Bangalore District Court
O.S./3076/2005 on 19 August, 2021
/1/ O.S.No.3076/2005
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE,
[CCH-40], BANGALORE CITY.
Dated on this the 19th day of August, 2021
-: PRESENT :-
Sri.Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO.3076/2005
Plaintiffs :-
1. Smt.H.S.Pushpa, 40 Years, D/o. Late
H.M.Siddappa, W/o. G. Krishnappa,
R/o.No.531, Sri Krishna Nilaya,
Anandagiri Extn., III Main, Police
Station Road, Hebbala,
Bengaluru - 560 024.
2. Smt.H.S.Bhagya, 36 Years, D/o. Late
H.M.Siddappa, W/o. Mariyappa.S.T.
3. H.S. Mithuna S/o. Late H. S. Suresh,
19 Years.
Both are R/o.No.366, II Main Road, II
Cross, Hebbal Farm Post, Hebbal,
Bengaluru -560 024.
[By Sri.M.V, Advocate]
/ VERSUS /
Defendants :-
1. Lakshmamma W/o.Late H.M.Siddanna,
63 Years.
/2/ O.S.No.3076/2005
2. H.S.Nagaraj - Dead.
3. Varalakshmi D/o. Late H.S. Suresh,
39 Years.
4. H.S.Manohar S/o. Late H.M.Siddanna,
35 Years.
5. H.S.Venktesh S/o.Late H.M.Siddanna,
33 Years.
All are R/o.No.366, II Main Road, II
Cross, Hebbal Farm Post, Hebbal,
Bengaluru - 560024.
6. Satish Pai S/o. Late P.Narasimha Pai,
Major, R/o.No.85/1, K.H.Road,
Bengaluru - 560 027.
7. M.S.Mahadevaiah S/o. M.Shivanna,
Major, R/o.No.59, KMC, Mount Carmel
College, Vivekanagar, Bengaluru- 17.
[Sri.S.Nagaraj, advocate for D.1 & 4.
Sri.S.G.Lokesh, Advocate for D.5.
Sri.Y.N.Satyanarayana Rao, Adv. for D.6 & 7.
Defendant No.2 - Abated
Defendant No.3 - Ex-parte]
¯¯¯¯¯
Date of Institution of the
: 15.04.2005
suit
Suit for partition, separate
Nature of suit : possession and permanent
injunctions
/3/ O.S.No.3076/2005
Date of commencement of
: 18.11.2016
evidence
Date on which the
judgment is pronounced : 19.08.2021
Years Months Days
Duration taken for disposal :
16 04 04
JUDGMENT
This suit is filed by the plaintiffs against the defendants for the relief partition and separate possession of their legitimate share in the suit schedule property by metes and bounds, for the relief of permanent injunctions restraining the defendants No.6 and 7 from alienating or developing the suit schedule property and from obstructing the plaintiffs' peaceful possession and enjoyment and enjoyment of the suit schedule property.
2. The brief facts of the plaintiffs' case are that, :
Defendant No.1 is the mother of plaintiffs No.1, 2 and defendants No.2 to 5, grandmother of plaintiff /4/ O.S.No.3076/2005 No.3. Plaintiffs and defendants No.1 to 5 constitute the joint Hindu family. After the death of H.M.Siddanna, they are residing in the suit schedule property and are in joint possession. The property bearing Sy.No.108/1 measuring 20 guntas situated at Hebbal Village, Kasaba Hobli, Bangalore North Taluk is the joint family property of plaintiffs and defendants No.1 to 5. The defendant No.1 acquired the suit schedule property under a partition deed dated 16.3.1962. Defendant No.1 being the head of the family, is managing the entire family affairs. The defendant No.1 in collusion with other defendants illegally sold the suit schedule property under agreement and GPA executed in favour of defendant No.6. The defendant No.6 in turn sold the property to defendant No.7. Defendant No.7 is making hectic efforts to get the khatha transferred in his name and trying to dispossess the plaintiffs from the suit schedule property under the guise of purchase of the /5/ O.S.No.3076/2005 suit schedule property. At no point of time, the suit schedule property had been sold to defendant No.7.
Defendant No.1 alienated the suit schedule property behind the back of plaintiffs. Defendant No.1 has not parted with the proceeds of the sale of the agricultural products derived from the suit schedule property. The plaintiffs are in joint possession of the suit schedule property. In order to deprive the legitimate rights of the plaintiffs, the defendant No.1 alienated the suit schedule property in favour of defendant No.6. The defendants played fraud and have succeeded in alienating the suit schedule property. The plaintiffs have claimed their legitimate share on 4.4.2005. The defendants denied the legitimate claim of the plaintiffs. Hence, they prayed for decreeing the suit.
3. In response to the suit summons, defendants No.1, 2 and 4 to 7 appeared through their counsels. Defendants No.1, 2, 4 and 5 have filed common written /6/ O.S.No.3076/2005 statement. Defendant No.7 filed the written statement and defendant No.6 filed Memo stating that he adopts the written statement filed by defendant No.7. Though the suit summons duly served upon defendant No.3, she remained absent. Hence, defendant No.3 placed ex- parte on 21.2.2006.
4. That, during the pendency of the suit, the counsel for defendants filed Memo along with Death Certificate of defendant No.2 stating that defendant No.2 died on 6.7.2019. Though this Court has granted sufficient opportunities to the plaintiffs for bringing the legal heirs of defendant No.2, but they failed. Therefore, the suit against defendant No.2 has been dismissed as abated.
5. Defendants No.1, 2, 4 and 5 in their written statement admitted the relationship between themselves and plaintiffs. They further admitted that defendant No.1 is the head of the family and is /7/ O.S.No.3076/2005 managing the entire affairs of the joint family, but they contended that defendant No.1 alienated the suit schedule property for family legal necessity. There is no cause of action to file the present suit. Hence, they prayed for dismissal of suit.
