Bangalore District Court
Guramma vs Venkatesh on 17 April, 2025
KABC010163622003
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 17 th DAY OF APRIL, 2025
O.S.No.8334 of 2003
Plaintiff: 1. Smt. Gowramma
W/o Late Krishnappa
Since died Rep by her LRs
plaintiff No.2, i.e.,
Plaintiff No.2(a) to 2(c), 3 & 4.
2. Sri. Ramesh
S/o Late Krishnappa,
Since dead by his LRs
2(a) Manjula
W/o Late Ramesh
Minor,
2(b) Pawana
S/o Late Ramesh,
Minor,
2 O.S.No.8334 of 2003
2(c) Yeshwanth,
S/o Late Ramesh,
Minor,
Plaintiffs 2(b) & (c) are
minors,
Rep. By natural guardian -
mother - P2(a).
3. Sri. Srinivasa
S/o Late krishnappa,
Aged about 20 years
4. Smt. Chandramma,
D/o Late Krishnappa,
Aged about 46 years,
5. Smt. Pappamma
Dead by LRs
5(a) Smt. Muniyamma,
W/o Late Venkataswamy
D/o Late Munivenkatappa,
Aged about 58 years
5(b) M. Chinnaswamy,
S/o Late Munivenkatappa,
Aged about 54 years,
5(c) M. Muniraja,
S/o Late Munivenkatappa,
Aged about 47 years,
5(a) to (c) are residing at
No.771, 3 rd Cross, Ramabhovi
3 O.S.No.8334 of 2003
Colony, Jalahalli Post,
Bengaluru-560 013.
(Vide Oder dated 27.03.2024)
(P1 to 4-.P.R.H., P5-VJJ.,
Advocate)
-VS-
Defendants: 1. Sri. Venkatesh,
S/o Late Ramaiah,
Dead by LRs-
1(a) Smt. Jayamma,
D/o Late Venkatesh,
Aged about 52 years
1(b) Venkatesh,
S/o Late Venkatesh,m
Aged about 50 years
Both are residing at
No.25/64, Singapura Layout,
Vidyaranyapura post,
Bengaluru-97.
(Impleaded vide order
dt.14.03.2020)
2. Smt. Kenchamma,
S/o of Late Peddanna @
Doddanna
Aged about 52 years
3. Sri. Narayana
4 O.S.No.8334 of 2003
S/o Late Peddanna @
Doddanna
Aged about 37 years
4. Sri. Shama @ Doddanna
S/o Late Peddanna @
Doddanna
Aged about 30 years
5. Sri. Venkatappa,
S/o Peddanna @ Doddanna
Aged about 30 years
6. Sri. Peddanna
S/o Late Peddanna @
Doddanna
Aged about 10 years
Defendant No.1 to 6 are all
R/at Kadabisanahalli Village,
Varthur Hobli, Bengaluru East
Taluk, Bengaluru-87.
7. Sri. Venkataswamy
S/o Late Ramaiah @ Ramabovi
Aged about 50 years
8. Sri. Nagaraju
S/o Late Venkataswamy
Aged about 22 years
Defendant No.7 & 8 are
R/at Bhovi Palya, Navarthan
Agrahara Dhakle, Jala Hobli,
Bengaluru North (Addl) Taluk,
5 O.S.No.8334 of 2003
Bengaluru District.
9. Sri. N. M. Raju
S/o Late Nanjundappa,
Since dead by LRs-
9(a) Rajesh,
S/o Late N.M. Raju
Age-minor
R/at Yemlur Village, Varthur
Hobli, Bengaluru East Taluk,
Bengaluru-37.
(Amended as per order dated
21.12.2020)
10. Smt. Bharati S. Alva
W/o Sri. Satish Allva
Aged about 47 years,
R/at No.155, 2 nd Stage, 2 nd
Phase, West of Chord Road,
Bengaluru-560 010.
11. Mr. Renwick Angelo
Masorenhas,
S/o Mr. Rudolph Masorenhas
Aged about 28 years
R/at No.D1-D2 Arphi
Apartment No.2, Leonard Lane
Richmond town, Bengaluru-
25.
12. Sri. Satishkumar Garg,
S/o Mr. Devasad Gard,
Major R/at No.G-3/4, Model
6 O.S.No.8334 of 2003
Town-III, Delhi-110 009.
13. Sri. T. Narayana,
S/o Thimmaiah,
Aged about 41 years
Resident of Kariyammanna
Agrahara Village,
Varthur Hobli, Bengaluru East
Taluk.
14. Sri. Domegunta
Venkatasesha Reddy
S/o Sankara Reddy,
Aged about 52 years
R/at Mudivarthi Village
Nellore District,
Andhra Pradesh.
15. Smt. Gangamma,
W/o Late Muniswamy
Dead by LRs-
15(a) Venkataswamy
S/o Late Gangamma
Muniswamy,
Aged about 58 years,
15(b) Ramu
S/o Late Gangamma
Muniswamy
Aged about 56 years
15(c) Raju
S/o Late Gangamma
7 O.S.No.8334 of 2003
Muniswamy
Aged about 54 years
15(d) Smt. Yallamma
D/o Late Gangamma
Muniswamy
Aged about 52 years
15(e) Smt. Muniyamma,
D/o late Gangamma
Muniswamy
Aged about 50 years
15(f) Smt. Puttamma
D/o Late Gangamma
Muniswamy
Aged about 48 years
15(g) Smt. Jaya
D/o Late Gangamma
Muniswamy
Aged about 40 years
All are R/at Rajiv Nagar,
Near new Horizon College,
Kadubeesanahalli Village,
Varthur Hobli, Bengaluru
South tq., Bengaluru-03.
(impleaded vide order dated
14.03.2020)
16. Smt. Chinnakka,
S/o Late Peddanna
Aged about 64 years
No.42, Suddugunte Palya,
8 O.S.No.8334 of 2003
2 nd Cross, Tavaekre Main
Road, Madivala, Bengaluru.
17. Smt. Muniama,
W/o Late Ramaiah,
Since dead by LRs
17(a) Sri. Narayana,
S/o Late Ramaiah
Aged about 45 years
17(b) Sri. Venkataswamy
S/o Late Ramaiaha,
Aged about 38 years
17(c) Sri. Nagaraju
S/o Late Ramaiah
Aged about 25 years
17(d) Smt. Muniamma
D/o Chandrappa,
Aged about 32 years
All are residing at
No.776, Jalahalli Village,
Rama Bhovi Colony,
Bengaluru.
18. Smt. Ramakka
W/o Late Abbaiah,
Aged about 42 years
R/at Kutkanahalli,
Near Bhovi Palya
Anekal Taluk, Sarjapura Hobli
Bengaluru.
9 O.S.No.8334 of 2003
19. Smt. Venkatamma,
D/o Late Peddanna,
Aged about 49 years
20. Smt. Lakshmi,
D/o Late Peddanna
Aged about 40 years
21. Venkatesh
S/o Late Peddanna
Aged about 38 years
22. Krishna,
S/o Late Peddanna,
Aged about 35 years,
All are residing at No.42,
2 nd Cross, Bhovi Colony,
S.G. Palya, Darmaram Post,
Bengaluru-29.
23. Rezwan Razack,
M/s. Cessana Garden
Developers
Pvt. Ltd., Registered offi ce at
No.1, Falcon House, Main
Road Guard Cross road,
Bengaluru-560 001.
(impleaded as per High Court
order dated 25.07.2015 in
RFA No.765/2014)
24. Sri. Veeragandam
Brahmaiah,
S/o Late Venkataswamy
10 O.S.No.8334 of 2003
Aged about 75 years
R/at Bhagya Nagara,
Aralagadda, Kurnool District,
A.P. State.(impleaded v/O
dt.31.08.2019)
Smt. Narayanamma
25. D/o Kenchamma Peddanna,
Aged about 65 years
Smt. Peddamma,
26. D/o Kenchamma Peddanna,
Aged about 45 years
Smt. Jayalakshmi,
27. D/o Kenchamma Peddanna,
Aged about 35 years,
All are residing at No.25/64,
Singapura Layout,
Vidyaranyapura post,
Bengaluru-97.
(Impleaded vide order dated
14.03.2020)
(D1(a) & (b)-JL/VSP., D2 to 5-
G.N.R., D6- M.N.M., D7, 9 to
13, 15, 18-Exparte, D8-S.M.,
D14-GVR., D16, 17-(a) to
17(d)- RKM/NKK., D19, 21. 22-
NP., D20-VBS., D23-KRR.,
D24-RSA., - Advocates)
Date of Institution of the suit : 21-11-2003
11 O.S.No.8334 of 2003
Nature of the Suit : Partition
Date of commencement of : 12.09.2023
recording of the evidence
Date on which the Judgment : 17.04.2025
was pronounced
Total Duration : Years Months Days
21 04 27
(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
J U D G M E N T
That, plaintiffs have filed this suit for partition & separate possession of the suit schedule properties claiming share and also for declaration to declare that Sale Deed dated 08.11.1965, 05.05.1975, 30.03.1994, 10.01.1996, 05.07.1996, 13.10.1997, 01.06.1999, 21.03.2000, 21.04.2004, 24.04.2004 and Exchange deed dated 05.03.2001 are not binding upon the shares of the plaintiffs. Plaintiffs have also sought for consequential relief of perpetual injunction restraining 12 O.S.No.8334 of 2003 the defendant No.12 and 14 from interfering with possession & enjoyment of suit schedule property by the plaintiffs.
2) The facts necessary for the disposal of the suit are stated in brief as under:
a) It is the specific case of the plaintiffs that Mestry Venkata Bhovi had two sons and two daughters, by name Ramaiah @ Rama Bhovi, Venkataswamy @ Myakalappa, Papamma and Peddakka. It is submitted by plaintiffs that Rama Bhovi was survived by his wife Venkatamma and 8 children by name Gangamma, Chinnakka, Peddanna, Peddakka, Venkatesha, Venkataswamy, Muniyamma and Ramakka. The plaintiffs states that 1 st son of Ramaiah @ Rama Bhovi by name Venkatesh- defendant No.1 died leaving behind him his wife and son. Peddanna S/o Ramaiah @ Rama Bhovi died leaving behind him wife-defendant No.2 Kenchamma, defendant No.3 to 6 children as his 13 O.S.No.8334 of 2003 legal heirs. The plaintiffs submit that 3 rd daughter of Ramaiah @ Rama Bhovi died issue-less. It is submitted by plaintiffs that Muniyamma D/o Rama Bhovi died leaving behind her defendant No.17(a) to 17(d) whereas Ramakka is defendant No.18 herein. The def.No.1 to 8, 15 to 18 represent branch of Rama Bhovi.
b) The plaintiffs submit that Papamma D/o Venkata Bhovi died leaving behind her Sollapuramma, Venkatamma, Lakshmamma, Ramaiah. The plaintiffs submit that Peddakka D/o Venkata Bhovi is survived by Peddanna & Chinnakka. LRs of Peddanna are on record as defendant No.16, 19, 20, 21 and 22.
c) The plaintiffs submit that Venkataswamy S/o Venkata Bhovi died leaving behind him Krishnappa & Papamma-plaintiff No.5. Krishnappa died leaving behind him his wife-Plaintiff.No.1, plaintiff No.2 to 4 14 O.S.No.8334 of 2003 children. Therefore, the plaintiffs have contended that defendant No.1 to 8, 15 to 22, 25 to 27 are representing the branch of Rama Bhovi, Papamma, Venkataswamy and Peddakka. It is specific case of the plaintiffs that they are the representatives of Venkataswamy @ Myakalappa- second son of Mestry Venkata Bhovi.
