Bangalore District Court
Smt.Ramarathnamma @ vs Muniswamy on 7 December, 2019
IN THE COURT OF XLIV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-45)
Dated this the 7th day of December, 2019
PRESENT: Smt.Latha,
XLIV Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.658/2005
Plaintiffs :1. Smt.Ramarathnamma @
Puttamma,
Aged about 50 years,
D/o Muniyappa,
Garudacharpalya,
Mahadevapura, Bangalore.
2. Smt.Savithramma,
Aged 40 years,
D/o Muniyappa,
No.27, 17th Cross,
10th Main, Padarayanapura,
Bangalore - 26.
3. Smt.Parvathi,
D/o Muniyappa,
Aged 34 years,
No.77, II Cross,
Saraswathipura,
Ulsoor, Bangalore.
(By Sri G.M. Adv.,)
Vs
Defendants :1. Muniswamy,
S/o late Muniyappa,
Kaggadasanapura,
C.V.Raman Nagar,
Bangalore -93.
O.S.NO.658/2005
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2. Manjunatha,
S/o late Muniyappa,
Aged about 32 years,
Malleshapalya, BEML
Main Road, Maruthinagar,
Bangalore.
3. Smt.Venkatamma,
D/o late Muniyappa,
Aged about 70 years,
Malleshapalya, Bangalore.
4. Smt.Sharadamma,
D/o late Muniyappa,
Aged about 48 years,
No.170, Subbaramashetty
Road, Nettakallappa Circle,
Bangalore.
5. Smt.Pramila,
D/o late Muniyappa,
Aged about 45 years,
Gangurekaluve Post,
Dibbur Hobli,
Chikkaballapura Taluk.
6. Smt.Anasuya,
Aged about 38 years,
Chikkabanahalli,
Whitefield Road,
Bangalore.
(D1 to D.6 by Sri N.R.N. Adv.,)
7. M.J.Shivashankar Reddy,
Aged about 32 years,
No.220/3, Hanumappa Road,
Thippasandra Post,
Bangalore - 560 75.
(By Sri M.A.S Adv.,)
O.S.NO.658/2005
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8. Damodhar, S/o Siddappa,
Aged about 45 years,
No.52, C.V.Raman Nagar,
Kaggadasapura, III Main,
Bangalore.
(Exparte)
9. Bhomaram Suthar,
Aged about 30 years,
S/o Roop Ram Suthar,
Lakshya Sai Nisarga,
Malleshapalya Main Road,
Maruthinagar, Bangalore -75.
(Exparte)
10. Hemavathi @ Prabhavathi,
W/o Bogegowda,
D/o late Muniyappa,
Aged about 46 years,
R/at Rampura village and
Post Chikkamangalore District.
(By Sri A.L.D. Adv.,)
Date of Institution of the suit: 24.1.2005
Nature of the suit : Partition, declaration,
partition, separate
possession
Date of recording evidence: 13.6.2014
Date of Judgment : 7.12.2019
Total Duration : Day/s Month/s Year/s
14 10 14
J UD GM E N T
This is a suit filed by the plaintiffs against the
defendants for the relief of partition of the suit schedule
properties to declare that the sale deed executed by defendant
No.7 in favour of defendant No.9 is not binding on them, that
O.S.NO.658/2005
4
the Will dated 22.3.2001 and codicil dated 29.4.2002 are not
genuine documents.
2. According to the plaintiffs, defendants 4 and 5 are their
sisters, defendants 1 and 2 are their brothers, defendant No.3
is their mother, defendant No.7 is the power of attorney
holder of Muniyappa, Muniyappa is the father of plaintiffs,
defendant Nos.1 and 2, 4 and 5 and husband of defendant
No.3. Defendant No.8 is the purchaser of item No.1 from
defendant Nos.1 to 3. The defendant No.3 is the purchaser of
undivided share in item Nos.2 and 3 of suit schedule property
from defendant No.7.
