Bangalore District Court
Unknown vs Sri.Ganeshappa on 19 August, 2021
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY (CCH No.25).
Dated: This the 19th day of August, 2021.
Present: Smt. ISHRATH JAHAN ARA, B.A.L., LL.B.,
III Addl. City Civil & Sessions Judge, Bengaluru.
O.S.No. 5800/2014
Plaintif Smt. G.Prameela,
D/o. Ganeshappa,
Aged about 24 years,
Residing at Nagareshwara Nagenahalli,
K.R.Puram Hobli, Bengaluru East Taluk,
Bengaluru.
By Sri. K.Vijaya Kumar, Advocate.
vs.
Defendants 1. Sri.Ganeshappa,
S/o. Late Narayanappa,
Aged about 52 years.
Since died, represented by his L.R:
D1(a) Smt.Munithayamma
W/o. Late Ganeshappa,
Aged about 50 years.
2. Sri.G.Pradeep,
S/o. Ganeshappa,
Aged about 26 years.
Defendants No.1 and 2 are residing at
Nagareshwara Nagenahalli, K.R.Puram Hobli,
Bengaluru East Taluk, Bengaluru-560097.
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O.S.No. 5800/2014
3. Smt. G.Renuka,
D/o. Ganeshappa, W/o.Nagesh,
Aged about 28 years,
residing at Nagareshwara Nagenahalli,
K.R.Puram Hobli, Bengaluru East Taluk,
Bengaluru.
4. Sri.K.Pillaraju,
S/o.Late Kempanna,
Aged about 53 years,
Residing at No.73,
Kacharakanahalli,
St.Thomas Town Post,
Bengaluru -560084.
5. Smt.B.S.Leelavathi,
W/o. Late B.N.Satyanna,
Aged about 71 years.
... since died, rep. by her L.R.;
5(a) Sri.B.S.N.Hari,
S/o. Late B.N.Sathyanna,
Aged about 61 years,
R/at No.473, 9th Cross,
1st Block, Jayanagar,
Bengaluru -560011.
6. Smt.Aswantha Mani,
W/o.Alexander,
Aged about 54 years,
Residing in at No.8, 12th Cross,
Chinnappa Garden,
Ben son Twon Post,
Bengaluru -560046.
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O.S.No. 5800/2014
7. Smt.Gunavathi,
W/o. Packia Raj. D.J.,
Aged about 48 years,
Residing in at No.8, 12th Cross,
Chinnappa Garden,
Ben son Twon Post,
Bengaluru -560046.
8. Manthri Developers Private Limited,
Represented by its Managing Director,
Of/At No.41, Manthri House,
Vittal Malya Road, Bengaluru -560001.
D1, (a)-Absent
D2 to D4- ExParte
D5(a)- By Sri.Y.N.Sathyanarayana Rao, Advocate.
D6-By Sri.M.M.Ashoka, Advocate.
D7-By Sri.S.J.Sanghvi, Advocate.
D8-By Sri.Y.N.Sathyanarayana Rao, Advocate.
Date of Institution 28-07-2014
Nature of Suit Partition and Separate
Possession,
Future Mesne Profits,
Declaration and
Permanent Injunction.
Date of commencement of 23-11-2018
Evidence
Date of pronouncement of 19-08-2021
Judgment
Total Duration: Years Months Days
07 -0- 21
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O.S.No. 5800/2014
JUDGMENT
The Plaintif has filed this Suit seeking :
Partition and separate possession of her 1/4th share in the suit schedule properties by metes and bounds and for future mesne profits;
Declaration that the sale deeds dated 10-10-2005 executed by Defendant No.1 and 2 in favour of Defendant No.4 and subsequently, sale deed dated 6-8-2007 executed by Defendant No.4 in favour of Defendant No.5, in respect of Item No.1 of schedule property as not binding on the Plaintif;
Declaration that the sale deeds dated 17-2-2003 executed by Defendant No.1 in favour of Defendant No.6 and 7 is not binding on the Plaintif and further to declare that the Defendants No.4 to 7 do not derive any right, title, interest or possession over item No.1 of schedule property and any portion of schedule properties and Permanent Injunction restraining the Defendants, their agents, etc., from alienating or encumbering the schedule properties in favour of third persons.5
O.S.No. 5800/2014 Suit Schedule Item No.1 property is the land bearing Sy.No.19/16, measuring 1 acre and Suit Schedule Item No.2 property is the land bearing Sy.No. 21/1A, new No.21/1A3, measuring 11 guntas and both lands situated at Nagareshwara Nagenahallil Village, K.R.Puram Hobli, Bengaluru East Taluk.
2) The brief facts of the case of the Plaintif as stated in her Plaint and as stated in amended Paras No.6(a) to 6(d) is that she and Defendants 2 and 3 are the children of Defendant No.1 and the 1st Defendant as the Kartha of the Joint Hindu Family had possessed and acquired the suit schedule properties as per panchayat parikath entered into between his brothers and accordingly, the suit schedule properties are the ancestral and joint family properties and all the revenue records were transferred in the name of 1st Defendant. There is no partition in respect of schedule properties in the joint family and Plaintif and Defendants No.1 to 3 are in joint possession and enjoyment of suit properties and she has got legitimate 1/4th share in the schedule properties.
When the Plaintif requested and demanded the 1st Defendant to efect partition in respect of schedule properties, he informed that he already sold some of 6 O.S.No. 5800/2014 the schedule properties in favour of third persons and when she obtained the certified copies of the R.T.C. and other revenue documents, she came to know that he had executed sale deeds in favour of Defendants No.4 to 7. Moreover, Plaintif was minor at the time of said sale deeds and now the 1st Defendant is trying to alienate and encumber item No.2 of schedule property in favour of third persons and Defendants No.5 to 7 are also making arrangements to create and concoct documents to harass the Plaintif and deprive her legitimate 1/4th share in the schedule properties. The Defendants No.1 and 2 have executed sale deed dated 10-10-2005 in favour of Defendant No.3 in respect of item No.1 of schedule property and the sale deed executed by Defendants No.1 and 2 in favour of Defendant No.4 is not binding on the Plaintif's share and sale deed dated 6-8-2007 executed by Defendant No.4 in favour of Defendant No.5 is also not binding on Plaintif's share. Further the Defendant No.5 had executed Gift Deed dated 17-9-2010 in favour of Defendant No.5(a) in respect of item No.1 of schedule property and said gift deed is not binding on the Plaintif's share and Defendant No.5(a) does not derive any right, title, interest or possession over schedule property and he has illegally, without 7 O.S.No. 5800/2014 independent right, entered into a J.D.A. in favour of Defendant No.8 on 29-6-2013 and said J.D.A. is not binding on Plaintif and Defendant No.8 does not derive any right, title, interest or possession of any kind over said property. The Defendants No.1 to 3 have illegally, without independent right, without knowledge and consent of Plaintif, have executed sale deed dated 26-10-2007 in favour of Defendant No.5 in respect of portion of item No.1 of schedule property and said sale deed is not binding on Plaintif and Defendant No.5 does derive any right, title, interest or possession of any kind over said property.
The Plaintif further submitted that Byamma- grand mother of Plaintif, had no income to purchase lands in the year 1967 and late Narayanappa-grand father of Plaintif, had purchased the lands out of joint family income in her name and she had no other business or avocation independently, nor did she have the requisite educational qualification to indulge or involve any other business or work, other than the joint family income of Narayanappa and after her death, all her children have partitioned the joint family properties.
8O.S.No. 5800/2014 Further, the Plaintif submitted that, the sale deed executed by 1st Defendant in favour of Defendants No.6 and 7 in respect of unidentified and un-ascertained properties under sale deeds dated 17-2-2003 is not binding on her. There is no such properties as shown in the alleged sale deeds and no sites are in existence as assessment No.42/1 and there is no reference with regard to survey number or Gramatana property Number in the alleged sale deeds of Defendant No.6 and 7.
Taking advantage of revenue records and Khatha standing in the name of Defendants herein, the Defendants, in collusion with each other, have been indulging in unlawful activities of alienating and encumbering the schedule properties in favour of third persons and only intention of the Defendants is to harass the Plaintif and put her into hardship and inconvenience and if they were to successful in their futile and unlawful eforts, the Plaintif will be put to greater hardship and injustice. Hence, without alternative, the Plaintif has filed the instant Suit.
9O.S.No. 5800/2014
3) After service of summons, the Defendants No.1 to 4 have remained absent. Hence, they were placed ExParte. During the pendency of the suit, Defendant No.1 died and Defendant No.1(a) was brought on record and even Defendant No.1(a) remained absent and placed ExParte.
4) The Defendants No.5 to 8 appeared before the Court through their respective learned counsels and they filed their separate Written Statements. The Defendant No.5(a) has been subsequently impleaded.
5) The 5th Defendant filed her Written Statement through her G.P.A. Holder. After her demise, the Defendant No.5(a) appeared and filed a Memo adopting the Written Statement filed by Defendant No.5 and further, he also filed his Additional Written Statement.
