Bangalore District Court
Smt. Nirmala vs Smt. Jayamma on 21 July, 2018
IN THE COURT OF THE XXXIV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU
Dated this the 21st day of July, 2018
Present :-
Sri.Shivanagouda, B.Com. LL.B., (Spl.)
XXXIV Addl. City Civil & Sessions Judge,
Bengaluru.
O.S. NO.1209/2013
Plaintiffs :- 1. Smt. Nirmala
D/o. Late Krishnamurthy
Aged about 38 years,
2. Smt.Mamatha
D/o. late Krishnamurthy
Aged about 35 years,
3. Sri.Suresh Kumar
S/o. Late Krishnamurthy
Aged about 32 years,
4. Sri.Naveen Kumar
S/o. Late Krishnamurthy
Aged about 29 years,
All are residents of
Munnekolalu Village,
Varthur Hobli,
Bangalore East Taluk.
(Sri.N.M.Satish, Advocate)
V/s
2 O.S.1209/2013
Defendants :- 1. Smt. Jayamma
W/o. Late Krishnamurthy
Aged about 58 years,
Residing at Munnekolalu Village,
Varthur Hobli,
Bangalore East Taluk.
2. Sri. Vijayakumar
S/o. late Obalappa
Aged about 55 years,
Residing at No.454,
2nd Cross, Sapthagiri Layout,
S.G.R. College Main Road,
Near Railway Track,
Munnekolalu,
Marathalli Post,
Bengaluru - 560037.
3. Smt.Padmavathi
W/o. Vijayakumar
Aged about 49 years,
Residing at No.454,
S.G.R. College Road,
2nd Cross, Munnekolalu,
Marathahalli Post,
Bengaluru - 560037.
(D.1 :- Sri.A.N.Jagannatha Reddy,
Advocate)
(D.2 & D.3 :- Sri.M.Rajanna, Advocate)
Date of Institution of the suit : 11/02/2013
Nature of the suit : Recovery of money
Date of commencement of : 5/3/2015
recording of evidence
Date on which the judgment : 21/7/2018
was pronounced
Total Duration : Year/s Month/s Days
05 05 09
3 O.S.1209/2013
JUDGMENT
1. This is a suit filed by the plaintiffs against the defendants to effect partition and separate possession of plaintiffs 1/5th share in respect of "A" schedule property, to declare the registered GPA dt. 19/8/1996 in respect of "B" schedule property is not binding on the plaintiffs and such other reliefs.
2. Schedule "A" property and schedule "B" property are :-
Schedule "A" property All that piece and parcel of the property of agriculture land bearing Sy.No.118, measuring 0.09 guntas out of 35 guntas of land situated at Munnekolalu Village, Varthur Hobli, Bangalore East Taluk and bounded on :-
East by :- Gramathana
West by :- Boda Reddy and Abbaiah Reddy's
Property
North by :- N.Muninarayana Reddy & others
South by :- Gowdara Annaiah Reddy & others
Property.
Schedule "B" property
All that piece and parcel of the property in respect of land measuring to an extent of 4.75 guntas including 1.8 guntas of passage out of schedule "A" property 4 O.S.1209/2013 situated at Munnekolalu Village, Varthur Hobli, Bangalore East Taluk bounded on :-
East by :- Gramathana
West by :- Remaining portion in same Sy.No.
North by :- N.Muninarayana Reddy & others
property
South by :- Gowdara Annaiah Reddy & others
Property.
3. The brief facts of the case of the plaintiff are :-
That the plaintiffs are the brothers and sisters and they are the children of late Krishnamurthy and defendant No.1 being their mother. Suit schedule "A" property was the absolute property of the father of the plaintiffs and he was in possession of the same during his life time. After the demise of Krishnamurthy, plaintiffs and defendant No.1 have succeeded to the schedule "A" property as his Class-I legal heirs and they were put in possession and enjoyment of the schedule "A" property as tenants in common. They have further submitted that after the demise of late Krishnamurthy, katha was got changed to the name of their mother i.e., defendant No.1. In order to deprive the legitimate share of the plaintiffs over the suit schedule "A" property, defendant No.1 colluded with defendant No.2 and defendant No.1 executed a registered General 5 O.S.1209/2013 Power of Attorney in favour of defendant No.2 on 19/8/1996 in respect of land measuring to an extent of 4.75 guntas including 1.8 guntas of passage out of "A" schedule property i.e., "B" schedule property.
4. They have further submitted that after they came to know about the execution of General power of attorney in favour of defendant No.2 by the defendant No.1. When they questioned the said fact with defendant No.1 she has given evasive replies and the said General Power of Attorney has been executed by the defendant No.1 without the consent, concurrences and knowledge of the plaintiffs and thus the said General Power of Attorney is not binding on the plaintiffs. Hence the suit.
5. After service of summons, defendants appeared through their counsels. Defendant No.2 and 3 have filed written statement.
The brief facts of the written statement are as follows :-
The suit filed by the plaintiffs are not sustainable either in law or on facts. At the instigation of first defendant who being the mother of the plaintiffs, plaintiffs have filed a collusive suit. They have further contended that the plaintiffs have deliberately and intentionally not included several other properties in the suit. The 6 O.S.1209/2013 plaintiffs and the first defendant are neither in physical possession or constructive possession of the suit schedule "B" property and the suit schedule "B" property is in exclusive possession and enjoyment of the third defendant and accordingly the valuation of the suit and the payment of the court fee on the plaint under Section 35 (2) of the C.P.C. is not proper and correct. They have further contended that father of the plaintiffs had not only inherited the suit schedule property bearing Sy.No.118, but also inherited other lands bearing Sy.No.74/1, measuring 3 acres 13 guntas, Sy.No.86/1, measuring 3 acres 39 guntas, Sy.No.114/4 measuring 1 acre as per the oral partition between the father of the plaintiffs by name Krishnamurthy and his brothers and the said lands are not included in the suit.
6. They have further contended that the land measuring an extent of 1 acre in Sy.No.74 has been sold in favour of Vasantha Harish under a sale deed dated 30/7/2004. In the land in Sy.No.114 an extent of 8 acres 2.02 guntas has been sold in favour of Smt.N.Nagarathnamma wife of Sri.K.S.Muni Reddy under a sale deed dt. 31/8/2002. The suit schedule "A" property of which the suit schedule "B" property is a portion thereof is not the individual 7 O.S.1209/2013 property of the father of the plaintiffs and it is an ancestral property as the father of the plaintiffs got said land along with other lands in the oral partition between himself and his brothers.
7. They have further contended that defendant No.1 for the legal necessity and for the benefit of the family sold the suit schedule "B" property to the defendant No.2 by receiving total sale consideration of Rs.34,000/- on 15/9/1989 and on the same day first defendant delivered the vacant possession of the "B" schedule property and on the same day the first defendant had executed General Power of Attorney in favour of second defendant to deal with the schedule "B" property. The second defendant constructed an asbestos sheet roofing house measuring 20 x 18 ft in schedule "B" property and started residing in the schedule property from 1989 onwards. On the demand made by the first defendant to pay a higher sale consideration, on 19/8/1996 the defendant No.2 paid a sum of Rs.2,00,000/- by cash to the first defendant and first defendant had executed an agreement of sale on 19/8/1996 in favour of second defendant and on the same day also the first defendant executed registered General Power of Attorney in respect of the schedule "B" property in favour of the second defendant.8 O.S.1209/2013
8. They have further contended that from 15/9/1989 second defendant is in possession and enjoyment of the schedule "B" property. Under a registered sale deed that on 5/2/2001 defendant No.2 sold the schedule "B" property to the defendant No.3 and ever since 5/2/2001 the defendant No.3 is in possession and enjoyment of the schedule "B" property as an absolute owner.
