Bangalore District Court
Yellamma vs Sukumar on 17 March, 2018
IN THE COURT OF THE XXXVIII ADDITIONAL CITY CIVIL
JUDGE AT BENGALURU CITY(CCH-39)
Dated this the 17th Day of March 2018
Present
Sri Devanand Puttappa Nayak B.A., LL.B.,(Spl.)
XXXVIII Additional City Civil & Sessions Judge, Bangalore City.
Original Suit No.2713/1995
Plaintiffs:
1. Yellamma, aged about 60 years,
W/o. late Munivenatappa,
VP#24, Venkatapura Village,
Begur Hobli, Bangalore South
Taluk, Bengalooru.
2. Manjukumari, aged about 30
years, W/o. Yellappa, Sulibele
Road, Hosakote Taluk, Bengalooru
District.
3. Indiramma
(Since dead by her LR's)
3(a) Ramachandra, aged about 62
years, S/o. Dodda Venkatappa
3(b) R.Mahesh, aged about 35 years,
S/o. Ramachandra
3(c) R. Asha, aged about 32 years, D/o.
Ramachandra
3(d) R.Poornima, aged about 29 years,
D/o. Ramachandra
3(e) R.Prabhu, aged about 29 years,
S/o. Ramachandra
2 O.S.No.2713/1995
All are Residing at#20, Nadama
Nilayam, Krishna Reddy Layout,
Ramamurthy Nagar, Behind
Ramamurthy Nagar Police Station,
Bengalooru 560 016.
[by advocate Sri J.K.T]
-Vs-
Defendants:
1. Sukumar
(Since dead by his LR's)
1(a) Smt.Shantamma, aged about 55
years, W/o. late Sukumar
1(b) Smt.Manju, aged about 31 years,
D/o. late Sukumar
1(c) Sridhar, aged about 28 years, S/o.
late Sukumar
1(d) Kumar, aged about 26 years, S/o.
late Sukumar
1(e) Lakshmana, aged about 20 years,
S/o. late Sukumar
Since minor represented by his
mother and natural guardian
Smt.Shanthamma
All are residents of Venkatapura
(Kalyani), First Block, 8th Cross,
Koramangala, Bengalooru 560 034.
2. Sri.Vasantha, aged about 69 years,
S/o. late Munivenkatappa
3 O.S.No.2713/1995
Resident of Venkatapura village,
Begur Hobli, Bengalooru South
Taluk, Bengalooru District.
4. Pushpamma, aged about 52 years,
W/o Muniraju, C/o. Govindamma,
Stall #111, Krishnarajendra
Market, Bengalooru 560 002.
5. Gowramma, aged about 70 years
6. Shamanna, aged about 60 years,
S/o. late Munivenkatappa
7. Jayalakshmi, aged about 48 years,
W/o. Munirama, D/o. late
Munivenkatappa
8. M.Prakash, aged about 46 years,
S/o. late Munivenkatappa
Sl.Nos.5-8 are residents of
Venkatapura village, Begur Hobli,
Bengalooru South Taluk,
Bengalooru District.
9. Shakuntala, aged about 35 years,
W/o.Muniraju, D/o. late
Munivenkatappa, Maduranagar, II
Stage, Muthasandra Road,
Sorahunise Post, Bengalooru 560
087.
10. Amaravathi, aged about 32 years,
W/o. Narayanaswamy, D/o. late
Munivenkatappa, #9, IV Cross,
Sirinivagalu, Near Yellamma
temple, Vivekanagar Post,
Bengalooru 560 047.
11. Shankar, aged about 39 years,
S/o. late Munivenkatappa
4 O.S.No.2713/1995
12. Manju, aged about 29 years, W/o.
Paramesh, D/o. late
Munivenkatappa
Sl.Nos.11 & 12 are residents of
Venkatapura village, Begur Hobli,
Bengalooru South Taluk,
Bengalooru District.
13. Smt.Yellamma, aged about 80
years, Residing at V.P.No.24,
Venkatapura Village, Begur Hobli,
Bengalooru South Taluk,
Bengalooru District.
Transposed as 13th Defendant from
first plaintiff as per Order
dt.3.9.2010 on I.A.No.13
[D-1(a) to (c) by advocate Sri S.V.R. D-2 by
advocate Sri K.M.J. D-4 & D-6 by Sri G.S.
and D5, 7 to 10 by advocate R.S.]
Date of institution of the 20.04.1995
suit
Nature of the suit: Partition and separate
possession and also
mesne profits
Date of commencement of 17.02.2004
recording of evidence:
Date on which Judgment 17.03.2018
was pronounced
Total duration: Year Month Days
12 10 25
5 O.S.No.2713/1995
JUDGMENT
This suit is filed by the plaintiffs against the defendants for partition, separate possession, declaration and mesne profits.
2. The case of the plaintiffs as per the plaint averments, is that one late Munivenkatappa had wife by name Smt.Yellamma. Out of the wedlock in between Munivenkatappa and Yellamma, plaintiff No.2 and 3 and defendant No.1 to 3 have been born. Further case of the plaintiffs is that defendant No.4 and 5 are not related to the plaintiffs, but they are claiming the share in the suit schedule properties under alleged partition deed dated 5.11.1962.
The plaintiffs further submits that late Munivenkatappa has been in exclusive possession and enjoyment of the suit schedule property which was allotted to him out of the partition held in between his brother late Chinnanna long back. Sy.No.48/11 - 18 guntas, Sy.No.48/14 - 15 guntas, Sy.No.50/6 - 11 guntas and House No.24 (old), New No.64 in VP No.64 are the ancestral properties of the late 6 O.S.No.2713/1995 Munivenkatappa. Sy.No.48/9 - 7 guntas, Sy.No.48/25
- 1 acre 4 guntas situated at Venkatapura village are the self acquired properties of the deceased Munivenkatappa. Therefore, the plaintiffs and legal heirs of defendants 1, 2 and 4 are enjoying in joint possession and enjoyment of the suit schedule properties.
Further the plaintiffs submits that late Munivenkatappa who was suffering from paralysis since 1981 and he was not able to move or talk and bedridden till his death. The late Munivenkatappa died on 9.12.1989 leaving behind him the joint family members i.e. 1st plaintiff (widow), plaintiffs 2 and 3 (daughters) and his sons defendants 1,2,7 & 10, daughters defendants 6,8,9 and 11 who are only the legal heirs of deceased Munivenkatappa to succeed to the suit schedule properties.
Further the plaintiffs submits that during the lifetime of Munivenkatappa while living with his joint family till his death. After his death, the difference arose in between plaintiffs and defendants 1 to 3 in 7 O.S.No.2713/1995 respect of the shares of the joint family properties. The defendants 1 to 3 had some documents with them began to threaten the plaintiffs. Therefore, the plaintiffs demanded their respective shares in the joint family properties and self acquired properties of deceased Munivenkatappa.
Further the plaintiff no.3 submits that when the registered partition deed executed dated 21.9.1961 at that time, plaintiff no.2 and 3, defendant no.1 to 3 were minors. Therefore, the said partition deed dated 21.9.1961 is not binding on them and also another partition deed dated 5.11.1962 which is said to have been executed by late Munivenkatappa in favour of defendant no.5 is also not binding on their share since defendant no.5 to 13 are not at all related and concerned to the family of late Munivenkatappa. Therefore, late Munivenkatappa had no exclusive right to partition the schedule properties under alleged partition deed dated 21.9.1961 and also 5.11.1962.
Further plaintiffs came to know that Munivenkatappa executed a Will dated 12.7.1989 with 8 O.S.No.2713/1995 regard to the item No.5 and 6 in favour of defendant no.5 which is illegal since late Munivenkatappa was bed ridden and was not capable to talk or move since 1981. Under such circumstances, alleged Will dated 12.7.1989 is created, forged one, just to knock off the property. The properties of Sy.No.89/9 and Sy.No.48/25 measuring 9 guntas and 1.04 acres respectively stands in the name of the deceased Munivenkatappa till now.
Therefore, plaintiffs requested the defendant no.1 to 4 to give their share in the joint family properties from the last one year and demanding but the defendant no.1 to 4 are evading to give their legitimate shares by putting forth for one or the other reason. Therefore, the plaintiffs are entitled for their legitimate shares in the schedule properties.
The 2nd plaintiffs submit that she is daughter of late Munivenkatappa and Smt.Yellamma, but the defendants with malafide intention have not made her party in earlier suits in order to grab her share in the suit schedule property. Therefore the earlier suits 9 O.S.No.2713/1995 O.S.No.5311/1993, O.S.No.1159/1985, O.S.No. 10162/1985, O.S.No.5311/1993 in which the 2nd plaintiff was not the party. Therefore any judgments and decisions which were taken in the above suits behind back of her and such judgment and decree passed in the above suits and even in RFA No.651/2003 are not binding on her. Further 2nd plaintiff submits that the 1st plaintiff transposed herself as defendant no.13. Originally this suit is filed by 2nd defendant and 1st plaintiff Yellamma against the defendants 1 to 6.Then, the 1st plaintiff got engaged separate advocate and she has started showing different attitude towards 2nd plaintiff. 1st plaintiff also forced the 2nd plaintiff to withdraw the suit and also has given threat to the 2nd plaintiff to withdraw the suit otherwise she will take up contention that plaintiff No.2 is not her daughter. Subsequently after made enquiries with 3rd plaintiff about the behaviour of the 1st plaintiff, after filing this suit, 1st plaintiff filed a petition for maintenance against defendants 1 and 2. All of a sudden on the influence and pressure of 2nd 10 O.S.No.2713/1995 defendant, the 1st plaintiff turned hostile supporting the 2nd defendant. Therefore, the 1st plaintiff transposed herself as defendant no.13 in this case. Further the 2nd plaintiff submits that she is the daughter of Munivenkatappa and Smt.Yellamma. Further 1st plaintiff, 3rd plaintiff, defendant no.1,2 and 4 admitted that 2nd plaintiff is the daughter of late Munivenkatappa and Smt.Yellamma. Further 2nd plaintiff submits that there was no partition held in between herself with the defendants 1 to 4 in respect of suit schedule properties. Further 2nd plaintiff submits that since her husband deserted her, then 1st plaintiff allowed her to stay in a portion of house bearing No.23 and now this 2nd plaintiff is residing in the said portion from past 5 to 6 years with her children. Further 2nd plaintiff submits that the 1st plaintiff started to harassing her and recently removed some of the doors of her portion, then she lodged police complaint. Further the defendants have failed to account the compensation amount received on the acquisition of 11 O.S.No.2713/1995 the land in Sy.No.61/2 in which the 2nd plaintiff is also entitled to share of the compensation.
