Bangalore District Court
Sri. P. Sandeep Kumar vs Sri. K. Krishnamurthy @ S.Shekar on 3 June, 2022
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 3 rd day of June 2022
PRESENT
Sri.Sabappa, B.Com., L.L.B., (Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
ORIGINAL SUIT No.7595/2010
PLAINTIFFS : 1. Sri. P. Sandeep Kumar,
S/o S. Prakash,
Aged about 20 years,
2. Sri. P. Rajesh,
S/o S. Prakash,
Aged Major,
Both are R/at No.138,
6th 'A' Cross,
Bhuvaneshwarinagar,
Verma Layout, Hebbal,
Bangalore - 560 024.
(By Sri. R.S. Ravi, Advocate)
Versus
DEFENDANTS: 1. Sri. K. Krishnamurthy @ S.Shekar,
S/o Late M.D. Sadashivam,
Major,
R/at "Krishan Nilayam",
No.41, 8th Cross, Magadi Road,
Bangalore - 560 023.
2 O.S.7595/2010
2. Sri. S. Prakash,
S/o Late M.D. Sadashivam,
Aged about 49 years,
R/at No.138, 6th 'A' Cross,
Bhuvaneshwarinagar,
Verma Layout, Hebbal,
Bangalore - 560 024.
3. Sri. S. Karuna,
S/o Late M.D. Sadashivam,
Major,
R/at "Krishan Nilayam",
No.41, 8th Cross, Magadi Road,
Bangalore - 560 023.
4. Sri. S. Nithya,
S/o Late M.D. Sadashivam,
Major,
R/at No.135, 2nd Cross,
Telecom Layout, Pipeline Road,
Vijayanagar, Bangalore - 560 023.
(By Sri. S.G.H, Adv., for D-1 )
(By Sri. V.N, Adv., for D-2)
(By Sri. C.G.K.V, Adv., for D-3 & D-4)
Date of Institution 30.10.2010
Nature of suit Declaration & Injunction
Date of commencement of 20.11.2017
evidence
Date on which judgment was 03.06.2022
pronounced
Total Duration Years Months Days
11 09 03
3 O.S.7595/2010
JUDGMENT
This suit is filed for Declaration and Injunction.
2. The brief facts of the plaintiffs' case is that, their grand father M.D.Sadashivam, plaintiff's father S.Prakash and defendants No.1, 3 and 4 are joint family members. During the life time of their grand father there was a partition and the same was reduced into writing on 05.10.1978. In the said partition, plaintiff's father i.e., 2 nd defendant has been allotted 1/3rd share in the building bearing No.12/8, half share in site bearing No.2, the entire property site bearing No.80, all are situated at behind Minerva Mills, Gopalapura, Magadi Road, Bangalore, half share in the site bearing No.169, situated at Hosahalli (Vijayanagr), Bangalore, entire property in building bearing No.E/9 (new No.24) situated at 6 th Cross, Kempapura Agrahara, Magadi Road, Bangalore - 23, 1/7th share in the site bearing No.38/1, situated at Magadi Main Road, Bangalore and 1/4th share in the building bearing No.76 (new No.9), situated at behind Minerva Mills, Gopalapura, Bangalore.
It is submitted that their grand father died on 22.03.1979. Though there was a partition during the life time of their grand father, there was no division of the schedule properties in the partition deed by metes and bounds. The grand father of the plaintiffs continued to 4 O.S.7595/2010 manage those properties till his death. However, their grand father died all of a sudden due to heart attack. Due to sudden death of their grand father, the family was left with no head to manage the affairs of the family. All the sons of plaintiff's grand father, except two senior aunts had remained unmarried including the 1st defendant. Therefore, though there was a partition in the family as per partition deed dated 05.10.1978, the 1st defendant and 3rd defendant being elders continued to manage the family and the properties, after the death of their grandfather. The first defendant became the head of the family and 1st defendant was enjoying all the income from the properties which were the subject matter of the partition deed dated 05.10.1978. There were more than 35 small rent fetching houses. There was a very good income by way of rent by those houses. During 1979 all the above said houses were fetching the rent of Rs.22,000/- p.m. In addition to rent fetching houses, there were factory premises which were let out for rent of Rs.18,000/- p.m. Totally the 1st defendant used to get rent of Rs.40,000/- p.m. The 1 st defendant used to get a very good income from M/s. Sadashivam Weaving Factory which was being run in the premises bearing No.12/8. The first defendant's marriage as well as the marriages of 2nd defendant and sisters were performed from 1980 and ended during 1994 from out of the joint family income. Later on first defendant refused to give accounts of the income from the joint family properties. Since the 1st defendant had refused to give account of the income, plaintiff's father as well as their uncles 5 O.S.7595/2010 severed themselves from the joint family and expressed their desire to live separately during 1996-97 and requested the 1 st defendant and 3rd defendant as both were managing the affairs of the joint family to give the share in the properties as divided during the lifetime of the grandfather of the plaintiffs.
It is further submitted that, during 1996-97 the 2nd defendant i.e., the father of the plaintiffs started living in one of the item ie., door bearing No.E/9 (New No.24), situated at 6th Cross, Kempapura Agrahara, Magadi Road, Bangalore, which was allotted in favour of the plaintiffs' father i.e., 2nd defendant, in the partition. It is further submitted that, in the partition which was executed on 05.10.1978, the father of the plaintiffs was given lesser share than that of the 1 st defendant and other uncles of plaintiffs. There is a recital in the partition deed to that effect. Since from the beginning the 1st defendant was dominating over plaintiff's father, i.e., 2 nd defendant. After the death of their grand father, defendant No.2 treated the 1 st defendant as his father and maintained a very good reverential distance. He never opposed or retorted the 1st defendant at any time and was very obedient.
