Bangalore District Court
Sri.Ramaiah.B.H S/O.Late Ganagaiah vs Sri.Govindaiah S/O.Late Ganagaiah on 15 February, 2021
/1/ O.S.No.6348/2013
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE,
[CCH-40], BANGALORE CITY.
Dated on this the 15th day of February, 2021.
-: PRESENT :-
Sri.Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 6348/2013
Plaintiff:
Sri.Ramaiah.B.H S/o.Late Ganagaiah,
63 years, R/o. No.16 (Old No.54), 12 th
Main, Kalappa Block, Srinagar,
Bangalore-560 050.
[By Sri.Raghupathy.P.V. Adv.,]
/ VERSUS /
Defendants:
1. Sri.Govindaiah S/o.Late Ganagaiah.
Since deceased by his LRs :
a) Smt. Lalitha W/o.Late Govindaiah G.,
50 Years.
b) Anil Kumar S/o.Late Govindaiah.G., 30
Years.
c) Smt. Anitha D/o.Late Govindaiah.G.,
28 Years.
/2/ O.S.No.6348/2013
All are R/o.No. 37/15, 7th Cross, Azad
Nagar, Chamarajapet, Bangalore - 18.
2. Sri.Raju.G S/o.Late Gangaiah, 58
years.
3. Smt.Lakshmi Devi D/o.Late Gangaiah,
53 years.
4. Smt.Vijayakumari D/o.Late Gangaiah,
53 years.
Defendants No.2 to 4 are R/o.No.191/64,
11th Main, 3rd Cross, Pipeline, Kalappa
Block, Srinagar, Bangalore-560 050.
(By Sri.Sangamesh.R.B, Advocate
Defendant No.2 and 1(c) - Ex-parte
D.1(a),(b) - by Sri.N.S.V., Advocate)
¯¯¯¯¯
Date of Institution of the
: 30.08.2013
suit
Suit for partition, separate
Nature of suit : possession and declaration.
Date of commencement of
evidence : 13.03.2018
Date on which the
judgment is pronounced : 15.02.2021
Years Months Days
Duration taken for disposal :
07 05 13
/3/ O.S.No.6348/2013
JUDGMENT
Plaintiff has filed the present suit against the defendants for the relief of partition and separate possession of his 1/5th share in the suit schedule property by metes and bounds and for declaration that the gift deed dated 22.4.2006 executed by Gangaiah in favour of defendant No.3 in respect of suit schedule property is not binding on the plaintiff.
2. It is the case of plaintiff that, plaintiff and defendants No.1 to 4 are the sons and daughters of Gangaiah and Smt. Thimmamma. The father of plaintiff and defendants died on 24.5.2006 and mother died on 8.3.2006 leaving behind plaintiff and defendants as their legal heirs. During the lifetime of said Thimmamma, she had acquired a house property bearing No.191/64 situated at 11th Main, 3rd Cross, Kalappa Block, Pipeline, /4/ O.S.No.6348/2013 Srinagara, Bengaluru - 50 measuring East - West 45 Feet and North - South 30 Feet through a registered Sale Deed dated 16.10.1998. The plaintiffs and defendants constituted a joint Hindu family, having inherited the suit schedule property. The mother of plaintiff and defendants has acquired the suit schedule property through her own earnings. The plaintiff and defendants are in joint possession of the suit schedule property. The defendant No.3 in collusion with Gangaiah has created a gift deed dated 22.4.2006. The defendant No.3 has created the said gift deed only with an intention to deprive the legitimate right of plaintiff and defendants No.1 and 4. The said Gangaiah has no right to transfer the suit schedule property to any person much less to defendant No.3 without participation of Smt. Thimmamma in the gift proceedings. The said Thimmamma is an illiterate lady and she is not aware of the documents except knowing to sign her signature. The defendant No.3 by taking /5/ O.S.No.6348/2013 advantage of illiteracy of parents of the plaintiff and defendants has created the alleged gift deed. On the basis of said gift deed the defendant No.3 will not get the absolute ownership over the property. After the death of parents of plaintiff and defendants, plaintiff made several requests to defendant No.3 for effecting partition of the suit schedule property, but the defendant No.3 refused to the request made by the plaintiff. Therefore, the plaintiff got issued a legal notice on 11.4.2011 to the defendants calling upon them to partition the suit schedule property by metes and bounds. The defendants have received the said notice, but have failed to partition the suit schedule property. Hence, he prayed for decreeing the suit.
3. After institution of the suit, suit summons were issued to the defendants. Defendants No.1 and 2 appeared through their counsels. The defendants No.3 and 4 remained absent. Hence, they were placed ex-
/6/ O.S.No.6348/2013 parte. During the pendency of the suit, defendant No.1 died. His legal heirs brought on record. Though the defendant No.2 appeared through his counsel, but has failed to file his written statement within stipulated period. Hence, written statement of defendant No.2 is taken as not filed. Defendants No.1(a) to (c) filed their written statement. Defendants No.1 (a) to (c) denied the claim of the plaintiff, but admitted the relationship between the parties and have claimed share in the suit schedule property. The legal heirs of defendant No.1 contended that Gangaiah has no right over the suit schedule property. Defendant No.3 in collusion with said Gangaiah has created the gift deed. The said gift deed is not binding upon them. Hence, they prayed for allotment of their share in the suit schedule property.
