Bangalore District Court
Smt.Vanajakshi vs Smt.Ratnasree on 28 May, 2018
IN THE COURT OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.27), AT BENGALURU
PRESENT:SRI. SHUBHAVEER B., B.Com.,LL.B.
XII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU .
DATED: THIS THE 28TH DAY OF MAY, 2018
O.S.No.2396/2010
Plaintiffs- 1.Smt.Vanajakshi
w/o. Narendra Raju,
aged 54 years
2. N.Srinivasa Raju,
s/o. Narendra Raju,
aged 37 years.
Both are residing at No.52
New No.237,
Venkateshwara Building
R.T.Street,
Bengaluru -560053.
(By Sri.N.Shamsunder
Kamble)
-VS-
Defendants- 1. Smt.Ratnasree,
D/o. Narendra Raju,
Aged 40 years,
2 O.S.No.2396/2010
Residing at No.25,
R.V.Layout,
Kumara Park West
Bengaluru -560020.
2. Smt.Shyalashree,
D/o. Narednra Raju,
aged 35 years,
residing at No.52,
new No.237/1, 2nd floor,
Venkateshwara building,
R.T.Streeet,
Bengaluru-560053.
3. Sri.N.Ravi Kumar,
s/o. Narendra Raju,
aged bout 34 years,
residing at No.52,
new No.237,
Venkateshwara building,
R.T.Streeet,
Bengaluru-560053.
4. Dr.Kundanmal Jain,
s/o. Sri.Phool Chand,
major, shop No.1 & 2,
ground floor, No.52,
(new No.237),
Sri. Venkateshwara
building,
R.T.Streeet,
Bengaluru-560053.
(Defts.1 & 2
Sri.M.V.Narasimha,
3 O.S.No.2396/2010
D-4 Sri.H.J.Sanghvi-
Advocates
D-3: Exparte)
Date of Institution of the suit : 17/02/2010
Nature of the suit : Cancellation of sale deed ,
possession & partition
Date of commencement of
recording of the evidence : 24/06/2014
Date on which the Judgment was
pronounced : 28/05/2018
Total Duration Years Months Days
: 08 03 11
(SHUBHAVEER B.)
XII Addl. City Civil & Sessions Judge,
Bengaluru
J U D G M E N T
The above suit is filed for cancellation of registered sale deed, dated 20.10.2000, ejectment of 1st defendant from the suit 'B' schedule property, for mesne profits and for partition.
2. The 3rd defendant has been placed exparte. 4 O.S.No.2396/2010
3. Defendants 1 and 2 have not filed written statement. As per order, dated 08.03.2018, written statement of defendant No.1 was not received.
4. The brief facts of the case of the plaintiffs are that the 1st plaintiff is the wife, Plaintiff No.2 and defendants 1 to 3; are the children of Narendra Raju and they are the co-parceners and joint owners of the suit schedule 'A' property, i.e., portion of premises bearing new No.237, old No.46, 'Sri Venkateshwara Building', Rangaswamy Temple Street, Bengaluru; comprising of ground, first and second floor, forming shops in the ground floor,, common staircase with front shops, measuring East to West 9 ft. 6 inches and North to South 62 ft. 6 inches, with specific boundaries.
5. The suit schedule 'A' property, in its full extent, was a Joint Hindu Family property of one (1) S.A.Sampangirama Raju and his brothers, (2) S.A.Venkatarama Raju and (3) S.A.Narayana Raju. During the partition held amongst the said brothers, in the 5 O.S.No.2396/2010 year 1974, the portion of the property towards western side of the aforesaid property/suit schedule 'A' property, was allotted to the share of S.A.Sampangirama Raju and his sons- Anantha Raju and S.Narendra Raju, who is the predecessor-in-title of plaintiffs and defendants 1 to 3; as per registered partition deed, dated 30.10.1974.
6. It is further alleged that thereafter, on 17.11.1976, there was an oral partition held in the family of S.A.Sampangirama Raju and his sons. The suit schedule 'A' property was allotted to the share of the predecessor-in-title of plaintiffs and defendants 1 to 3, S.Narendra Raju. Since then, the khatha of the said suit schedule 'A' property stood in the name of said S.Narendra Raju, till this date.
