Bangalore District Court
Sri.D.H.Manjunatha vs ) Sri.Hanumantharaya on 25 August, 2021
Govt.of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for Judgment
in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
Dated this the 25th day of August 2021
PRESENT: Sri. Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.NO.7232/1999
PLAINTIFF SRI.D.H.MANJUNATHA
S/o.Sri.Hanumantharaya
Aged about 23 years
R/o No.4, 1st Floor, 3rd Main
10th Cross, Agrahara Dasarahalli
Bengaluru -560 079
[By Pleader Sri.A.Venkata Reddy]
/Vs/
DEFENDANTS 1) SRI.HANUMANTHARAYA
S/o.late Sri.Thimmarayappa
Aged about 49 years
R/o No.4, 3rd Main Road, 10th Cross
Agrahara Dasarahalli
Bengaluru -560 079
[By Pleader Sri.Mallappa.K]
O.S NO: 7232/1999
2
2) SRI.SURESH
S/o.Sri.Maheshwaraiah
Aged about 35 years
Since dead by his LRs.,
2a) SMT.MANGALA GOWRAMMA
W/o.late Sri.Suresh
Aged about 40 years
2b) SRI.B.HARISH
S/o.late Sri.Suresh
Aged about 23 years
2c) MS.USHA
D/o.late Sri.Suresh
Aged about 21 years
All are R/o No.23, 4th Main Road
10th Cross, Agrahara Dasarahalli
Bengaluru -560 079
[By Pleader Sri.Mallappa.K]
3) SRI.NAGARAJ
S/o.late Sri.Maheswaraiah
Aged about 32 years
Since dead by his LRs.,
3a) SMT.VANAJA
W/o.late Sri.Nagaraj
Aged about 40 years
3b) SRI.N.KARTHIK
S/o.late Sri.Nagaraj
Aged about 22 years
3c) MS.K.KAVYA
D/o.late Sri.Nagaraj
Aged about 20 years
All are R/o No.370, 13th Cross
30th Main, BSK 1st Stage
Bengaluru -560 070
[By Pleader Sri.Mallappa.K]
O.S NO: 7232/1999
3
4) SRI.CHANNAKESHAVA
S/o.late Sri.Maheswaraiah
Aged about 38 years
Since dead by his LRs.,
4a) SMT.SHANTHAMMA
W/o.late Sri.Channakeshava
Aged about 39 years
4b) SMT.C.NAGARATHNA
D/o.late Sri.Channakeshava
Aged about 39 years
4c) MS.C.JAYANTHI
D/o.late Sri.Channakeshava
Aged about 10 years
Defendants No.4(b) and 4(c) are minors
and they are represented by their
mother,guardian and next friend
Defendant No.4(a)
All are R/o No.23, 4th Main Road
10th Cross, Agrahara Dasarahalli
Bengaluru -560 079
[By Pleader Sri.Mallappa.K]
5) SRI.RAVI
S/o.late Sri.Maheshwraiah
Aged about 28 years
Since dead by his LRs.,
5a) SMT.SAROJA
W/o.late Sri.Ravi
Aged about 30 years
5b) Master Suhas
S/o.late Sri.Ravi
Aged about 5 years
5c) Master Jitheen
S/o.late Sri.Ravi
Aged about 3 years
O.S NO: 7232/1999
4
Defendants 5(b) and 5(c) are Minors
represented by their mother and natural
guardian Defendant No.5(a)
All are R/o No.23, 4th Main Road
10th Cross, Agrahara Dasarahalli
Bengaluru -560 079
[By Pleader Sri.Mallappa.K]
6) SMT.LAKSHMAMMA
W/o.late Sri.T.Chandrappa
Aged about 38 years
7) SRI.YETHISH
S/o.late Sri.T.Chandrappa
Aged about 25 years
8) SRI.RAGHAVENDRA
S/o.late Sri.T.Chandrappa
Aged about 23 years
9) SRI.THIMMARAYAGOWDA @
MAHESH
S/o.late Sri.T.Chandrappa
Aged about 21 years
Defendants 6 to 9 are R/o No.4
3rd Main Road, 10th Cross
Agrahara Dasarahalli
Bengaluru -560 079
Defendant No.9 being minor is reprsented
by his natural mother guardian
Smt.Lakshmamma-Defendant No.6.
[By Pleader Sri.Mallappa.K]
10) SRI.A.KRISHNAPPA
S/o.Sri.Annappa
Aged about 58 years
Since dead by his LRs
O.S NO: 7232/1999
5
10(a) SMT.SHANTHAMMA
W/o.late Sri.A.Krishnappa
Aged about 70 years
10(b) SRI.B.K.SRINIVAS
S/o.late Sri.A.Krishnappa
Aged about 50 years
Both are R/at No.1025
11th Main road, RPC Layout
Vijayanagar, Bengaluru -560 040
10(c) SMT.K.SUMITHRA
D/o.late Sri.A.Krishnappa
W/o.Dr.Kemparaju
Aged about 48 years
R/at No.20, 515 ABW Layout
11th Cross, HAL 3rd Stage
New Thippasandra
Bengaluru -560 075
10(d) SMT.BHARATHI
D/o.late Sri.A.Krishnappa
Aged about 46 years
R/at No.1227/68
1st Main Road, M.R.C.R Extension
Vijayanagara, Bengaluru -560 079
[By Pleader Sri.V.B.Shivakumar]
11) SMT.SOUBHAGYA
D/o.Sri.T.Hanumantharaya
Aged about 38 years
R/at No.34, 1st Floor, 2nd Cross
8th Main Road
Bharath Housing co-Operative
Society Ltd.,
Subramanyapura Post
Bengaluru -560 001.
O.S NO: 7232/1999
6
12) SMT.SARWAMANGALA
D/o.Sri.T.Hanumantharaya
Aged about 36 years
R/at No.15, Maruthy Nilaya
2nd Cross, C.B.Layout, Devinagar
RMV Layout, Bengaluru -560 094.
[By Pleader Sri.Umakanth]
13) SMT.SHANTHAMMA
W/o.Sri.Krishnappa
Aged about 66 years.
14) SRI.B.K.SRINIVAS
S/o.Sri.A.Krishnappa
Aged about 35 years.
Defendants-13 and 14 are
R/at No.1025, 11st Main
RPC Layout, Vijayanagar
Bengaluru -560 040.
15) SMT.K.SUMITRA
W/o.Dr.Kemparaju
Aged about 42 years
R/at No.20, 515, ABW Layout
11th Cross, HAL 3rd Stage
New Thippasandra
Bengaluru -560 075.
[By Pleader Sri.V.B.Shivakumar]
16) SRI.C.GANGADHARA MURTHY
S/o.late Sri.Chennigappa
Aged about 46 years
R/at No.322, 3rd 'A' Cross
3rd Block, Basaveswaranagar
Bengaluru -560 079.
[By Pleader Sri.G.Krishnamurthy]
O.S NO: 7232/1999
7
Date of Institution of the suit : 22.09.1999
Nature of the Suit : Partition
Date of commencement of recording
of evidence : 08.01.2020
Date on which the Judgment was
pronounced : 25.08.2021
Year/s Month/s Day/s
Total Duration : 21 11 03
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
Suit is filed by Plaintiff for partition of his share in suit schedule property by metes and bounds and for mesne profits.
