Bangalore District Court
Smt. Chaya vs ) Sri. T. Krishnappa on 5 April, 2022
KABC010072512016
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26)
Dated this the 5th day of April, 2022
Present
Smt.SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.2425/2016
Plaintiff: Smt. Chaya
D/o T.Krishnappa,
Aged about 45 years,
Residing at No.78, 7th Cross,
Near Government School,
Kathriguppe, BSK 3rd Stage,
Bengaluru-560085.
(By Sri Satya Narayan Reddy, Adv.)
Vs.
Defendants: 1) Sri. T. Krishnappa,
S/o Late Thammaiah,
Aged about 73 years,
Residing at No.10,
Kathriguppe,
BSK 3rd Stage,
Bengaluru-560085.
2) Sri. K. Munivenkatappa,
S/o. T. Krishnappa,
Aged 41 years,
Residing at No. 78,
6th Cross, Somala Nursery,
Kathriguppe,
BSK 3rd Stage,
Bengaluru-560085.
3) Sri. K. Chandrashekar,
S/o. T. Krishnappa,
2 O.S.No.2425/2016
Aged 38 years,
Residing at No. 78,
6th Cross, Somala Nursery,
Kathriguppe, BSK 3rd Stage,
Bengaluru-560085.
4) Sri T. Byanna,
S/o Late Thammaiah,
Aged about 65 years,
Residing at No44,
Chamundeshwari Complex,
100 feet Ring Road,
Net to Kamakya Theatre,
BSK 3rd stage,
Bangalore-560 085.
5) Sri. T. Byrappa,
S/o Late Thammaiah,
Aged 55 years,
Residing at No.1/11,
"SAHANA NILAYA",
5th Main, 5th Block,
BSK 3rd Stage, 3rd phase,
Bengaluru-560085.
6) Smt. K. Pushpakumari,
W/o. T.N. Venkatesh,
Aged 49 years,
Residing at No.213,
5th Main, 3rd block,
3rd Stage, Basaveshwaranagar,
Bengaluru-560079.
(By D.1- dead, D.2 & 3- Sri H.V.
Chadrashekar, D.4- Sri T.M. Venkatareddy,
D.6 - Sri. T. Seshagiri Rao, D.5- placed
exparte)
Date of institution of the suit 23.03.2016
Nature of the suit For declaration, partition and
permanent injunction
Date of the commencement 02.10.20218
of recording of evidence
3 O.S.No.2425/2016
Date on which the judgment 05.04.2022
Pronounced
Total duration Years Months Days
06 00 13
(SAVITRI SHIVAPUTRA KUJJI)
X Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of declaration, partition and permanent injunction.
2. The brief facts leading to the plaintiff's case are summarized as under:-
That the subject matter of the suit is detailed in the schedule of the plaint which is said to be an immoveable property bearing No.1/A-10, new No.10 measuring east west 60 feets and north- south 70 feets situate at Kathriguppa village, Uttarahalli hobli, Bengaluru south. The defendant Nos.1, 4 & 5 are said to be the sons of late Thammaiah and defendant Nos.2, 3 and plaintiff are said to be sons and daughter of defendant No.1 and grand-children of the said Thammaiah and all are said to be the members of Hindu joint family. The plaintiff has stated that her grand-father late Thammaiah was the absolute owner in possession of the suit schedule property which he acquired vide order dated 21.12.1959 passed by the Special Deputy Commissioner for Inams Abolition, Bengaluru and he enjoyed the same till his death. It is further stated that during his lifetime late Thammaiah had sold some portions of the suit Sy.No.44 but retained portion of the same as detailed in the schedule of the plaint. It is further stated that he was in possession and enjoyment of the schedule property till his death on 24.10.1991 4 O.S.No.2425/2016 and thereafter the plaintiff and defendant Nos.1 to 5 said to have succeeded to the schedule property and enjoyed the same as joint owners. According to the plaintiff the schedule property is their ancestral property and she being one of the coparceners, she is also having her legitimate share in this property. However it is her allegation that despite her repeated requests to give her share by holding panchayath by the elders, the defendant Nos.1 to 5 have not given her share although initially they had assured her of giving her share, but went on postponing the division in the schedule property. It is her further case that during the year 2010 she received a summons in O.S.No.919/2010 and came to know that defendant Nos.1, 4 & 5 have sold the schedule property to defendant No.6 and the plaintiff herein in that case appeared and filed her written statement claiming her share in the schedule property. However it is her case that when the matter was posted for evidence, defendant Nos.2 & 3 herein did not lead their evidence as a result of which the suit was dismissed for non- prosecution and thereafter defendant Nos.2 & 3 though filed Misc. Petition bearing No.490/2013 for restoration of the suit, the same was also dismissed. However it is her claim that still she is having her legitimate share in the schedule property and since the defendant Nos.1 to 5 have denied her share she has to come up with the present suit seeking the declaratory relief that the alleged sale deed executed by defendant Nos.1, 4 & 5 in favour of defendant No.6 is not binding on her which was executed behind her back and consequently to award her 1/5th share in the schedule property by effecting partition and for consequential relief of permanent injunction restraining the defendants from alienating the schedule property or from interfering with the schedule property.
