Karnataka High Court
R Mothiraj vs Haritha on 1 October, 2012
-1-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1st DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE H. BILLAPPA
REGULAR FIRST APPEAL Nos.1124/2009
c/w. 1125/2009, 1242/2009
IN RFA 1124 OF 2009
BETWEEN
R MOTHIRAJ
S/O LATE P RAJU,
AGED ABOUT 56 YEARS
R/A NO.162, 9TH CROSS
VASANTHANAGAR
BANGALORE - 560 052. ... APPELLANT
(BY SRI. M. RAM BHAT, SENIOR COUNSEL FOR
M/S RAM BHAT & SREEPADA ASSOCIATES
H.R. SREEPADA, K. SRINIVASA, ADVS.,)
AND
1. SMT. HARITHA
AGED ABOUT 63 YEARS
W/O LATE DHANASEKARAN,
R/A 162(OLD), NEW NO.5/1,
9TH CROSS, VASANTHANAGAR,
BANGALORE - 560 052.
-2-
2. KANICKRAJ
AGED ABOUT 62 YEARS,
S/O LATE P RAJU,
R/A NO.21, NEW NO.7,
'C' STREET,10TH CROSS
DOBBASPET, VASANTHANAGAR,
BANGALORE - 560 052.
3. SMT. ALPHONS
AGED ABOUT 60 YEARS
D/O LATE P RAJU,
R/A NO. 67, 68, I STAYED SQUARE
MURPHY TOWN, ULSOOR POST
BANGALORE - 560 008.
4. SMT VATSALA DEVI @ AROKIA MARY
D/O LATE P RAJU,
AGED ABOUT 55 YEARS
R/A NO.6/1, NORTH STREET, 3RD CROSS
PARIAPPA FIELD, NEELASANDRA
BANGALORE - 560 037. ... RESPONDENTS
(BY SRI. G KRISHNA MURTHY FOR R-1 & R-4,
M/S G.S. BHAT & ASSOCIATES FOR R-2 & R-3)
RFA FILED U/S 96 CPC, AGAINST THE JUDGMENT
AND DECREE DATED: 24.08.2009 PASSED IN
OS.NO.2790/2006 ON THE FILE OF THE I ADDL. CITY
CIVIL AND SESSIONS JUDGE, BANGALORE, DECREEING
THE SUIT FOR PARTITION.
-3-
IN RFA 1125 OF 2009
BETWEEN
R MOTHIRAJ
AGED ABOUT 56 YEARS
S/O LATE P RAJU,
R/A NO.162, 9TH CROSS
VASANTHANAGAR
BANGALORE -560 052. ... APPELLANT
(BY SRI. M. RAM BHAT, SENIOR COUNSEL FOR
M/S RAM BHAT & SREEPADA ASSOCIATES,
K SRINIVASA, ADVS.,)
AND
SMT. HARITHA
AGED ABOUT 63 YEARS
W/O LATE SHEKAR ALIAS DHANASEKARAN,
R/A 162(OLD), NEW NO.5/1,
9TH CROSS, VASANTHANAGAR,
BANGALORE - 560052. ... RESPONDENT
(BY SRI. G KRISHNA MURTHY, ADV.,)
RFA FILED U/S 96 CPC, AGAINST THE JUDGMENT
AND DECREE DATED: 24.08.2009 PASSED IN
OS.NO.4671/1999 ON THE FILE OF THE I ADDL. CITY
CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING
THE SUIT FOR PARTITION.
-4-
IN RFA 1242 OF 2009
BETWEEN
KANICKRAJ
S/O LATE P RAJU
AGED ABOUT 61 YEARS
R/AT NO. 21, NEW NO.7,
'C' STREET, 10TH CROSS, DOBBASPET
VASANTHINAGAR,
BANGALORE - 560052. ... APPELLANT
(BY SRI. M/S G S BHAT & ASSOCIATES, ADV.,)
AND
1. SMT. HARITHA
W/O LATE DHANASEKARAN
AGED ABOUT 64 YEARS
R/AT NO.162 (OLD)
NEW NO.5/1, 9TH CROSS,
VASANTHNAGAR,
BANGALORE - 560052.
2. SRI R MOTHIRAJ
S/O LATE P RAJU
AGED ABOUT 58 YEARS
R/AT NO.16 (OLD)
NEW NO.5/1, 9TH CROSS,
VASANTHNAGAR,
BANGALORE - 560052.
3. SMT ALPHONS
D/O LATE P RAJU
AGED ABOUT 60 YEARS
R/AT NO.67 AND 68,
-5-
1, STYED SQUARE, MURPHY TOWN,
ULSOOR POST
BANGALORE - 560 008.
4. SMT VATSALA DEVI @ AROKIA MARY
D/O LATE P RAJU
AGED ABOUT 52 YEARS
R/AT NO.6/1,
NORTH STREET, 3RD CROSS,
PARIAPPA FIELD,
NEELASANDRA,
BANGALORE-560047. ... RESPONDENTS
(BY SRI. G KRISHNA MURTHY FOR R1,
SRI M. RAM BHAT, SENIOR COUNSEL FOR
M/S M. RAM BHAT & ASSOCIATES FOR R-2)
***
RFA FILED U/S 96 R/W O-41, R-1 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED: 24.08.2009
PASSED IN OS.NO. 2790/2006 ON THE FILE OF THE I
ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE,
DECREEING THE SUIT FOR DECLARATION AND
SEPARATE POSSESSION.
