Bangalore District Court
Smt.Anusuyamma vs Sri.Shettigere Ramaiah on 14 July, 2017
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 14th day of July 2017.
O.S.No.2927/2012
Plaintiff:- Smt.Anusuyamma,
D/o.Shettigere Ramaiah
W/o.R.Nagaraj,
Aged about 60 years,
R/at No.46/6/6,
Down Bazar Road,
Yelahanka,
Bangalore-560 064.
(By - Sri.D.S.Mali Patil, Adv.)
v.
Defendants:- 1. Sri.Shettigere Ramaiah,
S/o.late Shettigere Muniveerappa,
Since deceased by his LR:-
1(a) Smt.Narayanamma,
Aged about 65 years,
R/at Amarjyothi Nagar Main Road,
Muniveerappa Layout,
Thanisandra, K.R.Puram Hobli,
Bangalore.
2. Sri.Nagaraju,
S/o.Shettigere Ramaiah,
Aged about 57 years,
R/at C/o Muniramaiah,
Judgement
2 O.S.No.2927/2012
Thanisandra, K.R.Puram Hobli,
Bangalore.
3. Sri.Ramadas,
S/o.Shettigere Ramaiah,
Aged about 54 years,
R/at Chinnaswamy Layout,
Thanisandra, K.R.Puram Hobli,
Bangalore.
4. Sri.Lakshmanna,
S/o.Shettigere Ramaiah,
Aged about 54 years,
R/at Amarjyothi Nagar Main Road,
Muniveerappa Layout,
Thanisandra, K.R.Puram Hobli,
Bangalore.
5. Smt.Shyalamma,
D/o.Shettigere Ramaiah,
Aged about 48 years,
R/at C/o Muniramaiah,
Thanisandra Circle,
Thanisandra, K.R.Puram,
Bangalore.
6. Sri.Subbanna,
S/o.Shettigere Ramaiah,
Aged about 46 years,
R/at Amarjyothi Nagar Main Road,
Muniveerappa Layout,
Thanisandra, K.R.Puram Hobli,
Bangalore.
7. The Commissioner,
Bangalore Development Authority,
T.Chowdaiah Road,
Kumara Park West,
Bangalore - 560 020.
(LR of D1 - D1(a) and D2 to D6 -
Sri.P.M.Narayana Swamy, Adv.)
D7 - By Smt.N.Sudha, Adv.)
Judgement
3 O.S.No.2927/2012
Date of institution of the suit : 18.04.2012
Nature of the suit : Partition and Separate
Possession
Date of commencement of : 19.02.2014
Recording of the evidence
Date on which the Judgment : 14.07.2017
was pronounced
Total Duration : Years Months Days
05 02 26
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
JUDGEMENT
The plaintiff has filed the above suit for partition and separate possession of plaint schedule property by metes and bounds. Further, for allotment of 1/7th share in the suit schedule property and for costs.
2. The plaintiff's case in brief as under:-
The plaintiff and defendants 2 to 6 are the children of deceased defendant No.1 i.e., Shettigere Ramaiah. Defendant No.1(a) i.e., Smt.Narayanamma is the wife of deceased defendant no.1 i.e., Shettigere Ramaiah. The plaintiff contends that plaintiff and defendants 1 to 6 herein are coparceners and Judgement 4 O.S.No.2927/2012 constitute Hindu undivided joint family. The suit schedule property bearing Sy.No.62/1, measuring 2 acres 30 guntas of Thanisandra Village is a joint family property and they are in joint possession of the same. The deceased defendant No.1 i.e., Shettigere Ramaiah was Kartha of the family and he succeeded to the property from his father. There is no partition in the family.
The defendants colluding among themselves are trying to deprive plaintiff's share in the suit schedule property. The plaintiff demanded the defendants for her share but, the defendants have refused to partition and allot her share. Hence, the plaintiff has filed the above suit.