The brief facts, as stated in the Written Statement of 5th Defendant, as well as, in the Additional Written Statement of Defendant No.5(a) is that this Defendant is an interested person only in respect of land bearing Sy.No.19/16 being item No.1 of the schedule property and the extent stated to therein is not correct. Under unregistered panchayat partition 10 O.S.No. 5800/2014 deed dated 20-2-1981, the sons of late Narayanappa have partitioned various properties belonging to the family, including land bearing Sy.No.19/16 and an extent of 1 acre in Sy.No.19/16 was allotted to the share of 1st Defendant and accordingly, mutation came to be transferred into his name. The Plaintif was not born when said partition took place and the 1st Defendant, along with his brothers and their children, including the Plaintif and 2nd Defendant, for want of their family and legal necessities, have sold the portion of land bearing Sy.No.19/16 consisting of 3 portions measuring 37 guntas, 36 ½ guntas and 37½ guntas in favour of 4th Defendant under registered sale deed dated 10-10-205 for valuable consideration, to which Plaintif and other children of 1st Defendant and other children of brothers of 1st Defendant have also signed as witnesses and mutation came to be transferred in the name of 4th Defendant as per M.R.No.16/2005-06. The 1st Defendant had retained land measuring 2½ guntas. Thereafter, 4th Defendant had entered into an Agreement of Sale with Sri.K.Lokesh on 12-6-2007 and received advance sale consideration amount and the 4th Defendant, for want of his family and legal necessities, sold the land measuring 37½ guntas in Sy.No.19/16, in favour of this 11 O.S.No. 5800/2014 Defendant under registered sale deed dated 6-8-2007 and said K.Lokesh, who had entered into an Agreement of Sale, has also singed the sale deed as a Confirming Party. The 1st Defendant, who had retained land measuring 2½ guntas in Sy.No.19/16, sold said portion also in favour of this Defendant along with his family members under registered sale deed dated 26-10-2007 and thus, this Defendant became absolute owner of entire portion of land bearing Sy.No.19/16 measuring 1 acre and she filed application for conversion of said 1 acre of land before the Deputy Commissioner and the Deputy Commissioner has passed an order of conversion dated 14-11-2008, by converting the said land in No.ALN(E)SR(KH)38/2007- 08 and this Defendant has also paid necessary conversion charges to the Government and as such the said land is converted land. The 5th Defendant is also owner of other portions of land bearing Sy.No.19/16 along with other lands and she executed a Gift Deed dated 17-9-2010 in favour of her son, Defendant No.5(a) and as such, Defendant No.5(a) is the absolute owner of said land. The Defendant No.5(a) has entered into a Joint Development Agreement with Defendant No.8 in respect of land bearing Sy.No.19/16 and they have been developing said property by investing huge 12 O.S.No. 5800/2014 amount. The Plaintif is not in joint possession and enjoyment of schedule property and schedule property is the converted land as on the date of filing of suit and moreover, Plaintif has not challenged various deeds, conversion order, J.D.A. and the only intention of the Plaintif in filing the suit is to harass this Defendant and also subsequent purchasers and developer and also for a wrongful and illegal gain same shows the malafide intention, conduct and motive of the Plaintif in filing the suit. The Plaintif or the Defendants No.1 to 3 are not in possession of schedule properties and the Plaintif ought to have valued the suit under Section 35(1) r/w. S.24(a) and 26(a) of K.C.F. & S.V.Act and as such the plaint is liable to be rejected u/O.7 R.11 of CPC. Hence, prayed to dismiss the suit with exemplary costs.
6) The brief facts of the case of the Defendant No.6, as stated in her Written Statement is that she had purchased site No.2, V.P.Katha No.42/1, situated at Nageshwara Nagenahallil Village of Bengaluru East Taluk, measuring 30 feet x 40 feet under a registered sale deed dated 17-2-2003, which was registered on 20-2-2003 from the Defendant No.1 and ever since then, she is in possession and enjoyment of the same 13 O.S.No. 5800/2014 and had also put up compound for the said site. .... The Plaintif and Defendants No.2 and 3 were minors at the time of executed of sale deed in her favour and they were represented through 1st Defendant as guardian and the recitals of said sale deed clearly mentions that 1st Defendant, on his behalf and Defendants No.2 and 3, as khartha are binding on the Plaintif and sale deed is not challenged immediately after execution of sale deed and Plaintif has come before this Court in a belated stage, by initiating this suit. Therefore, challenging the sale deed is barred by limitation and suit of the Plaintif has not afected the right and title of this Defendant who had acquired title through registered sale deed and is in settled possession. As such the suit may be dismissed against this Defendant. This Defendant got Khatha from BBMP with respect of property purchased by her from Plaintif and Defendants 1 to 3 in her name and paying property tax to BBMP. The land mentioned in item No.1 and 2 of schedule is not at all in existence, as schedule property is already converted as sites and Defendant No.1 on his behalf and also on behalf of Plaintif and Defendants 2 and 3 had sold the sites to other Defendants also. Hence, she prays to dismiss the suit of the Plaintif.
14O.S.No. 5800/2014
7) The case of the Defendant No.7, as stated in her Written Statement, in brief, is that she had purchased site No.1 of V.P.Khata No.42/1 measuring 30 feet x 20 feet under registered sale deed dated 17-2- 2003 for valuable sale consideration amount from the Defendant No.1, who has executed a sale deed on his behalf and also on behalf of his minor children amd based on the said sale deed, the Khatha of the said property was mutated in her name by recognizing her as a kathedar of the property and since from the date of purchase of the suit property, she is in possession and enjoyment of the same as the absolute owner. The suit schedule property is not at all existing as the same has already been converted for residential use and even on this ground, the suit of the Plaintif is not maintainable and more over, this Plaintif, only with an ulterior motive, with a dishonest intention to make illegal gain, has filed this false suit. Hence, prayed to dismiss the suit.
8) The brief facts of the case of the Defendant No.8 as stated in its Written Statement is that the suit is liable to be dismissed as barred by principles of law of limitation. This Defendant submitted that under registered panchayat partition deed dated 20-2-1981, 15 O.S.No. 5800/2014 land measuring 1 acre in Sy.No.19/16 was allotted to the share of 1st Defendant and mutation came to be transferred into his name. The Plaintif was not born when the said partition took place and the 1 st Defendant along with his brothers and their children, including Plaintif and 2nd Defendant herein, for want of their family and legal necessities, have sold portion of land bearing Sy.No.19/16 in favour of 4th Defendant under registered sale deed dated 10-1-2005 for valuable consideration, to which the Plaintif and other children of 1st Defendant and other children of brothers of 1st Defendant have also signed as witnesses and in turn, the 4th Defendant entered into an agreement of sale with K.Lokesh on 12-6-2007 and received advance sale consideration amount and 4 th Defendant sold land measuring 37½ guntas in favour of deceased 5th Defendant under registered sale deed dated 6-8-2007 and said K.Lokesh has also signed the sale deed as a confirming party. The 1 st Defendant, along with his family members, has also sold a portion of land bearing Sy.No.19/16, measuring 2½ guntas in favour of 5th Defendant under registered sale deed 26-10-2007. Thus the deceased 5th Defendant became absolute owner of portion of land measuring 1 acre and she filed application for conversion of said 1 acre 16 O.S.No. 5800/2014 of land and the Deputy Commissioner has passed conversion Order dated 17-11-2008, by converting the said land in No.ALN(E)SR(KH)256/2007-08 and 5 th Defendant has also paid necessary conversion charges to the Government and as such the said land is converted land. The 5th Defendant has executed a registered gift deed in favour of her son-defendant No.5(a) on 17-9-2010 in respect of land bearing Sy.No. 19/16 along with other lands belonging to her. As such, Defendant No.5(a) is the absolute owner of said land based on the gift deed and subsequently, he entered into a Joint Development Agreement with this Defendant No.8 in respect of land bearing Sy.No.19/16 along with other lands with other owners adjacent to the land situated at Nagareswara Nagenahalli Village and Kothnur Village, in all measuring about 40 acres of land and this Defendant has been developing the said properties by investing huge amount and also raised loans from various financial institutions. Knowing fully well about the same, the Plaintif, who has no manner of right, title, interest or possession of any kind over the schedule property or any portion thereof, has filed a false suit against the Defendants for imaginary relief and she is not in joint possession and enjoyment of schedule property and schedule property is converted 17 O.S.No. 5800/2014 land as on the date of filing of the suit. Moreover, the Plaintif has not challenged various deeds, conversion order, J.D.A. and she has not impleaded subsequent purchasers, developer and in the absence of the same, the Plaintif is not entitled to any orders at the hands of this Court and her only intention in filing the suit is to harass this Defendant and also subsequent purchasers and developer and also for a wrongful and illegal gain and same goes to show the malafide intention, conduct and motive of the Plaintif in filing the suit. There is no cause of action for the suit and the alleged cause of action narrated in the plaint are false and untenable. The suit is bad for mis-joinder and non- joinder of necessary parties. The Plaintif or the Defendants No.1 to 3 are not in possession of schedule properties and the Plaintif ought to have valued the suit under Section 35(1) r/w. S.24(a) and 26(a) of K.C.F. & S.V.Act and as such the plaint is liable to be rejected u/O.7 R.11 of CPC. On these grounds, Defendant No.8 prayed to dismiss the suit with exemplary costs.
9) On the basis of the above pleadings,
following Issues are framed:
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O.S.No. 5800/2014
1. Whether the Plaintif proves that suit properties are the joint family properties of herself and Defendant No.1 to 3?
2. Whether the Plaintif proves that sale deeds dated 17-2-2003, 10-10-2005, 6-8-2007, 26-10-2007 referred to in her plaint are not binding on her?