d) The plaintiffs submit that Sy.No.44 area 02-
03-00, kharab 00-04-00 was granted to Mestry Venkata Bhovi. It is submitted by the plaintiffs that Mestry Venkata Bhovi belonging to schedule caste and after allotment of land in his favour, the revenue entries were made and he was in enjoyment of suit schedule property till his death. It is submitted by plaintiffs that the suit property is a portion of Old Sy.No.9, measuring 12 acres which has been sub-divided and given numbers as Sy.No.39, 40, 41, 42, 43 and 44. Many 15 O.S.No.8334 of 2003 lands were allotted to different persons in Sy.No.9, and likewise Mestry Venkata Bhovi was also allotted suit schedule property by the Government. It is submitted by plaintiffs that after death of Mestry Venkata Bhovi his sons Ramaiah @ Rama Bhovi and Venkataswamy @ Myakalappa have succeeded to the share of the deceased Venkata Bhovi.
e) The plaintiffs submit that after death of Venkata Bhovi, Ramaiah taking undue advantage of illiteracy of Venkataswamy acted detrimental and against the interest of Venkataswamy. Ramaiah @ Rama Bhovi started alienating the portion of the properties behind the back of Venkataswamy @ Myakalappa. It is submitted by the plaintiffs that alienation made by Ramaiah @ Rama Bhovi was not brought to the knowledge of Venkataswamy and possession was also not delivered to purchasers. The 16 O.S.No.8334 of 2003 plaintiffs submit that Ramaiah, along with his sons Peddanna, Venkatesh-def No.1 and defendant No.7 Venkataswamy sold an area of 00-20-00 in the schedule property in favour of the N.M. Raju S/o Dodda Nanjudappa-def.No.9 as per Sale Deed dated 08.11.1965. Thereafter, the Rama Bhovi & his sons have also sold another 20 guntas of land in suit survey number as per Sale Deed dated 05.05.1975 in favour of N.M. Raju. It is the specific case of the plaintiffs that though under two different Sale Deeds defendant No.9 N.M. Raju purchased the property, he could not take possession of 01-00-00 land but, has sold the same in favour of defendant No.10 who in-term sold the property in favour of 12 th defendant.
f) It is the specific case of the plaintiffs that 2 nd defendant though had no right over the property has sold an area 00-19-00 of land out of suit schedule 17 O.S.No.8334 of 2003 property in favour of 11 th defendant but, possession of property sold is not handed over to the purchasers since the land was in joint possession. It is submitted by plaintiffs that defendant No.11 has sold the property in favour of defendant No.12 as per Sale Deed dated 01.06.1999. It is further case of the plaintiffs that Late Venkatamma joining hands with her husband Ramaiah has also sold an area 00-20-00 of land in the suit schedule property in favour of 13 th defendant as per registered Sale Deed dated 30.03.1994 but, possession of the property was not taken by 13 th defendant. It is further submitted by the plaintiffs that 13 th defendant has sold the property purchased by him in favour of 14 th defendant as per registered Sale Deed dated 21.03.2000. The plaintiffs state that in the relevant revenue records pertaining to suit schedule property name of 12 th defendant was not shown at column No.9, likewise name of 14 th defendant was also not shown in 18 O.S.No.8334 of 2003 the RTC. It is submitted by the plaintiffs that neither the plaintiffs nor their predecessor in title Venkataswamy @ Myakalappa is party to the above said Sale Deeds executed by Ramaiah @ Rama Bhovi and his legal representatives.
g) The plaintiffs have contended that though there were Sale Deeds executed the purchasers were never put in possession of the property. The plaintiffs have also contended that though name of one Veeragandam Brahmaiah S/o Venkataswamy was entered in column No.9 of RTC, he had no right, title or interest over the property nor he has purchased the same. It is submitted by the plaintiffs that Smt. Venkatamma sold 00-20-00 of land in favour of defendant no.13 as per Sale Deed dated 30.03.1994 and defendant No.13 sold the same to defendant No.14 as per Sale Deed dated 21.03.2000 and thereafter, 19 O.S.No.8334 of 2003 defendant No.14 has sold the property to defendant No.23 as per Sale Deed dated 21.04.2004. The plaintiffs also submit that as per Exchange deed dated 05.03.2001 defendant No.12 got exchanged 1 acre land purchased by him as per Sale Deed dated 13.10.1997 to defendant No.24 and has also sold 19 guntas of land in favour of defendant No.24. The plaintiffs submit that defendant No.24 has sold 01-19-00 of land as per Sale Deed dated 24.04.2004 in favour of defendant No.23 and as such, defendant No.23 has purchased entire suit schedule property measuring 01-39-00.
h) The plaintiffs submit that the property was allotted to Mestry Venkata Bhovi who was belonging to schedule caste and as such, as per Section 4 and 5 of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (herein after referred as 'PTCL Act'), defendant No.9 to 20 O.S.No.8334 of 2003 14 and 23 and 24 have no right to purchase the suit property. The plaintiffs also state that since Ramaiah @ Rama Bhovi had no exclusive right over the schedule property, he had no right to sell the entire property. It is submitted by the plaintiffs that defendant No.8 has filed application under provisions of 'PTCL Act' and sought for declaration that Sale Deeds in favour of defendant No.9 to 14 as null and void & restoration of property. The plaintiffs submit that the authorities have declared that Sale Deed executed are null & void and ordered that legal representatives of original grantee Late Mestry Venkata Bhovi are entitled for restoration of suit schedule property. It is submitted by plaintiffs that in view of order passed by competent authority defendant No.9 to 12 had no right, title or interest over the property and sale deed will not deprive the legitimate share of the plaintiffs. It is further submitted by plaintiffs that though defendant 21 O.S.No.8334 of 2003 No.8 had filed application under Section 4 of PCTL Act for restoration of schedule property and order was passed in favour of all the LRs of original grantee on 01.04.2003. Against the order, defendant No.24 has filed statutory appeal before Deputy Commissioner under Section 5A of PTCL Act at Appeal NO.SCST(A)7/2003-04 and Deputy Commissioner after hearing the parties allowed the appeal as per order dated 27.02.2004. Against the order passed by Deputy Commissioner defendant No.8 filed W.P.NO.14756 of 2004 before Hon'ble High Court of Karnataka and plaintiff No.1 to 5 have file application impleaded them in the Writ Petition. The plaintiffs state that application came to be dismissed on 29.08.2007 with liberty to file separate Writ Petition, and accordingly plaintiff No.1 to 5 have filed separate writ petition at W.P.No.13892 of 2007. Both the Writ Petitions are clubbed together and disposed off by common order 22 O.S.No.8334 of 2003 dated 08.12.2008 by quashing the order of Deputy Commissioner and remanding the matter to the Assistant Commissioner for fresh consideration by keeping open all the contentions. The plaintiffs submit that thereafter Assistant Commissioner holding an enquiry afresh, dismissed the application by order dated 12.09.2011, against which plaintiffs have preferred statutory appeal at KSCST-134/2011-12 and defendant No.17(a), 16, 19, 21 and 22 have also filed independent appeal at KSCST(A) 135/2011-12. The plaintiffs have pleaded that Deputy Commissioner clubbed both the appeals and pleased to dismiss the same by order dated 27.07.2016 which has attained finality. However, plaintiffs have claimed that grant order issued by Dy. Commissioner, Bengaluru dated 22.01.1931 in favour of Mestry Venkata Bhovi remained intact and as such, legal heirs of Mestry Venkata Bhovi are entitled for property. The plaintiffs 23 O.S.No.8334 of 2003 further submit that 2 nd defendant has also filed application before AC, Bengaluru under PTCL Act against defendant No.9 at KSCST-23/84-85 for restoration of portion of suit schedule property i.e., 1 acre, the same was dismissed on 08.04.1985 which attained finality.
i) The plaintiffs have contended that since Mestry Venkata Bhovi died leaving behind him two sons and two daughters, the branch of Ramaiah had no exclusive right or share over the suit schedule property and as such, Sale Deeds executed by the branch of Ramaiah @ Rama Bhovi is not binding upon the shares of the plaintiffs. The plaintiffs have contended that 2 nd defendant and her family members have sold 19 guntas of land in favour of defendant No.11 on 10.01.1996 and therefore, the plaintiffs have filed this suit for partition and separate possession. The plaintiffs have 24 O.S.No.8334 of 2003 contended that they requested the defendant No.1 to 8, 12 and 14 to give legitimate right to them but defendants who are very shroud did not choose to give share and turned hostile towards plaintiffs and as such, plaintiffs have filed this suit for partition and separate possession of the suit schedule property.
3) a. In response to summons issued, the defendants have appeared and contested the suit by filing written statement. The defendant No.14 has filed written statement contending that suit for partition & separate possession is not maintainable and liable to be dismissed. The defendant No.14 has contended that plaintiffs are not in possession of the suit property and as such, court fee paid by the plaintiffs is insuffi cient. The defendant No.14 has further contended that prior to filing of the suit schedule property was converted in to non-agriculture land and 25 O.S.No.8334 of 2003 as such, the plaintiffs have to pay the court fee on the market value of the suit property and as such, suit is liable to be dismissed. It is contended by the defendant No.14 that plaintiffs by colluding with defendant No.1 to 8 and 15 to 22 have filed this suit and there is no joint family and suit property is not the joint family property of the plaintiffs and defendants. The defendant No.14 has contended that suit is bad for non-joinder of necessary parties and all interested persons in the property. The defendant no.14 has further contended that suit of the plaintiffs is not maintainable in view of dismissal of their claim under Provisions of PTCL Act and there is no basis for the plaintiffs to claim share in the suit property.
b. It is contended by the defendant No.14 that Venkatamma W/o Rama Bhovi and her family members were absolute owners of 20 guntas of land in suit property and they have sold the same in favour of 13 th 26 O.S.No.8334 of 2003 defendant as per Sale Deed dated 30.03.1994 & 13 th defendant has acquired right, title and interest over 20 guntas of land in the suit schedule property. It is further submitted by defendant No.14 that 13 th defendant has sold the 20 guntas of land purchased by him in favour of defendant No.14 as per Sale Deed dated 21.03.2000. It is further submitted by defendant No.14 that he became the absolute owner in possession of 20 guntas of land as per Sale Deed dated 21.03.2000 and his name was also entered in the revenue records as per MR.No.14/2001-02.
c. It is further submitted by defendant No.14 that he got converted 20 guntas of land into non- agriculture land as per order bearing No.BDIS.ALN(E) VB.SR.308/2003-04 dated 30.09.2003. It is further contended by 14 th defendant that he has sold 20 guntas of land in favour of defendant No.23 as per Sale Deed 27 O.S.No.8334 of 2003 dated 21.04.2004. It is contended by the defendant No.14 that he has handed over the possession of 20 guntas of land to defendant No.23 as per Sale Deed dated 21.04.2004 and since the date of purchase defendant No.23 is in lawful possession and enjoyment of the schedule property. 14 th defendant has contended that schedule property forms portion of SEZ project named 'Cessna Business Park' and defendant No.23 has already constructed huge buildings in the schedule property. Defendant No.14 has contended that since he has purchased 20 guntas of land from defendant no.13 and sold the same to defendant No.23 as per Sale Deed dated 21.04.2004, defendant No.23 has become the absolute owner in possession of the suit schedule property. As defendant No.23 became the owner of the schedule property, defendant No.14 has contended that suit be dismissed with cost. 28 O.S.No.8334 of 2003
4) The defendant No.16 has filed written statement. In the written statement defendant No.16 has contended that Sy.No.44 area 02-03-00, kharab 00- 04-00 of Kadabesanahalli Village was originally granted to Mestry Venkata Bhovi as per Government order dated 22.06.1931. It is submitted by the defendant No.16 that there was a permanent non- alienation clause in the grant and as such, the property cannot be alienated. The defendant No.16 submits that Mestry Venkata Bhovi died intestate leaving behind him two sons and two daughters and suit property is the joint family property of Mestry Venkata Bhovi and others. The defendant No.16 submits that she is the daughter-in-law of Peddakka-daughter of Mestry Venkata Bhovi. It is submitted by defendant No.16 that she is daughter of Rama Bhovi, 1st son of Mestry Venkata Bhovi & she is married to Peddanna S/o Peddakka. It is further submitted by defendant No.16 29 O.S.No.8334 of 2003 that after death of Venkata Bhovi, plaintiffs and defendants are in joint possession & enjoyment of schedule property and the suit property is the joint family property. The defendant No.16 has further contended that the alienation made is in violation of permanent non-alienation condition and since property is granted to Mestry Venkata Bhovi, the sale transaction comes within the purview of Section 4 and 5 of PTCL Act. It is submitted by defendant no.16 that in view of statutory prohibition alienation made is bad in law and in the absence of any express & implied amendment or rules the property cannot be alienated for-ever, the same is valid and binding. The defendant No.16 submits that plaintiff No.1 and her legal heirs are wife and children of one Krishnappa who is the son of Late Venkataswamy @ Myakalappa, 2 nd son of original grantee Mestry Venkata Bhovi. The defendant No.16 further submits that the sons are having 5/12 th shares 30 O.S.No.8334 of 2003 whereas daughters are having 1/12th share in the suit schedule property. It is submitted by defendant no.16 that she being wife of Peddanna who is the son of Peddakka-daughter of Mestry Venkata Bhovi and as a daughter of Rama Bhovi is also having share in the suit schedule property. It is submitted by defendant No.16 that the plaintiffs with the support of builders were constructing the structure and as such, she has filed O.S.No.262 of 2018 to declare her share in the schedule property. It is submitted by the defendant No.16 that they being successors of Mestry Venkata Bhovi are also entitled for share along with plaintiffs, defendant No.1 to 8 and defendant No.15 to 22 and as such, her share be separated.