It is submitted that, the first defendant taking undue advantage of plaintiff's father fidelity and innocence, represented before plaintiffs' father that if the item No.1 and 2 of the suit schedule properties if stands in whole in his name the properties can be developed for the benefits of all the co-sharers. The 1 st defendant 6 O.S.7595/2010 also promised plaintiff's father that after developing the said suit schedule properties, the income would be shared from among all the co-sharers. By saying so, the 1st defendant insisted the plaintiff's father i.e., 2nd defendant as well as defendants No.3 and 4 to execute a release deeds releasing their respective right over the item No.1 and 2 of the suit schedule properties. It is further submitted that, plaintiff's father believing the version of 1 st defendant and promise of developing the suit schedule properties executed two release deeds. However, in it is mentioned in the said release deeds, as if the 1st defendant has paid a sum of Rs.1,00,000/- each by way of cheque to plaintiff's father, the 2nd defendant, but the amount has not been paid to plaintiff's father. It is submitted that the suit schedule properties are joint Hindu family properties and plaintiff's father had no right to execute the release deeds in favour of the 1 st defendant. There was no legal necessity to plaintiff's father to execute the release deed releasing the right over the suit schedule property in favour of the 1st defendant. Plaintiffs as well as 2nd defendant went to 1st defendant and requested to give the share in the income from the schedule properties, as promised. However, the 1st defendant refused to give share in the income from the schedule properties. Therefore, the plaintiffs and their father insisted the 1 st defendant to give back plaintiffs' and their father's share in the suit schedule property as the release deed were executed nominally. It is further submitted that, their father had no legal right whatsoever to relinquish/release the undivided share of the plaintiffs' right and 7 O.S.7595/2010 interest over the suit schedule properties by executing the release deeds. The release deeds executed by plaintiffs' father is not supported by any consideration. The consideration mentioned in the release deeds is not a real market value of the schedule property. The release deeds executed by plaintiffs' father are ab initio void and same is not binding upon the plaintiffs' share, rights and interests over the suit schedule properties. Thereby, the plaintiffs got issued legal notice calling upon the 1st defendant to treat the release deed as null and void and to execute redelivery deed to set right the issue in so far as the plaintiffs and 2nd defendant's share in the suit schedule properties. The first defendant has received the said legal notice and has given an untenable reply. Since defendant No.1 is not ready to give back the plaintiffs and 2nd defendant's share in the suit schedule property, thereby the plaintiffs constrained to file this suit.
The cause of action to the above suit arose on 23.04.2001, the day on which two release deeds came to be executed by the 2 nd defendant and on 25.03.2008, the day on which the 1st plaintiff attained majority, 01.07.2010, the day on which the plaintiffs demanded the first defendant to re-execute the release deed, on 26.07.2010, the day on which the legal notice was issued to 1 st defendant and 25.08.2010, the reply given by the first defendant to the legal notice.
3. After receipt of the suit summons the defendants appeared through their respective counsels. The 1st defendant filed 8 O.S.7595/2010 written statement contending that, the suit filed by the plaintiffs for cancellation of release deeds executed by the 2nd defendant and for Permanent Injunction is not maintainable either in law or on facts. It is submitted that, the allegations made in para 3 and 4 are substantially correct. The allegations made in para 5 regarding the death of grand father and performance of marriage of his children are incorrect. The allegations made in para 6 of the plaint that the 1 st defendant became the head of the family and he was enjoying all the income from the properties which were the subject matter of the partition deed are all false. It is further submitted that the contention of the plaintiffs in para 7 of the plaint are false and baseless. The allegations made by the plaintiffs in para 8 to 14 are all false and baseless.
It is further case of the 1st defendant that, 2nd defendant bonafidely believing the 1st defendant's version has executed the release deeds and that the same was done out of sentimental feelings and that the cheque amount has not been paid to the 2 nd defendant and that the same is not representing the actual market value of 2nd defendant's share and that 1st defendant has manipulated the cheques and himself has withdrawn from the bank etc., are all false and baseless. In fact, at the time of death of the father, there were arrears, ESI arrears, private borrowings and also amount borrowed from Canara Bank etc., It was for discharge of these debts and having receiving other payments made by the 1 st 9 O.S.7595/2010 defendant to the defendant No.2, he has executed the release deeds in question. After the release deeds were executed, the parties have acted upon the same and the 1st defendant has discharged the major portion of the debts. He has made improvements from his own efforts and funds on the properties in question. Now after seeking his welfare and improvements made in the properties, the 2 nd defendant having illegal eye on the same, through his sons got instituted the above suit against this defendant. The suit filed by the plaintiffs against their own father, all of them are residing together. It goes to show that it is a collusive suit filed by the plaintiffs at the instance of defendant No.2.
It is further submitted that, the contention of the plaintiffs that there was no legal necessity and the defendant No.2 had no legal right to execute the release deeds and that the first defendant had obtained the release deeds by playing fraud and that liability as stated in the release deed were non existent and the same were not of defendants No.2 to 4 are all false and baseless. In fact, because of the said liabilities which the defendants No.2 to 4 could not be able to discharge, they came forward and agreed for execution of the release deed foisting the said burden on defendant No.1. Accordingly, the release deed were executed and the same are legal and valid.
It is further submitted that plaintiffs and defendant No.2 went to 1st defendant on 01.07.2010 and asked for their share in the income 10 O.S.7595/2010 from the schedule properties are false and baseless. The contentions taken by the plaintiffs in para 18 of the plaint are also false and baseless. The suit is bad for nonjoinder of necessary parties. On these ground the suit may be dismissed in the interest of justice and equity.