That in the year 2012 defendant No.3 demolished the old house, obtained plan and license and constructed a ground floor and first floor residential house and obtained electricity and water connection prior to filing of the suit itself and third defendant upon coming to know about filing of the suit, got herself impleaded in the suit. Defendant No.3 has admitted the relationship of the plaintiffs and defendant No.1. Averments of para No.4, para No.5, para No.6 and para No.7 of the plaint are denied as false. The defendant has also contended that the suit is barred by the law of limitation. Thus prays to dismiss the suit of the plaintiffs with cost.
9. Based on the above pleadings, following issues are framed :-
9 O.S.1209/2013
1. Whether the plaintiff proves that suit schedule property is the undivided joint family property of plaintiff and defendant No.1?
2. Whether plaintiff proves that the registered GPA dated 19/8/1996 executed by first defendant in favour of 2nd defendant is not binding on plaintiffs?
3. Whether the defendant No.3 proves that he is bonafide purchaser of "B" schedule property by sale deed dated 5/2/2001 executed by 1st defendant through GPA holder 2nd defendant and is in possession of the property?
4. Whether defendant No.3 proves that suit is not maintainable for non inclusion of the other family properties?
5. Whether the suit is not maintainable for non joinder of necessary parties?
6. Whether plaintiff is entitled for relief of partition and separate possession as claimed?
7. Whether court fee paid is proper?10 O.S.1209/2013
8. What decree or order?
10. On behalf of the plaintiffs, fourth plaintiff is examined as P.W.1 and produced 6 documents and got marked as Ex.P.1 to Ex.P.6. On behalf of defendants, defendant No.2 is examined as D.W.1 and produced 53 documents and got marked as Ex.D.1 to Ex.D.53.
11. Heard arguments.
12. My answer to the above points are as follows :-
ISSUE NO.1 :- In the negative,
ISSUE NO.2 :- In the negative,
ISSUE NO.3 :- In the affirmative,
ISSUE NO.4 :- In the affirmative,
ISSUE NO.5 :- In the affirmative,
ISSUE NO.6 :- In the negative,
ISSUE NO.7 :- In the negative,
ISSUE NO.8 :- As per final order
For the following
11 O.S.1209/2013
REASONS
13. ISSUE NO.1 TO 5 :- These five issues are inter
related to each other and in order to avoid repetition of facts, they are taken together. In support of the plaintiffs' case, fourth plaintiff has sworn to an affidavit in lieu of examination-in-chief. In his examination-in-chief he has reiterated the contents of the plaint averments. In the further examination-in-chief has marked the family tree at Ex.P.1, RTC extract at Ex.P.2, M.R. at Ex.P.3 and G.P.A. at Ex.P.4. Copy of sale deed is marked as Ex.P.5 and original endorsement is at Ex.P.6. On perusal of Ex.P.1 it is clear that deceased Krishnamurthy and defendant No.1 are the parents of the plaintiffs No.1 to 4. Defendant in his written statement has admitted the said fact. Ex.P.2 is the original RTC extract for the year 2012-13 pertaining to Sy.No.118 of Munnekolalu village, Varthur Hobli, Bangalore East Taluk measuring 36 guntas and in column No.9 name of defendant No.1 to an extent of 9 guntas is mentioned showing that defendant No.1 is the owner of the said extent of land. Ex.P.3 is the certified copy of mutation register extract wherein the extent of 9 guntas has been mutated in the name of defendant No.1 wife of deceased Krishnamurthy, father of plaintiffs. Ex.P.4 is the certified copy of registered general power of 12 O.S.1209/2013 attorney in the month of August 1996 executed by defendant No.1 in favour of defendant No.2 to deal with schedule "B" property. Ex.P.5 is the certified copy of the registered sale deed dated 5/2/2001 executed by defendant No.1 in favour of defendant No.2 for a sale consideration of Rs.70,000/-. On perusal of Ex.P.6, it is seen that defendant No.2 has sold the schedule "B" property to the defendant No.3 and has handed over the vacant possession of the schedule "B" property and also the relevant original documents of the schedule "B" property to the defendant No.3. Ex.P.6 is the endorsement given by the Sub-Registrar, Sub-Registrar Office, Bommanahalli dated 17/3/2015 stating that the information sought by the plaintiff No.4 about the certified registered copy with regard to 6090/1974-75 book-I volume 1096 page No.227-239 dated 18/10/1974 is not possible to be provided due to dilapidated/damaged condition.
14. In the cross-examination of P.W.1 it has been suggested by the advocate for the defendant that soon after the death of the father of the plaintiffs No.1 to 4 by name Krishnamurthy the mutation in respect of land bearing Sy.No.118 and also Sy.No.74/1 to the extent of 15 guntas of Munnekolalu village was got entered into the name of the mother of plaintiffs No.1 to 4. But the plaintiffs 13 O.S.1209/2013 No.1, 2, 3 and 4 were admittedly minors as per the admission made in the cross-examination at the time of said mutation and also at the time of death of their father and soon after the taking possession of the said property by the defendant No.1-mother, plaintiffs No.1 to 4 being minors were not having knowledge of the sale made by the first defendant mother is for the family necessity or not. In Hindu law the kartha has got the power to alienate the property for the family necessity and it has been admitted in the cross-examination of P.W.1 that "it is true that my mother was looking after my family after death of my father. It is true that, my mother got entered her name in respect of 9 guntas of property in Sy.No.118 after death of my father." This clearly goes to show that there is an admission on the part of the plaintiffs that the defendant No.1 has got the property subsequently after the demise of the father of plaintiffs. It is also further clear in the cross- examination of P.W.1. There is a confrontation by the defendant advocate in the cross-examination all along. The confrontation is in respect of the documents wherein the legal aspects were involved and he has suggested that the mother of P.W.1 i.e., first defendant has executed Ex.D.1 and further it is confronted that Ex.D.1(a) is signature of their mother. Witness admitted the same and the said 14 O.S.1209/2013 document Ex.D.1. Ex.D.2 is the General Power of Attorney. The said document is also confronted in the said cross-examination. Witness has admitted as there is a signature on the document as per Ex.D.2(a) which belongs to his mother. Further there is a also confrontation in the cross-examination by showing Ex.D.3 and it is also confronted stating that the said agreement of sale clearly reflects that the said Smt.Jayamma the first defendant, mother of the P.W.1 has sold the property by way of agreement of sale for consideration of Rs.2,34,000/- in favour of Sri.Vijayakumar, defendant No.2 for consideration of Rs.2,34,000/-. It is also further stated in the said agreement of sale that the vendor has executed General Power of Attorney in the office of Sub-Registrar in respect of suit schedule "B" property in favour of the purchaser and in the said confrontation by showing it to the witness in the witness box, the witness has also admitted in the cross-examination the signature of defendant No.1 as per Ex.D.3(a).
