Bangalore District Court
Smt.N.Mangala Gowramma vs Sri.Nanjappa on 11 September, 2019
IN THE COURT OF THE V ADDL. CITY CIVIL JUDGE,
AT BANGALORE CITY.
(CCH-13)
DATED THIS THE 11 th DAY OF SEPTEMBER, 2019
PRESENT
Sri. C.D. KAROSHI, B.A., LL.M.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
O.S.No.6568/2012
PLAINTIFF: Smt.N.Mangala Gowramma
W/o N.M.Somashekaraiah
Aged 44 years, r/at
No.494, 5 th main road,
9 th cross, Shakambarinagar,
1 st Stage, J.P.Nagar,
Bangalore-78.
(By Sri.M.R.R, Advocate)
/VS/
DEFENDANTS: 1. Sri.Nanjappa
S/o Gangappa
Aged 75 years,
R/o Ganigarapalya,
Banashlankari 6 th stage,
Bengaluru, Talagatapura Post,
Bengaluru.
(DEAD, plaintiff is the only daughter)
2. Sri.Marulasiddappa
S/o Gangappa
Aged about 75 years,
R/o Ganigarapalya,
Banashlankari 6 th stage,
Bengaluru, Talagatapura Post,
Bengaluru.
2 O.S.No.6568/2012
3. Sri.Manjunath
S/o Marulisiddappa
Aged 38 years,
R/o Ganigarapalya,
Banashlankari 6 th stage,
Bengaluru, Talagatapura Post,
Bengaluru.
4. Sri.Shivakumar
S/o Marulisiddappa
Aged 28 years,
R/o Ganigarapalya,
Banashlankari 6 th stage,
Bengaluru, Talagatapura Post,
Bengaluru.
5. Smt.Sashikala
W/o Parashiva Murthuy
D/oMarulisiddappa
Aged 32 years,
R/o Ganigarapalya,
Banashlankari 6 th stage,
Bengaluru, Talagatapura Post,
Bengaluru.
6. Smt.Shyalaja
W/o Divya Anand
D/o Marulisiddappa
Aged 30 years,
R/o Ganigarapalya,
Banashlankari 6 th stage,
Bengaluru, Talagatapura Post,
Bengaluru.
7. Sri.D.H.Jaganath
S/o Late M.Hanumanthappa
Aged 62 years, r/at
No.10/2, Mohiddinsabhane
J.M.Road cross,
Bangalore.
3 O.S.No.6568/2012
8. Sri.Umesh
S/o Lakshmaiah
Aged 37 years,
R/o Muniyaru village,
Devanga Kalyana Mantapa road,
Turuvekere Town,
Tumkur District.
9. Sri.Manjunath Yogi
S/o Mahabaleshwara Yogi
Aged 40 years,
R/at No.429, 1 st floor,
1 st 'C' cross, 1 st main road,
7 th Block, Koramangala,
Bangalore.
10. Smt.Lakshmi
W/o Puttamada
R/at No.85/1, 35 th cross,
9 th main, 4 th Block,
Jayanagar,
Bangalore-11.
11. Sri.K.Mallesh
S/o Late Kempaiah
R/at No.21/18, Rajammalayout,
Jaraganahalli,
Bangalore-78.
12. Smt.C.Manjula
D/o Channaswamy
13. Sri.K.Ramesh
S/o Late Kempaiah
R/at No.21/18, Rajamma Layout,
Jaraganahalli,
Bangalore-78.
14. Smt.H.Ningamma
D/o Hombeley gowda
R/at No.498, 33 rd A Cross,
4 th Block, Jayanagar,
Bangalore -11.
4 O.S.No.6568/2012
15. Smt.Yashodhamma
W/o Panchegowda
R/at No.141/A, 27 th cross,
13 th main, 3 rd Block,
Jayanagar,
Bangalore-11.
16. R.V.Guruprasad
S/o P.V.Ragunandan
No.29(71/6), Shakambarinagar,
Banashankari,
Bangalore.
17. Smt.S.Ningamma
D/o Siddagowda
Aged about 43 years,
R.at No.498, 33 rd A Cross,
Jayanagar 4 th Block West,
Bangalore.
18. Smt.Bhargavi
W/o R.Vijeendra
R/at No.243/A, 8 th cross,
8 th main, Mathikere,
Bangalore-54.
19. Vanamahal
Aged 50 years,
R/at No.498, 53 rd A cross,
4 th Block, Jayanagar,
Bangalore-11.
20. Sri.Anilkumar
S/o D.H.Jagannath
Aged about 37 years,
R/at Nos.27-28, Papanna Lane
K.R.Shettypet,
Bangalore-560 002.
21. Sri.C.N.Ashokkumar
S/o Late C.R.Narayana Reddy
Aged about 67 years,
5 O.S.No.6568/2012
22. Smt.Sunanda
W/o C.N.Ashokkumar
Aged about 58 years,
D21 & 22 are
R/at No.16/76, 22 nd main road,
Padmanabhanagar,
Bangalore-560 070.
23. Sri. Sagar Gupta,
S/o O.P. Ashok Gupta,
Aged about 35 years,
24. Sri.Sumeet Gupta
S/o O.P.Ashok Gupta
Aged about 33 years,
25. Sri.Prateek Gupta
S/o O.P.Ashok Gupta
Aged about 22 years,
D23 to 26 are r/at No.124/5,
'Maapitha Nest', 11 th cross,
22 nd main, Padmanabhanagara,
Bangalore-560 070.
26. Smt.C.R.Manjuladevi
W/o K.V.Srinivas
Aged about 50 years,
R/at No.2342, 20 th cross,
K.R.Road, Banashankari 2 nd Stage,
Bangalore-560 070.
6 O.S.No.6568/2012
27. Smt.Sunanda
W/o late Hombalegowda T.C.,
Aged about 45 years,
R/at No.22, 2 nd cross,
Ashwath Layout,
Doddakallasandra,
Bangalore-560 062.
{D.1 dead, D.2 by Sri. M.R.
D3, 8, 16 -Ex-parte, D4 to 6 by
Sri. GSN, D.7 by Sri. DRS
D.9 by Sri. GSP, D.10 to 15,
17 and 19 by Sri. YKNS,
D.18 by Sri. MSA, D.20 by
Sri. DRB, D.21 in person,
D.22 to 24 ex-parte, D.25
by Sri. GM, D.26 by Sri. ANB
and D. 27 by Sri. TDR advocates}
Date of Institution of the suit 11-09-2012
Nature of the suit (suit on Declaration & Partition
pronote, : suit for declaration
and possession ,suit for
injunction, etc.)
Date of Commencement of 24-04-2018
recording of evidence
Date on which judgment was 11-09-2019
Pronounced
Duration Years Months Days
07 00 00
( C.D.KAROSHI )
V ADDL.CITY CIVIL JUDGE
BANGALORE
7 O.S.No.6568/2012
-: J U D G E M E N T :-
This is a suit filed by the plaintiff against the
defendants for the relief of declaration, partition and separate
possession of her legal share in the suit schedule property
along with cost of the suit.