2) In brief, Plaintiff's case is that Plaintiff and Defendants No.1 to 9 are the members of undivided O.S NO: 7232/1999 8 Joint Hindu family and they are governed by Mithakshara School of Law.
3) It is stated that late Sri.Thimmarayappa died leaving behind his three male children, namely Sri.T.Maheswaraiah, Sri.Hanumntharaya [Defendant No.1] and Sri.T.Chandrappa. Plaintiff is the son of Defendant No.1. Defendants No.2 to 5 are the children of late Sri.T.Maheswaraiah. Defendants No.6 to 9 are wife and children of late Sri.T.Chandrappa.
4) It is stated that Sri.Thimmarayappa died on 21.02.1984. Sri.T.Chandrappa and Sri.T.Maheshwaraiah died on 15.05.1986 and 11.04.1997 respectively.
5) It is stated that late Sri.Thimmarayappa, during his life time, being kartha of the family, purchased land bearing Sy.No.69/2, measuring 04 O.S NO: 7232/1999 9 acres and 26 guntas of Agrahara Dasarahalli under registered Sale Deed dated 22.10.1953 from one Sri.Annaiayappa @ Lakshmaiah.
6) It is stated that late Sri.Thimmarayappa, during his life time, sold an extent of 01 acre and 16 guntas of land in Sy.No.69/2 to one Sri.Balakrishnappa for the benefit of the family. Plaintiff and Defendants No.1 to 9 continued in joint possession and enjoyment of the remaining land measuring 03 acres and 10 guntas after the death of late Sri.Thimmarayappa.
7) It is stated that Bangalore Development Authority [BDA] acquired land measuring 03 acres and 10 guntas for formation of house sites. Later, BDA released an extent of 02 acres and 20 guntas of land [suit schedule property] in the name of Plaintiff's grand father, Sri.Thimmarayappa vide Gazette Notification dated 21.08.1998.
O.S NO: 7232/1999 10
8) It is stated that Plaintiff and Defendants No.1 to 9 and Defendants No.11 and 12, who got themselves impleaded in the suit, are in joint possession and enjoyment of suit schedule property.
9) It is stated that on 07.08.1999 Plaintiff came to know that Defendants No.1 to 9 executed General Power of Attorney [GPA] in favour of Defendant No.10 in respect of suit schedule property and therefore, on 08.09.1999 Plaintiff demanded for partition of his legitimate share in suit schedule property.
10) It is stated that in the proceedings taken between Defendants No.1 to 9 and Defendant No.10 in CMP No.16/1998, Plaintiff is not a party and hence, award dated 08.02.1999 passed in the said proceedings and registered Sale Deed dated 25.08.1999 executed in favour of Defendant No.10 O.S NO: 7232/1999 11 in Ex.Case No.568/1999 filed on the basis of the award are not binding on him.
11) It is stated that Defendant No.10 entered into a Memorandum of Understanding [MoU] dated 09.04.1999 with Defendant No.16 in respect of portion of suit schedule property and same is not binding on Plaintiff.
12) It is further stated that Defendant No.10 executed Gift Deeds dated 13.05.2004 in favour of his wife and children in respect of portion of suit schedule property and same are not binding on Plaintiff's share in suit schedule property as the said alienations were made during the pendency of the case.
13) It is stated that as Defendants evaded to partition the suit schedule property and to give his O.S NO: 7232/1999 12 share therein, he has filed this suit. Hence, prays for decree.
14) Defendants No.1 to 16 marked appearance through their respective Counsel. Defendants No.10, 11, 12, 13 to 16 filed their respective written statement. Defendants No.1 to 9 did choose not to file their written statement.
15) Defendants No.11 and 12, in their common written statement, admit the facts stated in plaint and claim their share in suit schedule property.
16) Defendants No.10 and 13 to 15, in their respective written statement, state that they are the purchasers in possession of suit schedule property.
17) It is stated that on 18.05.1981 a registered Agreement of Sale was executed in favour of Defendant No.10 in respect of entire extent of 03 O.S NO: 7232/1999 13 acres and 10 guntas and possession was delivered to Defendant No.10. At that time, Plaintiff was not born.
18) It is stated that suit schedule property was the self acquired property of late Sri.Thimmarayappa, who purchased the same from his own earnings on 22.10.1953.
Sri.Thimmarayappa's three sons executed Agreement of Sale and GPA in favour of Defendant No.10 and accordingly, he has been in possession and enjoyment of suit schedule property as the absolute owner thereof.
19) It is stated that late Sri.Thimmarayappa and his three sons partitioned the suit schedule property and they were allotted separate shares and hence, suit for partition and separate possession as filed is not maintainable.
O.S NO: 7232/1999 14
20) It is further stated that Additional Agreement of Sale was also executed by Defendants No.1, 2 to 5 and 6 to 9 in favour of Defendants No.13 to 15 on 10.08.1996. Further consideration amount was also paid under the Agreement of Sale dated 08.05.1981. Arbitration proceedings initiated was contested by Defendant No.1. On the basis of the award, Sale Deed came to be executed in execution proceedings in favour of Defendant No.10, who executed gift deeds in favour of Defendants No.13 to 15 and thereby, Defendants No.13 to 15 have become the owners of their respective properties. Plaintiff has no manner of right, title and interest over the properties gifted to them. Hence, pray for dismissal of the suit.
21) Defendant No.16, in his written statement, states that Plaintiff is not in possession of suit schedule property, hence, suit is liable to be dismissed for payment of insufficient court fee.
O.S NO: 7232/1999 15
22) It is stated that suit filed against him is liable to be dismissed on the ground of mis-joinder of party.
23) It is stated that late Sri.Thimmarayappa, Sri.Maheswarappa and Sri.Chandrappa had entered into an Agreement of Sale dated 18.05.1981 with Defendant No.10 agreeing to sell the property bearing Sy.No.69/2A measuring 03 acres and 10 guntas of Agrahara Dasarahalli. After the death of Sri.Thimmarayappa, Sri.Maheswarappa and Sri.Chandrappa, their legal representatives Sri.T. Hanumantharaya and others entered into an Agreement of Sale with Defendant No.10.
24) It is stated that as dispute arose, Defendant No.10 filed CMP No.16/1998 before the Hon'ble High Court of Karnataka and an Arbitrator was appointed therein to resolve the dispute. Arbitrator has passed the award.
O.S NO: 7232/1999 16
25) It is stated that Defendant No.16 and Defendant No.10 entered into a MoU dated 09.04.1999 and he paid substantial amount to Defendant No.10 to enable him to get the sale deed in his name in terms of arbitration award.
26) It is stated that Defendant No.10 filed execution case in Ex.Case No.568/1999 for enforcement of the award and in the said execution, sale deed was executed in favour of Defendant No.10 in respect of suit schedule property on 25.08.1999.
27) It is stated that Defendant No.10 alienated major portion of suit schedule property in favour of nominees of Defendant No.16 and the said nominees have become the owners of the major portion of suit schedule property.
28) It is stated that Defendant No.10 also executed an Agreement of Sale in favour of O.S NO: 7232/1999 17 Defendant No.16 in respect of the remaining portion of suit schedule property.
