Bangalore District Court
Sri.N.Somasekar vs Sri.T.Nagaraj on 17 October, 2016
IN THE COURT OF THE 42nd ADDL. CITY CIVIL & SESSIONS
JUDGE AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.BAILUR SHANKAR RAMA,
B.Sc., M.A., LL.B.(Spl),
nd
42 ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 17th day of October 2016.
O.S.No.6629/2010
Plaintiffs:- 1. Sri.N.Somasekar,
S/o.T.Nagaraj,
Aged about 40 years,
R/at No.31,
Appaji Rao Lane,
Nagarthpet,
Bangalore-560 002.
2. Master Naren,
S/o.N.Somasekar,
Aged about 16 years,
Since Minor Rept. By his mother
Natural Guardian
Smt.Rekha,
R/at No.237, 1st Floor,
5th Cross,
Kempegowda Nagar,
Bangalore-560 019.
(By Suresh Kumar.H.M. Adv.)
v.
Defendants:- 1. Sri.T.Nagaraj,
S/o.Late K.H.Thimmaiah,
Aged about 65 years,
2 O.S.No.6629/2010
R/at No.8,
Ganigara B Lane,
Nagarthpet Cross,
Bangalore-560 002.
2. Sri.T.Ashwathnarayan,
S/o.Late K.H.Thimmaiah,
Aged about 60 years,
R/at No.26, Ganigara B Lane,
Nagarthpet Cross,
Bangalore-560 002.
3. Sri.T.Shivashankar,
S/o.Late K.H.Thimmaiah,
Aged about 55 years,
R/at No.31, 1st Floor,
Appaji Rao Lane,
Nagarthpet Cross,
Bangalore-560 002.
4. Sri.N.Shivakumar,
S/o.T.Nagaraj,
Aged about 42 years,
5. Sri.T.Tejukumar,
S/o.T.Nagaraj,
Aged about 36 years,
Defendant No.4 & 5 are
R/at No.8,
Ganigara B Lane,
Joripet,
Bangalore-560 002.
6. Sri.A.Ravikumar,
S/o.T.Ashwathanarayana,
Aged about 35 years,
7. Sri.A.Adarsha,
S/o.T.Ashwathanarayana,
Aged about 28 years,
3 O.S.No.6629/2010
Defendants 6 & 7 are
R/at No.26,
Ganigara B Lane,
Nagarthpet Cross,
Bangalore-560 002.
8. Sri.A.Annappa,
S/o.T.Shivashankar,
Aged about 40 years,
R/at No.31, First Floor,
Appaji Rao Lane,
Bangalore-560 002.
9. Smt.Pavan Bai, DELETED
W/o.Babulal C.Rathod,
Aged about 40 years,
R/at No.31, First Floor,
Appaji Rao Lane,
Bangalore-560 002.
10. Sri.Kailash Kumar Jain,
S/o.Sri.Tarachand Jain,
Aged about 38 years,
R/at No.56, 4th Floor,
Shanthi Sadan Apartment,
Chikkannamma Temple Street,
Nagarthpet Cross,
Bengaluru - 560 002.
(D1 to D8 & D10 -
Sri.N.S.Viswanatha, Adv.
D9 - Deleted)
Date of institution of the suit : 20.09.2010
Nature of the suit : Partition and Declaration
Date of commencement of : 20.03.2012
Recording of the evidence
4 O.S.No.6629/2010
Date on which the Judgment : 17.10.2016
was pronounced
Total Duration : Years Months Days
06 00 27
(BAILUR SHANKAR RAMA)
nd
42 ADDL. CITY CIVIL & SESSIONS JUDGE,
Bengaluru.
JUDGMENT
This is a suit filed by the plaintiffs against the defendants for the relief of partition, declaration and costs.
2. The brief facts as averred in the plaint are that:-
Late Sri.K.H.Thimmaiah had 3 sons by name Sri.T.Nagaraj (Defendant No.1), Sri.T.Ashwathanarayana (Defendant No.2) and Sri.T.Shivashankar (Defendant No.3). The plaintiff No.1 is the son defendant No.1 and minor plaintiff No.2 is the son of plaintiff No.1. The defendants 1 to 3 are brothers, defendants 4 and 5 are the sons of defendant No.1 and defendants 6 and 7 are the sons of defendant No.2 and defendant No.8 is the son of defendant No.3, as shown in the plaint genealogy. The plaintiff No.1 5 O.S.No.6629/2010 submits that his grand father - Sri.K.H.Thimmaiah died on 19.07.1995 intestate leaving behind the plaintiffs and defendants 1 to 8 as his legal heirs to succeed his estate.
The suit A, B, C and D properties shown in the schedule of original plaint were earlier possessed by Sri.K.H.Thimmaiah. He has derived properties through Partition Deed dated 27.02.1956 entered in the family. The plaintiff No.1 submits that after the death of his grand father - Sri.K.H.Thimmaiah, plaintiff No.1 and defendants 1 to 8 are in joint peaceful possession and enjoyment of the schedule mentioned properties being co-owners, exercising their right of ownership, they constitute Hindu Joint Family and so far no partition taken place. The plaintiff No.1 had approached the defendants 1 to 8 to effect partition in the month of August, 2010, the defendants have postponed the event on one or the other pretext and finally in the last week of October 2010 they flatly refused to effect partition in respect of suit schedule properties. On 03.09.2010, the defendants tried to dispossess plaintiff No.1 from their residence, wherein since past 15 years plaintiff No.1 has been residing and running textile shared card business for 6 O.S.No.6629/2010 his livelihood. He has lodged a complaint before Ulsoor Gate Police Station, the police have registered the case under Crime No.288/2010 and FIR was submitted on 03.09.2010. The plaintiff No.1 and defendants 1 to 8 are all having equal share in all the suit schedule A to D properties. Hence, plaintiff No.1 has filed the suit for declaration of his 1/9th share in the suit schedule property.
3. During the pendency of the suit, in respect of suit C-schedule property, Sale Deed was executed dated 26.06.2013, registered Release Deed and Declaration Deed on the same day and thereafter, plaintiff No.1 got amended the plaint contending that during the pendency of the suit, the defendants have threatened plaintiff No.1, to come and execute the Sale Deed in favour of defendant No.9 - Smt.Pavan Bai, failing which, they will kill plaintiff No.1 and his family members. Therefore, the Sale Deed got executed dated 26.06.2013 in respect of C-schedule property mentioned in original plaint, is by exercise of threat, force and coercion on plaintiff No.1 and as such, not valid. Again plaintiff No.1 contends that during the pendency of this suit, this court was pleased to grant an ad-interim order of 7 O.S.No.6629/2010 temporary injunction not to alienate the suit schedule properties until further orders, the defendants threatened plaintiff No.1 to come and execute the Sale Deed and Release Deed or else they will kill plaintiff No.1 and his family. Later on, plaintiff No.1 went to Police Station and Office of the Sub-Registrar to file a complaint, but the police refused to register the complaint. That is the reason, after the execution of the deeds, plaintiff No.1 has filed private complaint before the Magistrate, same was registered in Crime No.293/2013 dated 25.09.2013. Therefore, plaintiff No.1 got amended the reliefs also that the Sale Deed dated 26.06.2013 and Release Deed dated 26.06.2013 are not binding on plaintiff No.1. Hence, the suit.
4. After the service of suit summons, defendants 1 to 10 have appeared before court through their advocate. Though after purchase of C-schedule property through registered Sale Deed dated 26.06.2013 defendant No.9 - Smt.Pavan Bai was impleaded and she has filed detailed written statement and additional written statement, but thereafter plaintiff No.1 by filing application got defendant No.9 deleted. Likewise, subsequently the present D- 8 O.S.No.6629/2010 schedule Chamarajpet property, ground floor was purchased by defendant No.10 - Sri.Kailash Kumar Jain, who is subsequently arrayed as party, appeared through his advocate.
