Bangalore District Court
Sri.S.Saminathan vs Sri.Vijaya Kumar on 10 October, 2017
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 10th day of October 2017.
O.S.No.750/2011
Plaintiff:- Sri.S.Saminathan,
S/o.T.S.Subramanian,
Aged about 67 years,
R/o No.M-14, 8th Cross Road,
Lakshminarayanapura,
Bangalore-560 021.
(By - Sri.K.P.Ramesh, Adv.)
v.
Defendants:- 1. Sri.Vijaya Kumar,
S/o.Late Saraswathi,
Aged about 43 years,
R/o.No.F-1 (No.12),
1st Cross, Brahmanandapura,
Srirampura, Bangalore-560 021.
2. Smt.Vijayakumari,
W/o.M.L.Kumar,
D/o.Srinivasan,
Aged about 43 years,
R/at No.41,
Sreeramakrishna Paramahamsa Block,
Teachers Layout,
Mysore-570 011.
3. Smt.Rukmani,
W/o.Shanmugam,
Judgement
2 O.S.No.750/2011
D/o.Srinivasan,
Aged about 40 years,
No.F-1, 1st Cross,
Brahmanandapuram,
Srirampura,
Bangalore-560 021.
(Defs.1 to 3 - Sri.Mohd.Usman Shaikh, Adv.)
Date of institution of the suit : 27.01.2011
Nature of the suit : Declaration and Permanent
Injunction
Date of commencement of : 22.02.2014
Recording of the evidence
Date on which the Judgment : 10.10.2017
was pronounced
Total Duration : Years Months Days
06 08 13
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
JUDGEMENT
The plaintiff has filed the above suit for declaration that "C" - schedule property is the common passage and plaintiff, defendants and other beneficiaries have common right, title and interest over the same. Further, permanent injunction restraining the defendants, their men, servants or anybody acting under Judgement 3 O.S.No.750/2011 them from alienating "B" and "C"-schedule properties in favour of any third parties and also for costs.
2. The plaintiff's case in brief as under:-
Plaintiff, S.Palani, S.Mani and one Smt.Saraswathi are the children of one Smt.Lakshmiammal. Defendants 1 to 3 are the children of said Smt.Saraswathi. Plaintiff is the maternal uncle of the defendants. Said S.Mani is the maternal uncle cum father-in- law of defendant no.1. Property bearing No.12 (F-1), earlier belonged to said Smt.Lakshmiammal. Said Smt.Lakshmiammal executed Will and bequeathed 'ABCD' portion from out of said property in favour of Smt.Saraswathi and 3 her children i.e., defendant nos.1 to 3 and 'EFGH' portion was jointly bequeathed in favour of S.Mani and S.Palani. After the death of Smt.Lakshmiammal, as per said Will, the properties have devolved on the above said legatees. Subsequently, on 02.09.1991, S.Palani, S.Mani and Smt.Saraswathi entered into an Agreement and bifurcated the property among themselves. As per the said Agreement, "A"-schedule property has fallen to the share of S.Palani and "B"-schedule property measuring East to West: 11 feet + 7 feet / 2 and North to South: 50 feet has fallen to the share of Smt.Saraswathi. "C"-schedule property measuring East to West 3 feet and North to South 50 feet (in the middle, passage measures 12'X6') is the common passage wherein water Judgement 4 O.S.No.750/2011 pipelines, underground drainage and other civil amenities including power cables are drawn and said common passage is enjoyed by all the beneficiaries for better enjoyment of the property. On 24.09.1999, S.Palani sold "A"-schedule property to the plaintiff vide., registered Sale Deed dated 24.09.1999. Katha of "A"-schedule property has been mutated in the name of the plaintiff and he is paying necessary taxes to BBMP Authorities.
Plaintiff is in possession and enjoyment of "A"-schedule property. The defendants without having any absolute right, title or interest over the "C"-schedule property tried to alienate "B" and "C"- schedule properties together to third parties. Hence, plaintiff has filed the above suit.
3. In response to the suit summons, defendants 1 to 3 have appeared before the court through their counsel and filed the written statement. The defendants in their written statement have denied execution of registered Sale Deed by S.Palani in favour of plaintiff and further have denied plaintiff's title and possession over the "A" schedule property. Defendants have denied plaintiff's khata and payment of taxes by the plaintiff herein to BBMP authorities. The defendants admit the existence of common passage in-between the plaintiff's property and defendants' property. Further, denied the measurement of "B" and "C" schedule properties and the plaint sketch as incorrect.