4. The 2nd defendant filed written statement contending that the averments made in para 3 of the plaint are true and correct. It is further submitted that on 05.10.1978 there was oral partition and the same was reduced into writing on 20.02.1979. It is submitted that, the 1st defendant represented this defendant that if the item No.1 and 2 of the suit schedule properties, if stand in whole in his name, the properties can be developed for the benefits of all the co-sharers. It is true that the 1st defendant promised this defendant that after developing the suit schedule properties, the income would be shared from among all the co-sharers i.e, from among all the defendants and by saying so the 1st defendant insisted this defendant as well as defendants No.3 and 4 to execute a release deeds releasing their respective right over the item No.1 and 2 of the suit schedule property. The other allegations made by the plaintiffs in para 15 of the plaint, that this defendant bonafide believing the 1 st defendant's version and promise of developing the suit schedule properties, executed two release deeds. It is further submitted that this defendant executed the release deeds out of sentimental feelings and however, it is mentioned in the release deeds, as if the 1 st 11 O.S.7595/2010 defendant has paid a sum of Rs.1,00,000/- each by way of cheque to this defendant, but the said amount has not been paid to the defendant and assuming it is a consideration and the said considerations do not represent the real market value of this defendant's undivided share in the suit schedule properties. The remaining allegations stated by the plaintiff is admitted by the 2 nd defendant. The entire written statement of 2nd defendant goes to show that he has admitted the case of the plaintiffs.
5. The 3rd defendant filed written statement and contended that, the allegations made in para 2 and 3 of the plaint is admitted and allegations made in para 4 to 11 are admitted by this defendant. Other averments made by the plaintiffs in para 15 to 20 are also admitted by this defendants.
6. The 4th defendant filed memo adopting the written statement of the 3rd defendant.
7. On the basis of the above pleadings, my predecessor in the office has framed the following issues.
1. Whether the plaintiffs prove that he has got share in the suit properties ?
2. Whether the plaintiffs prove that the release deeds dated 23.04.2001, 24.04.2011 and 24.04.2001 are not binding upon him ?
3. Whether the plaintiffs prove the alleged interference of the defendants ?
12 O.S.7595/20104. Whether the defendants prove that the payment of court fee is not proper ?
5. Whether the defendants prove that the suit is bad for non joinder of necessary parties ?
6. Whether the defendants prove that the suit is barred by limitation ?
7. Whether the plaintiffs are entitled to the relief of share in the suit property, relief of declaration and injunction ?
8. What Order ?
8. In order to prove his case, the plaintiff No.1 got examined himself as PW.1 and got documents marked as Exs.P.1 to P.8 and closed his side. The defendants No.1 and 2 are examined as DW.1 and DW.2 and got marked Ex's.D.1 to D.12.
9. Heard arguments on both sides.
10. On appreciation of the oral and documentary evidence on record, my answer to the above issues are as follows:
Issue No.1 : In the Negative,
Issue No.2 : In the Negative,
Issue No.3 : In the Negative,
Issue No.4 : In the Affirmative,
13 O.S.7595/2010
Issue No.5 : In the Negative,
Issue No.6 : In the Negative,
Issue No.7 : In the Negative,
Issue No.8 : As per final order,
For the following ;
REASONS
11. ISSUE NO.2 : The learned counsel for the plaintiffs vehemently argued and submitted that, DW.1 admitted in the pleadings and evidence that, the suit schedule properties are the joint family properties. Defendant No.1 admitted at page 11 para 1 of the cross-examination that the suit schedule property are the joint family properties of defendants No.1 to 4. It is further submitted that, at the time of executing the release deeds by defendant No.2 in favour of defendant No.1 the plaintiffs were minor. The 2nd defendant executed the release deeds in favour of first defendant. The plaintiffs being the legal heirs of 2nd defendant are having legal right over the suit schedule properties. In order to prove the case, the plaintiffs placed oral and documentary evidence. Once the first defendant admitted about the suit schedule properties are joint family properties, the plaintiffs being the children of 2nd defendant are having their legitimate share over the suit schedule properties. It is admitted by the defendants during the course of evidence. Moreover, the 2nd defendant is not having any right to execute such release 14 O.S.7595/2010 deeds in favour of first defendant. At the most, the 2 nd defendant has to execute to the extent of his share in the suit schedule properties. This fact is proved by the plaintiffs by oral and documentary evidence.
12. Per contra, the learned counsel for the defendant No.1 vehemently argued and submitted that, there is no dispute regarding relationship between the parties. Defendants No.1 to 4 are the brothers. The plaintiffs are the sons of 2nd defendant. The partition took place in between the defendants No.1 to 4 and their father in the year 1978. It is also admitted by both the parties in the pleadings and evidence. In 2001 the defendants No.2 to 4 have executed the release deeds in favour of defendant No.1 by taking Rs.1,00,000/- each through cheque. This fact is not disputed by the defendants No.2 to 4 in the pleadings and evidence. Thereby, the first defendant became the absolute owner of item No1 and 2 of the suit schedule properties by virtue of release deeds. Defendants No.2 to 4 being the brothers of first defendant are not challenged Ex's.P.1 and P.2 within the stipulated time. The present plaintiffs being the sons of 2 nd defendant colluding with each other have filed a false case. Thereby, the plaintiffs are not having any legal right over the suit schedule property. This fact is proved by first defendant with cogent evidence and documents.
