Bangalore District Court
In G.Maheshwaraiah vs Sri.G.Basavaraj on 20 April, 2016
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 20th Day of April, 2016.
Present: Sri. M.S.Patil, B.Sc., LL.B.
XXII Addl.City Civil & Sessions Judge.
Bengaluru.
O. S. No. 499/1995,
c/w. O.S.No. 2786/2001
c/w. O.S.No. 5716/2007 and
c/w. O.S.No.898/2009
Plaintiff in G.Maheshwaraiah,
O.S.No. s/o.late H.Gangappa,
499/1995
aged about 42 years,
r/at No.34,1st Street,
Sheshadripuram,
Bengaluru-20.
by Sri.H.S.Umesha, Advocate.
Vs.
Defendants 1. Sri.G.Basavaraj,
in O.S.No. s/o. late H.Gangappa,
499/1995
... since dead, by legal representative:
Smt.Sunitha,
d/o. late G.Basavaraju,
w/o. Dinesh,
Aged 40 years,
r/at No.323, 15th Cross,
Sadashivanagar,
Bengaluru-560080.
2. G.Paramashivaiah,
s/o. late Gangappa, Major,
r/at No.7, 1st Floor,
Kempanna Layout, 1st Main,
Palace Guttahalli, Bengaluru - 20.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
2 c/w. O.S.No.898/2009
3. Shadakshari,
s/o. late Gangappa, major,
r/at No.27, 12th Cross, Vyalikaval,
Bengaluru - 03.
4. G.Manjunath,
s/o. late Gangappa,
aged about 41 years,
r/at No.34, 1st Street,
Anjaneya Block, Sheshadripuram,
Bengaluru-20.
5. Smt. Channamma,
w/o. late H.Gangappa,
aged about 60 years,
r/at No.34, 1st Street,
Anjaneya Block, Sheshadripuram,
Bengaluru-20,
... deleted vide Order dtd.9-11-2009.
6. Smt.Sarvamangala Gowri,
w/o.P.Madappa, major,
r/at No.54/8, 1st 'B' Cross,
Marenahalli Main Road,
Vijayanagar, Bengaluru-40.
7. Smt.Sarvamangalamma,
w/o. Gurubasavaiah,
.... since dead, by her L.Rs.
7a. G.Shantakumari,
d/o. late Gurubasavaiah,
aged about 61 years,
r/at No.34, 1st Street,
Anjaneya Swamy Temple,
Sheshadripura,
Bengaluru-560003.
7b. Sri.G.Guruprasad,
s/o. late Gurubasavaiah,
aged about 59 years, No.1134,
35th Cross, 4th Block, Jayanagar,
Bengaluru-560041.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
3 c/w. O.S.No.898/2009
7c. Sri.G.Nijagunamurthy,
s/o. late Gurubasavaiah,
aged about 57 years,
No.34, Green Field II
Singapur Garden, Gubbala Gate,
Doddakalasandra,
Bengaluru-560062.
7d. Sri.Dr.G.Manjunatha,
s/o. late Gurubasavaiah,
aged about 56 years,
r/at No.2718, 17th Cross,
BSK 2nd Stage,
Bengaluru-560070.
7e. Sri.G.Somasundar,
s/o. late Gurubasavaiah,
aged about 52 years,
r/at No.2718, 17th Cross,
BSK 2nd Stage, Bengaluru-560070.
7f. Sri.G.Prabushankar,
s/o. late Gurubasavaiah,
aged about 50 years,
No.D-29/5, DRDO Township,
Phase-II, Kaggadasapura,
C.V.Raman Nagar Post,
Bengaluru-5600093.
7g. Smt.G.Nirmala,
d/o. late Gurubasavaiah,
aged about 44 years, r/at No.16,
Yamuna Bai Road, Madhavanagar,
Bengaluru-560001.
8. Smt.Umayal,
w/o. H.N.Veerabadran, Major,
Flat No.38/10, Geetha Apartment,
Uppar Street, Basanthnagar,
Chennai.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
4 c/w. O.S.No.898/2009
9. Smt.Chandramma,
w/o. M.Shanthakumar,
Major, r/at No.380,
'Poornima', 4th D Main,
12th Cross, West of Chord Road,
II Stage, Bengaluru - 560 086.
10. Smt.Umadevi,
w/o. D.S.Nagaraj,
Major, r/a No.42, 14th Cross,
West of Chord Road,
Mahalakshmipuram, Bengaluru-86.
11. Smt.Rudranamma,
w/o. Chandraiah, major,
r/at Channakeshava Temple Street,
Tarikere Town, Chikkamagalur Dist.
12. Smt.Vanajakshi,
w/o. Shivakumar, Major,
r/at No.52, 1st 'B' Main Road,
Ganesha Temple Street,
New Satellite Town, Yelahanka,
Bengaluru.
LRs. of D1-by Sri.A.Prakasha, Advocate.
D2-by Sri.K.R.P.,Advocate.
D3-by Sri.J.M.S.,Advocate.
D4 - by Sri.P.M., Advocate
D5 - Dead.
D6a to 6g, D7,D9- by Sri.Basavaraj Pojar.S.,
Advocate.
D8, 10, 12- by Sri.N.P.Singri.
D11-by Sri.N.H.Gurulingaswamy, Advocte.
D9-by Sri.D.V.R., Advocate.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
5 c/w. O.S.No.898/2009
Plaintiff in Sri.G.Paramashivaiah,
O.S.No. s/o. late Gangappa, major,
2786/2001
r/at No.7, Kempanna Layout,
1st Main, Palace Guttahalli,
Bengaluru.
by Sri.B.N.Puttalingaiah, Advocate.
Vs.
Defendants 1. Sri.G.Basavaraju,
in O.S.No. s/o.late Gangappa,
2786/2001
Since dead by his L.R.:
Smt.Suneetha,
d/o.late G.Basavaraj,
w/o.K.S.Dinesh,
aged about 40 years,
r/at No.323, 15th Cross,
Sadashivanagar,
Bengaluru-560080.
2. G.Shadakshari,
s/o. late H.Gangappa,
r/at No.34, 1st Street,
Anjaneya Block,
Sheshadripuram,
Bengaluru-560020.
3. Sri.G.Maheshwaraiah
s/o. late H.Gangappa, major,
r/at No.47, ground floor,
15th Cross, Malleswaram,
Bengaluru-560003.
4. G.Manjunath,
s/o. late Gangappa,
r/at No.500,11th 'A' Cross,
West of Chord Road, 2nd Stage,
Mahalakshmipuram,
Bengaluru-560086.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
6 c/w. O.S.No.898/2009
5. Smt.Umayal,
w/o. H.N.Veerabadran,
major, Flat No.18/10,
Geetha Apartment,
Upper Street, Basanthnagar,
Chennai.
6. Smt.Sarvamangalamma,
W/o.B.Gurubasavaiah,
Since Dead by her LRs.:
a. Smt.G.Shantakumari,
D/o.late Gurubasavaiah,
w/o.G.Shadakshari,
aged about 61 years,
r/at No.34, 1st Street,
Anjaneya Swamy Temple,
Sheshadripuram,
Bengaluru-560003.
b. Sri.G.Guruprasad,
s/o. late Guru Basavaiah,
aged about 59 years,
No.1134, 35th Cross,
4th Block, Jayanagara,
Bengaluru-560041.
c. Sri.G.Nijagunamurthy,
s/o. late Guru Basavaiah,
aged about 57 years,
No.34,Green Field II,
Singapur Garden,
Gubbalala Gate,
Doddakalsandra,
Bengaluru-560062.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
7 c/w. O.S.No.898/2009
d. Sri.Dr.G.Manjunath,
s/o. late B.Guru Basavaiah,
aged about 56 years,
r/at No.2718, 17th 'C' Cross,
BSK 2nd Stage,
Bengaluru-560070.
e. Sri.G.Somasundar,
s/o. late Gurubasavaiah,
aged about 52 years,
residing at No.2718,
17th Cross, BSK 2nd Stage,
Bengaluru-560070.
f. Sri.G.Prabushankar,
s/o. late Guru Basavaiah,
aged about 50 years,
No.D-29/5, DRDO Township,
Phase-II, Kaggadasapura,
C.V.Raman Nagar, Post,
Bengaluru-560093.
g. Smt.G.Nirmala,
D/o.late Gurubasavaiah,
aged about 44 years,
r/at No.16,Yamuna Bai Road,
Madavnagar, Bengaluru-560001.
7. Smt.Rudranamma,
w/o. Chandraiah, major,
r/at Channkeshava Temple Street,
Tarikere Town,
Chikkamagalur District.
8. Smt.Chandramma,
w/o. M.Shanthakumar, major,
r/at No.380, "Poornima",
4th 'D' Main, 12th Cross,
West of Chord Road, II Stage,
Bangalore-560086.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
8 c/w. O.S.No.898/2009
9. Smt.Sarvamangala Gowri,
W/o.P.Madappa, major,
r/at No.54/8, 1st 'B' Cross,
Marenahalli Main Road,
Vijayanagar,
Bengaluru-560400.
10. Smt.Vanajakshi,
w/o.Shivakumar, major,
r/at Ganesha Temple Street,
New Satellite Town,
Yelahanka,
Bengaluru.
11.Smt.Umadevi,
w/o.D.S.Nagaraj,
major, r/at 32, 3rd floor,
'Vishwas Apartment'
5th Main, 11th Cross,
Bengaluru-560003.
LR of D1-by Sri.-B.Nandagopal
D3-by Sri.Nandagopal,
D4-by Sri.V.Rangaramu,
D5-H.C.Ravindranatha
D6(a) to 6(g), D7,D9-by Sri.Basavaraj Poojar.S,
D8-by Sri.N.M.Handral,
10-N.M.Handral
D11-M/s.Indus Law Associates
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
9 c/w. O.S.No.898/2009
Plaintiff in 1. Smt.Sarvamangalamma,
O.S.No. w/o. Gurubasavaiah,
5716/2007
Since, dead, by L.Rs.:
1(a). G.Shantakumari,
d/o. late Gurubasavaiah,
W/o.G.Shadakshari,
aged about 61 years,
r/at No.34, 1st Street,
Anjaneya Swamy Temple,
Sheshadripura,
Bengaluru-560003.
1(b). Sri.G.Guruprasad,
s/o. late B.Gurubasavaiah,
aged about 59 years,
r/at No.1134, 35th C Cross,
4th T Block, Jayanagar,
Bengaluru-560041.
1(c). Sri.G.Nijagunamurthy,
s/o. late B. Gurubasavaiah,
aged about 57 years,
r/at No.34, Green Field Ii
Singapur Garden, Gubbalala Gate,
Doddakalasandra,
Bengaluru-560062.
1(d). Sri.Dr.G.Manjunatha,
(Guru Basavaiah Manjunath)
s/o. late Gurubasavaiah,
aged about 56 years,
r/at No.2718, 17th C-Cross,
BSK 2nd Stage,
Bengaluru-560070.
1(e). Sri.G.Somasundar,
s/o. late B.Gurubasavaiah,
aged about 52 years,
r/at No.2718, 17th C-Cross,
BSK 2nd Stage,
Bengaluru-560070.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
10 c/w. O.S.No.898/2009
1(f). Sri.G.Prabushankar,
s/o. late B.Gurubasavaiah,
aged about 50 years,
No.D-29/5, DRDO Township,
Phase-II, Kaggadasapura,
C.V.Raman Nagar Post,
Bengaluru-5600093.
1(g). Smt.G.Nirmala,
W/o.Shivakumar,
d/o. late Gurubasavaiah,
aged about 44 years,
#14, Yamuna Bai Road,
Madhavanagar,
Bengaluru-560001.
2. Smt.Sarvamangala Gowri,
w/o.P.Madappa, major,
r/at No.54/8,1st 'B' Cross,
Marenahalli Main Road,
Vijayanagar, Bengaluru-560040.
by Sri. Basavaraj.P.S., Advocate.
Vs.
Defendant in 1. G.Basavaraj,
O.S.No. s/o. late H.Gangappa,
5716/2007
since dead, by legal representative:
Smt.G.Sunitha,
d/o. late G.Basavaraju,
w/o. Dinesh, Aged 34 years,
r/at No.323, 15th Cross,
Sadashivanagar,
Bengaluru-560080.
2. Sri.G.Shadakshari,
s/o. late Gangappa,
aged major, r/at No.34,
1st Street, Anjaneya Block,
Bengaluru-560020.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
11 c/w. O.S.No.898/2009
3. G.Maheshwaraiah,
s/o.late Gangappa,
aged major, residing at No.47,
Ground Floor, 15th Cross,
Malleshwaram, Bengaluru-56003.
4. Sri.G.Manjunath,
s/o. late Gangappa,
Aged major, r/at No.500,
11th A Cross, West of Chord Road,
2nd Stage, Mahalakshmipuram,
Bengaluru-560086.
5. Sri.G.Paramashivaiah,
s/o.late Gangappa,
aged major, residing at New No.4,
Kempanna Layout, 1st Main Road,
Palace Guttahalli, Bengaluru.
6. Smt.Umayal,
W/o.Sri.H.N.Veerabadran,
major, Flat No.38/10,
Geetha Apartment, Upper Street,
Basanthnagar, Chennai.
7. Smt.Umadevi,
W/o.Sri.D.S.Nagaraj,
major, 14th Cross, 2nd Stage,
2nd Phase, West of Chord Road,
Mahalakshmipuram,
Bengaluru-560086.
8. Smt.Rudranamma,
W/o.Sri.Chandraiah, major,
residing at Channakeshava Temple
Street, Tarikere Town,
Chikkamangalore Dist.
9. Smt.Chandramma,
w/o. M.Shanthakumar, Major,
r/at No.380, 'Poornima', 4th D Main,
12th Cross, West of Chord Road,
II Stage, Bengaluru - 560 086.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
12 c/w. O.S.No.898/2009
10. Smt.Vanajakshi,G.
w/o.N.Shivakumar, Major,
r/at No.52, 1st 'B' Main Road,
Ganesha Temple Street,
New Town, Yelahanka,
Bengaluru-560064.
LR of D1-by Sri.B.Nandagopal, Advocate.
D5,-by Sri.B.N.Puttalingaiah, Advocate.
D2,6,7,8,9,10-by Sri.D.P.Shivaprasad, Advt..
D3 & D4 - by Sri.V.Rangaramu, Advocate.
Plaintiff in 1. Smt.Sarvamangalamma,
O.S.No. w/o. Gurubasavaiah,
898/2009
since, dead, represented by L.Rs.
1(a). G.Shantakumari,
d/o. late Gurubasavaiah,
W/o.G.Shadakshari,
aged about 61 years,
r/at No.34, 1st Street,
Anjaneya Swamy Temple,
Sheshadripura,
Bengaluru-560003.
1(b). Sri.G.Guruprasad,
s/o. late B.Gurubasavaiah,
aged about 59 years, No.1134,
35th C Cross, 4th T Block,
Jayanagar, Bengaluru-560041.
