Bangalore District Court
Munibeerappa D vs Narayanamma on 15 January, 2025
KABC010178802000
IN THE COURT OF THE XLIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT : SRI.BHAT MANJUNATH NARAYAN,
B.Com, LL.B.(Spl.)
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU .
DATED: THIS THE 15 th DAY OF JANUARY, 2025
O.S.No.6922 of 2000
Plaintiff: 1. Sri. D. Munibeerappa,
S/o Late Doddamuniyappa,
Aged about 35 years,
R/at Kallakere, K.R. Puram Hobli,
Bengaluru South Taluk.
(By sri. S.M.S., Advocate)
-VS-
Defendants: 1. Smt. Narayanamma
W/o Late Doddamuniyappa
Aged about 60 years,(died and
LRs are already on record
2.
Sri. Munipoojappa,
S/o Late Doddamuniyappa,
Aged about 32 years,
Both are residing at Kallakere,
2 O.S.No.6922 of 2000
K.R. Puram Hobli, Bengaluru
South Taluk.
3.
Smt. Lakshmidevamma,
D/o Late Doddamuniyappa,
Aged about 40 years,
4.
Smt. Nagarathna,
D/o of Late Doddamuniyappa,
Aged about 38 years,
5.
Smt. Vijayalakshmi,
D/o Late Doddamuniyappa,
Aged about 36 years,
6.
Smt. Kanthamma,
D/o Late Doddamuniyappa,
Aged about 34 years,
Defendant No.3 to 6 are
R/at Kallakere, K.R. Puram Hobli,
Horamavu Post,
Bengaluru East Taluk.
7.
Sri. R. Uma Prasad,
Aged about 50 years,
S/o Late B. Rudrappa,
R/at No.237, 13 th Cross,
2 nd Stage, Indiranagar,
Bengaluru-560 017.
8.
Smt. S.G. Shashikala,
Aged about 35 years,
W/o Sri. R.N. Parameshwara,
R/at No.14, Ulsoor Road,
3 O.S.No.6922 of 2000
9. Indiranagar, Bengaluru-38.
Mrs. B.S. Nanda,
W/o Umaprasad,
No.410, Priyadarshini Apartment,
No.237m and 240, 13 th Cross, 2 nd
Stage,
Indiranagar, Bengaluru-38.
(By D1-J.P., D-2-DSM., D3 to D5-
S., D6-S.R., D7 to D9-V.B.S.,
Advocates)
Date of Institution of the suit : 12-10-2000
Nature of the Suit : Partition
Date of commencement of : 07.08.2002
recording of the evidence
Date on which the Judgment : 15.01.2025
was pronounced
Total Duration : Years Months Days
24 03 03
(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
4 O.S.No.6922 of 2000
J U D G M E N T
That, the plaintiff has filed this suit for partition & separate possession of the suit schedule property. The plaintiff has also sought for declaration to declare that Sale Deed dated 29.09.2000 executed by 1 st defendant in favour of defendant No.7 and 8 is void and not binding on the rights of the plaintiff.
The suit property is agricultural land described in the schedule as under:
SCHEDULE Property situated at Kallakere, K.R. Puram Hobli, South Taluk, bearing Sy.no.358, extent 1 ace 17 guntas, kushki land 2 guntas karab land having bounded on:-
East : Jinkathimanahalli boundary West : Ramanna's property North : Muniyappa's property South : Kempathimanna & Muniyappa's Property
2) The facts narrated in the plaint are under:-
Genealogy of the parties as could be seen from the pleadings is as under:5 O.S.No.6922 of 2000
Doddamuniyappa (Deceased) Smt. Narayanamma (Def.1) D.Munibeerappa Munipoojappa Lakshmidevamma (Plf) (Def.2) (Def.3) Nagarathna Vijayalakshmi Kanthamma (Def.4) (Def.5) (Def.6) a. The plaintiff submits that one Doddamuniyappa died leaving behind him his wife Narayanamma-Def.No.1, Plaintiff and Defendant No.2-
sons as his legal heirs. The defendant No.3 to 6 are the daughters of 1 st defendant & Doddamuniyappa It is specific case of the plaintiff that Doddamuniyappa has purchased the suit schedule property from his retirement savings as well as from nucleus of ancestral 6 O.S.No.6922 of 2000 property in the name of his wife defendant No.1. It is submitted by the plaintiff that 1 st defendant was house wife and had no independent income or immovable properties belonging to her. It is specific case of the plaintiff that schedule property was purchased in the name of 1 st defendant as per registered Sale Deed 21.05.1977 out of joint family funds and as such Doddamuniyappa, defendant No.2 and plaintiff herein being members of the family are having right over the suit property. The plaintiff submits that property was purchased by Doddamuniyappa as a kartha of the joint family. It is submitted by the plaintiff that suit schedule property purchased in the name of defendant No.1 was in possession & enjoyment of joint family members and land was cultivated by spending joint family funds and also joint labour & joint efforts of the members of the family.
7 O.S.No.6922 of 2000
b. The plaintiff further submits that property is standing in the name of 1 st defendant, was never treated as her separate property and it is treated as joint family property only. Doddamuniyappa father of the plaintiff and defendant No.2 to 6 had paid land revenue in the name of 1 st defendant out of joint family funds. Therefore, the plaintiff has contended that though property is in the name of 1 st defendant, it is treated as joint family property and she has lost her right to deal with property independently. The plaintiff submits that defendant No.1 to 6 and plaintiff had equal rights in the suit property.
c. It is specific case of the plaintiff that defendant No.7 and 8 are claiming to have purchased the suit schedule property as per registered Sale Deed dated 29.09.2000, said to have been executed by 1 st defendant. The plaintiff has further pleaded that he came to know about the sale deed only after remand of 8 O.S.No.6922 of 2000 the suit by Hon'ble High Court in RFA 137 of 2007 and after filing of written statement by defendant No.7 &8. It is submitted by the plaintiff that as per sale deed an area of 01-03-00 is sold but the boundaries mentioned in the Sale Deed is with respect to entire 01-17-00. It is submitted by the plaintiff that 1 st defendant is illiterate lady and none of the family members of the 1 st defendant have either accompanied nor attested the Sale Deed. It is further alleged by the plaintiff that by taking undue advantage of illiteracy of 1 st defendant, the Sale Deed has been created & got executed behind the back of the plaintiff and other family members. The plaintiff submits that the Sale Deed is null & void and came in existence under suspicious circumstances and hence, is not voluntarily executed by 1 st defendant.
d. The plaintiff further submits that schedule property is the joint family property in joint possession 9 O.S.No.6922 of 2000 of the members of the family and as such the defendant No.7 and 8 have not acquired right title or interest over the suit property. It is submitted by the plaintiff that the extent and boundaries mentioned in the Sale Deed shows dishonest and fraudulent intention of defendant No.7 and 8 and members of the family of the plaintiff were in possession of the property and the Sale Deed is not binding upon the rights of the plaintiff. It is further submitted by the plaintiff that Sale Deed had been got executed by misrepresentation and playing fraud without disclosing the nature of the document. It is submitted by the plaintiff that no consideration amount was paid to 1 st defendant under Sale Deed and as such, document is to be declared as void and not binding upon the rights of the plaintiff.
e. The plaintiff submits that def.No.1 Narayanamma was suffering from disorder and illness relating to mental health and as such, she was not 10 O.S.No.6922 of 2000 possession of good mental health. The plaintiff further that Def.No.1-Narayanamma was admitted to National Institute of Mental Health and Neuro Science Bengaluru as an inpatient and also received treatment. It is submitted by the plaintiff that Doctors who have examined Def.No.1-Narayanamma have advised for medication and as such, the 1 st defendant Narayanamma being illiterate and suffering from mental disorder, was unaware about the legal consequences of executing Sale Deed in favour of defendant No.7 and 8. It is submitted by the plaintiff that defendant No.7 and 8 have taken her to Sub- registrar offi ce & without making disclosing the nature of document, got the executed Sale Deed. The plaintiff submit that prior to execution of alleged Sale Deed, defendant No.7 and 8 who are knowing very well about nature of the property, the plaintiff and other children of 1 st defendant, never consulted them and hence, 11 O.S.No.6922 of 2000 none of the family members have attested the Sale Deed. It is submitted by the plaintiff that in the alleged Sale Deed recitals that funds are needed for herself and members of her family is an invented one and Narayanamma was not in position to take any decision to sell the schedule property.
