Bangalore District Court
Smt.Devi vs Smt.V.Anusuyadevi on 28 January, 2017
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 28th Day of January, 2017.
Present: Sri. M.S.Patil, B.Sc., LL.B.
XXII Addl. City Civil & Sessions Judge.
Bengaluru.
O. S. No. 4 2 8 8 / 2005
Plaintiff Smt.Devi,
aged 44 years, d/o.late Kantharaj,
w/o.C.Nagaraju, r/at No.1,
Venkataswamy Layout,
Opp.Banaswadi Railway Station,
Lingarajapuram Extension,
Bengaluru-84.
by Sri.Syed Miyamathull.A.G., Advocate.
Vs.
Defendants 1. Smt.V.Anusuyadevi,
w/o.late Kantharaj,
since deceased, represented by L.Rs.:
a) Smt.Devi.
Aged 45 years,
D/o.late Kantharaj.
b) Smt.Hamsa,
Aged 50 years,
D/o.late Kantharaj,
w/o.R.Nagaraj.
c) Sri.K.Umapathi,
Aged 47 years,
s/o.late Kantharaj,
d) Smt.Mala,
Aged 25 years,
D/o.late Ramesh.
2 O.S.No.4288/2005
e) Kum.Sandhya,
Aged 04 years,
D/o.late Ramesh.
f) Chi.Prashanth,
Aged 12 years,
s/o.late Ramesh,
w/o.R.Nagaraj.
g) Chi.Manoj,
Aged 10 years,
s/o.late Ramesh.
Since Nos.1(e) to (g) are minors,
duly represented by Smt.Mala,
Legal representative No.1(d)
h) Smt.Sudha,
Aged 46 years,
D/o.late Kantharaj,
All are residing at No.1,
Venkataswamy Layout,
Opp:Banaswadi Railway Station,
Lingarajapuram Extension,
Bengaluru-560084.
2. Smt.Hamsa,
aged 50 years,
d/o. late Kantharaj,
w/o. R.Nagaraj.
3. Sri.K.Umapathi,
aged 47 years,
s/o.late Kantharaj.
4. Sri.Ramesh,
since deceased, by his LRs.:
a) Smt.Mala,
aged 25 years,
w/o.late Ramesh
3 O.S.No.4288/2005
b) Kum.Sandya,
aged 4 years,
d/o.late Ramesh.
c) Chi.Prasanth,
aged 12 years,
s/o.late Ramesh.
d) Chi.Manoj,
aged 10 years,
s/o.late Ramesh.
LRs. (b) to (d) are minors,
Represented by Smt.Mala, Lr.4(a).
5. Smt.Sudha,
aged 46 years,
d/o. late Kantharaj
All are residing at No.1,
Venkataswamy Layout,
Opp.Banaswadi Railway Station,
Lingarajapuram Extension,
Bengaluru-560084.
D1 to D3 -by Sri.N.S.Shiva Prasad, Advocate.
LRs.of D4(a),(b)-by Sri.Shyam Koundinya. A.S.
LRs.of D4(c),(d)- by Sri.N.S.Shiva Prasad, Advocate.
D5-by Sri.K.M.Janardhana Reddy, Advocate.
Date of institution of suit 08-06-2005
Nature of the suit Partition and separate
possession,
mesne profits and
Permanent injunction
Date of commencement of 26-06-2008
recording of evidence
Date on which Judgment 28-01-2017
was pronounced
Total duration Days Months Years
20 07 11
4 O.S.No.4288/2005
JUDGMENT
This suit filed by the plaintiff is for partition and separate possession of her 1/5th share in the suit properties, together with mesne profits and for grant of permanent injunction for restraining the defendants from alienating or creating charge or creating encumbrance on the suit properties, together with costs and any other reliefs, which Court deems fit, in the circumstances of this case.