6. Defendant No.7 denied the claim of the plaintiffs and further contended that suit schedule property is the self-acquired property of defendant No.1 and she has got every right to alienate the suit schedule property. The defendants No.1 to 5 for want of their family legal necessities agreed to sell the suit schedule property to defendant No.6, accordingly they have executed registered agreement to sell and GPA in favour of defendant No.6 on 22.4.1991. On the very same day, defendants No.1 to 5 also executed a registered special power of attorney in favour of one S.Raghunath in respect of suit schedule property. The defendants No.1 /8/ O.S.No.3076/2005 to 5 have also executed affidavit on 22.4.1991 confirming the execution of agreement and also GPA and special power of attorney. On the date of agreement itself the possession of the property has been delivered to defendant No.6. On the same day, the defendant No.6 paid entire sale consideration amount to defendants No.1 to 5. Subsequently, GPA holder and special power of attorney holder of defendants No.1 to 5 i.e., defendant No.6 alienated the suit schedule property to him on 28.4.1997 and have executed registered sale deed. On the date of sale deed itself the possession of the property has been delivered. Since 28.4.1997 he is in peaceful possession and enjoyment over the suit schedule property. He has filed an application for change of khatha. The said application is pending for consideration. He further contended that a portion of the land bearing Sy.No.108/1 has also been proposed for acquisition by the Government for widening the national /9/ O.S.No.3076/2005 high way. The plaintiffs are having knowledge about the GPA and special power of attorney, even then they filed the suit only with an intention to harass the defendant No.7. There is no cause of action to file the present suit. The plaintiffs are not at all in possession of the suit schedule property, hence, they ought to have valued the suit under Section 35(1) of Karnataka Court Fee and Suit Valuation Act. The suit of the plaintiffs is bad for mis- joinder and non-joinder of necessary parties. Hence, prayed for dismissal of suit.
7. On the basis of the pleadings and documents produced by both the parties, my predecessor in Office has framed following issues on 4.12.2007 :
(1) ದದವದ ಷಷಡಡಡಲಲ ಆಸಸಯಯ ವದದ ಮತಯಸ ಪಪತವದದಯರ ಅವಭಕಸ ಕಯಟಯಟಬದ ಆಸಸ ಎಟದಯ ವದದಯರಯ ರಯಜಯವದತಯ ಪಡಸಯತದಸರಷಯಯ ?
(2) ದದವದ ಷಷಡಡಡಲಲಆಸಸಯ ಬಗಷಗ ಪಪತವದದ ಪರವದಗ 1 ರಯಟದ 5 ನಷಯ ಪಪತವದದಯರಯ ದದ 22.4.1991 ರಟದಯ ಮದರದಟ ಮದಡಯವ ಸಟಬಟಧ ಒಪಪ ಕರದರಯ ನಷಡಯಟದದದ ಸದಮದನಡ / 10 / O.S.No.3076/2005 ಮಯಖದಸರನದಮ ಮತಯಸ ಪಪಮದಣ ಪತಪವನಯನ ಬರಷದಯಕಷಡಟಟದದದರಷಟದಯ 7 ನಷಯ ಪಪತವದದ ರಯಜಯವದತಯ ಪಡಸಯತದಸನಷಯಯ ?
(3) ದದವದ ಆಸಸಯ ಸಟಬಟಧ 6 ನಷಯ ಪಪತವದದಗಷ 1 ರಟದ 5 ನಷಯ ಪಪತವದದಯರ ಪರವದಗ ಸಟಪಪಣರ ಕಪಯದ ವತಸವನಯನ ಕಷಡಟಟದದದರಷಟದಯ 7 ನಷಯ ಪಪತವದದ ರಯಜಯವದತಯ ಪಡಸಯತದಸನಷಯಯ ?
(4) ದದವದ ಷಷಡಡಡಲಲ ಆಸಸಯ ಸಟಬಟಧ 6 ನಷಯ ಪಪತವದದಯಯ 7 ನಷಯ ಪಪತವದದಯನಯನ ಖರಯದದದರನಷಟದಯ ಹಷಸರಸ ನಷಯಮಸದದದರಷಟದಡ, ಅಟತಷಟಯಷಯಯ ದದ 28.4.1997 ರಟದಯ 1 ರಟದ 5 ನಷಯ ಪಪತವದದಯರಯ 7 ನಷಯ ಪಪತವದದ ಪರವದಗ ನಷಡಯಟದದಯತ ಕಪಯ ಪತಪವನಯನ ದದವದ ಷ,ಡಡಡಲಲ ಆಸಸಯ ಸಟಬಟಧ ಬರಷದಯಕಷಡಟಟಟತಷ 7 ನಷಯ ಪಪತವದದ ದದವದ ಷಷಡಡಡಲಲ ಸದಸಧನದನಯಭವದಲಲದದದನಷಟದಯ 7 ನಷಯಪಪತವದದ ರಯಜಯವದತಯ ಪಡಸಯತದಸನಷಯಯ ?
(5) ಈ ದದವಷ ಅನಗತಡ ಪಕಕಗದರರಟದ ಕಷಡಡದಷಟಯಷಯಯ? (6) ದದವದಲಲ ವದದಯರಯ ಕಷಯಳದ ಪರಹದರಕಷಕ ಅರರರಷಯ ? (7) ಯದವ ತಯಪರರ, ಯದವ ಡಕಪ ?
