Bangalore District Court
L Rani vs K Lakshminarayana Reddy on 6 January, 2024
KABC0A0009642013
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH-73)
Present:
Sri. P. G Chaluva Murthy,
M. A. L.L.M
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 6th day of January 2024
O.S.No.25236/2013
Plaintiff: Smt. L. Rani,
Aged about 35 years,
Daughter of Sri. K. Lakshminarayana
Reddy,
Wife of Sri. K. Nagamohan Reddy,
Residing at 'JANA BINDU'
No.85/A, 11th Main, 14th Cross,
Behind B.D.A Complex,
H.S.R Layout, 6th Sector,
Bangalore-560 102.
(By Sri. M.N.R Adv., for Plaintiff)
2 OS No.25236/2013
V/s
Defendants: 1. Shri K. Lakshminarayana Reddy,
Aged about 62 years,
Son of Late Krishna Reddy,
2. Sri. L. Murali,
Aged about 34 years,
Son of Sri. K. Lakshminarayana
Reddy,
3. Sri. L. Mohan,
Aged about 32 years,
Son of Sri. K. Lakshminarayana
Reddy,
All are residing at No.407,
23rd Cross, 10th Main, 7th Sector,
H.S.R Layout, Bangalore-560 102.
4. Sri. R. Nagaraj,
Aged about 52 years,
Son of Late M.K. Radhakrishna
Reddy,
Residing at No.1212,
HAL 2nd Stage,
Indiranagar, Bangalore-560 038.
5. Sri. Austin Roach,
Son of Late P.A. Roach,
Aged about 57 years,
Residing at No.5,
1st Main Road, Defense Colony,
Indiranagar, Bangalore-560 038.
3 OS No.25236/2013
6. Smt. N. Shakuntala,
W/o K. Lakshminarayana Reddy,
Aged about 64 years,
R/at No.407,
23rd Cross, 10th Main, 7th Sector,
H.S.R Layout, Bangalore-560 102.
(By Sri. S.S.R Adv., for Defendant No.1 to 3,
Sri. A.D Adv., for D.4, Sri. S.S Adv., for D.5,
D.6 - Ex-parte)
Date of Institution of the suit 6.2.2013
Nature of the (Suit or pro-note,
suit for declaration and Partition
possession, suit for injunction,
etc.)
Date of the commencement of 14.9.2021
recording of the Evidence.
Date on which the Judgment 6.1.2024
was pronounced.
Total duration Year/s Month/s Day/s
10 10 00
LXXII ADDL.CITY CIVIL AND SESSIONS
JUDGE,
Mayohall Unit: Bengaluru.
4 OS No.25236/2013
JUDGMENT
The Plaintiff is before this Court seeking partition in couple of immovable properties and for other consequential reliefs.
2. The epitome of the case of the Plaintiff is as follows:
The Plaintiff is the daughter of 1 st Defendant and Defendant No.2 and 3 are the sons of first defendant. The Defendant No.4 & 5 are the purchasers and Defendant No.6 is the wife of 1st Defendant. The Plaintiff and Defendant No.1 to 3 constitute Hindu undivided joint family governed by Hindu Law. The Suit Schedule Properties bearing Sy.No.65 measuring 05 Guntas and Sy.No.66 measuring 1 Acre 12 Guntas both situated at Haralur Village, Varthur Hobi, Bangalore East Taluk, which are herein after will be referred to as Suit Schedule Properties are the joint family properties of Plaintiff and Defendant No.1 to 3.
As there was cordial relationship between the Plaintiff and Defendant No.1 to 3, she was under the impression that she would get her share. The Plaintiff 5 OS No.25236/2013 is entitled for a share in the Suit Schedule Properties under Section 6 of the Hindu Succession Act 1956.
3. It is further pleaded by the Plaintiff that when she demanded partition of the property during the first week of January 2013, the Defendant No.1 to 3 gave evasive answers and on verification of the records, she came to know that the Suit Schedule Properties were sold by the Defendant No.1 to 3 in favour of Defendant No.4 under the registered Sale Deed dtd: 22.6.2004. It was also surprised to know that in the said Sale Deed, the Plaintiff was represented by her father as a General Power of Attorney holder. However, no such General Power of Attorney was executed by the Plaintiff in favour of her father and it is a false and baseless document. Thereafter, there is registered Agreement dtd:
28.10.2010 between the Defendant No.4 and 5. Both the Sale Deed dtd: 22.6.2004 and Agreement dtd:
28.10.2010 are not binding on the share of the Plaintiff and they are null and void. Under the circumstances, the Plaintiff approached this Court seeking partition of the properties and also sought for 6 OS No.25236/2013 declaration declaring the Sale Deed and Agreement as not binding on the Plaintiff's share.
4. Pursuant to summons, except the Defendant No.6, all other Defendants have entered appearance through their Counsels. The 1st Defendant in his written statement while admitting the relationship of the Plaintiff contended that he sold the property in favour of the Defendant No.4 for a sum of Rs.15,00,000/- along with Defendant No.2 & 3. However, at the time of sale transaction it was made to the 4th Defendant that the 1st Defendant was not authorized by the Plaintiff in any manner to sell her share in the Suit Schedule Properties. The 4 th Defendant assured that he would manage the matter with the Plaintiff in the event of Plaintiff making any claim in the Suit Schedule Properties. According to the 1st Defendant the Defendant No.1 to 3 are not aware of the exchange of properties between the Defendant No.4 and 5 and they themselves have to settle the issue between them and the Plaintiff. Therefore, the 1 st Defendant sought for appropriate orders, just and proper in the interest of equity.