3. Whether the Plaintif proves that gift deed dated 17-9-2010 and JDA dated 29-6-2013 are also not binding on her?
4. Whether the Defendant No.5 to 7 prove prove that suit is barred by limitation?
5. Whether the Defendant No.5 proves that court fee paid on the plaint is insufficient?
6. Whether the Defendant No.7 proves that item No.1 and 2 are not in existence and Defendant No.1 has sold the lands by forming sites?
7. Whether the Plaintif is entitled for the reliefs as prayed?
8. What Order or Decree?
10) The Plaintif got herself examined as P.W.1 and from her side 18 documents were marked as Exs.P1 to P18 and closed her side of evidence and a document is marked as Ex.P19 through confrontation during the course of cross-examination of DW3.
19O.S.No. 5800/2014 From the side of Defendants, Defendants No.6, 7 and Power of Attorney Holder of Defendant No.5(a) got themselves examined as D.Ws.1 to D.W.3 respectively. From the side of D.W.1, Exs.D1 to D6 were marked, from the side of D.W.2, Exs.D7 to D10 documents were marked and from the side of D.W.3, Exs.D10 to D19 documents were marked.
11) Arguments heard
12) The answers to the above Issues are:
Issue No.1 - In the Negative, Issue No.2 - In the Negative, Issue No.3 - In the Negative, Issue No.4 - In the Affirmative, Issue No.5 - In the Affirmative, Issue No.6 - In the Affirmative, Issue No.7 - In the Negative, Issue No.8 - As per Final Order, for the following:
REASONS
13) Issues No.1, 2, 3 and 6 : All these Issues are taken together for consideration, as all these Issues are interconnected to each other.20
O.S.No. 5800/2014
14) Entire burden is on this Plaintif to prove her case and to prove these Issues. The Plaintif, in order to prove her case and to prove these Issues stepped into the witness box and got examined as PW1. PW1 filed her Affidavit in lieu of oral evidence by reiterating her plaint averments.
PW1 deposed that the 1st Defendant is her father and he is the kartha of the joint family and her joint family is possessed and acquired the suit schedule properties. She deposed that her father- Defendant No.1 acquired the suit schedule property in a panchayat parikath entered into between his brothers and subsequently, the suit schedule property was the ancestral property of herself and Defendants No.1 to 3 in their joint possession and enjoyment without there being any partition among themselves. She deposed that she being the daughter of the 1st Defendant having her legitimate 1/4th share in the suit schedule property and she requested and demanded the 1st Defendant to efect partition and allot her legitimate share in the suit property, but, however, the Defendant No.1, on one or the other pretext, postponed the same and failed to efect partition and as such, she has applied for the certified copies of the 21 O.S.No. 5800/2014 revenue documents relating to the suit property. She deposed that when she obtained the certified copies of the documents, she came to know that the Defendant No.1 has executed some sale deeds in favour of the purchasers behind her back, without her knowledge and consent and more over, he executed the sale deeds when she was a minor. She deposed that the Defendant No.1 has sold the suit property without the benefit of the minor children and as such, the sale deeds are not binding upon her with respect to her legitimate share in the suit properties. She deposed that the Defendants No.5, 6 and 7 colluding with Defendant No.1, are making arrangements to create documents in respect of suit item No.2 property. The Defendant No.1 has no any manner of independent right to alienate or encumber the suit property by including the interest of herself and Defendant No.3. She deposed that the Defendants No.1 and 2 have illegally executed the documents even on her behalf and also on behalf of other minor and as such, the sale deeds executed by Defendants No.1 and 2 in favour of Defendant No.4 is not binding upon her with respect to her share in the suit properties and likewise, the sale deed executed by Defendant No.4 in favour of Defendant No.5 on 6-8-2007 is illegal and 22 O.S.No. 5800/2014 not binding upon her with respect to her share in the suit property. She deposed that the Defendant No.5 has executed a gift deed dated 17-9-2010 in favour of Defendant No.5(a) by including her interest in the suit property and as such, the said Gift Deed is also not binding upon her. She further deposed that the Defendant No.5(a) has illegally entered into a Joint Development Agreement in favour of Defendant No.8 on 29-6-2013 and the said J.D.A. is not binding upon her and even the Defendant No.8 does not derive any right, title or interest, much less, possession over the suit property based on the said Agreement. She deposed that the Defendants No.1 to 3 have illegally executed the sale deed in favour of Defendant No.5 behind her back on 26-10-2007 and even the said sale deed is not binding upon her with respect to her share in the suit property. She deposed that her grand father-Narayanappa purchased the suit property in the name of his wife-Smt.Bayamma, as Smt.Bayamma had no independent source of income to purchase the lands in the year 1967. She deposed that her grand father-Narayanappa purchased the property out of the joint family income in the name of his wife- Smt.Bayamma and as such, after the death of Bayamma, all her children have partitioned the joint 23 O.S.No. 5800/2014 family property among themselves. She deposed that the Defendant No.1 has no right to execute any kind of documents, much less the sale deeds either in favour of Defendants No.6 to 7 or in favour of any other person. She deposed that the sale deed executed by Defendant No.1 is not binding upon her and even the purchasers does not derive any right, title or interest, much less, possession over the suit property under the sale deeds. She deposed that the Defendants colluding with each other, are indulged in unlawful activities of alienating and encumbering upon the suit properties in favour of third persons with an intention to deprive her right to take share in the suit property. Hence, without any alternative, she approached this Court and filed this suit.
15) P.W.1 got produced the copy of Genealogy Tree of Defendant No.1, marked as per Ex.P1. She got produced 5 RTC extracts relating to the suit property marked as per Exs.P2 to P6. She got produced the certified copies of the sale deed executed by Narasimhappa s/o.Narayanappa and his children in favour of Defendant No.4 in respect of suit item No.1, measuring to an extent of 37 guntas, marked as per Ex.P7. She got produced the certified copy of the sale 24 O.S.No. 5800/2014 deed dated 6-8-2007 executed by Defendant No.4 along with his brother, in favour of Defendant No.5, with respect to their purchased 37½ guntas of land, marked as per Ex.P8. She got produced the certified copy of the sale deed executed by Defendants No.1 and 2 in favour of Defendant No.6 on 17-2-2003, marked as per Ex.P9. She got produced the sale deed executed by Defendants No.1 and 2 in favour of Defendant No.7 with respect to suit item No.2 property, marked as per Ex.P10. She got produced the certified copy of the sale deed ex by Defendants No.1 to 3 in favour of Defendant No.5 on 26-10-2007 with respect to suit item No.1 property measuring to an extent of 0-02.08 guntas, marked as per Ex.P11. She got produced the certified copy of the gift deed executed by Defendant No.5 on 17-9-2010 in favour of Defendant No.5(a) with respect to her purchased property, marked as per Ex.P12. She got produced the RTC extract relating to the alienated property of Defendant No.5 standing in her name, marked as per Ex.P13. She got produced the RTC extract of the suit item No.2 property standing in the name of Defendant No.1, marked as per Ex.P14. She got produced the Family Genealogy Tree issued by the Deputy Tahsildar, marked as per Ex.P15. She got produced the Death 25 O.S.No. 5800/2014 Certificate of 1st Defendant to prove that the Defendant No.1 was died during the pendency of the suit, marked as per Ex.P16. She got produced the Joint Development Agreement entered into between Defendant No.5(a) and his family members, along with Defendant No.8 on 29-6-2013, marked as per Ex.P17. She got produced the Mutation Register Extract of the suit property marked as per Ex.P18. The SSLC Marks Card of this Plaintif was marked through confrontation to D.W.3, as Ex.P19.
16) The Defendants No.5 to 8 denied the entire case of the Plaintif and they denied the very fact that the suit schedule property is the joint family property of Plaintif and Defendants No.1 to 3, in their joint possession and enjoyment without there being any partition. The Defendants even denied the fact that the Defendants No.1 and 2, behind the back of the Plaintif and other family members, have illegally and unlawfully sold the suit schedule properties in favour of purchasers, with an intention to deprive the rights o the Plaintif in the suit property and as such, the sale deeds executed by the Defendants No.1 to 3 is not binding upon this Plaintif with respect to her share in the suit properties.