4. On the basis of the pleadings and documents of the parties, the following issues were framed on /7/ O.S.No.6348/2013 8.8.2019 :
(1) Whether the plaintiff proves that the suit schedule property is the self-
acquired property of parents of plaintiff and defendants ? (2) Whether the plaintiff proves that he has got 1/5th share in the suit schedule properties ?
(3) Whether the plaintiff proves that gift deed dated 22.4.2006 is not binding upon his share ?
(4) Whether the defendants No.1(a) and
(b) prove that they have got share in the suit schedule property ?
(5) What order or decree?
5. The plaintiff himself examined as P.W.1 and got marked documents as Exs.P.1 to P.8. The defendants have not led evidence.
6. Heard the arguments.
/8/ O.S.No.6348/2013
7. My findings on the above issues are as follows:
Issue No.1 : In the affirmative.
Issue No.2 : In the affirmative.
Issue No.3 : In the affirmative.
Issue No.4 : In the affirmative.
Issue No.5 : As per final order, for the
following :-
REASONS
8. Issues No.1 and 3 :- In order to avoid
repetition of facts and evidence, these issues are taken up together for common discussion.
9. On perusal of the entire pleadings, oral and documentary evidence produced by both the parties, it clearly goes to show that the relationship between the parties is admitted. It is also admitted fact that, the mother of the plaintiff and defendants has purchased the suit schedule property on 16.10.1998 as per Ex.P.1 - Sale Deed. The plaintiff claims that the suit schedule property /9/ O.S.No.6348/2013 is the joint family property, but defendant No.2 denied the claim of the plaintiff and has contended that his father made gift deed dated 22.4.2006 in favour of defendant No.3 as per Ex.P.5.
10. In order to establish his case, plaintiff himself examined as P.W.1 and got marked the documents Exs.P.1 to P.8. P.W.1 deposed that, himself and defendants are the children of Gangaiah and Thimmamma. During the lifetime of Thimmamma, by her own earnings she has purchased the suit schedule property on 16.10.1998 as per Ex.P.1. Exs.P.7 and 8 are the certified copies of the Encumbrance Certificates in respect of the suit schedule property. As per sale deed her name has been mutated in the revenue records. Both the parents have died intestate. Exs.P.2 and P.3 are the Death Certificates of Thimmamma and Gangaiah. Himself and defendants are the only legal heirs of deceased / 10 / O.S.No.6348/2013 Thimmamma and Gangaiah. Ex.P.4 is the genealogical tree. After the death of Thimmamma, himself and defendants have succeeded the estate of Thimmamma. The said Thimmamma was an illeterate woman. The defendant No.3 with an intention to cause loss to the plaintiff and defendant No.4 has created the gift deed allegedly executed by Gangaiah in his favour as per Ex.P.5. Gangaiah has no right to execute the gift deed in favour of defendant No.3. After the death of Thimmamma and Gangaiah, he made request to the defendants for effecting the partition in respect of suit schedule property, but the defendants have postponed the effecting of partition on one or the other pretext. Therefore, he got issued legal notice on 11.4.2011 as per Ex.P.6. Hence, he prayed for decreeing the suit.
11. The counsel for defendant No.2 cross-examined P.W.1 in length, but nothing worth has been elicited from / 11 / O.S.No.6348/2013 the mouth of P.W.1. The counsel for defendant No.2 made a suggestion that house bearing No.54, New No.16 situated at Kalappa Block, Srinagar, Bengaluru has been purchased out of the joint family nucleus. Witness denied the said suggestion. The counsel for defendant No.2 further made a suggestion that the suit schedule property has been purchased out of joint family nucleus, witness denied the said suggestion also. Though the counsel for defendant No.2 cross-examined P.W.1 elaborately, but there is no suggestion as regards to the alleged gift deed i.e., Ex.P.5.
12. The counsel for defendant No.2 argued that the suit schedule property and the property bearing No.54, New No.16, situated at Srinagar, Bengaluru has been purchased out of the joint family nucleus and during the lifetime of Gangaiah and Thimmamma, partition had been effected. As per said partition deed, the suit / 12 / O.S.No.6348/2013 schedule property is fallen to the share of defendants No.2 and 3 and the house No.54, New No.16 has fallen to the share of plaintiff. The plaintiff has no right to seek the partition, hence, he prayed for dismissal of suit.
13. Though the counsel for defendant No.2 vehemently argued about the earlier partition, but the defendants have failed to produce document in order to show that there was earlier partition between plaintiff and defendants. In order to substantiate his defence, defendant No.2 has not stepped into the witness box, even there is no pleading to substantiate his defence. It is well settled law that without pleadings and evidence Court cannot grant the relief. Hence, the contention of the defendant No.2 is not sustainable one.
14. On perusal of the Ex.P.1 - Sale Deed in respect of suit schedule property bearing No.184/1, measuring East - West 45 Feet, North - South 30 Feet situated at 11 th / 13 / O.S.No.6348/2013 Main, 3rd Cross, Kalappa Block, Srinagar, Bengaluru - 50, it clearly reveals that the said property has been purchased by the mother of the plaintiff and defendants. As per Section 14 of Hindu Succession Act the suit schedule property is the absolute property of Thimmamma.
15. Admittedly, the father of the plaintiff died on 24.5.2006. Ex.P.3 is the Death Certificate of Gangaiah. The mother of the plaintiff died on 8.3.2006. Ex.P.2 is the Death Certificate of Thimmamma. Admittedly, the said Thimmamma during her lifetime has purchased the suit schedule property. The said Thimmamma was the absolute owner of the suit schedule property. The said Thimmamma died intestate.
16. The counsel for the plaintiff argued that suit schedule property has been purchased by mother of the plaintiff and defendants, after the death of their mother, / 14 / O.S.No.6348/2013 plaintiff and defendants have got equal share in the suit schedule property. Hence, the gift deed executed by Gangaiah in favour of defendant No.3 is not binding on the share of plaintiff and also relied upon the decisions reported in (1987) 3 Supreme Court Cases 294 (Thamma Venkatasubbamma Vs. Thamma Rathnamma and others) and another decision reported in (1993) 4 Supreme Court Cases 392 (Pavitra Devi and another Vs. Darbari Singh and another). On perusal of the both the decisions, the Hon'ble Apex Court held in both the decisions that, "Alienation of coparcenary property - gift - mithakshara law - gift by a coparcener of his undivided coparcenary interest to another coparcerner without consent of other coparceners void". In this case also, after the death of Thimmamma plaintiff and defendants are entitled to succeed to her estate. The said Gangaiah has no right to execute gift deed in favour of defendant No.3 without the consent of other legal heirs. The above / 15 / O.S.No.6348/2013 said decisions of Hon'ble Apex Court are applicable.
17. Defendant No.2 claims that his father has executed gift deed on 22.4.2006 in respect of suit schedule property in favour of defendant No.3 as per Ex.P.5. As per Section 122 of the Transfer of Property Act the owner of the property can execute the gift deed. Admittedly as on the date of alleged gift deed dated 22.4.2006, the suit schedule property was standing in the name of Thimmamma. During the lifetime of Thimmamma, Gangaiah has no right to dispose off the property either in favour of defendant No.3 or anybody else. It is well settled law that "nemo dat quad-non habet", no one gives what they do not have. Hence, the said Gangaiah has no right to execute the said gift deed. On the basis of said gift deed defendant No.3 will not get any proprietory rights over the suit schedule property. Accordingly, the alleged gift deed i.e., Ex.P.5 is not binding upon the plaintiff. Accordingly, I answer Issue / 16 / O.S.No.6348/2013 No.1 and 3 in the affirmative.
18. Issue No.2 and 4 : - As discussed supra, the suit schedule property is the absolute property of Thimmamma. After the death of Thimmamma as per Section 15 of the Hindu Succession Act the plaintiff and defendants being the Class-I heirs are equally entitled to the estate of Thimmamma. Accordingly, I answer Issue No.2 and 4 in the affirmative.
19. Issue No.5 : - For the foregoing reasons, I proceed to pass the following :
ORDER Suit of the plaintiff is hereby decreed. Plaintiff and defendants No.3 and 4 are entitled to 1/5th share and defendant No.1(a) to 1(c) are together entitled 1/5 th share in the suit schedule property. The gift deed dated 22.4.2006 executed by the father of the plaintiff infavour of defendant No.3 is null and void.
/ 17 / O.S.No.6348/2013 Looking into the relationship of the parties no order as to costs.
Draw preliminary decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 15th day of February, 2021.) (KHADARSAB) XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : B.H.Ramaiah.
2. List of documents exhibited for plaintiff:
Ex.P.1 : C/c of sale deed dated 16.10.1998 Ex.P.2 : Death Certificate of Thimmamma.
Ex.P.3 : Death Certificate of Gangaiah.
Ex.P.4 : Genealogical tree
Ex.P.5 : C/c of gift deed dated 22.4.2006.
Ex.P.6 : C/o legal notice dated 11.4.2011.
Ex.P.7 & 8 : C/o encumbrance certificates / 18 / O.S.No.6348/2013
3. List of witnesses examined/documents exhibited for the defendants : -
- NIL -
(KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***
/ 19 / O.S.No.6348/2013
15/02/2021
Judgment pronounced in the Open Court, vide separate Judgment :
ORDER Suit of the plaintiff is hereby decreed. Plaintiff and defendants No.3 and 4 are entitled to 1/5th share and defendant No.1(a) to 1(c) are together entitled 1/5 th share in the suit schedule property.
The gift deed dated 22.4.2006 executed by the father of the plaintiff infavour of defendant No.3 is null and void.
/ 20 / O.S.No.6348/2013 Looking into the relationship of the parties no order as to costs.
Draw preliminary decree accordingly.
(KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.