7 OS No.25236/20135. The Defendant No.2 and 3 adopted the written statement of their father.
6. The 4th Defendant in his written statement while denying the plaint averments regarding the Plaintiff pleading ignorance of General Power of Attorney executed by the Plaintiff in favour of her father, admitted that he purchased the property on 22.6.2004 from the Defendant No.1 to 3 and the suit is filed by the Plaintiff after lapse of 09 years. Therefore, the suit is barred by law of limitation. According to Defendant No.4, there is no prima-facie case for grant of relief in favour of the Plaintiff. The Suit Schedule Properties were owned by the 1 st Defendant and his family members and the Plaintiff had executed General Power of Attorney dtd:
21.6.2004 in favour of her father conferring her powers to deal with her share in the Suit Schedule Properties. Accordingly the Defendant No.1 to 3, Defendant No.6 along with the 1st Defendant representing the Plaintiff as her General Power of Attorney holder sold the property for a valuable consideration under the registered Sale Deed dtd:
22.6.2004. Thereafter, the Defendant No.4 and 5 had 8 OS No.25236/2013 entered into Deed of Exchange dtd: 28.10.2010 and now the 5th Defendant is in possession and enjoyment of Suit Schedule Properties.
7. It is also contended by the 4th Defendant that the Plaintiff is not entitled for share in the property under the proviso to Section 6 of Hindu Succession (Amendment) Act 2005, since the alienation of the property was much prior to 20.12.2004 whereas the Amended Act was given effect to by 9.9.2005.
Therefore, the daughters are not entitled for share in the ancestral property under the proviso to Section 6 of the said Act. The 4th Defendant is the bonafide purchaser of the property for the value and the above suit is filed with a malafide intention. The alleged fraud has not been pleaded by the Plaintiff as contemplated under Order VI Rule 4 of CPC. A vague averments are made in the pleadings. It is also pleaded that the suit is barred under Article 109 of the Limitation Act. Therefore, the 4th Defendant sought for dismissal of the suit with exemplary costs.
8. Similarly the 5th Defendant in his written statement contended that the suit of the Plaintiff is not 9 OS No.25236/2013 maintainable on the ground of suppression of facts. The Plaintiff has misrepresented the various facts and played fraud by suppressing material facts before the Court. The Plaintiff had executed the General Power of Attorney in favour of her father and accordingly the Suit Schedule Properties were sold in favour of Defendant No.4 in the year 2004 itself. Since the Plaintiff was herself a party to the Sale Deed and had received the consideration, she cannot maintain the suit before this Court. It is also the contention of the Defendant No.5 that the suit is filed after lapse of 09 years from the date of alienation of the property and therefore it is barred by limitation. The 5 th Defendant while denying the other plaint averments contended that both Defendant No.4 and 5 exchanged their respective properties by way of Deed of Exchange dtd: 28.10.2010 and Defendant No.5 is in possession and enjoyment of the Suit Schedule Properties. According to Defendant No.5 he had developed the property in several survey numbers by forming layout after obtaining necessary permission from the competent authority and the BDA has sanctioned the residential layout plan in favour of the 10 OS No.25236/2013 5th Defendant and after formation of layout by the 5 th Defendant as per the norms of BDA, he has sold sites in favour of the third parties by investing crores of rupees for developing the Schedule Properties. Under the circumstances, the Defendant No.5 also sought for dismissal of the suit with exemplary costs.
9. Based on the pleadings of the parties, my leaned predecessor has framed the following issues:
1. Whether the Plaintiff proves that, she herself and Defendant No.1 to 3 constituted a undivided Hindu Joint Family and succeeded the Suit Schedule Properties left by Krishnareddy who is the father of Defendant No.1 and the same are continued till today as a undivided Hindu Joint Family Properties without effecting partition?
2. Whether the Plaintiff proves that, she is entitled for seeking the relief of cancellation of respective sale deeds registered in different Sub-Registrar office of Bengaluru District relating to 11 OS No.25236/2013 the suit schedule properties mentioned in the plaint at prayer column No.(d) to (g) and the same are deserved to be cancelled as prayed for?
3. Whether the Plaintiff proves that, she is entitled for permanent injunction against the Defendant No.1 to 5 for restraining them from changing the nature of the Suit Schedule Properties?
4. Whether the Plaintiff proves that, she is entitled for mesne profit to the extent of her 1/4th share as prayed for?
5. Whether the Plaintiff proves that, she is entitled for 1/4th share in the Suit Schedule Properties?
6. What order or decree?
ADDITIONAL ISSUE
1. Whether the Defendant No.5 proves that, the suit of the Plaintiff is barred by proviso Section 6 of Hindu Succession 12 OS No.25236/2013 (Amendment) Act 2005 in view of the fact that the property was sold on 22.6.2004?
10. The Plaintiff got herself examined as PW.1 and got marked Ex.P.1 to Ex.P.5 and closed her side. The 5th Defendant examined himself as DW.1 and got marked Ex.D.1 to Ex.D.69 documents and closed his side. The 4th Defendant got himself examined as DW.2 and no documents are marked. The Defendant No.1 to 3 not chosen to lead evidence from their side.
11. Heard the Counsel for Plaintiff and Defendant No.5. The Counsel for Defendant No.4 adopted the arguments of Counsel for Defendant No.5.
12. On appreciation of the evidence and documents on record, my findings on the above issues are as under:
Issue No.1: In the Negative.
Issue No.2: In the Negative.
Issue No.3: In the Negative.
Issue No.4: In the Negative.
Issue No.5: In the Negative.
Addl.Issue No.1: In the Affirmative. Issue No.6: As per final order for the following:13 OS No.25236/2013
REASONS
13. Issue Nos.1 to 5 & Additional Issue No.1:-
Since all the above issues revolve around the origin of the properties and alienation of the properties in favour of Defendant No.4, all the above issues have been taken up together for consideration,in order to avoid repetition of facts.
14. The definite case of the Plaintiff is that the Suit Schedule Properties are the undivided Hindu joint family properties and without her knowledge and consent both the properties have been sold by the Defendant No.1 to 3 in favour of the Defendant No.4 and as such Sale Deed is not binding on the share of the Plaintiff. Whereas the contention of the Defendant No.4 and 5 is that the Plaintiff had executed the General Power of Attorney in favour of her father and on the strength of the same property was sold by the Defendant No.1 to 3 in favour of the Defendant No.4 in the year 2004 for a valuable consideration under the registered Sale Deed and therefore the Plaintiff cannot question the Sale Deed of Defendant No.4.
