Bangalore District Court
B. Neelakanta vs The Commissioner on 1 September, 2015
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH-53)
Dated this the 1st day of September, 2015
PRESENT: Smt.Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.1810/2006
PLAINTIFFS: 1. B. Neelakanta,
Aged 42 years,
S/o. Late Boraiah & Late Mayamma.
2. Smt. Vasantha,
Aged 48 years,
W/o. Late Viswanatha.
3. Smt. Lalitha,
Aged 45 years,
W/o. C. Veerappa.
4. Smt. Shanthi,
Aged 45 years,
W/o. Jayanth.
5(1) Smt. Lakshmi,
Aged 45 years.
W/o. Late Siddappa.
5(2) Chandrasekhar,
Aged 28 years,
S/o. Late Siddappa.
6(1) Smt. Anusuya Lingaiah,
W/o. Late Lingaiah,
Aged 41 years.
6(2) Master Hariprasad B.L.
Aged 18 years,
S/o. Late Lingaiah.
2 O.S.No.1810/2006
7. Boraiah,
S/o. Late Boraiah & Late Mayamma,
Aged 52 years.
Sl.Nos.2 to 4 are daughters of
late Boraiah & Late Mayamma.
All are residents of
C/o. No.14/2, Nanjappa Block,
K.G.Nagar, Bangalore - 560 019.
(By Sri. M/s. H.Neelakanta Rao &
Associates)
V/S
DEFENDANTS: 1. The Commissioner,
Bangalore Mahanagara Palike,
Now Bruhath Bangalore
Mahanagara Palike,
J.C.Road, Bangalore - 02.
2. The Sub-Registrar,
Basavanagudi, III Main Road,
Sri Rameswaraswamy
Commercial Complex, Chamarajpet,
Bangalore - 560 018.
3. Smt. Rekha P.
W/o. Late R. Puttaswamy,
Aged about 35 years,
Residing at Old No.67/1, New No.66/6,
III Cross, Raghavendra Colony,
Chamarajpet, V Main,
Bangalore - 560 018.
4. C.R. Puttaraju,
S/o. Sampangiram Setty,
Aged about 50 years,
Residing at No.76, 1st Cross, 7th Main,
II Block, Jayanagar,
Bangalore - 560 011.
5. Smt. Parimala Devi,
Aged about 70 years,
W/o. Jayabhima Rao,
3 O.S.No.1810/2006
D/o. Gururaja Rao,
Residing at No.89,
Raghavendra Colony,
1st Cross, Chamarajpet,
Bangalore - 560 018.
(By Sri. MGN, Advocate for Defendant-1)
(By Sri. DGP, Advocate for Defendant-2)
(By Sri. NRN, Advocate for Defendant-3)
(By Sri. SR, Advocate for Defendant-4)
Date of institution of the suit: 02.03.2006
Nature of the suit:
Partition, Separate
Possession, Permanent
Injunction & Mandatory
Injunction.
Date of commencement of 23.11.2010
recording of evidence:
Date on which Judgment was 1.9.2015
pronounced:
Duration:
Days Months Years
29 05 09
: JUDGMENT :
This suit is filed by the plaintiffs against the defendants for partition and separate possession of suit schedule property measuring 44'x47' feet by metes and bounds, by dividing 8 shares each of plaintiffs and defendant No.3 to be given each share declaring their shares and permanent injunction directing defendant No.2 not to register any deeds from defendant No.3, in respect of suit schedule property and consequential mandatory injunction directing defendants 4 O.S.No.1810/2006 No.1 & 2 not to entertain the documents of alienation in respect of suit property and such other reliefs with costs. (Note:- This case has been transferred from the Court of IX Addl. City Civil & Sessions Judge, Bangalore City, to this court as per Notification dated:01.12.2014.)
2. Brief facts of the case are that late Boraiah died on 17.01.1985 and his wife Mayamma died on 21.08.2004, they have 5 children by name R. Puttaswamy, who died on 09.12.2005; Smt. Vasantha, Smt. Lalitha, Smt. Shanthi and B. Neelakanta. The 4th son i.e., Puttaswamy was not looking after the other family members and parents. The defendant No.3 and his wife were unknown to the family. The defendant No.1 being Statutory Authority has got power to issue khatha to the parties in respect of properties and transactions arising there from, as per KMC Act. The notice dated 16.01.2006 was issued to Asst. Revenue Officer and copied to the Commissioner and invoked section 482-A of KMC Act, 1976 for requesting not to register the sale transaction under any documents tendered. The defendant No.3, being wife of late Puttaswamy, who was not heard of, but came to know and heard of her by the plaintiff that she is wife of late Puttaswamy. Boraiah during his lifetime had acquired the 5 O.S.No.1810/2006 property. The agreement and the settlement registered deed are referred the dates 06.07.1982 & 30.03.1974. The agreement of sale dated 6.7.1982 is in favour of father of the plaintiff Boraiah and that defendant in collusion with defendant Nos.3 and 5 have created the false sale deed of the year 1974 and defendant No.4 having no right, title or interest over the suit schedule property, he cannot alienate the suit schedule property in favour of defendant No.3, on the basis of false sale deed of the year 1974. However, the plaintiffs are in possession of suit schedule property since from the date of their father and on the basis of the alleged sale deed dated 19.11.2001 alleged to be executed by defendant No.4, in favour of defendant No.3, is not binding upon the plaintiffs. Though the husband of defendant No.3 acquired property, but he being the kartha of the family, the properties acquired at the joint family property. Hence, defendant No.3 no way concerned to the family of plaintiff and the deceased Puttaswamy i.e. son of Boraiah and he cannot have any right, title over the suit schedule property. The notice under Section 482 of KMC Act was issued against the defendant-Corporation dated 16.1.2006 and the notice to defendant No.2 the Sub-Registrar dated 16.1.2006, since 6 O.S.No.1810/2006 defendant No.1 cannot effect the khata in favour of defendant No.3 or to anybody, on the basis of the sale entered into by defendant No.3 with third person, if any, so also defendant No.2, the Sub-Registrar cannot got the document registered, if the alienation of property made by defendant No.3. Accordingly, for these reasons they have been arrayed as parties to the suit. Defendant No.3 was attempting to alienate the suit schedule property in deprive of right, title and possession of the plaintiff's in the suit schedule property and she being the stranger to the family cannot do so and plaintiff's are joint owners and possessors over the suit schedule property. Hence, they constrained to file the suit and claimed the partition deed effected to the extent of their 1/8th share to each branch and with other reliefs they prayed to decree the suit.
3. On registering the suit and issuance of suit summons to the defendants, the defendant No.2 has appeared through its counsel, but has not filed written statement. The defendants No.1, 3 & 4 have appeared through their respective counsels and filed their separate written statements. The defendant No.3 has also filed additional written statements. Defendant 7 O.S.No.1810/2006 No.5 who has impleaded has not contested the suit by filing the written statement.
Defendant No.1 has denied the material allegations of the plaint averments and stated that this defendant has no concerned with any family affairs of the plaintiff and defendant No.3 and that any alleged transaction pleaded by the plaintiff and defendant Nos.3 to 5 and the allegations made against defendant No.2 etc., are not concerned to defendant No.1 and this defendant is permitted to issue kahta to the parties. The issuance of notice under Section 482(1) of KMC Act has been denied. There was no cause of action to file the suit against defendant No.1 and that the suit itself is not maintainable and liable to be rejected under Order 7 Rule 11 of CPC. Hence, the plaintiff is not entitled for any relief as claimed against the defendant No.1/B.B.M.P. Hence, it is prayed to dismiss the suit with costs.
