Bangalore District Court
Smt. Sharadamma vs Sri. P. Chandrababu on 20 February, 2020
1
O.S.No.17317/2005
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil)
Title sheet for
AT MAYOHALL UNIT, BANGALORE.
Judgment in suits
(R.P.91)
Present: Smt. B.S. Bharathi, B.Sc., LL.B.
(Name of the presiding judge)
Dated this the 20th day of February 2020
Original suit No.17317/2005
Plaintiffs:- 1. Smt. Sharadamma,
Aged about 52 years,
W/o Late Sri. M.P.Narayanappa,
Residing at No.586, 5th Cross,
Kodihalli, Ulsoor,
Bangalore-8.
2. Smt. Lakshmi @ Lakshmamma,
Aged about 50 years,
W/o Sri. Shivanna,
Residing at No.42,
Maruthi Nagar,
Madivala, Bangalore-68.
3. Smt. Jayalakshmi,
Aged about 59 years,
W/o Sri. Nagarajappa,
Grapes Merchant, Attibele Post,
Attibele, Bangalore-560 017.
(Since deceased by Lrs).
3(a)
Sri. Nagarajappa.N,
S/o Late Nanjundappa,
Aged about 82 years,
R/o Sharadabeede
Grape Merchant,
Attibele, Bangalore.
3(b)
Smt. N. Prema,
W/o Kantharaju,
OS.No.17317/2005
2
Aged about 54 years,
R/o S.G. Kantharaju,
Sondekoppa Post,
Mallasandra,
Behind Water house building,
Dasanpura Hobli,
Bangalore-562 130.
3(c)
Sri. N. Ashwathnarayana,
S/o Nagarajappa,
Aged about 52 years,
R/o Vivekanandanagara,
Indlebele Road,
Attibele Road or Layout,
Bangalore.
3(d)
Smt. N. Parvathi,
W/o Shantharaju,
Aged about 51 years,
R/o No.9, Flat No.4,
Saisadan, 4th Cross,
Ayappa Layout,
Munneakolal,
Marathalli,
Bangalore-560 037.
3(e)
Smt. N. Triveni,
W/o Late R. Kumar,
Aged about 48 years,
Chikkannahalli,
Attibele Anekal Taluk,
Bangalore District.
Bangalore.
(By Pleader: Dr. V. Shankar)
V/s
Defendants:- 1. Sri. P. Chandrababu,
Aged about 43 years,
S/o Late Sri. P. Puttappa,
Residing at No.216,
Near Ambedkar School,
Kodihalli, Bangalore-8.
OS.No.17317/2005
3
2. Sri. P. Raju,
Aged about 41 years,
S/o Late Sri. P. Puttappa,
Residing at No.216,
Near Ambedkar School,
Kodihalli, Bangalore-8.
3. Smt. Sarvamangala,
Aged about 52 years,
W/o Sri. Jagadish,
Residing at 4th Cross,
(Owner Krishnappa's House),
N.R. Colony, Murgesh Palya,
Bangalore-17.
4. Sri. Manjunatha,
Aged about 54 years,
S/o not known to the Plaintiff,
H/o Smt. Yashodha.
5. Sri. M. Jayaprakash,
Aged about 33 years,
S/o Sri. Manjunatha,
S/o Smt. Yashodha.
6. Sri. M. Somu,
Aged about 30 years,
S/o Sri. Manjunatha,
S/o Smt. Yashodha.
7. Smt. M. Rajeshwari,
Aged about 26 years,
D/o Sri. Manjunatha,
D/o Smt. Yashodha,
The Defendants 4 to 7 above
named residing at No.2162,
Manjunatha Nilaya,
S. Ramesh Road, Pennnya,
T. Dasarahalli,
Bangalore-560 057.
8. M/s ESSPIESS PROPERTY PVT.,
LTD.
Duly represented by it's
OS.No.17317/2005
4
Director,
Sri. P. Satish Pai,
Having its Registered Office at
No.18, M.G.Road,
Bangalore-1.
9. Sri. K.G. Basavanagowda,
Aged Major,
S/o Sri. Verappa,
Residing at Kakaragolla Post,
Davangere Taluk,
Davangere District.
10. M/s G.V. Properties Pvt., Ltd.,
1st Floor, Embassy Point,
No.150, Infantry Road,
Bangalore-1.
11. Sri. S. Shivashankarappa,
Aged about 81 years,
S/o Late Sri. Shamanur Kalappa,
Residing at No.2633/1,
MCC 'B' Block,
Davangere-570003.
(By Pleader: Sri. HRA Adv., for D.1, 2, 4 to 7,
Sri. TV Adv., for D.3, Sri. JN Adv., for D.8 to 11)
Date of Institution of the suit 21.9.2005
Nature of the (Suit or pro-note, suit for Declaration
declaration and possession, suit for and Injunction
injunction, etc.)
Date of the commencement of 22.10.2011
recording of the Evidence
Date on which the Judgment was 20.2.2020
pronounced
Year/s Month/s Days
Total duration 14 04 29
OS.No.17317/2005
5
JUDGMENT
This suit is filed by the plaintiffs against the Defendants praying for partition of the suit schedule 'A' and 'B' properties by metes and bounds and to declare that the Plaintiffs No.1 to 3 herein are jointly entitled to 3/7th share in the entire schedule 'A' and 'B' properties, further, the suit schedule properties cannot be partitioned equally and amicably amongst all the co- owners in that event bring the suit schedule properties for sale and to declare that the Plaintiff No.1 to 3 herein are jointly entitled to 3/7th share out of the entire sale proceeds, for declaration that the alleged fraudulent Sale Deeds purported to have been executed by the Defendants 1 and 2 in favour of the 8 th Defendant pertaining to Item No.3 of the 'B' schedule property is void ab-initio and the same is not binding on the Plaintiffs, for declaration that the alleged fraudulent Sale Deed purported to have been executed by the 1st Defendant in favour of the 2nd Defendant pertaining to Item No.4 of 'B' schedule property is void ab-initio and the same is not binding on the Plaintiffs and for permanent injunction restraining the OS.No.17317/2005 6 Defendants No.1 and 2 from alienating or encumbering the suit schedule properties in any manner until the actual partition of the schedule properties are effected by metes and bounds and for costs and other reliefs which deems fit.
2. According to the Plaintiffs, the Plaintiffs and Defendant No.1 to 3 are the children of Late Sri. P. Puttappa and Late Smt. Rangamma. Whereas, Late Smt. Yashoda was the wife of 4 th Defendant herein and mother of the Defendant No.5 to 7 and 4 th daughter of Late Sri. P. Puttappa and Late Smt. Rangamma. The said Late Smt. Rangamma the mother of the Plaintiffs and defendants 1 to 3 herein died intestate on 18.12.1980 and subsequently Late Sri. Puttappa the father of Plaintiffs and Defendant No.1 to 3 died intestate on 16.11.1987. As such, both the Late Sri. P. Puttappa and Late Smt. Rangamma the father and mother of the Plaintiffs and Defendant No.1 to 3 died intestate leaving behind them their five daughters and two sons to succeed to all their estate by virtue of intestate succession, as contemplated under the Hindu Succession Act. The Plaintiffs herein are the co-
OS.No.17317/2005 7 owners/joint owners of the suit schedule properties. The Plaintiffs are in joint possession and enjoyment of the suit schedule properties. The Plaintiffs No.1 to 3 and the 3rd Defendant herein are the four daughters of Late Sri. P. Puttappa and Late Smt. Rangamma. The Defendant No.1 and 2 are the sons Late Sri. P. Puttappa and Late Smt. Rangamma. The 4 th Defendant who is the husband of Late Smt. Yashoda herein is the son-in- law of Late Sri. P. Puttappa and Late Smt. Rangamma. The Defendant No.5 to 7 are the grand children of Late Sri. P. Puttappa and Late Smt. Rangamma. The said Late Yashoda, the daughter of Late Sri. P. Puttappa and Late Smt. Rangamma died intestate on 20.8.2000 leaving behind Defendant No.4 to 7 as her surviving legal heirs. Originally, Late Smt. Rangamma the mother of the Plaintiffs and Defendants No.1 to 3 was the absolute owner of the immovable property and the same is described in the schedule 'A' hereunder. Late Smt. Rangamma acquired the aforesaid 'A' Schedule Property by virtue of a registered Sale Deed dtd:
3.12.1971 and duly registered as Document No.4043 of Book I, Volume 899 and between Pages 123 to 124 at the Office of the Sub-Registrar, South Taluk, Bangalore.
OS.No.17317/2005 8 The said Late Smt. Rangamma was selling milk and milk products, besides she was also selling grass etc., and out of the aforesaid income and by selling her jewelries she had purchased the aforesaid property in question. As such the aforesaid property is the absolute and self-acquired property of the said Late Smt. Rangamma. Originally Late Sri. P. Puttappa the father of Plaintiffs and Defendants No.1 to 3 herein was the absolute owner of the immovable properties and the same is described as Item No.1 to 4 in the suit 'B' schedule hereunder. Late Sri. P. Puttappa acquired the Item No.1 property by virtue of a registered Sale Deed and as such it was the absolute property of Late Sri. P. Puttappa.
3. Late Sri. P. Puttappa was originally the absolute owner of Item No.2 immovable property to an extent of 0.20 guntas in Sy.No.7/1, Venkoji Rao Khane, situated at Venkatapura, Bangalore South Taluk, Bangalore and the aforesaid property was acquired by the BDA and the BDA had awarded compensation amount to the extent of Rs.46,980/- vide LAC No.313/1986-87, besides the aforesaid compensation OS.No.17317/2005 9 amount the BDA had also allotted a compensatory site measuring 30 X 40 feet at HSR Layout, Bangalore. By suppressing the true facts the Defendant No.1 and 2 has withdraw the compensation amount and they have not apportioned the legitimate share to the respective co-sharers. Whereas the said Late Sri. P. Puttappa was also originally the absolute owner of the Item No.3 immovable property to an extent of 25 guntas in Sy.No.102/A and situated at Chellaghatta Village, Yamulur Post, Bangalore South Taluk, Bangalore and he acquired the said property by virtue of a Registered Sale Deed and as such it was the absolute property of Late Sri. Puttappa. The Defendant No.1 and 2 by suppressing the true facts have executed a fraudulent deed of sale in favour of the 8 th Defendant. As such all the co-owners are not parties to the aforesaid fraudulent deed of sale and as such same is a nullity in the eye of law and same is void ab-initio and the same is not binding upon the Plaintiffs and the other co- owners of the said property. It is a settled principle of law that no person can transfer a better title than he possesses himself. Consequently, the Plaintiffs are constrained to seek for a declaratory relief against the OS.No.17317/2005 10 8th Defendant that the alleged sale transactions are void ab-initio and not binding upon the Plaintiff. Whereas, the said Late Sri. P. Puttappa was also originally the absolute owner of the Item No.4 property to an extent of 1.25 acres in Sy.No.225 situated at Begepalli Village, Hosur Taluk, Dharmapuri. The Defendant No.1 and 2 by suppressing the true facts have executed the fraudulent sale deed in favour of the other. All the co-owners are not parties to the aforesaid fraudulent Sale Deeds and as such the same is void ab- initio and the same is not binding upon the Plaintiffs and the other co-owners of the property. It is a settled principle of law that no person can transfer a better title than he possesses himself. The alleged transaction is void ab-inition and not binding on the Plaintiffs. The Defendant No.1 and 2 by virtue of the fraudulent Deed of Will have executed the aforesaid fraudulent Sale Deeds, even though Late Sri. P. Puttappa has not executed any Will.
