Bangalore District Court
S.N. Jayaprakash vs Smt S.N. Sarala on 20 June, 2018
IN THE COURT OF THE XLI ADDL. CITY CIVIL JUDGE
AT BENGALURU [CCH No.42]
PRESENT : SRI BASAVARAJ, B.COM., LL.M.,
XLI Addl. City Civil Judge,
Bengaluru.
Dated this the 20th day of June, 2018
O.S.No.2323/2014
PLAINTIFF : S.N. Jayaprakash,
S/o Late S.M. Narendra,
Aged about 46 years,
R/at No.275, 5th Main,
Viveknagar,
Bangalore-47.
(By Sri B.J.S., Advocate)
V/s.
DEFENDANTS : 1. Smt S.N. Sarala,
D/o Late S.M. Narendra,
W/o Teju Kumar,
Aged about 40 years,
R/at No.1033, 1st Cross,
Nagarathpet,
Bangalore-560 002.
2. The Commissioner
Bangalore Development Authority
Kumara Krupa West
Bangalore
(D1 By Sri.M.B.S.,
D2 By Sri.B.C., Advocates)
2 OS No.2323/2014
Date of Institution of the Suit: 21.03.2014
Nature of the suit
(Suit on Pronote, suit for Declaration
declaration & possession, suit
for injunction)
Date of commencement of 25.11.2014
recording of evidence:
Date on which the Judgment 20.06.2018
was pronounced:
Total Duration: Year/s Month/s Day/s
04 02 29
JUDGMENT
The plaintiff filed this suit for declaration to declare that the sale deed dated 16.3.2013 as null and void ab-initio and to pass such other reliefs.
2. The suit schedule property as described in the plaint is as under:-
SCHEDULE All that part and parcel of house property bearing No.275 measuring east to west: 30 feet and north to south:
51/4th feet in all measuring about 1507 1/4th sq.ft., situated 3 OS No.2323/2014 at Sonnenahalli Layout, Viveknagar, Bangalore by the BDA including all the rights and privileges available to/in upper surface and under beneath of the same and bounded on the:
East by : Property No.276
West by : Property No.274
North by : Road
South by : Site No.270
3. The plaint averments in brief is as under:
The schedule property came to be allotted in favour of one S.M. Narendra followed by lease-cum-sale agreement dated 06.03.1967. The said S.M. Narendra during his life time did not obtain absolute sale deed in his favour. Bur he continued in the possession and enjoyment of the schedule property by getting the necessary Khatha transferred into his name in the records of BBMP and was also paying requisite taxes.
The said S.M. Narendra passed away on 05.05.2012 leaving behind him the plaintiff and the first 4 OS No.2323/2014 defendant as his sole legal heirs. As such the schedule property devolved jointly on the plaintiff and the first defendant.
The first defendant got married to one Sri. Teju Kumar on 27.01.2003 on her own wish which was a secret marriage by abandoning the house. Right there from the first defendant is residing in her matrimonial house and there was no nexus between the first defendant, his father and the plaintiff.
The father of plaintiff and the fist defendant namely S.M. Narendra during his lifetime gifted certain property which were acquired out of his self earnings in favour of plaintiff. The schedule property was kept for himself and he died intestate in so far as the knowledge of the plaintiff is concerned since the said S.M. Narendra was living with the plaintiff and his family members till his death.
The first defendant learnt about the gift of certain properties by Sr. S.M. Narendra in favour of the plaintiff 5 OS No.2323/2014 herein has commenced litigation by filing suit for partition in O.S. No.6160/2010 pending on the file of Additional City Civil Court, Bangalore (CCH-39) and the same is pending adjudication. In the said suit for partition the schedule property has been mentioned as Item No.2 thereof. The first defendant claimed 1/3rd share in the schedule property also in the said suit. The said suit came to be filed in the month of August 2010. As such it is crystal clear that there was no any testamentary Will in existence as on that date. The first defendant did not say anything about the execution of Will by S.M. Narendra in the plaint filed in the above case.