The plaintiffs further contended that Muniswamappa is
their grandfather and father of Muniyappa, that
Muniswamappa had 4 sons and owned property in
Sy.No.153/1, of Malleshapalya, Bangalore South Taluk, that
the 4 sons of Muniswamappa got partitioned the said
property into equal portion, that under the said Partition,
plaintiff's father got 7 gutnas of land described in item No.2 of
plaint schedule, that the plaintiffs father purchased 7 guntas
of land in very same survey number from his bother
O.S.NO.658/2005
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Krishnappa, that accordingly Muniyappa, owned 14 guntas in
Sy.No.153/1,
The plaintiffs further contended that Muniyappa was
working in ITI, that he retired from service in the year 1999,
that he was getting very meager salary, that defendant No.3
the mother of plaintiffs brought two cows from her parental
house and started to vend milk, that during 1971-72 she had
14 cows, that the mother of the plaintiffs along with her
daughters were doing the milk vending business, that the
plaintiffs' father and their brothers jointly purchased the
property in Sy.No.110/4 measuring 1 acre at Malleshapalya,
Bangalore South Taluk, that defendant No.3 sold her
jewellery and purchased the said property, that after partition
in the said property, the plaintiff's father acquired 20 guntas
of land in Sy.No.110/4, i.e. item No.1 of plaint schedule, that
plaintiffs father had also purchased 4 sites in Sy.No.93/9,
measuring East to West 80 feet and North to South 68 feet of
Kaggadasapura village, K.R.Puram Hobli, from milk vending
money, that the mother of the plaintiffs from the milk vending
income dug bore-well in the said property, built sheet houses
and 6 shops in the suit schedule property, that the houses
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built by the mother of the plaintiffs rented out to the
tenants, that from the income of milk vending and rent, their
mother further constructed 3 houses and purchased 4 sites
in the Kaggadasapura in 1997, that their father addicted to
alcohol and he was suffering from ulcer, that he was
hospitalized in his last days of life and his sons had not
turned to look after him, that since he was in hospital, there
was no occasion to execute Will in favour of defendant Nos.1
and 2, that after the death of father, the plaintiffs demanded
for partition in the suit schedule property from defendant
Nos.1 and 2, that defendant Nos.1 and 2 evaded to give share
in the suit schedule property and contended that their father
had executed in their favour on 22.3.2001 and codicil on
29.4.2002, that since defendant Nos.1 and 2 evaded for giving
share in the suit schedule property and as the plaintiffs came
to know about the sale of portion of suit schedule property in
favour of defendant No.9, from defendant no.7 who is the
General Power of Attorney of their father, the plaintiffs have
filed this suit for the relief of partition and to declare that the
sale deed executed by defendant No.7 in favour of defendant
No.9 is not binding on them, that the Will dated 22.3.2001
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and codicil dated 29.4.2002 are not genuine documents,
accordingly, the plaintiffs sought for partition in the suit
schedule property.
3. On the other hand, defendant Nos.3, 5, 6 have filed
written statement by admitting the claim of the plaintiffs and
sought for their share in the suit schedule properties.
However, on 20.6.2007 the defendants 1 to 6 have filed
separate written statement by denying the plaint averments
which are traversed against their contention and specifically
contended that the suit is barred by limitation, the court fee
paid is insufficient, that during the life time of their father the
plaintiffs have not claimed for partition of the suit schedule
property, that the suit schedule property are not the joint
family properties, that the 7 th defendant is one of the
purchaser of the property in Sy.No.153/1, which was sold by
the father of the plaintiffs and defendants Nos.1 & 2 long
back, that the said property is not divisible, that the property
sold to defendant No.8 in the year 2003 is in his possession,
that defendant Nos.1 to 6 are not getting any rent form the
said property, that defendant No.9 is a flat owner
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constructed by defendant No.7, that the plaintiffs have not
entitled to any share in the suit schedule property,
4. Defendant No.7 filed separate written statement. He
denied the plaint averments which are traversed against his
contention and he specifically contended that the father of the
plaintiffs by name Muniyappa had entered into Joint
Development Agreement with him on 29.12.2001, that it was
agreed that the entire cost of construction shall be borne by
7th defendant, that in turn Muniyappa will get 35% super
built area, that with that understanding, he constructed an
apartment in the property bearing Sy.No.153/1, of
Vibuthipura Village, that as per the terms of the agreement a
registered General Power of Attorney was also executed by
Muniyappa along with his 2 sons on 30.4.2002 authorizing
him to sell the developers share in the land as well as the
super built area,
Defendant No.7 further contended that in the codicil to
Will dated 29.4.2002 Muniyappa had specifically stated that
he has entered in to Joint Development Agreement in respect
of the land bearing Sy.No.153/1, and 65% of the constructed
O.S.NO.658/2005
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area with undivided share in the said land is bequeathed to
him, that the Will and codicil are binding on the plaintiffs,
that he has invested huge amount to develop the said
property, that the plaintiffs cannot seek for partition in the
said property. Accordingly, defendant No.7 prayed to dismiss
the suit in respect of the said property.