2. The brief facts of the plaint averments are that, the plaintiff and defendants 2 to 5 are the daughters and sons of defendant No.1- Smt.V.Anusuyadevi and that, the suit properties are joint family properties of plaintiff and defendants 1 to 5 and that, defendant No.1, taking advantage of entry of her name in the revenue records pertaining to suit properties in BMP, trying to alienate the same or create charge or encumbrance in respect of suit properties, although suit properties are the joint family properties of plaintiff and defendants 1 to 5 and that, the defendants have refused and denied to give share to the plaintiff on demand through legal notice and defendants gave evasive reply to the plaintiff's counsel in response to the notice served upon them and that, the defendants did not give share to the plaintiff. Hence, this suit.
5 O.S.No.4288/20053. The defendants 1, 2, 3 and 5 have jointly filed their written statement, wherein they admit the relationship between plaintiff and these defendants and deny that, the suit property is joint family property of plaintiff and defendants and contend that, suit properties originally belonged to Venkataswamy Naidu, the grand father of plaintiff and defendants 2 to 5, as the suit properties are donated to him under gift deed dated 11-10-1951 and that, said Venkataswamy Naidu has donated the suit properties to his daughter-defendant No.1 and thus, defendant No.1 became absolute owner of suit properties and that, defendant No.1 has sold suit item No.2 property for legal necessity and retained suit item No.1 property and constructed structures in it and has given portions of suit property to plaintiff as well as defendants 2 to 5 for their residence and defendant No.1 has retained the shops constructed in suit item No.1 property and she has been collecting rents for herself in respect of portions of suit properties and shops given by her on rent and thus, the suit item No.1 property, which is available and existing, is self acquired property of defendant No.1 and that, defendant No.1 has executed a Will Deed dated 14-10-2005 in respect of suit property in favour of plaintiff as well as defendants 2 to 4, during her lifetime and that, the plaintiff as well as defendants 2 to 4 have been residing in portions of suit property, which are given by defendant No.1 6 O.S.No.4288/2005 under Will Deed dated 14-10-2005. On these grounds, it is prayed for dismissal of this suit, with costs.
4. Defendant No.4 has filed a Memo adopting the written statement of defendants 1, 2, 3 and 5.
5. Defendant No.1 and defendant No.4 have died during pendency of suit and therefore, defendant No.1(a) to 1(h) and defendant No.4(a) to
(d) are brought on record as legal representatives of deceased defendant No.1 and defendant No.4, respectively.
6. On the basis of these rival contentions taken by both the parties, following Issues are framed:
1. Whether the plaintiff proves that the suit schedule property is the joint family property of herself and the defendants?
2. Whether the plaintiff proves that the plaintiff and defendants are in joint possession of the same?
3. Whether the plaintiff proves that she is entitled for 1/6th share in the suit schedule property?7 O.S.No.4288/2005
4. Whether the plaintiff proves that she also had contributed to the development and improvement of the suit schedule property?
5. Whether the defendants prove that the suit schedule property was the self acquired property of Venkataswamy Naidu and the mother of the 1st defendant?
6. Whether the defendants prove that Venkataswamy Naidu donated the said property in favour of the 1st defendant by means of gift deed dated 11-10-1951?
7. Whether there should be an order for an enquiry into mesne profits under Order 20 Rule 12 C.P.C.?
8. What Decree or Order?
7. The plaintiff, to prove her case, examined herself as P.W.1 and relied upon 12 documents marked as Exs.P1 to P12 and closed her side.
On the other hand, the Defendants examined defendant No.1, 2, 3 and 5, with two other witnesses as DWs.1 to 6 and relied upon 43 documents marked as Exs.D1 to D10 and Exs.D41 to D52 and closed their side.
8. Heard arguments of Learned Counsels for both the parties.
8 O.S.No.4288/20059. My answer to the above Issues are as under:
Issue No.1 - in the Negative; Issue No.2 - in the Negative; Issue No.3 - in the Negative; Issue No.4 - in the Negative; Issue No.5 - in the Affirmative; Issue No.6 - in the Affirmative; Issue No.7 - in the Negative; Issue No.8 - as per Final Order below;
for the following:
Reasons
10. The admitted facts are that, defendant No.1 is the mother of plaintiff and defendants 2 to 4 and that, Venkataswamy Naidu is the father of defendant No.1 and that, defendant No.1 and 4 have died during pendency of suit and therefore, defendant No.1(a) to 1(h) and defendant No.4(a) to 4(d) are brought on record as legal representatives of deceased defendant No.1 and defendant No.4 and that, Venkataswamy Naidu has also died after executing an unregistered Gift Deed dated 25-1-1964 in favour of defendant No.1 in respect of suit item No.1 property.
