Bangalore District Court
) Mr. Keshavan B S/O Late Balakrishnan vs ) Mr. Vignesh Kumar on 16 June, 2020
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
O.S.No.26097/2016
Dated this the 16th day of June, 2020
Plaintiff:- 1) Mr. Keshavan B S/o Late Balakrishnan,
aged 66 years, residing at No. A-10,
Barathnagar, BEML Nagar Post, KGF
Post, KGF 563 115.
2) Ms. Sathyavani. B. D/o Late Balakrishnan,
aged 53 years, No.838/11, 17th Main,
Goluka I stage, 1st phase, Mathikere,
Bangalore 560 054.
(Rep by Advocate for Plaintiff Sri.J.Ravindra & Rakesh. S.)
V/S
Defendant/s:- 1) Mr. Vignesh Kumar,
son of not known to the plaintiffs No.64,
aged 22 years, No.64, 4th cross,
Royal County Lay out,
Parappana Agrahara,
Electronic City, Bangalore 100.
2) Mr. M. Chandrashekar S/o Muniswamy,
aged 65 years, No.64, 4th cross,
Royal county Lay out, Parappana
Agrahara, Electronic City, Bangalore 100.
D1 and D2 by Sri V. Srinivasan and Co., Advocates
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Judgment O.S.No.26097/2016
Date of Institution of the suit 03/12/2016
Nature of the (Suit or pro-note, suit for declaration and
possession, suit for injunction, etc.)
Permanent injunction
Date of the commencement of recording of the Evidence. 06/02/2018
Date on which the Judgment was pronounced. 16/06/2020
Year/s Month/s Day/s
Total duration 03 06 13
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
.
Mayohall Unit: Bengaluru
3
Judgment O.S.No.26097/2016
:J U D G M E N T:
The plaintiffs filed suit against the defendants for permanent injunction.
2. The Brief facts of plaint averments is as under:
The plaintiffs submit that their sister B. Kalyani had purchased suit schedule property mentioned below out of her own income by way of sale deed No.BNG(U) BLR(S) 2248/2005-2006, but there was error in the sale deed, hence it was rectified by deed No.BNG(U)BLR(S)2491/2005- 2006.
:SUIT SCHEDULE PROPERTY:
All that piece and parcel of the immovable property bearing residential property old No.431, New Bommanahalli CMC No.431/341, Khatha No.42, situated at Channakeshavanagar, Singasandra village, Begur Hobli, 4 Judgment O.S.No.26097/2016 Bangalore South Taluk, within the jurisdiction of Bommanahalli CMC, Measuring East to west 40 feet, North to South 30 feet, bounded on the East by Road, west by private property, North by site No.340, South by site No.342.
2. The plaintiffs further submit that their sister B. Kalyani had constructed residential house in the suit schedule property and was residing with plaintiff No.2. The said B.Kalyani was married with one M.Chandrshekaran and later M.Chandrashekaran had deserted her twelve years ago and his whereabouts were not known to anybody, later they learnt that he had married to some other lady and he has two children out of the wedlock. Whereas B.Kalyani and M.Chandrashekaran had no children during their wedlock period. Hence plaintiffs and other two brothers were supportive to her. That from the year 2000 she had supported two street children (both aged about 5 years) and nurtured them keeping them at home, since they had no 5 Judgment O.S.No.26097/2016 father or mother alive. B.Kalyani had tried to educate them, but one of them had left the house in the year 2002 and he was not to be heard till this day, the other boy is defendant No.1 had stayed back and lived with the plaintiffs and their sister Kalyani. Whereas the plaintiffs and the entire family members and the relatives had treated the defendant No.1 as one of the family member and had catered for the day to day need of the defendant No.1. That Kalyani died on 21/12/2015, hence the plaintiffs and other two brothers had performed the last rights as per the Hindu custom and rites, since the defendant No.1 was looked after by the said Kalyani with love and affection, the plaintiffs and other brothers requested the defendant No.1 to perform the last rights of their sister Kalyani inspite of the other relatives objecting to the said move of allowing the defendant No.1 to perform the last rites of Kalyani. That said B.Kalyani had not left any testamentary document such as WILL or any other document pertaining to the suit schedule property and 6 Judgment O.S.No.26097/2016 other belongings. The plaintiff No.2 was physically handicapped who was in the care and custody of B.Kalyani.
