with E.Doraiswamy as adoptive father.
Similarly Ex.D17 to 19 are the letters and proceedings
before customs authorities wherein the name of father
of DW2 is shown as E.Doraiswamy and these entries
under these documents also cannot be held as
substantial evidence in support of the defense taken by
2nd defendant. Therefore the entries in Ex.D16 to 20
also do not inspire the confidence of this court.
46. The 2nd defendant has also got marked
Ex.D29 & 30 copies of legal notices exchanged between
himself and his wife. It is an admitted fact that the
relationship between 2nd defendant and his wife was
not cordial as such she left the company of 2nd
defendant and started residing in her maternal house
and it is only in that back ground there were exchange
of notices between DW2 and his wife. In Ex.D29, DW2
has called upon his wife Sridevi to come and join in his
47 O.S.No.8480/2001 & 531/2002
company. Ex.D30 is the reply of his wife wherein at
para 2 it is stated as under :
Your client is depending on his
grand father E.Doraiswamy. His
grand father is also not tolerating
his activities after taking drink.
He instructed his grand son ie.,
your client to life separately along
with his wife in his upstairs,
since 6 months.
47. The perusal of the above statement made by
the wife of 2nd defendant in above reply notice reveals
that she identified her husband as grand son of
E.Doraiswamy and not as a adoptive son. This
document got marked by 2nd defendant goes against
his own case wherein his own wife has recognized him
as grand son of E.Doraiswamy.
48. But however the 2nd defendant has very
much relied onEx.D33 which is partition list cum deed
wherein he is shown as sonof E.Doraiswamy and at
page 2 there is a recital to the effect of adoption. At
this juncture it is necessary to mention that this
Ex.D33 is got marked by DW2 for proving his adoption
as well as family settlement between himself and
48 O.S.No.8480/2001 & 531/2002
E.Doraiswamy. If the contents of this Ex.D33 perused
though there is a reference about the alleged adoption
of DW2, but interestingly it is also recited as under:
The first party brought up the
second party by giving good
education, as such the second
party become the adopted son of
the first party and continuously
reside with the first party as a
member of joint family.
49. The perusal of the above recital reveals that
the first part ie., E.Doraiswamy brought up 2nd party
ie., DW2 by giving good education as such 2nd party
became the adoptive son of first party and
continuously resided with him as a member of joint
family. Therefore this important recital also reveals
that DW2 is claiming himself as adopted son of
E.Doraiswamy just because E.Doraiswamy provided
him with good education and brought up him in his
family. Therefore this recital also goes against the
defense taken by 2nd defendant about the alleged
adoption. Therefore entire materials placed on record
by the 2nd defendant gives room for suspicion about
his adoption. Hence I have no hesitation to hold that
DW2 has failed to discharge the initial burden by
producing cogent and convincing evidence before court
49 O.S.No.8480/2001 & 531/2002
about the alleged adoption. Therefore onus never shifts
on E.Doraiswamy to disprove the adoption. But
however PW2 E.Doraiswamy in his evidence has
throughout denied the alleged adoption and as stated
supra there is nothing worth elicited from his mouth.
Further PW2 has also got marked a registered Will dtd.
15.7.1991 as per Ex.P16, wherein he bequeathed his
property in favour of his wife Smt.Padmavathamma
with a stipulation that she shall have life interest over
suit A schedule property. Further life interest was also
created in favour of elder daughter Leelvathi who is
none other than biological mother of DW2. At page 5 of
Ex.P16 it is also stated that after the death of
Leelavathi her first son Srinivas to take entire
property. No doubt this Ex.P16 was subsequently
revoked by PW2 but the recitals under Ex.P16 came at
an undisputed point of time when E.Doraiswamy
himself has referred DW2 as son of Leelavathi and not
as his adoptive son. At this juncture if the written
statement as well as the plaint of DW2 is perused, he
himself has pleaded that the dispute was started in the
family only in the year 1999.That means there was no
dispute as on 15.7.1991 when Ex.P16 came in to
existence. If at all DW2 was really adopted son of
E.Doraiswamy, he should have referred DW2 as
50 O.S.No.8480/2001 & 531/2002
adopted son and not as son of elder daughter
Leelavathi. At this juncture if the evidence of DW2 is
perused he has pleaded ignorance when it was
suggested to him that under Ex.P16 he was shown as
son of Leelavathi and not as adopted son of
E.Doraiswamy. And this ignorance on the part of DW2
also gives room for suspicion about his bonafides.
50. PW2 E.Doraiswamy has also got marked
Ex.P20 which is marriage invitation card of DW2 and
as stated supra this marriage invitation card was
confronted and marked through DW2. In this context,
if the evidence of DW2 is perused, according to him the
marriage invitation card was got printed in Telugu and
English Language which is also borne out by Ex.P20.
Surprisingly under Ex.P20, DW2 is shown as son of
N.Krishnamurthy ie., his biological father and not as a
adopted son of E.Doraiswamy. But on the contrary
this DW2 is shown as grand son of E.Doraiswamy. The
marriage of DW2 took place on 5.11.1989 when
admittedly there was no dispute in the family as per
the statement of DW2 himself. It is the evidence of
DW2 that he studied up to B.Sc., that means he is not
uneducated and why he did not objected for showing
the name of his biological father as his father in
51 O.S.No.8480/2001 & 531/2002
Ex.P20 is not made clear. DW2 though has spoken
that E.Doraiswamy performed his marriage and even
has got marked 4 CDs relating to the marriage as per
Ex.D32, but according to PW2 he only attended the
said marriage. Therefore even accepting that PW2 was
present in the marriage as admitted by him, it cannot
be held that he was present in the capacity of adoptive
father of DW2. Therefore this Ex.P20 is material
document which totally goes against the case set up by
2nd defendant about his alleged adoption. And in the
facts and circumstances, this Ex.P20 falsifies the case
put forth by DW2.