3. Inspite of service of suit summons, defendant No.5 remained exparte whereas defendant Nos.4 & 6 though appeared 5 O.S.No.2425/2016 through their respective counsels, they have not filed their written statement. During pendency of the proceeding defendant No.1 died. It is submitted that his legal heirs who are none other than the plaintiff and defendant Nos.2 & 3 are already on record. However defendant Nos.2 & 3 who are none other than the brothers of the plaintiff filed their written statement admitting the entire claim of the plaintiff. They have admitted the fact that the schedule property is their ancestral property inherited from their grand-father Thammaiah. They have also admitted the fact that though the plaintiff is also having her share, defendant Nos.1, 4 & 5 have not given her share. They have even admitted the fact of filing of O.S.No.919/2010, its dismissal and the subsequent filing of Miscellaneous petition by defendant Nos.2 & 3 and its dismissal. The defendant Nos.2 & 3 have also admitted that the defendant Nos.1, 4 & 5 have illegally sold schedule property to defendant No.6 and consequently these two defendants have also sought for awarding their respective shares in the schedule property.
4. On the basis of the available pleadings, the court has framed the following issues:-
1) Whether the plaintiff proves that sale deed dated 16.02.2001 executed by the defendant No.1, 4 & 5 in favour of the defendant No.6 is null and void and not binding on the plaintiff?
2) Whether the suit schedule property is the ancestral/ joint family property?
3) Whether plaintiff proves that she is entitled for partition & separate possession of the suit schedule property to the extent of 1/6th share by metes and bounds?6 O.S.No.2425/2016
4) Whether plaintiff proves that defendants are liable to be restrained permanently from alienating and interfering with the suit property?
5) What order and decree ?
5. To substantiate the claim of the plaintiff she has deposed before the court as P.W.1 and produced six documents marked from Ex.P.1 to 6. However defendant Nos.2 & 3 who have though filed their written statement, have not adduced any evidence. It is also revealed from the records that defendant Nos.2 to 4 and 6 have not even cross-examined P.W.1.
6. The counsel for the plaintiff submitted that his arguments may be treated as heard whereas there was no argument either oral or written, from the defendants.
7. On perusal of the materials on record, my findings on 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 : As per final order, for the following:
-: REASONS :-
8. Issue No.2:- Before proceeding for discussion on other issues, and as the question of considering other issues arise only after proving this issue, the same is taken up for prior consideration. It is the specific claim of the plaintiff that she is the daughter of D-1 and sister of D2 and 3 and are grand-children of late Thammaiah whereas D-1, 4 and 5 are the sons of late 7 O.S.No.2425/2016 Thammaiah. This relationship inter-se the parties is not disputed by the defendants 2 and 3 who are the only defendants who have filed written statement whereas the other defendants 4 and 6 who have appeared before the court have not filed any written statement. It is her further case that late Thammaiah during his lifetime acquired the suit Sy.No. 44 totally measuring 01 acre and 07 gunta by virtue of order dtd. 21.12.1959 passed by the Special Deputy Commissioner for Inam Abolition. This fact is also not denied by the defendants 2 and 3.
9. The plaintiff has urged that her grandfather Thammaiah during his lifetime sold some portion of the suit survey number, but retained the remaining portion to the extent of East- West 60 feets and North-South 70 feets as detailed in the plaint schedule and was in its possession and enjoyment till his death on 24.10.1991 and after his death, the present plaintiff and defendants 1 to 5 continued to enjoy it as joint owners in joint possession as co-sharers since no partition has ever taken place in this property. Thus, according to the claim of the plaintiff the suit property is their ancestral property in which she has also got her legitimate share. It is her allegation that though several times she requested the defendants to give her share, her request has not been considered by them though initially they had assured her of giving her share.