8. Plaintiff No.1 herself examined as P.W.1 and got marked the documents Exs.P.1 and P.2. In order to establish their defence, the defendant No.7 has been / 11 / O.S.No.3076/2005 examined as D.W.1 and documents got marked as Exs.D.1 to D.3. While cross-examining the witness the counsel for plaintiff confronted the certified copies of the special power of attorneys, agreements to sell and sale deeds and also certified copies of the evidence of D.W.2 and written statement filed in O.S.No.9574/2006. Witness admits the said documents. Accordingly they are marked as Exs.P.3 to P.10 and C/c of evidence of D.W.2 and plaint in O.S.No. 9574/2006 has been marked as Exs.D.9 and 10. Defendant No.5 has been examined D.W.2 and got marked the documents as Exs.D.4 to D.8
9. Heard the arguments.
10. My findings to the above issues are as follows:
Issue No.1 : In the negative.
Issue No.2 : In the affirmative.
Issue No.3 : In the affirmative.
Issue No.4 : In the affirmative.
Issue No.5 : In the affirmative.
/ 12 / O.S.No.3076/2005
Issue No.6 : In the negative.
Issue No.7 : As per final order, for the
following:
REASONS
11. Issue No.1 :- Plaintiffs have filed the suit
against the defendants for the relief of partition and separate possession of their 1/8th share in the suit schedule property and also for the relief of permanent injunctions.
12. The counsel for plaintiffs argued that the suit schedule property is the joint family property of plaintiffs and defendants No.1 to 5. The defendant No.5 acquired the suit schedule property under a partition deed dated 16.3.1962. Plaintiffs and defendant Nos. 1 to 5 are in joint possession and suit schedule property is the joint family property of plaintiffs and defendants No.1 to 5. They have got equal share in the suit schedule property. The defendant No.1 has no independent right to alienate the suit schedule property. The defendants colluded / 13 / O.S.No.3076/2005 with each other and have created GPA, special power of attorney and sale deeds. The said documents are not binding upon the plaintiffs. Hence, prayed for decreeing the suit.
13. Per contra, the counsel for defendants No.6 and 7 argued that the suit schedule property was the self-acquired property of defendant No.1. Defendants No.1 to 5 jointly executed GPA and agreement to sell in favour of defendant No.6 and have sold the suit schedule property to defendant No.6 for a valuable consideration. On the date of agreement itself the possession of the suit schedule property has been delivered to defendant No.6. Subsequently, defendant No.6 along with defendants No.1 to 5 alienated the property to defendant No.7. Defendant No.7 is in possession of the property. Hence, prayed for dismissal of suit.
/ 14 / O.S.No.3076/2005
14. In this case, relationship of plaintiffs and defendants No.1 to 5 is admitted. Plaintiff in their plaint admitted that defendants No.1 to 5 have executed GPA and special power of attorney as per Exs.D.1 to D.2 and also agreement to sell in favour of defendant No.6. Subsequently defendants 1 to 5 through their GPA holder S. Raghunath alienated the suit schedule property in favour of defendant No.7 as per Ex.D.3. The defendant No. 6 is the consenting witness to the Ex.D.3 - Sale Deed.
15. In order to establish their case, plaintiff No.1 herself examined as P.W.1 and produced the documents Exs.P.1 and P.2. The examination-in-chief of P.W.1 is nothing but replica of plaint averments. P.W.1 deposed that, herself, plaintiff No.2 and defendant Nos.2 to 5 are the children of defendant No.1. Plaintiff No.3 is the grand-son of defendant No.1. Defendant No.1 became the head of the family after the death of / 15 / O.S.No.3076/2005 H.M.Siddanna. The joint family consists of herself, plaintiffs No.2, 3 and defendants No.1 to 5. The property bearing Sy.No.108/1 measuring 20 guntas situated at Hebbal Village, Bangalore South Taluk is the joint family property. There was a partition between defendant No.1 and father of plaintiff No.3 on 16.3.1962. As per said partition, defendant No.1 acquired the suit schedule property. Herself and plaintiffs No.1, 2 and defendants No.1 to 5 are in joint possession of suit schedule property. Ex.P.1 is the RTC extract in respect of suit schedule property. The defendant No.1 being the head of the family, in collusion with other defendants illegally sold the suit schedule property under agreement to sell and GPA to defendant No.6. The defendants No.1 to 5 have illegally executed special power of attorney on 22.4.1991 in favour of one S.Raghunath in respect of suit schedule property as per Ex.P. 2. Defendant No.6 in turn sold the suit schedule property to defendant No.7.
/ 16 / O.S.No.3076/2005 Defendant No.7 is making hectic efforts to sell the suit schedule property. The defendants No.6 and 7 have no right, title or interest over the suit schedule property. Herself, plaintiffs No.2, 3 and defendants No.1 to 5 are in joint possession of the suit schedule property. She has invested huge money for development of suit schedule property. Herself and plaintiffs No.1 and 2 have got equal share in the suit schedule property. Agreement to sell dated 22.4.1991 and sale deed dated 28.4.1997 are not binding upon her and plaintiffs No.2 and 3. Hence, she prayed for decreeing the suit.
16. P.W.1 in her examination-in-chief deposed that suit schedule property is the joint family property of herself, plaintiffs No.2 and 3 and defendants No.1 to 5. In order to substantiate their case, plaintiffs have utterly failed to produce any iota of documents as regards to the joint family property and joint family nucleus.
/ 17 / O.S.No.3076/2005
17. Though Plaintiffs in their plaint pleaded that they have invested huge money for development of the suit schedule property, but P.W.1 in her cross- examination at page No.16 clearly deposed that, herself and plaintiff No.2 have no source of income, which clearly goes to show that plaintiffs have not invested any amount for development of suit schedule property.
18. P.W.1 further admitted in her cross- examination that her father acquired several properties and said properties have been not included in the present suit and she further deposed that the relationship between herself and defendants No.1 to 5 is cordial. She further deposed that as per say of defendant No.1, remaining properties have not been included in the suit.