9 O.S.No.4288/200511. Issue Nos. 1 to 6 : For the sake of convenience and to avoid repetition of facts and in view of the fact that, these Issues are inter-linked and inter-connected with each other, all these Issues are taken-up together for common consideration.
12. The plaintiff contends that, the suit property is joint family property of herself and all the defendants and further contends that, herself and defendants are in joint possession of suit property and further contends that, she has got 1/6th share in the suit property and further contends that, herself has contributed in constructing structure in the suit property and that, her husband being mason, has paid Rs.6,50,000/- to defendant No.1 towards construction of structure in suit item No.1 property.
13. In order to substantiate these facts, plaintiff has examined herself as P.W.1 and she has reiterated the same facts in her evidence before the Court.
Further, in support her contention, she has relied upon 12 documents marked as Exs.P1 to P12, which are, Ex.P1- Genealogy Tree of Venkataswamy Naidu 10 O.S.No.4288/2005 Ex.P2- certified copy of registered Gift Deed dated 11-10-1951 executed by erstwhile owner, in favour of Venkataswamy Naidu, in respect of item No.1 of suit property Ex.P3 - Encumbrance certificate for the period from 1-4-1974 to 31-3-2004 Ex.P4- Endorsement for giving complaint to the Police, by plaintiff, against R.Nagaraju Ex.P5- copy of legal notice given by plaintiff's counsel to defendants 1 to 5 dated 9- 5-2005 Exs.P6 to P9 - Reply notices issued by counsel for defendants 1 to D5 to counsel for plaintiff on dated 25-5-2005 Exs.P10 to P12- Notices issued to plaintiff by BMP
14. On the other hand, defendants contend that, suit property originally belonged to Venkataswamy Naidu, who is father of defendant No.1 and that, said Venkataswamy Naidu, to whom the suit properties were gifted under Gift Deed dated 11-10-1951, has further donated suit properties in favour of defendant No.1 under gift deed dated 25-1-1964 and that, defendant No.1 has sold suit item No.2 property for her legal necessity and defendant No.1, with the assistance of these defendants and one R.Nagaraju- the son-in-law of defendant No.1, has developed the suit property by constructing number of structures, such as six 11 O.S.No.4288/2005 houses and five shops in suit item No.1 property and that, defendant No.1 has executed an unregistered gift deed in favour of plaintiff as well as all other defendants, donating portions of suit properties, such as shops and houses, in their favour.
15. In support of their contention, these defendants have examined themselves, with two independent witnesses, as D.Ws.1 to 6.
16. Defendants No.1, 3, 2 and 5 are examined as DWs.1, 2, 4, respectively, who have reiterated the same facts as stated above in their evidence before the Court.
17. D.W.No.3, being independent witness, who is an attesting witness for Ex.D37-unregistered Will Deed dated 14-10-2005, executed by defendant No.1, bequeathing suit item No.1 property in favour of plaintiff and defendants, stated about execution of unregistered Will Deed by defendant No.1 in his presence and after reading the same, he has signed in the said unregistered Will Deed dated 14-10-2005 on the same day, as an attesting witness and he has identified his signature in Ex.D37-unregistered Will Deed dated 14-10-205.
18. On going through Ex.D1-original Gift Deed dated 11-10-1951, it is same as that of Ex.P2, produced and relied upon by the plaintiff. On going 12 O.S.No.4288/2005 through Ex.D1-original Gift Deed dated 11-10-1951, it goes to show that, the suit property has been donated in favour of M.Venkataswamy Naidu-father of defendant No.1, bequeathing both suit properties in his favour.