10. However, it is the further allegation of the plaintiff that during the year 2010, she received summons in O.S No. 919/2010 and she came to know that D1, 4 and 5 have sold the suit property to D-6 and after appearance she filed her written statement claiming her share in the schedule property. It is further stated that the suit came to be dismissed for non-prosecution on account of failure of D-2 and 3 to lead their evidence and thereafter though they filed Misc. No.490/2013 seeking to restore the suit the same 8 O.S.No.2425/2016 was also dismissed. Thus, it is her specific claim that she being one of the sharers of the schedule property, she is also entitled to get a share in it. However, it is her allegation that the defendants 1, 4 and 5 without her knowledge and consent, have alienated the suit property to D-6 which is not binding on her share. This entire claim of the plaintiff has been admitted by D-2 and 3 who have also claimed their shares in the schedule property.
11. As stated above, during the pendency of the proceeding, D-1 died and as the plaintiff and D-2 and 3 being his legal heirs, they continued the proceeding whereas D-5 remained exparte. No doubt, we have no denial or defence from D4 and 6 as against the claim of the plaintiff, but still the initial burden is cast on the plaintiff to prove her case independently. Further, as D2 and 3 have also claimed their share by supporting the claim of the plaintiff, they are also required to substantiate their claim. In support of her case the plaintiff led evidence by way of chief examination and got marked 6 documents. It is to be noted that she has not been cross examined by the defendants 2 to 4 and D-6. Even D2 and 3 have not adduced any evidence though they have filed written statement.
12. Ex.P1 is the certified copy of the sale deed of defendant No.6 which is a registered sale deed executed by D1, 4 and 5 on 16.02.2001. Ex.P2 to P4 are the Encumbrance certificates standing in the name of D-6 pursuant to Ex.P1 sale deed. Further, Ex.P5 and P6 are the Khatha Extract and Khatha Certificate respectively standing in her name. Except these documents, PW1 has not produced any other material documents to prove that the suit property was her ancestral property. It is material to note that even she has not got marked the said order of the Special Deputy Commissioner granting the suit survey number to her grandfather 9 O.S.No.2425/2016 Thammaiah for and on behalf of the joint family so as to consider the suit property as their ancestral or joint family property.
13. It is further to be noted that in Ex.P1, the defendants 1, 4 and 5 have specifically stated that though the suit property was originally belonging to their father Thammaiah, after his death they being his only legal heirs, have succeeded to the said property and became joint owners and hence they have jointly sold this property to the defendant No.6. Under the present issue the burden is heavy not only on P.W.1 but also on defendant Nos.2 & 3 who have also claimed their share to show as to whether the schedule property was their ancestral or joint family property so as to claim their share. It is pertinent to note that except producing Ex.P.1 to 6 documents as already held above, we have no other supporting materials placed before the court to show as to how the said Thammaiah and his children defendant Nos.1, 4 & 5 had treated the schedule property as their ancestral or joint family property during the lifetime of late Thammaiah.
14. It is also not proved with cogent evidence that even after the death of the said Thammaiah, defendant No.1 to 5 along with plaintiff treated the schedule property as their joint family property. One more material aspect which invites consideration is that along with defendant Nos.4 & 5, deceased defendant No.1 has also sold the schedule property to defendant No.6 under Ex.P.1. Since defendant No.1 is none other than the father of P.W.1 and defendant Nos.2 & 3, during his lifetime certainly the plaintiff would not have any legal right to claim any share in the schedule property. It is further relevant to note that admittedly this sale as per Ex.P.1 has come into existence in the year 2001 i.e., much prior to the introduction of the amended Hindu Succession Act of 2005. In this 10 O.S.No.2425/2016 regard it would be relevant to refer the provisions of Section 6 of the Amended Act which reads thus:-
Sec.6(1)--Devolution of interest in coparcenary property--On and from the commencement of the Hindu Succession (Amendment)Act, 2005, in a Joint Hindu family governed by Mithakshara law, the daughter of a coparcener shall--
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mithakshara coparcener shall be deemed to include a reference to a daughter of a coparcener;
Provided that nothing in this sub-
section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December 2004.