Thus being so, the first defendant herein by collecting information and upon coming to know that the sale deed was not executed in favour of the deceased S.M. Narendra appears to have ventured a scheme and by creating the fraudulent Will has approached the second defendant herein and persuaded them to 6 OS No.2323/2014 execute the sale deed in her favour as if she is only legal heir of the deceased S.M. Narendra. The second defendant when it has received the application for execution of absolute sale deed after the lapse of 30 years and more oaught to have made the inspection of the schedule property as to find out in whose possession the schedule property is lying and who are the actual legal heirs and whether the Will on which the first defendant is relying is genuine or not. Without doing so the second defendant in collusion with the first defendant has executed the Sale Deed on 16.03.2013.
The first defendant herein, who got the sale deed in her favour in collusion with the second defendant, diplomatically filed an application in O.S. No.6160/2010 seeking deletion of the schedule property from the plaint. The plaintiff has filed the objections and seriously contesting the matter and now the matter stands for hearing arguments.
7 OS No.2323/2014
Upon coming to know about the execution of Sale Deed by the second defendant in favour of the first defendant, the plaintiff got issued legal notice on 10.12.2013, which was duly received by the second defendant. The second defendant who received the notice has failed to issue reply but keeping silence as if nothing has happened.
The plaintiff and the first defendant are the only legal heirs of Late S.M. Narendra. The schedule property is one and only property which is available for partition in between them. The first defendant has already filed suit for partition in respect of the schedule property in the matter stated above. Hence it is an admitted fact that the schedule property is divisible amongst the plaintiff and the first defendant. In view of the above said facts and circumstances the sale deed dated 16.03.2013 executed by the second defendant in favour of the first defendant is a nullity and unsustainable under law. Because of the fraudulent execution of the 8 OS No.2323/2014 sale deed by the second defendant by the first defendant, the said entry reflects in the encumbrance certificate. The first defendant taking advantage of the same may expose herself as absolute owner and sell away the schedule property in favour of high handed persons for gain. In such an event the plaintiff will be put to irreparable loss and injury which cannot be compensation by any other mode. Hence the plaintiff has no alternative than to seek for cancellation of the aforesaid Sale Deed.
The plaintiff herein has already issued notice to the second defendant which is in the nature of compliance under section 64 of the BDA Act 1976. Hence prays to decree the suit.
4. Upon service of summons, the defendant No.1 appeared before the Court through her counsel and filed written statement contending that the averments made in 9 OS No.2323/2014 third paragraph of the plaint are admitted as true and correct.
The schedule property was kept for himself and he died intestate in so far as the knowledge of the plaintiff is concerned. On the contrary the father of the plaintiff himself admitted that he had executed will in favour of her. The said admission comes through the joint written statement filed by the plaintiff and her father in O.S. No.6160/2010. When such being the case, the statement of the plaintiff that as far as the knowledge of the plaintiff is concerned her father died intestate has no value at all. Thus the plaintiff has suppressed execution of Will is concern for the purpose of knocking the suit schedule property.
It is true that he filed suit for partition in O.S. No.6160/2010 and same is pending on the file of City Civil Court CCH-39. However, it is false to state that the Will is created after filing of the said suit. On the contrary, she came to know regarding existence of Will only when the plaintiff and her father filed joint written statement in the above suit. 10 OS No.2323/2014 In paragraph 8 of the written statement filed in said suit, her father and plaintiff jointly averred regarding execution of said Will. Thus present suit is not maintainable.
The first defendant has already filed suit for partition in respect of the schedule property. The plaintiff is only brother of the first defendant and they are children of one S.M. Narendra and Smt. Shakuntala. The deceased mother of the first defendant and plaintiff, Smt. B.N. Shakuntala during her life time acquired the property bearing No.123/2, New No. 2, BBMP PID No.62-17-2, situated at 7th Main Road, Lakkasandra Extension, Bengaluru 560027 measuring east to west 30 feet and north to south 45 feet under registered deed of sale dated 25.06.1972. The property bearing No.298, PID No. 40-206-298, Bangalore City Corporation HBCS 2nd stage, formed in various survey Nos., of Vivitige Ramanahalli by Bengaluru City Corporation Employees House Building Co-operative Society measuring east to west (43+42)/2 north to south 30 feet under registered deed of sale dated 11 OS No.2323/2014 06.11.1996 out of joint family funds for the benefit of joint family.