51. Apart from all these things it is very much
necessary to mention here that according to DW2 he
was only aged 4 years at the time of adoption. It is an
undisputed fact that his biological father had left the
family and his whereabouts are not known. DW1
Leelavathi is the biological mother of DW2. And she is
the best and competent person to speak about the
alleged adoption of DW2 in favour of her father. But in
her written statement filed in OS.8480/2001 she has
not pleaded that DW2 was given in adoption by
performing all rites and customs and so also about the
deed of adoption as spoken by DW2. And for the
52 O.S.No.8480/2001 & 531/2002
reasons best known to her she has not chosen to file
her written statement in OS.No.531/2002 wherein
alleged adoption of his son is in stake. Therefore DW1
being the natural mother has chosen to remain silent
on these material aspects and she has not at all
corroborated the version of DW2 about so called
adoption on 27.12.1968. DW2 for the best reasons
known to him has not chosen to examine his own
mother or cross examine her to establish his adoption.
Therefore her evidence on this important aspect would
have thrown light about the veracity of DW2. But DW1
only in her cross examination has spoken that the said
adoption taken place when her father celebrated 60th
birth anniversary. If this statement of DW1 is accepted
then entire case put forth by DW2 becomes doubtful
because the said 60th birth anniversary might have
celebrated somewhere in the year 1995 and not in
1968 as contended by DW2. Therefore entire material
placed on record probabilises the case put forth by
E.Doraiswamy than the case of DW2. In the considered
opinion of this court, DW2 has utterly failed to prove
his adoption as contended by him.
52. DW2 has contended that he is in possession
of suit B schedule property in the capacity of adoptive
53 O.S.No.8480/2001 & 531/2002
son. Admittedly plaintiff has also filed a suit for
recovery of possession, therefore there is no dispute
between the parties about possession of suit B
schedule property by DW2. Therefore considering the
materials placed on record, I have no hesitation to hold
that DW2 has utterly failed to prove the adoption.
Hence I record my findings on above issues in the
Negative.
53. Issue No.1 in OS.8480/2001 and Issue
No.3 & 5 in OS.NO.531/2002: The plaintiff in
OS.No.8480/2001 has asserted that suit A schedule
property is the self acquired property of her father who
gifted her under a registered Gift Deed dtd. 31.3.2000
and ever since from the date of gift she is the owner of
suit A schedule property and paying taxes to the
Government. Per contra DW2 in his suit has come up
with a specific case that the gift deed dtd. 31.3.2000 in
respect of suit A schedule property is null and void.
The 1st defendant -E.Doraiswamy has also come up
with a specific defense stating that suit A schedule
property was his self acquired property and that he
voluntarily gifted suit A schedule property in favour of
younger daughter Lokamba. The plaintiff in order to
prove her title over suit A schedule property has got
54 O.S.No.8480/2001 & 531/2002
examined herself as PW1 and this PW1 has sworn to
affidavit by way of chief examination which is on par
with the allegations made in the plaint about the
alleged title over suit A schedule property. In particular
it is the evidence of PW1 that her grand father
originally purchased suit A schedule property and
thereafter sold in favour of one K.V.Rangaiah under
registered sale deed dtd. 31.7.1947 and subsequently
her father purchased the suit A schedule property
under registered sale deed from K.V.Rangaiah. It is
also her evidence that her father E.Doraiswamy was
engaged in Goldsmith profession and had sufficient
earnings at his disposal and out of which he has also
gifted a sum of Rs.2,14,351/- in favour of his elder
daughter on 1.8.1997. In support of her evidence, PW1
has also got marked original gift deed as per Ex.P1 and
the original sale deed dtd. 31.7.1947 in which her
father E.Doraiswamy purchased suit A schedule
property from K.V.Rangaiah as per Ex.P2 and so also
sale deed executed by her grand father Eshwarachari
in favour of K.V.Rangaiah as per Ex.P3. It is also the
evidence of PW1 that she accepted the gift and
subsequently her name was also entered in
Encumbrance Certificate as per Ex.P4. PW1 has got
marked various tax paid receipts as per Ex.P5, 6 to 12
55 O.S.No.8480/2001 & 531/2002
wherein she is shown to have paid taxes to the
Government. In the cross examination directed to
her, she reiterates that her father E.Doraiswamy was
aged 23 years at the time of purchase of suit A
schedule property and according to her E.Doraiswamy
got separated from his father. She further deposed that
E.Doraiswamy purchased suit A schedule property
after his marriage. An attempt is made to establish
that she has got concocted Ex.P1 but nothing worth is
elicited from her mouth.