THESE APPEALS COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
-6-
JUDGMENT
These three appeals are directed against the judgment and decree, dated 24.8.2009, passed by the I Addl. City Civil & Sessions Judge, Bangalore, in O.S.Nos.2790/2006 and 4671/1999.
2. By the impugned judgment and decree, the Trial Court has decreed the suit in O.S.No.2790/2006 granting 1/5th share each to the plaintiff and the defendant No.4 in the suit 'A' schedule property and O.S.No.4671/99 has been dismissed.
3. Aggrieved by that, the defendants 1 and 2 in O.S.No.2790/2006 have preferred R.F.A.Nos.1124/09 and 1242/2009. The plaintiff in O.S.No.4671/99 has preferred RFA.No.1125/2009.
-7-
4. For the sake of convenience, the parties will be referred to with reference to their rank in the original suits O.S.Nos.2790/06 and 4671/99.
5. Briefly stated, the facts in O.S.No.2790/06 are as follows:
The plaintiff Smt.Haritha i.e., the 1st respondent in R.F.A.No.1124/09 filed suit in O.S.No.2790/06 for declaration that the sale deeds dated 24.9.1986 executed by late P.Raju in favour of the defendants 1 and 2 i.e., the appellants in RFA.No.1124/09 and RFA.No.1242/2009 are not binding on her and for cancellation of the sale deeds and for declaration that the plaintiff is entitled for a share in the suit 'A' schedule property based on the Will dated 10.4.1985 and as a legal heir.
6. The case of the plaintiff Smt.Haritha was that she is the daughter of late Sri. P. Raju and widow of late -8- Dhanasekaran. The defendants 1 and 2 are her brothers and defendants 3 and 4 are her sisters.
7. It is stated, the property bearing No.162, Division No.44, New No.71, 'C' street, 10th cross, Dobbespet, Vasanthanagar Extension, Bangalore- 5760 052 measuring East to West 73 + 72 feet and North to South 33 + 26 feet originally belonged to Mr.Poongavanam, the grand father of the plaintiff Smt. Haritha. After the demise of Poongavanam, the entire suit 'A' schedule property devolved on his son Mr.P.Raju, the father of the plaintiff and the defendants. Mr. P. Raju died on 29.4.1987. Suit 'A' schedule property is ancestral property. After the demise of late P.Raju and prior to that, the family members are in joint possession and enjoyment of the suit 'A' schedule property. -9-
8. The plaintiff and the defendants are the legal heirs of deceased P.Raju. They succeed to the property of late P.Raju.
9. It is stated, the plaintiff Smt.Haritha approached the defendants 1 and 2 for effecting partition and to grant share in the suit 'A' schedule property. The defendants 1 and 2 replied the plaintiff stating that, they are the absolute owners of suit 'A' schedule property and late P.Raju, the father of the plaintiff and the defendants has sold the suit 'A' schedule property in favour of the defendants 1 and 2. She informed this matter to her sisters i.e., defendants 3 and 4 and they did not evince any interest.
10. The plaintiff obtained copies of the sale deeds dated 24.9.86 and encumbrance certificates. She came to know that the suit 'A' schedule property has been transferred in the name of defendants 1 and 2. The
- 10 -
property transferred in the name of 1st defendant Kanickraj is described in the 'B' schedule property. The property transferred in the name of Mothiraj is described in the 'C' schedule.
11. It is stated, the plaintiff obtained katha extract from the Corporation and came to know that katha has been transferred in the name of defendants 1 and 2. The defendants 1 and 2 have fraudulently and by misrepresentation have induced their father late P.Raju and obtained his signature on the sale deeds. The defendants 1 and 2 with a malafide intention and to deny the share to the plaintiff and her sisters have obtained sale deeds by fraudulent means taking undue advantage of the old age of their father late P.Raju.
12. It is stated, the defendants and the plaintiff are in joint possession of the suit 'A' schedule property and they are co-owners. Late P. Raju, taking into
- 11 -
consideration that the plaintiff lost her husband and she stayed in the joint family before and after her marriage, executed Will dated 10.4.85 in favour of the plaintiff bequeathing a portion of the suit 'A' schedule property which is described as 'D' schedule. The plaintiff is residing in the 'D' schedule property. The defendants 1 and 2 being aware of the Will executed in favour of the plaintiff have fraudulently and by misrepresentation managed to obtain the sale deeds from their father taking undue advantage of the old age and incapacity of their father. It is stated, the suit 'A' schedule property is the joint family property and the plaintiff and the defendants are entitled for 1/5th share each excluding the property bequeathed in favour of the plaintiff through Will dated 10.4.1985. The defendants 1 and 2 refused to give share to the plaintiff when demanded.