The other two brothers namely Chandramurty and Meganathan had executed a release deed pertaining to the suit schedule property in favour of the plaintiffs No.1 & 2 out of their own free will and desire and they gave up all their right, title and interest whatever in the suit schedule property. Where as the plaintiffs are in possession of the suit schedule property as lawful owners after demise of their sister.
3. The plaintiffs further submits that some real estate people came near suit property and enquired with regard to the owner of the property, when they asked as to why they were wanting to see the owner, they informed that plaintiff No.1 who had come to pay tax towards the property that the owner of the property Vignesh kumar had informed that the suit property was for sale, the said fact was rude shock to 7 Judgment O.S.No.26097/2016 the plaintiffs, the plaintiffs had informed that they are owners of the suit property and shown the release deed dt.18/02/2016, then the real estate agents shocked and shown the release deed executed by defendant No.2 in favour of defendant No.1 on 12/07/2016 in respect of suit schedule property. The defendant No.1 demanded share in the suit schedule property, but the plaintiffs and other brothers informed the defendant No.1 to stay with them, and at the right time they shall give the share, but the defendant No.1 refused. The cause of action to file suit arose to the plaintiff on 20/11/2016 when they had come to know about the fraudulent release deed executed between defendant No.2 in favour of defendant No.1 in order to deprive the plaintiffs from inheriting their sister's property. The plaintiffs pray to decree the suit restraining the defendants from encumbering the suit schedule property in any manner. 8
Judgment O.S.No.26097/2016
4. The defendants No.1 & 2 have filed written statement. The defendants No.1 &2 have admits plaint para No.2 and denied plaint para Nos.3 to 6. The defendants No.1& 2 submits that plaint para No.7 that the plaintiffs and entire family members and relatives had treated the defendant No.1 as one of the family members and had catered the defendant No.1 as one of the family members and had catered for the day to day needs of the defendant No.1 is only because of the defendant No.1 is the son of Kalyani and defendant No.2. This shows the defendant No.1 is son of Kalyani and defendant No.2. The averments about death of Kalyani on 21/12/2015 in plaint para No.8 and plaintiffs and other two brothers had performed the last rights as per the Hindu custom and rites, since defendant No.1 was looked after by the said Kalyani with love and affection, the plaintiffs and other brothers thought it fit to request the defendant No.1 to perform the last rights of their sister Kalyani inspite of the other relatives objecting to said move 9 Judgment O.S.No.26097/2016 of allowing the defendant No.1 to perform the last rites of Kalyani inspite of the other relatives objecting to the said move of allowing the defendant No.1 to perform the last rites of Kalyani are all false. The defendant no.1 was the lawful son of late Kalyni and only son can perform rituals and ceremony of his mother that is late Kalyani. Hence the plaintiffs have not conducted the rituals and the depiction of the narration of events are false and imaginative. The defendant No.1 was the son of late Kalyani. Kalyani had not left any testamentary such as Will or any other document is subject to proof. In fact the plaintiffs have illegally taken away all gold ornaments from the house, which belongs to late Kalyani, stealthily, when the death ceremony of late Kalyani was conducted, which belongs to defendant No.1. It is false that plaintiff No.2 is handicapped and she was under custody of Kalyani. The suit of the plaintiff is not maintainable either in law or on facts.
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Judgment O.S.No.26097/2016
5. The defendants further submit that as per para of plaint the other two brothers namely Chandramurty and Meganathan had executed a release deed pertaining to the suit schedule property in favour of the plaintiffs No.1 & 2 out of their own free will, and desire and they gave up all their right, title and interest whatever in the suit schedule property, but the said document is sham and void document. It is false that plaintiffs are in possession of suit schedule property after death of their sister. The further allegation that defendant No.1 demanded share in the suit schedule property, but the plaintiffs and other brothers informed the defendant No.1 to stay with them, and at the right time they shall give the share, but the defendant No.1 refused are all false. On the contrary the defendant No.1 has share in the property and need not ask any person for partition. The defendants denied other allegation of plaint and also denied the alleged cause of action.