1(c). Sri.G.Nijagunamurthy,
s/o. late B Gurubasavaiah,
aged about 57 years,
No.34, Green Field II
Singapur Garden, Gubbalala Gate,
Doddakalasandra,
Bengaluru-560062.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
13 c/w. O.S.No.898/2009
1(d). Sri.Dr.G.Manjunatha,
(Guru Basavaiah Manjunath)
s/o. late Gurubasavaiah,
aged about 56 years,
r/at No.2718, 17th C-Cross,
BSK 2nd Stage, Bengaluru-560070.
1(e). Sri.G.Somasundar,
s/o. late B.Gurubasavaiah,
aged about 52 years,
r/at No.2718, 17th C-Cross,
BSK 2nd Stage, Bengaluru-560070.
1(f). Sri.G.Prabushankar,
s/o. late B.Gurubasavaiah,
aged about 50 years,
No.D-29/5, DRDO Township,
Phase-II, Kaggadasapura,
C.V.Raman Nagar Post,
Bengaluru-5600093.
1(g). Smt.G.Nirmala,
W/o.Shivakumar,
d/o. late Gurubasavaiah,
aged about 44 years,
#14, Yamuna Bai Road,
Madhavanagar,
Bengaluru-560001.
2. Smt.Sarvamangala Gowri,
w/o.P.Madappa, major,
r/at No.54/8,1st 'B' Cross,
Marenahalli Main Road,
Vijayanagar, Bengaluru-560040.
3. Smt.Umadevi,
w/o. D.S.Nagaraj, Major,
r/a No.42,14th Cross,
2nd Stage, 2nd Phase,
West of Chord Road,
Mahalakshmipuram,
Bengaluru-560086.
By Sri.P.B.Basavaraja, Advocate.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
14 c/w. O.S.No.898/2009
Vs.
Defendants 1. G.Basavaraj,
in O.S.No. s/o. late H.Gangappa,
898/2009
since dead, by legal representative:
Smt.G.Sunitha,
Aged 34 years,
d/o. late G.Basavaraju,
r/at No.323, 15th Cross,
Sadashivanagar,
Bengaluru-560080.
2. G.Shadakshari,
s/o. late Gangappa, major,
r/at No.34, 1st Street,
Anjaneya Block,
Bengaluru-560020
3. G.Maheshwaraiah,
s/o.late Gangappa, aged major,
residing at No.47, ground Floor,
15th Cross, Malleshwaram,
Bengaluru-56003.
4. Sri.G.Manjunath,
s/o. late Gangappa, Aged major,
r/at No.500, 11th A Cross,
West of Chord Road, 2nd Stage,
Mahalakshmipuram,
Bengaluru-560086.
5. Sri.G.Paramashivaiah,
s/o.late Gangappa, aged major,
residing at New No.4,
Kempanna Layout, 1st Main Road,
Palace Guttahalli, Bengaluru.
6. Smt.Umayal,
W/o.Sri.H.N.Veerabadran, major,
Flat No.38/1, Geetha Apartment,
Upper Street, Basanthnagar,
Chennai.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
15 c/w. O.S.No.898/2009
7. Smt.Rudranamma,
W/o.Sri.Chandraiah, major,
residing at Channakeshava Temple
Street, Tarikere Town,
Chikkamangalore Dist.
8. Smt.Chandramma,
w/o. M.Shanthakumar, Major,
r/at No.380, 'Poornima',
4th D Main, 12th Cross,
West of Chord Road, II Stage,
Bengaluru - 560 086.
9. Smt.Vanajakshi.G,
w/o. N.Shivakumar, Major,
r/at No.52, 1st 'B' Main Road,
Ganesha Temple Street,
New Town, Yelahanka,
Bengaluru-560064.
D1, D3 & D4-by Sri.V.Rangaramu, Advocate.
D2 & 5-by Sri. Ko.Vijayakumar, Advocate.
D2,6,7,9-by Sri.D.P.Shivaprasad, Advocate.
Date of institution of suits
O.S.No.499/1995: 20-01-1995
O.S.No.2786/2001: 17-04-2001
O.S.No.5716/2007 25-07-2007
O.S.No.898/2009: 15-06-2007
Nature of the suits
O.S.No.499/1995: Partition and separate
possession.
Counter claim of Defendants Partition and separate
No.2, 8 and 9 possession
O.S.No.2786/2001: Partition and separate
possession.
O.S.No.5716/2007: Partition and separate
possession.
O.S.No.898/2009: Partition and separate
possession.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
16 c/w. O.S.No.898/2009
Date of commencement of 10-09-2009
recording of evidence
Date on which Judgment 20-04-2016
was pronounced
Total duration Days Months Years
O.S.No.499/1995: -0- 03 21
O.S.No.2786/2001: 03 -0- 15
O.S.No.5716/2007: 25 08 08
O.S.No.898/2009: 05 10 08
COMMON JUDGMENT
O.S.No.499/1995 is filed by plaintiff for
partition and separate possession of his 1/6th share
in the suit schedule properties, by metes and bounds
and mesne profits from the date of suit to such date
of division, together with costs and any other reliefs,
which Court deems fit, in the circumstances of this
case.
O.S.No.2786/2001 is filed by plaintiff for
partition and separate possession of his 1/12th share
in the suit schedule properties, together with costs
and any other reliefs, which Court deems fit, in the
circumstances of this case.
O.S.No.5716/2007 is filed by plaintiffs for
partition and separate possession of their 2/12th
share in the suit schedule properties, by metes and
bounds together with costs and any other reliefs,
which Court deems fit, in the circumstances of this
case.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
17 c/w. O.S.No.898/2009
O.S.No.898/2009 is filed by plaintiffs for
partition and separate possession of their 2/12th
share in the suit schedule properties, by metes and
bounds, together with costs and any other reliefs,
which Court deems fit, in the circumstances of this
case.
2. O.S.No.2786/2001 is Ordered to be
clubbed with O.S.No.499/1995 Vide Order passed in
Order Sheet dated 13-7-2007 in O.S.No.2786/2001.
O.S.No.5716/2007 is Ordered to be clubbed
with O.S.No.499/1995 Vide Order passed in Order
Sheet dated 26-7-2010 passed in O.S.No.5716/
2007.
O.S.No.898/2009 is Ordered to be clubbed with
O.S.No.499/1995 Vide Order passed in Order Sheet
dated 2-7-2011 in O.S.No.898/2009.
Hence, O.S.No.5716/2007, O.S.No.2786/2001
and O.S.No.898/2009 are clubbed with O.S.No.
499/1999, as stated above and common evidence is
adduced in O.S.No.499/1995 and accordingly,
Common Judgment is ordered to be passed in
respect of all the cases, in O.S.No.499/1995.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
18 c/w. O.S.No.898/2009
3. The brief facts of plaint averments in
O.S.No.499/1995 are that, plaintiffs and defendants
1 to 4 are the sons of late H.Gangappa and 5th
defendant and that, Gangappa, with 3rd defendant,
started M/s.Navarang Electricals and later, took
plaintiff as another partner and properties shown at
Items 1 to 27 of 1st Schedule are properties earned
by the said business, as joint family properties, out
of business carried on as shown in 2nd Schedule and
that, suit properties are joint family properties of
plaintiff and defendants 1 to 5 and hence, plaintiff
has got 1/6th share in all the suit properties. Hence,
this suit.
4. Brief facts of plaint averments in
O.S.No.2786/2001 are that, plaintiff and defendants
form Hindu Joint Family and suit properties are joint
family properties of plaintiff and defendants, as they
are purchased by their father-Gangappa, out of joint
family funds. Hence, this suit for partition and
separate possession of plaintiff's 1/12th share in suit
schedule properties.
5. Brief facts of plaint averments in
O.S.No.5716/2007 are that, the suit properties are
purchased by father of plaintiffs and defendants 1 to
5 out of his earnings, in his name and in the name of
his wife and that, father and mother of plaintiffs died
on 19-4-1988 and 15-3-1996 respectively and
defendant No.1 being eldest son and karta of joint
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
19 c/w. O.S.No.898/2009
family of plaintiffs and defendants, refused and
denied to give shares to plaintiffs in suit properties.
Hence, this suit.
6. Brief facts of plaint averments in
O.S.No.898/2009 are that, plaintiffs and defendants
form Hindu Joint Family and suit properties are the
joint family properties of plaintiffs and defendants,
as father of plaintiffs and defendants, by name
Gangappa, has purchased suit properties. Father
and mother of plaintiffs and defendants died on
14-9-1988 and 15-3-1996, respectively, as intestate,
leaving behind plaintiffs and defendants as their
Class-I heirs. Defendants 1 to 3 are trying to sell
joint family properties to 3rd parties. Defendants
refused and denied to give share in suit properties to
plaintiffs on demand. Hence, this suit for partition
and separate possession of plaintiffs' 2/12th share in
suit schedule properties.
7. O.S.No.499/1995 is opposed by
defendants No.1 and 5 by filing their written
statement, wherein they admit their relationship with
plaintiff and late Gangappa and admit that, suit
properties are joint family properties of plaintiff and
defendants 1 to 5 and pray for their 1/6th share each
in suit properties.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
20 c/w. O.S.No.898/2009
8. Defendant No.1 in O.S.No.499/1995 has,
during the pendency of suit died and hence,
defendant No.1(a) is brought on record as legal
representative of deceased defendant No.1 and
adopts written statement of defendant 1 and
defendant No.5.
9. Defendant No.2 files his written statement
in O.S.No.499/1995 wherein he admits relationship
between plaintiff and defendants, but deny that,
plaintiff was partner of M/s.Navarang Electricals and
contends that, Gangappa and defendant No.3 were
partners of M/s.Navarang Electricals and contends
that, all suit properties, though purchased in the
name of plaintiff and defendants, are out of income
derived from Navarang Electricals and contends that,
item No.9, 19, 20, 21 and 22 of 1st Schedule are self
acquired properties of this defendant (defendant
No.2), as they are purchased by this defendant from
his personal income, as he was working as A.E.E., in
State Power Corporation and contends that, item
No.18 of 1st schedule is self acquired property of
Anusuyadevi, wife of Paramashivaiah and hence, it is
her personal property. He further contends that,
item Nos.23 and 24 are properties of 3rd parties, of
which this defendant (defendant No.2) is G.P.A.
holder and item No.4 of 1st schedule is non-existing.
Defendant No.2 further contends that, 1st defendant
being karta, after death of Gangappa, has purchased
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
21 c/w. O.S.No.898/2009
some other properties in his name and in the name
of plaintiff, 4th and 5th defendant, which are not
shown as joint family properties and on these
grounds, defendant No.2 prays for dismissal of this
suit, with costs.
10. Defendant No.3 files his written statement
in O.S.No.499/1995 wherein he admits relationship
with plaintiff and other defendants and denies that,
plaintiff was partner of Navarang Electricals and
contends that, Gangappa has purchased some of the
suit properties in the names of plaintiff and
defendants 1, 4 and 5, out of his share in Navarang
Electricals and contends that, properties shown at
item Nos.1, 3, 5 to 7 are self acquired properties of
this defendant (defendant No.3) and contends that,
items 1 to 20 stated in his written statement are
only joint family properties and prays for dismissal of
this suit with costs. This defendant pays court fee of
Rs.200/-.
11. Defendant No.4 filed his written statement
in O.S.No.499/ 1995 wherein he submits that, the
properties mentioned in the written statement are
standing in his name and are his self acquired
properties and not liable to be partitioned. On these
grounds, he prays for dismissal of suit, with costs.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
22 c/w. O.S.No.898/2009
12. Defendant No.6 and defendant No.7, who
were impleaded during the proceedings of suit
O.S.No.499/1995, file their written statement,
wherein they admit relationship of plaintiff and
defendants 1 to 5 with them and they admit that,
suit properties are joint family properties of plaintiff
and defendants 1 to 7 and that, they have got share
in these suit properties.
13. Defendant No.5-Channamma, in
O.S.No.499/1995, being mother of plaintiff and
defendants 1 to 12, has died during pendency of suit
and her legal representatives are already on record.
14. Defendant No.7-Sarvamangalamma, in
O.S.No.499/1995 died during pendency of the suit
and hence, defendant No.7(a) to Defendant No.7(g)
are brought on record as legal representatives of
deceased defendant No.7.
15. Defendant No.8 in O.S.No.499/1995 files
her written statement, wherein she admits
relationship between plaintiff and defendants and
contends that, suit properties are joint family
properties of plaintiff and these defendants and has
got share in these properties and contends that,
defendants and plaintiff have not included properties
of schedule of this written statement as joint family
properties and that, these properties shown in
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
23 c/w. O.S.No.898/2009
written statement schedule are also joint family
properties, in which this defendant has got share.
Hence, counter claim filed by paying Rs.200/- as
Court fee.
16. Defendant No.9 files written statement in
O.S.No.499/1995, wherein she supports the
contentions of defendant No.8 taken in her written
statement. She files counter claim also, claiming her
share in suit properties.
17. In O.S.No.2786/2001, 3rd defendant files
his written statement, wherein he admits
relationship between plaintiff and defendants, but
denies that, this defendant was not partner of
M/s.Navarang electricals. He contends that, all suit
properties are joint family properties of plaintiff and
defendants and he contends that, item Nos.9, 11
and 12 are self acquired properties of mother of
plaintiff, by name Channamma, as she purchased
them out of her own funds and she has executed Will
deed in respect of these properties, which are
subject matter of P & S.C. No.160/1998 and C.R.P.
No.5202/2001, on the file of Hon'ble High Court of
Karnataka. On these grounds, he prays for dismissal
of this suit with exemplary costs.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
24 c/w. O.S.No.898/2009
18. The Defendants No.5, 7, 10 and 11 adopt
averments of plaint filed in O.S.No.2786/2001 as
their written statement and prays for their 1/12th
share by paying Rs.100/- by way of court fee on
their shares.
19. Defendant No.4 files written statement in
O.S.No.2786/2001, wherein he contends that,
property No.7 is his self acquired property, on the
ground that, he purchased the same out of his self
earnings and he is absolute owner of property
No.500 of West of Chord Road and that, Channamma
bequeathed properties i.e., Sy.No.87/2B and 87/2C
in favour of this defendant and on these grounds, he
prays for dismissal of this suit with exemplary costs.
20. Defendant No.1 filed his written
statement in O.S.No.5716/2007, wherein he admits
relationship with plaintiff and other defendants, but
contends that, suit is barred by limitation and
contends that, suit properties standing in the name
of mother of plaintiff by name Channamma are her
self acquired properties as she purchased them out
of her milk vending business and from her
agriculture income and prays for dismissal of suit on
exemplary costs.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
25 c/w. O.S.No.898/2009
21. Legal representative of 1st defendant files
written statement in O.S.No.5716/2007, wherein she
has adopted almost all averments of written
statement of defendant No.1 and contends that,
plaintiff and defendants 6 to 10 are not entitled to
any share in suit properties due to coming into effect
of Hindu Succession (Amendment) Act, 2004.