5. The defendants 1, 4 and 5 have filed the written statement admitting the plaint genealogy. But denied that plaintiff No.1 and the defendants 1 to 8 constitute Hindu Joint Family and plaintiff No.1 is in joint possession of the suit schedule properties. The suit filed with ulterior motive just to harass these defendants. The suit is bad for misjoinder of parties and nonjoinder of necessary parties. The plaintiff No.1 has suppressed the material facts. They contend that all A, B, C and D schedule properties in the original plaint have been partitioned during the lifetime of Sri.K.H.Thimmaiah under registered Partition Deed dated 09.07.1980. This document was wantonly suppressed by plaintiff No.1 in order to file this false and frivolous suit. In the said partition, C-schedule property had fallen to the share of late Sri.K.H.Thimmaiah and A, B and D schedule properties mentioned in the original plaint had fallen to the shares of defendants 1, 2 and 3 respectively and they are in 9 O.S.No.6629/2010 exclusive absolute possession and enjoyment of the same since the date of Partition Deed dated 09.07.1980. Therefore, the plaintiffs ought to have valued the suit and the reliefs and paid the court fee under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act. The plaintiff No.1 very conveniently and intentionally only mentioned about the Partition Deed dated 27.02.1956 entered into between Sri.K.H.Thimmaiah and his brothers. The plaintiff No.1 has given wrong address. Therefore, the present suit for partition is not maintainable. All the allegations made against the defendants 1 to 8 are specifically denied by these defendants. The plaintiff No.1 has filed false complaint before Ulsoor Gate Police Station under Crime No.288/2010 on 03.09.2010. But after investigation and enquiry police have reprimanded plaintiff No.1 and closed the case.
6. The defendants 1 to 3 and their father Sri.K.H.Thimmaiah started the traditional weaving business of their community with power looms and entire family contributed towards the business and acquired the schedule properties except C-schedule property. A, B, C and D 10 O.S.No.6629/2010 properties were partitioned between Sri.K.H.Thimmaiah and his 3 sons on 09.07.1980. As such, present suit filed by plaintiff No.1 for partition is not maintainable. The alleged cause of action stated by plaintiff No.1 is imaginary and created.
7. After amendment to the plaint, defendants 1, 4 and 5 filed additional written statement, denying the facts alleged in plaint para No.16(a) and (b). It is contended that during the pendency of the suit, there was an order of temporary injunction from alienating the properties, but plaintiff No.1 and defendants 1 to 8 have settled their dispute in respect of schedule properties under Mediation Agreement dated 20.12.2012 before the Mediation Centre and under the said Agreement the defendants have agreed to pay Rs.46,50,000/- to the plaintiff No.1 towards his share in respect of schedule properties. Later on, plaintiff No.1 started demanding more, however the defendants with an intention to put to an end to the dispute, have agreed to pay Rs.55,00,000/- to plaintiff No.1. Accordingly, plaintiff No.1 and defendants 1 to 8 have executed Sale Deed dated 26.06.2013 in respect of C-Schedule property in favour of 11 O.S.No.6629/2010 defendant No.9. Under the said Sale Deed plaintiff No.1 has received Rs.14,06,250/- by way of demand draft drawn on Union Bank. On the very day, plaintiff No.1 has executed registered Release Deed in respect of schedule-A property, plaintiff No.1 has received Rs.40,93,750/- towards his share in A-schedule property by relinquishing his right, title and interest over A-schedule property. On 26.06.2013 itself plaintiff No.1 has executed Deed of Declaration dated 26.06.2013 declaring that in respect of properties at Tumkur, they are exclusive properties of Smt.Rangamma and after her demise, her class I heirs i.e., defendants 1 to 3 and Smt.Girijamma are only entitled to hold the properties. Therefore, plaintiff No.1 had executed Declaration Deed to the effect that he has no right, title or interest over the schedule properties and he has relinquished his right for himself and on behalf of his minor son - plaintiff No.2 and received total Rs.55,00,000/- towards his share in the suit schedule properties. To that effect, plaintiff No.1 himself has filed memo in this suit dated 08.07.2013. Therefore, plaintiff No.1 has no right to prosecute this suit for the reliefs claimed against the 12 O.S.No.6629/2010 defendants. They further contend that plaintiff No.1 has purchased the house property bearing No.1715, situated at BDA Layout, Jambusavaridinne, J.P.Nagar 8th Phase, 2nd Block, Bangalore, under the Sale Deed dated 13.01.2014. He has purchased the said property from out of the money he had received from the defendants i.e., Rs.55,00,000/- under the Sale Deed and Release Deed. He has not included the said property purchased by him in the suit schedule. The intention of plaintiff No.1 is clear that to make personal gain and to extort more money from the defendants 1 to 8 filed this false suit and also filed unnecessary applications and false criminal complaints.
8. The defendants 1, 4 and 5 further contend that the present D-schedule property which is purchased by defendant No.4 and his wife - Smt.R.Jayalakshmi under registered Sale Deed dated 29.06.2012 and it is their exclusive self acquired property, as such, the claim made by plaintiff No.1 against the present plaint D-schedule Chamarajpet property is not maintainable and prayed that suit of the plaintiffs be dismissed with costs. 13 O.S.No.6629/2010
9. After amendment defendant No.9 has filed the written statement contending that plaintiff No.1 and defendants 1 to 8 have jointly executed Sale Deed dated 26.06.2013 in respect of C-schedule property showed in original plaint for a consideration. The said C-schedule property had fallen to the share of Sri.K.H.Thimmaiah in the partition dated 09.07.1980. As such, the said property looses the character of joint family property. It is neither ancestral nor joint family property of plaintiff No.1 and defendants and it was absolute exclusive property of Sri.K.H.Thimmaiah and his wife - Smt.Rangamma, who enjoyed the property till their death. Sri.K.H.Thimmaiah died on 18.06.1995 and his wife - Smt.Rangamma died on 05.09.2009, leaving behind the defendants 1 to 3 and their sister - Smt.Girijamma as her legal heirs. The defendants 1 to 3 and Smt.Girijamma along with their legal heirs have executed registered Sale Deed dated 26.06.2013 in favour of defendant No.9 for consideration and in that Sale Deed, plaintiff No.1 received Rs.14,06,250/- towards his share. Therefore, she is the bonafide purchaser for value. The present suit claiming share in respect of original plaint C- 14 O.S.No.6629/2010 schedule property and other reliefs claimed by plaintiff No.1 against her is not maintainable and sought for dismissal of the same. She has also contended that the allegations of threat given to plaintiff No.1 at the time of execution of the Sale Deed, are all false and baseless. In fact, plaintiff No.1 has relinquished his right, title or interest over the suit schedule properties by receiving total Rs.55,00,000/-. Therefore, he has no right to assail the Sale Deed contending that same is not binding on him. He was a consenting party to the Sale Deed during the pendency of the suit and all the allegations are so made just to suit the purpose to extort more money and prayed that the plaintiffs are not entitled to any of the reliefs claimed in the suit and suit is liable to be dismissed.
10. After impleadment defendant No.10 has filed written statement contending that, the present suit D- schedule property belonged to defendant No.4 and his wife
-Smt.R.Jayalakshmi, as they purchased the same through registered Sale Deed dated 29.06.2012. He had purchased portion of D-schedule property from them measuring 900 square feet for consideration. Therefore, except defendant 15 O.S.No.6629/2010 No.4 and his wife, nobody have any right over present D- schedule Chamarapet property and suit against him be dismissed with costs.
11. Basing on the rival pleadings the following issues and additional issues are framed:-
ISSUES
1. Whether the plaintiffs prove that they are the co-owner of the schedule properties along with the defendants?
2. Whether the plaintiffs prove that they are in possession of the schedule properties along with the defendants?
3. Whether the plaintiffs prove that they are entitled to get share in the schedule properties? If so, at what shares?
4. Whether defendant No.1 proves that all the schedule properties are divided under the Partition Deed dated 09.07.1980 between him and his parents and his brothers?
5. Whether defendant No.1 proves that the schedule properties except C- schedule property are the exclusive properties of defendants 1 to 3?16 O.S.No.6629/2010
6. Whether defendant No.1 proves that C-
schedule property is fallen to the share of Sri.K.H.Thimmaiah & Smt.Rangamma under the Partition Deed dated 09.07.1980?
7. Whether defendant No.1 proves that the plaintiff No.1 has relinquished his rights in respect of the schedule properties except C-schedule property under the Registered Deed of Declaration and Deed of Release dated 26.06.2013 by receiving Rs.40,93,750/- towards his share in the schedule properties?
8. Whether defendant No.1 proves that the court fee paid on the plaint is insufficient?
9. Whether defendant No.9 proves that she is bonadfide purchaser of C-schedule property under the Sale Deed dated 26.06.2013?
10. Whether defendant No.9 proves that the plaintiff No.1 has executed the Sale Deed dated 26.06.2013 in respect of C-
schedule property by receiving the sale consideration of Rs.14,06,250/-?