Smt. Shakuntala acquired the above said item No.1 property under her name along with one Smt. Perumakka. Smt. Perumakka had not invested any amount towards the purchase of the item No.1 of above said property. The entire sale consideration registration expenses were borne only by the mother of her. The said Perumakka is only nominal party to said Sale Deed. Later after the death of Smt. B.N. Shakuntala, Smt. Perumakka the nominal party in the said Sale Deed has released her right in favour of the father of the first defendant under release deed dated 15.07.2010 without any consideration.
Apart from the above said property, father of the plaintiff and first defendant - S.M. Narendra purchased property bearing No. 275, situated formerly Sonnenahalli presently 5th Main, Viveknaga, Bengaluru 560047 measuring east to west 30 feet north to south 50 feet 03 inches. 12 OS No.2323/2014
The intention behind acquiring item No.1 of the above said property by her mother was to give said property to her for Harishina Kunkuma. But without fulfilling her ambition, her mother Smt. B.N. Shakuntala died intestate on 04.07.1996 leaving behind defendant No.1, her father Nerendra and plaintiff as her legal heirs to succeed her estates. Since the father of the first defendant is an elderly member of joint family is managing affairs of joint family.
After his marriage, the plaintiff and his father without observing their duties towards the family, always spending huge amount of joint family for their selfish motive. Infact, they did not paid single paise to her towards Harashina Kumkuma. All the rents, usufructs of the estate of her late mother were swallowed by the plaintiff and her father.
The plaintiff and his father colluding with each other with mala fide intention in order to deprive her legitimate share in the joint family properties have making hectic efforts to alienate the properties.
13 OS No.2323/2014
She has objected for such mismanagement of the plaintiff and her father. However, the plaintiff and his father did not hear any good suggestions made by him. Therefore, without other go in order to protect the interest of joint family, she filed suit for partition and separate possession of her share in the above said properties in O.S. No.6160/2010 on the file of the City Civil Court, CCH-38 which is still pending.
In the above said suit, the plaintiff herein and his father have filed joint written statement on 19.11.2011 and categorically stated in the said written statement that the father of the plaintiff and her father S.M. Narendra was the absolute owner of the suit schedule property and being her self acquired property in order to avoid deterioration in relationship has executed will in favour of her and the said fact has been stated in paragraph 8 of the written statement which reads " It is further submitted that the first defendant has also executed a Will in favour of the plaintiff as it relates to item No.2 of the suit schedule properties and ....". Thus 14 OS No.2323/2014 she came to know the execution of the said will only after filing of the written statement filed by the plaintiff and his father in the said suit.
When this is the state of affair, her father and father of the plaintiff passed away on 05.05.2012, thereafter the plaintiff, who is aware of the said fact that she is having no manner of right, title or interest over the above suit schedule property has filed above suit on false and frivolous grounds.
After the death of her father, as her father does not get absolute Sale Deed executed in his favour in respect of the suit schedule property, having succeeded the right, title and interest and possession over the suit schedule property under the Will executed by her father, she approached the second defendant herein and complied all the formalities and got absolute Sale Deed in her favour. Thus there is no irregularity in getting Sale Deed registered in her name.
The plaintiff is not entitled for the suit schedule property. Infact, as per his admission in the O.S. 6160/2010 he is not the absolute owner of the suit neither schedule 15 OS No.2323/2014 property nor succeeded any right over the suit schedule property.
As per admissions made in written statement filed in O.S.6160/2010 her father and the plaintiff's father was the absolute owner and in possession of the suit schedule property, as it was his self earned property. Her father and the father of the plaintiff has got every right to execute will and bequeath the suit schedule property in any body's favour and rightly he had executed registered Will and bequeathed the suit schedule property in favour of her. Further said Will is not revoked at all. Therefore, she is the absolute owner of the suit schedule property by virtue of the Will executed by S.M. Narendra - her father and father of plaintiff. Therefore rightly she has filed application before Hon'ble court to delete the suit schedule property in O.S. No.6160/2010. The plaintiff in order to knock off the valuable property of her has filed above suit. Hence, prayed to dismiss the suit. 16 OS No.2323/2014
5. The defendant No.2 appeared before the Court through his counsel and filed written statement contending that it is true that site No.275 of Sonnenahalli Extension was allotted in favour of one S.M. Narendra on 4.5.1962 followed by lease cum sale agreement also executed on 6.3.1967 by him. The said original allottee during his life time did not obtain the absolute sale deed in his favour. After the death of the said original allottee his daughter Smt. Sarala W/o Teja Kumar filed an application for transfer of site in her favour from the defendant authority and produced the death certificate and registered Will executed by S.M. Narendra on 3.10.2008. On the basis of said death certificate, registered Will, encumbrance certificate of the suit schedule property, family tree and other documents by collecting the requisite fee from the 1st defendant, it had executed absolute sale deed on 16.3.2013 in favour of 1st defendant. Hence, prayed to dismiss the suit.