5) The defendant No.17(a) has filed written statement. In written statement defendant No.17(a) has contended that plaintiffs have not approached this 31 O.S.No.8334 of 2003 court with clean hand and have suppressed true material facts. The defendant No.17(a) has contended that he is the son of Muniamma, the daughter of Rama Bhovi. The defendant No.17(a) further submits that plaintiffs have intentionally not made defendant No.15 to 18 as parties to the suit earlier in order to grab their share. It is contended by the defendant No.17(a) that the defendant No.15 to 18 are having shares and their shares be declared.
6) The defendant No.19 to 22 have filed written statement. In the written statement defendant No.19 to 22 have contended that Mestry Venkata Bhovi was the grantee of the schedule property to the extent of 02-03-00. The defendant No.19 to 22 have further contended that Sy.No.9 has been renumbered as Sy.No.44 situated at Kadubesanahalli Village and there was a condition in the grant to the effect that Grantee 32 O.S.No.8334 of 2003 shall not alienate or dispose or sell the granted land for ever. Therefore, the defendant No.19 to 22 have contended that grantee Mestry Venkata Bhovi was in possession of the property and after his death his legal heirs have acquired right over the suit property. It is further submitted by the defendant No.19 to 22 that Mestry Venkata Bhovi was married to Venkatamma and out of their wedlock they had four children by name Rama Bhovi, Papamma, Venkataswamy and Paddakka and defendant No.19 to 22 are the legal heirs of Paddakka the daughter of Venkata Bhovi. It is further submitted by the defendant No.19 to 22 that after death of Venkata Bhovi, Rama Bhovi and his legal heirs without the knowledge of other legal heirs of Mestry Venkata Bhovi have disposed the schedule property in favour of different persons. The act of Rama Bhovi and his legal heirs are unlawful, contrary to Hindu law as well as PTCL Act since the schedule 33 O.S.No.8334 of 2003 property is the joint family property. It is submitted by the defendant No.19 to 22 that the sale transaction entered into between Rama Bhovi and his legal heirs is contrary to Section 4 of PTCL Act and hence, it is just and necessary to restore the suit schedule property in the name of all the legal heirs of Mestry Venkata Bhovi by evicting third persons in the possession of the schedule property. Therefore, defendant No.19 to 22 have prayed that the suit may kindly be decreed and their share may kindly be allotted to them.
7) Defendant No.23 has filed separate written statement. The defendant NO.23 has disputed the relationship of plaintiffs with deceased Venkata Bhovi @ Mestry Venkata Bhovi. It is contended by the defendant No.23 that plaintiffs and defendant No.1 to 8, 15 to 22 colluding with each other have filed this suit for partition and separate possession of the suit 34 O.S.No.8334 of 2003 property only to extract money. The defendant NO.23 has contended that prior to filing of the suit property is duly converted from agricultural purpose to non- agriculture purpose and as such, court fee paid is insuffi cient and since plaintiffs are not in possession of the suit property, plaintiffs ought to have paid court fee under Section 35(1) of Karnataka Court Fee and Suit Valuation Act. The defendant No.23 submits that suit is barred by limitation as suit is filed after 38 years from the date of execution of the Sale Deeds. It is contended by the defendant No.23 that plaintiffs are well aware about the transaction and development made in the schedule property and ought to have filed suit within 3 years from the date of attaining majority or within 12 years from the date of Sale Deed whichever is later and as such, suit filed by the plaintiffs is hopelessly barred by limitation. It is further contended by the defendant No.23 that suit is not 35 O.S.No.8334 of 2003 maintainable as necessary parties are not made as parties to this suit. It is also contended by the defendant No.23 that all the purchasers like i.e., Byanna, Veeragandam Brahmaiah and others who have purchased the schedule properties are not made as parties to this suit and as such, suit is liable to be dismissed for non-joinder of necessary parties. It is also contended by the defendant No.23 that all the legal heirs of deceased Mestry Venkata Bhovi are not made as parties to the suit and as such, suit is not maintainable on account of non-joinder of necessary parties.
b) The defendant No.23 has contended that claim of the plaintiffs is mainly based upon the restoration order passed under provisions of PTCL Act dated 01.04.2003 passed in KSCST NO.22/2001-02. It is submitted by defendant No.23 that after several 36 O.S.No.8334 of 2003 proceedings claim of the plaintiffs under provisions of PTCL Act for restoration of schedule property came to be rejected by Deputy Commissioner and that order has attained finality and as such, plaintiffs are not having any right to claim share in the suit property. It is submitted by the defendant no.23 that the suit of the plaintiffs without seeking cancellation of Sale Deed referred is not maintainable and plaintiffs ought to have sought for relief of declaration of their title over the suit property. It is further contended by defendant No.23 that as stated in the plaint first sale was in the year 1965 followed by Sale Deeds dated 05.05.1975, 30.03.1994, 05.07.1996, 30.10.1997, 10.01.1996, 09.06.1999, 21.03.2000, 05.03.2001, 21.04.2004 and 24.04.2004 and plaintiffs who kept quiet and let the defendants invest crores of rupees in developing the schedule property are estopped from making claim over the schedule property. It is submitted by the 37 O.S.No.8334 of 2003 defendant No.23 that old Sy.No.9, New Sy.No.44 of Kadubisanahalli Village measuring 01-39-00 excluding karab 00-04-00 was belonging to Rama Bhovi S/o Mestry Venkata Bhovi & his children and they have sold 00-20-00 out of 01-39-00 in favour of one Raju-def No.9 vide Sale Deed dated 08.11.1965. It is further contended by the defendant No.23 that Rama Bhovi S/o Mestry Venkata Bhovi and his children have sold another portion of 00-20-00 out of 01-39-00 in favour of defendant No.9 as per Sale Deed dated 05.05.1975. The defendant No.23 has contended that as per Sale Deed dated 08.11.1965 and 05.05.1975 defendant No.9 has acquired right, title and interest in 1 acre of land in Sy.No.44 of Kadubisanahalli Village.
c) The defendant No.23 has further contended that Venkatamma W/o Rama Bhovi and others have sold 00- 20-00 of land in Sy.No.44 in favour of defendant No.13 38 O.S.No.8334 of 2003 T. Narayana vide Sale Deed dated 30.03.1994 and as such, defendant no.13 has acquired right in 00-20-00 of land in Sy.No.44. It is further submitted by defendant No.23 that one Smt. Kenchamma W/o Peddanna and others have sold 00-19-00 of land in suit property in favour of defendant No.11 as per Sale Deed dated 10.01.1996 and accordingly, 11 th defendant has acquired right, title and interest over 00-19-00 of land in suit survey number. It is further contended by the defendant No.23 that in the above said manner entire extent of suit property i.e., 01-39-00 was sold under various Sale Deeds by the members of the family. It is submitted by the defendant No.23 that schedule property was sold by managing members/ kartha of joint family for legal and family necessities and they have utilized the sale consideration for the joint family & legal necessities and same is prudent transaction. It is submitted by defendant No.23 that alienation made 39 O.S.No.8334 of 2003 by Rama Bhovi and his legal heirs was for benefit of joint estate, for the benefit of joint family and for legal necessities and as such, plaintiffs have no manner of right or share in the schedule property. The defendant No.23 contended that plaintiffs have never challenged revenue entries standing in the name of Rama Bhovi and others.
d) It is further submitted by defendant No.23 that defendant No.9 has sold 1 acre of land purchased by him in favour of Smt.Bharathi- defendant No.10 as per Sale Deed dated 05.07.1996 and defendant No.10 has sold said property in favour of defendant No.12 as per Sale Deed dated 13.10.1997. It is further contended by defendant No.23 that defendant No.11 who had purchased 19 guntas as per Sale Deed dated 10.01.1996, has also sold 19 guntas of land in favour of defendant No.12 as per Sale Deed dated 01.06.1999 40 O.S.No.8334 of 2003 and as such, defendant No.12 became the absolute owner of 01-19-00 of land by virtue of Sale Deed dated 30.10.1997 and 01.06.1999. The defendant No.23 has contended that defendant No.12 has entered into an registered Exchange Deed on 05.03.2001 with one Veeragandam Brahmaiah-def.No.24 in respect of 1 acre 19 guntas purchased by him as per Sale Deed dated 30.10.1997 and 10.01.1996 and accordingly Veeragandam Brahmaiah has acquired absolute right, title and interest over 01-19-00 in the schedule property. It is further submitted by the defendant No.23 that 13 th defendant who purchased 00-20-00 from Smt. Venkatamma has sold the same to 14 th defendant as per Sale Deed dated 21.03.2000 and all the revenue entries are entered in the name of 14 th defendant. It is submitted by defendant No.23 that 14 th defendant got converted 20 guntas of land into non- agriculture land as per order bearing 41 O.S.No.8334 of 2003 No.BDIS.ALN(E)VB.SR.308/2003-04 dated 30.09.2003. Further Veeragandam Brahmaiah has secured conversion order in respect of as per order bearing No.BDIS.ALN.(E).VB.SR.14/2004-05 dated 07.04.2004 thereby entire agricultural land was converted into non- agriculture land on 30.09.2003 and 07.04.2004. It is contended by the defendant No.23 that 14 th defendant has sold 00-20-00 of land in schedule property in favour of defendant No.23 as per Sale Deed dated 21.04.2004 and 23 rd defendant has acquired right, title and interest in respect of 20 guntas of land. It is further contended by defendant No.23 that Veeragandam Brahmaiah-def.No.24 has sold 01-19-00 guntas in the suit schedule property to defendant No.23 as per Sale Deed dated 24.04.2004. Therefore, the defendant No.23 contended that he has acquired entire 01-39-00 of land in schedule property under different Sale Deeds.