29) It is stated that as Defendant No.10 failed to execute the registered sale deed in respect of the remaining portion of suit schedule property, Defendant No.16 filed suit in O.S.No.1428/2008 for specific performance of the contract and same is pending for consideration.
30) Defendant No.16, alternatively, states that suit schedule property was purchased by late Sri.Thimmarayappa and subsequently, the same was transferred in the names of his children, namely Sri.Maheshwaraiah, Sri.T.Hanumantharaya and Sri.T.Chandrappa and thereby, they became the absolute owners of suit schedule property. They, being the absolute owners of suit schedule property, alienated the same to Defendant No.10 under registered Sale Deed dated 25.08.1999.
O.S NO: 7232/1999 18 Defendant No.16 paid substantial amount to Defendant No.10 to purchase the suit schedule property, and therefore, even Plaintiff establishes that he belongs to the family of Sri.Hanumantharayappa, he has no right to claim partition. Hence, prays for dismissal of the suit.
31) Defendants No.10 and 13 to 15, in their additional written statement, have reiterated the facts stated in their written statement and state that they have succeeded the suit schedule property on the death of Defendant No.10. Hence, prays for dismissal of the suit.
32) Following Issues have been framed by this Court on 24.02.2012 :
1) Whether the Plaintiff proves that suit property is undivided joint property of the Plaintiff and Defendants 1 to 9 and 11 and 12?
2) Whether Plaintiff has a share in the suit property?
O.S NO: 7232/1999 19
3) Whether Plaintiff is entitled for mesne profits?
4) Whether the Defendant No.11 and 12 are entitle for a share in the suit property?
5) Whether Defendant No.10 proves that he is in possession of suit property under registered Agreement to Sell and GPA dtd.18/5/1981?
6) Whether Defendant No.1 proves that the Plaintiff has right over suit property?
7) Whether suit is barred by res
judicata?
8) Whether there is no cause of
action for the suit?
9) What decree or order?
33) Additional Issues that have been framed on 15.09.2018 are as under :
1) Whether LRs of Defendant
No.10 prove that, already
there is a partition?
2) Whether suit is barred by law
of limitation?
3) Whether LRs of Defendant
No.10 further prove that, there
is a Gift Deed on 13.05.2004 in
favour of Bharathi LR 10(d) in
O.S NO: 7232/1999
20
respect of portion of suit
schedule property?
34) Plaintiff has got examined as PW.1 and got marked Exs.P.1 to P.31 in support of his case.
Defendants No.16 and 10(b) have got examined as DW.1 and DW.2 respectively and got marked Exs.D.1 to D.18. Defendants No.11 and 12 have chosen not to lead their evidence.
35) Heard learned counsel for Plaintiff and legal heirs of Defendants No.10 [Defendants No.13 to 15 and 10(d)] and Defendant 16. Perused the records.
36) My findings to above Issues are :
Issue No.1 : Partly in Affirmative;
Issue No.2 : Partly in Affirmative;
Issue No.3 : In Negative;
Issue No.4 : In Negative;
Issue No.5 : In Negative;
O.S NO: 7232/1999 21 Issue No.6 : Does not arise;
Issue No.7 : In Negative;
Issue No.8 : In Negative;
Addl.Issue No.1 : In Negative;
Addl.Issue No.2 : In Negative;
Addl.Issue No.3 : As per findings;
Issue No.9 : As per final Order, for the following :
REASONS
37) Issues No.1 and 4 : Plaintiff seeks partition of suit schedule property claiming 3/12th share in suit schedule property and mesne profits.
38) Plaintiff contends that suit schedule property is undivided joint family property. Late Sri.Thimmarayappa, during his life time, purchased the suit schedule property as kartha of the family.
After his death, Plaintiff and Defendants No.1 to 9 continued in joint possession and enjoyment of the O.S NO: 7232/1999 22 suit schedule property, and Defendant No.1 is managing the joint family.
39) On the other hand, Defendants No.10 and 13 to 15 contend that suit schedule property was the self acquired property of late Sri.Thimmarayappa and same was purchased by him under registered Sale Deed dated 22.10.1953.
40) It is contended that the sons of late Sri.Thimmarayappa, namely Sri.Maheshwaraiah, Sri.Hanumantharaya and Sri.T.Chandrappa executed Sale Agreement and GPA in favour of Defendant No.10; he has been in possession and enjoyment of suit schedule property as absolute owner since the date of Sale Agreement and GPA; and suit schedule property was not the joint family property of Plaintiff.
O.S NO: 7232/1999 23
41) It is their further contention that, as on the date of execution of Agreement to Sell and GPA, Plaintiff was not born to the family of Defendants No.1 to 9.
42) Defendant No.16 contends that father of Defendant No.1, late Sri.Thimmarayappa had purchased the suit schedule property and same was transferred in the names of Sri.Maheshwaraiah, Defendant No.1 and Sri.T.Chandrappa. They, being the absolute owners of suit schedule property, alienated the same to Defendant No.10 under registered Sale Deed dated 25.08.1999.
43) It is contended that he paid substantial amount to Defendant No.10 to purchase the suit schedule property. Defendant No.10 sold major portion of suit schedule property to him and his nominees. For the remaining portion, Defendant No.10 executed Sale Agreement in his favour. As O.S NO: 7232/1999 24 Defendant No.10 failed to execute the sale deed in respect of the remaining portion, suit in O.S.No.1428/2008 has been filed for specific performance of contract and same is pending for adjudication.
44) In plaint, it is pleaded that late Sri.Thimmarayappa is the grand father of Plaintiff. Sri.T.Maheshwaraiah, Sri.Hanumantharaya and Sri.T.Chandrappa are sons of late Sri.Thimmarayappa. Sri.Hanumantharaya is Defendant No.1 in this suit. Plaintiff and Defendants No.11 and 12 are children of Defendant No.1. Defendants No.2 to 5 are sons of late Sri.T.Maheshwaraiah. Defendant No.6 is wife and Defendants No.7 to 9 are sons of late Sri.T.Chandrappa.
45) Defendants No.10, 13 to 15 and 16, in their written statement, have specifically stated that O.S NO: 7232/1999 25 Sri.T.Maheshwaraiah, Defendant No.1 and Sri.T.Chandrappa are sons of late Sri.Thimmarayappa.
46) Award at Ex.D.1 passed in favour of Defendant No.10 makes it clear that Defendant No.10 initiated arbitration proceedings against Sri.Hanumantharaya and legal heirs of late Sri.Maheshwaraiah and late Sri.T.Chandrappa. They are Defendants No.1 to 9 in this suit.
47) Plaintiff has deposed as PW.1 reiterating the above relationship in his examination-in-chief. There is no cross examination to the effect that Plaintiff is not the member of Defendants No.1 to 9. On the contrary, Defendant No.10 suggested that Plaintiff and his father, Defendant No.1 were residing under single roof at the time of filing of this suit. Defendant No.16 suggested that suit schedule property is the self acquired property of Plaintiff's O.S NO: 7232/1999 26 father and his brothers. This would clearly go to show that Defendants No.10 and 16 have admitted the Plaintiff's relationship with Defendants No.1 to
9.
48) Apart from that, genealogy at Ex.P.1 makes it clear that Plaintiff is the son of Defendant No.1 and grand son of late Sri.Thimmarayappa. In that view, it can be fairly said that relationship of Plaintiff with Defendants No.1 to 9 is not at all in dispute.