11. Whether defendant No.9 proves that the suit of the plaintiffs in respect of C-
schedule property is not maintainable 17 O.S.No.6629/2010 during the lifetime defendant No.1?
12. What order or decree?
ADDITIONAL ISSUES
1. Whether plaintiff proves that defendants have threatened and forced to execute the Sale Deed dated 26.06.2013 in respect of C-schedule property?
2. Whether the plaintiff proves that defendants have threatened and forced to execute the Release Deed dated 26.06.2013 in respect of 'A' schedule property?
3. Whether the court fee paid by the plaintiff is correct?
4. Whether defendant No.9 proves that, during the pendency of the above suit, the suit schedule property purchased from the parties which attracts the lis-
pendence or not?
5. Whether the defendants prove that the amount stated in the Sale Deed and Release Deed dated 26.06.2013 i.e., Rs.55,00,000/- towards the consideration and share in the suit schedule properties to the plaintiffs?
6. Whether the plaintiffs prove that, the 18 O.S.No.6629/2010 Sale Deed and Release Deed dated 26.06.2013 got executed by threatening and fraudulently to the defendants?
7. Whether defendant No.4 proves that D-
schedule property is the self-acquired property of defendant No.4 and his wife?
12. The plaintiff No.1 got himself examined as PW-1 and one witness as PW-2 and got marked Ex.P1 to P15 and closed his side. The defendant No.1 got himself examined as DW-1 and 2 witnesses in his behalf as DW-2 and DW-3 and got marked Ex.D1 to D7.
13. After the closure of the evidence, arguments were heard.
14. My answers to the above issues and additional issues are as under:-
Issue No.1:- In the negative.
Issue No.2:- In the negative.
Issue No.3:- In the negative.
Issue No.4:- In the affirmative.
Issue No.5:- In the affirmative.
Issue No.6:- In the affirmative.
19 O.S.No.6629/2010
Issue No.7:- In the affirmative.
Issue No.8:- In the negative.
Issue No.9:- In the affirmative.
Issue No.10:- In the affirmative.
Issue No.11:- In the affirmative.
Issue No.12:- As per final Order.
Addl.Issue No.1:- In the negative.
Addl.Issue No.2:- In the negative.
Addl.Issue No.3:- In the affirmative.
Addl.Issue No.4:- In the negative.
Addl.Issue No.5:- In the affirmative.
Addl.Issue No.6:- In the negative.
Addl.Issue No.7:- In the affirmative.
For the following:
REASONS
15. Issue Nos.1, 2, 5 to 7, 9 to 11 and Addl.
Issue Nos 1, 2, 4, 5 and 6 :-
For the sake of convenience these issues are taken up together for discussion to avoid repetition of facts and evidence.
The pleaded case of PW-1 is that, suit A, B, C and D schedule properties shown in the original plaint are ancestral joint family properties, derived by 20 O.S.No.6629/2010 Sri.K.H.Thimmaiah through the partition in the family between his brothers dated 27.02.1956. The plaintiff No.1 and defendants 1 to 8 are the son, grand children of Sri.K.H.Thimmaiah, morefully shown in plaint genealogy constitute Hindu Joint Family and the plaintiffs together entitled to get 1/9th share in all the suit schedule properties. The request made by plaintiff No.1 to effect partition was refused by the defendants 1 to 8, that is the reason plaintiff No.1 has filed the present suit for partition and separate possession of their legitimate share.
16. PW-1 has filed I.A.No.1 application under Order 39 Rules 1 and 2 of CPC, seeking an order of temporary injunction and court was pleased to grant exparte temporary injunction against the defendants from alienating the suit schedule properties. It is the contention of the plaintiffs that during the pendency of this suit by giving threat to kill plaintiff No.1 and his family members by exercise of force they got executed Sale Deed dated 26.06.2013 in respect of C-Schedule property in favour of defendant No.9- Smt.Pavan Bai and also they got obtained registered Release Deed dated 26.06.2013, relinquishing 21 O.S.No.6629/2010 right of plaintiff No.1 in respect of suit schedule properties, but in fact he was not a consenting party and no amount was received by him. Therefore, these documents were created fraudulently under threat, as such, not binding on the rights of plaintiff No.1 in respect of the suit schedule properties. Therefore, plaintiff No.1 has amended the relief to that effect for declaration and according to plaintiff No.1, he is entitled to get 1/9th share in present A, B, C and D properties. It is his case that, suit present D-schedule Chamarajpet property which was purchased through registered Sale Deed in the name of defendant No.4 and his wife - Smt.R.Jayalakshmi dated 29.06.2012 by utilizing the amount by selling C-schedule property in favour of defendant No.9 and also portion of present D-schedule property was sold in favour of defendant No.10. As such, present D-schedule property is also joint family property, which is liable for partition. The whole case of plaintiff No.1 is denied by the defendants 1 to 8. The plaintiff No.1 doesn't have any cause of action to file the present suit. It is their case that in the registered Partition Deed dated 09.07.1980 between Sri.K.H.Thimmaiah and his 3 sons i.e., 22 O.S.No.6629/2010 defendants 1 to 3, all the properties held by Sri.K.H.Thimmaiah were partitioned and respectively A, B and D schedule properties in the original plaint were fallen to the share of defendants 1 to 3 and Sri.K.H.Thimmaiah retained C-schedule property. As such, it is their exclusive properties. The plaintiff No.1 claims that he is in joint possession along with defendants 1 to 8 is totally false, no such joint family is existing since the date of partition of 09.07.1980. Further, during the pendency of the suit before Mediation Centre, Mediation Agreement was entered into, PW-1 has executed registered Sale Deed dated 26.06.2013 along with other defendants in respect of C- schedule property in favour of defendant No.9 and in the said Deed itself he has received Rs.14,06,250/- towards his share and also he had executed registered Release Deed relinquishing his right in respect of A-schedule property, which was fallen to the share of father of PW-1 in 1980 Partition Deed and totally he had agreed to relinquish his right in respect of the suit schedule properties and received Rs.55,00,000/- from the defendants 1, 4 and 5. It is only subsequently with an intention to extort more money filed 23 O.S.No.6629/2010 false criminal complaint before Ulsoor Gate Police Station and also filed repeated false applications in this suit without any basis. In fact, he has received Rs.55,00,000/- from the defendants, as such, he doesn't have any right to continue the suit and his claim for declaration that registered Release Deed and Sale Deed dated 26.06.2013 are not binding on his right, is not maintainable and under the circumstances, he cannot prosecute the suit for the reliefs against the defendants and it is their case that suit is liable to be dismissed. Therefore, heavy burden is on PW-1 to establish that all the suit schedule properties are joint family properties of plaintiff No.1 and defendants 1 to 8 and execution of registered Sale Deed in respect of C-schedule property dated 26.06.2013 and registered Release Deed dated 26.06.2013, are the documents fraudulently created by the defendants, he has not received any amount, much less Rs.55,00,000/- from the defendants and never relinquished his right in respect of plaint A to D schedule properties and those documents came during the pendency of the suit, was in violation of temporary injunction order 24 O.S.No.6629/2010 passed by this court on I.A.No.1 and same is not binding on the right of the plaintiffs.
17. Here, we have to bear in mind that PW-1 has not got amended the relief for cancellation of registered Sale Deed dated 26.06.2013 in favour of defendant No.9 - Smt.Pavan Bai in respect of C-Schedule property and registered Release Deed dated 26.06.2013 in favour of the defendants 1, 4 and 5.