The cause of action for filing of this suit arose in the month of February 1994 when the plaintiffs demanded their shares in the suit schedule properties from defendants 1 to 4. The defendants 1 to 4 and also defendants 5 and 6 are attempting to sell certain portions in the suit schedule property and if any such purchase is made out in the suit schedule properties, such sale deeds does not derive any right over the property in respect of the shares of the plaintiffs. Since the parties to the suit are residing and the suit schedule properties are situated within the jurisdiction of this court and hence, this court has got territorial jurisdiction for conducting trial of this case. Therefore, the plaintiffs requested the court to decree the suit as prayed in the prayer column of the plaint.
3. During pendency of this suit, defendant no.1 has died and his LRs defendant No.1(a) to 1(e) have been brought on record as legal representative of deceased defendant No.1. LRs of deceased defendant 12 O.S.No.2713/1995 No.1 together filed a written statement. In the written statement, the LRs of deceased defendant No.1 submits that suit filed by the plaintiffs is not maintainable either in law or on facts and the same is liable to be dismissed in limine. Further, the LRs of deceased defendant No.1 submits that there is no cause of action arose for filing of the suit and alleged cause of action is false, created and vexatious.
Further in the written statement of LRs of defendant No.1 took contention that suit filed by the plaintiffs is bad for mis-joinder and non-joinder of necessary parties and properties.
The suit filed by plaintiffs is barred under the principles of res-judicata in view of the judgment and decree passed in O.S.No.1159/1985, O.S.No. 6835/1991, O.S.No.5311/1993, O.S.No.10162/1985 and O.S.No.1219/1983. On this ground also, suit filed by the plaintiffs is liable to be dismissed.
The LRs of deceased defendant No.1 submits that the plaintiffs by suppressing true and material facts approached the court with unclean hands. Therefore, 13 O.S.No.2713/1995 the reliefs sought for by the plaintiff no.2 and 3 would not at all survive.
Further in para 8 of the written statement, LRs of deceased defendant No.1 submits that Smt.Yellamma who is the 1st wife, then she transposed as 13th defendant is a legally wedded wife of Munivenkatappa, but 2nd plaintiff Manju Kumari is not the daughter of late Munivenkatappa. The 3rd defendant who also transposed as plaintiff no.3 in collusion with plaintiff no.2 claiming her share is not tenable under law. Defendants 1 to 4 are the sons and daughter of Munivenkatappa and defendant no.5 is alleged to be wife of Munivenkatappa and defendant no.6 is the son of defendant no.5. But in para-8, LRs of the deceased defendant no.1 admitting the defendants 5 and 6 are claiming to be the owners of the portion of suit schedule property as per registered partition deed dated 5.11.1962.
Further with regard to the allegations made at para-3 and 4 of the plaint, LRs of the deceased defendant no.1 admitted part of the averments made 14 O.S.No.2713/1995 out in the said paras, but in para-9, LRs of the deceased defendant no.1 submits that due to the misunderstanding between late Munivenkatappa and 1st plaintiff (13th defendant) in the year 1960 and late Munivenkatappa, his children defendants 1 to 4 partitioned through registered partition deed dated 21.9.1961 and 2/3rd share allotted to defendants 1 to
4. Late Munivenkatappa retained 1/3rd share in the ancestral properties. The late Munivenkatappa has given his 1/3rd share which was retained by him to defendants 5 and 6 and other children of defendant no.5 under registered partition deed dated 5.11.1962. Late Munivenkatappa, after acquisition of the land by Bangalore Development Authority in Sy.No.61/2, remained only Sy.No.48/9 measuring 7 guntas and Sy.No.48/25 measuring 1 acre 4 guntas. But it is not admitted by the LRs of the deceased defendant No.1 that these two survey numbers have been alleged to be bequeathed by Munivenkatappa by executing Will dated 12.7.1989 in favour of defendants 5 and 6. 1st and 2nd defendant challenged the said Will in 15 O.S.No.2713/1995 O.S.No.5311/1993 wherein the court declared that said Will dated 12.7.1989 is not genuine and is not binding on the defendants 1 and 2 as per the judgment dated 30.9.2002. Further LRs of the deceased defendant no.1 submits at para 13 that plaintiff no.2 is not the daughter of late Munivenkatappa. Similarly she is not the sister of defendants 1 to 4, since plaintiff no.1 and late Munivenkatappa are not in cordial terms since in the year 1960 and there was also a criminal case filed by Smt.Yellamma against Munivenkatappa and 5th defendant and her parents for the offence punishable u/s.494 of IPC before Sub Divisional Magistrate at Hosur and same was ended in discharging the accused from the alleged offence.
Further LRs of the deceased defendant no.1 submits that plaintiff no.2 was not born to the late Munivenkatappa. In partition deed dated 21.9.1961 late Munivenkatappa declared as only 2 sons and 2 daughters to him from Smt.Yellamma who was the 1st plaintiff and subsequently transposed as defendant no.13. Further LRs of the deceased defendant no.1 16 O.S.No.2713/1995 submits at para 14 in the written statement that there is no cause of action arose for filing of the suit by plaintiff no.2 and 3 and alleged cause of action is far from the truth. Therefore on this ground, suit filed by the plaintiffs 2 and 3 is not maintainable, since plaintiffs are not in possession of the suit schedule properties. Therefore, they have not paid proper court fee and not made proper valuation as per K.C.F. & S.V. Act.
In para 17 of the written statement, it is contended by LRs of the deceased defendant no.1 that defendants 1 and 2 filed suit against their father Munivenkatappa and after his death, plaintiff no.1 (Yellamma), defendant no.3 to 5 contested the suit and the said suit was dismissed. Again, Munivenkatappa filed an injunction suit against 1st plaintiff (Yellamma), defendant no.1 and 2 in O.S.No.10162/1985 and after his death, defendants 5 and 6 and children of 5th defendant have contested the suit in respect of Sy.No.48/25 and 48/9 and the said suit came to be decreed. The 6th defendant also filed injunction suit 17 O.S.No.2713/1995 against 1st defendant and others in respect of portion of suit item No.1, 2 and 3. The said suit in respect of 'A' schedule property decreed and against 'B' schedule property dismissed.
Further at para 19, LRs of the deceased defendant no.1 submits that defendants 1 to 4 entitled to 2/3rd share as per partition deed dated 21.9.1961 and remaining 1/3rd share in the suit schedule properties are entitled by defendants 5 and 6 and children of 5th defendant as per partition deed dated 5.11.1962. Munivenkatappa retained Sy.No.48/9 measuring 7 guntas and Sy.No.48/25 measuring 1 acre 4 guntas and after his death, his legal representatives i.e. plaintiff No.1 (Yellamma) and defendants 1 to 4 and 6 and other children of defendant no.5 jointly entitled to 1/11th share as observed in the common judgment in O.S.No.1159/1985 dated 30.9.2002. The children of defendant no.5 challenged the judgment and decree dated 30.9.2002 passed in O.S.No.1159/1985 before the Hon'ble High Court of Karnataka in RFA 18 O.S.No.2713/1995 No.651/2003 which was withdrawn by filing a memo dated 20.7.2007.
Defendant no.2 in collusion with plaintiff no.1 (Yellamma) and plaintiff No.2 and defendant no.4 without knowledge and consent of defendant no.1 illegally sold Sy.No.48/14 measuring 10 guntas i.e. portion of the suit item No.2 under registered sale deed dated 17.4.2006 in favour of Balakrishna Reddy and Y.N.Ramakrishna Reddy of Bangalore. Therefore said sale deed is not binding on the legal heirs of the 1st defendant. Similarly, 6th defendant also sold their shares of 5 guntas in favour of the above said persons through registered sale deed in respect of Sy.No.48/14, an extent of 15'x50' under registered sale deed dt.6.7.1989 and also in respect of Sy.No.48/25 in favour of different purchasers. Therefore, said above sale deeds are not binding on the LRs of the deceased defendant no.1.
Defendant no.5 and her children entered into partition deed dated 24.10.2005 and the said fact came to the knowledge of LRs of 1st defendant. They 19 O.S.No.2713/1995 surprised that without giving share in Sy.No.48/25 measuring 1 acre 4 guntas and in Sy.No.48/9 measuring 7 guntas partitioned without having any exclusive right over the said properties and without the knowledge and consent of the Smt.Yellamma and defendants 1 to 4. Therefore, the said alleged partition is not binding on the legitimate share of the 1st defendant. The defendant no.5 and her children sold out Sy.No.48/9 measuring 7 guntas under registered sale deed dt.7.11.2005 in favour of K.Pratap Reddy, S/o. K.Narayana Reddy, Banjara Hills, Hyderabad. The said alleged transaction is also not within the knowledge of LRs of 1st defendant and same is not binding on them. Therefore, the plaintiffs have suppressed the above transaction and they have not impleaded the above alleged purchasers. Therefore, suit filed by the plaintiffs is not maintainable without cause of action. Hence, plaintiffs 2 and 3 are not entitled to any share.
Further LRs of the deceased defendant no.1 submits that plaintiff no.1 (Yellamma), defendant no.2 20 O.S.No.2713/1995 are acting against the interest, right and share of the LRs of the deceased defendant no.1. Defendants 5 and 6 without any exclusive right over Sy.No.48/9 and Sy.No.48/25 inspite of judgement in O.S.No.5311/1993 dt.30.9.2002 and RFA No.651/2003 dismissed on 20.7.2002. Therefore, the suit filed by the plaintiffs is devoid of merits. Hence, liable to be dismissed.