54. PW2 E.Doraiswamy has also sworn to an
affidavit by way of his chief examination wherein he
has corroborated the contentions taken by him in his
written statement, stating that suit A schedule
property is his self acquired property. In his further
chief examination by way of affidavit he has spoken
about the Wills executed by him earlier to the
execution of Gift Deed. In support of his evidence PW2
has got marked registered Will as per Ex.P16 & 17 and
Certified copy of the gift deed executed by his sister
Pushpamma as per Ex.P18 and the certified copy of
the Will as per Ex.P19. In the cross examination
directed to him, he reiterates that he executed gift deed
in favour of his daughter and so also about its
56 O.S.No.8480/2001 & 531/2002
registration on the same day. An attempt is made to
establish that he did not come to the office of the
lawyer for preparation of Ex.P1 and that he was not at
all willing to gift the property in favour of his younger
daughter which he has denied. At para 10 of the cross
examination an attempt is made to establish that the
property was originally belongs to his father as such he
has no authority to execute gift deed which he has also
denied. And has further volunteered that he acquired
suit A schedule property from his own funds and he
has got every right to gift the property to any person
whom he wishes. At page 9 of the cross examination it
is brought on record that his father sold the property
at Gudiyatham and purchased suit A schedule
property in the year 1946 along with one more
property bearing D.No.68. It is further brought on
record that he has not shown the occupation of the
tenant in suit A schedule property in Ex.P1.
55. DW1 - 1st defendant in OS.No.8480/2001
has also sworn to affidavit by way her chief
examination wherein she has corroborated the
contention taken by her in her written statement. In
particular it is the evidence of DW1 that her father
E.Doraiswamy was minor when suit A schedule
57 O.S.No.8480/2001 & 531/2002
property was purchased by her grand father in the
year 1946 and that her father had no source of income
to purchase suit A schedule property. She has also
spoken that her grand father had borrowed loan of
Rs.5000/- from one K.V.Rangaiah on the security of
suit property and subsequently he repaid the amount
from the joint family assets in the name of her father
E.Doraiswamy. It is also her evidence that her father
was aged 73 years during the year 2000 and had no
sound mind and understanding as such said gift deed
is forcibly obtained by PW1 in her favour. The cross
examination directed to DW1 is worth appreciating
because in the first para of the cross examination it is
brought on record that the marriage of her father took
place in the year 1947 and he was aged around 20 -21
years at the time of marriage. And subsequently she
has gone to the extent of saying that her father was
aged about 23-24 years. She pleads ignorance about
the acquisition of suit property in the year 1947 and it
is brought on record that she was not at all born in the
year 1947 as such, she do not know who paid the sale
consideration to purchase suit A schedule property.
The relevant admission reads as under:
I do not know whether the suit
schedule properties were
purchased in the year 1947. It is
58 O.S.No.8480/2001 & 531/2002
true to suggest that in the year
1947 I was not born and therefore
I do not know who had paid the
sale consideration to purchase
the suit schedule properties.
56. It is further brought on record that her
father was getting orders and he was doing his work as
goldsmith and she has pleaded ignorance about the
income of her father. It is further brought on record
that she came to know about the Wills executed by her
father in favour of herself, plaintiff and her mother.
She admits that on the basis of the said Will she is
claiming right over suit B schedule property. The
relevant admission reads as under :
It is true to suggest that on the
basis of said Will in contended
that A schedule property belong to
the plaintiff and I am the owner of
B schedule property.
57. She has also pleaded ignorance about
subsequent cancellation of Will by her father and the
execution of gift deed in favour of plaintiff. At para 5 of
the cross examination she admits that her grand
father Eshwarachari had purchased property No.68
which he had gifted in favour of his daughter
Pushpamma. She admits that Pushpamma had no
59 O.S.No.8480/2001 & 531/2002
issues and that Pushpamma had executed will in her
favour in respect of property No.68 and she died in the
year 2012. At para 9 of the cross examination, she
admits that on 7.8.1997 her father gave Rs.2,14,321/-
as a gift and it is brought on record that she has not
filed any suit challenging Ex.P1. In her further cross
examination dtd. 24.9.2013 she admits that her father
E.Doraiswamy purchased suit A schedule property in
the year 1947. At page 10 of the cross examination it is
brought on record that she has not gone through the
recitals of Ex.P3 sale deed executed by her grand
father in favour of K.V.Rangaiah on 31.7.1947. She
admits that there is a recital in Ex.P3 about the loan
borrowed but reiterates that her grand father repaid
the loan and purchased suit A schedule property. She
also admits that plaintiff was got married in the year
1968 and since then she is residing along with her
father E.Doraiswamy.
58. The 2nd defendant is also examined as DW2
and this DW2 in his evidence has corroborated the
contention taken by him in his written statement as
well as in the plaint stating that suit A schedule
property was the ancestral property and it was
nominally acquired in the name of E.Doraiswamy by
60 O.S.No.8480/2001 & 531/2002
his grand father Eshwarachari. It is his evidence that
by virtue of the adoption, he is the member of joint
family along with E.Doraiswamy and he has got equal
right over suit A schedule property. He has challenged
the authority of E.Doraiswamy to execute gift deed in
favour of plaintiff - Lokamba and has further stated
that the said gift deed is null and void and is not
binding on him. In support of his evidence DW2 has
got marked encumbrance certificates as per Ex.D1 to
D4, Certified copy of sale deed dtd.31.4.1947 as per
Ex.D5, copies of legal notices as per Ex.D29 & 30.
59. In the cross examination directed to him, it
is elicited from his mouth that he has gone through
the contents of sale deed dtd.31.7.1947 as per Ex.D5
and according to him Eshwarachari did not sold suit A
schedule property under Ex.D5. He is unable to speak
that Eshwarachari purchased the property No.68 by
selling his property situated at Gudiyatham, Tamil
Nadu and admits that Eshwarachari gifted the
property No.68 in favour of his daughter Pushpamma.