7. It is further alleged that the said Narendra Raju, being the eldest male member of the family, has leased out the portions of suit schedule 'A' property to various tenants and collecting the rents until his last days. The said Narendra Raju 6 O.S.No.2396/2010 most of the time was under the influence of liquor and was never conscious in mind as well as he was not aware what he was doing. Prior to the death of the said Narendra Raju, he was admitted to hospitals. During all these periods, the said Narendra Raju had not whispered anything about the tenants, except that he was collecting the rents from the tenants. The said Narendra Raju died on 05.02.2006.
8. It is further alleged that the 4th defendant is the tenant in respect of the portion of suit schedule 'A' property, which is suit 'B' schedule property, i.e., shop bearing Nos. 1 and 2 of portion of the premises bearing new No.237, old No.46, measuring East to West 9 ft. 6" and North to South 21 ft. with specific boundaries; by paying rent of Rs.1000/- per month.
9. It is further alleged that subsequently, after the death of said Narendra Raju, the plaintiffs started collecting the rents from the tenants and also approached the 4th defendant requesting him to pay the rents; even by issuing legal notice, 7 O.S.No.2396/2010 dated 19.12.2006, calling upon the 4th defendant to pay the rents along with arrears. The plaintiffs received the reply notice dated 16.01.2007, on 20.02.2007, got issued by the 4th defendant, informing that suit 'B' schedule property was purchased by 4th defendant from said S.Narendra Raju. The said Narendra Raju was not the absolute owner of the schedule properties. There was an agreement within the family, that no parties to the partition deed, dated 30.10.1974, should sell the properties to the 3rd parties/strangers, unless there was a refusal in writing. The 4th defendant was aware of the said condition.
10. It is further alleged that after going through the certified copy of the registered sale deed, dated 20.10.2000, the plaintiffs found that the signatures of the said Narendra Raju had been forged by the 4th defendant. The said Narendra Raju did not, nor any occasion to execute any sale deed, in favour of 4th defendant.
8 O.S.No.2396/2010
11. It is further alleged that the members of the joint family, the 1st plaintiff as well as defendants 2 and 3 have jointly executed a Release Deed by relinquishing their right, title and interest, over the suit schedule 'A' property, in favour of plaintiff No.2, as per registered deed, dated 03.05.2012. Hence the plaintiff No.2 has become the owner of suit schedule 'A' property. Hence the above suit.
12. The 4th defendant in his written statement as well as addl. written statement, except admitting the issuance of legal notice by the plaintiffs and got issuing the reply notice by the 4th defendant; denied all the other allegations made in the plaint.
13. The 4th defendant contends that the 4th defendant is the absolute owner in respect of suit schedule 'B' property and there was no question of payment of any rent afterwards. At no time, the 4th defendant paid any rent, after execution of registered sale deed, dated 20.10.2000. The said Narendra Raju was the absolute owner of the property having right, title and 9 O.S.No.2396/2010 interest; duly executed the said registered sale deed, in respect of suit 'B' schedule property, in favour of the 4th defendant, for family necessities of Narendra Raju and in order to clear the debts, which was legally borrowed by him and in order to perform the marriages of his children. Even the khatha in respect of suit schedule 'B' property stands in the name of 4th defendant. All the family members of Narendra Raju were fully aware of the said sale deed, duly executed by said Narendra Raju. The 4th defendant is the bonafide purchaser of the said suit schedule 'B' property, having purchased the same, as per registered sale deed, after paying the consideration amount.
14. It is further pleaded that the 4th defendant is the absolute owner of shop Nos. 1 and 2, located in the ground floor of suit schedule 'A' property, which is suit 'B' schedule property, having purchased the same from the predecessor-in-title of the plaintiffs and defendants 1 to 3, for Rs.1,91,000/-. After purchase of the suit 'B' schedule property, as there was some 10 O.S.No.2396/2010 error in the original sale deed, executed in favour of the 4th defendant, rectification deed was executed in the month of December, 2003, which was presented for registration, on 14.01.2004. The 4th defendant was a tenant in respect of said two shops and he was using the same as clinic. He took possession of the same in 1973 by paying advance of Rs.3,000/- and at monthly rent of Rs.250/-. In the year 1998, advance amount was enhanced to Rs.1,00,000/- and rent was enhanced to Rs.500/- per month. The suit is barred by limitation. The suit is bad for non- joinder of necessary parties and mis-jonder of parties. Hence prayed for dismissal of the suit.
15. From the pleadings the following issues and additional issue are framed-
ISSUES
1. Whether the plaintiffs prove that 'B' schedule property is the Joint Family property of themselves and the defendants 1 to 3?