15 O.S.7595/201013. I have gone through the pleadings, evidence and documents. Before going to discuss about the merits of the case, it is better to mention some admitted facts by the parties. It is not disputed fact that on 05.10.1978 the father and mother of defendants No.1 to 4 have alive. It is undisputed father that, on that day there was partition among defendants No.1 to 4 and their father. Their father managed the suit schedule properties till his death. After the death of their father, first defendant being the elder member of the family he has maintained the suit schedule properties. The mother of the defendant No.1 to 4 expired in 1985. It is undisputed fact that, items No.1 and 2 of the suit schedule properties there are small houses constructed and one weaving factory is existing in the suit schedule properties. It is undisputed fact that since 1979 to 2001 the suit schedule properties are in the control of first defendant. In view of these admission, one thing is clear that the defendants No.1 to 4 being the brothers, have divided all the joint family properties in the year 1978. Later on, they enjoyed their respective portion of their properties. The item No.1 and 2 are managed by the first defendant. In the meantime, defendants No.2 to 4 have executed release deeds on 23.04.2001, in view of the registered release deeds the first defendant became the absolute owner and in possession of the suit schedule properties. This aspect is not disputed by the defendants No.2 to 4 in the pleadings and evidence. This goes to show that defendants No.2 to 4 are admitted about the execution of Ex's.P.1 and 2 in 2001. Defendants No.2 to 4 being the brothers of first 16 O.S.7595/2010 defendant are not disputed about the contents of Ex's.P.1 and P.2. The signature found on these two documents and in view of registered documents, the presumption is automatically arises that the first defendant became the absolute owner of the suit schedule property. Moreover, the release deed marked at Ex's.P.1 and 2 clearly reveals that the first defendant paid an amount of Rs.1,00,000/- each through cheque to defendants No.2 to 4. The same is encashed by defendants No.2 to 4 in 2001. This fact is supported the documents relied by the first defendant marked at Ex.D.10 account extract. In view of Ex's.P.1 and P.2 and D.10 one thing is clear that the defendant No.2 to 4 have executed the release deed by taking an amount of Rs.1,00,000/- each. Thereby, defendants No.2 to 4 are not having any right to claim any share in the suit schedule properties.
14. Now, I would like to discuss about the case of the plaintiff and documents. It is noticed that, the plaintiffs are the sons of 2 nd defendant. It is further noticed that plaintiffs and 2 nd defendant are residing in the same house. It is the case of the plaintiffs that, the 2 nd defendant has not obtained any amount at the time of execution of the release deeds Ex's.P.1 and P.2. If it is so, there is no impediment on the part of the 2nd defendant being the brother of the first defendant to challenge the said documents at the relevant point of time. It is further noticed that 2nd defendant executed Ex's.P.1 and 17 O.S.7595/2010 P.2 in April 2001. The present suit is filed by the plaintiffs in the year 2010. It goes to show that, the 2nd defendant being the father of the plaintiffs has not disclosed about the execution of Ex's.P.1 and P.2 at the relevant point of time. Moreover, it is further case of the plaintiffs that the first defendant assured that in order to develop the suit schedule properties and earn money he has obtained the release deeds and agreed to distribute the income of the suit schedule properties to defendants No.2 to 4. Later on, defendant No.1 is not ready to give any income of the suit schedule properties. Thereby, the plaintiffs and 2nd defendant questioned the same to the first defendant in the year 2010. At that point of time, the first defendant stated that, he has obtained the suit schedule properties through the registered release deeds. The defendants No.2 and plaintiff are not having any right over the suit schedule properties. Thereby, the plaintiffs are constrained to file this suit.
15. In order to substantiate the same, the plaintiff No.1 examined as PW.1 and got marked Ex's.P.1 to P.8. The entire evidence of PW.1 discloses the facts of the case narrated by the plaintiffs in the plaint. The documents relied by the plaintiffs at Ex's.P.1 and P.2 are the certified copies of the release deeds dated 23.04.2001. Ex.P.3 is the legal notice, Ex.P.4 is the reply notice, Ex.P.5 is the certified copy of the release deed dated 25.01.2016. Ex's.P.6 & P.7 are the SSLC marks cards of plaintiffs and Ex.P.8 is encumbrance certificate. This PW.1 is testified by the defendant's 18 O.S.7595/2010 counsel. At that point of time, he deposed that he do not know about the partition taken place in 1978. This evidence is contrary to the pleadings of the plaintiffs. The plaintiffs stated in the pleadings that they came to know about the partition effected among defendants No.1 to 4 on 05.10.78 through their father. Later on it is reduced in writing in 1979. This aspect is categorically admitted by defendants No.1 to 4 in the pleadings and evidence. The evidence of the PW.1 discloses that, he is not having knowledge about the earlier partition taken place among defendants No.1 to 4. PW.1 further admitted that, in view of the partition all the 4 brothers are residing separately. PW.1 further admitted that, he came to know about the partition among defendants No.1 to 4 in 2009 through his father. PW.1 further admitted that, prior to the death of their grand father Sadashivam, he was the owner of Sadashiva Weaving Factory. The learned counsel for the first defendant tried to elicit that his grand father Sadashivan had not deposited amount regarding workers ESI funds. Thereby, the ESI office has issued notice and directed to deposit the amount of the workers. This fact is denied by PW.1. PW.1 further admitted that another property situated at K.P.Agrahara is joint family property. The learned counsel for the first defendant tried to elicit that, at the time of execution of release deed by defendant No.2, he has obtained Rs.1,00,000/- through cheque. It is denied by PW.1. The entire evidence of PW.1 goes to show that, he was minor at the time execution of release deed by defendants No.2 to 4. The entire evidence of PW.1 is not possible to hold that defendant No.2 being 19 O.S.7595/2010 the father of the plaintiff has misused the family funds or he had any bad habit etc., There is no such pleading that 2 nd defendant is not maintaining the family or he has used the joint family funds for any other illegal activities etc., Moreover, the evidence of the plaintiff and DW.2 clearly goes to show that the plaintiff and defendant No.2 are residing in the same house. There is no impediment on the part of 2nd defendant to challenge Ex's.P.1 and P.2 at the relevant point of time. The 2nd defendant instigated the plaintiffs to file the present suit. Thereby, the evidence of plaintiff is not possible to accept it.