He pleads ignorance about bequeath made by
Pushpamma in favour of his mother under a Will. At
para 2 of the cross examination, it is brought on record
that in the sale deed executed by Eshwarachari in
61 O.S.No.8480/2001 & 531/2002
favour of K.V.Rangaiah, property in question was
shown as his self acquired property. At para 3 of the
cross examination it is brought on record that he was
born on 1.7.1964 and admits that he is not aware
about the transaction that took place in the year 1947.
He is also unable to speak the avocation of
E.Doraiswamy. At page 24 of the cross examination, it
is elicited form his mouth that K.V.Rangaiah had not
executed any deed of reconveyance in favour of
Eshwarachari. And according to him, he came to know
about the said transaction from E.Doraiswamy and his
wife Padmavathamma. This is all the evidence placed
on record by the parties on these issues.
60. Before adverting to the other aspects, it is
necessary to understand the principles regarding
presumption of jointness in Hindu family. The normal
state of every Hindu family is joint. Presumably, every
such family is joint in food, worship and estate. In the
absence of proof of division, such is the legal
presumption. But however, presumption of jointness is
not an absolute one and it may be displaced by direct
evidence of prior partition. There is no presumption
that a family because it is joint, possesses joint family
property. The burden of proving that any particular
62 O.S.No.8480/2001 & 531/2002
property is a joint family property is on the first
instance upon the person who claims it as a
coparcenary property. Where possession of a nucleus
of joint family property is proved or admitted, an
acquisition made by a member of family is presumed
to be a joint family property. Unless and until
adequate nucleus is shown, onus is not on the
acquirer to prove that the property standing in his
name was purchased from joint family funds. If
possession of adequate nucleus is shown, onus shifts
on to the person who claims property as self
acquisition, affirmatively to make out that the property
was acquired without any aid from the joint family
estate. With these principles in my mind, let me
consider the entire materials placed on record.
61. As could be seen from the materials placed
on record, the plaintiff asserts that suit A schedule
property was the self acquired property of
E.Doraiswamy and on that basis claims her absolute
title under Ex.P1. E.Doraiswamy in his written
statement has also come up with a specific defense
that he purchased suit A schedule property out of his
own earnings and therefore it was his self acquired
property. But DW2 and other defendants in
63 O.S.No.8480/2001 & 531/2002
OS.No.8480/2001 have contended that it is a joint
family property. Therefore in view of the above
pleadings of the parties it is necessary to first
adjudicate the dispute regarding the suit A schedule
property as joint family property.
62. Before adverting to the other aspects it is
necessary to mention some of the admitted facts. It is
an admitted fact that originally suit A schedule
property was purchased by Eshwarachari. It is also an
admitted fact that Eshwarachari sold the suit property
under Ex.P3 in favour of K.V.Rangaiah. The fact that
subsequently E.Doraiswamy purchased the suit A
schedule property under Ex.P2 is concerned there is
no dispute. But the entire dispute lingering between
the parties is to the effect that the sale deed in the
name of E.Doraiswamy was a nominal one and he was
minor at that time and hence it is joint family property.
63. The plaintiff asserts that the suit A schedule
property is the self acquired property of her father
E.Doraiswamy and she has also spoken to that effect
in her evidence as PW1. In the cross examination
directed to her an attempt is made to establish that the
suit A schedule property was the joint family property
64 O.S.No.8480/2001 & 531/2002
but nothing worth is elicited from her mouth. PW1 in
support of her oral evidence has also got marked
original sale deed as per Ex.P3 under which suit A
schedule property was sold by Eshwarachari in favour
of K.V.Rangaiah. On perusal of this Ex.P3 it is noticed
that Eshwarachari had borrowed amount from
K.V.Rangaiah on different occasions and in order to
repay the said amount, he sold suit A schedule
property for a consideration of Rs.5,000/- in favour of
K.V.Rangaiah. Interestingly there is no recital in Ex.P3
to the effect that it is a nominal sale deed executed as
a security for a loan transaction or that it is a
conditional sale, with a stipulation that K.V.Rangaiah
shall reconvey the property after receiving the amount.
No such recitals are found in Ex.P3. PW1 has also got
marked the original sale deed as per Ex.P2 in which
E.Doraiswamy purchased suit A schedule property
from K.V.Rangaiah and under this document also
there is no recital to the effect that the sale
consideration amount was paid by his father
Eshwarachari and the sale deed is nominally registered
in the name of E.Doraiswamy. At this juncture if the
evidence of PW2 E.Doraiswamy is perused, he in his
evidence has throughout maintains that suit A
schedule property was his self acquired property and
65 O.S.No.8480/2001 & 531/2002
that he purchased out of his own earnings as a
goldsmith. The fact that E.Doraiswamy was a
goldsmith is concerned, same is not in dispute. But
however in the cross examination directed to PW2 an
attempt is made to establish that this PW2 was not
having independent earnings and therefore his father
Eshwarachari purchased suit A schedule property
nominally in his name by paying entire consideration
amount. But nothing worth is elicited from his mouth
and in fact PW2 has stood to the test of cross
examination.