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Judgment O.S.No.26097/2016
6. The defendants further submits that the allegation of the plaint that some real estate people came near suit property and enquired with regard to the owner of the property, when they asked as to why they were wanting to see the owner, they informed that plaintiff No.1 who had come to pay tax towards the property that the owner of the property Vignesh kumar had informed that the suit property was for sale, the said fact was rude shock to the plaintiffs, the plaintiffs had informed that they are owners of the suit property and shown the release deed dt.18/02/2016, then the real estate agents shocked and shown the release deed executed by defendant No.2 in favour of defendant No.1 on 12/07/2016 in respect of suit schedule property as all false. In fact the defendant No.1 is owner and in possession of the suit schedule property. The defendant No.2 as father of defendants No.1 executed release deed of suit property in favour of defendant No.1. The defendant No.2 is residing with defendant No.1 and this fact is well known to the 12 Judgment O.S.No.26097/2016 plaintiffs. The defendants further submits that they are owners and in possession of suit property. The plaintiffs are not owners and not in possession of suit property. Hence the simple suit for injunction is not maintainable without declaratory relief. The defendants No.1 & 2 prays to dismiss the suit with costs.
7. On the basis of above pleadings following Issues are framed:-
:ISSUES:
(1) Whether the plaintiffs proves that the defendants are to be restrained from encumbering the suit schedule property? (2) Whether the plaintiff proves that they are entitled to the reliefs as sought for in the plaint?
(3) What decree or order?
8. The plaintiff No.1 examined as PW1 and marked documents at ExP1 to ExP18 and closed the plaintiff side evidence. Inspite of opportunity given by this court, the 13 Judgment O.S.No.26097/2016 defendants have not led any evidence and not marked any documents.
9. The plaintiff counsel argued. Inspite of opportunity given there is no arguments on defendants side. Perused the records.
10. My finding on the above issues are:-
Issue No.1) In Negative Issue No.2) In Negative Issue No.3) See final order for following:
:REASONS:
11. Issues No.1 & 2:
The plaintiff No.1/Keshavan S/o Late Balakirshanan filed his affidavit in lieu of examination in chief as PW.1 and deposed evidence that the plaintiffs that their sister B. Kalyani had purchased suit schedule property out of own income by way of sale deed No.BNG(U) BLR(S) 14 Judgment O.S.No.26097/2016 2248/2005-2006, but there was error in the sale deed, hence it was rectified by deed No.BNG(U) BLR(S)2491/2005- 2006. The PW.1 further deposed that their sister B.Kalyani had constructed residential house at the suit schedule property and was residing with plaintiff No.2. The said B.Kalyani was married with one M.Chandrshekaran and later M.Chandrashekaran had deserted her twelve years ago and his whereabouts were not known to anybody, latter they learnt that he had married to some other lady and he has two children out of the wed lock. Whereas B.Kalyani and M.Chandrashekaran had no children during their wedlock period. Hence plaintiffs and other two brothers were supportive to her. That from the year 2000 she had supported two street children (both aged about 5 years) and nurtured them keeping them at home, since they had no father or mother alive. B.Kalyani had tried to educate them, but one of them had left the house in the year 2002 and he was not to be heard till this day, the other boy is defendant 15 Judgment O.S.No.26097/2016 No.1 had stayed back and lived with the plaintiffs and their sister Kalyani. Whereas the plaintiffs and the entire family members and the relatives had treated the defendant No.1 as one of the family member and had catered for the day to day need of the defendant No.1. That Kalyani died on 21/12/2015, hence the plaintiffs and other two brothers had performed the last rights as per the Hindu custom and rites, since the defendant No.1 was looked after by the said Kalyani with love and affection, the plaintiffs and other brothers requested the defendant No.1 to perform the last rights of their sister Kalyani inspite of the other relatives objecting to the said move of allowing the defendant No.1 to perform the last rites of Kalyani. That said B.Kalyani had not left any testamentary document such as WILL or any other document pertaining to the