18. PW-1 has produced the Family Tree as per Ex.P1 and also produced the certified copy of the registered Partition Deed dated 27.02.1956 between Sri.K.H.Annayappa, Sri.K.H.Chikkannappa, Sri.K.H.Hanumanthappa and Sri.K.H.Thimmaiah as per Ex.P2. Its legible typed copy and translation is also produced. In that partition taken place between the brothers of Sri.K.H.Thimmaiah D-Schedule property shown in Ex.P2 i.e., House property situated at Appajj Rao Lane, Municipal No.13, B-87 and also Municipal No.11 property situated at Siddannana Galli, Ramannana Pet, were fallen to the share of Sri.K.H.Thimmaiah. Therefore, it is an 25 O.S.No.6629/2010 admitted Partition Deed. But thereafter also Sri.K.H.Thimmaiah and his sons defendants 1 to 3, have acquired properties namely A, B and D schedule properties in the original plaint, can be gathered from the documentary evidence produced. In the evidence of DW-1 he has stated that they belonged to weaver's community and Sri.K.H.Thimmaiah and his sons have engaged in business and running power looms, purchased the properties. Therefore, out of the suit schedule properties, C- schedule property was the ancestral property, as such some are purchased and some are through ancestors held by Sri.K.H.Thimmaiah. Ex.P3 is the Katha Extract pertains to C-schedule property in the original plaint i.e., Property No.31, Appaji Rao Lane was standing in the name of Sri.K.H.Thimmaiah as on 09.09.2010. Ex.P4 is the Katha Certificate of the said property issued by BBMP. Ex.P5 is the Encumbrance Certificate. There is no dispute that Appaji Lane House property was the property derived by Sri.K.H.Thimmaiah in a partition of 1956 under Ex.P2. But, evidence of DW-1 makes it clear that between Sri.K.H.Thimmaiah and his 3 sons i.e., defendants 1 to 3, 26 O.S.No.6629/2010 partition was effected through a registered Partition Deed dated 09.07.1980. PW-1 himself has produced the certified copy of the said registered Partition Deed at Ex.P8. On going through the said Partition Deed dated 09.07.1980, it is clear that all the properties held by joint family of Sri.K.H.Thimmaiah and his 3 sons were got partitioned and C-schedule property was fallen to the share of Sri.K.H.Thimmaiah, that is situated at Appaji Rao Lane, A- schedule property was fallen to the share of defendant No.1, B-schedule property to the share of defendant No.2 and D-schedule property mentioned in the original plaint i.e., property situated at Sudamnagar, Bangalore, was fallen to the share of defendant No.3. It is clear that since the date of partition, the respective sharers are enjoying A, B, C and D schedule properties separately by exercising their absolute independent right.
19. In the cross-examination of PW-1, he has categorically admitted the partition effected in the family of Sri.K.H.Thimmaiah and his 3 sons dated 09.07.1980 as per Ex.P8. In the said partition only, A-schedule property bearing No.8, situated at Ganigara B Lane, Joripet, 27 O.S.No.6629/2010 Bangalore, extent 40' x 40' covered under the boundaries, was fallen to the share of his father i.e., defendant No.1. The categorical admission of PW-1 in page 8 of cross- examination, that since the date of partition respective sharers are enjoying their respective shares. He has admitted that he doesn't have any right in schedule B and D properties mentioned in the original plaint which were fallen to the share of defendants 2 and 3 in the partition of 09.07.1980. Therefore, the claim made by plaintiff No.1 is in respect of A-schedule property which was fallen to the share of his father i.e., DW-1 herein and also C-schedule property situated at Apaji Rao Lane along with the house which was fallen to the share of his grand father - Sri.K.H.Thimmaiah. He asserts that to claim share in the above said 2 properties. Therefore, as rightly argued by the learned counsel for the defendants, that knowing fully well about the partition between Sri.K.H.Thimmaiah and his 3 sons under registered Partition Deed dated 09.07.1980 and it was acted upon and respective sharers are enjoying the property separately since then. The plaintiff No.1 has falsely filed this suit showing all the properties as joint 28 O.S.No.6629/2010 family properties and he is in joint possession of all A, B, C and D properties. But only in the evidence admits the partition dated 09.07.1980 under Ex.P8. Therefore, claim of plaintiff No.1 in respect of schedule B property fallen to the share of defendant No.2 and schedule D property of Sudamnagar shown in the original plaint fallen to the share of defendant No.3, they are not available for partition and claim of PW-1 seeking partition in plaint B and D properties in the original plaint, is not maintainable.
20. Here, it is admitted that Sri.K.H.Thimmaiah, father of defendants 1 to 3, was allotted C-schedule property in the admitted Partition Deed dated 09.07.1980. Whether the claim of the plaintiffs in respect of C-schedule property is maintainable? It is not in dispute that Sri.K.H.Thimmaiah died intestate on 18.06.1995. Therefore, on his death, his wife - Smt.Rangamma and 3 sons i.e., defendants 1 to 3, who are Class I heirs of Sri.K.H.Thimmaiah succeeded to the said property. Because by virtue of partition dated 09.07.1980 between himself and his 3 sons, registered Partition Deed was effected. Therefore, the effect of partition disrupting the 29 O.S.No.6629/2010 joint family status and he had enjoyed the C-schedule property as his absolute property. Therefore, on his death under Section 8(1) of Hindu Succession Act, it devolved upon his wife and 3 sons. Smt.Rangamma also died intestate on 05.09.2009, leaving behind defendants 1 to 3 - her sons and Smt.Girijamma - daughter, as her legal heirs. Here, plaintiff No.1 has not arrayed that Smt.Girijamma as party in this partition suit. Of course, in respect of the property there was a division took place in the year 1980 itself under Ex.P8 through a registered Partition Deed and C-schedule property was allotted to the share of Sri.K.H.Thimmaiah and his wife - Smt.Rangamma. Therefore, it is needless to say that, property has lost the character of joint family status and it was disrupted. Since 09.07.1980 Sri.K.H.Thimmaiah enjoyed C-schedule as his absolute separate property. Both Sri.K.H.Thimmaiah and Smt.Rangamma died intestate, as such defendants 1 to 3 and their daughter - Smt.Girijamma succeeded to C- schedule property under Section 8(1) of Hindu Succession Act, can very well be gathered.
30 O.S.No.6629/2010
21. No doubt, the application filed by plaintiff No.1 to implead his minor son, represented through guardian mother, was rejected by this court. The plaintiff No.1 has preferred writ petition and wherein order passed by this court on I.A.No.5 is set aside and directed to carry out amendment and plaintiff No.2 was thus impleaded. But question before the court that whether plaintiff No.1 is able to prove that A and C schedule properties are the joint family properties and atleast in these 2 items of the properties he is entitled to get share. But thing is that, once he admits the partition dated 09.07.1980, as such it can be said that the effect of partition disrupting the joint family status, as such C-schedule property as well as A- schedule property looses its joint family status and character and sharers enjoyed it as their separate properties.
22. However, even though there is an order passed by this court at the request of plaintiff No.1 as he had apprehension that the defendants were indulged in alienating the properties, restraint order was passed by granting T.I. order, but during the pendency of the suit C- 31 O.S.No.6629/2010 schedule property was sold by PW-1 along with defendants 1 to 8 in favour of defendant No.9 - Smt.Pavan Bai through registered Sale Deed - Ex.P13 dated 26.06.2013. According to PW-1, by giving threat of life to kill him and his family members, by exercise of force this Sale Deed was fraudulently created by the defendants.
23. Here, in the cross-examination of PW-1, he admits that he himself along with defendants 1 to 8 sold C- Schedule property situated at Appaji Rao Lane to defendant No.9 - Smt.Pavan Bai under Ex.P13. But denied that through the said Sale Deed itself he has received Rs.14,06,250/- by way of Demand Draft. Here, if we read the said registered Sale Deed, there is a clear reference with regard to partition in the family dated 09.07.1980 and why the signatures of PW-1, who is son of defendant No.1 was also taken, sale consideration was Rs.56,25,000/- and out of that amount in the Sale Deed itself it is mentioned that Rs.14,06,250/- was paid to PW-1 through D.D. dated 15.09.2013 drawn on Union Bank of India, Avenue Road, Branch and the said amount was paid to him with the consent of the vendors 1 to 4 and 6 to 8 before the 32 O.S.No.6629/2010 witnesses. Likewise, other sharers were also separately paid amount under D.D. is also mentioned. That means, all 3 sons and daughter - Smt.Girijamma have got divided the sale consideration amount equally can be gathered from the document itself and share of defendant No.1 the D.D. was given to PW-1 and he had encashed the same by presenting the D.D. to his banker. In the cross-examination of PW-1 he has showed ignorance that he doesn't know whether the said D.D. was encashed through his account. He has not denied the same. The said Sale Deed bears his signature also. That means, he is a party to the said document is an admitted fact. The clear admission of PW-1 in the cross- examination in page 8, that there was a settlement arrived at between PW-1 and defendants 1 to 8 in the Mediation and the defendants had agreed to pay Rs.46,00,000/- towards his share. He has stated that the defendants have taken time to pay the said amount, though he denied the suggestion that thereafter he started demanding Rs.75,00,000/-. However, he admitted that subsequently PW-1 and defendants 1 to 8 together have sold C-schedule 33 O.S.No.6629/2010 property for consideration in favour of defendant No.9 - Smt.Pawan Bai.