4. Defendant no.8 filed written statement and the same is adopted by defendants 7 and 9 to 12. In the written statement filed by defendants 7 to 12 admitted that plaintiff no.1 has transposed as defendant no.13 is the legally wedded wife of Munivenkatappa and first wife and plaintiff no.2 is daughter of late Munivenkatappa through his 1st wife Yellamma. So also, defendants 1 to 4 are the sons and daughters of late Munivenkatappa by his 1st wife Yellamma. So far as 5th defendant is concerned, intentionally plaintiffs have not given the correct description and address but 5th defendant is the 2nd wife of Munivenkatappa and defendant no.6 to 12 are 21 O.S.No.2713/1995 sons and daughters of late Munivenkatappa through his 2nd wife Gowramma i.e. 5th defendant. But the defendants 7 to 12 not admitted the allegations made by plaintiffs that defendants 5 and 6 are strangers to the family of the deceased Munivenkatappa. Here, the defendants 7 to 12 admitted suit schedule item no.1 to 4 are the ancestral properties and suit item No.5 and 6 are the self acquired property of deceased Munivenkatappa. But the defendants 7 to 12 not admitted and denied the allegations made at para 4 and 5 of the plaint as false and untrue but in para 4 of the written statement, defendants 7 to 12 contended that 1st plaintiff (Yellamma) had no knowledge about the contents of partition deed dated 21.9.1961. 1st plaintiff came to know that Munivenkatappa further partitioned under registered partition deed dated 5.11.1962 with 5th defendant and certain properties had been given to the share of Gowramma i.e. 5th defendant, but it is contended by defendants 7 to 12 that late Munivenkatappa had no right to give any share in the properties to the 5th defendant. It is also 22 O.S.No.2713/1995 contended that partition deed dated 5.11.1962 is illegal and not binding on the plaintiff. Further, defendants 7 to 12 have also denied the allegations made at para 6 to 10 are false and untrue. But in para 13 of the written statement filed by defendants 7 to 12, they submits that LRs of late Munivenkatappa and 5th defendant, defendants 7 to 12 being sharers are entitled for their legitimate shares in the suit schedule properties which are all joint possession and enjoyment of the plaintiffs and defendants 7 to 12. Further defendants 7 to 12 are claiming counter claim for separate possession and enjoyment of their legitimate shares in the suit schedule property. Accordingly, they are filing counter claim and paid separate court fee. Hence, defendants 7 to 12 requested the court to pass a judgment and decree for effecting partition and separate possession of their legitimate share in the schedule properties and put in separate possession and enjoyment of their share in the interest of justice and equity.
23 O.S.No.2713/1995
5. Defendant No.2 filed written statement. In the written statement, he admitted that Yellamma is the legally wedded wife of Munivenkatappa. But defendant no.2 denied that plaintiff no.2 Manju Kumari is the daughter of Munivenkatappa. Further defendant no.2 submits that the relationship between his father Munivenkatappa and mother Yellamma was restrained much prior to 1960, since mother Yellamma had illicit relationship with Muniyappa who was vegetable vendor in the City Market. Therefore, the said Yellamma was residing with Muniyappa in Ramachandrapura in a house belongs to one Ramaiah. The 2nd plaintiff Manju Kumari was born to Muniyappa when Yellamma was residing with him. Therefore, Manju Kumari is not daughter of Munivenkatappa. Hence, the 2nd plaintiff is not entitled any share in the suit schedule property left by deceased Munivenkatappa. Further 2nd defendant submits that his mother Yellamma and father Munivenkatappa was not in good terms prior to 1960, as mother Yellamma had relationship with one Muniyappa and then, his 24 O.S.No.2713/1995 father Munivenkatappa had illicit relationship with Gowramma. The 2nd defendant submits that his mother Yellamma filed criminal case against her husband Munivenkatappa u/s.494 of IPC in Case No.16/1961 before Sub Divisional Magistrate, Hosur. In the said complaint given by Yellamma, she herself stated that 2 male and 2 female children have been born to her through Munivenkatappa. Further 2nd defendant states that his father gave share in the property under registered partition deed dated 21.9.1961. In the said partition also, it is clearly mentioned that Munivenkatappa had son by name Sukumar aged 11 years, Vasantha aged 5 years and two daughter by name Indiramma aged 8 years, Pushpavathi aged 2 years. On 5.11.1962 Munivenkatappa gave share to his 2nd wife and children under registered partition deed.
2nd defendant further submits that his mother Yellamma was living with Muniyappa and his father was living with Gowramma. Further defendant no.2 submits that his mother Yellamma and his father 25 O.S.No.2713/1995 Munivenkatappa were not in talking terms and they were not seeing each other from 1959-60 and Manju Kumari plaintiff no.2 is not the daughter of Munivenkatappa, she born to Muniyappa. Further defendant no.2 submits that when they grown up, they filed suit for partition and separate possession i.e. O.S.No.1159/1985 and O.S.No.10162/1985 against Munivenkatappa. At that time, when Munivenkatappa died, Manjukumari was not brought on record of deceased Munivenkatappa. The said plaintiff no.2 Manju kumari filed applications to implead her as party in O.S.No.1159/1985 contending that she is the daughter of Munivenkatappa but the said application was dismissed. 2nd defendant further stated that on the request of his mother Yellamma, one site was given to Manju kumari and possession was not delivered. But immediately, Manju kumari entered into an agreement with one Ramakrishna and received Rs.20,000/- from him. After Ramakrishna came to know about the litigation pending in respect of suit schedule property, he requested 2nd defendant to 26 O.S.No.2713/1995 return his money. The 2nd defendant gave Rs.30,000/- and took document from him. The site was given at the instance of their mother. In C.Mis.No.293/97, defendants 1 and 2 clearly stated that their mother was vending greens in City Market and was living with one Muniyappa and Manju Kumari is born to said Muniyappa and she is not the daughter of Munivenkatappa. In C.Mis.No.293/97, the 1st defendant has clearly given evidence that Manju Kumari is born to Muniyamma and their mother neglected them in their childhood.
Further it is contended by 2nd defendant that he constructed house in site No.50/6 measuring East- West 60 feet and North-South 40 feet bearing katha No.23, which consists of three floor in which there are 25 tenements. The RTC extract shows that the 2nd defendant is in possession of 7 guntas of land in Sy.No.50/6. The remaining portion is in possession of 1st defendant. The electricity meter, water meter and telephone connection stand in his name and he has let out the building to tenants.
27 O.S.No.2713/1995
The 2nd defendant further stated in the written statement that the entire building constructed by him is in the occupation of tenants and Manju Kumari is not in possession of any portion of house in Sy.No.50/6 and she is trying to take possession by obtaining Court Order.
The 2nd defendant further stated that their mother Yellamma received compensation amount in respect of Sy.No.61/2 when they were aged 2-3 years old. A portion of the suit schedule property was sold by 5th defendant and children long back. The purchasers are not made parties to this suit and hence the suit is bad for non-joinder of necessary parties.
It is further contended by the 2nd defendant in the written statement that all the issues involved in this case have been decided in O.S.No.1159/1985, O.S.No.10162/1095, O.S.No.6835/1991 and O.S.No.5311/1993 and all the plaintiffs and defendants were parties in those suits. The plaintiff Manju Kumari has nothing to do with the property of Munivenkatappa. In the above suits,the Court has 28 O.S.No.2713/1995 upheld the partition deed dt.5.11.1961 and 1962. The plaintiff Manju Kumari was born to Muniyappa only after 1963, and therefore, she is not entitled to challenge it. As the remaining parties were parties in the above said suits, it is binding on them.
The 2nd defendant submits that the entire property belonging to Munivenkatappa is the subject mater in this suit. The plaintiff Manju Kumari is not the legal heir of Munivenkatappa. Hence the suit is not maintainable and the plaintiff Manju Kumari is not entitled for share in the suit schedule property.
The 2nd defendant further took contention in para 17 of the written statement that in the cause title to this suit, the plaintiff Manju Kumari has given her address as resident of Sulibele road, Hosakote taluk. In the application filed under Order I Rule 10 in O.S.No.1159/1985, she has given her address as Sulibele road, Hosakote taluk. Recently she has created some documents so as to suit her case. She is not in possession of any portion of suit schedule property. The documents are created only for the 29 O.S.No.2713/1995 purpose of this case. Hence on these grounds,the 2nd defendant prayed to dismiss the suit.
6. The 5th defendant alone filed written statement. She admitted in the written statement that the plaintiff No.1,subsequently transposed as defendant No.13, is the legally wedded wife of late Munivenkatappa and plaintiff No.2 is the daughter of Manju Kumari.So also defendants 1 to 4 are the sons and daughters of Late Munivenkatappa through his first wife-Smt.Yellamma, the 1st plaintiff.
The 5th defendant further submitted in the written statement that she is the second wife of Late Munivenkatappa and 6th defendant is the son of Late Munivenkatappa by his second wife-Gowramma,the 5th defendant.
Further in the written statement, the 5th defendant submits that the item Nos.1 to 4 of the suit schedule properties are the ancestral family properties of Late Munivenkatappa and Item Nos.5 and 6 are the self-acquired properties of Late Munivenkatappa situated at Venkatapura village.
30 O.S.No.2713/1995
Further 5th defendant denied that defendants 1 to 4 began to quarrel with plaintiffs 1 and 2 and hence plaintiffs 1 and 2 demanded their share in the joint family properties and also self acquired properties of Late Munivenkatappa, but defendants 1 to 4 did not co-operate with the demand made by plaintiffs 1 and
2. Further the 5th defendant denied the allegations made at para Nos.5 and 6 of the plaint as untenable and false. But in para 8 of the written statement, the 5th defendant submits that Late Munivenkatappa executed a Will dt. 12.7.1989 in respect of Item Nos.5 and 6 of the suit schedule properties in favour of 5th defendant, who is his second wife.
Further in para 13 of the written statement, the 5th defendant submits that she being the sharer, is entitled for her legitimate share in the suit schedule properties which are all in joint possession and enjoyment of the plaintiffs, defendants as well as the children of 5th defendant. Consequently the 5th defendant is claiming her legitimate share in the suit 31 O.S.No.2713/1995 schedule properties and hence she is making counter claim for separate possession and enjoyment of her legitimate share in the suit schedule properties and on the counter-claim she has paid Court Fee u/S 35(2) of the Karnataka Court Fee & Suit Valuation Act and accordingly the 5th defendant has set her counter claim under Order 8 Rule 6(A) of C.P.C. Therefore the 5th defendant prays the court to pass Judgment and decree for affecting partition and allot her legitimate share in the suit schedule properties,in the interest of justice and equity.
