Bangalore District Court
Smt. Munirathna vs Smt. Narayanamma on 28 September, 2020
43 TITLE SHEET FOR JUDGEMENTS IN SUITS
Government of
Karnataka
Form No.9 IN THE COURT OF XXXI ADDL.CITY CIVIL COURT AT
[Civil] Title Sheet
for Judgement BENGALURU (CCH-14)
in Suits
Present: Sri. C.D. KAROSHI, B.A., LL.M.
V ADDL.CITY CIVIL & SESSIONS JUDGE (CCH-13)
C/c XXXI ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 28th day of September, 2020.
O.S.8300/2010
Plaintiffs: 1. Smt. Munirathna,
W/o. Sri. Suresh Babu,
Aged about 30 years,
R/at Palupali Dinne,
Toobagere Hobli, Doddaballapura
Taluk, Bengaluru Rural.
2. Smt. M.Mamatha,
W/o. Sri.Gangadhara N,
Aged about 24 years,
R/at No.M/21, 1st Cross,
Neharu Road, Yadava Layout,
Aravindanagar,
Bengaluru-560 084.
(Sri.L.Mallikarjuna, Adv.)
- VS -
Defendants: 1. Smt. Narayanamma,
W/o. Late Sri. Munikrishna,
Aged about 50 years.
2. Sri.Muniraju,
S/o. Late Sri. Munikrishna,
Aged about 24 years.
2 O.S.No.8300/2010
3. Sri.Nagaraja,
S/o. Late Sri.Munikrishna,
Aged about 19 years.
All are r/at No.141, Erappa Building,
Ganapathinagar, Rajagopalanagar Main
Road, Laggere, Bengaluru-560 058.
4. Smt.Nirmala,
W/o. Sri.Venugopal,
Aged about 28 years.
5. Smt. Narasamma,
W/o. Chandrashekar,
Aged about 26 years.
D4 and D5 are r/at
C/o. Venkateshappa,
Nallimaradahalli, Muniyappa
Bypass Road, Andiganala Post,
Shidlagatta, Chikkaballapura Dist.
6. Smt.Basanthi,
W/o. Sri.Basanth,
Major,
Erappa Compound, Ganapathinagara,
R.G.Nagar Main Road,
Laggere, Bengaluru-58.
7. Smt.M.K.Padma,
W/o. Sri. H.Hanumaiah,
No.149/17, V.K.Ramaiah Block,
3rd Main Road, Nandini Layout,
Bengaluru-96.
8. Sri.Mehaboob Pasha,
S/o. Sri.Mastan Pasha,
No.6, Erappa Compound,
Ganapathinagara, Laggere,
Bengaluru-58.
3 O.S.No.8300/2010
9. Sri.Sampat,
S/o. Not Known
R/at Erappa Compound,
Ganapathinagara, Bengaluru-58.
10. Sri.Siddappa,
S/o. Not known
R/at Erappa Compound,
Ganapathinagara, Laggere,
Bengaluru-58.
(Sri.Vasant H. Vaidya, Adv. for D1 to D3
Sri.Alla Bakesh, Adv. for D6, D8, D10.
D4, D5 ,D7 and D9 - Exparte)
Date of institution of the :
30.11.2010.
Suit
Nature of the Suit : Partition Suit.
Date of commencement
: 05.11.2016.
of recording of evidence
Date on which the
Judgment was : 28.09.2020
pronounced
Year Months Days
Total Duration :
09 09 28
(C.D. KAROSHI)
V ADDL.CITY CIVIL & SESSIONS JUDGE
C/c XXXI ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
4 O.S.No.8300/2010
JUDGEMENT
This is a suit filed by the plaintiffs against the defendants for the relief of partition and separate possession of their legal share in the suit schedule properties along with mesne profits and cost of the suit.
2. The brief facts are as under :
That, the plaintiffs are the daughters of Sri.Munikrishna and 1st defendant. The defendant Nos.2 to 5 are the brothers and sisters of the plaintiffs. The plaintiffs and the defendants constituted HUF and governed by Hindu Mithakshara School of Law. Further it is averred that, the land bearing Sy.No.14/2 measuring 4 guntas, Sy.No.141/3 measuring 7 guntas and Sy.No.141/4 measuring 18.1/2 guntas of Laggere, Yeshwanthapura Hobli, Bengaluru, are the schedule properties acquired by the father of the plaintiffs through oral partition entered into between the plaintiffs' father and his brother on 08.01.1990, wherein the suit schedule properties are fallen to the share of the plaintiffs' father. Thereafter, as per the oral partition, the name of the plaintiffs' father came to be entered into the revenue records. During the lifetime of the father of the plaintiffs, the plaintiffs and the defendants were in joint possession and enjoyment of the suit schedule properties, thereafter being the Kartha was managing the joint family along with suit schedule properties, but he died leaving behind the plaintiffs and the defendants to succeed his estate. Subsequent to the death of their father, the 1st defendant with the assistance of the defendant Nos.2 and 3 has been managing the joint family along with 5 O.S.No.8300/2010 schedule properties and they are in joint possession and enjoyment of the same, as such, there is no division of the property, but the 1st defendant has not been looking after the welfare of the plaintiffs and acting detrimental to their interest, accordingly the plaintiffs requested the defendants to effect the partition and separate possession in respect of the suit schedule properties by conveying panchayath in the 1st week of November-
2010, but again the defendants are postponing the same. The plaintiffs got issued the legal notice, but did not consider the demand of the plaintiffs. The suit schedule properties are the ancestral and joint family properties, the plaintiffs have got 1/6th share over the schedule properties and the defendants cannot refuse the plaintiffs' share. Cause of action arose to file the suit in the month of November-2010 when the plaintiffs demanded for partition and separate possession and subsequently. The plaintiffs have valued the suit as per valuation slip. On these grounds prayed for decreeing the suit.