Defendant No.3, who has filed the written statement and also filed the additional written statement, denied the material contents of the plaint averments and seriously disputed the claim of the plaintiff as ownership and possesory right and the share to the extent of 1/8th share each has been denied. Defendant No.3 has purchased the suit schedule 8 O.S.No.1810/2006 property under a registered sale deed dated 19.11.2001 from defendant No.4, who was the absolute owner and possession over the suit schedule property and that one Raghavendra original owner executed a registered will dated 18.4.1942 in favour of daughter and daughter-in-law. Accordingly, the settlement deed was executed on dated 13.3.1974, which was taken place in between B.G.Kittamma and Parimala Devi (defendant No.5) and they are enjoyment the respective shares. Defendant No.5 sold the schedule property, under a registered sale deed on 15.5.1974 in favour of 4th defendant. Therefore, being an absolute title holder, defendant No.4 has sold the schedule property in favour of defendant No.3. Hence defendant No.3 being absolute owner in possession of suit schedule property. The plaintiffs have no any right, right, title or interest to claim any share therein. The plaintiff has not made the necessary parties to the suit and also the suit is bad for non-inclusion of properties. Hence, the suit is hit by non-joinder of necessary parties and non-inclusion of properties. The genealogical tree explained by the plaintiff is not correct. Puttasxwamy is a married son and continuously live with his wife and children and all the family members of late Boraiah were separated and established there and during 9 O.S.No.1810/2006 the life time of late Puttawamy was continuously looking after family members and performed marriage and other functions conducted in the family and the allegation that the plaintiff's unaware of defendant No.3 and her children born to Puttaswamy and the relationship of defendant No.3 with the family. But defendant No.3 being family of late Puttaswamy having children was continuously attended all the family functions of late Puttaswamy. Defendant Nos.1 and 2 are not necessary parties to the suit and regarding notice issued against defendant No.1 is not maintainable. The plaintiff cannot claim by filing the suit, restrained defendant No.2 from registering the documents placed by the title holder and intending purchaser. Even the plaintiff cannot restrain defendant No.1 from effecting any khata. Defendant No.3 being wife of deceased Puttaswamy had two children by name Harishita and Om Prakash out of their wedlock and it was within the knowledge of the plaintiff. He husband died on 9.12.2008. He has denied the alleged settlement dated 6.7.1982 stating the dispute payment of Rs.7,000/- made by Boraiah. In view of the sale transaction of defendant No.4 and 5 of the 1974 and the said transaction between defendant No.3 and 4 of the year 2000. Defendant No.3 being 10 O.S.No.1810/2006 the absolute owner and the plaintiff cannot challenged the sale deed, since late Boraiah have no any right, title or interest in the suit schedule property. Hence, the plaintiff's are not entitled for any relief as they have no any right, title or interest over the suit schedule property. They have not right to enjoy the ownership of suit schedule property. There was no cause of action to file the suit. The plaintiff has suppressed the facts and without making any reasonable grounds and enforceable right, has filed this suit and they are not entitled for any relief as prayed for, as against the suit schedule property, which are self acquired property. Accordingly, he has prayed to dismiss the suit.
In the additional written statements defendant No.3 has denied the material contents of the plaint averments which are added to the plaint by seeking permission to amend it. She specifically denied the allegations that referring this defendant No.3 as kept mistress is defamatory and claimed the liberty to take the matter before the appropriate court of law for criminal action and damages by putting compensation, as she is the married wife of late Puttaswamy and lived with him having two children and suit schedule property is not joint family property and the claim of the 11 O.S.No.1810/2006 plaintiff challenging the registered document, is time barred. The sale deed executed by defendant No.1 cannot be challenged. The agreement of sale dated 6.7.1982, was executed by Pramila Devi (defendant No.5) and Raghavendra Rao in favour of Putta swamy i.e. the husband of defendant No.3. The schedule property was sold in favour of C.R.Puttaraju on 15.5.1974 under a registered sale deed. Unless the said sale deed executed in favour of defendant No.4 is cancelled, the alleged agreement of sale does not survive for consideration. This defendant No.3 is legally wedded wife of late Puttaswamy, s/o Boraiah and lived with him and gave birth of two children and acquired property under a registered sale deed dated 19.11.2011 by paying a valuable consideration and these facts are known to the plaintiffs. The defendant No.3 based on the sale deed and relevant document got the sanctioned plan and constructed the building, and living along with her children. The agreement of sale dated 6.7.1982 though considered to be the deed, it cannot create any title, right or interest in the suit schedule property. It is denied the allegation that during the life time of Boraiah till his death i.e. 27.1.1985 he has not claimed any right in respect of suit property against 12 O.S.No.1810/2006 defendant No.5. Even mother of plaintiff Mayamma who died on 21.8.2004, did not claim right over the suit schedule property based on the agreement of sale dated 6.7.1982. Ven de Puttaswamy i.e. husband of defendants No.3 did nto claim the right under alleged agreement dated 6.7.1982 against Pramila Devi for specific performance of contract of sale and that the very agreement of sale being not created any right title over the suit property, the plaintiff cannot assert the right under agreement of sale dated 6.7.1982. The sale deed of defendant No.3 being valid, cannot be cancelled and the plaintiffs are not entitled for the reliefs as prayed for. After continuous enjoyment for 27 years by defendant No.4, sold the property in favour of this defendant No.3 on 19.11.2011 and it was his self acquired property and this defendant No.3 has directly purchased from him and threreby she became the absolute oswner in possesisn of th e suit property. The sale deeds of defendant Nos.3 and 4 are valid and binding upon the plaintiffs. Hence, the suit is not maintainable as there is no cause of action to seek any relief. On these grounds it is prayed to dismiss the suit. The defendants No.4 in his written statement has denied the material contents of the plaint and that the suit against him 13 O.S.No.1810/2006 is not maintainable and he has nothing to do with the internal dispute between the plaintiff and defendant No.4. He has been unnecessarily made party to the suit. His presence is not necessary to decide the case on merits and that this defendant has no right whatsoever in suit schedule property as it has sold it in favour of defendant No.3. and that he is stranger to the family of plaintiff and defendants No.3. It is left to the plaintiff to establish that the suit schedule property purchased by defendant No.3 is for the benefit of entire family. Hence, he being the outsider is not a necessary party to the suit. The vendor cannot be necessary party to the suit in connection with the dispute between the family members. Accordingly, he prayed to dismiss the suit.
4. On the basis of the pleadings of the parties, the Learned XXVII Addl. City Civil & Sessions Judge, Bangalore, has framed the following issues on 11.02.2010.
(1) Whether the plaintiffs prove that the owners of the suit schedule property having joint right in the same as alleged in the plaint?
(2) If so, whether the plaintiffs further prove the creation and fabrication of various documents by defendants No.3 & 4 as alleged in the plaint?
(3) Whether 3rd defendant proves that suit schedule property is her self-14 O.S.No.1810/2006
acquired property as contended in her written statement?
(4) Whether the plaintiffs are entitled for partition and separate possession of the suit schedule property by metes and bounds as prayed?
(5) Whether the plaintiffs further prove that an attempt of interference by the defendant No.3 with regard to the alienation of the suit schedule property as alleged in the plaint?
(6) Whether the plaintiffs further prove that there is an attempt of alienation by defendant No.3 with the help of defendants No.1 & 2 as alleged?
(7) Whether the plaintiffs further prove that the sale deed dated 19.11.2001 is not binding on them and requires cancellation?
(8) Whether the plaintiffs are entitled for the reliefs so claimed?
(9) What decree or order?