22. Defendants No.2, 7 and 8 adopts written
statement of defendant No.6 and 10, through their
Memo of adoption in O.S.No.5716/2007.
23. Defendant No.6 and defendant No.10 file
their written statement in O.S.No.5716/2007,
wherein they admit relationship of plaintiffs and
defendants and submit that, suit properties are
earned by Gangappa and said Gangappa and his wife
Chinnamma died intestate and hence, suit properties
are joint family properties of plaintiff and defendants
and claim their 1/12th share each in suit properties.
24. In O.S.No.898/2009, legal representative
of 1st defendant files her written statement, wherein
she admits relationship of plaintiff with defendants
and contends that, properties standing in the name
of Channamma are her absolute properties, which
she purchased out of dairy business and prays for
dismissal of this suit, with exemplary costs.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
26 c/w. O.S.No.898/2009
25. Defendant No.2 adopts written statement
of defendant No.5 through Memo dated 27-7-2007 in
O.S.No.898/2009.
26. Defendant No.6 and 9 adopts written
statement of defendant No.9, through Memo dated
20-10-2009 in O.S.No.898/2009.
27. Defendant No.5 files written statement in
O.S.No.898/2009, wherein he admits relationship of
plaintiff and defendants and admits that, all the suit
properties are joint family properties of plaintiff and
defendants and prays for his share in suit properties,
on the ground that, plaintiff and all defendants are
class-I heirs of deceased Gangappa and
Channamma.
28. Defendant No.9 files written statement in
O.S.No.898/2009, in which she has supported
written statement of defendant No.5 and prays for
her share in suit properties.
29. On the basis of these rival contentions
taken by the parties, following Issues are framed:
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
27 c/w. O.S.No.898/2009
In O.S.No.499/1995:
1. Whether the Plaintiff proves that the suit
schedule properties are the joint family
properties of the parties to the suit?
2. Whether the plaintiff proves that he is
entitled for 1/6th share in the suit schedule
properties?
3. Whether the 2nd defendant proves that item
No.9, 19, 20, 21 and 22 of the plaint
schedule are his self acquired properties?
4. Whether the 2nd defendant proves that item
No.18 of the plaint schedule property of
Anusuya Devi and item No.24 of the plaint
schedule property of Mamatha?
5. Whether the 2nd defendant proves that item
No.4 of the plaint schedule is not in
existence and not available for partition?
6. Whether the 2nd defendant proves that item
No.23 of the plaint schedule is not
belonging to any of the members of the
family?
7. Whether defendant No.3 proves that
Navarang Electricals was individual business
of Gangappa and himself?
8. Whether defendants 2 and 3 prove that the
first defendant is managing the affairs of
the family as the kartha of the joint family?
9. Whether the third defendant proves that
the first defendant, plaintiff, 4th and 5th
defendant are acting detrimental to his
rights?
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
28 c/w. O.S.No.898/2009
10. Whether the defendant Nos.2 and 3 prove
that item No.1 to 20 mentioned in the
written statement is the joint family
properties of the parties to the suit?
11. Whether defendant No.3 proves that item
Nos.1, 3, 5, 6, 7, 9, 10, 11 and half portion
of item No.12 and item No.16 and 17 are his
self acquired properties?
12. Whether defendant No.3 proves that item
No.4, 13, 14 and 15 are not in existence
and are fictitious?
13. Whether suit is bad for non-joinder of
properties mentioned in the written
statement?
14. To what reliefs are the parties entitled to?
15. To what order or decree?
Additional Issue:
16. Whether defendant No.4 proves that
property No.7, 500 and land in Sy.No.87/2B
and 87/2C are the self acquired properties
of defendant No.4?
Additional Issue:
17. Whether defendant No.9 is entitled lawfully
for counter claim?
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
29 c/w. O.S.No.898/2009
In O.S.No.2786/2001:
1. Whether the plaintiff proves that suit
properties are acquired out of joint family
funds of plaintiff and defendants?
2. Whether the plaintiff has 1/12th share in
the suit properties?
3. Whether the contesting defendants prove
that suit item No.1, 2, 6, 7 and 10 are the
self acquired properties of defendant No.3?
4. Whether the contesting defendants prove
that suit item No.3 was Willed by
Smt.Channamma during February 1996 and
therefore the plaintiff has no right?
5. Whether the contesting defendants prove
that suit item No.4, 9, 11 and 12 are the
self acquired properties of late
Channamma?
6. Whether the contesting defendants prove
that suit item No.5 is the self acquired
property of defendant No.1?
7. Whether the contesting defendants prove
that suit item No.8 is the self acquired
property of defendant No.4?
8. Whether the suit is hit by provisions of
Benami Transactions Prohibition Act?
9. What decree or order?
Additional Issue :
10. Whether defendant No.8 is lawfully entitled
for counter claim claimed?
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
30 c/w. O.S.No.898/2009
In O.S.No.5716/2007:
1. Whether the plaintiffs prove that suit
properties are undivided ancestral
properties of the plaintiffs and defendants
1 to 10?
2. Whether plaintiffs have a share in the suit
properties?
3. Whether suit is barred by time?
4. What decree or order?
In O.S.No. 898/2009:
1. Whether the plaintiff proves that, suit
properties are the joint family properties of
plaintiffs and defendants?
2. Whether the plaintiffs prove that, each of
them are entitled to 1/12th share in suit
properties?
3. What Order or Decree?
30. Oral evidence of parties and documents
are marked for both parties in O.S.No.499/1995.
Plaintiff in O.S.No.499/1995 is examined
himself as P.W.1 and relied upon 45 documents as
Exs.P1 to P45.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
31 c/w. O.S.No.898/2009
Defendant in O.S.No.499/1995 is examined,
and totally 10 witnesses examined as DWs.1 to
D.W.10 and relied upon 248 documents marked as
Exs.D1 to D244 and by oversight and mistake, two
documents are marked as Ex.D206. Similarly, two
documents are marked for each of the Exs.D207,
D208 and D209.
31. Heard arguments of Learned Counsels for
both the parties, in all these cases.
32. My answer to the above Issues in these
cases are as under:
Issues in O.S.No.499/1995:
Issue No.1 - in the Negative;
Issue No.2 - in the Negative;
Issue No.3 - in the Affirmative;
Issue No.4 - in the Affirmative;
Issue No.5 - in the Negative;
Issue No.6 - in the Negative;
Issue No.7 - in the Negative;
Issue No.8 - in the Negative;
Issue No.9 - in the Negative;
Issue No.10 - in the Negative;
Issue No.11 - in the Negative;
Issue No.12 - in the Negative;
Issue No.13 - in the Affirmative;
Issue No.14 - as per Final Order below;
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
32 c/w. O.S.No.898/2009
Issue No.15 - as per Final Order below;
Additional Issue No.16-in the Affirmative;
Additional Issue No.17-in the Negative;
Issues in O.S.No.2786/2001:
Issue No.1 - in the Negative;
Issue No.2 - in the Negative;
Issue No.3 - in the Affirmative;
Issue No.4 - in the Affirmative;
Issue No.5 - in the Affirmative;
Issue No.6 - in the Affirmative;
Issue No.7 - in the Affirmative;
Issue No.8 - in the Negative;
Issue No.9 - as per Final Order below;
Additional Issue No.10-in the Negative;
Issues in O.S.No.5716/2007:
Issue No.1 - in the Negative;
Issue No.2 - in the Negative;
Issue No.3 - in the Negative;
Issue No.4 - as per Final Order below;
Issues in O.S.No.898/2009:
Issue No.1 - in the Negative;
Issue No.2 - in the Negative;
Issue No.3 - as per Final Order below;
for the following:
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
33 c/w. O.S.No.898/2009
Reasons
33. Issue No.1 in O.S.No.499/1995:
The plaintiff contends that, the suit schedule
properties are the joint family properties of the
plaintiff and defendants 1 to 5.
34. The plaintiff, who is examined as P.W.1,
deposes that, suit properties are joint family
properties of plaintiff and defendants.
35. The plaintiff has relied upon "Ex.P43" and
Exs.P27 to P39 - Record of Rights of some of the
suit properties, Ex.P41-copy of Will Deed dated
15-12-1995 executed by Channamma-mother of
plaintiff, in favour of defendant No.1
36. On the other hand, defendants contend
that, suit properties are not the joint family
properties of plaintiff and defendants.
37. The defendants rely Ex.D151-Will Deed
dated 2-11-1991, Ex.D152-Wil Deed dated
25-6-1993, Ex.D168-Will Deed dated 15-12-1995
(Ex.P41) and admission of plaintiff as P.W.1 in
O.S.No.499/1995 in paras 32, 35, 36, 37, 52, 57,
58, 59, 60, 70, 71 and in para 10 of his written
statement of O.S.No.2786/2001, on the file of this
Court.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
34 c/w. O.S.No.898/2009
38. P.W.1 contends that, suit properties are
joint family properties, purchased out of pensionary
benefits of his father Gangappa @ Gangaradhya,
who retired as Jailor in Government service and out
of income derived from agricultural lands and from
profits earned out of family business called
'Navarang Electricals'. But, plaintiff has not
produced any evidence to show how much
pensionery benefits received and how much
pensionery benefits are invested by his father
Gangappa @ Gangaradhya after his retirement, in
the family business called 'Navarang Electricals'.
39. Further, plaintiff has not produced any
evidence, such as Books of Accounts of 'Navarang
Electricals", to show the amount of profits earned by
it and the amount of profits of Navarang Electricals
used for purchasing suit properties, in the name of
defendants 1 to 4.
40. On the other hand, plaintiff, who is
examined as P.W.1, admits in para 32 of his cross-
examination that, he has not added properties i.e.,
Plot No.19 standing in the name of his father and
mother and property bearing No.7 standing in the
name of defendant No.4-Manjunath in this suit, as
joint family properties.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
35 c/w. O.S.No.898/2009
41. Para No.32 of cross-examination of
P.W.1, reads as under:
"32. It is true to suggest that plot
No.19 of Vishwas apartments of
Shankarapuram was in the name of my
mother. It is true to suggest that property
No.323 of Sadashivanagar, property No.4/2
of Vyalikaval, land measuring totally 23 acres
15 guntas in Sy.No.38 to 41 and 43 and 44
of Thammenahalli of Dasanapura hobli stood
in the name of my mother. It is true to
suggest that my mother possessed totally 33
acres 1 gunta in Sy.Nos. 89/1 and 2, 91,
92/1, 90/1, 87/1, 87/2A and 2C of
Kudanagere village of Dasanapura. It is true
to suggest that the said properties were
purchased by my father. Witness volunteers
that my father and mother have jointly
purchased the said properties. It is true to
suggest that I have not arrayed those
properties in the present suit."
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
36 c/w. O.S.No.898/2009
42. In para 35, plaintiff, who is examined as
P.W.1, admits as under:
"35. I have filed the present suit about
suit items 1 to 27 in schedule No.1. I am
aware as to how those properties purchased
and in whose name and by whom. It is not
true to suggest that suit item No.1 of
schedule -1 i.e., house No.126, of 10th cross,
Malleswaram is the self acquired property of
Shadakshari. Witness volunteers that it was
purchased out of income from the business
of all. It is not true to suggest that suit item
No.3 site No.27 and 28 of Geddalahalli of
Yeshwanthapura Hobli, site No.95 of
Industrial layout, house No.108/5 of
Dasarahalli village, property No.1802 of 8th
Main, RPC Layout and land in Sy.No.3 shown
at item No.11 of Chamarajanagar taluk were
the self acquisitions of defendant No.3
Shadakshari. Witness volunteers that they
are all properties purchased out of the
income from the business of all. "
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
37 c/w. O.S.No.898/2009
43. In para 36 and 37, plaintiff, who is
examined as P.W.1, admits as under:
"36. It is true to suggest that suit item
No.17 property No.381 of Mahalakshmi
layout has been sold by Shadakshari. Witness
volunteers that he sold subsequent to filing
of this suit. It is not true to suggest that the
said property is the self acquired property of
Shadakshari and therefore he had alienated
the same.
37. It may be that in the present suit
I have included the properties acquired out
of self income of Paramashivaiah.
Paramashivaiah had purchased those
properties out of his retirement benefits.
I do not know what was the quantum of
retirement benefits received by him. It is
true to suggest that the properties
purchased by Paramashivaiah have been
separately enjoyed by him. It is true to
suggest that properties purchased by
Shadakshari have been separately enjoyed by
him. Witness volunteers that as they have
purchased they are enjoying separately."
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
38 c/w. O.S.No.898/2009
44. In para 51 and 52, plaintiff, who is
examined as P.W.1, admits thus:
"51. It is true to suggest that
I possessed properties at Chamarajanagar
district standing in my name. There was a
dispute about the said properties between
me and Shadaksharaiah before Asst.
Commissioner, Kollegal. It is not true to
suggest that the said Asst.Commissioner has
passed an order holding that I have
fabricated palupatti and affidavit by forging
the signature of Shadaksharaiah. Appeal
preferred by Shadaksharaiah before the said
A.C. was dismissed.
52. I have not included the properties
standing in my name situate at
Chamarajanagar and Mysore in the present
case filed by me. I have not purchased the
property at Lavelle road. Witness volunteers
that:- it was purchased by my brother. I have
stated in my written statement in OS 2786/01
that I purchased Lavelle road property out of
my income and exertion. I do not possess any
document to evidence my separate income to
acquire the said property."
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
39 c/w. O.S.No.898/2009
45. In para 57, plaintiff admits as under:
"57. Myself and Shadakshari were
looking after Navarang Electricals business.
Defendant No.4 Manjunath is a doctor. He is
still practicing. Now I see the schedule of the
plaint in OS 499/95. It may be that the
properties shown at item No.9, 19, 20, 21 and
22 are self acquisitions of defendant No.2
Paramashivaiah. "
46. In para 60, P.W.1 admits as under:
"60. The property No.20/7 of Lavelle
road formerly stood in my name. My brother
Basavaraj got the said property having a
registered gift deed executed by me in his
favour at his instance. He has entered into a
joint development agreement with a builder and
took 50% of the constructed area. He has got 4
to 6 service apartments in the said building."
47. In para 10 of written statement filed by
P.W.1, as defendant No.3, in O.S.No.2786/2001, he
admits as under:
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
40 c/w. O.S.No.898/2009
"10. The defendant submits that the
properties mentioned n the schedule have
been purchased by the defendants, in their
individual names out of their own exertions
and income as the plaintiff and the 2nd
defendant for obvious reasons deprived him
of his legitimate share in the profits from the
family business and subject mater of the
earlier proceedings."
48. On going through admissions of plaintiff
as P.W.1 given in his cross-examination, stated
supra, it goes to show that, he has produced
documents standing in the name of or purchased by
defendant No.3-Shadakshari and defendant No.4-
Manjunath and he has not produced any documents
pertaining to properties standing in his name, in
Mysuru, Chamarajanagar and Bengaluru and has not
produced any documents pertaining to properties
standing in the name of his parents and his other
brothers, such as defendant No.1 and defendant
No.2.