11 O.S.No.2396/2010
2. Whether the plaintiffs prove that late Narendra Raju had no authority in himself to execute the alleged sale deed dated.20.10.2000 in favour of the 4th defendant and further prove that the signature of Narendra Raju has been forged by the 4th defendant?
3. Whether the plaintiffs prove that Narendra Raju had no legal necessity to execute the alleged sale deed in favour of the 4th defendant?
4. Whether the plaintiffs prove that the sale deed dated.20.10.2000 is liable to be cancelled?
5. Whether the plaintiffs are entitled for ejectment of the 1st defendant from schedule 'B' property and further prove that they are entitled for mesne profits at Rs.5,000/- per month?
6. Whether the court fee paid is sufficient?
7. Whether the suit is in time?
8. Whether the 4th defendant proves that he is a bonafide purchaser of 12 O.S.No.2396/2010 'B' schedule property for value?
9. What order, or decree?
Addl. Issue:
1. Whether the plaintiffs prove that the 1st plaintiff, defendant No.2 and defendant No.3 have relinquished their right, title and interest over the suit schedule 'A' property in favour of plaintiff No.2 ?
16. On behalf of the plaintiffs, the 2nd plaintiff got himself examined as P.W.1, who deposes in accordance with the allegations made in the original plaint (i.e., before carrying out the amendment in the original plaint). Ex.P1 to Ex.P16 are marked.
17. On behalf of defendants, the 4th defendant got himself examined as D.W.1. (However he has deposed some facts without pleadings, which cannot be considered, as per the ruling reported in AIR 1987 SC 1242) Ex.D1 to Ex.D44 are marked.
Arguments heard. On behalf of the 4th defendant, written argument is filed.
18. The answers to the above issues are-
13 O.S.No.2396/2010
Issue No.1 In the Negative
In the Negative
Issue No.2 In the Negative
Issue No.3 In the Negative
Issue No.4 In the Negative
Issue No.5 In the positive
Issue No.6 In the positive
Issue No.7 In the positive
Issue No.8
Addl. Issue In the Negative
No.1 As per final order,
Issue No.9
for the following-
REASONS
19. Before discussing the issues, the following are the admissions of P.W.1 in his cross-examination:
"Now I see the document, it bears my signature. I had put my signature on that document at the instance of my father. That document is already marked as Ex.D1 and my signature is now marked as Ex.D1(b)........... Now I see Ex.D2-Security Advance receipt, it bears my signature and my signature is marked as Ex.D2(b)........ I do not know whether my father executed sale deed on receipt of Rs.97,000/- and after adjusting the advance 14 O.S.No.2396/2010 amount of Rs.1,00,000/- to the defendant No.4......... I do not know that the defendant No.4 was in occupation and enjoyment of suit property as owner on the date of execution of sale deed in the year 2000. We have not taken action against defendant No.4 for having got changed khatha in his name in pursuance to the rectification deed in the year 2004. I do not know whether the defendant No.4 has been paying the property tax in respect of the suit property......... I have no idea whether my father always used to sign any document only after reading and understanding the contents of the document................. The witness volunteers that my father was healthy only upto 2003............... I do not know that my father voluntarily went to the office of Sub-registrar and executed sale deed in favour of defendant No.4................. I do not know that my father incurred debt at the time of selling the property. It is true to suggest that there was no other earning members except my father in my family............ I do not know whether my father had voluntarily executed the sale deed in 15 O.S.No.2396/2010 favour of defendant No.4. I do not know that my father due to mistake crept in the sale deed has executed rectification Deed. My father might have gone to Sub-registrar's office and put his thumb impression and signature on the document at the time of registration."
20. Addl. Issue No.1- P.W.1, in his examination-in-chief, dated 24.06.2014, filed by way of affidavit, before carrying out amendment in the plaint on 16.08.2016; has not whispered anything with regard to execution of registered Release Deed, relinquishing the rights of plaintiff No.1, defendants 2 and 3, over the suit 'A' schedule property, in favour of plaintiff No.2. Because after the amendment of the plaint in the additional written statement, the 4th defendant has specifically denied the execution of the said Relinquishment Deed. Even though P.W.1 has produced certified copy of registered Release deed- Ex.P16, since the same was denied by the 4th defendant, the said document cannot be said to be proved. Because, mere making of 16 O.S.No.2396/2010 document is not sufficient to prove the case as per the principles of ruling reported in AIR 1971 SC 1865 ( Sant Taragi Kimchi & Otrs. Vs. Yelamarti Satyam and Otrs.) Hence the plaintiffs have not proved the execution of the said registered document/ Relinquishment Deed. Hence this issue is answered Negatively.