64. But however DW1 being the elder daughter
of E.Doraiswamy in her written statement has
contended that it is her joint family property. At this
juncture if written statement of DW1 is perused, she
has also taken a defense that her father E.Doraiswamy
was a minor as on the date of purchase of suit A
schedule property under Ex.P2. Even similar assertion
is made by her in her chief examination as DW1. But
in the cross examination directed to her, she
categorically admitted that her father E.Doraiswamy
was aged about 23 years at the time of purchase of
suit A schedule property and even she has gone to the
extent of admitting that her father was already married
66 O.S.No.8480/2001 & 531/2002
at that time. Therefore these admissions of DW1
falsifies her pleadings to the effect that E.Doraiswamy
was a minor as on the date of purchase of suit A
schedule property under Ex.P2. Interestingly DW1 In
her evidence has also spoken that she is claiming suit
A schedule property as a joint family property on the
basis of the Will under Ex.P16 in which right was
created in her favour. Therefore this part of the
evidence of DW1 itself establishes that she herself is
not sure about the nature of suit A schedule property
as a joint family property. Admittedly Ex.P16 is a
registered Will and it has been revoked by
E.Doraiswamy and hence no value should be attached
to the document. Therefore the evidence of DW1 that
on the basis of Ex.P16, she claim right over suit A
schedule property cannot be accepted.
65. This apart it is pertinent to note that DW2
the 2nd defendant in his written statement as well as in
his plaint has also asserted that suit A schedule
property is joint family property of himself and
E.Doraiswamy. Even in his evidence he has also
spoken to that effect and it is also his evidence that
there was a family settlement in which E.Doraiswamy
allotted suit B schedule property in his favour and a
67 O.S.No.8480/2001 & 531/2002
document was prepared under Ex.D33. He has further
stated that E.Doraiswamy agreed to execute registered
partition deed subsequently in his favour. In order to
prove the execution of Ex.D33, DW2 has also got
examined two witnesses as DW3 & 5 and they have
also sworn to affidavits by way of chief examination
wherein they have corroborated the evidence of DW2
about the family arrangement under Ex.D33 and
according to them, E.Doraiswamy himself distributed
the properties. At this juncture it is necessary to
mention that DW2 is claiming the property as joint
family property mainly on the ground that he is
adopted son of E.Doraiswamy and he has failed to
prove the said adoption before court. That being so,
question of considering whether he is also member of
joint family along with E.Doraiswamy does not arise.
Even otherwise, it is necessary to mention that the
nomenclature given to Ex.D33 as partition list cum
deed and the contents of Ex.D33 reveals that actual
partition has been affected and suit B schedule
property is shown to have been allotted in favour of
DW2. DW2 has spoken that the original of Ex.D33 was
retained by E.Doraiswamy and he has produced
notarized copy of which was admitted in evidence as
Ex.D33. But PW2 E.Doraiswamy has also denied this
68 O.S.No.8480/2001 & 531/2002
aspect. But however entire case of DW2 is based on
Ex.D33 which is admittedly an unregistered document
and as stated supra, right in immovable property was
created under Ex.D33 and hence Ex.D33 cannot be
accepted as document of title in favour of DW2.
Therefore the plea of partition or family settlement
based on the alleged concept of joint family as set up
by DW2 does not inspire the confidence of the court.
Therefore the evidence of DW2, DW3 & DW5 on this
aspect cannot be accepted. Therefore the only dispute
is now from DW1 who has contended that suit A
schedule property as a joint family property. As stated
supra E.Doraiswamy was already married and was
aged around 23-24 years at the time of purchase of
suit A schedule property under Ex.P2 and
E.Doraiswamy himself has spoken before court that he
had sufficient earnings at his disposal. Therefore the
evidence of PW2 E.Doraiswamy has to be accepted to
the effect that suit A schedule property was his self
acquired property. The recitals of Ex.P2 also support
the case of the plaintiff. But the contesting defendants
have failed to establish that the so called joint family
had sufficient nucleus at its disposal and that out of
said joint family nucleus suit A schedule property was
nominally purchased in the name of E.Doraiswamy.
69 O.S.No.8480/2001 & 531/2002
Even otherwise, it is admitted evidence of DW1 that
her grand father Eshwarachari sold his property of
Tamil Nadu and later purchased suit A schedule
property and another property bearing no.68 at
Bangalore. The recitals of Ex.P3 reveals that
Eshwarachari borrowed amount on different occasions
from K.V.Rangaiah and under those circumstances he
sold suit A schedule property in favour of
K.V.Rangaiah which is later purchased by PW2
E.Doraiswamy under Ex.P2. Therefore entire materials
placed on record falsifies the defense taken by the
defendants and probabilises the case put forth by
E.Doraiswamy as well as plaintiff to the effect that suit
A schedule property was self acquired property of
E.Doraiswamy and accordingly I have no hesitation to
hold that E.Doraiswamy is able to establish that suit A
schedule property was his self acquired property.
