Bangalore District Court
In Smt. Lokamba.D vs In 1) Smt.Leelavathi on 18 August, 2016
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 18th August 2016
PRESENT
SRI MUSTAFA HUSSAIN.S.A., B.A., LL.M.
XVIII Addl.City Civil Judge.
O.S.Nos.8480/2001 & 531/2002
Plaintiff in Smt. Lokamba.D.
OS.No.8480/2001 W/o Sambashivachari,
Aged about 48 years,
R/at In a portion of old No.45
New No.26, Subramanya Lane,
Bhashyam Road Cross,
Cottonpet (Aralepet),
B A N G A L O R E - 53.
[By Sri.K.K.T., Advocate]
/VS/
Defendants in 1) Smt.Leelavathi,
OS.No.8480/2001 W/o N.Krishnamurthy,
Aged about 50 years,
2. K.Srinivasalu,
S/o N.Krishnamurthy,
Aged about 36 years,
3. Prabhakara,
S/o N.Krishnamurthy,
Aged about 28 years,
4. Smt.Hemavathi,
D/o N.Krishnamurthy,
Aged about 32 years,
All are R/at in a portion of
Old no.5, New No.26,
Subramanya Lane,
Bhashyam Road Cross,
Cottonpet (Aralepet)
B A N G A L O R E - 53.
5.K.Ramamurthy,
S/o N.Krishnamurthy,
Aged about 34 years,
C/o Sri.E.Mohanachari,
No.176, Raghavendra Block,
Srinagar,
B A N G A L O R E - 50.
[By Sri.G.M.R.,Adv., of D1, 3 & 4,
Sri.J.M.Y., Adv., for D2, Sri.J.S.S.,
Adv., for D5]
Plaintiff in
OS.No.531/2002: D.Srinivaslu @ D.Srinivas,
Adopted son of E.Doresway @
Doreswamy Chari,
Major in age,
R/at 1st Floor, attached to Door No.26,
Subramanya Lane, Cottonpet(Aralepet)
B A N G A L O R E - 53.
[By Sri.G.N.Advocate]
/VS/
Defendants in 1. E.Doreswamy @ Doreswamy Achari,
OS.NO.531/2002 S/o Late Eswarachari,
Major in age,
R/at No.26, Ground Floor,
Subramanyam Lane,
Cottonpet (Aralepet)
B A N G A L O R E - 53.
2. Smt.D.Lokamba,
W/o Sambashivachari,
Major in age,
R/at In a portion of old Door No.5
New No.26, Subramanya Lane,
Cottonpet (Aralepet),
B A N G A L O R E - 53.
3. Smt. Leelavathi,
W/o N.Krishnamurthy,
Aged about 62 years,
R/at No.26, Ground Floor,
Subramanya Lane,
Cottonpet (Aralepet),
B A N G A L O R E - 53.
[By Sri.B.S.S. Adv. for D1 & 2
Sri.GM.R., Adv., for D3.]
Date of institution of OS.No.8480/2001 - 08.11.2001
suit OS.No.531/2002 - 22.01.2002
Nature of the Suit OS.No.8480/01 -Possession and
(suit on pronote, suit Mesne profits.
for declaration and
possession suit for OS.No.531/02 - Partition and
injunction,) etc. declaration.
Date of the OS.No.8480/01 - 24.3.2008
commencement of
recording of the OS.No.531/02 - 04.1.2011.
evidence.
Date on which the 18.08.2016
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: OS.8480/01 - 14 09 10
OS.531/02 - 14 06 26
(MUSTAFA HUSSAIN.S.A.)
XVIII Addl.City Civil Judge, Bangalore.
COMMON JUDGMENT
The plaintiff in OS.No.8480/2001 has filed this suit
against the defendants 1 to 5 for the relief of recovery of
possession of suit B schedule properties, mesne profits and
costs.
2. The plaintiff in OS.No.531/2002 has filed the suit
against the defendants 1 to 3 for the relief of partition and
separate possession of his half share in suit A, B & C
schedule properties or to declare that he is the owner of B
Schedule property as per partition list-cum-deed executed by
1st defendant dtd.26.12.1999 and to declare the gift deed
dtd.31.3.2000 executed by 1st defendant in favour of 2nd
defendant as null and void, as not binding on the him and for
costs.
3. Before adverting to other aspects it is necessary to
mention the suit in OS.No.8480/2001 was pending on the file
of learned CCH-32 and thereafter it was withdrawn and
transferred by virtue of the orders in Mis.No.951 /2008 to this
court. Subsequently the suit in OS.NNo.8480/2001 and
OS.NO.531/2002 were clubbed by this court vide orders
dtd.9.9.2009 for common trial and disposal. Thereafter
common evidence has been recorded in OS.NO.8480/2001.
4. The plaintiff in OS.No.8480/2001 is the 2nd defendant
in OS.NO.531/2002. The 2nd defendant in OS.No.8480/2001
is the plaintiff in OS.NO.531/2002. For the sake of
convenience the parties in both the suits are referred as per
their ranking in OS.NO.8480/2001.
5. The brief and relevant facts as alleged in the plaint
in OS.No.8480/2001 are as follows:
The plaintiff has alleged that she and 1st defendant are
the daughters of Sri.E.Doraiswamy and the said
E.Doraiswamy was the absolute owner of the property bearing
Old No.5, New No.26, situated at Subramanya lane, Bashayam
Road Cross, Cottonpet, consisting of a site measuring east-
west 24 feet, north - south 46 feet, with two buildings
consisting of ground floor, first floor and second floor which is
the suit A schedule property and herein after referred to as
suit A schedule property for the purpose of brevity and
convenience. It is further alleged that the said E.Doraiswamy
was a Goldsmith by profession and had sufficient income and
out of his earnings and with the financial support from the
grand mother of his wife purchased the suit A schedule
property as such it was his self acquired property.
6. It is further alleged that her father had a son who
died unmarried at young age and thereafter Doraiswamy
performed the marriages of plaintiff and 1st defendant.
7. It is further alleged that E.Doraiswamy gifted a sum
of Rs.2,14,351/- on 1.8.1997 from his personal savings and
he also persuaded his sister Smt.R.Pushpamma who was a
childless to bequeath her immovable properties in favour of
the 1st defendant. It is further alleged that as the
E.Doraiswamy had lost his son and hence compelled the
plaintiff and her husband to reside with him and they
respected his sentiments and took care of him without any
expectations.
8. It is further alleged that E.Doraiswamy out of
natural love and affection, gifted suit A schedule property
under a registered Gift Deed dtd. 31.3.2000 in favour of the
plaintiff which the plaintiff also accepted and thereafter got
katha of suit A schedule property transferred to her name.
9. The defendants are residing in a portion of suit A
schedule property which is separately shown as suit B
schedule property. It is alleged that the 1st defendant and her
husband were not financially sound hence, E.Doraiswamy
took care of their children ie., defendant No.2 to 4 by providing
schooling.
10. It is further alleged that after the gift of suit A
schedule property the plaintiff requested the defendants to
vacate and handover the possession of suit B schedule
property and though they promised to vacate but kept on
postponing on one or the other pretext. It is alleged that on
4.6.2001 the plaintiff once again demanded the defendants to
vacate the possession stating that the 5th defendant has
already shifted from suit B schedule property, but they
refused, hence she got issued legal notice to defendants 1 to 4.
11. It is further alleged that the defendants 1 to 4 in
their reply have claimed that suit A schedule property belongs
to the joint family and suit B schedule property was given to
1st defendant in a alleged oral settlement and the 2nd
defendant also claimed that he is the alleged adopted son of
E.Doraiswamy and that the suit B schedule property has
fallen to his share. It is alleged that the defendants have no
right, or interest over suit B schedule property and their
possession of suit B schedule property is illegal and hence
they are liable to vacate and handover the possession of suit B
schedule property and to pay mesne profits at the rate of
Rs.4,500/- per month from the date of suit till delivery of
vacant possession of suit B schedule property.
12. The defendants 1, 3 & 4 have filed their common
written statement and the defendant No.2 has filed his
separate written statement interalia contending as under:
The defendants have admitted their relationship with the
plaintiff. But the defendant No.1, 3 & 4 have denied that the
suit A schedule property is the absolute property of
E.Doraiswamy. They contends that the suit A schedule
property was purchased in the name of E.Doraiswamy in the
year 1947 when he was a minor and out of the joint family
funds and the sale proceeds of agricultural land situated at
Masanoor village of Gudiyatham District, Tamil Nadu was
utilized to a considerable extent for acquiring suit A schedule
property. They also contends that the suit is bad for non-
joinder of necessary parties. It is further contended that
reasonable comforts were provided to the 1st defendant by her
father and contends that the 1st defendant is living in suit B
schedule property for about 35 years to maintain the joint
family status.
13. It is further contended by defendant No.1,3 & 4 that
in the year 1997 and in lieu of advanced age of E.Doraiswamy
a family oral settlement was arrived amongst them wherein
the 1st defendant was designed to be the absolute owner of an
area measuring 24 X 16 feet out of suit A schedule property in
which she is presently residing and remaining portion of 24 X
30 feet was allotted to the share of plaintiff with a common
access available to both the portions. And the said division
was effected on the basis of factual possession. It is further
contended that as the portions allotted to the 1st defendant
was smaller and hence a sum of Rs.1,00,000/- was paid to her
for securing equality among the shares of plaintiff and 1st
defendant. The alleged gift of Rs.2,14,351/- is denied. The
defendants 1, 3 & 4 have also disputed the gift dated
31.3.2010 and the subsequent katha in the name of plaintiff
and have contended that the said gift deed is no enforceable.
14. The defendant No.2 in OS.No.8480/2001 has filed
his separate written statement resisting the suit of the plaintiff
and so also has filed his suit in OS.No.531/2002 interalia
contending as under:
The 2nd defendant has admitted the relationship between
the parties. But according to him, suit A schedule property
was originally owned by late Eshwarachari, the father of
E.Doraiswamy. It is further the case of the 2nd defendant that
said Eshwarachari borrowed loan of Rs.5000/- from one
K.V.Rangaiah on the security of suit A schedule property
through a conditional sale and within couple of months
Eshwarachari repaid entire loan amount and got the suit A
schedule property in the name of his son E.Doraiswmy. It is
further case of the 2nd defendant that Eshwarachari was
having another property bearing Door No.68 and out of the
said earnings of said house property he discharged the above
loan.