19. In order to substantiate their defence, defendant No.7 has been examined as D.W.1. D.W.1 clearly deposed that, suit schedule property is the self-
/ 18 / O.S.No.3076/2005 acquired property of defendant No.1, defendants No. 1 to 5 agreed to sell the suit schedule property to defendant No.6 for their legal family necessities and accordingly they have executed registered agreement to sell dated 22.4.1991 as per Ex.D.1 and on the same day they have executed registered special power of attorney in favour of one S. Raghunath as per Ex.D.2. The defendant No.6 has nominated him as a purchaser of the suit schedule property and accordingly the special power of attorney holder of defendants No.1 to 5 viz., S.Raghunath has executed registered sale deed on 28.4.1997 as per Ex.D.3 in the name of defendant No. 7 and possession of the property has been delivered. The plaintiffs have no right or interest over the suit schedule property and suit schedule property is not available for partition. Even then the plaintiffs have filed the present suit only with an intention to harass him. Accordingly he prayed for dismissal of suit.
/ 19 / O.S.No.3076/2005
20. The counsel for plaintiffs cross-examined the witness in length. Witness adhered to his original version. The counsel for plaintiffs made a suggestion that suit schedule property is the joint family property of plaintiffs and defendants No.1 to 5. Witness denied the said suggestion. The counsel for plaintiffs further made a suggestion that suit schedule property originally belongs to one Siddanna. Witness denied the said suggestion. The counsel for plaintiffs confronted 2 certified copies of the special power of attorney, certified copies of the of two sale deeds and certified copies of two agreement to sell in respect of Sy.No.106/6 and 106/7 of Hebbal Village. Witness admits the said documents. Accordingly, same have been marked as Exs.P.3 to P.8.
21. The counsel for defendant No.5 cross- examined D.W.1 in length and made a suggestion that agreement to sell and GPA in favour of defendant No.6 / 20 / O.S.No.3076/2005 have been executed on the same day. Witness admits the said suggestion. The counsel for defendant No.5 confronted evidence of D.W.2 and written statement in O.S.No.9574/2006, witness admits the said documents and same have been marked as Exs.D.9 and D.10. Except this nothing worth has been elicited from the mouth of D.W.1.
22. P.W.1 in her examination-in-chief at para No.16 to 21 deposed that in order to cause loss to the plaintiffs, the defendants No.1 to 5 in collusion with defendants No.6 and 7 have alienated suit schedule property on 28.4.1997. On the basis of said sale deed defendant No.7 will not acquire any title and possession over the suit schedule property and hence, the said sale deed is not binding upon the plaintiffs. Though P.W.1 deposed in her examination-in-chief that the sale deed dated 28.4.1997 is not binding on the plaintiffs' share, / 21 / O.S.No.3076/2005 but there is no pleadings regarding the said sale deed. It is well settled law that relief not found on the pleadings cannot be granted. A decision of case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in the absence of pleadings. The Court cannot travel beyond the pleadings as no party can lead evidence on an issue not raised in the pleadings. In a decision reported [2012] 8 SCC 148 - (Union of India Vs. Imbrahim Uddin and another) at para No.85.6, the Hon'ble Apex Court held that, "The Court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced and a finding of fact has been recorded by the Court, it is just to be ignored. Though it may be a different case where inspite of specific pleadings, a particular issue is not framed and the parties having full knowledge of the issue in / 22 / O.S.No.3076/2005 controversy lead the evidence and Court records a finding on it." The said decision is aptly applicable to the case in hand. In this case no pleadings in support of evidence. Hence, the evidence led by P.W.1 is of no consequence.
23. P.W.1 in her evidence deposed that defendants have played fraud and got executed sale deed in favour of defendant No.7. It is well settled law that, without pleadings, evidence and documents, Court cannot grant the relief. That, in a decision reported in 2002 (3) KLJ 512 [Patel Thippeswamy Vs. Smt.Gangamma and others] in which the Hon'ble High Court of Karnataka clearly held that, "A party pleading fraud and misrepresentation in respect of a transaction must give material particulars of allegations and in absence of such particulars, his plea is to be rejected. The defendants contended that the gift deed was got / 23 / O.S.No.3076/2005 executed by misrepresentation and playing fraud on the third defendant. Defendants did not furnish the particulars of alleged misrepresentation and fraud. In the absence of particulars it cannot be held that the gift deed was obtained by misrepresentation." In another decision reported in (2011) 12 Supreme Court Cases 18 [Saradamani Kandappan Vs. S.Rajalaxmi and others] in which the Hon'ble Apex Court held at para No. 62 that, " Whenever a party wants to put forth contention of fraud, it has to be specifically pleaded and proved. It is significant that the plaint does not allege any fraud by the defendants. Evidence shows that before the agreement was entered, the purchaser's husband and legal adviser had examined the xerox copies of the title deeds and satisfied themselves about the title of the vendors. The appellant in her evidence clearly admits that xerox copies of the title deeds were shown to her husband. The agreement of sale provided that the sale / 24 / O.S.No.3076/2005 would depend upon the purchaser getting satisfied about the title of the vendors." The said decisions are squarely applicable to the case in hand. In this case also the plaintiffs made stray allegation without any proper pleadings and proof as regards to the alleged fraud. Hence, without specific pleadings and proof, the Court cannot grant the relief.
24. D.W.2 in his examination-in-chief at para Nos.3 to 6 and 8 deposed that, defendants No.6 and 7 have played fraud and got executed GPA, special power of attorney, agreement to sell and sale deeds and said documents have been canceled by them. Though D.W.2 deposed in his examination-in-chief regarding the fraud, but there is no pleadings to that effect. A party cannot adduce evidence and set a case inconsistent with his pleadings. No amount of proof can substitute pleadings which are the foundation of a claim of a litigating party.
/ 25 / O.S.No.3076/2005 Thus, when pleadings are silent on an issue, the party is precluded from adducing evidence in respect of that issue. It is well settled law that if pleadings are absent on a particular ground and if evidence is led and such evidence is of no use. That, in a decision reported in AIR 2003 SC 4319 [Rajagopal Vs. Kishan Gopal], in which the Hon'ble Apex Court held that, "When there is no pleadings regarding certain issue, no finding can be given despite evidence." The said decision is aptly applicable to the case in hand.
25. The plaintiffs claim that defendant No.1 is the kartha of the joint family and she is holding the property as the kartha of Hindu undivided family and relies upon Exs.P.1 and D.7 - RTC extracts in respect of Sy.No.108/1 of Hebbal Village and Exs.D.5 and D.6 certified copies of the Encumbrance Certificates. On perusal of these documents there is no recital in the said documents / 26 / O.S.No.3076/2005 stating that defendant No.1 is holding the property as a joint family kartha or on behalf of HUF. The plaintiffs have utterly failed to prove that the suit schedule property is the joint family property.
26. Plaintiffs claim that the suit schedule property is the joint family property of plaintiffs and defendants No.1 to 5 and they are in joint possession. The law is well settled that burden lies upon the person who alleges the existence of the Hindu undivided family. To prove the same not only jointness of the family has to be proved, but burden lies upon the person alleging existence of joint family to prove that property belongs to joint Hindu family, unless there is material on record to show that property is the nucleus of the joint Hindu family. In a decision reported in (2020 ) 6 SCC 387 [Bhagavat Sharan (dead) through legal representatives Vs. Purushotham and others], it is held by the Hon'ble Apex Court that, "Burden is on person who alleges / 27 / O.S.No.3076/2005 existence of Hindu undivided family to prove the same." The said decision is aptly applicable to the case in hand.
27. The plaintiffs in their plaint at para No.6 pleaded and P.W.1 in her examination-in-chief at para No.4 deposed that there was a partition between defendant No.1 and father of plaintiff No.3 on 16.3.1962 during the lifetime of Siddanna. As per plaintiffs themselves defendant No.1 acquired the suit schedule property under the partition. Once the defendant No.1 acquires the property, it will become her absolute property.
28. As per Section 14 of Hindu Succession Act, 1956, "Property of a female Hindu to be her absolute property. Any property possessed by a female Hindu, whether acquired before or after the commencement of Hindu Succession Act, 1956, shall be held by her as full owner thereof and not as a limited owner". In this case / 28 / O.S.No.3076/2005 also plaintiffs themselves admitted that defendant No.1 acquired the property under the partition deed 16.3.1962 and hence, they cannot claim the share in the suit schedule property.
29. On perusal of the entire material available on record, it reveals that the plaintiffs claim that suit schedule property is the joint family property of plaintiffs and defendants and the defendants have suppressed the material facts. Though the plaintiffs contended that suit schedule property is the joint family property of plaintiffs and defendants No.1 to 5, but they have failed to produce iota of document to show that suit schedule property is the joint family property of plaintiffs and defendants No.1 to 5. Plaintiffs claim that defendant No.1 acquired the suit schedule property under the registered partition deed dated 16.3.1962. Plaintiffs themselves admitted that suit schedule property has / 29 / O.S.No.3076/2005 been fallen to the share of defendant No.1. Admittedly the suit schedule property has been fallen to the share of defendant No.1. As per Section 14 of the Hindu Succession Act it is the absolute property of defendant No.1. During the lifetime of defendant No.1 neither plaintiffs nor defendants No.2 to 5 can claim rights over the said property.
30. There is a presumption under the Hindu Law that the senior most Member is the Kartha of the Hindu undivided family. He does so automatically under the law, and does not owe his position to an agreement or consent of the co-parceners. However, there is no absolute bar to the female to act as a Kartha. Plaintiffs in their plaint and defendants No.1, 2, 4 and 5 in their written statement clearly admitted that defendant No.1 is the head of the family and kartha of the joint family, is managing the entire affairs of the family. Admittedly, / 30 / O.S.No.3076/2005 defendant No.1 being the eldest female member of the family, she became the kartha. In case of Mrs.Sujatha Sharma Vs. Manu Gupta and others, the Hon'ble High Court of Delhi reported in 2010 SCC ONLINE DEL 506 the Hon'ble High Court of Delhi held that, "An eldest female member of the family being the coparcener in an HUF can become the kartha of HUF." It is further held that, "The Hindu Succession (Amendment) Act, 2005 which placed female coparceners on equal footing with male coparceners and also extends to the position in relation to a kartha of HUF." The said decision is aptly applicable to the case in hand. Defendant No.1 being the head of the family has alienated the suit schedule property for family legal necessity way back in the year 1997. The plaintiffs and defendants No.1 to 5 being aware of the said sale deed, even then have filed the suit, which is not permissible under law. Apart from this, in order to claim the share in the joint family property, / 31 / O.S.No.3076/2005 there must be a joint family and joint family property. In this case there is no joint family and joint family property in existence. Hence, the suit of the plaintiffs is not maintainable in the present form.
31. The plaintiffs have utterly failed to prove that the suit schedule property is the joint family property of plaintiffs and defendants No.1 to 5. Accordingly, I answer Issue No.1 in the negative.
32. Issues No.2 to 4 :- These issues are interconnected to each other. Hence, in order to avoid repetition of facts and evidence, they are taken up together for common discussion.