3. In response to the suit summons, defendants 1 to 6 have appeared before the court through their counsel. During the pendency of the suit defendant No.1 - Shettigere Ramaiah died hence, his wife namely, Smt.Narayanamma was brought on record as defendant no.1(a). The defendants Nos.1 to 6 in their written statement have denied the contention that plaintiff and defendants 1 to 6 constitute Hindu undivided joint family and suit property is the joint family property of plaintiff and defendants nos.1 to 6 herein. Further, have contended that plaintiff has no share in the suit schedule property. The defendants have contended that Sy.No.62/1, measuring 2 acres 30 guntas of Thanisandra Village was the ancestral property of the defendants Judgement 5 O.S.No.2927/2012 and on 25.02.1991 vide., Panchayathi Palu Patti there was partition among the plaintiff and defendants and in the said partition, female members i.e., plaintiff and another daughter by name Smt.Shylamma have agreed to receive Rs.1,00,000/- each at the time of alienation of Sy.No.17/4 measuring 6 guntas and Sy.No.19 measuring 12 guntas, situated at Geddalahalli Village. The plaintiff has affixed her signature to Panchayathi Palu Patti dated 25.02.1991. Subsequently, during 2003-04 said lands were sold and all family members including plaintiff have affixed their signatory to the said sale deed and Rs.1,00,000/- each has been paid to the plaintiff and defendant No.5 herein. Plaintiff has acknowledged the payment of Rs.1,00,000/- and executed receipt accordingly.
Further, they contend that defendant No.1(a) had purchased site bearing Khata No.17/13/1 formed in Sy.No.1/2, measuring East to West: 37½ feet and North to South: 75 feet of Thanisandra Village. The family members negotiated and decided to allot half share in the said site to the plaintiff herein and another half share to defendant No.5. Accordingly, defendant no.1(a) executed registered Sale Deed in favour of plaintiff and defendant No.5. The plaintiff has no right, title in the suit schedule property. The suit property is acquired by BDA and BDA has initiated acquisition proceedings to form Arkavathi Layout Judgement 6 O.S.No.2927/2012 and same is within the knowledge of the plaintiff. The suit is bad for non-joinder and mis-joinder of necessary parties. The court fee paid by the plaintiff is insufficient. The plaintiff ought to have filed the suit within 3 years from the date of Panchayathi Palu Patti. Hence, suit is barred by limitation. Hence, prayed that suit may be dismissed with costs.
4. During the pendency of the above suit, Commissioner, BDA was impleaded as defendant No.7 in the above suit. Defendant No.7 has not filed any written statement in the above case.
5. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether the plaintiff proves that the suit property is the joint family property?
2. Whether the defendants prove that the partition took place as the Panchayath Palupatti dated 25.02.1991?
3. Whether the defendants prove that on 18.12.2002 the property site katha No.17/13/1 in Sy.No.1/2 allotted and purchased in the name of the plaintiff?
Judgement 7 O.S.No.2927/2012
4. Whether the defendants prove that suit is barred by non-joinder of necessary parties?
5. Whether the defendants prove that suit is not properly valued and court fee paid is insufficient?
6. Whether the plaintiff is entitle for reliefs as sought for?
7. What order or decree?
6. To prove the case of the plaintiff, the plaintiff examined herself as PW-1 and marked Ex.P1 to P12. The defendants 1, 5 and 2 have examined themselves as DWs.1 to 3 and examined 2 witnesses as DWs.4 and 5 and got marked Ex.D1 to D27.
7. Heard arguments. Advocate for the plaintiff has cited the decision reported in AIR 2016 Supreme Court 769, in the case of Prakash and others v. Phulavati and others.
8. My findings on the above said issues are as follows:-
Issue No.1:- In the Affirmative
Issue No.2:- In the Negative
Issue No.3:- In the Negative
Issue No.4:- In the Negative
Issue No.5:- In the Negative
Issue No.6:- In the Affirmative
Judgement
8 O.S.No.2927/2012
Issue No.7:- As per final order.
for the following:-
REASONS
9. ISSUE Nos.1 to 3:-
These issues are taken up together for discussion to avoid repetition of facts and evidence.
10. PW-1 in her evidence has stated that she is the daughter of deceased Shettigere Ramaiah i.e., defendant No.1. Further, PW-1 has stated that defendants 2 to 6 are her brothers and defendant No.1(a) is her mother. The defendants in their written statement admit the relationship between the parties. There is no dispute with regard to relationship of the parties.