2. The brief facts are as under :
That, plaintiff is the daughter of defendant No.1,
defendant No.1 and 2 are brothers, defendant No.3 to 6 are
the children of defendant No.2. Defendant No.7 having GPA
executed by defendants 1 to 6 in respect of 2 acres of land in
Sy.No. 71 and 71/2 of Vajarahalli village, Uttarahalli Hobli,
Bengaluru South Taluk and defendants 8 to 19 are the
purchasers of the properties from defendants 1 to 6. One
Sri. Gangappa was the original propositus and his wife
Smt. Revamma are no more. The said Gangappa had two
sons viz., Sri. Nanjappa and Sri. Marulasiddappa i.e.
defendant No.1 and 2. The defendant No.1 having a daughter
by name Smt. Mangala Gowramma i.e. the plaintiff.
Defendant No.2 having two sons, two daughters they are
defendants 3 to 6. Further, it is averred that, the land
bearing Sy.No. 71/2 of Vajarahalli village and land in Sy.No.
6/7, 15/2, 15/4, 15/6, 15/10,15/13, 12/16, 15/16 and
17/2, Hosahalli village, Bengaluru south taluk are all the
ancestral properties of the family of defendant No.1 and 2.
The BDA has acquired some of the family properties and
defendant No.1 and 2 in collusion with each other swallow
8 O.S.No.6568/2012
the compensation amount, but the land in Sy.No. 71 phoded
by 71/2 about 3 acres 9 guntas is remained with the family.
There is no partition between defendant No.1 and 2 in
respect of the family properties. Defendant No.1 is the senior
member of the family, but defendant No.2 has played the role
as Kartha of the family and by misrepresenting the defendant
No.1 started to dispose off the schedule properties in favour
of 3rd parties in collusion with defendants 7 to 19 stating that
defendant No.1 has no issues, executed GPA in favour of
defendant No.7 to the extent of 2 acres of land in Sy.No. 71,
New No.71/2 and defendants 3 to 6 are shown as interested
persons. The plaintiff was given in marriage to
Sri. Somashekaraiah, who is working in police department,
as such, defendant No.1 had no family necessity to alienate
the property, but defendant No.2 has misused the softness of
defendant No.1 with an intention to have unjust enrichment
for himself and his children by taking signature of defendant
No.1 on certain documents. The plaintiff is the only
daughter of defendant No.1, as such, she will be inherited as
daughter of defendant No.1. When the plaintiff inquired
about the status of the family properties and its actual
availability, the defendant No.1 father in turn disclosed that,
defendant No.2 has taken signature, which made the plaintiff
to suspect about the bonafideness of defendant No.2,
accordingly, she collected RTC and E.C. and then came to
know that there are lot of alienations in the suit schedule
property bit by bit. The defendants have no exclusive right
9 O.S.No.6568/2012
over the property, in collusion with each other have created
many alienations, though defendant No.1 Sri. Nanjappa
having half share in the suit schedule property, wherein
plaintiff is entitled for half share, but the defendants in
collusion with each other to defeat the right of the plaintiff
trying to sell the property to the third party, as such, any
alienation effected by defendant No.1 and 2 binds the parties
to the documents only and would not bind on the share of
the plaintiff. Further, when the plaintiff requested the 1 st
defendant to effect partition, he did not respond positively.
Defendant No.7 claims to be the power of attorney holder of
defendants 1 to 6 also effected sale in favour of defendant
No.20 who is none other than the son of defendant No.7
under a registered sale deed dated 28/11/2003 only to
defraud the plaintiff. As such, the same is not binding on the
plaintiff. Further, defendant No.20 also effected certain sale
transactions in favour of third parties viz., defendant No.21
to 27, accordingly, plaintiff got impleaded them as necessary
parties to the suit. Defendants 23 to 25 are the purchasers
under registered sale deed dated 12/06/2013. In turn,
defendant No.26 sold the property in favour of defendant
No.27 under a registered sale deed dated 25/01/2016. So
the said transactions effected in favour of defendants 21 to
27 are subsequent to the institution of the suit. On these
grounds prayed for decreeing the suit.
10 O.S.No.6568/2012
3. Records reveal that, initially plaintiff filed the above
numbered suit only against defendant No.1 to 19 only.
During the pendency of the suit, he got impleaded defendant
No.20 to 27 as per the orders on I.A. dated 17/06/2017. On
receipt of suit summons defendants 3, 8, 16, 22 to 24
remained exparte. Defendant No.1 reported to be dead and
his L.R.s were brought on record. The defendants 2, 4 to 6,
7, 9, 10 to 15, 17, 18, 19 to 21 (in person), 25, 26 and 27
appeared through their respective counsels.
4. It is contended in the written statement filed by
defendant No.7 that, the defendants 1 to 6 have jointly
executed registered GPA dated 26/06/1995 in his favour in
respect of the suit schedule property. Further, they have also
executed registered sale deed dated 28/11/2003 before the
Sub-registrar, Kengeri to the extent of 2 acres out of 3 acres
9 guntas of the schedule property. In addition to that,
defendants 1 to 6 also executed agreement of sale dated
19/06/1995 along with an affidavit by receiving the sale
consideration amount, accordingly, after purchase of the
same defendant No.7 has formed a revenue layout and sold
the same in favour of different purchasers who have
constructed the dwelling houses and residing as owners of
the respective properties. Further contend that, at the time of
purchase, the 1st defendant informed that, there is no claim
from any member of the family, but now with a malafide
intention they have set up the plaintiff to file the present suit
11 O.S.No.6568/2012
to have an unlawful gain. The plaintiff now aged about 44
years has filed the suit on the allegations made in the plaint
as against the sale deed dated 28/11/2003, as such, the
entire allegations made in the plaint are all denied as false
and the plaintiff be put to strict proof of the same. The
valuation made and the court fee paid by the plaintiff is not
proper. The plaintiff has not come to the court with clean
hands. The defendant No.1 being the Kartha of the family
along with other vendors have sold the property for the
family necessity, as such, the plaintiff cannot lay her hands
over the schedule property. The suit is barred by limitation.
No cause of action arose to file the suit. Hence, the suit is
liable to be rejected with exemplary cost.
5. It is contended in the written statement filed by
defendant No.9 that, the suit of the plaintiff is misconceived,
barred by law and liable to be dismissed. The averments
made in para 5 of the plaint are not within the knowledge of
defendant No.9. The averments made in para 6 to 12 are
denied as false and the plaintiff be put to strict proof of the
same. Further contend that the female members of the
Hindu joint family including the plaintiff were not the
coparceners, as such, they have no right by birth under the
provisions of the Hindu Succession Act. Further, though in
view of the (amendment) Act, 2005, daughter become the
coparcener by birth, but according to the proviso nothing
contend in sub-section shall affect or invalidate any
12 O.S.No.6568/2012
disposition or alienation including any partition or
testamentary disposition of the property took place before
20/12/2004. In the case on hand, defendants 1 to 6 being
the coparceners, after death of common author Sri.