33. Defendant No.7 in his written statement pleaded that defendants No.1 to 5 have executed an agreement to sell in respect of suit schedule property and registered GPA, affidavit in favour of defendant No.6 / 32 / O.S.No.3076/2005 and on the date of agreement to sell itself the defendant No.6 has paid the entire sale consideration amount to defendants No.1 to 5. In turn, defendant No.6 along with defendants 1 to 5 have executed registered sale deed in respect of suit schedule property on 28.4.1997 in his favour. Since 28.4.1997 he is in lawful possession as a owner. In order to substantiate his case, defendant No.7 himself examined as D.W.1 and produced said agreement to sell, special power of attorney dated 22.4.1991 and sale deed dated 28.4.1997 i.e., Exs.D.1 to D.3. The counsel for plaintiffs and defendants No.1, 2, 4 and 5 cross-examined D.W.1 in length, but have not denied Exs.D.1 to D.3. The counsel for plaintiffs made a suggestion that as per Ex.D.3 consideration has not been passed to defendants No.1 to 5. On perusal of Ex.D.1 - agreement to sell dated 22.4.1991, it reveals that defendants No.1 to 5 have executed registered agreement to sell in respect of land bearing Sy.No.108/1 / 33 / O.S.No.3076/2005 measuring 20 guntas of Hebbal Village in favour of defendant No.6. In the said document, at page No.2 it is clearly mentioned that defendants No.1 to 5 have agreed to sell the suit schedule property to defendant No.6 for Rs.1,95,000/- and accordingly defendant No.6 has paid Rs.91,000/- in cash and remaining amount through cheque. Hence, Ex.D.1 clearly goes to show that defendants No.1 to 5 have agreed to sell the suit schedule property for a sum of Rs.1,95,000/- and accordingly they have executed agreement to sell as per Ex.D.1 in favour of defendant No.6 on 22.4.1991 and on the same day, defendant No.6 has paid entire sale consideration amount to defendants No.1 to 5.
34. The counsel for defendants No.1, 4 to 7 have vehemently argued that the consideration has not been passed, hence, the sale deed is not binding upon the plaintiffs and defendants No.2 to 5. As per Section 54 of Transfer of Property Act, payment of entire sale / 34 / O.S.No.3076/2005 consideration amount at once is not mandatory. Section 54 of Transfer of Property Act, 1882 reads thus :
"'Sale' defined - 'Sale' is a transfer of ownership in exchagne for a price paid or promised or part-paid and part-promised."
As per Section 54 of the Transfer of Property Act consideration paid, partly paid, promised or partly promised is sufficient. Hence, payment of entire consideration amount at the time of sale deed is not mandatory. If the defendant No.7 failed to pay the entire sale consideration amount, in that event the seller can very well file suit for recovery of sale consideration amount.
35. The counsel for plaintiffs and defendants No.1 to 5 argued that defendant No.7 is in the habit of purchasing the property by creating documents. The defendant No.7 has purchased more than 20 properties on the basis of GPA. D.W.1 also admitted in his cross-
/ 35 / O.S.No.3076/2005 examination regarding the purchase made by him. Exs.P.3 to P.8 are the power of attorneys and copies of sale deeds,or creating the documents several persons have filed suits against defendant No.7 as per Exs.D.8 to D.10. That, on perusal of Exs.P.3 to P.8 - which pertains to land bearing Sy.No.106/6 and 106/7 of Hebbal Village and Ex.D.8 - Judgment in O.S.No.1203/2008 on the file of 37th Additional City Civil Court, Bengaluru. That suit pertains to land bearing Sy.No.87/5 of Hebbal Village and Exs.D.9 and D.10 pertains to O.S.No.9574/2006 on the file of Additional City Civil Court, Bengaluru. Exs.P.3 to P.8 and Exs.D.8 to D.10 are no way concerned with the present suit. Even D.W.2 in his cross-examination at page No.10 deposed that, "¤r-8 gÀ°è £ÀªÀÄÆ¢¸À¯ÁzÀ ¥ÀæPÀgÀtzÀ°è PÀȵÀÚ¥Àà ªÀÄvÀÄÛ ªÀÉAPÀmÉÃ±ï ¥ÀPÀëUÁgÀgÁVgÀÄvÁÛgÉ. ¸ÀzÀj PÀȵÀÚ¥Àà ªÀÄvÀÄÛ ªÀÉAPÀmÉÃ±ï £ÀªÀÄä PÀÄlÄA§PÉÌ ¸ÀA§AzÀs EgÀĪÀÅ¢®è". The counsel for plaintiffs and defendants No.1 to 5 have failed to convince the Court / 36 / O.S.No.3076/2005 how the said documents are relevant to the case in hand. It is well settled law that the person is having financial capacity can purchase any number of properties. If at all defendant No.7 violated Section 79-A and 79-B of Karnataka Land Revenue Act, 1961, the revenue authorities can very well initiate the proceedings against him.
36. Besides, defendants No.2, 4 and 5 in their written statement clearly admitted that suit schedule property has been sold and sale proceeds of the suit schedule property has been used for the joint family development or for legal necessity, but D.W.2 in his examination-in-chief deposed that there is no legal necessity. It is well settled law that no one is permitted to approbate and reprobate. Hence, defendants No.1 to 5 cannot deny the sale deed - Ex.D.3.
37. On perusal of Ex.D.2 - Special Power of Attorney dated 22.4.1991 executed by defendants No.1 / 37 / O.S.No.3076/2005 to 5 in favour of S.Raghunath, it reveals that said Raghunath has been authorised to execute the sale deed etc., in respect of the suit schedule property.
38. On perusal of Ex.D.3 - Sale Deed dated 28.4.1997 it reveals that defendants No.1 to 5 through their special power of attorney holder S.Raghunath have executed registered sale deed in favour of defendant No.7. The defendant No.6 also consented for the said sale. On the date of sale deed itself defendant No.7 has paid entire sale consideration amount and the possession of the property has been delivered to the defendant No.7.