f. It is submitted by the plaintiff that taking advantage of name of 1 st defendant appearing the revenue records pertaining to suit property, the property has been alienated. It is further submitted by the plaintiff that suit schedule property was in actual possession of plaintiff and Mango fruits have been grown in the suit schedule property. Since, 1 st defendant with ulterior motive has alienated the property and entered into an agreement of sale in respect of schedule property and is about to dispose of the property, plaintiff had filed suit for partition and separate possession of the suit schedule property. 12 O.S.No.6922 of 2000
3) a. Initially suit was filed against defendant No.1 and 2 only. The defendant No.1 remained ex-parte and as per judgment dated 01.09.2023 suit came to decreed holding that plaintiff is entitled for ½ share in the suit schedule property. Against judgment and decree dated 01.09.2023 the original defendant No.1 Narayanamma had preferred regular first appeal before Hon'ble High Court of Karnataka at RFA.No.137 of 2007. The regular first appeal filed by the defendant No.1 Narayanamma came to be allowed and suit was remanded for fresh disposal. Def.No.1 Narayanamma appeared before the court and filed written statement on 20.01.2006. In the written statement 1 st defendant Narayanamma had denied that plaintiff is having share in the suit schedule property. 1 st defendant Narayanamma has pleaded that she is also having 4 daughters apart from plaintiff and defendant No.2 and contended that suit is bad for non-joinder of necessary 13 O.S.No.6922 of 2000 party. The defendant No.1 Narayanamma has also denied that the property is purchased by her husband Doddamuniyappa in her name as per Sale Deed dated 21.05.1977. 1 st defendant Narayanamma had contended that suit schedule property is purchased by her out of own earnings from one Smt. Chinnakka, and the plaintiff and 2 nd defendant have endorsed the same stating that schedule property is owned by 1 st defendant Narayanamma as per deed of declaration dated 29.09.2000.
b) The 1 st defendant has contended that suit schedule property is her self-acquired property and plaintiff and other defendant No.2 is not having right over the property. It is also denied by the defendant No.1 that suit property is the ancestral property of Late Doddamuniyappa. The defendant No.1 has also denied that plaintiff was in possession of the suit property, planted Mango trees and enjoying the same. 14 O.S.No.6922 of 2000 It is contended by the 1 st defendant that she has sold the part of the suit schedule property prior to filing of the suit and during the pendency of the suit and little portion in the remaining property was gifted to plaintiff by registered Gift deed. The defendant No.1 has contended that plaintiff, defendant No.2 and her four daughters have executed deed of declaration declaring that 1 st defendant is the absolute and sole owner of the property and as such she is having absolute right to alienate the property.
c) The 1 st defendant further submits that after obtaining an ex-parte decree plaintiff enticed 2 nd defendant to file another suit for partition at O.S.No.7393 of 2003 and 2 nd defendant & plaintiff have joint hands to harass the 1 st defendant and purchaser of the suit schedule property causing inconvenience, damages to the compound constructed by purchaser- defendant No.3 and 4 of O.S.No.7393 of 2003. The 15 O.S.No.6922 of 2000 police complaint is also filed against the plaintiff and defendant No.2. The 1 st defendant has further contended that there is no cause of action to file the suit and court fee is paid is insuffi cient. On these counts the defendant No.1 prayed that suit of the plaintiff be dismissed with cost.
4) As 1 st defendant has taken contention that she is having 4 daughters, they have impleaded as defendant No.3 to 6. The defendant No.3 to 5 have appeared & filed written statement in the suit. The defendant No.3 to 5 have admitted that suit schedule property is the joint family property purchased by Doddamuniyappa in the name of 1 st defendant out of his retirement saving as well as from nucleus of the ancestral property. The defendant No.3 to 5 have also admitted that plaintiff and defendant No.2 to 6 are having share in the suit schedule property and 1 st 16 O.S.No.6922 of 2000 defendant is not having absolute right to alienate the property. It is submitted by the defendant No.3 to 5 that 1 st defendant has already given share to defendant No.6 by way of Gifting part of the property and as such, they are also entitled for share in the suit schedule property along with plaintiff and defendant No.2.
5) Defendant No.6 has filed separate written statement and admitted that she is the daughter of Doddamuniyappa and Smt. Narayanamma the 1 st defendant herein and also relationship between the parties to the suit as stated in the plaint. The defendant No.6 has admitted other contentions taken by the plaintiff in the plaint. Defendant No.6 has also disputed the validity of Sale Deed dated 29.09.2000 executed by 1 st defendant in favour of defendant No.7 and 8 as same is not supported by consideration and 17 O.S.No.6922 of 2000 obtained by playing fraud and misrepresentation. The defendant No.6 also contended that 1 st defendant was not in good state of mental health and in the year 1982 only her mental health was deteriorated and gradually she lost her sense of understanding anything. It is further submitted by defendant No.6 that defendant No.7 and 8 claims to be purchasers of the suit schedule property from defendant No.1 though they having full knowledge about the nature of the property got transferred the property by playing fraud and misrepresentation. It is submitted by the defendant No.6 that by taking advantage of illiteracy of Narayanamma and her children, the defendant No.7 and 8 got executed Sale Deed in their favour. Since, Sale Deed dated 29.09.2000 is out-come of fraud, undue influence and misrepresentation, the defendant No.6 has contended that the same is not binding upon the share of the defendant No.6 and she is having 1/7 th 18 O.S.No.6922 of 2000 share in the suit schedule property. Accordingly defendant No.6 prayed that suit be decreed as prayed.
6) a. The defendant No.7 and 8 have denied that suit schedule property is the joint family property of plaintiff and defendant No.1 to 6. The defendant No.7 and 8 have contended that as per deed of declaration executed by plaintiff and defendant No.2 to 6 dated 29.09.2000 1 st defendant is the absolute owner in possession of the suit property. It is denied by the defendant No.7 and 8 that suit property is purchased by Doddamuniyappa in the name of 1 st defendant and as such, suit property is the joint family property of plaintiff and defendant No.1 to 6. It is contended by the defendant No.7 and 8 that they have purchased the suit schedule property and def.No.1 Narayanamma has sold the property by knowing the contents of the document. It is further denied by the defendant No.7 19 O.S.No.6922 of 2000 and 8 that fraud has been committed by them and hence, Sale Deed dated 29.09.2000 is void.
b) The defendant No.7 and 8 have also contended that 1 st defendant was in sound state of mind at the time of execution of Sale Deed and hence it cannot be said that due to mental condition 1 st defendant was unaware about the consequences of execution of the document. The defendant No.7 and 8 have claimed that they are in possession & enjoyment of the suit schedule property and as such, the claim made by the plaintiff is not sustainable and liable to be dismissed. On the these grounds defendant No.7 and 8 are prayed for dismissal of the suit.
7) The 2 nd defendant has not filed written statement but he had filed one suit at O.S.No.7393 of 2003 which has been clubbed along with the suit. The 2 nd defendant has also claimed that suit property is the 20 O.S.No.6922 of 2000 joint family property of Doddamuniyappa which is purchased in the name of defendant No.1- Narayanamma. In OS No.7393 of 2008, defendant No.2 had claimed that he is having share in the suit property.