11. PW-1 in her evidence has stated that plaintiff's father had inherited the suit schedule property bearing No.62/1, measuring 2 acres 30 gutnas of Thanisandra Village from his father and suit schedule property is the joint family property of plaintiff and defendants nos.1 to 6 herein. The plaintiff has produced RTCs before this court to show that suit property originally belonged to her ancestors. In the written statement, defendants plead that suit schedule property was acquired by deceased defendant no.1 from his father. It is pertinent to note that, DW-1 in his cross-examination admits that he has inherited Judgement 9 O.S.No.2927/2012 the suit schedule property from his father. From the evidence and pleadings of the defendants, it clearly goes to show that suit schedule property is the ancestral and joint family property of the plaintiff and defendants herein.
12. PW-1 in her evidence has stated that plaintiff and defendants 1 to 6 constitute Hindu undivided joint family and they are in joint possession of the suit property. Earlier no partition has been effected in the family and plaintiff is entitled for 1/7th share. Per contra, the defendants have contended that as per Ex.D1 i.e., Panchayathi Palu Patti, dated 25.02.1991, properties were divided between plaintiff and defendants nos.1 to 6 and as per said palu patti revenue records are mutated in the names of defendants separately. DW-1 has produced Ex.D1 - Panchayathi Palu Patti before this court. The plaintiff contends that she has not signed Ex.D1 and it is concocted by the defendants to deprive plaintiff's share. Further, DW-1 has produced receipt at Ex.D20 to show that in 2003 -04 when two properties were alienated by the family Rs.1,00,000/- was paid to the plaintiff as per the recitals in the palu patti i.e., Ex.D1.
13. Now, the question for consideration; what is the evidentiary value of unregistered palu patti i.e., Ex.D-1 produced by the defendant before the court and whether partition by Judgement 10 O.S.No.2927/2012 unregistered palu patti will foreclose the plaintiff's share in the property in the light of amendment to Sec.6 of Hindu Succession (Amendment) Act, 2005?
14. Section 6 of Hindu Succession (Amendment) Act, 2005 reads as follows:-
6(3) Where a Hindu dies after the
commencement of the Hindu Succession
(Amendment) Act, 2005, his interest in the
property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and -
(a) the daughter is allotted the same share as is allotted to a son;
(b) ........
(c) .......
(4) ...............
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation - For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.
Judgement 11 O.S.No.2927/2012
15. In ILR 2015 KAR 5095, in the case of Smt.Lokamani and others v. Smt.Mahadevamma and others, wherein the lordships have held that:-
(B) Hindu Succession Act, 1956(Act No.39 of 2005)- Explanation to sub-Section (5) of Section 6
- Meaning of partition - HELD, By Act No.39 of 2005, Section 6 of the Hindu Succession Act, 1956 came to be amended, conferring on the daughters of a co-parcener the status of co-parcener giving equal right in the coparcenary property along with the son - Explanation to sub-Section (5) of Section 6 of the Hindu Succession Act, 1956 categorically declares that nothing contained in Section 6 applies to a partition, which has been effected before 20th day of December 2004. In other words, if a partition had taken place in the family before 20th December 2004, by virtue of the amendment, a daughter cannot claim share in the co-parcenery property.
FURTHER HELD:
(a) Explanation to sub-Section (5) explains the meaning of partition for the purpose of Section 6 -
Oral partition, palu-patti, unregistered Partition Deed are excluded from the purview of the word "partition" used in Section 6. It is only the partition effected by way of a registered Deed prior to 20th December 2004, which debars a daughter from staking an equal share with a son in a co- parecnary property.
Judgement 12 O.S.No.2927/2012
(b) Admittedly, there is no registered Partition Deed between Sannamadaiah and Mahadevappa, evidencing the alleged partition that took place in the year 2000. Even if there was a partition, oral or by an unregistered Partition Deed of the year 2000 as contended by the defendants, it cannot be treated as partition for the purpose of Section 6 and the rights of the daughters to claim an equal share as co-parceners along with Sannamadaih's son Mahadevappa remains unaffected.