39. It is well settled law that documentary evidence prevails over the oral evidence. That, Sections 91 and 92 of Indian Evidence Act prohibits any interpretation contrary to the terms of the registered sale deed and therefore, it can only be said that the said property was purchased by defendant No.7 and he is the / 38 / O.S.No.3076/2005 owner in possession of the property. In a decision reported in ILR 2020 KAR 3667 [Smt. Sarvamangalamma and others Vs., Smt. Anusuya Bai and others], wherein the Hon'ble High Court of Karnataka held that, "Documentary evidence prevails over the oral evidence."
40. Admittedly, Exs.D.1 to 3 are the registered documents. It is well settled law that registered document carries with it a presumption that it was validly executed. In the decisions reported in (2019) 2 SCC 727 [Jamila Begum Vs. Shameem Mohammed] and [2006] 5 SCC 353 (Premsingh and others Vs. Beerbal and others), in both the cases the Hon'ble Apex Court held that, "There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to / 39 / O.S.No.3076/2005 rebut the presumption." The above said decisions are aptly applicable to the case in hand. In this case also defendant No.7 established that defendants No.1 to 5 have agreed to sell the suit schedule property to defendant No.6, accordingly they have executed agreement to sell as per Ex.D.1 and have also executed registered special power of attorney on 22.4.1991 in favour of S.Raghunath. On the date of agreement itself the defendant No.6 has paid the entire sale consideration amount to defendants No.1 to 5. The defendants No.1 to 5 through their power of attorney holder Raghunath have executed registered sale deed as per Ex.D.3 on 28.4.1997 in favour of defendant No.7. Defendant No.6 has nominated defendant No.7 as purchaser of the suit schedule property. Accordingly, I answer Issues No.2 to 4 in the affirmative.
41. Issue No.5 : - The defendant No.7 in his / 40 / O.S.No.3076/2005 written statement contended that suit of the plaintiffs is bad for non-joinder and mis-joinder of parties. Plaintiffs filed present suit against defendants. It is the case of the plaintiffs that themselves and defendants No.1 to 5 constitute Hindu undivided family and are having equal share in the suit schedule property. During the pendency of the suit defendant No.2 died. This Court granted sufficient opportunities to the plaintiffs, even then they have not brought the LRs of defendant No.2 on record. L.Rs of defendant No.2 are one of the necessary parties. In their absence no effective decree can be passed. Hence, the suit of the plaintiffs is bad for non-joinder of necessary parties and properties. Accordingly, I answer Issue No.5 in the affirmative.
42. Issue No.6 : - It is the defence of defendant No.7 that suit of the plaintiff is bad for non-joinder properties. P.W.1 in her cross-examination at page / 41 / O.S.No.3076/2005 No.16 deposed that, "Her family owns land bearing Sy.No.52/4 measuring 3 acres and one house property of Byatarayanapura Village." She further deposed in her cross-examination at page No.17 that, " ನನನ ತದಯ -ಪಪ.ವದದ 1 ರವರ ಮದತಯ ಕಷಯಳ ಉಳದ ಸಸತಯಸಗಳನಯನ ಈ ಪಪಕರಣದಲಲ ಸಷಯರಸಲಲ ಎನಯನವರದಯ ನಜ." Evidence of P.W.1 clearly goes to show that they have filed the present suit at the instigation of defendant No.1. It is not the case of the plaintiffs that they were not aware of above said properties. Therefore, the omission to include all family properties in this suit is fatal to the case of the plaintiffs.
43. It is the case of defendant No.7 that, defendants No.1 to 5 have agreed to sell the suit schedule property to defendant No.6 and accordingly they have executed an agreement of sale dated 22.4.1991 as per Ex.D.1 and have also executed special power of attorney as per Ex.D.2. Subsequently, / 42 / O.S.No.3076/2005 defendants No.1 to 5 have executed registered sale deed in his favour as per Ex.D.3. Defendant No.6 is one of the consenting witness to the said sale deed. The defendants No.1 to 5 are the consenting witnesses to the said sale deed - Ex.D.3 and accordingly they have admitted in their written statement at para Nos.10 and 11 that, the defendant No.1 has alienated the suit schedule property for family legal necessity. Though the defendants No.1, 2, 4 and 5 have admitted the sale deed
- Ex.D.3 in their written statement, but D.W.2 in his examination-in-chief deposed that there was no family necessity to alienate the suit schedule property. The evidence of D.W.1 is contrary to his own pleadings.
44. Defendant No.7 contended that, he is a bonafide purchaser for value. Before purchasing the suit property he had obtained mutation entry in respect of the lands purchased by him and found that there / 43 / O.S.No.3076/2005 effected partition between the members of plaintiffs and defendants No.1 to 5. He has purchased suit schedule land for valuable consideration then prevailing in the year 1997. Therefore, he is a bonafide purchaser of suit property and the claim of the plaintiffs and defendants No.1 to 5 is not maintainable against defendant No.7.
45. Plaintiffs in their plaint have clearly admitted that defendants No.1 to 5 have alienated the suit schedule property to defendant No.7. P.W.1 also in his examination-in-chief admitted regarding the sale deed dated 22.4.1991. By considering the plaint pleadings, evidence of P.W.1 and D.W.2, it clearly goes to show that plaintiffs are aware about the sale deed dated 28.4.1997. Plaintiffs even after coming to know regarding the alienation of schedule property, have not challenged the alienation. Till today the plaintiffs have not sought for declaration in respect of said sale deed.
/ 44 / O.S.No.3076/2005 Hence, the contention of the plaintiffs that, the said sale deed is made behind their back without their knowledge and consent cannot be accepted.