8) The defendant No.7 and 8 have filed application at I.A.No.12 under Order VII Rule 11(a) and
(d) of CPC R/w. Section 4 of Benami Transaction (Prohibition) Act 1988 to reject the plaint. This court by order dated 31.03.2015 has allowed I.A.No.12 filed under Order VII Rule 11(a) and (d) of CPC and rejected the plaint holding that suit is barred under Section 4 of Benami Transaction (Prohibition) Act, 1988. The suit filed by the defendant No.2 at O.S.No.7393 of 2003 was also dismissed on the ground that the same is barred by Benami Transaction (Prohibition) Act 1988. Against rejection of plaint by order dated 31.03.2015 the 21 O.S.No.6922 of 2000 plaintiff herein has filed regular first appeal at RFA No.766 of 2015. The Hon'ble High Court of Karnataka by order dated 19.07.2022 has allowed the regular first appeal setting aside the order passed by this court on 31.03.2015 and remanded the case for disposal in accordance with law. Accordingly, this case was restored at its original number and presence of the parties are secured.
9) During the pendency of RFA No.766 of 2015 Def.No.1 Narayanamma died and her legal heirs are already on record.
10) During the pendency of the suit defendant No.8 has relinquished her share in the suit schedule property in favour of defendant No.7 and thereafter, defendant No.7 has gifted the property in favour of defendant No.9, who is the wife of defendant No.9. In view of the subsequent to events defendant No.9 was 22 O.S.No.6922 of 2000 also brought on record by filing application under Order I Rule 10 CPC. Defendant No.9 has also filed written statement similar to that of defendant No.7 and 8.
11) By considering pleadings and documents produced by the parties, my learned predecessor in offi ce had framed the following issues :-
1. Whether plaintiff proves that the suit schedule property is joint family property of plaintiff and defendant No.1 to 6?
2. Whether defendant No.1 proves that the suit schedule property is her self- acquired property?
3. Whether plaintiff is entitled for partition and separate possession of his share in suit property? If so, at what share?
4. Whether D2 proves that the suit is bad for non-joinder of necessary party? 5 Whether plaintiff is entitled for the reliefs sought for?
6. What order or decree?
Additional Issues framed on 07.07.2010 23 O.S.No.6922 of 2000
1. Whether plaintiff proves that defendant No.7 and 8 have obtained Sale Deed dated 29.09.2000 from defendant No.1 by playing fraud and misrepresentation?
2. Whether plaintiff proves that the Sale Deed dated 29.09.2000 executed by defendant No.1 in favour of defendant No.7 and 8 is null and not binding on the plaintiff?
3. Whether plaintiff is entitled for declaration as sought for?
Additional issues framed on 15.07.2011
1. Whether the plaintiff proves that the Sale Deed dated 29.09.2000 executed by defendant No.1 in favour of defendant No.7 and 8 is null and void and not binding on plaintiff?( Deleted as per order dated 09.11.2023)
2. Whether defendant No.7 and 8 proves that the court fee paid by the plaintiff is not suffi cient?
3. Whether the defendants 7 and 8 prove that the suit is barred by limitation?
Issue regarding sufficiency of court fees is considered by this court and as per order dated 24 O.S.No.6922 of 2000 16.02.2012 the said issued is answered in negative holding that court fee paid is sufficient.
12. In order to prove the contention of the plaintiff regarding nature of the property and the validity of Sale Deed which was under challenged, plaintiff got himself examined as P.W.1 and got marked Ex.P.1 to P.7 and after remand Ex.P.8 to P.37 are marked. At the request of Plaintiff witness summons to one M.Revanna S/o K. Muddappa - signatory to sale deed is issued, but in- spite of repeated issuance of witness summons, warrant and proclamation, his presence could not be secured. Defendant No.7 has not adduced evidence but his Power of Attorney Holder who is the brother of defendant No.7 is examined as DW.1. Thereafter the defendant No.7 has executed 25 O.S.No.6922 of 2000 another General Power of Attorney in favour of his wife defendant No.9 and she is examined as DW.2. 29 documents were marked on behalf of defendants. Parties to the suit have not adduced any further evidence.
13. The learned counsel appearing for the plaintiff has argued that suit schedule property is the joint family property consisting of Doddamuniyappa and his sons, daughters and 1 st defendant, 1 st defendant had no independent income and property is purchased by Doddamuniyappa out of his retirement benefit and income from salary and also from the joint efforts. Learned counsel for the plaintiff has argued that Doddamuniyappa was in joint family with his brothers but the Doddamuniyappa and his sons, 26 O.S.No.6922 of 2000 daughters and wife have constituted micro joint family within larger joint family of Doddamuniyappa and his brothers and the property is purchased for the benefit of Doddamuniyappa and his sons, daughters and wife. Therefore, the learned counsel for the plaintiff has argued that property is the joint family property belonging to micro joint family of Doddamuniyappa and his sons and daughters. The learned counsel for the plaintiff has contended that there is no evidence to show that 1 st defendant had any independent income out of which she can purchase the property and as such, it has to be held that the property is purchased by Doddamuniyappa in the name of 1 st defendant and as such, it is a joint family property.
27 O.S.No.6922 of 2000
14. The learned counsel for the plaintiff has also argued that Sale Deed dated 29.09.2000 is out coming of fraud and misrepresentation and as such is a void document. The learned counsel has attacked Sale Deed dated 29.09.2000 on many grounds stating that Sale Deed dated 29.09.2000 is not supported by consideration or no consideration amount is paid to the 1 st defendant, 1 st defendant was not at all present when Sale Deed dated 29.09.2000 was presented before Sub-registrar, the presence of 1 st defendant was secured stating that she is executing Sale Deed in favour of her daughter 6 th defendant and thereafter, the Sale Deed dated 29.09.2000 has been registered on later date, which was kept pending when it was presented. Learned counsel for the plaintiff has also argued that there was a sale agreement 28 O.S.No.6922 of 2000 between one M. Revanna witness to sale deed and the defendant No.7 herein which shows that consideration amount is not paid to the 1 st defendant.
15. The learned counsel for the plaintiff has contended that consideration amount is not paid under Ex.D.4 and the intention of 1 st defendant to execute the Sale Deed was denied, the defendant No.7 and 8 have not taken pain to examine attesting witnesses and as such, it has to be held that the Sale Deed is outcome of fraud, undue influence and misrepresentation. It is argued by the counsel for plaintiff that defendant No.7, DW.1 who is the brother of defendant No.7-advocate appearing for 1 st defendant as well as 7 th defendant and one M. Revanna colluding with each other 29 O.S.No.6922 of 2000 have created Sale Deed without informing the contents of the Sale Deed. It is argued on behalf of the plaintiff that Sale Deed has been drafted and executed in the language not known to 1 st defendant Narayanamma and there is no recitals in the Sale Deed that contents of the documents are read over and explained to 1 st defendant. Therefore, the learned counsel for the plaintiff has contended that the Sale Deed is not valid document. The learned counsel has also drawn my attention to the cross examination of the defendants and stated that from the evidence of DW.2 it cannot be said that she was present at the time of execution of Sale Deed if compared with evidence of DW.1 who is also a GPA Holder of defendant No.7. It is argued by the counsel for the plaintiff that though written statement is filed by 30 O.S.No.6922 of 2000 defendant No.1, the same is not verified by filing affi davit and hence, the written statement cannot be considered. The learned counsel for the plaintiff has argued that even if written statement is considered, in the written statement also 1 st defendant has not stated to whom she has sold the property what is consideration received and the extent of the property sold and the DW.1 who was appearing for 1 st defendant Narayanamma being brother of 7 th defendant has concealed the Sale Deed executed in favour of defendant No.7 and 8 by playing fraud to 1 st defendant Narayanamma also and as such, there is no reference of name of purchasers in the written statement filed on behalf of Def.No.1 Narayanamma. Hence, learned counsel appearing for the plaintiff has contended that the Sale Deed is void in law and hence, liable to be set 31 O.S.No.6922 of 2000 aside. Learned counsel for the plaintiff has referred following decisions:-
1. Gowtham Swarup V/s. Leela Jaitly and others
2. S.R. Srinivas & Ors V/s. Padmavathamma, 2010 AIR SCW 3935, para-31-34
3. K.V. Narayanaswami Iyer V/s. Ramakrishna Iyer, 1965 AIR 289 page 7
4. A.K. Kraipak V/s. Union of India, AIR 1970 SC 150
5. Union of India V/s. Ibrahim Uddin & Anr
6. Commissioner of customs (preventive) V/s. M/s Aaflote textiles (I) Pvt. Ltd others, in Civil Appeal 2447/2007, in paragraphs 9, 10, 11, 12, 13.
