Bangalore District Court
Mr.N.Vijayakumar vs Mr.N.Chellanmani on 21 October, 2016
IN THE COURT OF THE V ADDL. CITY CIVIL JUDGE,
AT BANGALORE CITY.
DATED THIS THE 21st DAY OF OCTOBER, 2016
PRESENT
Sri.Muhammed Khan .M. Pathan,
B.Com., LL.B.(Spl), LL.M.(Business Law)
V ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE
O.S.NO.6166/2013
PLAINTIFF/S: Mr.N.Vijayakumar
S/o.Late P.Natarajan
Aged about 49 years
Presently R/a.No.5, Dhanush Nilayam
3rd Floor, 19th main, BTM 1st Stage,
Raghavendra Colony
Bangalore-560 029.
(By Sri. G.Nanda Kumar, Advocate)
/VS/
DEFENDANT/S: 1. Mr.N.Chellanmani
S/o.Late P.Natarajan
Aged about 56 years
R/a.No.325, 37th 'B' Cross, 9th Block,
Jayanagar,
Bangalore-560 069.
(By Sri. Mariappa.M.S., Advocate)
2. Mrs.Chandrakala
D/o.Late P.Natarajan
W/o.L.Krishnamurthy
Aged about 65 years
R/a.No.26, 2nd Cross,
L.K.Sannadthi,
Chikka Audugodi
Bangalore-560 029.
(Ex-parte)
3. Mrs.Sasi Kala Balaraman
2 O.S.No.6166/2013
D/o.Late P.Natarajan
W/o.Sri Balaraman
Aged about 58 years
R/a,.No.80, 2nd Stage, 1st Cross,
K.R.Garden
Jeevanahalli,
Cox Town,
BANGALORE-560 028.
4. Mrs.D.Manjula
D/o.Late P.Natarajan
W/o.Sri G.Dhanapal
Aged about 51 years
R/a.No.5, Dhanush Nilayam
Raghavendra Colony
19th Main, 1st Cross,
BTM Layout 1st Stage,
Bangalore-560 029.
5. Mrs.Vanitha Lakshmi
D/o.Late Shanthakala
Aged about 40 years
Presently residing at No.5,
Dhanush Nilayam, 3rd Floor,
19th main, BTM 1st Stage,
Raghavendra Colony,
BANGALORE-560 029.
6. Mr.R.Sudhakar
S/o.Late Shanthakala
Aged about 36 years
Thokathimanadoddi
Kagalahalli Post, Harohalli Hobli
Kanakapura Taluk
Ramanagara District,
Ramanagara-562 112
7. Mr.R.Prabhakaran
S/o.Late Shanthakala
Aged about 32 years
Resident of Thurunjikuppam Village,
Vellakuttai Post
(Via) Vaniyambadi
Vellore District
Tamil Nadu.
3 O.S.No.6166/2013
8. Mr.R.Bhaskar
S/o.Late Shanthakala
Aged about 34 years
R/a.No.404, 2nd 'A' main road
4th Phase, J.P. Nagar,
Bangalore-560 078.
(D3 to 8 - By Sri A.Viji Kumar,
Advocate).
Date of Institution of the 23-08-2013
suit
Nature of the suit (suit on Partition
pronote, : suit for declaration
and possession ,suit for
injunction, etc.)
Date of Commencement of 06-10-2015
recording of evidence
Date on which judgment was 21-10-2016
Pronounced
Duration Years Months Days
03 01 27
(Muhammed Khan .M. Pathan)
V ADDL.CITY CIVIL JUDGE
BANGALORE
*****
JUDGMENT
The plaintiff's suit is for partition and separate possession of the rightful share to an extent of 4/6th share in suit schedule property and for permanent injunction restraining the defendant from interfering 4 O.S.No.6166/2013 with plaintiff's peaceful possession and restraining the defendant from alienating the suit schedule property.