16. Now, I would like to discuss about the documents marked through plaintiffs at Ex's.P.1 and P.2. These two documents are registered release deeds. It reveals that the first defendant has made payment of Rs.1,00,000/- each to defendants No.2 to 4. Defendants No.3 and 4 have also appeared before the Court and submitted their written statements. But they are not ready to adduce any evidence. Moreover, the counsel for defendants No.3 and 4 never testified the PW.1 during the course of trial. This goes to show that, defendants No.3 and 4 are admitted about the execution of Ex's.P.1 and 2. In case defendants No.3 and 4 are not received any amount from the first defendant, they would have also challenged the Ex's.P.1 and P.2 at the relevant point of time. The contents of the documents at Ex's.P.1 and P.2 never discloses that the first defendant has agreed to develop the suit schedule properties and 20 O.S.7595/2010 distribute the income to defendants No.2 to 4. It is no doubt that the suit schedule item No.1 is exclusively belongs to the mother of the defendants No.1 to 4. She has obtained the item No.1 under registered sale deed. After the death of father of defendants No.1 to 4, all the members of joint family treated item No.1 as joint family property. After the death of mother of the defendants No.1 to 4, all the brother are enjoying their respective property in view of the partition in 1978. Later on, defendants No.1 to 4 are arrived to conclusion that suit schedule property has to be given to the first defendant in order to develop the same by receiving amount mentioned in Ex's.P.1 and P.2. Once the documents relied by the plaintiffs at Ex's.P.1 and 2 never discloses that, defendant No.1 has agreed to develop the property and distribute the income to defendants No.2 to 4, then the question does not arise that the document executed by defendants No.2 to 4 at Ex's.P.1 and P.2 are only name sake document.
17. Now, I would like to mention that the plaintiffs have issued legal notice on 26.07.2010. It is duly served on the first defendant. He has given reply as per Ex.P.5. The contents of the legal notice and reply notice reflect the stand of both the parties stated in the present case.
18. Now, I would like to discuss about the evidence of first defendant. The first defendant categorically stated in the written 21 O.S.7595/2010 statement and evidence that he has obtained the suit schedule properties by virtue of release deeds. Thereby, he is the absolute owner and in possession of the same. He has invested huge amount for demolition and reconstruction of new building in the suit schedule properties. He has invested nearly Rs.40,00,000/- towards construction of the new building in suit schedule properties. This witness is testified by the learned counsel for the plaintiffs. The counsel for the plaintiffs elicited about the suit schedule properties are the joint family properties and 2nd defendant is not having any right to execute the release deed. This fact is denied by DW.1 during the course of evidence. It is no doubt, on the basis of pleadings of the parties and evidence, item No.1 and 2 are also put in the partition. The defendants No.1 to 4 are obtained their respective shares in the suit schedule properties. Later on, defendants No.2 to 4 are relinquished their right over the suit schedule properties in favour of first defendant. It is supported with oral and documentary evidence.
19. At the same time, I would like to refer the evidence of 2 nd defendant. On perusal of the evidence, it reveals that defendants No.1 to 4 have divided the suit schedule properties under partition. At that time defendant No.2 acquired ¼th share in item No.1 of the suit schedule properties and 1/3rd share in item No.2 of the suit schedule properties. It is further case of 2 nd defendant that, first 22 O.S.7595/2010 defendant requested him and defendants No.3 and 4 to execute release deed in his favour by saying that if the entire suit schedule properties stand in his name, it can be developed and after developing the suit schedule properties the income accrued from the suit schedule properties would be shared among all the co-sharers. Bonafide believing the 1st defendant's promising of developing the suit schedule properties so as to make himself and other defendants more profitable for the benefit of all the defendants, himself and defendants No.3 and 4 out of sentimental feeling executed release deed in favour of 1st defendant in respect of suit schedule properties. The market value of the suit schedule properties is more than Rs.50 lakhs. At it is formal release deed, only Rs.1,00,000/- is shown as consideration amount. The said amount has not been paid to him.
20. At this juncture, I would like to refer the cross-examination of this witness. At page 8 of the cross-examination he admitted that, he has completed LL.B decree. He had knowledge regarding law. He has put his signature on Ex's.P.1 and P.2. Nobody has asked him to put signature without reading the documents. This evidence clearly goes to show that the 2nd defendant is not an uneducated person. He has completed LL.B decree. He had knowledge about the legal proceedings. He has no impediment to put signature on reading the documents. This evidence is clearly goes to show that, 2 nd defendant had knowledge of the contents of Ex's.P.1 and P.2. Later on, he has 23 O.S.7595/2010 put his signature. He never disputed about the execution of the documents and signature at Ex's.P.1 and P.2. Thereby, this Court come to the conclusion that the contention of the plaintiff and 2 nd defendant is clearly goes to show that on the instigation of the 2 nd defendant the plaintiff have filed the present suit. The DW.2 further admitted that, it is mentioned in Ex's.P.1 and P.2 that all the 3 brothers i.e., D2 to D4 obtained Rs.1 lakh each through cheque. The DW.2 gave explanation that first defendant obtained signature on the cheque, but he has not given the amount. If it is so, there is no impediment on the part of 2nd defendant to question the legality of the document at the relevant point of time. He had also knowledge about the consequences of the documents. All these facts are clearly goes to show that the 2 nd defendant had knowledge about the contents of the documents and he has also received the amount and put his signature on Ex's.P.1 and P.2. In view of the material admissions on the part of DW.2, one thing is clear that Ex's.P.1 and P.2 are executed in 2001. He has not questioned the legality of the said documents till 2010. He has stated in the written statement that, first defendant has played fraud and misrepresentation. But he has not lodged any police complaint against the first defendant at the relevant point of time. This material admissions is sufficient to hold that, 2nd defendant is not diligent to question the legality. This goes to show that the 2nd defendant obtained Rs.1 lakh and relinquished his over the suit schedule properties.