13. Alternatively, it is stated, for some reasons, if it is considered that the suit 'A' schedule property is the
- 12 -
self acquired property or partly self acquired and partly ancestral, then the plaintiff is entitled for the entire property bequeathed in her favour by her father through Will dated 10.4.85 in addition to 1/5th share in the remaining property. The sale deeds executed in favour of defendants 1 and 2 are not binding on the plaintiff. The nominal consideration shown in the sale deeds dated 24.9.86 cannot be considered as proper consideration as the sale deeds are sham documents.
14. It is stated, the 2nd defendant filed suit in O.S.No.10136/92 for possession of a portion of the suit 'A' schedule property and it came to be dismissed on 28.3.1995 for non-prosecution. The defendant No.2 claimed 'C' schedule property falsely. Again, on the same cause of action the defendant No.2 sought for possession in O.S.No.4671/99. It came to be decreed. It was challenged in RFA.No.557/05 and it is pending. Therefore, the plaintiff has prayed for declaration that the
- 13 -
sale deeds dated 24.9.86 are not binding on her and for cancellation of the sale deeds and to declare that she is entitled for a share in the suit schedule property based on the Will dated 10.4.85 and as a legal heir.
15. The 1st defendant i.e., the 2nd respondent in RFA No.1124/09 has filed his written statement denying the plaint averments and contending that the suit is not maintainable. It is contended that Site No.162, New No.7, Old No.221, Division No.44, New No.71, 'C' Street, 10th Cross, Dobbaspet, Vasanthanagar, Bangalore-52 was allotted in favour of P.Raju by the CITB in the year 1960. Pursuant to that, the entire records stood in the name of P. Raju. During his lifetime, P. Raju was paying the tax and exercising all rights of ownership. Late P. Raju was the exclusive owner of the suit 'A' schedule property. It is denied that originally the suit 'A' schedule property belonged to Mr.Poongavanam, the grand father of the parties. Mr.Poongavanam had no right, title or interest in
- 14 -
the suit 'A' schedule property. By no stretch of imagination, it can be presumed that suit 'A' schedule property is the ancestral property.
16. It is stated, late P. Raju was the absolute owner of suit 'A' schedule property and he had every right to dispose of the property as he liked. Accordingly, late P. Raju sold the property in favour of the defendant No.1 through registered sale deed dated 24.9.86. Defendant No.1 acquired the suit 'A' schedule property through registered sale deed. Katha was transferred in his name. Therefore, suit 'A' schedule property cannot be divided. The plaintiff has no right or share in the suit 'A' schedule property.
17. It is stated, late P. Raju never executed any Will in favour of the plaintiff. The Will dated 10.4.85 is a concocted document. The plaintiff has created the Will to grab the property.
- 15 -
18. Late P. Raju died on 29.4.1987. If really the Will was executed in favour of the plaintiff, she could not have kept quiet for nearly more than 19 years. Even otherwise, the Will is deemed to be cancelled as the testator has sold the property during his lifetime.
19. Late P.Raju has executed the sale deed and katha has been transferred in favour of the 1st defendant and he is in possession and enjoyment of the property purchased by him. The suit is filed in the year 2006 seeking cancellation of the sale deeds dated 24.9.86 and it is barred by limitation.
20. The property is not a joint family property. It was the self acquired property of late P. Raju. He has sold 'A' schedule property. Therefore, the plaintiff is not entitled for any share in the suit 'A' schedule property.
- 16 -
21. The allegations regarding fraud and misrepresentation have been denied. Therefore, the 1st defendant has prayed for dismissal of the suit.
22. The 2nd defendant has filed his written statement denying the plaint averments and contending that the suit is not maintainable. It is stated, the 2nd defendant is the owner of 'C' schedule property. The plaintiff is in occupation of a portion of the 'C' schedule property as a licensee. The 2nd defendant allowed the plaintiff to occupy a portion of the suit schedule property on humanitarian grounds. Though the 2nd defendant requested the plaintiff to vacate and deliver vacant possession, she is residing and not vacated. Therefore, the 2nd defendant has filed suit in O.S.No.4671/99 for ejectment of the plaintiff and for recovery of possession. O.S.No.4671/1999 was decreed on 18.2.2005 against which RFA.No.557/2005 has been filed and it is pending. The plaintiff has raised all the contentions in
- 17 -
O.S.No.4671/1999 and it has been rejected. The plaintiff is estopped from urging the same grounds. The suit is not maintainable and barred by the principle of resjudicata.
23. It is denied that 'A' schedule property originally belonged to Mr. Poongavanam and it is the ancestral property. It is stated, the plaintiff is not residing in the suit 'A' schedule property. Suit 'A' schedule property is the self acquired property of late P. Raju and the 2nd defendant is in possession and enjoyment of the 'C' schedule property as absolute owner having purchased 'C' schedule property through registered sale deed dated 24.9.86. It is denied that the plaintiff approached the defendants 1 and 2 and requested for partition. It is stated, the plaintiff and the defendants 3 and 4 were fully aware of the sale deed in favour of the defendants 1 and 2 well before the death of late P. Raju. It is denied that the sale deeds have been
- 18 -
obtained fraudulently and by misrepresentation. The averments that late P. Raju, the father of the plaintiff executed Will dated 10.4.85 bequeathing a portion of the suit 'A' schedule property is denied. It is sated, the Will dated 10.4.85 is a concocted document. The plaintiff is in occupation of a portion of the 'C' schedule property and it is kept under lock and key. The plaintiff is liable to vacate and deliver vacant possession of the portion in her occupation. It is denied that the plaintiff is entitled for any share in the suit 'A' schedule property. It is stated, the sale deeds are valid and the plaintiff cannot question the sale deeds after nineteen years. The plaintiff is not entitled for any share in the suit 'A' schedule property. Therefore, the 2nd defendant has prayed for dismissal of the suit.