19. Further, on going through Ex.D10- unregistered Gift Deed dated 25-1-1964, it goes to show that, said M.Venkataswamy Naidu, father of defendant No.1, has donated the suit properties in favour of his daughter, i.e., defendant No.1.
20. In view of donating of suit properties by M.Venkatasamy Naidu in favour of his daughter- defendant No.1, under gift deed dated 25-1-1964, which fact is proved through the evidence of DWs.1, 2, 4 and 5, being defendants 1, 3, 2 and 5 respectively, it can be said that, the suit properties have become the absolute properties of defendant No.1.
21. The suit item No.2 property is not available for partition between the parties, as the said property has already been sold by defendant No.1 for the family necessity.
22. In view of the evidence of D.W.1 to D.W.5, including evidence of D.W.3-attesting witness to Ex.D37-unregistered Will Deed dated 14-10-2005, said to have been executed by defendant No.1 in 13 O.S.No.4288/2005 favour of plaintiff and other defendants, it can be said that, the plaintiff cannot seek partition in suit item No.1 property, as it has become absolute property of defendant No.1, by virtue of donating said property to defendant No.1 by her father- Venkataswamy Naidu, under gift deed dated 25-1-1964.
23. Further, on going through Ex.D37-Will Deed dated 14-10-2005, which is proved by the evidence of D.Ws.1, 2, 4 and 5, including D.W.3- attesting witness and by taking into consideration of recitals of said Will Deed (Ex.D37), it can be seen that, properties mentioned as "A4", "BS3" and "B5" of said unregistered Will Deed dated 14-10-2005, are given to the plaintiff and further, plaintiff also admits about giving of these properties to her, by her mother and further, in view of the fact that, plaintiff has failed to show how these portions of suit item No.1 property have been acquired by her, it can be said that, she has acquired the said portions of suit item No.1 property under unregistered Will Deed dated 14-10-2005, said to have been executed by her mother (defendant No.1), in her favour.
24. In view of the fact that, suit item No.2 property is not available for partition and in view of the fact that, suit item No.1 property has become absolute property of defendant No.1, by virtue of 14 O.S.No.4288/2005 unregistered gift deed dated 25-1-1964 executed by her father in her favour, donating the suit properties and by virtue of unregistered Will Deed dated 14-10-2005 executed by defendant No.1 in favour of plaintiff and other defendants, bequeathing portions of suit item No.1 property and admission by plaintiff in her evidence that, she has been in possession of portions of suit property given to her by her mother (defendant No.1) and in the absence of any evidence on record produced by plaintiff, to show that, suit properties are the joint family properties of plaintiff and defendants, it can be said that, plaintiff has failed to show that, suit property is joint family property of plaintiff and defendants and that, she is in joint possession of suit property, on the ground that, it is joint family property and that, she has got 1/6th share in the suit property.
25. Plaintiff has averred in her plaint that, she has contributed in construction of structures in suit item No.1 property and that, her husband has given Rs.6,50,000/- towards construction of the portion of suit item No.1 property, cannot be believed, because, the plaintiff has not produced any iota of evidence to show that, she has contributed in construction of portions of suit item No.1 property and that, her husband has given Rs.6,50,000/- towards construction of portions of structures in suit item No.1 property.
15 O.S.No.4288/200526. In view of these reasons stated supra, I hold that, the plaintiff has failed to prove her contentions that, suit property is joint family property of plaintiff and defendants and that, she has got 1/6th share in the suit property and further I hold that, defendants have proved the fact that, suit property is self acquired property of defendant No.1 and that, she has executed a Will Deed on dated 14-10-2005 in respect of portions of suit item No.1 property bequeathing the same in favour of plaintiff and remaining all defendants and that, the plaintiff has been residing in portions of suit item No.1 property, as per the Will executed by defendant No.1 on dated 14-10-2005. Accordingly, I hold Issue Nos.1 to 4 in the Negative and Issue Nos.5 and 6 in the Affirmative.
27. Issue No. 7 : The plaintiff contends that, she is entitled to mesne profits in respect of suit properties. In view of my answer to Issue Nos.1 to 4 in the Negative, I hold that, plaintiff is not entitled to mesne profits in respect of suit properties. Accordingly, I hold Issue No.7 in the Negative.