14 OS No.25236/201315. The burden of proving the above three issues was on the Plaintiff. The Learned Counsel for the Plaintiff vehemently argued that both the Suit Schedule Properties are the ancestral properties of the Plaintiff and the Defendant No.1 to 3 and they are in joint possession and enjoyment of the same. According to Learned Counsel, the Plaintiff was under the impression that her father would effect partition and allot her legitimate share in the Suit Schedule Properties. However, since the Defendants started giving evasive answer, she was compelled to obtain the revenue records in respect of the Suit Schedule Properties and at that time she came to know about the alienation of the Suit Schedule Properties in the year 2004. The Learned Counsel submits that in the Sale Deed there was reference of General Power of Attorney said to have been executed in favour of the Defendant No.1 and no such General Power of Attorney executed by the Plaintiff in favour of her father. Therefore, the Sale Deed is not binding on the share of the Plaintiff. According to the Learned Counsel, the Plaintiff being the coparcener under the proviso to Section 6 of Hindu Succession (Amendment) 15 OS No.25236/2013 Act 2005, she is entitle for a share in the Suit Schedule Properties. Except the order of conversion, all other documents came to be in existence after filing of the suit. The document produced at Ex.P.67 General Power of Attorney said to have been executed by the Plaintiff has been disputed by the Plaintiff. The Plaintiff has made an attempt to refer the said document to the Forensic Science Laboratory which was dismissed by this Court. The Learned Counsel while referring to the evidence of Defendants contended that the Defendants have failed to prove the signature of the Plaintiff on the disputed document by producing any other documents containing the signature of the Plaintiff. On the other hand, the Defendant No.4 & 5 admitted the ownership of the Plaintiff over the Suit Schedule Properties. In so far as the limitation is concerned the Learned Counsel for the Plaintiff contended that Article 109 of the Limitation Act is not applicable to the facts of the case, since the suit is filed within 12 years from the from the date of alienation of the property. Therefore, the Learned Counsel for the Plaintiff sought for decree as prayed for.
16 OS No.25236/201316. Per contra, the Learned Counsel for the Defendant No.5 strenuously argued that the suit of the Plaintiff is hopelessly barred by law of limitation, since it is filed after lapse of 09 years from the date of alienation of the Suit Schedule Properties. The Learned Counsel submitted that it is a specific defense of the Defendant No.4 and 5 that the proviso to Section 6 of the Hindu Succession (Amendment) Act 2005 is applicable to the case on hand and since the properties in question have been alienated prior to December 20, 2004 the Plaintiff cannot question the alienation which are saved under the said proviso. The status of coparcenar was given to the daughters only with effect from 9.9.2005 and as such the Plaintiff cannot maintain the suit questioning the Sale Deed prior to December 20 2004.
17. The Learned Counsel for the Defendant No.5, in so far as alleged facts pleaded by the Plaintiff in execution of General Power of Attorney at Ex.D.67 is concerned, it is argued that the Plaintiff neither pleaded the alleged fraud or proved by the Plaintiff. The better particulars are not furnished by the Plaintiff as to the manner of fraud as contemplated 17 OS No.25236/2013 under Order VI Rule 4 of CPC. Absolutely, there are no pleadings regarding the alleged fraud. On the other hand, the Plaintiff voluntarily executed the General Power of Attorney at Ex.D.67, which is notarized before the Notary Public which has got presumption under Section 85 of the Indian Evidence Act. The 1 st Defendant being the father of the Plaintiff, for obvious reasons not contested the matter, which clearly indicate that the Plaintiff and Defendant No.1 to 3 have colluded together and filed the above suit in order to extort money from the bonafide purchasers. The Learned Counsel while referring to the cross- examination of PW.1 submitted that the Plaintiff went on denying her own signatures in the plaint and vakalathnama and by looking at the conduct of the Plaintiff, without any hesitation it could be held that the General Power of Attorney has been executed by the Plaintiff herself to deal with the property in favour of her father. When it is the case of the Plaintiff that fraud was played by her father, admittedly no complaint is lodged against her father and no legal action is taken against her father. It is also the submission of the Learned Counsel that the 1 st 18 OS No.25236/2013 Defendant being the kartha of the family was having every right to alienate the property for family legal necessities. The Learned Counsel while referring to the recitals in the Sale Deed contended that the properties in question were sold for the family legal necessities of the 1st Defendant as kartha of the family and therefore the Plaintiff cannot question the same. Hence, the Counsel for Defendant No.5 sought for dismissal of the suit with exemplary costs.