24. The defendant No.4, i.e. the respondent No.4 in RFA No.1124/09 has field her written statement admitting the plaint averments and contending that suit
- 19 -
'A' schedule property originally belonged to the grand father of the plaintiff and the defendants and after his death, it came to late P. Raju. He has not executed any sale deeds in favour of the defendants 1 and 2. The sale deeds are concocted. Late P. Raju had no right to execute the sale deeds in respect of suit 'A' schedule property, which is ancestral property. The defendant No.4 is also entitled for 1/5th share in the suit 'A' schedule property.
25. The trial court has framed the following issues in O.S.No.2790/06.
1. Whether the plaintiff proves that the suit schedule 'A' property is the ancestral property of the plaintiff and defendant?
2. Whether the plaintiff further proves that the sale deed executed by her late father P. Raju in respect of suit schedule 'B' property in favour of defendant No.1 and 'C' schedule property in favour of the defendant No.2 is not binding on her?
- 20 -
3. Whether the plaintiff further proves that her father bequeathed and executed a Will in respect of 'D' schedule property on 10.04.1985?
4. Whether the plaintiff further proves that she is in lawful possession of the suit schedule 'D' property?
5. Whether the defendant Nos.1 & 2 prove that suit schedule 'A' property is the self- acquired property of defendant No.1?
6. Whether the defendant No.1 further proves that his father sold the suit schedule 'A' property to him?
7. Whether the defendant No.2 proves that his father sold the 'C' schedule property to him?
8. Whether the defendants prove that the suit is hit by the provisions u/O 7 Rule 11 CPC?
- 21 -
9. Whether the defendant No.2 proves that the suit is barred by resjudicata in view of the earlier suit O.S. No. 4671/1999?
10. Whether the defendant No.2 further proves that the suit is barred by law of limitation?
11. Whether the plaintiff is entitled to the declaration that the sale deeds executed by her late father in favour of the defendant No.2 in respect of 'B' schedule property and in favour of defendant No.2 in respect of 'C' schedule property are not binding on her?
12. Whether the plaintiff is entitled to the declaration that she is the absolute owner of the suit schedule property on the basis of the Will?
13. Whether the plaintiff is entitled to the partition and separate possession in the
- 22 -
remaining portion of the suit schedule 'A' property?
14. What order or decree?
ADDL. ISSUE:
Whether the defendant No.4 is entitled to the partition and separate possession of 1/5th share in the suit schedule 'A' property?
26. The Trial Court has answered issue Nos.2 and 5 in the affirmative and issue Nos.1, 3, 4, 6, 7, 8, 9 and 10 in the negative and issue Nos.11, 13 and additional issue as entitled and issue No.12 as not entitled and consequently, has decreed the suit granting 1/5th share each in the suit 'A' schedule property to the plaintiff and defendant No.4.
27. The facts in O.S.No.4671/1999 are as follows;
The plaintiff i.e., the appellant in RFA.No.1125/2009 filed suit in O.S.No.4671/1999 for recovery of possession
- 23 -
from Smt.Haritha, the defendant. The case of the plaintiff was that he purchased the premises bearing No.5/1, old No.162, situated at 9th cross, Vasanthanagar, Bangalore, through registered sale deed dated 24.9.1986. He is in possession and enjoyment of the property as its absolute owner. Katha has been transferred. The plaintiff is paying the tax.
28. The defendant is his sister. She was not having a house to reside and she was in financial constraints. Therefore, the defendant requested the plaintiff to allow her to continue in a portion of the house temporarily. The plaintiff, as a good gesture, allowed the defendant to reside in a portion of the house bearing No.5/1 consisting of two rooms, kitchen, bathroom and a toilet. The defendant promised the plaintiff to vacate the premises soon after obtaining a suitable accommodation. But, inspite of several requests, the defendant did not vacate the premises. The plaintiff issued legal notice
- 24 -
dated 18.3.1991 asking the defendant to vacate the premises. The defendant sent untenable reply. It is stated, the plaintiff permitted the defendant on humanitarian consideration only as a licensee. The defendant has no right, title or interest in the property. The defendant is a licensee and she has no right to continue. The plaintiff filed suit in O.S.No.10136/1992 for recovery of possession. It was dismissed for non- prosecution on 28.3.1995. The plaintiff came to know about it only in March 1999. The suit was dismissed for non-prosecution and the cause of action is continuing. Therefore, the plaintiff has prayed for a direction to the defendant to vacate and deliver vacant possession of the portion of the premises bearing No.5/1, 9th cross, Vasanthanagar, Bangalore-52.