Judgement 5 O.S.No.750/2011 The defendants admit execution of Will and annexed plan by Smt.Lakshmiammal in favour of beneficiaries. The defendants contend that their mother acquired title over 'ABCD' portion of property and 'EFGH' portion was allotted jointly to S.Palani and S.Mani as per said WILL. The property bequeathed to Smt.Saraswathi measures on the northern side 15 feet and on the southern side 6.6 feet, actual measurement is 7 feet and 6 inches, after that, 3 feet East to West passage is left on southern side and on the northern side of the property Smt.Lakshmiammal had left open space and in the said open space, there was a Well and a Gate and the measurement of the said open space is not mentioned in the Will. The entire open space is used as common passage for the benefit of beneficiaries under the Will. Common passage measures on the southern side 3 feet after 6.6 feet from western side and on northern side 25 feet after 15 feet from eastern side. As per the said Will, Smt.Saraswathi and her three children have jointly succeeded to 'ABCD' portion of property. S.Palani had no right to sell open space left on the eastern side of the property. The plaintiff has acquired title over 460 square feet and remaining 250 square feet is the common passage.
Further, have denied the execution of Agreement dated 02.09.1991 and contend that agreement is a concocted and forged document. Smt.Saraswathi has not signed the said Judgement 6 O.S.No.750/2011 agreement. As per endorsement on the stamp papers, 4 stamp papers in 2 sets were issued in the name of S.Palani bearing Nos.137 to 138 and 139 to 140, but 2 stamp papers of different sets are used to create Agreement dated 02.09.1991. The plaintiff has not given any explanation about remaining 2 stamp papers that were purchased at the time of creating Agreement. There was no necessity for the parties to enter into an Agreement for bifurcation of khatha, since khatha was already bifurcated prior to execution of said Agreement. There was no necessity for Smt.Saraswathi to enter into agreement. In the year 1991, all the children of Smt.Saraswathi had attained majority. Therefore, Smt.Saraswathi had no competence to enter into any sort of Agreement and that too in the absence of any authority by the children. Hence, Agreement dated 02.09.1991 is nullity in the eye of law and cannot be acted upon. Further, contend that Agreement is not properly stamped as per Karnataka Stamp Act. Therefore, said Agreement cannot be looked into. Further, have contended that as per said Agreement amount has been paid therefore, said Agreement has to be compulsorily registered under the Registration Act. Therefore, said Agreement is invalid. Further, defendants have sought declaration that defendants have right, title and interest over the common passage shown in the Will and plan dated 25.10.1978, including Well and direction Judgement 7 O.S.No.750/2011 to the plaintiff to remove structure therein at his own costs. Hence, prayed that suit may be dismissed with costs.
4. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether the plaintiff proves that he is having lawful possession over "B" and "C" schedule properties as on the date of the suit?
2. Whether the plaintiff proves that passage described in "C"-schedule property measuring East to West: 3 feet and North to South: 50 feet and in the middle 12 x 6 feet is a common passage, wherein the plaintiff, defendant and other beneficiaries are having common right, title and interest over the same?
3. Whether the plaintiff proves the interference of the defendants?
4. Whether the plaintiff is entitled for the decree as prayed for?
5. What order or decree?
5. To prove the case of the plaintiff, plaintiff examined himself as PW-1 and got marked Ex.P1 to P10. Defendant no.1 examined himself as DW-1 and got marked Ex.D1.
6. Heard arguments. Advocate for the plaintiff has relied upon the following decisions reported in:
Judgement 8 O.S.No.750/2011
1. AIR 1988 Supreme Court 881, in the case of Roshan Singh and others v. Zile Singh and others.
2. AIR 1966 Supreme Court 292 (V 53 C
61), in the case of Tek Bahadur Bhujil v.
Debi Singh Bhujil and others.
7. My findings on the above said issues are as follows:-
Issue No.1:- In the negative.
Issue No.2:- In the negative.
Issue No.3:- In the negative.
Issue No.4:- In the negative.
Issue No.5:- As per final order.
for the following:-
REASONS
8. Issue Nos.1 to 3:-
These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
9. Plaintiff, Smt.Saraswathi, S.Palani and S.Mani are the children of late Smt.Lakshmiammal. The defendants 1 to 3 are the children of Smt.Saraswathi. Plaintiff and S.Palani are the maternal uncles of defendant nos.1 to 3. Said S.Mani is the maternal uncle cum father-in-law of defendant no.1. The above said relationship between the parties is not in dispute.