15. It is also further clear from the evidence in the cross- examination of P.W.1 that he has also admitted during the confrontation of the documents Ex.D.4 which was also executed by mother and her signature bears Ex.D.4(a). Ex.D.5 is the General Power of Attorney and signature of the mother is marked as 15 O.S.1209/2013 Ex.D.5(a). Ex.D.6 is the registered sale deed copy executed by the first defendant by giving General Power of Attorney through Sri.Vijayakumar, defendant No.2 and the said suit schedule "B" property was sold out by defendant No.2 in favour of third defendant. In this case the second defendant and third defendant are husband and wife. Now, at this stage it is clear that the said schedule "B" property measuring 3996 Sq.Ft. of Munnekolalu was sold for Rs.70,000/-. Ex.D.7 is the photograph. Ex.D.8 is the copy of G.P.A. dated 23/9/1991 executed in favour of Smt.Chokkammal. In the said document the signature of mother of P.W.1 is marked as Ex.D.8(a). The RTC extracts are Ex.D.9 to Ex.D.13 wherein on perusal of the said document the name of the first defendant is appearing in respect of Sy.No.74/2 for the year 2013-14 to the extent of 9 guntas and defendant has also paid electricity bill amount in respect of the suit schedule "B" property.
16. In the further cross-examination also it has been suggested to P.W.1 that second defendant has constructed a house on the basis of G.P.A. measuring 20 ft. x 20 ft. Witness has denied the same. Further also it is suggested that soon after the construction of house defendant No.2 has taken electricity connection to the schedule "B" property, P.W.1 has denied the 16 O.S.1209/2013 same. The witness has admitted to the fact that defendant No.3 has constructed house in "B" schedule property measuring 4000 Sq.Ft. in ground floor and 4,500 Sq.Ft. in 1st floor and has contended that defendant No.3 has constructed house in "B" schedule property after filing suit. In the cross-examination for the suggestion made by the defendant's advocate to P.W.1 that defendant No.3 got added in the suit as necessary party, the witness has admitted. Further also it is suggested that his mother got khatha changed in her name after ten years of death of his father in respect of Sy.No.74/1 and 118, for which the witness has admitted as true. In the further cross-examination it was suggested that his mother has made sites in Sy.No.114 and the witness has denied the same and he has expressed his ignorance about the sale deed executed by his mother in respect of one of the sites formed by her in Sy.No.114 in favour of one Smt.Chokkammal. The suggestions given by the advocate for defendant No.1 has denied the same as he do not know the facts of the case as he was minor at that time. It has also been suggested the in order to get more money the plaintiff filed false suit against the defendants. The witness has denied the same in respect of "B" schedule property.
17 O.S.1209/2013
17. Likewise the defendant No.2 is examined as D.W.1 and he has deposed reiterating the same averments as stated in the written statement averments. In the further examination-in-chief he has produced two RTC extracts in respect of Sy.No.74/1. They are marked as Ex.D.9 and Ex.D.10. He has produced RTC extracts of Sy.No.118 and it is Ex.D.11. He has produced two RTC extracts of Sy.No.114. They are marked as Ex.D.12 and Ex.D.13. He has produced 14 electricity bills and they are marked as Ex.D.14 to Ex.D.27 and he has produced receipts pertaining to Ex.D.14 to Ex.D.17 and they are Ex.D.28 to Ex.D.30. He has produced the building plan. It is Ex.D.31. He has produced tax paid receipts and acknowledgments and they are Ex.D.32 to Ex.D.41. He has produced two GPA and they are Ex.D.42 and Ex.D.43 and he has produced copy of sale deeds and they are Ex.D.44 and Ex.D.45. He has produced copy of judgment and decree in O.S.996/2002 and they are Ex.D.46 and Ex.D.47. He has produced copy of I.A. under Order 39 Rule 1 and 2 of C.P.C. in O.S.996/2002 with order on it and they are marked as Ex.D.48 and Ex.D.49 and he has produced three photos with one C.D. of the suit property and they are Ex.D.50 to Ex.D.53.
18 O.S.1209/2013
18. After the examination-in-chief and marking of the documents the advocate for the plaintiff has cross-examined the defendant No.2. To a suggestion that defendant No.2's wife was not party to this suit when T.I. order was granted against him on 25/4/2014 he has admitted as true. Witness has volunteered that children of defendant No.1 i.e., plaintiffs No.1 to 4 were minors at the time of execution of General Power of Attorney in favour of him and he has not taken signatures of the plaintiffs. He has confronted that he has not given any documents to the court to show that the children of defendant No.1 were minor at the time of execution of GPA by her in his favour. He has again confronted that defendant No.1 executed another GPA in his favour in the year 1996 by receiving Rs.2,00,000/- from him and defendant No.1 had informed defendant No.2 that in the earlier GPA her children signature was not necessary. In the cross-examination he has further expressed his ignorance about late Krishnamurty selling Sy.No.74/1 measuring about 8 guntas of Munekolalu village under registered sale deed dt. 7/10/1978. In the same way he had no knowledge of Krishnamurthy selling Sy.No.74/1 measuring 6 guntas of Munekolalu village under registered sale deed dt. 11/6/1979 in favour of A.Ganeshan and he was also not aware 19 O.S.1209/2013 that defendant No.1 was having 1/5th share in Sy.No.118 of Munnekolalau village. It was suggested from plaintiffs' counsel to D.W.1 that he was not entitled to property obtained under GPA from defendant No.1. The witness has denied the same.
19. In the further cross-examination D.W.1 has confronted that defendant No.1 had taken money from him at the time of execution of General Power of Attorney in his favour in 1996 for paying the money to her son-in-law and he has not produced any documents to the court in this regard. He has expressed that he has no knowledge about the fact that there was a partition between defendant No.1 and plaintiffs at the time when defendant No.1 gave General Power of Attorney to him. He has confronted that he has got sanction plan from the corporation in his name. In the further cross-examination it was suggested that house is constructed in "B" schedule property after this suit is instituted. The witness has denied the same. It is further suggested to the witness that defendant No.1 has sold Sy.No.74/1 after death of her husband. The witness has denied the same and has contended that he has produced documents such as GPA to show defendant No.1 has sold Sy.No.74/1.
20 O.S.1209/2013
20. So, in view of the above reasons there is doubtful circumstance with regard to the execution of document Ex.D.6 as to whether the plaintiffs were minors or had attained majority, there is no evidence. Admittedly there is an argument before the court that plaintiffs No.1 to 4 have not assigned their signatures on the agreement of sale. It is one side of argument. It is also argued by the counsel for the plaintiffs that the first defendant has not made out malafideness as a kartha of the family. She was requiring the funds to meet the legal necessities and also making use of the said funds for the family.
21. The learned advocate for the plaintiff has argued before the court by relying upon earlier order passed by this court in respect of Injunction order on I.A.No.II filed by the plaintiff under Order XXXIX Rule 1 and 2 r.w.s. 151 of C.P.C. for grant of exparte order of injunction against the defendant. The court has passed the order which is as follows :-
I.A.No.2 filed by the plaintiffs under Order XXXIX Rule 1 and 2 C.P.C. is hereby allowed.
Defendant No.2, his men and agents are hereby temporarily restrained from 21 O.S.1209/2013 putting up any construction or further construction in "B" schedule property till disposal of the suit.
Under the facts and circumstances of the case, there is no order as to costs.
22. When the injunction order was granted directing the defendant not to put up any construction on the suit schedule property but the second defendant has exceeded his rights over the property and made construction which is illegal and against the facts on record and in that regard he has also further submitted and argued before the court with regard to the papers which were filed before the court. It is also further stated by the plaintiff advocate in his arguments that plaintiff has also approached to the Sub-Inspector of HAL Police Station on 5/3/2004 and filed complaint against the third defendant and further in the said complaint it has been stated that inspite of injunction order against the defendant No.2, defendant No.2 has made construction and acknowledgment was also issued by Sub-Inspector, HAL Police Station, Bengaluru in respect of said case as per G.S.C. No.PO.1416140600249 dated 5/3/2014 and reference No.NCR N 124/2014.