42 O.S.No.8334 of 2003
e) It is submitted by defendant No.23 that he has developed the suit schedule property and constructed huge buildings and entire project is known as 'Cessna Business Park'. The defendant No.23 submits that schedule property forms portion of SEZ project named Cessna Business Park comprising of 44 acres of land. The defendant No.23 further submits that development of plan was sanctioned from BDA and defendant has already constructed a huge buildings in the suit schedule property and paid betterment charges, obtained katha in the name of defendant NO.23. The defendant No.23 has further contended that he being reputed builder and plaintiffs have filed this suit only to extract money from the defendant No.23. The defendant No.23 has contended that he is the bonafide purchaser of the suit schedule property. The defendant NO.23 has also pleaded regarding the proceedings under provisions of PTCL Act and contended that by 43 O.S.No.8334 of 2003 suppressing order passed in KSCST No.25/84-85 filed by legal heirs of Venkata Bhovi, the present suit is filed by the plaintiffs. It is further contended by defendant No.23 that the order passed in KSCST No.22/2001-02 was challenged before Deputy Commissioner, Bengaluru in KSCST Appeal No.7/2003-04 wherein order was set aside and same was challenged by plaintiffs and others before Hon'ble High Court of Karnataka at W.P.No.13892 of 2007 and W.P. No.14756 of 2004. The defendant No.23 has contended that as per order dated 18.12.2008 in the Writ Petitions were disposed. Since, Writ Petitions and proceedings before the revenue authorities have ended in favour of defendant No.23, it is contended on behalf of defendant No.23 that there is no merits in the case of the plaintiffs that transactions are hit under provisions of PTCL Act. The defendant No.23 has also contended that the suit is barred by limitation as plaintiffs are challenging the alienation 44 O.S.No.8334 of 2003 made in the year 1965. The defendant No.23 has also contended that daughters of Venkata Bhovi are not having share under provisions of Hindu Succession Act as sales prior to 20.12.2004 are saved and as such, they are not having any right over the suit property. Therefore, the defendant No.23 has contended that suit is not maintainable and liable to be dismissed with cost.
8) Earlier the suit was filed against defendant No.1 to 14 only and this court by judgment dated 16.01.2014 has decreed the suit filed by the plaintiffs holding that plaintiffs are legal heirs of 2 nd son of namely Venkataswamy @ Myakalappa are entitled for ½ share in the schedule property holding that alienation made by Rama Bhovi and his children are not binding upon the plaintiffs' share. Against the judgment and decree dated 16.01.2014, original 45 O.S.No.8334 of 2003 defendant No.14 has filed regular first appeal at RFA.No.765 of 2014. During the pendency of the RFA defendant No.23 was also impleaded in the RFA. The Hon'ble High court by order dated 25 th January 2019 has set aside the judgment and allowed regular first appeal and remanded the matter for fresh consideration to frame necessary issues in light of observation made in the judgment and also provide opportunity to the parties to lead evidence. After remand, necessary parties are impleaded & def.No.23 & others have filed written statement.
9) By considering pleadings and documents produced by the parties, my learned predecessor in offi ce had framed the following issues :-
1. Whether the plaintiffs are entitled to seek partition in respect of suit schedule property?
2. What share, each of the plaintiffs is entitled to?46 O.S.No.8334 of 2003
3. Whether the plaintiffs were in lawful possession of the suit schedule property, as on the date of suit?
4. Whether the alleged interference is true?
5. Whether the registered, Sale Deed dated 08.11.1965 executed by late Ramaiah @ Rama Bhovi and his sons in favour of 9 th defendant, is not binding on the plaintiffs?
6. Whether the registered Sale Deed dated 05.05.1975 executed by late Ramaiah @ Rama Bhovi and his sons in favour of 9 th defendant is not binding on the plaintiffs?
7. Whether the registered Sale Deed dated 05.07.1996 executed by 9 th defendant in favour of 10 th defendant is not binding on the plaintiffs?
8. Whether the registered Sale Deed dated 13.10.1997 executed by 10 th defendant in favour of 12 th defendant is not binding on the plaintiffs?
9. Whether the registered Sale Deed dated 10.01.1996 executed by 2 nd defendant in favour of 11 th defendant is not binding on the plaintiffs?
10. Whether the registered Sale Deed dated 01.06.1999 executed by 11 th defendant in favour of 12 th defendant is not binding on the plaintiffs?
11. Whether the registered Sale Deed 47 O.S.No.8334 of 2003 dated 30.03.1994 executed by late Venkatamma W/o Late Ramaiah @ Rama Bhovi in favour of 13 th defendant is not binding on the plaintiffs?
12. Whether the registered Sale Deed dated 21.03.2000 executed by 13 th defendant in favour of 14 th defendant is not binding on the plaintiffs?
13. Whether this court has no jurisdiction to entertain this suit?
14. What order?
Addl. Issues framed on 23.02.2023.
1. Whether the plaintiffs prove that plaintiffs and defendants No.1 to 8, 15 to 22 are coparceners and members of undivided Hindu Joint family ?
2. Whether Plaintiffs prove that the deed of exchange dated:05.03.2001 executed by defendant No.12 in favor of defendant No.24 is null and void and not binding on the plaintiffs ? Addl. Issues framed on 07.08.2023
1. Whether the plaintiffs prove that the sale deed dated:21.04.2004 executed by defendant No.14 in favour of defendant No.23 to an extent of 20 guntas is not binding on the share of the plaintiffs ?48 O.S.No.8334 of 2003
2. Whether the Plaintiffs prove that the sale deed dated:24.04.2004 executed by defendant No. 24 in favour of defendant No.23 to an extent of 1 acre 19 guntas is not binding on the share of the plaintiffs ?
3. Whether the defendant No.23 proves that he is bona-fide purchaser of the suit schedule property ?
As per order dated 11.12.2019 the following additional issues are framed
1. Whether the suit is barred by limitation?
2. Whether the suit is bad for non-joinder of necessary parties?
10) Before remand one Srinivas who was plaintiff No.3 is examined as PW.1 and he had produced 28 documents. After remand N. Chinnaswamy-plaintiff No.5(b) got himself examined as PW.2 and got marked Ex.P.29 to 74. Defendant No.16 Chinnakka is examined as DW.1 and she has not produced any documents. Representatives - offi cials of defendant No.23 T. Aravindappa got himself examined as DW.2 and he got 49 O.S.No.8334 of 2003 marked Ex.D.2 to 40 documents. Parties to the suit have not adduced any further oral and documentary evidence.
11) Learned counsel appearing for the plaintiff has argued that as per grant order dated 22.06.1931 marked at Ex.P.29 property was granted to Venkata Bhovi and there is a non-alienation clause in the grant order to the effect that land shall not be alienated forever. It is contended by the counsel for the plaintiffs that as per grant order grantee shall not alienate or dispose or sell the granted land forever and as such, learned counsel has argued that sale of property is against the grant and as such, sale deed executed are null & void. The counsel for the plaintiffs has also contended that original grantee Venkata Bhovi died and he had two sons and as such, the property is required to be divided between Ramaiah @ Rama Bhovi 50 O.S.No.8334 of 2003 and Venkataswamy @ Myakalappa. The learned counsel for the plaintiffs has contended that all the legal heirs of Venkata Bhovi are having right in the schedule property and as such, the sale of property by Rama Bhovi and his sons only is against the law. It is contended by learned counsel appearing for the plaintiffs that Sale Deed dated 08.11.1965, 05.05.1975, 30.03.1994 and 10.01.1996 executed by members of the family are not binding upon the shares of the another branch i.e., Myakalappa's Branch and as such, the suit is liable to be decreed holding that Venkataswamy @ Myakalappa had ½ share in the property. Learned counsel appearing for the plaintiffs has also argued that daughter of Venkata Bhovi are not having right over the suit property as the alienation has taken place prior to 20.12.2004 and RFA No.454/2014 was withdrawn as not pressed. Therefore, the learned 51 O.S.No.8334 of 2003 counsel for the plaintiffs has contended that branch of Myakalappa is having ½ share.
12) The learned counsel for plaintiffs has also contended that the last alienation is made on 10.01.1996 by Kenchamma W/o Rama Bhovi in respect of 00-19-00 of land and as such, suit filed within 12 years from the date of last alienation is within the period of limitation and relief claimed is not barred by limitation. The learned counsel for the plaintiffs has further contended that ancestors of plaintiffs have not alienated the land nor signed the Sale Deed as witnesses and hence, Sale Deeds executed by Rama Bhovi and his descendants are not binding upon the plaintiffs.
13) The learned counsel appearing for the plaintiffs further argued that Assistant Commissioner 52 O.S.No.8334 of 2003 has ordered that the sale transaction is void under PTCL Act which is produced at Ex.P.24, however Deputy Commissioner has set aside the order passed but Hon'ble High Court has allowed the appeal setting aside the order of Deputy Commissioner and remanded the matter for consideration. Thereafter, Assistant Commissioner has rejected the application filed under PTCL Act and Deputy Commissioner has dismissed the appeal but observation is made that present suit is pending and as such, has argued that the proceedings of PTCL Act will not affect, rights of the plaintiffs over the suit schedule property. Therefore, the learned counsel has contended that the proceedings under authorities will not take away right of plaintiffs to claim right in the suit schedule property. The learned counsel for the plaintiffs has further argued that all the legal heirs are parties to the suit and as such, contention of the defendants that suit is bad for non- 53 O.S.No.8334 of 2003 joinder of necessary parties does not arise for consideration. Therefore, learned counsel for the plaintiffs has argued that the Sale Deeds are not binding upon the shares of the plaintiffs and suit be decreed with cost. The learned counsel for the plaintiffs has relied upon the decisions are as under:-
1. (1983) 3 SCC 118
2. ILR 2012 KAR 4129
3. RFA NO.287/2008
4. RFA NO.100108/2016(PAR/POS)
5. (1988) 2 SCC 77
6. RSA No.1653 of 2021 (PAR)
14) Per contra, learned counsel appearing for the defendant No.14, and 23 have argued that the suit of the plaintiffs is not maintainable and plaintiffs have failed to prove the genealogy and nature of property as the ancestral property of plaintiffs and defendant No.1 to 8, 15 to 22. The learned counsel for the defendant No.23 has contended that he is the bonafide purchaser 54 O.S.No.8334 of 2003 of the suit schedule property. Counsel for the defendant No.23 has also contended that the property was sold in favour of defendant No.9, 14 and 24 by Rama Bhovi and his family members for legal necessities and even if Myakalappa is the member of the family, as property is sold for legal necessities and benefit of estate, the same is binding upon plaintiffs also. The learned counsel for the defendant No.23 has also argued that first Sale Deed is executed in 1965 and as such, the Rama Bhovi has asserted independent right over the suit property and Myakalappa @ Venkataswamy was excluded from the property and as such suit ought to have been filed within 12 years from the date when first Sale Deed was executed.
Therefore, the learned counsel for the defendants has contended that suit is not maintainable and liable to be dismissed.
55 O.S.No.8334 of 2003
15) The leaned counsel for the defendants has argued that plaintiffs have not challenged the Sale Deeds stating that the same is not supported by legal necessities or benefit of estate and as such, no burden lies upon the defendants-purchasers to prove that the sale is for legal necessities and benefit of estate. That apart, learned counsel for the defendants has contended that out of 01-39-00 gunta, 1 acre was sold in favour of defendant No.9 under two registered Sale Deeds in the year 1965 and 1975 and after lapse of around 50 years, the defendants cannot be asked to prove that Sale Deed is supported by legal necessities. The learned counsel has argued that the recitals made in the Sale Deeds clearly establishes that property is sold for the benefit of family i.e., for repayment of loan, to meet the marriage expenses and as such, the suit is liable to be dismissed holding that the Sale Deed is binding upon the plaintiffs. It is contended by the 56 O.S.No.8334 of 2003 counsel for the defendants that as per Ex.D.4 property was sold to meet marriage expenses and legal necessities. As per Ex.D.3 property was sold for repayment of loan and purchase of Ox and as per Ex.D.5 property is sold for purchase of vehicles and as such suit is liable to be dismissed holding that the Sale Deeds were supported by consideration. The learned counsel for defendant No.23 has argued that the possession of the property was handed over to defendant No.9 in the year 1965 and 1975 and thereafter as per registered Sale Deeds the other portions are also handed over to defendants and as such, at present defendant No.23 is in possession and enjoyment of entire suit property. The counsel appearing for the defendant No.23 has contended that as per Ex.D.35 it is clear that there was a partition between Venkata Bhovi and his children, Rama Bhovi and Venkataswamy in which area 01-39-00 was 57 O.S.No.8334 of 2003 allotted to Rama Bhovi and Sy.No.8/2 area 03-04-00 was allotted to Myakalappa and as such, the property is not available for partition and is not the joint family property of plaintiffs and defendants. The learned counsel for the defendant No.23 has argued that after purchase of property, defendant No.23 got alienated the property as per Ex.P.39 and P.40 and constructed buildings in the schedule property. It is further contended by the counsel for the defendant No.23 that the plaintiffs are not in joint possession of the property and as such, the court fee paid is not proper and correct.