Sec.6 of Hindu Succession (Amendment) Act, 2005 and citation referred above clearly lays down that oral or partition by an unregistered palu patti cannot be treated as partition for the purpose of Sec. 6. In the present case admittedly, there is no registered Partition Deed between plaintiff and defendants, evidencing the alleged partition that took place in the year 1991. Even if there was a partition, oral or by an unregistered Partition Deed of the year 1991 as contended by the defendants, it cannot be treated as partition for the purpose of Section 6 and the rights of the daughters to claim an equal share as co-parceners along with sons remains unaffected. Therefore, defendants' contention that in the year 1991 partition was effected and plaintiff was given her share is not sustainable under law.
Judgement 13 O.S.No.2927/2012
16. The learned counsel for the plaintiff has relied upon the decision reported in AIR 2016 Supreme Court 769, in the case of Prakash and others v. Phulavati and others, wherein the lordships have observed as under:-
Hindu Succession Act (30 of 1956), S.6 (as amended by Act 39 of 2005) - Right of daughter to coparcenary property - Conferred on and from commencement of Hindu Succession (Amendment) Act, 2005 - Amendment is prospective - Rights under amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born - Partition taken place before 20th Dec.2004 - Will remain unaffected.
The rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation"
From the above decision it is clear that living daughters of living coparceners as on 9th September, 2005 are entitled for share as coparceners in the joint family properties, subject to any transaction of partition effected thereafter will be governed by the Explanation. In the present case, the plaintiff's father was Judgement 14 O.S.No.2927/2012 alive on the date of filing of the suit and joint family property is available for partition. Therefore, plaintiff is entitled for share in the suit property.
17. The learned counsel for the defendants has produced the following citations:-
1. ILR 2009 KAR 1524, in the case of Shanthappa and others vs Channabasavaiah and others;
2. KCCR 2011-4-2461, in the case of G.M.Mahendra v. G.M.Mohan;
3. 2013 (2) KCCR 1277, in the case of Smt.Puttakkaiah v. Smt.Basamma since dead by LRs and others;
4. AIR 2003 Orissa 104, in the case of Pitambar KAR v. Trilochan KAR and others;
5. ILR 2014 KAR 631, in the case of R.Sandhya and another v. S.R.Raju.
6. AIR 2003 KAR 331, in the case of G.Baramappa v. Kenchappa and others.
The principles laid in the above citations are not applicable to the facts of the present case.
18. Advocate for the defendant argued that Smt.Narayanamma had purchased site bearing Katha No.17/13/1 formed in Sy.No.1/2, measuring East to West: 37½ feet and North to South: 75 feet of Thanisandra Village and after Judgement 15 O.S.No.2927/2012 negotiations plaintiff was given half share and defendant No.5 was given half share in the said property. To prove the same, DW-1 has produced Ex.D17 and D18 before this court. It is pertinent to note that the plaintiff herein has denied that property was given by her mother towards her share. From the recitals of Ex.D18 it goes to show that the plaintiff herein has purchased half site for Rs.85,000/- from her mother. From recitals of Ex.D18 it goes to show that it is outright sale. It is settled principle of law that any amount of oral evidence will not substitute documentary evidence. Therefore, contention of the defendants that plaintiff's mother gave half share towards plaintiff's share cannot be relied upon.
19. Advocate for the defendant argued that suit schedule property is acquired by BDA for formation of 'Arkavathy Layout' hence, plaintiff cannot claim share in the property. It is pertinent to note that, DW-3 in his cross-examination admits that BDA have not taken possession of the suit property till today and compensation amount is not received by the defendants. If at all, property is acquired and compensation is awarded by BDA, the plaintiff is entitled for her share in the amount and plaintiff's right will not be deprived by acquisition proceedings. Therefore, the above argument falls to the ground.
Judgement 16 O.S.No.2927/2012
20. Advocate for defendant argued that properties were partitioned in the year 1991 and defendants are in possession of their respective shares and plaintiff is ousted from the property therefore, suit is barred by limitation. It is pertinent to note that, as per Section 6 of Hindu Succession (Amendment) Act, 2005, partition by unregistered Partition Deed is not a partition for the purposed of sec 6. The defendants have not produced any independent evidence to show that plaintiff was ousted from the suit property. Possession by one coparcener is possession by all other coparcenaries. Therefore, question of limitation doesn't arise. Hence, the above contention falls to ground.