22 O.S.1209/2013
23. In respect of General Power of Attorney, the learned advocate for the plaintiff has argued before the court by relying upon several rulings in support of his case.
a. AIR 1986 S.C. 79 in between Bhagwant P.Sulakhe V/s. Digampar Gopal Sulakhe and others wherein it is held that :-
A) Hindu Law - Joint family property -
Severance of status of joint family - It has no effect on joint family property - Property continues to be joint until partitioned.
The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.
23 O.S.1209/2013b. 2011 AIR SCW 6385 in between Suraj Lamp & Industries Pvt. Ltd. V. State of Haryana and another wherein it is held that :-
Transfer of property Act (4 of 1882), Ss.5, 54 - Registration Act (16 of 1908) S.17
- Power of Attorney Act (7 of 1882), S.2 -
Succession Act (39 of 1925) S.63 -
Immovable property - Transfer - Can be validly made only by registered sale deed - Not by sale agreement /general power of attorney or Will.
(2001) 94 DLT 841, Overruled.
Immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'General Power of Attorney Sales' or 'Sale agreement/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized as valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.
24 O.S.1209/2013c. 2009 AIR SCW 4365 in between Ramdas V/s. Sitabai & others. It is held that Transfer of Property Act (4 of 1882), S.54 -
Purchase of undivided share of co-sharer -
Right of purchaser to claim possession.
A purchaser cannot have a better title than what vender had. An undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the court.
Where the purchaser had purchased only undivided share in the suit property he could not own and claim for more than the share of the vendor in the property nor he could claim possession in respect of the entire property. He cannot claim relief on the ground of equity, as he himself is responsible for his act in purchasing undivided sharer. The land in question being extremely valuable the question of equity does not arise as it would amount to doing injustice to one having title and ownership. 25 O.S.1209/2013 d. AIR 2013 Gauhati 42 in between Anjan Bardman Choudhury V/s. Ranjan Barman Choudhury & another and it is held that :-
Transfer of Property Act (4 of 1882), S.44 - Sale by co-owner - Validity -
Condition of sale clearly contained that vendor was parting with his share of land and not otherwise by said deed of sale - Even if boundaries were given, those were to be insignificant part of covenant of sale - Even question of possession as recited in said covenant of sale would have no value if it was found that property related to dwelling house belonging to unpartitioned joint property as provisions of S.44 of Act shall govern said transfer in supersession of anything contrary thereto - Concurrent finding that sale was invalid held proper.
e. AIR 2015 Gauhati 127 in between Debajit Barthakur and others Vs. Smt.Sarnalatha and others. It is held that D) Hindu Law - Joint family property -
Mutation of property in name of one of co-
sharer - Would not confer right, title and interest over whole property in his/her 26 O.S.1209/2013 favour - Would not entitle him/her to sell/transfer entire property.
f. ILR 2012 KAR 4129 in between S.K.Lakshminarasappa since deceased by his LRs vs. Sri.B.Rudraiah and others. It is held that C) Partition - Suit for partition - Need for presence of alienees - Circumstances under which suit for partition can be dismissed on the ground of non-joinder of necessary parties - HELD, In a suit for partition, at the stage of passing of a preliminary decree for partition, the only question that needs to be adjudicated by the Trial Court is, whether the property in question is a co-parcenary property or a joint family property and if so, what is the share to which these family members are entitled to. For the declaration of such shares, the presence of alienees is not necessary. Even in their absence the suit of the plaintiff can be adjudicated upon and their presence is in no way necessary for the court to determine the questions involved in the suit. It is only after declaration of shares, at the stage of dividing the property by metes and bounds and putting them in possession of the extent of the share so declared, the 27 O.S.1209/2013 character, validity and the nature of alienations have to be taken note of.
.....................
g. (2007) 7 Supreme Court cases 444 in between Ramdas V.s. Sitabai and others. It is held that :-
Transfer of Property Act, 1882 - Ss.44 and 8 - Transfer of possession of entire property by one co-owner without consent and knowledge of the other co-owner - Legality - Relief to the other co-owner - Self acquired property of deceased father jointly held by defendant I son with respondent sister - Defendant I selling and delivering possession of property to appellant for consideration by executing sale deed -
Transfer made without consent and knowledge of respondent - Legality of - Held, Defendant I could not have sold more than his share nor could he have delivered possession of property till its partition - Further held, a purchaser under the Act cannot have a better title than what his vendor had - Appellant's claim to possession of entire land was therefore untenable - Decrees of courts below holding sale deed null and void to the extent of one - half 28 O.S.1209/2013 share of respondent and being not binding on her, affirmed - Moreover, relief on grounds of equity would not be justified.
h. AIR 2009 Supreme Court 2735 in between Ramdas V/s. Sitabai & others.
i. AIR 2000 Karnataka 27 in between Babu Mother Savavva Navelgund and others V/s. Gopinath. It is held that :-
B) Hindu Law - Coparcenary property - Sale of undivided property by a coparcener -
Validity - No legal necessity proved - Sale would be bad and not binding on plaintiff to the extent of his share in the property.
j. ILR 1998 KAR 2127 in between Vadde Sanna Hulugappa & others V/s. Vadde Sanna Hulugappa & others. It is heeld that :-
Hindu Law - Partition - Courts dismissed the suit for partition only on the ground that the plaintiffs had not prayed for cancellation to sale deeds executed by the 1st defendant in favour of the fourth defendant. In second Appeal High Court held that it was not necessary to seek cancellation of sale 29 O.S.1209/2013 deeds or seeking setting aside alienations as the plaintiffs were not parties to any of the alienations and as such they are not binding on them.
It bears repetition, in the instant case the plaintiffs are not parties to any of the alienations made by the first defendant and others. So there was no legal obligation on their part to specifically pray that the alienations were not binding on them.
k. 1997 AIR SCW 757 in between Sundar Das and others V/s. Gajananrao and others. It is held that :-
(B) Hindu Law - Ancestral property ----
.............. Vendees also making all possible enquiry as to legal necessity of family - Sale is binding on minor sons as father could have disposed of share of minor sons for family necessity.
l. AIR 1991 Orissa 55 in between Biranchi Narayan Hadu V/s. Smt. Krushnapriaya Debi and others. It is observed that :-
When an alienation is made by the Manager of a Joint Hindu family, the alienee is bound to enquire into the necessity for the 30 O.S.1209/2013 sale and the burden lies on the alienee to prove either that there was a legal necessity in fact or that he made proper enquiry as to the existence of such necessity and he did all that was reasonable to satisfy himself as to the existence of such necessity. A Hindu father has some special powers of alienating coparcenary property which no other coparcener has. He can make a gift of ancestral movable or immovable property and he may sell or mortgage ancestral property for payment of his own debt, provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes.
m. AIR 1983 Orissa 135 in between Smt.Manohari Devi and others v.s. Choudhury Sibanava Das and others.
It is held that :-
A) Hindu Law- Joint family property -
Alienation - Agreement by Karta - Absence of proof that agreement was made for legal necessity or for benefit of estate - Purchasers never making bonafide enquiries as to existence of legal necessity or family benefit- Held, agreement was not binding on other 31 O.S.1209/2013 members of the family and could not be enforced against them. Case law discussed.
n. ILR 1995 KAR 1571 in between Chinnamma Vs. Nagaraj.
o. (2004) 8 Supreme Court Cases 488 in between Maharwal Khewaji Trust (Regd.) Faridkot V/s. Baldev Dass.
p. (2004) 8 Supreme Court Cases 490 in between Pratap Rai Tanwani and another V/s. Uttam Chand and another.
q. (2009) SCCR 980 in between Gajara Vishnu Gosavi V/s. Prakash Nanasaheb Kamble and others.
r. AIR 2012 Supreme Court 206 in between Suraj Lamp & Industries Pvt. Ltd. V/s. State of Haryana. The ruling is same as 2011 AIR SCW 6385 mentioned above.
s. 2017(2) AKR 676 in between Chikka Venkatamma and others V/s. R.Nagaraja and another.