18. Bearing in mind the rival contentions, let me appreciate the evidence and documents on record.
19. The Plaintiff filed her affidavit in lieu of oral evidence and reiterated the plaint averments regarding mode of acquisition of the property from her grand-father Late Krishnareddy and her joint possession with the Defendant No.1 to 3 and her entitlement for 1/4th share in the property, the alienation of the properties by the Defendant No.1 to 3 in favour of Defendant No.4 and 5 on 22.6.2004 and relied on five documents. Ex.P.1 is the certified copy of the Sale Deed dtd: 22.6.2004 which is a registered document under which the Defendant No.1 to 3 and 6 and 1st Defendant as a General Power of Attorney 19 OS No.25236/2013 holder of Plaintiff, alienated the Suit Schedule Properties in favour of the Defendant No.4 for a valuable consideration of Rs.15,00,000/-. The name of the Plaintiff is also reflected in the Sale Deed. Ex.P.2 is the certified copy of Deed of Exchange dtd:
28.10.2010 between the Defendant No.4 and Defendant No.5. Ex.P.3 is the RTC in respect of property bearing Sy.No.65 for the year 2012-2013 in which 1 Acre 20 Guntas of property is standing in the name of Defendant No.4 and the mode of acquisition is reflected at Col.No.10 of RTC is by virtue of Sale Deed and MR No.59/2003-2004. Ex.P.4 is another RTC for the same year in respect of property bearing Sy.No.66 and 20 Gunts of property is standing in the name of 4th Defendant as per MR No.1/2004-2005 and Sale Deed. Except the above documents, no other documents are produced by the Plaintiff to establish that the Suit Schedule Properties were in fact the ancestral properties of the Plaintiff and Defendant No.1 to 3. At Page 3 Para-1 of the Sale Deed Ex.P.1 there is a reference regarding flow of title. The Suit Schedule Properties were acquired by Krishnareddy, the father of the 1st Defendant as per the order passed 20 OS No.25236/2013 by the Special Deputy Commissioner of Abolition of Inams in Case No.10 and on the demise of Krishnareddy, his legal heirs entered into a Partition Deed dtd: 20.10.1982 and in the said partition, schedule properties were allotted to the share of the 1st Defendant.
20. PW.1 was cross-examined by the Learned Counsel for the Defendant No.5. Admittedly, the Plaintiff is residing in her matrimonial house at 11 th Main, BDA Complex, HSR Layout, Bengaluru. Though the PW.1 has stated that she has produced documents to show that the Schedule Properties were initially belonged to Krishnareddy, no such documentary evidence is available on record. Couple of RTCs produced by the Plaintiff indicate that as on the date of suit, the Suit Schedule Properties are standing in the name of 4th Defendant. In order to establish that the deceased Krishna Reddy, the grand father of the Plaintiff had acquired the Suit Schedule Properties, no material is available on record. The fact admitted by the PW.1 is that it is her father the 1st Defendant who was supervising and looking after all the affairs of the Schedule Properties. The categorical admission of the 21 OS No.25236/2013 PW.1 is that her father is the kartha of her parental family. It is also admitted fact that the 1st Defendant along with Defendant No.2 and 3 sold the properties in favour of the Defendant No.4 under the registered Sale Deed dtd: 22.6.2004 as per Ex.P.1.
21. In so far as, execution of General Power of Attorney by the Plaintiff in favour of her father is concerned, when it was questioned to the witness that her father had represented the Plaintiff in execution of the Sale Deed in favour of the Defendant No.4, the Plaintiff answered that she never authorized her father. But the fact admitted by the witness is there is a recital in the Sale Deed that she was represented through her father for execution of the Sale Deed. When it was questioned as to the Exchange Deed between the Defendant No.4 and 5 dtd: 28.10.2010 as per Ex.P.2 the witness pleaded ignorance. But in the pleadings the PW.1 has only stated that there is a registered Agreement between the Defendant No.4 and Defendant No.5. Though she has produced the Deed of Exchange between the Defendant No.4 and 5 as per Ex.P.2, she does does not know the nomenclature of the document under challenge. Therefore, in the cross-
22 OS No.25236/2013examination she pleaded ignorance regarding the Deed of Exchange between the Defendant No.4 and 5.
22. In the further cross-examination, the witness in unambiguous terms admitted that her cousin brother had obtained the certified copy of the Exchange Deed dtd: 28.10.2010 as per Ex.P.2. On perusal of Ex.P.2, it could be seen that one Ravi L appears to have applied for certified copy of the document on 18.1.2013 and the same is secured on the same date. This admission of PW.1 corroborates the contention of the Defendants that there is collusion between the Plaintiff and the Defendants No.1 to 3 in filing the above suit.
23. Since the Plaintiff denied the execution of any such General Power of Attorney in favour of her father, it is suggested to the witness that she has filed the above suit at the instance of her father and her father had instructed the Plaintiff to file the above suit. Though the said suggestion is denied by the PW.1 in the further cross-examination when the signatures on the plaint were confronted to the witness, she denied her own signatures on the plaint. Equally, the Plaintiff 23 OS No.25236/2013 denied her signatures on the vakalathnama executed in favour of her Advocate. In an attempt to deny the execution of General Power of Attorney dtd: 21.6.2004 the Plaintiff went on denying her own signatures on the vakalathnama and the plaint. But the fact admitted by the witness is that she used to affix her signatures on the documents after going through its contents and she could understand the contents of the document both in English and Kannada language.
24. At this stage, it s necessary to refer the document at Ex.D.67 which is a notarized General Power of Attorney said to have been executed by the Plaintiff in favour of her father to alienate the Suit Schedule Properties. The document was impounded by this Court when it was tendered in evidence before this Court and necessary deficit stamp duty and fine was paid by the Defendants. On perusal of the Ex.D.67, it could be seen that the same is signed by the Plaintiff. Of course, the Plaintiff filed the application to refer the Ex.D.67 to Forensic Science Laboratory, Madivala. But this Court rejected the application, since sufficient materials were available on record. As aforesaid, there are signatures of the 24 OS No.25236/2013 Plaintiff on all the pages of the plaint and vakalathnama. This Court acting under Section 73 of the Indian Evidence Act compared the signatures of Plaintiff on the plaint and other documents, with the signatures of the Plaintiff on Ex.D.67. On comparison of the signatures, this Court is of the opinion that, absolutely there is no iota of variation in the signatures of the Plaintiff on the admitted documents and the disputed document, except placing initial 'L' after the name in Ex.D.67. The signatures on the plaint, the initial 'L' is prefixed to the signature and whereas in the Ex.D.67 the initial 'L' is affixed after the name. Therefore, this Court is of the opinion that only for the sake of denial, the Plaintiff was denying her signatures on the admitted documents.