66. But now the plaintiff asserts that she is the
absolute owner of suit A schedule property by virtue of
Ex.P1. PW1 in her evidence has also spoken that soon
after her marriage she started residing with her father
E.Doraiswamy and even continued to stay till now and
looked after him. Therefore according to the plaintiff
her father out of love and affection and his own free
70 O.S.No.8480/2001 & 531/2002
will gifted suit A schedule property under Ex.P1 in her
favour. The donor under Ex.P1 in his evidence as PW2
has also admitted that he gifted the suit A schedule
property in favour of PW1. And it is his evidence that
he had gifted a sum of Rs.2,14,351/- in favour of his
elder daughter DW1 who in her evidence has also
accepted the same. It is also the evidence placed on
record that sister of E.Doraiswamy by name
Pushpamma acquired the property No.68 from her
father under a gift deed at Ex.P18. He has further
stated that the said Pushpamma gifted the property
No.68 in favour of DW1 and it is evidence of PW2 that
he prevailed over his sister to bequeath property No.68
in favour of DW1. DW1 in her evidence also admits
the same. This defense is set up by E. Doraiswamy
only to establish his bonafide that he treated both the
daughters ie., DW1 and PW1 alike. Be that as it may.
But now the question is about gift under Ex.P1. As
stated supra, suit A schedule property is self acquired
property of E.Doraiswamy, therefore he being the
master of his property has got every right to do away
with the property in any manner as he likes. This
E.Doraiswamy has gifted the property under Ex.P1 to
his daughter PW1 and hence the authority of
71 O.S.No.8480/2001 & 531/2002
E.Doraiswamy cannot be questioned by contesting
defendants.
67. But however DW2 in his plaint has asserted
that the gift is invalid on the ground that he is in
possession of suit B schedule property, therefore the
gift is not complete. Even similar argument was
advanced on behalf of DW2 stating that admittedly
DW1 & 2 are in possession of suit B schedule property
and the plaintiff has sought for recovery of possession,
therefore gift without delivery of possession is invalid
and not enforceable. In this connection the learned
counsel for the DW2 has relied on the decision cited
supra. Out of which the 3rd decision in the list is of
Hon'ble Supreme Court in Civil Petition No.4195/2008
between Renikuntla Rajamma (D) by Lrs., Vs.
K.Sarwanamma. On careful perusal of the above
authority, it is noticed that Hon'ble Supreme Court
was pleased to consider the issue regarding
requirement of delivery of possession for a gift to
become valid. The Hon'ble Supreme Court while
explaining the scope and ambit of Sec.123 of Transfer
of Property Act was pleased to held that a conjoint
reading of Sec.,122 & 123 of T.P. Act makes it
abundantly clear that the transaction covered by a
72 O.S.No.8480/2001 & 531/2002
registered instrument of gift and duly signed by the
donor and attested as required is not a sine qua non
for the making of a valid gift under the provision of T.P.
Act. At para 19 of the above judgment, the Hon'ble
Supreme Court was pleased to held as under:
In the case at hand as already
noticed by us, the execution of
registered gift deed and its
attestation by two witnesses is
not in dispute. It has also been
concurrently held by all the three
courts below that the donee had
accepted the gift. The recitals in
the gift deed also prove transfer of
absolute title in the gifted
property from the donor to the
donee. What is retained is only
the right to use the property
during the lifetime of the donor
which does not in any way affect
the transfer of ownership in
favour of the donee by the donor.
68. Perusal of the principles laid down in the
authority reveals that if a gift is through a registered
document and it is attested by two witnesses is
sufficient to confer title on the donee and the delivery
of possession is not required by law. The principles
laid down in the above authority are also amply
applicable to the case on hand. In the instant case
73 O.S.No.8480/2001 & 531/2002
PW2 gifted suit A schedule property under Ex.P1 in
favour of PW1 which is attested by two witnesses. Soon
after the gift, the name of PW1 was entered in
encumbrance certificate for the same year under Ex.P4
and subsequently PW1 has paid taxes to the
Government under Ex.P5, P7 to P12 which clearly
establishes that E.Doraiswamy not only gifted suit A
schedule property in favour of plaintiff, but the plaintiff
also accepted the gift and Ex.P1 is also acted upon
and hence the contention taken by the 2nd defendant
in his plaint as well as written statement as well as
contention taken by other defendants in
OS.No.8480/2001 challenging the validity of the gift
does not inspire confidence of this court. On the
contrary I am of the considered opinion that suit A
schedule property was self acquired property of
E.Doraiswamy and that plaintiff in OS.No.8480/2001
has became the absolute owner of suit A schedule
property under Ex.P1 and that the 2nd defendant in his
suit in OS.No.531/2002 has failed to establish that
Ex.P1 is null and void and accordingly I record my
findings on issue No.1 in OS.No.8480/2001 and issue
No.5 in OS.No.531/2002 in the affirmative and issue
No.3 in OS.No.531/2002 in the negative.
74 O.S.No.8480/2001 & 531/2002
69. Issue No.2 & 4 in OS.No.531/2002:- The
2nd defendant has asserted that there was a partition
on 26.12.1999 in which suit B schedule property was
allotted to him and E.Doraiswamy also agreed to
execute registered partition deed in his favour and that
he was put in possession and enjoyment of suit B
schedule property. He also contended that by virtue of
the said partition, he has became absolute owner of
suit B schedule property and alternatively he also
sought for half share along with E.Doraiswamy in suit
A schedule property. DW2 in his evidence has also
spoken about the alleged partition list cum deed under
Ex.D33. In support of his evidence he has also got
examined DW3 & 5 who are claims to be the witnesses
for Ex.D33. The 2nd defendant mainly on the basis of
Ex.D33 is claiming his ownership over suit B schedule
property and so also alternatively half share in suit A
schedule property. As stated supra, Ex.D33 is xerox
copy of the alleged family cum partition and it is not a
registered document and that rights were created
under Ex.D33. Therefore this Ex.D33 cannot be
considered as document of title in favour of 2nd
defendant and prima-facie it is hit by Sec.17 of
Registration Act and requires compulsory registration.
