Bangalore District Court
) Mary Samuel vs ) Patrick S/O Late Teresaraj on 31 January, 2023
KABC0A0008772017
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Sri S. Sudindranath, LL.M., M.B.L.,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.25347/2017
Dated this 31st day of January 2023
Plaintiffs:- 1) Mary Samuel,
W/o Late Gordon Sasmuel, (Dead by L.R)
1(a) Mathew Samuel,
S/o Late Garden Samuel,
Aged about 26 years,
R/at No.13, West Road,
Austin Town, Bengaluru-47.
2) Sagaya Mary, W/o Late R. Dhanashekar,
Aged about 57 years,
R/at No.15, R.R Villa,
R. A. Road, 13th Cross,
Egipura, Vivek Nagar Post,
Bangalore-47.
3) Ayesha Bi @ Pushpa Rani,
W/o Late Abdul Rasheed,
Aged about 59 years,
R/at No.62/2, Anche Palya,
Mysore Road, Bengaluru-74.
4) Sera @ Teresha, W/o R. Williams,
Aged about 70 years,
R/at Gopal, 3rd Block,
2 OS.No.25347/2017
Judgment
KABC0A0008772017
Near YMCA, Shivamoga.
(Rep. By - Sri Somanna Associates)
V/S
Defendants:- 1) Patrick S/o Late Teresaraj,
Aged about 60 years,
(Dead, L.Rs are already on record)
2) Peter Patrick S/o Patrick,
Aged about 42 years,
3) Philip Lawrence S/o Patrick,
Aged about 41 years, (Dead by L.R)
3(a) Smt. Glory, W/o Late Sri Philip Lawrence,
Aged about 40 years,
All are residing at No.50,
Rajgopal Mudaliar Street,
Austin Town, Bengaluru-47.
4) Violet Gracy W/o Suresh Babu,
Aged about 61 years,
R/at No.22/2, 14th Cross,
Dollagappa Block,
Vivek Nagar Post,
Bangalore-47.
(Rep. By - Sri A.R.M Advocate for D1 to3, D4 Exparte)
Date of Institution of the suit 21-03-2017
Nature of the (Suit or pro-note, Declaration & Partition
suit for declaration and
possession, suit for injunction,
etc.)
Date of the commencement of 26-03-2019
recording of the Evidence.
3 OS.No.25347/2017
Judgment
KABC0A0008772017
Date on which the Judgment 31/01/2023
was pronounced.
Year/s Month/s Day/s
Total duration -05- -10- -10-
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BENGALURU.
:: JUDGMENT ::
This is a suit filed by the plaintiff No. 1 to 4 against defendant No. 1 to 4 for partition and separate possession and also for declaration.
2. The plaint averments in brief are that, Plaintiff No. 1 to 4 and the defendant No. 1 and 4 are the children of Kannika Mary and Teresaraj, who died on 18/02/2002 and 28/09/1983 respectively. It is pleaded that, aforestated Kannika Mary was in occupation of the suit schedule property as the tenant thereof under the BBMP and subsequently, the 4 OS.No.25347/2017 Judgment KABC0A0008772017 same came to be allotted to her by virtue of the orders of the government dated 18/05/1978 and the BBMP called upon the mother of the plaintiffs to make the requisite payment for allotment but by the time, the payment could be made, the mother of the plaintiffs died on 18/02/2002 and thereafter the defendant No. 1 by misrepresenting before the BBMP got the sale deed in his own name as per the sale deed dated 20/04/2012 and thereafter in a great hurry the defendant No. 1 has gifted the suit schedule property in favour of his 2 sons namely defendant No. 2 and 3 under the gift deed dated 13/11/2012 only with a view to deprive his sisters of their legitimate share. With these pleadings, and contending that, since the suit schedule property originally belonged to their mother and allotment was also made in favour of their mother but only due to misrepresentation the defendant No. 1 got the sale deed in his name and thereby claiming 1/6 th share each in the suit schedule property and contending that the sale deed by BBMP and subsequent gift deed by defendant No. 1 5 OS.No.25347/2017 Judgment KABC0A0008772017 in favour of defendant No. 2 and 3 are not binding on them the plaintiffs filed the present suit for partition and separate possession of their 1/6th share each in the suit schedule property and also for declaration in respect of the sale deed dated 20/04/2012 and gift deed dated 13/11/2012.