16) The learned counsel for the defendants has argued that as per Ex.D.35 property is already partitioned, therefore Sale Deeds executed by Rama Bhovi and others are not binding upon the plaintiffs and therefore, suit is liable to be dismissed. In support of 58 O.S.No.8334 of 2003 the arguments counsel has referred the following decisions:-
1. AIR 1971 SC 2228
2. AIR 2018 SC 3907
3. AIR 1971 SC 776
4. AIR 1971 SC 1028
5. RSA NO.822/2023
6. Civil Appeal No.2567/2017
7. 2008 SCC online Kar 548
8. Civil Appeal NO.9519/2019
9. 2023 SCC online Kar 19
10. ILR 2022 Kar 992
11. (1994) 4 SCC 294
12. AIR 2002 SC 504.
17) The learned counsel appearing for the defendant No.14 has argued that he has purchased the property under registered Sale Deeds and the alienation made by manager of the Hindu joint family even without legal necessities is voidable and not void document. Leaned counsel has argued that proof of legal necessities by alienee is not necessary when 59 O.S.No.8334 of 2003 specific plea is not raised. Therefore, the learned counsel appearing for the defendant No.14 has contended that the Sale Deeds executed in favour of his predecessor in title is valid as those Sale Deeds were not challenged by the parties concerned within the period of limitation and as such, the same are binding upon the plaintiffs also. That apart, it is also argued that there is a partition in the family and plaintiffs & defendants have divided the property wherein Sy.No.44 was allotted to share of Rama Bhovi. Therefore, the learned counsel for the defendant No.14 has contended that the suit is barred by limitation and claim of the plaintiffs cannot be entertainment. In connection of the arguments referred the following decisions:-
1. AIR 1971 SC 776
2. AIR 1971 SC 2228
3. 2010 (12) SCC 112
4. AIR 2025 (1) Kar Reporter 551 60 O.S.No.8334 of 2003
18) The learned counsel appearing for the defendant No.16 has argued that she is the grand-
daughter of original propositus Mestry Venkataswamy and as such, she is having share in the schedule property as grand-daughter of Venkata Bhovi. The learned counsel for defendant No.16 has also contended that defendant No.16 is also wife of Peddanna S/o Peddakka and as such, as a wife of Peddanna she is also having share in the suit schedule property. Therefore, the learned counsel for the defendant No.16 has argued that she is having right in the suit property and her share may kindly be separated.
19) I have considered the oral and documentary evidence adduced by the plaintiff to the suit in light of the arguments advanced before me and my findings on the above issues are:-
61 O.S.No.8334 of 2003
Issue No.1 & 2: In the Negative
Issue No.3 & 4: In the Negative
Issue No.5 to 12 In the Negative
and additional
issue No.2 framed
on 23.02.2023 and
additional issue
No.1 and 2 framed
on 07.08.2023:-
Issue No.3 framed In the Negative
on 07.08.2023:-
Additional issue In the Negative
No.2 framed on
11.12.2019:
Additional issue In the Affi rmative.
No.1 framed on
23.02.2023
Additional Issue Suit is barred under
No.1 framed on Article 58 of Limitation
11.12.2019:- Act.
Issue No.13 Court is having jurisdiction
to adjudicate the dispute
& the suit
Issue No.14: As per final order,
for the following:-
REASONS
20) Issue No.13:- As This issue is framed
regarding jurisdiction of the court, same is considered 62 O.S.No.8334 of 2003 first. Suit Property is situated within territorial jurisdiction of this court and therefore, this court is having jurisdiction to try and entertain the suit. This court is having territorial & pecuniary jurisdiction as well as jurisdiction over subject matter of the property. The defendants have not stated under provisions of which law this court is not having jurisdiction to adjudicate the dispute. Therefore, in my opinion this court is having jurisdiction to decide the dispute. Accordingly, this issue is answered holding that this court is having jurisdiction to adjudicate the dispute & the suit.
21) Additional Issue No.1 framed on 23.02.2023 :- That, this issue is framed with regard to contention taken by the plaintiffs that plaintiffs & defendant No.1 to 8, 15 to 22 are coparceners and members of undivided Hindu joint family. This suit is 63 O.S.No.8334 of 2003 for partition & separate possession of the suit schedule property. Plaintiffs claim that they represent branch of Myakalappa @ Venkataswamy who is the son of original propositus Mestry Venkata Bhovi. The plaintiffs in order to prove the genealogy have produced Ex.P.1. Ex.P.1 shows that Mestry Venkata Bhovi is having two sons by name Ramaiah and Venkataswamy @ Myakalappa. In Ex.P.1 it stated that Venkataswamy had son by name Krishnappa and Ramesh, Srinivas and Chandramma are children of Venkataswamy @ Myakalappa. Guramma is the wife of Krishnappa S/o Venkataswamy. Plaintiff No.1 to 4 are the wife, son and daughter of Krishanappa S/o Venkataswamy. Plaintiff No.5 is daughter of Venkataswamy. Therefore, it is clear that the plaintiff No.1 to 5 represent branch of Venkataswamy. Though plaintiffs at the time of filing of the suit have contended that original propositus Venkata Bhovi had only two sons but later 64 O.S.No.8334 of 2003 on they impleaded the daughters and legal heirs of daughters of Venkata Bhovi. Ex.D.1 genealogy tree produced by the defendants shows that Venkata Bhovi had daughter by name Papamma and Peddakka. Peddakka is survived by his son Peddanna and daughter Chinnakka. Peddanna died leaving behind him Venkatamma, Lakshmi, Venkatesh and Krishna. Likewise Papamma daughter of Venkata Bhovi died leaving behind him three daughters and one son by name Sollapuramma, Venkatamma, Lakshmamma, Ramaiah. Ramaiah died leaving behind him Narayana, Venkataswamy, Muniyamma and Nagaraj. The defendant No.1 to 8, 15 to 22 are legal heirs of Rama Bhovi, Venkataswamy, Papamma and Peddakka. Defendant No.16 Chinnakka is the daughter-in law of Peddakka. In the cross-examination she admits that Venkata Bhovi had 4 sons by name Rama Bhovi, Peddakka, Papamma, and Myakalappa and she is the 65 O.S.No.8334 of 2003 daughter of Rama Bhovi. So, the members of family have admitted that Venkata Bhovi had son by name Myakalappa @ Venkataswamy and there is no dispute that plaintiff No.1 to 5 represent the branch of Venkataswamy.
22) Parties to the suit have not contended that the family of Ramaiah Bhovi and Venkataswamy got divided the properties. It is elicited in the cross- examination that the parties are living separately. But the living separately does not amounts to actual division or partition in accordance with law. Therefore, it cannot be held that there is a division between Rama Bhovi and Venkataswamy. Hindu family is presumed to be joint unless contrary is proved and as such, from the oral evidence, documentary evidence i.e., Ex.P.1 and Ex.D.1 it is clear that plaintiffs and defendant No.1 to 8 and 15 to 22 are descendants of 66 O.S.No.8334 of 2003 Mestry Venkata Bhovi. Accordingly, this issue is answered holding that the plaintiffs and defendant NO.1 to 8, 15 to 22 are members of the family. Accordingly, additional issue No.1 framed on 23.02.2023 is answered in the Affi rmative.
23) Issue No.5 to 12 and additional issue No.2 framed on 23.02.2023 and additional issue No.1 and 2 framed on 07.08.2023:- These issues are framed with respect to contentions taken by plaintiffs that Sale Deeds dated 08.11.1965 and 05.05.1975 executed by Rama Bhovi and his sons in favour of defendant No.9, Sale Deed dated 05.07.1996 executed by defendant No.9 in favour of defendant No.10, Sale Deed dated 13.10.1997 executed by defendant No.10 in favour of defendant No.12, Sale Deed dated 10.01.1996 executed by 2 nd defendant in favour of defendant NO.11, Sale Deed dated 67 O.S.No.8334 of 2003 01.06.1999 executed by defendant No.11 in favour of defendant No.12, Sale Deed executed by Venkatamma W/o Late Ramaiah in favour of defendant No.13. Sale Deed dated 21.03.2000 executed by defendant No.13 in favour of defendant No.14 and Sale Deed dated 21.04.2004 and 24.04.2004 executed by defendant No.14 in favour of defendant No.23 is not binding upon the share of the plaintiffs. Hence they are considered together in order to avoid repetition.
24) It is not in dispute that property was granted to Venkata Bhovi by Government. Ex.P.29 clearly shows that the property was granted to Mestry Venkata Bhovi in the year 1932. Date of death of Venkata Bhovi is not mentioned. If the date of death of Venkata Bhovi is prior to 1956 then Ramaiah and Venkataswamy being only coparceners will succeed the property by way of survivorship. Under provisions of Hindu Law, 68 O.S.No.8334 of 2003 eldest male member is considered as Karta and as such after death of Venkata Bhovi, his eldest son Ramaiah being eldest member of the family is Karta. Plaintiffs have not challenged the Sale Deeds stating that the same is void as the Sale Deed is not supported by legal necessities or benefit of estate. Whatever it may be upon death of Venkata Bhovi, Ramaiah became the Karta of the family being eldest male member. The Karta holds significant powers in managing HUF property, but these powers are not absolute. They are bound by certain legal restrictions and ethical considerations. Under Hindu law, the Karta is expected to manage the property in the best interest of the family, with a focus on preserving and growing the family's wealth. Karta has the right to sell or alienate HUF property even without the consent of other family members, provided that the sale is made for a legal necessity or for the benefit of the family. A 69 O.S.No.8334 of 2003 Karta can sell HUF property even if a minor coparcener has an interest in the property. The Karta's actions are presumed to be in the best interest of the family unless proven otherwise. So it is clear that Karta / Manager of family can alienate the joint family properties for legal necessities and for benefit of estate which will also binding on other coparceners. The burden is cast upon the purchaser to show that the properties are sold for legal necessities and family benefits.
25) Now point for consideration is what is legal necessities. According to Vijnaneshwara, a joint family property can be alienated for 3 reasons:
Apatkale : It refers to a situation where the whole family or one of its members meets with an emergency, in regards to their property. The nature of this transaction is meant for combating the danger, or an attempt in avoiding the calamity for which money is needed. When it refers to the property, it indicates the transfer as being necessary for its protection, or conservation, and for which immediate action is 70 O.S.No.8334 of 2003 to be taken. This is not a mere profitable transaction, but a transfer which if not affected causes loss to the family, to this property, or any other property owned by the family.
Kutumbarthe : This means "for the benefit of the Kutumb". Kutumb refers to family members. Therefore, this involves the alienation of a property for the sake of subsistence of a family member or relative. For eg: food, clothing, housing, education. Medical expenses, etc. Dharmarthe: For performing indispensable and pious duties. Usually for religious and charitable purposes.