15. Thus when we read the above provision it is abundantly clear that where the right is given to the daughter of a 11 O.S.No.2425/2016 coparcener in the manner as of a son, it becomes necessary to save the disposition or alienation including any partition or testamentary succession as per the proviso to succession (i) of new Section 6. In other words this rider would certainly save the interest of the third party who are benefited by such disposition. Thus the intention of the legislature was to avoid any sham or bogus transaction which could be made in order to defeat the right of a coparcenery conferred upon daughters by the Amended Act of 2005 which would consequently curb the frivolous defences against the daughter of a coparcener but subject to the condition that such alienation or disposition must have taken place subsequent to 20.12.2004. Therefore in the instant case since Ex.P.1 has come into existence in the year 2001 i.e., much prior to 20.12.2004, this alienation in favour of defendant No.6 would not entitle P.W.1 to seek any share in the schedule property even though she might be a coparcener with regard to this property. This position has been once again well settled by the Hon'ble Apex Court in a recent decision reported in Vineeta Sharma v/s Rakesh Sharma and others : 2020 KCCR (2) 1993 (SC).
16. The principles laid down in the above cited decision could aptly be extended to the facts on hand for the simple reason that even in the instant case it has been definite case made out by P.W.1 that she being the daughter of defendant No.1 and grand- daughter of late Thammaiah, she is one of the coparceners and therefore she is also entitled to her legitimate share in the suit schedule property. However, in view of the settled position of law as discussed supra, since the alienation of the suit property under Ex.P1 has taken place much prior to 2004, she no longer remains as a co-parcener, nor she could claim it as her joint family property. It is pertinent to note that as on the date of execution of the Ex.P.1- 12 O.S.No.2425/2016 sale deed, her father the defendant No.1 was very much alive and therefore under law she ought not to have acquired any right in her favour with respect to schedule property to claim share. Therefore considering all these attending facts and circumstances of the case it can safely be said that as on the date of filing of this suit there was no such joint Hindu family in existence between the parties so as to claim the schedule property as their ancestral or joint family property. Hence this issue is answered against the plaintiff in the negative.
17. Issue Nos.1 & 3:- Since all these issues are interconnected they are tried together to avoid repetition of facts. In view of the findings rendered on the above issue it is now proved that as on the date of execution of ExP.1 there was no such legal right existing in favour of P.W.1 so as to claim her share in the schedule property since defendant No.1 was very much alive and he along with defendant Nos.4 & 5 had sold the schedule property to defendant No.6. However it is alleged by P.W.1 that this sale deed executed in favour of defendant No.6 is not binding on her since it included her share which has also been alienated under this sale deed by defendant Nos.1, 4 & 5. It is relevant to note that as already held above while discussing issue No.2, that this sale deed has come into existence in the year 2001 i.e., much prior to coming into force of the Amended Act of 2005.
18. The Proviso to Section 6 of the Amended Act clearly debars a daughter to seek for nullity of such sale transaction or alienation on the ground that it included her share as a coparcener since such alienations are saved by virtue of the said rider. Since the alienation under Ex.P.1 is also of the year 2001, certainly P.W.1 has absolutely no legal right to question the said sale transaction entered into between defendant Nos.1, 4 & 5 and D-6. It is further 13 O.S.No.2425/2016 relevant to note that no objection was raised by anybody much less by the present plaintiff and defendant No.1 to 3 for execution of the said sale deed in the year 2001. Merely because defendant No.6 has not contested the matter by filing written statement or by cross- examining P.W.1, that itself is not a ground to readily accept the case made out by the plaintiff since the Act itself debars her or defendant Nos.2 & 3 from claiming share in the schedule property which has already been alienated in the year 2001.
19. The relief of declaration as sought for by P.W.1 regarding the nullity of Ex.P.1 sale deed is also unsustainable for another reason that such claim is apparently shown to be barred by limitation. As already discussed supra, this sale deed was executed in the year 2001 whereas the present suit has been brought by P.W.1 in the year 2016 ie., after an inordinate delay of more than 15 years. If we peruse the cause of action as shown in para-11 of the plaint it is stated that the cause of action arose for the plaintiff to file the suit when she demanded partition in the schedule property and subsequently during 2010 when she came to know that defendant No.6 has purchased the schedule property. This cause of action shown as regards the declaratory relief with respect to Ex.P.1 cannot be accepted for the reason that nowhere in the entire claim she has alleged that this sale transaction was effected behind her back or by playing fraud or misrepresentation on her. In other words there are no such pleas of fraud or misrepresentation pleaded in the plaint.