21. Issue No.3- It is alleged in the plaint and deposed by P.W.1 that Narendra Raju, the predecessor-in-title of the plaintiffs, had no legal necessity to execute the alleged sale deed, in favour of 4th defendant. There is no admission in that regard by the 4th defendant. However, absolutely there is no other material to establish the same, including the oral evidence of independent witness. Even though it is pleaded, in para-10 of written statement of the 4th defendant, that the said Narendra Raju has duly executed the sale deed for his family necessities and in order to clear the debts, which was legally borrowed by him and in order to perform the marriages of his children as well as to settle his family members; to establish the same, D.W.1 has 17 O.S.No.2396/2010 deposed to that effect and produced Ex.D3, loan agreement, alleged to be executed by said Narendra Raju, in favour of 4th defendant, dated 26.08.1999 and Ex.D4, another loan agreement, dated 28.07.2000, alleged to be executed by said Narendra Raju, in favour of the 4th defendant. As per the ruling reported in AIR 1971 SC 1865 ( Sant Taragi Kimchi & Otrs. Vs. Yelamarti Satyam and Otrs.) mere marking of the document is not sufficient. That document shall be proved. To prove the said two documents - Ex.D3 and Ex.D4, even the alleged signatures of said Narendra Raju therein are not marked. Hence the 4th defendant has failed to establish his contention also.
Further from the admission of P.W.1 to the effect "I do not know that my father incurred debt at the time of selling the property. It is true to suggest that there was no other earning member, except my father in my family" and the contention of 4th defendant and evidence of D.W.1, it appears, Narendra Raju, being the manager of the family, had legal necessity to execute 18 O.S.No.2396/2010 the sale deed in favour of 4th defendant. Hence this issue is answered Negatively.
22. Issue No.5: It is the specific contention of the plaintiffs that defendant No.1 is also a coparcener and joint owner of suit schedule properties, along with the plaintiffs. In that event, the plaintiffs cannot seek the relief of ejectment of the 1st defendant from the suit schedule 'B' property, which is part and parcel of suit schedule 'A' property. In the written statement of 4th defendant, in para-4, it is specifically pleaded "
whereas the plaintiffs intend to eject the 1st defendant from the 'B' schedule property, as if the 1st defendant is in possession of the suit schedule 'B' property." The plaintiffs also alleged in the plaint that the 4th defendant is a tenant in respect of 'B' schedule property under them. When 4th defendant is the tenant in respect of suit schedule 'B' property, as per the contention of the plaintiffs, then the 1st defendant cannot be in possession of the 19 O.S.No.2396/2010 same. Hence the plaintiffs are not entitled for ejectment of the 1st defendant from the suit schedule 'B' property.
23. Further, the above suit is filed for partition also. In that event, the question of mesne profits, or damages to be considered in FDP. However, to establish that the plaintiffs are entitled to mesne profits at the rate of Rs.5,000/- per month, towards the damages from the 4th defendant, no material is produced. On the other hand, the 4th defendant has produced the sale deed, Ex.D5/Ex.P13, executed by Narendra Raju, in respect of 'B' schedule property, in favour of 4th defendant. Hence this issue is answered Negatively.
24. Issue No.2- Ex.P1 is the registered partition deed, dated 28.10.1974, which shows that the suit schedule 'A' property and other properties came to the share of the predecessor-in-title of the plaintiffs and defendants 1 to 3 and his brother as well as father. With regard to Ex.P2, registered 20 O.S.No.2396/2010 document, dated 22.03.1989, there is no pleading. Ex.P3, Ex.P4 and Ex.P5- receipts, alleged to be issued by said Narendra Raju, in favour of Hemaraj & Sons and not relating to the 4th defendant. From Ex.P6- sketch, nothing can be gathered. Ex.P7- khatha certificate and Ex.P8- khatha extract, both dated 06.01.2010, is relating to New Municipal No.237, in respect of suit schedule 'A' property. Whereas suit 'B' schedule property is the portion of suit 'A' schedule property and in respect of the which khatha of suit 'B' schedule property, as per Ex.D37, khatha extract and Ex.D38- khatha certificate; which show the new number as 237/3, standing in the name of the 4th defendant. Then it is to be considered that Ex.D37 and Ex.D38 are relating to suit 'B' schedule property. Even Ex.D39, property extract, obtained on 06.02.2004, shows the khatha No.237/3, standing in the name of 4th defendant.