The Hon'ble Supreme Court in a decision reported in
75 O.S.No.8480/2001 & 531/2002
AIR 1988 SC 881 was pleased to held that a document
which requires compulsory registration has to be
registered, failing which the said document does not
convey or extinguish title. Therefore the said principles
are amply applicable to the case on hand and in the
considered opinion of this court, the so called
document under Ex.D33 does not confer any title on
2nd defendant or extinguishes the title of
E.Doraiswamy. Therefore the question of accepting the
title of DW2 under Ex.D33 or the said partition does
not arise.
70. As stated supra, this court has already come
to the conclusion that suit A schedule property was
self acquired property of E.Doraiswamy and a finding
is also recorded that DW2 has failed to prove the
adoption. That being so question of allotting half share
of the property in favour of 2nd defendant does not
arise.
71. But however 2nd defendant has contended
that by virtue of the partition under Ex.D33 he was in
possession of suit B schedule property. He has made
an attempt to establish that the so called partition
under Ex.D33 was partially acted upon. But the entire
76 O.S.No.8480/2001 & 531/2002
evidence placed on record by the parties clearly reveals
that DW1 was married and soon after her marriage she
started residing with her husband at Chittoor, Andhra
Pradesh and within couple of years, her husband
deserted her. PW2 has spoken that soon after he came
to know that his son-in-law was addicted to bad
habits, he went and brought back DW1 and permitted
her to stay in suit B schedule property. The document
and the evidence placed on record by PW1 & 2
clinchingly establishes that DW2 and his mother as
well as other family members were permitted to stay in
the suit B schedule property and the theory put forth
by 2nd defendant that by virtue of Ex.D33 he was put
in possession of suit B schedule property appears to be
concocted for the purpose of this suit and does not
inspire confidence of this court. Therefore in the
considered opinion of this court, 2nd defendant in his
suit OS.No.531/2002 has failed to establish the
alleged partition under Ex.D33 as well as his half
share in suit A schedule property. Hence I record my
findings on these issues in the negative.
72. Issue No.3 in OS.8480/2001 and Issue
No.6 in OS.NO.531/2002: The plaintiff asserts that
her father E.Doraiswamy permitted the defendants to
77 O.S.No.8480/2001 & 531/2002
occupy suit B schedule property as such they are in
permissive possession and enjoyment of the suit B
schedule property. Similar contention is taken by
E.Doraiswamy in his written statement and thereby
has supported the case of the plaintiff. It is an
admitted fact that defendants 1 to 4 are in possession
and enjoyment of suit B schedule property and
E.Doraiswamy in his written statement has specifically
contended that the husband of DW1 started neglecting
her, as such, he brought her back with her children to
Bangalore and permitted them to occupy suit B
schedule property. But contesting defendants in
particular DW1 & 2 have denied the permissive
possession and claims their possession over suit B
schedule property in their own right. DW1 in her
evidence has admitted that she is claiming right over
suit B schedule property by relying on the Will Ex.P16
which is already revoked by E.Doraiswamy. DW2 has
claimed his possession over suit B schedule property
on the basis of Ex.D33 which is already held as illegal
document. Therefore both DW1 & 2 have failed to
establish that they are in possession of suit B schedule
property in their own right. The perusal of entire
evidence placed on record reveals that admittedly
husband of DW1 deserted her and it is also brought on
78 O.S.No.8480/2001 & 531/2002
record that the whereabouts of her husband are
presently not known for the last 13 years. The entire
material placed on record by the parties clinchingly
establishes that E.Doraiswamy brought his daughter
DW1 back to Bangalore and his evidence that he
started taking care of the family of DW1 is also not
seriously disputed in the cross examination directed to
him. This court has already come to the conclusion
that suit A schedule property was self acquired
property of E.Doraiswamy and it is an admitted fact
that suit B schedule property is part of suit A schedule
property. Therefore the evidence placed on record by
PW1 & 2 to the effect that defendants are in
permissive possession will have to be accepted and
hence I have no hesitation to hold that plaintiffs in
OS.NO.8480/2001 and defendants 1 & 2 in
OS.NO.531/2002 are able to establish that
defendants of OS.No.8480/2001 are in permissive
possession of suit B schedule property. Hence I record
my finding on these issues in the affirmative.
73. Issue No.4 & 5 in OS.NO.8480/2001: The
plaintiff has asserted that defendants despite issue of
legal notice under Ex.P13, calling upon them to vacate
and handover vacant possession of suit B schedule
79 O.S.No.8480/2001 & 531/2002
property have failed to comply with the demand and
hence their possession is illegal as such, they are liable
to pay mesne profits at the rate of Rs.4,500/- per
month. Admittedly Ex.P13 was got issued by the
plaintiff which was served on the defendants and the
2nd defendant has got issued his reply under Ex,.14 &
15. The fact remains that defendants 1 to 4 have not
vacated and handed over possession of suit B schedule
property to the plaintiff. But however the plaintiff has
not produced any documents to establish that suit B
schedule property fetches monthly rent of Rs.4,500/-.
Admittedly there is no evidence placed on record by the
plaintiff to that effect. But however, considering the
fact that defendants are in unauthorized possession, it
is just and proper to award some reasonable mesne
profits to the plaintiff. Looking to the facts and
circumstances, I am of the opinion that if the mesne
profits are awarded at the rate of Rs.3000/- per month
from the date of suit till realization it would meet the
ends of justice.