17 OS No.2323/2014
6. On the basis of the above pleadings of both the parties, the following issues have been framed by my learned predecessor in office:-
1) Whether the plaintiff proves that 2nd defendant in collusion with 1st defendant has executed the sale deed on 16.3.2013?
2) Does he prove that the said sale deed as null and void ab-initio?
3) Whether 1st defendant proves that plaintiff has no cause of action to sue defendants?
4) Whether plaintiff is entitle for the relief of declaration as prayed for?
5) What order and decree?
7. The plaintiff in order to prove the case examined himself as PW1 and got marked Ex.P.1 to P.11. The defendant No.1 examined herself as DW1 and examined two witnesses as DW2 and DW3 and got marked Ex.D1 to D.7.
8. Heard the arguments and perused the records of the case.
18 OS No.2323/2014
9. My findings to the above issues are as under:
Issue No.1 & 2 : In the negative,
Issue No.3 : In the affirmative,
Issue No.4 : In the negative,
Issue No.5 : As per the final order,
for the following:-
REASONS
10. ISSUE NOs.1 TO 3 :- Since these Issues are
interconnected with each other, hence, to avoid repetition of facts and evidence they are taken up together for common discussion.
11. It is an admitted fact that the plaintiff and defendant are the children of one S.M. Narendra and Shankunthala. It is an admitted fact that during the lifetime of the said S.M. Narendra, the defendant no. 2 -Bangalore Development Authority had allotted the suit schedule property him and executed the lease cum sale agreement dated 06.03.1967 and during his lifetime he did not obtain absolute sale deed in his favour, but he continued in 19 OS No.2323/2014 possession and enjoyment of the suit schedule property by getting necessary khatha. It is an admitted fact that that the said S.M.Narendra passed away on 05.05.2012. It is an admitted fact that the defendant No.1 filed O.S.No.6160/2010 against the defendant and the said S.M. Narendra seeking partition of the suit schedule property along with other properties.
12. The plaintiff filed his affidavit in lieu of his examination-in-chief as PW.1, wherein he has reiterated the averments made in the plaint and in support of his case he has produced Ex.P1 to Ex.P11. Ex.P1 is the sale deed dated 16.03.2013. Ex.P2 is the certified copy of genealogical tree by way of affidavit. Ex.P3 is the copy of notice dated 10.12.2013. Ex.P.4 is the DL. Ex.P.5 is the Ration Card. Ex.P6 to Ex.P.10 are Gas Receipts. Ex.P.11 is the Telephone Bill and in his cross-examination and confronted Ex.D1 and 2 which are the certified copies of the plaint and written statement filed in O.S.No.6160/2010. The defendant No.1 filed her affidavit in 20 OS No.2323/2014 lieu of her examination-in-chief as DW.1 and in support of her case she has produced Ex.D3 to Ex.D6. Ex.D3 is the certified copy of the Will dated 03.10.2008. Ex.D4 is the death certificate. Ex.D5 is the certified copy of the order sheet in O.S.No.6160/2010. Ex.D6 is the certified copy of I.A. filed in O.S.No.6160/2010. The defendant also got examined two witnesses as DW.2 and 3 who are attesters of Ex.D7- Will dated 03.10.2008.