29. The defendant i.e., the respondent in RFA.No.1125/2009 has filed her written statement contending that the suit is not maintainable. The alleged
- 25 -
sale deed executed by P.Raju is the result of misrepresentation, fraud and coercion and it is not binding on the defendant. It is stated, the suit schedule property and its abutting portion measuring east-west 100' and north-south 50' originally belonged to the grandfather of the plaintiff namely Poongavanam. After his death, the property devolved on P.Raju and his wife Neelamma. After the death of P.Raju, the property has come to his sons and daughters. The plaintiff, the defendant, the sisters of the plaintiff Alphonsia and Vathsaladevi and brother Kanikraj have share in the entire property including the suit schedule property.
30. It is stated, the defendant has been in occupation of the property from her childhood and she has been residing there in her own right. The plaintiff has ventured to take the signature and LTM of late P.Raju when he was almost on his deathbed. No consideration has been paid. The sale-deed dated 24.9.1986 is void
- 26 -
abinitio and obtained by mis-representation and fraud. The plaintiff has no right, title or interest in the suit schedule property.
31. The averments that the defendant was permitted to reside in the suit schedule property and she agreed to vacate and deliver possession soon after obtaining suitable accommodation are denied. It is stated, the defendant is residing in the suit schedule property in her own right. She has not received any notice from the plaintiff and the one said to have been sent on 18.3.1991 is a false statement and the reply dated 29.5.1991 is a created document. The defendant is neither a licensee nor a tenant. The father of the plaintiff had no right to execute the sale-deed. There is no cause of action for the suit. Therefore, the defendant has prayed for dismissal of the suit.
- 27 -
32. The Trial Court has framed the following issues in O.S.No.4671/1999.
1) Whether the plaintiff proves the landlord and tenant relationship between himself and defendant in respect of plaint schedule property?
2) Whether the plaintiff proves the termination of tenancy in accordance with law?
3) Whether the defendant proves that suit is not maintainable as contended in written statement?
4) Is there any cause of action of suit?
5) To what order or decree?
Subsequently the issue No.1 in O.S. No.4671/1999 has been recasted as follows:
1) Whether the plaintiff proves that the defendant is a licensee in possession of the suit schedule property?
- 28 -
33. The Trial Court has answered issue Nos.1 and 2 in the negative and issue Nos.3 and 4 in the affirmative and consequently, has dismissed the suit.
34. Aggrieved by the judgment and decree passed in O.S.No.2790/2006, the defendants 1 and 2 have preferred RFA.No.1124/2009 and RFA.No.1242/2009.
35. Aggrieved by the judgment and decree passed in O.S.No.4671/1999, the plaintiff has preferred RFA.No.1125/2009.
36. The learned counsel for the appellants in these appeals contended that the impugned judgment and decrees cannot be sustained in law. They also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further they submitted that the findings are perverse. They also submitted that the parties are Christians and Hindu Succession Act is not applicable and surprisingly, the Trial Court applying the
- 29 -
provisions of the Hindu Succession Act has granted share to the plaintiff in O.S.No.2790/2006 which is totally incorrect. They also submitted that the Will is negatived by the Trial Court and the plaintiff has accepted it. Further they submitted that suit 'A' schedule property was the self-acquired property of late P.Raju and he sold the suit 'A' schedule property through registered sale deeds dated 24.9.1986 in favour of the defendants 1 and 2 and they are the owners and therefore, the Trial Court was not justified in decreeing the suit in O.S.No.2790/2006. Further they submitted that the sale- deeds exhibits P.3 and P.4 are registered sale-deeds and they do not require attestation and therefore, non- examination of the attesting witness is of no consequence. They also submitted that the plaintiff claims based on the Will dated 10.4.1985 and the suit schedule property is ancestral property. Infact, the suit schedule property is the self-acquired property of late
- 30 -
P.Raju and he has sold the property in favour of the defendants 1 and 2. The plaintiff or the other sisters have no right in the suit 'A' schedule property. Further they submitted that the defendant in O.S.No.4671/1999 is a licensee and she has no right to continue as the license has been revoked and therefore, the Trial Court was not justified in dismissing the suit in O.S.No.4671/1999. Therefore, they submitted that the impugned judgment and decrees cannot be sustained in law.
37. As against this, the learned counsel for the respondents 1 and 4 submitted that the impugned judgment and decrees do not call for interference. He also submitted that the Trial Court on proper consideration of the material on record has rightly decreed the suit in O.S.No.2790/2006 and dismissed the suit in O.S.No.4671/1999 and therefore, the impugned judgment and decrees do not call for interference.
- 31 -
Further he submitted that the sale deeds executed in favour of the defendants 1 and 2 are got up documents and they are not binding on the plaintiff. He also submitted that the sale consideration is inadequate and the sale deeds have come into existence taking undue advantage of the fact that late P.Raju was aged and suffering from ill-health. He also submitted that the defendants 1 and 2 have managed to obtain the sale- deed. Further he submitted that the sale-deeds are unnatural and obtained fraudulently. He also submitted that the attesting witnesses are not examined and the sale-deeds are not proved. He also submitted that late P.Raju was not well and he was not in need of money and therefore, the sale-deeds are sham documents. Further he submitted that the father of the plaintiff has executed Will dated 10.4.1985 and DW.2 in O.S.No.4671/1999 has deposed regarding the execution of the Will.