49. In a suit for partition, plaintiff has to bring
all joint family properties standing in the names of
plaintiff and all defendants, to blend them as joint
family properties. In the present suit, plaintiff has
not included all the properties standing in the name
of himself and other defendants, which shows that,
plaintiff has not come to Court with clean hands.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
41 c/w. O.S.No.898/2009
50. Further, admission of plaintiff as
defendant No.3 in O.S.No.2786/2001, in para 10 of
his written statement that, "properties mentioned in
schedule have been purchased by defendants in their
individual names out of their own exertion and
income", goes to show that, there are other
properties standing in the name of himself and other
defendants (shown in schedule of O.S.No.
2786/2001) which are their self acquired properties
and he has not shown some of them as suit
properties in this suit i.e., O.S.No.499/1995.
51. Further, admission of plaintiff, who is
examined as P.W.1 in O.S.No.499/1995 admits that,
his mother has executed Will Deed dated
15-12-1995, in which, she has reiterated and
referred to her previous Will Deeds dated
2-12-1991 and 25-6-1992, whereunder, she has
given her properties to plaintiff and defendants 1 to
4. Plaintiff has accepted execution of Will Deed by
his mother, in favour of him and defendants 1 to 4.
52. Therefore, in view of non-inclusion of
other properties standing in his own name, and
standing in the name of other defendants i.e.,
defendants 1 to 4 and inclusion of self acquired
properties of defendant No.2, defendant No.3 and
defendant No.4 into this suit and in view of the fact
that, plaintiff has not shown how much profit is
earned from family business 'Navarang Electricals'
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
42 c/w. O.S.No.898/2009
and how much amount of said profits is utilized for
purchase of suit properties and in view of admission
of P.W.1 stated supra that, item Nos.9, 19, 20, 21
and 22 are self acquisitions of defendant No.2, I hold
that, all the suit schedule properties are not the joint
family properties. Accordingly, I hold Issue No.1 in
O.S.No.499/1995 in the Negative.
53. Issue No.2 in O.S.No.499/1995:
In view of my answer to Issue No.1 in the
Negative, I hold this Issue in the Negative.
54. Issue Nos.3 and 4 in O.S.No.499/1995 :
For the sake of convenience and to avoid
repetition of facts and in view of the fact that, these
Issues are inter-linked and inter-connected with each
other, these two Issues are taken-up together for
common consideration.
55. The Defendant No.2 contends that, item
Nos.9, 19, 20, 21 and 22 of the plaint schedule are
his self acquired properties and item No.18 of the
plaint schedule property is of Anusuya Devi and item
No.24 of plaint schedule property is of Mamatha.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
43 c/w. O.S.No.898/2009
56. P.W.1 admits in para 57 and 58 of his
cross-examination, which reads thus:
"57. Myself and Shadakshari were
looking after Navarang Electricals business.
Defendant No.4 Manjunath is a doctor. He is
still practicing. Now I see the schedule of
the plaint in OS 499/95. It may be that the
properties shown at item No.9, 19, 20, 21
and 22 are self acquisitions of defendant
No.2 Paramashivaiah. "
58. I do not know whether suit item
No.18 in OS 499/95 is still in existence or
not. It may be that the said property
originally belonged to Smt.Anasuya wife of
Paramashivaiah. It is true to suggest that the
said suit item No.24 belongs to
Smt.Mamatha, daughter of Paramashivaiah. I
do not know that suit item No.23 does not
belong to any of my family members.
57. In view of these admissions of P.W.1 in
para 57 and 58 of his cross-examination, it can be
said that, item Nos.9, 19, 20, 21 and 22 are self
acquired properties of defendant No.2 and item
No.18 is of Anusuya Devi and item No.24 is of
Mamatha. Accordingly, I hold Issue Nos.3 and 4 in
the Affirmative.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
44 c/w. O.S.No.898/2009
58. Issue Nos. 5 and 6 in O.S.No.499/1995 :
The Defendant No.2 has not produced any
evidence to prove these Issues. Hence, these Issues
are held in the Negative.
59. Issue No. 7 in O.S.No.499/1995 :
The Defendant No.3 contends that, "Navarang
Electricals" was individual business of Gangappa and
himself. But, plaintiff contends that, 'Navarang
Electricals' is of Partnership Firm of plaintiff,
defendant No.3 and their father.
60. The Plaintiff relies upon Ex.P43-
Partnership Deed dated 23-9-1988, entered into
between plaintiff and defendant No.3 in respect of
'Navarang Electricals'.
Having regard to the fact that, Ex.P43 is
Partnership Deed dated 23-9-1988 entered into
between plaintiff and defendant No.3, after death of
their father on 19-4-1988, it can be said that,
defendant is also partner of it. Hence, I hold Issue
No.7 in the Negative.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
45 c/w. O.S.No.898/2009
61. Issue Nos.8, 9, 10, 11 and 12 in
O.S.No.499/1995:
For the sake of convenience and to avoid
repetition of facts and in view of the fact that, these
Issues are inter-linked and inter-connected with each
other, all these Issues are taken-up together for
common consideration.
62. The Defendants have not adduced
evidence to substantiate these facts stated in these
Issues. Hence, these Issues are held in the Negative.
63. Issue No. 13 in O.S.No.499/1995:
The Plaintiff has not included other properties
standing in his name and in the name of other
defendants into this suit, although he admits in his
cross-examination that, some properties in
Chamarajanagar, Mysuru and Bengaluru, standing in
his name, are not included into this suit. Hence, I
hold that, suit is bad for non-inclusion of these
properties. Accordingly, I hold this Issue in the
Affirmative.
64. Additional Issue No.16 in O.S.No.499/1995:
The Defendant No.4 contends that, property
No.7,500 and land in Sy.No.87/2B and 87/2C are the
self acquired properties of defendant No.4.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
46 c/w. O.S.No.898/2009
65. The plaintiff, who is examined as P.W.1,
admits in his cross-examination in para 63, which
reads as under:
"63. Navarang Electricals was a
partnership firm. It belongs to joint family. I
have produced materials to evidence the
same. I am not aware that some of the
properties were purchased by defendant
No.4 and that they are his self acquisitions.
It is true to suggest that the remaining
properties other than the properties claimed
by defendant No.4 are joint family
properties. "
66. Accordingly, I hold this Issue in the
Affirmative.
67. Additional Issue No.17 in O.S.No.499/1995:
The Defendant No.9 contends in her counter
claim that, plaintiff and defendants are absolute
owners of property bearing Sy.No.45/1, 48/1 and
125/1 and Khata No.241, situated at Hebbal Village,
and she be allotted 1/12th share in all the plaint
schedule properties.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
47 c/w. O.S.No.898/2009
68. The Defendant No.9 has failed to show
that, these suit properties are joint family properties
of plaintiff and all the defendants. Hence, I hold that,
defendant No.9 has failed to prove this Issue.
Accordingly, I hold this Issue in the Negative.
69. Issue Nos. 1 and 2 in O.S.No.5716/2007:
For the sake of convenience and to avoid
repetition of facts and in view of the fact that, these
Issues are inter-linked and inter-connected with each
other, these two Issues are taken-up together for
common consideration.
70. The plaintiffs contend that, suit properties
are undivided ancestral properties of plaintiffs and
defendants 1 to 10.
71. The Plaintiff No.2, who is examined as
D.W.4, has reiterated the same facts in her
evidence.
72. The plaintiffs, in order to substantiate
their contentions, have not produced any
documents.
73. On the other hand, defendants contend
that, the suit properties are self acquired properties
of defendants.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
48 c/w. O.S.No.898/2009
74. But, defendant No.3 in this suit, as well as
in O.S.No.2786/2001, contends in his written
statement of O.S.No.2786/2001 that, "suit
properties of this suit, such as, property No.19/2 and
19/3 of 1st Anjaneya Temple Street, Property No.47
and 47/1 of 15th Cross, Malleshwaram and Property
No.323 of 15th Cross, Sadashivanagar, are purchased
respectively, by 1st defendant, in 1989, out of his
retirement benefits and exertion, purchased by
father of plaintiffs and defendants in April 1970, in
the name of Channamma in May 1988, and then she
transferred into the name of defendant No.1 and 3rd
defendant, under registered Will Deed dated
2-12-1991, and purchased by Channamma, out of
her own funds.
75. In view of the facts that, plaintiffs have
not produced any evidence to substantiate their
contentions that, suit properties are joint family
properties of plaintiffs and defendants and further, in
view of admission of defendant No.3 of
O.S.No.2786/2001 in his written statement in the
said suit that, the suit properties are not the joint
family properties, I hold these Issues in the
Negative.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
49 c/w. O.S.No.898/2009
76. Issue No. 3 in O.S.No.5716/2007 :
Defendants contend that, suit is barred by
time. But, the defendants have not adduced any
evidence to substantiate their contentions. Hence,
this Issue is held in the Negative.
77. Issue Nos. 1 and 2 in O.S.No.2786/2001:
For the sake of convenience and to avoid
repetition of facts and in view of the fact that, these
Issues are inter-linked and inter-connected with each
other, these two Issues are taken-up together for
common consideration.
78. The Plaintiff contends that, suit properties
are acquired out of joint family funds of plaintiff and
defendants and plaintiff has 1/12th share in the suit
properties.
79. The plaintiff has not produced any
evidence to show that, suit properties are acquired
from the profits earned by family business called
'Navarang Electricals'.
80. The plaintiff has not produced any
materials to show the specific date, when 'Navarang
Electricals' came into existence and what are it's
earnings and which of the suit properties are
purchased by it out of it's profits, in the name of
defendants.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
50 c/w. O.S.No.898/2009
81. Further, the plaintiff, who is defendant
No.2 in O.S.No.499/1995, has filed his written
statement in O.S.No.499/1995, wherein he contends
that, "It is submitted, Item No.9 of the schedule
property is a self-acquired property of this defendant
the defendant during 1980 had purchased the said
property of his personal earnings. It is submitted this
Defendant was employed at State Power Corporation
as an Assistant Executive Engineer, and was getting
handful of salary out of which it has been acquired."
and he has not included these properties in this suit.
82. Hence, in the absence of materials
available on record to show that, suit properties are
earned out of income of 'Navarang Electricals' as
contended by this plaintiff, I hold that, plaintiff has
failed to prove Issue No.1. Hence, I hold Issue Nos.1
and 2 in the Negative.
83. Issue Nos. 3, 4, 5, 6 and 7 in
O.S.No.2786/2001:
For the sake of convenience and to avoid
repetition of facts and in view of the fact that, these
Issues are inter-linked and inter-connected with each
other, all these Issues are taken-up together for
common consideration.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
51 c/w. O.S.No.898/2009
84. The Defendants contend that, suit item
Nos.1, 2, 6, 7 and 10 are the self acquired properties
of defendant No.3; suit item No.3 was given under
Will by Smt.Channamma during February 1996; suit
item Nos.4, 9, 11 and 12 properties are the self
acquired properties of late Channamma; suit item
No.5 is the self acquired property of defendant No.1
and suit item No.8 is the self acquired property of
defendant No.4 and therefore, plaintiff has no right
on these properties.
85. The defendants have produced and relied
upon Exs.D151, 152 and 168 - Will Deeds dated
2-12-1991, 25-6-1992 and 15-12-1995,
respectively, wherein there is a recital that, some of
suit properties of this suit belonged to
Smt.Channamma, purchased by her, out of her milk
dairy business, are bequeathed to plaintiff and his all
brothers, under said Will Deeds. The plaintiff has
not produced any rebuttal evidence to disprove the
said Will Deeds, since these Will Deeds are proved by
defendants, by examining attesting witnesses and
scribes of the said Will Deeds, as required under
Section 68 of Hindu Succession Act and Section 63 of
Indian Evidence Act.
86. Hence, I hold that, defendants have
proved these Issues. Accordingly, I hold these Issues
in the Affirmative.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
52 c/w. O.S.No.898/2009
87. Issue No. 8 : No evidence is adduced
by defendants to prove this Issue. Hence, this Issue
is held in the Negative.
88. Additional Issue No. 10 : The Defendant
No.8 contends that, he is lawfully entitled for counter
claim, claimed by her.
89. Defendant has not produced any evidence
to show that, suit properties are joint family
properties and she has got 1/12th share in them.
Hence, in the absence of evidence on record, I hold
Additional Issue No.10 in the Negative.
90. Issue Nos. 1 and 2 in O.S.No.898/2009:
For the sake of convenience and to avoid
repetition of facts and in view of the fact that, these
Issues are inter-linked and inter-connected with each
other, these two Issues are taken-up together for
common consideration.
91. The Plaintiffs contend that, suit properties
are the joint family properties of plaintiffs and
defendants.
92. The plaintiff No.2, who is examined as
D.W.4, has reiterated these facts in her evidence.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
53 c/w. O.S.No.898/2009
93. On the other hand, defendant No.1
contends that, suit properties are self acquired
properties of Channamma, which she purchased out
of her dairy business of milk vending.
94. Legal representatives of deceased
defendant No.1 have also contended the same in
their written statement.
95. The plaintiffs have not produced any
evidence to show that, suit properties, though
standing in the name of their mother-Channamma,
were purchased by their father out of profits earned
from 'Navarang Electricals' business.
96. On going through Ex.D151-Will Deed
dated 2-12-1991, Ex.D152-Will Deed dated
25-6-1992 and Ex.D168-Will Deed dated
15-12-1995, there is recital in Ex.D151, D152 and
D168-Will Deeds, that, Channamma-Testator of
these Wills, was vending milk by carrying on dairy
business. Ex.D168-Will Deed dated 5-12-1995
contains the recital in respect of execution of Will
Deed dated 2-12-1991 (Ex.D151) and Will Deed
dated 25-6-1992 (Ex.D152) and it is also mentioned
in Ex.D168-Will Deed dated 15-12-1995 to the effect
that, Ex.D151 and Ex.D152 are not revoked and they
are given effect to, in addition to execution of
Ex.D168-Will Deed dated 15-12-1995, by
Chennamma.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
54 c/w. O.S.No.898/2009
97. Execution and attestation of Will Deeds
dated 2-12-1991, 25-6-1992 and 15-12-1995 are
proved by defendants, by examining D.Ws. 6, 7 and
8-Attesting Witnesses, to these Wills and by
examining D.W.9- to prove that, deceased father of
this witness had prepared Ex.D151-Will Deed dated
2-12-1991.
98. Suit properties mentioned in this suit are
bequeathed to plaintiff and defendants 1 to 4 of
O.S.No.499/1995 by Channamma, Vide Exs.D151,
152 and 168 - Will Deeds, as these properties are
her self acquired properties. Further, on going
through recital in Ex.D151, coupled with receipt
produced herein, it goes to show that, Rs.1-lakh has
been received by plaintiff No.3, through cheque
No.219788 dated 24-11-2000, drawn on Vijaya
Bank, Sadashivanagar, Branch, Bengaluru, from
defendant No.1-G.Basavaraj.