Judgement 9 O.S.No.750/2011
10. It is not in dispute that originally entire property bearing No.12 (F-1), belonged to Smt.Lakshmiammal. PW-1 in his evidence has stated that late Smt.Lakshmiammal has executed registered will dated 25/10/1978 and bequeathed 'ABCD' portion in favour of Smt.Saraswathi and her 3 children and 'EFGH' portion jointly in favour of S.Palani and S.Mani. Further, has stated that all three legatees have right to enjoy the common passage consisting common water pipeline connections, underground drainage, power cables etc. The plaintiff for the reasons best known to him has not produced certified copy of the plan annexed to the WILL thereto before this court. At the time of cross-examination of DW-1, Xerox copy of Will was confronted to DW-1 and on admission by DW-1, the said Xerox copy of the Will without plan is marked as Ex.P.7. It is pertinent to note that, plaintiff and defendants do not deny execution of Will by Smt.Lakshmiammal in favour of her children. Both parties admit Ex.P.7. Hence, Ex.P7 can be relied upon by this court. From the recitals of Ex.P7, it goes to show that 'ABCD' portion, measuring 15 feet on the north and 6½ feet on the south and 50 feet on the east and 50 feet on the west built in R.C.C. with all existing fixtures and fittings was bequeathed in favour of Smt.Saraswathi and on attaining majority all the three children of Smt.Saraswathi jointly succeeded to 'ABCD' portion of the property along with Judgement 10 O.S.No.750/2011 their mother. In other words, defendants 1 to 3 after attaining majority have jointly succeeded to 'ABCD' portion of the property along with their mother i.e., Smt.Saraswathi. Remaining 'EFGH' portion was jointly bequeathed in favour of S.Palani and S.Mani. And common passage should be retained as it is and no construction or obstruction should made over said common passage by any party and all the legatees have right over the common passage. The plaintiff in his cross examination admits that as per Will 'ABCD' property measuring 15 feet on northern side and 6½ feet on southern side was allotted to Smt.Saraswathi i.e., plaintiff's sister. From the above evidence it is clear that plaintiff is not disputing the extent of property inherited by Smt.Saraswathin under the Will. Therefore, it can be held that "ABCD" property measuring 15 feet on the north and 6½ feet on the south and 50 feet on the east and 50 feet on the west was inherited by Smt.Saraswathi as per the Will.
11. PW-1 in his pleadings and evidence has stated that subsequently S.Mani, S.Palani and Smt.Saraswathi jointly entered into an Agreement as per Ex.P4 and property was bifurcated and property measuring 'ABCD' portion measuring North to South:50 feet and East to West: 11 feet + 7 feet / 2 was allotted to Smt.Saraswathi. Therefore, said Smt.Saraswathi has title over 'ABCD' portion of property measuring only North to South: 50 Judgement 11 O.S.No.750/2011 feet and East to West: 11 feet + 7 feet /2 i.e., 'B' schedule property. Further, has stated that 'A' schedule property was allotted to the share of S.Palani and plaintiff purchased the 'A' schedule property from S.Palani vide., registered sale deed dated 24.9.199 i.e., Ex.P.1. Per Contra, DW-1 in his pleadings and evidence has denied the execution of Ex.P.4 and has stated that there was no necessity for Smt.Saraswathi to execute Ex.P.4 and said agreement is a concocted document. Further, has stated that Ex.P.4 is unregistered and insufficiently stamped hence, cannot be looked into. Further, has stated that children of Smt.Saraswthi had attained majority therefore, Smt.Saraswathi had no authority to execute Ex.P.4.
12. Plaintiff has produced the said Agreement dated 2/9/1991 before the court and said document is marked as Ex.P.4 subject to objection. Advocate for the plaintiff argued that Ex.P4 is duly executed by Smt.Saraswathi, S.Palani and S.Mani and property was bifurcated for better enjoyment of the property and ABCD property with measurement as shown in Ex.P4 was allotted to Smt.Saraswathi. At the outset, advocate for the defendants argued that under Ex.P4 partition has taken place therefore, it requires to be executed on proper stamp paper as per provisions of Karnataka Stamp Act. Further, argued that Ex.P.4 contains recitals that amount has been paid therefore, it Judgement 12 O.S.No.750/2011 amounts to sale of property and Ex.P.4 requires registration under Registration Act. Ex.P.4 is insufficiently stamped and unregistered therefore, Ex.P4 cannot be relied upon.
13. In AIR 1988 Supreme Court 881, in the case of Roshan Singh and others v. Zile Singh and others, wherein the lordships have held as under:
"Registration Act (16 of 1908), Ss.17(1)(b) and 49 - Transfer of Property Act (4 of 1882), S.5
- Family arrangement and partition - Distinction - Partition of ancestral properties - Subsequent memorandum of partition embodying factum of partition - Held, memorandum was only family arrangement and its registration was not necessary. (Evidence Act (1 of 1872), S.91)".