3. The defendant No. 1 to 3 entered appearance through counsel and filed detailed written statement wherein they admitted the relationship between the parties as pleaded in the plaint. However it is contended that, it is not as if the mother of the plaintiff and defendant No. 1 namely Kannika Mary was the original occupant / tenant but in fact even earlier her parents were also residing as tenants of the suit schedule property. It is pleaded that, after the death of his father, it was defendant No. 1 who was the elder of the family and running the family and it was he who paid the the sale consideration in respect of the suit schedule property and only out of respect for his mother, the defendant No. 1 had requested the BBMP to incorporate the name of his mother as 6 OS.No.25347/2017 Judgment KABC0A0008772017 the tenant. It is pleaded that, in any event, after the death of his mother, it is the defendant No. 1 who paid the allotment amount to the BBMP and the BBMP, after conducting Mahazar and identifying the defendant No. 1 as the sole occupant of the suit schedule property has executed the sale deed dated 20/04/2012 in his name. Thereby it is contended that, the defendant No. 1 became the absolute owner of the suit schedule property and as absolute owner he has gifted the same to defendant No. 2 and 3 which cannot be questioned by the plaintiffs. Thereby, denying all plaint averments and denying any share of the plaintiff's or defendant No. 4 who is another sister over the suit schedule property, the defendant No. 1 to 3 prayed for dismissal of the suit.
4. The defendant No. 4 who is the sister of plaintiffs and defendant No. 1 was placed ex parte.
5. On the basis of the above pleadings, the following issues were framed;
7 OS.No.25347/2017
Judgment KABC0A0008772017
1) Whether the plaintiffs prove that their mother was in possession and enjoyment of the suit schedule property as the tenant till 18/05/1978 and afterwards, Bangalore Mahanagara Palike allotted the suit schedule property to their mother and their mother died on 18/02/2002?
2) Whether the plaintiffs prove that they are in possession and enjoyment of the suit schedule property as on the date of the suit?
3) Whether the plaintiffs prove the defendant No. 1 illegally got mutated the suit schedule property in his name and afterwards he has illegally gifted the suit schedule property in favour of defendant No. 2 and 3 on 13/11/2012?
4) Whether the plaintiffs prove that they are having 1/6 share in the suit schedule property?
5) Whether the plaintiffs prove that the sale deed dated 20/04/2012 in respect of the suit schedule property executed by 8 OS.No.25347/2017 Judgment KABC0A0008772017 Commissioner BBMP in favour of defendant No. 1 is not binding on them?
6) Whether the plaintiffs prove that the gift deed dated 13/11/2012 in respect of the suit schedule property executed by defendant No. 1 in favour of defendant No. 2 and 3 is not binding on them?
7) Whether the defendant proves that the court fees paid by plaintiffs is insufficient?
8) Whether the defendant proves that suit is barred by limitation?
9) Whether the defendant No. 1 proves that he is absolute owner in possession of the suit schedule property as per the sale deed executed by BBMP dated 20/04/2012 and thereafter he has executed gift deed dated 13/11/2012 in favour of defendant No. 2 and 3 in accordance with law?
10) Whether the plaintiffs prove that they are entitled to the relief of partition and separate possession as well as declaration as prayed for?
11) What order or decree?
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Judgment KABC0A0008772017
6. In the trial, the plaintiff No. 1 having died and her son having been brought as her LR, the LR of plaintiff No. 1 examined himself as PW 1 and got marked Ex. P1 to P 16. On behalf of the defendants, the defendant No.2 examined himself as DW 1 but no documents were marked for the defendants.
7. During the trial, as already noted supra plaintiff No. 1 has died and her LR has been brought on record. The defendant No. 1 also died and defendant No. 2 and 3 already on record are considered as his LRS. Further the defendant No. 3 died and his LR has also been brought on record.
8. After the conclusion of evidence of both sides, I have heard both sides and perused the records of the case.
9. My answer to the above issues are as follows;
Issue No. 1, 2, 4, 5, 6,10: In the affirmative Issue No. 3: As per finding Issue No. 7 to 9: In the negative Issue No. 11: As per final order for the following; 10 OS.No.25347/2017
Judgment KABC0A0008772017 :: REASONS ::
Issue No. 1 :-
10. This is the most crucial issue in the present suit because the principal dispute between the parties is whether the suit schedule property was allotted to the mother of the parties as contended by the plaintiffs or it was allotted to defendant No. 1 exclusively as per the sale deed dated 20/04/2012 as contended by the defendant No. 1 to 3.
