Bangalore District Court
Gowramma vs Narayanachari on 20 April, 2024
KABC010131092007
IN THE COURT OF THE XXII ADDL.CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY: (CCH.7)
Dated this the 20th day of APRIL, 2024.
PRESENT
BALAGOPALAKRISHNA
XXII ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.4631/2007
PLAINTIFFs : 1. Smt. GOWRAMMA,
W/o. Gopalachaari,
D/o. Narayanachari,
Aged about 48 years,
No.14, 1st floor, 80feet road
Vijayanagar, 3rd stage,
'B' Block, Mysore17.
2. Smt. ANASUYAMMA,
W/o. Nagarajachari,
D/o. Narayanachari,
Aged about 42 years,
No.128, Kottanur Village,
Uttarahalli Hobli,
Bangalore560076.
3. Smt. PUSHPALATHA,
W/o. Neelakanta
D/o. Narayanachari
Aged about 38 years
2 O.S.No.4631/2007
No.86, Flour Mill
Near Yellamma Temple
Kottanur,
Bangalore560076.
( By Sri.GVN, Advocate for P1)
( By Sri.YNS, Advocate for P2)
( By Sri.SV, Advocate for P3)
VS
DEFENDANTS : 1. Sri. Narayanachari,
S/o. Late Venkataramanachari,
Aged about 80 years.
(Died , Lrs on record)
2. Sri. Trimurthachari,
S/o. Narayanachari,
Aged about 44 years.
2(a). Smt. Varalakshmamma
W/o. Late Trimurthachari,
Aged about 45 years.
2(b). Bhuvaneshwari
D/o. Trimurthachari
Aged about 25 years.
2(c). Ananda,
S/o. Late Trimurthachari
Aged about 21 years
All the above defendants 1 to 2 (c) are
resident of Kottanur Village,
Uttarahalli Hobli,
Bangalore South Taluk.
3 O.S.No.4631/2007
2(d). Smt. Swetha (Died)
D/o. Trimurthachari,
A/a 19 years,
Resident of Cheeda
Chikkanahalli village,
Hobli and Post,
Chikkaballapura Post.
3. Sri. Suryanarayanachari @ Suresh,
S/o. Narayanachari, A/a 40 years
R/at. Kottanur Village
Uttarahalli Hobli,
Bangalore South Taluk.
4. Sri. K.M.Somashekar
S/o. Late Muniyappa
Aged about 40 years,
No.18, 5th cross, 5th main
Srinidhi Layout, Konanakunte Post
Bangalore560062.
5. Sri. Jagadeesh Nayak
S/o. K.S.Nayak
A/a 66 years,
R/at. No.985, 25th main
BSK 1st stage, Bangalore560050.
6. Sri. K.Sandeep Nayak
S/o Sri. Jagadeesh Nayak, Defendants 1
and 2 are Residing at No.004, Delphi II
Penting Acropolis
Hosur Road,
Bangalore560029.
Also at No.985, 25th Main
BSK 1st stage, Bangalore560005.
4 O.S.No.4631/2007
7. Sri. Ramanjulu Raju,
Aged about 50 years,
S/o. Late V.Subbaraju,
R/at. No.27/1, 47th cross,
8th Block, Jayanagar,
Bangalore560082.
8. Sri. Sadiq Gaihlot,
Aged about 33 years,
S/o. Abdul Rehman Gaihlot,
R/at. No.22/11, 2nd floor
5th main, 7th cross, S.K.Garden,
Benson Town, Bangalore560046.
D1 & D2 Dead
(By Sri.RDB for lrs of D2(a,b,c) )
(By Sri. KTN for D3, ASG for D4
Sri. BAN for D8, D5 to 7 Absent)
Date of Institution of the suit : 21/ 04 / 2007
Nature of the Suit : PARTITION
Date of commencement of recording
of evidence : 06/ 10 /2023
Date on which the Judgment was
pronounced : 20 /04/ 2024
Year/s Month/s Day/s
Total Duration : 16 11 29
(BALAGOPALAKRISHNA)
XXII Addl.City Civil & Sessions Judge,
5 O.S.No.4631/2007
Bengaluru City.
JUDGMENT
The plaintiffs have filed this suit against the defendants for partition and separate possession of their share in all the suit schedule properties, for injunction restraining the 4th defendant from alienating or encumbering and also interfering with the possession of the plaintiffs over the suit item No.3, mesne profits and other reliefs as prayed in the plaint.
2. In a nut shell, the Case of the plaintiffs are as under: It is submitted that, the propositos of the family of plaintiffs and defendant No.2 and 3 is defendant No.1 by name Narayanachari, they have constituted Hindu Undivided Joint Family. The 1 st defendant being Kartha and Manager of the Family was looking after the joint family properties for himself and on behalf of the other Joint Family Members. It is also stated that since the defendant No.1 has become aged man, the defendant Nos.2 and 3 who are the sons of defendant No.1 are looking after the Joint Family.
6 O.S.No.4631/20073. It is submitted that, the father of the defendant No.1 by name Venkataramanachari had 2 sons viz., defendant No.1 and Krishnachari. It is further pleaded that, during the life time of late Venkataramanachari he had acquired certain immovable properties and those properties were enjoying jointly by late Venkataramanachari and his two sons viz., Sri. Narayanachari - defendant No.1 and Krishnachari. They have divided their ancestral properties under Registered Partition Deed dated 24081966 where under the defendant No.1 had got following properties: (1) Sy.No.60/13 (Resurey No.16/13A I) measuring 036 guntas (2) Sy.No.174/4 - measuring 1.20 guntas. (3) Property bg. Katha No. 239 measuring East to West 80ft North to South 14ft.
All the said properties are situated at Kothanur Village, Uttarahalli Hobli. After the partition, the said properties are continued to be in Joint Possession and enjoyment of the plaintiffs and defendant Nos.1 to 3. It is also submitted that, the defendant No.1 out of the income derived from the said properties he has also acquired 030 guntas in Sy.No.171/4 and Sy.No.60/13C measuring 05 guntas and 7 O.S.No.4631/2007 Gramathana No.92/92 and 239 etc., out of joint family nucleus.
4. It is submitted that, 2nd and 3rd defendant are residing in the house constructed on Sy.No.60/13A i.e., Item No.1 and they have also leased out certain buildings thereon. It is also submitted that, they are running Gangadhareswara Engineering Works and Hollow Bricks Factory and they are collecting huge rents from the tenants and they are not providing proper accounts to the plaintiffs. Therefore, the plaintiffs are entitle for mesne profits.
5. It is further case of the plaintiffs that Sy.No.171/4 totally measuring 1.20 guntas i.e., Item No.2 was proposed to be acquired by BDA for formation of sites by Amarjyothi House Building Cooperative Society. The plaintiffs have spent huge amount to drop the said acquisition proceedings before Hon'ble High Court and Hon'ble Supreme Court and ultimately the said acquisition proceedings was dropped. Taking into consideration the said fact, the defendant Nos.1 to 3 out of their own free Will they have executed 3 separate Registered sale deeds in respect of Gramatana House Property bearing Kaneshumari No.121 and No.92/92 of Kottanur village, which belongs to the joint family of the 8 O.S.No.4631/2007 plaintiffs and they are in possession of the same. It is further submitted that, the defendant Nos.1 to 3 have sold Northern portion of Gramatana Katha No.239 of Kottanur village under registered sale deed dated 30102004 in favour of plaintiff No.3 and her husband Neelakanta by retaining Southern portion of Gramatana Property Katha No.239, except above sale transactions among the plaintiffs and defendants No.1 to 3 there is no any other transaction in respect of the suit schedule properties. It is submitted that, though the defendant No.1 was eager to effect partition, but defendant Nos.2 and 3 have not agreed to effect the partition for one or the other reason with a malafide intention. The defendant No.3 in order to achieve his malafide intention he has tried to sell the Southern Portion of Gramatana Katha No.239 of Kothanur village in favour of 4th defendant. On coming to know the fraudulent act, the plaintiffs have issued legal notice to defendant No.4. It is further case of the plaintiffs that, in the month of January 2006 the 3rd defendant had obtained the signatures of plaintiff Nos.1 and 2 on stamp paper and created a gift deed said to have been executed in favour of Smt. Indramma wife of 3rd defendant in respect of suit item No.1. In fact, the said document has been obtained by playing fraud etc., It is further submitted that, the 9 O.S.No.4631/2007 defendant Nos.1 to 3 keep on assuring the plaintiffs that, they will provide their legitimate share in the suit schedule properties, but inspite of it they have not effected the partition. Hence, without any alternative the plaintiffs have filed the present suit. Accordingly, prayed to decree the suit as prayed.
6. In response to the summons issued by this court during the lifetime of Defendant No.1, he has appeared and filed the written statement as under: This defendant has admitted the relationship exist among himself, plaintiffs and defendant Nos.2 and 3. This defendant has also admitted that, in a suit item No.1, defendant Nos.2 & 3 are residing there and according to his knowledge defendant Nos.2 and 3 are receiving the rent of Rs.40,000/ per month. It is also stated that, defendant Nos.2 and 3 are misusing the Joint family properties and income therefrom. It is also admitted that, suit item No.2 i.e., Sy.No.171/4 is also a joint family property, the defendant Nos.2 and 3 have not shown any interest to protect the said property from acquisition. However, the daughters and soninlaw have financially helped the defendant No.1 and see that acquisition proceedings was dropped. It is further submitted that, since the defendant 10 O.S.No.4631/2007 No.2 and 3 have demanded financial help from him, he and defendant Nos.2 and 3 have jointly executed Registered sale deed dated 30102004 by selling the Northern portion of the suit item No.3 i.e., Katha No.239 and sale consideration was utilized by defendant Nos.2 and 3. This defendant further submitted that, though he is ready to effect partition the same was not effected due to intervention of the defendant Nos.2 and 3. The defendant Nos.2 and 3 are trying to sell the suit item No.3 in favour of defendant No.4 i.e., Gramatana Katha No.239. It is also submitted that in suit item No.3 the plaintiff was about to proceed with construction, at that time the 4 th defendant and one Agasara Seenappa have threatened them to face the serious consequences.
7. This defendant submitted that, he has no exclusive right to execute the Gift deed dated 14022006. It is also submitted that, the 3rd defendant had married one Indramma, out of their wedlock a female child was born. The 3rd defendant is not having good habit so he left his wife and daughter about 2 years and then he came back and started to give all pinpricks to this defendant. Taking advantage of old age of this defendant, the 3 rd defendant forcefully taken some registered documents purported to be 11 O.S.No.4631/2007 the Transfer of Deeds in respect of Joint Family Properties without knowing its consequences. Thus, contended that, whatever the registered and unregistered documents alleged to be executed by this defendant is not voluntarily and taken out of force. Out of that gift deed dated 14022006 is also one of the documents and he has no objections to effect partition by allotting the share of the plaintiffs.