99. In view of the reasons stated above,
I hold that, plaintiffs have failed to prove that, suit
properties are the joint family properties of plaintiffs
and defendants and they have got 1/12th share each
in all the suit properties. Accordingly, I hold Issue
Nos.1 and 2 in the Negative.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
55 c/w. O.S.No.898/2009
100. Learned Counsel for defendant No.1 has
relied upon the following citations:
1). Kuppala Obul Reddy vs. Bonala Venpata
Narayana Reddy (dead) through LRs.reported in
(1984) 3 SCC 447, wherein it is held that:
"Hindu Law-Joint family-Joint family property-
No presumption that a joint family possess
joint family property can arise even presuming
existing of joint family.
2). H.Siddiqui (Dead) by LRs. vs.
A.Ramalingam, reported in (2011) 4 SCC 240,
wherein it is held that:
"C. Evidence Act, 1872-S.65-Admissibility of
document in secondary evidence-Duty of
Court-Held, Court is obliged to examine
probative value of documents produced in the
Court or their contents and decide question of
admissibility of a document in secondary
evidence."
101. Learned Counsel for LRs. of 1st defendant
has relied upon the following citations:
1). R.N.Gosain vs, Yashpal Dhir, reported in
1992 (4) SCC 683, wherein it is held that:
" Rent Control and Eviction-Time for vacating
premises-Allowed by High Court on condition
of filing an undertaking of vacating the
premises within one month .. ... ... ..."
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
56 c/w. O.S.No.898/2009
2). Cauvery Coffee Traders, Mangalore vs.
Hornor Resources (International) Company Limited,
reported in 2011(10) SCC 420, wherein it is held
that:
"A. Contract and Specific Relief-
Termination/Discharge of Contract- ... ... "
3). Gangamma and others vs.
G.Nagarathnamma and others, reported in (2009) 15
SCC 756, wherein it is held that:
"A. Hindu Succession Act, 1956-S.14(1)-
Applicability and scope-Rights of a female heir
under, over acquired properties (as stridhan)-
Nature of such right over bename properties-
Stridhan of appellant wife, held, cannot be
subject to partition-By operation of S.14(1) she
is the full owner of those properties.
B. Hindu Succession Act, 1956-S.14(1)- word
"acquired"-Meaning-The word "acquired" in
S.14(1), held, should be given the widest
meaning-It is not restricted or limited by any
rule of Hindu Law and overrides all previous
law on the subject."
4). S.Sundaresa Pai and others vs. Sumangala
T.Pai (MRS) and another, reported in 2002(1) SCC
630, wherein it is held that:
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
57 c/w. O.S.No.898/2009
"A. Will-Credibility-Suspicious circumstances
alleged-Unnatural and uneven distribution of
assets-Held, it is purely within the discretion
of executant of the will and cannot by itself
raise suspicion -Will challenged by widowed
daughter to whom nothing was bequeathed -
Will held duly proved and upheld-Succession
Act, 1925,Ss, 61 and 63."
5). RFA No.178/2001 (PAR), Gajanan and
another vs. Dattatray and others, wherein it is held
that:
" ... The suit would not be maintainable
unless the plaintiffs sought for cancellation of
the sale deed. So if the principle laid down is
applied to the facts on hand the suit instituted
by the appellants is not maintainable solely on
the ground that they have not challenged the
gift deed Ex.D2."
6). Commissioner of Income Tax M.P., Nagpur
and Bhandara, Nagpur reported in AIR 1966 SC 24,
wherein it is held that:
"6. The question is whether on the death of
Nandlal his heirs i.e., them embers of his
branch of the family, automatically became the
partners of the said firm. The answer to the
question turns upon Section 42 of the Indian
Partnership Act, 1932 (Act 9 of 1932), the
material part of which reads:
"Subject to contract between the
partners a firm is dissolved by the death of a
partners."
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
58 c/w. O.S.No.898/2009
7). Bhau Ram vs. Baij Nath Singh, reported in
AIR 1961 SC 1327, wherein it is held that:
"24. .... Here we have a decree which is one
and indivisible. The effect of it is that upon the
respondent paying the money into Court he
would be entitled to the property and to
obtain possession of it and the appellant
would be entitled to withdraw the money... "
102. Learned Counsel for 2nd defendant has
relied upon the following citations:
1). Binod Bihari Lal and others vs. Rameshwar
Prasad Sinha and others, reported in AIR 1978 SC
page 1201, Head Note 'A', wherein it is held that:
"(A) Hindu Law-Partition-Suit for -Pleadings-
Plaint stating that certain properties were joint
family properties-Pleading is sufficient to
enable Court to look into evidence of blending
which are merely historical aspect of question
as to how properties had become joint family
properties-No specific pleading as t blending
is necessary."
2). Baikuntha Nath Paramanik (dead) by his
L.Rs. and heirs vs. Sashi Bhusan Pramanik (dead by his
LRs. and others, reported in AIR 1972 SC page 2531,
Head Note 'A', wherein it is held that:
"(A) Hindu Law-Joint family-Acquisitions-
Presumption as to. "
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
59 c/w. O.S.No.898/2009
3). Bhagwant P.Sulakhe vs. Digambar Gopal
Sulakhe and others, reported in AIR 1986 SC page
79, Head Note 'A', wherein it is held that:
"(A) Hindu Law-Joint family property-Severance
of status of joint family-It has no effect on
joint family property-Property continues to be
joint until partitioned."
4). G.Rangaiah vs. Govindappa & Ors. reported
in AIR 2008 Kar. Page 151, Head Note (A), wherein
it is held that:
"(A) Transfer of property Act (4 of 1882), S.5-
Evidence Act (1 of 1672), Ss.17, 18-Factum of
partition-Proof-mere separate living is no proof
of partition in joint family properties-
Admission that plaintiff is living separately
should be of precise fact. .... .."
5). G.Mahalilngappa vs. G.M.Sayitha, reported
in KCCR 2005 (4) page 2670 SC Head Note 'C',
wherein it is held that:
" C. Benami Transactions (Prohibition) Act,
1988-Presumption-The presumption that the
property was purchased for the benefit of the
respondent only was amply rebutted by the
appellant by adducing evidence that the suit
property, though purchased in the name of
the respondent, was so purchased for the
benefit of the appellant and his family."
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
60 c/w. O.S.No.898/2009
6). Sri.Adiveppagouda vs. Smt.Manjula and
others, reported in KCCR 2012 (4) page 3393 (DB),
wherein it is held that:
"Hindu Law-Joint family-joint family property-
person had his separate income-No iota of
material placed by persons contending that
the property acquired by the person is a joint
family property-No material is placed to show
that joint family had contributed to acquire
property-The property cannot be considered
as joint family property."
7). Smt.Jaswant Kaur vs. Smt.Amrit Kaur and
others, reported in AIR 1977 SC page 74, wherein it
is held that:
" (A) Succession Act (1925), S.63-Will-
Execution of, shrouded in suspicion-Evidence
led by propounder of Will-Appreciation."
8). Lakshmi Amma and another vs. Talengala
Narayana Bhatta and another, reported in AIR 1970
SC page 1367, wherein it is held that:
"Contract Act (1872), Section 16-Deed of
settlement-Entire property settled in favour of
one of the grandson by executant to the
exclusion of his own issues ... ... ........"
9). Smt.G.Rama vs. T.G.Seshagiri Rao
(deceased by LRs.) reported in AIR 2008 SCW page
4857, wherein it is held that:
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
61 c/w. O.S.No.898/2009
"Specific Relief Act (47 of 1963), S.6- Hindu
Succession Act (30 of 1956), S.14-Hindu
Adoption and Maintenance Act (78 of 1956),
S.19-Suit for possession-Plaintiff and father-in-
law of defendant had purchased suit premises
jointly-plaintiff claimed separate possession of
suit premises on execution of release deed in
his favour-Defendant who had been residing in
suit premises as licensee refused to vacate
same- .. .. "
10). Chamu Jinnappa Sheri and others vs.
Savitri Yeshwantrao Chagule and others, reported in
AIR 2005 Kar. 30, wherein it is held that:
"Hindu Succession Act (30 of 1956), S.14(1)-
Enlargement of widow's estate-Parties
governed by Bombay School of Mitakshara law
for her maintenance-Becomes her absolute
property-By way of registered partition deed-
She had agreed that she will enjoy property
during her lifetime and thereafter it would
devolve upon her sons-Section 14(1) has no
application-Claim by her daughters over
property-Not tenable."
11). Thayappa vs. Aswathanarayanappa,
reported in ILR 1987 Kar. Page 3710, wherein it is
held that:
"Hindu Succession Act 1956 (Central Act
No.30 of 1956) - S.14(1)-Only ascertained
properties falling to share of Hindu female
became absolute property.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
62 c/w. O.S.No.898/2009
Held:
It is only when ascertained properties fall to
the share of a Hindu female which can be said
to have been acquired by her before or after
the commencement of the Act that becomes
her absolute property in terms of sub-section
(1) of Section 14 of the Act."
12). Sharad Subramanyan vs. Sumi Mazumdar
& Ors. reported in AIR 2006 SC 1993, wherein it is
held that:
"Hindu Succession Act 1956 (30 of 1956),
S.14(2) Property of female Hindu-When
becomes absolute-Property given to female by
her deceased-husband by making Will-No
material to indicate that property was given in
lieu of her right of maintenance-Even in terms
of Will she had right of enjoyment in respect
of entire property-Held that she had only
limited interest namely, life interest in suit
property."
103. Learned Counsel for defendant No.3 has
relied upon citation K.K.Velusama vs. N.Palanisamy,
reported in 2011 AIR SCW 2296, wherein it is held
that:
"(D) Civil P.C. (5 OF 1908), s.151- Inherent
powers-Exercise of, for reopening of evidence
or recalling any witness-After conclusion of
arguments and case reserved for judgment-
Permissible in exceptional and extraordinary
circumstances to meet ends of justice and
prevent abuse of process of Court."
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
63 c/w. O.S.No.898/2009
104. Learned Counsel for defendant No.3 has
relied upon the following citations:
1). Sri J.T.Surappa and another vs. Sri
Satchidhanandendra Saraswathi Swamiji Public
Charitable Trust and others, reported in ILR 2008
Kar. 2115, wherein it is held that:
" (A) Indian Succession Act, 1925-Section
2(h)-Will-Proof of-Legal requirements-Duty of
the Court-Five steps to be considered-HELD,
Under the Act, the Will to be valid, should be
reduced into writing, signed by the testator
and shall be attested by two or more
witnesses and at least one attesting
witnesses shall be examined. If these legal
requirements are not founds, in the eye of
law there is no Will at all. Therefore, the first
step is that if the documents produced
before the Court prima facie do not satisfy
these legal requirements, the Court need not
make any further enquiry, in so far as its due
execution is concerned and can negative a
claim based on the said document-FURTHER
HELD, The second step is that when the legal
heirs are disinherited, the Court has to
scrutinize the evidence with greater degree
of care than usual-The third step would be to
find out whether the testator was in a sound
state of mind at the terms of executing the
Will-The fourth step would be to find out
whether there exists any suspicious
circumstances surrounding the execution of
the Will-The fifth step is to consider whether
the Will that is executing is in accordance
with Section 63 of the Act read with Section
68 of the Evidence Act.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
64 c/w. O.S.No.898/2009
(B) INDIAN SUCCESSION ACT, 1925-
SECTION 63 R/W SECTION 68-Execution of a
Will under-Attestation and Execution-
Procedure-HELD, The Will that is executed is
in accordance with Section 63 of the Act read
with Section 68 of the Evidence Act. The Will
is a document required by law to be attested.
The execution of Will must include both
execution and attestation. "Attestation" and
"execution" are different acts, one following
the other. There can be no valid execution
without due attestation, and if due
attestation is not proved, the fact of
execution is of no avail-The Court has to find
out whether the Will bears the signature of
the testator and the said signature is placed
at a place with the intention of giving effect
to the Will. Further the said Will has been
attested by two witnesses and whether the
witnesses have seen the testator affixing his
signature to the Will in their presence and if
not at least they receive from the testator a
personal acknowledgment of his signature or
mark and each of them shall sign the Will as
attesting witness in the presence of the
testator though it shall not be necessary that
both of them should be present at the same
time-FURTHER HELD, Section 68 of the
Evidence Act deals with proof of execution of
documents required by law to be attested. A
Will is a document which requires to be
attested under Section 63(c) of the Act.
Therefore, the said document shall not be
used as evidence until at least one attesting
witness has been called for the purpose of
proving its execution, if there be an attesting
witness alive and subject to the process of
the Court and capable of giving evidence.
Whether such a Will is registered or not
registered, in the eye of law it makes no
difference. Even if the said Will is registered
under the provisions of the Indian
Registration Act, 1908, whether the
execution of the Will is admitted or denied, it
is necessary to call an attesting witness in
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
65 c/w. O.S.No.898/2009
proof of the execution of the said Will. Under
no circumstances the proof of execution of
the Will is dispensed with in law-It is only
after the Court is satisfied that all these tests
are successfully passed, the Court can
declare that Will is executed in accordance
with law, as such it is valid and enforceable.
(C) INDIAN SUCCESSION ACT, 1925-
SECTION 63- Execution of unprivileged Will-
Tree rules to be the complied with-HELD, The
first Rule is the said Will should be signed by
the testator. If he is incapable of signing his
mark is to be affixed. If some other person is
signing the Will, the other person shall affix
his signature in the presence of the testator
and on his direction. Therefore, it is
mandatory that the Will should contain the
signature or mark to authenticate the same,
without which it cannot be said to be the Will
of the testator-The second rule is the
signature or the mark shall be so placed on
the Will, that it shall appear that it was
intended thereby to give effect to the writing
as a Will-The signature of the testator may be
found on all pages at the end also.
According to sub-section (b) the signature
need not necessarily be at the end of the
Will. It does not matter in which part of the
Will the testator signs. If a Will is written on
several sheets of paper, with all sheets
severally signed, one signature on the last
sheet made with the intention of executing
the whole is sufficient-Mere signature found
on the Will at some place is not sufficient. If
the signature is found at some place of the
page and it does not appear that such a
signature was put with any such intention or
giving effect to the Will, then the signature or
mark has no value. The test is whether the
said signature found on the will conveys the
intention of the testator to give effect to the
writing as a Will-The third rule is the Will
requires attestation by two or more
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
66 c/w. O.S.No.898/2009
witnesses. Attestation means the persons,
who have affixed their signature as attesting
witness, saw the executant, (in the case of a
Will a testator), sign or affix his mark to the
instrument-Not only the attesting witness
should sign the Will in the presence of the
testator, but they should also see with their
eyes the testator signing the instrument or if
they are not present at the time of signing
the instrument, the testator should
acknowledge to them his signature or mark
to the said instrument.