15. It is further case of the 2nd defendant that plaintiff
was married long back and at no point of time, she took care
of her father E.Doraiswamy. He contends that E.Doraiswamy
had one son and two daughters and the son died at the young
age as such, E.Doraiswamy took him in adoption in the year
1968 as per the customs and traditions prevailing in the
community. Thereafter E.Doraiswamy admitted him to school
by showing his name as father of 2nd defendant. It is further
contended by him that E.Doraiswamy also performed his
marriage and he looked after E.Doraiswamy till 1999 and
thereafter differences started in the family, as such
E.Doraiswamy executed a partition deed in his favour and
allotted suit B schedule property and agreed to execute
registered partition deed. It is further contended by him that
E.Doraiswamy had no absolute right over suit A schedule
property as such, the alleged gift deed dtd.31.3.2000 executed
by E.Doraiswamy in favour of plaintiff is null and void. It is
further contended by him that he has already filed his suit for
partition against E.Doraiswamy and his two daughters
claiming his share in the properties. The alleged permissive
possession of suit B schedule property is denied and
contended that unless the dispute between E.Doraiswamy and
himself is adjudicated, there is no question of vacating suit B
schedule property. The mesne profits at the rate of Rs.4,500/-
per month is also denied.
16. It is further contended that 2nd was adopted in the
year 1968 and he was residing along with E.Doraiswamy as a
members of joint family. It is also contended that now plaintiff
in collusion with E.Doraiswamy has concocted the gift deed
and he is in possession and enjoyment of suit B schedule
property by virtue of the partition list cum deed dtd.
26.12.1999. The 2nd defendant has further contended that
besides suit A & B schedule properties in OS.No.8480/2001,
he is also entitled for his half share in suit C schedule
property in OS.No.531/2002. Therefore on all these grounds,
2nd defendant has sought for dismissal of the suit in
OS.No.8480/2001 and to decree his suit in OS.No.531/2002.
17. The defendant No.1 & 2 in OS.No.531/2002 have
resisted the suit by filing their written statement and
additional written statement interalia contending as under:
The 1st defendant has denied that the suit A schedule
property is joint family property. According to him, he is the
absolute owner of suit A schedule property which he acquired
out of his own earnings from goldsmith profession. He admits
that Eshwarachari executed gift deed in favour of his sister
Pushpamma in the year 1971 in respect of property No.68.
According to him, his father was absolute owner of suit A
schedule property and sold the property for valuable
consideration of Rs.5,000/- on 31.7.1947 in favour of one
K.V.Rangaiah. He contends that thereafter on 24.9.1947 he
purchased the suit A schedule property from K.V.Rangaiah
and was in possession of suit A schedule property till
31.3.2000 when he gifted in favour of plaintiff. He specifically
contends that he acquired the suit A schedule property out of
his own income as such, it was his self acquired property. He
further contends that he also gifted a sum of Rs.2,14,351/- in
favour of his elder daughter Leelavathi on 1.8.1997 out of his
personal savings. He further contends that his elder daughter
was not financially sound and her husband had also neglected
his family. It is for that reason, he provided schooling to the
2nd defendant and other children of elder daughter and
performed their marriages. He denied the alleged adoption of
2nd defendant and contends that the adoption story is
concocted for the purpose of the suit. He admits that plaintiff
and her husband looked after him and only acted as a
guardian of 2nd defendant. He has denied the alleged partition
list cum deed dtd.26.12.1999 and contends that 2nd defendant
after his marriage was living along with his wife for about 4 - 5
years and thereafter 2nd defendant addicted to alcohol as such
differences started between the couple and his wife left him
and residing in her maternal house. He admits that 2nd
defendant in OS.No.8480/2001 is in permissive possession of
suit B schedule property.
18. In his additional written statement, he contends
that his relationship with his father was not cordial and that
his father purchased property No.68 by selling ancestral
property situated at Masanoor village, Tamil Nadu. He further
contends that he studied up to 2nd standard in Telugu
language and he do not know reading and writing of Kannada
and learnt to puts his signature in English. It is further
contended that 2nd defendant used to take money forcibly from
his pocket and even stolen gold and silver articles from his
locker and now he is 83 years old being looked after by
Plaintiff - Lokamba and her family.
19. It is further contended that he executed registered
Will dated 8.9.1980 bequeathing a portion of suit A schedule
property to his 2nd daughter - Lokamba and the remaining
portion in favour of 2nd defendant - Srinivas. And after he
came to know the illegal acts of 2nd defendant, he cancelled the
Will and executed another Will dtd.15.7.1981 bequeathing suit
A schedule property in the name of his wife Padmavathamma
and after her death his two daughters to get the property. He
further contends that his father gifted the property No.68 in
favour of his sister Pushpamma and the said Pushpamma
bequeathed the property No.68 in favour of his elder daughter
- Leelavathi and her son Srinivas. And after coming to know
bout the character of 2nd defendant, said Pushpamma also
cancelled her Will and executed fresh Will bequeathing entire
property in favour of Leelavathi. According to him, he made
Pushpamma to execute the Will in favour of Leelavathi and
thereafter he executed gift deed in favour of plaintiff and gifted
suit A schedule property and delivered possession to her. He
specifically contends that the 2nd defendant came in
possession of suit B schedule property only after his marriage.
20. The defendant No.3 was impleaded during the
pendency of the suit vide orders dtd. 9.9.2009 and she was
directed to file her written statement within 30 days but
subsequently she failed to file her written statement.
21. The 2nd defendant - Lokamba in O.S.No.531/2002
in her written statement has reiterated the allegations made
by her in her plaint in OS.No.8480/2001 and contends that
she is the absolute owner of suit A schedule property. And she
also contends that the suit filed by 2nd defendant is frivolous.
Therefore on all these grounds the defendants in
OS.No.531/2002 have sought for dismissal of the suit.
22. On the basis of the rival pleadings and contentions,
my learned predecessor has framed the following issues:
ISSUES IN OS.No.8480/2001:
1. Whether the plaintiff proves that she is the owner
of suit schedule B property?
2. Whether the 2nd defendant proves that
Doraiswamy had adopted him in the year 1968
as contended in para 16 of the written statement
of 2nd defendant and he is in possession of B
schedule property?
3. Whether plaintiff proves that defendants 1 to 4
are residing in a portion of B schedule property,
which has been permitted by Sri.Doraiswamy as
contended in para 5 of the plaint?
4. Whether plaintiff is entitled for mesne profits?
5. Whether plaintiff is entitled for the reliefs
sought?
6. What order or decree?
23. During the course of argument it was noticed that
Issue No.1 framed in OS.No.8480/2001 is only restricted to
suit item B schedule property. The plaintiff in the said suit
has alleged her title over suit A schedule property and suit B
schedule property is part of suit A schedule property.
Therefore said issue is recasted as under:
Recasted Issue No.1;
Whether the plaintiff proves that she is the owner
of suit A schedule property?
ISSUES IN OS.No.531/2002:
1. Whether the plaintiff proves that he is the
adopted son of 1st defendant?
2. Whether the plaintiff proves that the partial
partition of the suit schedule properties was
effected on 26.12.1999 and the parties were put
in separate possession of the respective shares
by metes and bounds?
3. Whether the plaintiff proves that the gift deed
executed by the 1st defendant in favour of the 2nd
defendant on 30.3.2000 in respect of the suit
schedule property is null and void?
4. Whether the plaintiff proves that he is entitled for
half share in the suit schedule property and
separate possession of the same by metes and
bounds?
5. Whether the 1st defendant proves that the suit
schedule property is his self acquired property?
6. Whether the 1st defendant proves that the
possession of the plaintiff in respect of plaint B
schedule property is permissive possession?
7. To what order or decree?
24. The plaintiff in OS.No.8480 & 1st defendant in
OS.No.531/2002 are examined themselves as PW1 & 2
respectively and got marked Ex.P1 to P22. Ex.P1 to P15, 21 &
22 were marked through PW1 and Ex.P16 to 19 were marked
through PW2 and closed their side. The defendant No.1 in
OS.No.8480/2001 and plaintiff in OS.No.531/2002 got
themselves examined as DW1 & 2 respectively and examined 3
witnesses as DW3 to 5, got marked Ex.D1 to D33 on their
behalf and closed their side.
25. The learned counsel for plaintiff in
OS.NO.8480/2001 as well as for defendant No.1 & 2 in
OS.No.531/2002 has filed written arguments. Similarly the
learned counsel for 2nd defendant in OS.No.531/2002 and the
plaintiff in OS.NO.8480/2001 has filed written arguments and
they also submitted their oral arguments.
26. During the course of arguments the learned counsel
for the plaintiff in OS.No.8480/2001 vehemently argued that
suit A schedule property was originally owned by
Eshwarachari, the father of E.Doraiswamy and that he sold
the suit A schedule property in favour of one K.V.Rangaiah in
the year 1947 and thereafter E.Doraiswamy purchased the
suit A schedule property in his name from aforesaid
K.V.Rangaiah under Ex.P2. It was further argued that
E.Doraiswamy was already engaged in goldsmith profession
and had sufficient earnings and so also was already married at
the time of purchase of suit A schedule property. It was
further argued that defendants have wrongly contended that
E.Doraiswamy was a minor as on the date of purchase of suit
A schedule property in his name. Much reliance was placed on
the defense taken by the contesting defendants as well as the
evidence of defendants in particular and argued that 2nd
defendant or other parties to the suit were not at all born as
on the date of purchase of suit A schedule property under
Ex.P2. It was further argued that DW1 & 2 in their evidence
have also deposed so many ignorances about the income of
E.Doraiswamy as on the date of purchase of suit A schedule
property. Much reliance was also placed on the evidence of
PW2 E.Doraiswamy and it was argued that PW2 in his
evidence has categorically spoken that suit A schedule
property was purchased by him out of his own earnings as
such it was his self acquired property. It was further argued
that Ex.P2 supports the case of the plaintiff about right of
E.Doraiswamy over suit A schedule property.
27. It was further argued that E.Doraiswamy had two
daughters and one son and said son died at younger age and
E.Doraiswamy also performed the marriages of his two
daughters and out of which elder daughter Leelavathi started
residing with her husband at Chittoor, Andhra Pradesh and
2nd daughter Lokamba along with her husband was staying
with E.Doraiswamy for looking after him. It was further argued
that husband of Leelavathi was addicted to bad habits as
such, neglected his family and hence E.Doraiswamy went and
took back his daughter Leelavathi and her children to
Bangalore and thereafter provided schooling, accommodation
and was also extending financial assistance. The alleged
adoption of 2nd defendant is denied and it was argued that as
father of 2nd defendant was not staying along with family, as
such, E.Doraiswamy in the capacity of guardian admitted him
in the school and not as a adoptive father. It was further
argued that 2nd defendant has not at all pleaded and proved
that the adoption took place as per rites and customs and that
he was given in adoption by his parents to E.Doraiswamy. It
was further argued that the other documents produced by the
plaintiff also establishes that there was no adoption of 2nd
defendant and that he was only under care and protection of
E.Doraiswamy. Much reliance is also placed on the evidence of
DW1, 2 & 4 and it was argued that none of them have spoken
about the alleged adoption ceremony.
28. It was further argued that 2nd defendant was staying
along with E.Doraiswamy and was addicted to bad habits
including stealing money and gold ornaments from him. The
alleged partition list cum deed is also denied. It was also
argued that E.Doraiswamy on his own Will and due to love
and affection and for the services rendered by his younger
daughter Lokamba, voluntarily executed the gift deed and put
the plaintiff Lokamba in possession of suit A schedule
property. It was further argued that other defendants are only
in permissive possession of suit B schedule property and they
are bound to vacate, hand over possession to the plaintiff. It
was further argued that E.Doraiswamy also gifted a sum of
Rs.2,14,351/- to his elder daughter Leelavathi out of his
personal savings and therefore as a father had made
arrangements of the properties amongst his daughters. It was
also argued that E.Doraiswamy pressurized his sister
Pushpamma to bequeath the property No.68 which was gifted
by her father in favour of Leelavathi. Therefore it was further
argued that the 2nd defendant has come up with a false story
of adoption and earlier partition, only to deprive the plaintiff of
her legitimate right over suit A schedule property.
29. The learned counsel for the defendant No.2 has filed
written arguments wherein it is stated that son of
E.Doraiswamy died admittedly as a bachelor at an young age
and thereafter E.Doraiswamy took 2nd defendant in adoption
and also admitted him in the school as adoptive father and
2nd defendant was residing along with E.Doraiswamy till 1999
as a member of joint family. It was further argued that DW2 &
4 in their evidence have also spoken about the factum of
adoption of 2nd defendant and the school records of 2nd
defendant reveals that E.Doraiswamy as adoptive father. It is
also argued that 2nd defendant took care of E.Doraiswamy in
the capacity of adopted son and there was no dispute between
them till 1999. It is further argued that suit A schedule
property was purchased by Eshwarachari in the year 1946
and thereafter he borrowed loan of Rs.5,000/- on conditional
sale of suit A schedule property in favour of K.V.Rangaiah and
within couple of months repaid entire loan amount and got
sale deed nominally registered in the name of E.Doraiswamy.
It is further argued that E.Doraiswamy was a minor as on that
day and he had no independent source of income and was
incapable to purchasing suit A schedule property. It was
further argued that E.Doraiswamy inherited family property
from his father and 2nd defendant being adopted son as well as
member of joint family enjoyed equal share along with
E.Doraiswamy in suit A schedule property. Therefore it was
argued that E.Doraiswamy had no independent right or title
over suit A schedule property so as to gift away the same in
favour of plaintiff and hence the gift deed is illegal and not
binding to the extent of the share of 2nd defendant. The theory
of permissive possession as put forth by the plaintiff is also
seriously disputed and it was argued that there was a family
arrangement under Ex.D33 in which suit B schedule property
was allotted to 2nd defendant and that the 2nd defendant is in
possession of suit B schedule property in his own right and
not with permission of E.Doraiswamy or his daughter
Lokamba. Much reliance is also placed in the evidence of
DW1, 3 & 5 and it is argued that DW3 & 5 being the
independent witnesses have also spoken about the family
arrangement under Ex.D33. It is further argued that
E.Doraiswamy has simply denied the adoption to deprive 2nd
defendant of his legitimate right in the family property.
30. The learned counsel for the defendants 1, 3 & 4 also
argued about the right of these defendants in suit A schedule
property, mainly stating that the property was inherited by
E.Doraiswamy from his father and that his daughter
Leelavathi is entitled for equal share in the said property. In
support of his arguments the learned counsel for 2nd
defendant has relied on the following decisions:
1. ILR 2008 KAR 2159 - Veerappa & others Vs. Smt.
Halavva & others of Karnataka High Court.
2. Smt.J.Yashoda Vs. Smt.K.Shobha Rani of
Hon'ble Supreme Court of India.
3. Civil Appeal No.4195 of 2008 in the case of
Renikuntla Rajamma (D) by Lrs., Vs.
K.Sarwanamma in Hon'ble Supreme Court of India.
31. I have heard the arguments, perused the written
arguments filed on behalf of the parties and other materials
placed on record. Having regards to the materials placed on
record and arguments heard, my findings on the above issues
are as under:
Issue No.1 in OS.No.8480/2001: In the affirmative
Issue No.2 in OS.No.8480/2001: In the negative
Issue No.3 in OS.No.8480/2001: In the affirmative
Issue No.4 in OS.No.8480/2001: Partly affirmative
Issue No.5 in OS.No.8480/2001: Partly affirmative
Issue No.6 in OS.No.8480/2001: As per final order,
Issue No.1 in OS.No.531/2002: In the negative
Issue No.2 in OS.No.531/2002: In the negative
Issue No.3 in OS.No.531/2002: In the negative
Issue No.4 in OS.No.531/2002: In the negative
Issue No.5 in OS.No.531/2002: In the affirmative
Issue No.6 in OS.No.531/2002: In the affirmative
Issue No.7 in OS.No.531/2002: As per final order,
for the following:
REASONS
32. Issue No.2 in OS.8480/2001 and Issue No.1 in
OS.NO.531/2002: As these issues are interlinked and have
direct bearing over other issues, hence they are taken up first
for discussion.
33. The 2nd defendant being the plaintiff in
OS.No.531/2002 has asserted that he is the adopted son of
E.Doraiswamy and the said adoption took place on 27.12.1968
as per Hindu rites and customs and since then he is residing
along with him in the capacity of adoptive son as well as
member of the joint family. Per contra, the plaintiff in
OS.NO.8480/2001 and in the capacity of 2nd defendant and
the 1st defendant E.Doraiswamy in OS.No.531/2002 in their
written statements have denied the alleged adoption of the 2nd
defendant and have specifically contended that 2nd defendant
is the grand son of E.Doraiswamy and that the father of 2nd
defendant was addicted to bad habits and started neglecting
his wife and children as such E.Doraiswamy brought back his
daughter and her children and was taking care of them by
providing schooling as well as extending financial support.
With these rival pleadings and contentions, parties have lead
oral as well as documentary evidences.
34. Plaintiff has got examined herself as PW1 and she
has sworn to affidavit by way of her chief examination which is
on par with the allegations made in the plaint and her written
statement. According to PW1, her father E.Doraiswamy
permitted 2nd defendant and his mother to stay separately in a
portion of suit A schedule property and she has also denied
the alleged adoption as set up by the 2nd defendant. In support
of her evidence PW1 has got marked various documents as per
Ex.P1 to P15, 21 & 22. Ex.P1 is the Gift deed dtd.31.3.2000,
Ex.P2 is the sale deed dtd. 31.7.1947, Ex.P3 is the sale deed,
Ex.P4 is the encumbrance certificate, Ex.P5 to 11 are the tax
paid receipts, Ex.P12 is the katha endorsement, Ex.P13 is the
office copy of legal notice, Ex.P14 is the reply notice, Ex.P15 is
another reply notice, Ex.P21 is the certified copy of sale deed
dtd.17.5.1948, Ex.P22 is the voter list of ward No.29 of
Chickpet, Constituency, Bangalore. The 1st defendant
E.Doraiswamy has got examined himself as PW2 and he has
sworn to affidavit by way of his chief examination wherein he
has corroborated the contentions taken by him in his written
statement. In support of his evidence PW2 has got marked
Ex.P16 to P19. Ex.P16 is the Will, Ex.P17 is the Will
dtd.9.2.1998, Ex.P18 is the certified copy of sale deed, Ex.P19
is the certified copy of sale deed dtd.8.9.1980. At this juncture
it is necessary to mention that Ex.P20 the wedding card of 2nd
defendant was got marked by confronting to him. There is no
effective cross examination directed to PW1 about the alleged
adoption set up by 2nd defendant.
35. In the cross examination directed to PW2, he
admits that his son died at young age of 16. But denies that
he took 2nd defendant in adoption and since then 2nd
defendant is living with him as a adopted son. He admits that
he got 2nd defendant admitted in the school, but denies that he
put his signature in the school records declaring himself as
father of 2nd defendant. An attempt is made to establish that
he performed the marriage of 2nd defendant in the capacity of
his father, but nothing worth is elicited from his mouth. But
PW2 has reiterated that he only attended the marriage. A
further attempt is made to establish that soon after the
marriage of 2nd defendant, he started residing with his wife
along with him, but he has denied the same and has
volunteered that he only permitted the 2nd defendant to stay
with him.
36. The 1st defendant in OS.No.8480/2001 as well as
3rd defendant in OS.No.531/2002 has got examined herself as
DW1 and this DW1 has sworn to affidavit by way of her chief
examination wherein she has corroborated the contention
taken by her in her written statement. But interestingly at
para 2 of her chief examination, she has stated that 2nd
defendant is the adopted son of her father. The cross
examination directed to DW1 is worth appreciating because
amongst other things, it is elicited from her mouth that her
father performed Dattakahoma ceremony after attaining the
age of 60 and according to her, adoption of her son took place
on the same occasion. It is brought on record that no separate
Dattakahoma ceremony took place. She is also unable to
speak about the preparation of adoption deed. At page 12 of
the cross examination she admits that her husband left her
about 13 years back and she also admits that her father
brought her son from Chittoor to Bangalore in order to provide
good education and he kept him in his house and provided
education. She further admits that E.Doraiswamy admitted
the 2nd defendant to school as her husband was not in
Bangalore. The relevant admission reads as under:
It is true that my father brought my son
from Chittoor to Bengaluru in order to
provide good education and he kept him
in his house. It is true that my father has
provided education to my son Srinivas. It
is true that my father got admitted my
son Srinivas to school as my husband
was not in Bengaluru.
37. The 2nd defendant in OS.No.8480/2001 and being
the plaintiff in OS.No.531/2002 has got examined himself as
DW2 and this DW2 has sworn to affidavit by way of his chief
examination wherein he has corroborated all the contentions
taken by him in his written statement as well as in his plaint
about the alleged adoption as well as his status as adopted
son of E.Doraiswamy. In support of his evidence DW2 has got
marked various documents at Ex.D1 to D33. Ex.D1 to 4 are
the encumbrance certificates, Ex.D5 is the certified copy of
sale deed dtd.31.4.1947, Ex.D6 to 8 are three marks cards,
Ex.D9 is the cumulative record, Ex.D10 is the transfer
certificate, Ex.D11 & 12 are the SSLC & PUC Marks cards,
Ex.D13 is the marks card of English Typewriting, Ex.D14 & 15
are the certificates issued by National College, Ex.D16 is the
passport, Ex.D17 is the show cause notice issued by Central
Excise, Tamil Nadu, Ex.D18 is the notice issued by
Superintendent of Central Excise, Thiruchy, Ex.D19 is the
order passed by Asst.Collector of customs, Thiruchy, Ex.D20
is the notice issued u/s.28 of Customs Act, Ex.D21 is the
reply notice given to Lokamba, Ex.D22 is the postal receipt,
Ex.D23 is the postal acknowledgement, Ex.D24 is the notice
issued by Lokamba, Ex.D25 is the reply notice issued by
Doraiswamy, Ex.D26 is the postal acknowledgment, Ex.D27 is
the postal receipt and UCP, Ex.D28 is the assessment register
extract, Ex.D29 & 30 are the legal notice copies, Ex.D31 is the
certified copy of Gift deed dtd.31.3.2000, Ex.D32 is four CDs.
Ex.D33 is the xerox copy of the partition list cum deed and
Ex.D33(b) is the signature of DW5.
38. The cross examination directed to DW2 is also
worth appreciating because amongst other things, it is elicited
from his mouth that whereabouts of his father is not known
for the last 13 years. At para 4 of the cross examination it is
brought on record that he is not aware that E.Doraiswamy has
shown him as the son of Leelavathy in Ex.P16. He pleads
ignorance that E.Doraiswamy studied in Telugu school at
Bengaluru and do not know reading and writing of Kannada.
He pleads ignorance about the pooja performed by
E.Doriaswamy after attaining the age of 60 years. At page 21
of the cross examination it is brought on record that
E.Doraiswamy also attended the marriage. At para 25 of the
cross examination he deposes that E.Doraiswamy produced
adoption deed at the time of his admission to the school. In
the same para he admits that he has not produced the copy of
the application form given to the school at the time of his
admission. At page 29 of the cross examination it is brought
on record that he is not in possession of his marriage
invitation card, but admits that the invitation card was printed
in Telugu and English languages. And according to him, his
father E.Doraiswamy got printed the card and that the
invitation card was confronted and marked as Ex.P20. He
admits that under Ex.P20, he is shown as eldest son of
N.Krishnamurthy and grandson of E,Doraiswamy. The
relevant admission reads as under:
It is true in Ex.P20 it is shown that I am
the eldest son of N.Krishnamurthy and
grand son of Doraiswamachari in both
English and Telugu Language
39. He also pleads ignorance that he is shown as son of
N.Krishnamurthy in the corporation records. At page 31 of the
cross examination he admits that his father was not in
Bangalore when E.Doraiswamy got admitted him in the
school. At page 32 of the cross examination he reiterates that
the adoption ceremony took place on 27.12.1968, but he is
unable to speak the persons who participated in the occasion
as well as the name of the archak who performed the
ceremony. It is brought on record the prohit wrote deed of
adoption and according to him, same is with E.Doraiswamy
which was signed by all the elders. Again he deposes that he
do not know who are the signatories to the adoption deed
stating that he was minor at that time. It is further brought on
record that the conversation recorded in CDs was during the
pendency of the suit. Though he admits that Lokamba and
her husband are staying with E.Doraiswamy, according to
him, he has not seen the voter list, ration card and other
documents wherein E.Doraiswamy is shown as staying with
his 2nd daughter and son in law. An attempt is made to
establish that E.Doraiswamy was unaware that he is shown as
father of 2nd defendant in the school records till the litigation
started which he has denied.
40. The 2nd defendant has also got examined DW4 in
support of his case and this DW4 has also sworn to affidavit
by way of his chief examination wherein, he has corroborated
the evidence of DW2 about the alleged adoption. In particular,
it is the evidence of DW4 that in the year 1968 E.Doraiswamy
took 2nd defendant in adoption as per Hindu rites and customs
in the presence of elders and well-wishers of the family and
performed ceremony Dattasweekarna Pooja which was also
reduced in writing by prohit and duly signed by
E.Doraiswamy. He has also corroborated the evidence of DW2
to the effect that E.Doraiswamy himself admitted DW2 to the
school as adopted father. The cross examination directed to
him is worth appreciating because at para 3 of the cross
examination it is elicited from his mouth that he did not
attend 60th year ceremony of E.Doraiswamy and according to
him his wife attended the said ceremony. He is unable to
speak when the said ceremony took place. He admits that he
was minor in the year 1968. At para 4 of the cross
examination he reiterates that adoption took place in 1968
and he came to know about the adoption deed subsequently.
This is all the oral and documentary evidence placed on record
by the parties with regard to the alleged adoption.
41. So far as the principles governing adoption are
concerned, the act of adoption has effect of removing adopted
son from his natural in to adoptive family and thereby most
materially and irrevocably affects his prospectus in life and as
the ceremony almost in voluntarily take place when the
adoptee is of tender years and unable to exercise any
discretion of his own in the matter, it allows only those who
have domain over the child have the power of giving in
adoption and the giving and receiving of a child in adoption
are absolutely necessary for a valid adoption. And they are
operative part of the ceremony being that part of it which
transfer the boy from one family to another. The physical act
of giving and taking must be proved and even if exception and
consent a deed of adoption. And the document must be free of
suspicion. The performance of rituals is also absolutely
necessary to the establishment of filial relation. And it is
therefore established that the filial relation of adopted son is
occasioned only by proper ceremony. It is also requirement of
a valid adoption that the natural father shall be asked by the
adoptive parents to give his son in adoption and the boy shall
be handed over. It is also settled precedent law that where the
act of giving and taking is lacking, adoption is invalid and the
burden is on the adopted son to prove the act of giving and
taking. The effect of adoption is that ties of the adopted child
in his family of birth are severed and replaced by those of the
adoptive family. It is also the settled precedent law that mere
proof of taking in adoption by the adoptive father with intend
to take the child in adoption will not be sufficient, there must
be giving of the child with the requisite intent also. As stated
supra an adoption results in changing the course of
succession, therefore it is necessary that the document should
be such that it is free from all suspicion and must be so
consistent and probable as to leave no occasion for doubting
its truth. With these principles in my mind let me consider
entire materials placed on record regarding adoption.
42. As could be seen from the materials placed on
record, defendant No.2 in his written statement as well as
plaint has asserted that he is the adopted son of
E.Doraiswamy and said adoption took place on 27.12.1968.
2nd defendant who is also examined as DW2 in his evidence
has also spoken to that effect. It is his case that he was aged 4
years at the time of adoption in the year 1968. He has also
pleaded that said adoption took place as per Hindu rites and
customs. Interestingly 2nd defendant nowhere has pleaded or
deposed about the kind of rituals and customs that were
followed at the time of adoption. There is no pleading on his
behalf about the act of giving and taking in adoption by
performing the adoption ceremony as recognized by law. DW2
has baldly pleaded that some customs and rituals were
followed at the time of alleged adoption, but same are neither
pleaded nor proved before the court in accordance with law.
Absolutely there is no evidence placed on record as to when
E.Doraiswamy approached his parents seeking him in
adoption and the willingness of his parents to give in adoption
and so also subsequent act of giving and taking in adoption.
Therefore the material ingredients which are essential for valid
adoption are missing in the material placed on record by 2nd
defendant.
43. But however DW2 in his evidence throughout
maintain that adoption ceremony took place on 27.12.1968
and since then he is adopted son of E.Doraiswamy. As stated
supra, DW2 in his cross examination has pleaded so many
ignorance about the persons who participated in the adoption
ceremony, archak who performed the ceremony and
subsequently was reduced in to writing as adoption deed.
DW2 has reiterated that adoption deed was prepared soon
after the ceremony and same is in possession of
E.Doraiswamy, but for the reasons best known to him, 2nd
defendant did not took any steps for securing the alleged
adoption deed from E.Doraiswamy. At this juncture if
evidence of DW4 is perused through he has corroborated the
evidence of DW2 about the alleged adoption, but according to
him he was also present in the adoption ceremony. But
interestingly in his cross examination he admits that he did
not attend 60th birth celebration of E.Doraiswamy and he
categorically admitted that he was a minor in the year 1968.
He deposes that his wife attended the said 60th year ceremony
of E.Doraiswamy. Admittedly this DW4 was aged 63 years as
on the date of his evidence on 9.11.2015. Therefore he must
be around 15 years of age when the alleged adoption ceremony
took place in the year 1968. But however he wants this court
to believe that he participated in the adoption ceremony which
is said to have been taken place in the house of E.Doraiswamy
and that DW2 was given and taken in adoption in his
presence. Admittedly he was aged 15 years as on that day.
Therefore his participation in the alleged adoption ceremony
appears to be make believe and does not inspire the
confidence of this court. At this juncture if the evidence of
DW1 is perused, she is admittedly the biological mother of
DW2 and she has also contested the suit in OS.No.8480/2001
by filing her written statement. And if the said written
statement filed by DW1 is perused, she has no where stated
that her son was given in adoption and so also about
performance of all rituals at the time of adoption ceremony.
But interestingly in her cross examination she deposed that
the adoption ceremony took place on the 60th birth
anniversary of E.Doraiswamy and she has also gone to the
extent of deposing that no separate Dattahoma was performed
in respect of alleged adoption. In this context if the evidence of
DW4 is perused he has spoken that his wife attended the 60th
birth anniversary of E.Doraiswamy and he did not attended it.
Therefore the evidence of DW1 plays a major role because she
being biological mother of 2nd defendant has spoken about
adoption ceremony on the eve of 60th birth ceremony of
E.Doraiswamy. Therefore her evidence gives room for
suspicion about the evidence given by DW4. Therefore the
evidence of DW4 cannot be accepted about the alleged
adoption of 2nd defendant by E.Doraiswamy. This part it is also
pertinent to note that according to DW2, the adoption took
place on 27.12.1968. DW1 being his biological mother has
spoken that the said adoption was coincided with 60th birth
anniversary of her father E.Doraiswamy. At this juncture, if
the evidence of PW2 is perused, this PW2 was aged 83 years
as on 16.4.2008 when his evidence was recorded before court.
Therefore his 60th birth anniversary must have been celebrated
about 23 years prior to his date of evidence before the court,
which also presupposes that the 60th birth anniversary must
have taken place some where in 1995. And this important
aspect also gives room for suspicion about the alleged
adoption as stated by 2nd defendant. Because DW2 has come
up with a definite case that his adoption took place on
27.12.1968 when perhaps E.Doraiswamy was aged around 37
years. At this juncture, it is necessary to mention that DW2
was born on 1.7.1964 as per the date of birth in his TC,
Cumulative Record and Marks Card produced at Ex.D9 to 12.
Therefore this DW2 must have been 31 years of age in the year
1995 when 60th birth anniversary of E.Doraiswamy took place.
But however DW4 throughout asserts that his adoption taken
place on 27.12.1968. But the evidence of his own biological
mother goes against the case set up by 2nd defendant and
when actually the adoption took place itself has become
doubtful, inview of the contradictory statement of DW1 & 2.
Therefore the theory of adoption set up by 2nd defendant is
clouded with suspicion.
44. But DW2 has also produced various documents to
establish that he is the adopted son of E.Doraiswamy. Much
reliance is placed on the document at Ex.D6 to 20. It was
vehemently argued on his behalf that in all these documents,
DW2 is shown as son of E.Doraiswamy. But on perusal of
Ex.D6 to 8, D14 & 15 it is noticed that the name of 2nd
defendant is shown as D.Srinivaslu but no where father name
is shown as E.Doraiswamy. Therefore these documents at
Ex.D6 to 8, 14 & 15 does not help the case of 2nd defendant.
Much reliance is also placed on Ex.D9 to 13 and on perusal of
these Ex.D9 to 13 it is noticed that the 2nd defendant is shown
as son of E.Doraiswamy. It is the case of 2nd defendant that
soon after adoption, E.Doraiswamy admitted him to the school
as an adoptive father. In the written argument filed on behalf
of the 2nd defendant it is vehemently canvassed that these
documents itself establish the factum of the adoption of 2nd
defendant by E.Doraiswamy. But according to PW2
E.Doraiswamy, he performed the marriage of his elder
daughter Leelavathi who started residing with her husband at
Chittoor in Andhra Pradesh and subsequently he learnt that
his son in law is not taking care of his wife and children as
such he went and brought her to Bangalore and started taking
care of his elder daughter Leelavathi as well as DW2 Srinivas.
He has also deposed that he put DW2 in school only when his
biological father was not in Bangalore. At this juncture if the
evidence of DW1 is perused she being the biological mother of
this 2nd defendant has also spoken in her cross examination
that her father admitted the 2nd defendant to the school when
her husband was not in Bangalore. PW2 has spoken that he
studied up to 2nd standard and he do not know reading and
writing of Kannada. Therefore he has pleaded ignorance about
the entries made in Ex.D9 to 13 wherein he is shown as father
of 2nd defendant. DW2 in his cross examination has also
pleaded ignorance when it was suggested to him that
E.Doraiswamy was not unaware of reading and writing
Kannada. Therefore the ignorance on the part of 2nd defendant
not only gives room for suspicion about his case but also
probabilises the case of PW2. The fact that father of DW2 was
not taking care of the family is concerned same is also
admitted by DW1. Therefore the evidence of PW2 that he being
the grand father started taking care of his elder daughter as
well as her children appears to be more probable than the case
set up by 2nd defendant. PW2 in his evidence has spoken that
he only acted as a guardian, when he first admitted DW2 to
the school And in the cross examination directed to him,
nothing worth is elicited from his mouth on this aspect to
establish that PW2 acted only as a adoptive father and not as
a guardian. So for as the entries made in Ex.D9 to 13 are
concerned, same are seriously challenged on behalf of PW2
stating that he was only intended as a guardian. When once
the entry is made at initial stage same will continue through
out the education carrier and the said entry will remain
unchanged so long as it is not get rectified. Therefore taking
advantage of entries in Ex.D9 to 13, 2nd defendant wants this
court to believe that the entries made at the instance of
E.Doraiswamy and in the capacity of adoptive father. Now the
question remains before this court is whether the entries made
in Ex.D9 to 13 showing E.Doraiswamy as father of 2nd
defendant are sufficient to hold that he was an adoptive father.
Admittedly the school authorities are not examined before
court to prove the genuineness of these entries. As stated
supra DW2 for the best reason known to him, has also not got
examined his mother as a witness to establish that
E.Doraiswamy is adoptive father and in that capacity,
admitted to the school. In this connection the Hon'ble
Division Bench of our Hon'ble High Court in the decision
reported in 1977(1) KLJ 206 was pleased to held that in the
absence of testimony by some witness competent to speak to
matters either as to knowledge of relationship or source of
information of which recitals came to be incorporated in the
school records, recitals themselves cannot be treated as
substantial evidence and not admissible to prove the paternity
of a child. The principle laid down in the above authority are
also amply applicable to the case on hand, because DW2 has
very much relied on the recitals of Ex.D9 to 13 in proof of his
relationship as adoptive son of E.Doraiswamy. Therefore
inview of law laid down by our Hon'ble High Court, the entries
made in these documents cannot be considered as proof of his
adoption.
45. The 2nd defendant has also relied on Ex.D16 which
is a passport wherein the name of E.Doraiswamy is shown as
his father and the name of natural father is also shown in the
column relating to the particulars of the relatives and friends
to be intimated in the event of death or accident. Much
reliance was also placed on this Ex.D16. The entries in Ex.D16
might have been entered as per the instructions of 2nd
defendant. Therefore these entries in Ex.D16 also cannot be
accepted about his relationship with E.Doraiswamy as
adoptive father. Similarly Ex.D17 to 19 are the letters and
proceedings before customs authorities wherein the name of
father of DW2 is shown as E.Doraiswamy and these entries
under these documents also cannot be held as substantial
evidence in support of the defense taken by 2nd defendant.
Therefore the entries in Ex.D16 to 20 also do not inspire the
confidence of this court.
46. The 2nd defendant has also got marked Ex.D29 & 30
copies of legal notices exchanged between himself and his wife.
It is an admitted fact that the relationship between 2nd
defendant and his wife was not cordial as such she left the
company of 2nd defendant and started residing in her maternal
house and it is only in that back ground there were exchange
of notices between DW2 and his wife. In Ex.D29, DW2 has
called upon his wife Sridevi to come and join in his company.
Ex.D30 is the reply of his wife wherein at para 2 it is stated as
under :
Your client is depending on his grand
father E.Doraiswamy. His grand father is
also not tolerating his activities after
taking drink. He instructed his grand son
ie., your client to life separately along
with his wife in his upstairs, since 6
months.
47. The perusal of the above statement made by the
wife of 2nd defendant in above reply notice reveals that she
identified her husband as grand son of E.Doraiswamy and not
as a adoptive son. This document got marked by 2nd defendant
goes against his own case wherein his own wife has recognized
him as grand son of E.Doraiswamy.
48. But however the 2nd defendant has very much relied
onEx.D33 which is partition list cum deed wherein he is
shown as sonof E.Doraiswamy and at page 2 there is a recital
to the effect of adoption. At this juncture it is necessary to
mention that this Ex.D33 is got marked by DW2 for proving
his adoption as well as family settlement between himself and
E.Doraiswamy. If the contents of this Ex.D33 perused though
there is a reference about the alleged adoption of DW2, but
interestingly it is also recited as under:
The first party brought up the second
party by giving good education, as such
the second party become the adopted son
of the first party and continuously reside
with the first party as a member of joint
family.
49. The perusal of the above recital reveals that the first
part ie., E.Doraiswamy brought up 2nd party ie., DW2 by giving
good education as such 2nd party became the adoptive son of
first party and continuously resided with him as a member of
joint family. Therefore this important recital also reveals that
DW2 is claiming himself as adopted son of E.Doraiswamy just
because E.Doraiswamy provided him with good education and
brought up him in his family. Therefore this recital also goes
against the defense taken by 2nd defendant about the alleged
adoption. Therefore entire materials placed on record by the
2nd defendant gives room for suspicion about his adoption.
Hence I have no hesitation to hold that DW2 has failed to
discharge the initial burden by producing cogent and
convincing evidence before court about the alleged adoption.
Therefore onus never shifts on E.Doraiswamy to disprove the
adoption. But however PW2 E.Doraiswamy in his evidence
has throughout denied the alleged adoption and as stated
supra there is nothing worth elicited from his mouth. Further
PW2 has also got marked a registered Will dtd. 15.7.1991 as
per Ex.P16, wherein he bequeathed his property in favour of
his wife Smt.Padmavathamma with a stipulation that she shall
have life interest over suit A schedule property. Further life
interest was also created in favour of elder daughter Leelvathi
who is none other than biological mother of DW2. At page 5 of
Ex.P16 it is also stated that after the death of Leelavathi her
first son Srinivas to take entire property. No doubt this Ex.P16
was subsequently revoked by PW2 but the recitals under
Ex.P16 came at an undisputed point of time when
E.Doraiswamy himself has referred DW2 as son of Leelavathi
and not as his adoptive son. At this juncture if the written
statement as well as the plaint of DW2 is perused, he himself
has pleaded that the dispute was started in the family only in
the year 1999.That means there was no dispute as on
15.7.1991 when Ex.P16 came in to existence. If at all DW2
was really adopted son of E.Doraiswamy, he should have
referred DW2 as adopted son and not as son of elder daughter
Leelavathi. At this juncture if the evidence of DW2 is perused
he has pleaded ignorance when it was suggested to him that
under Ex.P16 he was shown as son of Leelavathi and not as
adopted son of E.Doraiswamy. And this ignorance on the part
of DW2 also gives room for suspicion about his bonafides.
50. PW2 E.Doraiswamy has also got marked Ex.P20
which is marriage invitation card of DW2 and as stated supra
this marriage invitation card was confronted and marked
through DW2. In this context, if the evidence of DW2 is
perused, according to him the marriage invitation card was
got printed in Telugu and English Language which is also
borne out by Ex.P20. Surprisingly under Ex.P20, DW2 is
shown as son of N.Krishnamurthy ie., his biological father and
not as a adopted son of E.Doraiswamy. But on the contrary
this DW2 is shown as grand son of E.Doraiswamy. The
marriage of DW2 took place on 5.11.1989 when admittedly
there was no dispute in the family as per the statement of
DW2 himself. It is the evidence of DW2 that he studied up to
B.Sc., that means he is not uneducated and why he did not
objected for showing the name of his biological father as his
father in Ex.P20 is not made clear. DW2 though has spoken
that E.Doraiswamy performed his marriage and even has got
marked 4 CDs relating to the marriage as per Ex.D32, but
according to PW2 he only attended the said marriage.
Therefore even accepting that PW2 was present in the
marriage as admitted by him, it cannot be held that he was
present in the capacity of adoptive father of DW2. Therefore
this Ex.P20 is material document which totally goes against
the case set up by 2nd defendant about his alleged adoption.
And in the facts and circumstances, this Ex.P20 falsifies the
case put forth by DW2.
51. Apart from all these things it is very much
necessary to mention here that according to DW2 he was only
aged 4 years at the time of adoption. It is an undisputed fact
that his biological father had left the family and his
whereabouts are not known. DW1 Leelavathi is the biological
mother of DW2. And she is the best and competent person to
speak about the alleged adoption of DW2 in favour of her
father. But in her written statement filed in OS.8480/2001
she has not pleaded that DW2 was given in adoption by
performing all rites and customs and so also about the deed of
adoption as spoken by DW2. And for the reasons best known
to her she has not chosen to file her written statement in
OS.No.531/2002 wherein alleged adoption of his son is in
stake. Therefore DW1 being the natural mother has chosen to
remain silent on these material aspects and she has not at all
corroborated the version of DW2 about so called adoption on
27.12.1968. DW2 for the best reasons known to him has not
chosen to examine his own mother or cross examine her to
establish his adoption. Therefore her evidence on this
important aspect would have thrown light about the veracity of
DW2. But DW1 only in her cross examination has spoken that
the said adoption taken place when her father celebrated 60th
birth anniversary. If this statement of DW1 is accepted then
entire case put forth by DW2 becomes doubtful because the
said 60th birth anniversary might have celebrated somewhere
in the year 1995 and not in 1968 as contended by DW2.
Therefore entire material placed on record probabilises the
case put forth by E.Doraiswamy than the case of DW2. In the
considered opinion of this court, DW2 has utterly failed to
prove his adoption as contended by him.
52. DW2 has contended that he is in possession of suit
B schedule property in the capacity of adoptive son.
Admittedly plaintiff has also filed a suit for recovery of
possession, therefore there is no dispute between the parties
about possession of suit B schedule property by DW2.
Therefore considering the materials placed on record, I have
no hesitation to hold that DW2 has utterly failed to prove the
adoption. Hence I record my findings on above issues in the
Negative.
53. Issue No.1 in OS.8480/2001 and Issue No.3 & 5 in
OS.NO.531/2002: The plaintiff in OS.No.8480/2001 has
asserted that suit A schedule property is the self acquired
property of her father who gifted her under a registered Gift
Deed dtd. 31.3.2000 and ever since from the date of gift she is
the owner of suit A schedule property and paying taxes to the
Government. Per contra DW2 in his suit has come up with a
specific case that the gift deed dtd. 31.3.2000 in respect of suit
A schedule property is null and void. The 1st defendant -
E.Doraiswamy has also come up with a specific defense
stating that suit A schedule property was his self acquired
property and that he voluntarily gifted suit A schedule
property in favour of younger daughter Lokamba. The plaintiff
in order to prove her title over suit A schedule property has got
examined herself as PW1 and this PW1 has sworn to affidavit
by way of chief examination which is on par with the
allegations made in the plaint about the alleged title over suit
A schedule property. In particular it is the evidence of PW1
that her grand father originally purchased suit A schedule
property and thereafter sold in favour of one K.V.Rangaiah
under registered sale deed dtd. 31.7.1947 and subsequently
her father purchased the suit A schedule property under
registered sale deed from K.V.Rangaiah. It is also her evidence
that her father E.Doraiswamy was engaged in Goldsmith
profession and had sufficient earnings at his disposal and out
of which he has also gifted a sum of Rs.2,14,351/- in favour of
his elder daughter on 1.8.1997. In support of her evidence,
PW1 has also got marked original gift deed as per Ex.P1 and
the original sale deed dtd. 31.7.1947 in which her father
E.Doraiswamy purchased suit A schedule property from
K.V.Rangaiah as per Ex.P2 and so also sale deed executed by
her grand father Eshwarachari in favour of K.V.Rangaiah as
per Ex.P3. It is also the evidence of PW1 that she accepted the
gift and subsequently her name was also entered in
Encumbrance Certificate as per Ex.P4. PW1 has got marked
various tax paid receipts as per Ex.P5, 6 to 12 wherein she is
shown to have paid taxes to the Government. In the cross
examination directed to her, she reiterates that her father
E.Doraiswamy was aged 23 years at the time of purchase of
suit A schedule property and according to her E.Doraiswamy
got separated from his father. She further deposed that
E.Doraiswamy purchased suit A schedule property after his
marriage. An attempt is made to establish that she has got
concocted Ex.P1 but nothing worth is elicited from her mouth.
54. PW2 E.Doraiswamy has also sworn to an affidavit
by way of his chief examination wherein he has corroborated
the contentions taken by him in his written statement, stating
that suit A schedule property is his self acquired property. In
his further chief examination by way of affidavit he has spoken
about the Wills executed by him earlier to the execution of Gift
Deed. In support of his evidence PW2 has got marked
registered Will as per Ex.P16 & 17 and Certified copy of the
gift deed executed by his sister Pushpamma as per Ex.P18 and
the certified copy of the Will as per Ex.P19. In the cross
examination directed to him, he reiterates that he executed gift
deed in favour of his daughter and so also about its
registration on the same day. An attempt is made to establish
that he did not come to the office of the lawyer for preparation
of Ex.P1 and that he was not at all willing to gift the property
in favour of his younger daughter which he has denied. At
para 10 of the cross examination an attempt is made to
establish that the property was originally belongs to his father
as such he has no authority to execute gift deed which he has
also denied. And has further volunteered that he acquired suit
A schedule property from his own funds and he has got every
right to gift the property to any person whom he wishes. At
page 9 of the cross examination it is brought on record that
his father sold the property at Gudiyatham and purchased
suit A schedule property in the year 1946 along with one more
property bearing D.No.68. It is further brought on record that
he has not shown the occupation of the tenant in suit A
schedule property in Ex.P1.
55. DW1 - 1st defendant in OS.No.8480/2001 has also
sworn to affidavit by way her chief examination wherein she
has corroborated the contention taken by her in her written
statement. In particular it is the evidence of DW1 that her
father E.Doraiswamy was minor when suit A schedule
property was purchased by her grand father in the year 1946
and that her father had no source of income to purchase suit
A schedule property. She has also spoken that her grand
father had borrowed loan of Rs.5000/- from one K.V.Rangaiah
on the security of suit property and subsequently he repaid
the amount from the joint family assets in the name of her
father E.Doraiswamy. It is also her evidence that her father
was aged 73 years during the year 2000 and had no sound
mind and understanding as such said gift deed is forcibly
obtained by PW1 in her favour. The cross examination
directed to DW1 is worth appreciating because in the first para
of the cross examination it is brought on record that the
marriage of her father took place in the year 1947 and he was
aged around 20 -21 years at the time of marriage. And
subsequently she has gone to the extent of saying that her
father was aged about 23-24 years. She pleads ignorance
about the acquisition of suit property in the year 1947 and it
is brought on record that she was not at all born in the year
1947 as such, she do not know who paid the sale
consideration to purchase suit A schedule property. The
relevant admission reads as under:
I do not know whether the suit schedule
properties were purchased in the year
1947. It is true to suggest that in the year
1947 I was not born and therefore I do not
know who had paid the sale consideration
to purchase the suit schedule properties.
56. It is further brought on record that her father was
getting orders and he was doing his work as goldsmith and
she has pleaded ignorance about the income of her father. It
is further brought on record that she came to know about the
Wills executed by her father in favour of herself, plaintiff and
her mother. She admits that on the basis of the said Will she
is claiming right over suit B schedule property. The relevant
admission reads as under :
It is true to suggest that on the basis of
said Will in contended that A schedule
property belong to the plaintiff and I am
the owner of B schedule property.
57. She has also pleaded ignorance about subsequent
cancellation of Will by her father and the execution of gift deed
in favour of plaintiff. At para 5 of the cross examination she
admits that her grand father Eshwarachari had purchased
property No.68 which he had gifted in favour of his daughter
Pushpamma. She admits that Pushpamma had no issues and
that Pushpamma had executed will in her favour in respect of
property No.68 and she died in the year 2012. At para 9 of the
cross examination, she admits that on 7.8.1997 her father
gave Rs.2,14,321/- as a gift and it is brought on record that
she has not filed any suit challenging Ex.P1. In her further
cross examination dtd. 24.9.2013 she admits that her father
E.Doraiswamy purchased suit A schedule property in the year
1947. At page 10 of the cross examination it is brought on
record that she has not gone through the recitals of Ex.P3 sale
deed executed by her grand father in favour of K.V.Rangaiah
on 31.7.1947. She admits that there is a recital in Ex.P3 about
the loan borrowed but reiterates that her grand father repaid
the loan and purchased suit A schedule property. She also
admits that plaintiff was got married in the year 1968 and
since then she is residing along with her father
E.Doraiswamy.
58. The 2nd defendant is also examined as DW2 and this
DW2 in his evidence has corroborated the contention taken by
him in his written statement as well as in the plaint stating
that suit A schedule property was the ancestral property and it
was nominally acquired in the name of E.Doraiswamy by his
grand father Eshwarachari. It is his evidence that by virtue of
the adoption, he is the member of joint family along with
E.Doraiswamy and he has got equal right over suit A schedule
property. He has challenged the authority of E.Doraiswamy to
execute gift deed in favour of plaintiff - Lokamba and has
further stated that the said gift deed is null and void and is
not binding on him. In support of his evidence DW2 has got
marked encumbrance certificates as per Ex.D1 to D4, Certified
copy of sale deed dtd.31.4.1947 as per Ex.D5, copies of legal
notices as per Ex.D29 & 30.
59. In the cross examination directed to him, it is
elicited from his mouth that he has gone through the contents
of sale deed dtd.31.7.1947 as per Ex.D5 and according to him
Eshwarachari did not sold suit A schedule property under
Ex.D5. He is unable to speak that Eshwarachari purchased
the property No.68 by selling his property situated at
Gudiyatham, Tamil Nadu and admits that Eshwarachari gifted
the property No.68 in favour of his daughter Pushpamma. He
pleads ignorance about bequeath made by Pushpamma in
favour of his mother under a Will. At para 2 of the cross
examination, it is brought on record that in the sale deed
executed by Eshwarachari in favour of K.V.Rangaiah, property
in question was shown as his self acquired property. At para 3
of the cross examination it is brought on record that he was
born on 1.7.1964 and admits that he is not aware about the
transaction that took place in the year 1947. He is also
unable to speak the avocation of E.Doraiswamy. At page 24 of
the cross examination, it is elicited form his mouth that
K.V.Rangaiah had not executed any deed of reconveyance in
favour of Eshwarachari. And according to him, he came to
know about the said transaction from E.Doraiswamy and his
wife Padmavathamma. This is all the evidence placed on
record by the parties on these issues.
60. Before adverting to the other aspects, it is necessary
to understand the principles regarding presumption of
jointness in Hindu family. The normal state of every Hindu
family is joint. Presumably, every such family is joint in food,
worship and estate. In the absence of proof of division, such is
the legal presumption. But however, presumption of jointness
is not an absolute one and it may be displaced by direct
evidence of prior partition. There is no presumption that a
family because it is joint, possesses joint family property. The
burden of proving that any particular property is a joint family
property is on the first instance upon the person who claims it
as a coparcenary property. Where possession of a nucleus of
joint family property is proved or admitted, an acquisition
made by a member of family is presumed to be a joint family
property. Unless and until adequate nucleus is shown, onus
is not on the acquirer to prove that the property standing in
his name was purchased from joint family funds. If
possession of adequate nucleus is shown, onus shifts on to
the person who claims property as self acquisition,
affirmatively to make out that the property was acquired
without any aid from the joint family estate. With these
principles in my mind, let me consider the entire materials
placed on record.
61. As could be seen from the materials placed on
record, the plaintiff asserts that suit A schedule property was
the self acquired property of E.Doraiswamy and on that basis
claims her absolute title under Ex.P1. E.Doraiswamy in his
written statement has also come up with a specific defense
that he purchased suit A schedule property out of his own
earnings and therefore it was his self acquired property. But
DW2 and other defendants in OS.No.8480/2001 have
contended that it is a joint family property. Therefore in view of
the above pleadings of the parties it is necessary to first
adjudicate the dispute regarding the suit A schedule property
as joint family property.
62. Before adverting to the other aspects it is necessary
to mention some of the admitted facts. It is an admitted fact
that originally suit A schedule property was purchased by
Eshwarachari. It is also an admitted fact that Eshwarachari
sold the suit property under Ex.P3 in favour of K.V.Rangaiah.
The fact that subsequently E.Doraiswamy purchased the suit
A schedule property under Ex.P2 is concerned there is no
dispute. But the entire dispute lingering between the parties is
to the effect that the sale deed in the name of E.Doraiswamy
was a nominal one and he was minor at that time and hence it
is joint family property.
63. The plaintiff asserts that the suit A schedule
property is the self acquired property of her father
E.Doraiswamy and she has also spoken to that effect in her
evidence as PW1. In the cross examination directed to her an
attempt is made to establish that the suit A schedule property
was the joint family property but nothing worth is elicited from
her mouth. PW1 in support of her oral evidence has also got
marked original sale deed as per Ex.P3 under which suit A
schedule property was sold by Eshwarachari in favour of
K.V.Rangaiah. On perusal of this Ex.P3 it is noticed that
Eshwarachari had borrowed amount from K.V.Rangaiah on
different occasions and in order to repay the said amount, he
sold suit A schedule property for a consideration of Rs.5,000/-
in favour of K.V.Rangaiah. Interestingly there is no recital in
Ex.P3 to the effect that it is a nominal sale deed executed as a
security for a loan transaction or that it is a conditional sale,
with a stipulation that K.V.Rangaiah shall reconvey the
property after receiving the amount. No such recitals are
found in Ex.P3. PW1 has also got marked the original sale
deed as per Ex.P2 in which E.Doraiswamy purchased suit A
schedule property from K.V.Rangaiah and under this
document also there is no recital to the effect that the sale
consideration amount was paid by his father Eshwarachari
and the sale deed is nominally registered in the name of
E.Doraiswamy. At this juncture if the evidence of PW2
E.Doraiswamy is perused, he in his evidence has throughout
maintains that suit A schedule property was his self acquired
property and that he purchased out of his own earnings as a
goldsmith. The fact that E.Doraiswamy was a goldsmith is
concerned, same is not in dispute. But however in the cross
examination directed to PW2 an attempt is made to establish
that this PW2 was not having independent earnings and
therefore his father Eshwarachari purchased suit A schedule
property nominally in his name by paying entire consideration
amount. But nothing worth is elicited from his mouth and in
fact PW2 has stood to the test of cross examination.
64. But however DW1 being the elder daughter of
E.Doraiswamy in her written statement has contended that it
is her joint family property. At this juncture if written
statement of DW1 is perused, she has also taken a defense
that her father E.Doraiswamy was a minor as on the date of
purchase of suit A schedule property under Ex.P2. Even
similar assertion is made by her in her chief examination as
DW1. But in the cross examination directed to her, she
categorically admitted that her father E.Doraiswamy was aged
about 23 years at the time of purchase of suit A schedule
property and even she has gone to the extent of admitting that
her father was already married at that time. Therefore these
admissions of DW1 falsifies her pleadings to the effect that
E.Doraiswamy was a minor as on the date of purchase of suit
A schedule property under Ex.P2. Interestingly DW1 In her
evidence has also spoken that she is claiming suit A schedule
property as a joint family property on the basis of the Will
under Ex.P16 in which right was created in her favour.
Therefore this part of the evidence of DW1 itself establishes
that she herself is not sure about the nature of suit A schedule
property as a joint family property. Admittedly Ex.P16 is a
registered Will and it has been revoked by E.Doraiswamy and
hence no value should be attached to the document. Therefore
the evidence of DW1 that on the basis of Ex.P16, she claim
right over suit A schedule property cannot be accepted.
65. This apart it is pertinent to note that DW2 the 2nd
defendant in his written statement as well as in his plaint has
also asserted that suit A schedule property is joint family
property of himself and E.Doraiswamy. Even in his evidence
he has also spoken to that effect and it is also his evidence
that there was a family settlement in which E.Doraiswamy
allotted suit B schedule property in his favour and a document
was prepared under Ex.D33. He has further stated that
E.Doraiswamy agreed to execute registered partition deed
subsequently in his favour. In order to prove the execution of
Ex.D33, DW2 has also got examined two witnesses as DW3 &
5 and they have also sworn to affidavits by way of chief
examination wherein they have corroborated the evidence of
DW2 about the family arrangement under Ex.D33 and
according to them, E.Doraiswamy himself distributed the
properties. At this juncture it is necessary to mention that
DW2 is claiming the property as joint family property mainly
on the ground that he is adopted son of E.Doraiswamy and he
has failed to prove the said adoption before court. That being
so, question of considering whether he is also member of joint
family along with E.Doraiswamy does not arise. Even
otherwise, it is necessary to mention that the nomenclature
given to Ex.D33 as partition list cum deed and the contents of
Ex.D33 reveals that actual partition has been affected and suit
B schedule property is shown to have been allotted in favour of
DW2. DW2 has spoken that the original of Ex.D33 was
retained by E.Doraiswamy and he has produced notarized
copy of which was admitted in evidence as Ex.D33. But PW2
E.Doraiswamy has also denied this aspect. But however entire
case of DW2 is based on Ex.D33 which is admittedly an
unregistered document and as stated supra, right in
immovable property was created under Ex.D33 and hence
Ex.D33 cannot be accepted as document of title in favour of
DW2. Therefore the plea of partition or family settlement based
on the alleged concept of joint family as set up by DW2 does
not inspire the confidence of the court. Therefore the evidence
of DW2, DW3 & DW5 on this aspect cannot be accepted.
Therefore the only dispute is now from DW1 who has
contended that suit A schedule property as a joint family
property. As stated supra E.Doraiswamy was already married
and was aged around 23-24 years at the time of purchase of
suit A schedule property under Ex.P2 and E.Doraiswamy
himself has spoken before court that he had sufficient
earnings at his disposal. Therefore the evidence of PW2
E.Doraiswamy has to be accepted to the effect that suit A
schedule property was his self acquired property. The recitals
of Ex.P2 also support the case of the plaintiff. But the
contesting defendants have failed to establish that the so
called joint family had sufficient nucleus at its disposal and
that out of said joint family nucleus suit A schedule property
was nominally purchased in the name of E.Doraiswamy. Even
otherwise, it is admitted evidence of DW1 that her grand father
Eshwarachari sold his property of Tamil Nadu and later
purchased suit A schedule property and another property
bearing no.68 at Bangalore. The recitals of Ex.P3 reveals that
Eshwarachari borrowed amount on different occasions from
K.V.Rangaiah and under those circumstances he sold suit A
schedule property in favour of K.V.Rangaiah which is later
purchased by PW2 E.Doraiswamy under Ex.P2. Therefore
entire materials placed on record falsifies the defense taken by
the defendants and probabilises the case put forth by
E.Doraiswamy as well as plaintiff to the effect that suit A
schedule property was self acquired property of E.Doraiswamy
and accordingly I have no hesitation to hold that
E.Doraiswamy is able to establish that suit A schedule
property was his self acquired property.
66. But now the plaintiff asserts that she is the
absolute owner of suit A schedule property by virtue of Ex.P1.
PW1 in her evidence has also spoken that soon after her
marriage she started residing with her father E.Doraiswamy
and even continued to stay till now and looked after him.
Therefore according to the plaintiff her father out of love and
affection and his own free will gifted suit A schedule property
under Ex.P1 in her favour. The donor under Ex.P1 in his
evidence as PW2 has also admitted that he gifted the suit A
schedule property in favour of PW1. And it is his evidence that
he had gifted a sum of Rs.2,14,351/- in favour of his elder
daughter DW1 who in her evidence has also accepted the
same. It is also the evidence placed on record that sister of
E.Doraiswamy by name Pushpamma acquired the property
No.68 from her father under a gift deed at Ex.P18. He has
further stated that the said Pushpamma gifted the property
No.68 in favour of DW1 and it is evidence of PW2 that he
prevailed over his sister to bequeath property No.68 in favour
of DW1. DW1 in her evidence also admits the same. This
defense is set up by E. Doraiswamy only to establish his
bonafide that he treated both the daughters ie., DW1 and PW1
alike. Be that as it may. But now the question is about gift
under Ex.P1. As stated supra, suit A schedule property is self
acquired property of E.Doraiswamy, therefore he being the
master of his property has got every right to do away with the
property in any manner as he likes. This E.Doraiswamy has
gifted the property under Ex.P1 to his daughter PW1 and
hence the authority of E.Doraiswamy cannot be questioned by
contesting defendants.
67. But however DW2 in his plaint has asserted that
the gift is invalid on the ground that he is in possession of suit
B schedule property, therefore the gift is not complete. Even
similar argument was advanced on behalf of DW2 stating that
admittedly DW1 & 2 are in possession of suit B schedule
property and the plaintiff has sought for recovery of
possession, therefore gift without delivery of possession is
invalid and not enforceable. In this connection the learned
counsel for the DW2 has relied on the decision cited supra.
Out of which the 3rd decision in the list is of Hon'ble Supreme
Court in Civil Petition No.4195/2008 between Renikuntla
Rajamma (D) by Lrs., Vs. K.Sarwanamma. On careful perusal
of the above authority, it is noticed that Hon'ble Supreme
Court was pleased to consider the issue regarding requirement
of delivery of possession for a gift to become valid. The Hon'ble
Supreme Court while explaining the scope and ambit of
Sec.123 of Transfer of Property Act was pleased to held that a
conjoint reading of Sec.,122 & 123 of T.P. Act makes it
abundantly clear that the transaction covered by a registered
instrument of gift and duly signed by the donor and attested
as required is not a sine qua non for the making of a valid gift
under the provision of T.P. Act. At para 19 of the above
judgment, the Hon'ble Supreme Court was pleased to held as
under:
In the case at hand as already noticed by
us, the execution of registered gift deed
and its attestation by two witnesses is
not in dispute. It has also been
concurrently held by all the three courts
below that the donee had accepted the
gift. The recitals in the gift deed also
prove transfer of absolute title in the
gifted property from the donor to the
donee. What is retained is only the right
to use the property during the lifetime of
the donor which does not in any way
affect the transfer of ownership in favour
of the donee by the donor.
68. Perusal of the principles laid down in the authority
reveals that if a gift is through a registered document and it is
attested by two witnesses is sufficient to confer title on the
donee and the delivery of possession is not required by law.
The principles laid down in the above authority are also amply
applicable to the case on hand. In the instant case PW2 gifted
suit A schedule property under Ex.P1 in favour of PW1 which
is attested by two witnesses. Soon after the gift, the name of
PW1 was entered in encumbrance certificate for the same year
under Ex.P4 and subsequently PW1 has paid taxes to the
Government under Ex.P5, P7 to P12 which clearly establishes
that E.Doraiswamy not only gifted suit A schedule property in
favour of plaintiff, but the plaintiff also accepted the gift and
Ex.P1 is also acted upon and hence the contention taken by
the 2nd defendant in his plaint as well as written statement as
well as contention taken by other defendants in
OS.No.8480/2001 challenging the validity of the gift does not
inspire confidence of this court. On the contrary I am of the
considered opinion that suit A schedule property was self
acquired property of E.Doraiswamy and that plaintiff in
OS.No.8480/2001 has became the absolute owner of suit A
schedule property under Ex.P1 and that the 2nd defendant in
his suit in OS.No.531/2002 has failed to establish that Ex.P1
is null and void and accordingly I record my findings on issue
No.1 in OS.No.8480/2001 and issue No.5 in OS.No.531/2002
in the affirmative and issue No.3 in OS.No.531/2002 in the
negative.
69. Issue No.2 & 4 in OS.No.531/2002:- The 2nd
defendant has asserted that there was a partition on
26.12.1999 in which suit B schedule property was allotted to
him and E.Doraiswamy also agreed to execute registered
partition deed in his favour and that he was put in possession
and enjoyment of suit B schedule property. He also contended
that by virtue of the said partition, he has became absolute
owner of suit B schedule property and alternatively he also
sought for half share along with E.Doraiswamy in suit A
schedule property. DW2 in his evidence has also spoken about
the alleged partition list cum deed under Ex.D33. In support
of his evidence he has also got examined DW3 & 5 who are
claims to be the witnesses for Ex.D33. The 2nd defendant
mainly on the basis of Ex.D33 is claiming his ownership over
suit B schedule property and so also alternatively half share in
suit A schedule property. As stated supra, Ex.D33 is xerox
copy of the alleged family cum partition and it is not a
registered document and that rights were created under
Ex.D33. Therefore this Ex.D33 cannot be considered as
document of title in favour of 2nd defendant and prima-facie it
is hit by Sec.17 of Registration Act and requires compulsory
registration. The Hon'ble Supreme Court in a decision
reported in AIR 1988 SC 881 was pleased to held that a
document which requires compulsory registration has to be
registered, failing which the said document does not convey or
extinguish title. Therefore the said principles are amply
applicable to the case on hand and in the considered opinion
of this court, the so called document under Ex.D33 does not
confer any title on 2nd defendant or extinguishes the title of
E.Doraiswamy. Therefore the question of accepting the title of
DW2 under Ex.D33 or the said partition does not arise.
70. As stated supra, this court has already come to the
conclusion that suit A schedule property was self acquired
property of E.Doraiswamy and a finding is also recorded that
DW2 has failed to prove the adoption. That being so question
of allotting half share of the property in favour of 2nd defendant
does not arise.
71. But however 2nd defendant has contended that by
virtue of the partition under Ex.D33 he was in possession of
suit B schedule property. He has made an attempt to establish
that the so called partition under Ex.D33 was partially acted
upon. But the entire evidence placed on record by the parties
clearly reveals that DW1 was married and soon after her
marriage she started residing with her husband at Chittoor,
Andhra Pradesh and within couple of years, her husband
deserted her. PW2 has spoken that soon after he came to
know that his son-in-law was addicted to bad habits, he went
and brought back DW1 and permitted her to stay in suit B
schedule property. The document and the evidence placed on
record by PW1 & 2 clinchingly establishes that DW2 and his
mother as well as other family members were permitted to stay
in the suit B schedule property and the theory put forth by 2nd
defendant that by virtue of Ex.D33 he was put in possession of
suit B schedule property appears to be concocted for the
purpose of this suit and does not inspire confidence of this
court. Therefore in the considered opinion of this court, 2nd
defendant in his suit OS.No.531/2002 has failed to establish
the alleged partition under Ex.D33 as well as his half share in
suit A schedule property. Hence I record my findings on these
issues in the negative.
72. Issue No.3 in OS.8480/2001 and Issue No.6 in
OS.NO.531/2002: The plaintiff asserts that her father
E.Doraiswamy permitted the defendants to occupy suit B
schedule property as such they are in permissive possession
and enjoyment of the suit B schedule property. Similar
contention is taken by E.Doraiswamy in his written statement
and thereby has supported the case of the plaintiff. It is an
admitted fact that defendants 1 to 4 are in possession and
enjoyment of suit B schedule property and E.Doraiswamy in
his written statement has specifically contended that the
husband of DW1 started neglecting her, as such, he brought
her back with her children to Bangalore and permitted them to
occupy suit B schedule property. But contesting defendants
in particular DW1 & 2 have denied the permissive possession
and claims their possession over suit B schedule property in
their own right. DW1 in her evidence has admitted that she is
claiming right over suit B schedule property by relying on the
Will Ex.P16 which is already revoked by E.Doraiswamy. DW2
has claimed his possession over suit B schedule property on
the basis of Ex.D33 which is already held as illegal document.
Therefore both DW1 & 2 have failed to establish that they are
in possession of suit B schedule property in their own right.
The perusal of entire evidence placed on record reveals that
admittedly husband of DW1 deserted her and it is also
brought on record that the whereabouts of her husband are
presently not known for the last 13 years. The entire material
placed on record by the parties clinchingly establishes that
E.Doraiswamy brought his daughter DW1 back to Bangalore
and his evidence that he started taking care of the family of
DW1 is also not seriously disputed in the cross examination
directed to him. This court has already come to the conclusion
that suit A schedule property was self acquired property of
E.Doraiswamy and it is an admitted fact that suit B schedule
property is part of suit A schedule property. Therefore the
evidence placed on record by PW1 & 2 to the effect that
defendants are in permissive possession will have to be
accepted and hence I have no hesitation to hold that plaintiffs
in OS.NO.8480/2001 and defendants 1 & 2 in
OS.NO.531/2002 are able to establish that defendants of
OS.No.8480/2001 are in permissive possession of suit B
schedule property. Hence I record my finding on these issues
in the affirmative.
73. Issue No.4 & 5 in OS.NO.8480/2001: The plaintiff
has asserted that defendants despite issue of legal notice
under Ex.P13, calling upon them to vacate and handover
vacant possession of suit B schedule property have failed to
comply with the demand and hence their possession is illegal
as such, they are liable to pay mesne profits at the rate of
Rs.4,500/- per month. Admittedly Ex.P13 was got issued by
the plaintiff which was served on the defendants and the 2nd
defendant has got issued his reply under Ex,.14 & 15. The fact
remains that defendants 1 to 4 have not vacated and handed
over possession of suit B schedule property to the plaintiff.
But however the plaintiff has not produced any documents to
establish that suit B schedule property fetches monthly rent of
Rs.4,500/-. Admittedly there is no evidence placed on record
by the plaintiff to that effect. But however, considering the fact
that defendants are in unauthorized possession, it is just and
proper to award some reasonable mesne profits to the plaintiff.
Looking to the facts and circumstances, I am of the opinion
that if the mesne profits are awarded at the rate of Rs.3000/-
per month from the date of suit till realization it would meet
the ends of justice.
74. Further the plaintiff has also sought for recovery of
possession of suit B schedule property along with mesne
profits. Plaintiff is able to establish her title over suit A
schedule property and hence she is entitled for the recovery of
possession of suit B schedule property together with mesne
profits at the rate of Rs.3,000/- per month from the date of
suit till realization and hence I record my findings on issue
No.4 & 5 partly in the affirmative and partly in the negative.
75. Issue No.6 in OS.8480/2001 and Issue No.7 in
OS.NO.531/2002: For the foregoing discussions and reasons
therein, the suit of the plaintiff in OS.NO.8480/2001 succeeds
and deserves to be decreed in part and suit of the 2nd
defendant ie., OS.NO.531/2002 fails and liable to be
dismissed. In the result I proceed to pass the following:
ORDER
The suit of the plaintiff in OS.NO.8480/2001 is hereby decreed in part with costs.
The defendants are hereby directed to vacate and handover vacant possession of suit B schedule property to the plaintiff within three months from the date of decree.
The defendants 1 to 4 are jointly and severally directed to pay mesne profits at the rate of Rs.3,000/- per month in respect of suit B schedule property from the date of suit till realization.
The suit in OS.NO.531/2002 is hereby dismissed with costs.
Draw decree accordingly.
Keep original judgment in OS.No.8480/2001 and copy thereof in OS.NO.531/2002.
[Dictated to the Judgment Writer, computerised, and print out taken by him, corrected and then pronounced by me in open court, this day the 18th August 2015].
(MUSTAFA HUSSAIN.S.A.) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE ANNEXURE List of witnesses examined on behalf of plaintiff in OS.No.8480/2001:
PW1 :Smt.Lokamba PW2 :Doraiswamy List of documents marked on behalf of plaintiff in OS.No.8480/2001: Ex.P1 : Gift deed dtd.31.3.2000 Ex.P2 : Sale deed dtd. 31.7.1947 Ex.P3 : Sale deed Ex.P4 : Encumbrance certificate
Ex.P5 to 11: Tax paid receipts Ex.P12 : Katha endorsement Ex.P13 : office copy of legal notice Ex.P14 : Reply notice Ex.P15 : Another reply notice Ex.P16 : Will Ex.P17 : Will dtd.9.2.1998 Ex.P18 : Certified copy of sale deed Ex.P19 : Certified copy of sale deed dtd.8.9.1980 Ex.P20 : Wedding Card' Ex.P21 : Certified copy of sale deed dtd.17.5.1948 Ex.P22 : Voter list of ward No.29of Chickpet Constituency, Bangalore List of witnesses examined on behalf of defendants in OS.8480/2001:
DW1 :Smt. Leelavathi DW2 :D.Srinivasulu @ D.Srinivas DW3 :K.Venkateswarulu DW4 :N.Subramanyamachari DW5 :Yogananda List of documents marked on behalf of defendants in OS.No.8480/2001:
Ex.D1 to 4:Encumbrance certificates. Ex.D5 : Certified copy of sale deed dtd.31.4.1947 Ex.D6 to 8: Three marks cards Ex.D9 : Cumulative record Ex.D10 : Transfer certificate Ex.D11 & 12: SSLC & PUC Marks cards Ex.D13 : Marks card of English Typewriting Ex.D14 & 15: Certificates issued by National College Ex.D16 : Passport Ex.D17 : Show cause notice issued by Central Excise, Tamil Nadu.
Ex.D18 : Notice issued by Superintendent of Central Excise, Thiruchy Ex.D19 : Order passed by Asst.Collector of customs Thiruchy Ex.D20 : Notice issued u/s.28 of Customs Act Ex.D21 : Reply notice given to Lokamba Ex.D22 : Postal receipt Ex.D23 : Postal acknowledgement Ex.D24 : Notice issued by Lokamba Ex.D25 : Reply notice issued by Doraiswamy Ex.D26 : Postal acknowledgment Ex.D27 : Postal receipt and UCP Ex.D28 : Assessment register extract Ex.D29 & 30: Legal notice copies. Ex.D31 : Certified copy of Gift deed dtd.31.3.2000 Ex.D32 : Four CDs.
Ex.D33 : Xerox copy of the partition list cum deed Ex.D33(b) : Signature of DW5.
XVIII Addl. City Civil Judge Bangalore City.
Common judgment pronounced in the open court as per separate judgment. Operative portion of judgment is as follows:
ORDER The suit of the plaintiff in OS.No.8480/2001 is hereby decreed in part with costs.
The defendants are hereby directed to vacate and handover vacant possession of suit B schedule property to the plaintiff within three months from the date of decree.
The defendants 1 to 4 are jointly and severally directed to pay mesne profits at the rate of Rs.3,000/- per month in respect of suit B schedule property from the date of suit till realization.
The suit in OS.NO.531/2002 is hereby dismissed with costs.
Draw decree accordingly.
Keep original judgment in OS.No.8480/2001 and copy thereof in OS.NO.531/2002.
XVIII Addl.C.C. & S.J., Bangalore