The Plaintiffs and the Defendants being the legal heirs of Late Sri. P. Puttappa and Late Smt. Rangamma have inherited a share each in all properties of Late OS.No.17317/2005 11 Sri. P. Puttappa and Late Smt. Rangamma by virtue of the Hindu Succession Act. They are entitled for 1/7th share each in the entire suit schedule 'A' and 'B' properties. They are also entitled for 1/7th share each of the entire rents derived from the said suit schedule 'A' and 'B' properties. The Defendant No.1 and 2 have leased several portions in the said suit schedule 'A' and 'B' properties and are collecting the rents from the same without giving the due share to the Plaintiffs. They have also failed to give the legitimate 1/7th share each in the said suit schedule 'A' and 'B' properties inspite of several requests. The Plaintiff No.1 and 2 and Defendant No.3 had filed a suit for partition in OS.No.10465/1991 on the file of Addl. City Civil Judge, Mayo Hall, Bangalore, the said suit was not prosecuted and hence the same came to be dismissed for non- prosecution. As such the suit schedule properties are yet to be partitioned by metes and bounds. The Plaintiff having no other option has filed the present suit for partition and for consequential other reliefs. The Defendant No.1 and 2 are making hectic attempts to alienate the suit schedule properties by suppressing the true facts. The cause of action arose on 18.12.1980 OS.No.17317/2005 12 when the said Late Sri. P. Puttappa and Late Smt. Rangamma died intestate on 16.1.987 and subsequently within the jurisdiction of this Hon'ble Court. This suit is in time.
According to the Plaintiffs, the Plaintiffs No.1 to 3 are entitled for 3/7th share in the entire suit schedule 'A' and 'B' properties. If the suit schedule properties cannot be partitioned amicably and in that even the suit schedule property can be sold and the Plaintiffs No.1 to 3 have to be given 3/7th share in the entire sale proceeds. Hence, prays for decreeing the suit.
4. In pursuance of the suit summons the Defendants have appeared through their counsel and have filed the written statement.
After filing of the suit the Defendant No.3 died and his LRs were brought on record.
The Defendant No.1, 2, 4 to 7 have filed written statement admitting the relationship between the Plaintiffs and these Defendants. It is contended by these Defendants that Late Sri. P. Puttappa when he was hale and healthy and in a sound state of disposition had executed a Will dtd: 16.4.1986 OS.No.17317/2005 13 bequeathing his properties in favour of the beneficiaries mentioned therein. After the death of P. Puttappa, the Will came into force and the beneficiaries under the Will are enjoying their respective shares as mentioned under the Will. The Plaintiffs herein do not have any right, title, interest or possession in or over the suit schedule properties. They are not in possession of any portion of the plaint schedule properties. It is denied that Late Smt. Rangamma was the absolute owner of 'A' schedule property and she acquired the same by virtue of registered deed of sale dtd:
3.12.1971 and she purchased the same by the amount earned by selling grass and selling her jewelries are denied. According to these Defendants the property belongs to Sri. P. Puttappa and nominally he purchased the property in the name of his wife. It is admitted that Late P. Puttappa was the absolute owner of the Item No.1 to 4 of the 'B' schedule property. It is denied that Item No.2 of the property was acquired by BDA and Rs.46,980/- compensation was given by the BDA and site measuring 30 X 40 feet at HSR layout are given to Defendant No.1 and 2.
OS.No.17317/2005 14 It is admitted that Late P. Puttappa was the absolute owner of the Item No.3 of the 'B' schedule property. It is denied that suppressing the true facts the Defendant No.1 and 2 have executed fraudulent deed of sale favour of the 8 th Defendant and hence, the said sale deed is not binding on the Plaintiff. It is stated that court fee paid by the Plaintiff is insufficient.
It is denied that Late P. Puttappa was the absolute owner of Item No.4 of the suit schedule property and by suppressing the true facts fraudulent sale deed is executed by the Defendant No.1 and 2 and hence it is not binding on the Plaintiffs. It is denied that by virtue of fraudulent deed of Will they have executed fraudulent sale deeds.
It is denied that Plaintiffs have got share as per Hindu Succession Act in the suit properties. All other facts are denied. However, it is admitted that OS.No.10465/1991 which was filed by the Plaintiffs No.1 to 3 and Defendant No.1 was dismissed for default. According to these Defendants, since 1980 and 1987 the Plaintiffs have kept quite and have not taken any steps and with malafide intention and to get wrongful gain they have filed this suit.
OS.No.17317/2005 15 The Defendants No.1 and 2 have filed additional written statement stating that the Plaintiffs are aware that except schedule 'A' property and Item No.1 of 'B' schedule property all are alienated during the lifetime of father of this Defendants and Plaintiffs and it is within the knowledge of the Plaintiffs. It is stated that Item No.3 of the suit property measuring 28 guntas is false. The Item No.3 was sold long back during the lifetime of father of Defendant No.1 and 2. The 2nd Plaintiff filed a memo stating that she has no interest to continue the case and praying for dismissing the case. This clearly establishes that Plaintiffs are aware of the facts that Item No.3 of the suit schedule property is alienated during the lifetime of the father of the Plaintiffs and Defendants.
The additional written statement is filed by the Defendant No.1 and 2 stating that Late Puttappa has executed Will on 16.4.1986 bequeathing his property in favour of his beneficiaries. The 3rd Defendant has no right over the suit property. The 3 rd Defendant was looked after by the Defendant No.1 and 2 and her marriage was also performed. The 3 rd Defendant is OS.No.17317/2005 16 aware that except the property mentioned in the schedule 'A' and Item No.1 of the 'B' schedule the other properties have been sold. The 3rd Defendant has also sought for share after the lapse of decades. Hence, the 3rd Defendant is not entitled for any share. Hence, prays for dismissing the suit on several other grounds.
The 3rd Defendant has filed written statement admitting the relationship and stated that Plaintiffs are in joint possession and enjoyment of the suit property. It is denied that Rangamma has acquired the suit property by selling her jewelries. According to this Defendant No.3, property i.e., 'A' schedule property belong to P. Puttappa and nominally purchased in the name of his wife Rangamma. It is admitted that the Item No.1 to 4 properties are the absolute properties of Late Rangamma. Though originally at the time of filing written statement execution of Will is admitted by the Defendant No.3 later it was deleted and Defendant No.3 has contended that she is the coparcener of the suit schedule properties and she is entitled for her share along with the Plaintiffs and Defendant No.1, 2 and 4.
OS.No.17317/2005 17 The Defendant No.8 has filed written statement stating that the land bearing Sy.No.10 situated at Challaghatta Village, Varthur Hobli, Bangalore South Taluk, measuring 3 acres 20 guntas earlier belonged to Muniyappa son of Sadaravenkatappa. He had purchased the said land from its previous owner Madakka vide Sale Deed dtd: 3.4.1912, registered in the office of the Sub-Registrar, Bangalore Taluk. Sri. Muniyappa had three sons, Ugarappa, Muniswami alias Muniswamappa and Papanna alias M. Papaiah. After the death of Muniyappa, his three sons named above partitioned the above said land whereunder an extent of 1 acre 4 guntas fell to the share of Ugarappa, 1 acre 28 guntas to Muniswami and 28 guntas to Papanna. Sri. Ugarappa son of Muniyappa, out of his share, sold an extent of 22 guntas to his brother Muniswami and another extent of 22 guntas to Papaiah vide two registered Sale Deeds dtd: 8.5.1935. Thereafter on 6.2.1944 Muniswami and Papanna together reconveyed the land measuring 1 acre 4 guntas, which was originally held by Ugarappa, back to Ugarappa. Thereby Ugarappa became owner of 1 acre 4 guntas in Sy.No.10/2. Further, on 3.6.1955 Ugarappa sold his OS.No.17317/2005 18 share of 1 acre 4 guntas to his brother Muniswamy. Thereby, after the end of the said transactions Sri. Muniswami became owner of 2 acres 32 guntas of land in Sy.No.10/2 and Papanna remained owner of 28 guntas of land in the said survey number. Sri.Papanna had two sons P. Ramaiah and P. Puttappa. After the death of Papanna, his two sons P. Ramaiah and P. Puttappa partitioned the property under a Deed of Partition dtd:10.11.1966, which was registered as Document No.4477/1966-67 in Book-I, Volume 590, pages 201 to 208. P. Puttappa son of Papanna died intestate leaving behind his two sons P. Chandrababu and P. Raju i.e., Defendant No.1 and 2 as his legal heirs. Sri. P. Chandrababu and Sri. P. Raju along with P. Ramaiah and his legal heirs sold the agricultural land measuring 28 guntas comprised in Sy.No.10/2A of Challaghatta Village, Varthur Hobli, Bangalore East Taluk, in favour of K.G. Basavanagowda son of Verappa, vide Sale Deed dtd: 9.6.2005, which is registered before the office of the Sub-Registrar, Bangalore South Taluk, as document. By virtue of the said purchase the said person K.G. Basavanagowda has become the absolute owner and in possession of the said land OS.No.17317/2005 19 measuring 28 guntas in Sy.No.10/2A of Challaghatta Village, Varthur Hobli, Bangalore East Taluk. The khatha and other revenue records are changed in the name of the said person. All other contents are denied by this Defendant. According to this Defendant, the Plaintiff has not made P. Ramaiah and K.G. Basavangowda son of Veerappa as parties to the suit and hence the suit is bad for non-joinder of necessary parties. According to this Defendant, the Plaintiffs are not entitled for any share in the suit property. Hence, prays for dismissing the suit on several other grounds.
The Defendant No.9 i.e., K.G. Basavana Gowda later impleaded has filed written statement denying all the contents of the plaint averments. It is the contention of Defendant No.9 that this Defendant is concerned only with Item No.3 of the Plaint 'B' schedule property i.e., Sy.No.10/2A situated at Challaghatta Village measuring 25 guntas. The total extent in Sy.No.10/2 is 3 acres 20 guntas and it originally belonged to one Nagappa and after his death, his mother Madakka has sold the entire extent of 3 acres 20 guntas to one Muniyappa son of Sadara Venkatappa, under a registered Sale Deed dtd:
OS.No.17317/2005 20 3.4.1912 and the said Muniyappa was in possession and enjoyment of the said extent. After the death of Muniyappa, his three sons Ugrappa, Muniswamappa alias Muniswami and Papanna succeeded to the said property and in the course of partition amongst them 1 acre 4 guntas fell to the share of Ugrappa, 1 acre 28 guntas fell to the share of Muniswamappa alias Muniswami and 28 guntas fell to the share of Papanna and they were in possession of the same. This Defendant No.9 has contended the same facts as contended by the Defendant No.8 in the written statement. It is the contention of this Defendant that he has purchased the said 28 guntas of land as stated by the Defendant No.8 in the written statement.