8. The legal representatives of 2nd defendant have appeared and filed their written statement as under: The legal representatives of 2 nd defendant at the first instance have denied all the averments made in the plaint are all false and created by the plaintiffs in order to file the present suit. These defendants have admitted the relationship among the plaintiffs and defendant Nos.1 to 3. It is further pleaded that, there was already a partition between brothers, but it does not mean that, the plaintiffs are not entitle for any share in the suit schedule properties. These defendants have denied that out of the joint family nucleus Sy.No.174/4 and Sy.No.60/B/C were acquired. Sy.No.171/4 i.e., item No.2 was subject to acquisition, but subsequently it was dropped. It is further submitted that, 12 O.S.No.4631/2007 the plaintiffs have taken their respective share from their father and relinquished their right in respect of their family properties, but no document was executed to that effect. It is submitted that, the defendant No.1 has gifted 030 guntas of land in favour of Smt.Indumathi, for that the plaintiffs are witnesses and admitted the right, title and interest of the defendants.
9. On 10122015 the legal representatives of 2nd defendant have also filed additional written statement by adding the following paras: These defendants have taken contention that, the plaintiffs have not included all the joint family properties which were acquired out of joint family income. These legal representatives of defendant No.2 stated that, they are residing in the house constructed in Sy.No.60/13/A and it is also contended that, the defendant Nos.1 and 3 are collecting all the rents from the tenants who are in occupation of joint family properties, enjoying the same without giving any share to the legal representatives of defendant No.2. It is further submitted that, the plaintiffs colluding with the alleged purchasers Jagadeesh Nayak and K.Sandeep Nayak have received the amount in respect of suit item No.2 and filed a memo that the suit item No.2 13 O.S.No.4631/2007 may be deleted from the plaint schedule. This act of the plaintiffs clearly reveals that, the suit filed by the plaintiffs is collusive, illegal and arbitrary. It is also stated that, 3 registered sale deeds executed in respect of Gramatana properties also belonged to the family of defendant Nos.1 to 3. Deletion of item No.2 of the schedule properties from the acquisition proceedings is not proper. Thus, contended that, the alleged sale deeds are not binding on the legal representatives of defendant No.2. These legal representatives of defendant No.2 have filed O.S.NO.6888/2014 on the file of this court for declaration which is pending for consideration. It is also stated that, the sale deed dated 30102004 alleged to have been executed by defendants No.1 to 3 in favour of 3 rd plaintiff and her husband in respect of Northern portion of Gramatana property bearing No.239 is illegal and not binding on these defendants. It is also contended that, gift deed executed by defendant No.1 in favour of wife of 3 rd defendant is questioned by these legal representatives of defendant No.2. In fact, the defendant No.1 has no right to gift or sell the properties. On these grounds and amongst others the legal representatives of defendant No.2 have prayed to dismiss the suit of the plaintiffs with costs.
14 O.S.No.4631/200710. Defendant No.3 has appeared and filed the written statement as under: At the first instance this defendant has denied all the averments made in the plaint are all false and created by the plaintiffs to file the present suit. This defendant has admitted the relationship exist among him, other defendants No.1 and 2 and plaintiffs. He further admitted that, the 1st defendant has inherited ancestral property to his share under Partition deed dated 24081966 taken place among himself and his brother. It is also admitted that, the 1st defendant in the said partition has got Sy.No.60/13 resurvey number 60/13A measuring 036 guntas and Sy.No.171/4 measuring 030 guntas and Mangaluru Tiled House measuring East - West 08ft and North - South 14ft in Gramatana, all the said properties are situated at Kothanur village, Uttarahalli Hobli. It is further stated that, the rest of the properties are the self acquired properties of 1st defendant. This defendant further denied that, he has received rent from the property bearing Sy.No.60/13A and submitted that, the defendant No.1 as a Kartha of the family of plaintiffs and defendant Nos.1 to 3 were collecting the entire rent from the above 15 O.S.No.4631/2007 said properties. This defendant further denied that, at the time of deletion of item No.2 of the suit schedule property the plaintiffs and other family members have made all efforts for dropping of acquisition proceedings. The plaintiffs have taken certain joint family properties towards their share and this defendant has performed the marriage of plaintiffs by spending huge amount. Therefore, the plaintiffs have no right to claim share in the suit schedule properties.
11. It is submitted that, the defendant No.1 sold 17 guntas in Sy.No.60/13A in favour of Indramma w/o Suresh out of 036 guntas. Thus, contended that, suit item No.1 and 2 are not available for partition to the plaintiffs except defendant nos.1 to 3. This defendant has denied that, he has executed sale deed dated 30102004 in respect of Northern portion of Gramatana Katha No.239 in favour of 3rd plaintiff. It is also denied that the plaintiffs are having share in Gramatana Property bearing No.239. It is submitted that, in Sy.No.60/13A the defendant No.1 has gifted in favour of Indramma W/o. Suresh under registered gift deed dated 14022006, for that the plaintiffs are agreed to gift the property in favour of Indramma W/o. Suresh and they have put their signature as attesting 16 O.S.No.4631/2007 witnesses. Thus, the said gift deed is a genuine document. Therefore, in Sy.No.60/13A the plaintiffs have no manner of right or share on it. It is further stated that, the plaintiffs after taking their share in the Joint Family properties they are living happily in their respective husband's house. Inspite of it, only with a malafide intention they have filed the present suit. Accordingly, prayed to dismiss the suit with costs.
12. The defendant No.4 has appeared and filed written statement as under: This defendant being a purchaser of item No.3 has denied all the averments made in the plaint are all false and created. It is the specific case of this defendant that, suit item No.3 is the self acquired property of Sri.Narayanachari and he had purchased the same out of his own earnings. As a absolute owner the defendant Nos. 1 & 2 have sold suit item No.3 in favour of defendant No.3 i.e., Sri.K.N.Suresh S/o. Narayanachari under registered sale deed dated 30102004 and he was paying necessary tax to the concerned authorities. The 3 rd defendant being an absolute owner of the suit item No.3 he has executed sale agreement dated 27122006 agreeing to sell the suit item No.3 in favour of defendant No.4 and on 17 O.S.No.4631/2007 the date of the sale agreement itself he was put the 4 th defendant in possession of the same. In this regard, the 3 rd defendant has executed sale agreement dated 27022006, affidavit & General Power of Attorney in favour of this defendant. On the basis of the said document, this defendant has taken power from the BESCOM and continued to be in possession of the suit item No.3. It is further submitted that, though there was a partition among plaintiffs and defendant Nos.1 to 3 long ago, only with a malafide intention the present suit has been filed by the plaintiffs. Thus, contended that, there is no cause of action to the plaintiffs to file the present suit. Accordingly, prayed to dismiss the suit with costs.
13. The defendant No.8 has appeared and filed the written statement, this defendant being a purchaser of item No.2 has filed written statement as under: This defendant has admitted the relationship exist among plaintiffs and defendant Nos.1 to 3. It is also contended that, this defendant being an absolute owner in possession of Sy.No.171/4 of Kothanur village measuring 1.20 guntas and got converted the said property for non agricultural purpose and got transferred the Katha in his 18 O.S.No.4631/2007 name. Therefore, neither the plaintiffs nor the defendant Nos.1 to 3 have right on it. This defendant has specifically contended that, the suit Item No.2 is the absolute and self acquired property of defendant No.1. During the lifetime of defendant No.1 he has disposed of the suit item No.2. Therefore, the plaintiffs are not entitle for any share.
13(a). It is submitted that suit item No.2 bearing Sy.No.171/4 measuring 1.20 guntas had acquired by Narayanachari and his brother Krishnachari under registered Partition Deed dated 24081966 where under the defendant No.1 Narayanachari had 030 guntas and his brother Krishnachari had acquired 030 guntas.
13(b). Subsequently, the brother of defendant No.1 by name Krishnachari sold his share in Sy.No.171/4 measuring 030 guntas in favour of defendant No.1 under Registered sale deed dated 31121966 and that, again the defendant No.1 sold 030 guntas of land purchased by him in favour of his brother Krishnachari under registered sale deed dated 25031968.
13(c). The said Krishnachari sold 030 guntas in Sy.No.171/4 in favour of V.Janardhana under registered sale deed dated 26051971.
19 O.S.No.4631/200713(d). Again the said Janardhana sold 030 guntas in Sy.No.171/4 in favour of defendant No.1 under registered sale deed dated 13081974. Thus, contended that, the defendant No.1 has acquired Sy.No.171/4 measuring 1.20 guntas in the above said manner. Thus, contended that, he was the absolute owner and in possession of the same and got changed the revenue records in his name as absolute owner.
14. It is the specific case of this defendant that, the defendant No.1 being an absolute owner of suit item No.2 in order to meet out of his family benefit and legal necessities, he sold the same in favour of one Sri. Sandeep Nayak - defendant No.6 under registered sale deed dated 22022011. Prior to that, the defendant No.1 along with the plaintiffs herein had executed General Power of Attorney and other documents in favour of one K.Jagadeesh Nayak - defendant No.5 by receiving the entire sale consideration. Subsequently, the defendant No.1 and plaintiffs through their lawful attorney defendant No.5 have executed absolute sale deed dated 22022011 as stated above. On the basis of that, the 20 O.S.No.4631/2007 revenue entries were got transferred in the name of defendant No.6 in respect of item No.2.
15. Apart from above transaction, the defendant No.1 and 3 along with plaintiff No.2 K.N.Anusuyamma, Varalakshmamma w/o of defendant No.2 and Grandchildren of defendant No.1 have executed confirmation deed on 28112011 confirming the sale deed dated 22022011. Thus, the defendant No.6 has become the absolute owner of suit item No.2.
16. It is submitted that, the defendant No.6 being a sole and absolute owner of suit item No.2 in order to meet out his family benefit and legal necessities he has agreed to sell the suit item No.2 in favour of defendant Nos.7 & 8. Accordingly, he has executed registered sale agreement dated 31122011 in favour of defendant No.7 and 8. On the very same day he has executed registered general power of attorney in favour of defendant Nos.7 & 8. Thereafter, the defendant Nos.7 & 8 have got converted the suit item No.2 from agricultural purpose to non agricultural purpose. Accordingly, the Deputy Commissioner has issued Conversion order in ALN (SU) SR 52/201213 dated 17012023. It is submitted that, the 21 O.S.No.4631/2007 defendant No.5 being a general power of attorney holder of defendant No.6 has sold suit item No.2 in favour of defendant Nos.7 & 8 under registered sale deed dated 25032013 and on the date of sale itself and also on the basis of the sale agreement these defendants were put in possession of the suit schedule property. Thereby, the defendant Nos.7 and 8 have become the joint owner of the suit item No.2 bearing Sy.No.171/4 measuring 1.20 guntas.