11. Before proceeding to answer this issue, certain undisputed facts may be taken note of. Firstly, the relationship between the parties is undisputed. In other words, it is undisputed that, Plaintiff No. 1 to 4 and defendant No. 4 are the sisters of defendant No. 1 and all of them are the children of Theresaraj and Kannika Mary.
12. There is further no dispute between the parties that the father of the parties namely Theresaraj died long back on 28/09/1983 since this fact is pleaded at paragraph 3 of the plaint and not denied at paragraph 3 of the written statement. 11 OS.No.25347/2017
Judgment KABC0A0008772017 Further, it is also not disputed that, the mother of the parties
- Kannika Mary died on 18/02/2002 since this is pleaded in paragraph 3 of the plaint and also admitted in paragraph 4 of the written statement.
13. In support of their case, the plaintiffs have examined the son of deceased plaintiff No. 1 is PW 1 and got marked Ex. P1 to P 16. Ex. P1 is the genealogical tree affidavit. Ex. P2 is the government order dated 18/05/1978. Ex. P3 is the government order dated 11/01/2002. Ex. P4 is the death certificate of Kannika Mary. Ex. P5 is a representation by defendant No. 1 to the BBMP to transfer the tenancy and register the sale deed in his name and Ex. P6 is the objection to the same filed by defendant No. 4 who is his sister. Ex. P7 and 8 are again representation and affidavit of defendant No. 1 to the BBMP and Ex. P9 is the affidavit of defendant No. 1. Ex. P 10 purports to be a joint affidavit filed by the sisters of defendant No. 1 stating no objection for transfer of tenancy to the defendant No. 1 but the contention of the plaintiffs who 12 OS.No.25347/2017 Judgment KABC0A0008772017 have produced the same is that, it is a created document. Ex. P 11 is the endorsement of the BBMP directing defendant No. 1 to pay the rent consequent upon the transfer of tenancy in his name. Ex. P 12 is the sale deed executed by BBMP Favour of defendant No. 1 and Ex. P 13 is the consequent gift deed by defendant No. 1 gifting the suit schedule property to his sons, namely defendant No. 2 and 3. Ex. P 14 and 15 are the khata certificate and khata extract reflecting the name of defendant No. 2 and 3 and Ex. P 16 the family tree attested by the revenue Inspector.
14. In this background, the crucial question to be decided in the suit is whether the suit schedule property was allotted to mother of the parties - Kannika Mary as contended by the plaintiffs. In this regard, the case of the plaintiffs is that, Kannika Mary was the tenant of the suit schedule property under BBMP and as per the proceedings dated 18/05/1978 BBMP [then City Corporation] and the government took the decision to allot suit schedule property in favour of the then 13 OS.No.25347/2017 Judgment KABC0A0008772017 tenant who was in occupation of the suit schedule property i.e. Kannika Mary. As against this, the case of the defendant No. 1 to 3 is that, it is not as if Kannika Mary was the original tenant and in fact even her forefathers were the tenants of the suit schedule property and at the relevant point of time, it was defendant No. 1 who was the head of the family & was looking after the entire affairs of the family since his father died long back and only out of respect for his mother, he had himself requested the BBMP to register her name as the tenant and in any event, by the time of the actual allotment and execution of sale deed, his mother had died and it was he
- defendant No. 1, who paid the entire sale consideration amount to BBMP and the BBMP after conducting the Mahazar and recognizing him as the lawful occupant and tenant of the suit schedule property has executed the sale deed dated 20/04/2012 as per Ex. P 12 in his favour and therefore it is the contention of the contesting defendants that defendant No. 1 became the absolute owner of the suit 14 OS.No.25347/2017 Judgment KABC0A0008772017 schedule property and plaintiffs being his sisters cannot claim any share therein.