5. To prove the case, the plaintiff No.1 himself deposed as PW.1 and relied upon the documents at Exs.P.1 to P.18. On the other hand, the defendant No.3 herself deposed as D.W.1 and relied upon the documents at Exs.D.1 to D.11.
6. Heard the arguments of the Learned counsels for the plaintiffs and defendants.
7. Perused the pleadings of the parties, evidence and record on hand.
15 O.S.No.1810/2006
8. My findings on the above issues are as under:
Issue No.1 .. In the partly affirmative. Issue No.2 .. In the partly affirmative. Issue No.3 .. In the partly affirmative. Issue No.4 .. In the partly affirmative. Issue No.5 .. In the partly affirmative. Issue No.6 .. In the partly affirmative. Issue No.7 .. In the partly affirmative. Issue No.8 .. In the partly affirmative. Issue No.9 .. As per final order for the following:
R E A S O N S
9. Issue Nos.1 to 8 :- The issues 4 and 8 are the relief oriented issues and they need common discussion with other issues, based on similar and oral and documentary evidence. Hence, these issues are taken for common consideration.
10. It is the specific case of the plaintiffs, by filing the suit for partition and separate possession of their 1/8th share each to be allotted to the each branch of their respective family branches, asserting the suit schedule property as joint family property and joint possessory right thereupon and that the claim of the defendant No.3 on the basis of alleged sale deed dated 19.11.2001 executed by defendant No.4 in respect of suit property is not binding upon them, as the suit property was originally belonging to the father of the plaintiffs. They have further sought for declaration of the sale deed as null 16 O.S.No.1810/2006 and valid and not binding upon them and permanent injunction etc. The injunctory relief is against defendant No.1, the statutory authorities i.e. the Commissioner, representing Brhuhat Bangalore Mahanagara Palike, governed by KMC Act, against whom they sought for a direction not to effect any khata in respect of suit property, if at all, the defendant No.3 applies for it under any document to the exclusion of plaintiff; and also against the Public Officer, i.e. Sub-Registrar, Basavanagudi defendant No.2 seeking direction not to effect registration of any documents if presented by the defendant No.3 in connection with the suit property. It is apparent on record that the contesting defendants specifically defendant No.1 has denied the allegation made against the B.B.M.P. So also sub-Registrar i.e. defendant 2, that the suit itself is not maintainable against them, as they have to exercise the discretionary powers and discharge the duty under special statutes.
11. The commissioner B.B.M.P. being statutory authority, has to follow the due procedure while effecting the khata and the civil court cannot interfere with the discharge of duty and exercise of powers by the defendant No.1 who is governed by 17 O.S.No.1810/2006 KMC Act, by granting mandatory injunction as prayed for by the plaintiff. It is acceptable defence. The plaintiff cannot claim the mandatory injunction to direct defendant Nos.1 and 2 not to entertain and register any deeds of alienation of the suit property and thereby create any charge or otherwise, if it is attempted by defendant No.3; and specifically defendant No.2 not to entertain any documents of alienation if, presented by the defendant No.3, except the decree of the civil court that is going to be passed. However, the plaintiffs have to prove their case in respect of their legitimate share in the suit property, so as to get appropriate relief under law against other defendants. But such directions cannot be issued granting injunctory relief against the defendant Nos.1 and 2. However, it is subject to final decision, the concerned authority governed by KMC Act (i.e. defendant No.1) and the Officer governed by Registration Act (i.e. defendant No.2) to proceed in accordance with law, if there is an appropriate relief claimed, on getting their respective shares declared (if any) under a decree for partition in this case. Hence, the suit itself is not maintainable against these defendant Nos.1 and 2. This court cannot interfere with their statutory powers and duties 18 O.S.No.1810/2006 by granting injunctory reliefs. Hence, the suit is liable to be dismissed, against defendant Nos.1 and 2.
12. With reference to the specific right claimed by the plaintiffs regarding the legitimate share in the suit property and the alleged sale deed of defendant No.3, as not binding upon them, it is necessary to evaluate the evidence put forth by the parties i.e. the plaintiff and defendant Nos.3 and 4. The defendants 3 and 4 are contenting the suit in respect of plaintiff's alleged joint right, title and interest over the suit property, since the defendant Nos.1 and 2 have no concerned with the dispute in respect of suit property between the plaintiff and the defendant Nos.3 to 5, as defendant Nos.1 and 2 are no way concerned to the family of plaintiff and defendant No.3 to 5. The defendant No.5 has not contested the suit by filing written statement. Even she has not appeared and challenged the oral and documentary evidence put forth by either of the parties, contesting the rival claims i.e. plaintiff and defendant Nos.3 and 4. Thereby, she stood nutral to the claim of plaintiff and defendant Nos.3 and 4. 19 O.S.No.1810/2006
13. Therefore, at this stage the documents produced by the parties which are not disputed challenging the genuineness of the same are relevant to be considered. They are of the particular period, during which the legitimate rights and interest have been created thereunder, at the relevant point of time and such actual and prevailing circumstances are confirming the rights of the predecessors of plaintiff and defendants 3 to 5. So, such documentary evidence shall prevail over the oral evidence put forth by the plaintiff and these contesting defendants. Hence, it is proceeded to consider the facts and circumstances of the case supported by oral and documentary evidence of the parties.
14. In this connection reiterating the plaint averments, the plaintiff No.1 himself has deposed as PW.1 and relied upon the relevant documents in respect of the case i.e., Ex.P.1 is the Special Power of Attorney dated 21.07.2009 executed by plaintiffs No.5(1), 5(2), 6(1), 6(2) & 7 in favour of plaintiff No.1; Ex.P.2 is the certified copy of settlement deed dated 13.03.1974 in favour of defendant No.5; Ex.P.3 is the certified copy of plaint in O.S.No.1654/1986 filed by defendant No.4; Ex.P.4 is the certified copy of written statement in 20 O.S.No.1810/2006 O.S.No.1654/1986 filed by defendants No.2 to 9; Ex.P.5 is the certified copy of application under Order XIII, Rule 1 & 2 of C.P.C., in O.S.No.1654/1986 filed by the defendants; Ex.P.6 is the certified copy of impugned sale deed dated 19.11.2001 executed by defendant No.4 in favour of defendant No.3 pertaining to the suit schedule property; Ex.P.7 is the certified copy of Memo dated 10.12.2001 in O.S.No.1654/1986 filed by defendant No.4 herein as plaintiff therein; Ex.P.8 is the certified copy of the relevant portion of the order sheet in O.S.No.1654/1986; Ex.P.9 is the certified copy of death certificate of B. Puttaswamy (brother of plaintiff No.1); Ex.P.10 is the copy of legal notice dated 16.01.2006 issued to Revenue Officer, Bangalore Mahanagara Palike; Ex.P.11 is the copy of legal notice dated 16.01.2006, issued to the Sub-Registrar, Chamarajpet, Bangalore; Ex.P.12 is the Encumbrance Certificate; Ex.P.13 is the certified copy of sale deed executed by defendant No.5 in favour of Puttaraju; Ex.P.14 is the Agreement dated 06.07.1982 executed by 5th defendant - Smt. Parimala Devi in favour of Puttaswamy; Ex.P.15 is the Water bill; Ex.P.16 is the Consumer Water Card; Ex.P.17 is the copy of legal notice dated 16.01.2006 issued to 21 O.S.No.1810/2006 Undervaluation Authority, Government of Karnataka, Bangalore, and Ex.P.18 is the two postal receipts.