(D) INDIAN SUCCESSION ACT, 1925-CLAUSE
(C) OF SECTION 63 -Requirement of due
attestation to prove the Will-HELD, To prove
due attestation under Section 63(c) it is open
to the propounder of the Will to examine a
person who was present at the time of
attestation, who saw the testator
acknowledging to such attesting witness who
was not present at the time of the testator
affixing his signature to the Will,
acknowledging his signature or mark and
then the attesting witness signing the Will in
the presence of the testator. That would
meet the requirement of clause (c) of Section
63. If an attesting witness is not present
when the testator affixed his signature and if
the testator does not acknowledge his
signature to the said attesting witness,
before the attesting witness affixes his
signature to the Will, then this requirement
of law is not fulfilled and the Will is not
proved. In those circumstances, if the other
attesting witness is not examined or other
evidence is not adduced regarding due
attestation, the requirement of Section 63(c)
is not complied with, Will is not proved-ON
FACTS, HELD, Evidence on record clearly
discloses that testator was not in a sound
state of mind at the time when the Will come
into existence and it has come into existence
under suspicious circumstances-The
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
67 c/w. O.S.No.898/2009
propounder of the Will has failed to remove
the suspicious circumstances-Petitioners are
not entitled to the letters of administration
sought for."
2). Bharpur Singh & Ors. vs. Shamsher Singh,
reported in AIR 2009 SC 1766, wherein it is held
that:
"Succession Act (39 of 1925), S.63-Evidence
Act (1 of 1872), Ss.69, 69, 70 and 90-Will-
Nature of proof required-Suspicious
circumstances surrounding execution of Will
indicated-Propounder must offer reasonable
explanation to remove such suspicious
circumstances. "
3). Sharanabasappa and others vs.
Shivakumar and others, reported in 2008 (2) KCCR
822 (DB), wherein it is held that:
"A. Will-Suspicious circumstances-No reason as
to no share is provided to the legal heir-
Difference in writing-Both paper and ink;-Goes
to the root of the matter. "
4). W.E.Sambandam vs. W.E.Sathyanarayanan
and others, reported in ILR 2007 Kar. 1484, wherein
it is held that:
"INDIAN SUCCESSION ACT, 1925-Sections 59,
61, 63, 68 and 222-Will-Proof of-Suspicious
Circumstances-Tests to be applied-Satisfaction
of the Court-Execution of the registered Will-
Typed Will came to be registered when the
testator was in hospital-Suspicious character
of the Will-Finding of the Trial Court-Will is not
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
68 c/w. O.S.No.898/2009
genuine-Challenge to-HELD, A mere
registration of the Will would not wipe out the
suspicious character of a Will-Learned Trial
Judge has rightly disbelieved the Will. Appeal
is dismissed."
5). K.Laxmanan vs. Thekkayil Padmini and
others, reported in AIR 2009 SC 951, wherein it is
held that:
"(A) Succession Act (39 of 1925), S.63-Will-
Execution-Burden of proof-Lies on
propounder."
6). Chandrakant Manilal Shah and another vs.
Commissioner of Income-tax, Bombay-II, reported in
AIR 1992 SC 197, wherein it is held that:
" Partnership-Undivided member of HUF -can
enter into partnership with Karta qua family
business-Can contribute either money of his
labour and skill and thus become working
partner."
105. Learned Counsel for defendant No.4 has
relied upon the following citations:
1). S.A.Quddus vs. Veerappa and others,
reported in AIR 1994 Kar. 20, wherein it is held that:
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
69 c/w. O.S.No.898/2009
"(A) Hindu Law-Self acquisition by member of
joint family-Acquisition claimed to be by junior
member of family who is not its karta-Family
not owning anything besides cycle shop and
some dry land-No evidence to show income
from dry land-Cycle shop is also not shown to
yield such income as to enable junior member
to acquire properties-On the other hand
evidence showing that junior member was
practicing as Ayurvedic pundit at two places-
material also showing that member in
question was advancing loans on mortgage
out of his own earnings-In sale deed relied on
by opposite party, it was recited that property
in question was property of junior member in
question-Property must be taken to be self
acquisition of junior member."
2). Chandrakant Manilal Shah and another vs.
Commissioner of Income-tax, Bombay, reported in AIR
1992 SC 66, wherein it is held that:
"(A) H.U.F.-Contract inter se between
undivided members of family-Is permissible
under Hindu Law.
Hindu Law-Inter se contract between
undivided members of family-Permissible."
3). Mrs.Om rabha Jain vs. Abnash Chand and
another, reported in AIR 1968 SC 1083, wherein it is
held that:
" (A) Civil P.C. (1908), Order 6, Rule 2 -
Variance between pleading and proof.
The ordinary rule of law is that evidence
is to be given only on a plea properly raised
and not in contradiction of the plea".
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
70 c/w. O.S.No.898/2009
4). Uttam Singh Dugal and Co.Ltd. vs. Union
Bank of India and others, reported in AIR 2000 SC
2740, wherein it is held that:
"(A) Civil P.C. (5 OF 1908), O.12, R.6-
Judgment on "admissions" -Party making
plain admission entitling the other party to
succeed-Rule applies to such case-Rule also
applies where there is clear admission of facts
in face of which it is impossible for party
making such admission to succeed."
106. Learned Counsel for defendants No.6 and
7 has relied upon the following citations:
1). Narendra Kante vs. Anuradha Kante and
others, reported in 2010(2) SCC 77, wherein it is
held that:
"A. Hindu Law-Family Arrangement/
Settlement-Deed of family settlement seeking
to partition joint family properties-Signing of,
by all co-sharers-Necessity of-Family
settlement not signed by one of the co-sharers
-Right to challenge validity of, after acting
upon such family settlement-Held, deed of
family settlement seeking to partition joint
family properties cannot be relied upon unless
signed by all co-sharers-However, where the
deed of family settlement was not signed by
one of the co-sharers i.e Respondent 8, the
appellant co-sharers, after acting upon such
settlement, had no right to contend that said
settlement was valid." ........"
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
71 c/w. O.S.No.898/2009
2). Sharanabasappa and others vs.
Shivakumar and others, reported in 2008 (2) KCCR
822 (D.B.), wherein it is held that:
"A. Will-Suspicious circumstances-No reason
as to no share is provided to the legal heir-
Difference in writing-Both paper and ink;-Goes
to the root of the matter. "
3). Balathandayutham and another vs.
Ezhilarasan, reported in 2010(5) SCC 770, wherein it
is held that:
" B. Family and Personal Laws-Succession and
Inheritance-Will-Suspicious circumstances-
Existence of-Testamentary capacity-
Consideration of-Testator depriving appellant
(son) in his first Will but not in subsequent
Wills-Subsequent will being unregistered and
executed when testator was unwell- Testator
who from beginning was not staying with
appellant being taken to and staying in
appellant's house during last couple of days
prior to his death when he executed
subsequent Wills-Subsequent Wills on facts,
held, surrounded by suspicious circumstances-
Contract and Specific Relief-Undue influence-
Inference of-Contract Act, 1872,S.16."
4). W.E.Sambandam vs. W.E.Sathyanarayanan
and others, reported in ILR 2007 Kar. 1484, wherein
it is held that:
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
72 c/w. O.S.No.898/2009
"INDIAN SUCCESSION ACT, 1925-Sections 59,
61, 63, 68 and 222-Will-Proof of-Suspicious
Circumstances-Tests to be applied-Satisfaction
of the Court-Execution of the registered Will-
Typed Will came to be registered when the
testator was in hospital-Suspicious character
of the Will-Finding of the Trial Court-Will is not
genuine-Challenge to-HELD, A mere
registration of the Will would not wipe out the
suspicious character of a Will-Learned Trial
Judge has rightly disbelieved the Will. Appeal
is dismissed."
5). Prema vs. Nanje Gowda and others,
reported in 2011 (6) SCC 462, wherein it is held
that:
" C. Hindu Succession Act, 1956-S.6-A(as ins.
by Hindu Succession (Karnataka Amendment)
Act, 1990) and S.6 (as subs. W.e.f. 9-9-2005)-
Equal rights to daughter in coparcenary
property-Object-To achieve equality enshrined
in Arts. 14 and 15 of the Constitution and to
eliminate discrimination against daughters-
Constitution of India, Preamble and Arts. 14
and 15(3)."
6). Dandappa Rudrappa Hampali vs.
Renukappa @ Revanappa, reported in ILR 1993 Kar.
1182, wherein it is held that:
" Hindu Law-Property: Ancestral & Self-
acquired-Features, concept & Principles-Burden
of Proof-Nucleus, Blending, Self-acquisition:
Constituents-Initial burden re: existence of
sufficient family property to form nucleus on
plaintiff: a question of fact, proved by direct or
circumstantial evidence, clear, unequivocal &
clinching-Without finding as to requisite
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
73 c/w. O.S.No.898/2009
nucleus traceable t family assets not possible
to hold earnings & savings of person belongs
to entire joint family."
7). Sugalabai vs. Gundappa A.Maradi and
others, reported in ILR 2007 Kar. 4790, wherein it is
held that:
" HINDU SUCCESSION ACT, 1956-Section 6-THE
HINDU SUCCESSIN (KARNATAKA AMENDMENT)
ACT, 1990 (KARNATAKA ACT No.23/1994) -
SECTION 6-A(d)-HINDU SUCCESSION
(AMENDMENT) ACT, 2005- Married daughter
whether to treated as a co-parcener
irrespective of the marriage taking place prior
to the Karnataka Amendment Act, 1990
coming into force or afterwards and in view of
the subsequent amendment brought to the
principal Act by the Central Government by the
Hindu Succession (Amendment) Act, 2005
(C.A. 39/2005) w.e.f. 09-09-2005-HELD, The
provision of Section 6-A(d) of the Karnataka
Amendment Act, 1990 is repugnant to the
Central Act of 2005-As a result of substitution
of Section 6 of the Principal Act by way of the
central Amendment Act of 2005, the State Act,
which is earlier in point of time, cannot have
any effect-Supremacy of the Parliament,
therefore renders Section 6-A(d) of the
Karnataka Amendment Act, 1990 void -As per
Central Act of 2005, that a daughter of co-
parcener shall by birth become a co-parcener
in her own right from the commencement of
the Hindu Succession (Amendment) Act,
2005-In so far as the pending matters are
concerned, be it suit or an appeal, the Central
Amendment Act, 2005 brought into force
w.e.f. 09-09-2005 will have to be applied-
FURTHER HELD, The Central Amendment Act
of 2005, which has been brought into force
from 09-09-2005, shall not have any effect in
so far as any disposition or alienation
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
74 c/w. O.S.No.898/2009
including any partition or testamentary
disposition of property which had taken place,
before the 20th day of December, 2004-ON
FACTS HELD, As on the date of the decision
rendered by the Lower Appellate Court in the
year 2001, the Karnataka Amendment Act,
1990 was already in force, the daughter also
gets a share in the co-parcenary property and
she gets the same as is allotted to a son by
virtue of she having become a co-parcener-As
on the date of delivery of Appellate Court
Judgment, the Central Act of 2005 having
been brought into force, even the disability
with regard to the disentitlement of a married
daughter as mentioned in Section 6-A(d) of the
Karnataka Act, also ceases to apply.-Hence,
the findings of the Lower Appellate Court is
contrary to law and cannot be sustained."
8). Miss.R.Kantha vs.Union of India represented
by its Cabinet Secretary, Ministry of Law, Justice and
Company Affairs and another, reported in ILR 2009
Kar. 3699, wherein it is held that:
" (A) HINDU SUCCESSION (AMENDMENT) ACT,
2005-Section 6(1)(c) -Proviso to Section
6(1)(c)-Right of a daughter of a Co-parcener to
question any disposition or alienation of co-
parcenary property prior to 20-12-2004-HELD,
The 2005 Act having come into force with
effect from 9-9-2005 if dispositions and
alienations between 21.12.2004 and 9.9.2005
can be questioned, by implication, there is no
rational basis to restrict the right of a
daughter when the avowed object of the
legislation is to crate equal rights as between
a daughter and a son of a Co-parcener. Even if
it can be accepted that the apparent object to
so restrict the right was in order to prevent
litigation and to prevent settled positions from
being disturbed. The same analogy ought to
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
75 c/w. O.S.No.898/2009
apply to suits that are brought by the sons of
a Co-parcener. The inconvenience and
hardship would be no different.-FURTHER
HELD, if it is to be justified on the ground that
any alienations or other disposition has taken
place with the legal position, as it stood prior
to the amendment, in view and therefore
ought to be saved, the result is that a partition
that could otherwise be re-opened to address
the claim of a daughter, with a little or no
legal complication, is denied unreasonably.
Similarly an alienation in respect of which the
Co-parceners can be held to account for, in
conferring the daughter her due is also
immunized from challenge, to the unjustified
disadvantage of the daughter.-The possibility
of lapse of time or other intervening
circumstances, being such that the
determination of the share of a daughter
being rendered obscure or beyond redemption
on account of any alienation or disposition
prior to 20-12-2004-is necessarily a question
of fact depending on the circumstances of a
given case. There is no justification for the
prescription of a cut-off date of a blanket ban
on a daughter in enabling her to claim her
due, Hence, the proviso to Section 6(1)(c) of
Act 39 of 2005 is irrational and has no nexus
with the object of the Act and on the other
hand would nullify its declared object.
(B) HINDU SUCCESSION, 1956 (AS AMENDED
BY ACT 39 OF 2005)-Testamentary disposition-
Right to succession-Scope and ambit of
Section 6-HELD, Hindu Succession Act, 1956
(as amended by Act 39 of 2005), is a law
relating to intestate succession and regulates
succession to properties of all Hindus. The
only proviso under the Act, which provides for
testamentary succession also is Section 30.
Under that Section a Hindu is permitted to
dispose of any of his or her property by Will of
other testamentary disposition. It follows
therefore, that the provisions of the Act can be
enforced when the right to succession opens
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
76 c/w. O.S.No.898/2009
and not before.-The scope and ambit of
Section 6 declaring that on and from the
commencement of Act 39 of2005-the
daughter of a Co-parcener in a Joint Hindu
Family shall by birth become a Co-parcener as
the son and have the same rights and
liabilities as a son, can only be construed for
deciding the share that devolves on her when
her right to succession opens, having regard
to the scope and ambit of the Act itself. -ON
FACTS, HELD, The petitioner's father is said to
be alive and hence her right to succession as a
Co-parcener has not opened. The heading of
Section 6 itself would indicate that it concerns
the interest in Co-parcenary property that
would "devolve" on the daughter. "Devolve"
means to pass from a person dying to a
person living.
(C) CONSTITUTION OF INDIA-ARTICLES 14 &
16-SECTION 6(1)(c) OF THE HINDU
SUCCESSION AMENDMENT ACT (ACT 39/2005)
- Share of the daughter in respect of property
alienated prior to coming into force of Act
39/2005-HELD, When the share of the
daughter was in respect of property that was
alienated prior to coming into force of Act 39
of 2005 and before 20-12-2004, there is no
impediment in the daughter being enabled to
question the alienations and the denial of her
right to a share of the proceeds, even if the
rights of bona-fide third-party purchasers of
the properties are not to be disturbed.-The
avowed object of the law makers in having
enacted Act 39 of 2005 is negated by the
serious lacunae and ambiguity in the
legislation as observed by several learned
authors and jurists.-The proviso to Section
6(1)(c) of the Hindu Succession Amendment
Act (Act 39/2005) insofar as it pertains to
saving of any dispositions or alienations prior
to 20th December, 2004 is violative of Article
14 and 16 of the Constitution of India and
bears no rational nexus to the object of the
Amendment Act."