26O.S.No. 5800/2014 17) Learned Counsels for Defendants No.5 to 8 subjected P.W.1 for cross-examination and they extensively cross-examined the P.W.1. P.W.1, in her cross-examination stated that till her father was alive, she was in good terms with her father as well as with her brother and sisters. She further stated that she got married in the year 2011, at the age of 22 years. However, she has stated that she is not aware whether the other persons are living in the suit property and likewise, she has stated that she is not aware, whether both the suit properties were sold by her father and likewise, she is not aware about the Defendants No.6 to 7, as she has not seen them. P.W.1 stated that she is not aware whether many houses are constructed around the suit property. Even according to the Plaintif, she has seen the suit properties earlier to her marriage and subsequently thereafter, she has not seen the suit properties and as such, she is not aware whether the houses were constructed in the suit properties. Even though she denied the suggestion that the suit properties are no longer be an agricultural land, however, she has stated that they were growing Ragi and even in now they are growing Ragi in the suit property as her father was an agriculturist and he is doing agriculture in the suit 27 O.S.No. 5800/2014 property. P.W.1, in her cross-examination stated that her father inherited the suit property from his father- Narayanappa and subsequently after the death of Narayanappa, the properties left behind by Narayanappa were divided among his 4 children, wherein the suit properties were allotted to the share of her father, Defendant No.1. P.W.1, in her cross- examination stated that it is her father who performed the marriages of all the children and except the income derived from the suit properties, her father had no any source of income. P.W.1 stated that she came to know about the execution of sale deed by her father to Defendants No.6 and 7 when she filed this suit. She further stated that her father has also sold the property in favour of Defendant No.4. However, she has categorically denied the suggestion that her father sold both the suit properties for the care and maintenance of the family members and also to meet the expenditure of the family. P.W.1 stated that she is not aware of the execution of sale deed in favour of Defendant No.6 on 17-3-2003 and likewise, she is not aware of the execution of Ex.P10, document in favour of Defendant No.7. She further stated that she is not aware whether the Khatha of the suit properties ae standing in the name of the purchased, based on the 28 O.S.No. 5800/2014 sale deeds and it is the purchasers who are in possession of their respective purchased properties, based on the sale deeds. However, even according to P.W.1, the suit schedule properties are still in an agricultural nature and even today the agricultural work is being carried out and in order to prove the same, the revenue documents are maintained before the revenue office and she has no impediment to produce the revenue documents before the Court. She has further stated that she is not aware whether in Exs.P3, P4 and P6 the property is mentioned as a vacant land. However she has stated that she came to know about sale deed executed by Defendant No.4 in favour of Defendant No.5 in respect of land bearing Sy.No.19/6 and likewise, the gift deed executed by Defendant No.5 in favour of Defendant No.5(a) and likewise, she is not aware of the fact that the Defendant No.5 converted the entire land and formed sites in the gifted land and subsequently he sold the sites in favour of the purchasers. She further stated that she is not aware whether the Defendant No.8 has developed the land after taking it from Defendant No.5(a). The P.W.1 in her cross-examination admitted the suggestion that in a panchayat palupatti of the year 1981, her father was allotted with Sy.No.19/16, 29 O.S.No. 5800/2014 i.e., suit item No.1 property, took place between his brothers, after the death of Narayanappa. P.W.1 further admitted that apart from the said land, her father has also got a share in the house property along with his brothers and in the said house, her father, along with his 3 brothers, were residing separately. P.W.1 in her cross-examination stated that she is not aware of the fact that her father sold 37½ guntas of suit item No.1 property to Defendant No.4 under sale deed and based on the said sale deed, the Khatha of the suit item No.1 property was mutated in the name of Defendant No.4. Even though P.W.1 denied the suggestion that she has signed said sale deed as a witness, after accepting the sale executed in favour of Defendant No.4. P.W.1 has stated that she is not aware of the fact that her father has retained 2 ½ guntas of land in suit item No.1 property. She has further stated that she is not aware of the fact that the Defendant No.4 entered into a sale agreement with his purchased property in favour of one B.S.Leelavathi and subsequently the Defendant No.4 sold the suit property in favour of Defendant No.5 and based on the said sale deed, the Defendant No.5 was in possession of item No.1 property. She has stated that she is not aware whether the Defendant No.5 has 30 O.S.No. 5800/2014 converted the land for non-residential purpose after she purchased the said land. She further stated that she is not aware of the fact that her father sold the remaining 2½ guntas of land of item No.1 property in favour of Defendant No.5 in the year 2007 and likewise, she is not aware of the fact that Defendant No.5(a) became the owner of the entire item No.1 of the property and subsequently he entered into a Joint Development Agreement with Defendant No.8 and given possession of entire land to Defendant No.8 for development. However, she has clearly and categorically admitted the suggestion that she is not in possession of suit item No.1 property and even she has not attempted to pay taxes to the suit properties and even she has not challenged the revenue entries standing in the name of the purchasers. Even though she denied the suggestion that she was aware of the alienation made by her father during his lifetime and in spite of the knowledge that the entire suit properties were already been sold in favour of purchasers, she, only with an intention to harass the Defendants and to make a wrongful gain, filed this false suit and making false claim over the suit properties.
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18) However, the P.W.1 herself got produced the sale deeds executed by Defendant No.1 on his personal behalf and also on behalf of his minor children, i.e., the Plaintif and Defendants No.2 and 3 on 17-2-2003 in favour of Defendant No.6, marked as per Ex.P9, in respect of a site measuring to an extent of 30 feet x 40 feet, carved out in item No.2 of the property for the valuable sale consideration amount. Likewise, the P.W.1 got produced one more sale deed executed by Defendant No.1 on his personal behalf and also on behalf of minor children, i.e., the Plaintif and Defendants No.2 to 4 in favour of Defendant No.7, with respect to a site carved out in item No.2 property measuring to an extent of 30 feet x 20 feet for the valuable sale consideration amount. Likewise, P.W.1 got produced the certified copy of the sale deed dated 26-10-2007 executed by Defendant No.1 along with Defendants No.2 and 3 and Smt.Munithayamma in favour of Defendant No.5 in respect of suit item No.1 property measuring to an extent of 0.02.08 guntas, subsequently after they sold 37½ guntas in favour of Defendant No.4. The recitals of Ex.P7 clearly proves that out of 1 acre of land, the Defendant No.1, along with Defendant No.2, on his personal behalf and also on behalf of his minor children, being the 32 O.S.No. 5800/2014 guardian of minors, sold the suit item No.1 property measuring to an extent of 37 ½ guntas in favour of Defendant No.4. The Plaintif has not chosen to deny the fact that to the Ex.P7 document, executed on 10- 10-2005 in favour of K.Pillaraju, she is also one of the consenting witnesses to the sale deed and she being a witness to the sale deed, put her LTM mark as witnesses No.5 to the document. The Plaintif has neither chosen to deny her LTM Mark found on Ex.P7 document, nor she has made any allegation against Defendant No.4 that he has impersonated her before the Sub-Registrar's office and her LTM Mark was forged to the sale deed and it is a created and concocted document.
19) The P.W.1, except adducing oral evidence that the Defendant No.1 has no any legal and family necessity to alienate the suit properties in favour of the purchasers by including the interest of the minors, has sold the suit properties by executing the sale deed and as such, those sale deeds are not binding upon her with respect to her share in the suit properties, has not chosen to deny the execution of sale deeds in favour of the purchasers. On the contrary, as I have discussed supra, in Ex.P7 document, the Plaintif 33 O.S.No. 5800/2014 herself, being a consenting witness to the document, made her LTM Mark by admitting and accepting the sale made in favour of Defendant No.4. In such being the case, the testimony of P.W.1 that the Defendant No.1 has no any absolute right to alienate the suit properties and he, without there being any legal and family necessity, sold the suit properties in favour of the purchasers by including her share and interest and as such, the sale deeds are not binding upon her, cannot be believable and acceptable. As I have discussed supra, the Plaintif has not chosen to challenge the sale deed by denying the execution of the sale deeds by Defendant No.1. Moreover, it is not the testimony of P.W.1 that the Defendant No.1 was addicted to bad vices and in order to fulfill his illegal and immoral needs, the Defendant No.1 sold the suit properties in favour of purchasers by executing sale deeds. Admittedly, the Plaintif, neither in the plaint averments nor in her affidavit evidence, has made any allegation against the Defendant No.1 with respect to his character and conduct before execution of the sale deeds. On the contrary, the recitals of Exs.P9, P10 and P11 clearly disclose that the Defendant No.1 being the father, in order to meet their legal and family necessities/commitments, sold the properties in 34 O.S.No. 5800/2014 favour of purchasers on his personal behalf and also on behalf of the minor children. The recitals of Ex.P11 further discloses that the vendor, by declaring himself that he is intending to purchaser other movable and immovable properties, since he is not carrying out the agricultural activities in the alienated property and in order to get more profits, sold the property in favour of purchaser for valuable consideration. In such being the fact, the testimony of P.W.1 that the Defendant No.1, without her knowledge and consent, by including her share in the suit properties, sold the properties in favour of purchasers and as such, the sale deeds standing in the name of the purchasers are not binding upon her with respect to her share in the suit properties, cannot be acceptable and it holds no merit. P.W.1 herself got produced the revenue documents before this Court marked as Exs.P2 to P6 to prove that initially the suit schedule properties were standing in the name of Defendant No.1 and subsequently, based on the registered sale deeds, the Khatha of the suit properties were lawfully mutated in the name of Defendant No.4 in respect of item No.1 property under M.R. 16/2005-06 and with Defendant No.5 under M.R. 17/2008-09. The P.W.1 herself got produced the RTC document marked as per Ex.P13 to prove that 35 O.S.No. 5800/2014 subsequently after purchase of suit item No.1 property by Defendant No.5, he got converted the entire land for non-agricultural residential purpose under MR No.27/2008-09 and now the entire suit item No.1 property was already been alienated for residential purpose. The P.W.1 herself got produced the document before the Court to prove that subsequently the Defendant No.5 executed a gift deed in respect of her purchased property in favour of Defendant No.5(a) as per Ex.P12 and later thereon, the Defendant No.5(a) had entered in to Joint Development Agreement with Defendant No.8 and she herself got produced the J.D.A. entered into between the Defendant No.5(a) and Defendant No.8, marked as per Ex.P7 and delivered the property in favour of the developer to develop the entire suit item No.1 property. In such being the case, at this stage, after the suit item No.1 property was already been converted for residential purpose and when the Defendant No.8 has already developed the entire property for construction of residential buildings, the present suit filed by the Plaintif that the alienation made by Defendant No.1 is not binding upon her with respect to her share in the suit properties, cannot be accepted and it holds no merit.