49) It is the case of Defendant No.10 that late Sri.Thimmarayappa and his sons executed registered GPA dated 14.09.1981 and Sale Agreement dated 12.09.1981, and at the time of execution of said documents, Plaintiff was not born.
50) GPA at Ex.D.13 goes to show that late Sri.Thimmarayappa and his three sons and grand children executed GPA in favour of Defendant No.10 O.S NO: 7232/1999 27 to do all acts and deeds in respect of the agreement dated 12.09.1981 executed by them in favour of Sri.K.B.Srinivas, Sri.S.V.Shivanna, Sri.K.Ramesh, Sri.G.Narasimhaiah and Smt.Shantamma.
51) PW.1, in his cross examination by Defendant No.10, has specifically deposed that he born on 17.07.1977. GPA at Ex.D.13 and Sale Agreement dated 12.09.1981 mentioned in GPA were executed in the year 1981. This would make it clear that said two documents were executed after the birth of Plaintiff. Apart from that, arbitration award dated 08.02.1999, and on the basis of award, Sale Deed dated 25.08.1999 at Ex.D.14 came to be passed and executed after the birth of Plaintiff. Thus, it would be clear that at the time of execution of Sale Agreement, GPA, passing of award and execution of Sale Deed, Plaintiff was born and he was the family member of late Sri.Thimmarayappa and Defendants No.1 to 9.
O.S NO: 7232/1999 28
52) In Rohit Chahan vs. Surinder Singh and Others, [(2013) 9 SCC 419], the Hon'ble Supreme Court was pleased to hold thus :
" Coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. "Coparcenary' is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and it enlarges by deaths and diminishes by births in the family. It is not static".
So long as on partition a share of ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property.................. If a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire an interest in that and become a coparcener".
53) Plaintiff's case is that suit schedule property is the joint family property. Late Sri.Thimmarayappa, being the kartha of the family, O.S NO: 7232/1999 29 acquired the same in his name under registered Sale Deed dated 22.10.1953.
54) Sale Deed at Ex.P.15 [typed copy at Ex.P.15(a)] goes to show that late Sri.Thimmarayappa purchased Sy.No.69 measuring 04 acres and 26 guntas of Agrahara Dasarahalli village from one Sri.Annaiayappa @ Laksmaiah for a consideration of Rs.4,000/- on 22.10.1953.
55) GPA at Ex.D.13 makes it clear that late Sri.Thimmarayappa and his three sons, namely Sri.Maheshwaraiah, Sri.T.Hanumantharya [Defendant No.1], Sri.T. Chandrappa and sons of Sri.Maheshwaraiah executed GPA on 14.09.1981 in respect of 03 acres and 10 guntas in favour of Defendant No.10 to do all acts and deeds on their behalf in respect of agreement dated 12.09.1981 executed by them in favour of Sri.K.B.Srinivas, Sri.S.V.Shivanna, Sri.K.Ramesh, Sri.G.Narasimhaiah O.S NO: 7232/1999 30 and Smt.Shanthamma. This makes it clear that though Sale Deed at Ex.P.15 stood in the name of late Sri.Thimmarayappa in respect of suit schedule property, late Sri.Thimmarayappa and his sons and grand sons were in joint possession and enjoyment of suit schedule property at the time of execution of GPA and Agreement to Sell.
56) Sale Deed at Ex.D.14 executed by the Court in Ex.Case No.568/1999 on the basis of the award dated 08.02.1999 in favour of Defendant No.10 in respect of suit schedule property, emphatically recites that late Sri.Thimmarayappa and his three sons constituted a Joint Family and they were in joint possession and enjoyment of the land bearing Sy.No.69/2 of Agrahara Dasarahalli village. It is further recited that late Sri.Thimmarayappa and his three sons entered into oral partition, which came to be reduced into writing on 06.01.1975 and on the date of execution of palupatti, the joint family was O.S NO: 7232/1999 31 in possession and enjoyment of only an extent of land measuring 03 acres and 10 guntas. It is also recited that remaining 01 acre and 20 guntas of land was sold to one Sri.B.M.Balakrishnappa by all the members of the joint family, and by an Agreement of Sale dated 18.05.1981 all the members of joint family agreed and accepted to sell the entire extent of 03 acres and 10 guntas of land. It is also recited that under the terms of agreement, total sale consideration shall be Rs.3,00,000/- and the purchaser, Sri.Krishnappa paid an advance amount of Rs.25,000/-.
57) Apart from the above recitals in Ex.D.14, Gift Deeds at Exs.D.15 to D.18, which were executed by Defendant No.10 in favour of his wife and children, who are Defendants No.10(a) to (d) [Defendants No.10(a) to 10(c) are also arrayed as Defendants No.13 to 15], recite the same facts as recited in Ex.D.14.
O.S NO: 7232/1999 32
58) Thus, the contention taken by Defendants No.10, 13 to 15 and 16 in their respective written statement that suit schedule property was the self acquired property of late Sri.Thimmarayappa has been falsified by their own documents at Exs.D.13 to D.18.
59) It is to be noticed that all the documents at Exs.D.13 to D.18 came to be executed after the birth of Plaintiff and he was the family member of late Sri.Thimmarayappa and Defendants No.1 to 9 and that he is not a party to Exs.D.13 to D.18.
60) Section 54 of the Transfer of Property Act, 1882 defines "Contract for Sale". It states that contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.
O.S NO: 7232/1999 33
61) Section 202 of the Indian Contract Act, 1872 deals with termination of agency, where agent has an interest in subject-matter. It states that where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
62) Section 202 makes it clear that agency coupled with interest, same cannot be terminated to the prejudice of such interest.
63) In the instant case, late Sri.Thimmarayappa and his sons and grand sons executed a registered GPA at Ex.D.13 in favour of Defendant No.10 to do all acts and deeds in respect of the sale agreement executed by them in favour of Sri.K.B.Srinivas, Sri.S.V.Shivanna, Sri.K.Ramesh, Sri.G.Narasimhaiah and Smt.Shanthamma.
O.S NO: 7232/1999 34
64) It is nowhere mentioned in Ex.D.13 that sale agreement was executed by them in favour of Defendant No.10. There is no recital as such in Ex.D.13 that Defendant No.10 had paid sale consideration under Ex.D.13 to late Sri.Thimmarayappa and his sons and grand sons. Ex.D.13 makes it abundantly clear that no interest has been created in favour of Defendant No.10 in respect of suit schedule property except to do all acts and deeds in respect of sale agreement executed by late Sri.Thimmarayappa and his sons and grand sons in favour of Sri.K.B.Srinivas, Sri.S.V.Shivanna, Sri.K.Ramesh, Sri.G.Narasimhaiah and Smt.Shanthamma. Despite that, Defendant No.10 got the award in his favour and got the Sale Deed at Ex.D.14 in his name through the process of Court.
65) In plaint, it is pleaded that Sri. Thimmarayappa died on 21.02.1984. In evidence, O.S NO: 7232/1999 35 PW.1 has deposed that his grand father died on 21.02.1984.
66) The award dated 08.02.1999 and Sale Deed at Ex.D.14 dated 25.08.1999 came to be passed and executed in favour of GPA Holder, Defendant No.10 after the death of Sri.Thimmarayappa.