15. In order to determine the question as to whether the suit schedule property was allotted to Kannika Mary and sale deed as per Ex. P 12 was executed in favour of defendant No. 1 by BBMP only as representing the branch of Kannika Mary or whether under the said sale deed, the property was absolutely conveyed to defendant No. 1 in his individual capacity, it is necessary to appreciate and understand the background in which the sale deed at Ex. P 12 was executed by BBMP in favour of defendant No. 1. In fact, the said background is forthcoming from the recitals of the said sale deed itself. If Ex. P12 is closely perused it is seen that at page 2 there is specific recital that the government of Karnataka vide its order dated 01/07/2001 had ordered to sell the corporation quarters to the present occupants within one year from 01/07/2002 to 01/07/2003 as per the rates mentioned in the government order dated 18/05/1978. Therefore it is 15 OS.No.25347/2017 Judgment KABC0A0008772017 crystal clear that the sale deed at Ex. P 12 is not a fresh conveyance by the BBMP in favour of defendant No. 1 but in fact it is in pursuance of the earlier government order dated 18/05/1978 which fixed the rates for sale and the orders dated 01/07/2001 which is to the effect that the quarters would be sold to the occupant as on 01/07/2001. Therefore, it is necessary to see who was the tenant of the suit schedule property as on the date of the said government orders dated 18/05/1978 and 01/07/2001. The said government order dated the 18/05/1978 is marked as Ex. P2 and in the said the Ex. P2 at the serial No. 233 the name of Kannika Mary is mentioned as the tenant. The heading of Ex. P2 shows that it is the statement showing the details of corporation quarters at Austin town with the details of the tenants staying in the quarters to whom the quarters are to be sold as per the orders dated 18/05/1978. Therefore, on the plain reading of Ex. P2 it is crystal clear that as per the said government orders the intention of the government was to sell the suit schedule 16 OS.No.25347/2017 Judgment KABC0A0008772017 property/quarters to Kannika Mary and under the said orders of 1978 the sale price was also fixed at ₹ 11,435/=. It is crucial to note that, in the sale deed at Ex. P 12, the sale consideration is exactly the same amount of ₹ 11,435/= as mentioned in Ex. P2 of the year 1978. This makes it crystal clear that the sale deed in favour of defendant No. 1 is not a fresh conveyance but in fact it is only in pursuance of the orders at Ex. P2 of the year 1978. In fact, it is inconceivable that the BBMP could have sold suit schedule property in the year 2012 for sale consideration of as less as ₹ 11,435/= and this also shows that the said conveyance was made only in pursuance of the earlier orders of 1978 under which the government had decided to sell the suit schedule property to Kannika Mary in consideration of her being the tenant for the said amount of ₹ 11,435/=. From this it becomes clear that the sale deed at Ex. P 12 was only the documentation by way of execution of sale deed of what had already taken place in the year 1978 by the government order to convey the suit 17 OS.No.25347/2017 Judgment KABC0A0008772017 schedule property to Kannika Mary. Therefore under the said sale deed the defendant No. 1 did not acquire exclusive title or become the absolute and exclusive owner of suit schedule property but he took the sale deed only as representing the legal heirs of his mother - Kannika Mary. It is crucial to note that, even in the 2nd government order dated 01/07/2001 referred to in the said sale deed the intention of the government was expressed to sell the corporation quarters to the present occupants within one year. As on the date of the said government order dated 01/07/2001 Kannika Mary was alive since she died only on 18/02/2002 as per the death certificate at Ex. P4. Therefore, even as on the date of the 2 nd government order, it was the Kannika Mary who was the tenant and therefore it is clear that, from viewed from this angle also the sale deed was executed in favour of defendant No. 1 not in his individual capacity with the intention to convey absolute title to him but only as representing the legal heirs of Kannika Mary.
18 OS.No.25347/2017
Judgment KABC0A0008772017
16. The payment of the sale consideration amount of ₹ 11,435/= by defendant No. 1 will not clothe him with exclusive title to the suit schedule property and at the most, the defendant No. 1 can only claim the contribution from his sisters towards the said sale consideration amount paid by him, but in this case is not necessary to call upon the plaintiffs to contribute their share of the said sale consideration amount to the defendant No. 1 because the defendant No. 1 according to his own admission has enjoyed the usufruct of the suit schedule property for the last nearly 20 years ever since the death of his mother and therefore, the fact that defendant No. 1 has paid the sale consideration amount is of no consequence and will not change the fact that he obtained the sale deed in his name only as representing the branch of his mother and not exclusively for himself.
17. Similarly the holding of the Mahazar and recognising the defendant No. 1 as the sole occupant of the suit schedule property will not change the position in any manner, because, 19 OS.No.25347/2017 Judgment KABC0A0008772017 firstly the said Mahazar is not produced and got marked and even conceding that such a Mahazar was prepared, it will not have any impact on the earlier government decision which was clear that the property is being sold to Kannika Mary and only because she died by the time of execution of the sale deed, it was executed in favour of her son which means that defendant No. 1 took the sale deed on behalf of all the legal heirs of Kannika Mary.