13. The learned Advocate appearing for the plaintiff has argued that the 1st defendant got married one Teju Kumar on 27.01.2003 on her own wish and abandoned the parental house and thereafter, there was no nexus between the 1st defendant, her father and the plaintiff. Since S.M. Narendra gifted certain properties in favour of the plaintiff and hence, 1st defendant had filed O.S.No.6160/2010 for partition which is pending before the Addl. City Civil Judge, Bengaluru (CCH-39), wherein she has sought 1/3rd share. Thereafter, the 1st defendant by getting fraudulent Will 21 OS No.2323/2014 approached the 2nd defendant and persuaded to execute the sale deed in her favour stating that she is only legal heir of deceased S.M.Narendra and accordingly, obtained the registered sale deed dated 16.03.2013. The 2nd defendant being the statutory authority without inspecting the suit schedule property and without ascertaining who are actual legal heir and whether the Will relied upon by the 1st defendant is genuine or not, executed the sale deed in favour of the 1st defendant which is illegal and the same has to be declared as null and void.
14. The learned Advocate appearing for the defendant No.1 has argued that the deceased S.M. Narendra bequeathed the suit schedule property in favour of 1st defendant under the Will. In O.S.No.6160/2010 the plaintiff himself has admitted the very execution of the Will by the deceased S.M. Narendra. On the basis of the said Will, the 1st defendant has obtained the sale deed from the 2nd defendant. The 2nd defendant by verifying all the records, executed sale deed in 22 OS No.2323/2014 favour of 1st defendant and hence, the sale deed dated 16.03.2013 executed by the 2nd defendant is a valid document. Since the 2nd defendant has followed all the legal formalities and executed the sale deed in favour of 1st defendant and hence, there is no cause of action for the suit.
15. It is the case of the plaintiff that the 1st defendant got married one Teju Kumar on 27.01.2003 on her own and it was a secrete marriage by abandoning the parental house and right from there the 1st defendant is residing in the matrimonial house and there was no nexus between him, his father and 1st defendant. During the lifetime of their father, he gifted some properties which were acquired by him out of self earnings in his favour and his father died intestate. The 1st defendant learnt about the gift of certain properties by their father in his favour and hence, she filed O.S.No.6160/2010 which is pending before the Addl. City Civil Judge, Bengaluru (CCH-39), wherein the suit schedule property is the item No.2 and she claimed 1/3rd share in the 23 OS No.2323/2014 suit schedule property also. The 1st defendant upon coming to know that the sale deed was not executed in favour of deceased S.M. Narendra appears to have ventured a scheme and by creating fraudulent Will has approached the 2nd defendant and persuaded them to execute the sale deed in her favour as she is only legal heir to deceased S.M. Narendara and the 2nd defendant by receiving application executed the absolute sale deed in favour of 1st defendant after lapse of 30 years and it ought to have made inspection of the suit schedule property to find out in whose possession the suit schedule property is lying and who are the actual legal heir and whether the Will on which the 1st defendant is relying is genuine or not. He got issued legal notice dated 10.12.2013 to the 2nd defendant and for that the 2nd defendant has failed to issue reply. Himself and the 1st defendant are the only legal heirs of deceased S.M. Narendra and the suit schedule property is one and only property which is available for partition in between them. 24 OS No.2323/2014
16. It is the case of the 1st defendant that the deceased S.M. Narendra kept suit schedule property for himself and he died intestate and on the contrary their father himself has admitted that he had executed the Will in her favour in the written statement filed by the plaintiff and their father in O.S.No.6160/2010. After coming to know about execution of the Will in her favour she has approached the 2nd defendant to execute the sale deed in respect of the suit schedule property having succeed the right, title, interest and possession of the suit schedule property and she has got every right to get the sale deed from the 2nd defendant and the 2nd defendant by complying all the formalities executed the sale deed in her favour.
17. Admittedly, the 1st defendant is the daughter of deceased S.M. Narendra. Ex.D3 the certified copy of the registered Will dated 03.10.2008 executed by deceased S.M.Narendra in favour of the 1st defendant reveals that the said S.M.Narendra bequeathed the suit schedule property in 25 OS No.2323/2014 favour of 1st defendant and the same is admitted by the deceased S.M.Narendra and the plaintiff in the written statement filed by them in O.S.No.6160/2010. Moreover, in the plaint itself the plaintiff admits that the suit schedule property is liable for partition between him and 1st defendant. In Ex.P.1 it is clearly mentioned at page No.2 that the Sale Deed is executed will not come in way of the right of the other persons if any. The defendant No.2 is the competent authority to execute the sale deed in respect of the suit schedule property. When the defendant No.2 is the competent authority to execute the sale deed and the 1st defendant is one of the legal representatives of the deceased S.M.Narendra and she has also got the registered Will bequeathing the suit schedule property in her favour, then it cannot be said that the 2nd defendant, which is an Authority without complying all the formalities executed the sale deed in favour of 1st defendant and it is null and void-ab-initio. The 1st defendant examined DW.2 by name N.Sridhar and DW.3 by name C.S.Santhosh who are said to be the attesters to the Will and 26 OS No.2323/2014 the plaintiff is seriously disputed the execution of the Will which cannot be considered in this suit as the scope of the suit is whether the sale deed executed by the 2nd defendant in favour of 1st defendant is null and void-ab-initio or not and this is not a suit filed by the plaintiff declaring that he is the absolute owner of the suit schedule property or the defendant No.1 made counter claim to declare that she is the absolute owner of the suit schedule property. Hence, it cannot be said that the 2nd defendant in collusion with 1st defendant has executed the sale deed dated 16.03.2013 and the said sale deed is null and void ab-initio.
18. It is stated in para 16 of the plaint that the cause of action for the suit has arose on 16.03.2013 when the alleged sale deed executed by the 2nd defendant in favour of 1st defendant and on 10.12.2013 when the legal notice is issued to the 2nd defendant. As stated supra, the 1st defendant being the one of the legal heirs of deceased S.M. Narendra under the registered Will got the sale deed dated 27 OS No.2323/2014 16.03.2013 and the plaintiff filed the suit to declare the suit as null and void and hence, there is no cause of action for the plaintiff to file this suit.
19. From the discussion made above I am of the opinion that the plaintiff failed to prove that the 2nd defendant in collusion with the 1st defendant has executed the sale deed dated 16.03.2013 and the sale deed is null and void and the 1st defendant proved that the plaintiff has no cause of action to file this suit. Hence, I answered Issue Nos.1 and 2 in the negative and Issue No.3 in the affirmative.
20. ISSUE NO.4 :- In view of my findings on Issue Nos.1 and 2 in the negative and against the plaintiff, the plaintiff is not entitled for the relief of declaration as sought for in the plaint. Hence, Issue No.4 is answered in the negative.
21. ISSUE NO.5 :- In the result, I proceed to pass the following:-
28 OS No.2323/2014
ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, thereafter corrected and then pronounced by me in the open court, on this the 20th day of June, 2018).
(BASAVARAJ), XLI ADDL.CITY CIVIL JUDGE, BENGALURU.
ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 S.N. Jayaprakash
b) Defendants' side:
D.W.1 : Smt. S.N. Sarala
D.W.2 : N. Sridhar
D.W.3 : C.S. Santhosh
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 C/c of sale deed dated 16.3.2013
29 OS No.2323/2014
Ex.P.2 Affidavit of genealogical tree
Ex.P.3 Office copy of notice dated
10.12.2013
Ex.P.4 Driving License
Ex.P.5 Ration card
Ex.P.6 to 10 Gas receipts
Ex.P.11 Telephone bill
b) Defendants' side :
Ex.D.1 C/c of plaint in OS.6160/2010
Ex.D.2 C/c of written statement in
OS.6160/2010
Ex.D.3 C/c of Will dated 3.10.2008
Ex.D.4 Death certificate
Ex.D.5 C/c of order sheet in OS.6160/2010
Ex.D.6 C/c of IA in OS.6160/2010
Ex.D.7 Original Will dated 3.10.2008
executed by S.M. Narendra
Ex.D.7(a) Signature of S.M. Narendra
Ex.D.7(b) & (c) Signatures of witnesses (BASAVARAJ), XLI ADDL.CITY CIVIL JUDGE, BENGALURU.Digitally signed by BASAVARAJ DN: cn=BASAVARAJ,ou=GOV ERNMENT OF
BASAVARAJ KARNATAKA,o=HIGH COURT OF KARNATAKA,st=Karnatak a,c=IN Date: 2018.06.20 17:22:38 IST