5. Defendant No.10 filed separate written statement by
contending that she is entitled to equal share in the suit
schedule property. Accordingly, she also prayed for partition
in the suit schedule properties.
6. On the basis of the pleadings, the XXXVIII Addl. City
Civil and Sessions Judge, Bangalore had framed the following
issues:
1. Whether the plaintiffs prove that the suit
schedule properties are joint family properties
consisting of themselves and defendant Nos.1
to 6?
2. Whether defendant Nos.1 to 7 prove that by
executing a registered Will dated 21.2.2001 and
a codicil dated 29.4.2002 late Muniyappa had
bequeathed suit schedule properties in favour
of defendant Nos.1, 2 and 7?
3. Whether defendant No.7 prove that as per Joint
Development Agreement dated 29.12.2001
O.S.NO.658/2005
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executed by him and late Sri Muniyappa he is
entitled to 65% of built up area of the buildign
constructed in item Nos.2 and 3 of suit
schedule properties?
4. Whether defendant No.7 proves that late Sri
Muniyappa and defendant Nos.1 and 2 had
executed registered General Power of Attorney
dated 30.12.2002 authorizing him to deal with
65% of built up area of the building
constructed in item Nos.2 and 3 of suit
schedule properties?
5. Whether suit of plaintiffs' is in time?
6. Whether court fee paid by plaintiffs on their
plaint is proper and sufficient?
7. Whether plaintiffs are entitled to the reliefs
sought for?
8. What decree or order?
7. To substantiate their contention, the plaintiff No.2 got
herself examined as PW.1 and examined one more witness as
PW.2 and got 12 documents marked as Ex.P.1 to P.12 and
closed her side of evidence. On the other hand, the defendant
No.1 got himself examined as DW.1 and examined two more
witnesses as DW.2 & 3 and got 39 documents marked as
Ex.D.1 to D.39.
7. Heard the arguments of learned counsel for the plaintiff
and the defendants.
O.S.NO.658/2005
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8. The findings of the Court on the above issues are:
Issue No.1 : In the Affirmative;
Issue No.2 : In the Negative;
Issue No.3 : In the Negative;
Issue No.4 : In the Negative;
Issue No.5 : In the Affirmative;
Issue No.6 : In the Negative;
Issue No.7 : In the Affirmative;
Issue No.8 : As per final order;
for the following:
REASONS
9. Issue No.2, 3, 4:- Since these issues require
common discussion, these issues are taken up together for
discussion
10. It is an undisputed fact that the plaintiffs and defendant
Nos.4, 5 & 10 are the daughters of Muniyappa, defendant
No.1 and 2 are the brothers of the plaintiff, defendant No.3 is
the mother of the plaintiffs. It is also an undisputed fact that
the property comprised in Sy.No. 153/1 of Malleshapalya
village of Bangalore South Taluk had been acquired by
Muniswamappa and his 4 sons got partitioned the said
property and got allotted with 7 guntas each in the said
property, that after the partition, the father of the plaintiffs
and defendant No.1 and 2 got released 7 guntas of land in the
said survey numbers from his brother Krishnappa. It is also
O.S.NO.658/2005
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an admitted fact that Muniyappa was working in ITI and
retried from service in the year 1990, that he was getting a
meager amount of salary,
11. It is the specific contention of the plaintiffs that since
their father was getting meager amount of salary, their
mother defendant NO.3 brought two cows from her parental
house and started the business of milk vending, that in the
year 1971-72 they had 14 cows and all the plaintiffs and their
sisters along with their mother were doing milk vending
business, that the plaintiffs father Muniyappa and his
brother jointly purchased the property in Sy.No.110/4,
measuring 1 acre in Malleshapalya village, Bangalore South
Taluk, that the 4 brothers of Muniyappa got partitioned the
said property and Muniyappa got allotted 10 guntas in the
said property and purchased 10 guntas from his brother
Krishnappa, accordingly Muniyappa owned 20 guntas of the
property comprised in Sy.No.110/4 of Malleshapalya village,
i.e. item No.1 of plaint schedule, that out of the earnings of
milk vending the father of plaintiff purchased 4 sites formed
in Sy.No.93/9, measuring East to West 80 feet and North to
O.S.NO.658/2005
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South 68 feet and another site measuring 10'x50' abutting to
the said 4 sites at Kaggadasapura village, that the mother of
the plaintiff got constructed 3 sheet ACC houses and 1 RCC
Roofed house consisting of ground and first floor in the year
1984, in the said 4 sites, that in the year 1990 the 3 rd
defendant sold all the cows as she could not maintain cows,
as her daughters had got married, that their father
Muniyappa was addicted to alcohol, that he was suffering
from acute ulcer and he was taking treatment in Amarjyothi
nursing home in the year 1990, that on 13.2.2003 the said
Muniyappa passed away, therefore, is the contention of the
plaintiff they have equal share in the suit schedule property.
12. On the other hand, defendant Nos.1, 2 and 7 in their
written statement by specifically denying the averments
which are traversed against their contention and specifically
contended that during the life time of Muniyappa he had
executed a Will in their favour by bequeathing all the
properties in their favour. Defendant No.7, in his written
statement, has taken the specific contention that the
deceased Muniyappa had also executed a Codicil dated
O.S.NO.658/2005
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29.4.2002 by bequeathing 65% of constructed area in
Sy.No.153/1 in his favour, apart from executing Joint
Development Agreement dated 29.12.2001, empowering him
to put up construction and by retaining 35% of super built
area for himself and permitted defendant No.7 to sell 65%
super built area on his own by execution General Power of
Attorney dated 30.4.2002.
13. The defendants have produced Ex.D.2 Partition Deed
dated 22.7.1972, wherein the brother of Muniyappa got
partitioned their father's property in Sy.No. 153/1 measuring
1.10 acres. In that partition the father of plaintiffs
Muniyappa acquired 7 guntas of land and under the Release
Deed dated 6.10.2000 the said Muniyappa got released 7
guntas of land of his brother Krishnappa. Totally Muniyappa
acquired right, title and interest over the 14 guntas of land in
Sy.No.153/1. For the property got through Release Deed
from Krishnappa, Muniyappa had become the absolute
owner and it has become the self acquired property of
Muniyappa. Except 7 guntas of land got allotted in the
Partition Deed dated 28.7.1972 all other suit schedule
O.S.NO.658/2005
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properties are evidently the self acquired property of
Muniyppa. In this suit defendant Nos.1, 2 and 7 have set up
Will dated 22.3.2001 and codicil dated 29.4.2002. The
plaintiffs have produced the certified copy of the Will which is
marked at Ex.P.10. The certified copy of the codicil is got
marked by PW.1 as Ex.P.11. Since the plaintiffs sought for
the relief that the Will and Codicil are not genuine
documents, the plaintiffs have produced those two
documents and have also got examined a witness as PW.2 to
depose that he was not the attesting witness of Ex.P.10 Will.
14. PW.2 Krishnappa is none other than the brother of
Muniyappa. In his cross-examination he categorically denied
the execution of the Will and he has not admitted his
signature on the Will. The evidence of PW.2 is fully
supporting the contention of the plaintiffs.
15. Defendant No.1 got examined himself as DW.1. In the
examination-in-chief he has reiterated the averments of
written statement filed by him and deposed about the
execution of the Will dated 22.3.2001. However, the
defendant Nos.1 & 7 while setting up a Will said to be
O.S.NO.658/2005
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executed by his father, the defendant has not produced the
original Will. It appears the defendant No.1 intended to get
mark a Will, but as seen from the unmarked Will, it is only
draft of the Will. Therefore the said draft of the Will has been
not marked by this Court. The defendants have set up
registered Will. But original registered Will is not produced
before the court and absolutely there is no explanation by the
propounders of the Will, what has happened to the original
registered Will. Though defendant No.7 got examined as
DW.2, he has also not produced the Will. On the other hand,
he produced the codicil to the Will dated 22.3.2001 alone.
Which is at Ex.D.7. The codicil is dated 29.4.2002. As seen
from the codicil there is recitals in the said codicil regrading
the execution of the Joint Development Agreement dated
29.4.2002 and the defendant No.7 has also produced General
Power of Attorney said to be executed by late Muniyappa
dated 30.2.2002 which is at Ex.D.39. No doubt codicil is
before the court at Ex.D.7. When there is no Will, the codicil
to the Will cannot be looked into. Since the defendants failed
to produce original Will and since they failed to explain what
has happened to the original registered Will, the court cannot
O.S.NO.658/2005
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looked into the codicil to the said Will. The defendants 1, 2 &
7 ought to have examined the attesting witness to the Will
and the codicil. But they failed to examine the attesting the
witnesses who are supporting their case and deposing about
the attestation to the Will and codicil. As seen from Ex.D.7
codicil two witnesses have signed as attesting witnesses
namely K.G.Prakash Reddy and Farooq. The defendant No.7
who is claiming right over item No.2 and 3 of the suit
schedule property ought to have established the due
execution of codicil to the Will by examining the attesting
witnesses. But he has also failed to examine the attesting
witnesses. Further, he has not explained why he has not
examined the attesting witnesses when law mandates it.
16. The learned counsel for the plaintiffs vehemently argued
on this aspect and in support of his arguments learned
counsel relied on the decision reported in ILR 2008 Kar page
2115, in the case of Sri J.T. Surappa and Another vs Sri
Satchidhanandendra Saraswathi Swamiji public Charitable
Trust and others, wherein the Hon'ble High Court held that:
A) INDIAN SUCCESSION ACT, 1925-SECTION2(b)-
Will proof of Legal requirements Duty of the Court
O.S.NO.658/2005
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Five steps to be considered -HELD, Under the Act,
the will to be valid, should be reduced into
writing, signed by the testator and shall be
attested by two or more witnesses and at least
one attesting witnesses shall be examined. If
these legal requirements are not found, in the eye
of law there is no will at all. Therefore, the first
step is that if the documents produced before the
Court prima facie do not satisfy these legal
requirements, the court need not make any
further inquiry, in so far as its due execution is
concerned and can negative a claim based on the
said documents.
In the said decision it is further held that
The second step is that when the legal heirs are
disinherited, the Court has to scrutinize the
evidence with greater degree of care than usual-
The third step would be to find out whether the
testator was in a sound state of mind at the
terms of executing the Will-The fourth step would
be to find out whether there exists any
suspicious circumstances surrounding the
execution of the Will-The fifth step is to consider
whether the Will that is executing is in
accordance with Section 63 of the Act read with
Section 68 of the Evidence Act.
The learned counsel for the plaintiffs has also relied on
the decision reported in 2018 (1) Kar L.R. 649, in the case of
Kallawwa Virupaxappa Banakar, since deceased by her Lrs Vs
Bhagawwa since deceased by her Lrs, wherein it is held as
under:-
Evidence Act, 1872 Section 68 and 69 In
regard to proving a will. The law is well settled
O.S.NO.658/2005
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and there have been numerous decisions on that
point. Will is generally a subject matter of
dispute, as it comes into force only after the
death of the testator, and probably for this
reason, the strict requirement of law is to
examine atleast one attesting witness according
to section 68 of the Evidence Act. The burden of
proof is on the propounder of the will. It is very
much necessary that the will must be proved by
examining an attesting witness and if none of the
attestors is available, section 69 of the Evidence
Act prescribes a procedure to be followed.
Drawing of presumption under section 90 of the
Evidence Act must be last resort if execution of
the will can be proved neither under sections 68
nor 69 if the Evidence Act. The propounder,
having found it impossible to prove the execution
of the will by following the procedure as as
provided under section 69 of the Evidence Act,
can also rely upon the certificate of section 69 of
th Evidence Act. Can also 60 of the Registration
Act, if the will is registered. The registered of the
will does not create any presumption of its
genuineness nor the Register's signature an the
document can be treated on per with that the
attester's signature Appeal is dismissed.
17. When legal requirements to prove the Will and codicil
are not fulfilled, definitely the Will and codicil cannot be
accepted by this court. Further the learned counsel during
the course of arguments has enlightened about principles laid
down in AIR 1999 S.C. page 1441 (a) 114 Evidence Act.
"Where a party to the suit does not appear into
the witness box and states his own case on oath
and does not offer himself to be cross examined
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by the other side, a presumption would arise that
the case set up by him is not correct. In the
instant case defendant No.1 alleged that the sale
deed, executed by defendant No.2 in favour of
the Plaintiff, was factitious and the whole
transaction was a bogus transaction as only
Rs.500/- were paid as sale consideration to
defendant No.2. But this plea was not supported
by defendant No.1 as he did not enter into the
witness box. He did not state the facts pleaded in
the written statement on oath in the trial Court
and avoided the witness box so that he may not
be cross examined. This, by itself, is enough to
reject the claim that the transaction of sale
between defendant No.2 and the Plaintiff was a
bogus transaction".
18. As held in the said decisions since the attesting
witnesses have not been examined on behalf of the
defendants definitely it cannot be considered that the Will
and codicil are proved. Therefore, they are not legally
acceptable documents. The court has to ignore those
documents and proceed with passing of judgment on the
available other materials on record.
19. As this court has already observed herein above in item
No.2 and 3, one of the property is the ancestral property of
the plaintiffs. In the family partition dated 28.7.1972 the
father of the plaintiffs acquired 7 guntas of land and if the
O.S.NO.658/2005
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said property is partitioned the said Muniyappa had
undivided share in the said property. In respect of other
properties are concerned those self acquired properties of
Muniyappa, the plaintiffs, defendant Nos.3 to 6 & D.10 are
entitled to equal share in 1/3rd share of Muniyappa and 2/3
share in 7 guntas of property shall devolve on defendant
Nos.1 and 2, in respect of all other properties the plaintiffs
and defendants 3 to 6 are entitled to equal share as
defendant Nos.1 and 2 are entitled.
20. In this suit the defendant No.7 has taken the specific
defence that he has entered into Joint Development
Agreement with the deceased Muniyappa on 29.12.2001,
that deceased Muniyappa had also executed General Power of
Attorney in his favour which is at Ex.D.39. While marking
the said agreement dated 29.12.2001 the learned counsel for
the plaintiffs objected and specifically contended that since
the said document is unregistered agreement that cannot be
marked, even though the defendant No.7 paid stamp duty
and penalty on the said document. In support of the
arguments of the learned counsel for the plaintiffs he has also
O.S.NO.658/2005
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relied on the decision reported in SLP 15619/2017, in the
case of Commissioner Income Tax Vs Balbir Singh Maini,
wherein an agreement of sale had to be marked and in the
said decision it is observed by the Hon'ble Apex Court that
the position of marking the agreement of sale has been
changed in view of Registration, that the amendments were
made simultaneously to Section 53-A of Transfer of Property
Act and Sections 17 and 49 of the Indian Registration Act, that
for the aforesaid amendment the words 'the contract, though
required to be registered' has not been registered or' in Section
53-A of 1882 of Transfer of Property Act have been omitted,
that simultaneously Sections 17 and 49 of the Registration Act
have been amended, clarifying that unless the document
containing the contract to transfer for consideration any
immovable property (for the purpose of Section 53-A of 1882
Act) is registered, it shall not have any effect in law, other than
being received as evidence of a contract in a suit for specific
performance or as evidence of any collateral transaction not
required to be effected by registered instrument". In view of
the principles laid down in the said decision, the Joint
Development agreement being for transfer of property for
O.S.NO.658/2005
23
consideration amount and since it was not registered as
contemplated under law, the said document has not been
marked. If at all the said document had produced for
collateral purpose, then it would have been marked. But here
the defendant No.7 is clamming right over item No.2 and 3 of
plaint schedule property under the said Joint Development
Agreement. Since the said document has not been marked,
the defendant No.7 cannot rely on the said document and
base his claim under the said document.
21. Further, defendant No.7 has also produced codicil
which is at Ex.D.7. As this court has already observed above,
since the original Will dated 22.3.2001 has not been got
marked and established by the parties by examining the
attesting witness and as per the procedure recognized under
law this codicil cannot be considered as a document.
Therefore, it is the considered view of this court that on the
basis of this codicil, the defendant No.7 cannot claim his right
over item No.2 And 3 of plaint schedule property.
22. Defendant No.7 has also relied on General Power of
Attorney executed by the deceased Muniyappa dated
O.S.NO.658/2005
24
30.4.2002. The said document is at Ex.D.39. Defendant No.7
has also contended that on the basis of the General Power of
Attorney executed by Muniyappa he had executed sale deed
in favour of defendant No.8 and 9. But those sale deeds are
not before the court and the dates of sale deeds are also not
mentioned in the pleadings of defendant No.7. To consider
whether the sale deeds executed in favour of defendant Nos.8
and 9 are genuine documents are not the date of execution of
sale deed is very much necessary. If at all the said sale
transaction taken place prior to the death of Muniyappa,
then defendant Nos.8 and 9 will acquire right, title and
interest over the said property. Since the defendant No.7 is
claiming his right in 65% of super built area in item No.2 and
3 of plaint schedule property and since there is no recognition
on the Joint Development Agreement and codicil under law,
on the basis of General Power of Attorney Ex.D.39 the
defendant No.7 cannot act upon, for the simple reason that
on the date of death of Muniyappa, the said General Power of
Attorney also lost its importance and it is deemed to be
canceled. In view of all these reasons, it is the considered
view of this court that if at all defendant No.7 intending to
O.S.NO.658/2005
25
get right over the 65% of super built area as agreed with late
Muniyappa he has to get proper documents from the Lrs of
deceased Muniyappa. Unless and until the LRS of
Muniyappa had executed proper documents in favour of
defendant No.7, he cannot get any marketable title over the
said property and he will not have any right to sell the 26
apartments to any third party. Accordingly, issue Nos.2, 3
and 4 are answered in the Negative.
23. Issue No.5:- Since this is a suit for partition, the
plaintiffs ought to have brought the suit within 12 years from
the date of death of Muniyappa. The suit within 12 years and
the plaintiffs have brought this suit within the prescribed
period of limitation. Hence, issue No.5 is answered in the
Affirmative.
24. Issue NO.6:- Since the prayer of partition is a
comprehensive prayer it is sufficient to pay court fee under
Section 35(2) of Karnataka Court Fees and Suits Valuation
Act. The plaintiffs ought to have paid court fee of Rs.600/-
under the said provision Therefore the court fee paid is
O.S.NO.658/2005
26
sufficient. Accordingly, issue No.6 is answered in the
Affiarmative.
25. Issue Nos.1 and 7:- In view of the discussion on issue
Nos.2, 4 and 6, it is clear that the suit schedule properties are
still remained as joint family properties of plaintiff Nos.1 to 6
defendant No.10. Therefore, the plaintiff and defendants 1 to
6 and 7 equally entitled to share in the suit schedule
properties, except item No.2 of plaint schedule property.
Defendant No.7 shall take appropriate steps before
appropriate forum to get his right over item Nos.2 and 3 of
plaint schedule property. The plaintiffs are entitled to
1/10th share each of the plaintiffs and defendant 3 to 6 and
10 are entitled to 1/10th share in item No.1, 3 to 5
properties. Likewise, the plaintiffs, defendant Nos.3 to 6 and
10 are entitled to 1/30th share each in item No.2 of suit
schedule property and defendant Nos.1 and 2 are entitled
11/30th share each in item No.2 of plaint schedule property.
Accordingly the suit of the plaintiff has to be decreed in part
with costs. Hence, issue Nos.1 and 7 are answered in the
Affirmative.
O.S.NO.658/2005
27
24. Issue No.8: In view of the discussions made above and
findings given on Issue Nos.1 to 8, this Court proceed to pass
the following:
ORDER
The suit filed by the plaintiffs is hereby decreed in part with costs.
The plaintiffs and defendant Nos.1 to 6 and 10 are entitled to 1/10th each share in item No.1, 3 to 5 of plaint schedule properties and plaintiffs, defendant Nos.3 to 6 and 10 are entitled to 1/30th share each in item No.2 of suit schedule property and defendant Nos.1 and 2 are entitled 11/30 th share each in item No.2 of plaint schedule property after holding that the sale deed executed in favour of defendant Nos.8 and 9 by defendant No.7 is not binding to the extent of share of plaintiffs, defendant Nos.3 to 6 and 10.
The parties mentioned herein above are entitled to be allotted their separate share and have possession over the respective properties.
Draw preliminary decree accordingly.
(Dictated to the Judgment Writer directly on computer, corrected and then pronounced in the open court on this the 7th day of December, 2019).
(Latha) XLIV Addl. City Civil & Sessions Judge, Bengaluru.
O.S.NO.658/2005 28 A N N E X U R E List of witnesses examined for Plaintiff:
P.W.1 Smt.Savithramma PW.2 Krishnappa
List of witnesses examined for Defendant:
D.W.1 Muniswamy
List of documents marked for the Plaintiff :
Ex.P.1 Certified copy of the Release Deed
Ex.P.2 Certified copy of sale deed dated
21.6.2004
Ex.P.3 Death certificate of P.W.1's father
Ex.P.4 Certified copy of sale deed dated
8.5.1972
Ex.P.5 Certified copy of Partition Deed dated
28.7.1972
Ex.P.6 & P.7 Two assessment lists
Ex.P.8 X-Ray
Ex.P.9 Discharge summary pertaining to
P.W.1's father
Ex.P.10 Certified copy of Will
Ex.P.11 Codicil
Ex.P.12 Discharge summary
List of documents marked for the Defendant :
Ex.D.1 Partition Deed dated 28.7.1972 Ex.D.2 & D.3 Sale deeds Ex.D.4 & D.5 Release Deed Ex.D.6 Reciept Ex.D.7 Codicil Ex.D.8 Endorsement issued by Tahsildar Ex.D.9 to D.23 Pahani Ex.D.24 Transfer certificate of Prabhavathi Ex.D.25 Photos Ex.D.26 2 photos Ex.D.27 Photo O.S.NO.658/2005 29 Ex.D.28 C.D Ex.D.29 Spl. Notice issued bu BBMP Ex.D.30 Receipt for payment of tax Ex.D.31 Certificate dated 30.3.2002 Ex.D.32 Receipt for payment of tax Ex.D.33 Extract of property tax demand register Ex.D.34 Certified copy of encumbrance certificate Ex.D.35 to D.38 4 receipts Ex.D.39 GPA dated 30.4.2002 XLIV Addl. City Civil & Sessions Judge, Bengaluru.