17. It is submitted that, the defendant No.7 by name Ramanjulu Raju being a joint owner of item No.2 of the suit schedule property in respect of 50% he has relinquished his right by executing registered sale deed dated 25032013 in favour of defendant No.8. Thereby, the defendant No.8 has become the absolute owner and in possession of the suit schedule property. In pursuance of the conversion, the BBMP has issued Katha certificate in the name of defendant No.8 in respect of said item No.2 and he is paying necessary tax to the BBMP. The defendant No.8 being absolute owner of suit item No.2 he has put up a compound wall around suit item No.2. It is also stated that, the defendant No.6 has also executed a Registered Confirmation deed in favour of this defendant on 25062013. Thereby, this defendant No.8 is enjoying 22 O.S.No.4631/2007 the suit schedule property without any hindrance as absolute owner of the same. Thus, contended that, the defendant No.8 is the bonafide purchaser for valuable consideration, so his interest has to be protected.
18. During the pendency of the suit the plaintiff Nos.1 and 2 have executed a confirmation deed on 28012011 in favour of defendant No.5 confirming the sale transaction. Therefore, plaintiff Nos.1 and 2 have filed an application under Order 23 Rule 1(4)(a) r/w Sec.151 CPC seeking abandon of their claim over suit item No.2 of the property. Thus, contended that suit of the plaintiff is not maintainable. It is also submitted that, suit of the plaintiffs is barred by law, there is no cause of action, suit of the plaintiffs is bad for nonjoinder of the necessary parties etc., On these grounds and amongst others, prayed to dismiss the suit with costs.
19. On the basis of the above pleadings of the respective parties, my learned predecessor has framed the following: ISSUES 23 O.S.No.4631/2007
1) Whether plaintiffs prove that suit properties are joint family properties of plaintiffs and defendants 1 to 3?
2) Whether the plaintiff No.1 and 2 prove that their signatures were obtained to registered gift deed dated 14022006 by playing fraud on them?
3) Whether defendant No.4 proves prior partition alleged by him?
4) Whether defendant No.3 and 4 prove that suit properties are self acquired properties of defendant No.1?
5) Whether defendant No.4 proves that suit item No.3 has been validly purchased by him?
6) Whether plaintiffs have a share in the suit properties?
7) Whether the plaintiffs are entitled for permanent injunction sought for against defendant No.4?
8) Whether the plaintiffs are entitled for mesne profits?
9) What decree or order?
ADDITIONAL ISSUE NO.1
1. Whether the defendant No.8 proves that he is a bonafide purchaser of item No.2 for valuable consideration?
24 O.S.No.4631/200720. On the side of the plaintiffs, PW.1 is examined and Ex.P1 to Ex.P.16(a) are got marked. On the side of the defendants, Dws.1 to 3 are examined, Ex.D1 to Ex.D20 are got marked and closed their side.
21. Heard the arguments on both the sides on merits. Apart from the oral arguments, the lrs of defendant No.1, defendant No.3 have submitted their written arguments and same is taken on record.
22. During the course of arguments, the plaintiff counsel has pressed into the service of rulings of Hon'ble Supreme Court and Hon'ble High Court as under:
1. (2020) 9 SCC 1 (Sri. Vineeta Sharma v/s. Rakesh Sharma & Others)
2. AIR 1986 SC 79 (Bhagwant P. Sulakhe v/s. Digambar Gopal Sulakhe)
3. AIR 1978 SC 1201 (Binod Bihar Lal & Others v/s.
Rameshwar Prasad Sinha & Others)
4. AIR 1959 SC 906 25 O.S.No.4631/2007 (Mallappa Girimallappa Beteri & Others V/s. R.Yellppagouda Patil & Others)
5. AIR 2022 KAR 254 (Dyavanna V. Puttamadamma and Ors.)
6. ILR 2008 KAR 1773 (Sri Veerayya Mahantayya Koppad & Others V/s. Smt. Geetha and Others)
7. AIR 1994 HP 87 (ParmaNand Appellants vs. Sudama Ram & Others Respondents) The learned counsel Smt.SV appearing for plaintiff No.3 has adopted the arguments of plaintiff No.1 and also said rulings.
23. The learned counsel Sri. RDB for lrs of defendant No.2 submitted that, the suit of the plaintiff is bad for partial partition, on this ground alone suit of the plaintiff is liable to be dismissed. The suit filed by the lrs of defendant No.2 in O.S.NO.2650/22 is also pending. Therefore, in this case no relief can be granted to the plaintiffs. The plaintiffs colluding together though they have sold the properties falsely filed the present suit. Hence, prayed to dismiss the suit.
26 O.S.No.4631/200724. The learned counsel for 3rd defendant and defendant No.8 vehemently argued that the suit of the plaintiffs is not maintainable. The plaintiffs have already taken their share in other family properties and only with an intention to harass the 3rd defendant has filed the present suit. The counsel for defendant No.8 has submitted that, since the suit item No.2 is the absolute property of the defendant No.1 he and plaintiffs have already sold the said item in favour of defendant No.8. Once again they cannot maintain the present suit, only to extract money the present suit is filed. Accordingly, prayed to dismiss the suit. In order to substantiate their contentions, they relied on the following citations:
1. ILR 1998 KAR 681 (Sri. Tukaram V/s. Sri. Sambhaji & Others)
2. (2007) 10 Supreme Court Cases 602 (Makhan Singh (dead) by Lrs, V/s.
Kulwant Singh)
3. ILR 2016 KAR 3604 (Smt. Shakuntala & Others V/s. Basavaraj & Others) 27 O.S.No.4631/2007
4. AIR 2007 SC 218 (Appasaheb Peerappa Chandgade V/s. Devendra Peerappa Chandgade & Ors)
5. 2018 SAR (Civil Supp. II) 700 (Managammal @ Thulasi @ Another V/s.
T.B.Raju & Others)
6. ILR 2022 KAR 992 (Smt. Mallamma and Others V/s. Mallegowda @ Karigowda & Others)
25. On the basis of the evidence available on record, my findings on the above issues are as under: Issue No.1 : In the Negative;
Issue No.2 : In the Negative;
Issue No.3 : In the Negative;
Issue No.4 : In the Affirmative;
Issue No.5 : Does not survive
for consideration;
Issue No.6 : Partly, In the Affirmative;
Issue No.7 : In the Negative;
Issue No.8 : In the Negative;
Issue No.9 : As per final order
Ad. Issue No.1: In the Affirmative.
28 O.S.No.4631/2007REASONS
26. ISSUE Nos.1, 2, 4 and Addl. Issue No.1: These issues are interlinked and they are taken together for common discussion to avoid repetition.
It is admitted fact that, the defendant No.1 is the father of plaintiffs and defendant Nos.2 and 3. The said relationship is not in dispute among the parties. In the present suit, the plaintiffs being the daughter of defendant No.1 are seeking partition in the following properties: i. Item No.1:Sy.No.60/13A measuring 036guntas, ii. Item No.2: Sy.No.171/4 measuring 1.20 guntas, iii. ItemNo.3: Khanesumari No.239 measuring East to West 80ft, North to South 14ft. All the said properties are situated at Kotanur Village, Uttarahalli Hobli.
27. In the pleadings, the plaintiff at para No.2 has specifically stated that during the life time of late Venkataramanachari he had acquired certain immovable properties and those properties are enjoyed jointly by late 29 O.S.No.4631/2007 Venkataramanachari and his two sons viz., Narayanachari defendant No.1 and Krishnachari. It is also stated that after demise of late Venkataramanachari the properties left by him had partitioned by defendant Nos.1 and his brother Krishnachari under registered partition deed dated 24081996. This fact is also not in dispute among the parties.
28. In this regard, the plaintiffs have not produced any documents. However, the defendants have produced the said document which is marked at Ex.D5 and typed copy is marked at Ex.D5(a). On careful reading of the said documents the defendant No.1 and his brother Krishnachari have divided their family properties where under 'A' schedule property mentioned therein was fallen to the share of defendant No.1 ( Narayanachari). It is as under:
1. Sy.No.60/13 measuring 036 guntas
2. Sy.No.171/4 measuring 030 guntas and
3. Mangaluru Tiled House @ Kothanur village measuring East to West 27ft and North to South 19ft.
When the said properties compared to plaint schedule except measurement, suit item Nos.1 to 3 are one 30 O.S.No.4631/2007 and the same. Therefore, the court can come to conclusion that, the suit schedule properties were fallen to the share of defendant No.1 Narayanachari under Ex.D5. This fact has also not been seriously disputed by the plaintiffs. Now, the question is whether the suit schedule properties are ancestral properties of defendant No.1 or it is the self acquired property of defendant No.1 has to be considered.
29. The learned counsel appearing for the plaintiffs relied upon the recitals made in Ex.P5 i.e., ನವಗಳ ಎಕ ಕಟಟಬದಲಲ ರಲ ಸರಬರದದ ರಟದ ಈ ದನ ಈ ಕಳಕಡ ಸಕಕ ಗಳ ಸಮಕಮ ನಮಮ ಪತತ ರರತ ಸತತ ಗಳನನ ಈ ಕಳಕಡತ ವಭಗ ಮಡಕಟಡರತತ ತವ.
Thus, contended that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendant Nos.1 to 3. Further more, in the plaint the plaintiffs have also stated that some of the properties were also acquired by the defendant No.1 out of the joint family nucleus. Thus, contended that, the suit schedule properties including the properties acquired by Narayanachari - defendant No.1 are joint family properties. At this juncture let me clarify about item No.2. As per the Ex.P5 in Sy.No.171/4 only an extent of 030 guntas was acquired by the defendant No.1. Whereas in the plaint schedule total 31 O.S.No.4631/2007 extent of the item No.2 i.e., Sy.No.171/4 it is mentioned as 1.20 guntas. Therefore, how Narayanachari has acquired remaining 030 guntas has to be considered. As per the material available on record, the brother of defendant No.1 ie., Krishnachari had sold his share of 030 guntas in Sy.No.171/4 sold to defendant No.1 under registered sale deed dated 31121966. Again the defendant No.1 Narayanachari sold very same 030 guntas in favour of his brother Krishnachari under registered sale deed dated 25031968. Again Krishnachari sold very same 030 guntas in favour of one Janardhana under Registered sale deed dated 19051971. Finally, under registered sale deed dated 13081974 the defendant No.1 had purchased very same 030 guntas from Janardhan. The said registered sale deeds are marked at Ex.D7 to Ex.D9. Therefore, the defendant No.1 had acquired 120 guntas in suit item No.2 i.e., Sy.No.171/4. In all, it is gathered that 030 guntas was acquired by defendant No.1 under Ex.D5 and remaining 030 guntas was purchased by defendant No.1 Narayanachari. It is the contention of the plaintiffs and legal representatives of defendant No.2 that this property was acquired out of the joint family nucleus. Thus, remaining 030 guntas has also become the joint family property, therefore contended that they are entitle for 32 O.S.No.4631/2007 share. Thus, burden is upon them to prove the said aspect. At this juncture, let me consider the evidence adduced by the plaintiffs. Here, plaintiffs No.1 and 3 by name Smt. Gowramma and Pushpalatha, where as defendant No.2 submits that, she has no interest in the suit. As stated above, let me consider the evidence adduced by the plaintiffs. The plaintiff No.1 herself examined as PW.1 and her examinationinchief has been filed by way of affidavit wherein she reiterated the averments made in the plaint and produced the following documents: Ex.P1: Is the certified copy of RTC in respect of suit item No.1 i.e., Sy.No.60/13A measuring 036 guntas wherein 018 guntas is standing in the name of defendant No.1 and remaining 017 guntas is in the name of Indramma who is the wife of defendant No.3.