25. In the further cross-examination, the witness admitted the possession of the properties by the Defendant No.5 and admittedly she has not visited the Schedule Properties and she is not in a position to depose as to what are all the developments taken place in the Suit Schedule Properties since 2004. When it was questioned, as to whether she is aware of the nature of the Suit Schedule Properties or 25 OS No.25236/2013 whether the Suit Schedule Properties have retained their agricultural potentiality, the witness has stated that certain buildings have been taken up over the Suit Schedule Properties. This admission is supported by voluminous Sale Deeds and photographs available on record produced by the Defendants. The photographs at Ex.D.48 to Ex.D.69 indicate that several palatial buildings have come up in the Suit Schedule Properties and the properties are fully developed. Whereas the Plaintiff is claiming a share in the agricultural properties. The witness pleaded ignorance regarding valuation of the Suit Schedule Properties as on the date of suit. Therefore, it is suggested that the Plaintiff by suppressing her knowledge about the Sale Deed, she has filed the above suit taking advantage of amendment to Section 6 of Hindu Succession Act. The said suggestion is denied by PW.1.
26. In so far as possession is concerned, there was question as to whether from 2004 onwards her father or brothers or the Plaintiff are in possession of the Suit Schedule Properties, the witness naturally pleaded ignorance. As stated above, the possession 26 OS No.25236/2013 was already parted with by the Defendant No.1 to 3 in the year 2004 itself and thereafter the properties have been developed by the Defendant No.4 and 5 and as such the question of Plaintiff or the Defendant No.1 to 3 being in possession of the properties does not arise.
27. Coming to the evidence of Defendant No.5 in his affidavit filed in lieu of oral evidence while reiterating the written statement averments regarding his developing the property in question having exchanged the properties with the properties of the 4th Defendant and his possession over the Suit Schedule Properties etc., it is specifically deposed that the suit of the Plaintiff is not maintainable in view of amendment to Hindu Succession (Amendment) Act 2005, since the property was sold much prior to 20 th December 2004. The Suit Schedule Property was alienated by the Defendant No.1 to 4 and there is General Power of Attorney in favour of the 1 st Defendant executed by the Plaintiff and on the strength of the same the property was sold in favour of the Defendant No.4 under the registered Sale Deed dtd: 22.6.2004. Therefore, the suit of the Plaintiff is not maintainable. The Defendant No.5 relied on 69 27 OS No.25236/2013 documents. Ex.D.1 is the original Sale Deed dtd:
22.6.2004 under which the 4th Defendant purchased the Suit Schedule Properties from Defendant No.1 to 3 and the Plaintiff is also one of the parties to the said Sale Deed and it appears that the 1 st Defendant as a General Power of Attorney holder of the Plaintiff executed the Sale Deed for a valuable consideration of Rs.15 Lakhs. Ex.D.2 is the Certified copy of Deed of Exchange entered into between Defendant No.4 & 5 exchanging the properties, which is a registered document. Ex.D.3 is the order passed by the Deputy Commissioner on 23.3.2010 permitting the Defendant No.4 & 5 to convert the property for non-agricultural purpose. Ex.D.4 is the Deed of Relinquishment dtd:
3.2.2012 between the 5th Defendant and the BDA.
Ex.D.4(a) is a Plan attached to the documents. Ex.D.5 is the Certified copy of of Layout Plan which indicate that the 5th Defendant has formed layout in the Suit Schedule Properties. Ex.D.6 is the Certified copy of of Work Order dtd: 19.5.2012 issued by the BDA in favour of the Defendant No.5. Ex.D.7 & Ex.D.8 are the Certified copies of Letters dtd: 30.5.2012 and 4.12.2014 issued by the BDA in favour of Defendant 28 OS No.25236/2013 No.5 for having released 60% of the sites in favour of the Defendant No.5. Ex.D.9 to Ex.D.29 are several Sale Deeds executed by the Defendant No.5 in favour of several purchasers after formation of layout. The purchasers are not parties to the above proceedings. It appears from the Sale Deeds that the purchasers were put in possession of their respective sites subsequent to execution of Sale Deed. Ex.D.30 to Ex.D.66 are the Photographs and CD, which indicate that several palatial houses have come up in the Suit Schedule Properties and the Suit Schedule Properties are no more agricultural lands. However, the Plaintiff has suppressed all these developments over the Suit Schedule Properties. Ex.D.67 is the General Power of Attorney said to have been executed by the Plaintiff in favour of her father on 21.6.2004. The said document is already discussed by this Court. Ex.D.68 & Ex.D.69 are also couple of Photographs in respect of residential houses constructed in the layout formed in the Suit Schedule Properties.
28. The aforesaid documents clinchingly establish that the 5th Defendant has developed the property by obtaining necessary permission from the 29 OS No.25236/2013 competent authority and has already sold several sites in favour of purchasers and purchasers are in possession of their respective sites by constructing residential houses.
29. DW.1 was cross-examined by the Learned Counsel for the Plaintiff. Even in the cross-examination the DW.1 has stated that the 1 st Defendant had the absolute right over the Suit Schedule Property, though the property was granted in favour of Late Krishnareddy under the Inam Abolition Act. It is also admitted by the DW.1 that Deed of Exchange was entered into between the Defendant No.4 & 5 on the basis of Ex.P.1 Sale Deed. Of course, the witness pleaded ignorance regarding payment of sale consideration of Rs.15 Lakhs by the 4th Defendant. When it was suggested to the witness that the Suit Schedule Property was vacant land in the year 2013- 2014 the witness deposed that he was unable to remember the same. But the document placed on record by the 5th Defendant indicate that in the year 2012 itself the property was converted for non- agricultural purpose as per Ex.D.6 and Layout Plan was also approved in the year 2012 itself. Therefore, 30 OS No.25236/2013 as on the date of suit, the property was not the agricultural land as pleaded by the Plaintiff. The suggestion that the Plaintiff was not aware of execution of Ex.P.1 and Ex.P.2, was denied by the witness. The further suggestion that the transactions at Ex.D.9 to Ex.D.29 are subsequent to filing of the above suit is also denied by the DW.1. Of course, the Sale Deeds produced by the Defendant No.5 at Ex.D.9 to Ex.D.29 are from 2017 onwards. By that time, admittedly the property was converted for non- agricultural purpose, sites were formed by the 5th Defendant. The further suggestion that the developmental work started after filing of the above suit was denied by the witness. Repeatedly, it is suggested that, Plaintiff had no knowledge about the Sale Deeds executed by the Defendant No.5 has been denied by the witness.