18. The joint affidavit purported to be submitted by the sisters of defendant No. 1 to the BBMP, stating no objection for transfer of tenancy to the name of defendant No. 1 which is produced as Ex. P10 is not proved in accordance with law because it is produced by the plaintiffs by contending that, it is a forgery. DW 1 in his cross-examination at the paragraph 5 has professed ignorance as to whether his father submitted the said joint affidavit along with the representation at Ex. P7. Therefore the joint affidavit at Ex. P 10 is not proved in accordance with law. More importantly when I have already 20 OS.No.25347/2017 Judgment KABC0A0008772017 held supra that the suit schedule property was allotted in favour of Kannika Mary and consequently devolved upon all her children after her death, it means that, after the death of Kannika Mary, all her children became the joint owners of the suit schedule property and therefore any relinquishment by the daughters of their share in the immovable property could only have been made by way of a registered document and not by way of such a affidavit filed to be BBMP and therefore even accepting the said joint affidavit at face value it will not have the effect of the sisters of defendant No. 1 relinquishing their share of the suit schedule property.
19. The above conclusion is further fortified by the admissions made by DW 1 in his cross-examination wherein he has admitted at the end of paragraph 1 of the cross- examination dated 13/01/2023 that suit schedule property is one of the corporation quarters which belongs to his grandmother - Kannika Mary. At paragraph 2 of same cross examination, he has admitted the suggestion that till her 21 OS.No.25347/2017 Judgment KABC0A0008772017 death Kannika Mary was staying in the suit schedule property as the tenant. As already noted supra Kannika Mary died on 18/02/2002 as per Ex. P4 which is subsequent to the 2 nd government order dated 01/07/2001 deciding to sell the suit schedule property to the present tenants.
20. Further at paragraph 6 of his cross-examination DW 1 has admitted that his grand-mother has not executed any documents in respect of the suit schedule property which means that Kannika Mary died intestate.
21. For the above reasons once it is concluded that suit schedule property was in fact allotted to Kannika Mary and the sale deed at Ex. P 12 is executed in favour of defendant No. 1, not in his individual capacity but only as representing all the legal heirs of Kannika Mary, it follows that, since, it is admitted that Kannika Mary died intestate, on her death, the suit schedule property has devolved upon all her children equally under section 37 of Indian Succession Act (the parties in the present suit are Christians).
22 OS.No.25347/2017
Judgment KABC0A0008772017
22. At this stage itself, it is to be noted that in the cross- examination of PW 1 it is elicited that plaintiff No. 2 has told PW 1 that she does not want property and she is not interested to come to court. Notwithstanding the same, as already noted supra, since all the children of Kannika Mary succeeded equally to the suit schedule property after the death of Kannika Mary, any relinquishment of the share in immovable property can be only be done by way of registered document and therefore on the basis of such an answer given by PW 1 that Plaintiff No. 2 is not interested in the property, it is not possible to hold that, she has relinquished her share and therefore share has to be given even to the plaintiff No. 2.
23. Similarly equal share has to be given to the defendant No. 4 also although she has remained ex parte & not contested the suit because the law is settled that, in a suit for partition, the court will determine the shares as per the law and not on the basis of the claims made by the parties. Therefore when the defendant No. 4 as the daughter of 23 OS.No.25347/2017 Judgment KABC0A0008772017 Kannika Mary is entitled to equal share as her siblings, notwithstanding the fact that, she has remained ex parte in the present suit, share has to be given to her.
24. Similarly it is elicited in the cross-examination of PW 1 that plaintiff No. 3 has married a Muslim gentleman and has converted to Islam. However, apostasy is not pleaded as a ground for denying share to Plaintiff No. 3 and more importantly apostasy is not a ground for disinheritance under the Indian Succession Act and therefore share has to be given even to the plaintiff No. 3 notwithstanding the fact that she may have converted to Islam.
25. Further it is elicited in the cross-examination of PW 1 at page 5 that he has got one more brother but the said brother is not brought on record as LR of Plaintiff No 1, in the present suit. Be that as it may, the branch of for plaintiff No. 1 is adequately represented in the present suit by plaintiff No. 1
(a)/PW 1 and in any event, in the present suit, it is only the share of branch of plaintiff No. 1 which will be determined 24 OS.No.25347/2017 Judgment KABC0A0008772017 and any share declared in favour of Plaintiff No. 1 in present suit, will go to all the legal heirs of plaintiff No. 1.