Gangappa have executed GPA dated 23/02/1995 in respect
of 2 acres of land in schedule property in favour of defendant
No.7 authorizing him to do necessary act including convey of
the same by receiving the consideration, accordingly, he has
sold to an extent of east west 30 feet and north south 40 feet
with sheet roofed construction bearing property No.21 in the
schedule property bearing Sy.No. 71/2 in favour of defendant
No.9 under a registered sale deed dated 19/05/1999 for
valuable consideration, accordingly, the said defendant is
paying revenue to the concerned authority. Further contend
that, before purchase of the said property he gave public
notice in daily news paper, but, no objection was received by
any person. Further the said defendant has sold the said
property in favour of one Sri. Cheluvaraju under a registered
sale deed dated 28/05/2010 for consideration on account of
his family necessity, as such, the suit is also bad for non
joinder of necessary parties. In view of the proviso of
amended Section 6 of the Hindu Succession Act, suit is also
not maintainable. On these grounds prayed for dismissal of
the suit with costs.
6. It is contended in the written statement filed by
defendant No.10 that, the suit is filed with an ulterior
13 O.S.No.6568/2012
purpose to harass defendants 7 to 18 in collusion with
defendants 1 to 6, as such, it is liable to be dismissed with
costs. The suit is barred by time on the ground of delay and
latches on the part of the plaintiff. The genealogical tree
produced by the plaintiff is incorrect and put to strict proof
of the same. The defendant No.10 has purchased site No.56
in the layout formed in suit schedule property from its owner
Sri. Nanjappa under a registered sale deed dated
07/03/2003 and constructed a building by investing huge
amount. Further, at the time of purchase, she was informed
that, 1st defendant is issue less. The defendant No.10 is a
bonafide purchaser of site for valuable consideration without
notice to the alleged right of the plaintiff over the schedule
property. The suit is bad for non joinder of necessary parties
and non inclusion of remaining family properties. The
plaintiff is not a coparcener of the family, she is entitled to
claim only through defendant No.1 during his life time only,
now she is not entitled to any share in the suit schedule
property. The plaintiff got married long back i.e. more than
30 years back. Defendant No.10 has purchased the property
under a registered sale deed even before amended provisions
of the Hindu Succession (Amendment) Act, 2005, came in to
force. On these grounds plaint is liable to be rejected with
costs.
14 O.S.No.6568/2012
7. It is contended in the written statement filed by
defendant No.11 to 14 that, the plaintiff has filed the
vexatious suit with ulterior purpose to harass defendants 7
to 18 to make unlawful gain in collusion with defendants 1 to
6, as such, suit is liable to be dismissed with cost. The
defendant No.11 to 14 have purchased the site Nos.68, 57,
69 and 58 in the layout formed by its owner Sri. Nanjappa in
the schedule land under registered sale deed dated
17/06/1999, 05/06/1999, 17/06/1999 and 15/12/1999
respectively for valuable consideration without notice of the
alleged right of the plaintiff, as such, they are the bonafide
purchasers of the said properties. The suit is bad for non
joinder of necessary parties. The suit is barred by time and
the court fee paid is insufficient. The defendants have
purchased the said properties even before amended
provisions of the Hindu Succession Act, 2005, came into
force, but, the plaintiff has filed the above numbered suit
who was given in marriage about 30 years back, as such, the
plaintiff is not entitled for any relief. On these grounds
prayed for rejection of plaint.
8. It is contended in the written statement filed by
defendant No.15 and 17 to 19 that, suit of the plaintiff for
the relief of partition is not maintainable as she has not
included all the properties belonging to the joint family of the
plaintiff and defendants 1 to 6. The suit is also bad for
nonjoinder of necessary parties as three daughters of late
15 O.S.No.6568/2012
Gangapppa and Smt. Revamma and sisters of defendants 1
and 2 are not made parties to the suit. Defendant No.18
became absolute owner of the property bearing site No.52 in
V.P. Khatha No.71/2 of Vajrahalli village to the extent of east
west 40 feet and north south 30 feet by virtue of registered
sale deed dated 24/11/1999 and is in uninterrupted and
continuous possession, as such, has perfected her title by
adverse possession for over a period of more than 13 years,
as such, suit of the plaintiff is not maintainable. The
defendant No.15 and 17 to 19 became the owners in
possession of their respective sites/houses as referred supra.
Thereafter, defendant No.15 gifted site bearing No.59 in
favour of her daughter Smt. P. Varalakshmi under a
registered Gift Deed dated 07/03/2005 and she is
possession and enjoyment of the built up house in the said
site. On these grounds prayed for dismissal of the suit with
cost.
9. It is contended in the written statement filed by
defendant No.23 to 25 that, the suit of the plaintiff is not
maintainable either in law or on facts and liable to be
dismissed. The defendants have purchased site No.9,
situated at Vajarahalli village from the defendant No.9 Sri.
Anil Kumar under a registered sale deed dated 12/06/2013
and thereby became the owners in possession of the same.
The averments made in para 4 to 13 of the plaint are denied
16 O.S.No.6568/2012
as false and plaintiff be put to strict proof of the same. On
these grounds prayed for dismissal of the suit with cost.
10. Basing on above narrated pleadings my
predecessor in office has framed the following issues dated
08/01/2014:-
1) Whether the plaintiff to prove that the suit
schedule properties are ancestral joint Hindu
family properties of plaintiff and defendant
Nos.1 to 6 ?
2) Whether the plaintiff to prove that, herself and
defendant Nos.1 to 6 are in joint possession
and there is no partition till today ?
3) Whether the plaintiff to prove the General
Power of Attorney executed by defendant Nos.1
and 2 in favour of defendant No.7 and
alienation made by defendant No.7 in favour of
defendant Nos.8 to 19 are not binding on the
plaintiff ?
4) Whether the defendant Nos.8 to 19 to prove
that they are bonafide purchasers ?
5) Whether the suit of the plaintiff is in time ?
6) Whether the Court fee is paid sufficient ?
7) Whether the plaintiff is entitled for reliefs
claimed in the suit ?
8) What decree or order ?
17 O.S.No.6568/2012
11. In order to prove their case, plaintiff examined
herself as PW.1 and got marked the documents at Ex.P1 to
P.19. On the other hand the defendant No.18 examined
herself as DW.1 and got marked the documents at Ex.D1 to
Ex.D26. The defendant No.10 examined herself as DW.2 and
got marked the documents at Ex.D27 to Ex.D37. The
defendant No.11 examined himself as DW.3 and got marked
the documents at Ex.D38 to Ex.D51. The defendant No.12
examined herself as DW.4 and got marked the documents at
Ex.D52 to Ex.D64. The defendant No.13 examined himself
as DW.5 and got marked the documents at Ex.D65 to
Ex.D88. The defendant No.15 examined herself as DW.6 and
got marked the documents at Ex.D89 to Ex.D108. The
defendant No.19 examined herself as DW.7 and got marked
the documents at Ex.D109 to Ex.D115. The defendant
No.14 examined herself as DW.8 and got marked the
documents at Ex.D116 to Ex.D121. The defendant No.7
examined himself as DW.9 and no documents were marked
on his behalf.
12. Heard and perused the written arguments filed
before the predecessor in office along with material on
record. The counsel for the plaintiff relied on citations
reported in (2016) 2 SCC 36, 2018 SCC on-line SC 422 and
2017 (3) KCCR 2153. The counsel for defendants 10 to 15,
17 and 19 relied on decisions reported in (1994) 4 SCC 294,
18 O.S.No.6568/2012
LAWS (KAR) 2010 9 11, 2012 (5) KCCR 4082 and ILR 1998
KAR 681.