32 O.S.1209/2013
(B) Transfer of Property Act (4 of 1882), S.54
- Registration Act (16 of 1908), S.17 -
Immovable property - Tranfer - Can only be made only by registered deed of conveyance
- Otherwise no right, title or interest in immovable property can be transferred.
t. AIR 2018 Punjab & Haryana 70 in between Devinder Singh Vs. Fateh Jung Singh and others. It is held that :-
D) Transfer of Property Act (4 of 1882) S.54- Sale - Documents like agreement to sell, general power of attorney, special power of attorney - Does not amount to sale.
AIR 2012 SC 206, relied on.
24. Defendants No.2 and 3 have taken contention in the written statement that the suit of the plaintiff filed for partial partition of the suit schedule property by not including other properties, the suit is not maintainable before the court and is liable to be dismissed. Advocate for the defendants No.2 and 3 has relied on the rulings reported in a. ILR 2011 (4) KCCR page 2461 in between G.R.Mahendra V/s. G.M.Mohan and another. It is held that :-
33 O.S.1209/2013
In the present case, the suit of the plaintiff was held not maintainable as the same was filed for partial partition without seeking leave of the court as contemplated under Order 2, Rule 2 of C.P.C.
Also held, that the finding of the Trial Court as to the oral partition was perverse and was not based on proper appreciation of the document and its interpretation. The plaintiff could not have challenged the sale deed executed by his father as not for benefit of the joint family and without including all other joint family properties. The fact that the plaintiff, on the date of filing of the suit, had not even seen the sale deed executed by his father in favour of the 2nd defendant showed that the suit was filed only at the instigation of the father, the 1st defendant.
The appeal of the plaintiff was
dismissed.
b. 2012 (5) KCCR 4082 in between Smt.T.Ratna V/s.Sm.t.T.N.Rathnamma & others. It is held that :-
HINDU LAW - Alienation of joint family property - Suit for partition of only portion 34 O.S.1209/2013 alienated - Not maintainable - Decree set- aside.
HELD :- When the alienation of one of the property in favour of the appellant herein was challenged by the plaintiffs in the two suits filed as mentioned above, contending that they are also entitled for a share in that property, necessarily the plaintiffs therein ought to have included the other properties available to the joint family.
c. AIR 1975 Madras 60 in between Ramachandra and another V/s. Rukmangadan and others. It is held that :-
(A) Limitation Act (1908) Articles 44 and 140 - Alienation by Hindu father as guardian of minor son- Suit by son for declaration that alienation is not binding on him and for partition - Article 44 applies and not Article 140.
Where A, a minor has a share in certain property and B his father acting as his guardian, alienates the property to C the alienation is a voidable and not a void transaction. A cannot get any relief such as partition or possession of the property from 35 O.S.1209/2013 the alienee without getting the alienation set aside in a suit. A suit for partition or possession without specifically asking for setting aside the alienation will be regarded as one to set aside the alienation and will be governed by Article 44 and not Article 140.
d. AIR 2004 Kerala 126 Full bench in between Ramadas Menon V/s. Sreedevi. It is held that :-
Hindu Minority and Guardianshop Act (32 of 1956), S.8 (3) - Powers of natural guardian - Suit for partition and possession
- Claim by plaintiff that sale deed of suit property previously executed by her mother when she was minor was invalid being without consent of Court - There should be prayer to set aside alienation effected by the natural guardian without Court's sanction - Plaintiff cannot merely ignore sale deed -
Alienations have to be challenged and without setting aside alienations, no relief can be obtained.
e. AIR 2001 Karnataka 384 in between B.S.Malleshappa V/s. Koratagigere B.Shivalingappa and others. It is held that :-36 O.S.1209/2013
Karnataka Court-Fees and Suits Valuation Act (1960), Ss. 35(2), 11(4)(a) - Suit for partition and appeal therefrom - Court fee - Plaintiff claimed that he was in joint possession of suit properties - Paid fixed Court fee under S.35(2) of Act on value of his 1/5th share in property - Trial Court held that suit properties are not joint family properties and directed plaintiff to pay Court
- fees under S.35(1) of Act - Not proper - Denial of plaint allegations by defendant does not take suit out of scope of S.35(2) - Appeal filed on dismissal of suit by trial court on account of deficit Court - fees - Court fee payable on appeal is same fixed Court-fee as paid on suit.
f. AIR 1996 Supreme Court 2371 in between Sri.Narayan Bal and others V/s. Sridhar Sutar and others. It is held that :-
Hindu Minority and Guardianship Act (32 of 1956), S.8 - Applicability - Joint Hindu family property in which minor had an undivided share - Sold/disposed of by Kara - S.8 requiring previous permission of Court before disposing of immovable property - Not applicable.37 O.S.1209/2013
Hindu Law - Joint Hindu family property in which minor had an undivided share sold/disposed of by karta - Previous permission before disposing said property not required.
25. At the time of payment of court fee for partition suit and at the time of valuation of the property, plaintiffs have paid court fee of Rs.825/- and the court fee paid by the plaintiff is insufficient. Hence the said ruling is not applicable to the present case.
26. During the minority period of plaintiffs No.1 to 4 defendant No.1 has sold the suit schedule "B" property without their consent and moreover first defendant has not taken the court permission to sell the suit schedule property for the interest of minors as guardian of plaintiffs and also kartha of the joint family. Therefore in these situation of the case even though the General Power of Attorney and agreement of sale got executed by first defendant when it is disputed by the plaintiffs and moreover the first defendant though appeared before the court has not filed written statement to support the contentions of defendants No.2 and 3. In these circumstances of the case, in addition to the discussion of the facts and evidence, much weightage to be given to the rulings as produced by the parties to the suit. So, in that 38 O.S.1209/2013 respect the right of the minors and interest of the minors in what way it is to be protected in order to protect the interest of the minors the basic law and the ruling reported in AIR 1996 Supreme Court 2371 in between Sri.Narayan Bal and others V/s. Sridhar Sutar and others. It is held that :-
Hindu Minority and Guardianship Act (32 of 1956), S.8 - Applicability - Joint Hindu family property in which minor had an undivided share - Sold/disposed of by Karta - S.8 requiring previous permission of Court before disposing of immovable property - Not applicable.
Hindu Law - Joint Hindu family property in which minor had an undivided share sold/disposed of by karta - Previous permission before disposing said property not required.
27. Same ruling is applicable for the facts of the case. Further as already stated above, court permission for alienation by the kartha of the joint family is necessary. Otherwise sale itself is illegal.
39 O.S.1209/2013
28. The defendant has mainly basing his case on non inclusion of other properties, court fee paid by the plaintiff is lesser and minors interest and its protection.
29. The orders passed by my learned predecessor on I.A.No.II dated on 28/3/2013 and another I.A. in respect of I.A.No.1/14 filed under similar provision on dated 25/4/2014 has passed an injunction order directing the second and third defendants respectively not to put up any sort of construction of 'B' schedule property. In spite of it, defendant No.2 and 3 have gone further ahead in respect of making construction and they have also paid electricity bills Ex.D.14 to Ex.D.19 and Ex.D.20 to Ex.D.30. Smt.Padmavathi i.e., defendant No.3 has got entered her name in the property. Inspite of the court order which clearly reveals that they have no respective court orders and they have violated the court injunction order. Further they have constructed buildings only on the basis of agreement of sale and also G.P.A. Photographs have been produced as per Ex.D.50 to Ex.D.53. In order to strengthen their case, they have produced similar documents which are valid documents in the eyes of law.
40 O.S.1209/2013
30. Smt.Jayamma, defendant No.1 has executed G.P.A. in favour of Sri.M.Nagaraj dated 25/9/1997 which is marked as Ex.D.42. Defendant No.1 has executed G.P.A. in favour of Smt.P.Gowramma on 3/10/1998 which is marked as Ex.D.43. Smt.Chokkammal the G.P.A. holder of Smt.P.Jayamma i.e., defendant No.1 has sold site Katha No.114/4 measuring 48 ft. x 40 ft. to Mr.S.Ranganathan under registered sale deed as per Ex.D.44. Smt.P.Jayamma through her G.P.A. holder Sri.M.Nagaraja has sold site No.8, property No.74/1 at Munnekolala village, Varthur Hobli, Bangalore East Taluk, under registered sale deed to Sri.N.Hemanth Kumar and Sri.N.Dhanush Kumar.
31. On the point of execution of G.P.A. in favour of different persons in respect of family properties which were handed over by the first defendant in favour of different persons, in that circumstances of the case the learned advocate for the defendant has argued to consider the G.P.A. which was executed by Smt.Jayamma in favour of Sri.Vijayakumar in respect of property No.454 measuring East to West 74 feet and North to South 54 feet. Now all the G.P.A. documents constitutes powers in favour of G.P.A. holder but the said G.P.A. are not binding. Now as per the changes in the law by the judgments of the Hon'ble Supreme Court. 41 O.S.1209/2013 That ruling is applicable for the facts of the case. 2011 AIR SCW 6385 in between Suraj Lamp & Industries Pvt. Ltd. V. State of Haryana case is applicable and the said case holds good.
32. P.W.1 in his cross-examination dated 19/11/2015 at para No.4 has stated that his father had received 9 guntas in Sy.No.118, 15 guntas in Sy.No.74/1 of Munnekolalu village under the partition and he doesn't know as to how much his father has received in Sy.No.86/1 and Sy.No.114/4 of Munnekolalu village. At para No.7 of the cross-examination P.W.1 has admitted that defendant No.3 has constructed house in "B" schedule property as per Ex.D.7 - photo. Ex.D.8 is power of attorney executed by mother of P.W.1 in favour of Chokkammal and Smt.Chokkammal has sold site measuring 48 x 40 ft in Sy.No.114 in favour of Ranganath on the basis of GPA is not true.
33. P.W.1 has admitted to produce documents pertaining to Sy.No.74/1 and 86/1 in order to show that his father was allotted land in the said Sy.Nos. In the cross-examination P.W.1 has admitted that they have mortgaged two guntas in "A" schedule property i.e., Sy.No.118 to Nagaraj Reddy to celebrate marriage of his sister. In the cross-examination P.W.1 has admitted that his 42 O.S.1209/2013 mother got khatha changed in her name after 10 years of death of his father in respect of Sy.No.74/1 and 118 and his father had got Sy.No.114 under partition.
34. Under Ex.D.8 defendant No.1 has made GPA in favour of Smt.Chokkammal on 23/9/1991 in respect of Sy.No.114/4 measuring East - West :- 48 feet and North - South :- 40 feet and under an affidavit to meet the family necessities and for personal expenses defendant No.1 has sold to Smt.Chokkammal for consideration of Rs.4,500/-. The transfer of property is not on valid paper or proper stamp duty is paid and Ex.D.8 produced is only a Xerox copy and it is neither original nor certified copy. The question with regard to Ex.D.8 and the sale of Sy.No.114/4 involved in the document is credibility, genuinity of the sale and the sale made by defendant No.1 to Smt. Chokkammal under unregistered document is valid? On perusal of Ex.D.12 produced by the defendant it is the document pertaining to Sy.No.114 and name of husband of defendant No.1 is seen in column No.9 and extent shown is 38 guntas. P.W.1 has deposed that his father late Krishnamurthy died in the year 1985. Whereas in this Ex.D.12 his name finds place in column No.9. 43 O.S.1209/2013
35. Advocate for the defendant No.2 and 3 filed application under Order VIII Rule 1(A) rw.s. 151 of C.P.C. list with document 13 Nos. filed on 23/7/2016. Wherein he has stated that he has prayed for allowing the said documents by condoning the delay if any and affidavit of the second defendant has filed stating that third defendant is his wife. Original document could not be earlier and they were misplaced and now they are in possession of the same documents and they are total documents for the decision of the case and they have prayed for condoning delay in production of the same. In the said I.A. the second and third defendant have shown other than the suit schedule property bearing Sy.No.118 as shown in A and B schedule. Defendant No.2 and 3 have produced original RTC in respect of Sy.No.74/1, Sy.No.118, Sy.No.114/4. It is clear that the plaintiff and defendant No.1 has got the two other properties which are not included in the partition and which have been left out by plaintiffs as well as defendant No.1.
36. It is also clear from the averments made in the written statement of defendants at paragraph No.7 it has been stated as follows :- "That the father of the plaintiffs had not only inherited the suit schedule property bearing Sy.No.118, that also inherited the 44 O.S.1209/2013 other lands bearing Sy.No.74/1, measuring 3 acres 13 guntas, Sy.No.86/1, measuring 3 acres 39 guntas, Sy.No.114/4 measuring 1 acre, as per the oral partition between the father of the plaintiffs by name Krishnamurthy and his brothers. The said lands are not included in the suit. The suit is liable to be dismissed for non inclusion of the other lands referred to above.:" I have also perused the said documents Sy.No.74 hissa 2 standing in the name of Smt.Jayamma first defendant for the year 2013-14 and the said document is marked as per Ex.D.9 and another RTC of Sy.No.118 standing in the name of Smt.Jayamma w/o. Krishnamurthy. The said RTC is marked as Ex.D.11. RTC of Sy.No.114 the same is standing in the name of Krishnamurthy to the extent of 0.38 guntas as per Ex.D.12. Therefore at this stage, some of the properties are standing in the name of husband of first defendant and also her husband. Therefore at this stage other than Sy.No.114, there are other two Sy.Nos. 118 and 74. For these properties the plaintiffs have not filed the suit for partition and it is argument of the learned counsel for the defendants No.2 and 3 is that the suit for partial partition is not maintainable unless all the properties of the joint family are included in the suit schedule. 45 O.S.1209/2013
37. Hence the case of the defendants supported by the evidence of D.W.1 and also production of documents as per Ex.D.9 and Ex.D.10 and Ex.D.11 and Ex.D.12 and Ex.D.13. Therefore the documents supports to the case of the defendants to prove that the suit filed by the plaintiffs is only for partial partition and there were dealings in respect of the said property from Jayamma to Chokkammal and as per sale deed dated 27/9/2001. Another absolute sale deed dated 10/1/2013 which is from defendant No.1 in favour of Sri.Hemanth Kumar. These two properties in respect of Sy.No.114/4 and also 74/1 transactions took place. The only common thing which is to be decided by the court is the 1st defendant might have been sold the property for the legal necessity of the minors plaintiff NO.1 to 4 at that time. Further, there is no specific evidence for declaration of the sale deed is null and void even though prayer is made in partition suit, such a prayer cannot be considered unless the all the properties of the plaintiffsd ancd defendant No.1 are included in this suit on the same point with regard to the non inclusion of the joint family properties, suit in respect of one single property is not maintainable before the court and on that point of law also the suit of the plaintiff does not holds good and in that regard our own Hon'ble court in 2011(4) KCCR 46 O.S.1209/2013 2461 (DB) in between G.M.Mahendra V/s. G.M.Mohan and another. It is held that HINDU LAW - Partial partition - Civil Procedure Code, 1908 - Order 2 - Suit for partition by non-alienating coparcener - Suit filed by making the purchaser also a party to the proceeding - Failure to include all the properties of the joint family in the suit schedule - Held, such failure effects the right of alienee to seek equitable relief. Suit filed by the plaintiff for partial partition without including all the joint family properties were bad in law.