26. For all the above reasons, I answer issue No. 1 in the affirmative holding that, suit schedule property was allotted to Kannika Mary & sale deed at Ex. P 12 is executed in favour of defendant No. 1 as representing all the legal heirs of Kannika Mary and therefore, on the death of Kannika Mary on 18/02/2002, all her children i.e. the plaintiff No. 1 to 4 and defendant No. 1 and 4 have succeeded equally to the suit schedule property.
Issue No. 2, 7 and 8 :
27. These issues are interconnected because it is the contention of the defendant No. 1 to 3 that the plaintiffs not being in possession of the suit schedule property as on the date of filing of the suit, they are bound to pay the court fee on the market value under section 35 [1] of the Karnataka Court Fees and Suits Valuation Act [KCF&SV Act] and the further contention is that, since the plaintiffs are not in 25 OS.No.25347/2017 Judgment KABC0A0008772017 possession of suit schedule property ever since their marriage which was long ago, the suit is barred by limitation.
28. In this regard, learned counsel for defendant No. 1 to 3 vehemently argued that, from the admissions made by PW 1 it is forthcoming that the plaintiffs as well as defendant No. 4 who are the sisters of defendant No. 1 were married long back and residing with their respective husbands and therefore none of the plaintiffs were in possession of the suit schedule property as on the date of filing of the suit and much earlier. In this regard, he has highlighted the answers given by PW 1 at the bottom of page 3 of his deposition wherein PW 1 has admitted to the suggestion that plaintiff No. 1 to 4 are residing in different houses and as on the date of filing of the suit on 21/03/2017 none of the plaintiffs were staying in the suit schedule property. On this basis, it was argued that when admittedly the plaintiffs are not in possession of suit schedule property as on the date of filing of the suit they cannot file the suit for partition by valuing the same under 26 OS.No.25347/2017 Judgment KABC0A0008772017 section 35 [2] of KCF&SV act but they have to value the suit on the basis of market value of the suit schedule property and pay court fee thereon under section 35 [1] of the KCF&SV act. Learned Counsel for Defendant No. 1 to 3 has further drawn to my attention, the answers given by PW 1 at page 5 of his deposition wherein PW 1 has stated that his mother demanded petition about 32 years back and other plaintiffs also demanded partition more than 32 years back and on this ground, he argued that the demand for partition having been made and refused 32 years prior to the filing of the suit, it is clear that, the present suit is barred by limitation.
29. I am unable to accept the above submissions for the simple reason that, the law is settled that, co-owners and co- heirs are presumed to be in joint possession of the joint property unless ouster is proved. In this regard, I have already held supra that, on the death of Kannika Mary, all her children succeeded equally to the suit schedule property. Therefore, on the death of Kannika Mary the plaintiffs along 27 OS.No.25347/2017 Judgment KABC0A0008772017 with defendant No. 1 and 4 who are all the children of Kannika Mary became the joint owners of the suit schedule property. At this stage, it is relevant to refer to the law laid down by Hon'ble High Court of Karnataka in the case of Nanjamma v. Akkayamma, 2014 SCC OnLine Kar 12585 :
(2015) 4 ICC 871 : (2015) 3 Kant LJ 357 : (2015) 2 KCCR 1437 : (2015) 3 AIR Kant R 706 : AIR 2015 (NOC 1265) 494 at page 882, as follows;
59. It is well settled that in order to establish adverse possession of one-coheir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non- possessing coheir by the, co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession, merely by any secret hostile animus of his own part in derogation of the other co-heir title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.
60. If ouster is to be pleaded, the title has to be acknowledged. Once such a plea is taken, irrespective of 28 OS.No.25347/2017 Judgment KABC0A0008772017 the fact that as to whether any other plea is raised or not, conduct of the parties would be material. If, therefore, plea of ouster is not established, a fortiori the title of other co- sharers must be held to have been accepted. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. It is well settled that mere non- participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession.
61. The co-sharer in possession would become constructive trustees on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees. A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. Mutation in the revenue records in the name of one co- sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied.
63. Merely because one co-owner is in exclusive possession of the properties and other co-owners are residing separately it cannot be said that the co- owners who are not in possession are ousted from the property. In the absence of ouster, hostile title, mere exclusive possession would not constitute either adverse possession or ouster. Even in case of alienation, though the alienee is put in exclusive possession of portion of the property, as the property is not divided by metes and bounds, he cannot claim exclusive title in the property for the co-owner who is not a party to the alienation is deemed to be in possession of the property.