25. Ex.P9- copy of legal notice, dated 16.12.2006, shows that the same was got issued by the 2nd plaintiff, calling upon the 21 O.S.No.2396/2010 4th defendant to pay arrears of rent. Ex.P9 (a&b) - postal acknowledgments, show that Ex.P9/notice was received by the 4th defendant. Ex.P11 and Ex.P12 - encumbrance certificates, are relating to property No.237 only. Ex.P14, tax paid receipt, dated 23.03.2000, is relating to No.237. Ex.P15, tax paid receipt, dated 7.8.2002, relating to property No.237 only.
26. With regard to Ex.P16- certified copy of release deed, executed by 1st plaintiff, defendant Nos.2 and 3, in favour of the 2nd plaintiff, is dated 03.05.2012, i.e., subsequent to the date of filing of the suit. Further with regard to this document, only this document is produced and no corroborative oral evidence is there.
27. Two documents are marked Ex.D2. Hence for the purpose of clarification, the security advance receipt, dated 15.10.1998, is considered Ex.D2 (1). Ex.D5/Ex.P.13, the registered sale deed, dated 20.10.2000, executed in favour of 4th 22 O.S.No.2396/2010 defendant, by the predecessor-in-title of the plaintiffs and defendants 1 to 3, was registered on 14.01.2004. Ex.D6- rectification deed, registered on 14.01.2004, executed by the very same Narendra Raju, in favour of 4th defendant, rectifying the mistake found in the registered sale deed, Ex.D5. Ex.D7 to Ex.D14, tax paid receipts, are relating to subsequent period of filing of suit. Ex.D15 to Ex.D19, tax paid receipts, in respect of suit schedule 'B' property, stand in the name of 4th defendant, which were paid prior to filing of the suit. Ex.D20- tax paid receipt filed by the 4th defendant, shows that tax was paid in the name of Narendra Raju on 17.07.2003, for which D.W.1 has clearly deposed that since khatha was not changed immediately since there was a mistake and only after execution of rectification deed, on 14.01.2004, the khatha in respect of suit schedule 'B' property was changed in the name of 4th defendant. Ex.D21 to Ex.D36, electricity bills are dated subsequent to the filing of the 23 O.S.No.2396/2010 suit. Ex.D40, tax paid receipt is dated 23.04.2014, which is subsequent to the filing of the suit.
28. It is the specific allegation in the plaint, which has been denied by the 4th defendant in his written statement, that Narendra Raju, the predecessor-in-title of plaintiffs and defendants 1 to 3, had no authority to execute the alleged sale deed, dated 20.10.2000, in favour of 4th defendant and the signature of Narendra Raju has been forged by the 4th defendant. For establishing forging of signature of Narendra Raju, first of all, there is no pleadings and oral evidence in what manner the said signature of Narendra Raju has been forged. Secondly, the plaintiffs have not made any attempt to get compared the admitted signatures of Narendra Raju and disputed signature of Narendra Raju found in the said sale deed, Ex.D5/Ex.P13. Hence the plaintiffs have failed to establish that the signatures of Narendra Raju, have been forged by the 4th defendant, in the sale deed, dated 20.10.2000.
24 O.S.No.2396/2010
29. To establish the contention of the plaintiffs that Narendra Raju had no authority to execute the sale deed, dated 20.10.2000, in favour of 4th defendant, in respect of suit 'B' schedule property, even though D.W.1 in his cross-examination (in page-16) has admitted " it is true to suggest that I knew including the property purchased by me, the property of the plaintiffs' family was ancestral in nature, I purchased the same"; undisputedly, as per Ex.P1, original registered partition deed, dated 28.10.1974, the said properties were the ancestral properties of the plaintiffs as well as predecessor-in-title of plaintiffs and defendants 1 to 3.