24. In the evidence of DW-1, he has denied all the suggestions that by exercise of fraud, force, they took PW-1 to Sub-Registrar's Office and got executed the Release Deed, Declaration Deed and also Sale Deed under Ex.P10 to P13. DW-1 deposed that out of his free consent only PW-1 was party to the said document and he had received in all Rs.55,00,000/- from them towards his share in the property and executed the documents.
25. Here, though PW-1 by way of amendment to plaint in para 16(a) and (b) has stated that Release Deed and the Sale Deed in respect of C-schedule property in favour of defendant No.9 was fraudulently got obtained by exercise of force. But on reading the said paragraph he has not specifically stated that who had taken him by giving threat and who had induced him by exercising misrepresentation, undue influence or force, when and where exactly fraud was exercised on him, all those necessary facts and the ingredients to prove the said 34 O.S.No.6629/2010 allegations are missing in the pleadings. Therefore, heavy burden is on PW-1 to establish that he was unduly influenced by exercise of force, threat, misrepresentation and registered Sale Deed - Ex.P13 dated 26.06.2013 and registered Release Deed- Ex.D6 was got executed from him. The defendants have produced the original Release Deed at Ex.D6, executed by PW-1 in favour of DW.1 - Sri.T.Nagaraj, N.Shivakumar, N.Tejkumar, who are defendants 1, 4 and 5 in this suit, through which he has released his 1/4th right in respect of suit A-schedule property, which is standing in the name of defendant No.1 by receiving sum of Rs.40,93,750/- in the presence of the witnesses and Ex.P10 - Deed of Declaration dated 26.06.2013, through which he has declared that he has no right, title or interest, claim and share in respect of schedule Item No.1 to 4 in all the subject matter in O.S.No.6629/2010. Ex.P11 - Deed of Declaration, through which he has declared that 3 sites in Tumkur stated in the said document which were purchased by his grand mother - Smt.Rangamma and he doesn't have any right to claim share in it and only defendants 1 to 3 and 35 O.S.No.6629/2010 their sister - Smt.Girijamma are the absolute owners of the properties i.e., sites mentioned in the said document.
26. Therefore, fraud, misrepresentation has to be proved by PW-1 to the satisfaction of court by leading evidence. Here, DW-1 has deposed about the execution of Ex.P10 to P13 - registered documents dated 26.06.2013, for which PW-1 is a party. DW-3 is the independent witness to the Release Deed - Ex.D6 and Sale Deed - Ex.P13 dated 26.06.2013, has categorically stated in his evidence that he had also accompanied the parties to the Sub-Registrar's Office, Ganganagar, Sri.Somashekar and Sri.Nagaraj requested him to affix his signature as a witness to the Release Deed - Ex.D6 and before him Sri.N.Somashekhar, Sri.T.Nagaraj Sri.N.Shivakumar and Sri.N.Tejkumar have affixed their signature on Ex.D6 - original Release Deed and identified the signatures on the document. He has categorically stated that in his presence before affixing signature PW.1-Somashekar has received Rs.40,93,750/- by way of cash from Sri.T.Nagaraj, Sri.N.Shivakumar and Sri.N.Tejkumar. Only after receiving the said amount, PW-1 affixed his signature and identified his signature at Ex. 36 O.S.No.6629/2010 D6(a) and signature of Sri.Somashekar (PW-1) as Ex.D6(b). In the cross-examination, he has categorically stated that Rs.40,93,750/- was paid before him in cash to PW-1.
27. No doubt, when payment is heavy it shall be done through D.D. or cheque and to the question put to him in this regard, he has simply stated that it is a matter relating the family of PW-1 inter-se, that is the reason he did not advise them and he doesn't know the legal position. A specific question was put to him by the learned counsel for the plaintiffs that he has simply put his signature on Ex.D6 as per the request of the defendants. DW-3 has stated that PW-1 has also requested him to put the signature. He has specifically stated that PW.1- Sri.Somashekar after receipt of money asked him to put his signature and thereafter, he had signed. No doubt, he is the relative of family of PW-1, but that itself is not a ground to brand this witness as an interested witness. Because he is related to PW-1 as well as defendants 1 to 8 also and there is no enemity between PW-1 with this witness. He has also stated that they took his signatures on Release Deed as well as on Declaration Deed and denied the 37 O.S.No.6629/2010 suggestion that father and brothers of PW-1 forcibly took him to Sub-Registrar's Office threatened him to execute the document and cheated him, are denied by the witness. Therefore, it is clear that before Mediation Centre matter was settled can be gathered from the records and PW-1 also admits the same and he had agreed to receive Rs.55,00,000/- from the defendants 1 to 8, not to claim any share in suit properties. In fact, suit B and D schedule properties in the original plaint, he doesn't have any right at all, even otherwise, matter was settled and in all, as per the evidence of DW-1 they agreed to pay Rs.55,00,000/- and out of it under Ex.P13 - Sale Deed he has received Rs.14,06,250/- and under Ex.D6 - Release Deed the balance amount in cash Rs.40,93,750/- was paid and which was substantiated and proved by the evidence of independent witness - DW.3 to the said Release Deed - Ex.D6 and also the Declaration Deed, in his presence only the said amount is paid in cash to PW-1 and only after receiving it in his presence PW-1 put his signature. Therefore, nothing is elicited from DW-3 in the cross- examination to disbelieve his evidence.
38 O.S.No.6629/2010
28. If really, there was a threat to kill PW-1 and his family members by the defendants 1 to 8 and by exercise of force they got executed Ex.P10 to P13 as alleged by PW-1, nothing prevented PW-1 to report the same to Sub- Registrar about the illegality committed by them. He has not done it. On the contrary, if we go through the cross- examination, he has simply stated his brother told him that "£Àr ºÉÆÃUÉÆÃt" to the office of Sub-Registrar. Except this there is nothing is stated worth to believe that such undue influence, force or threat to life was given. He himself has stated that no galata took place at the time his brother came to his house, straightaway they went to Sub- Registrar's Office, he has not complained the act of force exercised by the defendants 1 to 8 on him before the Sub- Registrar. He admits that there was no hurdle for him to complain before the Sub-Registrar. He is a literate person, studied SSLC, doing business since long time and he has put his signature on all the pages of Ex.P10 to P13 and it is clear that D.D. of Rs.14,06,250/- was received by him. In the cross-examination, he admits that he had encashed the said D.D. at Canara Bank, Avenue Road Branch Account, 39 O.S.No.6629/2010 which is standing in his name. That means, under Ex.P13 he had received Rs.14,06,250/-, stands proved. Though he has denied the receipt of Rs.40,93,750/- under Ex.D6 and wanted to say that, the defendants have cheated him. But the evidence of DW-3 clearly goes to show that before him only in cash they paid the said amount and only after receipt of the said amount, he put his signature on Release Deed - Ex.D6, Sale Deed - Ex.P13 as well as Deed of Declaration - Ex.P10 and Ex.P11. Ex.P10 to P13 were executed on 26.06.2013 itself in the Office of the Sub- Registrar. That means, what was intended by the parties to settle down their dispute as regards the claim made by plaintiff No.1 of partition in schedule properties and they decided to sell C-schedule property shown in the original plaint situated at Appaji Rao Lane, which was allotted to the share of late Sri.K.H.Thimmaiah in the partition of 1980 and apart from it, he has relinquished his right over A-schedule property which was allotted to the share of his father - DW.1 and also his claim with regard to Tumkur Sites, totally it was quantified that Rs.55,00,000/- and under Ex.D6 Rs.40,93,750/- was paid, as already he had received 40 O.S.No.6629/2010 Rs.14,06,250/- under Ex.P13. DW-1 was a Retired Employee and he was running the business of power looms and sold C-schedule property even according to plaintiff No.1 value of the property is more, certainly sufficient amount to pay Rs.40,93,750/- was in the hands of the defendants at the relevant point of time, can be gathered. It is noticed by the court that while appreciating the evidence that it is only subsequently PW-1 has filed PCR No.20631/2013 as per copy of the order sheet - Ex.P14 and the police have investigated and submitted B-report. PW-1 has stated that he has filed objection and the said case is pending. But point remains the same, that under what circumstances Ex.P10 to P13 were executed, can very well be appreciated by the evidence of PW-1, DW-1 and DW-3. Even in B-report submitted by the I.O. that there was a settlement arrived at between the parties before the Mediation Centre and PW-1 had agreed to sell the property and to take his share out of the proceeds and had received Rs.55,00,000/-. He has also submitted a memo to that effect to the court appraising the said fact. 41 O.S.No.6629/2010
29. Here, learned counsel for the defendants got marked the said memo filed by PW-1 to the court on 08.07.2013, clearly stating that he has received an amount of Rs.55,00,000/- from the defendants as agreed by him in the Agreement between them before the Mediation Centre towards his share in the schedule properties and accordingly, he has executed Release Deed and Deed of Declaration in favour of the defendants. Only further he himself and other defendants have sold C-schedule property to one Smt.Pavan Bai under the Sale Deed dated 26.06.2013 (Ex.P13), whatever share he has obtained from the defendants that also includes his minor son's share, who is plaintiff No.2 herein, he will utilize that amount for the benefit of his son. Therefore, he has prayed that case be disposed off in accordance to the memo and Mediation Agreement dated 20.12.2012. But subsequently he has filed criminal complaint, it shows that if really fraud was exercised on him, he was unduly influenced by the defendants and coerced him and forced him to execute Ex.P10 to P13, at the first opportunity available for him to complain before the Sub-Registrar himself or atleast if really 42 O.S.No.6629/2010 he did not receive any amount as alleged by him, he could have issued legal notice, as such certainly there was no occasion for him to file this memo under Ex.D1 before the court. Therefore, filing of complaint and also miscellaneous petition under Order 39 Rule 2(a) of CPC for violation of T.I. order granted by this court, subsequent amendment taken for the relief of declaration that Release Deed and the Sale Deed are not binding on him, are all after thought. In fact, by the evidence of DWs.1 and 3, the defendants have proved that they paid Rs.55,00,000/- to plaintiff No.1 under Ex.P13 as well as Ex.D6 - Sale Deed and Release Deed and said amount was received by him, was acknowledged by him in the said Deeds itself, is a signatory to that documents, now he cannot fall back to contend that he had not received amount of Rs.40,93,750/- under Ex.D6. He had been to Sub-Registrar's Office and his photo is also seen in Ex.P10 to P13 and Ex.D6. The evidence of DW-3 can very well be appreciated as he being an independent witness to the transaction, has deposed that in cash the said amount was paid in his presence and only after receiving it he put his signature.