suit schedule property and other belongings. The plaintiff No.2 was physically handicapped who was in the care and custody of B. Kalyani. The other two brothers namely Chandramurty and 16 Judgment O.S.No.26097/2016 Meganathan had executed a release deed pertaining to the suit schedule property in favour of the plaintiffs No.1 & 2 out of their own free will, and desire and they gave up all their right, title and interest whatever in the suit schedule property. Where as the plaintiffs are in possession of the suit schedule property as lawful owners after demise of their sister. The PW.1 further deposed that some real estate people came near suit property and enquired with regard to the owner of the property, when they asked as to why they were wanting to see the owner, they informed that plaintiff No.1 who had come to pay tax towards the property that the owner of the property Vignesh kumar had informed that the suit property was for sale, the said fact was rude shock to the plaintiffs, the plaintiffs had informed that they are owners of the suit property and shown the release deed dt.18/02/2016, then the real estate agents shocked and shown the release deed executed by defendant No.2 in favour of defendant No.1 on 12/07/2016 in respect of suit 17 Judgment O.S.No.26097/2016 schedule property. The defendant No.1 demanded share in the suit schedule property, but the plaintiffs and other brothers informed the defendant No.1 to stay with them, and at the right time they shall give the share, but the defendant No.1 refused. The cause of action to file suit arose to the plaintiff on 10/11/2016 when they had come to know about the fraudulent release deed executed between defendant No.2 in favour of defendant No.1 in order to deprive the plaintiffs from inheriting their sister's property. The defendant No.1 demanded share in the suit schedule property, but the plaintiffs and other brothers informed the defendant No.1 to stay with them, and at the right time they shall give the share, but the defendant No.1 refused. The cause of action to file suit arose to the plaintiff on 20/11/2016 when they had come to know about the fraudulent release deed executed between defendant No.2 in favour of defendant No.1 in order to deprive the plaintiffs from inheriting their sister's property. The PW.1 prays to 18 Judgment O.S.No.26097/2016 decree the suit restraining the defendants from encumbering the suit schedule property in any manner. Hence the plaintiff has filed this suit for permanent injunction against the defendant. The PW.1 prays to decree the suit as prayed in the plaint.
12. The plaintiffs have to prove that they are owners and in possession and enjoyment of suit property, but the defendant No.1 is trying to mutate the suit property in others name and hence they are entitle for the relief as claimed in the plaint. In support of oral evidence the PW.1 marked documents ExP1 to ExP18. The ExP3 is original sale deed dt.28/04/2005 executed by Chandra Reddy S/o Venkata Reddy in favour of K.Kalyani Chandrashekar W/o Chandrashekhar in respect of suit property and ExP4 is rectification in the said sale deed ExP3 regarding name B. Kalyani Chandrashekar instead of K.Kalyani Chandrashekar. The ExP5 is death certificate of B.Kalyani 19 Judgment O.S.No.26097/2016 W/o M.Chandrashekhar, as per it she died on 21/12/2015. The ExP6 is release deed dt.18/02/2016 executed by Chandramurthy B and Meganathan B Sons of late Balakrishnan in favour of plaintiff No.1 &2 in respect of suit schedule property. The ExP8 is attestation of family tree of plaintiffs family and ExP7 is affidavit of Meghanathan about their family tree. The ExP9 is identity card of B.Kalyani. ExP10 is condolence information of late B.Kalyani and ExP11 is Obsequies ceremony of late B.Kalyani. The ExP12 is Election identity card of M.Chandrashakarn M and ExP13 is Election identity card of Sharada, ExP14 is Election identity card of Mythali Priyanka. The ExP15 is contract agreement between B.Kalyani and Dharma. The ExP16 is rental agreement executed by B.Kalyani in favour of Manmohan Jha. The ExP18 is application form for closure/surrender of telephone of M.Chandrashekar.
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Judgment O.S.No.26097/2016
13. The ExP1 is certified copy of sale deed dt.06/09/2017 executed by defendant No.1 in favour of R.Venkatesh S/o Late Ramaiah in respect of property. The ExP2 is encumbrance certificate, where it is mentioned that the defendant No.1 sold suit property to R.Venkatesh S/o Late Ramaiah.