67) As envisaged in Section 201 of the Indian Contract Act, 1872, agency is terminated by the death of principal or agent.
68) GPA at Ex.D.13 makes it clear that agency created in favour of Defendant No.10 is not coupled with interest. In that circumstance, agency created in favour of Defendant No.10 under GPA at Ex.D.13 became terminated soon after the death of Sri.Thimmarayappa. Once the agency created in favour of Defendant No.10 is terminated by the O.S NO: 7232/1999 36 death of Sri.Thimmarayappa, suit schedule property would pass on to his legal representatives.
69) At the time of death of Sri.Thimmarayappa, Plaintiff was born to the family of Sri.Thimmapparayappa and Defendants No.1 to 9. Plaintiff was the member of the family and property remained with the family of Plaintiff and Defendants No.1 to 9. Even if it is hypothetically assumed that suit schedule property was the self acquired property of late Sri.Thimmarayappa, because of inheritance by his three sons and grand children including Plaintiff, the same became the ancestral property of Plaintiff. In that circumstance also, Plaintiff is entitled to claim share in suit schedule property being the grand son of late Sri.Thimmarayappa. Be that as it may.
70) In the instant case, it has been proved by Exs.D.14 to D.18 that late Sri.Thimmarayappa and O.S NO: 7232/1999 37 his three sons and grand children constituted joint family and they were in joint possession and enjoyment of suit schedule property.
71) Apart from that, Plaintiff has produced Sale Deed at Ex.P.8 [typed copy marked as Ex.P.8(a)], which goes to show that late Sri.Thimmarayappa acquired ancestral property in his name in Muddanapalya village and same was sold to his brother, Sri.Narayanappa on 27.02.1950. In Ex.P.8, it is specifically recited that he has been residing in Agrahara Dasarahalli, Yeshwanthpur Hobli and therefore, he is unable to cultivate the property inherited by him from his ancestor. It is also recited that he intends to have property where he resides after selling the ancestral property.
72) Further, PW.1, in his evidence, has deposed that in Muddanapalya, his grand father, late Sri.Thimmarayappa had owned 01 acre 06 guntas O.S NO: 7232/1999 38 of land. He has deposed that said property was the ancestral property of his grand father. He has deposed that his grand father purchased the suit schedule property after selling the ancestral property. He has further deposed that late Sri.Thimmarayappa was vending milk at Muddanapalya and Bangalore. He has also deposed that his grand father was vending milk being the member of joint family. He has deposed that he has no other document to show that they constitute joint family.
73) From the above evidence, it would be clear that Plaintiff's grand father, late Sri.Thimmarayappa had ancestral property in his name at Muddanapalya and same was sold by him to his brother for the purpose of purchasing the property in the place where he resides. It is further clear that he was vending milk being the member of joint family. Further, Sale Deed at Ex.P.31 makes it clear O.S NO: 7232/1999 39 that suit schedule property, which is situate at Agrahara Dasarahalli, was purchased on 22.10.1953 after selling the ancestral property.
74) In view of specific recitals in Exs.D.14 to D.19, there would be no impediment to accept the recitals in Ex.P.8 and oral evidence of PW.1 to say that suit schedule property is the joint family property of Plaintiff and Defendants No.1 to 9.
75) Above view is further fortified by judgment in AC No.76/1999 at Ex.D.1; GPA at Ex.D.13 and Sale Deed at Ex.D.14. They disclose that grand children of late Sri.Thimmarayappa have been made as parties, stating that they constitute joint family and they are in joint possession and enjoyment of suit schedule property. In that view, there is no reason to exclude Plaintiff from the member of joint family.
O.S NO: 7232/1999 40
76) Defendant No.16 has taken the alternative plea that suit schedule property was purchased by Sri.Thimmarayappa and subsequently, the same was transferred in the names of his children, namely Sri.Maheshwaraiah, Defendant No.1 and Sri.T.Chandrappa and therefore, suit schedule property became their absolute property.
77) Notification dated 21.08.1998 at Ex.P.3 issued by the Government of Karnataka goes to show that suit schedule property has been shown in the name of Sri.Thimmarayappa after withdrawing the acquisition of suit schedule property. It is to be noticed that, at the time of publishing Notification at Ex.P.3, Sri.Thimmarayappa was no more. At the time of publication of Notification, his legal representatives are his three sons and grand children. In that view also, there is no rationale in saying that Sri.Thimmarayappa's three sons have become the absolute owners of suit schedule O.S NO: 7232/1999 41 property after the death of Sri.Thimmarayappa. On the contrary, it has been established that, at the time of death of Sri.Thimmarayappa, Plaintiff was born and he was the family member of Sri.Thimmarayappa. In that view, contention raised by Defendant No.16 that suit schedule property was the absolute property of Sri.Thimmarayappa's three sons after his death, has no substance.
78) Defendant No.11 and 12, in their written statement have supported the case of Plaintiff and claimed their share in suit schedule property.
79) It is contended that suit schedule property is their ancestral property and same is not yet partitioned. It is contended that as per Section 6 of the Hindu Succession (Amendment) Act, 2005, they are the coparceners and they are entitled to equal share as that of Plaintiff.
O.S NO: 7232/1999 42
80) Defendants No.11 and 12, in support of their pleadings, have not examined themselves before this Court. It is not in dispute that they are the daughters of Defendant No.1 and sisters of Plaintiff. In that view, adjudication of their entitlement of share in suit schedule property is considerable.
81) It has been proved that suit schedule property is the ancestral joint family property of Plaintiff. Defendants No.11 and 12 claim that they are coparceners as that of Plaintiff and they are entitled to share in ancestral joint family properties as per the provisions of the Hindu Succession (Amendment) Act, 2005.
82) Coparcenary right has been conferred upon the daughter of coparcener with effect from 09.09.2005, the date on which the Hindu Succession (Amendment) Act, 2005 came into force. Proviso to Section 6(1) saves the disposition O.S NO: 7232/1999 43 or alienation which had taken place before 20.12.2004.
83) In Vineeta Sharma vs. Rakesh Sharma and Others, [(2020) 9 SCC 1], the Hon'ble Supreme Court was pleased to thus :
"137. Resultantly, the reference is answered as under :
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9-9-
2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20-12-2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9- 2005."
84) Proviso to Section 6(1)(a) makes it clear that Section 6(1)(a) shall not affect or invalidate the disposition or alienation which had taken place before 20.12.2004. In the instant case, alienation O.S NO: 7232/1999 44 of suit schedule property had taken place on 25.08.1999 under Ex.D.14. Hence, claiming share by Defendants No.11 and 12 does not arise as proviso to Section 6(1) bars them to claim share in the property already disposed of and alienated. Accordingly, I answer Issue No.1 partly in the affirmative and Issue No.4 in the negative.
85) Issue No.5 : As observed above, GPA at Ex.D.13 was executed in favour of Defendant No.10 to do all acts and deeds in respect of sale agreement executed in favour of Sri.K.B.Srinivas and others. It has been clear from the evidence that Defendant No.10 has not executed Sale Deed in favour of the persons in respect of whom sale agreement was executed by late Sri.Thimmarayappa and his sons and grandchildren. Further, GPA at Ex.D.13 is not coupled with interest. On the other hand, Defendant No.10 initiated arbitration proceedings, obtained award, filed O.S NO: 7232/1999 45 execution case and got sale deed in his favour. Be that as it may. Unless GPA coupled with interest, agent's possession under GPA does not partake the possession of principal. At the most, it can be said that agent's possession is on behalf of his principal.