Ex.P2: Is the certified copy of
RTC for the year 200607
for suit item No.2
standing in the name of
defendant No.1.
Ex.P3: Legal Notice
Ex.P4: Certified copy of the sale
deed dated 22022011 in
33 O.S.No.4631/2007
respect of suit item No.2.
Ex.P5: Is the certified copy of
deed of confirmation
dated 28112011 in
respect of suit item No.2.
Ex.P6: Is the certified copy of
sale deed dated
31122011 executed by
the defendant No.5 in
favour of defendant Nos.7
& 8.
Ex.P7: Consists of 7 photos
which reveals some
construction work is
going on.
Ex.P7(a): Is the CD in respect of
said photos
Ex.P815: Are the Photographs in
respect of suit item No.1
to show the nature of the
property.
Ex.P16: Is the copy of complaint
dated 11082007.
30. In the crossexamination of PW.1, the following facts are elicited from the mouth of PW.1: ಪತ ಸತ ತ ದವಯನನ 3 ಸಸ ತತ ಗಳ ಮಲ ಮತತ ಹಕದದ ತನ ಎಟದರ ನಜ. ದವ ಆಸತ ಗಳಲಲ ದ ನನನ ತದದಗ ಬರ ಆಸತ ಗಳ ಕಡ ಇವ ಎಟದರ 34 O.S.No.4631/2007 ನಜ, ಅವಗಳನನ ಉದದ ತಶಪರರಕವಗ ಈ ಪತ ಕರಣದಲಲ ಕಬಟಟ ದದ ತನ ಎಟದರ ಸರಯಲಲ .
ದವ ಆಸತ ಗಳ ಮತತ ಈ ದವಯಲಲ ಸರದ ಕಲವ ಆಸತ ಗಳ ನಮಮ ಕಟಟಬದ ಪತತ ರರತ ಆಸತ ಗಳ ಎಟದರ ನಜ. 2. ದವ ಐಟ ನನ2 ಸವರ ನನ171/4, ವಸತ ತಣರ 1 ಎಕರ 20 ಗಟಟ ಬಡಎಗ ಭಸಸ ಧತನ ಆಗರರ ವಚರ ನನಗ ಗತತ ಲಲ , ಆದರ ಆಗದ ಎಟದ ಹಳತತ ದದ ರ. ಸದರ ಭಸಸ ಧತನರನನ ಬಡಸಕಳಳ ಲ ಮನನ ಸರತರಚಚ ನನ ಯಲಯದ ಮಟದ ಪತ ಕರಣ ನಡಸವದಕಕ ಗ ಸಕಷಟ ಹಣ ಖಚರಗದ ಎಟದ ಹಳರತತ ತನ ಎಟದರ ಸರಯಲಲ . ದವ ಐಟ ನನ3 ರಲಲ ಬರರ ಖತ ನನ239 ರ ನವಶನದ ವಸತ ತಣರ ನನಗ ಗತತ ಲಲ , ಆದರ ಆಸತ ಇದ. ಸದರ ಆಸತ ಯ ದಕಕ ಣದ ಭಗರನನ ಸತಮಶಖರ ರರರ ಅನಭರ ಮಡತತ ದದ ರ. 35 O.S.No.4631/2007 ಸದರ ಭಗರನನ 4 ನ ಪತ ತವದ ನನನ ತಮಮ 3ನ ಪತ ತವದಯಟದ ಖರತದ ಮಡರತತ ರ ಎನನ ರ ವಚರ ಗತತ ಯತ. 3. ನನ ನನನ ಮಖನ ವಚರಣಯಲಲ ನಪ.4 ಅಟದರ ದನ22.02.2011 ರ ಒಟದ ಕತ ಯಪತತ ಹಜರ ಮಡದದ ತನ ಎಟದರ ನಜ. ಸದರ ದಖಲತಯನನ ನರಯಣಚರ, ತತ ಮತರಚರ, ಸಯರನರಯಣಚರ, ಅನಸಯ, ಗರಮಮ ಮತತ ಪಷಷ ಲತ ಇರರ ಪರವಗ, ಅರರಟದ ಅಧಕರ ಪತತ ಪಡದ ಜಗದತಶ ನಯಕ ಎನನ ರರನ ಬರದಕಟಟ ದದ ನ ಎಟದರ ನಜ. 4.ನಪ.6 ರ ರತತನ ಕತ ಯದ ಕರರನನ ದನ31.12.2011 ರದ ಸದತಪ ನಯಕರರರ ರಮಟಜಲರಜ ಮತತ ಸದಕ ಗಹಲತಟ ಎನನ ರರರಗ ಬರದಕಟಟ ವಚರ ಗತತ , ಸಕಕ ನಡಯತತ ರ ಸದತಪ ನಯಕರರರಗ 36 O.S.No.4631/2007 ಮಡಕಟಟ ದದ ನಜ. 5. ದನ01.09.2003 ರದ ಗತ ಮ ಠಣ ಸಸ ತತ ನ ಸಖನ ನ121 ರ ಪರರದ 27X14 ಅಡಗಳ ಜಗ ನನನ ಹಸರಗ ಕತ ಯಪತತ ಆಗದ ಎಟದರ ನಜ. ಸದರ ಸಸ ತತ ನನ ಪತ ಸತ ತ ದವಯಲಲ ಸರಸಲಲ . ಕರಣ ಅದನನ ನನ ನನನ ತದಯಟದ ಕಟಡದದ ತನ. ಸದರ ಕತ ಯಪತತ ರನನ ನನ ಯಲಯಕಕ ಹಜರ ಮಡಲ ತಟದರ ಇಲಲ . ನನ ನನನ ಹಸರನಲಲ ರರ ಎಲಲ ಆಸತ ಗಳನನ ಹಗ ಇಟಟ ಕಟಡ, ದವ ಆಸತ ಗಳನನ ಮತತ ಸರಸ ಈ ಸಳಳ ದವ ಹಕದದ ತನ ಎಟದರ ಸರಯಲಲ . 6. ನನನ ಮಖನ ವಚರಣಯ 7ನ ಕಡಕಯಲಲ ಹಳರರ ಅಟಶಗಳ ಸರ ಇವ. ಈ ಮಲ ಹಳದ ಕಡಕಯ ರತತನ ಖತ ಬದಲರಣ ಮಡಲ 3ನ ಪತ ತವದ ನನನ 37 O.S.No.4631/2007 ಸಹಯನನ ತಗದಕಟಡಗ, ನನ ಅರನನನ ಕರತ ದವ ಆಸತ ಗಳ ಒಟಟ ಕಟಟಬದ ಆಸತ ಗಳ ಏಕ ಸಹ ಹಕಬಕ ಎಟದ ಅರನನನ ಪತ ಶನ ಮಡಲಲ . ಸದರ ಕಡಕಯಲಲ ಮಟದರರದ ದನ14.02.2006 ರ ದನಪತತ ರನನ ಇಟದರಮಮ ರರರ ಹಸರಗ ಮಡದದ , ಅದ ಸಷಟ ಮಡದ ದಖಲತ ಎಟದ ಹಳದದ , ಆ ಕಲದಲಲ 3ನ ಪತ ತವದಯನನ ಕರತ ಒಟಟ ಕಟಟಬದ ಆಸತ , ಅದನನ ದನ ಮಡಲ ಬರವದಲಲ ಎಟದ ಪತ ಶನ ಮಡಲಲಲ ವ ಎಟದರ, ಸಕಕ ಖತ ಬದಲರಣಗ ಎಟದ ನನನ ಸಹಯನನ ತಗದಕಟಡರತತ ರ ಎಟದ ನಡಯತತ ರ. ಸದರ ದನಪತತ ಕಕ 2ನ ಪತ ತವದಯಗಲತ, ಅರನ ವರಸದರರಗಲತ ಸಹ ಹಕಲಲ ಎಟದರ ಮಹತ ಇಲಲ . 7. ದವ ಐಟ ನನ2 ರ ಸವರ ನನ171/4, 38 O.S.No.4631/2007 ಅದರ ಒಟಟ ರ ವಸತ ತಣರ 1 ಎಕರ 20 ಗಟಟ ಎಟದರ ನಜ. ಸದರ ಆಸತ ಮಲತ ನನನ ತತನದ ವಟಕಟರಮಣಚರರರರಗ ಸರದದ . ಸದರ ಆಸತ ಯನನ ನನನ ತದ ಮತತ ಅರರ ತಮಮ ಕಷಷ ಚರ ದನ24.08.1966 ರದ ನತಟದಯತ ವಭಗ ಪತತ ದ ಮಖಟತರ ಭಗ ಮಡಕಟಡರ. ಸದರ ವಭಗದಲಲ ನನನ ತದ ನರಯಣಚರಗ 30 ಗಟಟ ಅದರತ ನನನ ಚಕಕ ಪಷ ಕಷಷ ಚರಗ 30 ಗಟಟ ಬದದ ಎಟದರ ನಜ. ನನನ ಚಕಕ ಪಷ ಕಷಷ ಚರಗ ಬದದದ 30 ಗಟಟ ಆಸತ ಯನನ ಆತ ನನನ ತದ ನರಯಣಚರಗ ದನ31.12.1966 ರ ಕತ ಯಪತತ ದ ಅಡಯಲಲ ಮರಟ ಮಡದದ ರ ಎಟದರ ನಜ. ತದನತರ ದನ25.03.1968 ರ ಕತ ಯಪತತ ದ ಅಡಯಲಲ ನನನ ತದ ನರಯಣಚರ 30 ಗಟಟ ಆಸತ ಯನನ ಪನ ನಮಮ ಚಕಕ ಪಷ ಕಷಷ ಚರಗ ಮರದ ಎಟದರ ನಜ. ತದನತರ ನನನ ಚಕಕ ಪಷ ಕಷಷ ಚರ 39 O.S.No.4631/2007 ದನ26.05.1971 ರದ ಜನರರನ ಎನನ ರರರಗ ಮರದದ ರ ಎಟದರ ನಜ. ಸದರ ಜನರರನ ರರರಟದ ನನನ ತದ ನರಯಣಚರ 30 ಗಟಟ ಜಮತನನನ ದನ13.08.1974 ರದ ಪನ ಖರತದ ಮಡರತತ ರ ಎಟದರ ನಜ. ಈ ಮಲ ಹಳದ ಕರಣದಟದ ದವ ಸವರ ನನ171/4 ನನನ ತದ ನರಯಣಚರಯ ಸಸ ಯರರತ ಆಸತ ಎಟದರ ನಜ. ದನ20.08.2003 ರದ ದವ ಐಟ ನನ2 ಕಕ ಸಬಧಸದತ ನನನ ತದ ನರಯಣಚರ ಮತತ ಅರರ ಮಕಕ ಳ ಜಗದತಶ ನಯಕ ಎನನ ರರರಗ ಅಧಕರ ಪತತ ಕಟಟ ದದ ರ ಎಟದರ ನಜ. ದನ22.02.2011 ರದ ಜಗದತಶ ನಯಕ ಅಧಕರ ಪತತ ದ ಆಧರದ ಮಲ ದವ ಐಟ ನನ2 ನನ ಸದತಪ ನಯಕ ಎನನ ರರರಗ ಮರಟ ಮಡದದ ರ ಎಟದರ ನನಗ ಗತತ ಲಲ . ಸಕಕ ಮಟದರರದ ನಡಯತತ ರ ನಮಮ ಸಹಗಳಲಲ ರನನ ಅರರ ಮಡಕಟಡದದ ರ ಎಟದ. 40 O.S.No.4631/2007 ದನ28.11.2011 ರದ ನನ ಮತತ ನನನ ಕಟಟಬದರರಲಲ ಸರ ಸದತಪ ನಯಕನ ಹಸರಗ ಒಟದ Confirmation Deed ನನ ಬರದಕಟಟ , ದನ22.02.2011 ರ ಕತ ಯ ಪತತ ರನನ confirm ಮಡಕಟಟ ದದ ತವ ಎಟದರ ಸಕಕ ನಜ, ಸಕಕ ನಡಯತತ ರ ನಮಮ ಸಹಗಳನನ ಬಲವತದಟದ ತಗದಕಟಡದದ ರ ಎಟದ. ಆ ಬಗಗ ತವನದರ ಪಲತಸ ಫಯರದ ಕಟಟ ದದ ತರ ಎನನ ರ ಸಚನಗ ಸಕಕ , ಸದತಪ ನಯಕ ನಮಮ ಸಹಗಳನನ ತಗದಕಟಡ ಹಣ ಕಡತತ ತನ ಎಟದ ಹಳ ಹಣ ಕಡಲಲಲ , ಆಕರಣದಟದ ಪಲತಸ ಫಯರದ ಕಟಟ ಲಲ ಎಟದ ನಡಯತತ ರ. ಸಕಕ ಗ ನತವ ಸಬ ರರಸಟ ರ ಕಛರಗ ಹತಗ ನಪ.5 ನನ ಮಡಕಟಟ ದದ ತರ ಮತತ 6ನ ಪಟದಲಲ ರರ ಫತಟತ ನಮಮ ದ ಎಟದ ಸಚಸದರ ಸಕಕ ಹದ ಎಟದ ಒಪಷ ಕಳಳ ತತ ರ. ಕರಣ ಸಕಕ ಯ 41 O.S.No.4631/2007 ಫತಟತರನನ ನಪ.5 ರಲಲ ನಪ.5(ಎ) ಎಟದ ಗರತಸಲಯತ. ಈ ಪತ ಕರಣದಲಲ ದನ26.11.2011 ರಲಲ ನನ ಮತತ 2 ನ ಪತ ತವದ ದವ ಐಟ ನನ2 ರ ಮಲ ನವ ನಮಮ ದವಯನನ ಒತತ ಯಸವದಲಲ ಎಟದ ಅರರ ಸಲಲ ಸದದ ತವ ಎಟದರ ನಜ, ಸಕಕ ನಡಯತತ ರ ಅದನನ ಕಡ ಸಷಟ ಮಡಕಟಡದದ ರ ಎಟದ. ಸದರ ಅರರಗ ನನ ಸಹ ಹಕದದ ರ ಕಡ, ಬಲವತದಟದ ಸಹ ತಗದಕಟಡದದ ರ ಎಟದ ಸಳಳ ಹಳತತ ದದ ತನ ಎಟದರ ಸರಯಲಲ . 8. ದನ26.11.2011 ರದ ನನ ದವ ಐಟ ನನ2 ರ ಮಲ ನನನ ಹಕಕ ನನ ಪತ ತಪದಸವದಲಲ ಎಟದ ಅರರ ಹಕದದ , ಸದರ ಅರರಯನನ ನನ ಯಲಯವ ಪರಸಕ ರಸದ ಎಟದರ ನಜ. ಅದನನ ನನ ಎಲಲ ಯ ಪತ ಶನ ಮಡಲಲ ಎಟದರ ನಜ. ಸಕಕ ಸಸ ಇಚಚ ಯಟದ 42 O.S.No.4631/2007 ನಡಯತತ ರ ಸದರ ಆದಶರನನ 3 ನ ವದ ಪತ ಶನ ಮಡದದ ಳ ಎಟದ. 9. ಪತ ಸತ ತ ಪತ ಕರಣದಲಲ ಕನಷಮರ ನನ155/4 ಎ ಮತತ ಕನಷಮರ ನನ371, ಎರಡ ನವಶನಗಳನನ ಈ ದವಯಲಲ ಸರಸಲಲ ಎಟದರ ನಜ. ಸದರ ಆಸತ ಗಳಲಲ ಕಟಟ ಡರನನ ನನನ ತದಯ ಕಟಟ ರತತ ರ ಎಟದರ ನಜ. ಕನಷಮರ ನನ155/4 ಎಯಲಲ 3 ಅಟತಸತ ನ ಕಟಟ ಡ ಇದ ಎಟದರ ನಜ ಮತತ ಸದರ ಕಟಟ ಡಗಳಟದ ಬರರ ಬಡಗಯನನ ಸಹತದರಯರದ ನವ ಪಡದಕಳಳ ತತ ದದ ತವ ಎಟದರ ನಜ. ಉದದ ತಶಪರರಕವಗ ಈ ಮಲ ಹಳದ ಎರಡ ಆಸತ ಗಳನನ ಈ ದವಯಲಲ ಸರಸಲಲ ಎಟದರ ಸಳಳ . 10. ಆ ಸಮಯದಲಲ ನನನ ತದಯದ ನರಯಣಚರ ನಡ.2 ರ ರತತನ ದವ ಐಟ ನನ1 ರ ದಕಕ ಣ ಭಗದ ಆಸತ ಯನನ 3ನ 43 O.S.No.4631/2007 ಪತ ತವದಯ ಹಟಡತಯದ ಇಟದರಮಮ ನಗ ತನನ ಸಸ ಇಚಚ ಯಟದ ದನಪತತ ಮಡಕಟಟ ದದ ನ ಎಟದರ ಸರಯಲಲ . ಇಟದರಮಮ ದನವಗ ಪಡದಕಟಡ ಸಸ ತತ ನಲಲ ಅರಳ ಕಟಟ ಡ ಕಟಟ ಕಟಡ ಸಸ ಧತನದಲಲ ದದ ಳ ಎಟದರ ನಜ. ದವ ಐಟ ನನ1 ರ ಸಸ ತತ ನ ಉತತ ರ ಭಗದಲಲ ತತ ಮತರಚರ ಇದದ , ಅರನ ಮರಣನತರ ಅರನ ಹಟಡತ ಮಕಕ ಳ ಸಸ ಧತನನಭರ ಮಡತತ ದದ ರ ಎಟದರ ನಜ.
On the side of the legal representatives of defendant No.2, one Bhuvaneshwari she herself examined as DW.2 and her examinationinchief has been filed by way of affidavit wherein she reiterated the averments made in the written statement. Except confronting the documents in the crossexamination of PW.1 no other documents are got marked through her.
31. In the crossexamination, the following facts are got elicited:
1. ನನನ ಮಖನ ವಚರಣಯ 4ನ ಕಡಕಯಲಲ ಹಳರರ ದನ30.10.2004 ರ 44 O.S.No.4631/2007 ಎರಡ ಕತ ಯಪತತ ಗಳಗ ಮತತ ದನ14.02.2006 ರ ದನಪತತ ಕಕ ವದಗಳನ ರ ಪಕಗರರಲಲ ಎಟದರ ನನಗ ಮಹತ ಇಲಲ . ನನನ ಮಖನ ವಚರಣಯ 5 ನ ಕಡಕಯಲಲ ಹಳರರ ದನ29.09.2003 ಮತತ ದನ04.11.2004 ರ ಕತ ಯಪತತ ಗಳಲಲ ನ ಆಸತ ಗಳ ನನನ ತತನ ಸಸ ಯರರತ ಆಸತ ಗಳ ಎಟದರ ನಜ.
2. ದವ ಐಟ ನನ2 ಕಕ ಸಬಧಸದತ ದನ22.02.2011 ರ ಕತ ಯಪತತ ಕಕ ವದಗಳ ಪಕಗರರಲಲ ಎಟದರ ಸಳಳ ಮತತ ಅರರ ಸಹ ಮಡಲಲ ಎಟದರ ಸಳಳ . ನನನ ತಯ ಇರವಗ ನನಗ ಪತ ಸತ ತ ವಚರಣ ಸಲಲ ಸಲ ಯವದ ಅಧಕರ ಇಲಲ ಎಟದರ ಸಳಳ .
3. ದವ ಐಟ ನನ3 ರ ಆಸತ ಯನನ 3ನ ಪತ ತವದ ನನನ ತತ ನರಯಣಚರಗ ಯವದ ಹಣ ಕಡದ ಬರಸಕಟಡದದ ನ ಎಟದರ ನನಗ ಮಹತ ಇಲಲ . ನತಲಕಠಚರ ಖರತದ ಮಡರರ 80*14 ಅಡ ಜಗರನನ 45 O.S.No.4631/2007 ರ.2,50,000/-ಗಳಷಟ ಹಣರನನ ನನನ ತತನಗ ಕಟಟ ಖರತದ ಮಡದದ ನ ಎಟದರ ಸಳಳ .
With the support of the said documentary and oral evidence the plaintiffs counsel Sri. GVN and Smt.SV vehemently argued that all the suit schedule properties are ancestral and joint family properties and whatever sale made in respect of suit item No.2 is not binding on the share of plaintiff Nos.1 and 3. It is also contended that gift deed alleged to be executed by the defendant No.1 in favour of his wife defendant No.3 by name Indramma is also not binding on the share of plaintiffs. Accordingly prayed to decree the suit.
32. On the other hand, Sri. RDB advocate for legal representatives of defendant No.2 vehemently argued that since the plaintiffs have falsely filed the present suit without including all the joint family properties the suit of the plaintiffs is not maintainable and partial partition is also not maintainable & liable to be dismissed.