24 O.S.7595/201021. Another point to be noted is that, the plaintiffs have not made any allegations in the plaint that the 2nd defendant being their father has misused the amount obtained by executing the release deed. Moreover, on the admissions of PW.1 and DW.2, one thing is clear that, the plaintiffs and defendant No.2 being the sons and father are residing in the same house. This goes to show that, they are having knowledge about the execution of the documents at the relevant point of time. In view of the evidence of both the sides and documents, in my opinion the plaintiffs were minor at the relevant point of time. The 2nd defendant being the kartha of the family has executed the release deed and obtained an amount of Rs.1,00,000/-. It is utilized for the family requirements. In view of Sec.15 of Hindu Succession Act, the kartha of the family is having every right to alienate any property in favour of 3rd person for the welfare of the family. Here, in this case the 2nd defendant never questioned the legality of Ex's.P.1 and P.2 for more than 10 years. Thus, it is sufficient to hold that the 2 nd defendant being the father of the plaintiffs had knowledge about the documents and transactions in 2001. Thereby, he has kept quite all these years and instigated the plaintiffs to file the present suit. It is no doubt, the plaintiffs being the sons of 2nd defendant and the suit schedule properties are the joint family properties, the 2nd defendant is not having independent right to execute the release deed. However, the 2nd defendant being the kartha of the family in order to manage the family or other legal expenses he has executed Ex's.P.1 and P.2. It is benefited by the 25 O.S.7595/2010 family of the 2nd defendant. Thereby, I come to the conclusion that the oral testimony of PW.1 and documents and material admissions on the part of 2nd defendant, one thing is clear that the suit schedule properties exclusively belongs to the first defendant by virtue of release deed at Ex's.P.1 and P.2. Moreover, the plaintiffs are not able to furnish katha certificate of the suit schedule properties in this case. In view of the release deed, the first defendant has demolished the suit schedule properties and put up new construction by spending huge amount. This goes to show that the first defendant being the owner of the suit schedule property, thereby he has put up construction. Moreover, at the time of putting up construction the plaintiffs' nor defendant No.2 have not raised any objections. This goes to show that the 2 nd defendant had knowledge about the construction undertaken by the first defendant. Inspite of it, he is not diligent to question the legality of Ex's.P.1 and P.2. There is a recital in Ex's.P.1 and P.2 that "WHEREAS, owing to sentimental feelings and parties herein un-intended to divide the schedule property and intention of the Releasors is that, the entire schedule property is to be enjoyed absolutely by any one of the brothers i.e., by the Releasee and Releasee being the elder brother of the Releasors has looked after and worked for prosperity of Releasors and he has also undertaken to discharge the liability of the Releasors and Releasee from Canara Bank, Rajajinagar Branch, Bangalore and further, in various other ways also Releasors are being benefitted by the Releasee and therefore, the Releasors are therefore, the Releasors 26 O.S.7595/2010 are unmindful of the market value of the schedule property, without evaluating their share in terms of money have decided to RELINQUISH all their right, title and interest in the schedule property in favour of the Releasee and in pursuance of that decision, they are executing this Release Deed." Thereby, the evidence of plaintiffs and documents relied are not sufficient to hold that, the 2 nd defendant is not having any right to execute release deed in favour of first defendant. Thereby, I come to conclusion that Ex's.P.1 and P.2 executed by 2nd defendant is binding on the plaintiffs. Moreover, the plaintiffs are not able to elicit any material admission from the mouth of DW.1 to disbelieve the contents of Ex's.P.1 and P.2.
22. Another point to be noted here is that, defendants No.3 and 4 are the brothers of 2nd defendant. They have also appeared and submitted their written statement. However, they are not ready to adduce any evidence or testify DW.1 during the course of trial. It is also noticed that, they being the brothers of first defendant are having knowledge about the execution of the release deeds. Thereby, defendants No.3 and 4 have kept quite. Moreover, the defendants No.3 and 4 are also having equal right over the item No.1 and 2 at the time of execution of Ex's.P.1 and P.2. The children of defendants No.3 and 4 are also not challenged Ex's.P.1 and P.2. This goes to show that, the plaintiffs are being the sons of 2 nd defendant at the instigation of their father have filed the present suit.
27 O.S.7595/2010It is not proved by cogent evidence and documents. Moreover, the evidence of DW.1 and documents are more probable than the evidence of plaintiffs.
23. At this juncture, I would like to refer the citations relied by the plaintiff reported in AIR 1976 SC 1, Ratnam Chettiar & Others V/s S.M.Kuppuswami Chettiar and Others, wherein it is held that :
(C) Hindu Law - Partition - Re-opening of - Minors
- A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case, the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.
When the partition is effected between he members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minor also if it is done in good faith and in bonafide manner keeping into account the interests of the minors.
Where, however, a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place."
The plaintiffs have relied upon another citations reported in AIR 1979 SC 1436, Smt. Sukhrani (dead) by LRs and Others V/s Hari Shanker and Others, wherein it is held that :
28 O.S.7595/2010"(B) Hindu Law - Joint Family - Partition - Right of erstwhile minor coparcener to reopen partition on ground of unequlity.
I have gone through the citations relied by the plaintiffs. The facts and circumstances discussed in the above respected judgment and the facts and circumstances of the present case are not one and the same. Hence, the above citation is not applicable to the present case on hand.