86) Apart from that eventhough GPA was in favour of Defendant No.10, land was restored in the name of Sri.Thimmarayappa on 21.08.1998 by the Government of Karnataka after withdrawing acquisition. Thereafter, on 08.02.1999 Defendant No.10 obtained the award, filed execution and got sale deed on 25.08.1999 through the process of the Court.
87) In Ex.D.14, it is recited that the purchaser shall be put in possession of the entire schedule property. It is further recited that the vendors- 1 to 9 have this day delivered vacant possession of the O.S NO: 7232/1999 46 entire schedule property to the purchaser/decree holder.
88) It is to be noticed that sale deed was executed through the process of the Court. Court executed sale deed in favour of Defendant No.10 on behalf of the vendors. Vendors did not participate in the process of execution of the sale deed and delivery of possession. Hence, question of delivery of possession by the vendors does not arise. There are no documents as such to say that after execution of the Sale Deed at Ex.D.14, delivery of possession was handed over to Defendant No.10 through the process of the Court by issuing delivery warrant. No evidence to the said effect is available on records.
89) The case of Defendant No.10 is that there was GPA at Ex.D.13 in his favour and on the basis of it, he was in possession of suit schedule property.
O.S NO: 7232/1999 47 As observed above, possession on the basis of GPA is nothing but the possession on behalf of principal. Moreover, GPA automatically got terminated in the year 1984 itself by the death of Sri.Thimmarayappa. Hence, question of inferring the possession of Defendant No.10 on the basis of GPA does not arise. That being the case, there is no reason to hold that possession of sites has been delivered to Defendants No.13 to 15 and 10(a) under Exs.D.15 to D.18 in absence of possession of Defendant No.10.
90) Defendant No.10 got the award on the basis of alleged agreement executed in his favour. As envisaged in Section 54 of the Transfer of Property Act, 1882, contract for sale does not itself create any interest in, or charge on the property. It was not the case of Defendant No.10, that he was in part performance of the contract as envisaged in Section 53A of the Transfer of Property Act, 1882.
O.S NO: 7232/1999 48
91) PW.1 has been elaborately cross examined to say that Defendant No.10 is in possession of suit schedule property. PW.1 has denied the suggestion put to him that on 18.05.1981 Sri.Thimmarayappa had handed over the possession of suit schedule property to Defendant No.10. PW.1 has been asked whether he has any documents to say that he is in possession of suit schedule property. He has deposed that as the suit schedule property has not been partitioned, there is no separate document to show the possession of suit schedule property. He has deposed that he is not in custody of RTC, mutation entry, khatha certificate, tax paid receipt showing the names of Sri.Thimmarayappa and his father and uncles. He has been suggested that from 18.05.1981, RTC, mutation entry and khatha certificate are in the name of Defendant No.10. PW.1 has denied the said suggestion. He has denied the suggestion that sites have been formed in suit schedule properties. He has also been suggested by O.S NO: 7232/1999 49 Defendant No.10 that compound has been put up around suit schedule property and gate has been fixed. For that, Plaintiff has deposed that Defendant No.16 did it forcibly.
92) It is to be noticed that entire case of Defendant No.10 is that suit schedule property was the self acquired property of Sri.Thimmarayappa and he and his children executed GPA. Further, on the basis of award, sale deed got executed in his favour. In that circumstance, the question of producing the RTC, mutation entry, khatha certificate and tax paid receipts which stood in the names of Sri.Thimmarayappa and his father and uncle by Plaintiff does not arise.
93) Defendant No.10 suggests PW.1 that from 18.05.1981, all RTC, mutation entry and khatha certificate are in the name of Defendant No.10. It is to be noticed that no such documents have been O.S NO: 7232/1999 50 produced by Defendant No.10. On the contrary, documents on record go to show that GPA at Ex.D.13 executed by Sri.Thimmarayappa got terminated on the death of Sri.Thimmarayappa in the year 1984 itself. Notification at Ex.P.3 makes it clear that Government of Karnataka restored the suit schedule property in the name of Sri.Thimmarayappa in the year 1998. Thereafter, Defendant No.10 obtained award and Sale Deed at Ex.D.14 in the year 1999. Hence, question of entering the name of Defendant No.10 with respect to suit schedule property from 18.05.1981 in RTC, mutation entry and khatha of suit schedule property does not arise at all.
94) Defendant No.10 suggests to PW.1 that sites have been formed in suit schedule property. PW.1 has deposed that no such sites have been formed in suit schedule property. Defendant No.10 has placed reliance on Exs.P.4 to P.7 [Exs.D.15 to D.18] to say O.S NO: 7232/1999 51 that sites have been formed in suit schedule property. It is to be noticed that in absence of handing over the possession of suit schedule property in favour of Defendant No.10, there is no reason to say that sites have been formed in suit schedule property merely on the basis that some sites are shown to have been formed in Exs.P.4 to P.7 and shown to have been transferred in the names of Defendants No.13 to 15 and 10(d). If sites have been formed, there must be a layout plan approved by the competent authority and related documents thereto. DW.2 has deposed that his father, Defendant No.10 got sanctioned layout plan. However, no such documents are available in this case to hold that sites were formed. There are no documents to show that Defendant No.10 was handed over the possession of suit schedule property on the basis of Ex.D.14 and that Defendants No.13 to 15 and 10(d) are in possession O.S NO: 7232/1999 52 of the alleged sites shown in their respective Gift Deeds at Exs.P.4 to P.7.
95) On the contrary, it has been established that Plaintiff is the member of joint family. He was not a party to GPA at Ex.D.13. He is neither a party to arbitration proceedings, execution proceedings and Sale Deed at Ex.D.14 executed through the process of the Court. Even if it is hypothetically assumed that possession of the vendors has been passed through Ex.D.14, Plaintiff being the member of joint family, his undivided right and possession in suit schedule property remain undisturbed.
96) In Jai Singh and Others vs. Gurmej Singh, [(2009] 15 SCC 747], the Hon'ble Supreme Court was pleased to state the principles relating to right and liabilities of co-shares. Para-9 and 10 read thus :
"9. It is to be noted that in the subsequent Full Bench judgment in Bhartu O.S NO: 7232/1999 53 case, the earlier decision in Lachhman Singh case was distinguished on facts. The principles relating to the inter se rights and liabilities of co-sharers are as follows :
(1) A co-owner has an interest in the whole property and also in every parcel of it.
(2) Possession of joint property by one co-owner is in the eye of the law, possession of all even if all but one are actually out of possession.
(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a co-
owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies, that of the other.
(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.
(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.
(7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to anybody to disturb the O.S NO: 7232/1999 54 arrangement without the consent of others except by filing a suit for partition.
10. It is thus evident that when a co- sharer is in exclusive possession of some portion of the joint holding he is in possession thereof as a co-sharer and is entitled to continue in its possession if it is not more than his share till the joint holding is partitioned. A vendor cannot sell any property with better rights than himself. As a necessary corollary when a co-sharer sells his share in the joint holding or any portion thereof and puts the vendee into possession of the land in his possession what he transfers is his right as a co-sharer in the said land and the right to remain in its exclusive possession till the joint holding is partitioned amongst all co- sharers."