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
77 c/w. O.S.No.898/2009
107. Learned Counsel for defendants 6, 7 and
10, has relied upon the following citations:
1). S.Kesari Hanuman Goud v. Anjum Jehan &
Ors., reported in 2013(3) AKR page 262, wherein it
is held that:
" (B) Civil P.C. (5 of 1908), O.3, Rr. 1, 2-Power
of attorney holder -Cannot depose in place of
principal-Word "acts" in Rules 1 and 2-Does
not include deposing in place of principal."
2). Abdul Basheer and another vs. The State of
Karnataka, Rep. by its Chief Secretary and others,
reported in ILR 2013 Kar. Page 4435, wherein it is
held that:
" CODE OF CIVIL PROCEDURE, 1908-ORDER 3
RULES 1 AND 2-Holder of the power of
attorney to act on behalf of the Principal-
General Power of Attorney Holder has
tendered evidence for the plaintiffs-
Competency of the G.P.A. holder to speak for
the plaintiffs when there are serious
allegations of fraud and forgery with reference
to several documents and transactions
personally executed by the plaintiffs-HELD, It
was imperative for the plaintiffs have tendered
evidence in support of their case as regards
the several documents and transactions that
were personally executed by them or alleged
to have been exercised by them and in
support of the serious allegations of fraud and
forgery with reference to particular documents
and hence, there was virtually no evidence
available on behalf of the plaintiffs in support
of their case.-The Court below is justified in
negating the case of the plaintiffs among
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
78 c/w. O.S.No.898/2009
other grounds, on the ground that the G.P.A.
who had tendered evidence for the plaintiffs
was not competent to speak for the plaintiffs."
3). Dandappa Rudrappa Hampali vs.
Renukappa @ Revannappa, reported in ILR 1993 Kar.
Page 1182, wherein it is held that:
" Hindu Law-Property: Ancestral & Self-
acquired-Features, concept & Principles-Burden
of Proof-Nucleus, Blending, Self-acquisition:
Constituents-Initial burden re: existence of
sufficient family property to form nucleus on
plaintiff: a question of fact, proved by direct or
circumstantial evidence, clear, unequivocal &
clinching-Without finding as to requisite
nucleus traceable t family assets not possible
to hold earnings & savings of person belongs
to entire joint family."
4). Sugalabai vs. Gundappa A Maradi and
others, reported in ILR 2007 Kar. Page 4790, wherein
it is held that:
" HINDU SUCCESSION ACT, 1956-Section 6-THE
HINDU SUCCESSIN (KARNATAKA AMENDMENT)
ACT, 1990 (KARNATAKA ACT No.23/1994) -
SECTION 6-A(d)-HINDU SUCCESSION
(AMENDMENT) ACT, 2005- Married daughter
whether to treated as a co-parcener
irrespective of the marriage taking place prior
to the Karnataka Amendment Act, 1990
coming into force or afterwards and in view of
the subsequent amendment brought to the
principal Act by the Central Government by the
Hindu Succession (Amendment) Act, 2005
(C.A. 39/2005) w.e.f. 09-09-2005-HELD, The
provision of Section 6-A(d) of the Karnataka
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
79 c/w. O.S.No.898/2009
Amendment Act, 1990 is repugnant to the
Central Act of 2005-As a result of substitution
of Section 6 of the Principal Act by way of the
central Amendment Act of 2005, the State Act,
which is earlier in point of time, cannot have
any effect-Supremacy of the Parliament,
therefore renders Section 6-A(d) of the
Karnataka Amendment Act, 1990 void -As per
Central Act of 2005, that a daughter of co-
parcener shall by birth become a co-parcener
in her own right from the commencement of
the Hindu Succession (Amendment) Act,
2005-In so far as the pending matters are
concerned, be it suit or an appeal, the Central
Amendment Act, 2005 brought into force
w.e.f. 09-09-2005 will have to be applied-
FURTHER HELD, The Central Amendment Act
of 2005, which has been brought into force
from 09-09-2005, shall not have any effect in
so far as any disposition or alienation
including any partition or testamentary
disposition of property which had taken place,
before the 20th day of December, 2004-ON
FACTS HELD, As on the date of the decision
rendered by the Lower Appellate Court in the
year 2001, the Karnataka Amendment Act,
1990 was already in force, the daughter also
gets a share in the co-parcenary property and
she gets the same as is allotted to a son by
virtue of she having become a co-parcener-As
on the date of delivery of Appellate Court
Judgment, the Central Act of 2005 having
been brought into force, even the disability
with regard to the disentitlement of a married
daughter as mentioned in Section 6-A(d) of the
Karnataka Act, also ceases to apply.-Hence,
the findings of the Lower Appellate Court is
contrary to law and cannot be sustained."
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
80 c/w. O.S.No.898/2009
5). Miss.R.Kantha vs. Union of India
represented by its Cabinet Secretary, Ministry of Law,
Justice and Company Affairs and another, reported in
ILR 2009 Kar. Page 3699, wherein it is held that:
" (A) HINDU SUCCESSION (AMENDMENT) ACT,
2005-Section 6(1)(c) -Proviso to Section
6(1)(c)-Right of a daughter of a Co-parcener to
question any disposition or alienation of co-
parcenary property prior to 20-12-2004-HELD,
The 2005 Act having come into force with
effect from 9-9-2005 if dispositions and
alienations between 21.12.2004 and 9.9.2005
can be questioned, by implication, there is no
rational basis to restrict the right of a
daughter when the avowed object of the
legislation is to crate equal rights as between
a daughter and a son of a Co-parcener. Even if
it can be accepted that the apparent object to
so restrict the right was in order to prevent
litigation and to prevent settled positions from
being disturbed. The same analogy ought to
apply to suits that are brought by the sons of
a Co-parcener. The inconvenience and
hardship would be no different.-FURTHER
HELD, if it is to be justified on the ground that
any alienations or other disposition has taken
place with the legal position, as it stood prior
to the amendment, in view and therefore
ought to be saved, the result is that a partition
that could otherwise be re-opened to address
the claim of a daughter, with a little or no
legal complication, is denied unreasonably.
Similarly an alienation in respect of which the
Co-parceners can be held to account for, in
conferring the daughter her due is also
immunized from challenge, to the unjustified
disadvantage of the daughter.-The possibility
of lapse of time or other intervening
circumstances, being such that the
determination of the share of a daughter
being rendered obscure or beyond redemption
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
81 c/w. O.S.No.898/2009
on account of any alienation or disposition
prior to 20-12-2004-is necessarily a question
of fact depending on the circumstances of a
given case. There is no justification for the
prescription of a cut-off date of a blanket ban
on a daughter in enabling her to claim her
due, Hence, the proviso to Section 6(1)(c) of
Act 39 of 2005 is irrational and has no nexus
with the object of the Act and on the other
hand would nullify its declared object.
(B) HINDU SUCCESSION, 1956 (AS AMENDED
BY ACT 39 OF 2005)-Testamentary disposition-
Right to succession-Scope and ambit of
Section 6-HELD, Hindu Succession Act, 1956
(as amended by Act 39 of 2005), is a law
relating to intestate succession and regulates
succession to properties of all Hindus. The
only proviso under the Act, which provides for
testamentary succession also is Section 30.
Under that Section a Hindu is permitted to
dispose of any of his or her property by Will of
other testamentary disposition. It follows
therefore, that the provisions of the Act can be
enforced when the right to succession opens
and not before.-The scope and ambit of
Section 6 declaring that on and from the
commencement of Act 39 of2005-the
daughter of a Co-parcener in a Joint Hindu
Family shall by birth become a Co-parcener as
the son and have the same rights and
liabilities as a son, can only be construed for
deciding the share that devolves on her when
her right to succession opens, having regard
to the scope and ambit of the Act itself. -ON
FACTS, HELD, The petitioner's father is said to
be alive and hence her right to succession as a
Co-parcener has not opened. The heading of
Section 6 itself would indicate that it concerns
the interest in Co-parcenary property that
would "devolve" on the daughter. "Devolve"
means to pass from a person dying to a
person living.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
82 c/w. O.S.No.898/2009
(C) CONSTITUTION OF INDIA-ARTICLES 14 &
16-SECTION 6(1)(c) OF THE HINDU
SUCCESSION AMENDMENT ACT (ACT 39/2005)
- Share of the daughter in respect of property
alienated prior to coming into force of Act
39/2005-HELD, When the share of the
daughter was in respect of property that was
alienated prior to coming into force of Act 39
of 2005 and before 20-12-2004, there is no
impediment in the daughter being enabled to
question the alienations and the denial of her
right to a share of the proceeds, even if the
rights of bona-fide third-party purchasers of
the properties are not to be disturbed.-The
avowed object of the law makers in having
enacted Act 39 of 2005 is negated by the
serious lacunae and ambiguity in the
legislation as observed by several learned
authors and jurists.-The proviso to Section
6(1)(c) of the Hindu Succession Amendment
Act (Act 39/2005) insofar as it pertains to
saving of any dispositions or alienations prior
to 20th December, 2004 is violative of Article
14 and 16 of the Constitution of India and
bears no rational nexus to the object of the
Amendment Act."
6). Pushpalatha N.V. vs. V.Padma and others,
reported in 2010(2) KCCR 1249 (DB), wherein it is
held that:
"A. HINDU SUCCESSION ACT, 1956-Section 6
as amended by Act No.39 (2005) Section 6-
Equality between son and daughter of
coparcener conferred not on any other female
relative gender discrimination removed-also
saddled with liabilities-right conferred by
bush-such right conferred from the date of the
Act of 1956, i.e., 17-6-1956.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
83 c/w. O.S.No.898/2009
B. HINDU SUCCESSION ACT, 1956 - Section
6, Proviso-Effect of the proviso-Terms like
disposition, alienation, partition, testamentary
disposition explained and discussed-Proviso,
generally to remove special cases from the
general enactment.
C. HINDU SUCCESSION ACT, 1956 - Section
6, Proviso-Section 6(5) and Explanation to it-
Partition-Narrow definition in the act-Partition
effected by a registered deed or effected by a
decree of the Court only covered.
D. HINDU SUCCESSION ACT, 1956 - Section
6 and 6A, B, C of the Karnataka Amendment
Act read with Article 245 of the Constitution-
Law as Amended by Parliament prevails over
State Law 1994 Amendment stands.
E. HINDU SUCCESSION ACT, 1956 - Section
6 and retrospective effect-Effect of
amendment-New section superseding the old
provision-Effect of substitution-Substitution in
conformity with the constitutional provision-
Provision is held to be retrospective.
F. HINDU SUCCESSION ACT, 1956 - Section
6 pending proceedings, provision applicable
to all pending proceedings in trial Courts,
Appellate Court, second Appellate Court etc.
G. HINDU SUCCESSION ACT, 1956 - Section
6(3)-Shastric (Mitakashara Law)-With passing
of the Amendment Act, 2005, the concept of
survivorship is given a go by."
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
84 c/w. O.S.No.898/2009
108. Learned Counsel for defendant No.12 has
relied upon the following citations:
1). Basant Kumar Kejriwal vs. Suman Kejriwal
and others, reported in AIR 2005 Cal. 260, wherein it
is held that:
" Hindu Law-Joint family property-
Presumption."
2). Madanlal Phulchand Jain vs. State of
Maharashtra and others, reported in AIR 1992 SC
1254, wherein it is held that:
" Hindu Law-Separate property-What is-
Blending of separate property-with ancestral
property-Evidence."
3). Pushpalatha N.V. vs. V.Padma, reported in
AIR 2010 Kar. 124, wherein it is held that:
" (A) Hindu Law-Mitakshara Law-Hindu
Undivided Family (HUF) Existence of joint state
is not an essential requisite to constitute joint
family-Family which does not own any
property, may nevertheless be joint-Hindu
Family is presumed to be joint unless the
contrary is proved-A daughter ceases to be a
member of her father's family, on marriage
and becomes member of her husband's
family.
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
85 c/w. O.S.No.898/2009
B) Hindu Succession Act (30 of 1956), S.6
(as amended by Act 39 of 2005)-Constitution
of India, Arts. 14, 15-Devolution of interest in
coparcenary property to daughter-Joint Hindu
Family governed by Mitakshara Law-Amended
section conferring on daughter equality in
status vis-à-vis son and equal rights in co-
parcenary property-Removes gender
discrimination between son and daughter-
Brings Law in conformity with Arts. 14 and 15
of Constitution which are fundamental rights.
(C) Hindu Succession Act (30 of 1956), S.6
(as amended by Act 39 of 2005)-Daughter
conferred right as coparcener-Section confers
right on daughter by birth but date of birth
should be after Act came into force i.e. 17-6-
1956-Provision is retroactive."
109. The principles laid down in the above
citations are followed by me while disposing this
Common Judgment.
110. Issue Nos. 14 and 15 in O.S.No.499/1995;
Issue No.9 in O.S.No.2786/2001;
Issue No. 4 in 5716/2007 and
Issue No.3 in O.S.No.898/2009:
For the sake of convenience and to avoid
repetition of facts these Issues are taken-up
together for common consideration.
111. In view of the foregoing reasons and in
the result, I proceed to pass the following:
O.S.No.499/1995
c/w. O.S.No. 2786/2001
c/w.O.S.No. 5716/2007
86 c/w. O.S.No.898/2009
ORDER
Suit of the plaintiff in O.S.No. 499/1995 is dismissed.
No Order as to costs.
Suit of the plaintiff in O.S.No. 2786/2001 is dismissed.
No Order as to costs.
Suit of the plaintiffs in O.S.No. 5716/2007 is dismissed.
No Order as to costs.
Suit of the plaintiffs in O.S.No. 898/1995 is dismissed.
No Order as to costs.
{Keep original of this Judgment in O.S.No.499/1995 and copies thereof in O.S.Nos.2786/2001, 5716/2007 and 898/2009.} (Typed to my manuscript by the Judgment Writer, computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 20th day of April, 2016.) (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, *sb Bengaluru.
O.S.No.499/1995 c/w. O.S.No. 2786/2001 c/w.O.S.No. 5716/2007 87 c/w. O.S.No.898/2009 ANNEXURE List of witnesses examined for the plaintiffs in O.S.No.499/1995 and 3 connected suits:
P.W.1 G.Maheshwaraiah List of witnesses examined for defendants in O.S.No.499/1995 and 3 connected suits:
D.W.1 Dr.G.Manjunath D.W.2 G.Shadakshari D.W.3 G.Paramashivaiah D.W.4 Sarvamangala Gowri D.W.5 K.S.Dinesh D.W.6 G.M.Krishnappa D.W.7 Srikumar T.S. D.W.8 Shivakumar D.W.9 G.K.Shivaprakash D.W.10 Siddesh
List of documents exhibited for the plaintiffs in O.S.No.499/1995 and 3 connected suits:
Ex.P1- Form No.7 under Income Tax Act Ex.P2 - I.T.Payment Receipt for 1974-75 Ex.P3 - I.T. Assessment Returns 1979-80 Ex.P4 - I.T. Assessment Returns 1980-81 Ex.P5 - I.T. Acknowledgment 1979-80 O.S.No.499/1995 c/w. O.S.No. 2786/2001 c/w.O.S.No. 5716/2007 88 c/w. O.S.No.898/2009 Ex.P6-I.T.Assessment of tax dtd.22-8-1980 Ex.P7 - I.T.Assessment of tax dtd.22-9-1980 Ex.P8 - I.T.Acknowledgment 1981-82 Ex.P9 - I.T.Payment receipt 1982-83 Ex.P10 - I.T.Payment receipt 1980-81 Ex.P11- I.T.Payment receipt 1981-82 Ex.P12 - Recovery tax arrears 1981-82 Ex.P13 - Arrears of tax dated1-4-84 Ex.P14 - Arrears of tax 80-81, 81-82, 82-83 Ex.P15 - I.T.Assessment returns dtd.31.3.89.
Ex.P16 - Wedding invitation card Ex.P17 - Sale deeds dated 3.11.88 of site No.27&28 Ex.P18 - Sale deed dated 21.8.1981 of site No.126 of Malleswaram Ex.P19 - Sale Deed dated: 5.6.1992 of Industrial Site No.94 Ex.P20 - c.c. of sale deed dated 28.6.1999 of site No.381 Ex.P21 - Encumbrance certificate of site No.381 Ex.P22 - certified copy of sale deed dated 16.2.1994 of site No.1802 Ex.P23 - c.c. of Sale Deed dated: 28.4.1980 of site No.46/1 Ex.P24 - c.c. of Sale Deed dated: 28-4-1980 relating to site No.46/1 Exs.P25 & P26- Two Encumbrance Certificates O.S.No.499/1995 c/w. O.S.No. 2786/2001 c/w.O.S.No. 5716/2007 89 c/w. O.S.No.898/2009 Ex.P27 to P39 - R.T.C. extracts Ex.P40 -Unregistered Agreement of site No.94 dated 1.1.1992 Ex.P41 - certified copy of registered Codicil dated 15.12.1995 Ex.P42 - certified copy of sale deed dated 16.5.1962 Ex.P43 - xerox copy of Partnership Deed dated 23-9-1988 Ex.P44 - copy of plaint in O.S.No.1212/2015 Ex.P45 - copy of Order Sheet in O.S.No.14/2005 List of documents exhibited for the defendants in O.S.No.499/1995 and 3 connected suits:
Ex.D1 -Tax paid receipt issued by BDA in respect of site No.500in favor of Manjunath Ex.D2 - Khata certificate of site No.500 Ex.D3 - Licence issued by B.M.P. Ex.D4 - Special notice issued by BCC Exs.D5 & D6 - tax paid Receipts Ex.D7 - Khata Certificate of site No.7 Ex.D8 to D12- tax paid receipts of site No.7 Exs.D13 & D14- R.T.C. extracts of Sy.No.87/2C Ex.D15 - Sale deed dated 5.6.1972 of site No.7 Exs.D16 to D18 - tax paid receipts Ex.D19- certified copy sale deed dated 26.7.1989 O.S.No.499/1995 c/w. O.S.No. 2786/2001 c/w.O.S.No. 5716/2007 90 c/w. O.S.No.898/2009 Ex.D20- original cash receipt issued by Apartment Owners Association Exs.D21 to D24- tax paid receipts pertaining to item No.34 Exs.D25 to D28 -receipt issued by PLD Bank, Bengaluru.
Exs.D29 to D32 - R.T.C. extracts in respect of suit item No.8 Ex.D33 - Certificate of Electrical Contractor Exs.D34 & D35 -Renewal of licence endorsements Ex.D36 - Receipt issued by Licencsed Electrical Contractors Association Ex.D37 - List of members of the said Association Ex.D38 - Endorsement renewing the licence Ex.D39 - Enrollment of membership by Association Exs.D40 & D41 - Receipts issued by the Association Exs.D42 to D44- Acknowledgements for having received subscription fee by Association Exs.D45 to D56 -Sales tax returns with tax paid receipts Ex.D57 - Endorsement renewing the licence Ex.D58 -Sanctioned letter Ex.D59 - Endorsement renewing licence Exs.D60 & D61 -Certificate issued by Navarang Electricals with relieving letter Ex.D62 to D67 - Tax paid receipts with notices issued by ACTO O.S.No.499/1995 c/w. O.S.No. 2786/2001 c/w.O.S.No. 5716/2007 91 c/w. O.S.No.898/2009 Exs.D68 - to D76- Assessment orders Exs.D77 to D81 - Professional tax receipts Exs.D82 & D83 -paper publications Exs.D84 to D91- Assessment extracts Ex.D92 to D105 - RTC extracts Ex.D106 - c.c. of plaint in O.S.No.499/1995 Exs.D107 to D114 - Pay slips of D.W.3 Ex.D115 - Pension Payment Order Book Exs.D116 & D117- Pay slips of D.W.3 Exs.D118 to D122 - letters from Vijaya Bank and Indian Bank Ex.D123 - Vakalath in O.S.No.2786/2001 Ex.D123(a) - Signature of D.W.3 Ex.D124 - Vakalath in O.S.No.499/1985 Ex.D124(a) - signature of D.W.3 Ex.D125 - Specimen signature of D.W.3 on blue Sheet of paper Ex.D126 - c.c. of sale deed dated 25-4-1980 Ex.D127 - c.c. of Sale Deed dated:8-4-1970 Ex.D128 - c.c. of Sale Deed dated:5-2-1970 Ex.D129 - c.c. of Sale Deed dated:16-5-1962 Ex.D130 - c.c. of Sale Deed dated: 7-10-1960 Ex.D131 - c.c. of sale deed executed in favour of Manjunath by Gangadhar Ex.D132 - Encumbrance certificate Exs.D133 to D135- RTC extracts Ex.D136 - c.c. of Settlement Agreement before Mediation Centre Ex.D137- G.P.A. executed by Smt.Sunitha Ex.D138 - physical handicapped certificate issued by K.C.General hospital O.S.No.499/1995 c/w. O.S.No. 2786/2001 c/w.O.S.No. 5716/2007 92 c/w. O.S.No.898/2009 Ex.D139 - Medical certificate Ex.D140- Discharge summary Ex.D141 - Discharge bill Ex.D142 -Hospital receipt Exs.D143 to D145- Prescription Ex.D146- Discharge summary with other records Ex.D147 - ECG report with brain mapping report Ex.D148-Medical assessment report dated 29.6.2011 Ex.D-149- Receipt book Ex.D-150- Bill issued by Sub-Registrar Ex.D-151- registered Will dated 2.12.1991 executed by Chennamma Ex.D151(a) - signature of D.W.9 Ex.D151(b) -signature of D.W.10 Ex.D151(c) -signature of Channamma Ex.D-152- registered Will dated 25.6.1992 executed by Chennamma Ex.D152(a) - Signature of D.W.7 Ex.D-153- Receipt issued by Smt.Preethi Ex.D-154- Receipt issued by Smt.Shwetha Ex.D-155- Letter issued by A.G. office Ex.D-156 -Receipt issued by Smt.Nanjamma Ex.D-157-Receipt issued by Smt.Savithri @ Umadevi Ex.D-158- Receipt issued by Smt.Chandramma Ex.D-159- Receipt issued by Smt.Vanajakshi Ex.D-160- Receipt issued by Smt.Rudralamma Exs.D-161 & D162- Bank Statements Ex.D-163- Registered sale deed dated 5.2.1970 Ex.D-164- Sale deed dated 16.5.1962 Ex.D-165- c.c. of sale deed dated 6.4.1984 O.S.No.499/1995 c/w. O.S.No. 2786/2001 c/w.O.S.No. 5716/2007 93 c/w. O.S.No.898/2009 Ex.D-166- c.c. of sale deed dated 12.3.1973 Ex.D-167- original sale deed dated 5.8.1985 Ex.D-168- original registered codicil Ex.D168(a)&(b) - signatures of D.W.6 Ex.D168(c) & (d) - signature of D.W.8 Ex.D169 - I.A. u/O.23 R.3 C.P.C. Ex.D169(a)-Affidavit Ex.D170- Family Settlement Deed dated 14.3.1996. Ex.D170(a) to (f) -Signature of G.Basavaraju Ex.D171- c.c. of Settlement dated 14/3/1996 Ex.D172- copy of sale deed Dt.13.09.2010 Ex.D173 - Order passed in WP No. 15264/2006, regarding khatha for Gangadhara Chowltry Ex.D174 - khatha Certificate in the name of G. Paramashivaiah Ex.D175- original sale deed dated 28.9.1960 Exs.D176 & D177 - two Encumbrance certificates of Kempanna layout property Ex.D178 - c.c.of orders in Writ Appeal.No.3835/2010 and 3836/2010 Ex.D179 - c.c. of Order passed in CRP.4060/2001 Ex.D180 - c.c. of Plaint in O.S.8370/2000 Ex.D181- c.c. of Judgment in O.S.8370/2000 Ex.D182 - c.c. of Decree in O.S.8370/2000 Ex.D183 - c.c. of Order sheet in O.S.1674/1993 Ex.D184 - c.c. of Order in O.S.263/1995 Ex.D185 - c.c. of Decree in O.S.No.2631995 Ex.D186 - c.c. of Plaint filed in O.S.No.263/1995 Ex.D187 - Application filed in O.S.No.263/1995 Ex.D188 - copy of Plaint in O.S.697/2007 O.S.No.499/1995 c/w. O.S.No. 2786/2001 c/w.O.S.No. 5716/2007 94 c/w. O.S.No.898/2009 Ex.D189 - Written statement of Paramashivaiah Ex.D190 - c.c. of Deposition in P&SC.No.160/1998 Ex.D191- c.c. of CRP.No.5202/2001 Ex.D192 - Encumbrance certificate Ex.D193- original sale deed of Sy.No.46/1 Ex.D194 - original sale deed of Sy.No.523 of Chyikkasandraa Ex.D195 - original sale deed dated 14-3-1991 of site No.9 and 10 of Kavalbairasandra Ex.D196 - c.c. of sale deed dated 29-11-1979 of choultry property Ex.D197-c.c.of registered sale deed dated 15.6.1992 Exs.D198 to D200 - 3 Encumbrance certificates Exs.D201 to D203 - 3 Certificates issued by Bank regarding repayment of loan and interest Ex.D204 - copy of income tax return copy for the Assessment Year 2013-14 Ex.D205 - Statement of Account extract issued by SBM Ex.D206 -original sale deed dated 29.1.1987 Ex.D206 -c.c. of sale deed dated 29.11.1979 Ex.D207- Sale deed dated 5.3.1990 Ex.D207 - c.c. of sale deed dated 9.9.2010 Ex.D208 - Sale deed dated 11.4.1990 Ex.D208 - M.R.No.29/2005-06 Ex.D209- Patta book Ex.D209 - RTC extract pertaining to the property Ex.D210 - c.c. Record of Rights Ex.D211 - c.c. of Index of Land Ex.D212- RTC extract Exs.D213 to D215- Mutation extracts O.S.No.499/1995 c/w. O.S.No. 2786/2001 c/w.O.S.No. 5716/2007 95 c/w. O.S.No.898/2009 Exs.D216 & D217 - Encumbrance certificates Ex.D218 - c.c. of Possession certificate Ex.D219 - c.c. of sale deed dated 16.12.1987 Ex.D220 - c.c. of sale deed dated 10.11.1985 Ex.D221 -c.c. of registered release deed dated 19.7.2013 Exs.D222 to D224 - RTC extracts Exs.D225 to D229 - Income tax returns Ex.D230 - certified copy of Ration Card Ex.D231- Legal notice issued by D.3 Ex.D232 - copy of Order Sheet in O.S.1674/1993 Ex.D.233- copy of Objection in O.S.1674/1993 Ex.D.234- copy of I.A.5 Ex.D234(a) - Affidavit of applicant of I.A. 5 Ex.D.235- copy of Plaint in O.S.1674/1993 Ex.D.236 - Letter from advocate regarding dismissal of O.S.1674/1993 Ex.D237-covering letter issued by District Registrar. Ex.D238 - copy of Form-C extract Ex.D239 - copy of application for registration of Firm Ex.D240- copy of Partnership Deed Exs.D241 to D243- 3 copies of Reconstitution of Partnership Deeds Ex.D244 - copy of Partnership Deed.
(M.S.PATIL) XXII Addl. City Civil & Sessions Judge, Bengaluru.
O.S.No.499/1995 c/w. O.S.No. 2786/2001 c/w.O.S.No. 5716/2007 96 c/w. O.S.No.898/2009 20-04-2016 Judgment passed and pronounced in Open Court. (vide separate Judgment). Operative portion thereof reads as under:
Order Suit of the plaintiff in O.S.No. 499/1995 is dismissed.
No Order as to costs.
Suit of the plaintiff in O.S.No. 2786/2001 is dismissed.
No Order as to costs.
Suit of the plaintiffs in O.S.No. 5716/2007 is dismissed.
No Order as to costs.
Suit of the plaintiffs in O.S.No. 898/1995 is dismissed.
No Order as to costs.
{Keep original of this Judgment in O.S.No.499/1995 and copies thereof in O.S.Nos.2786/2001, 5716/2007 and 898/2009.} XXII A.C.C. & S.J., Bengaluru.
O.S.No.499/1995 c/w. O.S.No. 2786/2001 c/w.O.S.No. 5716/2007 97 c/w. O.S.No.898/2009 20-04-2016 On going through materials available on record, it goes to show that, Issues were not framed in O.S.No.898/2009. Hence Issues are framed.
Learned counsels for both parties submit that, they do not wish to adduce further evidence on behalf of plaintiffs and defendants. Hence, further evidence of plaintiffs and defendants after framing Issues is taken as 'nil'.
Heard arguments of learned counsels for both parties.
Judgment passed and pronounced in Open Court. (vide separate Judgment). Operative portion thereof reads as under:
Order Suit of the plaintiff in O.S.No. 499/1995 is dismissed.
No Order as to costs.
Suit of the plaintiff in O.S.No. 2786/2001 is dismissed.
No Order as to costs.
O.S.No.499/1995 c/w. O.S.No. 2786/2001 c/w.O.S.No. 5716/2007 98 c/w. O.S.No.898/2009 Suit of the plaintiffs in O.S.No. 5716/2007 is dismissed.
No Order as to costs.
Suit of the plaintiffs in O.S.No. 898/1995 is dismissed.
No Order as to costs.
{Keep original of this Judgment in O.S.No.499/1995 and copies thereof in O.S.Nos.2786/2001, 5716/2007 and 898/2009.} XXII A.C.C. & S.J., Bengaluru.