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Judgment KABC0A0008772017 (Emphasis Supplied)
30. Therefore from the above law laid down by Hon'ble High Court of Karnataka it is crystal clear that, co-owners/co-heirs are presumed to be in joint possession and the possession of one coheir is the possession of all the co-owners/ co-heirs. One very crucial observations made by the Hon'ble High Court of Karnataka in the above ruling is that, if ouster is pleaded, it amounts to admission of title of other co-owners. In other words, in order to plead the ouster of other co- owners, it is necessary that, first, their title as co-owners to the property should be admitted. In the case on hand, the defendant No. 1 to 3 are denying that plaintiffs are the co- owners of the property. Such being the case, when contesting defendants are denying the co-ownership right of the plaintiffs, it means that, the contesting defendants cannot plead the ouster of the plaintiffs from the suit schedule property. Once the said conclusion is reached, it follows that, the defendant No. 1 to 3 have not pleaded or proved the 30 OS.No.25347/2017 Judgment KABC0A0008772017 ouster of the plaintiffs from the joint property and therefore the presumption has to prevail that plaintiffs being the co- owners are in joint possession of the suit schedule property.
31. For the above reasons, once the conclusion is reached that plaintiffs have continued in joint possession of the suit schedule property upto the date of filing of the present suit it follows that the plaintiffs are entitled to value the suit under section 35 [2] of the act and pay fixed court fee of ₹ 200 thereon and therefore the court fee paid on the relief of partition is sufficient.
32. Insofar as the question of limitation is concerned, once it is held that plaintiffs have continued in joint possession and ouster is not proved for the simple reason that ouster is not pleaded & cannot be pleaded because defendants have not admitted the co-ownership title of the plaintiffs, it follows that suit is filed within the period of limitation because the law is settled that, in the case of suit for partition the cause of action is always recurring cause of action. In this regard, 31 OS.No.25347/2017 Judgment KABC0A0008772017 reference may be made to the law laid down by Hon'ble High Court of Karnataka in the case of S.K. Lakshminarasappa v. B. Rudraiah, 2011 SCC OnLine Kar 3545 : ILR 2012 Kar 4129 : (2012) 4 AIR Kant R 424 : (2013) 1 KCCR 672 at page 4178, as follows;
45. Rule 9 of Order 9 is based on sound public policy that no defendant should be vexed twice on the same cause of action. The only effect of an order made under Order 9 Rule 8 is that a fresh suit based on the same cause of action is precluded by the provisions of Order 9 Rule 9 of the Code. It will not apply to the cases where the cause of action is recurring or continuous. A suit for partition dismissed for default under Order 9 Rule 8 of CPC does not bar a subsequent suit for partition. The reason is that the right to enforce a partition is a continuous right, which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues. Cause of action is continuous in partition cases which subsists so long as the property is held jointly. In other words, the joint owner can file a suit for partition, until partition is actually effected, irrespective of the fact whether earlier suits for such partition were dismissed for default or withdrawn or an earlier decree for partition was not acted upon.
(Emphasis Supplied)
33. In the light of the above law, since, the cause of action for suit for partition is recurring cause of action, it follows that, the fact that according to admission of PW 1 partition 32 OS.No.25347/2017 Judgment KABC0A0008772017 was demanded 32 years back and refused, is not a ground to hold that, suit is barred by limitation because the cause of action for filing the suit arises every time there is a fresh demand for partition and refusal, as long as Property continues as joint Property and there is no partition or ouster. Therefore viewed from any angle the suit is not barred by limitation.
34. Insofar as the court fee payable on the relief of declaration in respect of the sale deed & gift deed is concerned, it is to be noted that the plaintiffs are not the parties to sale deed or gift deed and hence as per the law laid down by Hon'ble High Court of Karnataka it is sufficient for the plaintiffs to pay fixed court fee under section 24 (d) of the act on the said reliefs of declaration and it is not necessary for the plaintiffs to pay court fee on the market value. This position of law is laid down by Hon'ble High Court of Karnataka in the case of K L Venugopal vs Smt Vimala K 33 OS.No.25347/2017 Judgment KABC0A0008772017 Venugopal [WRIT PETITION NO.16065/2014(GM-CPC) dated 23.02.2018] : 2018 (3) KCCR 2280.