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30. Therefore, the conduct of plaintiff No.1 after having filed memo under Ex.D1, admitting the receipt of Rs.55,00,000/- from the defendants and execution of Ex.P10 to P13 and requested the court to record the settlement arrived at before the Mediation Centre and subsequently has changed his version, shows that intention of PW-1 was to extort more money from the defendants. In fact, the defendants have proved the payment of entire Rs.55,00,000/- to PW-1 i.e., borne out from Ex.P13 and Ex.D6 itself and proved by the evidence of independent witness - DW-3. DW-1 in his cross-examination admits that the house in which he is residing in A-schedule property consists of ground floor, first floor and second floor. But denied the suggestion that between himself and his children, it was agreed that share will be given to the plaintiff No.1 in A-schedule property. As far as, present D- schedule property is concerned, he has stated that it was the self acquired property of defendant No.4 and his wife and that is not related to his family. However, he admits that his son -Sri.N.Shivakumar has sold ground and first floors of Chamarajpet Building in favour of defendant No.10. 44 O.S.No.6629/2010 He has denied the suggestion that by selling C-schedule property for Rs.3,50,00,000/- and out of the said amount received from defendant No.9 - Smt.Pavan Bai, the defendants 1 to 3 have share Rs.1,00,00,000/- each and remaining Rs.50,00,000/- was paid to Smt.Girijamma i.e., his sister and by utilizing the said Rs.1,00,00,000/- received DW-1 has himself has purchased present D-schedule Chamarajpet property in the name of defendant No.4 and his wife. Therefore, DW-1 had clearly denied the claim made by PW.1, DWs.1 and 2 in their evidence contended that present D-schedule Chamarajpet property is the self acquired property of defendant No.4 and his wife and it was not at all purchased by utilizing the funds of the joint family.
31. The learned counsel for the defendants has relied on a decisions reported in 1982 (1) Kar.L.J. 242, in the case of Vokkaligara Laxmiah v. Vokkaligara Devegowda and Anr. and 2006(3) Kar.L.J.177 (DB) in the case of Ranganayakamma and another v.
K.S.Prakash (deceased) by LRs and others, wherein their lordships have held that under Order 6 Rule 4 mere plea of fraud, misrepresentation, undue influence, general 45 O.S.No.6629/2010 allegations, without particulars is not sufficient. It is held that each misrepresentation, its date and whether it was made in writing or verbally, occasion thereof, must be stated in the pleading and shall be proved by way of evidence.
32. On this point, he has further relied on a decision reported in 1981 (1) Kar.L.J. page 174 in the case of Madegowda v. Madegowda and another and AIR 1976 Supreme Court 163, in the case of Afsar Shaikh and another v. Soleman Bibi and others, wherein their lordships have ruled that in view of under 6 Rule 4 r/w Order 6 Rule 2 CPC, person who asserts fraud, undue influence, misrepresentation, must specifically and separately plead all those allegations and it require to be proved to the satisfaction of the court. The general allegation in the plaint is not sufficient.
33. By applying the principles laid down in the above cited decisions held that the mandatory requirement under Order 6 Rule 4 of CPC has not been complied by PW-1, pleading is bald. Except his evidence, nothing is brought on 46 O.S.No.6629/2010 record to prove that Ex.P10 to P13 got executed by exercise of fraud, misrepresentation, undue influence and force. PW-2 is none else than wife of PW-1, her evidence is not helpful to the case of PW-1 to prove his allegations.
34. Therefore, in the first place, the effect of partition dated 09.07.1980 under Ex.P8 clarifies that properties allotted to the share of the defendants 1 to 3 and Sri.K.H.Thimmaiah, they enjoyed the properties as their separate independent properties. Even otherwise, as the plaintiff No.1 has filed the present suit because of the Mediation Agreement arrived at between himself and defendants 1, 4 and 5 i.e., his father and other 2 brothers, have agreed to pay Rs.55,00,000/- to him and by the evidence they proved the payment made by them which stands fortified by the memo filed by PW-1 before the court on 08.07.2013 as per Ex.D1. Therefore, subsequent filing of the complaint and miscellaneous petition for violating the T.I. order, are all after thought and plaintiff No.1 cannot prosecute further the suit for partition or for any of the reliefs, as rightly argued by the learned counsel for the defendants.
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35. There is no presumption under Hindu Law, of a property being joint family property only on account of existence of Hindu Joint Family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available as has been ruled in a reported decision AIR 2003 Supreme Court 3800 in the case of D.S.Lakshmaiah and another v. L.Balasubramanyam and another relied on by the learned counsel for the plaintiffs.
36. The learned counsel for the plaintiffs has also relied on decision reported in AIR 1952 Supreme Court 225, in the case of Gur Narain Das and another v. Gur Tahal Das and others, wherein the lordships have held 48 O.S.No.6629/2010 where the plaintiff is a co-sharer in the properties he can maintain a suit for partition even though he is not in actual possession unless exclusion and ouster are pleaded and proved. Here, in this case the defendants contend that plaintiff No.1 had purchased property at J.P.Nagar and separately residing, but there was no division took place between defendant No.1 and his 3 sons. But what is of importance is that in the present case, evidence goes to show that there was a Mediation Agreement and pursuant to it during the pendency of the suit, parties have sold C- schedule property and also PW-1 had executed registered Release Deed and Declaration Deed, relinquishing his share, by receiving Rs.55,00,000/- from the defendants 1, 4 and
5.
37. In the present case on hand, in view of Ex.P8 - registered Partition, Deed there was no question of considering original plaint A, B, C and D properties as the joint family properties as contended by plaintiff No.1 and his say that he is in joint possession with defendants 1 to 8, cannot be believed at all.