7. Veena singh (since dead) by LRs V/s. The district Registrar
8. Deccan Paper Mills Co.Ltd V/s. Regency Mahavir Properties and others.
9. Mohommad Abdul Wahid V/s. Nilofer and another made in SLP (CIVIL) No.14445/2021,
10. Devraj Dogra V/s. Gyanchand Jain, 1981 AIR 981,
11. Singara Sigh V/s. Daljit Singh para 15,
12. Ramathal V/s. K. Rajamani 2023 Livelaw (SC) 666 32 O.S.No.6922 of 2000
13. Udhav Singh V/s. Madhavarao Scindia AIR 1976 SC 744 para 30.
16. Per contra, the learned counsel appearing for the defendant No.7 to 9 has argued that Def.No.1 Narayanamma has admitted that she has sold the property to defendant No.7 and 8 and it is stated in the written statement that 2 nd defendant by filing another suit at O.S.No.7393 of 2003 tried to interfere with possession of defendant No.3 and 4 of that suit who are the purchasers which implies that Narayanamma has clearly stated that she has sold the property to defendant No.7 and 8. It is argued by the counsel for the defendant that the property purchased in the name of female is Shridhana property and is considered as her self-acquired property. It is also argued by the learned counsel appearing for the Defendant No.7 to 9 that as per Section 14 of Hindu Succession Act property purchased by Female Hindu is treated as her 33 O.S.No.6922 of 2000 self-acquisition and as such, it is to be held that the suit is bad in law as property is self-acquired property of 1 st defendant. It is argued on behalf of defendant that documents produced by plaintiff themselves shows that the property is not a joint family property. The learned counsel has drawn my attention to Ex.P.11 and P.12 Partition deeds executed in the family of plaintiff and others. Leaned counsel for the defendants has contended that Ex.P.11 Partition deed dated 03.12.2002 is between 1 st defendant and her brother- in-law i.e., brothers of her husband Doddamuniyappa and in the said Partition deed there is no reference that the suit property is a joint family property purchased in the name of 1 st defendant.
17. The learned counsel for the defendant has also argued that on the same day the plaintiff, defendant No.1 and 2 got partitioned the property 34 O.S.No.6922 of 2000 allotted to 1 st defendant in family partition as per Ex.P.11 and in that Partition deed also there is no reference that the suit property is the joint family property. Therefore, the learned counsel for the defendants has contended that conduct of plaintiff, defendant No.1 and 2 clearly establishes that property is the separate property of 1 st defendant and she had every right to alienate the suit schedule property. It is also argued by the counsel appearing for the defendants that the Sale Deed dated 29.09.2000 is valid document and defendant No.7 and 8 have purchased the property thereafter, defendant No.8 has released her right in the suit schedule property in favour of defendant No.7 on 17.02.2023 by executing Release deed and thereafter, 7 th defendant has gifted the property to defendant No.9 and as such, at present the defendant No.9 is the owner in possession of the suit property. The learned counsel for the defendants 35 O.S.No.6922 of 2000 has also contended that the possession of original documents clearly shows that property was sold to defendant No.7 and 8 and consideration amount is received by defendant No.1. Since, registered documents are having presumptive value, learned counsel for the defendants has contended that examination of attesting witness was not necessary and hence, suit is liable to be dismissed. The learned counsel for the defendants has relied upon following decisions:-
1. LAWS (KAR) - 2022-10-803 in case of K.V. Nagesh Gowda V/s. Munivenkatappa K.M
2. LAWS (KAR)-2021-12-34 in case of Vijayakumar V/s. Vanajakshi
3. AIR 1976 SC 744 in case of Udhav Singh V/s. Madhav Rao Scindia
4. AIR 2018 SC 3080 in case of Siddagangaiah (D) their LRs V/s. N.K. Giriraja Shetty(D) their LRs.
18. The defendant No.2 & 6 have also filed written arguments in the similar lines that of plaintiff and 36 O.S.No.6922 of 2000 prayed that suit be decreed and their share may kindly be declared by passing preliminary decree.
19. I have perused oral and documentary evidence adduced by both the parties to the suit in light of the arguments advanced before me and my findings on the above issues are:-
Issue No.1: In the Negative
Issue No.2: In the Affi rmative
Issue No.3: Plaintiff is not entitled for
partition and separate
possession
Issue No.4: Does not arise for
consideration
Additional Issue No.1 In the Negative & 2 framed on 07.07.2010 Additional Issue No.2 Already decided as per framed on 15.07.2011 order dated 16.02.2012 Additional Issue No.3 In the Negative Issue No.5 and Plaintiff is not entitled for additional issue No.3 the relief claimed framed on 07.07.2010 Issue No.6: As per final order, for the following:-
37 O.S.No.6922 of 2000
REASONS
20. Issue No.1 and 2 :- These issues are framed with respect to nature of the suit schedule property. It is contended by plaintiff that though property is purchased in the name of 1 st defendant, the property is purchased by his father Doddamuniyappa and as such suit property is the joint family property of plaintiff and defendant No.1 to 6. Whereas defendant No.1, 7 to 9 are contending that suit property is the self-acquired property of defendant No.1. In this suit admitted an undisputed facts are as below:
1. The relationship of plaintiff and defendant No.1 to 6.
2. Suit property was standing in the name of 1 st defendant and was purchased in the name of 1 st defendant as per registered Sale Deed dated 21.05.1977.
3. The joint family property consisting of Doddamuniyappa and his brothers, has been divided as per Ex.P.11 Partition deed dated 03.12.2002 i.e., during the pendency of the suit.38 O.S.No.6922 of 2000
4. The joint family property consisting of plaintiff and defendant No.1 to 6 were also divided during the pendency of the suit as per Ex.P12 Partition deed dated 03.12.2002.
The only dispute in the suit is regarding nature of suit property and validity of Sale Deed.
21. The plaintiff contended that property is purchased in the name of 1 st defendant and 1 st defendant had no income and as such, it is a joint family property. The plaintiff claims that his father Doddamuniyappa had purchased suit property in the name of 1 st defendant as per Sale Deed dated 19.05.1977 which is registered on 23.05.1977. In the present case there is evidence available to show that defendant No.1 had independent avocation through which she had income to purchase the suit property.
To show that property is purchased by Doddamuniyappa in the name of 1 st defendant, there is no evidence except oral evidence of plaintiff. The 39 O.S.No.6922 of 2000 plaintiff has contended that property is the Benami property of his father in the name of his mother for the benefit of micro family consisting of Doddamuniyappa and his sons and 1 st defendant only. It is further contention of plaintiff as his father was joint with his brothers, the property is purchased in the name of defendant No.1. It is an admitted fact that when property was purchased the Doddamuniyappa and his brothers were joint. The plaintiff is not claiming that out of the joint family funds available from the joint family property, the present suit property is purchased by his father Doddamuniyappa. If that is so then brothers of Doddamuniyappa will also have share in the property. However, the plaintiff is claiming that the suit property is purchased by Doddamuniyappa out of his retirement benefit, salary income for the benefit of his family i.e., Doddamuniyappa, his wife, 1 st defendant Narayanamma, his two sons i.e., plaintiff and defendant 40 O.S.No.6922 of 2000 No.2. The plaintiff claims that the property is a Benami property of Doddamuniyappa, which is purchased in the name of his wife 1 st defendant. While ordering rejection of plaint as per order passed on I.A.No.12 this court has held that suit is hit by Benami Transaction (Prohibition) Act, however the Hon'ble High Court of Karnataka in RFA No.766 of 2015 has observed that Benami Transaction (Prohibition) Act is not barred and following observation was made by the Hon'ble High Court of Karnataka.