36O.S.No. 5800/2014 Even according to P.W.1, the suit schedule properties were purchased in the name of her grand mother Smt.Byamma under a registered sale deed during the year 1967. No doubt, P.W.1 has deposed hat her grand mother Byamma had no any separate source of income to purchase the lands, but however, the suit properties were purchased in the name of Byamma by her grand father-Narayanappa out of his income and as such, the suit properties are all joint family properties of her father Defendant No.1 and his brothers and sisters and it is only after the death of Byamma, her father partitioned the joint family properties among his brothers under a panchayat palupatti. This evidence clearly proves that the suit properties were originally standing in the name of Byamma and she purchased the suit properties in her name and subsequently after the death of Byamma, it was partitioned among the children of Byamma under a panchayat palupatti. This clearly establishes that the Defendant No.1 succeeded the suit properties after the death of his mother Smt.Byamma and became the absolute owner of the suit properties after the partition took place among his brothers under a panchayat palupatti. The Defendant No.1 being the absolute owner of the suit properties, having acquired 37 O.S.No. 5800/2014 the same under panchyat palupatti, sold the property by himself, by executing the sale deeds in favour of the purchasers. In such being the case, the Plaintif, during the lifetime of her father-Defendant No.1, will not get any right over the suit properties and even the suit properties are not the ancestral properties to the Plaintif during the lifetime of her father. It is pertinent to note that the Defendant No.1, during his lifetime sold both the suit Items No.1 and 2 properties by executing sale deeds. In such being the case, the Plaintif will not derive any right over the suit properties during the lifetime of her father- Defendant No.1, under Section 8 of the Hindu Succession Act. Even on this ground, the suit filed by the Plaintif by saying that both the suit schedule properties are the ancestral and joint family properties of herself and Defendants No.1 to 4 and they have jointly inherited the suit properties after the death of Narayanappa and Byamma and she is entitled for definite share in the suit properties, cannot be believable and acceptable and it holds no merit and more over, the suit itself is not maintainable.
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20) On the contrary, the Defendant No.6 given her evidence before this Court as D.W.1 and she filed her Affidavit in lieu of oral evidence, wherein she has categorically deposed that she purchased site No.2, V.P.Katha No.42/1, situated at Nageshwara Nagenahallil Village of Bengaluru East Taluk, measuring 30 feet x 40 feet under a registered sale deed dated 17-2-2003, which was registered on 20-2-2003 from the Defendant No.1. She deposed that the Defendant No.1, on his personal behalf and also as a guardian of Plaintif and Defendants No.2 and 3, executed the sale deed and since from the date of purchase of the said property, she is in possession and enjoyment of the same as the absolute owner and even she has constructed a compound wall around her purchased site property. She deposed that, at the time of execution of sale deed, the Plaintif and Defendants No.2 and 3 were minors and as such, the Defendant No.1 being the father of the minor children, executed the sale deed as a guardian of the minors. She deposed that after purchase of the suit property based on the sale deed, all the necessary panchayat documents mutated in her name by recognizing her as a Khathedar of the purchased property and she is exercising her possessory and proprietory right over 39 O.S.No. 5800/2014 the suit property. She further deposed that the BBMP has also recognized her as a Khathedar of the suit property and she is regularly paying taxes payable to the suit property and at this belated stage, the claim made by the Plaintif that she is also entitled for share in the alienated property cannot be acceptable and it is hopelessly barred by limitation. She deposed that the 1st Defendant sold the suit property prior to 20-12-2004 and as such, the Plaintif has no legal right either to challenge the sale deed made by Defendant No.1 or to claim any share in the alienated property. D.W.1 prays to dismiss the suit of the Plaintif.
The D.W.1 got produced the original registered sale deed dated 17-2-2003, marked as per Ex.D1. She got produced the Encumbrance Certificate marked as per Ex.D2 and Assessment and Demand Register Extract of her purchased property marked as per Exs.D3 and D4, respectively. She got produced the B- Katha Register Extract issued by the BBMP with respect to her purchased property, marked as per Ex.D5. She got produced 16 Tax Paid Receipts marked together as Ex.D6.
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21) Even though learned counsel for the Plaintif subjected D.W.1 for cross-examination and he extensively cross examined D.W.1, however, he did not chosen to deny the execution of Ex.D1 document by the Defendant No.1 on his personal behalf and also on behalf of minor children being the guardian of minors. Even though D.W.1, in her cross-examination admitted that in Ex.D1 there is no mention of survey number as 21/1A, i.e., suit item No.2 property, however, she has categorically stated that her site property is carved out in Sy.No.21/1A property. Even though D.W.1 has stated that she is not aware of the fact that the said property was acquired by the Defendant No.1 under a family panchayat palupatti and based on the same the mutation was entered in his name under MR 15/93-04, however, she has categorically denied the suggestion that the suit schedule properties are all agricultural properties and as such, under Ex.D1 document, she has not acquired any right, title or interest over the said properties. She further denied the suggestion that the Plaintif and Defendants No.1 to 3 are still in joint possession and enjoyment of suit properties. Even though the Plaintif in the cross-examination of D.W.1 suggested that the Defendant No.1, without taking permission from the Court to sell the suit properties, 41 O.S.No. 5800/2014 even on behalf of minor children, sold the property by including the interest of the minors and as such, the Ex.D1 document is void and illegal document. On the contrary, D.W.1, in her cross-examination categorically denied the entire suggestion made to her and denied that she has not acquired any title over the property purchased by her under Ex.D1.
22) Likewise, the Defendant No.7 given her evidence before this Court as D.W.2 and even D.W.2 has deposed that she purchased site No.1 of V.P.Khata No.42/1 under registered sale deed dated 17-2-2003 for valuable sale consideration amount from the Defendant No.1, who has executed a sale deed on his behalf and also on behalf of his minor children. She deposed that based on the said sale deed, the Khatha of the said property was mutated in her name by recognizing her as a kathedar of the property and since from the date of purchase of the suit property, she is in possession and enjoyment of the same as the absolute owner. She deposed that the suit schedule property is not at all existing as the same has already been converted for residential use and even on this ground, the suit of the Plaintif is not maintainable and more over, this Plaintif, only with an ulterior 42 O.S.No. 5800/2014 motive, with a dishonest intention to make illegal gain, has filed this false suit.
The D.W.2 got produced the Khatha extract relating to her purchased property standing in her name along with Tax Paid Receipts and Encumbrance Certificate, marked as per Exs.D7 to D9, respectively. She deposed that Ex.P10 is the sale deed relating to her purchased property and the same was already been produced by the Plaintif herself.
The learned counsel for the Plaintif even subjected D.W.2 for cross-examination, but however, except making suggestion to D.W.2 that she has not derived any title over her purchased property as disclosed in Ex.P10 and this Plaintif being daughter of Defendant No.1, is entitled for a definite share even in the alienated property, which has been categorically denied by D.W.2. Nothing fruitful has been elicited from the mouth of D.W.2 to disbelieve her testimony or to discredit her evidence.
23) As I have discussed supra, the Plaintif has not even chosen to deny the execution of Ex.P10 in favour of D.W.2, nor she has denied the passing of consideration disclosed in Ex.P10. It is pertinent to 43 O.S.No. 5800/2014 note that the Defendant No.1, as on the date of filing of the suit, was very much alive and he intentionally, after service of summons, has remained absent and placed ExParte. The Defendant No.1 has neither denied the execution of Ex.D1 document, nor he denied the execution of Ex.P10 document in favour of D.Ws.1 and 2. Moreover, as I have discussed supra, these sale deeds were executed during the year 2003 and at that point of time, the Plaintif was still a minor and as such, the Defendant No.1, on his personal behalf and also being a guardian of his minor children, executed the sale deeds in favour of D.Ws.1 and 2 by alienating the site properties for consideration amount. Both Ex.D1 document as well as Ex.P10 document clearly prove the passing of consideration amount to the Defendant No.1 and also prove that under the sale deeds the Defendant No.1 put the purchasers in possession of the purchased properties. The Plaintif has not chosen to deny the fact that since from the date of purchase of the site properties, both D.W.1 and D.W.2 are in possession of their respective purchased properties and even the Khatha of the purchased property was standing in the name of D.Ws.1 and 2, which is clearly evident in Ex.D4 and D7 documents.
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24) It is pertinent to note that the date of birth of Plaintif as per Ex.P9 is 10-8-1989 and even though at the time of execution of Exs.D1 and P10 documents the Plaintif was a minor, but however, she attained age of majority in the year 10-8-2007 itself and this Plaintif, even after she attained the age of majority in the year 2007 itself, she did not chosen to challenge the sale deeds immediately after she attained the age of majority. But, however, she filed the suit in the year 2014, after long lapse of delay, that too only after Defendant No.8 has developed the entire suit item No.1 property for residential purpose, based on the J.D.A. executed by Defendant No.5(a).