74. Further the plaintiff has also sought for
recovery of possession of suit B schedule property
along with mesne profits. Plaintiff is able to establish
her title over suit A schedule property and hence she is
80 O.S.No.8480/2001 & 531/2002
entitled for the recovery of possession of suit B
schedule property together with mesne profits at the
rate of Rs.3,000/- per month from the date of suit till
realization and hence I record my findings on issue
No.4 & 5 partly in the affirmative and partly in the
negative.
75. Issue No.6 in OS.8480/2001 and Issue
No.7 in OS.NO.531/2002: For the foregoing
discussions and reasons therein, the suit of the
plaintiff in OS.NO.8480/2001 succeeds and deserves
to be decreed in part and suit of the 2nd defendant ie.,
OS.NO.531/2002 fails and liable to be dismissed. In
the result I proceed to pass the following:
ORDER
The suit of the plaintiff in OS.NO.8480/2001 is hereby decreed in part with costs.
The defendants are hereby directed to vacate and handover vacant possession of suit B schedule property to the plaintiff within three months from the date of decree.
The defendants 1 to 4 are jointly and severally directed to pay mesne profits at the rate of Rs.3,000/- per month in 81 O.S.No.8480/2001 & 531/2002 respect of suit B schedule property from the date of suit till realization.
The suit in OS.NO.531/2002 is hereby dismissed with costs.
Draw decree accordingly.
Keep original judgment in OS.No.8480/2001 and copy thereof in OS.NO.531/2002.
[Dictated to the Judgment Writer, computerised, and print out taken by him, corrected and then pronounced by me in open court, this day the 18th August 2015].
(MUSTAFA HUSSAIN.S.A.) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE ANNEXURE List of witnesses examined on behalf of plaintiff in OS.No.8480/2001:
PW1 :Smt.Lokamba PW2 :Doraiswamy
List of documents marked on behalf of plaintiff in OS.No.8480/2001:
Ex.P1 : Gift deed dtd.31.3.2000 Ex.P2 : Sale deed dtd. 31.7.1947 Ex.P3 : Sale deed Ex.P4 : Encumbrance certificate Ex.P5 to 11: Tax paid receipts 82 O.S.No.8480/2001 & 531/2002 Ex.P12 : Katha endorsement Ex.P13 : office copy of legal notice Ex.P14 : Reply notice Ex.P15 : Another reply notice Ex.P16 : Will Ex.P17 : Will dtd.9.2.1998 Ex.P18 : Certified copy of sale deed Ex.P19 : Certified copy of sale deed dtd.8.9.1980 Ex.P20 : Wedding Card' Ex.P21 : Certified copy of sale deed dtd.17.5.1948 Ex.P22 : Voter list of ward No.29of Chickpet Constituency, Bangalore List of witnesses examined on behalf of defendants in OS.8480/2001:
DW1 :Smt. Leelavathi DW2 :D.Srinivasulu @ D.Srinivas DW3 :K.Venkateswarulu DW4 :N.Subramanyamachari DW5 :Yogananda
List of documents marked on behalf of defendants in OS.No.8480/2001:
Ex.D1 to 4:Encumbrance certificates. Ex.D5 : Certified copy of sale deed dtd.31.4.1947 Ex.D6 to 8: Three marks cards Ex.D9 : Cumulative record Ex.D10 : Transfer certificate Ex.D11 & 12: SSLC & PUC Marks cards Ex.D13 : Marks card of English Typewriting Ex.D14 & 15: Certificates issued by National College Ex.D16 : Passport Ex.D17 : Show cause notice issued by Central Excise, Tamil Nadu.83 O.S.No.8480/2001 & 531/2002
Ex.D18 : Notice issued by Superintendent of Central Excise, Thiruchy Ex.D19 : Order passed by Asst.Collector of customs Thiruchy Ex.D20 : Notice issued u/s.28 of Customs Act Ex.D21 : Reply notice given to Lokamba Ex.D22 : Postal receipt Ex.D23 : Postal acknowledgement Ex.D24 : Notice issued by Lokamba Ex.D25 : Reply notice issued by Doraiswamy Ex.D26 : Postal acknowledgment Ex.D27 : Postal receipt and UCP Ex.D28 : Assessment register extract Ex.D29 & 30: Legal notice copies.
Ex.D31 : Certified copy of Gift deed dtd.31.3.2000 Ex.D32 : Four CDs. Ex.D33 : Xerox copy of the partition list cum deed
Ex.D33(b) : Signature of DW5.
XVIII Addl. City Civil Judge Bangalore City.84 O.S.No.8480/2001 & 531/2002
Common judgment pronounced in the open court as per separate judgment. Operative portion of judgment is as follows:
ORDER The suit of the plaintiff in OS.No.8480/2001 is hereby decreed in part with costs.
The defendants are hereby directed to vacate and handover vacant possession of suit B schedule property to the plaintiff within three months from the date of decree.
The defendants 1 to 4 are jointly and severally directed to pay mesne profits at the rate of Rs.3,000/- per month in respect of suit B schedule property from the date of suit till realization.
The suit in OS.NO.531/2002 is hereby dismissed with costs.
Draw decree accordingly.
Keep original judgment in OS.No.8480/2001 and copy thereof in OS.NO.531/2002.
XVIII Addl.C.C. & S.J., Bangalore