In the present case, the suit of the plaintiff was held not maintainable as the same was filed for partial partition without seeking leave of the court as contemplated under Order 2, Rule 2 of C.P.C.
Also held, that the finding of the Trial Court as to the oral partition was perverse and was not based on proper appreciation of the document and its interpretation. The plaintiff could not have challenged the sale deed executed by his father as not for benefit of the joint family and without including all other joint family properties. The fact that 47 O.S.1209/2013 the plaintiff, on the date of filing of the suit, had not even seen the sale deed executed by his father in favour of the 2nd defendant showed that the suit was filed only at the instigation of the father, the 1st defendant. The appeal of the plaintiff was dismissed.
And 2012 (5) KCCR 4082 in between Smt.T.Rathna V/s. Smt.T.N.Rathnamma and others. Wherein it is held that :-
HINDU LAW - Alienation of joint family property - Suit for partition of only portion alienated - Not maintainable - Decree set-aside.
HELD :- When the alienation of one of the property in favour of the appellant herein was challenged by the plaintiffs in the two suits filed as mentioned above, contending that they are also entitled for a share in that property, necessarily the plaintiffs therein ought to have included the other properties available to the joint family.
Further it is observed in the judgment at para 3 to 6 that :-
3. ............... all other properties ought to have been mentioned or included in the 48 O.S.1209/2013 suit for partition filed and non inclusion of all the properties available to the joint family has led to failure of justice and has affected the interest of the alienee/appellant who has purchased the property during June 1996 from Kempamma.
4. The substantial question of law for consideration in the appeal is - whether the courts below were justified in decreeing the suit of the plaintiffs wherein without bringing on record all other joint family properties for the purpose of just partition.
5. Heard the counsel representing the parties.
6. What is not in dispute is, suit property which was the subject matter over which the suits were filed - one by the daughter -in- law and another by the daughter of Channaiah, is the one which had been sold in favour of the appellant by Kempamma. Additional documents have been produced by the appellant some other joint family properties available to the family of late Channaiah other than the property which was sold to the appellant.49 O.S.1209/2013
38. The defendant No.2 and 3 are the bonafide purchasers for the value of Rs.2,34,000/- in respect of "B" schedule property as per sale deed dated 5/2/2001 executed by first defendant as a G.P.A. sale deed. Second defendant has purchased the same as per Ex.D.3. She has again sold and transferred in favour of third defendant who is none other than the wife of second defendant. Third defendant who has purchased the said property same from the G.P.A. holder and the sale is existing as on today. G.P.A. sale is made good by some of the documents created by the defendant No.2 and 3 by getting the name entered in the BBMP records. Therefore, at this stage the BBMP record also stands in the name of third defendant and the sale deed which is executed by first defendant in favour of second defendant and second defendant in favour of third defendant. All the transactions are took place in the hands of first defendant and she has received the money already. Even though the plaintiffs were majors at the time of sale, they have not objected the said sale transaction. Therefore, the defendant No.1 as a Kartha of the Hindu joint family she is also competent to sell the same for the family necessities of plaintiffs No.1 to 4. Hence the genuinity of the said sale deed cannot be questioned at this stage. The defendant No.2 and 3 have already 50 O.S.1209/2013 constructed the building and they are in possession of suit schedule property as on the date of sale and subsequent to the sale of the suit schedule property. Therefore, at this stage, considering all the aspects it is required to be held that the defendant No.1 and as well as plaintiffs were consenting parties at the time of sale and the said issue No.3 is not proved beyond reasonable doubt.
39. The Hon'ble High Court of Karnataka in the Division Bench and also in Single bench have categorically held that in the reported decision 2011(4) KCCR 2461 and also 2012 (5) KCCR 4082. The rulings are already discussed supra holds good and hence in view of the partial partition a suit is not maintainable unless all other properties of the said family are joined together. The suit schedule property is Sy.No.118. But where as other two properties Sy.No.74/2 and Sy.No.114 were not included in the said above partition suit. Therefore, a family property cannot be partitioned alone unless other joint family properties are included. Therefore in order to show jointness in respect of all the family properties there is no documents with the plaintiffs. Because, one of the property is already sold in favour of Smt. Gowramma as per Ex.D.43 in respect of Sy.No.74/1 and also Smt. Jayamma, first defendant has sold out one of the property bearing Site Katha 51 O.S.1209/2013 No.114/4 as per Ex.D.44 - sale deed on 27/9/2001 in favour of Smt.Chokkammal and another sale deed was also executed by first defendant Smt. Jayamma in favour of G.P.A. holder Nagaraj on 10/1/2013, Site No.8, property No.74/1 as per Ex.D.45. Therefore, all the properties were not put together. They were already sold and the entire Sy.Nos are not available to the family of plaintiffs No.1 to 3 and defendant No.1. Therefore, jointness and status of joint family property is not shown in any of the circumstances of the case and even on the point of non inclusion of other properties of the family, suit of the plaintiffs No.1 to 4 against the defendants is not sustainable in the eyes of law.