33. The counsel for defendant No.8 Sri.BAN submits that since the suit Item No.2 is the absolute 46 O.S.No.4631/2007 property of defendant No.1, he and plaintiff Nos.1 & 3 and defendant Nos.1 to 3 have executed the sale deed & confirmation deed. Therefore, whatever the alienation's made by the plaintiff Nos.1 and 3 and defendants No.1 to 3 has to be upheld and interest of the defendant No.8 has to be protected.
34. In view of the above rival contentions, at the first instance let me consider first whether the suit item Nos.1 to 3 are self acquired properties of defendant No.1 or not. It is admitted fact that, under Ex.D5 whatever the properties owned by Venkataramanachari has been divided among his two sons viz., Narayanachari (defendant No.1) & Krishnachari. Further, there is no pleading in the plaint how Venkataramanachari has acquired the properties. At this juncture, the pleading of the plaintiffs plays an important role. In para No.2 it is specifically pleaded that, 'During the life time of late Venkataramanachari he acquired certain immovable properties and those properties are enjoyed jointly by late Venkataramanachari and his two sons.' From this it is easily gathered that the suit schedule properties and properties mentioned in Ex.D5 were acquired by Venkataramanachari and on his demise his two sons have 47 O.S.No.4631/2007 divided the same. Therefore, in this case Section 8 of the Hindu Succession Act come into operation. Under the said Section, after the demise of Venkataramanachari his two sons have divided his properties under Ex.D5. Therefore, the suit schedule properties and properties under Ex.D5 are the self acquired properties of defendant No.1 and his brother Krishnachari. At this juncture, it is necessary to mention the ruling of Hon'ble Supreme Court reported in (1986) 3 SC CASES PG 567, in the matter of Commissioner of Wealth Tax, Khanapur and Others V/s. Chandrasen & Others, it is pleased to held that, whatever the properties succeeded by the sons from their father is their self acquired properties and they have succeeded the properties under Sec.8 of the Hindu Succession Act. Thus, I come to conclusion that all the suit schedule properties are the absolute properties of defendant No.1.
35. REGARDING ITEM NO.1: Under Ex.D5 suit item No.1 i.e., Sy.No.60/13A measuring 036 guntas of Kottanur village, Uttarahalli Hobli was fallen to the share of defendant No.1. As stated above, it is the absolute property of defendant No.1 as on the date of filing of the suit, the defendant No.1 has not 48 O.S.No.4631/2007 retained entire property in his possession. Under Ex.D2 i.e., Registered Gift deed dated 14022006 he has gifted 017 guntas of land in favour of one Indramma who is the wife of defendant No.3. In the crossexamination, the PW.1 has admitted her signature found thereon which is marked at Ex.P2(a).
36. In the crossexamination of PW.1 at para No.9, she has admitted that: ನನನ ಮಖನ ವಚರಣಯ 7ನ ಕಡಕಯಲಲ ಹಳರರ ಅಟಶಗಳ ಸರ ಇವ. ಈ ಮಲ ಹಳದ ಕಡಕಯ ರತತನ ಖತ ಬದಲರಣ ಮಡಲ 3ನ ಪತ ತವದ ನನನ ಸಹಯನನ ತಗದಕಟಡಗ, ನನ ಅರನನನ ಕರತ ದವ ಆಸತ ಗಳ ಒಟಟ ಕಟಟಬದ ಆಸತ ಗಳ ಏಕ ಸಹ ಹಕಬಕ ಎಟದ ಅರನನನ ಪತ ಶನ ಮಡಲಲ . ಸದರ ಕಡಕಯಲಲ ಮಟದರರದ ದನ14.02.2006 ರ ದನಪತತ ರನನ ಇಟದರಮಮ ರರರ ಹಸರಗ ಮಡದದ , ಅದ ಸಷಟ ಮಡದ ದಖಲತ 49 O.S.No.4631/2007 ಎಟದ ಹಳದದ , ಆ ಕಲದಲಲ 3ನ ಪತ ತವದಯನನ ಕರತ ಒಟಟ ಕಟಟಬದ ಆಸತ , ಅದನನ ದನ ಮಡಲ ಬರವದಲಲ ಎಟದ ಪತ ಶನ ಮಡಲಲಲ ವ ಎಟದರ, ಸಕಕ ಖತ ಬದಲರಣಗ ಎಟದ ನನನ ಸಹಯನನ ತಗದಕಟಡರತತ ರ ಎಟದ ನಡಯತತ ರ.
ಸದರ ದನಪತತ ಕಕ 2ನ ಪತ ತವದಯಗಲತ,
ಅರನ ವರಸದರರಗಲತ ಸಹ ಹಕಲಲ ಎಟದರ
ಮಹತ ಇಲಲ . ಈ ದನ ನನ ಯಲಯದ
ಮಟದರರ ಪತ ತವದ ನನ2(ಬ)
ತತ ಮತರಚರಯ ಮಗಳ. ಪತ ತವದ
ನನ2(ಸ), ಪತ ತವದ ನನ2(ಬ)ಯ ಅಣಷ .
ದನ14.02.2006 ರದ 1ನ ಪತ ತವದ
ಇಟದರಮಮ ನಗ ಮಡರರ ದನಪತತ ಸರ ಇಲಲ
ಎಟದರ ನಜ. ಈ ಮಲ ಹಳದ ರತತನ
ದನಪತತ ರನನ ಮಡರ ಕಲಕಕ ಒಟಟ
ಕಟಟಬದ ಆಸತ ಗಳ ಭಗ ಆಗರಲಲಲ ಎಟದರ
ನಜ. ಆಕರಣ 1 ನ ಪತ ತವದಗ ದನ ಮಡರ
50 O.S.No.4631/2007
ಹಕಕ ಇರಲಲಲ . ನಪ.5 ನನ ಮಡವತಹ
ಕಲದಲಲ ನನ ಉಪನತಟದಣಧಕರ ಕಛರಗ
ಹತಗಲಲ , ಯರತ ಬದ ನಪ.5 ರ ಕನಯ
ಪಟದಲಲ ನನನ ಸಹಯನನ ಮತತ
ತಗದಕಟಡದದ ರ ಎಟದರ ಸರಯಲಲ .
ನಪ.6 ನನ ಮಡವತಹ ಕಲದಲಲ ನನ
ಉಪನತಟದಣಧಕರ ಕಛರಗ ಹತಗಲಲ ಮತತ
ಸಹ ಮಡಲಲ .
37. On careful reading of the Ex.D2 at last page all the plaintiffs herein have put their signature to the Ex.D2. Now, the plaintiffs have attacked the Ex.D2 on the ground that, the defendant No.3 has taken his signature and created the Ex.D2. Merely, plaintiffs were not present before the SubRegistrar the said Ex.D2 cannot be doubted. For the simple reason is that, the defendant No.1 being a absolute owner of item No.1 he has gifted the 017 guntas in favour of wife of defendant No.3. On careful reading of Ex.D2 the essential ingredients like accepting the gift and the donee has put in possession has been established. The plaintiffs in their pleading they have not specifically pleaded necessary ingredients of fraud as per Order 6 51 O.S.No.4631/2007 Rule 4 CPC. Under law, the plaintiffs have to seek for relief of cancellation of gift deed. No such attempt is made by the plaintiffs. Therefore, whatever the gifts made by the defendant No.1 in favour of wife of defendant No.3 is binding on the plaintiffs. The same cannot be questioned by the plaintiffs since it is an absolute property of defendant No.1. Now, after the gift the defendant No.1 has retained 018 guntas in item No.1 and he died intestate. Therefore, plaintiffs and defendant No.2 & 3 are entitle for equal share.
38. REGARDING ITEM NO.2: As stated above, Item No.2 had acquired by the defendant No.1 under Ex.D5 i.e., Partition Deed dated 24081966 to an extent of 030 guntas. Under Ex.D6 on 31121969 the share of Krishnachari, an extent of 030 guntas was purchased by defendant No.1. Under Ex.D7, the defendant No.1 on 25031968 sold very same 030 guntas in favour of his brother Krishnachari i.e., reconveyed. Under Ex.D8 on 19051971 the very same 030 guntas was sold by Krishnachari in favour of one Janardhan. Under Ex.D9, the said Janardhan on 13081974 has sold very same 030 guntas in favour of defendant No.1. Thus, as stated above, the defendant No.1 52 O.S.No.4631/2007 under Ex.D5 acquired 030 guntas and under Ex.D9 he has acquired another 030 guntas, in all he is having 120 guntas in item No.2 i.e., Sy.No.171/4. It is the contention of the plaintiffs and legal representatives of defendant No.2 that out of the Joint Family nucleus remaining 030 guntas was purchased by the defendant No.1. Thus, contended that, the said 030 guntas is also a joint family property. In this regard, neither the plaintiffs nor the legal representatives of defendant No.2 have produced any positive evidence. At this juncture, it is necessary to cite a reported ruling of our Hon'ble High Court reported in ILR 1993 KAR PG 1182 in the matter of Dhandappa Rudrappa Hampali V/s. Renukappa @ Revanappa, wherein it is pleased to hold that: "All properties inherited by Male Hindu from his father, fathers father or father's paternal grand father is ancestral property. A person may possess ancestral property as well as his self acquired property. It is permissible for a coparcener to blend his self acquired property with that of the ancestral or joint family property. A property acquired with the aid of joint family property becomes joint family property. The person acquiring a property, if has 53 O.S.No.4631/2007 command over sufficient joint family property, with the aid of which the new property could be acquired, there is a presumption that, the acquired property belongs to the joint family. In such a case, the acquiescer has to show that, his acquisition was without aid of any joint family assets.
However, the initial burden is on the person who asserts, that the newly acquired asset is of the joint family to prove, that the acquiescer had command over sufficient joint family assets with the aid of which, he could have acquired new asset. Existence of joint family does not lead to the inference that the property held by any member of the joint family is joint. Therefore the initial burden is to establish the existence of some joint family property, capable of boing the nucleus from which new property or asset could have been acquired; it is not sufficient to show that the joint family possessed some assets; it is necessary to prove that the assets of the joint family may have formed the nucleus from which the disputed assets may have been acquired.
54 O.S.No.4631/2007Whether joint family assets could have formed the nucleus, again, depends upon their nature and relative value. Existence of such joint family property could have formed the nucleus for the acquisition of new assets, by itself would not lead that the new assets acquired by any member of the family would be joint family property, because, such a member may not have control or command over the joint family assets. The idea is that the member who acquired the new assets may have utilized the joint family assets to acquire further assets; this is possible only if the said member was in a position to utilize the joint family asset to acquire further asset or assets. "
The said ruling is aptly applicable to the case on hand because no wherein the pleadings of the plaintiffs or in the written statement of lrs of Defendant No.2 they have specifically pleaded the income from the other properties and also surplus income therefrom. Further, the plaintiffs have not produced any evidence out of the surplus income additional 030 guntas in Sy.No.171/4 was purchased by defendant No.1. Under such circumstances, it is impossible to believe the version of the plaintiffs that, out of the joint 55 O.S.No.4631/2007 family nucleus 030 guntas was purchased by the defendant No.1. Therefore, I come to conclusion that properties acquired by defendant No.1 under Ex.D5 and Ex.D9 is the self acquired properties of defendant No.1 and not as contended by the plaintiffs and legal representatives of defendant No.2.
39. NOW COMES TO THE TRANSACTION IN RESPECT OF ITEM NO.2 I.E., SY.NO.171/4 MEASURING 1.20 GUNTAS: The defendant No.1 being an absolute owner of suit item No.2 at the first instance has executed general power of attorney along with plaintiffs in favour of one K.Jagadeesh Nayak defendant No.5 by receiving entire sale consideration. In fact, the said general power of attorney is not forthcoming before this court. However, the defendant No.5 as a power of attorney holder of defendant No.1, legal representatives of defendant No.2 , defendant No.3, plaintiff Nos.1 to 3 had sold the suit item No.2 of the suit schedule property in favour of K.Jagadeesh Nayak i.e., defendant No.5 himself on 22022011, the said document is got marked at Ex.P10.
56 O.S.No.4631/2007Further, under Ex.D11 the defendant No.1, plaintiffs, legal representatives of defendant No.2 and defendant No.3 have executed a deed of confirmation on 28112011 confirming the Ex.D10, wherein except plaintiff No.3 rest of the plaintiffs, legal representatives of defendant No.2 and defendant No.3 have put their signature. At this stage itself, let me clarify that plaintiff No.3 was not a party to the said confirmation deed. Thus, the counsel appearing for the plaintiff No.3 Smt.SV vehemently contended that, the said Exs.D10 & 11 are not binding on the share of the plaintiff No.3. Sri. RDP, advocate for defendant No.2 (c) has also contended that, he is also not a signatory to the said documents, therefore, it is not binding on him.
40. It is pertinent to note that, on 16122011 the plaintiff Nos.1 and 2 have filed an application under Or.23 Rule 1(4) CPC seeking permission to relinquish / abandon their claim in respect of suit item No.2 of the plaint schedule property and it was allowed by this court. The plaintiff No.3 herein have questioned the said order and also order passed on I.A.NO.2/12, I.A.NO.1/14 and I.A.NO.1/16 before Hon'ble High Court in W.P.NO.34419/17 (GMCPC_ dated 2052023 wherein the Hon'ble High 57 O.S.No.4631/2007 Court of Karnataka allowed the writ petition in part and passed the following: ORDER Petition is allowedinpart and disposed of in the following terms:
(a) The impugned common order dated 28042017 passed in O.S.NO.4631/2007 by the Trial court insofar as it relates to rejecting I.A.NO.2/2012 is hereby set aside and consequently, I.A.NO.2/2012 filed by the petitioner - plaintiff No.3 stands allowed.
1. The impugned common order dated 28042017 passed in O.S.NO.4631/2007 by the trial court insofar as it relates to rejecting I.A.NO.1/2014 is hereby modified and the said application is disposed of directing the trial court to adjudicate upon all issues including the rival claims and contentions between 58 O.S.No.4631/2007 plaintiffs 1 and 2, plaintiff No.3 and the defendants.
2. The impugned common order dated 28042017 passed in O.S.NO.4631/2007 by the trial court insofar as it relates to rejecting I.A.NO.1/2016 is hereby disposed of directing the trial court to adjudicate upon all rival contentions urged in I.A.NO.1/2016 at the time of final disposal of the suit before the trial court.
3. The impugned order dated 16122021 passed on I.A.NO.1/2011 in O.S.NO.4631/2007 by the trial court insofar as it relates to allowing I.A.NO.1/2011 is also hereby set aside and the said application filed by the Respondent Nos.1 and 2 - plaintiff Nos.1 and 2 is hereby dismissed;
however, all rival contentions between respondent Nos.1 and 2 on one hand and petitioner - plaintiff No.3 on the other hand as well as between them 59 O.S.No.4631/2007 and other defendants are hereby kept open and no opinion is expressed on the same.
In view of the above direction all the contentions raised by the parties is kept open.
41. It is admitted fact that, to Ex.P10 & Ex.P11 plaintiff No.3 by name Pushpalatha was not a party, likewise defendant No.2(c) by name Sri. Ananada is also not a party to the documents. Though, the plaintiff No.3 has taken several contentions to the effect that, the relationship between herself and remaining plaintiffs and legal representatives of defendant No.2, defendant No.3 is not cordial and all the plaintiffs and defendant Nos.2 and 3 have created documents, she has not stepped into the witness box to prove the allegations levelled against the rest of the plaintiffs, legal representatives of defendant No.2 and defendant no.3. Merely, crossexamining the DW.1 is not amounts to a proof. Thus, whatever the contention taken by the plaintiff No.3 is left unproved.
42. It is true that, plaintiff No.3 and defendant No.2(c) are not a party to the Ex.D11. Thereby, can court declare that Exs.D10 & 11 are null and void. While 60 O.S.No.4631/2007 discussing the above, I come to conclusion that suit item Nos.1 to 3 are the self acquired properties of defendant No.1. Therefore, the defendant No.1 is at liberty to deal with the suit item Nos.1 to 3 as he likes. In this case, at the first instance the defendant No.1, plaintiffs No.1 and 2, legal representatives of defendant Nos.2 and defendant No.3 have executed general power of attorney in favour of defendant No.5 to deal with the property. The said general power of attorney is not forthcoming in the file i.e., to say none of the parties have produced the document. The defendant No.5 as a general power of attorney holder of plaintiff Nos.1 and 2, defendant Nos.1 to 3 had sold the property to himself. Subsequently, the defendant No.1, plaintiff Nos.1 and 2, legal representatives of defendant No.2 i.e., 2(a) and 2(b) and defendant No.3 have confirmed that the sale deed dated on 22022011 by executing the confirmation deed on 28112011 in favour of defendant No.6 by name Sri. Sandeep Nayak. So, whatever the flaw in Ex.D10 has been rectified under Ex.D11 by executing confirmation deed in favour of defendant No.6. So under such circumstances, whatever the right the defendant No.1 had in suit item No.2 has lost his right by executing the Ex.D11. Merely, plaintiffs No.1 and 2, legal representatives of defendant No.2 and defendant No.3 have 61 O.S.No.4631/2007 put their signature to the confirmation deed, the nature of the property would not be changed. Therefore, when the defendant No.1 himself has lost his right over the suit item No.2 neither the plaintiff No.3 nor the defendant No.2(c) cannot question the sale made under Ex.D10 & 11 contending that they are not a parties to the said document and it is not binding on them. The defendant No.6 being an absolute owner of suit item No.2 he has agreed to sell the suit item No.2 in favour of defendant No.7 and 8 under registered agreement to sell dated 31122011 under Ex.D12. The defendant No.6 has executed a registered General Power of Attorney on 31122011 in respect of suit item No.2 in favour of defendant Nos.7 and 8 as per Ex.D13. As per Ex.D14 the defendant No.6 has executed absolute sale deed on 25032013 in favour of defendant Nos.7 & 8. As per Ex.D14 in respect of suit item No.2 defendant Nos.7 & 8 have become the joint owner of suit item No.2. Under Ex.D15 the defendant No.7 has released his right in suit item No.2 in favour of defendant No.8 on 25032013. As per the said documents now the defendant No.8 has become the absolute owner. Apart from the said documents, the defendant No.6 once again executed a confirmation deed on 25062013 in favour of defendant No.7 and 8 as per Ex.D16. As per Ex.D17 the defendant 62 O.S.No.4631/2007 No.7 and 8 have taken conversion order from the Dy. Commissioner in respect of suit item No.2. Accordingly, Katha certificate as per Ex.D18 is coming in the name of defendant No.8. Ex.D19 consists 11 tax paid receipts, as per that the defendant No.8 is paying tax to the Government. Ex.D20 is the bank statement of defendant No.8.
43. The learned counsel appearing for legal representatives of defendant No.2 Sri. RDB vehemently argued that all the documents have been taken place within the space of little period and there is a variation of time. Merely, because of that, the registered documents cannot be disbelieved. The contention of the PW.1 in the crossexamination in respect of Ex.D11 that, ದನ28.11.2011 ರದ ನನ ಮತತ ನನನ ಕಟಟಬದರರಲಲ ಸರ ಸದತಪ ನಯಕನ ಹಸರಗ ಒಟದ Confirmation Deed ನನ ಬರದಕಟಟ , ದನ22.02.2011 ರ ಕತ ಯಪತತ ರನನ confirm ಮಡಕಟಟ ದದ ತವ ಎಟದರ ಸಕಕ ನಜ, ಸಕಕ ನಡಯತತ ರ ನಮಮ ಸಹಗಳನನ ಬಲವತದಟದ 63 O.S.No.4631/2007 ತಗದಕಟಡದದ ರ ಎಟದ. ಆ ಬಗಗ ತವನದರ ಪಲತಸ ಫಯರದ ಕಟಟ ದದ ತರ ಎನನ ರ ಸಚನಗ ಸಕಕ , ಸದತಪ ನಯಕ ನಮಮ ಸಹಗಳನನ ತಗದಕಟಡ ಹಣ ಕಡತತ ತನ ಎಟದ ಹಳ ಹಣ ಕಡಲಲಲ , ಆಕರಣದಟದ ಪಲತಸ ಫಯರದ ಕಟಟ ಲಲ ಎಟದ ನಡಯತತ ರ.
The above answer of PW.1 reveals that, since she has not received consideration of item No.2 and she has filed the present suit for partition. In view of the ruling of our Hon'ble Supreme Court reported in (2020) 7 SCC 366 in the matter of Dehiben v/s. ArvindBhai Kalyanji Bhanusali (Gajra) Dead through legal representatives and others, wherein it is pleased to hold that: 29.8. In Vidhyadhar v.
Manikrao this court held that the words "price paid or promised or partpaid and part - promised" indicates that actual 64 O.S.No.4631/2007 payment of the whole of the price at the time of the execution of the sale deed is not a sine qua non for completion of the sale. Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale would be complete, and the title would pass on to the transferee under the transaction. The nonpayment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a "sale", the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in present or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record.
29.9. In view of the law laid down by this court, even if the averments of the plaintiffs are taken to be true, that the 65 O.S.No.4631/2007 entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the sale deed. The plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered sale deed. We find that the suit filed by the plaintiffs is vexatious, meritless, and does not disclose a right to sue. The plaint is liable to be rejected under Order 7 Rule 11(a).
The only course open to the plaintiffs is that to sue for recovery of money but not filing the present suit. Further, even the plaintiffs cannot file a suit for recovery because the defendant No.1 being an absolute owner he has sold the suit item No.2 through his power of attorney and subsequently, he has confirmed the same.