35. For all the above reasons I hold that plaintiffs have proved their joint possession of suit schedule property as on the date of the suit and defendants are No. 1 to 3 have failed to prove that the court fee paid is insufficient and that suit is barred by limitation and accordingly I answer issue No. 2 in the affirmative and issue No. 7 and 8 in the negative. Issue No. 3:-
36. This issue appears to be improperly framed because it is the case of the plaintiffs that defendant No. 1 has illegally got the sale deed in his exclusive name and not that he has illegally got mutated the suit schedule property in his name. Anyhow, I have already held supra that the plaintiffs have also got equal share as the defendant No. 1 and 4 in the suit schedule property and hence the plaintiffs are entitled to 1/6th share in the suit schedule property. The mutation of suit schedule property in the revenue records into the name 34 OS.No.25347/2017 Judgment KABC0A0008772017 of defendant No. 1 and then into the name of Defendant No. 2 and 3, is inconsequential because I have already held supra that the sale deed at Ex. P 12 was executed by BBMP in favour of defendant No. 1 not in his individual capacity but as representing all the legal heirs of Kannika Mary & insofar as the gift deed at Ex. P 13 is concerned since the defendant No. 1 was not the absolute owner but was only joint owner with only 1/6th share, defendant No. 1 could have gifted only his 1/6th share to the defendant No. 2 and 3 and he could not have gifted the entire suit schedule property. Accordingly issue No. 3 is answered.
Issue No. 4:-
37. Having already answer issue No. 1 as above I hold that plaintiffs have proved that plaintiffs have 1/6 th share in the suit schedule property and accordingly I answer issue No. 4 in the affirmative.
Issue No. 5 and 6:-
35 OS.No.25347/2017
Judgment KABC0A0008772017
38. Having already answered issue No. 1 as above I hold that plaintiffs have proved that the sale deed at Ex. P 12 and gift deed at Ex. P 13 are not binding on the shares of the plaintiffs and accordingly issue No. 5 and 6 are answered in the affirmative.
Issue No. 9:-
39. Having already answered issue No. 1 as above I hold that defendant is only joint owner with 1/6th share in the suit schedule property and not absolute owner and therefore he could not have gifted the entire suit schedule property to defendant No. 2 and 3 and accordingly I answer issue No. 9 in the negative.
Issue No. 10:-
40. Having answered issue No. 1 as above I hold that plaintiffs are entitled to relief of partition and separate possession and also declaration in respect of Ex. P 12 and 13 and accordingly I answer issue No. 10 in the affirmative.
Issue No. 11:
36 OS.No.25347/2017
Judgment KABC0A0008772017
41. Having answered issue No. 1 to 10 as above, I proceed to pass the following;
:: ORDER ::
The suit is decreed, with cost.
It is held that the plaintiff No. 2 to 4, defendant No. 4 and the legal heirs of plaintiff No. 1 and defendant No. 1 are each entitled to 1/6th share in the suit schedule property and the aforestated parties shall be entitled to seek partition and separate possession of their respective shares by metes and bounds.
It is further declared that the sale deed dated 20/04/2012 marked as Ex. P 12 and the gift deed dated 13/11/2012 marked as Ex. P 13 shall not be binding on the shares of the plaintiffs & defendant No. 4.
Office to draw preliminary decree
accordingly.
37 OS.No.25347/2017
Judgment
KABC0A0008772017
[Dictated using Dragon Professional Speech Recognition Software Version 15.3, transcript revised, corrected, signed and then pronounced by me in open court on this the 31st day of January, 2023] (Sri. S. Sudindranath) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT; BANGALORE.
:ANNEXURE:
WITNESSES EXAMINED FOR PLAINTIFFS: P.W.1 : Mathew Samuel S/o Late Garden Samuel DOCUMENTS MARKED FOR PLAINTIFFS:
38 OS.No.25347/2017
Judgment
KABC0A0008772017
Ex.P1 : Genealogical Tree
Ex.P2 : Corporation Quarters Allotment letter dated 18-
05-1978
Ex.P3 : Intimation Letter
Ex.P4 : True copy of Death Certificate of Kanick Mary
Ex.P5to11 : Letter written to Deputy Revenue Officer, Letter
written to Assistant Revenue Officer, Letter written to Assistant Revenue Officer, True copy of two affidavits and one joint affidavit and endorsement issued by BBMP Ex.P12 : Copy of Sale Deed dated 20-04-2021 Ex.P13 : Copy of Gift Deed dated 13-11-2012 Ex.P14&15 : Khata Certificate and Khata Extract of suit schedule property Ex.P 16 : True copy of Genealogical Tree WITNESSES EXAMINED FOR DEFENDANTS:
D.W-1 : Peter Patrick S/o Patrick
DOCUMENTS MARKED FOR DEFENDANTS:
-Nil-
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.