- 32 -
38. Further he submitted that the suit in O.S.No.4671/1999 is not maintainable. He also submitted that the plaintiff had filed suit in O.S.No.10136/1992 and it was dismissed for non- prosecution. On the same cause of action, the plaintiff has filed suit on O.S.No.4671/1999 and therefore, the suit is not maintainable. He invited my attention to the pleadings and also the provisions of Order IX rule 8 and Order IX Rule 9 of CPC. Further he submitted that the suit is filed on the same cause of action and therefore, it is not maintainable. The impugned judgment and decrees do not call for interference.
39. The learned counsel for the respondents 1 and 4 placed reliance on the following decisions to contend that the suit is filed on the same cause of action and therefore, not maintainable.
(1) AIR 1965 SC page 295
(2) 2006 (5) KLJ page 281
- 33 -
(3) AIR 2004 Gujarat page 83
40. Placing reliance on the decision of the Hon'ble Supreme Court reported in AIR 1996 SC page 1724, the learned counsel for the respondents 1 and 4 submitted that the execution of sale-deed in favour of the near relatives when intention and consideration are not proved the document is a sham document. He, therefore, submitted that the impugned judgment and decrees do not call for interference.
41. In reply, the learned counsel for the appellants submitted that the suit 'A' schedule property is the self- acquired property of late P.Raju. In the earlier suit, there is no mention about the Will in the written statement filed by the plaintiff. The suit is barred by limitation under Article 59 of the Limitation Act. In the year 1999, specific stand was taken in O.S.No.4671/1999 and the suit is filed in the year 2006 and therefore, the suit is not
- 34 -
maintainable and barred by limitation. There is no specific plea regarding inadequate consideration, fraud and misrepresentation. Placing reliance on the decision of the Hon'ble Supreme Court reported in AIR 1996 SC page 761, the learned counsel for the appellants submitted that the sale-deed is not required to be attested in law. The attesting witnesses need not be examined. Section 68 of the Evidence Act does not cover such transaction.
42. Further placing reliance on the decision of the Hon'ble Supreme Court reported in (2009) 1 SCC page 689, the learned counsel for the appellants submitted that the dismissal of the suit for non-prosecution was not a decision on merits and therefore, cannot operate as res judicata.
43. Further placing reliance on the decision of this Court reported in 1989 (1) KLJ page 150 and of the
- 35 -
Hon'ble Supreme Court reported in AIR 2005 SC page 2342, the learned counsel for the appellants submitted that fraud and misrepresentation must be necessarily pleaded. In the present case, there is no specific plea regarding fraud or misrepresentation.
44. Placing reliance on the decision of the Hon'ble Supreme Court reported in (2003) 8 SCC page 740, the learned counsel for the appellants submitted that when there is variance between pleadings and proof, the evidence cannot be relied upon and adverse inference must be drawn.
45. Further placing reliance on the decision of the Hon'ble Supreme Court reported in (2004) 7 SCC page 708, the learned counsel for the appellants submitted that the plaintiff can succeed only on the strength of his case and not on the weakness of the defendant's case.
- 36 -
46. Further placing reliance on the decision of the Hon'ble Supreme Court reported in (2005) 7 SCC page 317, the learned counsel for the appellants submitted that the evidence cannot be a substitute for pleading. Therefore, the learned counsel for the appellants submitted that the impugned judgment and decrees cannot be sustained in law.
47. I have carefully considered the submissions made by the learned counsel for the parties.
48. The points that arise for my consideration are:
(1) Whether 'A' schedule property in O.S.No.2790/2006 is the ancestral or self-acquired property of late P.Raju?
(2) Whether the plaintiff in O.S.No.2790/2006 is entitled for a share in the suit 'A' schedule property as claimed by her?
- 37 -
(3) Whether the suit in O.S.No.2790/2006 is barred by limitation?
(4) Whether the impugned judgment and decree passed in O.S.No.2790/2006 calls for interference? (5) Whether the suit in O.S.No.4671/1999 is filed on the same cause of action and not maintainable in law?
(6) Whether the judgment and decree passed in O.S.No.4671/1999 calls for interference? Point No.(1)
49. The plaintiff contends that the suit 'A' schedule property is the ancestral property. Originally it belonged to Poongavanam, the grandfather of the plaintiff and the defendants. After his death, the property came to late P.Raju, the father of the plaintiff and the defendants 1 to
4. The property is ancestral and it is in joint possession. It is also contended that late P.Raju executed a Will dated 10.4.1985 and the plaintiff is entitled for 'D' schedule
- 38 -
property. Therefore, the plaintiff has prayed for share in the suit 'A' schedule property based on the Will and also as LR., of late P.Raju.