44. Further more, all the documents relied on by the contesting defendants are the registered documents. What value could be attached to the said Registered document has been clearly stated by our Hon'ble High Court reported in ILR 1999 KAR page No.1524 in the 66 O.S.No.4631/2007 matter of A.V.Rangacharya and another V/s.
PillaNanjappa and another, it is pleased to hold that, "The presumption U/Sec.17 of the Registration Act, has to follow in respect of the liability and proof of registered sale deed. The effect of a registered document under Sec.49 & 50 of the Registration Act cannot be taken away by merely, asserting that the document is bad. Even under Sec.67 and 68 of the Evidence Act, if it is found that, the document has been presented by the person who executed the document and if he admits execution those documents cannot be attacked as invalid in the eye of law."
The said ruling is aptly applicable to the case on hand because merely the plaintiffs have contended that by playing fraud the documents have been obtained cannot be accepted without producing evidence and pleadings. Under such circumstances, the purpose for which documents have been executed has to be upheld by the court.
67 O.S.No.4631/200745. Now, comes to LisPendensy: The another point has to be appreciated is during the pendency of the suit, all the transactions relied by the defendant No.5 to 8 has been taken place. Now, as rightly argued by Sri.BRD advocate for lrs of defendant No.2, it is hit by Section 52 of the Transfer of Property Act. It is also submitted that, there is a Temporary Injunction on 20022010 restraining the defendants from alienating the suit schedule properties. No doubt, the defendant No.1 has not taken a permission prior to selling the property i.e., item No.2 in favour of defendant Nos.5 to 8, it is his fault. Merely, because of that, entire transaction taken place among the plaintiff Nos.1 and 2, defendant No.1, legal representatives of defendant No.2 and Defendant No.3 cannot be construed as a void transaction. As stated above, the defendant No.1 being an absolute owner he has entered into several transactions. The learned counsel appearing for plaintiff No.3 Smt.SV vehemently argued that, in the written statement of defendant No.1 and also in Ex.D16 he has admitted the nature of the property. Therefore, it is argued that the suit properties has to be construed as a joint family and ancestral properties. The said arguments cannot be accepted because on the admission of the parties, nature of the properties cannot be decided. Under Ex.D5 68 O.S.No.4631/2007 and also as per the pleadings of the plaintiffs, it is obviously clear that suit properties are self acquired properties of defendant No.1. Therefore, he has got every right to deal with the property as he likes.
At this juncture it is necessary to cite a reported the ruling of Hon'ble Supreme Court reported in AIR 2013 SC PAGE NO.2389 in the matter of THOMSON PRESS (INDIA) LTD V/s. NANAK BUILDERS & INVESTORS PRIVATE LTD., AND OTHERS, wherein it is pleased to hold that, lispendes Doctrine does not anull transaction made during the pendency of lis. It merely makes such transfer subject to right of transfer of parties to the suit. In this case, since the defendant No.1 having absolute right on the suit schedule properties he has right to deal with the same. There is no material produced by the plaintiffs and lrs of Defendant No.2, the defendant Nos.5 to 8 knowing fully well about the Prohibitory order they have purchased the suit item No.2. For having violated the order the defendant No.1 has to be convicted, but he is not alive. Merely, during the pendency of the suit the defendant No.1 has sold the property, sale deed and other documents of defendant No.5 to 8 cannot be declared as void.
46. NOW COMES TO THE ITEM NO.3: 69 O.S.No.4631/2007 Item No.3 is Khanesumari No.239, Kothanur village measuring East to West 80ft and North to South 14ft. The said property is compared to Ex.D5. The defendant No.1 has got only East to West 27ft and North to South 19ft. Further more, in respect of item No.3 the plaintiffs have not produced any document. In Ex.D5, no property number is mentioned. There is a lot of difference in suit item No.3 in the plaint schedule and item No.3 in the Ex.D5. Therefore, it is not proper to give share in this property.
Accordingly, Issues Nos.1 and 2 are answered in the Negative, Issue No.4 is answered in the Affirmative and Addl. Issue No.1 is answered in the Affirmative.
47. ISSUE Nos. 3 AND 5: These issues are interlinked and they are taken together for common discussion to avoid repetition.
The defendant No.4 being a purchaser of item No.3 he has taken several contentions in the written statement alleging that, the 3rd defendant has executed sale agreement on 27122006 along with affidavit and general power of attorney, thereby he has become the absolute owner. On the basis of the above said documents, he is in possession of the suit schedule property by taking electricity connection. In order to prove the said aspect he 70 O.S.No.4631/2007 has not stepped into the witness box. Thus, whatever the stand taken by him is left unproved. The plaintiffs who have approached this court, it is expected on part of them to demonstrate before this court whatever the properties purchased by them is not binding on them by producing relevant evidence. Here, the plaintiffs atleast have not produced any documents in respect of suit item No.3. Further more, the defendant No.4 being an outsider of the family of plaintiffs and defendants No.1 to 3, they cannot take such a contention that there was already a partition among plaintiffs and defendants No.1 to 3. Therefore, issue No.3 is answered in the Negative and Issue No.5 does not survive for consideration.
48. ISSUE No. 6: This issue has been framed to prove whether the plaintiffs are entitle for share in all the suit schedule properties. As stated above, under Ex.D2 the defendant No.1 being an absolute owner of suit item No.1 he has gifted an extent of 017 guntas in favour of Indramma who is none other than the wife of defendant No.3. For the said Ex.D2 the plaintiffs were signatories, therefore they cannot question the same. As per Ex.P1, the remaining property available in item No.1 is 018 guntas wherein the plaintiffs 71 O.S.No.4631/2007 and defendant Nos.2 and 3 are entitle for equal share. In respect of item No.2 it was sold by defendant No.1 and their family members, the plaintiffs and lrs of defendant No.3 and defendant No.3 are not entitle for any share. In respect of item No.3 is concerned the plaintiffs have not produced any iota of documents to say that it is in the name of Narayanachari and they are entitle for share, therefore, in this item the plaintiffs are not entitle for any share. In suit item No.1, after gifted by defendant No.1 remaining property with the defendant No.1 is 018 guntas wherein the plaintiffs and lrs of defendant No.2 and defendant No.3 are not entitle for share and not in the item Nos.2 and 3. Accordingly, this issue is answered partly in the Affirmative.
49. ISSUE No. 7: Though the plaintiffs have sought for injunction against the defendant No.4 in respect of item No.3 they have not produced any documents to show that, as on the date of filing of the suit they are in possession of the same. Hence, the question of interference by the defendant No.4 does not arise at all. Accordingly, this issue is answered in the Negative.
72 O.S.No.4631/200750. ISSUE No. 8: The plaintiffs have sought for mesne profits. As discussed above in Item No.1 an extent of 018 guntas is available for partition. What is the income getting from the said property and who is receiving the income from the said property has not been proved by the plaintiffs. Therefore, they are not entitle for mesne profits as claimed by them.
Apart from that, the suit of the plaintiffs is also hit by partial partition by nonincluding all the properties of Narayanachari. However, in respect of other properties the lrs of defendant No.2 already filed O.S.NO.2650/22 and 6888/14 wherein the parties can agitate the matter.
51. ISSUE NO.9: For the aforesaid reasons and discussions, I proceed to pass the following: ORDER Suit of the plaintiffs is hereby decreed in part as under: It is declared that the plaintiff Nos.1 to 3 are entitle for 1/5th share each in suit item No.1 measuring 018 guntas.
73 O.S.No.4631/2007Likewise, Lrs of defendant No.2 are jointly entitle for 1/5th share in suit item No.1 measuring 018 guntas and defendant No.3 is entitle for 1/5th share.
Suit of the plaintiffs in respect of suit item Nos.2 and 3 is hereby dismissed.
Draw preliminary decree accordingly.
In view of the direction issued by Hon'ble Supreme Court in the matter of Kattukandi Edathil Krishnan V/s. KattuKandi Valsan reported in (2006) 9 SCC 166 after drawing preliminary decree, it is ordered to list the matter for taking steps under Order 20 Rule 18 CPC.
(Dictated to the Stenographer directly on computer, corrected and then pronounced by me in the open Court on this the 20th day of April 2024).
(BALAGOPALAKRISHNA) 74 O.S.No.4631/2007 XXII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
75 O.S.No.4631/2007ANNEXURE List of Witnesses examined for the plaintiff :
P.W.1 - Smt. Gowramma.
List of Documents exhibited for the plaintiff:
Ex.P.1: 2 RTC's in respect of suit item No.1.
Certified copy of RTC in respect of
Ex.P.2: Item No.2.
Ex.P.3: Office Copy of the legal notice.
Ex.P.4: Certified copy of sale deed dtd
22/02/2011.
Ex.P.5: Certified copy of Confirmation
Deed dtd.28/11/2011.
Ex.P.6: Certified copy of Sale Agreement
dtd.31/12/2011.
Ex.P.7: Photos ( 7 in Nos.) in respect of
suit item No.2.
Ex.P.7(a): CD in respect of photos.
Ex.P.8 to 15: Photos (8 in Nos.);
Ex.P.16: Police Complaint dtd.11/08/2007;
Ex.P.16(a): Signature of defendant No.1.
76 O.S.No.4631/2007
List of Witnesses examined for the Defendant :
D.W.1 - Suryanarayanachari @ Suresh D.W.2 - Smt.Bhuvaneshwari T D.W.3 Sadiq Gaihlot List of Documents exhibited for the defendant: Ex.D.1: Copy of Indemnity Bond dtd 20/08/2003 .
Ex.D.1(a): Signature of the plaintiff No.1. Ex.D.2: Gift Deed dated 14/02/2006 Ex.D.2(a): Signature of Plaintiff No.1. Ex.D.3: Certified copy of the order sheet in O.S.NO.2650/2022.
Ex.D.4: Certified copy of the plaint in O.S.NO.2650/2022.
Ex.D.5: Copy of Partition Deed dated 24/08/1966.
Ex.D.6: Copy of Sale Deed dated 13/12/1966. Ex.D.7: Copy of Sale Deed dated 25/03/1968. Ex.D.8: Copy of Sale Deed dated 19/05/1971. Ex.D.9: Copy of Sale Deed dated 13/08/1974. 77 O.S.No.4631/2007 Ex.D10: Sale deed dated 22/02/2011. Ex.D11: Deed of Confirmation dtd. 28/11/2011.
Ex.D12: Agreement of Sale dtd.31/12/2011. Ex.D13 : General Power of Attorney Ex.D14: Sale Deed dated 25/03/2013 Ex.D15: Release Deed dated 25/03/2013 Ex.D16: Confirmation Deed dated 25/06/2013 Ex.D17: Certified copy of Notification dtd 17/01/2013 issued by DC, Bengaluru District.
Ex.D18: Certificate issued by BBMP. Ex.D19: Property Tax Paid receipts (11 in Nos.) Ex.D20: Certified copy of Statement of Accounts in HDFC Bank (BALAGOPALAKRISHNA) XXII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.78 O.S.No.4631/2007
79 O.S.No.4631/2007