13. On the other hand, the defendant No.3 herself has deposed as DW.1 and placed reliance on the documents in respect of the case i.e., Exs.D.1 & D.2 are the marriage invitation cards; Ex.D.3 is the Khatha certificate; Ex.D.4 is the assessment register extract; Ex.D.5 is the tax paid receipts (12 in Nos.); Ex.D.6 is the khatha certificate; Ex.D.7 is the khatha extract; Ex.D.8 is the tax paid receipts (7 in Nos.); Ex.D.9 is the building plan; Ex.D.10 is the KEB bills (4 in Nos.) and Ex.D.11 is the BWSSB water bills (3 in Nos.).
14. On going through the pleadings and entire evidence on record, it is revealed the family genealogical tree, which can be explained in respect of plaintiff's branch i.e. the father of the plaintiff by name Boraiah, who was also referred as @ Siddiah. He was the predecessor of plaintiffs and defendant No.3 and their family. He died on 27.1.1985. His wife by name Smt.Mayamma (mother of plaintiffs) was also died on 21.8.2004. Both Boraiah and Mayamma had children i.e. sons by name Siddiaah, Puttaswamy, Lingaiah, Boraiah (P.7), Neelakanta (plaintiff No.1) and 3 daughters i.e. plaintiff Nos.2 22 O.S.No.1810/2006 to 4. Siddaiah died leaving behind him his wife, and children. In the plaint their branch is shown as plaintiff No.5(1) i.e. the wife and plaintiff No.5(2) the son. So also Lingaiah died and his branch is represented by his wife as plaintiff No.6(1) and his son as plaintiff No.6(2). Puttaswamy's branch is represented by his wife Defendant No.3, since Puttaswamy died on 9.12.2005.
15. There was a suit filed by the plaintiff's father Boraiah during the year 1962 in O.S.NO.627/1962 in respect of schedule 'B' property seeking injunctory relief against the Corporation based on adverse possession and got decree of injunction.
15. At this juncture, the relationship of family members of defendant No.5 and her ancestors to be considered, as the plaintiffs are claiming their independent title over the suit property stating that it has been settled in favour of their father Boraiah, through defendant No.5. So family of plaintiffs father Boraiah and family of defendant No.5 Parimala Devi are independent having no any family relationship. Therefore, the family of Smt.Parimala Devi defendant No.5 is disclosed from the records and evidence placed by the parties 23 O.S.No.1810/2006 which is undisputed fact. It is brought on record that the grandfather of Parimala Devi, by name, B.D.Raghavendra had executed the Will dated 18.4.1942 and codicil dated 7.9.44. Said Raghavendra had a son by name B.R.Gururaja Rao, who died on 29.12.1971. His wife called Smt.Kittamma is the daughter-in-law of Raghavendra Rao. The Will was executed by Raghavendra Rao in favour of his son till his death creating life estate and it was in favour of daughter-in-law i.e. Smt.Kittamma; But there was condition that Kittamma should not alienate the property to third person, except in favour of her daughter. That daughter is nothing but the defendant No.5 Parimala Devi.
15. Earlier there was litigation between plaintiffs father Boraiah and father of defendant No.5 and they are important events and comes to the aid of the plaintiff, i.e. O.S.No.1180/1970, C.R.A.724/2008 and O.S.No.2236/1975 and R.A.105/1980 old R.A.1/75, ended in compromise between competent parties.
16. Further, on perusal of the entire pleadings and the evidence (oral and documentary) put forth by the plaintiff and contesting defendants as referred above, it is very clear that 24 O.S.No.1810/2006 the said facts and circumstances during the relevant period, were prevailing during which there was no dispute pertaining to the suit schedule property and the specific litigations those were going on, in between the families of plaintiff and defendant No.5. Because earlier the litigation as could be seen from the record that it was started in the year 1962, as the plaintiff pre-deceased i.e. Boraiah has filed the suit in O.S.No.627/1962 against the Corporation claiming injunctory relief based on adverse possession over the property. This supports the possession of plaintiffs father, much prior to 1962. It includes the suit schedule property. It was recognized the lawful possession of Boraiah. But in the year 1970, father of defendant No.5 filed the suit in O.S.No.1180/1970, against late Boraiah. It was decreed declaring title of father Gururaja Rao, in that suit. The father of defendant No.5 died and his wife Smt.Kittamma had filed a suit in O.S.No.2236/1974, against the plaintiffs father for injunction relief based on allegation that Boraiah had made encroachment over half of 'B' schedule property. It was also decreed. But the plaintiff's father Boraiah had challenged both the decrees i.e. against the judgment and decree passed in 25 O.S.No.1810/2006 OS..NO.1180/1970, R.A.724/1980 and O.S.No.2236/1975, R.A.No.105/1980.
16. The Learned counsel for the plaintiffs, submitting the events in the notes of arguments dated 18.06.2015, for consideration in addition to his arguments, that "the defendant No.3 has led her evidence as DW.1 and during the course of evidence, and during the course of cross-examination, she had admitted that Puttaswamy, who was her husband had already married. Further admitted that she had been residing in the old house. Deceased Boraiah, her father-in-law had 8 children she further admitted that the said Puttaswamy has been residing at Chamarajpet along with his mother deceased Mayamma and Neelakanta. Further admitted that the house at Tavarekere is standing in her name and getting rent of Rs.10,000/- and at the time of purchase, Puttaswamy has not kept Will and further admitted that her husband was not well, the plaintiff and his sister had been looking after the welfare of her husband". This argument has some force, as D.W.1 admitted the possession of L.Rs of deceased Boraiah. Thus what is revealed from this admission is that plaintiffs along with their father were in possession of suit property and 26 O.S.No.1810/2006 enjoying the same, without obstruction from Puttaswamy the husband of D.3 and others i.e. the original owners and possession was not disturbed.
The plaintiff has produced the document in respect of O.S.No.1654/1986, wherein Puttaraju, D.4, who is vendor of 'A' schedule property of the defendant No.3 has filed a suit against original owner Parimala Devi and 9 others, the branch of Boraiah (Plaintiffs branch), for the relief of Declaration and Permanent Injunction in respect of the suit schedule property. The said Puttaraju during the pendency of that suit, had executed the sale deed in favour of the third defendant. He further argued that, "it was in collusion with the husband of the defendant No.3, who was practicing advocate. Later on he withdrawn the suit on 10.12.2001. The sale deed was prepared on 19.11.2001 and executed on 03.12.2001. The said document is marked as Ex.P.3. The recitals of the sale deed disclosed that the family members of Boraiah i.e., father-in-law of the vendor in respect of the schedule property was not responsible in respect of 'A' schedule property and as such the said sale deed is lispendency sale deed". He has further argued referring the written notes that, "the plaintiff further 27 O.S.No.1810/2006 submits that in so far as 'B' schedule property has been reached finality in R.A.No.105/80 and R.A.No.724/80 on the file of the XII Addl. City civil Judge, and the same has been produced in I.A.No.18 and wherein there was a compromise entered between Smt. Kittamma and defendant i.e., deceased Boraiah and on the basis of compromise petition conclusively establishes that the said Boraiah was the absolute owner of the schedule 'B' property and the said Puttaswamy, who is practicing advocate colluded with earlier vendor i.e., C.R.Puttaraju, who has executed the alleged sale deed in favour of defendant No.3 who is claimed as his alleged wife. In the compromise decree petition filed by earlier vendor C.R.Puttaraju against the Boraiah family, the defendant No.5 i.e., Puttaswamy herein". Hence, these aspects need evaluated along with the documents led in evidence by these parties which are revealing the circumstances and the effect of the same, because of the conduct revealing the real state of affairs.