2. The brief facts of the plaint averments are as under:
The suit property bearing site No.325, situated in 9th Block, Jayanagar, Bangalore, presently House No.325, 37th 'B' cross, 9th Block, Jayanagar, Bangalore, measuring East to West 30 feet and North to South 33 feet is acquired by the father of the plaintiff and defendant Late P.Natarajan and it is his self-acquired property. Plaintiff's father has constructed the house over the said site. His father died intestate leaving behind the plaintiff and defendants as legal heirs to succeed to his estate. His mother Smt.Shivagami expired on 24/06/1998 and plaintiff's sister Shanthakala expired on 07/09/1983 leaving behind defendant Nos.5 to 8 as her legal heirs. The ground floor of the suit property has been occupied by the plaintiff and 1st defendant is residing in the first floor 5 O.S.No.6166/2013 and their sisters defendant Nos.2 to 4 are married and living with their family. After the death of late P.Natarajan, dispute arose among the family. The plaintiff demanded the share, but the defendants postponed on one or the other pretext. He caused legal notice on defendants on 05/06/2013. The notice is served to the defendant. The 1st defendant has issued an untenable reply. For that plaintiff has stated that sent a rejoinder to the reply notice. The defendant Nos.3 to 8 expressed their desire to release their respective undivided share in the schedule property in favour of the plaintiff. They have executed the registered release deed in their favour relinquishing their right over the suit property by way of registered release deed. The defendant Nos.5 to 8 are the children of late Smt.Shanthakala. They have jointly executed the release deed in favour of the plaintiff. The plaintiff is entitled to an extent of 4/6th share in the suit property. The defendant Nos.3 to 8 are made as formal parties. Therefore, the plaintiff prays to decree 6 O.S.No.6166/2013 the suit allotting 4/6th share in the suit property and for grant of permanent injunction against the 1st defendant. Hence, this suit.
SUIT SCHEDULE PROPERTY All the piece and parcel of the house built on Site bearing No.324, situated at 9th Block, Jayanagara, Bangalore, presently known as House No.325, 37th 'B' Cross, 9th Block, Jayanagara, bangalore-69, measuring East to West : 30 feet and North to South - 33 feet bounded as on the East by : Site No.326 West by : Site No.324 North by : Road South by : Site No.334
3. The defendant made his appearance and the contesting defendant i.e., 1st defendant has filed his written statement denying plaint averments. Relationship is not in dispute. According to the defendant, oral partition took place between family members and 50% of the share is allotted to the 1st defendant and 50% to the plaintiff and accordingly he 7 O.S.No.6166/2013 was put in possession of the 1st floor and he is residing in the 1st floor as the absolute owner since last twenty years. The plaintiff is residing in the ground floor.
Further, the defendants' father had purchased two more sites, one situated at Hosur and the another site at Bangalore bearing no.34, 4th Cross, Muneshwara Nagar, Bandepalya Post, Bangalore. But the sale deeds were made in the name of the present the plaintiff as they were all in good terms. The plaintiff was not having any job when the sites were purchased, he was a mechanic hardly earning Rs.700/- to Rs.750/- per month, to give him moral support these sites were registered in his name and the sites were purchased by this defendant and his father. The sites were not included in the oral partition as it was decided to divide them on subsequent date. The plaintiff taking undue advantage of the sites standing in his name has not included in the suit. This 8 O.S.No.6166/2013 suit for partial partition is not maintainable. Therefore, he prays to dismiss the suit.
4. The other defendants have filed separate written statement supporting the case of the plaintiff and contended that on account of certain differences and dispute between plaintiff and first defendant, the partition of the suit schedule property by metes and bounds is being postponed for the reasons best known to the 1st defendant. In view of the partition of the suit schedule property being delayed, these defendants have executed a registered release deeds relinquishing all their right and interest in the schedule property to the extent of their respective 1/6th share in favour of the plaintiff. In view of execution of release deeds in respect of their undivided 1/6th share in the suit schedule property, these defendants have no any subsisting interest to contest the suit. Hence, prayed to decree the suit by allotting 3/6th share of these defendant in favour of the plaintiff.