"6. Sub-section (1) of Section 3, as seen, prohibits a person from entering into any Benami transaction. Sub-section (3) of Section 3, as seen, makes a person who enters into a Benami transaction liable for punishment. Section 5 makes properties held Benami liable for acquisition without payment of any amount. But, when sub-section (2) of Section 3 permits a person to enter into a Benami transaction of purchase of property in the name of his wife or 41 O.S.No.6922 of 2000 unmarried daughter by declaring that the prohibition contained against a person in entering into a Benami transaction in sub- section (1) of Section 3, does not apply to him, question of punishing the person concerned in the transaction under sub-section (3) thereof or the question of acquiring the property concerned in the transaction under Section 5, can never arise, as otherwise the exemption granted under Section 3(2) would become redundant. What we have said of the person and the property concerned in sub-section (2) of Section 3 in relation to non-applicability of Section 3(3) and Section 5 shall equally hold good for non-applicability of the provisions of sub-sections (1) and (2) of Section 4 in the matter of filing of the suit or taking up the defence for the selfsame reason. Further, we find it diffi cult to hold that a person permitted to purchase a property in the name of his wife or unmarried daughter under sub-section (2) of Section 3 notwithstanding the prohibition to enter into a Benami transaction contained in sub-section (1) of Section 3 cannot enforce his 42 O.S.No.6922 of 2000 rights arising therefrom, for to hold so would amount to holding that the statute which allows creation of rights by a Benami transaction also prohibits the enforcement of such rights, a contradiction which can never be attributed to a statute. If that be so, there can be no valid reason to deny to a person, enforcement of his rights validly acquired even in the past by purchase of property in the name of his wife or unmarried daughter, by making applicable the prohibition contained in respect of filing of suits or taking up of defences imposed in respect of Benami transactions in general by sub- sections (1) and (2) of Section 4 of the Act. But, it has to be made clear that when a suit is filed or defence is taken in respect of such Benami transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit or defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either 43 O.S.No.6922 of 2000 the wife or the unmarried daughter, as the case may be, because of the statutory presumption contained in sub-section (2) of Section 3 that unless a contrary is proved that the purchase of property by the person in the name of his wife or his unmarried daughter, as the case may be, was for her benefit.
22. In the Judgment, the Hon'ble High Court has held that as per the judgment of Apex Court in case of Nanda kishore V/s. Sushila Mehra & held that the bar under Section 4(1) and 4(2) of Benami Transaction (prohibition) Act is not applicable to the property purchased in the name of person's wife or his unmarried daughter, subject to the presumption that property was purchased for the benefit of wife and unmarried daughter. It is clear from provisions of Section 3, 4(1) and 4(2) that if any property is purchased in the name of person's wife or his 44 O.S.No.6922 of 2000 unmarried daughter, the prohibition contained in the Act is not applicable but, it is to be presumed that it is for the benefit of wife and unmarried daughter unless he proves that property though purchased in the name of his wife or unmarried daughter, same had not been purchased for the benefit of wife or unmarried daughter. So law presumes that the property is even if purchased by Doddamuniyappa in the name of 1 st defendant, it is for her benefit and not for the benefit of entire family. No evidence is adduced by plaintiff to show that intention behind the purchase is for the benefit of entire family. Except interested say of plaintiff and pleading made by other defendants no oral or documentary evidence is forthcoming in this regard.
23. Apart from this, as per Section 14 of Hindu Succession Act, any property purchased by or in the name of female member of the family is considered as 45 O.S.No.6922 of 2000 her self-acquired property. The Hon'ble High Court of Karnataka in Vijayakumar Vs. Vanajakshi reported in Laws (KAR) 2021-12-34 has held that property purchased in the name of wife is a self-acquired property under provisions of Section 14 of Hindu Succession Act. So, in the absence of any material to show that property was purchased for the benefit of entire family, this court cannot hold that the property is the joint family property of micro family of plaintiff and defendant No.1 to 6 only. The presumption available under Section 14 of Hindu Succession Act and under Section 3 & 4 of Benami Transaction (Prohibition) Act also makes it clear that when property is purchased in the name of wife then it is for the benefit of wife and as such, it is treated as her separate property. If the age of plaintiff and defendant No.2 to 6 are considered as mentioned in the plaint, then in year 1977 they are 09- 17 years old and it cannot be held that they have also 46 O.S.No.6922 of 2000 contributed money for purchase of suit property or property is purchased by the family from joint efforts. Therefore, in my considered opinion the plaintiff has failed to establish that suit property is the joint family property of plaintiff and defendant No.1 to 6. Per contra, with presumptions available in favour of 1 st defendant, the property is required to be treated as separate property of defendant. Accordingly, Issue No.1 is answered in the Negative and Issue No.2 is answered in the Affi rmative.
24. Additional Issue No.1 and 2 framed on 07.07.2010:- That, these two issues are framed with respect to validity of Sale Deed dated 29.09.2000- Ex.P.7/ Ex.D.4 and whether it is binding upon the plaintiff or not. The plaintiff has challenged Sale Deed dated 29.09.2000-Ex.P.7/ Ex.D.4 stating that same is outcome of fraud, and misrepresentation. The plaintiff 47 O.S.No.6922 of 2000 has claimed that the Sale Deed dated 29.09.2000- Ex.P.7/ Ex.D.4 is void as it was obtained by playing fraud and misrepresentation on 1 st defendant, no consideration amount is paid to the 1 st defendant, defendant No.1 has executed the Sale Deed without knowing the contents of the document and sale is void as defendant No.1 had no independent right over the suit schedule property.
25. Contention regarding right of defendant No.1 to execute the Sale Deed. While answering issue No.1 and 2 I have concluded that , suit property was purchased in the name of 1 st defendant and it is the self-acquired property of 1 st defendant as per Section 14 of Hindu Succession Act and as per proviso of Section 4 to Benami Transaction (Prohibition) Act it is to be considered as purchased for the benefit of defendant No.1 Narayanamma. Since, the property is a 48 O.S.No.6922 of 2000 self-acquired property and separate property of defendant No.1 Narayanamma, she had every right to alienate the property and plaintiff, defendant No. 2 to 6 are not having any right to question the same. Therefore, the contention of the plaintiff that since 1 st defendant had no authority to sell the property, sale is void does not arise for consideration.
26. The contention regarding capacity of defendant No.1 to execute the Sale Deed dated 29.09.2000-Ex.P.7/ Ex.D.4. The plaintiff as well as 6 th defendant have contended that the 1 st defendant was not mentally fit to execute the document as she was admitted to NIMHANS Bangalore and has been advised to take medicines. It is important to note that the plaintiff has produced some document which shows that the defendant No.1 has taken treatment in NIMHANS. The Ex.P.32 the case dairy and prescription, 49 O.S.No.6922 of 2000 it can be seen that Narayanamma was admitted to the NIMHANS and she has been discharged in the year 1992 only. It is seen from the discharge summary that she was depressed and a medication was prescribed. But it does not show that Def.No1-Narayanamma was not in fit state of mind in the year 2000. It is important to note that Narayanamma filed RFA No.137 of 2000 and the Hon'ble High Court has allowed that RFA, thereafter she appeared before this court filed written statement and also filed application for change of advocate and as such, one cannot say that Def.No1- Narayanamma was mentally unfit when she executed Sale Deed dated 29.09.2000-Ex.P.7/ Ex.D.4. It cannot be said that Def.No.1 Narayanamma was not in fit state of mental condition and she was incapable of knowing the consequences or understanding the document which she executed. Apart from this, the plaintiff has produced Ex.P.11 and P.12 registered Partition deed 50 O.S.No.6922 of 2000 dated 03.12.2002. In Ex.P.11 Def.No.1 Narayanamma represented entire branch of her husband Doddamuniyappa-plaintiff and defendant No.2 to 6. As per Ex-P11 there was partition in respect of family property of the joint family of Doddamuniyappa & his brothers. Thereafter, on the same day plaintiff defendant No.2 and Narayanamma-1st defendant got divided the properties allotted to the branch of Doddamuniyappa as per Ex.P.11 and the properties have been partitioned as per Ex.P.12. The Partition deeds executed on 03.12.2002 and same is binding upon the parties to the suit. When Narayanamma was sound state of mind in the year 2002 to represent branch of plaintiff & def.No.2 to 6, one cannot say that she was not mentally fit as on the date of execution of Sale Deed. Therefore, in my considered opinion the contentions raised on behalf of plaintiff and defendant No.6 that Def.No.1 Narayanamma was not in state 51 O.S.No.6922 of 2000 condition of mind to execute the Sale Deed and hence, same is void cannot be accepted. In my considered opinion Def.No.1 -Narayanamma was mentally fit since she has participated in the proceedings of this suit, she has filed RFA before Hon'ble High Court of Karnataka and she has also executed registered document after execution of the disputed Sale Deed dated 29.09.2000-Ex.P.7/ Ex.D.4. Therefore, in my considered opinion the contention that due to unstable mental status of defendant No.1 Sale Deed is void cannot be accepted and liable to be rejected.
27. Contention regarding Fraud & misrepresentation. The plaintiff has alleged that fraud has been committed on Def.No.1 Narayanamma and as such, the Sale Deed is void. To appreciate this contention the pleadings is not an accordance with 52 O.S.No.6922 of 2000 Order VI. As per Order VI Rule 4 CPC the party has to plead that when fraud is committed, who has committed a fraud and the other details of fraud is required to be pleaded. The ingredients necessary is not pleaded. So, pleading is not in accordance with Order VI Rule 4 of CPC. The plaintiff claimed that Def.No.1 Narayanamma was not present when Sale Deed is presented for registration and as such, it was kept pending and Narayanamma was present on 17.10.2000 then only the Sale Deed has been registered which shows that Def.No.1 Narayanamma was not at all present when Ex.D.4 original Sale Deed was produced for registration. I have perused Ex.D.4 original Sale Deed in detail. The Sale Deed has been presented on 29.09.2000 by defendant No.7. As per Section 32 of Registration Act every document to be registered under the provision of Registration Act except cases mentioned in Section 31, 88 and 89 53 O.S.No.6922 of 2000 whether such registration be compulsory or optional, shall be presented at the proper registration offi ce by person executing or claiming under the same. The defendant No.7 and 8 are claiming under the document i.e., Sale Deed dated 29.09.2000-Ex.P.7/ Ex.D.4 and as such, as per Section 32 they can present the same for registration. So, presentation of sale deed by defendant No.7 for registration cannot be considered as one of the circumstances which will lead to the inference that fraud has been played of def.No.1.
28. As per Section 34 of Registration Act when a document is presented for registration, the registering authority shall (a) enquire whether or not such document was executed by the persons by whom it purports to have been executed; (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; 54 O.S.No.6922 of 2000 and (c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear. Thereafter, only he has to register the document by holding in inquiry. In this case, the endorsement made on the Ex.D.4 does not show that executant was not present when document was presented for registration nor it is stated that executant has not admitted the execution of document. In Ex.D.4 Sale Deed it is mentioned that the registration is kept pending on 29.09.2000. On 17.10.2000 it is stated that admission for registration and on 17.10.2000 the document has been registered. It is not mentioned in Ex.D.4 that on 17.10.2000 executant was present. It is to be noted that the Sale Deed was executed on stamp paper of Rs.70,850/-. As per the assessment of Sub-registrar the proper stamp duty is Rs.72,969/-. There was a deficit stamp of ₹.1,950/- and same was paid in State Bank of Patiala on 55 O.S.No.6922 of 2000 29.09.2000, the Sub-registrar has endorsed the same stating that ₹.1,950/- being deficit/ proper stamp duty has been recovered/ credited to Bank/ treasury vide Challan No.453417 dated 29.09.2000 by Sri. R. Umaprasad and Shashikala. This endorsement on the last page of Ex.D.4 shows that the reason for not registering the document on 29.09.2000 was a deficit/ proper stamp duty of Rs.1,950/- and not executant being absent. Therefore, it cannot be said that as on the date of execution of document and presentation of documents for registration Def.No.1-Narayanamma was not present. In fact, as per the endorsement appearing on the 2 nd page of the Sale Deed Def.No.1- Narayanamma was present on 29.09.2000 and she has admitted that she has executed the Sale Deed. Therefore, in my considered view the contention of the plaintiff that Def.No.1-Narayanamma was not at all 56 O.S.No.6922 of 2000 present when Sale Deed was presented for registration does not have any force.
29. It is contended by plaintiff that Revanna who is signatory to Ex.D.4 has taken Def.No.1- Narayanamma for transferring the 00-06-00 of land in favour of defendant No.6 and by misleading her that she is executing the Sale Deed in favour of her daughter defendant No.6, Ex.D.4 has been executed. The plaintiff has not pleaded this aspect in the plaint. Only theory is built in cross examination & during the arguments. It is important to note that the Sale Deed has been executed in favour of defendant No.6 with respect to 10 guntas of land in the suit survey number on 25.10.2000. Ex.D.28 is certified copy of Sale Deed dated 25.10.2000 executed in favour of defendant No.6 by defendant No.1-Narayanamma. The plaintiff has not challenged the Sale Deed dated 25.10.2000 nor 57 O.S.No.6922 of 2000 Narayanamma during her lifetime has challenged Sale Deed dated 25.10.2000. The Sale Deed was presented on 25.10.2000 only and same is registered on 25.10.2000. So, one cannot come to the conclusion that the Def.No.1-Narayanamma was present on 29.09.2000 or 17.10.2000 for execution of Sale Deed in favour of her daughter and by misrepresenting that she is executing the document in favour of her daughter, Ex.D.4 is executed by Narayanamma in favour of defendant No.7 and 8. Therefore, in my considered opinion, when the date of document executed in favour of defendant No.6 is different than that of one mentioned in Ex.D.4, this court cannot hold that by playing fraud and misrepresentation on defendant No.1. The defendant No.7 and 8 and Revanna got executed the Sale Deed.
58 O.S.No.6922 of 2000
30. The defendant No.7 and 8 are not related to Narayanamma-defendant No.1, so one cannot say that she had trust over the defendant No.7 and 8 and she has executed the document Ex.D.4 Sale Deed dated 29.09.2000 without verifying the contents of the same. It is true that in Ex.D.4 Sale Deed is in English language not known to Def.No.1-Narayanamma, and there is no recital that the Sale Deed that document has been read over and explained to Def.No.1-Narayanamma. However, in the Ex.D.4 Sub-Registrar has made an endorsement that he has explained the document to executant Def.No.1-Narayanamma and she has admitted the same. The endorsement is made while discharging offi cial duty and court shall presumed that Sub-registrar being Government servant has carried out his duties in accordance with law. So, Sub- Registrar has explained the contents of the document which is presented for registration and Narayanamma- 59 O.S.No.6922 of 2000 1st defendant has admitted that she has executed the Sale Deed. Therefore, it cannot be held that the Sale Deed is outcome of fraud and undue influence. There is an allegation against one of the witness M. Revanna stating that he was the agreement holder of the schedule property and has played fraud and taken a signature of defendant No.1 on the Sale Deed without there being the intention to sell the property. The said contention is not proved. Though xerox copy of the Agreement of sale dated 04.06.2000 was produced, same is not marked. This court cannot consider the Agreement of sale dated 04.06.2000 since the same is not proved by plaintiff. Even marking of xerox copy was rejected by this court as it is a xerox copy which has been upheld by Hon'ble High Court of Karnataka in Writ Petition No.23661 of 2023. The Hon'ble High court has clearly held that Agreement of sale dated 04.06.2000 is not mentioned in the plaint nor a 60 O.S.No.6922 of 2000 foundation is laid to lead secondary evidence. Plaintiff being not party to Sale agreement dated 04.06.2000, which is being in between Defendant No.7 & M. Revanna, the agreement is irrelevant and as such, rejection was proper. So, the Agreement of sale dated 04.06.2000 which is not proved in accordance with law cannot be considered to say that M.Revanna was the Agreement holder and at his instigation defendant No.1 has signed the Sale Deed. Apart from this original title deed i.e., 19.05.1977 is handed over to the defendant No.7 & 8 which also shows that Def.No.1 by understanding the effect of document which is executing has executed the sale deed. No explanation is given by plaintiff how defendant No.7 & 8 are able to secure original title deeds. That apart the defendant No.1 in the written statement has mentioned that she has sold the property to defendant No.3 & 4 of OS No.7393 of 2003 and during her life time she has not 61 O.S.No.6922 of 2000 challenged the sale deed stating that document has been got executed by playing fraud, misrepresentation and undue influence. From the available evidence, the plaintiff has not proved that sale deed has been got executed by playing fraud upon the defendant No.1.