26) However, with time Vijnaneshwara's formulation has gone through a rapid transformation and modified pivotally into 2 aspects:
1. The power of alienation cannot be exercised by anyone but the Karta of the joint family; and
2. The joint family property can be alienated solely for the following three purposes:
(i) Legal necessity
(ii) Benefit of Estate
(iii)Indispensable Duties 71 O.S.No.8334 of 2003
27) The term "legal necessity" lacks any precise definition due to the impossibility to provide any such definition as the cases of legal necessity can be numerous and varying. Widely speaking, legal necessity will include all those things which are to be deemed necessary for the family members.
28) According to Mayne, it is now established that necessity need not be comprehended in the sense of what is absolutely indispensable but what, according to the notions of a Hindu family, would be regarded as proper and reasonable. Essentials for a valid transaction under legal necessity are:
• Purpose exists, i.e. a situation with respect to family members or their property which requires money.
• Such a requirement is lawful, i.e. it must not be for an immoral, illegal purpose.
• The family does not have monetary or alternative resources for dealing with the necessity, and 72 O.S.No.8334 of 2003 • The course of action taken by the Karta is such that a normally prudent person will take with respect to his property.
• However, while such alienation, the consideration for the sale of coparcenary property must not be inadequate.
29) Hon'ble Apex court in case of Kehar Singh v. Nachittar Kaur, (2018) 14 SCC 445 : while considering powers of father to alienate the property & legal necessities has observed as under :
20. Mulla in his classic work Hindu Law while dealing with the right of a father to alienate any ancestral property said in Article 254, which reads as under:
"Article 254
254. Alienation by father.-- A Hindu father as such has special powers of alienating coparcenary property, which no other coparcener has. In the exercise of these powers he may:
(1) make a gift of ancestral movable property to the extent mentioned in Article 223, and even of ancestral immovable property to the extent mentioned in Article 224;73 O.S.No.8334 of 2003
(2) sell or mortgage ancestral property, whether movable or immovable, including the interest of his sons, grandsons and great-
grandsons therein, for the payment of his own debt, provided the debt was an antecedent debt, and was not incurred for immoral or illegal purposes (Article 294)."
21. What is legal necessity was also succinctly said by Mulla in Article 241, which reads as under:
"Article 241
241. What is legal necessity.--The following have been held to be family necessities within the meaning of Article 240:
(a) payment of government revenue and of debts which are payable out of the family property;
(b) maintenance of coparceners and of the members of their families;
(c) marriage expenses of male
coparceners, and of the daughters of
coparceners;
(d) performance of the necessary
funeral or family ceremonies;
74 O.S.No.8334 of 2003
(e) costs of necessary litigation in
recovering or preserving the estate;
(f) costs of defending the head of the joint family or any other member against a serious criminal charge;
(g) payment of debts incurred for family business or other necessary purpose. In the case of a manager other than a father, it is not enough to show merely that the debt is a pre-existing debt;
The above are not the only indices for concluding as to whether the alienation was indeed for legal necessity, nor can the enumeration of criterion for establishing legal necessity be copious or even predictable. It must therefore depend on the facts of each case. When, therefore, property is sold in order to fulfil tax obligations incurred by a family business, such alienation can be classified as constituting legal necessity."
(See Hindu Law by Mulla "22nd Edition")
30) Hon'ble Apex court in the recent decision reported in AIR 2022 SC 65 has reiterated above proposition of law. Keeping above settled 75 O.S.No.8334 of 2003 principle I have perused oral & documentary evidence, to know whether properties are alienated for legal necessities or for benefit of estate.
31) It is here necessary to note the recitals of the Sale Deeds through which properties are sold to defendant No.9 by Rama Bhovi. Sale Deed dated 08.11.1965 is produced and marked at Ex.P.2. It is mentioned in the said Sale Deed that Rama Bhovi is selling the property for the purpose of repayment of loan and for purchase of Ox. The property is sold for ₹.200/-. Likewise, in the Sale Deed dated 05.05.1975 Rama Bhovi, his sons Peddanna and Venkataswamy have sold 00-20-00 of land in Sy.No.44 for ₹.1,000/- for their legal necessities and for to meet marriage expenses of Venkataswamy.
76 O.S.No.8334 of 2003
32) The repayment of loan obtained for maintenance of family and to meet the marriage expenses of members of the family are considered as legal necessities. Now question for consideration is whether recitals in the Sale Deed can be considered to say that the sale is supported by legal necessities or benefit of estate in the absence of specific contentions taken by the plaintiffs that sale is not for legal necessities, whether defendant, purchaser are required to prove the legal necessities or not.
33) The recitals of the sale deed places important to show that there exist a legal necessities. But recital by themselves is not suffi cient to prove the legal necessities. Hon'ble Apex court in the case of Rani v. Santa Bala Debnath, (1970) 3 SCC 722 while considering evidentiary value of recital has observed as under 77 O.S.No.8334 of 2003
11. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered inter. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession.
34) So it is clear from the above decision that recitals coupled with other oral evidence can show that there exist legal necessities. The sale transaction has taken place in the year 1965, the property was sold in favour of defendant No.9, thereafter the property is sold in favour of defendant No.10 in the year 1997. 78 O.S.No.8334 of 2003 Defendant No.10 has sold the property to defendant No.12, defendant No.12 in-term exchanged property to with defendant No.24 and defendant No.14 in-term sold the property in favour of defendant No.23. The property has been sold for more than 3 to 4 times. When evidence is led in this case, more than 50 years have elapsed after first sale i.e., of 1965. Therefore, after lapse of more than 40-50 years, purchaser cannot be asked to prove by oral evidence that Sale Deed which was executed in the year 1965 and 1975 is supported by legal necessities. In the said circumstance, court can rely upon the recitals of the Sale Deeds which are mentioned at the undisputed time. That apart, the evidence on record i.e., evidence of PW.2 clearly shows that Ramaiah had maintained the family and also performed the marriages of female members. The plaintiffs cannot say that if property is sold for marriage of son of Rama 79 O.S.No.8334 of 2003 Bhovi it will not bind on his brother Venkataswamy @ Myakalappa. The actions of karta will bind upon the coparceners who have not executed the Sale Deed. As per recitals property is sold for repayment of debt and also for performance of marriage, hence sale is for legal necessities. Therefore, in my considered view the Sale Deeds executed by Rama Bhovi is supported by consideration & is for legal necessities and benefit if estate and as such, it cannot be held that same is not binding upon the shares of Venkataswamy @ Myakalappa. Accordingly, I hold that the Sale Deed dated 08.11.1965 and 05.05.1975 are binding upon the members of the family of plaintiffs and defendant No.1 to 8, 15 to 22.
35) Defendant No.9 who is the purchaser under two different Sale Deeds has acquired right, title and interest over 1 acre of land in suit Sy.No.44. Defendant 80 O.S.No.8334 of 2003 No.9 has sold 1 acre of land in favour of defendant No.10 as per Sale Deed dated 05.07.1996 - Ex.D.7. There is no dispute between defendant No.9 and 10 regarding sale of 1 acre. Thereafter, defendant No.10 being the owner of 1 acre has sold the same in favour of defendant No.12 as per Sale Deed dated 13.10.1997. Defendant No.12 got exchanged the property with defendant No.24 as per exchange deed dated 05.03.2001 and has sold the said 1 acre in favour of defendant No.23. As such, defendant No.23 has acquired right, title and interest to the extent of 1 acre in the suit property. Therefore, in my considered view when sale deed dated 08.11.1965 and 05.05.1975 are binding on the plaintiffs & defendants being executed by Rama Bhovi as Karta of the family, subsequent sale deed is also binding on the plaintiffs.
81 O.S.No.8334 of 2003
36) Regarding remaining 39 guntas of land in Sy.No.44 there are two Sale Deeds executed by family members. Venkatamma W/o Ramaiah Bhovi has executed Sale Deed dated 30.03.1994 in favour of defendant No.13 in respect of 00-20-00 and the same was sold by defendant No.13 in favour of defendant No.14 as per Sale Deed dated 21.03.2000. Likewise, 2 nd defendant herein i.e., Kenchamma W/o Peddanna has executed Sale Deed in respect of 00-19-00 of land in favour of defendant No.11 as per Sale Deed dated 10.01.1996 and defendant No.11 has sold the property in favour of 12 th defendant on 01.06.1999. Thereafter, 12 th defendant has exchanged the property with defendant No.24 on 05.03.2001. So, the defendant No.24 has acquired 00-19-00 of land in addition to 1 acre which he got exchanged from defendant No.12. Now, the question for consideration is whether Venkatamma W/o Ramaiah had right to sell the 82 O.S.No.8334 of 2003 property in favour of defendant No.13. It is important to note here that name of Venkatamma W/o Rama Bhovi came to be entered in the RTC pertaining to suit schedule Sy.No.44 after death of Ramaiah. The mutation entry is marked at Ex.D.35. It is clear from mutation entry 2/93-94 marked at Ex.D.35 that Rama Bhovi died and it is stated in the said entry that Mestry Venkata Bhovi was the original owner and he died about 40 years back leaving behind Rama Bhovi and Venkataswamy. It is stated in the entry that when Rama Bhovi and Venkataswamy were alive, it was agreed that Sy.No.44 area 1 acre 39 gunta is belonging to Rama Bhovi and Sy.No.8/2 area 3 acre 4 gunta belonging to Venkataswamy. It is further stated in Ex- D35 that during the lifetime of Rama Bhovi only property was orally partitioned and 20 gunta was given to Venkatamma. 20 guntas was given to Venkatesh, 20 gunta was given to Venkataswamy and 19 gunta 83 O.S.No.8334 of 2003 was given to Kenchamma. It is also stated in the said entry that Venkatesh and Venkataswamy have already sold 1 acre of land given to them and out of remaining 39 gunta an area of 00-20-00 is ordered to be entered in the name of Venkatamma and 19 gunta was ordered to be entered in the name of Kenchamma. Accordingly, 20 gunta is standing in the name of Venkatamma and 19 gunta was standing in the name of Kenchamma. As per Ex.D.35 it is clearly mentioned that in the year 1993-94 only the name of defendant No.2 Kenchamma and deceased Venkatamma has been entered and till this date the plaintiffs have not challenged the mutation entry wherein it has been clearly stated that property was owned by branch of Rama Bhovi. Even in this case also there is no challenge regarding the entries made as per Ex.D.35. Of course, revenue entries cannot be considered as a title document but, by getting entered the name of Venkatamma and 84 O.S.No.8334 of 2003 Kenchamma, the branch of Rama Bhovi has denied the rights of Myakalappa @ Venkataswamy and till filing of the suit or thereafter also said entry is not challenged. One cannot say that members of the branch of Myakalappa are not vigilant. The plaintiff No.1, plaintiff No.5 have executed a Sale Deeds in the year 1996 as per Ex.D.36 in respect of Sy.No.8/2 area 01-12-00. This clearly shows that they know about the revenue entries, the revenue proceedings since they got entered their name in Sy.No.8/2 and dealt with the property. So, one cannot hold that the branch of Myakalappa was not knowing anything about the revenue proceedings. After death of Myakalappa, his heirs have not tried to get their name entered in RTC nor after death of Krishnappa, the plaintiffs and defendants have got entered their names in the RTC pertaining to the suit property. If any vigilant person considered sees revenue records then he can easily 85 O.S.No.8334 of 2003 come to the conclusion that property was belonging to Rama Bhovi. Therefore, the parties have transacted with Rama Bhovi and his legal representatives. The Sale Deed executed by Venkatamma & Kenchamma are not challenged till filing of the suit nor entries made in pursuant to the Sale Deed dated 10.01.1996 is challenged by plaintiffs for a period of almost 7 to 10 years. As per Ex.D.35 it is clear that the property is partitioned and Sy.No.44 belong to branch of Rama Bhovi and they have dealt with the same. Therefore, in my considered view the Sale Deeds executed by Venkatamma and Kenchamma are legal & valid and also binding upon the plaintiffs as they have failed to challenge the same within the prescribed period of limitation.
37) The defendant No.14 has purchased the property from defendant No.13 who had purchased the 86 O.S.No.8334 of 2003 property from Venkatamma and defendant No.12 has purchased the property from defendant No.11 who has purchased the property from Kenchamma. Thereafter, defendant No.12 got exchanged the property with defendant No.24 and as such, defendant No.24 has acquired right, title and interest in respect of suit property. Defendant No.14 who has purchased the 20 gunta from Venkatamma as per Sale Deed dated 30.03.1994 has transferred the same in favour of defendant No.23 under Sale Deed dated 21.04.2004. Likewise, defendant No.24 who had become the owner of 01-19-00 has transferred the same in favour of defendant No.23 as per Sale Deed dated 24.04.2004. Therefore, the defendant No.23 has become the absolute owner of 01-39-00 land in Sy.No.44 of schedule property.
87 O.S.No.8334 of 2003
38) The next contention raised by plaintiffs is violation of provisions of Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act. The plaintiffs and defendant No.16 & others who have claimed share have also contended that there is Non-alienation clause in the grant and as such alienation is not sustainable & void. I have perused the Ex-P65 order passed by Deputy Commissioner in KSCST(A)/134-2011-12 dated 27.07.2016. It is observed in Ex-P65 land is granted as per Govt. Order dated 12.09.1929 which was 'no rule period' and therefore alienation is not hit by PTCL Act. The parties have not challenged the order passed by Deputy Commissioner and earlier also Hon'ble High Court has remanded the matter & has not accepted contention that property cannot be alienated for-ever. Hence it cannot be held that alienation is against provisions of Karnataka Scheduled Caste and 88 O.S.No.8334 of 2003 Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act and land is required to restored.
39) Recently Hon'ble High Court in the case of M Manjula & Others AND Deputy Commissioner & Others 2024 LiveLaw (Kar) 526 by considering the provisions of Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) (Amendment) Act, 2023 has observed as under :
"In light of the above discussion and the position of law that would emerge, in the facts of the case, the restoration of the land cannot be permitted after 12 years. The question of latches would come into play. 12 years having been passed, it would be highly unreasonable, unjust and inequitable, as well as against law to grant any relief to the original grantee-the petitioner-appellant, permitting restoration of the land and to treat the transfer of the land taken place long back to be null and void ."
40) Hon'ble High Court has noted that under Section 5 of the Act there is no prescription of time 89 O.S.No.8334 of 2003 limit for resumption or restitution of the land which is null and void under Section 4(1) of the Act. However, observed that in the case of Nekkanti Rama Lakshmi vs. State of Karnataka, it has held that the application made for restitution of the land after delay of 25 years, was not liable to be acceptable in law, as it was after unreasonable delay. In the above decision, Hon'ble High Court has also referred decision rendered in Smt. Gouramma alias Gangamma vs. Deputy Commissioner, Haveri, wherein it is held that a court would be "justified in denying the relief of setting aside the transfer and restoring the land to the applicant when he has approached the court after unreasonable delay and his approaching the court is marred by latches". In the present case also similar contentions are made stating transfer is void. As grant is made during 'no rule period', and legal heirs of original grantees have approached the court after 38 years of 90 O.S.No.8334 of 2003 alienation, the application for restoration was rejected in the year 1985 only, this court cannot hold that sale deed are void. Therefore, in my considered opinion Sale deeds which are under challenge cannot be held as void.
41) Accordingly, Issue No.5 to 12 and additional issue No.2 framed on 23.02.2023 and additional issue No.1 and 2 framed on 07.08.2023 in the 'Negative'.
42) Additional Issue No.1 framed on 11.12.2019:- This issue is framed with respect to period of limitation. The Point for consideration is which is applicable Article under Limitation Act & what is starting point of limitation. The Limitation Act, 1963 prescribes a time-limit for the institution of all suits, appeals, and applications. Section 2(j) defines the 91 O.S.No.8334 of 2003 expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.
43) Learned counsel for plaintiff contended that last sale deed is executed by 2 nd defendant herein i.e., Kenchamma W/o Peddanna in respect of 00-19-00 of land in favour of defendant No.11 is dated 10.01.1996 and as such suit is within the period of limitation as it is filed 12 years from the date of execution of last Sale deed as per Article 109 and 110 of Limitation Act. Per contra learned counsel for defendant No.23 contended that first sale deed is executed in the year 1965 and 92 O.S.No.8334 of 2003 suit is not filed within three years as per Article 58 of Limitation Act, therefore suit is barred by limitation.
44) To appreciate the contention, Articles 58, 109 and 110 of the Limitation Act are reproduced here- under for easy reference:
Description Period of Time from
of suit limitation which period
begins to run
58 To obtain any Three When the right
other years. to sue first
declaration. accrues.
109 By a Hindu Twelve When the alienee
governed by years takes possession
Mitakshara law of the property.
to set aside his
father s
alienation of
ancestral
property.
110 By a person Twelve When the
excluded from years exclusion
a joint family becomes known
property to to the plaintiff
enforce a right
to share
therein.
93 O.S.No.8334 of 2003
45) Article 109 relates to a suit filed by Hindu governed under Mitakshara law to set-aside the father's alienation of ancestral property . Limitation is stated to be 12 years from the time when the alienee takes possession of the property. Article 110 relates to a suit by a person who excluded from a joint family to enforce a right to a share therein & limitation period of 12 years calculated from the date on which the exclusion becomes known to the plaintiff.
46) A perusal of Article 58 indicates that the period of limitation to obtain a declaration is a period of three years from the date on which the right to sue first accrued. This would be applicable only insofar as the sale deeds which are not covered under Art.109 &
110. 94 O.S.No.8334 of 2003
47) Descendants of Rama Bhovi have not challenged the Sale deed and hence Art.109 is not applicable as alienee under Sale deed dated 08.11.1965, 05.05.1975, 30.03.1994 & 10.01.1996 are not father of plaintiffs. Apart from this the plaintiffs have not pleaded that they have been excluded from joint family property and as such Art.110 of Limitation Act is also not applicable to case on hand. Therefore Art.58 of Limitation Act is applicable to the case on hand where alienation made by Karta who is not father is challenged by the plaintiff. Hence period of limitation is three years and Time from which period begins to run- When the right to sue 'first' accrues
48) In the case of Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366 Hon'ble Apex court has dealt how to consider multiple cause of action & successive violation and right to sue first 95 O.S.No.8334 of 2003 accrues under Article 58 & 59 of Limitation Act and observed as under:
27. In Khatri Hotels (P) Ltd. v. Union of India [Khatri Hotels (P) Ltd. v. Union of India, (2011) 9 SCC 126 : (2011) 4 SCC (Civ) 484] this Court held that the use of the word "first"
between the words "sue" and "accrued", would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued .
28. A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh [State of Punjab v. Gurdev Singh, (1991) 4 SCC 1 : 1991 SCC (L&S) 1082] held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words "right to sue" mean the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action 96 O.S.No.8334 of 2003 arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order 7 Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected.
49) From observation made by Hon'ble Apex court it is clear that period of limitation will begin to run from the date when first become known to him or right to sue first accrues and if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued .
50) In the present case Sale deeds are executed & registered on 08.11.1965, 05.05.1975, 30.03.1994 & 10.01.1996. Now question for consideration is Whether 97 O.S.No.8334 of 2003 registration of a sale deed in respect of alleged joint family property would amount to constructive notice to all members of the joint family. In the case of Metropoli Overseas Ltd. v. H.S. Deekshit, 2021 SCC OnLine Kar 15913 : ILR 2022 Kar 2231 Hon'ble High Court has observed that the purpose of registration of sale deed is to put to notice the members of the general public about a particular document having been registered and or a transaction having occurred. A registration of a document makes it a public document and such registration is also reflected in the Encumbrance Certificate relating to the said property, thereby indicating that there is an encumbrance created on the property. Constructive notice is a notice which treats a person who ought to have known a fact, as if he actually does know it. It is the knowledge which the Court imputes to a person upon a legal presumption so strong that it cannot be 98 O.S.No.8334 of 2003 allowed to be rebutted, that knowledge must have been obtained by the person had he made all the relevant inquiries. It is further observed by Hon'ble High Court that the registration of a document before the jurisdictional Sub-Registrar will constitute 'constructive notice of the same' so long as the details relating thereto have been entered in the concerned register and 'the period of limitation would have to commence from the date of such registration'. Though above decision in respect of rejection of plaint as barred by limitation is set aside by Hon'ble Apex court, the law laid down in respect of constructive notice, applicable Article & limitation is not set aside or over-ruled. Hence the period of limitation would have to commence from the date of registration of first sale deed which is under challenged. 99 O.S.No.8334 of 2003
51) In the case of Shri Mukund Bhavan Trust v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle, 2024 SCC OnLine SC 3844, Hon'ble Apex Court has held that when a document is a registered document it is to be held that there is a constructive notice under Section 3 of Transfer of Property Act. The Hon'ble Apex Court by referring its earlier decision reported in (2007) 7 SCC 702 in the case of Dilboo V/s. Dhanraji has held that Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge.
100 O.S.No.8334 of 2003
52) Recently in the case of SMT. UMA DEVI AND ORS. VERSUS SRI. ANAND KUMAR AND ORS. reported in 2025 LiveLaw (SC) 382 Noting that the limitation period begins from the date of registration of the sale deed, which constitutes constructive notice, has overturned the Hon'ble High Court's decision upholding a decree in a partition suit filed 45 years after the sale deed was registered. So it is clear from the decisions referred above that date of registration is considered as constructive notice of transaction.
53) As discussed above in the present case Art.58 of Limitation Act is applicable and period of limitation 3 years from the date when right to sue 'first' accrues. 1 st two Sale Deeds dated 08.11.1965 and 05.05.1975 were executed by Rama Bhovi. During the life-time of Myakalappa or after death of Myakalappa his son Krishnappa have not challenged these two Sale 101 O.S.No.8334 of 2003 Deeds executed in favour of defendant No.9. If Myakalappa was excluded from the joint family by the act of Rama Bhovi then also as per Article 110 Myakalappa @ Venkataswamy would have challenged the same within 12 years. That apart, if Rama Bhovi as a coparcener has sold the property then the person who is not signatory to the said sale deeds would have challenged the same within 3 years as stated in Article 58 of Limitation Act. As discussed above under provisions of Transfer of Property Act, the registration is a notice and the mutation entries are also effected as per Sale Deed dated 05.05.1975 and name of defendant No.9 was also entered in the RTC. Till 2003 these two Sale Deeds executed by Rama Bhovi as a karta or a coparcener is not challenged within 3 years from the date of execution of Sale Deeds. This court cannot believe that for a period of 39 years the branch of Myakalappa was not at all knowing about the Sale 102 O.S.No.8334 of 2003 Deeds executed by Rama Bhovi even if name of purchaser is entered in the Revenue Records. The branch of plaintiffs have dealt with another property Sy.No.8/2 and hence, they had knowledge about the entries to be made in the record of right. Why after death of Myakalappa, his son Krishnappa has not made any efforts to get his name entered is not explained nor any explanation is given to the effect that why Sale Deed was not challenged by branch of Myakalappa @ Venkataswamy. As registration of document is a notice and name of purchaser is entered in the year 1975, the suit filed challenging the Sale Deeds dated 08.11.1965 and 05.05.1975 is barred by limitation.
54) Venkatamma W/o Ramaiah @ Rama Bhovi has executed Sale Deed in respect of 20 guntas of land on 30.03.1994, name of purchaser is also entered in the RTC pertaining to the suit property. So, the 103 O.S.No.8334 of 2003 plaintiffs ought to have challenged the same within 3 years from the date of execution of Sale Deeds or entry of name of purchasers in the RTC. Just saying that, the purchaser was never in possession of the property cannot be considered at all. Likewise last sale deed dated 10.1.1996 is also not challenged within 3 years & as such relief of declaration sought is barred by limitation.