3. Records reveal that, the defendant Nos.1 to 3 appeared through their counsel filed the written statement contending that, the suit of the plaintiffs is false, frivolous and has no merits and liable to be dismissed with compensatory costs. The plaintiffs have filed the suit against the defendants with malafide intention to harass them only. The averments made in the plaint are denied as false except those are admitted as true and plaintiffs be put to strict proof of the same. The averments made in para 2 and 3 of the plaintiff are true and correct. The plaintiffs be put to strict proof of the averments made in para Nos.4 to 8 of the plaint. The defendants Nos.1 to 3 contend that, 6 O.S.No.8300/2010 the husband of the 1st defendant i.e., Sri.Munikrishnappa had 4 daughters and 2 sons, during his lifetime he got the suit schedule properties through a partition deed with his father and thereafter the plaintiff was put into physical possession and enjoyment of the same. Further contended that, said Sri.Munikrishnappa in order to perform marriage of his four daughters including the plaintiffs sold portion of the property in Sy.No.141/4 to an extent of 10.5 guntas and retained remaining portion of 8 guntas. Further said Sri.Munikrishnappa during his lifetime executed a Will by bequeathing aforesaid 8 guntas of land in favour of his 2 sons i.e., defendant Nos. 2 and 3 and died in the year 2006, as such the defendant Nos.2 and 3 became the absolute owners of the suit schedule properties by virtue of the Will. The suit schedule properties shown at item Nos.2 to 3 are the self-acquired properties of Late Sri.Erappa, who is none other than the father of Sri.Munikrishnappa and grand father of the plaintiffs and the defendant Nos.2 to 5. During the life time of said Sri.Erappa, at the time of partition of his self-acquired properties with his sons had also partitioned the said properties with his 3 sons by virtue of partition, as such, Sri.Munikrishnappa became the absolute owner in possession of the suit schedule properties. The plaintiffs have filed the present suit seeking partition in 3 schedule properties, which are self-acquired properties of Late Sri.Munikrishnappa, as such the plaintiffs cannot claim partition in the said properties. On these grounds prayed for dismissal of the suit.
4. The defendant Nos.6, 8 and 10 also appeared through their counsel and filed their written statement contending that, suit of the of plaintiffs for the relief of partition and separate 7 O.S.No.8300/2010 possession of their legitimate share in the suit schedule properties is not at all maintainable either in law or on facts and liable to be rejected. The suit of the plaintiffs is frivolous, vexatious, tainted with malafide objects and illegal motives with an intention to grab the land and thereby abusing and misusing the due process of las to achieve their illegal objects. The plaintiffs have not come to the Court with clean hands. The suit of the plaintiffs is a collusive one with the defendant Nos.1 to 5, whereas defendant Nos.6, 8 and 10 are the purchasers of the sites, as such, the plaintiffs and the defendant Nos.1 to 5 are intention to target the purchasers in order to cause harassment and inconvenience deliberately for extraneous reasons. Further contended that, there were other joint family properties succeeded by common ancestor Late Sri.Munikrishna and all those properties are not made subject matter of the suit, as such the present suit is not maintainable. There is no joint family, the same has already severed long ago through a Panchayath Parikath and the same is within the knowledge of the plaintiffs and also acted upon the same. The plaintiffs have not questioned the legality or correctness of the said Panchayath Parikath in the above proceedings. The plaintiffs are not in the possession of the suit schedule properties as on the date of filing the suit and schedule properties have been sold to defendant Nos.6, 8 and 10 and other persons. The averments regarding relationship mentioned in para No.2 of the plaint are no doubt true, but the plaintiffs have not given complete picture of the family of deceased Sri.Munikrishna along with total properties, as such the allegations regarding existence of HUF are denied as false. Further as averred in the plaint para No.3 no such property is in existence and already sites have been formed by the father 8 O.S.No.8300/2010 of the plaintiffs long ago and also sold to various persons to perform the marriage of the plaintiffs. Further contended that the plaintiffs' grand father is alive, himself and the father of the plaintiffs have sold the property and there is no oral partition between the grand father of the plaintiffs and father of the plaintiffs as alleged in the plaint. The alleged partition document is false and created one. The allegations made in para 4 of the plaint that, subsequent to the oral partition, his name came to be entered in the revenue records during the lifetime of their father and their father, the plaintiffs and the defendants are in joint possession of the same is false and denied. Further the grand father of the plaintiffs is alive, as such the father of the plaintiffs cannot become the Kartha of the joint family, died leaving behind the plaintiffs and the defendants to succeed his estate is false and vexatious claim of the plaintiffs. The allegations made in para 5 of the plaint that, the plaintiffs and the defendants have been in joint possession and enjoyment of the suit schedule properties and there is no division is utterly false and denied. The suit schedule properties were formed into sites and sold to various persons, the defendants have also put up buildings on their sites along with other 24 to 25 sites in the said developed area, as such the plaintiffs and the defendant Nos.1 to 5 are not in possession of the schedule properties. The averments made in para 6 of the plaint that, the plaintiffs requested for mesne profit and to effect partition of the schedule properties and the defendants postponing the same are all denied as false. The properties are not available for partition. The averments that the suit schedule properties are the ancestral joint family properties and the plaintiffs have got share over the schedule properties are all false and denied. No cause 9 O.S.No.8300/2010 of action arose to file the suit and the same is created and concocted by the plaintiffs for the purpose of filing this suit. The valuation made and the Court fee paid by the plaintiff is insufficient. On these grounds, prayed for dismissal of the suit with exemplary costs.