7. After the 1st plaintiff transposed as 13th defendant, filed written statement dt.13.9.2010. In the written statement, the 13th defendant contended that the suit filed by the plaintiffs is false,vexatious and filed only with mala fide intention wrongful gain and to give unnecessary trouble to her.
Further 13th defendant submits that the averments made at para 2 of the plaint that she is the wedded wife of Late Munivenkatappa is true and correct. But she denied that plaintiff No.2 is daughter 32 O.S.No.2713/1995 of Late Munivenkatappa. Further the 13th defendant submits that defendants 1 to 4 are sons and daughters born to Late Munivenkatappa.
The 13th defendant submits that plaintiffs 2 and 3 have created false story in all paras of the plaint. Further 13th defendant submits that partition deed dt.21.9.1961 and another partition deed dt.5.11.1962 are decided by the Court in common Judgment passed in O.S.No.1159/1985, 10162/85, 6835/91 and 5311/93. This fact is very well known to plaintiffs 2 and 3 and hence the question of partition does not arise.
Further in para 8, the 13th defendant submits that there is no relationship between the 2nd defendant and the legal representatives of Late Munivenkatappa or 13th defendant and hence the question of undivided joint family does not arise. The 2nd defendant purposefully obtained signature of 13th defendant without her knowledge and filed this false suit. The alleged Will has been already decided in O.S.No.5311/1993 and therefore, the question of Will 33 O.S.No.2713/1995 does not arise. The plaintiff No.2 is in no way related to the other defendants and to her.
Further in para 13 of the written statement, the 13th defendant submitted that she is illiterate old lady and suffering from various diseases. Hence she engaged the 2nd plaintiff for household work and to lookafter her. Taking advantage of illiteracy and goodness of 13th defendant, the 2nd plaintiff has obtained her signatures without her knowledge and created false story by filing amendment application and thereafter the 13th defendant filed an application for transposing the 1st defendant as 13th defendant.
Further defendant No.13 submits that there is no cause of action for filing of this suit and the alleged cause of action is imaginary and the Court Fee paid by the plaintiff is insufficient and hence the suit of the plaintiff is liable to be dismissed.
Further defendant No.13 submits that she is illiterate lady and without her knowledge the plaintiff No.2 obtained her signature and filed this false suit. Recently when she was brought to this court by 34 O.S.No.2713/1995 plaintiff No.3, she came to know about illegal activities of plaintiff No.2 and thereafter she obtained no objection from her previous advocate and engaged another advocate, who disclosed her the real facts of this case. The 2nd plaintiff is not her daughter. The 3rd plaintiff set up the 2nd plaintiff to file this false suit.
Further defendant No.13 submits that taking advantage of her illiteracy and old-age, the 2nd plaintiff obtained her signatures and filed false suit in O.S.Nod.1219/83 for partition and the same was dismissed for default.The 2nd plaintiff also created false partition deed dt.7.12.1984. The 2nd plaintiff also filed O.S.No.2694/2004 against one Rakesh, Papanna, Srinivasa and Muniswamappa for the relief of permanent injunction in respect of Item No.6 of the suit schedule properties, without knowledge of the 13th defendant and the same is pending before the court.
Further defendant No.13 submits that Late Munivenkatappa executed registered Partition Deed in favour of 13th defendant and her children on 21.9.1961 and another partition deed in favour of defendant No.5 35 O.S.No.2713/1995 and her children on 5.11.1962. The defendants 1 and 2 have filed O.S.No.1159/85 against Late Munivenkatappa, 13th defendant and defendant No.5.
During pendency of the said suit, Late Munivenkatappa died and his legal representatives i.e., plaintiff No.3 and 4th defendant are brought on record. Late Munivenkatappa had filed O.S.No.10162/85 against the 13th defendant, defendants 1 and 2 for the relief of permanent injunction. The defendant No.6 had filed O.S.No.6835/1991 against the 13th defendant and defendants 1 and 2 for the relief of permanent injunction. The defendants 1 and 2 have filed O.S.5311/93 against defendants 5 and 6 and defendants 7 to 12 for the relief of declaration. The 2nd plaintiff Manju Kumari is not a party in all the above referred case. The 2nd plaintiff Manju Kumari filed two applications under Order I Rule 10(2) of C.P.C. in O.S.1159/85, which were dismissed. All the above four cases clubbed and disposed of by common judgment dt.30.9.2002. O.S.No.5311/1993 is partly decreed with cost that the Will dt.12.7.1989 executed by Late 36 O.S.No.2713/1995 Munivenkatappa is not genuine and not binding on defendants 1 and 2.
Further at para 15 of the written statement,defendant No.13 submits that the plaintiff No.2 is not born to her and Late Munivenkatappa and she is not the joint family member and not entitled to joint family properties. The defendants 1 and 2 filed a suit for partition in O.S.1159/1985. The impleading applications filed by plaintiff No.2 dt.28.3.1994 and 8.8.1994 were dismissed. In the said applications the 2nd plaintiff given her address and cause title in this suit as Sulibele road, Hosakote taluk. Further the 2nd plaintiff has filed O.S.No.2694/2004 without knowledge of 13th defendant and in that suit she has given address in the causetitle as 8th Cross, K.M.Colony, Venkatapura village, Koramangala, Bengaluru and now she has given her address a No.23,7th Main road, near Maramma temple, Venkatapura, New Koramangala,Bengaluru. The above different addresses given by the 2nd plaintiff indicates that she is not residing as joint family member and 37 O.S.No.2713/1995 also not in joint possession of the suit schedule properties.
Further defendant No.13 submits that defendants 5 o12 have filed R.F.A.No.651/2003 before the Hon'ble High Court of Karnataka against the Judgment and decree passed in O.S.No.5311/1993 dt.30.9.2002. During pendency of the above R.F.A.., defendants 5 to 12 had violated the terms of interim order passed by the Hon'ble High Court of Karnataka, as such defendant No.1 had filed contempt application and defendants 5 to 12 filed a Memo for withdrawal. After taken the Memo, the Hon'ble High Court of Karnataka has dismissed the R.F.A. Further defendant No.13 submits that at para 17 of the written statement that defendants 2 and 3 colluded with each other without the knowledge of 13th defendant and filed false suit. All the joint family properties were already partitioned legally and all are in individual possession and enjoyment of the same by exercising individual capacity. During the life time of Late Munivenkatappa in the year 1961and 1962 itself 38 O.S.No.2713/1995 partition took place. Now plaintiffs 2 and 3 came with false case after obtaining the common decree in the above referred cases.
Further at para 18 of the written statement , defendant No.13 submits that in the year 1961 itself, misunderstanding arose between 13th defendant and her husband Late Munivenkatappa and she filed private complaint before Sub Divisional Magistrate, in case No.16/1961 and in that case also the 13th defendant stated that she has only two male and two female children.
Further in para 19 of the written statement, defendant No.13 submits that the plaintiff tried to obtain her signatures on blank papers. Act that time she refused to sign the said papers and at that time, plaintiff No.2 attempted to kill 13th defendant in that regard. The 13th defendant lodged a complaint against the 2nd plaintiff before the jurisdictional police. Thereafter the 2nd plaintiff filed the false amendment application. The 2nd plaintiff was working in the house of 13th defendant as a servant before 1982 and she 39 O.S.No.2713/1995 was working honestly and looked after 13th defendant as faithful lady. In that connection, 13th defendant had given one site of 2nd plaintiff in Sy.No.50/6 of Venkataura village. The same was sold by 2nd plaintiff to one Ramakrishna in the year 1987. The 1st defendant has sold the site formed in Sy.No.48/11 in favour of Narayana and Deva jointly in the year 1985 and also sold site No.5 formed in Sy.No.50/6 in favour of M.Ramakrishna in the year 1987 and also sold house bearing village panchayat katha No.23 and house list No.24 of Venkatapura village in favour of 2nd defendant in the year 1989. Subsequently the above referred sites formed in Sy.No.50/6 of Venkatapura village and sites formed in Sy.No.48/11 were purchased by the 2nd defendant from different purchases on different dates and the 2nd defendant has constructed house in the above referred sites and residing with his family members. Therefore on these grounds, the 13th defendant prayed this court to dismiss the suit filed by plaintiff Nos.2 and 3. 40 O.S.No.2713/1995
8. On perusing the pleadings of the plaint and also written statement filed by Legal representative =s of defendant No.1, defendant No.2, defendant No.5 and defendants 7 to 12 and defendant No.13, my predecessor has framed Issue Nos.1 to 7 on 1.02.2001 and additional Issue Nos.1 to 3 on 10.6.2010 as follows:-
1. Whether the Plaintiffs prove that the 2nd plaintiff is the daughter of Late Munivenkatappa?
2. Whether the suit schedule properties are the joint family properties of plaintiffs and defendant Nos.1 to 4?
3. Whether the Plaintiffs prove that the Partition Deeds dated 21.09.1961 and 5/11/1062 are not binding on them?
4. Whether the Plaintiffs prove that the Will dt.12.7.1989 executed by Munivenkatappa in favour of 5th defendant is not binding on them?
5. Whether the suit is not maintainable?
6. To what reliefs, the plaintiffs are entitled to?
7. What decree or order?41 O.S.No.2713/1995
Addl.Issues framed on 10.6.2010:
1. Whether defendant Nos.5 to 12 prove that defendant No.5 is the legally wedded wife of late Sri Munivenkatappa and defendant Nos.6 to 12 are children of Late Sri Munivenkatappa born to defendant No.5?
2. Whether defendant No.5 proves that by executing a Will dated 12.7.1989 Late Sri Munivenkatappa had bequeathed item Nos.5 and 6 of suit schedule properties in her favour?