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38. Added to that, PW-1 himself filed I.A.No.11 under Order 1 Rule 10(2) CPC for deleting defendant No.9 and also I.A.No.12 to delete C-schedule property and considering the request made by plaintiff No.1 only this court has allowed the applications and ordered to delete C- schedule property which was originally allotted to the share of Sri.K.H.Thimmaiah under the Partition Deed dated 09.07.1980 and also that property was purchased by defendant No.9 under Sale Deed - Ex.P13 and necessary amendment was carried out. Here, these applications were filed subsequent to the filing of Ex.D1 - Memo. That means, PW-1 admits the Sale Deed - Ex.P13 and receipt of amount, now only harping upon to contend that Release Deed - Ex.D6 under which he has not received any amount of Rs.40,93,750/-. Even after getting deleted C-schedule property and defendant No.9, he cannot claim the relief that Sale Deed Ex.P13 through which C-schedule property was sold, was not binding on him. Half hearted attempt was made by PW-1. By express conduct of PW-1 it shows that he was not sure about his case and somehow wanted to get amendments, applications after applications, under wrong 50 O.S.No.6629/2010 notion that properties are joint family properties and he is entitled to get share. Though under mediation they agreed to pay Rs.55,00,000/- considering that he had right, but statutorily it does not create any right on plaintiff No.1 to claim that all the suit schedule properties are the joint family properties and he is in joint possession along with defendants 1 to 8. As defendant No.9 deleted she has not led any evidence. However, claim for the relief in respect of C-schedule property is still continued and evidence led by the defendants is based on Ex.P13 and relevant circumstances. Even though, the issues 9, 10, 11 and Addl. Issue No.4 burden to prove is on defendant No.9, but defendants have taken the said burden to prove those issues, because their contention is based on Mediation Agreement and subsequent facts happened, execution of Ex.P10 to P13 by plaintiff No.1. Therefore, even though Addl. Issue No.9 speaks about the contention of plaintiff No.1 that there is an order of exparte T.I. order, restraining them from alienating the properties, the Sale Deeds executed is hit by lis pendence. But he himself is a party for Mediation Agreement, settlement arrived at and further 51 O.S.No.6629/2010 conduct that execution of Sale Deed - Ex.P13, receipt of consideration and deleting the name of defendant No.9 and C-schedule property, filing of Ex.D1 - Memo, throw light on the fact that he is a consenting party. Therefore, inter-se between the parties, out of mediation settlement if properties are sold, certain documents are executed, plaintiff No.1 cannot claim that it is hit by lis pendence.
39. It is only after deleting C-schedule property and defendant No.9, again as present D-schedule property of Chamarajpet, which is standing in the name of defendant No.4 and his wife, he has impleaded defendant No.10 as party - defendant, contending that by selling C-schedule property and also portion of present D-schedule property defendant No.4 had constructed a building, wherein he is residing. Therefore, that is also a joint family property. His assertion is denied by DW-1 and DW-2. No doubt, present D-schedule property is purchased by defendant No.4 and his wife - Smt.R.Jayalakshmi through registered Sale Deed dated 29.06.2012 from one B.R.Mohan as per Ex.D5 for a consideration of Rs.27,00,000/- and this property was presently showed as D-schedule and original D-schedule 52 O.S.No.6629/2010 property was treated as C-schedule after amendment. This property according to DW-1 and DW-2 is the exclusive self acquired property of defendant No.4 - Sri.N.Shivakumar.
40. To show that market value at the time of relevant time with effect from 12.08.2013 in the said area, DW-2 has produced Ex.D7 and the allegation that to save the stamp duty lesser value is shown, what is contended by PW-1, cannot be appreciated. DW-2 in the cross-examination has clearly denied the suggestion that amount derived by selling Appaji Rao Lane property this present Chamarajpet property was purchased in the name of himself and his wife. However, he admits that ground floor portion of Chamarajept property was sold by him in favour of defendant No.10 for Rs.64,00,000/- and odd. He has deposed that vacant site was purchased under Ex.D5 and later on, he has put up construction. The photographs of the said house are also available in the file. He admits that Akash and Aishwarya, whose name is found, displayed in the boards kept in front of the building, are the names of his grand daughters. Here, suggestion to the witnesses - DW-1 and 2 that they agreed to pay Rs.80,00,000/- but 53 O.S.No.6629/2010 hardly paid Rs.14,00,000/- with an assurance to give balance amount and later on cheated him, was denied by him. In fact, it is their case under Ex.P13 - registered Sale Deed in respect of C-schedule property and Ex.D6 - registered Release Deed dated 26.06.2013, they paid Rs.55,00,000/- to plaintiff No.1 and this fact is proved by the evidence of independent witness - DW.3. Therefore, what PW-1 has stated that because of non-payment made by them, he could not complete the residential house which he has purchased under Ex.D3. PW-1 has admitted in the cross-examination that he has purchased property from one Sri.Kuppuswamy in the name of himself and his wife - Smt.Rekha under Registered Sale Deed dated 13.10.2014 for a consideration of Rs.31,00,000/-. It is the case of DW.1 and DW-2 that out Rs.55,00,000/- amount paid by them under Ex.P13 and Ex.D6 he had purchased the said property at J.P.Nagar and constructed the house. Presently he is residing in the said property stands proved by the evidence of DW-1 and 2. All the suggestions made to DW-1 and 2 in the cross-examination by the learned counsel for the plaintiffs is denied by them. PW-1 has not included the 54 O.S.No.6629/2010 J.P.Nagar property purchased by him in the schedule. But the defendants are not laying any claim over the said property. Present D-schedule property is standing in the name of Sri.Shivakumar and his wife - Smt.R.Jayalakshmi as per the Katha Certificate and Katha Extract. It has come in evidence that DW-2 is doing his own business since several years and having sufficient income of his own, the plaintiff No.1 cannot claim that present D-schedule property was purchased by utilizing the joint family nucleus. In the first place, as per the Mediation Agreement he himself had executed Ex.P10 to P13, subsequently filed memo under Ex.D1 reporting the settlement, admitting execution of Ex.P10 to P13 and also receipt of Rs.55,00,000/- is admitted by him and again, by filing I.A.No.11 and 12 on 25.07.2015, he got deleted C-schedule property and also name of defendant No.9, doesn't wish to press the relief, admitting the execution of Ex.P13 - Sale Deed and receipt of consideration amount. All these circumstances and express manifest conduct of PW-1 shows that that his allegation that undue influence and force was exercised on him in execution of Ex.P10 to P13 and they cheated him 55 O.S.No.6629/2010 without paying amount as agreed, are all far from truth and not proved to the satisfaction of the court. Therefore, he can't lay a claim over present D-schedule property which is admittedly purchased during the pendency of this suit and no evidence is placed by plaintiff No.1 that there exist a joint family property and nucleus and that was utilized in purchase of Chamarajpet property in the name of DW-2 and his wife. Therefore, his claim that he is entitled to get share in present D-schedule property cannot be appreciated at all.
41. The evidence of PW-2 who is the wife of PW-1 has come before the court to depose as a guardian to minor plaintiff No.2. No doubt, she is the mother of minor plaintiff No.2. In the cross-examination, she admits that she herself along with PW-1 and their son together are residing in J.P.Nagar. Even she has stated that she doesn't know whether signatures of her husband on Ex.P10 to P13 are taken forcibly or not. What she states that subsequently she came to know. Her evidence is hearsay evidence. She admits that they purchased J.P.Nagar property after sale of C-schedule property under Ex.P13 and admits that Rs.14,00,000/- and odd is received under Ex.P13 through 56 O.S.No.6629/2010 D.D. She doesn't know right of her husband was released under Ex.P12 or not. In page No.5 of the cross- examination, she has stated that she doesn't know whether her husband has taken Rs.55,00,000/- from his father under Sale Deed and Release Deed or not. Therefore, her evidence is not at all helpful to plaintiff No.1 in any manner. More over, minor plaintiff's claims is through his father and grand father- DW-1. When PW-1 himself has failed to prove his allegations against the defendants and properties are available for partition, question of minor claiming share doesn't arise at all. More over, under Hindu Minority and Guardianship Act, Section 6, mother cannot be guardian to a minor when father is alive. Therefore, her evidence is not helpful to prove the claim made by the plaintiffs in this suit. Therefore, it is needless to say that plaintiff No.1 has failed to prove that he himself and defendants 1 to 8 are co- owners in respect of schedule properties and they are in joint possession of the schedule properties and also miserably failed to prove that the defendants have threatened and forced him to execute the Sale Deed - Ex.P13 in respect of C-schedule property and also Release 57 O.S.No.6629/2010 Deed under Ex.D6 in respect of A-schedule property and Ex.P13 and Ex.D6 were got obtained by threatening and exercise of fraud. Therefore, whole case of plaintiff No.1 falls to the ground. In view of the partition dated 09.07.1980 through a registered document and parties started enjoying separately exercised their right in respect of A, B, C and D properties in the original plaint, there was no existence of joint family at all. Even otherwise, in view of the settlement arrived at before the Mediation Centre, subsequently Ex.P10 to P13 were executed, for which PW-1 is a party and he has failed to prove undue influence, force, fraud etc., alleged by him and he has not received Rs.55,00,000/- from the defendants. Even otherwise also, the defendants by adducing evidence satisfactorily proved the execution of Ex.P10 to P13 dated 26.06.2013 and the plaintiff No.1 is a consenting party to the same and PW-1 has received Rs.55,00,000/- from the defendants. Therefore, even though the said sale transactions and execution of Release Deed, registered Declaration Deed executed by him, relinquishing his right over A-schedule property or Tumkur properties are subsequent to the filing 58 O.S.No.6629/2010 of the suit, during the pendency of the suit. Exparte T.I. order passed, restraining from alienating the properties is in force. But it is not done unilaterally by the parties. Fraud, force, misrepresentation alleged by plaintiff No.1 is held as not proved. That means, filing of Ex.D1 and subsequently I.A.No.11 and 12 deleting name of defendant No.9 and C- schedule property, goes to show that the attempt made by plaintiff No.1 to sustain the suit is without basis and he was a consenting party to the execution of Ex.P10 to P13 and he has received Rs.55,00,000/- from the defendants towards his share. Therefore, present plaint Item No.A and D properties are the exclusive properties of defendants 1, 4 and 5. The plaintiff No.1 cannot maintain a suit for partition or for any relief. Equally as far as present B and C properties which were fallen to the share of defendants 2 and 3 in the admitted registered Partition Deed - Ex.P8 dated 09.07.1980. Therefore, it is needless to say that the plaintiff is not entitled to get any of the relief claimed in the suit and his suit is liable to be dismissed. Accordingly, I answer Issue Nos.1, 2 and Addl. Issue Nos.1, 2, 4, 6 in the 59 O.S.No.6629/2010 negative, Issue Nos.4, 5, 6, 7, 9, 10, 11 and Addl. Issue Nos.5 and 7 in the affirmative.