9 O.S.No.6166/2013
5. On the basis of the above pleadings, the following issues are framed ;
1) Whether the plaintiff proves that he has got 4/6th share in the suit schedule property?
2) Whether the defendant No.1 proves that already there is oral partition in respect of suit schedule property?
3) Whether the suit is bad for partial partition?
4) What order or decree?
.6. The plaintiff has filed his affidavit evidence and examined as P.W.-1 and got marked the documents Ex.P.1 to Ex.P.16. On behalf of defendants, defendant No.1 is examined as D.W-1 and no documents were marked for defendants.
.7. Heard the arguments on both the sides. .8. My findings on the above Points are as follows:
Issue No. 1: In the Negative Issue No. 2 : In the Negative Issue No. 3 : In the Affirmative Issue No. 4 : As per final order for the following:10 O.S.No.6166/2013
REASONS .9. Issue Nos.1 to 3 : These three issues are taken together for common discussion to avoid repetition of facts.
The plaintiff claims 4/6th share in the suit schedule property as his legitimate share including the shares relinquished by his sisters in his favour. According to the plaintiff, his father late P.Natarajan has been allotted the suit site by Bangalore Development Authority through a registered sale deed and he has put up construction of the house and it is joint family properties of plaintiff and defendants. His father expired in the year 1986 and his sister Shanthakala has also expired in the year 1983 before the death of her father leaving behind defendant Nos.5 to 8 as her legal heirs. In the ground floor of the suit property he is residing and his brother, the 1st defendant is residing in the first floor and sisters are married. The plaintiff to avoid the unpleasant atmosphere is living separately and he is in enjoyment 11 O.S.No.6166/2013 of the ground floor. The defendants have postponed the partition and he has caused notice on 05/06/2013 and his brother has given reply to the notice and thereafter he issued rejoinder to the reply notice. The plaintiff sisters, defendant Nos.3 and 4 and legal representatives of his sister Shanthakala have executed relinquishment deed in his favour, as such, he is entitled for 4/6th share in the suit schedule property. The 1st defendant is making attempt to dispose off the entire suit schedule property by dispossessing the plaintiff from suit schedule property. The plaintiff to substantiate his contention has stepped into witness box and filed his evidence affidavit stating the plaint facts. In addition to oral evidence, he relied on the documents Ex.P.1 to Ex.P.16. The 1st defendant has refuted the plaint averments and he has specifically contended that there is a oral partition in the family. The plaintiff is not entitled for the relief of partition. There is oral partition among the family and in the partition, the 12 O.S.No.6166/2013 defendant was allotted the first floor, his undivided share of 50% and remaining 50% ground floor is fallen to the share of the plaintiff. The plaintiff was put in possession of the ground floor and he has rented out to his tenants and he is collecting the rents. Even sisters have conceded to the partition. There is nothing left for partition.
.10. The father of the plaintiff and defendant has left two sites at Hosur and Muneshwarnagar, Bangalore. The sale deeds were made in the name of the plaintiffs. The plaintiff had no job at the time of purchase of sites. The sites are not included in the suit. The suit is not maintainable. The suit is bad for partial partition. Hence, he prays to dismiss the suit. In support of his written statement contention, the first defendant has entered into witness box and he has stated the written statement facts.
.11. In the course of arguments, the learned counsel appearing for the plaintiff submitted that 13 O.S.No.6166/2013 plaintiff is entitled for 4/6th share including the share of his three sisters. The suit property is self-acquired property of the father of the plaintiff and defendants. The 1st defendant is attempting to alienate the property. He pointed out that defendant in his reply notice admitted that property is self-acquired property of his father and as such, the plaintiff is entitled for 4/6th share. Therefore, he prayed to decree the suit.
.12. The defendant counsel submitted that partition is already effected. The previous partition is acted upon before 20 years and they are in possession of the ground floor. The sites were purchased by his father in the name of the plaintiff when he was not having any source. In this connection he has relied on the decision reported in ILR 1998 KAR 681 (Sri.Tukaram V/s. Sri Sambhaji and Others).
.13. Having heard the learned counsel, I have perused the records. The burden of proof is on the plaintiff to prove that he is entitled for 4/6th share of 14 O.S.No.6166/2013 the suit schedule property. The suit schedule property is a house property consisting of ground and first floor. According to the plaintiff, the property is allotted to his father by Bangalore Development Authority and thereafter he has constructed the house. The defendant contended that suit property is ancestral property. Before adverting to discuss the evidence on record relating to the issues concerned, I feel it is necessary to note the admitted facts. The relationship of the plaintiff and the defendant as plaintiff and first defendant are brothers and defendant Nos.2 to 4 are sisters and defendant Nos.5 to 8 are sisters of predeceased daughter of late P.Natarajan. The plaintiff's father died on 21/05/1986 is not disputed. The plaintiff claims 4/6th share in the suit schedule property. The plaintiff's father late Natarajan died intestate and after his death, his children are entitled for 1/6th share each and the defendant Nos.2 to 4and legal representatives of Shanthakala, defendant Nos.5 to 8 have relinquished their right in favour of the 15 O.S.No.6166/2013 present plaintiff. The relinquishment deeds are produced and placed on record vide Ex.P.2, rectification deed at Ex.P.3, release deed at Ex.P.4 to 6. These documents are executed in the year 2013. the plaintiff has caused notice to the defendant before filing the suit and he has given reply notice dated 02/07/2013. Thereafter, the plaintiff has sent rejoinder to the reply on 10/07/2013. .14. As against the evidence of plaintiff, the 1st defendant has stepped into witness box and he has filed his evidence affidavit and placed documentary evidence on record. The first defendant has specifically contended that there was previous partition i.e., by way of oral partition in the year 1987 among the family members and ground floor is allotted to the share of the plaintiff and first floor is allotted to his share and even sisters have agreed and he is residing in the first floor since 20 years and plaintiff is put in possession of the ground floor, he has rented it out to 16 O.S.No.6166/2013 his tenants. The plaintiff has not produced rent deed for letting out the ground floor in the suit schedule property. The defendant has not produced any documentary evidence to show that oral partition was effected in the year 1987 among the family members and property in ground floor and first floor were allotted to plaintiff and first defendant respectively and even the sisters have agreed for the said partition is not supported by evidence. The plaintiff has placed the release deeds executed by his sisters, legal representatives of his deceased sister Shanthakala. If at all there was a previous partition, the question of executing the release deed in favour of the plaintiff would not have arise to the sisters for relinquishing their right in respect of the suit property. .15. The plaintiff is examined in this case as P.W-1. He has specifically stated in para No.19 of his evidence affidavit as follows :
"I submit that, during the life time of my father, out of joint family funds and plaintiff's 17 O.S.No.6166/2013 contribution another property bearing Site No.6, situated at 19th main, BTM 1st Stage, Raghavendra Colony, Bangalore-29, was purchased in the name of the first defendant and the same is also liable to be partitioned by metes and bounds and I am entitled for 1/6th share in the said property."
The fact stated in para No.19 of his evidence affidavit has not been stated in the plaint. Moreover, there is no amendment to the plaint. According to the plaintiff, site No.6 situated in 19th main, BTM 1st Stage, Raghavendra Colony, Bangalore-29, was purchased in the name of the first defendant and the same was also liable to be partitioned by metes and bounds and he is entitled for 1/6th share in the suit property. The plaintiff has not produced particulars of site No.6. The defendant contends that the two sites at Hosur and another site No.34 of Muneshwaranagar are purchased out of the family funds during the lifetime of their father in the name of the present plaintiff. the defendant has also not produced any material evidence on record to establish that properties at 18 O.S.No.6166/2013 Muneshwaranagar and Hosur are the joint family properties purchased out of the joint family funds in the name of the plaintiff. The plaintiff claims his rightful share in site No.6 standing in the name of the first defendant.
.16. It appears that plaintiff got married one of his sister's daughter. The claim is laid 20 years after the death of their father. The release deeds are recently got registered in the year 2013. The parties i.e., plaintiff and first defendant are exclusively in possession of the ground floor and first floor respectively. The effecting of partition of the suit property excluding all the other properties are not permissible. There is no justification to effect the partition of the suit property.
.17. The question that arise for consideration is whether the plaintiff's suit for partial partition is maintainable. In this regard issue No.3 is framed as to maintainability of the suit for partial partition. In view 19 O.S.No.6166/2013 of the decisions reported in ILR 1998 Kar 681, it is held as follows :
(A). HINDU LAW- PARTITION- Maintainability of suit for Partition of alienated item only, even though the Joint family owned number of properties-Trial Court held suit not maintainable as the inclusion of all Joint Family Property was must. Lower Appellate Court took the view that suit for partial partition is maintainable- In second Appeal the High Court holding that the suit for partial partition is not maintainable restored the Decree of the Trial Court. (B). CIVIL PROCEDURE CODE, 1908 (Central Act No.V of 1908) SECTION 100-Whether a suit for partial partition is maintainable or not is a substantial question of Law.
.18. The suit for partial partition is not maintainable. The plaintiff cannot exclusively claim 4/6th share in the suit schedule property excluding site No.6. The suit as brought by the plaintiff is for partial partition in respect of the suit property without including site No.6 standing in the name of the 1st 20 O.S.No.6166/2013 defendant. Therefore, in view of the aforesaid decisions, the plaintiff's suit for partial partition is not maintainable. The plaintiff's father died in the year 1986 intestate. The plaintiff admits that he is residing in the ground floor and he has let out the ground floor and collecting rent and 1st defendant is residing in the first floor since 20 years. The claim to be put forth by the plaintiff for partition is 4/6th share in respect of the suit property is highly belated. The release deed is of the year 2013. The notice issued is in the year 2013. After lapse of two decades, the plaintiff claims partition of the property including the site No.6 standing in the name of the 1st defendant. Therefore, the suit for partial partition is not maintainable. Thus, I answer issue No.1 in the Negative, issue No.2 in the Negative and issue No.3 in the Affirmative.
.19. Issue No.4 : The plaintiff suit is brought for partition of his possession in respect of suit schedule property claiming upon 4/6th share is not maintainable 21 O.S.No.6166/2013 as partial partition is not permissible. For foregoing reasons, the suit of the plaintiff fails. In the result, I pass the following :
ORDER The suit of the plaintiff is hereby dismissed.
In the circumstances, there is no order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, typed by her, corrected and then pronounced by me in open court this the 21st day of October, 2016).
(Muhammed Khan .M. Pathan) V ADDL.CITY CIVIL JUDGE, BANGALORE.
**** ANNEXURE List of witnesses examined for the plaintiff :
P.W.1 N.Vijaya Kumar List of witnesses examined for the defendant :
D.W.1 N.Chellamani List of documents marked for the plaintiff :
Ex.P.1 Certified copy of the Sale deed document.3.3.1982 Ex.P.2 Certified copy of the release deed document.10.7.2013 Ex.P.3 Certified copy of the rectification deed 22 O.S.No.6166/2013 document.22.7.2013 Ex.P.4 Certified copy of the release deed document.10.7.2013 Ex.P.5 Certified copy of the rectification deed document.22.7.2013 Ex.P.6 Certified copy of the release deed document.22.7.2013 Ex.P.7 Khatha Certificate Ex.P.8 Khatha Extract Ex.P.9 Death Certificate of P.Natarajan Ex.P.10 Office copy of notice document.5.6.2013 Ex.P.11 Postal receipt Ex.P.12 Postal acknowledgement Ex.P.13 Reply document.2.7.2013 Ex.P.14 Rejoinder of reply dt.10.7.2013 Ex.P.15 Postal receipt Ex.P.16 Postal acknowledgment List of documents marked for the defendant : Nil (Muhammed Khan .M. Pathan) V ADDL.CITY CIVIL JUDGE BANGALORE **** 23 O.S.No.6166/2013