24. At the same time, the defendant No.1 has relied upon citation reported in AIR 2018 SC 3907, Kehar Singh (D) Thr. L.Rs and Others V/s Nachittar Kaur and Others, wherein it is held that :
"Hindu Law - Ancestral property - Alienation by Karta - Existence of legal necessity proved - Co- coparcener(son) has no right to challenge sale made by Karta of his family.
I have gone through the citations relied by the first defendant. The facts and circumstances discussed in the above respected judgment and the facts and circumstances of the present case are one and the same. Hence, the above citation is aptly applicable to the present case on hand. Hence, I answer Issue No.2 in the Negative.29 O.S.7595/2010
25. ISSUE NO.3 :- It is the case of the plaintiff that, the defendants have tried to interfere in the suit schedule properties. On this point, the plaintiffs are not able to produce documentary evidence to show that they are also in joint possession of the suit schedule properties as on the date of suit. On perusal of the evidence of the plaintiff, it is no where noticed that, the plaintiffs are in possession of the suit schedule properties. At the same time, on perusal of the evidence of DW.1, the learned counsel for the plaintiffs testified the DW.1 and suggested that, since 1980 DW.1 is in possession of the suit schedule properties. The same is admitted by DW.1. This goes to show that, the plaintiffs are not in possession along with defendants. Moreover, the plaint never discloses that the plaintiffs are also in possession of the suit schedule properties. Thereby, I come to the conclusion that they are not able to prove this issue. Hence, I answer Issue No.3 in the Negative.
26. ISSUE NO.4 :- The defendants contended in the written statement that, the payment of court fee is not proper and correct. On this point, I would like to refer the order sheet dated 03.12.2010. On the prayer made in the plaint and submission of the defendants' side my Predecessor in the office passed an order on 03.12.2010. The plaintiff is directed to value the suit properly on the basis of the market value on the relief sought for. The same is challenged by the plaintiff before the Hon'ble High Court of Karnataka in Writ 30 O.S.7595/2010 Pet.No.9666/2011. After hearing the matter the Hon'ble High Court of Karnataka has allowed the writ petition and observed that, "as per Sec.38 of the Karnataka Court Fees and Suit Valuation Act also declare that in case of cancellation of a decree and possession of any property suit is to be valued on the basis of the value of the property stated in the deed. In that view the valuation made by the plaintiff is sound and proper. The order of the trial court is bad in law. Since the matter in respect of payment of court fee is between the court and the plaintiff, hearing the respondent in the matter is not necessary. Accordingly, the writ petition is allowed." In view of this order, one thing is clear that the plaintiffs paid the Court fee on the value of the suit properties mentioned in Ex's.P.1 and P.2. Thereby, the question does not arise that the court fee paid by the plaintiff are not sufficient. Moreover, on this aspect the defendants are not adduced any oral or documentary evidence. The defendants have not challenged the order passed by the Hon'ble High Court of Karnataka in Writ Pet.No.9666/2011. Thereby, this Court come to the conclusion that the court fee paid by the plaintiffs is proper and correct. Therefore, I answer Issue No.4 in the Affirmative.
27. ISSUE NO.5 :- The defendants contended in the written statement and evidence that the suit is bad for non joinder of necessary parties. On this point, I would like to refer the evidence of DW.1. At page 14 the learned counsel for the plaintiffs suggested 31 O.S.7595/2010 that his father Sadashivam had 4 sons and 2 daughters. The DW.1 has given the answer that 6 sons and 4 daughters. But nobody has disclosed the name of remaining persons. It is the duty of the defendants to disclose the name of the remaining children in the written statement. On perusal of the entire written statement submitted by defendants No.1 to 3, it is not mentioned about the remaining brothers and sisters are alive as on the date of suit. Thereby, the contention of the defendants that, the suit is bad for non-joinder of necessary parties is not holds good. Moreover, on this point the defendants have not adduced any oral or documentary evidence. Mere pleadings is not enough to prove the same. There must be some oral or documentary evidence. There is no such evidence placed by the defendants. Hence, I answer Issue No.5 in the Negative.
28. ISSUE NO.6 :- It is the case of the defendants that, the suit is barred by law of limitation. It is the mixed question of law and fact. It has to be ascertained through pleading and evidence. On perusal of the plaint, it is noticed that, the age of the plaintiffs is 20 and 17. Later the plaintiffs have filed necessary application and amended the plaint when the plaintiff No.2 attained the age of majority. The same is allowed by this Court. At this juncture, it is proper to refer the documents marked by the side of the plaintiffs at Ex's.P.6 and P.7. These documents are the SSLC marks card of 32 O.S.7595/2010 plaintiff No.1 and 2. The date of birth mentioned in these documents are 25.03.1990 and 22.10.1993. This suit is filed by the plaintiffs on 30.10.2010. The documents at Ex's.P.6 and P.7 are clearly reveals that the first plaintiff attained the age of majority as on the date of suit. Thereby, he has filed the present suit. The second plaintiff was minor at that point of time. Thereby, he sought permission to defend the 2nd plaintiff. The court has permitted the same. In view of the documentary evidence, one thing is clear that after attaining the age of majority, the plaintiffs have filed the present suit within 3 years. Thereby, the contention of the defendants that, the suit is barred by law of limitation is not holds good. Moreover, on this point the defendants have not placed any oral or documentary evidence. Hence, I answer Issue No.6 in the Negative.