97) In that view, there is no reason to hold that Defendant No.10 is in possession of suit schedule property under registered GPA at Ex.D.13; accordingly, I answer Issue No.5 in the negative.
98) Additional Issue No.1 : Defendant No.10 has taken the contention that Sri.Thimmarayappa, Sri.Maheshwaraiah, Sri.Hanumantharaya and Sri.Chandrappa partitioned the property and were allotted separate shares in their respective names.
O.S NO: 7232/1999 55
99) It is to be noticed that no such documents have been produced by Defendant No.10 to show that Sri.Thimmarayappa and his three sons entered into partition of the suit schedule property. On the contrary, recitals in Ex.D.14 makes it abundantly clear that after entering into palupatti dated 06.01.1975, the joint family was in possession and enjoyment of only an extent of land measuring 03 acres and 10 guntas and the remaining 01 acre and 10 guntas of land was sold to Sri.B.M. Balakrishnappa by all the members of of the joint family. It is further recited that under an Agreement of Sale dated 18.05.1981, Sri.Timmarayappa, Sri.Maheshwaraiah, Sri.T.Hanumantharayappa and Sri.T.Chandrappa, all the members of joint family agreed and accepted to sell the entire extent of 03 acres and 10 guntas of land to purchaser.
100) From the above recitals in Ex.D.14, it can be said that Sri.Thimmarayappa and his three sons O.S NO: 7232/1999 56 entered into palupatti on 06.01.1975 and as per palupatti they were in joint possession of suit schedule property and jointly executed Agreement of Sale dated 18.05.1981. It is not in dispute that Sri.Thimmarayappa and his three sons and grand children executed GPA. It is further not in dispute that award was obtained against sons and grand children of Sri.Thimmarayappa. It is also not in dispute that sale deed got executed in favour of Defendant No.10 through the process of Court on behalf of sons and grand children of Sri.Thimmarayappa. In that view, there is no reason to say that suit schedule property was partitioned between Sri.Thimmarayappa and his three sons as contended in written statement.
101) DW.2 has been put a specific question to the effect that whether there has been any document to show that Sri.Thimmmarayappa and his three sons entered into partition. He has deposed that O.S NO: 7232/1999 57 they orally divided. He has also deposed that he cannot say that how much share would each of them has been allotted.
102) Thus, it is clear that, except the partition as recited in Ex.D.14, Defendant No.10 has failed to prove that suit schedule property was partitioned between Sri.Thimmarayappa and his three sons as contended in written statement. No such date of partition has been narrated and no allotment of shares have been described. Plea of partition is a mere assertion of Defendant No.10 without any substantiation and said plea is quite contrary to Ex.D.14, which has been executed by the Court on behalf of Defendants No.1 to 9 against whom award has been obtained. Accordingly, I answer the above additional issue in the negative.
103) Additional Issue No.2 : Defendant No.10, in his additional written statement, contends that O.S NO: 7232/1999 58 suit filed by Plaintiff is barred by limitation and hence, Plaintiff cannot seek the relief as prayed in the suit. It is his case that Gift Deeds were executed in favour of Defendants No.13 to 15, and Plaintiff cannot seek the prayer after lapse of several years.
104) It is to be noticed that Sale Deed at Ex.D.14 was executed on 25.08.1999. Plaintiff is not a party to Ex.D.14. This suit came to filed by Plaintiff on 22.09.1999.
105) Article 109 of the Limitation Act, 1963 makes it clear that limitation for suit by a Hindu governed by Mitakshara law to set aside his father's alienation of ancestral property is twelve years from the date when the alienee takes possession of the property. In this case, suit has been filed by Plaintiff within a month of execution of Sale Deed at Ex.D.14 by Defendants No.1 to 9. Hence, question of considering the limitation does not arise at all.
O.S NO: 7232/1999 59
106) It is to be noticed that plaint filed by Plaintiff was rejected by this Court vide Order dated 14.12.2001 on IA.No.6. Plaintiff preferred RFA No.282/2002 before the Hon'ble High Court of Karnataka challenging the Order dated 14.12.2001. During the pendency of RFA, Defendant No.10 executed Gift Deeds at Exs.P.4 to P.7 [Exs.D.15 to D.18] in the names of his wife and children [Defendants No.13 to 15 and 10(d)]. After remanding the matter, Plaintiff brought them on record. Thus, it would be clear that when the litigation was pending before the Hon'ble High Court of Karnataka regarding the subject matter of this suit, Defendant No.10 transferred the suit schedule property in the names of his wife and children. Hence, question of application of limitation to the transaction which has taken place during pending litigation does not arise at all; accordingly, I answer the above additional issue in the negative.
O.S NO: 7232/1999 60
107) Issue No.7 : It is contended by Defendant No.10 that arbitration proceedings had taken place between Defendants No.1 to 9 and 10. Award passed in CMP No.16/98 has attained finality and same is binding on Plaintiff.
108) Res judicata deals with the principle that once the suit or issue has been heard and finally decided by the Court, no Court shall try such suit or issue. Before applying this principle, the essential conditions as envisaged in Section 11 of the Code of Civil Procedure, 1908 have to be complied with. Section 11 would apply when an issue has been subsequently raised which was heard and finally decided in a former suit tried between the same parties or between the parties under whom they or any of them claim, litigating under the same title. In the instant case, arbitration proceedings were initiated by Defendant No.10 against Defendants No.1 to 9, who allegedly executed sale agreement O.S NO: 7232/1999 61 in respect of suit schedule property. Plaintiff was not a party to the arbitration proceedings. He has specifically deposed that he was not a party to the arbitration proceedings and he came to know about the arbitration award only after perusal of written statement filed by his father in O.S.No.1428/2008. He has also deposed that he came to know about the Sale Deed at Ex.D.14 only after the perusal of written statement of Defendant No.10.
109) Suit in O.S.No.1428/2008 has been filed by Defendant No.16 against Defendants No.1 to 9 and legal heirs of Defendants No.10 [Defendants No. 13 to 15 and 10(d)]. Written Statement filed in O.S.No.1428/2008 at Ex.P.12 goes to show that Plaintiff's father and others filed their written statement in the said suit on 01.11.2013. After coming to know about the passing of the arbitration award and execution of Sale Deed and Gift Deeds, Plaintiff amended the plaint by adding pleadings as O.S NO: 7232/1999 62 to award, Sale Deed and Gift Deeds at para-9A to 9C of plaint. Thus, from the above facts and evidence, it would be clear that Plaintiff is not at all a party to arbitration proceedings and Sale Deed at Ex.D.14. In that view, it can be fairly said that the contention as to res judicata is an evasive and is not applicable to the case of Plaintiff. Accordingly, I answer this Issue in the negative.