13. My findings on the above 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 negative.
Issue No.6 In the affirmative.
Issue No.7 In the negative.
Issue No.8 As per final orders for the
following,
-: R E A S O N S :-
14. Issue No.1 to 4 :- I take these issues altogether
for my discussion as they are inter related to each other.
15. It is worth to note that the plaintiff has filed the
above numbered suit for the relief of declaration, partition
and separate possession of her legal share in the suit
schedule property. In this regard, the plaintiff filed an
affidavit in lieu of the oral evidence and examined herself as
P.W. 1 by reiterating entire averments of the plaint stating
that, original propositus Sri. Gangappa and his wife are no
more, he had two sons viz., Sri. Nanjappa and Marula
Siddappa who are the defendant No.1 and 2, she is the only
19 O.S.No.6568/2012
daughter to defendant No.1 Sri. Nanjappa, defendant No.3 to
6 are the children of defendant No.2. Further states that, suit
schedule property is the ancestral property of herself and
defendants 1 to 6 and they are in joint possession and
enjoyment of the same, but, defendant No.1 died during the
pendency of the suit leaving behind her as sole legal
representative as such she is entitled for half share in the
suit schedule property, but, the defendant No.2 colluding
with defendant No.7 taking disadvantage of power of attorney
executed by her father misusing the power of attorney and
effected sale deed though the said alienation is not for the
family necessity, therefore, alienation made in favour of
defendant No.7 to 25 is void and not binding on her share.
In order to support her oral testimony, P.W. 1 got marked
documents at Ex.P.1 to P.19.
16. During the course of cross-examination of P.W. 1,
though admits that, schedule property was originally belongs
to late Sri. Nanjappa, but, she denied the suggestion that,
defendant No.7 and 20 formed a layout in the schedule
property and sold out the sites in favour of defendants, but,
pleads ignorance about identification of defendants 7 to 27
stating that, since her uncle has sold out the sites without
her knowledge, accordingly she has made them as parties to
the suit. Further states that, though she knew about the sale
transaction, but admits that, she has neither verified the
encumbrance certificates nor made her mother as party to
20 O.S.No.6568/2012
the suit or aware of the sale transactions effected in favour of
defendants 10 to 15 and 17 to 19, but volunteers that, soon
after verifying the the records she made the defendants as
parties to the suit. Again when a suggestion was put to the
witness that, the respective purchasers have already
constructed buildings and residing therein, she pleads
ignorance. Further admits that, she has not included
remaining properties in the present suit, but when a
suggestion was put to the witness that, since the defendant
No.1 and 2 have sold out the sites in Sy.No. 71/2 in favour
of defendant No.10 to 15 and 17 to 19 by receiving sale
consideration amount legally as such she has no right over
the schedule property, she has denied as false.
17. In her further cross-examination by the counsel
for defendant No.18 dated 13/07/2018 she identified the
signature of her father and her uncle on Ex.P.10 sale deed at
Ex.P.10(a)&(b). Further, though she admits that, now the
price of the property in dispute is increased but denied the
suggestion that in order to grab the schedule property she
has filed false suit colluding with her father and uncle.
18. In her further cross-examination by the counsel for
defendant No.7 and 19 she has categorically admitted the
fact that, her marriage has taken place in the year 1985 now
there exists several buildings in the schedule property and
she does not know the extent of property sold by her father
in favour of defendant No.7 and others as well as layout
21 O.S.No.6568/2012
formed in the property. Again admits that, neither she is in
possession of the schedule property, nor aware about the
phodi or she claimed any amount from her father or uncle
out of the compensation said to have been granted by BDA
towards acquisition of portion of the property in dispute
under Ex.P.19.
19. On the other hand, in order to substantiate their
contentions defendant No.18 has filed an affidavit in lieu of
oral evidence by reproducing entire contentions taken in the
written statement as referred in para No.8 supra,
examined as D.W.1 and got marked the documents at Ex.D.1
to D.26, as such, I feel that, again it is not necessary to
reiterate the same. During the course of cross-examination
though she admits that, at the time of execution of sale deed
the plaintiff's father and uncle told her that schedule
property was their ancestral property, but, she has
specifically denied the suggestion that, defendant No.1 late
Nanjappa had a daughter, as such, she did not enquire
anybody. Further when a suggestion was put to the witness
that, though she had knowledge about the fact that plaintiff
Smt. Mangala Gowramma is the daughter of defendant No.1
Sri. Nanjappa she got executed the sale deed behind her
back, she denied as false.
20. So also, in order to substantiate her contention
defendant No.10 has filed an affidavit in lieu of oral evidence
by reproducing entire contentions taken in the written
22 O.S.No.6568/2012
statement as referred in para No.6 supra, examined as
D.W.2 and got marked the documents at Ex.D.27 to D.37, as
such, I feel that, again it is not necessary to reiterate the
same. During the course of cross-examination though she
admits that, at the time of execution of Ex.P.13 late Sri.
Nanjappa was the owner of the schedule property, but denied
the suggestion that, the land bearing Sy.No. 71/2 was the
ancestral property of said Nanjappa. Further states that, she
enquired the fact that, Nanjappa had no issues, but, she has
not enquired other persons and not verified about the layout
plan or order of conversion, but states that, she has built up
a house in the said property about 12 years back itself.
21. So also, in order to substantiate his contention
defendant No.11 has filed an affidavit in lieu of oral evidence
by reproducing entire contentions taken in the written
statement as referred in para No.7 supra, examined as
D.W.3 and got marked the documents at Ex.D.38 to D.51, as
such, I feel that, again it is not necessary to reiterate the
same. During the course of cross-examination though he
admits that, at the time of execution of Ex.P.7 late Sri.
Nanjappa was the owner of the schedule property acquired
from his ancestors, but denied the suggestion that, he had a
daughter. Further states that, on enquiry he came to know
that, he had no issues.
23 O.S.No.6568/2012
22. So also, in order to substantiate her contention
defendant No.12 has filed an affidavit in lieu of oral evidence
by reproducing entire contentions taken in the written
statement as referred in para No.7 supra, examined as
D.W.4 and got marked the documents at Ex.D.52 to D.64, as
such, I feel that, again it is not necessary to reiterate the
same. During the course of cross-examination though she
admits that, at the time of execution of Ex.P.6 late Sri.
Nanjappa was the owner of the schedule property and it
belongs to his ancestors, but states that, though said
Nanjappa told as he had no issues, he has not enquired the
neighbours.
23. So also, in order to substantiate his contention
defendant No.13 has filed an affidavit in lieu of oral evidence
by reproducing entire contentions taken in the written
statement as referred in para No.7 supra, examined as
D.W.5 and got marked the documents at Ex.D.65 to D.88, as
such, I feel that, again it is not necessary to reiterate the
same. During the course of cross-examination though she
admits that, at the time of execution of Ex.D.65 late Sri.
Nanjappa was the owner of the schedule property, but when
a suggestion was put to the witness that, there is mention in
the said sale deed as ancestral property, but he answered as
it was his self acquired property. Further states that, on
enquiry he came to know from the said Nanjappa as he had
no issues, but admits that, he has not enquired others. Again
24 O.S.No.6568/2012
denied that, though he had knowledge about the plaintiff as
daughter of defendant No.1 has got executed sale deed
behind her back.
24. So also, in order to substantiate her contention
defendant No.15 has filed an affidavit in lieu of oral evidence
by reproducing entire contentions taken in the written
statement as referred in para No.8 supra, examined as
D.W.6 and got marked the documents at Ex.D.89 to D.108,
as such, I feel that, again it is not necessary to reiterate the
same. During the course of cross-examination though it has
been elicited that, at the time of purchasing the property it
was vacant, but, in her further cross-examination only
suggestions made and pleaded ignorance by the witness.
25. So also, in order to substantiate her contention
defendant No.19 has filed an affidavit in lieu of oral evidence
by reproducing entire contentions taken in the written
statement as referred in para No.8 supra, examined as
D.W.7 and got marked the documents at Ex.D.109 to D.115
as such, I feel that, again it is not necessary to reiterate the
same. During the course of cross-examination though she
admits that, property was the ancestral property of
Nanjappa and Marula Siddappa, but denied the suggestion
that, Nanjappa had a daughter. Again denied that, though
she had knowledge about the plaintiff as daughter of
defendant No.1 has got executed sale deed behind her back.
25 O.S.No.6568/2012
26. So also, in order to substantiate her contention
defendant No.14 has filed an affidavit in lieu of oral evidence
by reproducing entire contentions taken in the written
statement as referred in para No.7 supra, examined as
D.W.8 and got marked the documents at Ex.D.116 to D.121
as such, I feel that, again it is not necessary to reiterate the
same. During the course of cross-examination though she
admits that, property was the ancestral property of
Nanjappa and Marula Siddappa, but denied the suggestion
that, Nanjappa had a daughter. Again denied that, though
she had knowledge about the plaintiff as daughter of
defendant No.1 has got executed sale deed behind her back.
27. So also, in order to substantiate his contention
defendant No.7 has filed an affidavit in lieu of oral evidence
by reproducing entire contentions taken in the written
statement as referred in para No.4 supra, examined as
D.W.9 and no documents were marked on his behalf, as
such, I feel that, again it is not necessary to reiterate the
same. During the course of cross-examination he has denied
the suggestion that, at the time of execution of Ex.P.4 GPA he
had knowledge about the fact that, schedule property was
the ancestral property of defendants 1 to 6, he denied as
false. Further though admits that, he had knowledge about
the plaintiff as daughter of Nanjappa, but on enquiry
defendant No.1 told as he has already given property to his
daughter, as such she is no way related to the property in
26 O.S.No.6568/2012
question. In his further cross-examination though admits
that, he has formed layout in the year 1995 and 50% of the
sites were being sold in the said year and thereafter he
executed GPA in favour of defendant No.20/son under
Ex.P.14, but denied the suggestion that, though plaintiff had
right over the schedule property he has created the
documents only to grab the property of the plaintiff. In such
circumstances, this court has to see that, in whose favour
preponderance of probability lies.
28. It is the specific case of the plaintiff that, the suit
schedule property is the ancestral/joint family property of
herself and defendants 1 to 6, accordingly, plaintiff would
contend that, she is in joint possession and enjoyment of the
same. Further, in this regard, the learned counsel for the
plaintiff has filed detailed written arguments and relying on
the decisions referred supra would contend that, after
acquisition of the family properties by the BDA under
Ex.P.19 there remains only the schedule property to effect
partition between the parties, as such, plaintiff being the
coparcener is entitled to claim her share in the schedule
property and alleged sale transactions are not binding on the
plaintiff.
29. Per contra, it is specific case of the contesting
defendants that, since defendants 1 to 6 have executed GPA
and sale deed in favour of defendant No.7 legally, as such he
has formed layout in the schedule property to the extent of 2
27 O.S.No.6568/2012
acres and he has sold out several sites in favour of
purchasers in the year 1995 and in turn defendant No.7
executed ExP.4 sale deed dated 28/11/2003 in favour of
defendant No.20 son and he sold portion of the schedule
property, thereafter the respective purchasers have already
constructed buildings in the property long back and residing
therein as owners in possession of the same, as such, in view
of delay and latches suit of the plaintiff is not maintainable
and barred by time. Further, relying on the decisions referred
supra, the learned counsels for the defendant No.10 to 15,
17 and 19 urged that, plaintiff cannot claim any right in the
suit schedule property which were being alienated prior to
the cut off date on 20/12/2004.
30. It is pertinent to note here that, admittedly the
plaintiff has filed the above numbered suit against the
defendants for the relief of declaration, partition and separate
possession of her legal share in the schedule property
bearing Sy.No.71/2 measuring 3 acres 9 guntas of
Vajarahalli village, to the extent of half share claiming to
be the daughter of late Nanjappa, which has not been
acquired by the Government as per Ex.P.19 Gazette
notification for the purpose of formation of Banashankari 6 th
Stage layout through BBMP. So, on careful evaluation of oral
and documentary evidence on record, it is clear that, so far
as in respect of relationship between the plaintiff and
defendants 1 to 6 is concerned there is no dispute. It is also
28 O.S.No.6568/2012
not in dispute that, original propositus Sri. Gangappa had
two sons viz., Nanjappa and Marula Siddappa who are none
other than defendant No.1 and 2. It is also not in dispute
that, as per Ex.P.1 genealogical tree the plaintiff Smt.
Mangala Gowramma happens to be the daughter of
defendant No.1 Sri. Nanjappa who died during the pendency
of the suit. Further, though some of the witnesses pleaded
ignorance about the nature of acquisition of the property in
dispute, but, as per the pleadings, cross-examination of
D.Ws and contents of Ex.P.3, mutation entry and recitals in
Ex.P.5, 7, 8, 12, Ex.D.2 copy of sale deeds dated 09/05/1999
and recital in Ex.P.14 copy of sale deed dated 28/11/2003 it
is evident that, the schedule property was the ancestral
property of plaintiff's father late Nanjappa.
31. It is also not in dispute that, original propositus
Sri. Gangappa and his wife Smt. Revamma and plaintiff's
father Sri. Nanjappa are no more. It is evident that,
defendant No.1 to 6 have executed GPA dated 26/02/1995
as per Ex.P.4 in favour of defendant No.7 to the extent of 2
acres out of 3 acres 9 guntas of the schedule property. In
turn he has formed a layout in the year 1995 and has sold
out several sites in favour of the purchasers including
defendants 9 to 15, 17 to 19 and 23 to 25. In turn,
defendant No.7 executed Ex.P.14 sale deed dated
28/11/2003 in favour of defendant No.20 and then he also
29 O.S.No.6568/2012
alienated the portion of the schedule property to the
subsequent purchasers.
32. So, as observed supra in para 30, now it is clear
that the suit schedule property was the ancestral property of
the plaintiff's father Late Sri. Nanjappa and his brother. This
being the fact, the plaintiff has to prove that there was no
partition in their family properties, as such, herself and
defendant No.1 to 6 are in joint possession and enjoyment of
the suit schedule property as on the date of the suit. In this
regard, if we go through the oral and documentary evidence
available on record, we can find that, originally the property
in dispute was being acquired by the propositus
Sri. Gangappa from its erstwhile owner one Sri. Mallaiah
under Ex.D.1 copy of sale deed dated 02/09/1957. The
defendant No.1 and 2 executed Ex.P.10/Ex.D.2 sale deed
dated 24/11/1999 in favour of one Smt. Bhargavi H.S. in
respect of site No.52 in Sy.No. 71/2 of Vajarahalli village.
Again said GPA holder executed Ex.P.5 sale deed dated
19/05/1999 in favour of defendant No.9 in respect of
property No.21. Similarly, defendant No.1 and 2 have
executed Ex.P.13 sale deed dated 07/03/2003 in favour of
defendant No.10 in respect of property No.56, they have
executed Ex.P.7 sale deed dated 17/06/1999 in favour of
defendant No.11 in respect of house list No.68, they have
executed Ex.D.65 sale deed dated 17/06/1999 in favour of
defendant No.13 in respect of house list No.69 in Sy.No.
30 O.S.No.6568/2012
71/2 of Vajarahalli village, they have executed Ex.P.6 sale
deed dated 05/06/1999 in favour of defendant No.12 in
respect of house list No.57, they have executed Ex.P.8 sale
deed dated 17/06/1999 in favour of defendant No.13 in
respect of house list No.12&11, they have executed Ex.P.11
sale deed dated 15/12/1999 in favour of defendant No.17 in
respect of house list No.58, they have executed
Ex.P.12/D.89, sale deed dated 15/12/1999 in favour of
defendant No.15 in respect of house list No.59, again
defendant No.15 executed Ex.D.90 registered Gift Deed dated
07/03/2005 in favour of her daughter Smt. P. Varalakshmi
who has not been made as party to the suit.
33. Further defendant No.1 to 6 represented by their
GPA holder Sri. D.H. Jaganath executed Ex.P.14 sale deed
dated 28/11/2003 in favour of his son defendant No.20 in
respect of the agricultural dry land bearing Sy.No. 71, re-
survey number 71/2 measuring 2 acres out of 3 acres 09
guntas situated at Vajarahalli village, Uttarahalli hobli,
Bengaluru south taluk. Ex.P.15 reveals that, defendant
No.20 has again executed sale deed dated 06/07/2013 in
favour of defendant No.21 in respect of site No.8 in Sy.No.
71/2 of Vajarahalli village. Ex.P.16 reveals that, defendant
No.20 has again executed sale deed dated 06/07/2013 in
favour of defendant No.22 in respect of site No.36 in Sy.No.
71/2 of Vajarahalli village. Ex.P.17 reveals that, defendant
No.20 has again executed sale deed dated 12/06/2013 in
31 O.S.No.6568/2012
favour of defendant No.23 to 25 in respect of site No.9 in
Sy.No. 71/2 of Vajarahalli village. Ex.P.18 reveals that,
defendant No.20 has again executed sale deed dated
25/01/2016 in favour of defendant No.22 in respect of site
No.26 in Sy.No. 71/2 of Vajarahalli village.
34. So, as observed supra admittedly schedule
property was the ancestral property of the father of plaintiff
late Sri. Nanjappa, but, the aforesaid material evidence
indicates that, there are several sale transactions and
handing over of physical possession in respect of the
schedule property since from the year 1999 till the year 2016
in favour of several purchasers, as such, plaintiff cannot
contend that, she is in joint possession and enjoyment of the
suit schedule property along with the defendants 1 to 6 as on
the date of the suit. Therefore, now a question that arises at
this juncture is, whether the alienations of schedule
property are for legal necessities or not? In this regard, it is
the case of the plaintiff as stated in the plaint and by P.W. 1
that, the said sale transactions were not for family/legal
necessity. As could be seen from the perusal of Ex.P. 5 to 13
certified copies of sale deeds that, there are specific
recitals in the said documents to the effect that, said
alienations were to clear the hand loans and for other
family necessities with an intention to develop the
family. It is not in dispute that, plaintiff has not
32 O.S.No.6568/2012
challenged the same till filing of the suit in the year 2012. In
such circumstances the contention of the plaintiff that, the
aforesaid sale transactions are not for the family necessity
cannot be accepted.
35. It is to be noticed that, admittedly, the defendant
No.1 and 2 have alienated the property in dispute in the
year 1999. As admitted by P.W. 1 in her cross-examination
that, she was given in marriage in the year 1985 and
thereafter there are series of sale transactions in respect of
the schedule property bit by bit since from the year 1999
and plaintiff is residing separately from the year 1985 with
her in-laws, but, the plaintiff has filed the above numbered
suit in the year 2012 stating that,she came to know about
the sale transactions in the year 2010-11 only as not binding
on her and sought for partition and separate possession.
36. As could be seen from the perusal of oral evidence
along with the documents relied by the plaintiff as per
Ex.P.2, 3. as well as the documents relied upon by the
defendants at Ex.D. 5, 6, 10 to 48, 52 to 64, 66, 68 to 85, 92
to 107, 110 to 115, 117 to 121 that, soon after completion
of sale transactions, the concerned defendants have not only
got mutated their names in the revenue records, but they
have also got converted the disputed properties to residential
purpose and paying tax along with electricity bill to the
concerned authorities regularly. This being the fact, plaintiff
33 O.S.No.6568/2012
cannot contend that, aforesaid sale transactions pertaining
to schedule property are not binding on her share.
37. So material on record indicates that, the plaintiff
has failed to prove her claim that, suit schedule property is
the joint family property of herself and defendants 1 to 6
as on the date of the suit. On the other hand, D.W.1 to 9
who are the contesting defendants/purchasers have
established by making their version reasonably probable by
adducing cogent, oral and documentary evidence before this
court and thereby rebutted the case of the plaintiff.
38. With regard to bonafidness of D.8 to D.19 and 21
to 27 purchasers is concern, it is the case of the contesting
defendants that, they have purchased the property in dispute
under registered sale deeds respectively for valuable
consideration stating that, at the time of purchasing the
property the defendant No.1 and 2 told that, defendant No.1
Late Nanjappa had no issues. Further, during the course of
cross-examination of D.W.1 to 8 also when a suggestion was
put to the witnesses that, they purchased the schedule
property knowing fully well that, defendant No.1 had a
daughter by name Smt. N. Mangala Gowramma who is none
other than the plaintiff in the present suit, they have
specifically denied the same and voluntarily deposed before
this court that the vendors have disclosed the fact that
34 O.S.No.6568/2012
defendant No.1 had no issues muchless the plaintiff as
daughter. Further, though it has been elicited in the cross-
examination of D.W.9 that, defendant No.1 had a daughter,
but in his further cross-examination states that on enquiry
her father told that, he has already given her share, as such
she is no way concern to the property in dispute,
accordingly, the defendants would contend that, they did not
enquire other people on this aspect. This being the fact what
prevented the defendant No. 1 to contest the case till his
death, has not been explained. It is worth note that,
admittedly, said purchasers i.e. defendant No.8 to 19 and 21
to 27 have purchased the aforesaid properties under several
registered sale deeds by paying sale consideration amount to
the defendant No.1, 2 and 7 during the life time of plaintiff's
father i.e. much prior to filing of the present suit and
subsequently to defendant No.20. Further, plaintiff was given
in marriage in the year 1985 i.e. prior to all the alleged sale
transactions. So, it is evident that, there is delay and latches
on the part of the plaintiff. As such, it can be held that, the
aforesaid defendants became the bonafide purchasers for
value only after believing the words of defendant No.1 to the
effect that, he had no issues and though he had a daughter,
but he has already given her legal share long back.
39. It is to be noticed that, the plaintiff filed MFA
No.8004/2013 before the Hon'ble High Court as against the
35 O.S.No.6568/2012
orders dated 28/06/2013 passed by this court on I.A. No.1
under Order 39 Rule 1 and 2 CPC. Further, it is evident that,
said appeal came to be disposed off by confirming the order
of this court, wherein it is observed that, considering the
entire material on record this court has recorded finding to
the effect that, as per the documents alienation took place in
the year 1999 itself and the suit has been filed after lapse of
15 years, improvements are made by the defendants by
constructing houses and no agricultural land is available for
partition, accordingly, the Hon'ble High Court has observed
that, whether the plaintiff has got her right of share or not is
a matter of evidence and directed to dispose of the suit on
merits within a stipulated period. But, it is evident that,
plaintiff has miserably failed to establish the said aspect by
adducing cogent oral and documentary evidence before this
court.
40. It is relevant to point out that, as per the plaint
averments, oral and documentary evidence available on
record, it is not in dispute that, schedule property has been
alienated bit by bit from the year 1999 till 2016 in the name
of several persons. On perusal of Ex.D.9, Ex.D35 to 37,
D.49 to 51, D.62 to 64, D.86 to 88 and Ex.D.106 to 108
photos/C.Ds depict about construction of buildings in the
said layout. But, in this respect there is no description of the
alienated portions of the schedule property with specific
36 O.S.No.6568/2012
boundaries. A plain reading of Order 7 Rule 3 Code of Civil
Procedure reads thus:-
"Order 7 Rule 3 CPC:- Where the
subject matter of the suit is immovable
property, the plaint shall contain the
description of the property sufficient to
identify it and in case such property
can be identified by boundaries or
numbers in a record of settlement or
survey, the plaint shall specify such
boundaries or numbers ".
So admittedly, the property in dispute has been
converted into residential layout wherein number of
buildings have been constructed and several purchasers are
residing in the said properties and paying tax to the
concerned authority. This being the fact, without the proper
the description of the property by boundaries, numbers or
sketch no effective decree for partition and separate
possession of alleged share of the plaintiff could be passed by
this court. So, on this ground also the suit of the plaintiff
fails. For these reasons, written arguments filed by the
learned counsel for the defendants holds good. On the other
hand, the written arguments filed by the learned counsel for
the plaintiff is liable to be rejected. Hence, I answer Issue
No.1 to 3 are in the Negative and Issue No.4 in the
affirmative.
41. Issue No.5 :- It is relevant to point out that,
while dealing with Issue No.1 to 4, this court observed that,
plaintiff has failed to prove the fact that, suit schedule
37 O.S.No.6568/2012
property is the joint family property of herself and defendant
No.1 to 6 and also observed that, the alleged sale
transactions are binding on the plaintiff. It is evident that,
plaintiffs have filed the above numbered suit stating that,
cause of action arose to file the suit during June 2011 when
she demanded for partition and not considered by defendant
No.1 and 2. Admittedly, plaintiff was given in marriage in
the year 1985. The alleged sale transactions taken place in
the year 1999. The above numbered suit is filed in the year
2012 i.e. during the life time of her father late Nanjappa, who
has appeared before this court, but has failed to contest the
case of the plaintiff which indicates that, the above
numbered suit has been filed by the plaintiff in collusion
with defendant No.1 to 6. Further, during the course of
cross-examination of D.W.9 states that, on enquiry father of
the plaintiff told as he has already given legal share of the
plaintiff and she is no way concerned to the schedule
property, if so, then what prevented the plaintiff to file the
above numbered suit within three years from the date of
knowledge when first become known to her as required
under Article 59 of the Limitation Act by claiming the relief
of declaration to set aside the aforesaid sale transactions.
Further no reasons shown in the plaint for delay in filing the
suit. Cause of action shown in the plaint appears to be
imaginary and created for the purpose of the suit.
Accordingly, it can be held that, suit of the plaintiff is clearly
barred by time and without seeking the relief of declaration
38 O.S.No.6568/2012
to set aside the sale deeds, the suit of the plaintiff is also not
maintainable. Hence, I answer Issue No.5 in the negative.
42. Issue No.6:- With regard to the payment of
court fee is concern, it is contended in the written statement
that, valuation made and the court fee paid by the plaintiff is
insufficient. So, in a suit for partition, if the plaintiff averred
in the plaint that, they are in joint possession and enjoyment
of the suit schedule properties along with defendants/1 to 6,
he/she can file the suit by paying court fee as required
under Section 35(2) of the Act, accordingly the court fee paid
by the plaintiff is proper. Hence, I answer Issue No.6 in the
affirmative.
43. Issue No.7:- It is worth to note that, in view of
my discussion made supra, while dealing with Issue No.1 to
4, it is held that, plaintiff is not entitled for the relief of
partition and separate possession of her legal share as the
sale transactions of the year 1999 are binding on her, but, as
argued by the counsel for plaintiff another question that
arises before this court is, admittedly plaintiff being the
daughter of late Nanjappa was not the party to any of the
sale transactions. This being the fact, whether the plaintiff
being the daughter of Late Nanjappa is entitled for any share
in the suit schedule property or not? It is evident that, father
of the plaintiff was alive as on the date of filing the suit in the
year 2012 and thereafter he died. In this regard, it is settled
39 O.S.No.6568/2012
position of law as on today, as held by the Hon'ble Apex
Court in the case of Prakash and others Vs. Phulavathi and
others {(2016) 2 SCC 36} referred supra by the counsel for
plaintiff and defendant No.10 to 15, 17 and 19 that, the
provisions of the Hindu Succession (Amendment) Act, 2005,
applicable only when both the co-parcener and his
daughters alive on the date of commencement of the Act i.e.
on 09/09/2005 irrespective of date of birth of daughters.
But, as argued by the counsel for contesting defendants, it is
also equally settled that, by virtue of proviso to sub-section
(1) and main sub-section 5, the amended Section 6 of the
Act, disposition, alienation, partition which had taken place
before 20/12/2004 under unamended provision would
remain unaffected. In the case on hand it is not in dispute
that, aforesaid registered sale transactions have taken place
in the year 1999. So, now it is clear that, registered sale
transactions have taken place prior to the cut off date i.e.
20/12/2004. As such, even otherwise though plaintiff's
father was alive as on 09/09/2005 when the amended Act
came into force, but, for the aforesaid reasons it can be held
that, plaintiff being the daughter of late Nanjappa is not
entitled any share in the suit schedule property under the
notional partition also. Therefore, the theory of living
daughters of living co-parceners as urged by the plaintiff's
counsel also not made applicable to the facts of the case on
hand.
40 O.S.No.6568/2012
44. Apart from these aspects during the course of
cross-examination P.W. 1 admits that, her father and uncle
had other family properties and she has not brought the
same in common hotchpotch, but, she has filed the above
numbered suit claiming partition in alienated properties only
without inclusion of remaining family properties, as such in
view of the ratio laid down by our Hon'ble High Court in ILR
1998 KAR 681,( Sril Tukaram case) referred supra by the
counsel for contesting defendants suit for partition of
alienated items only without inclusion of all joint family
properties i.e. suit for partial partition is not maintainable.
On this aspect also the written argument filed by the counsel
for plaintiff is not tenable. More over during the course of
further cross-examination of P.W. 1 dated 04/07/2018
admits that, her mother is still alive and defendant No.1 to 7
had three sisters, but it appears that after death of defendant
No.1 father, the plaintiff has failed to add them as necessary
parties to the suit, as such, suit of the plaintiff also bad for
non-joinder of necessary parties. Therefore, having regard to
the facts and circumstances of the case and considering the
relationship between the parties, I am of the opinion that, the
41 O.S.No.6568/2012
suit of the plaintiff is liable to be dismissed without cost.
Hence, I answer Issue No.7 in the negative.
45. Issue No.8 :- For the foregoing reasons, I
proceed to pass the following :
O R DE R
The suit of the plaintiff is hereby dismissed.
No order as to cost.
Draw decree accordingly.
[ Dictated to the Stenographer directly on computer,
typed by her, corrected by me and then pronounced in the
Open Court on 11th day of September 2019 ].
[ C.D. KAROSHI ]
V ADDL.CITY CIVIL & SESSIONS
JUDGE
BENGALURU
****
ANNEXURE List of witnesses examined for the plaintiffs :
P.W.1 Smt. Mangala Gowramma List of witnesses examined for the defendant :42 O.S.No.6568/2012
D.W.1 Smt. Bhargavi.H.S. D.W.2 Smt. Lakshmi D.W.3 K. Mallesh D.W.4 Smt. C. Manjula D.W.5 K. Ramesh D.W.6 Smt. Yashodamma D.W.7 Smt. K. Vanamahalakshmi D.W.8 Smt. H. Ningamma D.W.9 D.H. Jaganath List of documents marked for the plaintiff :
Ex.P.1 Certified copy of the genealogical tree Ex.P.2 Certified copy of the RTC for the year 2011-12 Ex.P.3 Certified copy of the M.R.No.6/2006-07 Ex.P.4 Certified copy of the registered GPA dated 26/02/1995 Ex.P.5 Certified copy of the registered sale deed dated 19/05/1999 Ex.P.6 Certified copy of the registered sale deed dated 05/06/1999 Ex.P.7 Certified copy of the registered sale deed dated 17/06/1999 Ex.P.8 Certified copy of the registered sale deed dated 17/06/1999 Ex.P.9 Certified copy of the registered sale deed dated 26/06/1999 Ex.P.10 Certified copy of the registered sale deed dated 24/11/1999 Ex.P.11 Certified copy of the registered sale deed dated 15/12/1999 Ex.P.12 Certified copy of the registered sale deed dated 15/12/1999 Ex.P.13 Certified copy of the registered sale deed dated 07/03/2003 Ex.P.14 Certified copy of the registered sale deed dated 28/11/2003 Ex.P.15 Certified copy of the registered sale deed dated 06/07/2013 Ex.P.16 Certified copy of the registered sale deed dated 43 O.S.No.6568/2012 06/07/2013 Ex.P.17 Certified copy of the registered sale deed dated 12/06/2013 Ex.P.18 Certified copy of the registered sale deed dated 25/01/2016 Ex.P.19 Gazette notification dated 10/09/2003 44 O.S.No.6568/2012 List of documents marked for the defendant :
Ex.D.1 Certified copy of the registered sale deed dated 02/09/1957 Ex.D.2 Certified copy of the registered sale deed dated 24/11/1999 Ex.D.3 Permission letter to construct the house dated 04/12/1999 Ex.D.4 No objection letter issued by Talagatpura Grama Panchayth dated 06/12/1999 Ex.D.5 Assessment register extract for the year 2005-06 Ex.D.6 Demand register extract for the year 1999-2000 Ex.D.7 Sanction plan Ex.D.8 Estimate plan issued by engineer Ex.D.9 Loan statement extract Ex.D.10 Discharge letter issued by DHFC Ltd., Ex.D.11-20 Tax paid receipts (10) Ex.D.21 Form No.15 Ex.D.22-25 Encumbrance certificates (4) Ex.D.26 Form No.16 Ex.D.27 Certified copy of the demand register extract Ex.D.28 BESCOM receipt Ex.D.29 Electricity sanction letter Ex.D.30-33 BESCOM bills (4) Ex.D.34 Form No15 Ex.D.35-36 Photos (2) Ex.D.37 One C.D. Ex.D.38 Certified copy of the demand register extract for the year 1999-2000 Ex.D.39 Certified copy of the tax assessment register extract for the year 2001-02 Ex.D.40 Certified copy of the tax assessment register extract for the year 2005-06 Ex.D.41-44 Tax paid receipts (4) Ex.D.45-48 BESCOM bills (4) Ex.D.49-50 Photos (2) Ex.D.51 One C.D. Ex.D.52 Form No.16 Ex.D.53 Demand register extract for the year 2000-01 Ex.D.54-58 Tax paid receipts (5) 45 O.S.No.6568/2012 Ex.D.59 Sanction letter with respect of supply of electricity Ex.D.60-61 BESCOMD bills (2) Ex.D.62-63 Photos Ex.D.64 One C.D. Ex.D.65 Certified copy of the registered sale deed dated 17/06/1999 Ex.D.66-67 Assessment register extract (2) Ex.D.68-82 Tax paid receipts (15) Ex.D.83 Form No.15 Ex.D.84 Form No.16 Ex.D.85 BESCOM bill along with receipt Ex.D86-87 Photos (2) Ex.D.88 One C.D Ex.D.89 Certified copy of the registered sale deed 15/12/1999 Ex.D.90 Certified copy of the registered Gift Deed dated 07/03/2005 Ex.D.91-92 Assessment register extract (2) Ex.D.93-101 Tax paid receipts (9) Ex.D.102-103 Form No.15 (2) Ex.D.104 Electricity supply sanction letter issued by KEB Ex.D.105 BESCOM bills along with receipt Ex.D.106-107 Photos (2) Ex.D.108 One C.D. Ex.D.109 Certified copy of the sale deed dated 30/06/1999 Ex.D.110-112 Tax paid receipts (3) Ex.D.113-114 Form No.16(2) Ex.D.115 Form No.15 Ex.D.116 Original copy of the sale deed dated 15/12/1999 Ex.D.117-199 Tax paid receipts (3) Ex.D.120 Form No.15 Ex.D.121 Form No.16 ( C.D.KAROSHI ) V ADDL.CITY CIVIL JUDGE BANGALORE *** 46 O.S.No.6568/2012 Judgment pronounced in Open Court vide separate order:-
O R DE R The suit of the plaintiff is hereby dismissed.
No order as to cost.
Draw decree accordingly.
[ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU