Bangalore District Court
Jayalakshmamma H vs Mahadevamma on 3 April, 2024
1 O.S.179/2004
KABC010099702004
IN THE COURT OF I ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU (CCH.No.2)
Present: - SRI.SREENIVASA, B.A., LL.B.
I Addl. City Civil & Session Judge,
Bengaluru.
Dated this the 3rd day of April 2024.
O.S.No. 179 / 2004
Plaintiff: 1. Smt.Jayalakshmamma,
Aged about 30 years,
W/o. Late R.Srinivas,
R/o. Boachanahalli, Kasaba Hobli,
Ramanagaram Taluk,
Bengaluru Rural District,
Since dead by her LR .
Sri. Srinivas Murthy K.M.,
S/o. Jayamma and Muddaiah,
Aged about 40 years,
R/at Konsandra Village,
Harohalli Hobli, Karikaldodi Post,
Kanakapura Taluk, Ramanagara
Distict.
(By Smt.Sangeeta S, Adv.)
- VS -
Defendants: 1. Smt. Mahadevamma (Dead)
Since dead by her LRs.
2 O.S.179/2004
i) Smt.Manjula,
Aged about 25 years,
D/o. Late Mahadevamma,
W/o. Devaraju.
ii) Smt.Padma,
Aged about 23 years,
D/o. Late Mahadevamma.
Both are r/at No.21, 1st Block
Police Quarters, Adugodi,
Bengaluru-560 030.
2. Smt.R.Devamma,
W/o. Jayamahadevaiah,
Aged about 38 years,
R/o. No.21, 1st Block,
Police Quarters, Adugodi,
Bengaluru-560 030.
3. Smt.R.Meenakshi,
D/o. Late Ramaiah,
W/o. Basavaraju,
Aged about 33 years,
R/o. No.141, 4th Main,
Nanjappa Layout, Adugodi,
Bengaluru-560 030.
4. Sri.Puttaramaiah,
S/o. Late Muddaiah,
Aged about 75 years.
5. Sri.Narayani,
S/o. Late Muddaiah,
Aged about 68 years.
3 O.S.179/2004
6. Sri.Muddaiah,
S/o. Late Muddaiah,
Aged about 60 years.
7. Smt.Sannamma,
W/o. Late Kempaiah,
Aged about 50 years.
8. Smt. Sunitha,
D/o. Late Kempaiah,
W/o. Ningaraju,
Aged about 27 years.
9. Smt. Puneeth Kumar,
S/o. Late Kempaiah,
Aged about 24 years.
10. Smt. Anitha,
D/o. Late Kempaiah,
W/o. Umesh,
Aged about 22 years.
All are r/at Konasandra Village,
Harohalli Hobli, Karikaldoddi Hobli,
Kanakapura Taluk, Ramanagara District.
(By Sri.Umashankar L, Adv. for D1(i) &
D.1(ii), D2, D4 & D5
Sri.M.Munegowda, Adv. for D3
Smt.V.Pallavi, Adv. for D6 to D10)
***
4 O.S.179/2004
Date of Institution of the suit 07.01.2004.
Nature of the Suit (suit for pronote, Partition suit.
Suit for declaration & possession,
Suit for injunction, etc.):
Date of the commencement of 03.11.2010.
recording of the Evidence:
Date on which the Judgment was 03.04.2024.
pronounced:
Year/s Month/s Day/s
Total duration:
20 02 26
(SREENIVASA)
I Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit filed by original plaintiff Smt.Jayalakshmamma against the defendants for partition and separate possession of her half share in the suit schedule properties by metes and bounds and for permanent injunction.
2. The brief facts of the plaintiff's case are that:
a) That, the plaintiff is the daughter-in-law of the defendant No.1. The plaintiff's father-in-law Late M.Ramaiah (defendant's husband) was in Government Service. He was working in Police Department. Out of his own earning Late M.Ramaiah during his lifetime had purchased an immovable property bearing No.7/34, situated at 1t Main Road, 1 st Cross, 5 O.S.179/2004 DRC Post, Suddaguntepalya, Ramaiah Layout, Bengaluru measuring east to west 30 feet and north to south 40 feet, i.e., suit schedule property. Late M.Ramaiah had purchased the suit schedule property by investing his own earnings and got the sale deed registered in the name of his wife ie., the 1 st defendant herein. It is a benami sale transaction. The defendant is a house wife and had no employment of an source of income to pay the sale consideration amount for purchase of the schedule property. Consequent upon the purchase of the schedule property in the name of the defendant, the khatha was accepted in the name of the 1st defendant.
2b) The plaintiff has further submitted that, the plaintiff's father-in-law was in peaceful possession and enjoyment of the schedule property and he was paying the property tax during his lifetime. Said M.Ramaiah died intestate leaving behind the defendants and son R.Srinivas (plaintiff's husband) as the successors to the schedule property. Plaintiff's husband R.Srinivas was in joint possession and enjoyment of the schedule property along with the undivided share in lands bearing Sy.No.18/20 of Konasandra Village of Horahalli Hobli, Kanakapura Taluk to an extent of 1/5th share and the same is yet to be partitioned in the family of Ramaiah. The said joint family of Late Ramaiah has 0.13 guntas of land in Sy.No.63/3 and 0.21.04 guntas of land in Sy.No.64, both situated at Dyavasandra Village, Harohalli Hobli and Kanakapura Taluk.
The said lands in Sy.No.63/3 and Sy.No.64 both came to stand in the name of Late Mahadevamma, 1st defendant and the said 6 O.S.179/2004 lands are ancestral and joint family properties of the late Ramaiah and the same are in joint possession of the said joint family and are available for partition. In all the said 3 items above mentioned, which are more fully described in the plaint schedule, the plaintiff is entitled to 1/5th share and she is entitled to be put in separate possession of the same by metes and bounds by effecting partition. Hence, Sy.No.18/20, which is yet to be partitioned amongst the heirs of Late Ramaiah, the plaintiff is entitled to 1/5th share out of the share of Late Ramaiah in the said Sy.No.18/20.
2c) The plaintiff has further submitted that, after the demise of Sri.M.Ramaiah, the plaintiff's husband had demanded his share in the schedule property, even though, the defendant had promised to effect partition and give his half share, she went on postponing the same on one or the other pretext. The plaintiff's husband had got issued legal notice on 16.10.2003 to the defendant and called upon her to effect partition of the schedule property by metes and bounds and to give separate possession of his legitimate half share in the property. The defendant has received the registered notice, but so far neither replied nor complied with the demand made in the notice. After issuance of the legal notice, the plaintiff's husband died.
2d) The plaintiff has succeeded to the estate of her husband Late R.Srinivas and she is entitled to half share in the schedule property. After the demise of the plaintiff's husband, the plaintiff approached the defendant on 01.11.2003 and 7 O.S.179/2004 demanded her legitimate half share in the schedule property. The defendant flatly refused to give any share to the plaintiff. Instead the defendant is making hectic attempts to alienate the schedule property to others, in order to defeat and deprive the plaintiff's legitimate right and share in the property. Already some persons are visiting and inspecting the schedule property and making enquiry regarding the title of the property. Since the defendant has utterly failed and neglected to effect partition, having left with no alternative, the plaintiff has constrained to file this suit for partition and permanent injunction.
3. After receipt of suit summons, the defendants have appeared through their respective counsels and filed their written statements.
a) The 1st defendant in her written statement has contended that, the averments made in para 3 of the plaint that, the plaintiff is the daughter-in-law of the defendant is hereby denied. It is true that, the defendant's husband M.Ramaiah was in City Armed Reserve (CAR) joined as Constable died while in service. The defendant's husband M.Ramaiah is not the father-in- law of the plaintiff. The further averment that, the suit property was acquired by Late M.Ramaiah during his lifetime out of his earnings is hereby specifically denied. The suit schedule property is the self-acquired property of the defendant. It is false that, the defendant had no source of income to purchase the suit schedule property. It is false that, the suit schedule property was purchased by M.Ramaiah in the name of the defendant.The defendant Purchased the suit schedule property out of her own earnings.
8 O.S.179/20043b) The 1st defendant has further contended that, the averment made in para 4 of the plaint that, M.Ramaiah was the father-in-law of the defendant is denied. The further averment that, M.Ramaiah was in possession and enjoyment of the suit schedule property and he was paying tax to Bengaluru City Corporation during his lifetime is also denied. It is false that, M.Ramaiah died intestate and further false that, he died leaving behind the defendant and her son R.Srinivas as his successors to the suit schedule property. R.Srinivas, the defendant's son was the husband of the plaintiff is hereby denied. Further, R.Srinivas was in joint possession and enjoyment of the suit schedule property along with the defendant is also denied. The averment in para 5 of the plaint that, after the death of M.Ramaiah, the plaintiff's husband had demanded share in the suit schedule property is hereby denied. It is false that, the defendant had promised partition of the suit schedule property and to give share to his son R.Srinivas. It is further false that, this defendant postponed the same. It is false that, R.Srinivas had not issued legal notice to the defendant calling upon for partition and demanding separate share in the suit property. It is false that, the defendant had received the said legal notice. It is false that, the defendant had not replied the legal notice and not complied with the demand made therein. The legal notice and postal documents are cooked up documents. R.Srinivas, the eldest son of the defendant died on 17.10.2003.
3c) The 1st defendant further submits that, the averment 9 O.S.179/2004 in para 6 of the plaint that, the plaintiff had succeeded to the estate of her late husband R.Srinivas and she is entitled to half- share in the suit schedule property is hereby denied. It is false that, after the demise of R.Srinvias, the plaintiff approached the defendant on 01.11.2003 for her legitimate half share in the suit property is denied as the plaintiff never approached the defendant at any time seeking partition and demanding her share in the suit property. It is false that, the defendant is making hectic attempts to alienate the suit schedule property to other to defeat and deprive of the plaintiff's legitimate share in the suit schedule property. It is false that, some persons are visiting the suit schedule property. It is false that, the defendant has neglected to effect partition.
3d) 1st Defendant Mahadevamma has submitted that, the plaintiff is her husband's sister's daughter. It was out of concern, the defendant's late husband had the desire and ambition of taking the plaintiff as his daughter-in-law through the marriage to his first son R.Srinivas. Admittedly, the native place of the plaintiff is Bommachanahalli, Kasaba Hobli, Ramanagaram Taluk. The plaintiff is not well educated and she is a village girl. The plaintiff never wanted marriage with R.Srinivas. However, M.Ramaiah, late husband of the defendant, had celebrated the marriage of his eldest son R.Srinivas with the plaintiff in the year 1988. But, the marriage never consummated and materialized as the plaintiff never joined R.Srinivas and she never led marital life with him. The plaintiff remained at Bommachanahalli and R.Srinivas stayed 10 O.S.179/2004 with her parents in Police quarters at Adugodi, Bengaluru. The marriage between the plaintiff and R.Srinvias was never consummated and the plaintiff is not the daughter-in-law of M.Ramaiah and this defendant. The plaintiff has no issues with R.Srinvias. Even now, the plaintiff is staying at Bommachanahalli in Ramanagara Taluk. The plaintiff is not the daughter-in-law of either M.Ramaiah or this defendant in the eye of law and as such, she is not entitled to succeed to the estate of R.Srinivas. The suit schedule property being the self-acquired property of the defendant and R.Srinivas having died on 17.10.2003 during the lifetime of the defendant, there is no question of R.Srinivas getting any share in the suit schedule property and the plaintiff succeeding the same.
3e) 1st Defendant Mahadevamma has further contended that, her husband M.Ramaih, who joined CAR, Bengaluru City as Constable, except his monthly salary, he had no alternative source of income. His income through his salary was hardly sufficient to maintain the family consisting himself, the defendant and six children, two males and four females. In addition to that, he had to take care of his aged father, his step mother, his four younger brothers and three sisters, all living at Konasandra Village, Harohalli Hobli, Kanakapura Taluk. M.Ramaiah was the eldest son in the family. He had to take care of welfare and maintenance of his brothers, sisters, parents and his own family in Bengaluru, only out of his monthly salary as City Armed Reserve Constable. He was not in a position to save any money or to acquire any property. He was finding it too difficult to 11 O.S.179/2004 maintain his own family with six children and the family of his parents with brothers and sisters in the Village.
3f) 1st Defendant Mahadevamma has further contended that, as housewife, she was trying to do petty business within her reach and capacity. She was a flower vendor at Police Quarters at Adugodi. In the morning and in the evening, she was running a petty shop in police quarters, she had a cow and she was selling milk in the police quarters. She was working as a tailor in the Police welfare centre at Adugodi Police Quarters and used to save some money out of her own earnings. She married M.Ramaiah in the year 1962 and since then, out of her earnings as flower vendor, petty shop keeper, milk vendor and tailor, in 1969, i.e., in a span of about 7 years, she with the aid and assistance of her parents having coconut garden at her native Thamasandra near Kanakapura Town, could mobilize a sum of Rs.1,000/- and had purchased a site formulated in Sy.No.68, Suddaguntepalya measuring 30 feet x 40 feet described in the suit schedule from its lawful owner Smt.Akkayamma through a registered sale deed dated 07.07.1969, thereby, the plaintiff is not entitled for any share in it. Thereafter, she could manage to put up a sheet roofed house in a portion of it, again, with her own earnings and continued in possession and enjoyment.
3g) Defendant Mahadevamma has further contended that, she is the widow of M.Ramaiah and her both sons are no more. She has four daughters namely R.Devamani, 38 years, A.Meenakshi 30 years, R.Manjula 25 years and R.Padmavathi 12 O.S.179/2004 23 years. The plaintiff has suppressed this fact and filed this suit only against the defendant and the suit is bad for non-joinder of necessary parties and liable to be dismissed. Her eldest daughter R.Devamani is given in marriage to her own younger brother by name Mahadevaiah, who is also employed in CAR as constable. R.Devamani and her husband have been assisting and taking care of the defendant and her family members right from the beginning. The marriage ceremony of R.Meenakshi and R.Manjula was celebrated by R.Devamani and her husband with their own cost. Now, the defendant's husband and her two sons being dead, the defendant and her unmarried daughter R.Padmavathi are under the care and maintenance by R.Devamani and her husband. The defendant having understood the sacrifice of R.Devamani and her husband towards the family of the defendant, the defendant out of her love and affection has given the suit schedule property to R.Devamani under registered gift deed dated 05.01.2004. By virtue of the gift deed executed by the defendant, the eldest daughter R.Devamani has become the absolute owner of the suit schedule property. R.Devamani having become the absolute owner of the suit schedule property through the registered gift deed, R.Devamani is not made party to this suit. The suit is not maintainable for the relief sought for and liable to be dismissed. There is no cause of action.Therefore, Defendant Mahadevamma prayed to dismiss the suit.
4. The defendant No.2 has filed the written statement contending the similar facts which are contended by defendant 13 O.S.179/2004 Mahadevamma. The 1st defendant having understood the sacrifice of the 2nd defendant and her husband towards the family of 1st defendant, the 1st defendant out of her love and affection has given the suit schedule item No.1 to her under the registered gift deed dated 05.01.2004. By virtue of the gift deed executed by the 1st defendant, she become the absolute owner of the suit item No.1 and she is in possession and enjoyment of the said property. Further, the defendant No.2 has filed the additional written statement and contended that, this defendant has already filed her written statement dated 12.07.2006 to the original plaint and thereafter, the plaint was amended, hence this additional written statement and contended that, the averment in the amended para 4 of the plaint that Late Ramaiah had his undivided share in the land bearing Sy.No.18/20 is true and correct. But the averment that, Ramaiah had share to an extent of 1/5th share is not correct as Ramaiah had 4 sisters along with him. The 4 sisters are Smt.Hanumahucchamma, Smt.Chikkolamma, Smt.Jayamma and Smt.Parvathamma. The further averment in this amended para 4 of the plaint that, the 1/5th share of Ramaiah has to be partitioned in the family of Late Ramaiah is not true and correct. The other four brothers of Late Ramaiah namely Puttaramaiah, Narayani, Muddaiah and Kempaiah are necessary parties for partition of the suit schedule item No.2. The sisters of Late Ramaiah stated above in para 2 of this additional written statement and other brothers of Late Ramaiah stated in para 3 of this additional written statement are proper and necessary parties to this suit. The suit is bad for non-joinder of necessary parties. The averment that, the joint 14 O.S.179/2004 family of Late Ramaiah had 13 guntas and 21.4 guntas in suit schedule item Nos.3 and 4 and these lands stand in the name of deceased 1st defendant is not true and correct and the plaintiff may be put to strict proof of the same. The further averment in this para that, the suit schedule item Nos.3 and 4 are ancestral and joint family properties of Late Ramaiah and are in joint possession of the said family is true and correct. The plaintiff has no right and share in any of the suit schedule properties. It is false that, the plaintiff is entitled for 1/5th share. Hence, the defendant No.2 prays to dismiss the suit.
5. a) The 3rd defendant has filed the written statement and contended that, the plaintiff has not made all the daughters of deceased Ramaiah as parties to this suit as they are also entitled for equal share on part with the plaintiff. The plaintiff is entitled only for 1/6th share in the suit schedule property. The allegation of the plaintiff regarding the relationship of the plaintiff with the defendants, occupation of the father-in-law of the plaintiff, husband of the 1st defendant and father of 2nd defendant and this defendant are all true and correct. It is also a fact that, deceased Ramaiah during his lifetime has purchased the suit schedule property out of his own earnings and he got registered the sale deed in the name of his wife, 1st defendant herein, mother-in-law of the plaintiff and mother of the defendant Nos.2 and 3. It is also a fact that, the 1 st defendant is only a house wife, she has no any assured income from any source and the entire sale consideration amount flowed from the hands of deceased Ramaiah. The said sale transaction is only a benami 15 O.S.179/2004 transaction in the name of the 1st defendant as such, the 1st defendant has not become the absolute owner in terms of the provisions of Benami Abolition act and the exception given in the said Act is squarely applicable to the transaction and moreover, the 1st defendant and deceased Ramaiah being wife and husband, there is a fiduciary relationship and accordingly, the schedule property was the absolute ownership of deceased Ramaiah and he died intestate and accordingly, all his children including his widow being the Class-I legal heirs as described under the Hindu Succession Act, entitle for Succession under Sec.8 of the Hindu Succession Act and thereby, all of them are entitle for equal share.
5b) The 3rd defendant has further contended that, the allegations contained in the plaint regarding possession and enjoyment of the schedule property during the lifetime of Ramaiha and his children and after his death the plaintiff and defendants and other daughters of deceased Ramaiah has succeeded to the schedule property and now they are in joint possession in an undivided status. During the lifetime of the husband of the plaintiff, her husband had got issued a legal notice to the 1st defendant demanding for partition, by that time, the father of this defendant was alive. The allegation of the plaintiff claiming alleged half share of her husband legally incorrect, because the suit schedule property is the self-acquired property of deceased Ramaiah and thereby, the same has to be divided equally amongst the son and daughters and even the 1 st defendant is entitled for equal share as per Sec.8 of the Hindu 16 O.S.179/2004 Succession Act. The 1st defendant has failed to effect the partition after the death of Ramaiah and she is illegally colluding with the 2nd defendant without any justification and right. The other averments are denied by this defendant. The very allegation of the 2nd defendant about allegedly carrying on so many jobs by the 1st defendant practically impossible for any person and that itself goes to show the falsity in the case of the 2 nd defendant to knock of the suit schedule property by colluding with the 1st defendant and taking undue advantage of the sale deed bonafide made by the deceased Ramaiah in the name of 1 st defendant. The alleged gift deed has no legal sanctity and no title is passed on the 2nd defendant as it is not the exclusive property of the 1st defendant. This defendant is also interested to claim partition and separate possession of the suit schedule property and thereby in order to get 1/6th share of this defendant by metes and bounds over the suit schedule property, she is also paying the Court fee as contemplated under Sec.35 (3) of the KCF and SV Act on the written statement. The alleged gift deed dated 05.01.2004 allegedly obtained by the 2nd defendant from the 1st defendant in respect of the schedule property is not at all binding on this defendant in any manner and the same does not take away the share of this defendant. This defendant has came to know for the first time about the alleged gift deed, obtained by the 2nd defendant from the 1st defendant only when this defendant has come on record as 3rd plaintiff and later having gone through the written statement of the 2 nd defendant. Viewed from any angle, the plaintiff and the defendant are entitled for equal share in the suit schedule property and the plaintiff is not entitled for 17 O.S.179/2004 entire half share as alleged by her. Hence, the 3 rd defendant has prayed to partition of the suit schedule property by metes and bounds and to allot 1/6th share to this defendant by metes and bounds over the suit property.
6. a) The defendant Nos.4 and 5 have filed written statement and contended that, the suit is not maintainable either in law and on facts. The suit is bad for non-joinder of necessary properties as such the defendant Nos.4 and 5 seeking counter claim under Order VIII Rule 6(a) before this Court by inserting landed property bearing Sy.No.5/2 measuring an extent 0.30 guntas situate at Bhimasandra Village, Harohalli Hobli, Kanakapura Taluk, which is granted to the defendant No.6 on behalf of the joint family of the defendants. The plaintiff has not inserted the said property in the suit, as such, this defendants inserted the above said property in the written statement for seeking equal partition and separate possession by metes and bounds by these defendants. These defendants have submitted that, these defendants are partly admitted the relationship of the plaintiff and defendants as stated in the genealogical tree, but these defendants are seriously disputed the relationship of the LRs of plaintiff by name Srinivasmurthy K.M., as such, the LRs of the plaintiff, the same may be put to strict proof of the same. In fact and truth one Sri.Muddaiah propositer of the joint family properties of the defendants, he had 5 children namely Ramaiah (husband and father of the defendant No.1(i) & (ii)) Puttaramaiah (D4), Narayani (D5), Muddaiah (D6), Kempaiah (husband and father of the defendant Nos.7 to 10).
18 O.S.179/20046b) The defendant Nos.4 and 5 have further contended that, during the life time of Sri. Muddaiah was rendered service of Inam in the village of Dyavasandra and Bhimasandra Villages, as such he was cultivating the below mentioned properties along with his family members and they were jointly cultivating the same for the livelihood of their family members, thereafter, said Muddaiah was demised leaving behind his children as his legal heirs to succeed to his estate, subsequent to the death of said Muddaiah, his children are jointly cultivating below mentioned properties as a joint family property, when the Inam Abolition Act 1954 came into force, the children of Late Muddaiah filed application before the Land Tribunal to re-grant the below mentioned properties in their names, the Land Tribunal considered the application of the children of Late Muddaiah re- grant the below mentioned properties in the individual names of the children of deceased Muddaiah, namely Ramaiah, Puttaramaiah, Narayani, Huddaiah, Kempaiah, the said properties acquired by the above said persons details are as hereunder,
i) Land bearing Sy. No.63 measuring an extent of 1 acre 35 guntas and another land bearing Sy. No. 64 measuring and extent of 2 acres 27 guntas and situated at Dyavasandra Village, Harohalli Hobli, Kanakapura Taluk, same was re-granted by the Tahasildar Kanakapura Taluk, before re-grant of the above said land, there was partition amongst between the children of deceased Muddaiah in respect of the above said two 19 O.S.179/2004 properties, the Tahsildar considered the oral partition and oral statement of the above said persons, re-granted the above said land by dividing 1/5th share in the each name of children of deceased Muddaiah, as such, the Tahsildar re-granted land measuring 0-21 ¼ in the Sy. No. 64 and measuring 0-13 guntas in the Sy. No.63 in the each names of all the children of Muddaiah namely Ramaiah, Puttaramaiah, Narayani, Muddaiah and Kempaiah as per the order dated 27/03/1995, subsequent to the re-grant, said land was phoded as new survey number i.e., 63/2 and 63/3 and 64/1 and accordingly RTC was reflected in the name of Defendant Nos.1 to 5 and father of the Defendant No.8 to 10.
ii) It is submitted that, the land bearing Sy. No.5 measuring an extent of 0-30 guntas situated at Bhimasandra Village, Harohalli Hobli, Kanakapura Taluk same was re- granted by the Tahasildar Kanakapura Taluk in the name of Defendant No.6 by name Muddaiah S/o Muddaiah on behalf of the joint family, accordingly the said Sy. No. phoded as new number 5/2, accordingly RTC Extract reflected in the name of the Defendant No.6 on behalf of the joint family, before re-grant of the above said land, the Tahsildar Kanakapura Taluk issued notice to the Defendant No.5, thereafter he was attended before the Tahsildar and given oral consent to re-grant the said land in the name of Defendant No.6 on behalf of the Joint family, thereafter the Defendant No.4 and 5 approached the Defendant No.6 to effect the katha in the joint names of all the children of deceased Muddaiah, but the Defendant No.6 not came forward for change 20 O.S.179/2004 of katha in the joint names of the Defendants, in this regard, these Defendants filed an appeal before the Assistant Commissioner Ramanagara Sub-Division, Ramanagara bearing R.A.No.113/2011-12 to effect the joint katha in respect of the above said property, thereafter the authority be pleased to dispose the above case and given liberty to approach the Civil Court for seeking partition and separate possession in respect of the Sy. No. 5/2 measuring in extent 0-30 guntas situated at Bhimasandra Village, Harohalli Hobli, kanakapura Taluk, which is morefully described herein hereinafter referred to as ITEM NO.I of the Written Statement Schedule property, the above said property is undivided joint family property of the defendants, these Defendants entitle equal share in respect of the Item No. I of the Written Statement Schedule Property.
iii) It is submitted that the land bearing Sy. No.18/20 measuring an extent of 4 acres situated at Konasandra Village, Harohalli Hobli, Kanakapura Taluk, which is more fully described in the Item No.Il of the suit schedule property, the said property is ancestral and joint family property of the Defendants, subsequent to the death of deceased Muddaiah the revenue records transferred as a pavathivarasu, in the joint names of Defendant No.1, 4 to 6 and father of the 8 to 10 as per the MR No. 40/2006-2007 dated 11/05/2007, the above said property is ancestral and joint family property and till today, there is no partition effected in the family in respect of item No.2 of the suit schedule property as such the defendant Nos.4 and 5 are entitled for equal share in the said property. Hence, the 21 O.S.179/2004 defendant Nos.4 and 5 pray to grant relief of partition and separate possession of 1/5th share in respect of the item No.2 of the suit schedule property and written statement schedule property herein equally and equitably by division of metes and bounds.
7. a) 6th defendant Muddaiah has filed written statement and contended that, this defendant is a formal party in the above case. There are no pleadings against this defendant in the above case. A reading of the plaint clearly discloses that, initially, the daughter-in-law of Sri Ramaiah ie., Smt. Jayalakshmamma, the plaintiff herein has filed this suit for the relief of partition and separate possession in respect of the properties owned by her father-in-law Sri.Ramaiah. Later, the defendants 2 and 3 have impleaded themselves in the above case by claiming a share as per the law. During the pendency of the above case, defendant No. 1 Smt Mahadevamma died. The other two daughters have been brought on record as parties i.e., defendants 1 (a) and 1 (b), other 2 daughters are already on record as defendants 2 and 3. The property situated in Bengaluru is the self-acquired property of his brother Ramaiah. Said Ramaiah has purchased the said property in the name of his wife i.e.. the 1st defendant herein. The 1st defendant does not have any kind of absolute rights over the same. The other suit schedule properties mentioned in the plaint have been allotted to the share of Ramaiah as per oral partition between his brothers very long back. After his demise, the katha in respect of those properties had been mutated in the name of his wife i.e., the 1 st 22 O.S.179/2004 defendant herein. However, she does not have any kind of absolute rights over the same.
7b) The 6th defendant has further contended that, the wife and children of Ramaiah have succeeded to the estate of deceased Ramaiah. They are having the rights and shares over the suit schedule properties equally being the class-I legal heirs of the deceased Ramaiah. The share of the deceased 1st defendant Mahadevamma had been amalgamated with the shares of the other family members. During the life of the 1st defendant, she and children of Ramaiah are entitled for 1/6th share each in the suit schedule properties. After her death, their children are entitled for 1/5th share each in the suit schedule properties. During the pendency of the above suit, plaintiff Smt Jayalakshmamma died. During her life time, she had executed a registered Will by bequeathing to an extent of her Share in the suit schedule properties in favour one Sri K. M. Srinivasa Murthy. Therefore, the legatee of the Jayalakshmamma had stepped into her shoes. The legatee is entitled to an extent of the share of the deceased plaintiff Smt Jayalakshmamma.
7c) The 6th defendant has further contended that, this case was posted for Judgment. During that period, the Court has observed / noticed that, in respect of item No.2 of the suit schedule property i.e., Survey No. 18/20 situated at Konasandra Village, Herohalli Hobli, Kanakapura Taluk as per Exhibit P6 - standing in the joint names i.e., in the names of 1 st defendant and the names of the brothers of the deceased Sri Ramaiah.
23 O.S.179/2004The other parties mentioned therein are not the parties to the above case. Later, the plaintiff has filed an application to implead the parties mentioned therein and also the legal heirs of deceased Kempaiah. In these circumstances, this defendant has been arrayed as 6th defendant in the above case. The 6th defendant respectfully submits that, Sy. No. 18/20 situated at Konasandra Village, Herohalli Hobli, Kanakapura Taluk, measuring to an extent of 4 acres had been divided equally amongst the brothers of deceased Ramaiah as per oral partition. Each brother had got 32 guntas share including karab (in two bits / piece of 16 guntas of land) and are cultivating the same separately / independently since from very long time. However, the property is standing jointly in the names as mentioned in the R. T. C. in respect of survey No.18/20. The children of Ramaiah are entitled for a share in survey No.18/20 to an extent of 32 guntas only (in two bits / piece of 16 guntas of land). However, by over sight the entire extent has been mentioned in the plaint. The particulars of the share allotted to this defendant in Sy.No.18/20 is mentioned in the schedule to this written statement. This defendant submits that, to avoid the repetition of the facts, the written statement filed by the Defendant Nos. 3 and 4 and the documents relied upon by the plaintiff in this case may kindly be read as part and parcel of this writ statement. All other averments of the plaint which are not specifically traversed herein and which are inconsistent with what is stated above are hereby denied and the plaintiff is put to strict proof of the same. Wherefore, the 6th defendant prays that, this court may be pleased to pass appropriate orders to protect and preserve the 24 O.S.179/2004 share of this defendant i.e., written statement schedule property in the above case in the ends of equity and justice.
WRITTEN STATEMENT SCHEDULE PROPERTY ALLOTTED TO THE SHARE OF MUDDAIAH All that piece and parcel of land bearing Survey No. 18 / 20 situated at Konasandra Village, Herohalli Hobli, Kanakapura Taluk measuring to an extent of 32 guntas including karab (in two bits / pieces of 16 guntas each) one piece / bit of land measuring 16 guntas of land is bounded on the East by: property allotted to the share of Puttaramaiah, West by: property allotted to share of Kempaiah, North by: Property of Krishna Nayaka and South by: Property of Gunashekara - another piece / bit of land measuring 16 guntas of land bounded on the East by: property allotted to the share of Puttaramaiah, West by: property allotted to share of Kempaiah, North by: Property of Shivamma and South by: Property of Krishna Nayaka
8. 9th defendant Puneeth Kumar S/o. Kempaiah has filed the written statement and in his written statement, he has taken similar contentions as contended by the 6th defendant. The 9th defendant has submitted that the survey No. 18/20 situated at Konasandra Village, Herohalli Hobli, Kanakapura Taluk, measuring to an extent of 4 acres may kindly be read as part and parcel of this written statement. The 9th defendant prays that this court may be pleased to pass appropriate orders to protect and preserve the share allotted to Sri Kempaiah i.e.. written statement schedule property in the above case in the 25 O.S.179/2004 ends of equity and justice.
WRITTEN STATEMENT SCHEDULE PROPERTY ALLOTTED TO THE SHARE OF SRI KEMPAIAH All that piece and parcel of land bearing Survey No. 18/20 situated at Konasandra Village, Herohalli Hobli, Kanakapura Taluk measuring to an extent of 32 guntas including karab (in two bits / pieces of 16 guntas of land each) one piece / bit of land measuring 16 guntas of land is bounded on the East by: property allotted to the share of Muddaiah, West by: property allotted to share of Puttaramaiah, North by: Property of Krishna Nayaka and South by: Property of Gunashekara - another piece / bit of land measuring 16 guntas of land bounded on the East by:
property allotted to the share of Muddaiah, West by: Sarakari Halla, North by: Property of Krishna Nayaka and South by Property of Shivamma.
9. The defendant Nos.7, 8 and 10 have filed memo dated 11.07.2023 adopting the written statement filed by the 9th defendant in this case.
10. a) The Defendant No. 1(i) and (ii) and 2 have filed their written arguments and submitted that, the counter claim of the Defendant No.4 and 5 is maintainable either in law or on facts, the suit filed by the plaintiff is not maintainable either in law and on facts and same is liable to be dismissed in limine, the suit is vexatious, suppressive vary and suggestio false. The plaintiff has not approached this court with clean hand and suppressed true and material facts before this court. Hence, the 26 O.S.179/2004 counter claim of the Defendant No.4 and 5 is maintainable under law. It is submitted that, regarding para 7 of the counter claim of the written statement it is true that the suit of the Plaintiff is not maintainable for reason that, the suit is bad for Non-Joinder of necessary property as such the counter claim of the filed by the Defendant No.4 and 5 seeking counter claim under order VIII Rule 6(a) before this Court by inserting landed property bearing Sy. No. 5/2 measuring an extent 0-30 guntas situated at Bhimasandra Village. Harohalli Hobli, Kanakapura Taluk which is granted to the Defendant No.6 on behalf of the joint family of the Defendants is factually true and correct, this Defendants further admitted that the Plaintiff has not inserted the said property in the above suit, as such this Defendants has inserted the above said property in the written statement for seeking equal partition and separate possession by meets and bounds by the this Defendants is factually true and correct, these Defendants are also entitled for equal share in respect of the Item No.II of the suit schedule property and written statement schedule property, this Defendants has no objection to partition the above said Item No.2 of the suit schedule property and written statement schedule property amongst the Defendants only. The Plaintiff has no manner of right, title and interest over the above said two properties.
10b) The Defendant No. 1(i) and (ii) and 2 have further contended that, regarding para 7 of the counter claim of the written statement is factually true and correct, this Defendant also seriously disputed relationship and claim of the LR's of 27 O.S.179/2004 Plaintiff by name Srinivasa Murthy, as such, the LR's of the Plaintiff put to strict proof of the same, further regarding the relationship narrated in the counter claim/written statement partly admitted and true and correct, the Defendant No 4 and 5 has not stated the relationship of the Defendant No.2 and 3, they are the daughters of Deceased Ramaiah and Defendant No.1. It is submitted that, regarding para 8 of the counter claim of the written statement, it is true that, during the life time of Sri. Muddaiah was rendered service of Inam in the village of Dyavasandra and Bhimasandra Villages, as such he was cultivating the below mentioned properties along with his family members and they were jointly cultivating the same for the livelihood of their family members, thereafter said Muddaiah was demised leaving behind his children as his legal heirs to succeed to his estate, subsequent to the death of said Muddaiah, his children are jointly cultivating below mentioned the properties as a joint family property, when the Inam Abolition Act 1954 came into force, the children of late Muddaiah filed application before the Land Tribunal to re-grant the below mentioned properties in their names, the land Tribunal considered the application of the children of Late Muddaiah re-grant the below mentioned the properties in the individual names of the children of deceased Muddaiah, namely Ramaiah (on behalf of the Ramaiah granted his wife by name Mahadevamma i.e., Defendant No.1), Puttaramaiah, Narayani, Muddaiah, Kempaiah all are factually true and correct.
10c) The Defendant No. 1(i) and (ii) and 2 have further 28 O.S.179/2004 contended that, regarding para 8 (i) of the Counter claim of the written statement, the Land bearing Sy. No.63 measuring an extent of 1 acre 35 guntas and another land bearing Sy. No. 64 measuring and extent of 2 acres 27 guntas and situated at Dyavasandra Village, Harohalli Hobli, Kanakapura Taluk same was re-granted by the Tahasildar Kanakapura Taluk, before re- grant of the above said land, there was partition between the children of deceased Muddaiah in respect of the above said two properties, the Tahsildar considered the oral partition and oral statement of the above said persons re- granted the above said land by dividing 1/5th share in the each name of children of deceased Muddaiah, as such, the Tahsildar Re-Granted land measuring 0-21 14 in the Sy. No. 64 and measuring 0-13 guntas in Sy. No.63 in the each names i.e., individual names of all the children of Muddaiah namely Ramaiah (on behalf of Ramaiah granted his wife by name Mahadevamma i.e., Defendant No.1), Puttaramaiah, Narayani, Muddaiah and Kempaiah as per the order dated 27/03/1995, subsequent to the re-grant, said land was phoded as new survey number i.e., 63/2 and 63/3 and 64/1 and accordingly RTC was reflected in the name of Defendant No. 1 to 5 and father of the Defendant No. 8 to 10 all are factually true and correct to the best of knowledge of this Defendant.
10d) The Defendant No. 1(i) and (ii) and 2 have further contended that, regarding para 8(ii) counter claim of the written statement, it is true that, the land bearing Sy. No.5 measuring an extent of 0-30 guntas situated at Bhimasandra Village, Harohalli 29 O.S.179/2004 Hobli, Kanakapura Taluk was re-granted by the Tahasildar of Kanakapura Taluk in the name of Defendant No.6 by name Muddaiah S/o Muddaiah on behalf of the joint family, accordingly the said Sy. No. phoded as new number 5/2, accordingly RTC Extract reflected in the name of the Defendant No.6 on behalf of the joint family is factually true and correct, further, before re- grant of the above said land, the Tahsildar Kanakapura Taluk issued notice to the Defendant No.5 to affect the katha in the name of Defendant No.6, thereafter he was attended before the Tahsildar and given oral consent to re-grant the said land in the name of Defendant No.6 on behalf of the Joint family, thereafter the Defendant No.4 and 5 approached the Defendant No.6 to effect the katha in the joint names of all the children of deceased Muddaiah, but the Defendant No.6 not came forward by change of katha in the joint names of the Defendants, in this regard, the Defendants filed a appeal before the Assistant Commissioner Ramanagara Sub-Division, Ramanagara bearing R.A. No.113/2011-12 to effect the joint katha in respect of the above said property. Thereafter, the authority was pleased to dispose the above case and given liberty to approach the Civil Court for seeking partition and separate possession in respect of the Sy. No. 5/2 measuring in extent 0-30 guntas situated at Bhimasandra Village, Harohalli Hobli, kanakapura Taluk, which is more fully described herein hereinafter referred to as Written Statement Schedule property, the above said property is undivided joint family property of the defendants, this Defendants entitle equal share in respect of the Item No. I of the Written Statement Schedule Property all are may be true and correct to 30 O.S.179/2004 the best knowledge of this Defendant, further submit that, the Defendant No. 1 to 3 are also entitle for equal share in respect of the above said property, as such this Defendant is entitle for equal share on the allotted share of the deceased Ramaiah.
10e) The Defendant No. 1(i) and (ii) and 2 have further contended that, regarding para 8(iii) of the counter claim of the written statement, it is true that the land bearing Sy. No.18/20 measuring an extent of 4 acres situated at Konasandra Village, Harohalli Hobli, Kanakapura Taluk, which is morefully described in the Item No.II of the suit schedule property, the said property is ancestral and joint family property of the Defendants, subsequent to the death of deceased Muddaiah, the revenue records transferred as a pavathivarasu, in the joint names of Defendant No.1, 4 to 6 and father of the 8 to 10 and father of the Defendant No. 8 to 10 as per the MR No. 40/2006-2007 dated 11/05/2007, the above said property is ancestral and joint family property and till today there is no partition effected in the family in respect of the Item No.2 of the suit schedule property as such the Defendant No.4 and 5 are entitled for equal share in the said property is factually true and correct, it is further submitted that the Defendant No. 1(i) and (ii) and Defendant No.2 and 3 are entitled for equal share on the allotted share of their father deceased Ramaiah, as such these Defendants are entitled for equal share in the counter claim schedule property. These defendants are ready to pay court fee on the Item No.2 of the suit schedule property and counter claim written statement property as prayed for. Therefore, the defendant 1(i), (ii) and 31 O.S.179/2004 Defendant No.2 pray to grant relief of partition and separate possession of equal share in respect of the Item No.2 of the suit schedule property and Counter claim written statement schedule property herein equally and equitably by division of metes and bounds.
11. The 2nd defendant has filed memo submitting that, PW-3 Srinivas Murthy K.M. who is claiming to be the beneficiary under the alleged Will of the deceased plaintiff has admitted in his cross-examination dated 03.08.2022 that late Muddaiah (paternal grandfather of PW-3) has 5 sons namely (1) M. Ramaiah (deceased-represented by his wife D1 (also dead) & children D(i), D(ii), D2 & D3), (2) Puttaramaiah, (3) Narayani, (4) Muddaiah (father of PW-3) and (5) Kempaiah since dead by his LRs. proposed defendants 7 to 10. Late Muddaiah according to PW-3 had 4 daughters namely (1) Hanumamma (late), (2) Boramma (late), (3) Jayamma and (4) Parvathi. In the impleading application dated 16.03.2023 the LRs. of the deceased daughters of late Muddaiah namely Hanumamma and Boramma and surviving daughters namely Jayamma and Parvathi who also have right and share in the suit schedule landed properties 2 to 4 have not been made parties. PW-3 in his cross-examination has admitted that, the house property at Konasandra Village is also the joint family property over which all the sons and daughters of late Muddaiah are having right and share. There is one more landed property of Kadujakkasandra survey number which is also the joint family property over which all the sons and daughters of late Muddaiah are having right and 32 O.S.179/2004 share and the same is under the possession and enjoyment of Muddaiah father of PW-3. This property also has to be included in the suit schedule properties and subjected for family partition. The plaintiff/PW-3 may kindly be directed to implead the legal heirs of the deceased daughters and surviving daughters of late Muddaiah to the suit and also Kadujakkasandra landed property as additional suit schedule for full and complete adjudication of right and share of all the legal heirs of late Muddaiah over the joint family properties. This is in the interest of justice to avoid filing of other cases in connection with the partition of joint family properties of late Muddaiah.
12. The rejoinder by way of written statement under Order 8 Rule 6(A) (3) of CPC to the counter claim made by the defendant Nos.4 and 5 in respect of their written statement schedule property, the legatee of the plaintiff begs to state as follows:
12a) The defendants 4 and 5 are formal parties in the above case. There are no pleadings against these defendants in the above suit. Initially, the daughter-in-law of Late Sri. Ramaiah i.e., Smt. Jayalakshmamma the plaintiff herein has filed the above suit for the relief of partition and separate possession in respect of the properties owned by her father-in-law Sri Ramaiah. Later, the defendants 2 and 3 have impleaded themselves in the above case by claiming a share as per the law of the land. During the pendency of the above case defendant No.1 Smt.Mahadevamma died. The other two daughters have 33 O.S.179/2004 been brought on record as a party defendants i.e., defendants 1
(a) and 1 (b), other 2 daughters are already on record as defendants 2 and 3. The property situated in Bengaluru is the self-acquired property of Sri Ramaiah. The said Ramaiah has purchased the said property in the name of his wife i.e., the 1st defendant herein. The 1st defendant does not have any kind of absolute rights over the same. The other suit schedule properties mentioned in the plaint have been allotted to the share of Ramaiah as per oral partition between his brothers very long back. After, his demise the katha in respect of those properties had been mutated in the name of his wife i.e., the 1st defendant herein. However, she does not have any kind of absolute rights over the same.
12b) It is further submitted that, the wife and children of Ramaiah have succeeded to the estate of the deceased Ramaiah. They are having the rights and shares over the suit schedule properties equally being the class I legal heirs of the deceased Ramaiah. The share of the deceased 1st defendant Mahadevamma had been amalgamated with the shares of the other family members. During the life time of 1st defendant the wife and children of Ramaiah are entitled for 1/6th share each in the suit schedule properties. After her demise, her children are entitled for 1/5th share each in the suit schedule properties. During the pendency of the above suit the plaintiff Smt Jayalakshmamma died. During her life time she had executed a registered Will, bequeathing to an extent of her share in the suit schedule properties in favour of K.M. Srinivas Murthy.34 O.S.179/2004
Therefore, the legatee of Smt Jayalakshmamma had stepped into her shoes. The legatee is entitled to an extent of share of the deceased plaintiff Smt. Jayalakshmamma in the above case. The above case was posted for Judgment. During that period the Hon'ble court has observed / noticed that in respect of item No. 2 of the suit schedule property i.e., Survey No. 18/20 situated at Konasandra Village, Herohalli Hobli, Kanakapura Taluk as per Exhibit P6 - standing in the joint names i.e., in the names of 1st defendant and the names of brothers of deceased Sri Ramaiah. The other parties mentioned therein are not the parties to the above case. Later, the plaintiff has filed an application to implead the parties mentioned therein and also the legal heirs of deceased Kempaiah. In these circumstances these defendants have been arrayed as defendants 4 and 5 in the above case for a limited purpose only.
12c) It is further submitted that, the Survey No.18/20 situated at Konasandra Village, Herohalli Hobli, Kanakapura Taluk, measuring to an extent of 4 Acres had been divided equally amongst the brothers of deceased Ramaiah as per oral partition. Each brother had got 32 Guntas share including karab (in two bits / piece of 16 guntas of land) and are cultivating the same separately / independently since from very long time. However, the revenue entries of the property are standing jointly in the names as mentioned in the R. T. C. in respect of survey No. 18/20. The children of Ramaiah are entitled for a share in survey No. 18/20 to an extent of 32 guntas only (in two bits / piece of 16 guntas of land). However, by over sight the entire 35 O.S.179/2004 extent has been mentioned in the plaint. The plaintiff humbly submits that to avoid the repetition of the facts the written statement filed by the Defendants 6 to 10 in the above case may kindly be read as part and parcel of this written statement to the counter claim of the defendants 4 and 5 in respect of their written statement schedule property. With the above facts in back ground, the legatee of the plaintiff traverses the various averments made by the defendants 4 and 5 in their counter claim in respect of their written statement schedule property.
12d) The counter claim made by these defendants in the above case is not maintainable either in law or on facts. The above suit is between the family members of deceased Ramaiah i.e., wife, daughters and daughter-in-law in respect of the suit schedule properties. In fact, the written statement schedule property is not at all a subject matter in the above suit. The above suit is not between the brothers of deceased Ramaiah. As stated above for a limited purpose the names which have been mentioned in the R.T.C. in respect of item No. 2 of the suit schedule property have been made / arrayed as a party defendants, pursuant to observations of this court. The defendants 4 and 5 are not in a position to understand the scope, ambit and gambit, rights of the parties in respect of suit schedule properties in the above suit. If these defendants intend to claim any share in the written statement schedule property, they have to file a separate suit against the concerned parties. The averments made in para 7 of the written statement under the head note counter claim do not convey any proper meaning.
36 O.S.179/2004As stated above the legatee of the deceased plaintiff K.M. Srinivas Murthy had stepped into the shoes of the plaintiff in the above case. Unfortunately, these defendants are not in a position to understand the same in its proper perspective, apart from that it has nothing to do with these defendants. The particulars of Sri Muddaiah mentioned in this para are all the matters of record. As stated above, the above suit is filed by the daughter-in-law of the deceased Ramaiah against the wife and daughters of the deceased Ramaiah. At the cost of repetition the plaintiff submits that the above case is not between the brothers of deceased Ramaiah. As stated above, these defendants have been made as party defendants for a limited purpose and they cannot go beyond that purpose. The averments made in para 8 of the written statement looks like as the matters of record. However, the plaintiff is not aware of the same. These defendants are put to strict proof of the same. The averments made in para 8 (i) of the written statement looks like as the matters of record. However, the plaintiff is not aware of the same. These defendants are put to strict proof of the same. These averments are not relevant to decide the lis between the family members of Ramaiah in the above case. As stated by them in this para they have to file a separate suit if they are having any kind of rights whatsoever on their written statement schedule property. Apart from that the averments made herein would not convey any proper meaning. These averments have been made to suit to the convenience of these defendants.
12e) The averments made in para 8 (ii) of their written 37 O.S.179/2004 statement in respect of their written statement schedule property would not convey any proper meaning. These averments have been made to suit to the convenience of these defendants. In this para these defendants have posed a question and answered the same. However, contrary to that they are claiming their alleged share in their written statement schedule property. Even, by their conduct they have estopped to claim or question the same. The averments made in para 8 (iii) of their written statement in respect of item No. 2 of the suit schedule property would not convey any proper meaning. As stated in the written statement of the defendants 6 to 10, already oral partition has taken place between the brothers of deceased Ramaiah and the respective parties, who are in peaceful possession and enjoyment of their respective shares in item No. 2 of the suit schedule property even prior to filing of the suit. The averments made in this para contrary to the stand taken by the plaintiff are hereby denied as false and these defendants are put to strict proof of the same. This court may be pleased to allot a share separately to the defendants 4 and 5 in respect of item No. 2 of the suit schedule property as per the oral partition held between the brothers of deceased Ramaiah. The share of the deceased Ramaiah in Item No. 2 of the suit schedule property along with other suit schedule properties have to be partitioned as claimed by the plaintiff and defendant No. 3 as per the law of the land in the above case. All other averments of the counter claim of the defendants 4 and 5 in respect of their written statement schedule property which are not specifically traversed herein and which are inconsistent with what is stated above are hereby denied as false and the defendants 4 and 5 are put to strict 38 O.S.179/2004 proof of the same. Therefore, the plaintiff prays that this court may be pleased to dismiss the counter claim of the defendants 4 and 5 in respect of their written statement schedule property with exemplary costs in the above case in the ends of equity and justice.
13. Based on the pleadings, my learned predecessor-in- office framed the following issues and additional issues are as under :-
ISSUES
1. Whether the plaintiff proves that, she is the daughter-
in-law of the defendant No.1 and Late M.Ramaiah ?
2. Whether the plaintiff further proves that the suit schedule property was purchased by her alleged father-in-law Late M.Ramaiah, husband of the defendant No.1 in the name of defendant No.1, as such, the suit schedule property is the joint family property of plaintiff and defendant No.1 ?
3. Whether the plaintiff is in lawful possession of the suit schedule property jointly along with the defendants on the date of suit ?
4. Whether the defendant No.2 proves that the suit schedule property is the self-acquired property of defendant No.1 ?
5. Whether the defendant No.2 further proves that the defendant No.1 gifted the suit schedule property under a registered gift deed on 05.01.2004 in favour of the defendant No.2 ?
6. Whether the plaintiff is entitled to the partition and separate possession ? If so, to what extent ?
39 O.S.179/20047. Whether the plaintiff is entitled to the injunction sought for ?
8. Whether the defendant No.3 is entitled to the partition and separate possession of 1/6th share in the suit schedule property ?
9. What Order or decree ?
ADDL. ISSUE DATED 08.03.2016
1. Whether the suit is bad for non-joinder of necessary parties ?
ADDL. ISSUE DATED 03.10.2023
1. Whether the defendant Nos.4 and 5 prove that the suit of the plaintiff is suffering from partial partition and plaintiff not included all the family properties of plaintiff and defendants ?
2. Whether the defendant Nos.4 and 5 prove that the property bearing No.7/34 has been purchased in the name of 1 st defendant by investing own fund of Late M.Ramaiah and it is the joint family properties of plaintiff and defendant ?
3. Whether the defendant No.4 and 5 prove that the genealogy furnished by the plaintiff is not proper ?
4. Whether the defendant No.4 and 5 prove that the oral partition was effected in respect of Sy.No.63 and 64 between the children of Muddaiah, thereafter, the Tahsildar regranted the land in their name to the extent of 1/5th share in the name of children of deceased Muddaiah ?
5. Whether the defendant No.4 and 5 prove that the Sy.No.5 to the extent of 30 guntas subsequently which is podded as Sy.No.5/2 was granted to defendant No.6 on behalf of the joint family and defendant No.4 and 5 are entitled for share in that land ?
6. Whether the defendant No.4 and 5 are entitled for relief as prayed in the counter claim ?
40 O.S.179/20048. In order to prove the case, original plaintiff Smt.H.Jayalakshmamma examined as PW.1 and got marked the documents at Ex.P.1 to Ex.P.7. Defendant No.6 Sri.Muddaiah, brother of M.Ramaiah examined as PW.2, one Sri.Srinivas Murthy K.M. examined as PW.3 and one witness Sri.Ramaiah M.N. as PW.4 and got marked Ex.P.8. On the other hand, the 2nd defendant Smt.R.Devamani examined as DW.1 and got marked Ex.D.1 to Ex.D.16. The defendant No.1(a) and 3rd daughter of Mahadevamma and Late M.Ramaiah examined as Dw.2, defendant No.3 Smt.R.Meenakshi examined as DW.3. Defendant No.5 Smt.Narayani examined as DW.4 and got marked the documents at Ex.D.17 to Ex.D.35.
9. Heard the arguments from both the sides. Perused the entire materials on record along with the written arguments and citations.
10. My findings on the above issues are as under :-
Issue Nos.1, 4, 5 and Addl. : In the affirmative, Issue No.4 dtd 03.10.2023 Issue No.2, 3, 6, 7, 8, Addl. : In the negative, Issue No.1 dtd 08.03.2016 and Addl. Issue Nos.1, 2, 3, 6 dtd.
3.10.2023
Addl. Issue No.5 : Does not survive for
dtd. 03.10.2023 consideration.
Issue No.9 : As per the final order;
for the following :-
41 O.S.179/2004
REASONS
11. Issue Nos.1 to 8 and addl. Issue No.1 dated
08.03.2013 and addl. Issue Nos.1 to 6 dated 03.10.2023 : All these issues and addl. issues are interconnected with each other, hence they are taken together for discussion in order to avoid repetition of facts.
12. To prove the facts in issue, original plaintiff Smt.Jayalakshmamma examined herself as PW.1 and she has reiterated the plaint averments in her evidence. In her evidence, she has stated that, she is the daughter-in-law of one Late Sri. M.Ramaiah and 1st defendant who died during the pendency of the suit. Her father-in-law Ramaiah was in Government Service in the Police Department. Out of his own earnings, Late M.Ramaiah during his lifetime had purchased an immovable property bearing No.7/34 i.e., suit schedule property and got the sale deed registered in the name of his wife ie., the 1 st defendant herein. It was a benami sale transaction. The 1st defendant was a housewife and she had no employment or business or no source of income to pay the sale consideration amount for purchase of the schedule property bearing property No.7/34. Consequent upon the purchase of the schedule property in the name of the 1 st defendant, the khatha was accepted in her name. Her father-in-
law M.Ramaiah died intestate leaving behind the defendants and son R.Srinivas, (her husband) as the successors to the schedule property. Her husband R.Srinivas was in joint possession and enjoyment of the schedule property. After demise of her father-in-
42 O.S.179/2004law Sri.M.Ramaiah, her husband had demanded for partition and separate possession of his share in the suit property No.1. Even though, the 1st defendant promised to effect partition, but failed to effect the partition. Her husband R.Srinivas died on 17.10.2003. She being the legally wedded wife and legal heir of her husband Sri.R.Srinivas, is legally entitled to half share of her husband's share in the suit schedule property.
13. Further, PW.1 has stated that, her father-in-law late Ramaiah had his undivided share in lands bearing Sy.No.18/20 measuring 4 acres of Konasandra Village of Horahalli Hobli, Kanakapura Taluk. However, his share was determined by oral partition among the brothers of Late Ramaiah and accordingly, the brothers of Ramaiah were actually cultivating the respective lands fallen to their shares. Even prior to 1998-99, the properties of Late Muddaiah was partitioned among the sons of Late Muddaiah i.e., brothers of Late Ramaiah and therefore, the share of Ramaiah was allotted in favour of his deceased wife Late Mahadevamma and in this regard, the entries made in M.R.No.1/98-99 in respect of lands bearing Sy.No.63/3 and Sy.No.64 in her name . In fact even in Sy.No.18/20, the share of Ramaiah was already allotted in favour of Smt.Mahadevamma. However, since the suit was pending, the defendants in order to deprive and deny her share, have shown as though it is standing jointly. However, in view of the partition already taken place between the brothers of Late Ramaiah, he had 0.13 guntas of land in Sy.No.63/3 and 0.21.04 guntas of land in Sy.No.64. Both lands situated at Dyavasandra Village, Harohalli Hobli, Kanakapura 43 O.S.179/2004 Taluk and the said properties have not been partitioned among the children of Late Ramaiah and they are standing in the name of Late Mahadevamma vide M.R.No.1/1998-99. Hence, she is entitled to 1/5th share out of the properties of Late Ramaiah including in the suit schedule lands bearing Sy.No.18/20 and also in the lands bearing Sy.No.63/3 and Sy.No.64.
14. After institution of the suit, the 2 nd defendant Smt.R.Devamma got impleaded herself as a party in the suit contending that, the suit schedule property has been gifted to her, subsequently, the 3rd defendant Smt.R.Meenakshi also got impleaded as a party in the suit by claiming that, she is the daughter of Late Ramaiah and she is entitled to her legitimate right and share in the schedule property. 2 nd defendant Smt.R.Devamma has supported to the case of the plaintiff and prayed to allot her share.
15. The 1st defendant Smt.Mahadevamma in her written statement has contended that, her husband M.Ramaiah, who joined CAR, Bengaluru City as Constable, except his monthly salary, he had no alternative source of income. His income through his salary was hardly sufficient to maintain the family consisting himself, the defendants and six children, two males and four females. In addition to that, he had to take care of his aged father, his step-mother, his four younger brothers and three sisters, all living at Konasandra Village, Harohalli Hobli, Kanakapura Taluk. M.Ramaiah was the eldest son in the family. He had to take care of welfare and maintenance of his brothers, 44 O.S.179/2004 sisters, parents and his own family in Bengaluru, only out of his monthly salary as City Armed Reserve Constable. He was not in a position to save any money or to acquire any property. He was finding it too difficult to maintain his own family with six children and the family of his parents with brothers and sisters in the Village. Further, as a housewife, she was trying to do petty business within her reach and capacity. She was a flower vendor at Police Quarters at Adugodi. In the morning and in the evening, she was running a petty shop in police quarters, she had a cow and she was selling milk in the police quarters. She was working as a tailor in the Police welfare centre at Adugodi Police Quarters and used to save some money out of her own earnings. She married M.Ramaiah in the year 1962 and since then, out of her earnings as flower vendor, petty shop keeper, milk vendor and tailor, in 1969, i.e., in a span of about 7 years, she with the aid and assistance of her parents having coconut garden at her native Thamasandra near Kanakapura Town, could mobilize a sum of Rs.1,000/- and had purchased a site formulated in Sy.No.68, Suddaguntepalya measuring 30 feet x 40 feet described in the suit schedule from its lawful owner Smt.Akkayamma through a registered sale deed dated 07.07.1969, the suit schedule property No.1 is her self-acquired property,thereby, the plaintiff is not entitled for any share in it. Further stated that however, M.Ramaiah, late husband of this defendant, had celebrated the marriage of his eldest son R.Srinivas with the plaintiff in the year 1988. But, the marriage never consummated and materialised as the plaintiff never joined R.Srinivas and she never led marital life with him. The plaintiff remained at Bommachanahalli and 45 O.S.179/2004 R.Srinivas stayed with her parents in Police quarters at Adugodi, Bengaluru. The marriage between the plaintiff and R.Srinvias was never consummated and the plaintiff is not the daughter-in-law of M.Ramaiah and this defendant. The plaintiff has no issues with R.Srinvias. Even now, the plaintiff is staying at Bommachanahalli in Ramanagara Taluk. The plaintiff is not the daughter-in-law of either M.Ramaiah or this defendant in the eye of law and as such, she is not entitled to succeed to the estate of R.Srinivas.
16. Further, 1st defendant Mahadevamma has further contended that, she is the widow of M.Ramaiah and her both sons are no more. She has four daughters namely R.Devamani, A.Meenakshi, R.Manjula and R.Padmavathi. The plaintiff has suppressed this fact and filed this suit only against the defendant and the suit is bad for non-joinder of necessary parties and liable to be dismissed. Her eldest daughter R.Devamani is given in marriage to her own younger brother by name Mahadevaiah, who is also employed in CAR as constable. R.Devamani and her husband have been assisting and taking care of this defendant and her family members right from the beginning. The marriage ceremony of R.Meenakshi and R.Manjula was celebrated by R.Devamani and her husband with their own cost. Now, the defendant's husband and her two sons being dead, this defendant and her unmarried daughter R.Padmavathi are under the care and maintenance by R.Devamani and her husband. The defendant having understood the sacrifice of R.Devamani and her husband towards the family of the defendant, the defendant out of her love and affection has given the suit schedule property to R.Devamani 46 O.S.179/2004 under registered gift deed dated 05.01.2004. By virtue of the gift deed executed by this defendant, the eldest daughter R.Devamani has become the absolute owner of the suit schedule property.
17. The defendant No.2 in her written statement has further contended that, the 1st defendant having understood the sacrifice of the 2nd defendant and her husband towards the family of 1 st defendant, the 1st defendant out of her love and affection has given the suit schedule item No.1 to her under the registered gift deed dated 05.01.2004. By virtue of the gift deed executed by the 1st defendant, she become the absolute owner of the suit item No.1 and she is in possession and enjoyment of the said property. In her additional written statement, she has admitted that, Late Ramaiah had his undivided share in the land bearing Sy.No.18/20 Further admitted that the four brothers of Late Ramaiah namely Puttaramaiah, Narayani, Muddaiah and Kempaiah are necessary parties for partition of the suit schedule item No.2. The sisters of Late Ramaiah stated above in para 2 of this additional written statement and other brothers of Late Ramaiah stated in para 3 of this additional written statement are proper and necessary parties to this suit and also admitted that item Nos.3 and 4 are ancestral and joint family properties of Late Ramaiah and are in joint possession of the said family, and contended that the suit is bad for non-joinder of necessary parties and the plaintiff has no right and share in any of the suit schedule properties.
18. The 3rd defendant in her written statement has contended that, the plaintiff has not made all the daughters of 47 O.S.179/2004 deceased Ramaiah as parties to this suit as they are also entitled for equal share on part with the plaintiff. The plaintiff is entitled only for 1/6th share in the suit schedule property. Further, she has admitted the case of the plaintiff.
19. The defendant Nos.4 and 5 in their written statement have admitted that there was partition between the children of deceased Muddaiah in respect of the above suit item Nos.3 & 4 properties. Further contended that the land bearing Sy. No.5 measuring an extent of 0-30 guntas situated at Bhimasandra Village, Harohalli Hobli, Kanakapura Taluk same was re- granted by the Tahasildar Kanakapura Taluk in the name of Defendant No.6 by name Muddaiah S/o Muddaiah on behalf of the joint family, accordingly the said Sy. No. phoded as new number 5/2, accordingly RTC Extract reflected in the name of the Defendant No.6 on behalf of the joint family, before re-grant of the above said land, the Tahsildar Kanakapura Taluk issued notice to the Defendant No.5, thereafter he was attended before the Tahsildar and given oral consent to re-grant the said land in the name of Defendant No.6 on behalf of the Joint family, thereafter the Defendant No.4 and 5 approached the Defendant No.6 to effect the katha in the joint names of all the children of deceased Muddaiah, but the Defendant No.6 has not came forward for change of katha in the joint names of the Defendants, in this regard, these Defendants filed an appeal before the Assistant Commissioner Ramanagara Sub-Division, Ramanagara bearing R.A.No.113/2011-12 to effect the joint katha in respect of the above said property, thereafter the authority be pleased to 48 O.S.179/2004 dispose the above case and given liberty to approach the Civil Court for seeking partition and separate possession in respect of the Sy. No. 5/2 measuring in extent 0-30 guntas situated at Bhimasandra Village, Harohalli Hobli, kanakapura Taluk, which is morefully described herein hereinafter referred to as ITEM NO.I of the Written Statement Schedule property, the above said property is undivided joint family property of the defendants, these Defendants entitle for equal share in respect of the Item No. I of the Written Statement Schedule Property.
20. Further, it is contended that the land bearing Sy. No.18/20 measuring an extent of 4 acres situated at Konasandra Village, Harohalli Hobli, Kanakapura Taluk, which is morefully described in the Item No.Il of the suit schedule property, the said property is an ancestral and joint family property of the Defendants, subsequent to the death of deceased Muddaiah, the revenue records transferred as a pavathivarasu, in the joint names of Defendant No.1, 4 to 6 and father of the D8 to D10 as per the MR No. 40/2006-2007 dated 11/05/2007, the above said property is an ancestral and joint family property and till today, there is no partition effected in the family in respect of item No.2 of the suit schedule property, as such, the defendant Nos.4 and 5 are entitled for equal share in the said property. Hence, the defendant Nos.4 and 5 pray to grant relief of partition and separate possession of 1/5th share in respect of the item No.2 of the suit schedule property and written statement schedule property herein equally and equitably by division of metes and bounds.
49 O.S.179/200421. 6th defendant Muddaiah in his written statement has contended that, this defendant is a formal party in the above case. Sy. No. 18/20 situated at Konasandra Village, Herohalli Hobli, Kanakapura Taluk, measuring to an extent of 4 acres had been divided equally amongst the brothers of deceased Ramaiah as per oral partition. Each brother had got 32 guntas share including karab (in two bits / piece of 16 guntas of land) and are cultivating the same separately / independently since from very long time. However, the property is standing jointly in the names as mentioned in the R. T. C. in respect of survey No.18/20. The children of Ramaiah are entitled for a share in survey No.18/20 to an extent of 32 guntas only (in two bits / piece of 16 guntas of land). However, by over sight, the entire extent has been mentioned in the plaint.
22. 9th defendant Puneeth Kumar S/o. Kempaiah in his written statement has taken similar contentions as contended by the 6th defendant. The 9th defendant has submitted that the survey No.18/20 situated at Konasandra Village, Herohalli Hobli, Kanakapura Taluk, measuring to an extent of 4 acres may kindly be read as part and parcel of this written statement. The 9th defendant prays that this court to pass appropriate orders to protect and preserve the share allotted to Sri Kempaiah.
23. The defendant Nos.7, 8 and 10 have filed memo dated 11.07.2023 adopting the written statement filed by the 9th defendant in this case.
50 O.S.179/200424. On 05.02.2024, the counsel for the defendant Nos.4 and 5 has filed memo praying to dismiss the counter claim as prayed in their written statement in respect of the written statement schedule properties.
25. In view of the contentions taken by the defendants, the initial burden is on the plaintiff to prove that, she is the daughter-in-law of the defendant No.1 and Late M.Ramaiah and the suit schedule property No.1 was purchased by her alleged father-in-law in the name of 1 st defendant out of his own earnings, as such, the suit property No.1 is the joint family property of plaintiff and other defendants and she is in lawful possession of the suit schedule property jointly along with the defendants on the date of suit. On the other hand, the burden is on the defendant No.2 to prove that, the suit schedule property is the self-acquired property of defendant No.1 and the defendant No.1 had gifted the suit schedule property under a registered gift deed on 05.01.2004 in her favour. The burden is on the defendant No.4 and 5 to prove that the oral partition was effected in respect of Sy.No.63 and 64 between the children of Muddaiah, thereafter, the Tahsildar re granted the land in their name to the extent of 1/5th share in the name of children of deceased Muddaiah and the Sy.No.5 to the extent of 30 guntas subsequently which is podded as Sy.No.5/2 was granted to defendant No.6 on behalf of the joint family and defendant No.4 and 5 are entitled for share in that land.
51 O.S.179/200426. PW.1 in support of her case has produced the documents at Ex.P.1 to Ex.P.7. Ex.P.1 is the encumbrance certificate in respect of property No.7/34. Ex.P.2 is the genealogical tree, wherein, it discloses that, R.Srinivas is the son and Defendant No.2 Devamma and defendant No.3 R.Meenakshi and defendant Nos.1(i) Manjula and defendant No.1(ii) Padma are the daughters of Ramaiah and 1st defendant Mahadevamma. Ex.P.3 is the legal notice got issued to the 1st defendant by her son R.Srinivas calling upon the 1st defendant to effect partition of the suit schedule property No.1 by metes and bounds. Ex.P.4 is the postal acknowledgment duly served on the 1 st defendant. Ex.P.5 is the death certificate of R.Srinivas, wherein, it discloses that, he died on 17.10.2003. Ex.P.6 is the RTC in respect of property bearing Sy.No.18/20 ie., suit item No.2 for the year 2014-15, which is standing in the joint names of 1st defendant Mahadevamma, who is the wife of M.Ramaiah and brothers of M.Ramaiah namely Puttaramaiah, Narayani, Muddaiah and Kempaiah measuring 4 acres of land. This shows that it is the ancestral property of M.Ramaiah and brothers of M.Ramaiah namely Puttaramaiah, Narayani, Muddaiah and Kempaiah, no partition is taken between the M.Ramaiah and brothers of M.Ramaiah namely Puttaramaiah, Narayani, Muddaiah and Kempaiah, This Court has given direction to implead the brothers of Late Ramaiah in this suit, hence, as per the direction of this Court, these persons have been impleaded as mentioned in the RTC.
27. Ex.P.7 is the RTC in respect of Sy.No.63/3 for the year 2014-15, i.e., suit item No.3, which is standing in the joint 52 O.S.179/2004 names of wife of Ramaiah i.e., 1 st defendant Mahadevamma, Narayana, Muddaiah, Kempaiah, wherein, Narayana has been shown 6 guntas and Muddaiah, Kempaiah and Mahadevamma are shown 13 guntas each. This documents show that, the partition was taken place between M.Ramaiah and brothers of M.Ramaiah namely Puttaramaiah, Narayani, Muddaiah and Kempaiah. The name of defendant No.1 is accepted to the extent of 13 guntas of land after the death of M.Ramaiah. This shows that, the property bearing No.63/3 is the family property of plaintiff and defendant Nos.1 to 3.
28. Ex.P.8 is the RTC for the year 2014-15 in respect of Sy.No.64 i.e., suit item No.4, which is standing in the names of Kuppaiah, Ningaiah, Puttaramaiah, Narayana, Muddaiah, Kempaia and 1st defendant Mahadevamma in respect of their respective share.
29. Ex.P.9 is the registered Will dated 11.12.2014 executed by plaintiff Jayalakshmi in favour of Srinivasmurthy K.M. in respect of the suit schedule properties. From the documents it shows that Suit Schedule properties are the family properties of Plaintiff and defendants Nos.1 to 3.
30. The 1st defendant in her written statement has taken contention that, the suit item No.1 is her self-acquired property and it was purchased out of her hard earned money. During the pendency of the suit, 1st defendant Mahadevamma died. To prove this fact, 2nd defendant R.Devamani examined as DW.1 and in her 53 O.S.179/2004 evidence, she has reiterated the facts narrated in her written statement and relied upon the documents at Ex.D.1 to Ex.D.16. Ex.D.1 is the original registered sale deed dated 07.07.1969 executed by Akkayyam in favour of 1st defendant Mahadevamma in respect of suit item No.1. Ex.D.2 and Ex.D.3 are the encumbrance certificates. Ex.D.4 to Ex.D.11 are the tax paid receipts. Ex.D.12 is the acknowledgment form. Ex.D.13 is the endorsement given by BBMP. Ex.P.14 is the gift deed executed by 1st defendant in favour of 2nd defendant in respect of Sy.No.78, site No.8, Suddaguntapalya, 1st Main Road, bearing Corporation No.78/8-46. Ex.D.15 and Ex.D.16 are the applications given and also acknowledgment for change of khata. From the documents, it shows that, the suit item no.1 was purchased by the 1 st defendant and it is her self-acquired property and the 1st defendant gifted the suit item No.1 in favour of the 2nd defendant.
31. The 1st defendant has contended that, her husband M.Ramaiah, who joined CAR, Bengaluru City as Constable, except his monthly salary, he had no alternative source of income. His income was not sufficient to maintain the whole family. He was not in a position to save any money or to acquire any property. He was finding it too difficult to maintain his own family with six children and the family of his parents with brothers and sisters in the Village. As housewife, she was trying to do petty business, she was a flower vendor at Police Quarters at Adugodi, she was selling cow milk in the police quarters and she was working as a tailor in the Police welfare centre at Adugodi Police Quarters and used to save some money. To show these facts, 54 O.S.179/2004 the defendant No.1 has not produced the bank statement to show that, she was saving the money and deposited into her bank account and out of it, she purchased the suit property, nothing is on record. But the PW.1 in her cross-examination at page 4 has stated like this, "it is true that, my father-in-law was addicted to liquor even prior to his marriage. It is true that, my father-in-law had joined service in Bengaluru City Reserve Police. It is true that, other than the income from the salary, my father-in-law had no other sources of income. It is true that, the salary income received by my father-in-law was not sufficient for his liquor habits. My parents-in- law had five children. It is true that, my mother-in-law was managing the family with great difficulty. It is true that, my mother-in-law in these difficult situations, out of the savings from her dairy business and flower vending business, purchased the suit property". Apart from the documents, the admission which is given by PW.1, who filed the suit, is sufficient to draw a presumption that, her father-in- law was addicted to liquor and he had no other income except his salary and the mother-in-law of the plaintiff had purchased the suit property out of her own savings. The admitted facts need not be proved under Sec.58 of the Indian Evidence Act.
32. In the instant case, the item No.1 is standing in the name of the defendant No.1. As per Sec.14(1) of the Hindu Succession Act, any property possessed by a female Hindu whether acquired before or after the commencement of this Act, shall be held by her as full owner. So, even for the sake of argument, in the instant case, if the 1st defendant has no sources of income to purchase the suit item No.1 and also even for the 55 O.S.179/2004 sake of argument, if the husband of the 1st defendant had given money and purchased the suit item No.1 in the name of his wife (defendant No.1), then also, it become the self-acquired property of the defendant No.1 and nobody has right to question the title and no one is entitled for share in the said suit item No.1.
33. The learned counsel for the defendant No.1 has argued that, (a) Benami - Purchase of property by wife - Though, consideration for sale transaction proceeded from husband his subsequent conduct showing his admission that title to property vested in wife - purchase by wife cannot be held to be benami for husband but she is herself the owner of the property. To substantiate his argument, he has relied upon the ruling reported in AIR 1965 SC Page 271 in the case of Kanakaarathanmmal V/S V.S. Loganatha Mudaliar & another. This ruling is aptly applicable to the case in hand, since the property acquired by a female is her self-acquired property. Hence, in the instant case, the item No.1 of the suit property is the self-acquired property of defendant No.1. As a owner, the defendant No.1 is having every right to dispose of the suit item No.1 to anybody.
34. The 2nd defendant, who is the daughter of Ramaiah and 1st defendant, examined as DW.1. In her evidence, she has stated that, she being the eldest daughter of her mother (1 st defendant), she is given in marriage to her mother's younger brother by name Jayamahadevaiah, who is also employed in CAR as constable. She and her husband also stayed in Adugodi Police Quarters in a different quarters. Her husband being the youngest 56 O.S.179/2004 brother of her mother, she being the eldest daughter, they i.e., herself and her husband used to assist her parents in their family problems and occasions. She and her husband celebrated the marriage of R.Meenakshi (D3) and R.Manjula (D1(i) with their cost. Her youngest Sister Padma, who is still unmarried is under their care and custody ever since her father died. Her mother was helpless in taking care of her youngest sister and her education. Her father died while in service due to ill-health as he had addicted to alcohol. Her mother (D1) out of her love and affection has given the suit schedule item No.2 to her under registered gift deed dated 05.01.2004. To prove the same, DW.1 (defendant No.2) has produced the registered gift deed as per Ex.D.14, it shows that, 1st defendant had executed Gift deed in favour of 2nd defendant. As discussed above, suit item No.1 is the self- acquired property of defendant No.1. Further, to reject the gift deed, the plaintiff has not sought for cancellation of the gift deed and nothing is elicited to believe that, the gift deed is created. Further, the plaintiff nowhere in the pleadings has not disputed regarding the Gift deed executed in favour of 2nd defendant and not prayed for cancellation. Hence, discussion on this document is not required.
35. Further to show that, execution of the gift deed at Ex.D.14 was not as per the wish of the donor or it was executed under misrepresentation and fraud, nothing is placed before this Court.
57 O.S.179/200436. Further DW.3 who is defendant No.3 has stated that, gift deed dated 05.1.2004 allegedly / fraudulently obtained by the 2nd defendant from the 1st defendant in respect of suit item No.1, which is not binding on her in any manner and the same do not take away her share through that alleged document. To prove that, the gift deed dated 05.1.2004 was fraudulently obtained by the 2nd defendant from the 1st defendant in respect of suit item No.1, no documents are placed. If really, the gift deed dated 05.1.2004 was fraudulently obtained by the 2nd defendant from the 1st defendant in respect of suit item No.1, she or the plaintiff could have lodged the complaint in this regard, but no documents are placed to establish that, the gift deed dated 05.1.2004 was fraudulently obtained by the 2nd defendant from the 1st defendant in respect of suit item No.1. Otherwise, the mother could have lodged the complaint in this regard, but the mother has also not lodged the complaint, on the other hand, the mother in her written statement has stated that, she had executed the gift deed in favour of 2nd defendant. Hence, it shows that, the 2 nd defendant got the gift deed without any fraud.
37. Further, DW.1 has stated that, her father Late Ramaiah had his undivided share in the suit item No.2 Sy.No.18/20. Her father had 4 sisters and 4 brothers namely Smt.Hanumahucchamma, Smt.Chikkolamma, Smt.Jayamma and Smt.Parvathamma and Sri.Puttaramaiah, Sri.Narayani, Sri.Muddaiah and Late Sri.Kempaiah and they are necessary parties. As per the Court direction, the brothers of Late Ramaiah were brought on recodr.
58 O.S.179/200438. Further, the defendant No.5, who is the brother of Late Ramaiah was impleaded as a party and examined as DW.4. DW.4 in his evidence has stated that, there was a partition between the children of Muddaiah in respect of Sy.Nos.63 measuring an extent of 1 acre 35 guntas and another land bearing Sy.No.64 measuring 2 acres 27 guntas, the Tahsildar has considered their oral partition and oral statement, regranted the above said land by dividing 1/5th share in the each name of children of deceased Muddaiah, as such, the Tahsildar re- granted the land measuring 21 ¼ in Sy.No.64 and measuring 0.13 guntas in Sy.No.63 in the each names of all the children of Muddaiah namely Ramaiah, Puttaramaiah, Narayani, Muddaiah and Kempaiah as per the order dated 27.03.1995, subsequent to the re-grant, the said land was phoded as new Sy.Nos. i.e., 63/2 and 63/3 and 64/1 and accordingly, RTC was reflected in the name of defendant Nos.1 to 5 and father of the defendant No.8 to 10.
39. From the above, it is crystal clear that, the partition was effected between the children of Muddaiah in respect of Sy.Nos.63 measuring to an extent of 1 acre 35 guntas and another land bearing Sy.No.64 measuring 2 acres 27 guntas. So, the discussion on suit land bearing Sy.Nos.63 and 64 is not required.
40. DW.4 has further stated that, the land bearing Sy.No.5 measuring an extent of 30 guntas situated at Bhimasandra Village, Harohalli Hobli, Kanakapura Taluk, was re-
59 O.S.179/2004granted by the Tahsildar, Kanakapura Taluk, in the name of defendant No.6 by name Muddaiah S/o. Muddaiah on behalf of the joint family. Accordingly the said survey number phoded as new number 5/2, accordingly, RTC Extract reflected in the name of the Defendant No.6 on behalf of the joint family, before re- grant of the above said land, the Tahsildar Kanakapura Taluk issued notice to the Defendant No.5, thereafter he was attended before the Tahsildar and given oral consent to re-grant the said land in the name of Defendant No.6 on behalf of the Joint family, thereafter the Defendant No.4 and 5 approached the Defendant No.6 to effect the katha in the joint names of all the children of deceased Muddaiah, but the Defendant No.6 has not come forward for change of katha in the joint names of the Defendants. In this regard, these Defendants have filed an appeal before the Assistant Commissioner Ramanagara Sub-Division, Ramanagara bearing R.A.No.113/2011-12 to effect the joint katha in respect of the above said property, thereafter the authority be pleased to dispose the above case and given liberty to approach the Civil Court for seeking partition and separate possession in respect of the Sy. No. 5/2 measuring in extent 0-30 guntas situated at Bhimasandra Village, Harohalli Hobli, kanakapura Taluk, which is morefully described herein hereinafter referred to as ITEM No.I of the Written Statement Schedule property, the above said property is undivided joint family property of the defendants, these Defendants entitled for equal share in respect of the Item No. I of the Written Statement Schedule Property. But to consider his written statement, on 05.02.2024, the defendant Nos.4 and 5 filed a memo to dismiss the counter claim in respect 60 O.S.179/2004 of the written statement schedule property. So, the discussion on written statement schedule properties do not arise as immaterial.
41. Further, DW.4 has stated that, the land bearing Sy. No.18/20 measuring an extent of 4 acres situated at Konasandra Village, Harohalli Hobli, Kanakapura Taluk, which is morefully described in the Item No.Il of the suit schedule property, the said property is ancestral and joint family property of the Defendants, subsequent to the death of deceased Muddaiah, the revenue records transferred as a pavathivarasu, in the joint names of Defendant No.1, 4 to 6 and father of the 8 to 10 as per the MR No. 40/2006-2007 dated 11/05/2007, the above said property is ancestral and joint family property and till today, there is no partition effected in the family in respect of item No.2 of the suit schedule property as such the defendant Nos.4 and 5 are entitled for equal share in the said property. Hence, the defendant Nos.4 and 5 pray to grant relief of partition and separate possession of 1/5th share in respect of the item No.2 of the suit schedule property and written statement schedule property herein equally by division of metes and bounds.
42. DW.4 in support of his case, has produced Ex.D.17 to Ex.D.35. Ex.D.17 is the genealogical tree by way of affidavit sworn by 5th defendant, wherein, it discloses that, Muddaiah had two wives namely Boramma and Siddamma.
Hanumuchchamma, M.Ramaiah (husband of D1 and father of D1(i) (ii) and D2 and D3), Chikkolamma, Puttaramaiah (D4) and 61 O.S.179/2004 Narayana @ Narayani (D5) are the children of Boramma and Jayamma, Muddaiah, Kempaiah, Parvathamma are the children of Siddamma. Ex.D.18 is the death certificate of Muddaiah, wherein, it discloses that, he died on 31.12.1991. Ex.D.19 is the RTC for the year 2013-14 in respect of Sy.No.63 standing in the names of Ningamma, Puttaramaiah, Muddaiah and Narayana. Ex.D.20 and Ex.D.21 are the RTCs for the year 2006-07, 2015- 16 in respect of Sy.No.64 standing in the name of Kuppaiah, Ningamma, Puttaramaiah, Narayana, Muddaiah, Kempaiah, Mahadevamma. Ex.D.22 and Ex.D.23 are the RTCs for the year 2003-2004 and 2008-09 in respect of Sy.No.5 standing in the name of Honnamma, Muddaiah. Ex.D.24 is the mutation extract in respect of Sy.No.64. Ex.D.25 and Ex.D.26 are the RTC for the year 1970-71, 71-72 and 1997-98 in respect of Sy.No.63. Ex.D.27, Ex.D.28, Ex.D.29 are the RTCs for the year 1970-71, 71-72 and 1997-98 and 2023-24 in respect of Sy.No.64. Ex.D.30 is the RTC in respect of Sy.No.5/2 for the year 2023-24 standing in the name Muddaiah. Ex.D.31 is the RTC for the year 2019-20 in respect of Sy.No.18/20 standing in the names of Mahadevamma, Puttaramaiah, Narayani Muddaiah and Kempaiah. Ex.D.32 to Ex.D.35 are the RTCs in respect of Sy.No.18/20 standing in the name of Propositor Muddaiah.
43. From the documents produced by the defendants, it shows that, except suit item No.1, other suit properties are the joint family properties of husband of the plaintiff and the defendants. However, the documents disclose that, except item No.2 property, remaining property Nos.3 and 4 have been 62 O.S.179/2004 partitioned. Suit item No.3 i.e. Sy.No.63/3 to the extent of 13 guntas each and suit item No.4 i.e., Sy.No.4 to the extent of 21.04 guntas each have been divided among the brothers of deceased Ramaiah namely himself, Puttaramaiah, Narayani, Muddaiah and Kempaiah. This aspect is not in dispute between both the parties.
44. Further, as discussed above, RTC at Ex.P.6 in respect of property bearing Sy.No.18/20 measuring 4 acres ie., suit item No.2 for the year 2014-15 standing in the joint names of 1st defendant Mahadevamma, who is the wife of M.Ramaiah and brothers of M.Ramaiah namely Puttaramaiah, Narayani, Muddaiah and Kempaiah measuring 4 acres of land. This RTC shows that, the names of five children of Muddaiah are continued in the RTC. Hence, this Court has given direction to include all the children of Muddaiah. After that, the plaintiff got impleaded the children of Muddaiah as defendant Nos.4 to 10. Under the said circumstances, Ramaiah, who is the father-in-law of the plaintiff is entitled for 1/5th share in the suit item No.2 i.e., Sy.No.18/2 measuring 4 acres.
45. Further, Ramaiah died leaving behind his two sons and four daughters. Out of them, one son died without marriage. Hence, there are 5 children to Ramaiah and 1 st defendant Mahadevamma. 1st defendant died during the pendency of the suit. Hence, the husband of the plaintiff, defendant Nos.1(i), 1(ii), 2 and 3 are entitled for 1/5th share each in the suit item No.2 bearing Sy.No.18/2 out of the share of Ramaiah.
63 O.S.179/200446. The documents further disclose that, there was a partition between Late Ramaiah and his brothers except suit item No.2 bearing Sy.No.18/20 long back during year 1994. At that time, the daughters of Muddaiah have no right in the suit item Nos.3 and 4 during the life time of their father. At that time, they were not the coparceners, since their marriage was celebrated prior to 1994. So, amendment to the Sec.6 of the Hindu Succession Act was brought in the year 2005. Hence, the daughters of Muddaiah were not necessary parties to claim their share. Further, in respect of item No. 2 is concerned, only the name of the defendant No.1 and brothers of Ramaiah is continued in the RTC even after the partition and all the brothers have also stated that, the partition was effected. To avoid the future complication, the brothers of Ramaiah are made as parties in this suit. If the daughters of Muddaiah have interest to get the share in Sy.No.18/20, they are at liberty to file the suit. So, in this case, they are not necessary parties.
47. From the documents on record, it shows that, all the suit schedule properties except item No.1 are the joint family properties of Muddaiah and his children and Sy.No.18/20 i.e., suit item No.2 was not divided among the brothers of Late Ramaiah and rest of the properties were divided among the brother of Ramaiah. But to consider the written statement of defendant Nos.4 and 5, on 05.02.2024 they filed memo to dismiss the counter claim in respect of the written statement schedule property. So, the discussion on written statement schedule properties do not arise as immaterial.
64 O.S.179/200448. During the pendency of the suit, the plaintiff died. Thereafter, her legatee namely Srinivas Murthy has come forward with the Will at Ex.P.9. He examined himself as PW.4. In his evidence, he has stated that, he is the beneficiary and presently plaintiff in this case and he is fully conversant with the facts of the case. He knows the defendants, who are the wife and daughters of Late M.Ramaiah. Deceased plaintiff is her aunty and . Her aunty Jayalakshmi died on 02.06.2019. The plaintiff had married R.Srinivas S/o. Late M.Ramaiah and that they were staying together until his uncle R.Srinivas had died in a road accident. Deceased plaintiff and her mother-in-law had received compensation from this Court. Pursuant to the death of Srinivas, the defendants in collusion with each other had prevented his aunty Jayalakshmi @ Jayalakshmamma from staying in the marital home along with her mother-in-law and therefore she was residing in her native place at Bomachannahalli, and since she did not had any source of income, he and his mother were supporting her both financially and also morally and therefore she was eking out her livelihood. Though the defendants were enjoying several joint family agricultural properties including house property at Bengaluru, which is part of the plaint schedule properties, however the plaintiff was not provided with any financial support by the defendants, even though they were earning rental income. Infact during the pendency of the above case, we were cultivating the schedule agricultural properties, as there were nobody to lookafter, however we were sharing the proceeds with the defendants. Since the deceased plaintiff was not given any share 65 O.S.179/2004 of her husband in the schedule properties inspite of her requests and finally, being left with no other option, the deceased plaintiff had filed this suit in O.S. No.179/2004 seeking for partition and allotment of her share by metes and bounds. He further stated that, during the pendency of this case, as stated above, the plaintiff was struggling to survive without any support from the defendants, hence he was looking after the needs and requirements of the deceased plaintiff, as her son, as there were no issues born to her. Further, during the pendency of the above case, she was suffering from cancer and therefore though we had supported her, but finally the plaintiff had died on 02.06.2019. Pursuant to her death, he came to know that during her lifetime, the deceased plaintiff has executed a registered Will dated 11.12.2018, bequeathing her share in all the schedule properties, which may be allotted by this Court, in her favour. He has stated that, he is the sole legal representative and beneficiary under the Will, as there are no issues born to her from her legal wedlock. As aforesaid, he was looking after the deceased without any expectations however she has executed registered Will in his favour, towards the love and affection. He has succeeded to the estate of the deceased plaintiff . The Will was in the custody of the counsel namely Sangeeta, which was handed over to him.
49. To prove the Will, PW.3 Srinivas Murthy/legatee has examined the attesting witness to the registered Will executed by the deceased plaintiff in his favour as PW.4. PW.4 in his evidence has stated that, deceased plaintiff namely Late Smt.Jayalakshmi, who was personally known to him as he was 66 O.S.179/2004 working in Dayananda Sagar PU College at Kumaraswamy Layout, Bengaluru, where the plaintiff had worked as a collie for a brief period as a gardener. He came to know that, on 02.06.2019, the plaintiff had passed away. He is aware that, deceased plaintiff had executed a registered Will dated 11.12.2018 in the name of Srinivas Murthy and he has signed as an attesting witness to the registered Will dated 11.12.2018. Further, PW.4 has stated that, prior to execution of the Will, the plaintiff had informed him that, she wanted to register the Will and therefore, she had requested with him to sign as an attesting witness to the said Will and therefore, she had appeared before the Sub-Registrar and has witnessed the signing and execution of the registered Will before him in the Sub-Registrar Office. The signature of the registered Will belongs to the deceased plaintiff only. There was no coercion or inducement in the execution of the registered Will, in the name of beneficiary. PW.4 got marked the Will at Ex.P.9 and his signature is marked at Ex.P.9(a). During the course of cross-examination of PW.4, nothing is elicited to disbelieve his evidence and the document.
50. Moreover, the defendants have contended that, the Will is created one, but they have not taken any steps to send the signatures of deceased plaintiff Jayalakshmamma for comparison with the disputed signatures. If really, the signature of deceased Jayalakshmamma is forged by the plaintiff, the defendants could have filed an application to send the signatures of deceased plaintiff Jayalakshmamma for comparison with the admitted signatures to prove that, deceased plaintiff 67 O.S.179/2004 Jayalakshmamma had not signed on the will and it is created one, but as stated above, the defendants have not filed any application. It shows that, deceased Jayalakshmamma had executed the Will, because of that reason, they have not filed any application for comparison of her signature. Further, If really, the Will is created one, the defendants could have lodged the criminal case on the ground that PW.3 is a stranger to the family of the plaintiff and he has created the Will by colluding with the PW.4 to knock of the family properties, but no action is taken. In the absence of satisfactory evidence from the side of defendants, it cannot be said that, the Will is created one. Under the said circumstances, the legatee of deceased plaintiff is entitled for respective share of deceased plaintiff.
51. In view of the facts and circumstances of the case, I am of the opinion that, the plaintiff has proved that, she is the daughter-in-law of defendant No.1 Mahadevamma and Late M.Ramaiah. The plaintiff has further proved that, except the suit schedule item No.1, other suit schedule item Nos.2 to 4 are the joint family properties of plaintiff and defendants. The defendant No.2 has proved that, the suit schedule item No.1 is the self- acquired property of defendant No.1 and she become the owner of the suit schedule item No.1 by virtue of the gift deed dated 05.01.2004 executed by the 1st defendant. On the other hand, the defendant Nos.4 and 5 have proved that, partition was effected in respect of suit item Nos.3 and 4 i.e., Sy.Nos.63 and 64 between the children of Muddaiah, thereafter, the Tahsildar regranted the land in their names to the extent of 1/5th share 68 O.S.179/2004 each. In view of the memo dated 05.02.2024 filed by the counsel for the defendant Nos.4 and 5, their counter claim in respect of the written schedule properties is dismissed. Accordingly, I answer Issue Nos.1, 4, 5 and Addl. Issue No.4 dated 03.10.2023 are in the affirmative, Issue No.2, 3, 6, 7, 8, Addl. Issue No.1 dated 08.03.2016 and Addl. Issue Nos.1, 2, 3, 6 dtd. 3.10.2023 are in the negative.
Addl. Issue No.5 dated 03.10.2023 does not survive for consideration.
52. ISSUE NO.9: In view of my aforesaid discussions, I proceed to pass the following: -
ORDER The suit of the plaintiff is hereby partly decreed in respect of suit schedule item Nos.2 to 4.
The suit of the plaintiff is hereby dismissed in respect of suit schedule item No.1 i.e., Sy.No.7/34.
The legatee of the deceased plaintiff, defendant Nos.1(i), 1(ii), 2, 3 namely Smt.Manjula, Smt.Padma, Smt.R. Devamma and Smt.R.Meenakshi respectively being the LRs of Late Ramaiah are entitled for 1/5th share each in suit schedule item Nos.3 and 4 i.e., Sy.Nos.63/3 and 64 and also they are entitled for 1/5th share in respect of suit schedule item No.2 i.e., Sy.No.18/20, out of the 1/5th share of Ramaiah.69 O.S.179/2004
Further the defendant Nos.4, 5, 6 namely Sri.Puttaramaiah, Sri.Narayani, Sri.Muddaiah and LRs of Kempaiah i.e., defendant Nos.7 to 10 are entitled for 1/5th share each in the suit schedule item No.2 i.e., Sy.No.18/20.
In view of the memo dated 05.02.2024, the counter claim of the defendant Nos.4 and 5 is hereby dismissed.
Draw the preliminary decree accordingly.
The plaintiff is hereby directed to file an application under Order 18 Rule 20 of CPC and to take steps to pass the final decree in this case as per the verdict of the Hon'ble Apex Court. Call on 31.05.2024.
(Dictated to the Stenographer-III directly on computer, corrected and then pronounced by me in the open court on this the 3rd day of April 2024) (SREENIVASA) I Addl. City Civil & Sessions Judge, Bengaluru.
70 O.S.179/2004ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS:
PW.1 : Smt.H.Jayalakshmamma.
PW.2 : Sri.M.Muddaiah.
PW.3 : Sri.Srinivas Murthy K.M.
PW.4 : Sri.Ramaiah M.N.
DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P.1 : EC.
Ex.P.2 : Genealogy tree.
Ex.P.3 : Legal notice.
Ex.P.4 : Postal acknowledgment.
Ex.P.5 : Death certificate of R.Srinivas.
Ex.P6 : RTC in respect of property bearing
Sy.No.18/20 ie., suit item No.2 for the year
2014-15.
Ex.P.7 : RTC in respect of Sy.No.63/3 for the year
2014-15, i.e., suit item No.3.
Ex.P.8 : RTC for the year 2014-15 in respect of
Sy.No.64
Ex.P.8 : Will.
Ex.P.8(a) to (f) : Signatures.
WITNESSES EXAMINED ON BEHALF OF DEFENDANTS:
DW.1 : Smt.R.Devamani.
DW.2 : Smt.R.Manjula.
DW.3 : Smt.R.Meenakshi.
DW.4 : Sri.Narayani.
71 O.S.179/2004
DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
Ex.D.1 : Original regd. sale deed dated 07.07.1969
Ex.D.2 & 3 : ECs.
Ex.D.4 to 11 : Tax paid receipts.
Ex.D.12 : acknowledgment form.
Ex.D.13 : Endorsement given by BBMP.
Ex.D.14 : Gift deed executed by D1 in favour of D2.
Ex.D.15 & 16 : Applications given and also
acknowledgment for change of khata.
Ex.D.17 : Genealogy tree.
Ex.D.18 : Death certificate of Muddaiah.
Ex.D.19 : RTC for 2013-14 in respect of Sy.No.63.
Ex.D.20 & 21 : RTCs for the year 2006-07, 2015-16 in
respect of Sy.No.64
Ex.D.22 & 23 : RTCs for the year 2003-2004 and 2008-09
in respect of Sy.No.5.
Ex.D.24 : Mutation extract in respect of Sy.No.64.
Ex.D.25 & 26 : RTC for 1970-71, 71-72 and 1997-98 in
respect of Sy.No.63.
Ex.D.27 to 29 : RTCs for the year 1970-71, 71-72 and 1997-98 and 2023-24 in respect of Sy.No.64.
Ex.D.30 : RTC in respect of Sy.No.5/2 for 2023-24. Ex.D.31 : RTC for 2019-20 in respect of Sy.No.18/20. Ex.D.32 to 35 : RTCs in respect of Sy.No.18/20 standing in the name of Propositor Muddaiah.
(SREENIVASA) I Addl. City Civil & Sessions Judge, Bengaluru.