110) Issues No.2, 3, 6, 8 and additional Issue No.3 : Plaintiff has filed this suit for partition of suit schedule property, contending that he is a member of joint family and suit schedule property is the joint family property. He has proved that he is the member of joint family and suit schedule property is the joint family property. GPA at Ex.D.13 was executed excluding Plaintiff. Plaintiff has specifically pleaded that he came to know the execution of GPA by Defendants No.1 to 9 in favour of Defendant No.10 on 07.08.1999. He has further pleaded that O.S NO: 7232/1999 63 he demanded partition of suit schedule property on 08.09.1999. When they denied to give his share, he has filed this suit. He, being the son of Defendant No.1 and grandson of late Sri.Thimmarayappa, has filed the suit claiming his share in the suit schedule property. In that circumstance, it cannot be said that he has no cause of action to file this suit.
111) Plaintiff claims 3/12th share in suit schedule property. Genealogy at Ex.P.1 makes it clear that both Sri.Thimmarayappa and his wife Smt.Hanumakka are dead. Sri.Timmarayappa and Smt.Hanumakka had three sons, namely Sri.T.Maheshwaraiah, Sri.T.Hanumantharaya and Sri.T.Chandrappa. Plaintiff is the son of Sri.T.Hanumantharaya, who is Defendant No.1 in this suit. As per doctrine of Representation, the branch of Defendant No.1 including his son, Plaintiff would get 1/3rd share in suit schedule property and if the same is divided between Plaintiff and O.S NO: 7232/1999 64 Defendant No.1, each would get half share each in 1/3rd share. It means, both Plaintiff and Defendant No.1 would get 1/6th share each [half of 1/3rd]. Defendant No.1, being party to the arbitration proceedings and Sale Deed at Ex.D.14, his right to claim share in suit schedule property has been extinguished by Ex.D.14. However, Plaintiff, being not a party to Exs.D.14 to D.18, is entitled to 1/6 th share in suit schedule property with free of encumbrance and to that extent Sale Deed at Exs.D.14 and Gift Deeds at Exs.D.15 to D.18 including the Gift Deed of Defendant No.10(d), which came to be executed pending litigation, are null and avoid and same are not binding upon the share of Plaintiff.
112) In Radha Bai vs. Ram Narayan, [AIRONLINE 2019 SC 1521], relied upon by Defendant 10, the Hon'ble Supreme Court was pleased to hold that "deceased father of the O.S NO: 7232/1999 65 appellant had no claim in his own rights, question of appellant being his daughter succeeding to property does not arise."
113) In my humble view, in the backdrop of the factual matrix of instant case, ratio laid down in the judgment (supra) is not availed of to Defendant No.10
114) Plaintiff has emphatically denied the suggestions put to him that sites have been formed in suit schedule property. According to Plaintiff, suit schedule property is a vacant property. He has deposed that Defendant No.16 forcibly put up compound and fixed the gate to suit schedule property. Except this, nothing has been placed before the Court to say that there is income from suit schedule property and that who has derived the alleged income. Photos at Exs.D.7 to D.12 feature the compound and gate. Ex.D.12 shows the vacant O.S NO: 7232/1999 66 land. In that view, in absence of proving the income being generated from suit schedule property, the question of granting mesne profits does not arise. In absence of any contention by way of written statement by Defendant No.1, the question of considering Issue No.6 does not arise at all; accordingly, I answer Issue No.2 partly in the affirmative and Issue No.3 and 8 in the negative;
115) Issue No.9 : For the foregoing discussion and findings on Issues No.1 to 8 and Additional Issues No.1 to 3, I proceed to pass the following :
ORDER (1) Suit filed by Plaintiff is hereby decreed in part with costs.
(2) It is ordered and declared that Plaintiff is entitled to 1/6th share in suit schedule property by metes and bounds.
O.S NO: 7232/1999 67 (3) It is further ordered and declared that Sale Deed at Ex.D.14 and Gift Deeds at Exs.D.15 to D.18 are not binding on the share of Plaintiff in suit schedule property and they are declared as null and void to the extent of 1/6 th share of Plaintiff in suit schedule property. (4) It is ordered that Plaintiff's claim for mesne profits is hereby dismissed as not proved.
(5) It is further ordered that the claim of Defendants No.11 and 12 is hereby rejected.
(6) Draw Decree accordingly.
[Dictated to the Judgment Writer directly on computer, typed matter corrected and then pronounced by me in open court, on this the 25th day of August 2021] [RAMA NAIK] VI ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY O.S NO: 7232/1999 68 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Sri.D.H.Manjunath, dtd.08.01.2020
(b) Defendants' side :
D.W.1 - Sri.C.Gangadhara Murthy, dtd.27.09.2019 D.W.2 -Sri.B.K.Srinivas, dtd.18.10.2019 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Genealogy
Ex.P.2 Record of Rights in respect of Sy.No.69/2 of
Agrahara Dasarahalli Village
Ex.P.3 Karnataka Gazette Notification
Ex.P.4 Certified copy of Gift Deed dtd.13.05.2004
executed by Sri.A.Krishnappa in favour of Smt.Shanthamma Ex.P.5 Certified copy of Gift Deed dtd.13.05.2004 executed by Sri.A.Krishnappa in favour of Sri.B.K.Srinivasa Ex.P.6 Certified copy of Gift Deed dtd.13.05.2004 executed by Sri.A.Krishnappa in favour of Smt.Sumithra Ex.P.7 Certified copy of Gift Deed dtd.13.05.2004 executed by Sri.A.Krishnappa in favour of Smt.Bharathi Ex.P.8 Certified copy of Sale Deed dtd.27.02.1950 Ex.P.8(a) Typed copy of Ex.P.8 Ex.P.9 Certified copy of Sale Deed dtd.25.08.1999 O.S NO: 7232/1999 69 Ex.P.10 Certified copy of Judgment dtd.06.10.2009in RFA No.282/2002 Ex.P.11 Certified copy of plaint in OS.No.1428/2008 Ex.P.12 Certified copy of written statement in OS.No.1428/2008 Ex.P.13 Appeal Memo in MFA No.2962/2016 (AA) Ex.P.14 Order Sheet in MFA No.2962/2016 (AA) Ex.P.15 Certified copy of Sale Deed dtd.22.10.1953 Ex.P.15(a) Typed copy of Ex.P.15 Ex.P.15 To Photographs Ex.P.18 Ex.P.19 CD Ex.P.20 To Photographs Ex.P.29 Ex.P.30 CD Ex.P.31 Certified copy of Sale Deed dtd.22.10.1953
(b) Defendants' side :
Ex.D.1 Certified copy of Judgment dtd.20.02.2016 in AC.No.76/1999 Ex.D.2 Copy of GPA dtd.14.09.1981 Ex.D.3 To Photographs Ex.D.12 Ex.D.13 Certified copy of GPA dtd.14.09.1981 Ex.D.14 Certified copy of Sale Deed dtd.25.08.1999 Ex.D.15 Original Gift Deed dtd.13.05.2004 executed by Sri.A.Krishnappa in favour of Smt.Sumithra O.S NO: 7232/1999 70 Ex.D.16 Original Gift Deed dtd.13.05.2004 executed by Sri.A.Krishnappa in favour of Smt.Shanthamma Ex.D.17 Original Gift Deed dtd.13.05.2004 executed by Sri.A.Krishnappa in favour of Smt.Bharathi Ex.D.18 Original Gift Deed dtd.13.05.2004 executed by Sri.A.Krishnappa in favour of Sri.B.K.Srinivasa
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VI Addl.City Civil & Sessions Judge Bengaluru City