17. From the evidence on record, the suit property is a litigious property, since 1962, from the date of suit filed by deceased Boraiah. But originally it was owned by the family of 28 O.S.No.1810/2006 defendant No.5 i.e. of her grand-father Raghavendra, who had willed it in her favour, creating life estate in favour of her mother Kittamma and her father Gururaja Rao, under a Will dated 18.2.1942 and Codicial dated 7.7.1944. Gururaj Rao and Kittamma's suits were ended in compromise i.e. O.S.No.1180/2007 and O.S.No.2236/1975 in R.A.No. 724/80 and R.A.No.105/80 (earlier 1/75). By virtue of the Will defendant No.5 had acquired the title to the entire property, measuring 47'x101' of her grandfather, on account of execution of settlement deed, for Rs.39,000/- by her mother Kittamma, and it was on 13.3.1974 which is revealed from the plaint (O.S.1654/86) marked at Ex.P.3 (encumbrance certificate-Ex.P.12 discloses this). During which the suit property was still in litigation pending before the court. Defendant No.5 has executed power of attorney in favour of her husband K.Jaybhimrao, who in turn sold southern portion of the property measuring 47'x'44' to defendant No.4, under a registered sale deed dated (Ex.P13) 15.7.1974, for Rs.15,000/-, during which, Boraiah was alive and suit property was subject matter in the judicial process, as suit of father of defendant No.5 of the year 1970 was pending. He had life estate and that it was continued by his LRs. The sale 29 O.S.No.1810/2006 of property was therefore not free from the claim of plaintiffs father Boraiah. In the suit by defendant No.4 O.S.1654/1986 against the defendant No.5 and plaintiffs branch, he (defendant No.4) claimed title to the suit property, including litigious suit property. Defendant No.5 not effectively contested this suit. Plaintiffs have not placed any documents that said GPA of husband of defendant No.5 was cancelled prior to the said sale deed (Ex.P.13) dated 15.5.1974 or get the same declared as unenforceable. No doubt in the compromise during the appeals (clubbed) the sale deed of defendant No.4, referred as nominal deed and not confer any title to the defendant No.4. But said power of attorney was not declared as unenforceable. Even the consent letter as alleged, of defendant No.4 in faovur of defendant No.5 husband dated 3.12.1975 that the sale deed executed in his favour of the year 1974 was only for security, has not been substantiated, as such this alleged consent deed has not enforceable effect under law, as it has not been proved with cogent evidence. The defendant No.4 and husband of defendant No.5 were not party to the said suits/R.A.s which were pending and they were in between defendant No.5 and plaintiffs branch only. So whatever compromise taken placed 30 O.S.No.1810/2006 between defendant No.5 and plaintiffs (Boraiah's) branch, was subject to claim of Boraiah; and hence his legal heirs as joint owners are in possession of property under litigation only and compromise is not binding upon the defendant No.4, in respect of property in possession of said tenant Suresh, as he has stated that he has purchased it for valuable consideration and bonafide purchaser. D.5 has not disputed or denied the same with due process of law. Her GPA of her husband was not duly revoked; Defendant No.4 being not a party to compromise, the sale of property during the year 1974 has some sanctity under law, in favour of defendant No.4 and that defendant No.5 had lost her right over the sold property, by her husband, under GPA. She was expected to be known about that deed executed by her husband, under deemed knowledge. However, it is subject to litigious title of D.5.
18. There was an agreement of sale dated 6.7.1982 to the extent of an area measuring 17'x47'. It was entered into between defendant No.5 and her son as intending vendors and husband of defendant No.3 i.e.Puttaswamy on the other hand. It was in respect of an area measuring East to West 17' and North to South 47' and boundaries shown to the West was of his father Boraiah and North remaining portion 31 O.S.No.1810/2006 belonged to Gururgaja Rao i.e. father of defendant No.5. Thus, it was out of total area measuring 47'x'101' of property of defendant No.5 and agreed to be sold to defendant No.3's husband. No doubt, it is subject to sale of property to defendant No.4. What is revealed from this was that there were 2 strips one is in possession of late Boraiah i.e. West in the property of defendant No.5, measuring 47'x101'. Therefore 2 strips on southern portion i.e. Boraiah's possessed property was measuring 27'x47' and the property under sale of the year 1982 in favour of defendant No.3's husband was measuring 17'x47' which was in possession of one tenant Suresh. Both are adjoining to each other. So remaining northern portion was with defendant No.5 out of her entire property settled by her mother Kittamma. It is evident from the contents of Ex.P.14 (though disputed) but legal consequences shall prevail. The relevant portion of this deed is important to decide the matter in issue, how the parties claiming rights in the disputed property and their legitimate claim to be held as genuine and the relevant portion reads thus:
"WHEREAS the Corporation property bearing No.89- A ( New No.67/2) situated in the II Cross, Raghavendra colony, Chamarajpet, Bangalore -32 O.S.No.1810/2006
18, and other properties originally belonged to Sri B.D.Raghavendra Rao, who was the absolute owner of the said properties and the immovable property bearing Corporation NO.89/A and new No.67/2, is more fully described in the schedule herebelow:
AND WHEREAS the said Sri B.D.Raghavendra Rao, executed his last will and Testament dated 18.2.1942 registered as No.62/ 41-42 of book III Volume 16 pages 30 of 36 in the Office of the Sub-Registrar, Bangalore city, and subsequently, the aforesaid Sri B.D.Raghavendra Rao, executed a codicil to the last will and Testament on 7.9.1944 and registered as book No.III Volune 19 pages 163 and 164 in the Office of the Sub-Registrar, Bangalore City, and further also appointed his daughter-in-law, namely Smt.Kittamma, who is no other than the mother of the vendor (1) as the Settler with the powers of alienation of the properties among her daughters after the death of late B.R.Gururaja Rao and Sri Gururaja Rao died leaving behind Smt.Kittamma to succeed to his estate as per the last Will and codicil of Sri Raghavendra Rao;
AND WHEREAS Smt.Kittamma, who was the sole owner was in possession of the entire property left behind by Gururaja Rao by means of a registered Settlement Deed dated 30.3.1974 settled the properties in favour of the vendor No.1) which have been fully described in the schedule to the said registered settlement deed and the said deed of settlement was also registered as document No.4598/73-74 and entered at pages 101 to 104 in volume 990 of Book No.1 dated 30.3.1974. The properties which were settled in favour of the vendor No.1 have been described in the said settlement deed. The properties that were settled consists of property bearing corporation No.89 (New No.65) and portion of No.89 New 33 O.S.No.1810/2006 No.66, situated in Sri Raghavendra Colony, Division No.25, Chamarajpet, Bangalore - 18, Page No.3: And measuring East to West 47 feet and North to south 101 feet, and ever since then the vendor No.1 has been the absolute owner in possession of the said property described in the said schedule, Page No.4 and 5: AND WHEREAS there was long standing disputes between the vendors and her mother and father in respect of the property bearing No.89 (old) New No.67/1, II Cross Road, Raghavendra colony, Chamarajpet, Bangalore - 18 and in respect of that, two suits had been filed by the father of vendor No.1 late Gururaja Rao in O.S.NO.1189/70 on the file of the First Munsiff, Bangalore, and both the suits had been decreed and against that decree in the said suits, one Sri Boraiah was the defendant and since Sri Gururaja Rao died during the pendency of the two suits, the vendor and her mother came on record as legal representatives and pursued those proceedings. Since both the two suits have been decreed and a view to bring about an amicable settlement of the outstanding disputes between the parties, it was agreed between the parties that property bearing s.No.89 New No.67/1 of II Cross Road, Raghavendra Colony, Chamarajpet, Bangalore-18, should be given to Boraiah for which he paid a sum of Rs.7,000/- (Rupees seven thousand only) in complete settlement of the claims to the Vendor No.(1) and her mother and as far as the adjacent property which is the schedule property to this agreement is concerned, it has been agreed between the parties that the same would be purchased by the purchaser for a total consideration of Rs.40,000/- (Rupees forty thousand only) and the purchaser has agreed to purchase this property with a view to maintain cordial relation:34 O.S.No.1810/2006
WHEREAS the Vendor No.(1) is the absolute owner in possession of the schedule property, and whereas the purchaser has agreed to purchase the schedule property for a consideration of Rs.40,000/- (Rupees forty thousand only), and both the parties have entered into this agreement of slae as per the terms and conditions.