20. It is further to be noted that even the present defendant Nos.2 & 3 had filed similar suit for partition in O.S.No.919/2010 which has already been dismissed even according to the case made out by the plaintiff. Under such circumstances it cannot be said that they were totally unaware of the alienation made by 14 O.S.No.2425/2016 defendant Nos.1, 4 & 5 in favour of defendant No.6. Even otherwise it is well established position of law that a sale transaction which is evidenced by a registered instrument is a notice in rem regarding its due execution. In other words, a sale transaction which is effected through a registered document raises presumption regarding its authenticity as it is a public notice with regard to such alienation and therefore it is no longer open either to P.W.1 or to defendant Nos.2 & 3 to still allege that the said sale transaction under Ex.P.1 was effected without their knowledge.
21. No doubt the testimony of P.W.1 in this case has remained uncontroverted since she has not been cross-examined by the defendants but, since the initial burden is on the plaintiff to prove her case independently she cannot rely on the infirmity or weakness crept in the defence of the defendants which is also an equally settled law. Moreover the Hon'ble Supreme Court has also well settled that where the court can decide the matter on the basis of the own materials placed before the court by the plaintiff there is no need of expecting the defendants to enter into the witness box to prove the negative. My view is supported by a decision of the Hon'ble Supreme Court reported in Pandurang v/s Ramchandra in AIR 1981 SC 2235 wherein this aspect has been well settled as under:
Evidence Act(1 of 1872), Section 114-Party failing to appear in court-Drawing an adverse inference-Question as to would arise only when there is no other evidence on record on the point in issue.
22. By applying the principles laid down in the above cited decision to the facts on hand, even in this case it could squarely be held that even though P.W.1 has not been cross-examined by any 15 O.S.No.2425/2016 of the contesting defendants that has not become fatal to their defence since P.W.1 herself is proved to have failed to establish her case both on merits as well as under law. Therefore it cannot be said that the failure of the defendants to cross-examine her would entitle her to seek the suit reliefs. Consequently she cannot be held entitled to claim her alleged 1/6th share by way of partition. Hence both these issues are also answered against her in the negative.
23. Issue No.4:- P.W.1 has also sought for relief of permanent injunction against the defendants alleging that they have been attempting to alienate the schedule property and interfere with it. In view of the findings rendered on all the above issues now it is proved that P.W.1 has lost any kind of rights over the schedule property as on the date of the suit. Moreover it is an undisputed fact that the possession of the schedule property has also been delivered to defendant No.6 about 15 years back under Ex.P.1, because P.W.1 has miserably failed to place before the court any materials to show that even after the said alienation in favour of defendant No.6 the possession of the schedule property continued with her along with defendant No.1 to 5. Therefore when she is proved to be dis-entitled to seek the very comprehensive relief claimed in this case much less the relief of partition, she cannot be granted even the equitable relief of permanent injunction. Therefore viewed from any angle it cannot be said that even this relief could be granted to her and hence this issue is also answered against her in the negative.
24. Issue No.5 :- In the light of the findings rendered on the above issues and in the facts and circumstances of the case, the parties to this suit are directed to bear their own costs. In the result, the court hereby proceeds to pass the following:
16 O.S.No.2425/2016ORDER The suit filed by the plaintiff against the defendants for the relief of declaration, partition and permanent injunction is hereby dismissed.
The claim of defendant No.2 & 3 seeking
partition in the schedule property is also
dismissed.
Parties to bear their own costs.
Draw decree accordingly.
(Part of the judgment is dictated to the J/W and part is typed by me directly on the laptop, carried out corrections, print out taken and then pronounced in the open court on this the 5th day of April, 2022) (SAVITRI SHIVAPUTRA KUJJI) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Smt. Chaya List of documents exhibited for plaintiffs:
Ex.P1 : Certified copy of sale deed Ex.P2 to 4: Encumbrance Certificates Ex.P5 : Khatha Extract Ex.P6 : Khatha certificate.
List of witnesses examined and documents exhibited for defendants:
Nil X Addl. City Civil & Sessions Judge, Bangalore.