According to this Defendant No.9, the execution of the sale deed was joined by M. Krishnappa and his two brother who are the children of Muniswamappa @ Muniswami in acceptance of the sale made by the Defendant No.1 and 2 and P. Ramaiah and his children and by Suhasini Enterprises and ESSPIESS Property Pvt., Ltd., as confirming parties in their favour earlier by the Defendant No.1 and 2 and their uncle Ramaiah and his children. On the same day i.e., 9.6.2005, the OS.No.17317/2005 21 children of the branch of Muniswamappa alias Muniswami Krishnappa and others have sold to this Defendant 38 guntas in Sy.No.10/2B under registered sale deed and delivered possession and hence, this Defendant No.9 has became the owner of 28 guntas in Sy.No.10/2A, 38 guntas in Sy.No.10/2A aggregating to 66 guntas i.e., 1 acre 26 guntas. Later on this Defendant sold 28 guntas in Sy.No.10/2A which was purchased by his paternal uncle and his children under registered sale deed and 38 guntas in Sy.No.10/2B under separate registered sale deed dtd: 29.7.2006 and delivered the possession to Sri. S. Shivashankarappa. On the same day i.e., on 29.7.2006 Sri. K.N. Manjunath sold 1 acre 4 guntas in Sy.No.10/2A to Sri. S. Shivashankarappa. Sri.S.Shivashankarappa became owner of 1 acre 32 guntas in Sy.No.10/2A and 38 guntas in Sy.No.10/2B of the suit village. On 4.1.2007 Sri. A. Ramakrishna entered into Partnership Firm known as Century Golfinks with one Sri.Ashwin Pai and Sri. Ravindra Pai and Sri. A. Ramakrishna contributed the extent of 30 guntas owned by him in Sy.No.10/2B towards capital investment. Later Sri. S. Shivashankarappa and the abovesaid Partnership Firm OS.No.17317/2005 22 Century Golfinks entered into an registered Joint Development Agreement dtd: 31.1.2007 with M/s G.V. Properties Pvt., Ltd., and developed the entire extent of 3 acres 20 guntas which was originally comprised in Sy.No.10/2, by constructing a multistoreyed commercial complex for software activities after getting the plan approved and licences and other permissions for change of land ue etc., and Sri. S. Shivashankarappa and Centrury Golfinks and G.V. Properties, who are Developers are in possession of the said property paying tax to BBMP. According to this Defendant, neither the Plaintiffs nor the Defendant No.1 to 7 have any right or interest in Item No.3 of the Plaint 'B' schedule property and hence prays for dismissing the suit with exemplary costs.
The Defendant No.10 i.e., M/s G.V. Properties Pvt., Ltd., has filed written statement adopting the contents of the written statement of Defendant No.8 and 9. It is also submitted by the Defendant No.10 that Sri. S.Shivashankarappa and the Partnership Firm Century Golfinks who were the absolute owners of the Item No.3 of the schedule property entered into a registered Joint Development Agreement dtd: 31.1.2007 with M/s OS.No.17317/2005 23 G.V. Properties Pvt., Ltd., the Developers i.e., the Defendant No.10 and developed the entire extent of 3 acres 20 guntas which was originally comprised in Sy.No.10/2, by constructing a multistoreyed commercial complex for software activities after getting the plan approved and licences and other permission for change of land use etc., and S. Shivashankarappa and Century Golflinks who are the owners and G.V. Properties, who are Developers are in possession of the said property as absolute owners and are paying taxes to BBMP. It is submitted that subsequnetly after execution of the aforesaid Joint Development Agreement, under the terms of the Sharing Agreement dtd: 6.9.2007 entered into between Sri. S. Shivashankarappa, Century Golflinks and this Defendant, Sri. S. Shivashankarappa and Century Golflinks the owners have got 45% of the total super built up area of the commercial building and this Defendant the Developers got 55% of the total super built up area of the commercial building, among other things and the said agreement is acted upon and Sri. S. Shivashankarappa and Century Golflinks and this Defendant are in possession of their respective OS.No.17317/2005 24 percentage of shares mentioned above as agreed under the above said Sharing Agreement in respect of 3 acres 20 guntas of land bearing Sy.No.10/2A and 10/2B of Challaghatta Village, Varthur Hobli, Bangalore East Taluk, mentioned in the schedule of the aforesaid share agreement. Neither the Plaintiff nor anybody else is entitled to and is in possession of any portion of the abovesaid extent of 3 acres 20 guntas in any manner and to any extent and particularly the extent of 25 guntas mentioned in Item No.3 of the plaint schedule with which this Defendant and Defendants 8 and 9 are concerned. Sri. Shivashankarappa, Century Golflinks and this Defendant have leased out areas in the commercial building built on the above said extent of land measuring 3 acres 20 guntas in accordance with the said sharing pattern, to several tenants who are registered Multinational Companies and the said tenants are carrying on their business activities in the portions let out to them. It is also submitted that this Defendant has borrowed a huge loan from the Financial Institution on its share of commercial building. The suit is bad for non-joinder of the abovesaid S. Shivashankarappa, Century Golflinks the owners of the OS.No.17317/2005 25 Item No.3 of the schedule property and the tenants occupying the commercial building who are necessary parties for complete and effective adjudication of the above said suit and hence prays for dismissing the suit on several other grounds.
The additional written statement is also filed by the Defendant No.10 denying the plaint averments. It is also stated that the suit is barred by limitation. The amendment made by Plaintiff only with the malafide intention. The Defendant No.3 has taken contradictory pleas in her written statement and the same is vexatious.
The Defendant No.11 has filed written statement adopting the written statement of Defendant No.8 to
10. According to Defendant No.11, he is the owner of the portion of residentially converted land bearing Sy.No.10/2A and 10/2B, measuring in all 2 acres 30 guntas, situated at Challaghatta Village, Varthur Hobli, Bangalore East Taluk, Bangalore and he is the bonafide purchase of the same. He acquired the aforesaid residentially converted lands bearing Sy.No.10/2A measuring 1 acre 32 guntas, Sy.No.10/2B, measuring 38 guntas of Challaghatta Village, Varthur Hobli, OS.No.17317/2005 26 Bangalore East Taluk, Bangalore under the three registered sale deeds for a lawful consideration, aggregating to 2 acres 30 guntas and the details of the sale deeds executed in his favour are as under:-
(i) Sale Deed dtd: 29.7.2006 executed by Sri. K.N. Manjunatha son of K. Nandyappa in favour of Sri. S. Shivashankarappa son of Shamnur Kalappa in respect of residentially converted land bearing Sy.No.10/2A, measuring 1 acre 4 guntas of Challaghatta Village.
(ii) Sale Deed dtd: 29.7.2006 executed by Sri. K.G. Basavana Gouda son of Veerappa in favour of Sri. S. Shivashankarappa son of Shamnur Kalappa in respect of residentially converted land measuring 38 guntas out of 1 acre 28 guntas comprised in Sy.No.10/2 (as per revenue records Sy.No.10/2B) of Challaghatta Village.
(iii) Sale Deed dtd: 29.7.2006 executed by Sri. K.G. Basavana Gouda son of Veerappa in favour of Sri. S. Shivashankarappa son of Shamnur Kalappa in respect of residentially converted land measuring 28 guntas comprised in Sy.No.10/2A (Sy.No.10/2A1 and 10/2A2 as per revenue records) of Challaghatta Village.
OS.No.17317/2005 27 According to this Defendant, on 4.1.2007 Sri. A. Ramakrishna entered into a Partnership Firm known as Century Golflinks and contributed the extent of 30 guntas of converted land owned by him in 10/2B of Challaghatta Village, towards capital investment.
The Defendant N.11 along with Century Golflinks, a registered Partnership Firm entered into a Joint Development Agreement dtd: 31.1.2007 with the Company M/s G.V. Properties Pvt., Ltd., a company incorporated under the Companies Act, 1956, represented by its Director, Mr. Jitendra Virwani, for the purpose of development of the entire extent of 3 acres 20 guntas of converted land for the construction of multistoried commercial complex for software purpose and the said Joint Development Agreement dtd:
31.1.2007 was registered in the office of the Sub-
Registra, Bangalore South Taluk, Bangalore. In terms of the aforesaid Joint Development Agreement, this Defendant and Century Golflinks are entitled to 45% share in the aforesaid lands and the said Company is entitled to 55% share in the aforesaid lands. He has contended the same facts as contended by Defendant OS.No.17317/2005 28 No.8 to 10. According to this Defendant, the court fee paid by the Plaintiff is not proper. Hence, prays for dismissing the suit on several other grounds.
5. Basing on the aforesaid pleadings this Court has framed the following issues:-
1. Whether the Plaintiffs prove that the suit properties are the joint family properties liable for partition?
2. Whether the Plaintiffs are entitled for 3/7th share in the suit properties?
3. Whether the sale deed executed by D.1 and 2 in favour of 2nd and 8th Defendant pertaining to item No.3 & 4 in 'B' schedule properties are void, not binding on Plaintiffs?
4. Whether Defendant No.8 proves that D.1 and 2 being the absolute owner of Item No.3 in 'B' schedule properties sold to Defendant No.9 on 9.6.2005, who became absolute owner of the same?
5. Whether Defendant No.8 proves that Late Puttappa executed a Will on 16.4.1986 bequeathing his properties to the beneficiaries under the Will?
6. What order or decree?
ADDITIONAL ISSUES
1. Whether the D.11 proves that he is the bonafide purchaser of suit properties for valuable consideration without notice ? (Dated 30/09/2010) OS.No.17317/2005 29
2. Whether the Defendant No.8 to 10 proves that the suit is barred by limitation? (Dated 30/09/2010)
3. Whether the Defendant No.3 proves that she is the joint owner of the Plaint Schedule Properties and is entitled for 1/7th share in the Plaint Schedule Properties? (Dated 25/01/2017)
4. Whether the Plaintiffs have right to file this suit in view of Order IX Rule 9 CPC as the earlier suit in O.S.No. 10465/1991 was dismissed for default ? (Dated 31/01/2010)
6. In support of the case of the plaintiff, the plaintiff No.1 got examined herself as P.W.1 and got marked documents as per Ex.P.1 to Ex.P.6 and closed her side. The defendant No.1 was examined as DW1 and got marked Ex.D.1 to Ex.D.18. 4th defendant was examined as DW2, on behalf of defendant No.10 DW3 was examined and got marked Ex.D.19 to Ex.D.59/61. On behlf of defendant No.1 DW4 was examined, Defendant No.3 was examined as DW5.
7. Heard, the learned counsel for the Plaintiffs and Defendants and perused the written arguments submitted by the Plaintiffs and written arguments and also additional written arguments and decisions filed by Defendants.
OS.No.17317/2005 30
8. My answer to the aforesaid issues is as follows:-
Issue No.1 : In the Affirmative, Issue No.2 : In the Affirmative, Issue No.3 : Does not arise for consideration, Issue No.4 : In the Negative, Issue No.5 : In the Negative, Addl.Issue No.1 : In the Negative, Addl.Issue No.2 : In the Negative, Addl.Issue No.3 : In the Affirmative, Addl.Issue No.4: In the Affirmative, Issue No.6 : As per final order for the following :-
REASONS
9. This suit is filed by the plaintiffs against the Defendants for partition of the suit schedule 'A' and 'B' properties by metes and bounds and for declaring that the Plaintiffs No.1 to 3 are jointly entitled to 3/7th share in the entire schedule 'A' and 'B' properties, further, the suit schedule properties cannot be partitioned equally and amicably amongst all the co-owners, in that event for sale and for declaring that the Plaintiff No.1 to 3 are OS.No.17317/2005 31 jointly entitled to 3/7th share out of the entire sale proceeds. It is also prayed for declaring that the Sale Deeds purported to have been executed by the Defendants 1 and 2 in favour of the 8 th Defendant pertaining to Item No.3 of the 'B' schedule property is void ab-initio and the same is not binding on the Plaintiffs. It is also prayed for declaring that the fraudulent Sale Deed purported to have been executed by the 1st Defendant in favour of the 2nd Defendant pertaining to Item No.4 of 'B' schedule property is void ab-initio and not binding on the Plaintiffs and for permanent injunction restraining the Defendants No.1 and 2 from alienating the suit schedule properties in any manner and for costs and other reliefs.
10. Addl. Issue No.4 dated 31.01.2019 :-
Before discussing other issues it is necessary for this Court to consider Additional Issue No.3 dtd: 31.1.2019. According to the contention of the Defendants, since the Plaintiff had earlier filed OS.No.10465/1994 which was dismissed for default, this suit is not maintainable.