42. ISSUE NO.8 & ADDL. ISSUE NO.3:-
The defendants 1, 4 and 5 have contended in their written statement that suit is not properly valued and court fee paid is insufficient. In view of the partition in the family dated 09.07.1980 as per Ex.P8 A, B, C and D properties were being separately enjoyed and there is a disruption of joint family, its character and nature has been changed. Therefore, plaintiff No.1 is not in joint possession of the same, he ought to have paid court fee under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act. In this case, both Issue No.8 and Addl. Issue No.3 raised on the defence taken by the defendants. No doubt, according to the defendants they relied on partition dated 09.07.1980 under Ex.P8, but as far as issue relating to payment of court fee and the jurisdiction, the plaint averments need be appreciated, not based on the averments in the written statement. The plaintiff No.1 has never pleaded the partition dated 09.07.1980. He has come up with the 60 O.S.No.6629/2010 pleadings that all suit A to D schedule properties are joint family properties. He along with defendants 1 to 8 is a Co- owner and in joint possession. As they refused to give share, he has filed the suit for partition. Therefore, it is only by way of evidence, the defendants have proved the partition dated 09.07.1980 under Ex.P8, through which joint family was disrupted and suit schedule properties have lost the character of joint family properties and subsequent to the partition, each sharers in whose favour A, B, C and D schedule properties were fallen, enjoyed the same as their separate property. Further, as far as A-schedule property, which was allotted to defendant No.1, who is father of plaintiff No.1 and also C-schedule property which was fallen to the share of grand-father of plaintiff No.1, who died intestate. That is the reason, the evidence produced by the defendants shows that there was a settlement between the parties and had given Rs.55,00,000/- to plaintiff No.1 as he has relinquished his 1/4th right in respect of A-schedule property and to that extent his right in respect of A- schedule and original C-schedule properties, they amicably got settled by way of Mediation Agreement. Therefore, 61 O.S.No.6629/2010 even if during the pendency of the suit, there was a settlement arrived at and it has been proved before the court that plaintiff No.1 had executed Ex.P10 to P13 and received amount of Rs.55,00,000/- towards his share from the defendants. But basing on that fact, he cannot be ordered to pay court fee. Cause of action and the pleadings of the plaintiff No.1 speaks that according to him suit schedule properties are joint family properties. He and defendants 1 to 8 constituted Hindu Undivided Joint Family governed by Mithakshara Law of Inheritance and he has filed the suit and only subsequently relief No.(b) and (c) were amended only to the effect that registered Sale Deed
- Ex.P13 and registered Release Deed - Ex.D6 dated 26.06.2013, are not binding on him. He has not sought for cancellation of the said Deeds. Therefore, under Section 35(2) of Karnataka Court Fees and Suits Valuation Act, he has valued and paid maximum court fee prescribed Rs.200/-. As such, it is held that suit is properly valued and court fee paid is sufficient. Accordingly, I answer Issue No.8 in the negative and Addl. Issue No.3 in the affirmative. 62 O.S.No.6629/2010
43. ISSUE NO.3:-
It is needless to say the plaintiffs have failed to prove that they are entitled to get share in the suit schedule properties, much less they are co-owners and in joint possession of the same. On the contrary, the defendants have established before the court that plaintiff No.1 is not at all entitled to get any share and even under settlement arrived at before Mediation Centre during the pendency of the suit he has executed Ex.P10 to P13 and received Rs.55,00,000/- from them towards his share. Therefore, he can't prosecute the present suit against them in any manner for any of the reliefs and his suit is liable to be dismissed. Accordingly, I answer Issue No.3 in the negative.
44. ISSUE NO.12:-
In view of my findings on the above said issues, I proceed to pass the following:-
ORDER Suit filed by the plaintiffs against the defendants is hereby dismissed.63 O.S.No.6629/2010
Having considered the close relationship of the plaintiffs with defendants 1 to 8, parties to bear their own costs.
Draw a decree accordingly.
(Dictated to the Judgment Writer on computer, typed by her, the transcript thereof corrected and then pronounced by me, in open Court, this the 17th day of October 2016) (BAILUR SHANKAR RAMA) 42ND ADDL. CITY CIVIL & SESSIONS JUDGE, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiffs' side:
PW.1 - Sri.N.Somashekar PW.2 - Smt.Rekha
(b) Defendants' side:
DW.1 - Sri.T.Nagaraj DW.2 - Sri.N.Shivakumar DW.3 - Sri.A.Lingappa II. List of documents exhibited on behalf of:64 O.S.No.6629/2010
(a) Plaintiffs' side:
Ex.P1 : Family Tree
Ex.P2 : Certified copy of Partition Deed
dated 27.02.1956
Ex.P2(a) : Typed copy of Ex.P2
Ex.P3 : Katha Extract
Ex.P4 : Katha Certificate
Ex.P5 to 7 : Encumbrance certificates
Ex.P8 : Certified copy of Partition Deed
dated 09.07.1980
Ex.P9 : Certified copy of Order in
W.P.No.119/2014 &
W.P.No.2058/2014 (GM-CPC)
Ex.P10 : Certified copy of Deed of
Declaration dated 20.06.2013
Ex.P11 : Certified copy of Deed of
Declaration dated 20.06.2013
Ex.P12 : Certified copy of Release Deed
dated 26.06.2013
Ex.P13 : Certified copy of Sale Deed dated
26.06.2013
Ex.P14 : Certified copy of Order Sheet 7
Complaint of P.C.R.No.20631/2013
Ex.P15 : Certified copy of Absolute Sale
Deed dated 29.06.2012
(b) Defendants' side:
Ex.D1 : Memo dated 08.07.2013
Ex.D2 : Invitation
Ex.D3 : Certified copy of Sale Deed dated
13.10.2014
Ex.D4 : B-Report
Ex.D5 : Certified copy of Sale Deed dated
29.06.2012
Ex.D6 : Original Release Deed dated
26.06.2013
Ex.D6(a) : Signature of DW-3
Ex.D6(b) : Photo of N.Somasekhar
Ex.D7 : Estimated Market Value of
Immovable Properties & Buildings
65 O.S.No.6629/2010
Ex.D7(a) & (b) : Relevant portion & Page No.839 at
Sl.No.201
42nd ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU.
66 O.S.No.6629/2010
(Judgement pronounced in the open
Court and order portion of the same
is extracted as under)
ORDER
Suit filed by the plaintiffs
against the defendants is hereby
dismissed.
Having considered the close
relationship of the plaintiffs with
defendants 1 to 8, parties to bear
their own costs.
Draw a decree accordingly.
(BAILUR SHANKAR RAMA)
42nd Addl.CC& SJ, Bangalore.