In AIR 1966 Supreme Court 292 (V 53 C 61), in the case of Tek Bahadur Bhujil v. Debi Singh Bhujil and others, wherein their lordships have held as under:-
(d) Family Arrangement - Essentials -
Arrangement when brought about by document, registration necessary - Memorandum of arrangement - Registration not necessary -
(Registration Act (1908), S.17).
14. From the recitals of Ex.P4, it goes to show that the parties namely S.Palani, S.Mani and Smt.Saraswathi have succeeded to the properties under the Will and subsequently, Judgement 13 O.S.No.750/2011 they got kathas effected in their names as per enjoyment and later Ex.P.4 came into existence. Properties are earlier divided and the same is recorded as per Ex.P.4. Hence, Ex.P.4 is only a family arrangement/ memorandum of partition therefore, doesn't require registration and stamp duty as contended by the defendants. Therefore, above argument is not sustainable. Objection raised by defendant while marking Ex.P.4 is set aside.
15. The defendants have categorically denied the signatures of Smt.Saraswathi on Ex.P4. Initial burden is on the plaintiff to prove Ex.P4. Admittedly, neither the plaintiff nor the defendants are parties to Ex.P4. As per Ex.P.4, S.Mani, S.Palani and Smt.Saraswathi are the executants. It is pertinent to note that under the "Witness column" signatures of S.Mani, S.Palani and Smt.Saraswathi are found. In other words none have signed as witnesses to Ex.P.4. Plaintiff is bound to examine at least one executants to prove Ex.P.4. For the reasons best known to the plaintiff, the plaintiff has not examined S.Palani i.e., plaintiff's vendor before this court to prove execution of Ex.P4. PW-1 is unable to speak about execution of Ex.P.4 by Smt.Saraswathi. PW-1 is not competent to speak about execution of Ex.P.4. Therefore, adverse inference has to be drawn against the plaintiff. Plaintiff has not examined any competent witness to show that Smt.Saraswathi signed Ex.P.4 in the presence of said Judgement 14 O.S.No.750/2011 witness. Advocate for the defendant argued that there was no necessity for Smt.Saraswathi to enter into agreement. PW-1 in his cross examination admits that after the death of Lakshmi Ammal Smt.Saraswathi got khata of ABCD property mutated in her name and also admits that there was no necessity for Smt.Saraswathi to enter into Agreement, since her share was demarcated separately and also admits that S.Palani and S.Mani intended to divide the joint property among themselves therefore, Agreement was entered into as per Ex.P4. From the above admission by PW-1 it clearly goes to show that there was no necessity for Smt.Saraswathi to enter into agreement. From the recitals of Ex.P.4 it discloses that EFGH property was divided between S.Palani and S.Mani and ABCD property was not subject matter for bifurcation. Without stating any explanation in Ex.P.4 extent of property of Smt.Saraswathi is altered. No evidence is produced by the plaintiff to show why extent was altered in Ex.P4. Therefore, contention of plaintiff that ABCD property was allotted to Smt.Saraswathi cannot be accepted. As per endorsement of the stamp vendor, 4 stamp papers in 2 sets bearing No.139 to 140 and 137 to 138 were purchased in the name of S.Palani. Two stamp papers of different sets are used for preparing Ex.P.4. The plaintiff has not given any explanation regarding what happened to other 2 stamp papers that were Judgement 15 O.S.No.750/2011 purchased at that point of time. It is pertinent to note that, Ex.P.4 contains 4 typed pages and on page no.4 signatures of executants are found. Page nos.1, 2 and 3 does not bear any signatures. No explanation is given by the plaintiff for non- obtaining signatures of executants on each page. The above said circumstance is a suspicious circumstance. In Ex.P4 there are number of corrections carried out at page no.3. The said corrections doesn't bear signatures of the executants. PW-1 is unable to state why and how said corrections were carried out in Ex.P4. Therefore, adverse inference has to be drawn against the plaintiff herein. As per Ex.P7 i.e., Will, 'ABCD' portion is bequeathed jointly to Smt.Saraswathi and defendants 1 to 3 herein. DW-1 in his evidence and pleadings has categorically stated that as on the date of execution of Ex.P4, all the children of Smt.Saraswathi were majors, therefore their mother - Smt.Saraswathi had no authority to enter into Agreement as per Ex.P4 without their consent. PW-1 is his evidence has not stated that at the time of execution of Ex.P.4 defendants nos.1 to 3 were minors. PW-1 says that he doesn't know whether defendants nos.1 to 3 had attained majority at the time of execution of Ex.P.4. Therefore, evidence of DW-1 that defendant nos.1 to 3 had attained majority at the time of execution of Ex.P.4 has to be accepted. In Ex.P4, there is no recital that Judgement 16 O.S.No.750/2011 Smt.Saraswathi has acted on behalf of defendants also. As per Will, Smt.Saraswathi is not the absolute owner. Therefore, Ex.P4 cannot bind the defendants herein. Advocate for the plaintiff argued that Ex.P8 i.e., Release Deed executed by Smt.Bhabavathimani, Smt.Vani Vijayakumar, Smt.M.Malathi and Sri.M.Madankumar in favour of Smt.Shobha, contains recital regarding Ex.P4 - Agreement and defendant no.1 has signed the said document, therefore, the defendants are aware of Ex.P4 and they have not challenged the same, hence Ex.P4 is binding on the defendants. Admittedly, defendant no.1 is not a executant to Ex.P8. Defendant no.1 has signed Ex.P8 as a witness. DW-1 in his evidence has categorically stated that he was unaware of Ex.P4 and he never read the contents of Ex.P8. Witness is not expected to know the contents of the document. The plaintiff has to stand on his own legs. The plaintiff cannot stand on the weakness of defendants' case. Therefore, contention of plaintiff's counsel falls to ground. The plaintiff has failed to prove execution of Ex.P.4 by Smt.Saraswathi.
16. Advocate for the plaintiff argued that 'C'-schedule property is the common passage and the defendants are trying to alienate "B" and "C" schedule properties together. Further argued that, common passage measures East to West: 3 feet and North to South: 50 feet and in the middle passage exists measuring 12 Judgement 17 O.S.No.750/2011 x 6 feet. Per contra, the defendants have denied the said extent. Existence of common passage in-between plaintiff's property and defendants' property is not in dispute. In the Will the extent of common passage is not mentioned. It is pertinent to note that, as per registered Will, plan/sketch is annexed to the said Will. Both plaintiff and defendants admit that said plan clearly discloses the extent of properties bequeathed to legatees and common passage. The plaintiff has not taken steps to produce the plan / sketch annexed to the registered Will before this court to show the extent of common passage. The defendants contend that to the northern side there is open space, Well and gate. PW-1 admits the existence of Well, gate and open space. PW-1 also admits that all the legatees have right over the said open space, well and gate. PW-1 admits that after mark "A" the passage should exits up to mark "F" as per the sketch. The above admission of PW-1 and plans produced by plaintiff i.e., Ex.P.4, and Ex.P.6 are contrary to each other. The sketches/plans produced by the plaintiff are self serving plans hence, cannot be relied upon. The plaintiff has not shown the said open space with well and gate as common passage. The plaintiff has failed to prove the existence of common passage as contended in the plaint. As per evidence of PW-1, B-schedule property belongs to the defendants. The plaintiff is not claiming any right or title over Judgement 18 O.S.No.750/2011 B-schedule property. Therefore, injunction restraining the defendants from alienating "B" schedule property cannot be granted. The plaintiff has failed to prove execution of Ex.P.4 and measurement of common passage.
17. The defendants have contended that they have right and title over the common passage as shown in the Will dated 25.10.1978. It is pertinent to note that, defendants have not valued their claim and court fee is not paid on the relied claimed. Moreover, the defendants have not produced plan/sketch annexed to the Will dated 25.10.1978. Therefore, contention of defendants cannot be accepted. Accordingly, I answer Issue nos.1 to 3 in the negative.
18. Issue No.4:-
The plaintiff has failed to prove issue nos.1 to 3 hence, plaintiff is not entitle for any reliefs claimed. Accordingly, I answer Issue no.4 in the negative.
19. Issue No.5:
In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiff is dismissed with costs.
Judgement 19 O.S.No.750/2011 Draw decree accordingly.
(Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 10th day of October 2017) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru City.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Sri.S.Saminathan
(b) Defendants' side:
DW.1 - Sri.Vijay Kumar II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Original Sale Deed dated
24.09.1999
Ex.P2 : Uttara Pathra
Ex.P3 : Tax Paid Receipt
Ex.P4 : Agreement dated 02.09.1991
Ex.P5 : GPA
Ex.P6 : Plan
Ex.P7 : Copy of Will dated 25.10.1978
Ex.P8 : Certified copy of Release Deed
dated 20.09.2010
Ex.P9 : Certified copy of Partition Deed
dated 04.06.2010
Ex.P10 : Certified copy of Partition Deed
dated 04.06.2010
(b) Defendants' side:
Judgement
20 O.S.No.750/2011
Ex.D1 : Sketch
XLII ADDL., CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
Judgement