OS.No.17317/2005 32 As per Ex.D.17 produced by the Defendant No.1 and 2 , the earlier Plaintiff No.1 and 2 and Defendant No.3 had filed suit for partition and separate possession in respect of 'A' schedule property and Item No.1 of 'B' schedule property of this case and that was dismissed for default. Therefore, according to the Advocate for Defendant No.1 and 2 as per the Judgment of Hon'ble Supreme Court in Civil Appeal No.6424/2019 between Mayandi V/s Pandarachamy and Others, once the suit is dismissed for default under Order IX Rule 8 CPC as the counsel for the Defendant was present and counsel for the Plaintiff was absent, as per Order IX Rule 9 the Plaintiff cannot file a fresh suit. Therefore, the Hon'ble Supreme Court in that case has held that the contention of the Plaintiff in that suit is on different cause of action cannot be accepted and hence held that fresh suit is barred. In the said suit the Plaintiffs have filed that suit for declaring the title of the Plaintiff No.2 to 4 of the Plaint 1 st Schedule property and for consequential injunction basing on the Will. The said suit was dismissed for default. Therefore, the Hon'ble Supreme Court has held as above in Civil Appeal No.6424/2019.
OS.No.17317/2005 33 As per the Judgment relied by Advocate for Plaintiff between Smt. Ashabai V/s Madhusudhan dtd:
16/6/2017 the Hon'ble High Court of Bombay has held as follows:
" Civil Procedure Code, 1908-Order 9, Rule 9-Dismissal of suit for default-Word "plaintiff" in Rule 9 of Order 9, would also include his assigns and legal representatives- Mere fact that purchaser was not plaintiff in earlier suit cannot be a valid ground for not considering application of bar under provisions of Rule 9 of Order 9 of Code- Purchaser claims to have purchased suit property from plaintiff in earlier suit and he would have to get over legal bar as imposd in Order 9, Rule 9 of Code.
Civil Procedure Code 1908-Order 9, Rule 9-Dismissal of suit for default-Cause of action for a suit for partition is a continuing cause of action-Where a partition suit is dismissed for default it does not bar a subsequent suit as even after dismissal of former suit, jointness continues and there is a continuing cause of action."
OS.No.17317/2005 34 Advocate for plaintiff has also relied on Judgment of the Honorable Supreme Court between State of U.P. & Another V/s. Jagdish Saran Agarwal & Others, dated 25.11.2008 which reads thus :
"....................... Therefore Order IX Rule 9 can not be said to be applicable. The dismissal of the suit for non-prosecution was not a decision on merit. Consequently, the said order cannot operate as Resjudicata."
The facts of that case was the suit which was filed for partition was dismissed for default. Other side has taken contention that the fresh suit is not maintainable. However, Hon'ble Supreme Court had held that the cause of action for suit for partition is continuing cause of action. The partition suit dismissed for default does not bar subsequent suit, even after dismissal of former suit, jointness continues and there is a cause of action. Therefore, even though the Advocate for Defendant No.1 and 2 has relied on the Judgment of Hon'ble Supreme Court, as per the facts of that case it is clear that, the Judgment was given by the Hon'ble Supreme Court in respect of a suit for declaration and for OS.No.17317/2005 35 permanent injunction and not in respect of suit for partition. Therefore, the court has to consider the Hon'ble Bombay High Court wherein the facts are similar to the facts of this case on hand. The Hon'ble Bombay High Court by considering the fact that the suit was filed for partition has held that the second suit is not barred. As per the judgment of Hon'ble Supreme Court in many cases in order to consider the applicability of any decision, the facts must be identical. Herein the Judgment relied by Defendant Nos. 1 and 2, the prayer is different. However, the facts of Honorable Bombay High Court is exactly similar to this case. Even in the decision of Honorable Himachal Pradesh reported in AIR 2003 Himachal Pradesh 32 between Asha Sharma & Others, Appellants v/s. Amarnath and Others, Hon'ble High Court has held as under :
"(B) Civil P.C. (1908), O.20, R.18, O.9, R.9, S.11-Partition-Earlier suit dismissed for default-
Restoration refused-Subsequent suit not barred-Cause of action in partition cases is continuous."
OS.No.17317/2005 36 Therefore, I feel that the suit is maintainable. Hence, I answer Additional Issue No.4 dtd: 31.1.2019 is in the Affirmative.
11. ISSUE NO. 1 TO 5, ADDL. ISSUE No.1, 2 & ADDL.ISSUE No.3 :- Since these issues are connected, they are taken together. The Plaintiff No.1 who was examined as PW.1 in her evidence says that Plaintiffs and Defendant No.1 to 3 are the children of Late Sri. P. Puttappa and Late Smt.Rangamma. The Defendant No.5 to 7 are the children of deceased Yashodamma and Defendant No.4 is the husband of deceased Yashodamma who is also the daughter of Sri. P. Puttamma and Smt. Rangamma. She says that her mother died on 18.12.1980 and she died intestate. Subsequently, her father Sri. P. Puttappa also died on 16.1.1987. Hence, according to the Plaintiffs, both their parents died intestate leaving behind, their five daughters and two sons to succeed to all their estate by virtue of intestate succession. Hence, according to her, the Plaintiffs and Defendant No.1 to 7 are in joint possession as co-owners. She says that 3 rd Defendant herein and deceased Yashodha are the five daughters OS.No.17317/2005 37 of her parents Late Rangamma and Late P. Puttappa. Accordingly Defendant No.1 and 2 are the sons of her parents. She says that her sister Yashoda died intestate on 20.8.2000 leaving behind Defendant No.4 to 7 as her surviving legal heirs. Originally their mother Late Smt. Rangamma was the absolute owner of the suit schedule 'A' property. She says that Late Smt. Rangamma acquired the suit schedule property by registered sale dtd: 21.10.1971 as per Ex.P.1 and duly registered as No.4043 of Book I, Volume 899 and between pages 123 to 124 at the office of the Sub- Registrar, South Taluk, Bangalore. She says that her mother Smt. Rangamma was selling milk and milk products and she was also selling grass et., and also by selling her jewelries her mother purchased the suit 'A' schedule property. Hence, according to her 'A' schedule property is the self-acquired property of her mother Smt. Rangamma. In support of her contention she has produced the said sale deed dtd: 21.10.1971 at Ex.P.1.
The Defendant No.1 to 7 are the family members of the Plaintiff and Defendant No.8 to 11 are the purchasers of the Item No.3 of 'B' schedule property.
OS.No.17317/2005 38 The Defendant No.1 who was examined as DW.1 in his evidence says that his father Sri. P. Puttappa had executed Will dtd: 16.4.1986 bequeathing his properties in favour of the 2nd Defendant. According to him the said Will was executed when the father of the Defendant No.1 and 2 was in a sound and disposing stating of mind and he was healthy. He says that as per the beneficiaries in the Will they are enjoying the suit property. He says that his Father purchased Property bearing Khatha No.665 of Kodihalli Village i.e., 'A' Schedule Property in the name of his wife i.e., his mother Smt. Rangamma. After the purchase of the property his father built a house and he was paying a taxes to the concerned authority. After the death of his father he and his brother were paying taxes to the concerned authority. He also says that during the lifetime of his father he performed the marriage of his daughters namely Smt. Sharadamma, Smt. Lakshmamma, Smt. Jayalakshmi and Smt. Yashodha and spent huge amount and has gifted valuable jewels and given some properties to them. After the death of their father they performed the marriage of their sister Smt.Sarvamangala in a grand manner and spent huge OS.No.17317/2005 39 amounts and gifted jewels as per the wishes of their father. Hence, according to him, inspite of that the Plaintiff has filed this suit. He also contends that except schedule 'A' and item No.1 of the 'B' schedule properties, all other properties have been sold. He says that Item No.3 of the 'B' schedule property was allotted to Puttappa in a partition dtd: 10.11.1966 between him and his brother Ramaiah, which was registered before the jurisdictional Sub-Registrar, Sri. Puttappa got approximately 14 guntas. He says that Defendant No.1 and 2 have an undivided 1/3rd share each and his father had only 1/3rd share in respect of that property. Hence, according to this witness, the Plaintiffs cannot make claim on entire estate. His father entered into an agreement in respect of the suit property. According to the Defendants, the suit in respect of Item No.2(B) and Item No.4 of 'B' schedule property is bad, as purchasers are not made the parties to the suit. The sale is much prior to the institution of the suit and the sale is within the knowledge of the Plaintiffs. As per his evidence, it is clear that the Defendant No.1 and 2 have clearly contended that Item No.2(B) and 4 of 'B' schedule property are already sold, however the OS.No.17317/2005 40 purchasers are not made as parties in this suit and it is sold prior to the filing of the suit. Therefore, it is clear that inpsite of contention taken by the Defendant No.1 and 2 the Plaintiffs have not made the purchasers of the suit property item No.2(B) and item No.4 of 'B' schedule properties as parties to the suit. He says that Item No.1 of the 'B' schedule property was also allotted to the share of P. Puttappa.
12. The Defendant No.4 who was examined as DW.2 in his examination-in-chief has stated that his father-in-law executed Will dtd: 16.4.1986 as per Ex.D.5 and Puttappa's signed on the Will is in his presence. Even though in the examination-in-chief supports the version of DW.1 regarding execution of the Will by the deceased Puttappa, in the cross- examination he says that when the Ex.D.5 Will was executed he was on duty and 1st Defendant obtained his signature on the Will Ex.D.5 by coming to him. He also say that when he signed on Ex.D.5 only the 1 st Defendant and he was present and another witness Murthy was not present at the time when he signed on the Will. During the cross-examination he also says OS.No.17317/2005 41 that when he signed on Ex.D.5, he did not understand the contents of Ex.D.5. He also says that he has not read the contents of the affidavit evidence. Later in the re-examination he says that he has read the contents of the affidavit. Therefore, it is clear that even though in the examination-in-chief he says that Puttappa signed on the Will in his presence and he and another witness Murthy were witnesses to the said Will and Puttappa signed on the Will after the contents of the Will was read over to Puttappa. During the cross- examination he says that his signature was obtained by defendant Nos.1 and 2 stating that his signature is required for change of Khata. He also says that Putappa has not signed on the will in his presence and he does not know another signatory to the will by name Murthy. Therefore, it is clear that even though Defendant No.1 and 2 has relied on Will dtd: 16.4.1986 said to have been executed by deceased Puttappa as per Ex.D.5 the Defendant No.1 and 2 have not proved the same and given corroborative evidence regarding the same. Even though in order to prove the Will Defendant No.1 and 2 have examined one of the attesting witness as DW.2, the evidence given by this OS.No.17317/2005 42 witness will not help the Defendant No.1 and 2 in proving the execution of the Will by their father as per Ex.D.5 dtd: 16.4.1986. Even during the cross- examination he says that he does not know the another witness Murthy who has signed on the Will. He says that the Defendant No.1 and 2 obtained his signature stating that they have to change khatha of the property. That means in the cross-examination he take U-turn and has not supported the case of the Defendant No.1.
13. It is the contention of the plaintiffs that, will is created document. It is orally argued by the plaintiff advocate and defendant No.3 advocate stating that, the Will is a created document. Even in the written arguments filed by the defendant No.3 he has stated that 'Will' is surrounded by suspicious circumstances and in his written arguments he has mentioned the suspicious circumstances as to why the said Late D.Puttappa has not given any property to his daughters and why he has not give any preference for the marriage of his daughter and gave all properties to his son's alone and Will is not registered. It is also OS.No.17317/2005 43 contended that, whether the beneficiaries were aware of the Will and who secured the Will and why these benefices did not reveal it at the earliest stage. Eventhough this defendant No.3 who has filed written statement has admitted the execution of the Will, later on, he has denied the execution of the Will and sought for equal share in the property along with other family members. In the written arguments he has also discussed about the evidence of DW2 i.e., discrepancies in the evidence of DW2. Therefore, according to defendant No.3 the Will is not proved by the defendant No.1 and 2. The plaintiffs, who have filed written arguments have also contended that Ex.D.5 is a created Will and only witness examined by the defendant No.1 and 2 i.e., DW2 (defendant No.4) has not supported the case of the defendant No.1 and 2. This witness DW2 in his statement has stated that, neither Late D.Puttappa nor 2nd witnesses to the said Will Sri Murthy has signed the Ex.D5 in his presence and thereby the said Will has not been proved as per Section 68 and 69 of Indian Evidence Act. Eventhough defendant No.3 has admitted the Will and later he has denied the 'Will', the court has to consider the OS.No.17317/2005 44 execution of the 'Will' only if defendant No.1 and 2 proves the same in accordance with Law i.e., as per section 68 of Evidence Act. Even though the plaintiff has examined one of the attesting witness i.e., defendant No.4 as DW2 to prove the Will as per the requirement of section 68 of Evindence Act, this witness has not supported the version of the defendand No.1 and 2. The plaintiff has also relied the Judgment of Hon'ble Supreme Court of India between Naresh Charan Das Guptha -V/s- Paresh Charan Das Guptha, dt.2.12-1954 in Civil Appeal No.202/1952. In the said Judgment Hon'ble Supreme Court has held as follows:-
"Property - Validity of Will - Sections 61 and 63 of Indian Succession Act, 1925 - testator(father)died leaving two sons and one daughter - son no.1 (first respondent) son no.2 (appellant) and daughter (second respondent) -first respondent executed will -appellant questioned validity of will suspecting it to be influenced by first respondent before Additional District Judge Court gave decision in respondent's favour - unheld by the High Court- Supreme Court observed OS.No.17317/2005 45 Order cannot be interfered as no question of law arises and finding of the Court ruled out any suspicion and undue influence and upheld decision of High Court."
Therefore, it is clear that, the defendant No.1 and 2 has not proved the execution of the Will by their father as per Ex.D.5. Therefore, when the Will is not proved by the defendant No.1 and 2 the Court has to consider whether the plaintiffs and defendant No.1 to 7 have got share in the suit property and whether the suit properties are joint family properties liable for parition or not and whether plaintiffs are entitle for 3/7th share or not. In this case the defendant No.1 and 2 have contended that item No.2(b) of the 'B' Schedule property is already sold by defendant No.1 i.e., DW1 even before 1991 and item No.4 of 'B' schedule property is also sold as per Ex.P.6. But the purchasers are not made as parties by the plaintiffs, even though the defendants 1 and 2 have contended the same. Plantiffs have made only defendant No.8 to 11 as parties, who are the purchasers of item No.3 of 'B' schedule property.
OS.No.17317/2005 46
14. The Defendant No.10 who is the purchaser of Item No.3 of the suit property was examined his authorized signatory as DW.3. This witness in his evidence says that Defendant No.10 is concerned only in respect of the Item No.3 of the suit 'B' schedule property, as such he confines itself to the property comprised in Sy.No.10/2A situated at Challaghatta Village, Varthur Hobli, Bangalore South Taluk mentioned in the said item. He says that the extent of the property is not 25 guntas as mentioned in the plaint. He says that total extent of Sy.10/2 of the suit village was 3 acres 20 guntas and it originally belonged to one Nagappa and after his death, his mother Madakka has sold the entire extent of 3 acres 20 guntas to one Muniyappa son of Sadara Venkatappa, under the registered Sale Deed dtd: 3.4.1912 as per Ex.D.19. The said Muniyappa was in possession and enjoyment of the said extent. After the death of Muniyappa, his three sons Ugrappa, Muniswamappa alias Muniswami and Papanna succeeded to the said property and in the course of partition amongst them, 1 acre 4 guntas fell to the share of Ugrappa and 1 acre 28 guntas fell to the share of Muniswamappa alias OS.No.17317/2005 47 Muniswami and 28 guntas fell to the share of Papanna and they were in possession and enjoyment of the extent of land allotted to their respective shares. According to this witness, the property allotted to Ugrappa and Panna was demarcated as Sy.No.10/2A and later it was changed as 102B. Out of his 1 acre 4 guntas, Ugrappa sold 22 guntas to his brother Muniswamappa alias Muniswami and the remaining extent of 22 guntas to his another brother Papanna under two registered Sale Deeds dtd: 8.5.1935. This witness says that, after the death of Papanna, his two sons P. Puttappa and P. Ramaiah are entitled to the extent of 28 guntas owned by him and were in possession of the same. Subsequently, the said property was divided between them under a registered Deed of Partition dtd: 10.11.1966 i.e., as per Ex.D.1/Ex.P.25 and they were in exclusive possession of the extents allotted to their respectively shares. Later Sri. Puttappa died and after his death his two sons P. Chandrababu and P. Raju who are Defendant No.1 and 2 herein respectively, succeeded to their father's share in 28 guntas in Sy.No.10/2A as his legal heirs and they were in possession and enjoyment of the same.
OS.No.17317/2005 48 According to this witness, the Plaintiffs are not the daughters of Sri. P. Puttappa and hence they are not entitled for any share in the suit property. It is stated that Defendant No.1 and 2 along with their paternal uncle Ramaiah and his children have sold the entire extent of 28 guntas comprised in Sy.No.10/2A to Sri.K.G. Basavana Gowda i.e., Defendant No.9 under a registered Sale Deed dtd: 9.6.2005 and he was placed in possession of the said extent. The execution of the said Sale Deed was joined by M. Krishnappa and his brothers who are the children of Muniswamappa alias Muniswami in acceptance of the sale made by the Defendant No.1 and 2 and P. Ramaiah and his children and by Suhasini Enterprises and ESSPIESS Property Pvt., Ltd., i.e., Defendant No.8 as confirming parties as some documents had been executed in their favour earlier by the Defendant No.1 and 2 and their uncle Ramaiah and his children on 24.11.1990, 1.12.1990 and 9.6.1993. According to this Defendant No.10, by virtue of the above said registered Sale Deed, the Defendant No.9 became entitled to 28 guntas in Sy.No.10/2A and 38 guntas in Sy.No.10/2B aggregating to 66 guntas i.e., 1 acre 26 guntas. It is stated that on OS.No.17317/2005 49 the same day i.e., on 9.6.2005 the children of the branch of Muniswamappa alias Muniswami, Krishnappa and others sold 38 guntas in Sy.No.10/2B under the registered Sale Deed and to the Defendant No.9 and delivered the possession of the same and by virtue of the above said registered Sale Deed, the Defendant No.9 became entitled to 28 guntas in Sy.No.10/2A and 38 guntas in Sy.No.10/2B aggregating to 66 guntas i.e., 1 acre 26 guntas and he was in possession of the same. According to this Defendant, later on Defendant No.9 sold the said property to Sri. S. Shivashankarappa / Defendant No.10 as per registered Sale Deed dtd: 29.7.2006 which is produced at Ex.D.31 to Ex.D.33. Therefore, it is the contention of the Defendant No.10 who was examined as DW.3 that the Plaintiffs have no right over Item No.3 of the suit property.
Even though DW.1 who was examined on behalf of Defendant No.1 and 2 says that the suit 'A' schedule property was purchased by his father in the name of his mother, no evidence is given by the Defendant No.1 in support of his version.
OS.No.17317/2005 50
15. As per the Judgment of Hon'ble Supreme Court reported in AIR 2006 SUPREME CORUT 3626 between Standard Chartered Bank V/s Andhra Bank Financial Services Ltd., & Ors. the Hon'ble Supreme Court held as follows:
(O) Evidence Act (1 of 1872), S.101 - Burden of proof - Rule is irrelevant when parties have actually led evidence and that evidence has to be considered.
16. Therefore, court has to consider the evidence led by defendant Nos. 1 and 2.
17. Here in this case, the Defendant Nos. 1 and 2 have not proved that suit 'A' schedule property was purchased by their father in the name of their mother out of his father's own money. Therefore, the principles laid down in this decision is not applicable to the case on hand.
18. As per the Judgment of Hon'ble Supreme Court reported in (1974) 1 Supreme Court cases 3 between Jaydayal Poddar V/s Mst. Bibi Hazra And Others, the Hon'ble Supreme Court held as follows:
OS.No.17317/2005 51 Benami - Burden of proof on whom for showing that the sale was Benami - Tests for determining.
(i) It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the persons asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned;
and not unoften, such OS.No.17317/2005 52 intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjunctures or surmises, as a substitute for proof.
19. Therefore, as per the principle laid down in the above said Judgment the burden of proving that their father has purchased the said property in the name of his wife lies on the 1st and 2nd Defendant. But as per the above said discussion the Defendant Nos. 1 and 2 have not discharged their burden.
[
20. As per the Judgment of Hon'ble Supreme Court reported in (2004) 7 SCC 233 between Valliyammal V/s Subramaniam and Others, the Hon'ble Supreme Court held as follows:
OS.No.17317/2005 53 (A) Benami Transactions -
Sale - Presumption as to ownership of the property purchased - Onus to prove the sale to be benami - On whom lies - Held, law presumes the purchase to be the owner of the property purchased - Onus to prove that he is not the real owner but a benami holder, lies on the person pleading so -
Benami Transactions (Prohibition) Act, 1988, S.2(a) - Evidence Act, 1872, Ss.102 and 114 - Preumptions.
(B) Benami Transactions -
Sale - Whether a particular sale is - Tests to determine -
Case law regarding, discussed
- Two of such tests, viz., the source of purchase money and the motive for benami OS.No.17317/2005 54 purchase being by far the most important tests, applied - In the present case, plaintiff claiming to have purchased the suit property benami in the name of his wife - On evidence, held, the plaintiff failed to prove that the purchase money had been provided by him and to show any justification for purchasing the property benmai in the name of wife - In such circumstances, High Court rightly held that the Plaintiff's wife was not a benami-holder.
(C) Benami Transactions -
Held, intention of the person who contributed the purchase money is determinative of the nature of the transaction.
21. As per the above said Judgment of Hon'ble High Courts and Supreme Court it is clear that the OS.No.17317/2005 55 person who asserts that it is a benami transaction has to prove the same. But, here the Defendant Nos .1 and 2 have failed to prove the same by leading evidence.
There is no evidence forthcoming by the Defendant No.1 and 2 to say that his father has purchased the suit property in the name of his mother. Even though DW.1 in his evidence says that except schedule 'A' property and Item No.1 of 'B' schedule property all other properties have been sold, the Defendant No.1 and 2 have not given any particulars regarding the purchasers to whom they have sold the properties and for what amount they have sold the other properties i.e., Item No.2(B) and 4 of 'B' schedule property. DW.3, DW.4 and DW.5 who are the subsequent purchasers of the Item No.3 of 'B' schedule property have contended that the Plaintiffs have no right over the Item No.3 of 'B' schedule property. As I have already stated above there is no evidence by Defendant No.1 and 2 to show that 'A' schedule property was purchased by his father in the name of his mother. Therefore, suit 'A' schedule property becomes the absolute property of mother of Plaintiffs and Defendant No.1 to 3 and deceased Yashoda.
OS.No.17317/2005 56
22. With regard to Item No.1 of 'B' schedule property it is the contention of the Plaintiff that Late P. Puttappa has acquired Item No.1 of 'B' schedule property by virtue of the registered sale deed. It is the contention of the Plaintiffs that Item No.1 of the 'B' schedule property was purchased by their father through a registered sale deed. But, the date of sale deed is not mentioned by the Plaintiffs in the plaint or in evidence. The Defendant No.1 who was examined as DW.1 has only stated that suit 'A' property has not been sold and Item No.1 of the 'B' schedule property is not sold.
23. With regard to Item No.2 of the suit 'B' schedule property the PW.1 in her evidence says that Item No.2 of the schedule property is already acquired by the BDA and the BDA has awarded compensation amount to the extent of Rs.46,980/- and BDA has also allotted compensatory site measuring 30 X 40 feet at HSR Layout, Bangalore. According to the PW.1, Defendant No.1 and 2 by suppressing true and correct facts have furnished fraudulent documents somehow managed to withdraw that amount without giving any OS.No.17317/2005 57 share to the Plaintiffs. But, PW.1 and PW.2 and DW-1 in their examination-in-chief have not stated anything about purchasers of Item No.2 (B) of the 'B' schedule property and purchasers of item No.4 of 'B' schedule property. They have only stated that the purchasers of the Item No.2(B) and Item No.4 of the suit 'B' schedule property are not made as parties and therefore, the suit is bad for non-joinder of necessary parties. Even though Defendant Nos. 1 and 2 have taken up the contention indirectly that the Item No.2 and Item No.4 of the suit 'B' schedule properties have been already sold, they have not mentioned about to whom the said properties have been sold and they have not produced any sale deeds also. Even though they have taken contention that the purchasers have not been made as party, they have not furnished any document before the Court in order to enable the Plaintiffs to make the purchasers as parties.
24. PW.1 in his evidence contends that item No.2(a) of 'B' schedule property was acquired by BDA and Defendant Nos. 1 and 2 have somehow managed to withdraw the above said compensation amount OS.No.17317/2005 58 awarded for item No.2(a) of 'B' schedule property and compensatory site was allotted to the Defendant No.1 and 2 by the BDA after it was acquired. Pw-1 has produced award copy in LAC No.313/1986-87 at Ex.P.5. As per Ex.P.5 award copy produced by the Plaintiffs Rs. 46,980/- was taken by Defendant Nos.1 and 2.
25. Even though Defendants deny the same as per Ex.P.5 produced by the PW.1 it is clear that suit Item No.2(a) of the 'B' schedule property was acquired by BDA and Rs.46,980/- each was given to P. Ramaiah and P. Puttappa by the Land Acquisition Officer as per order dtd: 25.10.1986. After the death of P. Puttappa and P. Ramaiah, these Defendant No.1 and 2 have taken the compensation amount claiming that they are the sons of P. Puttappa and without mentioning names of daughters as LR's.
26. Even though DW.1 denies that the compensation for acquisition of suite Item No.2(a) of 'B' schedule property was not received by the Defendant No.1 and 2 as per Ex.P.5 as per the order of Special Land Acquisition Officer, it is clear that since P. Puttappa died the amount has been given to the legal OS.No.17317/2005 59 heirs of P. Puttappa i.e., Defendant Nos. 1 and 2. In Ex.P.5 at Page 17 it is clearly mentioned that Sri. P. Puttappa represented by legal heirs Chandrababu and P. Raju. This shows that for the acquisition of the Item No.2(a) of the B schedule property by the BDA the Defendant No.1 and 2 themselves have taken compensation stating that they are the only legal heirs of deceased P. Puttappa. It is the contention of the Plaintiff that after acquisition a site was also given to the Defendants No.1 and 2 at HSR Layout by the BDA. This is admitted by the DW.1 in the cross-examination and DW.1 clearly admits that Site No.914/D was allotted to them by the BDA. That means, for the Item No.2(a) of the 'B' schedule property also the Defendant No.1 and 2 have taken compensation without giving any share to the Plaintiffs and they have sold item No.2(b) of 'B' schedule property which was given after acquisition of item No.2 (a) of 'B' schedule property without giving any share.
27. As admitted by Defendant No.1 and 2 except 'A' schedule property and Item No.1 of 'B' schedule property all properties are already sold. It is OS.No.17317/2005 60 the contention of PW.1 that Item No.1 of the 'B' schedule property was acquired by her father through registered sale deed and it is the absolute property of her father. The Defendant No.1 who was examined as DW.1 in his examination-in-chief has not at all stated about Item No.1 of the 'B' schedule property at all and not denied the contention of Plaintiffs. It is suggested to Defendant No.1 during the cross-examination that Item No.B1 property was purchased by the father of the Plaintiffs and Defendant No.1 and 2 and thereafter the father of Plaintiffs P. Puttappa constructed a house and started residing in the said house. But, the PW.1 denies the same. But there is no evidence disproving the version of Pw-1 that item No.1 of 'B' schedule property is the absolute property of Plaintiffs, Defendant Nos. 1 and 2's father.
28. Regarding Item No.3 of the suit 'B' schedule property it is the contention of the Plaintiffs that Defendant No.1 and 2 have sold the property to Defendant No.8. It is the contention of the Plaintiffs that P. Puttappa was the absolute owner of the Item No.3 of the suit property to an extent of 25 guntas in OS.No.17317/2005 61 Sy.No.10/2A situated at Challaghatta Village, Yamaluru Post, Bangalore South Taluk. As I have already stated above the purchaser of the suit property i.e., Defendant No.10 and subsequent purchasers were examined as DW.3 to DW.5. It is the contention of the Plaintiffs that the Defendant No.1 and 2 by suppressing the true facts have executed sale deed in favour of the 8th Defendant and subsequently the properties have been sold to other Defendants. As per the evidence of DW.3 who was examined on behalf of Defendant No.10 also this property was acquired by the father of the Plaintiffs and Defendant No.1 and 2 i.e., P. Puttappa and P. Ramaiah from their father Papanna. It is also contended by the DW.3 that said Papanna has acquired said 28 guntas of land in Sy.No.10/2A under the Partition only in between their brother Muniswamappa and Ugrappa. It is the contention of the DW.3 that said Puttappa's sons i.e., Defendant No.1 and 2 and Late Ramaiah's sons/legal heirs together with M. Krishnappa and his brother i.e., children of Muniswamappa have sold this property i.e., Sy.No.10/2A i.e., Item No.2 of the 'B' schedule property to the Defendant No.9 and in turn the Defendant No.9 sold the suit property to Defendant OS.No.17317/2005 62 No.10. Therefore, when these purchasers are admitting as to how the property has been transferred to Defendant No.1 and 2 and P. Ramaiah's legal heirs through partition dtd: 10.11.1966 as per Ex.D.1 and Ex.D.25 between P. Ramaiah and P. Puttappa it is clear that, the Item No.3 of 'B' schedule property cannot be considered as a self-acquired property.
29. In the Judgment of Sham Narayan Prasad V/s. Krishna Prasad and Others, the Supreme Court held as follows :
" A. Family and Personal Laws
- Hindu Law- Joint Hindu Family/Hindu Undivided Family (HUF)/Coparcenary/Co-
owner/Survivorship-Concept of and Property held by-Coparecenary/ Ancestral property under Mitakshara Law- Meaning, scope andessential features of-Share obtained on partition of ancestral property-
Nature of"
In the Judgment of Uttam V/s. Saubhag Singh and Others, the Supreme Court has held as follows :
OS.No.17317/2005 63 "Family and Personal Laws---Hind Succession Act, 1956---Ss.6 proviso (as it stood prior to amendment in 2005), 8, 4, 19 and 30 --
Succession to joint family property prior to 2005 amendment---Principles summarised---When male Hindu, having interest in Mitakshara coparcenary property, died intestate after commencement of HSA, leaving behind a Class I female heir (his widow in present case) and sons, then by operation of proviso to S.6 deceased's interest in coparcenary property would devolve by intestate succession under S.8 and not by survivorship under S.6---After devolution of joint family property as per S.8 HSA upon death of male Hindu intestate, property would cease to be joint family property and said female heir and other coparceners succeeding to the same would hold their respective share in property as tenants-in-
common and not as joint tenants---
Therefore, grandson born after death of the male Hindu cannot maintain suit for partition claiming his share by division of alleged joint family property."
OS.No.17317/2005 64
30. It is the contention of the PW.1 that Item No.4 of the 'B' schedule property i.e., Sy.No.225 are also the absolute properties of P. Puttappa and Defendant No.1 and 2 by suppressing and true facts have fraudulently executed sale Deed in favour of 2 nd Defendant. There is a suggestion to DW.1 that Item No.3 and 4 are the ancestral properties and it is denied by DW.1. But, as per Ex.P.6 the item No.4 of 'B' schedule property was purchased by Puttappa, S/o. Puttamma i.e., father of Plaintiff and Defendant Nos. 1 to 3 as per registered sale deed dated 10.05.1977. But there is no document produced by the Plaintiff or Defendant Nos. 1 and 2 in respect of the Item No.4 of the suit property to show that it was already sold. Even though PW.1 contends that Item No.4 of the 'B' schedule property was sold by 1 st Defendant to 2nd Defendant and it is ancestral property and it is also suggested to DW.1 regarding the same, the purchasers are not made as party.
Therefore, as per the above said discussion it is clear that the 'A' schedule property is the absolute property of the mother of the Plaintiff No.1 to 3 and deceased Yashodhamma and defendant Nos. 1, 2 and OS.No.17317/2005 65
3. Therefore, as per Section 16 of Hindu Succession Act, the Plaintiff and Defendant Nos. 1 to 3 and 4 to 7 together will get equal share since they are children of deceased Rangamma & after death of Rangamma 'A' Schedule property becomes joint family property.
31. In respect of Item No.2 of the 'B' schedule property as per the above said discussion it is clear that it is the ancestral property and the Defendant No.1 and 2 have taken compensation of Rs. 46,980/- and they have also taken the site allotted by the BDA in view of acquisition measuring 30 X 40 which is situated at HSR Layout as admitted by DW.1 claiming that they are the only legal heirs of the deceased P.Puttappa without giving any share to the daughters of P.Puttappa i.e., Plaintiffs, Defendant No.3 and wife of Defendant No.4 and mother of Defendant No.5 to 7.
32. In respect Item No.3 'B' schedule property as per the above said discussion it is clear that the property is ancestral as admitted by DW.1 in the cross- examination they have sold the property to the other Defendants i.e., Defendant Nos. 9 to 11 without taking permission of Plaintiffs and Defendant No.3 and OS.No.17317/2005 66 Defendant No.4 to 7. As per the evidence of DW.3 to DW.5 it is clear that even though they are aware that the said P. Puttappa has acquired the said property from his ancestor i.e., Item No.3 of the 'B' schedule property, they have not made proper enquiries regarding the daughters of P.Puttappa. As per the principle buyer beware it is the duty of the buyer to ascertain properly regarding the legal heirs of P. Puttappa before purchasing the property.
33. According to defendant No.3 advocate as per Judgment of Uttam Chand case, since after the death of Papanna it is deemed that partition has been taken place between the children of Papanna, i.e., between Puttappa & P.Ramaiah. Since at the time of death of Papanna defendant No.1 and 2 were not born. Puttappa & P.Ramaiah will get that property as surviving legal heirs & it will become absolute property of Puttappa & P.Ramaiah and therefore, as per the Judgment of Shyam Narayan Prasad V/s. Krishna Prasad, if at the time of partition children are already born it cannot be considered as a independent property. As per the principle laid down in Uttam V/s.
OS.No.17317/2005 67 Saubhag Singh & others the partition is deemed to have been taken place immediately after the death of P. Papaiah & children of Puttappa were not born the principle laid down Shyam Narayan Prasad V/s. Krishna Prasad is not applicable. Therefore, it becomes self- acquired property of Puttappa and all the children are entitled for 1/7th share. Even though Item No.3 of the suit property was alienated much prior to filing of the suit and earlier suit filed by the Plaintiff No.1 and 2 was dismissed for default, in the earlier suit this Item No.3 of the suit property is not mentioned. Therefore, the contention of the Defendants that the suit is barred by law of limitation since Defendant No.8 to 10 have purchased the suit property prior to the filing of the suit cannot be accepted. As per the latest Judgment of Hon'ble Supreme Court in Danamma @ Suman Surpur and Another V/s Amar and Another in Civil Appeal Nos.188-189 of 2018 dtd: 1.2.2018 the Hon'ble Supreme Court has clearly held that the daughters have got equal share in the coparcenery properties in view of amendment of Section 6 of Hindu Succession Act, if there is no partition as on the date of OS.No.17317/2005 68 amendment of Section 6 of Hindu Succession Act. In the said Judgment at Para No.23 it is held as follows:
"23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born.
Disposition or alienation
including partitions which
may have taken place before
20-12-2004 as per law
applicable prior to the said
date will remain unaffected.
Any transaction of partition
effected thereafter will be
governed by the
Explanation."
all the children including daughters are having equal rights in the ancestral property. Therefore, suit property becomes joint family properties. In this case item No.3 of 'B' Schedule property also purchased by defendant No.9 on 9-6-2005 without making proper enquiries of daughter of Puttappa.
OS.No.17317/2005 69
34. Therefore, as per this Judgment the Plaintiffs and Defendant No.1 to 3 and legal heirs of another daughter deceased Yashodamma i.e., Defendant No.4 to 7 are also having equal share in all the suit schedule properties. However, Item No.2(a) of the 'B' schedule property has already been acquired and the Defendant No.1 and 2 have already been taken the compensation amount, the Defendant No.1 and 2 have to give the share to Plaintiffs No.1 to 3, Defendant No.3 and Defendant No.4 to 7 together in the compensation taken by them with interest at the rate of 6% per annum from the date of taking compensation till the payment is made. The Plaintiffs No.1 to 3 and Defendant No.4 to 7 together will get equal share in the said Site No.914/D which was allotted by the BDA in view of acquisition of the Item No.2 of the 'B' schedule property by the BDA. But the defendant No.1 and 2 are claiming that, they have already sold it. But purchasers are not made as parties. Therefore, court cannot pass any order in respect of item No.2(b) of 'B' Schedule property in the absence of purchasers.
OS.No.17317/2005 70
35. Since this Court is of the opinion that the Plaintiff No.1 to 3, Defendant No.1 to 3 and Defendant No.4 to 7 together are entitled 1/7th share each and even in Item No.3 of the suit 'B' property and since Defendant No.8 to 11 have purchased the said Item No.3 of the 'B' schedule property without making proper enquiry, the Defendant No.8 to 10 will get right over 2/7 share of that property only i.e., the right of defendant No.1 and 2 only since defendant No.1 and 2, who are the vendors have only 2/7th share in the suit item No.3 of 'B' Schdule property and plainitffs and defendant No.3, defendant No.4 to 7 together will get 1/7th share each in the same and defendnt No.8 to 11 have to hand over the possession of their share to the plaintiffs and defendant No.3 to 7, since the said sale deeds are not binding on plaintiffs.
36. Even though it is contended by the Defendant No.8 to 10 in the written arguments that as per Article 110 of Limitation Act suit has be filed 12 years from the date of exclusion from the joint family property by the Plaintiffs and this suit is filed after long gap and it is also contended by the Defendants that at OS.No.17317/2005 71 the time of filing OS.No.10465/1991 the Plaintiffs have contended that they were excluded from their share by the Defendant No.1 and 2, on perusal of the plaint averments it is clear that no where in the plaint it is stated that in OS.No.10465/1991 which is produced at Ex.D.17 it is stated that they were excluded from the joint family property by the Defendants. Therefore, this contention of Defendant No.8 to 10 the suit is barred by law of limitation cannot be accepted.
37. In the written arguments filed by the Defendant No.2 to 10 they have relied the Judgment of Hon'ble Supreme Court in Shyam Narayan Prasad V/s Krishna Prasad and Ors., reported in 2018 (7) SCC 646 wherein it is held at para 11 as follows:
" 11. Having regard to the contentions urged, the first question for consideration is whether the property allotted to Defendant 2 in the partition dated 31-7-1987 retained the character of a coparcenary property. Admittedly, Gopalji Prasad and his five sons partitioned the property by a deed of partition dated 31-7-1987. It is clear from the materials on record OS.No.17317/2005 72 that Gopalji Prasad retained certain properties in the partition. Certain properties had fallen to the share of Defendant 2 who is the father of Plaintiffs 1 to 3 and grandfather of Plaintiff 4. Certain properties had fallen to the share of the first defendant. The trial court has held that the properties are ancestral properties. The High Court has confirmed the finding of the trial court. We do not find any ground to disagree with this finding of the courts below. "
38. However, when the Defendants have admitted that the Item No.3 of the property was purchased by defendant No.9 on 9-6-2005, which was acquired by them was acquired by P. Puttappa in the partition in the year 1966, the plaintiff and defendant 1 to 7 will get share equally. In view of principle laid down in Dhanamma's case by Hon'ble Supreme Court of India. According to the Advocate for Defendant No.8 to 10, the Judgment of Hon'ble Supreme Court in Danamma @ Suman Surpur and Another V/s Amar and Another in Civil Appeal Nos.188-189 of 2018 dtd:
OS.No.17317/2005 73 1.2.2018 reported 2018 (3) SC 343 the Hon'ble Supreme Court has held that the rights under the amendment are applicable to the living daughters of the living coparcenery as on 9.9.2005 irrespective of when the daughters are born. However, on entire reading of Judgment of Hon'ble Supreme Court in Danamma @ Suman Surpur and Another V/s Amar and Another, the Hon'ble Supreme Court has clearly held that the daughters are entitled for equal share in the ancestral properties and this argument of the Advocate for Defendant No.8 to 10 cannot be taken into consideration.
39. It is the contention of the Defendant No.8 to 10 that the Defendant No.1 and 2 have sold their share in favour of Defendant No.9 along with brother of P. Puttappa, the legal heirs of Ramaiah and hence they are also necessary parties. However, in this suit when these Plaintiffs are not claiming share in respect of the another brother P. Ramaiah in Sy.No.10/2A even though it is sold by all of them together, there is no necessity to bring the other legal heirs i.e., brother of P. Puttappa i.e., P. Ramaiah and his legal heirs and Krishnappa and OS.No.17317/2005 74 his brothers who are the children of Muniswamappa on record. Even though in the Item No.3 they have claimed share in respect of entire 28 guntas of land, the Plaintiffs No.1 and 2, Defendant No.1 and 2, Defendant No.3 and legal heirs of Yashodamma i.e., Defendant No.2 to 7 will get only 14 guntas of land towards their share. Therefore, the Defendant No.1 and 2 together with Defendant No.8 to 10 have to give only 1/7th share in respect of 14 guntas of land in item No.3 of 'B' Schedule property which was purchased by Defendant No.9 to 11 without making proper enquiry from the Defendant No.1 and 2.
40. In view of the above said discussions it is clear that, plaintiffs have proved that suit properties are joint family properties liable for partition and they have got 3/7th share in the above said suit properties. The plaintiffs have also proved that, the sale deed executed by defendant No.1 and 2 in favour of 9th defendant pertaining item No.3 of 'B' schedule property are void and not binding on the plaintiff. However, defendant No.9 OS.No.17317/2005 75 has failed to prove that, he became the absolute owner of the suit property by virtue of sale deed dt.9-6-2005 executed by the defendant No.1 and 2 in respect of item No.3 of the 'B' schedule property.
41. Eventhough defendant No.3 has contended that, Late Puttappa executed Will on 15- 8-1966 bequething his properties to the beneficiaries, he has denied the same later on. However, the defendant No.1 and 2 who have relied on the said Will have failed to prove the same as per the above said discussion. As per the above said discussion it is clear that during the pendency of the suit itself defendant No.11 has purchased the suit property and therefore, it cannot be said that he is a bonafide purchaser of the property. As per the above said discussion it is clear that, defendant No.8 to 10 have failed to prove that the suit is barred by Law of Limitation. It is also clear that, in the earlier suit this item No.3 of the 'B' schedule property was not included and OS.No.17317/2005 76 this item No.3 of the 'B' schedule property was purchased by defendant No.9 to 11. But subsequently at the time of filing of this suit it was included and plaintiffs are contending that subsequently they came to know and hence they have included in item No.3 of the suit property. Therefore, from the date of knowledge the Law of Limitation starts. Therefore, the court cannot hold that, suit is barred by Law of Limitation. In view of the above said discussion it is clear that, suit properties are joint family properties.
42. Even though, plaintiffs have sought share in all the properties. As per the above said discussion it is clear that, item No.2(a) of the 'B' Schedule property is already acquired and item No.2(b) of the suit 'B' schedule property i.e., site was allotted after the compensation is given and it is already sold by DW1 as stated by him, but the purchasers are not made as parties. Item No.4 of the 'B' schedule suit property is also sold and OS.No.17317/2005 77 purchasers of item No.4 of 'B' schedule property are not made as party. Therefore, the Court cannot pass any orders in respect of item No.2(b) of 'B' schedule properties and item No.4 of 'B' schedule property and cannot allot any share in respect of these properties. However, as per the above said discussion the plaintiff and defendant No.1 to 7 have got equal share even in respect of 'A' schedule property and item No.1 of 'B' schedule property and item no.3 of 'B' schedule properties & compensation taken by defendant No.1 and 2 for acquisition of item No.2(a) of 'B' Schedule property. Therefore, in view of the same, plaintiff and defendant No.1 to 3 and 4 to 7 together will get 1/7th share each in 'A' Schedule property and item No.1 of the 'B' schedule property. In view of the above said discussion, it is clear that since defendant No.9 to 11 have purchased the suit property without making proper enquiries the defendant No.9 to 11 will not get full right over item No.3 of 'B' schedule property. They will get OS.No.17317/2005 78 right over only for 2/7th share of item No.3 of the 'B' schedule property only and they will not get right over remaining 5/7th share of item No.3 of 'B' schedule property and sale deed made by defendnt No.1 and 2 in respect of that share is not binding on the plaintiffs and defendant No.3 to 7. However, defendant No.1 and 2 have not executed sale deed in favour of defendnat No.8 in respect of item No.3 of 'B' schedule property and it was sold to defendant No.9. Even though plaintiffs have contended the item No.4 'B' schedule property is sold by defendant No.1 in favour of defendant No.2, there is no evidence regarding the same. Therefore, the Issue No.3 does not arise for consideration at all. Therefore, in view of the same I answer issue No.1 in the affirmative, issue No.2 in the affirmative, issue No.3 as does not arise for consideration, issue No.4 in the negative, issue No.5 in the negative, Addl. Issue No.1 dated. 30-9- 2010 in the Negative, Addl. Issue No.2 dt.30-9- 2010 in the Negative and Addl. Issue No.3 dt.30-9- OS.No.17317/2005 79 2010 in the Affirmative. Even though the properties are joint family properties share is allotted for item No.1 of 'B' schedule property and 'A' schedule property and item No.3 of 'B' schedule property.
43. Issue No.6 :- In the result, this Court proceeds to pass the following :-
ORDER The suit of the plaintiffs is partly decreed. The plaintiffs and defendant No.1 to 3 and defendant No.4 to 7 together are entitled for 1/7th share in the suit 'A' schedule and item No.1 of suit 'B' schedule properties and also item No.3 of 'B' schedule properties.
It is also declared that, the sale deed executed by defendant No.1 and 2 in favour of defendant No.9 and subsequent sale deeds in favour of defendant No.10 and 11 in respect of Item No.3 of 'B' schedule property are not binding on the share of plaintiffs i.e., to the extent of the share of plaintiffs 1 to 3 and defendant No.3 to 7 since plaintiffs and defendant No.3 to 7 together OS.No.17317/2005 80 are entitled for possession of 1/7th share each in this property from defendant No.9 to 11. However, the prayer for declaring that, sale deed executed by 1st defendant in favour of 2nd defendant pertaining to item No.4 of 'B' schedule property is void-ab-initio is rejected.
Defendant No.1 and 2 are restrained from alienating the share of the plaintiffs and defendant No.3 to 7 of 'A' schedule property and item No.1 of 'B' schedule property. Plaintiffs and defendant No.3 to 7 are entitled for partition of the above said properties by metes and bounds and defendant No.8 to 11 are directed to hand over the possession of Item No.3 of 'B' schedule property the share of plaintiffs 1 to 3 and defendant No.3 to 7 i.e., 1/7th share each. Defendant No.1 to 3 and defendant No.4 to 7 together and Plaintiffs are also entitled for 1/7th share each in the compensation amount i.e. acquisition item No.2(a) of 'B' schedule property i.e., Rs.46,980/- received from BDA, defendant No.1 and 2 have to give 1/7th share OS.No.17317/2005 81 each to plaintiffs & defendant No.3 & defendants 4 to 7 together with interest at the rate of 6% per annum from the date of taking compensation till the date of payment and plaintiffs are not entitled for any relief in respect of item No.2(b) of 'B' schedule property.
Defendant No.1 and 2 have to give possession of 1/7th share each of 'A' schedule property and Item No.1 of 'B' schedule property to Plaintiff No.1 to 3 and defendant No.3, 4 to 7 by bifurcating the shares.
[Dictated to the Judgment Writer, computerized transcript thereof corrected, signed and then pronounced by me in the open Court on this the 20th day of February 2020].
[ B.S. BHARATHI ] XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.
"A" SCHEDULE PROPERTY"
All that piece and parcel of immoveable property bearing Khatha No.665, situated at Kodihalli Village, Varthur Hobli, H.A.L. Sanitary Board, Bangalore, with structures therein and bounded on the:
North by : K.M. Narayan Reddy's Property. South by : Sri. P. Puttappa's House.
OS.No.17317/2005 82 East by : Thanikachalam's property.
West by : Ramaiah's Property.
"B" SCHEDULE PROPERTY"
Item No.1
All that piece and parcel of immoveable property bearing Khatha No.216, situated at Kodihalli Village, Varthur Hobli, H.A.L. Sanitary Board, Bangalore.
North by : Rangamma's Property. South by : Ramaiah's House. East by : Thanikachalam's property. West by : Ram Reddy's Property. Measuring:
North to South: 45 feet and East to West: 55 feet. In all Measuring : 2,475 sqft.
Item No.2
a) The award amount, awarded in L.A.C No.313/186/87;
being a sum of Rs.46,980/- pertaining to Survey No.7/1, Venkoji Rao Khane, situated at Venkata Pura, Bangalore South Taluk, Bangalore, to an extent of 20 Guntas.
b) Compensatory Site allotted by the B.D.A, measuring 30 feet X 40 feet, situated at H.S.R Layout, Bangalore, in lieu of the acquisition made by the OS.No.17317/2005 83 B.D.A, pertaining to Survey No.7/1, Venkoji Rao Khane, situated at Venkata Pura, Bangalore South Taluk, Bangalore, to the extent of 20 Guntas. Item No.3 All that piece and parcel of immoveable property bearing Khatha No.10/2A, and situated at Chellaghatta Village, Varthur Hobli, Bangalore South Taluk, Bangalore, to an extent of 28 Guntas and bounded on the:
North by : Jayaram Reddy's Property. South by : Property of Ramaiah and others.
East by : Property of M. Krishnappa and others West by : 100 feet Road. Item No.4
All that piece and parcel of immoveable property bearing Survey No.225, and situated at Begepalli Village, Hosur Taluk, Dhamapuri District, to an extent of 1.25 Acres.
North by : Nagaraj & Muniyappa's Property. South by : Karidar Munsamappa's Property.
East by : Road.
West by : Honnappa's property.
OS.No.17317/2005
84
ANNEXURE
1. List of witnesses examined for the plaintiff:-
P.W.1 : Sharadamma.
2. List of documents marked:-
Ex.P 1 : Certified copy of the Sale Deed dtd: 21.10.1971.
Ex.P 2 : Certified copy of the Sale Deed dtd: 9.6.1993 entered into between Sri. P. Raju in favour of M/s ESSPIESS PROPERTY PV., LTD.
Ex.P 3 : Certified copy of the Sale Deed dtd: 9.6.1993 entered into between Sri. Chandra Babu in favour of M/s ESSPIESS PROPERTY PV., LTD.
Ex.P 4 : Certified copy of the Sale Deed Dtd: 9.6.2005 entered into between P. Ramaiah and others in favour of M/s ESSPIESS PROPERTY PV., LTD.
Ex.P 5 : Certified copy of the award passed in LAC.No.313/1986-87.
Ex.P 6 : Certified copy of the Sale Deed dtd:
10.5.1977 in respect of item No.4 property.
Ex.P 6(a) : Translated copy of Ex.P.6.
3. List of witnesses examined for the defendant:-
DW.1 : P. Chandrababu.
DW.2 : Manjunatha.
OS.No.17317/2005
85
DW.3 : B.S. Mohan.
DW.4 : T. Rajashekarappa.
DW.5 : Smt. Sarvamangala.
4. List of documents marked for the defendant:-
Ex.D 1 : Certified copy of the
Partition Deed dtd:
10.11.1966.
Ex.D 2 : Certified copy of the original
Sale Deed dtd: 21.10.1971.
Ex.D 3 : Death certificates of
and smt.Rangamma and Sri.
4 P.Puttappa.
Ex.D 5 : Will executed by
Sri.P.Puttappa.
Ex.D 6 : Six tax paid receipts.
Ex.D 7 : Encumbrance Certificate for
the period from 1.1.1977 to
1.4.1991.
Ex.D 8 : Endorsement dtd:
11.12.1987 issued by H.A.
Sanitary Board, Bangalore.
Ex.D 9 : Demand register extract for
the year 1982-83.
Ex.D 10 to : Khatha Certificate and
13 Khatha extracts.
Ex.D 14 : Sanctioned Plan dtd:
13.11.1981 issued by H.A.
Sanitary Board, Bangalore..
Ex.D 15 : Endorsement dtd:
18.12.1989 issued by H.A.
OS.No.17317/2005
86
Sanitary Board, Bangalore.
Ex.D 16 : Sanctioned plan issued by
H.A. Sanitary Board,
Bangalore.
Ex.D 17 : Certified copy of the plaint
in OS.No.10465/1991.
Ex.D 18 : Certified copy of the written
statement filed in
OS.No.10465/1991.
Ex.D 19 : Certified copy of the
Resolution.
Ex.D 20 : Certified copy of the Sale
Deed dtd: 3.4.1912.
Ex.D 21 : Certified copy of the two
and Sale Deeds dtd: 8.5.1935.
22
Ex.D 23 : Certified copy of the Sale
Deed dtd: 6.2.1944.
Ex.D 24 : Certified copy of the Sale
Deed dtd: 3.6.1965.
Ex.D 25 : Certified copy of the
Partition Deed dtd:
10.11.1966.
Ex.D 26 to : Certified copy of the four 29 Sale Deeds dtd: 9.6.2005.
Ex.D 30 : Certified copy of the order dtd: 29.7.2006.
Ex.D 31 to : Certified copy of the three 33 Sale Deeds dtd: 29.7.2006.
Ex.D 34 : Partnership Deed.
Ex.D 35 : Certified copy of the Joint
Development Agreement.
OS.No.17317/2005
87
Ex.D 36 to : Seven mutation register
42 extracts.
Ex.D 43 : Sketch issued by BDA.
Ex.D 44 : Sanctioned plan.
Ex.D 45 : Occupancy Certificate.
Ex.D 46 : Tax paid receipt.
Ex.D 47 : Certified copy of the two
and Sale Deeds dtd: 3.5.2010.
48
Ex.D 49 : Certified copy of the Lease
and Deed dtd: 10.7.2009.
50
Ex.D 51 : Certified copy of the
Mortgage Deed dtd:
12.1.2010.
Ex.D 52 : Certified copy of the Lease
Deed dtd: 15.4.2010.
Ex.D 53 : Six photographs.
Ex.D 53(a) : CD.
Ex.D 54 : Certified copy of the order
passed in RFA No.625/2004.
Ex.D 55 : Certified copy of the order
passed in RFA No.630/2004.
Ex.D 56 : Certified copy of the order
passed in RFA No.487/2004.
Ex.D 57 : Certified copy of the order
passed in RFA No.624/004.
Ex.D 58 : Certified copy of the
Certificate of BBMP.
Ex.D 59 : Certificate of HDFC.
OS.No.17317/2005
88
Ex.D 60 : General Power of Attorney
executed by 11th Defendant.
Ex.D 61 : Invitation Card.
[ B.S. Bharathi],
XXVIII ACC & SJ.
OS.No.17317/2005
89
JUDGMENT PRONOUNCED IN TEH OPEN COURT VIDE SEPEARATE JUDGMENT ORDER The suit of the plaintiffs is partly decreed. The plaintiffs and defendant No.1 to 3 and defendant No.4 to 7 together are entitled for 1/7th share in the suit 'A' schedule and item No.1 of suit 'B' schedule properties and also item No.3 of 'B' schedule properties.
It is also declared that, the sale deed executed by defendant No.1 and 2 in favour of defendant No.9 and subsequent sale deeds in favour of defendant No.10 and 11 in respect of Item No.3 of 'B' schedule property are not binding on the share OS.No.17317/2005 90 of plaintiffs i.e., to the extent of the share of plaintiffs 1 to 3 and defendant No.3 to 7 since plaintiffs and defendant No.3 to 7 together are entitled for possession of 1/7th share each in this property from defendant No.9 to 11. However, the prayer for declaring that, sale deed executed by 1 st defendant in favour of 2nd defendant pertaining to item No.4 of 'B' schedule property is void-ab-initio is rejected.
Defendant No.1 and 2 are restrained from alienating the share of the plaintiffs and defendant No.3 to 7 of 'A' schedule property and item No.1 of 'B' schedule property. Plaintiffs and defendant No.3 to 7 are entitled for partition of the above said properties by metes and bounds and defendant No.8 to 11 are directed to hand over the possession of Item No.3 of 'B' schedule property the share of plaintiffs 1 to 3 and defendant No.3 to 7 i.e., 1/7th share each. Defendant No.1 to 3 and defendant No.4 to 7 together and Plaintiffs are also entitled for 1/7th share each in the compensation amount OS.No.17317/2005 91 i.e. acquisition item No.2(a) of 'B' schedule property i.e., Rs.46,980/- received from BDA, defendant No.1 and 2 have to give 1/7th share each to plaintiffs & defendant No.3 & defendants 4 to 7 together with interest at the rate of 6% per annum from the date of taking compensation till the date of payment and plaintiffs are not entitled for any relief in respect of item No.2(b) of 'B' schedule property.
Defendant No.1 and 2 have to give possession of 1/7th share each of 'A' schedule property and Item No.1 of 'B' schedule property to Plaintiff No.1 to 3 and defendant No.3, 4 to 7 by bifurcating the shares.
[ B.S. BHARATHI ] XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.
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