Page No.8; Paras-7 & 8: The Vendors have executed a nominal sale deed in favour of one Sri.Puttaraju, S/o. Sampangiramaiah Setty, No.7, A.P. Sabha Lane, V.V.Puram, Bangalore-4, for a sum of Rs.15,000/- (Rupees fifteen thousand only) and the Vendor No.1, hereby undertakes that she will release the encumbrance and pay the amount due to Sri.Puttaraju, and obtain a document of re- conveyance from Sri.Puttaraju, by transferring or releasing all his rights whatsoever in favour of Vendor No.1, and it is only thereafter, the Vendors shall execute the sale deed in favour of the purchaser and it is only on the execution and registration of the sale deed, the balance of consideration of Rs.15,000/- shall be paid by the purchaser to the vendors in the presence of the Sub-Registrar, as already stated.
The Vendors have also further assured the purchasers that except the aforesaid encumbrance in favour of Sri.Puttaraju. There is no other encumbrance on and in respect of the schedule property exists, and as already stated, the sale deed is subject to nil encumbrance.
Page No.9; Para-9: There is a workshop in the schedule property which is in the occupation of one M.K.Suresh, who is carrying on the business under the name and style of 'SUKANYS CANTEEN EQUIPMENT COMPANY' and the Vendor No.1 has agreed to issue notice to the said 35 O.S.No.1810/2006 tenant to attorn the tenancy in favour of the purchaser, and has further assured that she has no objection for the eviction of the said tenant by the purchaser.
(Page No.11 & 12) SCHEDULE Property bearing No.89 (Old) and New No.66, situated in Raghavendra Colony, Division No.25, Chamarajpet, Bangalore-18, and bounded on the- EAST - by the property belonging to .Sushelamma; WEST- by the property belonging to Sri.Boraiah; NORTH- by the remaining portion of property of belonging to Sri.Gururaja Rao; and SOUTH- by II Cross Road, Raghavendra Colony; measuring East to West 17' and North to South 47' *************
19. Thus it is evident that under settlement deed of mother of defendant No.5 Kittamma, the property owned by defendant No.5 was measuring 47'X 101' and out of the same it was agreed to sell the area measuring 17' X 47' feet and this portion was alleged to be in possession of one tenant M.K.Suresh, who was running business. Admittedly, this portion in possession of tenant was to the eastern side of property in possession of plaintiff's father Boraiah. Plaintiffs claim is that they are in joint possession of entire property, measuring 44'x47', as of Boraiah's property. But the property under litigation of Boraiah should be the property which was 36 O.S.No.1810/2006 actually possessed by him. The property in possession of said tenant Suresh measuring 17;X47' feet area could not be the property of Boraiah. So, what would be the property as claimed by plaintiff should be the property in possession of their father Boraiah. It was the property located to the West of said property included in the agreement i.e. remaining portion (44'x47')-(17'x47')=27'x47' and it has held to be in occupation of deceased Boraiah for which he had litigation since form 1962. In view of the compromise, it has been settled the right of the deceased Boraiah with reference to the property in his occupation and it is therefore restricted to only an area measuring 27'x'47' which is western side of the property possessed by the tenant Suresh and subject matter of said agreement of the year 1982, was measuring 17'X47' feet to the East of Late Boraia's property. But, this agreement was not at all been acted upon as the husband of defendant No.3 did not purchase the property under the said agreement of sale of the year 1982.
20. But the defendant No.3 now claiming title over the entire suit property measuring 44'x'47' alleged to sold by defendant No.4. In turn, the very defendant No.4 has withdrawn the suit filed by him claiming declaratory relief in 37 O.S.No.1810/2006 O.S.No.1654/1986, on the ground that he has sold his property to defendant No.3. Therefore, his purchase of property from the husband of defendant No.5 includes the litigious property of defendant No.5 and in view of the compromise the right of the plaintiff's branch i.e. Late Boraiah, as successor to the same, have acquired the absolute right over the portion of suit property measuring 27'x'47'. Thus, the plaintiffs along with defendant No.3 have formed the joint ownership over this portion of suit property.
21. The defendant No.3 though purchased the entire property from defendant No.4, the sale transaction cannot be held null and void entirely. But, to the extent of the area under agreement excluding the possession of deceased Boraiah and which has been confirmed under compromise as owner of the property possessed by him, which has reached its finality in the clubbed appeals between the defendant No.5 and deceased Boraiah. Therefore, defendant No.3 can be considered as absolute owner of the property purchased under the sale deed of the year 2001 from defendant No.4 only the area measuring 17'x'47' which is in excess to the confirmed right of deceased Boraiah, out of entire property 38 O.S.No.1810/2006 measuring 44'x'47' as claimed by the plaintiff and not more than that.
22. The plaintiffs' (as defendants) claim in O.S.No.1654/1986, reveals that they are asserting their right in the suit property as successors of their predecessor Boraiah, as joint owner and in possession of the same disputed the alleged title and interest of defendant No.4 (plaintiff in the said suit), purchased under the sale deed of the year 1974, from defendant No.5 (who was defendant in the said suit). Defendant No.4 in that suit referred the property purchased in 1974, measuring 44'x47' described as suit 'A' schedule property and 'B' schedule property asserted as in the possession of plaintiffs (L.Rs of Boraiah) and it is located to the West of property in possession of tenant Suresh. Thus, entire claim was said purchased property (44'x47'). He contended in that suit that it was collusive compromise in the appeals between Boraiah and defendant No.5. But it has not been challenged and get it nullified with due judicial process. But he has challenged that the sale deed dated 14.5.1974 executed in his favour as nominal.
Thus, he too also claimed the right under this sale deed. He 39 O.S.No.1810/2006 referred the alleged agreement of Boraiah dated 6.7.1982 entered into with defendant No.5 in respect of remaining area measuring 17'x27'. But it has not seen the light of the day. The agreement now on record, as discussed above, was entered into by son of Boraiah i.e. husband of defendant No.3, i.e. Eastern portion in his purchased property (44'x47'), in occupation of tenant Suresh, measuring 17'x47'. Thus, what is revealed is that Boraiah and his LRs were/are in actual possession and enjoyment of property measuring 27'x'47' shown as schedule 'B' property out of property measuring 44'x47', and it is the western portion. Thus, eastern property measured 17'x47'.
23. In the said suit, the plaintiffs (defendant Nos.2 to 9 in that suit as LRs of Boraiah) specifically asserted in their written statement their joint ownership over schedule 'B' property and exclusive joint possession thereupon, in view of the compromise that was taken place in the said two appeals. They have produced the compromise decree and the compromise petition in that suit along with their written statement. Thus, plaintiffs assertion over said schedule 'B' property is as of their predecessor Boraiah and not more than 40 O.S.No.1810/2006 that. It is thus proof of the ownership of Boraiah that was confirmed in the said R.A.s under compromise decree. So, the plaintiffs claim over entire property, alleged to be purchased by defendant No.4 does not have any legal force. They can be the joint owner in possession of said suit schedule 'B' property (which is held on making calculation measuring 27'x47') is not binding upon the plaintiffs. Even the defendant No.4 has asserted the possession to that extent from plaintiffs (D.2 to D.9), stating it as illegal possession and defendant No.5 (defendant No.1 in that suit) as owner of the property. But from these circumstances and compromise in these (clubbed) appeals the possession of Boraiah was confirmed as lawful. So, the purchase of entire property by defendant No.3 from defendant No.4 is subject to said schedule 'B' property belonged to Boraiah. The said sale deed in the name of defendant No.3 for the said reason do not binds the plaintiffs to the extent of Boraiah's property measuring 27'x47'. But it is not void to the extent of area measuring 17'x47' sold to him. So, plaintiffs duly proved their joint ownership and joint possession over the western portion measuring 27'x47' in the suit property. 41 O.S.No.1810/2006
24. Defendant No.3 has claimed the suit property as of her absolute property, as she has purchased it for valuable consideration. It is tried by the plaintiffs that she being not wife of Puttaswamy. Though it is admitted fact that she was second wife of son of Boraiah, by name Puttaswamy. But how she was disqualified under any law to have claim over the property purchased in her name, based on her legal status as second wife. No materials are on record. But from the evidence on record it is not material dispute raised by the plaintiff, except admitting her as second wife. It is no bodies case that defendant No.3 married him during the life time of his first wife, since they governed by Hindu Law (as their personal law). Defendant No.3 referred her marriage invitation cards as proof of her marriage with Puttawamy on 26.5.1994. The revenue records revealing her status as wife of Puttaswamy.
25. So, now it is not significant to consider her status as second wife come in the way of her legitimate claim. She has asserted it her own property. Sale deed, if considered of Puttaswamy, husband of Defendant No.3, then also defendant No.3 being successor has absolute title over the legitimate 42 O.S.No.1810/2006 property acquired by defendant No.4 under his sale deed of the year 1974 (Ex.P.13) i.e. an area 17'x47' the eastern portion in suit schedule property, in which the plaintiffs have no any share. But, it has not been duly proved by the plaintiff that it was purchased either by Boraiah or Puttaswamy, out of joint family property income or joint contribution of all joint family shareholders. So, the purchase of property by defendant No.3 under Ex.P.6 (dated 19.11.2001), proving her absolute title to the said portion of suit property. So, the litigious property has been passed on defendant No.3. She did not proceeded with the suit of the defendant No.4. So, her title to the suit schedule property, is to the extent of what has been created under law, conferring under Ex.P.13, i.e. the property to the east of the property of Boraiah. She has thus acquired absolute title to the eastern portion of suit property measuring 17'x47'. Whereas, he has joint share in the property of Boraiah i.e. western portion measuring 27'x47', forming branch of her husband i.e. son of Boraiah, along with other legal heirs of Boraiah i..e plaintiffs. So the sale deed Ex.P.6, revenue records (katha, tax paid receipts) and building plan standing in the name of defendant No.3, but it shall be subject to joint ownership and 43 O.S.No.1810/2006 possessory right of the plaintiffs over western portion in suit schedule property, measuring 27'x47' as it is settled law that one co-owner shall not deprive the right of other co-owners.
26. The decisions/rulings referred by the learned counsel for the plaintiffs and defendant No.3 with due respect are considered herein. The decision referred by the learned counsel for defendant No.3 reported in AIR 1979 S.C.1944, regarding acquisition of Hindu Female governed by Section 14 of the Hindu Succession Act, 1956 and considered to be her absolute property. In the present case also purchase of property by defendant No.3 under Ex.P.6 to the extent of 17'x47' eastern portion is her absolute property.
27. the learned counsel for the plaintiffs has relied upon the decision in support of arguments pertaining to the significance of execution of Power of Attorney, alienation during pendency of the suit (lispendens), rights in coparcener property and the revenue records are not proof of title etc., which are reported in and considered the present case on hand with due respect to the same.
a) 2005 (1) KLJ 458, Section 237, of Contract Act 1872, __ Acts of the agent bind the principal for 44 O.S.No.1810/2006 executing the deed of Power of Attorney to sell one piece of property, but dishonestly selling of entire property of the principal to the third person, the principal is liable to the third party who purchases through agent as bonafide purchaser, since power to Attorney-document is between the principal and agent and it may be void, if agent incurred obligations with third party such obligation binds the principal, for having chosen unscrupulous person as his power of attorney and allowed the scope for manipulation, forgery and fraud, hence the rights of the boanfide purchaser are to be protected.
But in the present case, husband of defendant No.5 as GPA has sold the property of defendant No.5, but it is not the portion of the property and that the title of the defendant No.5 was under dispute to the extent of an area measuring 27'x47' as disputed by the plaintiffs predecessor Boraiah. Hence, that portion of area cannot be considered the absolute title held by defendant No.5. But she was absolute owner of the property excluding the claim of Boraiah i.e. the said western portion in the suit property, measuring 27'x47'. Therefore authorization of GPA i.e. husband of defendant No.5, who sold the property to defendant No.4, is only to the extent of an area measuring 17'x47' and not the litigious property, which ahs been subsequently confirmed the right of Boraiah, under the compromise in the said appeals. Hence, the GPA cannot sell the area measuring 27'x47' . Hence, sale deed executed 45 O.S.No.1810/2006 by GPA for defendant No.5 in favour of defendant No.2 is valid in respect of eastern portion i.e. an area measuring 17'x47' only.
b) AIR 1983 RAJASTHAN 161, regarding the allegation of property during pendency of litigation held to void and not binding upon the person claiming legitimate right, title and interest and it is hit by Section 52 of Transfer of Property Act, in the said decision sale of larger property during lispendens is hit by Section 52 of T.P.Act- i..e transferee disabled by virtue of lispendens. Hence, in the present case the sale deed executed by husband of defendant No5. in favour of defendant No.4, certainly during the pendency of said appeals (hit by lispendens under Section 52 of T.P.Act). Hence, defendant No.4 as transferee and defendant No.5 as transferor through GPA are bound by the preexisting rights of the joint owners of immoveable property i.e. the right of Boraiah and his LRs. Hence, sale of property measuring 27'x47' in the suit property (western portion) is considered to be void and not binding on the real title holders i.e. plaintiffs being LRs of deceased Boraiah and holding it as joint owner in possession of the same.
c) ILR 2010 kar. 1484, regarding the equal right in the joint family property by inheritance/ coparceners daughters are now considered to be coparceners and will get equal share in the joint 46 O.S.No.1810/2006 family property, under Section 6(1) of Hindu Succession (Amendment) Act, 2005, which recognizes the daughters right. Thus rights are created and conferred on the daughters of a coparcener.
In the present case the property of Boraiah after his death inherited by his sons and daughters forming their respective branches as referred above, is considered to be the property of joint family property inherited from common ancestor and acquired equal rights in the western portion of suit property and they are forming Hindu Undivided Family and the property is joint family property and hence the plaintiffs 2 to 4 being daughters of Boraiah have equal share, for which they are entitled to get the relief of partition and separate possession, since there was no partition taken place amongst these 3 sisters and 5 brothers (now representing the respective 8 branches as discussed above).
d) 1997 AIR SCW 2041, regarding presumption unde Section 114 of Evidence Act in connection with the entry in the revenue records cannot form any basis for decaltion of title.
In the present case through defendant No.3 has referred the khata extract, khata certificate, tax paid receipt sanctioned plan etc., which are considered to be revenue records standing in her name, but they have not considered 47 O.S.No.1810/2006 to be the title deeds. As held above, the acquisition of title by her under the alleged sale deed executed by defendant No.4 in her fvour of the year 2001 being litigious title and held to be her title to the property i.e. eastern portion in suit schedule property measuring 17'x47' and not the western portion measuring 27'x47'. Therefore, the revenue records referred by her does not confer any title so as to declare her title to the entire extent of suit schedule property measuring 44'x47'.
27. This is the court sitting on the civil side has to decide the rights of the parties and to declare such legal rights and grant appropriate relief available under law, within the claim made out and prayed for by the plaintiff. These plaintiffs having proved their joint ownership and possession over western portion of suit schedule property (27'x47'). They are entitled for legitimate shares of their respective branches, the branches are sons and daughters of late Boraiah, who has acquired title to the said property, as of his self acquired property. So, sons and daughters are the Class-I heirs to late Boraiah. Plaintiffs mother died prior to this suit. So each Branch will get 1/8th share as per the following pedigree 48 O.S.No.1810/2006 showing 8 branches (5 sons, 3 daughters), as they will get equal shares therein as legal heirs of Boraiah.
Boraiah (died in 1985) :
Wife Mayamma (died in 2004) :
:
:1 2 3 4 5 6 7 8:
(1/8) (1/8) (1/8) (1/8) (1/8) (1/8) (1/8) (1/8)
: : : : : : : :
Siddaiah Puttaswamy : Boraiah : Vasantha : Shanthi
(died) (died) : P.7 : P.2 : P.4
: : : : :
LRs LR-D.3 : Neelakanta Lalitha
P-5(1) Lingaiah P.1 P.3
& 5(2) (died)
LRs
P.6(1) & 6(2)
28. The plaintiffs do not get any share in the property of defendant No.3 purchased under Ex.P.6, i.e. eastern portion of suit schedule property measuring 17'x47'. So they are not entitled for declaration of the entire sale deed Ex.P.6, as null and void and not binding upon them. But it is unenforceable by defendant No.3 to the extent of said western property of Boraiah, except her 1/8th share therein. So, to that extent the creation of right under Ex.P.6 by defendant No.4 in favour of defendant No.3, and by the reason of withdrawal his suit by defendant No.4, etc., are illegal and in deprivation of plaintiffs right. Defendant No.3 failed to prove her absolute title over the entire suit property. So, the plaintiffs are 49 O.S.No.1810/2006 entitled for their legitimate share in the said portion of suit property. The defendant No.3 claiming absolute title over the entire property may attempt for alienate the property depriving the right of plaintiffs. But defendant No.1 and 2 cannot be the infringers of their right. No, any materials showing collusion of defendant Nos.1 to 3, placed on record.
The defendant Nos.1 and 2 shall perform their statutory duty as per law. So, there cannot be collusion with defendant No.3 if they discharge their duty with due process of law. So, there is no material to show that defendant No.3 is actually trying to alienate the suit property. But she cannot be prevented from alienating her property as held above measuring 17'x47'. So these issues 1 to 8 are answered in the partly affirmative.
29. Issue No.9:- In view of the above discussion and conclusion arrived at, this court is hereby proceeded to pass the following:
O R D E R The suit of the plaintiff is hereby partly decreed.
The plaintiffs are entitled for their legitimate share in the suit schedule 50 O.S.No.1810/2006 property, measuring 27 feet East to West and 47 feet North to South, in the western portion of the suit schedule property, bearing Municipal No.66/6, (old No.89/66) New No.67/1 and old No.89/A situated at 2nd cross road, Raghavendra Colony, Chamarajpet, Bangalore, i.e. out of 44'x47' total measuring as per the chart, described below, along with defendant No.3.
Sl.No. Representing branch share
1. Plaintiff No.1 representing his 1/8th
branch
2. Plaintiff No.2 representing her 1/8th
branch
3. Plaintiff No.3 representing her 1/8th
branch
4. Plaintiff No.4 representing her 1/8th
branch
5. Plaintiff No.5(1) and 5(2) 1/8th
representing branch of Siddappa
6. Plaintiff No.6(1) and 6(2) 1/8th
representing branch of Lingaiah
7. Plaintiff No.7 representing his 1/8th
branch
8. Defendant No.3 representing the 1/8th
branch of her husband
Puttaswamy
Consequently, it is hereby declared
that the sale deed dated 19.11.2001
executed by defendant No.4, in favour of
defendant No.3 is not binding upon the
legitimate shares of plaintiff Nos.1 to 7, as declared above to the extent of an area measuring 27 feet East West and 47 feet north south in the western portion of the suit schedule property, measuring East West 44 feet and North south 47 feet, as hold.51 O.S.No.1810/2006
Parties are directed to bear their own costs.
Draw up preliminary decree
accordingly.
(Dictated to the Judgment Writer, directly over computer, corrected and then signed and pronounced by me in the open court on this the 1st day of September, 2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.
ANNEXURE List of the witnesses examined for the plaintiffs:
PW.1 B. Neelakanta List of the documents marked for the plaintiffs:
Ex.P.1 Special Power of Attorney dated 21.07.2009 executed by plaintiffs No.5(1), 5(2), 6(1), 6(2) & 7 in favour of plaintiff No.1.
Ex.P.2 Certified copy of settlement deed dated 13.03.1974 in favour of defendant No.5.
Ex.P.3 Certified copy of the plaint in O.S.No.1654/1986 filed by defendant No.4.
Ex.P.4 Certified copy of written statement in O.S.No.1654/1986 filed by defendants No.2 to 9. Ex.P.5 Certified copy of application under Order XIII, Rule 1 & 2 of C.P.C. in O.S.No.1654/1986 filed by the defendants.
Ex.P.6 Certified copy of impugned sale deed dated 19.11.2001 executed by defendant No.4 in favour 52 O.S.No.1810/2006 of defendant No.3 pertaining to the suit schedule property.
Ex.P.7 Certified copy of Memo dated 10.12.2001 in O.S.No.1654/1986 filed by defendant No.4 herein as plaintiff therein.
Ex.P.8 Certified copy of the relevant portion of the order sheet in O.S.No.1654/1986.
Ex.P.9 Certificate copy of death certificate of B. Puttaswamy (brother of plaintiff No.1).
Ex.P.10 Copy of legal notice dated 16.01.2006 issued to Revenue Officer, Bangalore Mahanagara Palike. Ex.P.11 Copy of legal notice dated 16.01.2006 issued to the Sub-Registrar, Chamarajpet, Bangalore.
Ex.P.12 Encumbrance Certificate.
Ex.P.13 Certificate copy of sale deed executed by
defendant No.5 in favour of Puttaraju.
Ex.P.14 Agreement dated 06.07.1982 executed by 5th
defendant - Smt. Parimala Devi in favour of Puttaswamy.
Ex.P.15 Water bill.
Ex.P.16 Consumer Water Card.
Ex.P.17 Copy of legal notice dated 16.01.2006 issued to
Undervaluation Authority, Government of
Karnataka, Bangalore.
Ex.P.18 Two postal receipts.
List of the witnesses examined for the defendants:
D.W.1 Smt. Rekha P. List of the documents marked for the defendants:
Exs.D.1 & D.2 Marriage invitation cards. Ex.D.3 Khatha certificate. 53 O.S.No.1810/2006 Ex.D.4 Assessment register extract. Ex.D.5 Tax paid receipts (12 in Nos.). Ex.D.6 Khatha certificate. Ex.D.7 Khatha extract. Ex.D.8 Tax paid receipts (7 in Nos.). Ex.D.9 Building plan. Ex.D.10 KEB bills (4 in Nos.). Ex.D.11 BWSSB water bills (3 in Nos.) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru. 54 O.S.No.1810/2006