3. Whether defendant Nos.5 to 12 prove that they are entitled to a share in suit properties and if so what share?
9. In this case, the 1st plaintiff, before transposing as defendant No.13 adduced her oral evidence by filing his sworn affidavit considered as PW1 and in further chief examination of PW1, the documents produced by him are marked as Ex.P1 to P12 But PW1 was not cross-examined since she has already transposed as defendant No.13. Plaintiff No.3 adduced her evidence as PW2( transposed as plaintiff No.3 from the status of defendant No.3). The legal representative of plaintiff No.3 adduced oral evidence as PW3, but no documents are marked. The plaintiff No.2 herself adduced oral evidence as PW4 and in 42 O.S.No.2713/1995 further chief examination of PW4, Ex.P13 to 25 are marked. On the other hand, by the side of defendants, the legal representative 1(c) of deceased defendant No.1, adduced oral evidence as DW1 and in further chief examination of DW1, the documents Ex.D1 to D16 are marked. The defendant No.2 has adduced his oral evidence as DW2. In further chief examination of DW2, Ex.D17 to D22 are marked. Hence after hearing oral arguments and also on perusal of written arguments on both sides, this case is posted for judgment.
10. My findings for the issues framed my predecessor as follows:-
Issue No.1: In the Negative. Issue No.2: In the Negative. Issue No.3: In the Negative. Issue No.4: Does not arises for consideration in view of finding given in O.S.No.5311/1983 Issue No.5: In the affirmative Issue No.6: In the Negative. Addl.Issue No.1: In the negative 43 O.S.No.2713/1995 Addl.Issue No.2: In the negative Addl.Issue No.3: In the negative. Issue No.7: As per final order, for the following:
REASONS ISSUE NO.1
11. Originally this suit was filed by Smt.Yellamma as plaintiff No.1 and Smt.Manjukumar @ Manju as plaintiff No.2 against defendants 1 to 5. Later on, the defendant No.3 transposed as plaintiff No.3 and plaintiff No.1 transposed as defendant No.13. Subsequently during pendency of this suit, defendants 6 to 12, who are the sons and daughters of defendant No.5 have been impleaded.
12. The case of plaintiffs No.2 and 3 is that Item Nos.1 to 4 of suit schedule properties are the ancestral properties and Item Nos.5 and 6 are the self-acquired properties of Late Munivenkatappa who is the main propositor of the family of plaintiffs and defendants. The plaintiff Nos.2 and 3 filed this suit when there arose differences between them and defendants 1 and 2 as they are managing the joint family properties 44 O.S.No.2713/1995 detriment to the interest of plaintiffs 2 and 3. Therefore this suit is filed by plaintiffs 2 and 3 for allotting their legitimate share. After Defendant No.3 transposed of plaintiff No.3, the plaint was amended at para 5 added as para 5(a). In the amended plaint at para 5, they took contention that alleged Partition deed dt.21.9.1961 said to has been executed between Smt.Yellamma-Defendant No.13 and her husband Late Munivenkatappa is not at all binding on them since they were minors at that time. Further another alleged Partition deed dt.5.11.1962 executed in between Late Munivenkatappa and Defendant No.5-Smt.Gowramma is not at all binding on them, because, as per the contention of plaintiffs 2 and 3, the Defendant No.5- Smt.Gowramma is not the legally wedded wife of Late Munivenkatappa and plaintiffs No.6 to 12 are not the sons and daughters born to Late Munivenkatappa through Defendant No.5-Smt.Gowramma and hence the alleged Partition deed dt.5.11.1962 is not binding on their share.
45 O.S.No.2713/1995
13. In the written statement filed by defendant No.2 who is the son of Late Munivenkatappa took contention that Plaintiff No.2-Manju Kumari @ Manju is not the daughter of Late Munivenkatappa born through Defendant No.13-Smt.Yellamma, who is mother of deceased defendant No.1, defendant No.2, defendant No.4 and plaintiff No.3. But the contention of defendant No.2 is that Plaintiff No.2-Manju Kumari @ Manju is born to Defendant No.13-Smt.Yellamma through one Muniyappa as there is illicit relationship between Defendant No.13-Smt.Yellamma and Muniyappa who is vegetable vendor in the City Market and Plaintiff No.2-Manju Kumari @ Manju was born when Defendant No.13-Smt.Yellamma was residing and leading illicit relationship with Muniyappa. Therefore Issue No.1 is framed as to prove whether Plaintiff No.2-Manju Kumari @ Manju is the daughter of Late Munivenkatappa through Defendant No.13- Smt.Yellamma.
14. Here in this case, defendant No.2 adduced his oral evidence as DW2 and in Further chief 46 O.S.No.2713/1995 examination of DW2, Ex.D18 to 22 are marked. Here in the cross-examination of DW2 by the counsel for Plaintiff No.2-Manju Kumari @ Manju, in page 11, he has not at all admitted that Plaintiff No.2-Manju Kumari @ Manju is the daughter born to Defendant No.13-Smt.Yellamma through his father Late Munivenkatappa. So also DW2 in his cross- examination in page 19, not at all admitted that Plaintiff No.2-Manju Kumari @ Manju is his sister and daughter of Defendant No.13-Smt.Yellamma born to Late Munivenkatappa.
15. Here the burden of proving Issue No.1 lies on Plaintiff No.2-Manju Kumari @ Manju. In this case Plaintiff No.2-Manju Kumari @ Manju herself adduced her oral evidence as PW4 and in further chief examination of PW4, she stated that she is the daughter of Defendant No.13-Smt.Yellamma born to Late Munivenkatappa. In further chief examination of PW4,the documents produced by her are marked as Ex.P13 to P19. Ex.P13 is the true copy of Cumulative Record; Ex.P14 is the Transfer Certificate; Ex.P15 to 47 O.S.No.2713/1995 18 are the two Study Certificates, Character Certificate and SSLC Marks Card and also Marriage Card. Here, in the cross-examination of PW4 by the counsel for defendant No.2 at page 11, she deposed that she is residing in her husband's house in the address at Sulibele road, Hosakote taluk. Further in the cross- examination of PW4, she admitted that Defendant No.5-Smt.Gowramma is also residing adjacent to her house along with Late Munivenkatappa. But in this case, Plaintiff No.2-Manju Kumari @ Manju(PW4) could not able to establish the fact that she is the daughter of Defendant No.13-Smt.Yellamma born to Late Munivenkatappa.
16. As per Ex.D17 there was a criminal case C.C.No.16/1961 before the Sub Divisional Magistrate, Hosur on the complaint lodged by Defendant No.13- Smt.Yellamma against her husband Late Munivenkatappa, Defendant No.5-Smt.Gowramma and others u/S 494 of IPC i.e.Begami offence. In the order passed by Sub Divisional Magistrate, Hosur, Late 48 O.S.No.2713/1995 Munivenkatappa has been discharged u/S 253(1) of Cr.P.C.
17. Here, prior to filing of this suit, the deceased defendant No.1 and 2 have filed O.S.No.1159/85 against Late Munivenkatappa for partition and separate possession; Late Munivenkatappa had filed O.S.No.10162/85 against the 13th defendant, defendants 1 and 2 for the relief of permanent injunction; the defendant No.6 had filed O.S.No.6835/1991 against the 13th defendant and defendants 1 and 2 for the relief of permanent injunction and the defendants 1 and 2 have filed O.S.5311/93 against defendants 5, 6 and 7 to 12 for the relief of declaration. All the above four cases clubbed and disposed of by common judgment in O.S.No.1159/1985 dt.30.9.2002. O.S.No.1159/1985 is dismissed, O.S.No.10162/1985 is decreed, O.S.No.6835/1991 is partly decreed granting permanent injunction and O.S.No.5311/1993 is partly decreed and in respect of prayer of injunction is dismissed. The 2nd plaintiff Manju Kumari is not a 49 O.S.No.2713/1995 party in all the above referred case. The 2nd plaintiff Manju Kumari filed two applications under Order I Rule 10(2) of C.P.C. in O.S.1159/85, for impleading her as party. But those two applications have been dismissed. But Plaintiff No.2-Manju Kumari @ Manju has not preferred any revision or appeal against the order of dismissal of applications. So here all the parties i.e., plaintiff No.3, defendants 1 to 13 were parties in all the above suits. The defendant No.3, deceased defendant No.1 and defendants 2 to 13 have fully contested the suits. This fact is also known to Plaintiff No.2-Manju Kumari @ Manju(PW4). But here Plaintiff No.2-Manju Kumari @ Manju relying on Ex.P13 to P18, she could not establish that she is the daughter of Defendant No.13-Smt.Yellamma born to Late Munivenkatappa. The documents Ex.P3 to 17 have been issued by the School Authorities. Admittedly they are the public documents as per Sec.35 of the Indian Evidence Act. In the admission certificate as per Ex.P4,the name of Late Munivenkatappa is mentioned in Father's column. Ex.P14 is the Transfer Certificate 50 O.S.No.2713/1995 of Plaintiff No.2(PW4). But in the cross-examination of Plaintiff No.2(PW4) she admitted that at the instance of Defendant No.13-Smt.Yellamma, her education has been completed and she provided all the facilities for completing education of Plaintiff No.2(PW4). Admittedly PW4 studied upto P.U.C. Here as per the statement given by any person who accompanied the child PW4 while getting admissions in the school with regard to her caste, date of birth is to be entered by school authorities. Here Ex.P14 would not sufficient to prove that Late Munivenkatappa is the father of Plaintiff No.2(PW4). Because Ex.P14 to 17 can be considered in order to know the age, date of birth or death,but not the legitimacy of relationship between Plaintiff No.2(PW4) with Late Munivenkatappa. Further on perusing Ex.P17, which is the copy of the PUC Marks Card of Plaintiff No.2(PW4), here the signature of the candidate is kept blank and there is no date mentioned on which the candidate has obtained Ex.P17. So here only on the basis of the transfer certificate, in which the name of Late Munivenkatappa is not sufficient as 51 O.S.No.2713/1995 to prove that Late Munivenkatappa is father of Plaintiff No.2(PW4) and she born to Defendant No.13- Smt.Yellamma through Late Munivenkatappa.
18. Here Plaintiff No.2(PW4) has to prove that she is the daughter born to her mother Defendant No.13-Smt.Yellamma through Late Munivenkatappa, as per Sec.112 of the Indian Evidence Act. There is no DNA test conducted in order to prove the legitimacy of relationship between Plaintiff No.2(PW4) with Late Munivenkatappa. Therefore, the documents Ex.P14 to P17 are not sufficient to prove that Plaintiff No.2(PW4) is daughter born to Defendant No.13-Smt.Yellamma through Late Munivenkatappa. Here Ex.P18 is the Marriage Invitation Card. But these documents are also not sufficient to draw presumption that Late Munivenkatappa is the father of Plaintiff No.2(PW4). So here Ex.P14 to P18 are not conclusive proof to prove the relationship of Plaintiff No.2(PW4) with Late Munivenkatappa, as to prove that she born to Defendant No.13-Smt.Yellamma.