31. Contention Sale Deed is void for want of consideration. The learned counsel for plaintiff has argued that in the cross examination defendant No.9 and DW.1 have clearly stated that sale consideration is paid through cheque but, no account extract is produced and in the Sale Deed it is mentioned that sale consideration is paid by cash. So, it is contended that in the absence of proof of passing of sale consideration amount, the Sale Deed dated 29.09.2000 is void. It is true that the Sale Deed without consideration is void. In the Ex.D.2 it is mentioned that the Sale Deed is executed for consideration amount of ₹.4,80,000/-. It is 62 O.S.No.6922 of 2000 also mentioned that ₹.4,80,000/- was paid to def.No.1- Narayanamma before the witnesses at the time of registration. It is not mentioned that whether it is paid in cash or paid through bank account. But, in the Sale Deed it is mentioned that the sale consideration amount is paid to Narayanamma. 1 st defendant had never denied that she has not received consideration amount under Ex.D.4 Sale Deed. Def.No.1- Narayanamma even after sale of property filed RFA, filed written statement and also participated in the proceedings of this suit. She never stated that sale consideration amount is not paid to her. Even if sale consideration amount is not paid, the remedy is to file a suit for recovery of sale consideration. So, when the executant of document has not denied the execution, executant of document has not denied receipt of consideration amount, it cannot be said that the consideration amount is not paid under the Sale Deed 63 O.S.No.6922 of 2000 and as such, Sale Deed is void. So, it cannot be said that the sale is void because same is not supported by consideration. Name of purchasers has been entered in the RTC pertaining to suit schedule property in the year 2001 only as per MR.No.7/2001 as could be seen from the RTC pertaining to the suit schedule property. The plaintiff or Def.No.1 Narayanamma have not objected for change of katha stating that the property was not sold to defendant No.7 and 8. Katha has been changed in the year 2002 only and in the year 2003 when suit was remanded defendant No.1 has filed written statement stating that she sold the some of the properties. In written statement filed the defendant No.1 has clearly stated that the 2 nd defendant by filing suit at O.S.No.7393 of 2003 is interfering with possession of defendant No.3 and 4 of that suit. Ex.D.1 the plaint copy of O.S.No.7393 of 2003 shows that defendant No.3 and 4 of O.S.No.7393 64 O.S.No.6922 of 2000 of 2003 are Umaprasad and Shashikala who are defendant No.7 and 8 in the suit. So, Def.No.1- Narayanamma has clearly stated that defendant No.7 and 8 are the purchasers of the property and she has sold the property to them. When executant of document herself has admitted in the judicial proceedings, this court cannot hold that Sale Deed is outcome of fraud, undue influence and misrepresentation. The learned counsel for plaintiff has argued that the counsel appearing for the defendant No.1 Narayanamma was brother of defendant No.7 and as such, as per the instructions of his brothers written statement is drafted. It is important to note here that the advocate appearing for the defendant No.1 who is the brother of defendant No.7 and later on he was examined as DW.1 as GPA holder. DW.1 has clearly deposed that as per the instructions given by Narayanamma only he has 65 O.S.No.6922 of 2000 drafted written statement. There is no allegations that DW.1 was present when Sale Deed was executed by Def.No.1-Narayanamma and he is part of conspiracy of execution of Sale Deed. In the pleadings there is no allegation against DW.1. That apart, DW.1 retired from the suit and Def.No.1-Narayanamma had filed applications for appointment of a lawyer as DW.1 is not protecting her interest. Thereafter, one Jayaprakash advocate appeared for defendant No.1 and he has not filed any application for striking of pleadings filed by defendant No.1 through her previous advocate who was brother of defendant No.7, nor defendant No.1 has filed additional written statement stating that the earlier admissions made in the written statement is not correct. So, this court cannot hold that the admissions made in the pleadings is not correct, though verifying affi davit is not available in the file, at the time of filing of application for change of advocate, Def.No.1- 66 O.S.No.6922 of 2000 Narayanamma had filed affi davit stating that she has already filed written statement in this suit, which shows that written statement was filed by her in this suit. Therefore, in my considered opinion executant of the document has admitted the execution of the document and has not pleaded fraud, undue influence coercion and non-payment of consideration amount. Therefore, this court cannot hold that the defendant No.7 and 8 playing fraud upon Def.No.1-Narayanamma, have got executed the Sale Deed. Therefore, in my considered view the Sale Deed dated 29.09.2000 is legal and valid in all respect. Apart from this, registered document are having presumptive value in respect of due execution and validity of the document. The evidence adduced by the plaintiff is not suffi cient to say that the Sale Deed is null and void document as same is executed by playing fraud upon the executant Narayanamma. Hence, in my considered view the Sale Deed dated 67 O.S.No.6922 of 2000 29.09.2000 is legal and valid in all respect. Since, defendant No.1 had absolute right over the property and she has executed Sale Deed in favour of defendant No.7 and 8, the Sale Deed is binding upon the plaintiff as 1 st defendant had authority to execute the Sale Deed. Accordingly, additional Issue No.1 and 2 are answered in the Negative.
32. Additional issue No.3 framed on 15.07.2011:- defendant No.7 and 8 have claimed that suit is barred by limitation. The defendant No.7 and 8 claimed that since the relief of declaration is not sought within 3 years from the date of execution of Sale Deed, the suit is barred by limitation. It is important to note that at the first instance the purchasers were not parties to the suit and same has been decreed. Thereafter, the executant of document has challenged the judgment & decree and after 68 O.S.No.6922 of 2000 remand the defendants were impleaded. The amendment goes back to date of presentation of the suit. So, when amendment is made challenging the execution of document it relate back to the date of the filing of the suit and as such, it cannot be said that the suit is barred by limitation. Therefore, there is no force in the contention of the defendant No.7 & 8 that suit is barred by limitation. Accordingly, this issue answered in the Negative.
33. Issue No.4:- The issue is with respect of suit being bad for non-joinder of necessary parties. This issue is framed regarding contention raised by 1 st defendant that suit is bad for non-joinder of necessary parties as daughters of Narayanamma were not impleaded. However, after filing of written statement and after remand of suit the daughters of Def.No.1 Narayanamma were impleaded as defendant 69 O.S.No.6922 of 2000 No.3 to 6 and as such, this issue does not survive for consideration. Accordingly, I answer this issue holding that all the necessary parties who are required to be impleaded are party to this suit and suit is not bad for non-joinder of necessary parties.