5. Records reveal that, despite service of suit summons the defendant Nos.4, 5, 7 and 9 remained exparte.
6. Based on the above narrated pleadings, my learned predecessor in office has framed the following issues:
1. Whether the plaintiffs prove that the suit schedule properties are joint family properties and they have got 1/6th share each in the said properties ?
2. Whether the plaintiffs prove that grand father of the plaintiff and defendant No.2 to 5 viz., Erappa effected the partition amongst his three sons and by virtue of the said partition Sri.Munikrishnappa has become the absolute owner of the Suit Schedule Property ?
3. Whether the plaintiffs are entitle for the decree as prayed for ?
4. What order or decree ?
7. In order to prove their case, the 1st plaintiff examined herself as PW.1 and got marked the documents at Ex.P.1 to Ex.P.11. The plaintiff also examined a witness as PW.2. On the other hand, the defendant No.8 examined himself as DW.1 and got marked the documents at Ex.D.1 to Ex.D.33. The GPA holder of defendant No.6 examined as DW.2 and got marked documents at Ex.D.34 to 83. The GPA holder of defendant No.10 examined as DW.3 and got marked the documents at Ex.D.84 to 113.
10 O.S.No.8300/20108. Heard and perused the written arguments filed by the counsel for the plaintiffs, defendant Nos.6, 8 and 10 along with material on record. The counsel for defendant Nos.1 to 3 did not turn up even after issuing Court notice to defendant Nos.1 to 3 as per SOP of our Hon'ble High Court, accordingly taken as nil.
9. My findings on the above issues are as under.
ISSUE NO.1 : Partly in the affirmative
ISSUE NO.2 : Partly in the affirmative
ISSUE NO.3 : Partly In the affirmative
ISSUE NO.4 : As per final orders
for the following:
REASONS
10. ISSUE NO.1 AND 2 :- I take these issues together for my discussion as the facts overlap and for the sake of convenience.
11. It is worth to note that, the plaintiffs have filed the above numbered suit for the relief of partition of their legal share in the suit schedule properties along with mesne profits. Records reveal that, the defendant Nos.1 to 3 appeared through their counsel and filed the written statement by admitting relationship along with oral partition and denying claim of the plaintiffs in the schedule properties. It is evident that, as per order on I.A.No.3 filed under Order 1 Rule 10 of CPC by the counsel for the defendant No.1, the defendants Nos.6 to 10 have been impleaded in the present suit. In response to the suit summons, the 11 O.S.No.8300/2010 defendant Nos.6, 8 and 10 appeared through their counsel and filed their written statement by denying claim of the plaintiffs. Defendant Nos.4, 5, 7 and 9 remained exparte.
12. It is also evident from the perusal of the order sheet dated 18.12.2010 that, as per the orders on memo filed by the counsel for the plaintiffs dated 18.12.2010 suit item No.1 pertains to land bearing Sy.No.141/2 measuring 4 guntas of Laggere Village came to be deleted from the prayer column of the plaint. So now the plaintiffs have to establish their case in respect of the suit schedule item Nos.2 and 3 only as shown in the amended plaint. In this regard, in order to prove their case, the 1st plaintiff has filed affidavit in lieu of her oral evidence, examined herself as PW.1 stating that, suit schedule properties have been fallen to the share of their father as per oral partition dated 08.01.1990 entered into between their father and his brother in the presence of grandfather. Further states that, subsequent to the oral partition, the plaintiff's father got mutated his name in the revenue records and continued to be in joint possession and enjoyment of the schedule properties along with the plaintiffs and also managing the joint family as well as schedule properties. Further after the death of their father, the 1st defendant with the assistance of defendant Nos.2 and 3 has been managing the joint family properties, but she is not looking after the welfare of the plaintiffs and acting detrimental to their interest, accordingly when they requested to effect partition orally and by issuing legal notice, the defendant No.1 did not turn up. In order to support her oral testimony PW.1 got marked documents at Ex.P.1 to Ex.P.11.
12 O.S.No.8300/201013. During the course of cross-examination of PW.1 by the learned counsel for the defendant Nos.6, 8 and 10, she has categorically admitted the fact that, her marriage was performed on 22.03.2002 and prior to her marriage she was residing in Sy.No.141/4 along with her mother and brothers, she has not seen how many houses are being leased out and after the death of her father, she has not visited the house of her mother and her father died on 28.08.2006. Further when a suggestion was put to the witness that, during the lifetime of her father, constructed two big industrial sheds and seven shops in Sy.No.141/4, she denied as false, again admits that, her father/grandfather acquired Sy.Nos.141/2, 141/3 and 141/4, which were granted by the Government. Further admits that, after the death of her father only, her grandfather died about 3-4 years back. PW.1 states that, there was partition between her father and uncles on 08.01.1990, in her further cross-examination dated 17.06.2017 though states about properties fallen to her father, but pleads ignorance stating that, she does not know when they effected partition and also volunteers that, she has not sought any share from the defendant Nos.6, 8 and 10. Further though she admits construction of eight shops in the land bearing Sy.No.141/4, she pleads ignorance to the effect that, the sites formed in the suit schedule property were being alienated about 15 to 20 years ago and now the schedule properties comes under BBMP, but denied the suggestion that the land bearing Sy.No.141/4 is the self-acquired property of her father and in order to harass the purchasers only they filed false suit and deposing falsely.