21. The plaintiff in her evidence has categorically stated that plaintiff and defendants constitute Hindu undivided joint family. The defendants have failed to prove that partition was effected as per law. Therefore, presumption has to be raised regarding jointness of the family. Therefore, plaintiff's contention that they are in joint family and in joint possession of the property has to be accepted. In the light of the above discussion, I answer Issue No.1 in the affirmative and Issue Nos.2 and 3 in the negative.
22. ISSUE No.4:-
In the written statement, the defendants have contended that the suit property is acquired by BDA, hence BDA is a Judgement 17 O.S.No.2927/2012 necessary party. But, plaintiff has not impleaded BDA as party.
Therefore, suit is bad for non-joinder of necessary party. During the pendency of the suit, the plaintiff has impleaded BDA as defendant No.7. Therefore, above issue does not survive for consideration. Accordingly, I answer Issue No.4 in the Negative.
23. ISSUE No.5:-
The defendants have contended that suit property is not properly valued and court fee paid by the plaintiff is insufficient.
It is pertinent to note that suit property is a agricultural land and as per RTC produced it is assessed for land revenue for Rs.9.96.
The plaintiff has valued the suit under section 35(2) r/w Section 7(2)(b) of Karnataka Court Fees and Suits Valuation Act and has paid court fee of Rs.200/-. For the purpose of pecuniary jurisdiction plaintiff has valued her share for Rs.4,00,000/-. The valuation made by the plaintiff is proper and correct. Hence, above contention falls to the ground. Hence, I answer Issue No.5 in the Negative.
24. Issue No.6:-
In the light of above discussion, the plaintiff is entitled for the reliefs claimed. Hence, I answer Issue No.6 in the Affirmative.
Judgement 18 O.S.No.2927/2012
25. Issue No.7:- In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiff is decreed.
The plaintiff is entitled to get 8/49th share in the suit property.
Parties are related to each other, hence both parties to bear their own costs.
Draw preliminary decree accordingly.
(Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 14th day of July 2017) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru City.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Smt.Anusuyamma
(b) Defendants' side:
DW.1 - Sri.Shettigere Ramaiah DW.2 - Smt.Shylamma DW.3 - Sri.Nagaraj.R DW.4 - Sri.Munisonnegowda Judgement 19 O.S.No.2927/2012 DW.5 - Sri.Byregowda II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Family Tree
Ex.P2 to 9 : RTCs
Ex.P10 to 12 : Mutation Register Extracts
(b) Defendants' side:
Ex.D1 : Original Partition Deed dated 25.02.1991
Ex.D1(a) : Signature of DW-1 in Ex.D1
Ex.D1(b) : Signature of defendant No.2 in Ex.D1
Ex.D1(c) : Signature of defendant No.3 in Ex.D1
Ex.D1(d) : Signature of defendant No.4 in Ex.D1
Ex.D1(e) : Signature of plaintiff in Ex.D1
Ex.D1(f) : Signature of defendant No.5 in Ex.D1
Ex.D1(g) : Signature of defendant No.6 in Ex.D1
Ex.D1(h) : Signature of DW-4
Ex.D2 to 16 : RTCs
Ex.D17 : Certified copy of Sale Deed dated:18.12.2002
Ex.D18 : Certified copy of Sale Deed dated:18.12.2002
Ex.D19 : Certified copy Sale Deed dated 07.04.2004
Ex.D20 & 21 : Receipts
Ex.D20(a & b) : Signature of plaintiff in Ex.D20
Ex.P20(c) : Signature of DW-5
Ex.D21(a & b) : Signature of defendant No.5 in Ex.D20
Ex.D22 : Certified copy of MR No.20/1997-98
Ex.D23 & 24 : Mutation Register Extracts
Ex.D25 : Certified copy of Gazette Notification dated:
03.02.2003
Ex.D26 : Certified copy of Gazette Notification (Final
Notification) dated:23.02.2004
Ex.D27 : certified copy of Gazette Notification dated
18.06.2014
XLII ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
Judgement