34. Issue No.3:- This issue is framed regarding entitlement of relief of partition and share of plaintiff herein. While answering issue No.1 and 2, I have concluded that the suit property is the separate property of defendant No.1. Sy.No.358 of Kalkere Village is totally measuring 01-19-00, Kharab 00-02-00. As per Ex.D.4 Sale Deed an area of 01-03-00 is sold in favour of defendant No.7 and 8. As per Ex.D.28 an area of 00-10-00 was sold in favour of defendant No.6 herein. So, totally 01-013-00 was sold by defendant No.1 and what was remaining was 00-04-00 of land and 00-02-00 Kh i.e., totally 00-06-00. In the Sale Deed 70 O.S.No.6922 of 2000 Ex.D.28 it is mentioned that towards north of the property sold to defendant No.6 that 00-06-00 was remaining. It is important to note that on 15.12.2001 the property bearing No.358 katha No.358 of Kalkere measuring 44 X 55 feet was gifted to the plaintiff D.Munibeerappa. The document is denied but it is a registered document executed by Def.No.1- Narayanamma. In the said deed it is clearly mentioned that towards south of the property gifted property of Kanthamma who is defendant No.6, is situated. The Gift deed has been attested by defendant No.2 Munipoojappa. So, one cannot say that this document which is in favour of plaintiff and attested by defendant No.2, executed by Def.No.1-Narayanamma is a fraudulent document. No action is taken by plaintiff till today challenging this Gift deed. So, remaining property which was in Sy.No.358 is also transferred to plaintiff herein. Hence, in my considered opinion in 71 O.S.No.6922 of 2000 Sy.No.358 nothing is left as defendant No.1 has transferred/ alienated the same during her lifetime only. Therefore, in my considered view the plaintiff is not entitle for relief of partition & separate possession of the suit schedule property. Since, plaintiff is not entitle for relief of partition and separate possession and in my considered opinion this issue is required to be answered in the Negative.
35. Additional Issue No.3 dated 07.07.2010 and issue No.5:- While answering issue No.1 to 4 and additional issue No.1 and 2 and additional issue No.3 framed on 15.07.2011, I have concluded that suit schedule property is the self-acquired property of 1 st defendant and she has sold the same in favour of defendant No.7 and 8 as per Sale Deed dated 22.09.2000, in favour of defendant No.6 as per Sale Deed dated 25.10.2000 and 4 gunta in favour of 72 O.S.No.6922 of 2000 plaintiff by gifting the same as per Ex.P.27. Therefore, there is a nothing available to be partitioned. Hence, relief of partition claimed by plaintiff is not at all permissible. The plaintiff has sought for relief of declaration that Sale Deed dated 29.09.2000-Ex.P.7/ Ex.D.4 is null and void and not binding upon the plaintiff. While answering additional issue No.1 and 2, I have concluded that Sale Deed is legal and valid and plaintiff has failed to show that same is obtained by playing fraud. Therefore, in my considered view the plaintiff is not entitled for the relief claimed. The decisions cited is not at all applicable to the case on hand as executant of the document has not denied the execution during the pendency of the suit or earlier. Therefore, in my considered view, plaintiff is not entitle for relief claimed, accordingly, I answered additional issue No.3 and issue No.5 in the Negative holding that plaintiff is not entitle for relief claimed. 73 O.S.No.6922 of 2000
36. Issue No.6 : In view of the discussions and conclusion arrived at above issues, the suit is liable to be dismissed. Considering the relationship of the parties, remand of case awarding of cost is not necessary. Accordingly, I proceed to pass the following:-
ORDER The suit of the plaintiff is dismissed.
Parties to bear their own cost.
(Dictated to the Stenographer Grade-III, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 15th day of January, 2025.) (BHAT MANJUNATH NARAYAN) XLIII Addl. City Civil & Sessions Judge, Bengaluru ANNEXURE I. List of witnesses examined on behalf of plaintiff:-
P.W.1 D. Munibeerappa 74 O.S.No.6922 of 2000 II. List of witnesses examined on behalf of defendants:-
D.W.1 R. Virupaksha
D.W.2 B.S. Nanda
III. List of documents exhibited on behalf of plaintiff:-
Ex.P.1 Geneology tree
Ex.P.2 RTC
Ex.P.3 Mutation extract
Ex.P.4 to 6 Tax paid receipts
Ex.P.7 C/c of Sale deed dated 29.09.2000
Ex.P.8 The death certificate of Plaintiff's
father by name B.Muniyappa.
Ex.P.9 The death certificate of defendant No.1
Narayanamma.
Ex.P.10 Certified copy the judgment and
decree dated 01.09.2003.
Ex.P.11 Registered partition deed dated
03.12.2002.
Ex.P.12 Another registered partition deed
dated 03.12.2002.
Ex.P.13 Legal notice dated 29.08.2022/2023.
Ex.P.14 and Two postal receipts.
Ex.P.14(a)
Ex.P.15 Postal track consignment.
Ex.P.16 Unserved postal cover.
Ex.P.16(a) The legal notice found in Ex.P.16 postal
cover.
75 O.S.No.6922 of 2000
Ex.P.17 Digitally signed registered sale
agreement dated 27.02.2023.
Ex.P.18 The genealogical tree issued by the
village accountant.
Ex.P.19 Certified copy of the registered sale
deed dated 19.05.1977.
Ex.P.19(a) Typed copy of the sale deed dated
19.05.1977.
Ex.P.20 Identity card of the father of the
Plaintiff.
Ex.P.21 Certified copy of the order dated
13.12.2005 passed in RFA
No.137/2004.
Ex.P.22 Certified copy of the representation
submitted by the Plaintiff to the Joint Director of Urban Planning Authority. Ex.P.23 The reminder dated 06.04.2023 issued by District Registrar.
Ex.P.24 to 7 photographs.
Ex.P.30
Ex.P.31 C.D pertaining to the 7 photographs.
Ex.P.32 Original discharge summary.
Ex.P.33 One RTC extract pertaining to Survey
No.358/1.
Ex.P.34 The digitally certified copy of gift deed
dated:12.04.2023.
Ex.P.35 The RPAD cover addressed to
Smt.Renukha Devi A.S.
Ex.P.36 Reply notice dtd:01.10.2023
03
76 O.S.No.6922 of 2000
Ex.P.37 The I.A.No.6 dated 30.10.2023
IV List of documents exhibited on behalf of defendants:
Ex.D.1 Copy of plaint in O.S.No.7393 of 2003 Ex.D.2 The notarized SPA dated:27/28.11.2023 executed by defendant No.7 in my favour.
Ex.D.3 Original registered sale deed
dated:19.05.1977 executed by
Chinnakka in favour of defendant
No.1 Narayanamma.
Ex.D.4 Original sale deed dated:29.09.2000
executed by defendant No.1
Narayanamma in favour of defendant
No.7 and 8.
Ex.D.5 The declaration affidavit
dated:29.09.2000.
Ex.D.6 Certified copy of the conversion order
dated:18.03.2023.
Ex.D.7 Certified copy of the survey sketch.
Ex.D.8 Certified copy of the Hissa Tippani.
Ex.D.9 Certified copy of the Pakka Book.
Ex.D.10 Certified copy of the Aakaar Band
register.
Ex.D.11 The register extract.
Ex.D.12 Certified copy of the order passed by
Deputy commissioner for Inams in
case No.163.
77 O.S.No.6922 of 2000
Ex.D.13 The endorsement dated:04.03.2023 and and 80.03.2023 issued by Tahasildar Ex.D.14 and Assistant commissioner respectively.
Ex.D.15 to 4 Certified copies of Manual RTC Ex.D.18 extracts.
Ex.D.19 22 RTC extracts pertaining to Sy.No.358/2 collectively marked. Ex.D.20 Certified copies of 4 RTC extracts collectively marked.
Ex.D.21 2 Certified copies of the mutation and register extract.
Ex.D.22 Ex.D.23 2 E.C and Ex.D.24 Ex.D.25 Certified copy of the judgment and decree dated:30.01.2019 passed in O.S.7393/2003.
Ex.D.26 Certified copy of the written statement filed in O.S. 7393/2003. Ex.D.27 C/c of Gift deed dated 15.12.2001 Ex.D.28 Sale deed dated 25.10.2000 Ex.D.29 The original Special Power of Attorney dated 01.04.2024 (BHAT MANJUNATH NARAYAN) XLIII Addl. City Civil & Sessions Judge, Bengaluru 78 O.S.No.6922 of 2000 79 O.S.No.6922 of 2000