46. Under Order II Rule 2 C.P.C., the suit shall include the whole claim for which the plaintiffs are entitled to make in respect of the cause of action.
47. Suit for partial partition is not maintainable :
P.W.1 in his evidence clearly admitted that his father owns properties at Hebballa and Byatarayanapura. The said properties are also joint family properties and plaintiffs neither included said properties in this suit nor have reserved their right to claim the share in said properties. Normally, a suit instituted for partition should be one for partition of the entire joint family properties and all the interested co-sharers should be impleaded, else suit should fail. The inclusion of all the joint family properties in the instant suit for partition is necessary / 45 / O.S.No.3076/2005 and without bringing all the joint family properties into the hotchpot, the suit for partition of shares of the members of the joint family in one property which amounts to partial partition is not maintainable. This preposition of law is supported by decision of Hon'ble High Court of Karnataka reported in 1998 (6) Kar.L.J. 386 = MANU/KA/0498/1998 [Tukaram Vs. Sambhaji and others], wherein at para No.20 it is held as under :
"So far as working of the shares of the plaintiff and other members of the joint family, they have to be worked out in a property constituted suit bringing all the properties into the hotchpot and equitable remedy should be worked out. The finding given by the I Appellate Court granting 1/6th share to the plaintiff also should be set aside in view of the finding that the suit of the plaintiff for partial partition is not maintainable and the working of the share should be worked out in a suit in which all the properties are joint family properties to be included."
/ 46 / O.S.No.3076/2005
48. Further, said principle of law is reiterated in another decision of Hon'ble High Court of Karnataka reported in 2001 (4) KCCR 2461 (DB) [G.M.Mahendra Vs. G.M. Mohan & another]. The Hon'ble High Court by discussing provisions of Order II Rule 2 of Code of Civil Procedure and by referring its earlier decision reported in 1998 (6) Kar.L.J.J. 386 has held as follows :
"Taking into consideration this citation, the Court has to hold that, the suit filed by the plaintiff was not maintainable as the suit for partial partition cannot be maintained without seeking leave of the Court as contemplated under the provisions of Order II Rule 2 of C.P.C. Therefore, we are of the view that, suit of the plaintiff was also not maintainable on this ground."
49. In view of dictum laid down in aforementioned decisions, it is clear that, suit for partial partition without including all joint family properties is bad in law. In this case, father of plaintiffs No.1 and 2 and defendants No.2 / 47 / O.S.No.3076/2005 to 5 though inherited properties as discussed above, but plaintiffs filed the instant suit only with respect to schedule property and has also not reserved their right to claim share in the remaining properties. Under such circumstances, instant suit will become a suit for partial partition, which is not maintainable. Thus, suit of plaintiffs is bad for non-inclusion of all joint family properties.
50. Plaintiffs herein claim to pass a decree for partition and separate possession of their share in the suit property. While answering Issue Nos.1 and 2 this Court has concluded that, suit property is not ancestral and joint family property of plaintiffs and defendants No.2 to 5. Besides, while answering Issue No.5, this Court has concluded that the suit of plaintiffs is bad for non-joinder of necessary parties. Hence, the suit of the plaintiffs is not maintainable.
/ 48 / O.S.No.3076/2005
51. There is no cause of action for the plaintiffs to file the present suit. That, by clever drafting creating illusions of cause of action are not permitted in law and a clear right to suit should be shown in the plaint. The ritual of repeating a word or creation of an illusion in the plaint can certainly be unraveled. The plaintiffs have filed the present suit on imaginary cause of action since the plaintiffs have utterly failed to establish the fact that the suit schedule property is the joint family property of plaintiffs and defendants No.1 to 5 and they are in joint possession of the property. Thus, plaintiffs are not entitle for the relief claimed. Considering the relationship of parties, it would not be just to impose cost. Accordingly, I answer Issue No.6 in the negative.
52. Issue No.7 :- In view of my aforesaid discussion and findings, I proceed to pass the following Order:-
/ 49 / O.S.No.3076/2005
ORDER
The suit of the plaintiffs is hereby
dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 19th day of August, 2021.) (KHADARSAB) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiffs :
P.W.1 : H.S.Pushpa
2. List of documents exhibited for plaintiffs : Ex.P.1 : RTC extract of Sy.No. 108
Ex.P.2 : C/c of special power of attorney dated 22.4.1991 Ex.P.3 to 8 : C/c of 2 special power of attorney, 2 agreement to sell and 2 Sale Deeds in respect of Sy.No.106/6 and 106/7
3. List of witnesses examined for the defendants :
D.W.1 : M.S.Mahadevaiah
D.W.2 : H.S.Venkatesh
/ 50 / O.S.No.3076/2005
4. List of documents exhibited by the
defendants : -
Ex.D.1 : C/c of agreement to sell dated
22.4.1991
Ex.D.2 : C/c of special power of attorney
dated 22.4.1991.
Ex.D.3 : C/c of sale deed dated 28.4.1997
Ex.D.4 : C/c of partition deed dt 16.3.1992
Ex.D.5 & 6 : C/c of Encumbrance Certificates
Ex.D.7 : C/c of 21 RTC extracts in respect of
Sy.No.108/1 of Hebbal Village.
Ex.D.8 : C/c of Judgment in O.S.No.1203/2008
on the file of 37th ACCJ, Bengaluru.
Ex.D.9,10 : C/c of evidence of D.W.2 and written statement filed in O.S.No.9574/2006 (KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***
/ 51 / O.S.No.3076/2005
19/08/2021
Judgment pronounced in the Open Court, vide separate Judgment :-
ORDER The suit of the plaintiffs is hereby dismissed with costs.
Draw decree accordingly.
(KHADARSAB) XXXIX ACC& S Judge, Bangalore City.