30. It is significant here to note that, even after the written statement by the 5 th Defendant and after marking of documents at Ex.D.9 to Ex.D.69, no attempt is made by the Plaintiff to question the various Sale Deeds executed by the 5th Defendant. This witness also specifically stated in the cross-
31 OS No.25236/2013examination that the signature in Ex.D.67 is the signature of daughter of the 1 st Defendant. Of course, the witness stated that he did not verify about the genuineness of Ex.D.67 before entering into the Deed of Exchange. According to the witness he had no personal knowledge about Ex.D.67, what is material to notice here is that Ex.D.67 is executed by the Plaintiff in favour of her father and the Sale Deed was executed in favour of Defendant No.4 by the Defendant No.1 to 3 in the year 2004 and whereas the Exchange Deed between the parties is in the year 2010. Therefore, naturally the witness deposed that he had no personal knowledge about Ex.D.67. The remaining cross-examination are only stock suggestions which have been denied by DW.1. Not a word palatable to the Plaintiff was elicited in the cross-examination of DW.1.
31. DW.2 is the 4th Defendant who naturally deposed regarding his purchasing the properties from the Defendant No.1 to 3 and according to DW.2 the Plaintiff has executed a General Power of Attorney in favour of her father on 21.6.2004 as per Ex.D.67 and he purchased the property for a valuable 32 OS No.25236/2013 consideration much prior to amendment to Hindu Succession (Amendment) Act 2005 and therefore the Plaintiff cannot maintain the suit challenging the Sale Deed which came into existence prior to December 20 th 2004. DW.2 also deposed regarding the developments made by the 5th Defendant after the Deed of Exchange etc.
32. DW.2 also cross-examined at length by the Learned Counsel for the Plaintiff. Several suggestions on Ex.D.67 were put to the witness stating that the Plaintiff was not present at the time of negotiation and she never consented to sell her share in favour of 4 th Defendant etc. All the suggestions have been denied by the DW.2. There is a specific suggestion to the witness that the witness himself got drafted the General Power of Attorney at Ex.D.67. The said suggestion is denied by the witness. According to witness, he could see the General Power of Attorney only at the time of registration of the Sale Deed. The witness clarified the situation stating that since the Plaintiff was pregnant at that time she was informed him that she was unable to appear before the Sub- Registrar's Office. DW.2 also deposed that he had 33 OS No.25236/2013 verified all the property documents before purchasing the Suit Schedule Properties through his Counsel. According to the witness, he has paid the consideration amount by way of cheque to 1 st Defendant and he has not made any payment to the Plaintiff. Since, the Sale Deed was executed by the Defendant No.1 to 3 and the 1 st Defendant as a General Power of Attorney holder of the Plaintiff, naturally the cheque was in the name of the 1 st Defendant. It is not the case of the Plaintiff that the payment was not made by the 4th Defendant by way of cheque. Even there is a reference to payment of amount by the 4th Defendant in the Sale Deed. The cross-examination at Para No.4 is regarding exchange of properties by the Defendant No.4 & 5, which is not in dispute. As per Ex.P.2 the Defendant No.4 & 5 got exchanged the properties. Even in the further cross- examination, the witness stated that the 5 th Defendant had developed the Suit Schedule Property. There is a specific suggestion to the witness that himself and Defendant No.5 as partners formed residential layout in the Suit Schedule Property, and other properties surrounding the Suit Schedule Property. The said 34 OS No.25236/2013 suggestion is denied by the witness. By this suggestion the Plaintiff impliedly admitted that the property has been already developed and residential layout is formed by the Defendant No.5. However, for the reasons best known to the Plaintiff none of the Sale Deeds are challenged before the Court and all the purchasers have not been arrayed as parties to the above proceedings.
33. In so far as Ex.D.67 General Power of Attorney is concerned, at Para No.6 it is suggested that the signature on Ex.D.67 is not that of the Plaintiff etc. The said suggestions are denied by DW.2. The DW.2 repeatedly stated that Ex.D.67 contains the signature of the Plaintiff. The witness voluntarily stated that though he met the Plaintiff on several occasions, she never disputed the signature on the document. The further suggestion that the Plaintiff was not aware of purchase of property by the 4th Defendant has been denied by the witness.
34. On careful evaluation of the entire evidence of both Plaintiff and Defendants, what os to be seen is that the Suit Schedule Properties have been alienated 35 OS No.25236/2013 much prior to amendment to Hindu Succession (Amendment) Act 2005. There is General Power of Attorney at Ex.D.67 said to have been executed by the Plaintiff. Of course, the Plaintiff denied the execution of Ex.D.67. This Court in the earlier paragraphs observed that the signature found on Ex.D.67 is that of Plaintiff and there is no variation in the admitted signature and the disputed signature, when compared the same acting under Section 73 of the Indian Evidence Act. At this stage itself it is necessary to refer Section 85 of the Indian Evidence Act which reads thus:
85. Presumption as to powers-of-attorney. -- The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, 1[Indian] Consul or Vice-Consul, or representative of the [Central Government], was so executed and authenticated.36 OS No.25236/2013
35. From the above provision, it is crystal clear that the Ex.D.67 is executed before the Notary Public as contemplated under the Notaries Act and it contains the signatures of the Plaintiff. The General Power of Attorney is drafted by an Advocate M.N. Vanishree and it is notarized before A. Idinabba a Notary Public on 22.6.2004. Thereafter the same is certified under Section 41 of the Karnataka Stamp Act 1957 and deficit stamp duty along with fine is paid by the Defendant No.4 & 5. Therefore, the General Power of Attorney at Ex.D.67 has presumption under Section 85 of the Indian Evidence Act.