50. The defendants 1 and 2 have contended that they have purchased the suit 'A' schedule property from late P.Raju through registered sale deeds dated 24.9.1986 and they are in possession and enjoyment of the suit schedule property as its absolute owners. The plaintiff has nothing to do with the suit 'A' schedule property. She is in permissive possession of suit 'D' schedule property.
51. The plaintiff has examined PW.1 and exhibits P.1 to P.9 have been marked.
52. The defendants have examined DWs.1 to 3 and exhibits D.1 to D.7 have been marked.
- 39 -
53. PW.1 has reiterated the plaint averments. She has stated, suit 'A' schedule property is ancestral property. Originally it belonged to Poongavanam. Thereafter, it came to Raju. After his death, the plaintiff and the defendants are entitled for a share. Late P.Raju has left a Will as per Ex.P.9 and she is entitled for 'D' schedule property based on Ex.D.9.
54. Exhibits P.3 and P.4 are the sale-deeds in favour of the defendants 1 and 2. Exhibits P.5 and P.6 are encumbrance certificates. Exhibits P.7 and P.8 are the katha certificates. Ex.P.9 is the Will.
55. The defendants have produced Exhibits D.1 to D.7. Ex.D.1 is the registered sale-deed dated 24.9.1986. Exhibits D.2 and D.3 are katha extracts. Ex.D.4 is the tax paid receipt. Ex.D.5 is the certified copy of the agreement dated 4.1.1960 executed in favour of late
- 40 -
P.Raju by the CITB. Exhibits D.6 and D.7 are the encumbrance certificates.
56. It is clear from the evidence on record, the only document to show that the property came to late P.Raju is Ex.D.5 i.e., the agreement dated 4.1.1960 executed by the CITB in favour of late P.Raju. There is nothing on record to show that the property originally belonged to Poongavanam. From Ex.D.5, it can be inferred that the suit 'A' schedule property was allotted in favour of late P.Raju. Thereafter, katha has been transferred during his lifetime. Raju has executed sale- deeds as per exhibits P.3 and P.4 in favour of the defendants 1 and 2. Therefore, there is no merit in the contention that the suit schedule property originally belonged to Poongavanam. Nothing is produced to show that the property originally belonged to Poongavanam. Ex.D.5 shows that the suit 'A' schedule property has been allotted in favour of late P.Raju. Thereafter, katha
- 41 -
has been transferred. Late P.Raju has sold the property in favour of the defendants 1 and 2. It can be inferred that the suit 'A' schedule property was allotted to late P.Raju and it is his self-acquired property and not ancestral property. The claim of the plaintiff that the suit 'A' schedule property was ancestral property and the parties are in joint possession cannot be accepted. Accordingly, it is rejected. Suit 'A' schedule property is the self-acquired property of late P.Raju. Point No.1 answered accordingly.
Point No.2
57. The plaintiff claims share in the suit 'A' schedule property based on the Will Ex.P.9 and also as a legal heir of late P.Raju. Ex.P.9 i.e., Ex.D.2 in O.S.No.4671/1991 is the Will dated 10.4.1985. It is not registered. The attesting witnesses have not been examined. In O.S.No.4671/1999, DW.2 has deposed regarding the execution of the Will. She has not signed
- 42 -
the Will. She has not identified the signatures of the attesting witnesses. DW.2 is the relative of the plaintiff. She is an interested witness. O.S.No.4671/1999 has been filed against the plaintiff in O.S.No.2790/2006 for recovery of possession. In the written statement filed in O.S.No.4671/1999, there is no mention about the Will Ex.P.9. It is only in O.S.No.2790/2006, the plaintiff has mentioned about the Will. The Will Ex.P.9 suffers from serious infirmity and not proved as required under law. In the written statement filed in O.S.No.4671/1999, the plaintiff has not mentioned about the Will. It creates serious doubt about the genuineness of Ex.P.9. Therefore, the plaintiff cannot claim based on Ex.P.9 Will.
58. It is contended by the plaintiff that the suit schedule property originally belonged to Poongavanam. Thereafter, it came to late P.Raju. Therefore, the plaintiff is claiming share in the suit 'A' schedule property. Late P.Raju has executed sale-deeds in favour of defendants 1
- 43 -
and 2 during his lifetime. The plaintiff has not questioned the sale-deeds during the lifetime of late P.Raju. When once late P.Raju has sold the property which is his self acquired property in favour of the defendants 1 and 2, the plaintiff cannot claim any share in the suit 'A' schedule property. Point No.2 answered accordingly holding that the plaintiff is not entitled for any share in the suit 'A' schedule property based on Ex.P.9 or as LR., of late P.Raju.
Point No.3:
59. The learned counsel for the appellants contended that the suit in O.S.No.2790/2006 is barred by limitation. They contented that the suit in O.S.No.4671/1999 was filed in the year 1999 for recovery of possession. In the said suit, the plaintiff therein has contended that he has purchased the suit schedule property from late Raju and he is the owner of the suit schedule property and the defendant is a
- 44 -
licensee. The defendant i.e., the plaintiff in O.S.No.2790/2006 has denied the execution of the sale- deed and has contended that she is not a licensee and since childhood she is staying there and the suit schedule property is ancestral property. It is clear from the pleadings in O.S.No.4671/1999, the plaintiff in O.S.No.2790/2006 was aware of the existence of the sale-deed in the year 1999 itself. The plaintiff has filed suit in O.S.No.2790/2006 in the year 2006 challenging the sale deeds dated 24.9.1986 after the lapse of nearly twenty years.
60. Under Article 59 of the Limitation Act, to cancel or set aside an instrument or decree or for the rescission of a contract, the limitation is three years. It starts when the facts entitling the plaintiff to have the instrument or decree set aside or the contract rescinded first become known to him. In the present case, the existence of the sale-deeds has come to the knowledge of
- 45 -
the plaintiff in the year 1999 itself. In her evidence the plaintiff has stated that her father was alive when she came to know about the sale-deed in respect of suit 'A' schedule property in favour of the defendants 1 and 2. The circumstances clearly indicate that the plaintiff was aware of the sale-deeds in the year 1999 itself and even prior to that. Therefore, the plaintiff should have filed suit within three years. But, the suit is filed in the year 2006. Therefore, the suit is barred by limitation. Point No.3 answered accordingly.
Point No.4
61. The Trial Court has held that the suit 'A' schedule property is the self-acquired property of late P.Raju. Inspite of that, holding that it is ancestral property, the Trial Court has granted share to the plaintiff and defendant No.4. While the Trial Court was right in holding that the suit 'A' schedule property is the self- acquired property of late P.Raju, it was not justified in
- 46 -
granting share on the ground that the suit schedule property is joint family property. During his lifetime, late P.Raju has sold the property in favour of his sons defendants 1 and 2. Therefore, nothing remains to be partitioned. Therefore, the Trial Court was not justified in decreeing the suit granting 1/5th share each to the plaintiff and defendant No.4. The impugned judgment and decree passed in O.S.No.2790/2006 cannot be sustained in law. Point No.4 answered, accordingly. Point No.5
62. It is contended that the suit in O.S.No.4671/1999 is filed on the same cause of action and therefore, it is not maintainable. The plaintiff in O.S.No.4671/1999 has filed suit in O.S.No.10136/1992 for recovery of possession. It has been dismissed for non-prosecution on 28.3.1995. Thereafter, the plaintiff has filed suit in O.S.No.4671/1999 on 21.6.1999. The
- 47 -
cause of action pleaded in O.S.No.10136/1992 reads as follows:
"6. The plaintiff orally requested the defendant to vacate the schedule premises and the defendant promised to vacate the same. But the defendant went on postponing the issue on some pretext or other. The plaintiff got issued a legal notice dated 18-3-91 to the defendant and the same was received by the defendant. The defendant gave an untenable reply to the said notice. The copy of the legal notice, postal acknowledgment and the reply are produced herewith marked Annexures-'D', 'E' & 'F'.
7. The defendant is only a licensee who has been permitted by the plaintiff seeing her plight on humanitarian consideration and the defendant does not have any manner of right, title, or interest in respect of the schedule property.
- 48 -
8. The cause of action for the suit arose on when the plaintiff issued a legal notice terminating the licence and on subsequent dates within the jurisdiction of this Hon'ble Court."
63. The cause of action pleaded in O.S.No.4671/1999 is as follows:
"8. The cause of action for the suit arose when the plaintiff issued legal notice terminating the licence and asking the defendant to quit and deliver vacant possession, to which notice the defendant got issued an untenable reply on 29-5-1991.
9. Immediately thereafter the plaintiff filed O.S.No.10136/1992 against the defendant on the file of the City Civil Judge, Bangalore, which most unfortunately was dismissed for non prosecution on 28-3-1995. The plaintiff could only get said information in March 1999. However as the said suit was dismissed for non-prosecution it was not on
- 49 -
merits. The plaintiff has filed this fresh suit, the cause of action being a continuing one and available to plaintiff to file this suit."
64. It is clear, a careful reading of the cause of action pleaded in O.S.No.10136/1992 and cause of action pleaded in O.S.No.4671/1999 would make it clear that the cause of action for both the suits is one and the same. In AIR 1965 SC page 295, 2006 (5) KLJ page 281 and AIR 2004 Gujarat page 83, it has been held, under Order IX Rule 9 of CPC, the second suit on the same cause of action is barred. In the present case, the suit in O.S.No.4671/1999 has been filed on the same cause of action. Therefore, O.S.No.4671/1999 is not maintainable. Point No.5 answered accordingly. Point No.6:
65. The Trial Court considering the material on record has held that the suit is filed on the same cause of
- 50 -
action and therefore, not maintainable. I do not find any error or illegality in it. Therefore, the impugned judgment and decree passed in O.S.No.4671/1999 does not call for interference.
66. Accordingly, RFA.No.1124/2009 and RFA.No. 1242/2009 are allowed and the impugned judgment and decree passed by the Trial Court in O.S.No.2790/2006 is hereby set-aside. The suit of the plaintiff in O.S.No.2790/2006 is dismissed. RFA.No.1125/2009 is hereby dismissed.
No costs in the circumstances of the case.
Sd/-
JUDGE DVR.Bss.