25) The General Power of Attorney Holder of Defendant No.5(a) examined as D.W.3 and he filed his Affidavit before this Court, wherein he has categorically deposed that the 1st Defendant got the suit properties under a panchayat palupatti dated 20-2-1981 took place between his brothers, wherein the suit property was allotted to the share of Defendant No.1 and accordingly, he became the absolute owner of the suit properties. He deposed that the Defendants No.1 and 2 herein, for their family and legal necessity and also to meet the legal 45 O.S.No. 5800/2014 requirement, sold the portion of suit item No.1 property in favour of Defendant No.4 under registered sale deed dated 10-10-2005 for valuable sale consideration amount, which was duly registered before the office of Sub-Registrar. He deposed that the Plaintif as well as other children of Defendant No.1 have signed the sale deed as the witnesses after knowing fully well that they have no right over the alienated property and under the sale deed they delivered vacant possession of the suit property in favour of Defendant No.4. He deposed that the Defendant No.4 became the absolute owner of the purchased property and in his name the Khatha was mutated under MR No.16/2005-06. He deposed that the 4th Defendant has sold the purchased property in favour of Defendant No.5 on 6-8-2007 for valuable sale consideration amount and delivered the property in favour of Defendant No.5. He deposed that the 1 st Defendant sold the retained portion of 2½ guntas of land in Sy.No.19/16 in favour of Defendant No.5 for valuable sale consideration amount under a sale deed dated 26-10-2007 and delivered portion of the property in her favour. He deposed that the Defendant No.5 became the absolute owner of the entire 1 acre of land in Sy.No.19/16 and subsequently she applied 46 O.S.No. 5800/2014 for conversion of said land before the Deputy Commissioner, Bengaluru and subsequently, the Deputy Commissioner passed an order on 14-11-2008 by converting the entire 1 acre of land for residential purpose in No.ALN(E)SR(KH)38/2007-2008 after she paid the necessary conversion charges to the Government. He deposed that the Defendant No.5 being the absolute owner of the entire 1 acre of land, gifted the property in favour of Defendant No.5(a), who is none other than the son of Defendant No.5, under a registered Gift Deed dated 17-9-2010. He deposed that Defendant No.5(a) accepted the gift and taken the possession of the entire 1 acre of land under gift deed and became the absolute owner of the suit item No.1 property. He deposed that Defendant No.5(a) had entered in to a Joint Development Agreement with Defendant No.8 in respect of 1 acre of land for construction of residential buildings and accordingly, the Defendant No.8 has developed the entire property by investing huge amount and also by receiving loans from various financial institutions. He deposed that the Defendant No.8 has invested huge amount for development of the suit property and at this stage, when the suit item No.1 property was already changed its character, the Plaintif, only with 47 O.S.No. 5800/2014 an intention to make a wrongful gain of herself, filed this false suit. D.W.3 further deposed that the Plaintif has not properly valued the suit for the purpose of court fee and even the court fee paid on the plaint is insufficient and on this ground also the suit of the Plaintif is not maintainable. He deposed that the Plaintif having full knowledge of alienation and being a witness to the sale deed, has filed this suit at a belated stage, only with an intention to harass the Defendants and even on this ground, the suit is not maintainable as the same is barred by limitation. D.W.3 prays to dismiss the suit of the Plaintif.
26) D.W.3 got produced the GPA given to him by B.S.Narahari and the same is marked as Ex.D10. He got produced the certified copy of sale deed dated 10-10-2005 executed in favour of Defendant No.4, sale deed dated 6-8-2007 executed by Defendant No.4 in favour of Defendant No.5 and sale deed dated 26-10-2007 executed by Defendants No.1 to 3 in favour of Defendant No.5, marked as per Exs.D11 to D13 respectively. He got produced the certified copy of the J.D.A. dated 30-3-2009 entered in between Defendant No.5(a) with Defendant No.8, marked as per Ex.D14. He got produced the certified copy of the Conversion 48 O.S.No. 5800/2014 Order passed by the Deputy Commissioner, Bengaluru, in respect of suit item No.1 property marked as per Ex.D15. He got produced the Records of Rights in respect of suit item No.1 property, which consists of 63 sheets and the same is marked as per Ex.D16. He got produced the Mutation Orders of MR No.5/2007- 08, MR 11/2007-08 and MR 16/2005-06, standing in the name of Defendant No.4 and subsequently in the name of Defendant No.5, in respect of entire suit item No.1 property, marked as per Exs.D17 to D19, respectively.
27) Learned Counsel for the Plaintif even subjected D.W.3 for cross-examination. The D.W.3 has clearly and categorically deposed that he is related only to suit item No.1 property, as the suit item No.1 property was purchased by mother of Defendant No.5(a) under Exs.D12 and D13, sale deeds, from the rightful owner. However, D.W.3 has denied the suggestion that he, without knowing the facts of the case, on behalf of Defendant No.5(a), is deposing false before this Court. Even though much has been put to D.W.3 during his cross-examination, however, the Plaintif has not chosen to deny the testimony of D.W.3, when he has categorically deposed that the 49 O.S.No. 5800/2014 Plaintif is a witness to Ex.D11-sale deed. No suggestion put to D.W.3 that LTM found on Ex.D11- document in the witness list is not that of this Plaintif and this Plaintif has not made her LTM Mark as a witness to the document. The Plaintif, except making suggestion to D.W.3 that suit item No.1 property is the ancestral joint family property of Plaintif and Defendants No.1 to 3, Defendant No.1 has no absolute right to sell the property alone, by including the interest of the other family members and as such, the sale deed is not binding upon this Plaintif with respect to her share in the suit property, which has been categorically denied by D.W.3, nothing fruitful has been elicited from the mouth of D.W.3. No doubt, a suggestion was put to D.W.3 that at the time of execution of Ex.D11, the Plaintif was only 16 years old and she was a minor as per the contents of Ex.P19, her S.S.L.C. Marks Card, however, D.W.3 has clearly stated that the Plaintif has made her LTM mark as a witness to Ex.D11-sale deed by admitting and accepting the execution of Ex.D11-sale deed. No doubt, as per the recitals of Ex.P19, the age of the Plaintif is 10-8-1989, on the contrary, Ex.P11 document also bears the LTM mark of this Plaintif. Moreover, the Plaintif has not chosen to deny the fact that based on Ex.D14, the 50 O.S.No. 5800/2014 Defendant No.5 has entered into a J.D.A. with the Defendant No.8 and based on the said document, the entire suit item No.1 property was already been developed for the residential purpose. The Plaintif has not even chosen to deny the orders passed by the Deputy Commissioner as per Ex.D15, wherein the entire 1 acre of land purchased by Defendant No.5 was converted for residential purpose and later thereon, the Khatha was also made in the name of Defendant No.5, by showing that the entire property is converted land, which is clearly evident in Ex.D16-RTC extract. Even in Exs.D17 to D19 it has been clearly stated that initially Defendant No.4 purchased portion of suit item No.1 property which was mutated in his name under MR 16/2005-06 and subsequently he sold the said property in favour of Defendant No.5, which was mutated in her name under MR No.5/2007-08 and later thereon, the Defendant No.5 purchased the remaining extent of 0.02.08 guntas of land and the same was mutated in her name under MR No.1/2007-08. These documents clearly prove that the Defendant No.5, after purchase of the entire 1 acre of land under the sale deeds, being the absolute owner of the purchased property, gifted the suit property in favour of her son- Defendant No.5(a) after executing registered gift deed 51 O.S.No. 5800/2014 as per Ex.P12 she delivered the vacant possession of the property in favour of Defendant No.5(a). The Plaintif herself got produced Ex.P12-document before this Court standing in the name of Defendant No.5(a). These documents clearly prove that the Defendant No.1 having acquired the suit property after the death of his mother, under a panchayat palupatti took place between his brothers, sold both the suit properties in favour of purchasers for valuable sale consideration amount and delivered the suit property in favour of the purchasers. In such being the case, the claim made by the Plaintif that she is not the consenting witness to the sale deeds and at the time of execution of the sale deeds she was a minor and as such, the sale deeds executed by Defendant No.1 are not binding upon her with respect to her share in the suit properties, cannot be acceptable and it holds no merit.
28) The learned counsel for the Plaintif has vehemently argued that the Plaintif and Defendants No.1 to 3 are the only joint family members and this Defendant No.1, by including the interest of the minor Plaintif, sold the property even without obtaining any permission from any of the competent authority to sell the property of the minor, knowing fully well that the 52 O.S.No. 5800/2014 suit schedule properties are all ancestral joint family properties of Plaintif and Defendants No.1 to 3 and as such, the alienation made by the Defendant No.1 in favour of Defendants No.4 to 7 and in turn, the sale deed executed by Defendant No.4 in favour of Defendant No.5 and subsequent gift deed executed by Defendant No.5 in favour of Defendant No.5(a), are not binding upon this Plaintif with respect to her share in the suit properties and accordingly, the sale deed with respect to the share of this Plaintif has to be set aside by allotting the Plaintif's 1/4th share in all the suit properties by metes and bounds. The arguments canvassed by the learned counsel for the Plaintif is not convinced this Court and it cannot be acceptable.