36. While considering the evidence of PW.1, it is already observed that the Plaintiff having executed General Power of Attorney in favour of her father, now after lapse of more than nine years has appeared before this Court seeking partition of the properties.
37. In the pleadings, it is only stated by the Plaintiff that she never executed any General Power of Attorney in favour of anybody including 1 st Defendant. Nowhere it is pleaded by the Plaintiff that the signatures found on Ex.D.67 are forged or obtained by 37 OS No.25236/2013 misrepresentation, coercion or by playing fraud. It is not the case of the Plaintiff that her signatures were forged by the 1st Defendant or by any other Defendants for that mater. Therefore, the Learned Counsel for the Defendant No.4 & 5 relied on a ruling reported in 2019 (8) SCC 701 (Raja Ram V/s Jai Prakash Singh & Others), wherein the Hon'ble Apex Court at Para No.18 observed thus:
"18. The primary ingredients of the law need to be established by proper pleading supported by relevant evidence. Cases cannot be decided on assumptions or presumption."
38. The principle laid down by the Hon'ble Apex Court squarely applies to the facts of the case. In the case on hand, there are no pleadings regarding any fraud, coercion, misrepresentation or forgery by the 1 st Defendant in getting the General Power of Attorney executed at Ex.D.67. Therefore, the Plaintiff was required to prove her case in accordance with the pleadings. While discussing the evidence of PW.1 this 38 OS No.25236/2013 Court has already observed the contradictions in the pleadings and evidence of the Plaintiff.
39. Though the 1st Defendant in his written statement contended that he has not obtained the consent of his daughter, he has not stepped into the witness box to support his daughter. It is also not the case of Defendant No.1 or Defendant No.2 & 3 that they forged the signature of the Plaintiff on Ex.D.67. Therefore, adverse inference requires to be drawn against the Plaintiff and the 1st Defendant. The Learned Counsel for the Defendant No.4 & 5 relied on the ruling reported in 1999 (3) SCC 457 (Iswar Bhai C. Patel Alias Bachu Bhai Patel V/s Harihar Behera & Another) wherein the Hon'ble Apex Court while considering Section 114(g) and Section 106 of Indian Evidence Act at Head Note (C) observed thus:
C. Evidence Act, 1872 -
Ss. 114, III.(g) and 106 -
Adverse Presumption - Must be drawn against Defendant who does not present himself for cross-examination and refuses to enter the witness box in order to refute allegations 39 OS No.25236/2013 made against him or to support his pleading in his written statement.
40. In the case on hand, in the written statement the 1st Defendant at Para No.7 stated that the 1 st Defendant was not authorized by the Plaintiff in any manner to sell her share in the Suit Schedule Properties. In order to substantiate this contention the 1st Defendant had not stepped into the witness box. Had the 1st Defendant entered the witness box an opportunity would have been available to the Defendant No.4 & 5 to elicit the truth regarding execution of Ex.D.67. No such opportunity was available to the Defendant No.4 & 5, since the 1 st Defendant failed to refute the averments made by Defendant No.4 & 5 in their written statement. Therefore, as rightly contended by the Learned Counsel for the Defendant No.4 & 5 it appears that the above suit is by the Plaintiff in collusion with the 1 st Defendant.
41. Similar is the view of the Hon'ble Apex Court in the subsequent ruling reported in 2021 (2) SCC 40 OS No.25236/2013 718 (Iqbal Basith and Ors. V/s N. Subbalakshmi and Ors.)
42. In so far as the authority of the 1 st Defendant to alienate the property in question is concerned, the PW.1 in her cross-examination in unmistakable terms admitted that the 1st Defendant was the kartha of the family. The recitals in the Sale Deed at Ex.D.1 indicate that the Suit Schedule Properties were sold by the Defendant No.1 to 3 for the maintenance of the family, purchase of other property and for such other legal necessities, which is evident from the clause at Page No.3, Para No.2 of Sale Deed at Ex.D.1. The Hon'ble Apex Court in a ruing reported in AIR 1996 KAR 321 (Muniyappa V/s Ramaiah) in an identical situated was pleased to observe as follows:
"12. From the aforesaid two decisions of the Supreme Court, it is clear that the manager of a Joint Hindu Family is entitled to alienate the joint Family property for joint family necessity or for the benefit of the estate, in certain circumstances. Whether the 41 OS No.25236/2013 manager is the father or not, will not make any difference. If such an alienation is made by the manager of the Joint Hindu Family of joint family property, the sale would bind not only his share in the property but the share of the other coparceners as well. No doubt, the other coparceners may be entitled to file a suit for partition and recover their share if the alienation was not for family necessity or for the benefit of the estate. The burden in such cases will also lie on the alienee to prove family necessity or the benefit to the estate to uphold the alienation by the manager. But that right of a coparcener does not affect competency of the manager to alienate the joint family property. When once such alienation is made, the alienee is entitled to be in possession of the property and right of any other coparcener is to sue for partition and recover possession of his share 42 OS No.25236/2013 in the joint family properties. The sale being only voidable unless it is avoided by an action, the alienee is entitled to continue in possession. The position may be different if one coparcener alienates his share alone, but once the alienation is made by the manager of the property, it will be effective until it is properly avoided by the non-alienating coparcener by filing a suit for partition."
43. In the case on hand also, the 1 st Defendant appears to have sold the Suit Schedule Properties as a kartha of the family and in fact the Plaintiff and Defendant No.2 & 3 are also parties to the Sale Deed. Therefore, the Plaintiff cannot be permitted to contend that the Suit Schedule Properties have not been sold for family necessities.