13 O.S.No.8300/201014. So also the plaintiffs have examined a witness by name Sri.Lakshminarayana Reddy as PW.2, he has stated in the affidavit evidence that, suit schedule properties are the ancestral and joint family properties of plaintiff and defendant Nos.1 to 5 and there is no division in the schedule properties, but the defendant Nos.1 to 5 have not turned up, accordingly when the plaintiffs summoned a Panchayath on 04.11.2010 he was present, but in his cross-examination he has categorically pleaded ignorance about marriage of Munirathna, survey numbers of the properties in dispute, nature of acquisition and alienation made by Munikrishnappa and names of the people who said to have participated and present at the time of aforesaid Panchayath called by the plaintiffs.
15. In order to substantiate their case, defendant No.8 filed affidavit in lieu of oral evidence, examined himself as DW.1 stating that, he has purchased the property bearing site No.6, Katha No.977 formed in Sy.No.141/4 measuring 30 x 40 feet of Laggere Village for a valuable sale consideration from Smt.Rathnamma owner of the property on 13.08.2003 and thereafter put up building and said Sri.Munikrishnappa has formed sites in the said property and sold to various persons, as such he is the bonafide purchaser for value in possession of the said property from the date of purchase, but the plaintiffs have filed the false suit by suppressing material facts before this Court. In order to support his oral testimony, DW.1 got marked documents at Ex.D.1 to Ex.D.33.
14 O.S.No.8300/201016. Similarly, the GPA holders of defendant No.8 and 10 filed affidavits in lieu of their oral evidence by reproducing entire contentions taken in the written statements, examined themselves as DWs.2 and 3, got marked the documents at Ex.D.34 to Ex.D.83 and Ex.D.84 to Ex.D.113 in corroboration with evidence of DW.1.
17. During the course of cross-examination of DW.1 to 3 by the counsel for the plaintiffs, though they plead ignorance to the effect that whether Rathnamma had enquired late Munikrishnappa about his LRs or not and who were present at the time of family partition, but they denied the suggestion that in order to cheat the LRs of Munikrishnappa they purchased the schedule property without taking signature of the LRs of Munikrishnappa. Further they denied the suggestion that Ex.D.6 to Ex.D.13, Ex.D.34 to Ex.D.83 and Ex.D.86 to Ex.D.113 documents have been created and till today schedule item No.3 property remained as agriculture in nature. In such circumstances based on available oral and documentary evidence, this Court has to see that, in whose favour preponderance of probabilities lies.
18. It is pertinent to note here that, on careful evaluation of the oral and documentary evidence along with arguments on record, it is clear that, so far as in respect of relationship of the plaintiffs and the defendant Nos.1 to 5 non alienating coparceners as mentioned in Ex. P1 is concerned, there is no dispute. It is also not in dispute that, original propositus Sri.Erappa and his wife died leaving behind three sons namely Sri.Munikrishna, Sri.Srirama and Sri.Annayyappa. It is the specific case of the 15 O.S.No.8300/2010 plaintiffs that, their father Sri.Munikrishna has acquired the schedule properties through oral partition entered into between himself and his brothers on 08.01.1990 wherein the suit schedule properties had fallen to the share of the plaintiffs' father Munikrishna, accordingly the plaintiffs and the defendant Nos.1 to 5 have been in joint possession and enjoyment of the suit schedule properties along with their father, but after the death of their father, the 1st defendant with the assistance of defendant No.2 and 3 managing the joint family along with the schedule properties, but when the plaintiffs requested to effect partition by metes and bounds by conveying panchayath, the defendants refused. In this connection, the learned counsel for the plaintiffs filed written arguments and prayed for decreeing the suit.
19. Per contra, it is the specific case of the contesting defendant Nos.6, 8 & 10 that, the plaintiffs have filed the false case with malafied intention to grab the properties in collusion with defendant Nos.1 to 5 for extraneous reasons. Further it is another contention of the contesting defendants that, the plaintiffs have not included the remaining joint family properties succeeded by common ancestor deceased Munikrishna in the present suit and there is no joint family as the same has already been severed long back by virtue of Panchayath Parikath within the knowledge of the plaintiffs, as such the suit is not maintainable. Further it is another contention of the defendants that, neither the property in dispute is in existence nor the plaintiffs are in possession or they continued to be the joint family members as on the date of the suit by virtue of the sale transactions taken place during the life time of the plaintiff's father and grandfather.
16 O.S.No.8300/201020. In this connection, the learned counsel for the defendant Nos.6, 8 and 10 filed written arguments and relying on a judgment passed by the Division Bench of our Hon'ble High Court in the case of Padmavathi and another Vs Smt.Jayamma, prayed for dismissal of the suit. I have carefully gone through the entire material on record along with the principles enunciated in the decision referred supra.
21. It is has been held by our Hon'ble High Court in the decision referred supra at point-(D) that, in view of Hindu Succession Act, 1956 - as amended by Karnataka Amendment- terms of Sections 6-A and 6-C would apply from 30.07.1994 to 08.09.2005, in view of ratio in Prakash and others case and the Central amendment would apply from 09.09.2005. Further observed that, applicability being predicated on when succession opens and availability of properties for partition i.e., they are neither partitioned nor sold by way of registered instrument. So in the light of the aforesaid ratio laid down by our Hon'ble High Court, this Court has to see that whether the plaintiffs can rely on an oral partition dated 08.01.1990, if so whether they entitled for any share even after subsequent sale transactions entered into between their father Late Sri.Munikrishna and the defendant Nos.6 to 10 or not ?
22. It is pertinent to note here that, in the case on hand, the plaintiffs claim that, in an oral partition entered into between the plaintiffs' father and his brother on 08.01.1990 the schedule properties had fallen to the share of the plaintiffs' father and thereafter his name came to be entered in the revenue records 17 O.S.No.8300/2010 and they continued to be in joint possession and enjoyment of the schedule properties along with the defendant Nos.1 to 5.
23. In this connection, if we go through the explanation to Sec.6(5) of the Hindu Succession (Amendment) Act, 2005, it reads thus:
"for purposes of this Section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act or partition effected by a decree of a Court."
24. Further our Hon'ble High Court has observed in the Division Bench decision referred supra in the case of Padmavathi and another that, applicability of Central Amendment Act, 2005 would be that, the properties are neither partitioned nor sold by way of registered instrument".
25. Further in a recent decision of the Hon'ble Apex Court of India in the case Vineeta Sharma versus Rakesh Sharma and others (Civil Appeal No.32601/2018 dt.11.08.2020 observed that:
"There is a clear legislative departure with respect to proof of partition which prevailed earlier, thus the Court may recognize the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be inconsolence with the spirit of provisions of Sec.6(5) and its explanation. Accordingly in para 129 (v) held as under:18 O.S.No.8300/2010
In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."
So from the principles enunciated in the decision of the Hon'ble Apex Court of India referred supra, now it is clear that, a plea of oral partition can be accepted in exceptional cases where the plea is supported by other contemporaneous public documents admissible in evidence along with oral evidence of the parties.
26. In the case on hand the plaintiffs have only furnished incomplete xerox copy of partition deed dt.08.01.1990 and copy of legal notice dtd. 15.11.2010 along with list of documents dtd. 28.11.2010 available in the file but not examined the witnesses before this Court. However if we go through the entire material on record, we can find that, the defendant Nos.1 to 3 have admitted the averments regarding oral partition of the year 1990 in their written statement. Further in para-4(c) of the written statement, D6, D8 & D10 would contend that, there is no joint family and the same has already been severed long ago through a panchayath parikath which is within the knowledge of the plaintiffs and also they acted upon the same. But again in para-9 of the written statement contended that, there is no oral partition between the 19 O.S.No.8300/2010 grandfather of the plaintiffs and the father of the plaintiffs as alleged and the alleged partition document is created one.
27. In such circumstances if we go through the entries made in Ex.P.2 the record of rights, Ex.P.7 mutation entry pertains to Sy.No.141/2, 141/3 and 141/4 of Laggere Village, Ex.P.8 and Ex.P.9 record of rights they reflect the entry regarding oral partition. As could be seen from the perusal of Ex.D.1 registered sale deed dated 13.08.2003 executed by Sri.Munikrishna in favour of Smt.Rathnamma, Ex.D.35 registered sale deed dated 09.07.2003 executed by said Sri.Munikrishna in favour of Smt.Basanthi and Ex.D.85 registered sale deed dated 17.10.2002 executed by said Sri.Munikrishnappa in favour of Sri.D.Siddappa and Smt.Puttamma reflects nature of acquisition of land bearing Sy.No.141/4 of Laggere Village by way of oral partition dated 08.01.1990 by plaintiffs' father Munikrishna as referred supra.
28. So the aforesaid material evidence indicates that, the plea of oral partition relied by the parties to the suit has not only been supported by the public documents like record of rights, mutation entries and registered sale deeds but also acted upon. Therefore I find that, as per the observation made by the Hon'ble Apex Court in the case of Smt.Vineeta Sharma Vs Rakesh Sharma and others (Civil Appeal No.32601/2018 dated 11.08.2020) as referred supra, there is no impediment to recognize the other mode of partition i.e., the oral partition dated 08.01.1990 referred supra and relied by the parties throughout the subsequent transactions by registered documents and present proceedings from the year 1990 till date.
20 O.S.No.8300/201029. It is pertinent to note here that, in view of the ratio laid down by the Hon'ble Apex Court in the case of Smt.Vineeta Sharma referred supra the concept of living daughters of living coparcener as observed in the case of Prakash Vs Pulavathi cannot be made applicable to the facts of the case on hand. So plaintiffs being the daughters/Class-I heirs of Late Sri.Munikrishna, in the absence of Partition by metes and bounds can claim their rights in coparcenary property by birth as per Hindu Succession (Amendment) Act 2005 irrespective of date of birth or date of death of their father coparcener subject to savings as provided in Sec.6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the cutoff date i.e., on 20.12.2004.
30. It is relevant to point out that, though the plaintiffs have claimed their alleged legal share in the suit schedule item Nos.2 and 3 properties stating that, they are enjoying the same jointly along with the defendant Nos.1 to 5, but in this regard it is the specific case of the defendant Nos.6, 8 and 10 that, they have purchased portion of property/sites in land bearing Sy.No.141/4 only after conversion of property and layout formed by the plaintiffs' father long back and they are residing in their respective properties separately by constructing buildings thereon along with other purchasers. In such circumstances, again burden lies on the plaintiffs to prove the existence of joint family and its properties as on the date of the suit in accordance with law.
21 O.S.No.8300/201031. It is settled that, though there is presumption in respect of existence of joint family, but there is no presumption to the effect that joint family possesses joint family property. In this regard Ex.P.4 copy of orders issued by the Land Tribunal, Bengaluru North Taluk dated 01.07.1979 reveals that, the land bearing Sy.No.141/2, 141/3 and 141/4 of Laggere Village been ordered for registering in the name of Erappa as occupant of the said property subject to payment of premium if any, accordingly, Ex.P.2 and Ex.P.3 RTCs depict that, the land bearing Sy.No.141/3 and Sy.No.141/4 of Laggere Village were held by the plaintiffs' father Munikrishna, brother Sriram along with their father Erappa and also their names came to be mutated in the revenue records as per Ex.P.5 and Ex.P.7 mutation entries.
32. On the contrary as could be seen from the perusal of evidence of DW.1 along with Ex.D.1 to Ex.D.33 that the defendant No.8 Sri.Mehaboob Pasha has purchased site No.6, Katha No.977 in land bearing Sy.No.141/4 of Laggere Village from the Late Smt.Rathnamma with different boundaries in the year 2004 as per Ex.D.2, who purchased the same from plaintiffs' father Sri.Munikrishna as per Ex.D.1, then got entered his name in EC and property extract, constructed building as shown in photographs, paying property tax to the BBMP, electricity bills along with water charges to the concerned authorities and residing in the said premises as per address shown in Aadhaar Card and Ration Card as on the date of the suit.
33. Similarly as could be seen from the perusal of evidence of DW.2 along with Ex.D.35 to Ex.D.83 that the 22 O.S.No.8300/2010 defendant No.6 Smt.Basanthi has purchased site No.6, Katha No.141/4 in land bearing Sy.No.141/4 of Laggere Village from Sri.Munikrishna in the year 2003 as per Ex.D.35, entered her name in EC and property extract, constructed building as shown in photographs, paying property tax to the BBMP, electricity bills along with water charges to the concerned authorities and residing in the said premises as per address shown in Aadhaar Card and Ration Card as on the date of the suit.
34. Similarly as could be seen from the perusal of evidence of DW.3 along with Ex.D.85 to Ex.D.113 that the defendant No.10 Sri.Siddappa and his wife Smt.Puttamma have purchased site No.1, Katha No.711 in land bearing Sy.No.141/4 of Laggere Village from Sri.Munikrishnappa in the year 2002 as per Ex.D.85, got entered their names in EC and property extract, constructed building as shown in plan/photographs, paying property tax to the BBMP, electricity bill along with water charges to the concerned authorities and residing in the said premises as per address shown in self declared property tax list and extract as on the date of the suit.
35. In this regard Dws.1 to 3 state that, plaintiffs father has alienated the portion of schedule item No.3 property for the benefit and legal necessity of their family and to perform the marriage of his daughters, as such the defendant Nos.6, 8 and 10 are the bonafide purchasers for value. In this regard during the cross-examination though they plead ignorance about LRs of Munikrishna and their entitlement of any share in the schedule properties, but it is evident from the perusal of recitals in Ex.D.2, 23 O.S.No.8300/2010 Ex.D.35 and Ex.D.85 registered sale deeds executed by their father in favour of defendant Nos.6, 8 and 10 that he has alienated the same for the family/legal necessity only, as such in the absence of contrary oral and documentary evidence, the evidence of Pw.1 and 2 on this aspect cannot be believed as worthy of credence, accordingly, contention of the defendants that they are bonafide purchasers for value, is to be accepted.
36. So the aforesaid material oral and documentary evidence make it clear that, the plaintiffs' grandfather acquired the schedule properties as per Ex.P.4 copy of orders issued by the Land Tribunal, Bengaluru North Taluk dated 01.07.1979 absolutely. Thereafter plaintiffs' father acquired the schedule properties through an oral partition dated 08.01.1990 i.e., during the lifetime of his father Sri.Erappa. The plaintiffs' father died in the year 2006 i.e., predeceased to grandfather Sri.Erappa, who died in the year 2010. So though the counsel for defendant No.6, 8 and 10 contend that during the life time of plaintiff's grandfather, their father cannot succeed the properties. But if plaintiffs fail to prove oral partition, then only Sri.Munikrishna could not have succeeded to the property as he could claim only through his father Sri.Erappa, as observed supra plea of oral partition has been proved, hence arguments on other side to that extent cannot be accepted.
37. On careful evaluation of the aforesaid oral and documentary evidence, we can find that so far as in respect of purchase of portion of the schedule properties by the defendants especially defendant Nos.6 to 10 from the plaintiffs' father as per 24 O.S.No.8300/2010 registered sale deeds and their possession over the properties there is no dispute. Further the defendant Nos.6, 8 and 10 have also established their case by making their version reasonably probable by adducing cogent oral and documentary evidence to believe that, the plaintiffs' father after getting the properties in an oral partition, has formed the layout and sold out several sites to the defendant Nos.6 to 10 with physical possession for family legal necessities and thereby lost his right, title and possession over the alienated properties.
38. It is worth to note that the defendant No.1 in the accompanying affidavit filed with I.A.No.3 impleading application under Order 1 Rule 10 of CPC admits regarding alienation with possession of Item 3 property to Defendant Nos. 6 to 10. PW.1 in her cross examination on page 11 states that she has no claim against defendant Nos. 6, 8 and 10. In para 3 and 4 of objection statement filed by the plaintiffs to application u/o 7 rule 11 CPC dt. 22-02-13 states that their father has sold Item No.3 property to defendant Nos. 6 to 11 and not grandfather.
39. So as observed supra, though the plaintiffs father acquired the property in question through an oral partition in the year 1990, but later on he has alienated portion of item No.3 property in favour of defendant Nos.6 to 10 by way of registered sale deeds on 17.10.2002, 09.07.2003 and 01.03.2004 i.e., before 20th day of December 2004, which demolishes the plea of the plaintiffs regarding coparcenary right and joint possession over the alienated properties along with defendants 1 to 5, then in view of amended provisions as provided in Sec.6(1) of Hindu 25 O.S.No.8300/2010 Succession (Amendment) Act, 2005 the plaintiffs being the daughters are not entitled for any share in the alienated properties. Consequently, suit against defendant Nos. 6 to 10 is liable to be dismissed.
40. Another question that arises before this Court is, the essential features of ancestral property in Mitakshara law is, the sons, grandsons and great grandsons of the original propositus inherits the property by birth. In the case on hand properties acquired by the plaintiffs father Munikrishna in a partition dt.08.01.1990 though it was a separate property of plaintiffs father, but same has been retained character of coparcenary pertains to non-alienated property in so far as sons and daughters are concerned.
41. The plaintiffs have already got deleted Item No.1 property as per order on memo dt. 18.12.2010 and thereby waived their rights over Item No.1 in Sy.No.141/2 of Laggere village. So far as in respect of Item No. 2 in Sy. No.141/3 property is concerned there is no material on record for having alienated or bequeathed by the plaintiffs father. It is the case of the defendant Nos.1 to 3 that, suit schedule properties are the self acquired properties of late Munikrishna already alienated portion of Item 3 to others and bequeathed remaining 8 guntas of Sy.No.141/4 in their favour, plaintiffs again claiming partition in the said properties. But,in order to substantiate their case defendants 1 to 3 have neither challenged the evidence of PW. 1, 2 or evidence of DW.1 to 3 nor stepped in to the witness box or produced contrary documents before this Court. It is none of the case that partition 26 O.S.No.8300/2010 between the plaintiffs and defendants 1 to 5 has taken place in the schedule properties. There is a general presumption that every Hindu Family is presumed to be joint unless contrary is proved. As such without there being supportive evidence, contention of the defendant Nos. 1 to 3 on this aspect cannot be accepted.
42. So according to Sec.6(3) of the Hindu Succession (Amendment) Act 2005 interest in the property of a Joint Hindu Family governed by the Mithakshara Law, shall devolve by testamentary or intestate succession, accordingly the plaintiffs being the daughters can be allotted similar share equally as is allotted to a son if a partition had taken place in non-alienated coparcenery property like Item No.2 in Sy.No. 141/3 and remaining portion in Item No.3 in Sy.No.141/4 of Laggere village.
43. With regard to identification of property is concern, the plaintiffs have filed the above numbered suit by suppressing formation of layout and alienation in form of sites as well as separate occupation of the purchasers over the respective sites/premises as on the date of the suit. None of the parties have produced copy of the conversion order and layout plan. The subject matter of the suit being immovable property, then according to provisions of Order 7 Rule 3 of CPC plaint shall contain a description of the property sufficient to identify it, otherwise, it would not only prejudice the rights of the bonafide purchasers but also it would be difficult to apply principles of equitable partition during final decree proceedings. In this connection though the plaintiffs have furnished description i.e., boundaries to entire item Nos.2 and 3 landed properties, but not 27 O.S.No.8300/2010 furnished description of the properties available as on the date of the suit. The plaintiffs have not made other punchers alleged to have purchased remaining portion of the properties. This is a case of the year 2010. The Hon'ble Apex Court has observed in the case of Vineeta Sharma (Civil Appeal No.32601 of 2018 Dt.11.08.2020) referred supra that Courts cannot defeat the object of beneficial provisions of Section 6 of the (Amendment) Act 2005 and are required to be given full effect and pending matters be decided, as far as possible, within six months . As such suit of the plaintiffs at this stage cannot be dismissed on these minor defects only and it can be rectified during final decree proceedings.
44. In the case on hand, the plaintiffs father died in the year 2006 i.e., predeceased to grandfather Sri.Erappa, who died in the year 2010, leaving behind the defendant No.1 wife, defendant Nos.2 & 3 sons, the plaintiff Nos.1 & 2 and defendant Nos. 4 & 5 daughters. So during the life time Munikrishna if a partition would have taken place between the parties being Class- I heirs , then the plaintiffs and defendants 1 to 5 could have obtained equal share each in the non-alienated coparcenary properties. Accordingly, the plaintiffs are together entitle for 2/7 th share and defendants are altogether entitle for remaining 5/7th share in the suit schedule Item No.2 in Sy. No.141/3 and non- alienated portion of the schedule Item No.3 in Sy.No.141/4 of Laggere Village, Yeshwantpura Hobli, Bengaluru North Taluk. With regard to mesne profits is concern, since there is no material on record, hence it requires separate enquiry.
28 O.S.No.8300/201045. Therefore, having regard to the facts and circumstances of the case, I am of the opinion that, arguments/written arguments filed by the learned counsel for the plaintiffs partly holds good. On the other hand, arguments/written arguments filed by the learned counsel for the defendant Nos.6, 8 and 10 holds good. Hence, I answer Issue No.1 and 2 partly in the affirmative.
46. ISSUE NO.3: In view of my discussion made supra while dealing with issue Nos.1 and 2, suit of the plaintiffs is deserves to be partly decreed as against defendant Nos.1 to 5. Consequently, suit against defendant Nos. 6 to 10 is liable to be dismissed. Considering the facts and circumstances of the case there shall be separate enquiry towards mesne profits. There shall be no order as to cost. Hence I answer issue No.3 partly in the affirmative.
47. ISSUE NO.4 :- For the foregoing reasons, I proceed to pass the following :
ORDER The suit of the plaintiffs is partly decreed holding that the plaintiffs are together entitled for 2/7th share in the suit schedule Item No.2 in Sy. No.141/3 and non- alienated portion of the schedule Item No.3 in Sy.No.141/4 of Laggere Village, Yeshwantpura Hobli, Bengaluru North Taluk.29 O.S.No.8300/2010
Similarly, the defendant Nos.1 to 5 are altogether entitled for remaining 5/7th share in the suit schedule Item No.2 in Sy. No.141/3 and non alienated portion of the schedule Item No.3 in Sy.No.141/4 of Laggere Village, Yeshwantpura Hobli, Bengaluru North Taluk subject to payment of necessary Court fee and non-judicial stamp if any.
The Suit against defendant Nos. 6 to 10 stands dismissed.
There shall be separate enquiry towards mesne profits.
There shall be no order as to cost.
Draw preliminary decree accordingly.
*** [ Dictated to the Stenographer directly on computer, corrected by me and then pronounced in the Open Court on 28th day of September 2020 ] [ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE C/C XXXI ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU.
ANNEXURE List of witnesses examined on behalf of Plaintiffs:
PW.1 Smt.Munirathna.
PW.2 Sri.Lakshminarayana Reddy.
30 O.S.No.8300/2010
List of documents marked on behalf of Plaintiffs:
Ex.P.1 Genealogical Tree. Ex.P.2 & 3 RTCs. Ex.P.4 Certified copy of the order in LRM 411/74-75. Ex.P.5 Certified copy of the mutation register. Ex.P.6 Certified copy of the RTC. Ex.P.7 Certified copy of the another mutation register. Ex.P.8 to 11 Certified copies of the RTCs.
List of witnesses examined on behalf of Defendants:
DW.1 Sri.Mehaboob Pasha. DW.2 Sri.Basanth Kumar Mohanty. DW.3 Sri.S.Shankar.
List of documents marked on behalf of Defendants:
Ex.D.1 Original sale deed dated 13.08.2013.
Ex.D.2 Original sale deed dated 01.03.2004 executed by
Rathnamma in favour of DW.1.
Ex.D.3 to 5 Encumbrance certificates.
Ex.D.6 BBMP Tax paid receipt.
Ex.D.7 BBMP receipt for having deposited Rs.100/- towards
Katha.
Ex.D.8 & 9 Electricity Bills.
Ex.D.10 Water Bill.
Ex.D.11 Copy of the ration card.
Ex.D.12 Form-B Property Register Extract.
Ex.D.13 Receipt given by Alankar Studio & Video.
Ex.D.14 to 32 Photographs.
Ex.D.33 CD.
Ex.D.34 Special Power of Attorney.
31 O.S.No.8300/2010
Ex.D.35 Original sale deed dated 09.07.2003 executed by
Sri.Munikrishna in favour of Smt.Basanthi.
Ex.D.36 to 47 Photographs.
Ex.D.48 Receipt given by Sri.Maruthi Digital Studio & Video.
Ex.D.49 CD.
Ex.D.50 to 54 BBMP tax paid receipts.
Ex.D.55 EC.
Ex.D.56 BBMP property tax paid challan.
Ex.D.57 Form-B Property Register.
Ex.D.58 BBMP receipt.
Ex.D.59 BBMP property tax paid challan.
Ex.D.60 to 62 BBMP tax paid receipts.
Ex.D.63 Acknowledgment issued by Dasarahalli Nagarasabe.
Ex.D.64 to 66 Copy of tax remitter's card issued by Dasarahalli Nagarasabe.
Ex.D.67 to 69 Property tax paid details before Nagarasaba Karyalaya, Dasarahalli.
Ex.D.70 Property tax paid receipt. Ex.D.71 BBMP property tax paid challan. Ex.D.72 to 75 Electricity Bills. Ex.D.76 & 77 Water Bills. Ex.D.78 Copy of the Aadhaar Card of Smt.Basanthi. Ex.D.79 Copy of the Aadhaar Card of Sri.Basanth Kumar. Ex.D.80 Copy of the ration card. Ex.D.81 Copy of the Voter I.D. of Sri.Basanth Kumar. Ex.D.82 Copy of the ration card. Ex.D.83 BBMP receipt. Ex.D.84 General Power of Attorney. Ex.D.85 Original sale deed dated 17.10.2002 executed by
Sri.Munikrishnappa in favour of Sri.D.Siddappa and Smt.Puttamma.32 O.S.No.8300/2010
Ex.D.86 BWSSB notice dated 22.12.2009
Ex.D.87 BWSSB application for getting water connection.
Ex.D.88 Certified copy of House Plan.
Ex.D.89 EC.
Ex.D.90 Prapathra No.15.
Ex.D.91 Gas bill.
Ex.D.92 Electricity Bill.
Ex.D.93 & 94 Property Tax paid challans.
Ex.D.95 to 98 Tax paid receipts.
Ex.D.99 & 100 Acknowledgment issued by BBMP.
Ex.D.101 & 102 Tax paid receipt.
Ex.D.103 Acknowledgment.
Ex.D.104 Tax paid receipt.
Ex.D.105 to Property tax details list for the years 2003-04 to
108 2002-2003.
Ex.D.109 Form-B property register.
Ex.D.110 & 111 Photograph.
Ex.D.112 Receipt given by Ramana Digital Studio.
Ex.D.113 CD.
[ C.D. KAROSHI ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
C/C XXXI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU.