Bangalore District Court
Sri. S.E.Basavaraju vs Smt. Nanjamma on 13 July, 2018
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Dated this 13th Day of July, 2018
Present: Sri. R. Ravi,
B.Sc., LL.B.
XVII Addl. City Civil & Sessions Judge.
O.S.No. 3423/2005
Plaintiff/s : Sri. S.E.Basavaraju
S/o Late Erappa,
Aged about 37 years,
Door No.1617, 12th Cross,
5th Main, Mahakavi Kuvempu Road,
Mariyappana Palya,
Bengaluru - 21
[By Sri. S.M., Adv.]
-Vs-
Defendant/s : 1. Smt. Nanjamma
W/o Late Erappa
Since dead by her LRs.
2. Sri. E.Nagaraju
S/o Late Erappa
Since dead by his LRs
2a) N.Rajesh
S/o Late E.Nagaraju
Aged about 27 years,
2b) N.Yogesh
S/o Late E.Nagaraju
Aged about 22 years,
D-2(a & b) are R/at No.1617,
12th Cross, 5th Main,
Mahakavi Kuvempu Road,
Mariyappana Palya,
Bengaluru - 21
2 OS.No.3423/2005
3. Sri. Krishna
S/o Late Erappa
Since dead by his LRs.
3a) Padmavathi
W/o Late Krishna
Aged about 36 years,
3b) Kumari Chandana
D/o Late Krishna
Aged about 10 years,
D-3(a & b) are R/at No.23,
10th 'A' Cross, Agrahara
Dasarahalli, Bengaluru - 39.
3c) Smt. Gowri
D/o Late Krishna
Aged about 24 years,
3d) Kumari Shravya
D/o Late Krishna
D-3(c & d) are R/at Thimlapura
Village, Jadaya Post,
Turuvekere Taluk, Tumkur Dist.
4. Sri. Manjunath V. Shate
S/o Venkatesh
Aged about 40 years,
R/at No.7/1, 23rd Cross,
Kilari Road, Bengaluru.
5. Smt. Bhagya
W/o Kumar
Aged Major,
R/at No.51/24, Ground Floor,
1st Main, Hanumanthappa Garden
Marenahalli, Vijayanagar,
Bengaluru - 40.
6. Bank of India [Housing & Personel]
Finance Branch, Malleshwaram,
No.112, 1st Floor, Bank of India
Building, Margosa Road,
3 OS.No.3423/2005
Between 10th and 11th Cross,
Malleshwaram, Bengaluru - 3.
[D1 - Dead]
[D2(a & b) - by Sri. S.K., Adv.]
[D2(c) - by Sri. R.S.A., Adv]
[D3(a & b) - By Sri. S.G., Adv]
[D3(c & d) - By Sri. B.S., Adv]
[D4 - By Sri. C.V.S., Adv]
[D5 & 6 - Absent]
Date of institution of the suit 28.4.2005
Nature of the suit Declaration & Partition
Date of commencement of 10.6.2010
recording the evidence
Date on which the judgment 13.07.2018
was pronounced
Total duration Years Months Days
13 02 15
(R. Ravi),
XVII Addl. City Civil & Sessions Judge.
**********
JUDGMENT
This is a suit for declaration and Partition.
2. The case of the plaintiff is that, he and the 2nd defendant are the sons of Erappa and the defendant No.1 is their mother. The said Erappa was a civil contractor and was the kartha of the family consisting of himself, defendant No.1, plaintiff and defendant No.2 and 3. The plaintiff and defendant No.2 are running a Autorickshaw for hire and 4 OS.No.3423/2005 defendant No.3 is a Mason and as such the plaintiff and defendant No.2 and 3 used to give their earnings to their mother namely defendant N.1. When that is so, during the year 1998 the plaintiff's father decided to buy suit item No.1 property in the name of defendant No.1 out of the joint family earnings and pursuant to the aforesaid decision, an agreement of sale was entered into between the defendant N.3 and the owner of the said item No.1 of the schedule property namely D.Poojappa on 25.4.1988 and subsequent to the said agreement, the plaintiff, defendant No.2 and 3 out of respect for their mother persuaded their father to buy the said suit schedule property in the name of their mother and as a result of which the said suit schedule item No.1 property was purchased in the name of defendant No.1 out of the joint earnings of plaintiff's father, plaintiff and defendant No.2 and
3. After the purchase of the above said suit schedule property the same was developed out of the joint family earnings of plaintiff's father, plaintiff and defendant No.2 and 3 and as such the suit item No.1 property is in joint possession and enjoyment of the plaintiff and defendant No.1 to 3. In the meanwhile, during his life time the said Erappa had also purchased the suit item No.2 property in the name of his wife i.e., defendant No.1. The said site was coming under the Re- 5 OS.No.3423/2005 Conveyance Scheme of then CITB now called B.D.A.. Thus the said Smt.Nanjamma had also entered into an agreement with CITB on 4.6. 1965 and subsequently the said CITB has handed over the possession of the said property to Smt.Nanjamma and as such the plaintiff is also entitled to a share in the suit item No.2 property as it is also the joint family property. The plaintiff has also paid considerable amount to his sisters and got released the suit item no.2 property in his name. During the life time of his father, no partition has taken place among the members of the joint family in respect of the suit schedule properties. When that is so, on 27.1.2005, the defendant No.1 without the consent and knowledge of the plaintiff unauthorizedly executed a sale deed in respect of the suit schedule property in favour of the defendant No.4 and in fact the possession of the property is still with the plaintiff and defendant No.2 and 3 and since the defendant No.4 demanded the possession of the suit schedule property and threatened him with dire consequences then the plaintiff is constrained to file this suit for declaration and partition.
3. On the other hand, the defendant No.2 has filed his written statement and admitted the averments of the 6 OS.No.3423/2005 plaint and he too prayed for 1/4th share in the suit schedule property.
4. And whereas the defendant No.2(a) and (b) have also filed their written statement and contended that during the life time of Erappa and Nanjamma, they were orally attributing that suit schedule item No.1 property will be given to Nagaraj the eldest son and it is also learnt that the defendant No.1 has bequeathed the said property by virtue of a Will in favour of their father and created a life interest to him and thereafter to his sons and accordingly they are enjoying the suit item No.2 property and in fact they are searching for the said Will and the same might have been possessed by any one of the family members or its executant.
5. And in the meanwhile on 4.12.2015, the said defendant No.2(a) and (b) have filed their written statement and contended that in an oral partition the suit item No.2 property was allotted to the share of defendant No.2 and they being the LRs of the defendant No.2 have succeeded to the suit schedule property and accordingly prayed for allotting the said item No.2 property entirely to them and allot a share in suit item No.1 property.
7 OS.No.3423/2005
6. And whereas the defendant No.3(a) and (b) have filed their written statement and prayed for allotment of the deceased defendant No.3's share to them.
7. And whereas the defendant No.3(c) and (d) have also filed their separate written statement and contended that defendant No.3(c) is the second wife of Late Krishna and defendant No.3(d) is her daughter through the said Late Krishna and as such they are having 1/8th share over the suit schedule property and the sale deed of defendant No.1 in favour of defendant No.4 in respect of suit item No.2 is not at all binding on them.
8. And whereas the defendant No.4 has also filed his written statement and denied the averments of the plaint as false and incorrect and further contended that the plaintiff is not at all the son born out of the wedlock of Smt.Nanjamma and Erappa, but he is born out of the wedlock of Smt.Nanjamma and Shivalingappa and such being the case the suit of the plaintiff is not at all maintainable in law and moreover since the plaintiff has intentionally left out the members of the family i.e., Smt.Lakshmamma, Savithramma and Bhagya who are the daughters of Nanjamma out of the wedlock of Erappa and even 2 children born out of the 8 OS.No.3423/2005 wedlock of Shivalingappa are not at all made as parties then the suit of the plaintiff is also bad for non-joinder of necessary parties. And in fact Nanjamma also owned property bearing No.48 situated at Sy.No.39/9, 38/11 and 38/15 of Kethmaranahalli Village, Yeshwanthpura Hobli, Bengaluru North Taluk and thus the plaintiff has intentionally not sought partition of all the properties which are contained in the Will of Nanjamma dated 19.11.2001. It is further submitted that the 1st defendant being the absolute owner of the suit schedule property had offered to sell the same to the defendant No.4 and accordingly the defendant No.4 has purchased the suit schedule property for valuable consideration through a registered sale deed dated 27.1.2005 form the defendant No.1 and since then he is in possession and enjoyment of the suit schedule property and in fact before purchasing the suit schedule property he has verified the title and ownership of the defendant No.1 over the suit schedule property and as such he is a bonafide purchaser of the same. It is further submitted that before purchase of the suit schedule property he had taken loan from the bank and offered the said suit schedule property by way of mortgage and at the time of execution of the sale deed the 1st defendant was in occupation of the ground floor portion of the suit 9 OS.No.3423/2005 schedule property and though the possession of the entire suit schedule property was delivered to him on 27.1.2005 still the defendant No.1 requested him to allow her to occupy the ground floor portion of the premises till she secures an alternative accommodation and as such she was allowed to occupy and continue in possession of the ground floor premises and since the possession of the defendant No.1 was permissive possession then she is liable to be evicted as per Law and the above fact is known to the plaintiff and defendant No.1 to 3 and as such he reserves his right to initiate proper proceedings against them as they colluded with each other and filed this frivolous suit and accordingly prayed for dismissal of the above suit with cost.
9. And whereas the defendant No.6 has also filed his written statement and denied the averments of the plaint as false and incorrect and further contended that the defendant No.1 being the absolute owner of the suit schedule item No.2 property had sold the same in favour of defendant No.4 through a registered sale deed and in turn the defendant No.4 has mortgaged the above property and obtained a loan of Rs.7,00,000/- from their bank and since the defendant No.4 did not repay above loan amount then they issued a 10 OS.No.3423/2005 notice in terms of Section 13(4) of SARFAESI Act and took symbolic possession of the said suit schedule property and pursuant to the same they have obtained the physical possession of the said property through 1st Additional C.M.M. Court, Bengaluru in C.Misc.2576/2011 and they are intending to dispose of the suit schedule property in terms of SARFAESI Act to realize the dues of defendant No.4 and as such the plaintiff and defendants have no right over the said property and accordingly prayed for dismissal of the above suit.
10. On the basis of the pleadings, my learned predecessors have framed the following issues and additional issues: -
Recasted Issues:-
1) Whether the plaintiff proves that, the schedule property is joint family property?
2) Whether the 4th and 6th defendant prove that the schedule property was the self-
acquired and absolute property of the 1st defendant?
3) Whether the plaintiff is entitled to the declaration sought for?
4) Whether the plaintiff is entitled to 1/4th share in the absolute property?
5) What decree or order?
11 OS.No.3423/2005Addl. Issues:
1) Whether the plaintiff proves that the sale deed dated 27.1.2005 executed by 1st defendant in faovur of 4th defendant is not binding on the plaintiff?
11. In order to prove the above issues, the plaintiff got himself examined as PW.1 and got marked the documents at Ex.P1 to P18. On the other hand, on behalf of the defendants, defendant No.2(a), 3(a) and defendant No.4 got themselves examined as DW.1 to 3 respectively and got marked the documents at Ex.D1 to D24 and thereafter the matter was posted for arguments.
12. And I have heard the arguments of both sides perused the entire materials placed on record.
13. And my findings on the above issues are as under:-
Issue No.1: In the Negative Issue No.2: In the Affirmative Issue No.3: In the Negative Issue No.4: In the Negative Addl. Issue No.1: In the Negative Issue No.5: As per final order, for the following:
REASONS
14. Issue No.1 to 4 and Addl. Issue No.1 :- Since these issues are inter-related then they are hereby discussed commonly in order to avoid repetition of facts. 12 OS.No.3423/2005
15. In order to prove the facts of above issue No.1, 3, 4 and additional issue No.1 though the plaintiff got himself examined as PW.1 and got marked the documents at Ex.P1 to P18, the same do not hold any water as there is a lot of variance in the pleadings and proof of the plaintiff that are placed on reocrd. Now let me examine it.
16. First of all though the plaintiff has specifically pleaded that his father Erappa has bought the suit item No.2 property in the name of his wife Smt.Nanjamma and suit item No.1 property is also bought in the name of Smt.Nanjamma out of the joint earnings of plaintiff, plaintiff's father and defendant No.2 and 3, the same do not hold any water as the above material facts are not at all proved by the plaintiff with cogent material evidence.
17. And in fact except leading his self-interested oral version at PW.1, the plaintiff has neither examined any witnesses nor even placed any cogent documentary evidence to prove that the suit schedule item No.1 and 2 properties are the joint family property of himself and defendant No.1 to 3.
18. Even though the plaintiff has allegedly produced the certified copy of sale deed dated 2.12.1964 and Agreement dated 4.6.1965 at Ex.P11 and P12 to show that 13 OS.No.3423/2005 his father Erappa has bought the suit item No.2 property in the name of his wife Smt.Nanjamma, the same is of no help to the case of the plaintiff as the above documents does not show that the suit item No.2 property is purchased in the name of Smt.Nanjamma wife of Erappa. But on the other hand, the above said documentary evidence of Ex.P11 and P12 clearly shows that the same is purchased in the name of Smt.Nanjamma daughter of Kariyappa, thereby proving that the same is the self-acquired property of the said Smt.Nanjamma.
19. On the above point the plaintiff/PW.1 himself at page-14 of his cross-examination has interestingly deposed that one Kariyappa is the father of his mother and Ex.P12 is an Agreement dated 4.6.1965 and he do not know as his mother had not married during the year 1965 then the said document of Ex.P12 contains the name of her father Kariyappa as below: "PÀjAiÀÄ¥Àà £À£Àß vÁ¬ÄAiÀÄ vÀAzÉ. ¤¦.12 ¢B 04-06- 1965 gÀ PÀgÁgÀÄ¥ÀvÀæ. 1965gÀ°è £À£Àß vÁ¬ÄAiÀÄ ªÀÄzÀÄªÉ DVgÀzÃÉ EzÀÄÝzÀjAzÀ £À£Àß vÀAzÉAiÀÄ ºÉ¸gÀ £À ÀÄß ¤¦-12gÀ°è £ÀªÀÄÆ¢¹zÁÝgÉAzÀgÉ UÉÆwÛ®è".
20. And even otherwise contrary to his pleadings, the plaintiff/PW.1 at page-9 of his cross-examination has clearly 14 OS.No.3423/2005 admitted that no property was existing in his father's name and his father is also not a Government servant as below: "£À£Àß vÀAzÉAiÀÄ ºÉ¸Àj£À°è AiÀiÁªÀÅzÃÉ D¹Û EgÀ°®è. £À£Àß vÀAzÉ ¸ÀPÁðj £ËPÀg£À ® À è".
21. And further at page-11 also he/PW.1 has further admitted that he has no documents to show that he was having an autorickshaw and he do not know who have all paid money for purchase of suit item No.2 property and he do not have any documents to show that his father has given money to purchase the suit schedule properties.
22. And as regards the suit item No.1 property is concerned, the plaintiff/PW.1 himself at page-10 of his cross- examination has clearly admitted that suit item No.2 property consists of ground, first and second floors and his mother had taken loan for purchase of the said property and his mother has also given the ground floor for rent and his mother had purchased suit item No.1 property during the year 1988 as below: "zÁªÁ LlA £ÀA.2gÀ D¹ÛAiÀÄ°è £É®ªÀĺÀrü 1£Éà ªÀĺÀr ªÀÄvÀÄÛ 2£Éà ªÀĺÀrAiÀÄ PÀlÖqÀ EvÀÄÛ. F D¹Û Rjâ¸À®Ä £À£Àß vÁ¬Ä ¨ÁåAQ¤AzÀ ¸Á®ªÀ£ÀÄß ¥ÀqÉ¢zÀÝgÀÄ J£ÀÄߪÀÅzÀÄ ¸Àj. £À£Àß vÁ¬Ä zÁªÁ LlA £ÀA.2£Éà D¹ÛAiÀÄ £É®ªÀĺÀrAiÀÄ£ÀÄß ¨ÁrUÉUÉ PÉÆnÖzÀÝgÀÄ". 15 OS.No.3423/2005
23. And moreover at page-11 also he/PW.1 has further admitted that the khata of the suit properties are rather standing in the name of his mother and his mother alone is paying the taxes to it and he do not have any documents to show that his father has given money for purchase of the suit schedule properties as below: "£À£Àß vÁ¬ÄAiÉÀÄ PÀAzÁAiÀÄ PÀlÄÖwÛzgÀÝ ÀÄ J£ÀÄߪÀÅzÀÄ ¸Àj. F D¹ÛUÀ¼£À ÀÄß Rjâ¸À®Ä £À£Àß vÀAzÉ ºÀt PÉÆnÖzÁÝgÀAzÀÄ vÉÄÁÃj¸À®Ä AiÀiÁªÀÅzÉà zÁR¯ÉUÀ½®è ", which is rather fatal to the case of the plaintiff as the above material admissions of plaintiff clearly shows that the suit schedule properties are the self-acquired properties of Smt.Nanjamma i.e., mother of the plaintiff.
24. On the above point in a ruling of AIR 2009 S.C. 2561 i.e., in the case of Smt.Gangamma Vs. G.Nagarathnamma and others [Civil Appeal No.4126- 4127/2009], the Hon'ble Supreme Court of India has clearly held that, "Section 14(1) of the Hindu Succession Act has a bearing on the issue as the properties at item No.1 and 2 are recorded in the name of the Appellant and in the absence of any evidence to the contrary, the Appellant by operation of Section 14(1) of the said Act is the full owner of those properties".
16 OS.No.3423/2005
25. Secondly though the plaintiff has allegedly produced two bank pass books at Ex.P13 and P14 and one driving license at Ex.P15 to show that he was running an autorickshaw and as such he had contributed for purchase of the suit item No.1 property is concerned, the same do not hold any water as the said bank passbooks of Ex.P13 and P14 does not show the lending of any money by the plaintiff to his mother Smt.Nanjamma.
26. And moreover since the sale deed pertaining to the suit item No.1 property is dated 2.7.1988 as per the documentary evidence of Ex.D12 and since the plaintiff/PW.1 himself at page-17 of his cross-examination has clearly admitted that the Passbook of Ex.P13 pertains to the year 1990 and the D.L. of Ex.P15 is of the year 1991 as below:
"À¤¦-13gÀ ¥Á¸ï§ÄPï 1990£Éà E¹éUÉ ¸ÀA§AzÀs¥ÀnÖzÀÄÝ EgÀÄvÀÛzÉAzÀgÉ ¸Àj. £Á£ÀÄ ºÁdgÀÄ¥Àr¹gÀĪÀ ¤¦-15gÀ rJ¯ï 1991gÀ°è £Á£ÀÄ DmÉÆà Nr¸À®Ä ¥Àq¢ É zÀÄÝ EgÀÄvÀÛzÉ." then it cannot be said that the plaintiff has contributed the money for purchase of suit item No.1 to his mother Smt.Nanjamma.
27. Even though the plaintiff has allegedly produced an agreement dated 25.4.1988 at Ex.P4 to show that before 17 OS.No.3423/2005 purchase of suit item No.1 property in the name of his mother Nanjamma, the defendant No.3 and the owner of suit item No.1 namely D.Poojaiah have allegedly entered into an agreement of sale and as such defendant No.3 has also contributed for purchase of the suit item No.1 property, the same do not hold any water as the above said alleged agreement of Ex.P4 is marked subject objection and the plaintiff has not at all lead any further evidence to remove the above said objection.
28. And even otherwise since the plaintiff has not at all proved the due execution and attestation of the above said alleged agreement of Ex.P4 with cogent material evidence of any attesting witnesses and so also the seller namely D.Poojaiah and since the defendant No.3 and his LRs have not at all whispered a single word with regard to the alleged agreement at Ex.P4 either in the written statement or in their oral evidence then a shadow of doubt is created with regard to the veracity of the above said alleged agreement of Ex.P4.
29. And in fact on the alleged Benami transaction of the plaintiff, his father and defendant No.2 and 3 with regard to the purchase of suit properties in the name of plaintiff's mother namely Smt.Nanjamma is concerned, the defendant 18 OS.No.3423/2005 No.4 has relied upon a ruling of AIR 2004 S.C. 4187 wherein the Hon'ble Supreme Court of India has clearly held that:
"Transfer of Property Act [4 of 1882], Section 41 - Benami Transaction - Burden of proof - Lies on person who claims it to be Benami - Source from which purchase money came and motive for purchasing Benami - Are most important tests.
Burden of proving that a particular sale is Benami lies on the person who alleges the transaction to be a Benami. The essence of Benami transaction is the intention of the party or parties concerned and often such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relief the person asserting that the transaction to be Benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjunctures or surmises, as a substitute for proof".
30. Thirdly, though the other defendants except the contesting defendant No.4 have supported the case of the plaintiff, the same is of no help to the case of the plaintiff as they also have not at all proved that the suit schedule item No.1 property is purchased by Sri.Erappa in the name of his wife Smt.Nanjamma and so also failed to prove that suit item 19 OS.No.3423/2005 No.2 property is purchased out of the joint family income of plaintiff, his father and defendant No.2 and 3.
31. Even though the defendant No.2(a) has lead his oral evidence at DW.1 and so also defendant No.3(a) has lead her oral evidence at DW.2, their versions are of no help either to the case of the plaintiff or to their case as the above said DW.1 and 2 have not at all whispered anything with regard to the alleged agreement of sale of Ex.P4 dated 25.4.1988 nor even deposed anything with regard to the source of income from which the suit properties were purchased in the name of Smt.Nanjamma.
32. And in fact contrary to his contention the above said DW.1 at page-9 of his cross-examination has interestingly deposed that he has produced a Will copy of his father to show the purchase of suit properties, which is rather fatal to the case of the above defendant as no such Will is produced by the above defendant for corroboration of the said fact.
33. And even the above said DW.2 also at page-4 of her cross-examination has clearly admitted that she has not at all seen any documents for having lend the money by the 20 OS.No.3423/2005 plaintiff and his brothers for purchase of the alleged suit properties.
34. On the other hand, the contesting defendant No.4 by clearly pleading and leading his oral evidence at DW.3 and further producing the documentary evidence of Ex.D11 to D24 and further eliciting from the mouths of plaintiff/PW.1 and DW.1 and 2 has clearly rebutted the contention of the plaintiff and other defendants that the suit schedule properties are the joint family properties of the plaintiff and other defendants and further proved that the defendant No.1 namely Smt.Nanjamma was the absolute owner of suit item No.2 property having purchased the same through the sale deed and agreement of Ex.P11 and P12 and in the said documents it is clearly mentioned that the same is purchased by Smt.Nanjamma D/o Kariyappa, thereby establishing that Smt.Nanjamma in her individual capacity has purchased the suit item No.2 property and thereafter she has let out the same and out of that income she has purchased the suit item No.1 property through the registered sale deed of Ex.D12.
35. And the oral evidence of defendant No.4/DW.3 and the documentary evidence of Ex.D14 and D14(a) further proved that on 19.11.2001 the defendant No.1/Nanjamma 21 OS.No.3423/2005 has made the above Will of Ex.D14 thereby proving that the suit schedule properties are her self-acquired properties and as such the defendant No.1 being the absolute owner of the suit schedule properties has sold the suit item No.1 property to him for valuable consideration through a registered sale deed of Ex.D13 dated 27.1.2005 and he having verified the title and ownership of defendant No.1 over the said suit item No.1 property has even otherwise is a bonafide purchaser of the said property for valuable sale consideration.
36. Even though the defendant No.4/DW.3 was thoroughly cross-examined by the plaintiff and other defendants still nothing worthwhile has been elicited to discard his oral and documentary evidence that are placed on record.
37. And further though the defendant No.4/DW.3 has admitted at page-8 and 9 of his cross-examination that he had filed suit bearing OS.No.829/2009 against the plaintiff and others for part possession of suit item No.1 property and he has taken back the above suit, the same is not at all fatal to his case as the documentary evidence of plaintiff i.e., Ex.P9 and P10 and so also the admitted written statement of defendant No.6/ Bank of India and the oral evidence of 22 OS.No.3423/2005 Defendant No.4 further showed that after the purchase of suit schedule property by him through the above said Smt.Nanjamma, he has taken possession of entire suit item No.1 property but the said Smt.Nanjamma requested him to occupy the ground floor portion till she secures an alternative accommodation and accordingly he had permitted the said Smt.Nanjamma and subsequently since she did not deliver the possession of said ground floor portion then he had filed the above said suit bearing OS.No.827/2009 for delivery of the possession of said portion and in the meanwhile since he had mortgaged the suit schedule property to the defendant No.6 for obtaining a loan amount and since he could not repay the said loan amount then the defendant No.6 bank has initiated proceedings under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 against him and in the said proceedings the said Smt.Nanjamma/Defendant No.1 was removed by the bank and thereafter since he has repaid the defaulted amount and regularized the above said loan then he was put in exclusive possession of the entire suit item No.1 property by the above said Bank.
23 OS.No.3423/2005
38. And in fact the above material facts are rather admitted by the plaintiff/PW.1 himself at page-16 of his cross-examination and that the bank people have got vacated his mother and sisters for non-payment of the loan amount and now the defendant No.4 is in possession of the suit schedule item No.1 property as below: "FUÀ £À£Àß vÀAV, CPÀÌ ºÁUÀÆ vÁ¬Ä ªÉÄÃ¯É ºÉýzÀ ¸ÀéwÛ£À ¸Áé¢üãÀz° À è E®è C®èªÉ J£ÀÄߪÀ ¥Àæ±ÉßUÉ, ¸ÁQëzÁgÀgÀÄ ¨ÁåAQ£À ¸Á® PÀlÖzÉà EzÀÄÝzPÀ ÁÌV CªÀgÀÄUÀ¼£À ÀÄß ¨ÁåAQ£ÀªÀgÀÄ ¸ÀzÀj ¸ÀéwÛ¤AzÀ CªÀgÀÄUÀ¼À£ÀÄß SÁ° ªÀiÁr¹zÁÝgÀÉAzÀÄ GvÀÛj¹zÀgÀÄ. FUÀ 4£Éà ¥ÀæwªÁ¢AiÀÉÄ zÁªÉ ¸ÀéwÛ£À ¸Áé¢üãÀzÀ°èzÁÝgÉ C®èªÉ J£ÀÄߪÀ ¥Àæ±ÉßUÉ ¸ÁQëzÁgÀgÀÄ FUÉÎ 2 ªÀµðÀ ¢AzÀ ¸ÀzjÀ ¸ÀéwÛ£À ¸Áé¢üãÀzÀ°èzÁÝgÀÉAzÀÄ GvÀÛj¹zÀgÀÄ."
39. And even the defendant No.2(a)/DW.1 at page-10 of her cross-examination has also admitted that after repayment of the bank loan amount the defendant No.4 is in possession of the suit schedule property.
40. And further though the defendant No.4 has not lead the evidence of any witnesses with regard to the above said Will of Smt.Nanjamma i.e., Ex.D14 dated 19.11.2001, the same is not at all fatal to his case as the plaintiff himself at page-9 of the cross-examination of defendant No.4/DW.3 has interestingly made suggestions that suit item No.1 24 OS.No.3423/2005 property is not at all concerned with the above said Will of Smt.Nanjamma as below: "ªÉÄÃ¯É ºÉýzÀ £ÀAdªÀÄä£ÀªÀgÀ «¯ïUÀÆ zÁªÉ LlA £ÀA.1gÀ ¸ÀéwÛUÀÆ AiÀiÁªÀÅzÉà vÉgÀ£ÁzÀ ¸ÀA§AzÀs E®è CAzÀgÉ ¸Àj, which is rather fatal to the case of the plaintiff and other defendants because as per section 58 of the Indian Evidence Act the above admitted facts need not be further proved by the defendant No.4.
41. And even otherwise the plaintiff/PW.1 at page-11 & 12 of his cross-examination has only deposed his ignorance with regard to the above said Will of Smt.Nanjamma but he did not specifically denied the due execution and contents of the same as below "£À£Àß vÁ¬Ä £ÉÆAzÁ¬ÄvÀ «¯ï ªÀiÁrzÀ §UÉÎ £À£ÀUÉ UÉÆwÛ®è. D «¯ï£À°è £À£UÀ É zÁªÁ LlA £ÀA.2gÀ D¹ÛAiÀÄ°è 1 ªÀÄvÀÄÛ 2£Éà ªÀĺÀrAiÀÄ£ÀÄß £À£UÀ É PÉÆnÖzÁÝgÉAzÀgÉ £À£UÀ É UÉÆwÛ®è. zÁªÁ LlA £ÀA.2gÀ ¸ÀA¥ÀÇtð D¹Û FUÀ £À£Àß ºÉ¸Àj£À°èzÉ. ¸ÁQë ¥ÀÅ£BÀ zÁªÁ LlA £ÀA.2gÀ D¹ÛAiÀÄ SÁvÉ £À£Àß vÁ¬ÄAiÀÄ ºÉ¸jÀ £À°èzÉ JAzÀÄ ºÉüÀÄvÁÛgÉ. £À£Àß vÁ¬ÄAiÀÄ «¯ï£À ¥ÀæPÁgÀ £Á£ÀÄ LlA £ÀA.2gÀ D¹ÛAiÀÄ SÁvÉAiÀÄ£ÀÄß £À£Àß ºÉ¸ÀjUÉ ªÀiÁrPÉÆArzÉÝÃ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è."
42. And lastly though the defendant No.4 has not lead the evidence of any witnesses, the same is not at all fatal to 25 OS.No.3423/2005 his case as in a ruling of AIR 2012 Patna 163, it has been clearly held that "Hindu Law - Joint family property - Partition - Property purchased in the name of female member, who had no interest at all in joint family property or nucleus thereof during lifetime of her husband - Plaintiff claiming partition must pray for declaration that property was benamidar of co-owner coparcener or joint family - Why property was not purchased either in name of Karta or in name of 4 male members who were coparcener or co-owner, not pleaded - Even if property had been purchased by joint family it would be presumed that property was purchased for benefit of female member - Sufficient income of family would not raise presumption that property had been purchased out of joint family property - Evidence produced to prove that female member had sufficient money with her to purchase property in question and house was constructed thereof by her - Property was self acquired property of female member - Plaintiff not entitled to partition thereof".
43. So in view of the discussion made above I am of the opinion that since the plaintiff and so also the LRs of 26 OS.No.3423/2005 defendant No.1 to 3 have failed to prove failed to prove that suit schedule properties are their joint family properties and further failed to prove that the suit item No.1 property is purchased in the name of defendant No.1/Smt.Nanjamma through the joint earnings of plaintiff, his father and defendant No.2 and 3 and further failed to prove that suit item No.2 property is purchased in the name of defendant No.1/Smt.Nanjamma by the father of plaintiff namely Erappa with cogent material evidence and since the defendant No.4 and 6 have proved that the suit item No.1 property is the self acquired and absolute property of defendant No.1/Smt. Nanjamma and further proved that the defendant No.4 is a bonafide purchaser of suit item No.1 property by the above said defendant No.1/ Smt.Nanjamma and as such the same is binding on the plaintiffs and LRs of defendant No.1 to 3 and further proved that the said defendant No.1/Smt. Nanjamma has already bequeathed the suit item No.2 property through a registered Will dated 19.11.2001 in favour of her daughters namely Smt.Lakshmamma, Smt.E.Bhagya and plaintiff/Basavaraju and then the plaintiff and LRs of defendant No.1 to 3 are not at all entitled to any relief of partition and separate possession as claimed in the plaint and so also in their written statement and accordingly I have 27 OS.No.3423/2005 answered issue No.1, 3, 4 and additional issue No.1 in the negative and issue No.2 in the affirmative.
44. Issue No.5:- In view of the discussion made on issue No.1 to 4 and additional issue No1 and further holding issue No.1, 3, 4 and additional issue No.1 in the negative and issue No.2 in the affirmative, I proceed to pass the following order:-
ORDER The suit of the plaintiff for the relief of declaration, Partition and possession in respect of the suit schedule item No.1 and 2 properties is hereby dismissed.
And So also the counter claims of LRs. of defendant No.1 to 3 are hereby dismissed.
In view of the peculiar circumstances the parties are directed to bear their own costs.
Draw a decree accordingly.
(Dictated to the judgment writer on computer, corrected and then pronounced by me in the open court, on this the 13th day of July, 2018).
(R. Ravi), XVII Addl. City Civil & Sessions Judge, Bengaluru.28 OS.No.3423/2005
ANNEXURE List of witnesses examined for plaintiff:
P.W.1 S.E.Basavaraju List of documents exhibited for plaintiff:
Ex.P1to 3 3 Death Certificates
Ex.P4 Sale deed dated 25.4.1988
Ex.P5 Election I.D. card
Ex.P6 Aadhaar card
Ex.P7 Cumulative record
Ex.P8 Certified copy of Release Deed
dtd.4.12.2015
Ex.P9 Certified copy of order sheet in
OS.No.829/2009
Ex.P10 Certified copy of plaint
Ex.P111 Certified copy of sale deed dtd.2.12.1964
Ex.P12 Certified copy of Agreement dtd.4.6.1965
Ex.P13 & 14 2 Pass books
Ex.P15 Copy of driving license
Ex.P16 Electoral card
Ex.P17 Death certificate
Ex.P18 Marriage invitation card
List of witnesses examined for defendants:
DW.1 N.Rajesh DW.2 Padmavathi DW.3 Manjunath V.Shet
List of documents exhibited for defendants:
Ex.D1 Driving license
Ex.D2 to 4 Death certificates
29 OS.No.3423/2005
Ex.D5 Ration card
Ex.D6 & 7 Election I.D. cards
Ex.D8 & 9 Aadhaar cards
Ex.D10 Death certificate
Ex.D11 Copy of statement of account
Ex.D12 Certified copy of sale deed dtd.2.7.1988
Ex.D13 Certified copy of sale deed dtd.27..2005
Ex.D14 Certified copy of the Will dtd.19.11.2001
Ex.D14(a) Typed copy of Ex.D14
Ex.D15 to 20 Electricity bills and receipts Ex.D21 Tax paid receipt Ex.D22 Khata extract Ex.D23 Khata certificate Ex.D24 Tax paid receipt XVII Addl. City Civil & Sessions Judge, Bengaluru.Digitally signed by R RAVI DN: cn=R RAVI,ou=HIGH COURT
R RAVI OF KARNATAKA,o=GOVERNMENT
OF KARNATAKA,st=Karnataka,c=IN
Date: 2018.07.19 10:26:26 IST