40. On going through the said documents the defendant No.2 and 3 have made huge expenditure and they have constructed a house. Now at this stage only on the ground of G.P.A. sale, the court cannot set-aside the improvement made by the defendant No.2 and 3. natural justice is to be seen for what purpose defendant No.1 has sold the property in favour of defendant No.2 and at that time Plaintiff No.1 to 4 were minors and for the legal necessity soon after the death of Krishnamurthy, the first defendant having no source of income at that time to meet the expenditure of the family money is required for her and hence she 52 O.S.1209/2013 has sold out the suit schedule property to the defendant No.2. In that circumstances, the say of the first defendant is most required. The defendant No.1 even fafter service of summons remained absent and not filed written statement before the court and not stated anything. Hence, at this stage the court comes to the conclusion that when the 1st defendant is silent at that time plaintiff No.1 to 4 at that time they were minors and for the benefit of them for legal necessities as kartha has sold the same. Now at this stage, these plaintiffs have filed the suit for partition and to set-aside or declare the sale deed null and void within three years from the date of attaining their majority. It shows that it is a collusive suit filed by the plaintiff with the defendant No.1 in order to get the property back and partitioned. Now, in view of the improvement made by defendant No.2 and 3, and also in view of the non inclusion of other two properties, i.e. Sy.No.114 and Sy.No.74. The suit of plaintiff for partial partition is not maintainable either in law or on facts. Hence the suit of plaintiff for partition and separate possession is not maintainable even on other points of law as pleaded by the parties. 53 O.S.1209/2013
41. G.P.A. executed is binding on the plaintiff and defendant No.1 because defendant No.1 even after service of summons she has not appeared before the court and not filed the written statement and she placed exparte till the conclusion of the suit. So, in view of the non appearance of the first defendant, the said first defendant is the proper person to challenge the G.P.A. cum sale deed executed in favour of defendant No.2 as illegal, forged and a document created fraudulently. So, in view of the non appearance of the said defendant, the authority to question the said document as illegal is only vested with the first defendant and not with the plaintiffs. Therefore, at this stage, the defendant No.2 soon after getting the G.P.A. cum sale deed he has sold out the same in favour of third defendant who is none other than the wife of second defendant. Second and third defendants have perfected the title, ownership and on the basis of the said G.P.A. cum sale agreement and the names of defendants No.2 and 3 were entered in the records. Defendant No.1 is a consenting party for G.P.A. sale. As stated above, when there is no written statement of the defendant No.1, it cannot be held that G.P.A. cum sale is void abinitio sale deed and even though statutory bar as per the said ruling cited by the defendant counsel it is there. But it is only 54 O.S.1209/2013 effective from prospectively and not retrospectively. In 1996 at about five to six years back before coming of the said ruling in respect of Suraj Lamps case, the transactions were already completed and such customs and traditions were prevailing in Bengaluru. Therefore it cannot be held that the same G.P.A. cum sale deed is illegal and sham document unless the executent the defendant No.1 challenges before the court as it is void and illegal document and created fraudulently. Therefore at this stage the plaintiff cannot ask for relief of declaration to cancel the said G.P.A. cum sale deed or it is not binding on the plaintiffs. As stated above, the facts of the present case differs from the facts of the case as stated in the ruling reported in AIR 2012 SC 206 in between Suraj Lamps V/s. State of Haryana. Because the executent defendant No.1 has not challenged the same as illegal document. Same acts of the first defendant in respect of sale agreement was rectified by the plaintiffs No.1 to 4 within three years from the date of attaining age of majority, they have not filed a suit for declaration. The said document has been not binding upon them. So, in view of question of Limitation the suit of the plaintiff's for not challenging the said G.P.A. within the time stipulated for a period of three years. Suit of the plaintiff even on other hand is not maintainable on the point of 55 O.S.1209/2013 Limitation. Hence, the facts of the said ruling are not applicable to the facts of the present case. Hence, the court comes to the conclusion that even though it is maintainable, suit of the plaintiff is not maintainable on the point of Limitation. Plaintiffs at this stage who were minors at that time, soon after the death of their family. Now such property "B" schedule was sold for legal necessity by the first defendant. Therefore, at this juncture, the question of law and execution and it is not disputed by the Executant herself at this stage has not challenged the same and hence the said ruling is not applicable for the present case on hand.
42. On entire appreciation of the oral and documentary evidence on record, the court answers Issue No.1 and 2 in the negative and Issue No.3 to 5 in the affirmative.
43. ISSUE NO.6 :- For the reasons stated above, the plaintiff is not entitled for any relief sought in the plaint. Accordingly, Issue No.6 is answered in the negative.
44. ISSUE NO.7 :- Plaintiff has filed this suit for partition and separate possession and plaintiff has paid the Rs.825/- as Court Fee. The valuation of the property of the market value of the building of the defendants No.2 and 3 not calculated properly as 56 O.S.1209/2013 per section 38 of Court Fees and Suit Valuation Act. In respect of suit schedule property, the Government value is more. Soon after purchase of the same, defendant No.2 and 3 were constructing . Market value of the building not given properly. Hence, only for partition suit of 'A' and "B" schedule property the plaintiffs have given Rs.825/- as court fee which is insufficient. Hence, plaintiff is not entitled for declaration to set-aside the declaration in respect of GP.A sale and also in respect of sale made by the defendant No.2 to defendant No.3. Hence Issue No.7 is answered in the negative.
45. ISSUE NO.8 :- For the reasons stated above and discussions made in the above paragraphs, I proceed to pass the following :-
ORDER Suit of the plaintiff is hereby dismissed.
Parties to bear their own costs.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, typed by him, revised by me and after corrections pronounced in the open court on this the 21st day of July, 2018.) (SHIVANAGOUDA) XXXIV Addl. City Civil & Sessions Judge Bengaluru.57 O.S.1209/2013
ANNEXURE
1. LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFF :-
P.W.1 :- Sri.Naveen Kumar
2. LIST OF EXHIBITS MARKED ON BEHALF OF PLAINTIFF :-
Ex.P.1 :- Family tree Ex.P.2 :- RTC extract Ex.P.3 :- Mutation register extract Ex.P.4 :- G.P.A. Ex.P.5 :- Sale deed Ex.P.6 :- Endorsement
3. LIST OF WITNESS EXAMINED ON BEHALF OF DEFENDANTS :-
D.W.1 :- Sri.Vijayakumar
4. LIST OF EXHIBITS MARKED ON BEHALF OF DEFENDANT :-
Ex.D.1 :- Affidavit Ex.D.1(a) :- Signature of Smt.Jayamma Ex.D.2 :- G.P.A. Ex.D.2(a) :- Signature of Smt.Jayamma Ex.D.3 :- Sale agreement Ex.D.3(a) :- Signature 58 O.S.1209/2013 Ex.D.4 :- Affidavit of Smt.Jayamma Ex.D.4(a) :- Signature Ex.D.5 :- Certified copy of G.P.A. Ex.D.5(a) :- Signature Ex.D.6 :- Copy of sale deed Ex.D.7 :- Photograph Ex.D.8 :- Copy of G.P.A. Ex.D.8(a) :- Signature of Smt.Jayamma Ex.D.9 to Ex.D.13 :- RTC extracts Ex.D.14 to Ex.D.21 :- Electricity bills Ex.D.22 to Ex.D.30 :- Electricity receipts Ex.D.31 :- Sketch (Blue print) Ex.D.32 to Ex.D.41 :- Tax paid receipts Ex.D.42 :- Certified copy of G.P.A. Ex.D.43 :- Certified copy of G.P.A. Ex.D.44 :- Certified copy of absolute sale deed Ex.D.45 :- Certified copy of absolute sale deed Ex.D.46 :- Certified copy of Judgment in O.S. 996/2002 Ex.D.47 :- Certified copy of decree in O.S.996/2002 Ex.D.48 :- Certified copy of plaint in O.S.996/2002 Ex.D.49 :- Certified copy of order in O.S.996/2002 Ex.D.50 to :- Photographs 59 O.S.1209/2013 Ex.D.52 :- Photographs Ex.D.53 :- C.D. (SHIVANAGOUDA) XXXIV Addl. City Civil & Sessions Judge Bengaluru. Schedule "A" property
All that piece and parcel of the property of agriculture land bearing Sy.No.118, measuring 0.09 guntas out of 35 guntas of land situated at Munnekolalu Village, Varthur Hobli, Bangalore East Taluk and bounded on :-
East by :- Gramathana
West by :- Boda Reddy and Abbaiah Reddy's
Property
North by :- N.Muninarayana Reddy & others
South by :- Gowdara Annaiah Reddy & others
Property.
Schedule "B" property
All that piece and parcel of the property in respect of land measuring to an extent of 4.75 guntas including 1.8 guntas of passage out of schedule "A" property situated at Munnekolalu Village, Varthur Hobli, Bangalore East Taluk bounded on :-
East by :- Gramathana
60 O.S.1209/2013
West by :- Remaining portion in same Sy.No.
North by :- N.Muninarayana Reddy & others property South by :- Gowdara Annaiah Reddy & others Property.
(SHIVANAGOUDA) XXXIV Addl. City Civil & Sessions Judge Bengaluru.