30. However, P.W.1 in his cross-examination, has clearly admitted the execution of Ex.D1, lease agreement, dated 15.10.1998 and he has also admitted his signature found in the said document, marked Ex.D1(b) and the signature of his father/Narendra Raju, Ex.D1(a). The said admitted document/Ex.D1, states " whereas the lessor owns a building at 25 O.S.No.2396/2010 premises bearing old No.237 and new No.52, under the name and style of Sri Venkateshwara Buildings, at Rangaswamy Temple Street, Bengaluru -560003". From this admitted document, not only the predecessor-in-title of the plaintiffs and defendants 1 to 3, namely - Narendra Raju; but also P.W.1/ plaintiff No.2 by their declaration, intentionally caused, or permitted, the 4th defendant to believe that suit 'A' schedule property was owned by Narendra Raju and made the 4th defendant to act upon such belief and hence now the legal representatives/heirs of said Narendra Raju shall not be permitted to deny the truth of that thing. Hence as per Sec. 115 of Evidence Act, now the plaintiffs are estopped from contending that Narendra Raju had no authority in himself to execute the said sale deed, dated 20.10.2000, in favour of the 4th defendant, in respect of the suit 'B' schedule property.
31. When it is the contention of the plaintiffs that the suit properties are the ancestral properties of the plaintiffs, defendants 1 to 3 and their predecessor-in-title, namely- 26 O.S.No.2396/2010 Narendra Raju, then the Narendra Raju during his lifetime, had some share in the entire suit 'A' schedule property. The suit 'B' schedule property is a small portion of suit 'A' schedule property. In that event, for the sake of arguments, since the above suit is also filed for partition, at the time of considering the notional partition, the property sold by Narendra Raju to 4th defendant is to be considered as the share of the father of the plaintiffs and defendants 1 to 3/Narendra Raju. In that event also, the plaintiffs cannot contend that Narendra Raju had no authority to execute the alleged sale deed, in respect of small portion of suit 'A' schedule property, which is suit 'B' schedule property, in favour of 4th defendant. Hence this issue is answered Negatively.
32. Issue No.1- Even though it is contended by the plaintiffs that the suit 'B' schedule property, which is part and parcel of suit schedule 'A' property, is the joint family property of the plaintiffs and defendants 1 to 3; which has been specifically denied by d No.4, the admitted document of the 27 O.S.No.2396/2010 plaintiffs, Ex.P1, registered partition deed, dated 28.10.1974; shows that the suit schedule properties were the joint family properties of not only the plaintiffs and defendants 1 to 3, but also joint family properties of their predecessor-in-title, namely- Narendra Raju. Further in view of the answers to issue Nos.2 and 3 above, the suit schedule 'B' property, since already was sold to the 4th defendant by the manager of the family for legal necessities, as on the date of filing of the suit, it cannot be said that suit 'B' schedule property is the joint family property of the plaintiffs and defendants 1 to 3. Hence this issue is answered negatively.
33. Issue No.7- It is contended by 4th defendant that suit is barred by limitation. However, it is alleged in the plaint and deposed by P.W.1 that only after receipt of reply notice, dated 16.02.2007, which was received by the plaintiffs on 20.02.2007, they came to know about the execution of the registered sale deed, in respect of suit schedule 'B' property by 28 O.S.No.2396/2010 Narendra Raju, in favour of 4th defendant and the suit is filed within a period of three years i.e., on 17.02.2010. To establish the contention of the 4th defendant with regard to period of limitation, no material is produced by the 4th defendant, nor there is any admission by P.W.1 in that regard. Hence this suit is not barred by limitation. Therefore, this issue is answered positively.
34. Issue No.8- This issue ought not to have been framed, since the plaintiffs have not filed rejoinder and there is no denial of the pleadings in that regard by the plaintiffs. However, the plaintiffs have failed to establish that the signatures of Narendra Raju found in the registered sale deed, Ex.D5/Ex.P13, is forged, as discussed above. Because absolutely there is no material to that effect. The plaintiffs have not taken any step for getting the comparison of signatures found in the said sale deed, with the admitted signatures of Narendra Raju. However, the 4th defendant has contended that he is a bonafide purchaser of suit schedule 'B' property and for value and 29 O.S.No.2396/2010 Ex.P13/Ex.D5 show that consideration is paid. Hence this issue is answered positively.
35. Issue No.4- In view of the answers to issue Nos.1,2,3,5,7,8 and additional Issue No.1, the registered sale deed, dated 20.10.2000, executed by the predecessor-in-title of the plaintiffs and defendants 1 to 3, Narendra Raju, need not be cancelled and hence this issue is answered negatively.
36. Issue No.6- For cancellation of sale deed, the plaintiffs have valued the suit at Rs.4,00,000/- and paid court fee of Rs.26,875/- u/s.24(2) of Karnataka Court Fees & Suits Valuation Act, 1956. Whereas, as per Sec.38 of Karnataka Court Fees & Suits Valuation Act, for cancellation of a document, value of the property shown in the document is to be considered. The value of the property shown in the document- Ex.D5/Ex.P13, is Rs.1,91,000/- Since the plaintiff has paid more court fee, it 30 O.S.No.2396/2010 cannot be said that the suit is undervalued for the relief of cancellation of sale deed.
37. In para-16 of the plaint, it is alleged that the suit 'A' schedule property is in joint possession of the plaintiffs and defendants. Accordingly and as per Sec .35(2) of Karnataka Court Fees & Suits Valuation Act, Rs.200/- is to be paid and accordingly the plaintiffs have paid court fee of Rs.200/- which is correct.
38. With regard to mesne profits, the mesne profits is claimed from the date of filing of the suit, until the 4th defendant vacates the suit schedule 'B' property. Therefore, at this stage, the court fee need not be paid, because the amount of damages/mesne profits is not fixed. Hence the plaintiffs have paid court fee more than required. Hence this issue is answered positively.
31 O.S.No.2396/2010
39. Issue No.9- Even though there is no issue with regard to partition, as discussed above, since the registered sale deed, dated 20.10.2000, executed by the predecessor-in-title of the plaintiffs and defendants 1 to 3, namely- Narendra Raju, in respect of 'B' schedule property, since the suit 'B' schedule property is part of 'A' schedule property, the property available for partition is suit schedule 'A' property, excluding suit 'B' schedule property. Therefore, excluding suit 'B' schedule property, suit 'A' schedule property, shall be partitioned.
40. As per Ex.P16, registered release deed, plaintiff No.1, defendants 2 and defendant No.3 executed release deed, in respect of suit 'A' schedule property. For the reasons discussed above, as per Sec.8 and 9 of T.P.Act, the plaintiff No.1, defendants 2 and 3 had no right to release the portion of suit schedule 'A' property, which is suit 'B' schedule property, in favour of the 2nd plaintiff.
32 O.S.No.2396/2010
41. There is no material to show whether the daughters of Narendra Raju, namely - defendants 1 and 2, got married prior to the death of Narendra Raju, or after the death of Narendra Raju. Considering the age of defendants 1 and 2, shown in the cause title of the plaint, in 2010, it appears to the court that their marriages were performed prior to the death of Narendra Raju. In that event, since admittedly, it is an ancestral property, only Narendra Raju, plaintiff No.2 and defendant No.3 had equal rights, during the lifetime of Narendra Raju. After the death of father/Narendra Raju, his share, i.e., 1/3rd share, is to be succeeded by plaintiffs 1 and 2, defendants 1 to 3 equally, which comes to 1/15th share each. After filing of the suit, since as per Ex.P16, plaintiff No.1, defendants 2 and 3 released their rights, now the suit 'A' schedule property, excluding suit 'B' schedule property, shall be partitioned between the 2nd plaintiff and the 1st defendant. In that event, the 2nd plaintiff is entitled to 33 O.S.No.2396/2010 14/15th share and the 1st defendant is entitled to 1/15th share, in suit 'A' schedule property, excluding suit 'B' schedule property.
42. Considering the special facts and circumstances of this case, there is no order as to costs and in view of the answers to issue Nos. 1 to 8 and addition issue No.1, the following-
ORDER The suit is partly decreed. No order as to costs. The claims of the plaintiffs with regard to cancellation of sale deed, ejectment of 1st defendant from the suit 'B' schedule property, are rejected.
Plaintiff No.2 is entitled to 14/15th share in suit 'A' schedule property, excluding suit 'B' schedule property and possession of the same shall be delivered to the 2nd plaintiff.
The 1st defendant is entitled to 1/15th share in suit 'A' schedule property, excluding suit 'B' schedule property and possession of the same shall be delivered to the 1st defendant, if the required fee is paid.