52 O.S.No.2713/1995
19. As per the contention took in the written statement filed by defendant No.2 and suggestions suggested in the cross-examination of DW2 by counsel for legal representatives of deceased plaintiff No.3, it goes to show that Plaintiff No.2-Manju Kumari @ Manju made attempt to implead herself as legal representative of Late Munivenkatappa in O.S.No.1159/1985 and those two applications have been dismissed. So this goes to show that Plaintiff No.2-Manju Kumari @ Manju who is examined as PW4 has never acted as daughter of Late Munivenkatappa born through Defendant No.13-Smt.Yellamma. Therefore, in this case, Plaintiff No.2-Manju Kumari @ Manju utterly failed to prove that she is the daughter of Late Munivenkatappa born through Defendant No.13-Smt.Yellamma. Hence I answered Issue No.1 in the Negative.
ISSUE NOS.2, 3 AND 6
20. The case of plaintiffs 2 and 3 is that the Item Nos.1 to 6 of suit schedule properties are joint family properties of plaintiffs and defendants 1,2 and 53 O.S.No.2713/1995
4. It is also their case that Partition deed dt.21.9.1961 and another Partition deed dt.5.11.1962 are not binding on them.
21. In this case O.S.No.1159/1985 was filed by deceased defendant No.1 against Late Munivenkatappa and after his death legal representatives of deceased defendant No.1 i.e., Defendant No.1(a) and (b) were brought on record and Defendant No.13-Smt.Yellamma and Defendant No.5-Smt.Gowramma were defendants 2 and 3 in that suit. O.S.No.10162/1985 was filed by Late Munivenkatappa and after his death the present Defendant No.5 to 12 were brought on record as Plaintiff Nos.1 to 8. The present Defendant No.13- Smt.Yellamma, deceased defendant No.1 and defendant No.2 were the defendants in the said suit. That suit was filed by Late Munivenkatappa since Item Nos.5 and 6 are his self acquired properties and the defendants in the said O.S.No.10162/1985 have no right in Item Nos.5 and 6 of suit schedule properties in this case.
54 O.S.No.2713/1995
22. Another suit in O.S.No.6835/1991 was filed by Shamanna S/o Late Munivenkatappa who is defendant No.6 in this case as plaintiff against deceased defendant No.1 and defendant No.2 and Defendant No.13-Smt.Yellamma for permanent injunction. Another suit in O.S.No.5311/1983 was filed by present deceased defendant No.1 and defendant No.2 as plaintiffs against present defendant Nos.5 to 12 who are the defendants in the said suit, for declaration that the Will dt.11.7.1989 which was registered on 12.7.1989 is null and void and also for permanent injunction. The suit in O.S.No.1159/1985 was dismissed, O.S.No.10162/1985 was decreed, O.S.No.6835/1991 was partly decreed and O.S.No.5311/1983 was partly decreed. Here O.S.No.10162/1985,O.S.No.6835/1991 and O.S.No.5311/1983 have been clubbed and common judgment was passed in O.S.No.1159/1985. So here as per Partition deed dt.21.9.1961 the present Item Nos.1 to 4 have been allotted to Defendant No.13- Smt.Yellamma and again as per the Partition deed 55 O.S.No.2713/1995 dt.5.11.1962 Item Nos.5 and 6 have been allotted to Defendant No.5-Smt.Gowramma.
23. So here, PW2 who is none other than plaintiff No.3 in this case and daughter of Defendant No.13-Smt.Yellamma born to Late Munivenkatappa adduced her oral evidence by way of filing her sworn affidavit. In the cross-examination of PW2, she admitted the Partition deed dt.21.9.1961 executed in between her mother Defendant No.13-Smt.Yellamma and her father Late Munivenkatappa. Further in the cross-examination of PW2, she admitted that in O.S.No.1159/1985 herself, her mother Defendant No.13-Smt.Yellamma and her sister-Pushpa were parties. In her cross-examination at page 25, PW2 deposed that she was not aware of O.S.No.1159/1985, O.S.No.10162/1985, and O.S.No.6835/1991 till the year 1995. Here Ex.D1 and D21 are the certified copies of Judgment and decree passed in O.S.No.1159/1985, O.S.No.10162/1985, O.S.No.5311/1983 clubbed in O.S.No.1159/1985 which is the suit filed by present deceased defendant No.1 and 2 for partition and 56 O.S.No.2713/1995 separate possession against Late Munivenkatappa.
During pendency of the said suit, Late Munivenkatappa died and his Legal representatives Defendant No.1(a)-Indramma who is present plaintiff No.3(PW2) in this case, and Defendant No.1(b)- Pushpamma who is daughter of Late Munivenkatappa and defendant No.4 in this case were brought on record. So here plaintiff No.3(PW2) in this case came to know about Partition deed dt.21.9.1961 between Late Munivenkatappa and her mother Defendant No.13- Smt.Yellamma. Here in this case when defendant No.3- Indramma transposed as plaintiff No.3, she ought to have amended the body of the plaint and prayer column of the plaint for cancellation of said Partition deed executed by Late Munivenkatappa in favour of her mother Defendant No.13-Smt.Yellamma.
24. In the cross-examination by counsel for legal representative of deceased defendant No.1 at page 23, PW2(plaintiff No.3) admitted that originally she was defendant No.3 and thereafter she was transposed as plaintiff No.3. She also deposed that she came to know 57 O.S.No.2713/1995 elder brother deceased defendant No.1 filed suit in the year 1985 and about partition that has taken place in between her father Late Munivenkatappa and her mother Defendant No.13-Smt.Yellamma. PW2 also admitted that in the said partition, 12 guntas in Sy.No.48/11, 10 guntas in Sy.No.48/14, 8 guntas in Sy.No.50/6 and 1acre 2 guntas in Sy.No.61/2 came to the share of her mother Defendant No.13- Smt.Yellamma and also minor children(PW2, deceased defendant No.1, defendant No.2 and defendant No.4). Further PW2 in her cross-examination unequivocally admitted that she has not filed a suit soon after she attained majority for cancellation of registered Partition Deed dt.5.11.1962.
25. PW3(the legal representative of plaintiff No.3), in his cross-examination deposed that he does not know that as per the Partitions held in the year 1961 and 1962, the suit schedule properties have been partitioned. Here the certified copy of the Partition deed dt.21.9.1961 is marked as Ex.P1 and another Partition deed dt.5.11.1962 is marked as Ex.P2. 58 O.S.No.2713/1995 Therefore, PW3 is well known about adjudication of suits as per Ex.D1 and D21 with regard to registered Partition deeds as per Ex.P1 and P2.
26. Now at this juncture, it is better to peruse the oral evidence of PW4 who is none other than Plaintiff No.2-Manju Kumari @ Manju in this case. In the oral evidence of PW4, the documents Ex.P13 to 25 are marked. In the cross-examination of PW4 at page 14, she simply deposed that she does not know that as per Ex.P1 and P2, the registered Partition Deeds dt.21.9.1961 and dt.5.11.1962 were upheld in previous suits as per Ex.D21 and D2. But in the same cross-examination, PW4 deposed and admitted that this suit is filed in respect of item Nos.1 to 4 of suit schedule properties which have been allotted to Defendant No.13-Smt.Yellamma as per Partition deed dt.21.9.1961 as per Ex.P1 and also Item Nos.5 and 6 which have been allotted to Defendant No.5- Smt.Gowramma as per Partition deed dt.5.11.1962 executed between Late Munivenkatappa and Defendant No.5-Smt.Gowramma as per Ex.P2. 59 O.S.No.2713/1995
27. So here in the cross-examination of PW4, she admitted that in some portion of Item Nos.1 to 3, buildings have been constructed after 2005. PWs.2 and 4, in their cross-examination, admitted that so many purchasers who purchased the vacant space in Item Nos.1 to 3 of suit schedule properties have constructed buildings and residing there. So when PWs.2 and 4 came to know that the purchasers are in possession of some portion of Item Nos.1 to 3 by constructing the building, then they ought to have impleaded the purchasers in this case. PW4(plaintiff No.2) admitted that Late Munivenkatappa was a party in O.S.No.10162/1985, O.S.No.6835/1991 and O.S.No.1159/1985 and Plaintiff No.2(PW4) also filed application under Order I Rule 10 of C.P.C. in O.S.No.1159/1985 which was the suit filed by deceased defendant No.1 and defendant No.2 against their own father Late Munivenkatappa for partition and separate possession, to implead her as party, but that application was dismissed. The certified copy of the said application is produced and marked as 60 O.S.No.2713/1995 Ex.D20. But Plaintiff No.2(PW4) has not challenged the dismissal of I.A.No.8 filed in O.S.No.1159/1985 for impleading her as a party, which is marked as Ex.D20 in this case. So here in all the proceedings in respect of suit schedule properties in between defendants 1 to 13 with Late Munivenkatappa, Plaintiff No.2(PW4) was not at all made as party in those suits as per Ex.D1 and D21. Therefore, she filed I.A.No.8 in O.S.No.1159/1985 as per Ex.D20 for impleading her as party, but that was also dismissed. This itself goes to show that Plaintiff No.2 who is examined as PW4 in this case is neither the daughter of Late Munivenkatappa born through Defendant No.13- Smt.Yellamma nor sister of deceased defendant No.1, defendant No.2, defendant No.4 and plaintiff No.3. So in this case, the admissions in the cross-examination of PW2 to 4 are itself sufficient to show that Partition deed dt.21.9.1961 and Partition deed dt.5.11.1962 are binding on plaintiffs Nos.2 and 3.
28. Further it is the contention of the counsel for plaintiffs 2 and 3 that the Partition deeds as per 61 O.S.No.2713/1995 Ex.P1 and P2 have not been acted upon. But here in the cross-examination of DW1, who is son of deceased defendant No.1 adduced his oral evidence by way of filing his affidavit and through him Ex.D1 to D16 are marked. In the cross-examination of DW1, he admitted that he was not aware of the family transactions held in the family of Late Munivenkatappa prior to 1980. But in the cross-examination by counsel for the legal representatives of plaintiff No.3, at page 11, DW1 deposed that phodi has been effected as per registered Partition Deed executed in the year 1961. In the chief- examination of DW2 who is none other than defendant No.2 in this case, Ex.D17 to D22 are marked. In the cross-examination of DW2 by the counsel for plaintiff No.3, he deposed that in the year 1961, the partition was held in respect of Item Nos.1 to 4. So here from the RTC extract produced as per Ex.P5 to P12, the names of Late Munivenkatappa, Defendant No.5- Smt.Gowramma, deceased defendant No.1 and defendant No.2 are mentioned in ownership column No.12 and also ownership column No.9. As per Ex.D12 62 O.S.No.2713/1995 to D16, the purchasers' name is mentioned in ownership column along with Late Munivenkatappa and deceased defendant No.1 and defendant No.2 and also Defendant No.5-Smt.Gowramma and defendant No.6-Shamanna. So as per registered Partition Deeds which are marked as Ex.P1 and P2, the sharers have been enjoying their respective shares as allotted through the above said Partition deeds. Therefore, in this case, sites have been allotted to the sharers as per Ex.P19 executed in the year 1984. So here Plaintiff No.2-Manju Kumari @ Manju and plaintiff No.3(PWs.2 and 4) when they came to know about pending suits in respect of suit schedule properties as per Ex.D1 and D22, then what prevented them to file the suit immediately for cancellation of registered Partition Deeds as per Ex.P1 and P2 and also for partition and separate possession in respect of suit schedule properties praying for declaration that Partition deed dt.21.9.1961 and Partition deed dt.5.11.1962 as per Ex.P1 and P2, and unregistered Partition deed as per Ex.P19 were not binding on them. So here in this case 63 O.S.No.2713/1995 plaintiff Nos.2 and 3 after waiting for a long period and till disposal of suits O.S.No.1159/1985, O.S.No.10162/1985, O.S.No.6835/1991 and O.S.No.5311/1983 which are clubbed in O.S.No.1159/1985 and disposed of in the year 2002 as per Ex.D1 and D21, filed this suit in the year 1995. So here defendants 6 to 12 preferred RFA No.651/03 as per Ex.D6 against the Judgment and decree passed in O.S.No.5311/1983 against defendant No.2 and the present plaintiff No.3-Indramma who is examined as PW2 in this case. That RFA came to be dismissed as withdrawn dt.20.7.2007 by the Hon'ble High Court of Karnataka. Further in this case as per registered Partition Deed dt.24.10.2005 which is marked as Ex.D8, partition was held in between Defendant No.5- Smt.Gowramma with her sons defendant Nos.6, defendant No.8 and defendant No.11 in respect of item No.5 and 6. Then defendants No.5,6,8 and 11 have sold out some portion of the sites formed in Item Nos.5 and 6 to the purchasers . Here the Sale Deed has been executed by Defendant No.5-Smt.Gowramma with her 64 O.S.No.2713/1995 sons to the purchasers as per Ex.D9 and deceased defendant No.1 also sold out the sites by executing Sale Deed as per Ex.D10. In the year 2010, Release Deed was executed by Defendant No.13-Smt.Yellamma and her daughter defendant No.4 in this case in favour of deceased defendant No.1 as per Ex.D11. All these documents goes to show that the registered Partition Deed executed by Late Munivenkatappa in favour of his own wife Defendant No.13-Smt.Yellamma has been acted upon. So, in this case, plaintiffs 2 and 3 have not at all in joint possession and enjoyment with all the defendants in respect of suit schedule properties and the Partition deed dt.21.9.1961 and Partition deed dt.5.11.1962 have been upheld in previous suits filed in between defendants 1 to 13 with Late Munivenkatappa as per Ex.D1 and D21. Therefore, in the cross-examination of PWs.2 and 4 and DW2, it goes to show that the registered Partition Deeds dt.21.9.1961 and dt.5.11.1962 which have been upheld in the previous suits as per Ex.D1 and D21 has been acted upon and all the sharers are enjoying 65 O.S.No.2713/1995 their respective shares and some of the defendants have sold out the sites to different purchasers. Therefore, plaintiffs 2 and 3 are not entitled to any share in the suit schedule properties. Hence I answered Issue Nos.2,3 and 6 in the Negative.
ISSUE NO.4:
29. Here in the pleadings of the plaint at para 7, it is pleaded that the plaintiffs came to know that Late Munivenkatappa executed a Will dt.12.7.1989 with regard to Item Nos.5 and 6 in favour of Defendant No.5-Smt.Gowramma which is illegal. In prayer column of the plaint also it is pleaded that the Will executed by Late Munivenkatappa in favour of Defendant No.5-Smt.Gowramma dt.12.7.1989 is not binding on them. But here O.S.No.6835/1991 is filed by defendant No.6 who is son of Defendant No.5- Smt.Gowramma and Late Munivenkatappa on the basis of the Will dt.12.7.1989 for declaring him as absolute owner in respect of Item Nos.5 and 6 and house situated in it. In the said suit, defendants 1 and 2 i.e., present deceased defendant No.1 and defendant 66 O.S.No.2713/1995 No.2, their mother Defendant No.13-Smt.Yellamma took contention by filing written statement contending that said alleged Will was concocted by the present defendant No.6 as plaintiff in O.S.No.6835/1991. Again the same deceased defendant No.1, defendant No.2 an Defendant No.13-Smt.Yellamma in this case together filed O.S.No.5311/1983 as plaintiffs challenging the said Will dt.12.7.1989 declared to be null and void and for permanent injunction. So here as per Ex.D1 and D21, O.S.No.6835/1991 is partly decreed only granting permanent injunction against the defendants in favour of plaintiff who is defendant No.6 in this case dismissing the said O.S.No.6835/1991 for the relief of declaration on the basis of the Will. Therefore, in this case, DW2 and DW4 in their cross-examination admitted that they came to know about the suits filed as per Ex.D1 and Ex.D21. The suit in O.S.No.6835/1991 was partly decreed only for granting permanent injunction against the defendants in favour of plaintiff who is defendant No.6 in this case, dismissing the said 67 O.S.No.2713/1995 O.S.No.6835/1991 for the relief of declaration on the basis of the Will. In this case DW2 and DW4 in their cross-examination admitted that they came to know about the suits filed as per Ex.D1 and Ex.D21 in the year 1985. Moreover the present defendant No.6 who was the plaintiff in O.S.No.6835/1991, aggrieved by the Judgment and decree passed in O.S.No.6835/1991 preferred RFA No.651/2003 and that Appeal was dismissed as withdrawn by order dt.20.7.2007 as per Ex.D5. In O.S.No.5311/1983 Issue No.1 was framed as 'Whether Late Munivenkatappa was not in sound state of mind for executing the Will dt.12.7.1989?" and said Issue was answered in the affirmative. So this goes to show that the alleged Will dt.12.7.1989 was not at all executed by Late Munivenkatappa in favour of defendants(present defendants 1 to 12). Therefore, answering Issue No.4 does not arise for consideration in view of the Judgment and decree passed in O.S.No.5311/1983 as per Ex.D1 and Ex.D21. Accordingly Issue No.4 is answered.
68 O.S.No.2713/1995
ISSUE NO.5
30. In para 12 of the written statement filed by defendant No.2, she took contention that all the issues pertaining to this suit have been finally adjudicated inconclusively in O.S.No.1159/1985, O.S.No.10162/1985, O.S.No.6835/1991 and O.S.No.5311/1983. Therefore the contention of defendant No.2 is that this suit is not maintainable as it bars under the principles of res-judicata. Here as per Ex.D1 and Ex.D21, O.S.No.1159/1985 was filed by present deceased defendant No.1, and defendant No.2 as plaintiffs against their father Late Munivenkatappa who died during pendency of the said suit and present plaintiff No.3, defendant No.4 and Defendant No.13- Smt.Yellamma in this case were brought on record as legal representative of Late Munivenkatappa. The said suit was filed for partition and separate possession.
31. The suit in O.S.No.10162/1985 was filed by Late Munivenkatappa against Defendant No.13- Smt.Yellamma who is his first wife and the present deceased defendant No.1 and defendant No.2 were the 69 O.S.No.2713/1995 defendants in that suit filed for the relief of permanent injunction. O.S.No.6835/1991 was filed by present defendant No.6 as plaintiff against the present deceased defendant No.1, defendant No.2 and Defendant No.13-Smt.Yellamma who were defendants in the said suit for the relief of permanent injunction and O.S.No.5311/1983 was filed by present deceased defendant No.1 and defendant No.2 as plaintiffs against the present defendant Nos.5 to 12 who were defendants in the said suit, for declaration and also for permanent injunction. All the three suits, i.e., O.S.No.10162/1985, O.S.No.6835/1991 and O.S.No.5311/1983 were clubbed with O.S.No.1159/1985. The issues framed in all the four suits are covered in the present case and present plaintiff No.3 was a party in O.S.No.1159/1985 as legal representative of Late Munivenkatappa as Defendant No.1(a). Therefore as per Sec.11 of C.P.C. when in any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the 70 O.S.No.2713/1995 same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been heard and finally decided by such Court,then the suit is barred under the principles of Res judicata. So here in this case with regard to the subject matter of the suit pertaining to the suit schedule properties, four suits, as stated above, which are marked as Ex.D1 and Ex.D21 are pertaining to the same subject matter, wherein issues framed in those suits and issues framed in this suit are one and the same and the parties in those suits and parties in this suit are one and the same and the relief claimed in those suits and the relief claimed in this suit are one and the same and those suits are already adjudicated and reached finality by passing Judgment and decree as per Ex.D1 and Ex.D21 which is conclusive. Therefore again re-agitating the same subject in respect of same properties, which has already been directly and substantially adjudicated in the previous four suits, then the principles of res 71 O.S.No.2713/1995 judicata applicable and this suit filed by the plaintiff is barred u/s 11 of C.P.C.