44. Of course, the Learned Counsel for the Defendants No.4 & 5 relied on several rulings on the aspect that the Plaintiff has to stand or fall on the strength of her own case and not on the weakness of the Defendants. There cannot be any quarrel with the 43 OS No.25236/2013 said proposition of law. The burden was heavy on the Plaintiff to establish that she had not executed Ex.D.67 in favour of the 1st Defendant. However, it is not the case of the Plaintiff that the said document is forged document or obtained by coercion or misrepresentation. There are no pleadings to that effect. Under the circumstances, the Plaintiff miserably failed to establish that she never executed the General Power of Attorney in favour of her father.
45. Coming to the main contention of the Defendant No.4 & 5 that the property was alienated much prior to amendment to Hindu Succession (Amendment) Act 2005, admittedly the property was sold in favour of Defendant No.4 under the registered Sale Deed dtd: 22.6.2004. The coparcenary status to a daughter was given with effect from 9.9.2005. In a recent judgment reported in AIR 2020 SC 3717 (Vineetha Sharma Vs. Rakesh Sharma and Others) the Hon'ble Apex Court while dealing with the scope and ambit of Section 6 of Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005, observed as follows:
44 OS No.25236/2013"(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
[underline by me]
46. From the above provision, it could be seen that the coparcenery status to a daughter was given 45 OS No.25236/2013 only with effect from 9.9.2005. As per Clause-(ii) of the judgment referred to above the alienation, dispositions, partition or testamentary disposition which had taken place before 20th day of December 2004 are saved and the daughters cannot claim share in the properties which were alienated or disposed off before 20th December 2004.
47. Therefore, the suit filed by the daughter in the year 2013 is not maintainable and the Plaintiff is not entitle for any share in the Suit Schedule Properties.
48. Thus looking from any angle the Plaintiff has miserably failed to prove that herself and Defendant No.1 to 3 are continued till today as undivided Hindu joint family and they are continued as joint family as on the date of suit, by producing cogent and convincing evidence before the Court. Therefore, the Plaintiff is not entitle for the relief of cancellation of Sale Deeds registered in different Sub-Registrar's offices. A vague prayer is sought seeking cancellation of Sale Deeds. The details of the Sale Deeds not furnished and various purchasers have not been 46 OS No.25236/2013 arrayed as parties to the above proceedings. Any order passed in the above suit, would seriously affect the valuable rights of the purchasers. Since the 5 th Defendant has developed the property and several purchasers are in possession and enjoyment of their respective sites by constructing palatial houses, the Plaintiff is not entitle for the relief of permanent injunction as prayed for in the absence of presence of purchasers before the Court. As aforesaid, since the properties are alienated much prior to December 20th 2004, the Plaintiff is not entitle for any share muchless the share claimed in the above suit. Under the circumstances, Issue No.1 to 5 are answered in the Negative and Additional Issue No.1 is answered in the Affirmative.
49. Issue No.6:
In view of the findings on the above issues, the suit of the Plaintiff deserves to be dismissed with costs. Accordingly, I proceed to pass the following:
ORDER The Suit of the Plaintiff is hereby dismissed with costs.47 OS No.25236/2013
Draw Decree accordingly.
(Dictation given to the Stenographer, transcribed by her, after correction, signed and pronounced by me in the open court on this the 6th day of January 2024.) Digitally signed by P G P G CHALUVA CHALUVA MURTHY MURTHY Date: 2024.01.11 15:41:51 +0530 [P. G Chaluva Murthy] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) SCHEDULE PROPERTIES Item No.1:
Land measuring 5 guntas in Survey Number 65 of Haralur Village, Varthur Hobli, Bangalore East Taluk, Assessed at Rs.0-21 and bounded as follows:
East by : Remaining portion of land in Survey No.65, West by : Land in Survey No.66, North by : Remaining portion of land in Survey No.65, South by : Kudulu Village boundary. Item No.2:
Land measuring 1 Acre and 12 Guntas in Survey Number 66 of Haralur Village, Varthur Hobli, Bangalore East Taluk, Assessed at Rs.2-19 and bounded as follows:
48 OS No.25236/2013
East by : Remaining portion of land in Survey No.65,
West by : Land in Survey No.160,
North by : Remaining portion of land in Survey No.66,
South by : Kudulu Village boundary.
PG Digitally signed by P G
CHALUVA MURTHY
CHALUVA Date: 2024.01.11
MURTHY 15:42:11 +0530
[P. G Chaluva Murthy]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH-73)
ANNEXURES
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW1: Smt. L. Rani.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P.1 : Certified copy of registered Sale Deed dtd:
26.2.2004.
Ex.P.2 : Certified copy of Deed of Exchange dtd:
28.10.2010.
Ex.P.3 & : RTC Extracts.
Ex.P.4 Ex.P.5 : Attestation of Family Tree.
49 OS No.25236/2013LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
DW1: Austin Roach. DW2: Sri. R. Nagaraj.
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
Ex.D.1 : Absolute Sale Deed dtd: 22.6.2004.
Ex.D.2 : Deed of Exchange dtd: 28.10.2010.
Ex.D.3 : Certified copy of Order passed by the Deputy Commissioner, Bengaluru dtd:
23.3.2010.
Ex.D.4 : Certified copy of Deed of Relinquishment dtd: 3.2.2012.
Ex.D.4(a) : Plan.
Ex.D.5 : Certified copy of Layout Plan.
Ex.D.6 : Certified copy of Work Order dtd:
19.5.2012.
Ex.D.7 & : Certified copy of Letters dtd: 30.5.2012, Ex.D.8 4.12.2014.
Ex.D.9 to : 21 Sale Deeds.
Ex.D.29 Ex.D.30 : 38 positive Photographs with CD. to Ex.D.66 50 OS No.25236/2013 Ex.D.67 : General Power of Attorney dtd: 21.6.2004.
Ex.D.68 : Photographs.
&
Ex.D.69 Digitally signed
PG by P G
CHALUVA
CHALUVA MURTHY
MURTHY Date: 2024.01.11
15:41:36 +0530
[P. G Chaluva Murthy]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH-73)