29. ISSUE NO.1 & 7 :- Both these Issues are inter related to each. Hence they are taken together as they could be disposed of by common reasoning and also to avoid repetition of facts. On going through the pleadings, evidence and documents, it is noticed that the plaintiffs are claiming their right over the suit schedule properties through the 2nd defendant. On perusal of Ex's.P.1 and P.2 these two documents are executed by defendants No.2 to 4 in favour of defendant No.1 in April 2001. Moreover, there are so many liabilities in the family regarding payment of ESI arrears, loan obtained by the family at the time of Sadashivam. All these facts are stated by the 33 O.S.7595/2010 first defendant in the pleadings and evidence. The learned counsel for the defendant No.1 testified the PW.1 regarding family debt and Government has filed case against their grand father Sadashivam regarding ESI amount to the Sadashivam Weaving Factory. In this regard the first defendant placed documents at Ex's.D.1 to D.9. These are the license issued to the factory, returns filed by the Central Excise department, letter of Joint Director, notice issued by Central Excise department, order copy in M.F.A.No.1296/1996, document regarding electricity connection to their factory, letter issued by KEB, notice issued by ESI, statement of accounts and estimation issued by the Engineer. These documents reveals that, later Sadashivam has not contributed ESI amount of the workers of his factory to ESI. Thereby, the Central Excise department has initiated proceedings against Sadashivam to pay the amount. The same is challenged before the Hon'ble High Court of Karnataka in M.F.A.1296/1996. The Regional Director of ESI Corporation appeared in the said M.F.A filed by M/s Sadasivam Weaving Factory. After hearing the matter the said appeal was rejected. At the same time, on perusal of the Ex.D.9 it discloses that Recovery officer of ESI has sent a letter to Branch Manager, Textile Co-Operative Bank Ltd., Magadi Road Branch, Bangalore, to recover the amount from M/s. Sadashivam Weaving Factory. At the same time, the material document at Ex.D.10 account extract of first defendant discloses that he has made payment of Rs.2,17,000/- and odd. In view of these documentary evidence, one thing is clear that the first defendant 34 O.S.7595/2010 being the elder member of the family has taken responsibility to clear the outstanding dues of the factory to the Central Excise department. All these facts are tried to elicited by the counsel from the mouth of PW.1. He has given answer that he has no knowledge regarding payment made by the first defendant to the Central Excise Department. It is pertinent to note that man may live, but document cannot lie. The materials placed by the first defendant at Ex's.D.2 to D.4 clearly reveals that he has received so many notices from the Central Excise Department. Later on he has made payment to the Central Excise Department. All these facts are not disputed by the defendants No.2 to 4 in the pleadings and evidence. Moreover, these facts mentioned in Ex's.P.1 and P.2. In view of the above discussions, I come to the conclusion that the evidence of plaintiffs is not possible to hold that the first defendant has played fraud on the second defendant. This Court is of the opinion that, the 2nd defendant has not questioned the legality of the documents Ex's.P.1 and P.2 since 2001. Though he has stated in the evidence and plaint that first defendant has played fraud etc., he has not filed any complaint against first defendant. On this point, I have already discussed in detail in Issue No.2. On going through the entire evidence of both sides and documents, I come to the conclusion that the plaintiffs are not able to prove that the first defendant has obtained the release deed by playing fraud and misrepresentation etc. 35 O.S.7595/2010
30. Here in this case also the 2nd defendant executed the release deeds in 2001 by receiving Rs.1,00,000/-. It is reflected in the documents at Ex's.P.1 and P.2. Whether the Kartha of the family made any transactions regarding immovable properties in the family, the sons are no right to challenge the said transactions. Thereby, the facts and circumstances discussed in the above respected judgment and the facts and circumstances of the present case are one and the same. Hence, the above citation is aptly applicable to the present case on hand. In view of the above discussion, I come to the conclusion that the plaintiffs are not able to prove Issues No.1 and 7. Hence, I answer Issue No.1 & 7 in the Negative.
31. ISSUE NO .8: In view of my findings on Issues No.1 to 7, I proceed to pass the following:
ORDER The suit of the plaintiffs is hereby dismissed.
No order as to cost.
(Dictated to the Stenographer, transcribed and typed by her, corrected, signed and then pronounced by me in the open court on this the 03 rd day of June, 2022) (SABAPPA) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.36 O.S.7595/2010
ANNEXURE WITNESSES EXAMINED IN FAVOUR OF THE PLAINTIFF:
PW.1 P. Sandeep Kumar
DOCUMENTS MARKED IN FAVOUR OF THE PLAINTIFF:
Ex.P1 Copy of the Release deed dated 23.04.2001,
Ex.P2 Copy of the Release deed dated 23.04.2001,
Ex.P.3 Legal notice issued to the defendants,
Ex.P.4 Reply notice issued by first defendant,
Ex.P5 Copy of the Release deed dated 25.01.2016,
Ex.P6 S.S.L.C markscard of PW.1,
Ex.P7 S.S.L.C markscard of plaintiff No.2,
Ex.P.8 Encumbrance certificate.
WITNESSES EXAMINED IN FAVOUR OF THE DEFENDANT:
DW.1 : S. Krishnamurthy @ S.Shekar
DW.2 : S. Prakash
DOCUMENTS MARKED IN FAVOUR OF THE DEFENDANT:
Ex.D1 License issued to factory,
Ex.D2 Returns filed to Central Excise department,
Ex.D3 Letter issued by Joint Director,
37 O.S.7595/2010
Ex.D4 Notice issued by Central Excise department,
Ex.D5 Order passed in MFA.No.1296/1996
Ex.D6 Document pertaining to electricity connection from KEB,
Ex.D7 Letter issued by KEB to the factor,
Ex.D8 2 Counter foils,
Ex.D9 Notice issued by ESI,
Ex.D10 Statement of accounts,
Ex.D.11 Estimation issued by the Engineer,
Ex.D.12 Gazette notification dated 05.12.1998.
(SABAPPA) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.38 O.S.7595/2010
JUDGMENT PRONOUNCED IN THE OPEN COURT, VIDE SEPARATE ORDER The suit of the plaintiffs is hereby dismissed.
No order as to cost.
LXVIII A.C.C & S.J, Bengaluru City.38