28. Issue No.8 : In view of the foregoing reasons and in the result, I proceed to pass the following:
16 O.S.No.4288/2005ORDER Suit of the plaintiff is dismissed.
No Order as to costs.
(Dictated to the Judgment Writer, transcribed and computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 28th day of January, 2017.) (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, *sb Bengaluru.17 O.S.No.4288/2005
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1 Smt.Devi List of witnesses examined for defendants:
D.W.1 Smt.Anusuya Devi D.W.2 K.Umapathy D.W.3 Babu D.W.4 Smt.K.Hamsa D.W.5 Smt.Sudha
List of documents exhibited for the plaintiff:
Ex.P1- Genealogy Tree of Venkataswamy Naidu Ex.P2- certified copy of registered Gift Deed dated 11-10-1951 executed by erstwhile owner, in favour of Venkataswamy Naidu, in respect of item No.1 of suit property Ex.P3 - Encumbrance certificate for the period from 1-4-1974 to 31-3-2004 Ex.P4- Endorsement for giving complaint to the Police, by plaintiff, against R.Nagaraju Ex.P5- copy of legal notice given by plaintiff's counsel to defendants 1 to 5 dated 9-5-2005 Exs.P6 to P9 - Reply notices issued by counsel for defendants 1 to D5 to counsel for plaintiff on dated 25-5-2005 Exs.P10 to P12- Notices issued to plaintiff by BMP 18 O.S.No.4288/2005 List of documents marked for defendants:
Ex.D1- original registered Gift Deed dated 11-10-1951 executed by Mr.Thippaiah in favour of Venkataswamy Naidu (Ex.P2) Exs.D2 to D4- certified copes of khata extracts standing in the name of defendant No.1 as owner of suit item No.1 property Exs.D5 to D9 - certified copies of 5 tax paid receipts standing in the name of defendant No.1 in respect of item No.1 of suit property Ex.D10- original unregistered Gift Deed dated 25-1-1964 executed by Venkataswamy Naidu in favour of Defendant No.1 in respect of item No.1 of suit property.
Ex.D10(a)- Signature of Venkataswamy Naidu Exs.D11 to D19 - Nil (No documents are marked) Exs.D20 to D29-Rental Agreements executed by defendant No.1 in favour of her tenants Exs.D30 to D32- certified copies of GPAs dated 7-4-1990 and 5-3-1996 respectively and Affidavit Ex.D33- Agreement of Loan dated 13-7-81 executed by defendant No.1 in favour of R.Nagaraju for having taken loan of Rs.45,000/-
Exs.D34 to D36- Building Contract agreements executed by defendant No.1 in favour of R.nagaraj Ex.D37- Original registered Will Deed dated 14-10-2005 executed by 1st defendant in favour of defendants Ex.D37(a) - Signature of D.W.3 19 O.S.No.4288/2005 Exs.D38 & D39- certified copies of depositions of K.Umapathy and Anusuya Devi in O.S.No.9464/2005 Ex.D40-certified copy of sale deed dated 24-5-2006 between V.Anusuya Devi and R.Nagaraj in favour of eastern portion of item No.1 property Ex.D41- Plan pertaining to suit property Ex.D42- certified copy of sale deed dated 24-5-2006 between V.Anusuya Devi and R.Nagaraj Ex.D43 & D44- certified copies of sale deeds dated 24-5-2006 between V.Anusuya Devi and R.Nagaraj Exs.D45 to D52- 8 tax paid receipts (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, Bengaluru.
20 O.S.No.4288/2005
28-01-2017
Plff. -SANG
D1 to D3, 5 - NSS
LRs. of D4(a)(b) - A S K
LRs. of D4(c)(d) - K M T
Judgment passed and pronounced in Open Court. (vide separate Judgment). Operative portion thereof reads as under:
Order The suit of the plaintiff is dismissed.
No Order as to costs.
XXII A.C.C. & S.J., Bengaluru.