34 O.S.No.2396/2010
SUIT SCHEDULE 'A' PROPERTY Portion of the premises bearing new No.237, old No.46, 'Sri Venkateshwara Building' Rangaswamy Temple Street, Bengaluru -560053, comprising of ground floor, first floor and the second floor, forming of shops in the ground floor, common stair case, with front shops measuring East to West - 9 feet 6 inches, North to South - 62ft 6 inches and bounded on the-
East by : Common corridor on the same
premises
West by : Nanjappa and Shivaramappa's
property
North by : Conservancy lane
South by : Rangaswamy Temple Street
SUIT SCHEDULE 'B' PROPERTY
Shop bearing No.1 and 2 of the portion of the premises bearing new No.237, old No.46, 'Sri Venkateshwara Building' Rangaswamy Temple Street, Bengaluru -560053, measuring East to West - 9 feet 6 inches, North to South - 21 feet and bounded on the-
35 O.S.No.2396/2010
East by : Common corridor on the same
premises
West by : Nanjappa and Shivaramappa's
property
North by : Shop No.3 (remaining portion)
South by : Rangaswamy Temple Street
Draw preliminary decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this 28th day of May, 2018.) (SHUBHAVEER B.) XII Addl. City Civil & Sessions Judge, Bengaluru ANNEXURE I. List of witnesses examined on behalf of plaintiffs-
P.W.1 - Sri.N.Srinivasa Raju II. List of witnesses examined on behalf of defendants-
D.W.1- Dr.Kundanmal Jain III. List of documents exhibited on behalf of plaintiffs-
Ex.P1 Registered partition deed
Ex.P1(a) Signature
Ex.P2 Mortgage deed
Ex.P2(a) Signature
Ex.P3-P5 Three rent receipts
36 O.S.No.2396/2010
Ex.P3(a) to Signatures
P5(a)
Ex.P6 Certified copy of plan
Ex.P7 Khatha certificate
Ex.P8 Khatha extract
Ex.P9 Copy of legal notice
Ex.P9(a)&(b) Postal receipt and postal
acknowledgment
Ex.P10 Reply notice
Ex.P11&12 Encumbrance certificates
Ex.P13 Certified copy of sale deed
Ex.P14&P15 Tax paid receipts
Ex.P16 Certified copy of registered
release deed
IV. List of documents exhibited on behalf of defendants-
Ex.D1 Lease agreement
Ex.D1(a&b) Signatures
Ex.D2 Advance receipt
Ex.D2(1) Advance receipt
Ex.D3& D 4 Loan agreements
Ex.D5 Registered sale deed
Ex.D5(a) Signature
Ex.D6 Registered rectification deed
Ex.D6(a) Signature
Ex.D7-D20 14 tax paid receipts
Ex.D21-D31 Electricity bills
Ex.D21(a) to Electricity receipts
Ex.D31(a)
Ex.D32-D35 Four electricity receipts
Ex.D36 Endorsement
Ex.D37 Khatha extract
Ex.D38 Khatha certificate
37 O.S.No.2396/2010
Ex.D39 Property extract
Ex.D40 Tax paid receipt
Ex.D41- D44 Three photographs and CD
(SHUBHAVEER.B)
XII Addl.City Civil & Sessions Judge,
Bengaluru
38 O.S.No.2396/2010
(Judgment pronounced in open court)
ORDER
The suit is partly decreed. No order as
to costs.
The claims of the plaintiffs with
regard to cancellation of sale deed,
ejectment of 1st defendant from the
suit 'B' schedule property, are rejected.
Plaintiff No.2 is entitled to
th
14/15 share in suit 'A' schedule
property, excluding suit 'B' schedule
property and possession of the same
shall be delivered to the 2nd plaintiff.
The 1st defendant is entitled to
1/15th share in suit 'A' schedule
property, excluding suit 'B' schedule
property and possession of the same
shall be delivered to the 1st defendant,
if the required fee is paid.
SUIT SCHEDULE 'A' PROPERTY
Portion of the premises bearing
new No.237, old No.46, 'Sri
Venkateshwara Building' Rangaswamy
Temple Street, Bengaluru -560053,
comprising of ground floor, first floor
and the second floor, forming of
shops in the ground floor, common
stair case, with front shops measuring
East to West - 9 feet 6 inches,
North to South - 62ft 6 inches and
bounded on the-
East by : Common corridor on the
39 O.S.No.2396/2010
same premises
West by : Nanjappa and
Shivaramappa's property
North by : Conservancy lane
South by : Rangaswamy Temple
Street
SUIT SCHEDULE 'B' PROPERTY
Shop bearing No.1 and 2 of the
portion of the premises bearing new
No.237, old No.46, 'Sri
Venkateshwara Building' Rangaswamy
Temple Street, Bengaluru -560053,
measuring East to West - 9 feet 6
inches, North to South - 21 feet and
bounded on the-
East by: Common corridor on the same
premises
West by : Nanjappa and Shivaramappa's
property
North by : Shop No.3 (remaining portion)
South by : Rangaswamy Temple Street
Draw preliminary decree
accordingly.