Even according to the Plaintif, the suit properties were originally acquired by her grand mother-Byamma and subsequently, after her death, the Defendant No.1 and his brothers have succeeded the properties and later thereon, there was a partition in between the Defendant No.1 and his brothers under panchayat palupatti. In such being the case, the properties succeeded by Defendant No.1 from his mother acquired under panchayat palupatti are his self acquired properties, on which the Plaintif and other 53 O.S.No. 5800/2014 children of Defendant No.1, during the lifetime of Defendant No.1, have no right of partition and even they have no right to claim any share in the said properties. In such being the case, the arguments canvassed by the learned counsel for the Plaintif that the Defendant No.1, without taking any prior permission from any of the competent authority before alienating the suit properties in favour of purchasers, cannot be acceptable.
Moreover, it is pertinent to note that the suit properties are not the minor's properties, so that, the Defendant No.1, before alienating the suit properties, has to obtain permission from the competent Court of law. Even according to the Plaintif, the Defendant No.1 was the kartha of the family and he was maintaining the entire family afairs of the joint family and he was looking after the Plaintif and other children, who were dependent on the Defendant No.1. As I have discussed supra, no allegation is made against Defendant No.1 that he was addicted to bad vices and he developed hostile attitude towards the Plaintif and other minor children and as such he had an intention to deprive the rights of the minor children over his properties. As I have discussed supra, the 54 O.S.No. 5800/2014 alienation made by Defendant No.1 is with respect to the family and legal necessity and also for the betterment of the family. In such being the case, the arguments canvassed by the learned counsel for the Plaintif cannot be acceptable and it holds no merit.
Likewise, his arguments that the Defendants No.1 to 3 have not chosen to contest the suit and it is only the purchasers who have filed their Written Statement by contending that they are the bonafide purchasers of the suit properties, but however, they failed to prove that they are the bonafide purchasers of the suit properties and more over, D.W.3 has admitted in his cross-examination that there was no partition in between the Plaintif and Defendants No.1 to 3 before the alienation of the suit properties and as such, by considering all these facts, suit of the Plaintif has to be decreed, is also not convinced this Court. As I have discussed supra, the Defendants No.1 to 3, even after service of summons, remained absent and they were placed ExParte. This clearly establishes that the Defendant No.1, even though sold the properties for valuable sale consideration in favour of the purchasers, subsequently the purchasers, after they developed the suit properties by investing huge 55 O.S.No. 5800/2014 amount, with the help of this Plaintif, filed this suit by challenging the sale deeds executed by he himself for the benefit of the family. The oral and documentary evidence adduced before this Court clearly prove that the sale made by the Defendant No.1 is for the benefit of the family and also for the welfare of the family members, including the Plaintif and Defendants No.1 to 3. The Plaintif herself, in her cross-examination, has admitted that it is her father-defendant No.1, brought up her in a proper and well manner and later thereon, he himself performed her marriage, by making expenditure, in a good manner and she was in good terms with her father till his death. This clearly establishes that the Defendant No.1 has taken proper care and protection of the Plaintif and he has performed all his duties as a duty-full father and performed her marriage to a right person, by meeting all expenditure. In such being the case, the arguments canvassed by the learned counsel for the Plaintif that the sale made by the Defendant No.1 is not for the family and legal necessity and it is not for the benefit of the minor Plaintif and as such, the sale has to be set aside, cannot be accepted and it holds no merit.
56O.S.No. 5800/2014
29) However, the arguments canvassed by the learned counsel for the Defendants No.5, 6 and 7 that the Defendant No.1 being the absolute owner of the suit property having succeeded the same from his mother after death and through a partition among his brothers under a panchayat palulpatti and he being the absolute owner, sold the properties for valuable sale consideration amount by executing a valid and registered sale deeds not only on his behalf, but also on behalf of his minor children, being the guardian of the minors and the said sale deeds are binding upon this Plaintif as well as the other children of Defendant No.1 and this Plaintif has no right to challenge the sale made by Defendant No.1 for the benefit of family and legal necessity, is fully convinced this Court.
Likewise, their arguments that during the lifetime of the father of this Plaintif, the Plaintif will not get any right over the suit properties under Section 8 of the Hindu Succession Act and this Plaintif, during the lifetime of her father filed this suit by challenging the sale deeds executed by her father for the family and legal necessity and as such, the very suit filed by the Plaintif is not maintainable, is fully convinced this Court.
57O.S.No. 5800/2014 Likewise, their arguments that the suit of the Plaintif is barred by limitation as this Plaintif has not filed this suit well within 3 years from the date of attaining majority, in view of provisions of Article 60 of the Limitation Act and even on this ground, the suit of the Plaintif is not maintainable, is fully convinced this Court. Admittedly, the Plaintif, in the Plaint cause title shows her age as 24 years as on the date of filing of the suit. Admittedly, the Plaintif has not filed this suit well within the period of 3 years from the date of attaining the age of majority by challenging the sale deed executed by her father. In such being the case, the suit of the Plaintif is not maintainable and the same is barred by limitation.
30) The Judgment relied upon by learned counsel for the Defendant No.4 in support of his arguments, reported in 2016(6) SCC 725 between Narayan vs. Babsaheb and others, wherein it is held as under:
"Held, Article 60 is applicable to suit by quondam minor to set aside alienation of his property by his guardian and limitation period of three years will start from date of minor attaining majority-Even if on date of filing of suit, remaining Plaintifs were major, but none 58 O.S.No. 5800/2014 of them was in capacity of manager of the family so as to be capable of giving discharge without concurrence of the minor and as such by virtue of S.7 of Limitation Act, 1963, time of 3 years will run against all the Plaintifs only on minor attaining majority. ... ..."
Likewise, the other Judgment relied upon the learned counsel for the Defendant No.6, reported in 2018(1) Kar.L.R. 598 (SC) between Mangammal @ Thulasi and another vs. T.B.Raju and others, wherein it is held as under:
29-A. Equal rights to daughter in coparcenary property-Not withstanding anything contained in Section 6 of this Act,-
(i) ... ... ...
(ii) ... ... ...
(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition:
(iv) ... ... ... "
is applicable to the facts of the present case on hand.
59O.S.No. 5800/2014 As per the recitals of Ex.P18, the 1st Defendant was allotted with land bearing Sy.No.19/16 measuring to an extent of 1 acre; Sy.No.21/1A measuring 11 guntas; Sy.No.21/2 measuring 11 guntas; Sy.No.21/4A measuring 26 guntas; Sy.No.13 measuring 15 guntas and Sy.No.14 measuring 15 guntas. The Plaintif has not chosen to include the other properties disclosed in Ex.P18 in this suit. Admittedly, the Plaintif has filed this suit only with respect to the alienated properties by Defendant No.1 in favour of Defendants No.4 to 7. In such being the case, the suit filed by the Plaintif is not maintainable for partition partition. The arguments canvassed by the learned counsel for the Defendants No.4, 6 and 7 is fully convinced this Court and therefore it is acceptable.
30) Even though Defendant No.7 has taken up the defence that items No.1 and 2 properties are not at all existing, as Defendant No.1 has sold the lands by forming sites, the P.W.1 herself got produced the sale deeds of Defendants No.6 and 7 executed by Defendant No.1, marked as per Exs.P9 and P10, which clearly prove that the Defendant No.1 sold the sites in favour of purchasers carved out of suit item No.2 property. The oral and documentary evidence adduced 60 O.S.No. 5800/2014 by D.W.1 and D.W.2 clearly proves hat they purchased their respective site properties carved out of suit item No.2 property, which has not been disproved by the Plaintif. The evidence placed on record clearly proves that the Defendant No.1 himself sold site properties in favour of Defendants No.6 and 7 by executing valid registered sale deeds for valuable sale consideration amount.
Per contra, the Plaintif has utterly failed to prove that the suit schedule properties are all joint family properties of herself and Defendants No.1 to 3 in their joint possession and enjoyment and this Defendant No.1 having no any absolute right over the suit properties, sold the properties in favour of Defendants No.4 to 7, by executing sale deeds on 17-2-2003, 10-10-2005, 6-8-2007, 26-10-2007 and all these sale deeds are not binding upon her with respect to her share in the suit properties.
Likewise, the Plaintif has utterly failed to prove that the Gift Deed dated 17-9-2010 executed by Defendant No.5 in favour of Defendant No.5(a) and J.D.A. executed by Defendant No.5(a) in favour of Defendant No.8 on 29-6-2013 with respect to suit item 61 O.S.No. 5800/2014 No.1 property is not binding upon her with respect to her share in the suit properties. Hence, by taking into consideration of the facts and circumstances of the case, Issues No.1 to 3 are answered in the Negative and Issue No.6 is answered in the Affirmative.
31) Issue No. 4 : The Defendants No.5 to 7 have taken up this specific contention that the suit of the Plaintif is barred by limitation, as this Plaintif has not filed this suit well within the period of 3 years after she attained the age of majority and on this ground alone the suit of the Plaintif has to be dismissed. Admittedly, the Plaintif has shown her age in the cause title of the Plaint as 24 years and she filed the suit in the year 2014 by challenging the sale deeds executed by Defendant No.1 in favour of the purchasers during the year 2003, 2005 and 2007, as per Exs.D1, D11 to D13. The Plaintif has not chosen to explain why she could not able to file this suit well within the period of 3 years immediately after she attained the age of majority. As per the provisions of Article 60 of the Limitation Act, the suit has to be filed within 3 years immediately after she attained the age of majority. As per the provisions of Article 60 of the Limitation Act, which reads thus:
62O.S.No. 5800/2014 " 60. To set aside a transfer of property made by the guardian of a ward-
(a) by the ward who has attained majority, period of limitation is Three years and time from which period begins to run is, when the ward attains majority.
(b) ... ... "
The arguments canvassed by the learned counsel for the Defendants No.6 and 7 that the suit of the Plaintif is barred by limitation, is fully convinced this Court. The Plaintif, even after the knowledge that both the suit properties were already been sold in the year 2003, 2005 and 2007 itself, filed this suit in the year 2014, after long lapse of delay. The Defendants No.5 to 7 have proved that the suit of the Plaintif is barred by limitation. Hence, I have answered this Issue in the Affirmative.
32) Issue No.5 : The Defendant No.5 has also taken up a defence that the Plaintif has not properly valued the suit for the purpose of court fee and the court fee paid by the Plaintif on the plaint is hopelessly insufficient and inadequate. The Defendant 63 O.S.No. 5800/2014 No.5 has stated that the Plaintif is not in joint possession of the suit property along with Defendants No.1 to 3 as on the date of filing of the suit and as such, the Plaintif has to value the suit u/S.35(1) r/w. S.24(a) and 26(a) of the K.C.F. & S.V. Act and she has to pay the court fee on the market value of the Suit Properties.
Admittedly, the Plaintif has filed this suit for the relief of partition and separate possession of her 1/4th share in the suit properties by metes and bounds and also for the relief of declaration, declaring that the sale deeds dated 17-2-2003, 10-10-2005, 6-8-2007 and 26-10-2007 executed by Defendants No.1 to 3 in favour of Defendants No.4 to 7 are illegal and void and the same are not binding upon her with respect to her legitimate share in the suit properties and also for the relief of declaration that the gift deed executed by Defendant No.5 in favour of Defendant No.5(a) in respect of suit item No.1 property is not binding upon her and also for the relief of declaration, declaring that the J.D.A. dated 27-6-2013 executed by Defendant No.5(a) in favour of Defendant No.8 is also not binding upon her with respect to her share in the Suit Properties.
64O.S.No. 5800/2014 The Plaintif, along with the Plaint, furnished the valuation slip by stating that she is in joint possession and enjoyment of the suit properties along with Defendants No.1 to 3 and accordingly, she has valued the suit u/S.35(2) of the K.C.F. & S.V. Act for the relief of partition and accordingly, she paid the fixed court fee of Rs.200/-. For the relief of declaration, the Plaintif valued the suit u/S.24(d) of the K.C.F. & S.V. Act and paid the fixed court fee of Rs.100/-. Likewise, the Plaintif, for the relief of permanent injunction, valued the suit u/S.26(c) of the K.C.F. & S.V. Act and paid the court fee of Rs.50/-.
However, this Court, while answering Issues No.1 to 3 and 6, has come to a conclusion that the Plaintif is not in joint possession and enjoyment of the suit properties along with the Defendants No.1 to 3 as on the date of filing of the suit. This Court, while answering the above Issues, has also come to a conclusion that the Defendant No.1 being the kartha of the family, has sold both the suit properties in favour of Defendants No.4 to 7 by executing sale deeds for the benefit of the family and also for the maintenance and up-bringing of minor children and as such, the sale deeds executed by Defendant No.1 on 65 O.S.No. 5800/2014 his personal behalf and also on behalf of his minor children, are binding on this Plaintif as well as the other family members.
The P.W.1 herself in her cross-examination admitted that after the suit properties were alienated in favour of Defendants No.4 to 7 and subsequent purchasers are in possession of the suit properties. The Plaintif has not even chosen to deny the execution of Ex.D14 executed by Defendant No.5(a) in favour of Defendant No.8, wherein he delivered vacant possession of the entire item No.1 property for the development and construction of residential apartments and on the basis of the said agreement, the Defendant No.8 is making construction in the property. Moreover, D.Ws.1 to 3 produced the documents before the Court to prove that the Khatha of the suit properties were lawfully mutated in their respective names based on the registered sale deeds and they are in lawful possession of their purchased properties and they are paying taxes payable to the respective purchased properties. The documents produced before the Court by the Plaintif as well as the Defendants clearly prove that subsequently after purchase of the suit properties by the purchasers, they are in possession and enjoyment of their respective 66 O.S.No. 5800/2014 purchased properties since from the date of purchase and they are exercising their possessory and proprietory rights over their respective purchased properties. In such being the case, the Plaintif ought to have valued the suit under Section 35(1) of K.C.F. & S.V. Act and she has to pay the court fee on the market value of the suit schedule properties. Likewise, the Plaintif has to separately value the declaratory relief sought by her with respect to each of the sale deeds separately and likewise, she has to separately value the relief sought by her for declaration of gift deed as well as the Joint Development Agreement Deed and she has to pay the Court on each of the prayers separately. The Defendants, by adducing oral and documentary evidence before the Court proved that the Plaintif has not properly valued the suit and even the court fee paid by the Plaintif is insufficient and inadequate. Hence, I answer this Issue in the Affirmative.
33) Issue No.7 : The Plaintif, while answering Issues No.1 to 3 has utterly failed to prove that the suit schedule properties are all ancestral and joint family properties of herself and Defendants No.1 to 3 and they have jointly inherited from their ancestors 67 O.S.No. 5800/2014 and they are in joint possession and enjoyment without there being any partition among themselves till the date of filing of the suit. Likewise, the Plaintif has utterly failed to prove that the Defendant No.1 having no any absolute right, title or interest, has illegally sold the suit properties in favour of purchasers, by executing sale deeds and those sale deeds are not binding upon her with respect to her legitimate share in the suit properties. The Plaintif, while answering Issues No.1 to 3, has failed to prove that the Defendant No.1, without there being any family and legal necessity and even without for the benefit of the minors, sold the suit properties and as such, the sale deeds executed by Defendant No.1 in favour of the purchasers in respect of suit properties are all illegal and void and the same are not binding upon her with respect to her share in the suit properties. This Court has already answered Issues No.1 to 3 against the Plaintif, in the Negative. As such, the Plaintif is not entitled for any relief as sought by her in the Suit. Hence, I answer Issue No.7 in the Negative.
34) Issue No. 8 : For the aforesaid reasons, this Court proceeds to pass the following:
68O.S.No. 5800/2014 ORDER The Suit of the Plaintif is hereby dismissed with costs.
Further, the Plaintif is directed to file Fresh Valuation Slip by taking into consideration of the market value of the suit schedule properties under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act and further directed to separately value each of the prayers sought by her for declaratory relief and directed to pay the Deficit Court Fee within seven days from the date of this Order.
Office is directed to collect the Deficit Court Fee and Fresh Valuation Slip, before drawing the Decree.
(Dictated to the Judgment Writer, transcription computerized, then corrected and pronounced by me in Open Court on this the 19th day of August, 2021.) (ISHRATH JAHAN ARA) III Addl. City Civil & Sessions Judge, Bengaluru.69
O.S.No. 5800/2014 ANNEXURE List of witnesses examined for the Plaintif:
P.W.1 -Smt.G.Pramila List of witnesses examined for the Defendants:
D.W.1 - Smt.Aswantha Mani D.W.2 - Smt. Gunavathi D.W.3 - D.Dhananjaya Raju List of documents exhibited for the Plaintif :
Ex.P1 - Notarized copy of Genealogy Tree Exs.P2 to P6 - RTCs .
Exs.P7 to P11 - Certified Copies of Sale Deeds dated 10.10.2005, 6.8.2007, 17.2.2003 and 26.10.2007 Ex.P12 - Certified Copy of Gift Deed dated 17.9.2010 Exs.P13 & P14 - RTCs.
Ex.P14 - Genealogy Tree with Affidavit Ex.P16 - Death Certificate of Ganeshappa Ex.P17 - Certified Copy of Amended JDA dated 29.6.2013 Ex.P18 - Certified Copy of MR Extract Ex.P19 - S.S.L.C. Marks Card of Plaintif 70 O.S.No. 5800/2014 List of documents exhibited for the Defendants:
Ex.D1 - Original Registered Sale Deed dtd.17.02.2003 Ex.D2 - Encumbrance Certificate Ex.D3 - Receipt of Panchayat Ex.D4 - Extract of Demand Register Ex.D5 - B-Khata standing in the name of D.W.1 Ex.D16 - 16 Receipts of BBMP Ex.D7 - B-Khata Extract standing in DW2's name Ex.D8 - 2 BBMP Receipts Ex.D9- Encumbrance Certificate Ex.D10 - GPA given to DW3 by Sri.B.S.Narahari Ex.D11 to D13 - Certified Copies of Sale Deeds dated 10.10.2005, 6.8.2007 and 26.10.2007 Ex.D14 - Certified Copy of J.D.A. dated 30.3.2009 Ex.D15 - Certified Copy of Conversion Order with respect to Suit Item No.1 property Ex.D16 - Record of Rights of Suit Item No.1 property Exs.D17 to D19 -MR 5/07-08, 11/07-08 and 16/05-06 (ISHRATH JAHAN ARA) III Addl. City Civil & Sessions Judge, Bengaluru.