55) Therefore, in my considered view the plaintiffs are guilty of not challenging the Sale Deeds within 3 years from the date of execution, cannot reignite their rights after sleeping on them for 35 years and as such, suit is barred under Article 58 of Limitation Act. Therefore, this issue is answered in favour of defendant No.23 against the plaintiffs. 104 O.S.No.8334 of 2003
56) Additional issue No.2 framed on 11.12.2019: This issue is framed in respect of
contention that suit is bad for non-joinder of necessary parties. All the female members of family i.e., daughters of Venkata Bhovi, daughters of Ramaiah and Myakalappa have been impleaded as parties in this suit. The purchasers of the suit property are also made as parties to this suit. Therefore, the question of suit being bad for non-joinder of necessary parties does not arise for consideration. Accordingly, this issue is answered in the Negative.
57) Issue Nos.3 and 4:- These issues are framed with respect to contentions taken by plaintiffs that they were in lawful possession of the suit property as on the date of filing of the suit and there is an interference by purchasers. I have perused the oral evidence and pleadings in this regard. Plaintiffs have 105 O.S.No.8334 of 2003 pleaded that though sale transaction has taken place they were in possession of the suit property. However, revenue records speaks otherwise. Revenue records produced by the plaintiffs themselves shows that N.M. Raju -def.No.9 was in possession of the property as his name was entered in respect of 00-20-00 of land earlier. Thereafter, name of Venkatamma and Kenchamma are entered in the year 1993-94 to the extent of 00-20-00 and 00-19-00 whereas N.M. Raju was shown in possession of 01-04-00. These aspect are clear from Ex.P.9. Thereafter, name of T. Narayana is entered in respect of 00-20-00 of land. The Sale Deeds produced by plaintiffs themselves shows that possession of the property was handed over to the purchasers and their name has been entered in the RTC pertaining to suit property. The RTC pertaining to 2002-03 shows name of Veeragandam Brahmaiah S/o Venkataswamy-def No.24 to the extent of 00-39-00 and 106 O.S.No.8334 of 2003 Venkatesh Reddy S/o Shankara Shetty to the extent of 00-20-00 Likewise, Ex.P.22 shows that 20 guntas was standing in the name of Veeragandam Brahmaiah- defendant No.24. So, it is clear that neither the plaintiffs nor the branch of Rama Bhovi were in possession of the suit property as on the date of filing of the suit.
58) That apart, photographs produced by the defendant No.23 marked at Ex.D.19 to D.24 clearly shows that buildings have been construct in the schedule property. The buildings have been constructed in the schedule property as per the permission granted by Hon'ble High Court during the pendency of RFA. This clearly shows that Hon'ble High Court has also found that defendant No.23 is in possession of the property as per revenue records and RTC. Apart from this plaintiffs have filed application to 107 O.S.No.8334 of 2003 restrain the def.No.23 from alienating or lease out the property and have also prayed for deposit rent. The affi davit filed in support of application shows that def.No.23 is in possession of property and he has constructed multi-storied buildings.
59) It is necessary to mention the PTCL proceedings before revenue authorities. It is clear that the descendants of Rama Bhovi have sought for restoration of land as the sale transaction was against the provisions of PTCL Act. However, the authorities have found that there is no violation of PTCL Act and as such, have rejected the applications which has attained finality. In the year 1985 also Kenchamma filed application for restoration which shows that in the year 1985 only possession was not with the family. Therefore, in my considered opinion plaintiffs have failed to show that they were in possession of the suit 108 O.S.No.8334 of 2003 schedule property as on the date of filing of the suit. Once plaintiffs are not in possession of the property question of interference by the defendants does not arise for consideration. Therefore, in my considered opinion issue No.3 and 4 are required to be answered against the plaintiffs and in the 'Negative'.
60) Issue No.3 framed on 07.08.2023:- This issue is framed with respect to contention taken by defendant No.23 that he is the bonafide purchaser of the suit schedule property. The defendant NO.23 has purchased 01-19-00 in suit schedule property from defendant No.24 and 00-20-00 in suit schedule property from defendant No.14 as per Sale Deed dated 24.04.2004 and 21.04.2004. In the case of G.T. Girish Vs Y. Subba Raju (D) 2022 LiveLaw (SC) 61 Hon'ble Apex court has observed as under :
109 O.S.No.8334 of 2003
93. It is further important to notice that when a transaction is done, lis pendens or pending a case, the transaction is, as such, not annulled. The transaction is, in other words, not invalidated. In fact, as between the transferor and the transferee, it does not lie in the mouth of the transferor to set up the plea of lis pendens to defeat the disposition of property. E qually, the Principle of Lis Pendens is, not to be confounded with the aspect of good faith or bonafides. In other words, the transferee or the beneficiary of the property, which is disposed of by a party, cannot set up the case that he acted bonafide or in good faith . This enables the court and the parties in a Suit or a proceeding, which otherwise is in conformity with requirements of Section 52, to proceed in the matter on the basis that the adjudication by the court, will not, in any way, be subverted or delayed, when the day of final reckoning arrives
61) During the pendency of this suit, property was purchased by defendant No.23. When property is 110 O.S.No.8334 of 2003 purchased during the pendency of the suit, as observed by Hon'ble Apex Court purchaser cannot plead that he acted in good faith or bonafide and as such this court cannot hold that the defendant No.23 is a bonafide purchaser. However, defendant No.23 has purchased the property for a valuable consideration and he has invested the amount for development of the schedule property. Cessna Business Park has come up in the schedule property and in the property abating to the suit property. Multi storage buildings have been constructed by defendant No.23 and even though defendant No.23 has made a huge investment, all these investments are during the pendency of the suit and knowing full well about the pendency of the suit.
Therefore, at any stretch of imagination this court cannot hold that defendant No.23 is a bonafide purchaser. Accordingly, this issue is answered in the Negative.
111 O.S.No.8334 of 2003
62) Issue No.1 and 2:- These issues are framed with respect to entitlement of relief and share of the plaintiffs. While answering issue No.5 to 12 and additional issue No.2 framed on 23.02.2023 and additional issue No.1 and 2 framed on 07.08.2023, I have held that Sale Deeds are binding upon the plaintiffs and while answering additional issue No.1 framed on 11.12.2019, I have held that claim made by the plaintiffs is barred by limitation. Therefore, plaintiffs are not entitled for the relief claimed.
63) Defendant No.16 being grand-daughter of original propositus Mestry Venkata Bhovi and daughter of Rama Bhovi has sought for share. Proviso to Sec.6 of Hindu succession Act makes it clear that sub-section 6(1) shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 112 O.S.No.8334 of 2003 the 20th day of December, 2004. In this case, all the alienations are prior to 20.12.2004 and as such, the contention of the defendant No.16 that the Sale Deeds are not binding upon her and she is having share cannot be accepted. Therefore, in my considered view the daughters of Venkata Bhovi or their legal heirs can claim that Sale Deeds are not binding upon them as the Sale Deeds are prior to cut of date 20.12.2004. That apart, they have also not challenged the Sale Deeds within the period of limitation and as such, they have lost their right to claim share in the property. Hence, in my considered view the plaintiffs or defendant No.1 to 8, 15 to 22 are not having any share in the schedule property. Accordingly, issue No.1 and 2 are answered in the Negative.
64) Issue No.14:- In view of the discussions and conclusion arrived at above issues, the suit of the 113 O.S.No.8334 of 2003 plaintiffs is liable to be dismissed. Hence, I proceed to pass the following:-
ORDER The suit of the plaintiffs 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 17 th day of April, 2025.) (BHAT MANJUNATH NARAYAN) XLIII Addl. City Civil & Sessions Judge, Bengaluru ANNEXURE I. List of witnesses examined on behalf of plaintiff:-
P.W.1 Srinivasa
P.W.2 M. Chinnaswamy
II. List of witnesses examined on behalf of
defendants:-
D.W.1 Chinnakka
D.W.2 T. Arvind Pai
114 O.S.No.8334 of 2003
III. List of documents exhibited on behalf of plaintiff:-
Ex.P.1 Genealogy tree
Ex.P.2 C/c of Sale Deed dated 08.11.1965
Ex.P.3 C/c of Sale Deed dated 05.05.1975
Ex.P.4 C/c of Sale Deed dated 05.07.1996
Ex.P.5 C/c of Grant order dated 16.05.1931
Ex.P.6 to RTC extracts
10
Ex.P.11 Mutation extract
Ex.P.12 C/c of survey sketch
Ex.P.13 C/c of saguvali chit
Ex.P.14 to Certified copies of sale deeds 17 Ex.P.18 to RTC extracts 22 Ex.P.23 MR Extract Ex.P.24 Certified copy of Order Ex.P.25 Certified copy of caste certificate Ex.P.26 Certified copy of sale deed dtd:21.04.2004 Ex.P.27 Certified copy of deed of exchange dated 05.03.2001 Ex.P.28 Certified copy of sale deed dtd:24.04.2004 115 O.S.No.8334 of 2003 Ex.P.29 Offi cial memorandum Ex.P.30 & ECs 1 Ex.P.32 Index of land Ex.P.33 to RTCs 52 Ex.P.53 C/c of MR.No.88/2003-04 Ex.P.54 C/c of Sale Deed dated 30.03.1994 Ex.P.55 Copy of memo in RFA NO.454 of 2014 Ex.P.56 Order of RFA NO.454/2014 Ex.P.57 Order sheet of RFA NO.765/2014 Ex.P.58 Memorandum of agreement evidence in creation of equitable mortgage dated 17.08.2017 Ex.P.59 Supplementary memorandum of agreement evidencing constructive delivery of title deed dated 14.11.2018 Ex.P.60 Offi ce notice dated 20.12.2019 Ex.P.61 3 receipts Ex.P.62 Order of No.SC.ST(A) 7/2003-04 116 O.S.No.8334 of 2003 Ex.P.63 Order of Writ Petition No.13892 of 2007 (SC-ST) C/w Writ Petition No.14756 of 2004(SC-ST) Ex.P.64 Memorandum dated 28.01.2019 Ex.P.65 Order of No.KSCST(A) 134/2011-12 Ex.P.66 Endorsement dated 25.07.2023 Ex.P.67 to 6 photographs 72 Ex.P.73 CD Ex.P.74 Medical certificate IV List of documents exhibited on behalf of defendants:
Ex.D.1 Genealogy tree
Ex.D.2 Authorisation to Mr. T. Arvinda Pai
Ex.D.3 C/c of Sale Deed dated 08.11.1965
Ex.D.4 C/c of Sale Deed dated 05.05.1975
Ex.D.5 C/c of Sale Deed dated 30.03.1994
Ex.D.6 C/c of Sale Deed dated 10.01.1996
Ex.D.7 C/c of Sale Deed dated 05.07.1996
Ex.D.8 C/c of Sale Deed dated 13.10.1997
Ex.D.9 C/c of Sale Deed dated 01.06.1999
Ex.D.10 C/c of Sale Deed dated 21.03.2000
Ex.D.11 C/c of Sale Deed dated 21.04.2004
Ex.D.12 C/c of Sale Deed dated 24.04.2004
117 O.S.No.8334 of 2003
Ex.D.13 C/c of Exchange Deed dated
05.03.2001
Ex.D.14 Order of KSCST 134/2011-12
Ex.D.15 to Property tax paid receipt 18 Ex.D.19 to 6 photographs 24 Ex.D.25 CD Ex.D.26 & Occupancy certificate 27 Ex.D.28 Parvanigi pathra Ex.D.29 to RTCs 34 Ex.D.35 MR.No.2/93-94 Ex.D.36 & Sale Deed dated 06.02.1996 37 Ex.D.38 MR.No.37/95-96 Ex.D.39 & 2 Memorandum 40 (BHAT MANJUNATH NARAYAN) XLIII Addl. City Civil & Sessions Judge, Bengaluru 118 O.S.No.8334 of 2003