32. In the cross-examination of PW2 and PW4 they admitted the pendency of above said four suits as per Ex.D1 and Ex.D21. Further in the cross- examination of PW2, PW4 and DW1, goes to show that already deceased defendant No.1, defendant No.2 and Defendant No.13-Smt.Yellamma and also defendant No.4 and defendant No.5 to 12 have sold some of the sites to different purchasers and Sale Deeds produced in this case as per Ex.D9 and D10 clearly goes to show that the purchasers who have purchased sites from the defendants have got constructed the buildings and residing in those buildings. But here the plaintiffs have not impleaded those purchasers, though in the cross- examination of PW2, 3 and 4 admitted that already so many sites have been sold out to the purchasers. So this goes to show that the suit filed by the plaintiffs is not at all maintainable on this count also, since purchasers have not been impleaded as necessary parties in this case. Hence the suit filed by the 72 O.S.No.2713/1995 plaintiffs is not maintainable. Accordingly I answered Issue No.5 in the affirmative.
ADDL.ISSUE NO.1:
33. In this case, Defendant No.5- Smt.Gowramma filed written statement alone. Defendants 7 to 12 together filed written statement and defendants 4 and 6 are placed exparte. The Defendant No.13-Smt.Yellamma independently filed written statement. At para 8 of the written statement, Defendant No.5-Smt.Gowramma took contention that she is none other than the second wife of Late Munivenkatappa. The defendants 7 to 12, in their written statement at para 13 took contention that they are the legal representatives of Late Munivenkatappa and Defendant No.5-Smt.Gowramma and they are also sharers in the suit schedule properties. In the written statement filed by defendants 5 and 7 to 12, same contention has been taken by them contending that themselves along with plaintiffs and defendants 1,2 and 4 are in joint possession and enjoyment of the suit schedule properties since they are the legal 73 O.S.No.2713/1995 representatives of Late Munivenkatappa. Therefore they are entitled to share in all the suit schedule properties. In this case originally this suit is filed by Defendant No.13-Smt.Yellamma as 1st plaintiff and plaintiff No.2. During pendency of this suit, the 1st plaintiff Yellamma transposed as Defendant No.13 and defendant No.3 transposed as plaintiff No.3. in this case PW3 who is daughter of Late Munivenkatappa and also DW1 who is legal representative of deceased defendant No.1 adduced their oral evidence and in their cross-examination admitted the relationship of Defendant No.5-Smt.Gowramma with Late Munivenkatappa as his second wife. It is also admitted in the cross-examination of PW4 that Late Munivenkatappa was residing along with Defendant No.5-Smt.Gowramma in a house adjacent to the house in which other defendants are residing. But in this case neither the defendant No.5 nor defendants 7 to 12 have come forth for adducing their oral evidence in order to prove Additional Issue No.1 that Defendant No.5-Smt.Gowramma claiming as she is the legally 74 O.S.No.2713/1995 wedded wife of Late Munivenkatappa and defendants 6 to 12 are the sons and daughters born to Late Munivenkatappa through Defendant No.5- Smt.Gowramma. There are no documents as to show that there was a divorce held in between Late Munivenkatappa with his first wife Defendant No.13- Smt.Yellamma. No doubt the criminal case was filed by Defendant No.13-Smt.Yellamma against Late Munivenkatappa and Defendant No.5-Smt.Gowramma u/S 494 of IPC and in the said case Late Munivenkatappa and Defendant No.5-Smt.Gowramma were discharged. Further in the written statement filed by defendant No.2 goes to show that Defendant No.13- Smt.Yellamma was having illicit relationship with one Muniyappa who is vegetable vendor in City Market. So therefore there is a strained relationship between Late Munivenkatappa with his first wife Defendant No.13- Smt.Yellamma prior to 1960. When such being the thing, Defendant No.5-Smt.Gowramma urged in the written statement filed by her in O.S.No.1159/1985 stating that her marriage with Late Munivenkatappa is 75 O.S.No.2713/1995 'Kudike marriage'. But here admittedly there was no divorce held in between Late Munivenkatappa with first wife Defendant No.13-Smt.Yellamma. Hence during the subsistence of marriage of Late Munivenkatappa with first wife Defendant No.13- Smt.Yellamma, the illicit relationship or kudike marriage would not be construed as legal marriage said to be held in between Late Munivenkatappa with Defendant No.5-Smt.Gowramma in this case. However defendants 6 to 12 have been born to Late Munivenkatappa through Defendant No.5- Smt.Gowramma. In this case much has been discussed in respect of alleged marriage said to has been held between Late Munivenkatappa with Defendant No.5-Smt.Gowramma and legitimacy of the relationship of defendants 6 to 12 with Late Munivenkatappa in earlier suits, which have been adjudicated as per Ex.D1 and Ex.D21. Therefore in this case there is no iota of documentary or oral evidence lies by the side of defendants 5 to 12 in order 76 O.S.No.2713/1995 to give finding for Additional Issue No.1. Hence I answered Addl.Issue No.1 in the Negative.
ADDITIONAL ISSUE NO.2
34. In the written statement filed by Defendant No.5-Smt.Gowramma and defendants 7 to 12, they took contention that Late Munivenkatappa has executed a Will dt.12.7.1989 in favour of defendant No.6 in respect of Item Nos.5 and 6. But to this Issue, my predecessor has already answered in the Negative in O.S.No.5311/1983 as per Ex.D1 and Ex.D21. Further in this case neither defendant No.5 nor defendants 7 to 12 have come forth for adducing evidence in order to prove that Late Munivenkatappa executed a Will dt.12.7.1989 and no such iota of evidence is produced in this case. Hence I answered Addl.Issue No.2 in the Negative.
ADDITIONAL ISSUE NO.3:
35. Here Defendant No.5-Smt.Gowramma and defendants 7 to 12, in their written statement, took contention that they are also entitled to their share in all the suit schedule properties. But as per Ex.D1 and 77 O.S.No.2713/1995 Ex.D21, it is already answered with regard to Ex.P1 and P2 in O.S.No.1159/1985, which are the registered Partition Deeds executed by Late Munivenkatappa in favour of Defendant No.13-Smt.Yellamma as per Ex.P1 and also in favour of Defendant No.5-Smt.Gowramma as per Ex.P2. Therefore as per the Partition deed dt.5.11.1962 as per Ex.P2, the Defendant No.5- Smt.Gowramma to 12 have already got their shares in respect of item Nos.5 and 6. In this case surprisingly no documents are produced by the side of DW2 with regard to partition held in between Defendant No.5- Smt.Gowramma, defendant No.6 and defendants 8 and 11 in respect of Sy.No.48/14 measuring 5 guntas, Sy.No.48/11 measuring 6 guntas and Sy.No.48/9 measuring 6 guntas. Therefore defendants 5 to 12 are not entitled to any share in suit Item Nos.1 to 4. Moreover as per Ex.D9, defendants 5,6,8 and 11 have sold out their respective shares by executing Sale Deed as per Ex.D9. Moreover in this case there is no iota of oral and documentary evidence by the side of defendants 5 to 12 in order to give share in item Nos.1 78 O.S.No.2713/1995 to 4 of the suit schedule properties. The Addl.Issue Nos.1 and 2 have already been adjudicated directly and substantially in the above four suits as per Ex.D1 and Ex.D21. Hence defendants 5 to 12 are utterly failed to prove Addl.Issue No.3. Hence I answered Addl.Issue No.3 in the Negative.
ISSUE NO.7:
36. In view of the foregoing discussion and observation made on Issue Nos.1 to 6, and Additional Issue Nos.1 to 3, the court proceeds to pass the following order:-
ORDER Suit filed by the plaintiffs against the defendants is hereby dismissed.
Under the circumstances, the parties are directed to bear their own costs.
Draw decree accordingly. (Dictated to the judgment Writer, typed by her, corrected, signed and then pronounced by me in the open Court on this the 17th day of March 2018) (DEVANAND PUTTAPPA NAYAK) XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.79 O.S.No.2713/1995
ANNEXURE List of witnesses examined on behalf of the Plaintiffs P.W.1 Yellamma P.W.2 Indiramma P.W.3 R.Mahesh P.W.4 Manju Kumari List of documents marked on behalf of the Plaintiffs :
Ex.P1 Certified copy of partition deed dt.21.9.1961 Ex.P2 Certified copy of partition deed dt.5.11.1962 Ex.P3 Certified copy of Sale Deed dt.7.7.1949 Ex.P4 to P12 R of R Extracts Ex.P14 Certified copy cumulative record Ex.P15& Two study certificates Ex.P16 Ex.P17 Copy of S.S.L.C.marks card Ex.P18 Marriage invitation card Ex.P19 Partition deed dt.7.12.1984 produced in C.Mis.293/1997 80 O.S.No.2713/1995 Ex.P20 Marriage Invitation Card produced in C.Mis.293/1994 Ex.P21 Vakalat filed for Vasanta Ex.P22 Vakalat filed for Yellamma Ex.P23 Order passed in C.Mis.293/1994 Ex.P24 Application for return of documents Ex.P25 Certified copy of Memo filed in C.Mis.293/1994 List of witnesses examined on behalf of the Defendants :
DW1 S.Sridhar DW2 Vasanth
List of documents marked on behalf of the Defendants :
Ex.D1 Certified copy of common judgment passed in O.S.1159/1985 and connected cases.
Ex.D2 Certified copies of decrees drawn in to D4 O.S. No.1159/1985, 6835/1991 and 10162/1985.
Ex.D5 Certified copy of judgment and decree
& D6 in RFA No.651/2003.
Ex.D7 Certified copy of Order sheet in RFA
No.651/2003.
Ex.D8 Certified copy of partition deed dated
81 O.S.No.2713/1995
24.10.2010
Ex.D9 Certified copy of sale deed dated
07.11.2005
Ex.D10 Certified copy of sale deed dated
17.04.2006
Ex.D11 Certified copy of released deed dated
20.11.2010.
Ex.D12 to RTC extracts
D16
Ex.D17 Certified copy of order passed in
C.C.No.16/61
Ex.D18 Certified copy registered Partition Deed
Dt.21.9.1961
Ex.P19 Certified copy of Partition deed
dt.5.11.1962
Ex.P20 Certified copy of application and sworn
affidavit filed by plaintiff No.2 in
O.S.No.1159/1985
Ex.P21 Certified copy of judgment passed in
O.S.No.1159/1985
Ex.P22 Certified copy of decree passed in
O.S.No.6835/1991
XXXVIII Addl. City Civil and
Sessions Judge, Bangalore City.