Bangalore District Court
Smt. Pushpa vs Igneshappa on 13 March, 2020
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 13th day of March, 2020.
PRESENT:
Sri MALLANAGOUDA, B.Com.,LL.M.,
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.2958/2016
PLAINTIFFS : 1. Smt. Pushpa,
D/o. Igneshappa,
W/o. Pal Chinnaswamy,
Aged about 53 years,
Residing at No.1095, Begur
village, Begur hobli,
Bengaluru South taluk,
Bengaluru - 560 068.
2. Smt. Rajena Mary,
D/o. Igneshappa,
W/o. Joseph,
Aged about 49 years,
Residing at No.79,
Vittasandra Left and Right
Side, Begur village, Begur
hobli, Bengaluru South
taluk,Bengaluru - 560 068.
3. Arulnathan,
S/o. Mariyappa,
Aged about 49 years,
Residing at Mastrypalya
village, Rachenahalli
Dakale, K.R. Puram hobli,
Bengaluru East taluk,
Bengaluru - 560 036.
Cont'd..
-2- O.S. No.2958/2016
4. Akshay,
S/o. Arulnathan,
Aged about 19 years,
Residing at Mastrypalya
village, Rachenahalli
Dakale, K.R. Puram hobli,
Bengaluru East taluk,
Bengaluru - 560 036.
5. Smt. Yagamma,
D/o. Igneshappa,
W/o. Anthonyswamy,
Aged about 47 years,
Residing at No.1509, Lay-
out nearby Canara Bank,
West Side, Bengaluru South
taluk, Bengaluru.
6. Smt. Annamma,
D/o. Igneshappa,
W/o. Kanikyaraj,
Aged about 45 years,
Residing at Mastrypalya
village, Rachenahalli
Dakale, K.R. Puram hobli,
Bengaluru East taluk,
Bengaluru - 560 036.
7. Smt. Mary,
D/o. Igneshappa,
W/o. John Bernad,
Aged about 38 years,
Residing at Mastrypalya
village, Rachenahalli
Dakale, K.R. Puram hobli,
Bengaluru East taluk,
Bengaluru - 560 036.
8. Martin,
S/o. Igneshappa,
W/o. John Bernad,
Aged about 36 years,
Residing at Mastrypalya
village, Rachenahalli
Cont'd..
-3- O.S. No.2958/2016
Dakale, K.R. Puram hobli,
Bengaluru East taluk,
Bengaluru - 560 036.
9. Savitha Mary,
D/o. Igneshappa,
W/o. Baburaj,
Aged about 34 years,
Residing at Mastrypalya
village, Rachenahalli
Dakale, K.R. Puram hobli,
Bengaluru East taluk,
Bengaluru - 560 036.
(By Sri R. Krishnappa, Advocate)
-VERSUS-
DEFENDANTS : 1. Igneshappa,
Aged about 90 years,
S/o. Late Doddayagappa,
Residing at Mastrypalya
village, Rachenahalli
Dakale, K.R. Puram hobli,
Bengaluru East taluk,
Bengaluru - 560 036.
2. Jeevan Arulappa,
S/o. Igneshappa,
Aged about 50 years,
Residing at Mastrypalya
village, Rachenahalli
Dakale, K.R. Puram hobli,
Bengaluru East taluk,
Bengaluru - 560 036.
3. Balaraju Arulappa,
S/o. Igneshappa,
Aged about 43 years,
Residing at Mastrypalya
village, Rachenahalli
Dakale, K.R. Puram hobli,
Bengaluru East taluk,
Bengaluru - 560 036.
4. Bharathloam,
S/o. Igneshappa,
Cont'd..
-4- O.S. No.2958/2016
Aged about 41 years,
Residing at Mastrypalya
village, Rachenahalli
Dakale, K.R. Puram hobli,
Bengaluru East taluk,
Bengaluru - 560 036.
5. W. Mahendra
Sundramurthy,
S/o. Late W.K.
Sundramurthy,
Aged about 60 years,
Residing at No.1/3,
Cunningham Road,
Bengaluru - 560 052.
(Defendant Nos.1 to 4 : Ex-parte)
(Defendant No.5 by Sri R.A.K.,
Advocate)
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Date of Institution of the Suit : 13-04-2016
Nature of the Suit (Suit on : Partition.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 24-03-2018
of recording of the evidence
Date on which the Judgment : 13-03-2020
was pronounced
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Year/s Month/s Day/s
----------------------------------
Total duration : 3 years, 11 months, -- days.
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(MALLANAGOUDA)
VIII Additional City Civil and Sessions Judge,
An&/- Bengaluru.
Cont'd..
-5- O.S. No.2958/2016
JUDGMENT
This suit is filed by the plaintiffs seeking partition and separate possession and consequential relief of declaration that sale deed dated 13.5.1994 executed by defendants 1 to 4 in favour of defendant No.5 is not binding on the plaintiffs and permanent injunction to restrain defendant No.5 from alienating the suit property.
2. The brief facts of the plaintiffs' case are as under -
One Igneshappa son of Doddayagappa was the Kartha of the joint family of the plaintiffs. Said Igneshappa had eleven children from his wife Mikkelamma. Plaintiffs 1, 2 and 6 to 9, wife and mother of plaintiffs 2 and 3 viz., Bhagyamma and defendants 2 to 4 are the brothers and sisters and they are the sons and daughters of defendant No.1. Defendant No.5 is the purchaser of the joint family property and defendant No.5 is not related to the family of the plaintiffs and defendants. Plaintiffs and defendants 1 to 4 are in joint possession and enjoyment Cont'd..
-6- O.S. No.2958/2016 of the property bearing Survey No.75, new Survey No.75/2 measuring an extent of 1-00 acre situated at Rachenahalli village, K.R. Puram hobli, Bangaluru East taluk. The suit property has been purchased out of joint family funds through sale deed dated 18.8.1970 in the name of first defendant and first defendant is the Kartha of the joint family. From the date of purchase, plaintiffs and defendants 1 to 4 are in joint possession and enjoyment of the suit schedule property and cultivating the schedule property as absolute joint owners and the plaintiffs have got their legitimate share in the suit schedule property. Till today, plaintiffs and defendants are in joint possession of the suit schedule property and there is no partition took place between them. When plaintiffs demanded for their share, defendants 1 to 4 have initially agreed to effect partition, but they postponed the same under one or the other pretext. But, recently, during second week of March, 2016, they refused to effect partition without any valid reason. Further, plaintiffs came to know that name of the defendant No.5 is entered in the R.T.C. of the suit property for the year 2015-2016. Thereafter, Cont'd..
-7- O.S. No.2958/2016 they obtained copy of the sale deed and came to know that defendants 1 to 4 have sold the suit property to defendant No.5 through sale deed dated 13.5.1994 and all the revenue records are standing in the name of defendant No.5. Plaintiffs werenot aware about the said sale deed in favour of defendant No.5. They are not made as parties to the said sale deed and they have not received any share in the sale consideration amount. Further, there is no legal necessity to alienate the suit property. Accordingly, sale deed executed by defendants 1 to 4 in favour of defendant No.5 is not binding on the share of the plaintiffs. Defendants 1 to 4 have no individual right to deal with the suit property. Now, taking undue advantage of his name in the revenue records, defendant No.5 is trying to create third-party rights over the suit property. Therefore, plaintiffs have filed the present suit seeking partition and separate possession of their share in the suit schedule property.
3. After service of summons, defendants 1 to 4 are placed ex-parte and defendant No.5 has appeared Cont'd..
-8- O.S. No.2958/2016 through his Counsel and filed written statement as under -
Averments of Paras 1 and 2 of the plaint are formal in nature and hence, there is no explanation needed. Fifth defendant is not aware of the averments of Para 3 of the plaint. In fact, defendant No.5 is the rightful owner of the suit property. He has purchased the same from the first defendant through sale deed dated 13.5.1994. On the basis of the said sale deed, his name has been mutated in the revenue records. Averments of Paras 4 and 5 of the plaint are all false and plaintiffs are put to strict proof of the same. Survey No.75 of Rachenahalli village measuring 1-00 acre is the self-acquired property of the first defendant and he purchased the same from one Rayappa @ Rajanna through sale deed dated 18.8.1970 for valuable consideration. Hence, question of the suit property being joint family property or in joint possession does not arise. Now, fifth defendant has purchased the suit property from the first defendant by paying valuable consideration and he is in undisturbed possession of Cont'd..
-9- O.S. No.2958/2016 the same from the year 1994. Averments of Paras 6 to 8 are false and plaintiffs are put to strict proof of the same. Suit property is not joint family property at any point of time and the same is self-acquired property of first defendant. In fact, plaintiffs have filed the present suit in collusion with the first defendant just to harass the fifth defendant. Fifth defendant is in possession of the suit schedule property from the date of its purchase i.e., from 22 years. Therefore, his title has been perfected through passage of time. Averments of Paras 12 to 14 of the plaint are denied. Court fee paid by the plaintiff is not sufficient. Hence, suit of the plaintiffs is liable to be dismissed.
4. On the basis of the above facts, this Court framed the following -
ISSUES (1) Whether the plaintiffs prove themselves and defendants 1 to 4 are in joint possession and enjoyment of the suit schedule property?
Cont'd..
-10- O.S. No.2958/2016 (2) Whether the plaintiffs prove sale deed dated 13-05-1994 executed by defendants 1 to 4 in favour of defendant No.5 is not binding on them?
(3) Whether defendant No.5 proves suit schedule property is self-
acquired property of defendant No.1?
(4) Whether Court fee paid by the plaintiff is proper?
(5) Whether plaintiffs are entitled to one-twelfth share in the suit schedule property as prayed?
(6) What order or decree?
5. In support of their case, plaintiffs examined first plaintiff as P.W.1 and they got marked documents at Exs.P.1 to P.38.
6. On the other hand, fifth defendant himself examined as D.W.1 and got marked documents as per Exs.D.1 to D.19.
7. Heard arguments.
Cont'd..
-11- O.S. No.2958/2016
8. My findings on the above Issues are as under -
ISSUE No.1 - Negative;
ISSUE No.2 - Negative;
ISSUE No.3 - Affirmative;
ISSUE No.4 - Affirmative;
ISSUE No.5 - Negative;
ISSUE No.6 - As per final order, for the following -
REASONS
9. ISSUE NOs.1 TO 3 : Since all these Issues are inter-related with each other, they are being taken up together for discussion at a stretch in order to avoid repetition of facts.
10. It is the case of the plaintiffs that they are the daughters, son-in-law and grandson of defendant No.1; defendants 2 to 4 are the brothers of plaintiffs, and defendant No.5 is the purchaser of the joint family property. It is further contended by the plaintiffa that suit property was purchased by defendant No.1 through sale deed dated 18.8.1970 from the joint family funds Cont'd..
-12- O.S. No.2958/2016 and they all are in joint possession and enjoyment of the same from the date of purchase till filing the suit; now, recently when plaintiffs demanded for partition and separate possession of the suit properties, defendants 1 to 4 have postponed the same for one or the other reason; plaintiffs obtained R.T.Cs. of the suit property and found that name of defendant No.5 is entered in the revenue records and thereafter, they came to know that defendants 1 to 4 have sold the suit property in favour of defendant No.5 through sale deed dated 13.5.1994; in fact, execution of the sale deed in favour of defendant No.5 is not known to the plaintiffs and they are not made as parties to the sale proceedings nor have they received any shares in the sale consideration amount. Defendants 1 to 4 did not have any legal necessity to alienate the suit property in favour of defendant No.5 and hence, the said sale deed in favour of defendant No.5 is not binding on the plaintiffs' share.
11. On the other hand, defendant No.5 has contended that he has purchased the suit property Cont'd..
-13- O.S. No.2958/2016 through sale deed dated 13.5.1994 from the first defendant; after purchasing the same, Khata of the suit property was standing in the name of defendant No.5 and he obtained power connection to the suit property in his name; suit property was the self-acquired property of the first defendant; Hence, he has sold the same in favour of defendant No.5; plaintiffs have no right over the suit schedule property; Hence, he requested to dismiss the suit.
12. At the time of arguments, learned Counsel for the plaintiffs has argued that first defendant has acquired the suit property by selling the family property; hence, same amounts to joint family property of the plaintiffs and defendants 1 to 4; there was no any family and legal necessity for selling the suit property in favour of defendant No.5; therefore, as defendants 1 to 4 have sold the suit property to defendant No.5 without the consent and knowledge of the plaintiffs, plaintiffs are entitled for share in the suit property as claimed in the suit. In support of the said argument, he has relied on the judgment reported in (1986) 2 Supreme Court Cont'd..
-14- O.S. No.2958/2016
Cases 209 [Mary Roy and others -versus- State of Kerala
and others] -
"Part B States (Laws) Act, 1951 -
Sections 6, 3 and Schedule - S. 2(cc) of Indian Succession Act, 1925 - Travncore Christian Succession Act, 1092 stood wholly repealed on extension of Succession Act, 1925 to Part B State of Travancore-Cochin by the 1951 Act and not saved by Section 29(2) of Succession Act - Hence in matters of intestate succession of property of Indian Christians of former State of Travancore Chapter II of Part V of Succession Act would apply."
13. On the other hand, Counsel for defendant No.5 has argued that as the parties to the suit i.e., plaintiffs and defendants 1 to 4 are following Christianity, there is no concept of joint family in the Christian religion and hence, suit property was the exclusive property of the first defendant, and defendant No.5 purchased the same from the first defendant for valuable consideration; he is in possession of the suit property from the date of purchase; therefore, plaintiffs will not get any share in the suit schedule property. He Cont'd..
-15- O.S. No.2958/2016 has further argued that as all the properties of the first defendant which were obtained during partition held between himself and his brothers are not included in the suit, on that ground also the plaintiffs' suit is not maintainable. In support of his said argument, he has relied upon the judgments of the Hon'ble High Court reported in the following judgments -
(1) MANU/SC/0715/1994 [Kenchegowda (since deceased) by legal representatives -versus- Siddegowda] -
"Property - partition - Order 6 Rule 17 of CPC, 1908 - appeal against preliminary decree of partition in suit for declaration of title and injunction - decree of partition cannot be granted on ground that relief sought in suit were larger than partition - decree of partition of joint family property cannot be ordered unless whole joint family property is included in suit and all co-sharers are impleaded - impugned order untenable and set aside."
(2) MANU/KA/1562/2010 [G.M. Mahendra - versus- G.M. Mohan] -
Cont'd..
-16- O.S. No.2958/2016 "Property - Maintainability - Trial Court dismissed suit of plaintiff on ground that suit filed by plaintiff was not maintainable because plaintiff filed suit without including all other existing necessary party in joint family properties - Hence this Appeal - Whether suit filed by plaintiff was maintainable without including all other existing joint family properties - Held it was not in dispute that suit property was acquired under registered sale deed and that building was constructed by 1 st defendant out of income of joint family - It was to be noticed that joint family consists of plaintiff and 1st defendant only - Thre were no other co-parceners as on that day
- It was also not in dipsute that plaintiff as well as 1st defendant being only co- parceners were entitled to seek share in all joint family property - More over present suit filed by plaintiff without including all joint family properties and which prejudices rights of alienees who had also been impleaded as parties to suit - In this circumstances of case, suit filed by plaintiff for partial partition without including all joint family properties was bad in law - Therefore finding given by trial Court with respect to issue had to be Cont'd..
-17- O.S. No.2958/2016 maintained and finding given by appellants Court that suit was maintainable without including all joint family properties would not be held to be proper in circumstances of case - Thus suit filed by plaintiff was not maintainable as suit for partial partition would not be maintained without seeking leave of Court - Therefore suit of plaintiff was also not maintainable on this ground - Hence finding of Appellate Court holding that suit of plaintiff for partial partition was maintainable should be set aside and finding of trial Court with respect to issue that suit was had for non- joinder of necessary properties to be included in suit, had to be upheld - Appeal dismissed. Ratio decidendi "Suit is not maintainable when it is not filed by necessary party of suit."
14. On perusal of the evidence of both the parties and arguments submitted by their Counsel, it appears to me that admittedly, suit property was obtained by the first defendant on the basis of the sale deed executed by one Rayappa @ Rajanna dated 18.8.1970 and by looking to the documents which are marked at Exs.P.34 and P.35, it appears that at the time of purchasing the Cont'd..
-18- O.S. No.2958/2016 suit property, first defendant had sold some other properties which were obtained by him in partition between himself and his brothers and the relationship of the plaintiffs and defendants 1 to 4 is not at all under dispute.
15. However, admittedly, plaintiffs and defendants 1 to 4 are Christians by religion. Therefore, as held by the Hon'ble Supreme Court in the judgment reported in (2014) 10 Supreme Court Cases 731 , the concept of joint family or coparceners under the Hindu Law, is not applicable to the Christians. Therefore, though admittedly first defendant obtained the suit property in partition between himself and his brothers, till death of defendant No.1, his sons and daughters are not entitled for any share in the property belonging to the first defendant and now, as the first defendant has sold the suit property in favour of defendant No.5, question of his sons and daughters getting share in the suit schedule properties after his death also does not arise at all. Therefore, plaintiffs' claim that suit schedule property is the joint family property of the plaintiffs and Cont'd..
-19- O.S. No.2958/2016 defendants 1 to 4; they are in joint possession of the same; sale deed executed by defendants 1 to 4 in favour of defendant No.5 is not binding on them, does not hold good.
16. Further more, as rightly held by the Counsel for defendant No.5, admittedly as per Ex.P.33 - which is the partition deed dated 4.5.1962, defendant No.1 has obtained many properties other than the suit property and all those properties are not included in the present suit. Therefore, on that ground also, suit of the plaintiff is liable to be dismissed.
17. Further more, though first defendant alienated the suit schedule property in favour of fifth defendant in the year 1994, plaintiffs have filed the present suit in the year 2016. Therefore, suit of the plaintiffs is barred by limitation also. Accordingly, Issue Nos.1 to 3 are answered as above.
18. ISSUE No.4 : This being the suit for partition and declaration that the sale deed executed by defendants 1 to 4 as not binding on the plaintiffs' share, Cont'd..
-20- O.S. No.2958/2016 since he plaintiffs are not parties to the sale deed, the Court fee paid by the plaintiffs is sufficient. Hence, Issue No.4 is answered as above.
19. ISSUE No.5 : As already discussed above, since plaintiffs are Christians, the suit schedule property was the independent property of the first defendant and now, he has sold the same to defendant No.5, plaintiffs are not entitled for any share in the suit schedule property as claimed. Hence, Issue No.5 is answered in negative.
20. ISSUE No.6 : For my reasons and discussion on the above Issues, I proceed to pass the following -
ORDER Suit of the plaintiffs is dismissed with cost.
Draw decree accordingly.
(Dictated to Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 13th day of March, 2020.) (MALLANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..
-21- O.S. No.2958/2016
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFFS:
Examined on:
P.W.1 : Smt. Pushpa 24-03-2018
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P.1 : Certified copy of sale deed dated 18.8.1970 Exs.P.2 to : Seven R.T.Cs. in respect of Survey No.75. P.8 Ex.P.9 : Certified copy of sale deed dated 13.5.1994 (subject to condition of furnishing its typed copy.) Exs.P.10 : Eleven R.T.Cs. in respect of Survey No.75. to P.20 Exs.P.21 : Three more R.T.Cs. to P.23 Exs.P.24 : Four R.T.C. extracts. to P.27 Exs.P.28 : Transfer certificates in respect of plaintiff to P.30 Nos.6, 7 and 9.
Ex.P.31 : Family genealogical tree. Ex.P.32 : Certified copy of sale deed No.3294. Ex.P.33 : Certified copy of partition deed. Exs.P.34 : Certified copies of two sale deeds dated and P.35 18.8.1970.
Ex.P.36 : Certified copy of sale deed dated 20.4.1790 Ex.P.37 : Mutation register extract.
Ex.P.38 : R.T.C. extract.
3. WITNESS EXAMINED FOR THE DEFENDANTS:
D.W.1 : W.M. Sundaramurthy 27-03-2019 Cont'd..
-22- O.S. No.2958/2016
4.DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
Ex.D.1 : Registered sale deed dated 13.5.1994. Ex.D.2 : Form No.15 - encumbrance certificate.
Ex.D.3 : R.T.C. extract. Ex.D.4 : Certificate. Ex.D.5 : Certificate issued by village accountant.
Exs.D.6 to : Electricity bills and receipts. D.9 Ex.D.10 : Registered sale deed dated 18.8.1970. Ex.D.11 : Certified copy of order sheet in O.S. No.197/2005.
Ex.D.12 : Certified copy of compromise application in O.S. No.192/2005.
Ex.D.13 : Certified copy of amended plaint in O.S. No.192/2005.
Ex.D.14 : Certified copy of application in O.S. No.192/2005.
Exs.D.15 : Certified copies of vakalaths in and D.16 O.S. No.192/2005. Ex.D.17 : Certified copy of memo in O.S. No.192/2005.
Ex.D.18 : Certified copy of certification in O.S. No.192/2005.
Ex.D.19 : Notice issued by the B.D.A. (MALLANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..