14. The plaintiffs have produced ExP8 Attestation of family tree issued by Deputy Tahsildar, Bangalore North Taluk, as well as ExP7 Family tree by way of affidavit of Sri Meghanathan. B., showing that late B. Kalyani was her family member. As per ExP3 sale deed and ExP4 rectification deed the said B. Kalyani has purchased the suit schedule property from one Chandra Reddy S/o Venkata Reddy and as per ExP5 death certificate the said B. Kalyani died on 21/12/2015. The plaintiff's contention that the said B. Kalyani, died without executing any kind of documents like WILL etc. The plaintiff's contention that after death of 21 Judgment O.S.No.26097/2016 B. Kalyani the plaintiff No.1 being the brother of plaintiff No.2 being sister of said B. Kalyani are the owners in possession and enjoyment of the suit schedule property and other brothers of B. Kalyani by name Chandramurthy. B and Meghanathan. B., have executed release deed in respect of the suit schedule property in favour of the plaintiff on 18/02/2016 as per ExP6. The plaintiff further contention that B. Kalyani was married with Chandrashekar and there were no children, but she had supported two street children who had no parents and out of them one boy ran away and another boy is defendant No.1 and defendant No.1 was treated as family member of the plaintiffs and B. Kalyani. The plaintiff's further contention that on 21/12/2015, B. Kalyani died and plaintiff's family members allowed defendant No. 1 for performing the ceremony of B. Kalyani even though other relatives have objected. The defendant No.1 afterwards demanded share in the suit schedule property and he was advised by the plaintiff and other 22 Judgment O.S.No.26097/2016 relatives that partition will be given in due course. But the said defendant No.1 did not hear their words. The defendant No.2 executed release deed of suit schedule property in favour of the plaintiff behind back of the plaintiff. Now the plaintiff prays to restrain the defendants from encumbering the suit schedule property in any manner.
15. Though defendants 1 and 2 appeared through their counsel and filed their written statement, they have not denied the relationship of B. Kalyani with the plaintiff, but defendant No.1 denied other allegations made by the plaintiff and he has contended that he is the son of Kalyani and defendant No.2 and after death of Kalyani, defendant No.2 executed release deed in respect of the suit schedule property in his favour and he has become owner of the suit schedule property. But the plaintiffs have not produced any documents to show that after the death of B. Kalyani they have made attempt to get mutate the suit schedule property 23 Judgment O.S.No.26097/2016 in their names as the plaintiffs themselves contended that Kalyani died without executing any kind of documents, i.e., will, etc. Hence, the plaintiff ought to have prove their ownership and possession over the suit schedule property by way of documentary evidence. But, the documents produced by the plaintiff discussed above does not disclose that after the death of Kalyani the suit schedule property transferred in their names and they have become absolute owners of the suit schedule property. Admittedly Chandrashekar was husband of B. Kalyani. The said Chandrashekar is father of defendant No.1. After the death of Kalyani, her husband and children got right over the suit schedule property. But the plaintiff have not produced any documents to show that they were in possession and enjoyment over the suit schedule property as owners as they acquired the property by inheritance through Kalyani and they are entitle to get the suit schedule property by inheritance from B. Kalyani. Therefore the plaintiffs have utterly failed to prove their 24 Judgment O.S.No.26097/2016 ownership and possession over the suit schedule property. Hence they are not entitle for the relief as claimed in the plaint. The plaintiffs failed to prove Issues No.1 and 2. Therefore I answer Issues No.1 & 2 in Negative.
16. Issue No3. :-
In view of above discussion I proceed to pass following:
:ORDER:
The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, typed by him, then corrected and signed and pronounced on this 16th day of June, 2020).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE 25 Judgment O.S.No.26097/2016 :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1 : Keshavan S/o late Balakrishnan DOCUMENTS MARKED FOR THE PLAINTIFFS: ExP1 : Certified copy of sale deed ExP2 : Encumbrance certificate ExP3 : Sale deed ExP4 : Rectification deed ExP5 : Death certificate of Kalyani ExP6 : Deed of Release ExP7 : Family tree by way of affidavit ExP8 : Attestation of family tree ExP9 : ID card of Kalyani ExP10 & 11: Condolence notice and obsequies card
ExP12 to 14 : Voters identification card Chandrashekar, Sharada, Mythili, Priyanka ExP15 to ExP17 Contract agreement, labour and material contract agreement and rental agreements.
ExP18 Application given to BSNL for
surrender of land line phone.
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Judgment O.S.No.26097/2016
WITNESSES EXAMINED FOR THE DEFENDANTS:
--NIL--
DOCUMENTS MARKED FOR THE DEFENDANTS:
--NIL--
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.27
Judgment O.S.No.26097/2016
16/06/2020
Plaintiff by Sri JR
Defendant 1 and 2 by Sri VS
For Judgment
Judgment pronounced in the open court
[vide separate detailed judgment]
The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE