Bangalore District Court
Sri. Gulshankumar Sodhi vs Smt. Kamala Rani Sodhi (Dead) on 26 November, 2020
IN THE COURT OF THE XXIX ADDL. CITY CIVIL
& SESSIONS JUDGE AT BENGALURU CITY. (CCH 30)
Dated this the 26th day of November 2020
PRESENT: SMT. NAGAJYOTHI. K.A., LL.M.,
XXIX ADDL CITY CIVIL & SESSIONS JUDGE, BENGALURU.
O.S.No. 4910/2003
Plaintiff : Sri. Gulshankumar Sodhi,
Since deceased by his LR
Smt. Suman Sodhi,
W/o. Late Gulshankumar Sodhi,
Aged about 45 years,
R/a. C/o. Suraj Mehta,
Kothi No.51/S, Model Town,
Hissar,
Haryana - 125 001.
(By Sri. Nisarsab, Advocate)
Vs.
Defendants : 1. Smt. Kamala Rani Sodhi (Dead)
2. Sri. Kailashchand Sodhi,
S/o Late Kasturilal Nihalchand
Sodhi,
R/a. No.302, Promenade Place,
Promenade Road,
Bengaluru - 560 062.
3. Smt. Latha Salhotra,
W/o Sri. Nadkishore Salhotra,
R/a. Ground Floor,
Sheetal Park Building,
Chandavarkar Lane,
Borival (West),
Mumbai - 92.
4. Smt. Shama Dhawan,
W/o Sri. Lalpat Dhawan,
Aged about 56 years,
R/a. No.307, 3rd Floor,
2
O.S.No.4910/2003
Abhinav Cooperative Society
Building,
Bharucha Road, Dalisar,
District Thana,
Mumbai.
5. Sri. Narendra Sodhi,
S/o Late Kasturilal Nihalchand
Sodhi,
Aged about 54 years,
R/a. No.301, 3rd Floor,
Akil Tower Ratannagar,
Dalisar East,
District Thana,
Mumbai.
6. Sri. Jagadishkumar Sodhi,
S/o Late Kasturilal Nihalchand
Sodhi,
Aged about 50 years,
R/a. No.103/5, Harismruthi
8th Road, Doulatnagar,
Borivali (East),
Mumbai - 66.
7. Smt. Harsha Kanotra,
W/o. Ashwini Kanotra,
Aged about 39 years,
R/a. Ashok Vihar, New Delhi.
C/o. Smt. Kamala Rani Sodhi,
No.103/5, Harismruthi
8th Road, Doulatnagar,
Borivali (East),
Mumbai - 66.
8. Sri. K.M. Rajendran,
S/o. M. Krishnamurthy,
Major,
R/a. No.3, 1st Main,
C.K.C. Garden,
Bengaluru - 560 027.
3
O.S.No.4910/2003
9. The Special Land Acquisition
Officer,
Podium Block,
Bengaluru.
(D.1 - Dead)
(D.3 Exparte)
(By Sri. Y.N. Sathyanarayana Rao,
Advocate for D.2, D.4 to D.7)
(By Sri. H.V. Nagaraja Rao,
Advocate for D.8)
Date of institution of the suit 15/07/2003
Nature of the suit (suit on
pronote. Suit for declaration and Partition suit
possession suit for injunction,
etc.)
Date of the commencement of 10/02/2016
recording of the evidence.
Date on which the judgment
26/11/2020
was pronounced.
Total duration Year/s Month/s Day/s
17 04 11
JUDGMENT
This suit is filed for partition of the suit schedule properties and to put him in separate possession of his 1/8th share and for mesne profits, and costs and for such other reliefs.
2. It is averred in the plaint that, the plaintiff and defendants are the Partners of the partnership firm known as Sodhi and Company. The firm was completely defunct after the death of 4 O.S.No.4910/2003 Kasturilal Nihalchand Sodhi, Managing Partner. Out of the partnership funds, the schedule properties were acquired in the name of 1st defendant - Smt. Kamala Rani Sodhi. All were enjoying the usufructs of the schedule properties in common. Later, the defendants started living separately and plaintiff started living at Bengaluru, and the joint status of the family property continued. The schedule item No's.1, 2 & 3 were tenanted and the 2 nd defendant was collected the rents and distributing the same among the plaintiff and defendants. But, of late, he started enjoying the rents alone. In the year 1997, the 2 nd defendant managed to get GPA from 1st defendant for limited purpose of initiating civil litigations in Mumbai. But, misusing the same, he started collecting the rents and income from all the properties. The Sy.No's.30/1 & 30/2 situated at Kodichikkanahalli village, Begur Hobli, measuring 6 acres 19 guntas, In that, the Special Land Acquisition Officer, Bengaluru, acquired 4 acres 2 guntas of land. The compensation amount deposited in the court. Then, this plaintiff claims petition in LAC No.181/2001. But, the 2 nd defendant misusing the GPA, tried to receive the entire compensation. At that stage the 1 st defendant executes GPA 5 O.S.No.4910/2003 authorizing the plaintiff and his wife to administer 32 guntas of land. By virtue of that GPA, the plaintiff and his wife sold 32 guntas of land in favour of 8th defendant in the registered sale deed dated 02.06.2000. The 2nd defendant files O.S.No.339/2001, as GPA Holder of the 1st defendant before the City Civil Court, seeking cancellation of the said sale deed. Remaining 1 acre 2 guntas are retained and referred in schedule - 4. In view of the sale deed executed in favour of 8th defendant, khatha also transferred in his name and the 8th defendant invests heavily on the property for it's improvement. In the meanwhile, the 1 st defendant files private complaint before CMM Court, Bengaluru. Then, the matter referred to Madiwala police station, for investigation. The police requested for the said GPA dated 09.02.2000, for investigation. So, the court has delivered the same to the police. Because of all these litigations, the plaintiff decided to severe the joint status with the defendant No's.1 to 7. Hence, he issues legal notice. None of the defendants replied the notice. If the court holds that alienation in favour of 8th defendant is not binding on the kartha and other partners, the court may allocate to the share of the plaintiff. Hence, files this suit.
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O.S.No.4910/2003
3. After service of suit summons, the 3rd defendant was not appeared, hence placed exparte.
4. The 2nd defendant has appeared through his counsel and submitted in the writtenstatement that, the suit is not maintainable in law, it has suppressed the material facts and barred by law of limitation. The alleged partnership firm is even now in existence. The partners are Smt. Kamala Rani K. Sodhi, Kailashchandra K. Sodhi, Latha, Gulshan Kumar K. Sodhi (plaintiff), and Late Smt. Shantidevi Ramchand Sareen. The said company was not headed by Late Kasturilal Nihalchand Sodhi. The deceased 1st defendant and this defendant are the founders of the partnership company. The plaintiff has not contributed the company since he was a minor. The plaintiff gone out of the house in the year 1967 & 1968. Again the plaintiff was absconding in the year 1970 & 1971, and also in the year 1975. He returned in the year 1988. Then, he was a drug addict. He was settled at Bommanahalli, and at no point of time, the 1 st defendant authorized him to look after the property. The item No.1 of the schedule property is the selfacquired property of the deceased 1 st defendant and she collects rent in respect of this property, during 7 O.S.No.4910/2003 her lifetime. At that time it fetches Rs.260/ rent per month, which was utilized for paying the tax and maintenance of the said building. The item No.2 of the schedule property belongs to Sodhi & Company, which fetches the rent Rs.1,000/ per month. It was also utilized for paying the tax and maintenance. The item No.3 of the schedule property had 3 plots i.e., 30, 31 & 32. Plot No.30 belongs to the deceased 1st defendant. Plot No's.31 & 32 jointly belongs to the deceased 1st defendant, 2nd defendant and plaintiff. It was sold by 2nd defendant and plaintiff in the year 1979 to a developer and the developer constructed the building and sold the same and it was not in existence. Plot No.34 situated at Borivili, is also in the name of plaintiff, along with deceased 1 st defendant and 2nd defendant. In respect of this property, the plaintiff gave his right to the third persons and in respect of Plot No.35,he gave possession to the third parties. He has created dispute with regard to the plot No.35, where the defendant No's.5 & 6 are the owners. In respect of acquisition by the Land Acquisition Officer, the deceased 1st defendant files necessary application for enhancement of compensation in LAC No.263/2001, and received the award amount. When the award of enhancement claim petition is not 8 O.S.No.4910/2003 satisfactory, he also preferred MFA No's.5443 & 3953/2005 and Crl. Appeal No.260/2005 are now pending for disposal. In fact, the plaintiff's petition in LAC No.181/2001 is a false petition. It was filed through the advocate of 8th defendant in O.S.No.339/2001, and the same was dismissed on 08.08.2003. The plaintiff has not challenged the order. The plaintiff in collusion with the 8th defendant, created and concocted the GPA dated 09.02.2000. When 1st defendant files O.S.No.339/2001, the same was decreed on 11.10.2004. Then, the 8 th defendant prefers RFA No.105/2005, and it is pending for disposal. In September 2005, the GPA of plaintiff sent for FSL opinion. The FSL authorities gave the opinion on 23.12.2005 that, the plaintiff forged the signature of the deceased 1 st defendant. So, the case was registered against the plaintiff and his wife in CC No.5292/2006, it is also pending before the 6 th ACMM Court, Bengaluru. The defendants were not received any notice of the plaintiff. The suit filed by the 1st defendant, is decreed and said that the alienation in favour of 8th defendant, is not binding on the kartha or other partners of the family. The plaintiff ought to have valued the suit under Section 35(1) r/w Section 26(a) of the 9 O.S.No.4910/2003 Karnataka Court Fees and Suits Valuation Act. This court has no territorial jurisdiction. The suit is bad for misjoinder and non joinder of necessary parties. Hence, prays for dismissing the suit with exemplary costs.
5. The 8th defendant has appeared through his counsel and filed writtenstatement. However, the same was rejected on merit, on 02.02.2013.
6. In proof of their case, the wife and legal representative of the plaintiff examined as PW.1, and relied upon the documents Exs.P.1 to P.36. On behalf of the defendants, the 2 nd defendant himself was examined as DW.1. Exs.D.1 to D.36 were marked.
7. Heard the arguments.
8. Considering the facts and circumstances and the material available in the matter, my Learned Predecessor has framed the issues and additional issues, respectively, on 25.05.2010 & 29.01.2011, as under:
ISSUES (1) Whether the suit of plaintiff for partition is barred in view of the judgment passed in O.S.No.339/2001? (2) Whether the plaintiff is entitled for a share in the plaint schedule mentioned properties? If so, what is the share of the parties to the suit?10
O.S.No.4910/2003 (3) Whether defendant No.2 proves that the plaintiff was only a name lender to M/s. Sodhi & Co., a partnership firm as pleaded in the written statement? (4) Whether the defendant No.2 further proves the alienation made by the plaintiff by virtue of General Power of Attorney dated 9.2.2000 executed as kartha of the family partnership firm viz., M/s. Sodhi & Co., under a sale deed dated 2.6.2000 in favour of defendant No.8, is not binding on him?
(5) Whether the valuation of the suit is not correct? (6) Whether the plaintiff is entitled for mesne profits? (7) What decree or order?
ADDITIONAL ISSUES (1) Whether the 2nd defendant proves that the General Power of Attorney dated 9.2.2000 is concocted and fabricated one?
(2) Whether the defendants 2 to 7 prove that, in item No.3 of the plaint schedule property, plot No.30 & 32 are sold by plaintiff and defendant No.2 in 1979, as pleaded in written statement para9?
9. My findings to the above issues and additional isues are as under:
Issue No.1 : In the Affirmative.
Issue No.2 : In the Negative.
Issue No.3 : In the Affirmative.
Issue No.4 : In the Affirmative.
Issue No.5 : In the Negative.
Issue No.6 : In the Negative.
Addl. Issue No.1 : In the Affirmative. Addl. Issue No.2 : In the Negative.
Issue No.7 : As per final order for the following:11
O.S.No.4910/2003 REASONS
10. Issue No's.3 & 4: It is a suit for partition, where plaintiff claims his 1/8th share in the suit schedule property. The relationship is not disputed that the plaintiff and defendant No's.2 to 7 are the children of deceased 1 st defendant - Smt. Kamala Rani Sodhi. The contention of the plaintiff is, they have established joint family partnership firm i.e., Sodhi & Company. When the said company is gone defunct, the 1st defendant purchased the item No's.1 to 6 of the suit schedule properties out of the joint family fund obtained from Sodhi & Company and thus, he seeks partition. Whereas, the 2nd defendant strongly denied the same and claims that, Sodhi & Company is still in existence and he also contends that, the suit schedule properties are the selfacquired properties of the 1st defendant and she has also executed the Will in respect of dispossession of property. She has made 2 nd defendant, as her GPA Holder and thus, prays for dismissing the suit.
11. In between all these contentions, the crucial fact to be observed is, the plaintiff also claims he has obtained GPA from the 1st defendant, earlier to the GPA of 2nd defendant and on the basis 12 O.S.No.4910/2003 of said GPA, he executes sale deed in respect of item No.4 of the suit schedule property in favour of 8th defendant and claims that, if the sale deed is not proved as valid under law, he claims item No.4 of the suit schedule property should be mentioned in the sale deed, so that there is no disturbance on the right and enjoyment of the 8th defendant. However, when 2nd defendant claims on existence of Will and it's proof, the 8 th defendant's right defence on proof of the Will of the 1 st defendant also also shares on right of the suit schedule property, whether they are joint family property or not. When 8th defendant's writtenstatement is rejected on merit, the 8th defendant prefers RFA. The RFA was also confirmed the order of this court. So, in view of all these grounds, Issue No.1 is crucial to the case, which deals on maintainability of the suit, in view of the judgment of O.S.No.339/2001. Whereas, appreciating the other issues, I consider it is better to adjudicate Issue No's.3 & 4, earlier to the Issue No.1. When the suit was filed on 15.07.2003, the 1st defendant is alive. The 2nd defendant filed writtenstatement and he admits the existence of the company, as it is a partnership firm. But, all the defendants are not partners and he mentions the partners are - deceased 1 st defendant, 2nd 13 O.S.No.4910/2003 defendant, Smt. Latha Salhotra/3rd defendant, deceased plaintiff and Late Smt. Shanthadevi were the partners, and it was headed by their father - Kasturilal Nihalchand Sodhi. At the time of formation of company in the year 1964, the deceased plaintiff is barely 14 years. So, the plaintiff has not made any contribution towards the company. It also alleges that, the plaintiff gone out of the house in the year 1967, and he was absconding in the year 1967 and 1968. In between the period, he came and again he was absconding in the year 1975, and he was also a drug addict. So, because of these reasons, the plaintiff was not involved in the family business.
12. The legal representative of the plaintiff, his wife - Smt. Suman Sodhi deposed as PW.1, and in the crossexamination she replies that, the allegation is connected prior to the marriage of the plaintiff. So, there is no question put forth to PW.1, in respect of the same.
13. The 2nd defendant deposes as DW.1. DW.1 replied in the crossexamination that, plaintiff left the house first in the year 1967. There is no denial suggestion made in respect of this statement. He also replied further that, Sodhi & Company 14 O.S.No.4910/2003 registered in the year 1964, when he was 21 years old. So, this itself clearly shows, plaintiff is younger to the 2 nd defendant i.e., at the time of registration of the company, plaintiff is the minor. So, it can be clearly concluded that, plaintiff has not made any contribution to the company. It is pertinent to note that, plaintiff and 2nd defendant both admits on evidence of the suit O.S.No.339/2001 filed by 1st defendant - Smt. Kamala Rani Sodhi, wherein Smt. Kamala Rani Sodhi gave the evidence. In that suit the plaintiff is the 2nd defendant and in the chiefexamination itself, she has adduced that, the 2 nd defendant has fallen into the bad company and has become victim of bad habits and become drug addict. The same was not disputed in her crossexamination. Ex.D.12 is the certifiedcopy of the deposition of same plaintiff - Gulshan Kumar Sodhi as DW.6. In the crossexamination he replied that, it is true to suggest that, in the year 1975, he left the house and he returned in the year 1977. But, he says in between that period i.e., 1975 to 1977, he was staying in different places. He denied the suggestion that, his whereabouts were not known to his relatives in the period of 1975 to 1989. But, he further deposed that, he was doing business in the said period. Whereas, 15 O.S.No.4910/2003 it is his own reply that, nobody contributed mony for his business. He also replied that, his father performed his marriage i.e., he was married on 02.09.1990. In the year 1989, his mother gave him Rs.700/ to open a shop at Bombay. So, all these facts clearly shows, he has no selfincome for funding Sodhi & Company, and so defendant proves the plaintiff was only name lender to Sodhi & Company.
14. In the crossexamination to DW.1, the plaintiff tried to dispute the defence that, the 1st defendant has no independent source of income for purchasing any property. Whereas, by disputing the same, DW.1 replied that, the family generation commences before partition of India, his parents migrated from Pakistan. He specifically denied the suggestion that, when his father migrated to India, he sold some property and brought some wealth from Pakistan. Their family had some properties at undivided Punjab. He denied the suggestion that, his father utilized the compensation amount given by the Government for purchasing schedule1 property in the name of his mother. While denying the same, the witness replied that, his mother's father who was an advocate, had property at Punjab, which comes within 16 O.S.No.4910/2003 Indian border. So, because of the wealth given by her father, his mother purchased the property. The plaintiff has not produced any document in respect of his contribution either to the company or for purchasing the suit schedule properties. However, the defendant has also not filed any document in respect of Sodhi & Company. From 1977 to 1991, he was at Dubai in gulf country. During that period, for about 15 times he came to India. He denied the suggestion that, during his absence, the plaintiff managed the affairs of the family and business. The schedule4 property purchased when he was at Dubai. Then, his father came to Bengaluru and started residing with his brother i.e., plaintiff and his wife. So, according to him, around 199192, the plaintiff and his wife came to Bengaluru, and at that time their father resided with the plaintiff. He volunteers that, his brother - Narendra Sodhi established the company in the year 197980. After returning from Dubai in the year 2003, he has taken the charge of Sodhi & Company and till now he is holding it, and he is in possession of books of accounts of Sodhi & Company. He also says, he was not sure whether all the books are available with him, as he changed his residence thrice. He denied the suggestion 17 O.S.No.4910/2003 that, Sodhi & Company paid the tax of their family house Harishmathi. He says, it is only Shama Sadan tax is paid by Sodhi & Company. He denied the suggestion that, his father Kasthurilal and his brother Gulshankumar also managed the affairs of the company till 1997. When it was suggested that his mother purchased the schedule4 property from the income of Sodhi & company, he says only one property purchased at Bombay, out of the fund of Sodhi & Company. When he was questioned about income and expenditure of the company, he replies only passbook is the account of Sodhi & Company. But, the same also not produced. When it was suggested that he was not shared profit and loss of the company, he replies that he has not received any profit. It is also true that, unless the defendant produces the document connected to Sodhi & Company, the question of disputing the same does not arises. When it was suggested that all the partnership companies should keep their annual audit report, he replied that they were not adopting this procedure. Till today he was not shared the profit and loss of the company. His brother and sisters were not executed GPA in his favour. Only he was contesting the suit. He denied the suggestion 18 O.S.No.4910/2003 that, the other siblings were consented for partition of the property and he alone was not willing for it.
15. In view of the same while arguing the case, the defendant's counsel stresses on these suit schedule properties i.e., schedule1, 2 & 3 properties are existing at Mumbai. The schedule4 & 5 properties are only existing at Bengaluru. The schedule4 of the property measuring 1 acre 34 guntas in Sy.No's.30/1 & 30/2, situated at Kodichikkanahalli village, Begur Hobli, Bengaluru South Taluk. The schedule5 is compensation amount in respect of the same survey number properties acquired to the extent of 4 acres 2 guntas. The schedule6 is ambiguous as referred as follows:
"Any other property that was earned by Sodhi & Company in Haridwar and other places in India".
So, this partition suit is filed in Bengaluru jurisdiction, based on the fact that, two properties are existing at Bengaluru. The defendant contends that, the plaintiff has no right to claim share in respect of schedule4 & 5 properties. So, it was mainly contested in respect of schedule4 & 5 properties. Even the court needs to give importance on this aspect. Because if defendant proves the plaintiff has no right in respect of schedule4 & 5 19 O.S.No.4910/2003 properties, this court has no scope to adjudicate upon the schedule1, 2, 3 & 6 properties.
16. This suit is filed in the year 2003. But, prior to that, the 1st defendant - Smt. Kamala Rani K. Sodhi filed O.S.No.339/2001 against the 8th defendant and others, wherein the deceased plaintiff and the present plaintiff were also mentioned as defendant No's.2 & 3. The said suit was filed seeking declaration relief in respect of suit schedule5 & 4 properties that, she has not executed any GPA in favour of defendant No's.2 & 3 and the sale deed dated 02.06.2000 executed on the basis of GPA is not binding on her and for restoration of possession. The said suit was decreed in her favour on 11.10.2004. Since the said suit is elaborately discussed on merit in respect of schedule5 & 4 properties, I consider it is necessary to appreciate the dcuments connected to the said suit filed before this court by the defendant. In the said suit as a plaintiff, the 1 st defendant specifically took the contention that, it is her absolute property and her exclusive right in the suit schedule property. She has deposed that, the 2 nd defendant (deceased plaintiff) was fallen into bad company and has become victim of bad habits and has become a drug addict and 20 O.S.No.4910/2003 involved in the activity of creating the documents. She has not received any sale consideration amount in respect of the property sold in favour of 8th defendant. In the crossexamination she specifically denied the suggestion that the property referred in schedule2 & 3 properties have been purchased out of income of M/s. Sodhi & Company. She has got source of income other than the income of M/s. Sodhi & Company. She was an Income Tax assessee individually. But, she is not remembering from which year she is submitting the Income Tax Returns individually. She specifically denied the suggestion that, the 2 nd defendant had not fallen to bad habits and volunteers he was engaged in gambling and had quarreled with his father on some occasions. M/s. Sodhi & Company is a proprietary source. But, she denied the suggestion that, it owns movable and immovable properties at several places in the country. She also denied that, in the period of 1982 & 1985, they purchased several properties individually in the name of the company. Only one building at Bombay exists in the name of M/s. Sodhi & Company. Except this, it has no other movable property. DW.1 also reiterated it in this suit. The company is not maintaining the regular accounts of business. It is 21 O.S.No.4910/2003 still in existence and engaged in business. But, she also said that, now the company is not doing any business. Her evidence is recorded on 28.02.2004. She has not given the profit derived from the company to any of the family members. She has not authorized her son to manage individually all the properties belong to Sodhi & Company, which are situated in Bengaluru and other places. Herself volunteers, her sons Narendra Kumar Sodhi and Kailashchandra Sodhi are managing the properties of herself and the company which are situated at Bengaluru and Bombay. But, this statement cannot interpreted as the property situated at Bengaluru i.e., schedule5 & 4 properties are company properties. There is no yearly meeting convened for the firm. There is no income from the company. On 06.03.2004 she deposes, at present she was managing the affairs of the company and not entrusted the work to the members of the family, as there is no excess work. She was also not entrusted the members to purchase the property in the name of Sodhi & Company. Except this evidence, there is no evidence in respect of Sodhi & Company. Here, I like to appreciate the evidence, as it was adduced by the deceased 1 st defendant herself. The plaintiff's contention in this suit is that, the 22 O.S.No.4910/2003 1st defendant purchased all the suit schedule properties from the fund of Sodhi & Company. Whereas, herein the defendant herself specifically said that, the company is in existence. But, there is no such business and there is no such work for the company and she was not authorized anyone to purchase the property on behalf of the company. Except one office building at Bombay, there is no other properties for Sodhi & Company. The plaintiff has not examined any other witness to dispute this evidence in this suit. It is true that, the said evidence of deceased 1st defendant, is recorded after filing of this suit. Even on perusal of the order sheet shows, the plaintiff has moved application seeking production of documents connected to the company, at the fagend of the suit. Even though the deceased plaintiff is also member of the company, he has no evidence in respect of the company activities. The present plaintiff is the widow of the plaintiff, who is the member of the company. She admits in the crossexamination that, till today the company is in existence. She cannot say who is the outside member in Sodhi & Company. So, except this, there is no evidence in respect of the company.
23
O.S.No.4910/2003
17. It is pertinent to note that, the 1 st defendant after obtaining the decree in her favour in O.S.No.339/2001, it is the 8 th defendant who prefers appeal RFA No.105/2005 and in SLP No.34272/2010, The said SLP is dismissed on 16.12.2010. So, this O.S.No.339/2001 decided on merit clearly proves the 1 st defendant's absolute right in the suit schedule property. Ex.D.17 is the declaration of the 1st defendant dated 13.12.2000 i.e., prior to this suit, where she declares as follows:
"My son Gulshankumar S/o Kasturilal Sodhi, has been selling whatever comes in his way and has attempted even to sell raising money for his bad habits. Any amount of efforts to reform him have become futile. So, she has decided to disentitle the plaintiff and his wife Smt. Suman Gulshankumar Sodhi from inheriting any of her movable or immovable properties situated or located either in Bangalore District or Mumbai, or anywhere else".
Further, she also declares as follows:
"All the movable and immovable properties standing in her name, are purchased by her own funds. Not only the plaintiff and his wife, their to be adopted children also have no right in her property and also mentioned even after her death, they are not entitled for any right".
The crucial document is Ex.D.1 Will of 1st defendant and same was probated before the Hon'ble High Court of Judicature at Bombay, it is dated 29.02.2012. On perusal of the same shows, the deceased 1st defendant executed Will on 29.04.2004, and she was 24 O.S.No.4910/2003 died on 06.07.2006. In respect of properties mentioned in schedule3 & 4 of this suit, she has mentioned as follows:
"The aforesaid properties bearing Sy.No's.301/A, 30 1/B and 302 belong to her absolutely and she bequeath the aforesaid properties and the amount receivable by her for acquisition of portions thereof to her sons (1) Kailashchandra, (2) Narendrakumar, and (3) Jagdishchandra in equal onethird shares absolutely".
On perusal of the entire Will also shows, it has elicited about all the properties including all suit schedule properties, where she gave the amounts to her daughters. Prior to all this distribution of her share, she specified she was not wishing to bequeath any money or property to her son - Gulshankumar Sodhi (deceased plaintiff) or his wife or any child or children, who may be adopted by Gulshankumar. They are not even entitle to claim any money or the property, out of her estate. It also mentioned that, she has executed GPA in favour of her elder son - Kailashchandra Kasturilal Sodhi on 15.11.1997 and another son Narendrakumar Kasturilal Sodhi on 13.11.1973, jointly and severally with her husband Late Kasturilal Nihalchand Sodhi. Both are not authorized to give development right of any of the properties listed below, which includes the suit schedule properties also. So, as rightly argued by the defendant's counsel, the order of probate is 25 O.S.No.4910/2003 an absolute, it is a judgment in rem. Hence, I refer the citations (1) AIR 1933 Bombay 469, in the case of Narbheram Jivram Purohit & another Vs. Jevallabh Harjivan, where it is held that, "Probate is conclusive evidence not only of the factum, but also of the validity of the Will". The same view is found in the citation AIR (37) 1950 Mysore 57. (2) The citation AIR 1984 SC 1866, where it is held that, "Party receiving citation but not entering caveat to contest - Precluded from contesting validity of Will in other proceedings". Here also, so far, no one has challenged the same including the plaintiff.
18. In this suit, when PW.1 is crossexamined in respect of O.S.No.339/2001, she replies she was not knowing of it. It is also admitted the that, the said suit is pertaining to schedule4 of this suit property. In respect of the said suit, her motherinlaw also filed private complaint against herself and her husband, including 8th defendant, wherein she filed writtenstatement. It is true that, in respect of portion of schedule4 property, her husband sold the portion of the property to the 8 th defendant. Her motherinlaw filed the said suit for cancellation of the said sale deed, where she challenged the GPA represented as executed by her in favour of 26 O.S.No.4910/2003 deceased plaintiff. After FSL report, it is concluded that the deceased plaintiff of this suit, forged her signature and in respect of the same, the criminalcase is pending against herself, her husband, 8th defendant and others in CC No.5292/2006. None of them challenged the FSL report. She admits the decreetal order of the suit. But, she is not knowing because of that sale deed executed in favour of 8th defendant is cancelled. It is further admitted that, in respect of compensation of property acquired and referred in schedule4 property, the 1st defendant received the compensation. She was not aware of the enhancement made in LAC petition. She was not knowing the Will executed by her motherinlaw and on that basis, the defendant No's.2, 5 & 6 obtained probate before the Mumbai Court. Thereafter, the defendant No's.2, 5 & 6 were also received the amount deposited by BWSSB before the Hon'ble High Court of Karnataka in LAC proceedings. She denied the suggestion that, when 1 st defendant files O.S.No.339/2001 challenging the sale deed executed in favour of 8th defendant as a counterblast, the plaintiff filed this suit. She was not knowing that, on their behalf, the 8 th defendant engaged the advocate in RFA No.105/2005 and SLP No.34272/2010 before 27 O.S.No.4910/2003 the Hon'ble Supreme Court of India. However, she admits both RFA and SLP are dismissed. So, this evidence also clearly shows, the plaintiff is aware of the above proceedings referred in respect of schedule5 & 4 properties. So, the plaintiff's scope of getting right in the suit schedule property is completely closed.
19. The plaintiff produced the documents in respect of item No's.1, 2 & 3 of the suit schedule properties, they are the property cards marked as Exs.P.1 to P.7, it includes the translated copies as Exs.P.1(a) to P.7(a). On perusal of these documents shows, schedule3 property stands in the name of defendant No's.1, 2 & 5. Exs.P.8 to P.10 are the another property cards of schedule2 property, it is in the name of defendant No's.1, 2, 3, plaintiff and Smt. Shanthadevi. Exs.P.11 to P.12 are the RTC of schedule4 property for the period 201011, it shows the name entry of defendant No's.1, 8 and BWSSB. Whereas, the above evidence concluded that, the 8th defendant's right has been cancelled. Exs.P.13 & P.14 are the sale deeds executed in favour of 1 st defendant dated 02.03.1972, in respect of properties situated at Mumbai. Exs.P.22 & P.23 are the property cards of properties situated at Mumbai. Exs.P.15 to P.18 are the documents 28 O.S.No.4910/2003 connected to the legal notice. Ex.P.19 is the tax paid receipt of schedule4 property. Exs.P.20 & P.21 are the RTC of schedule4 property for the period 200203. Further, she was also produced the encumbrance certificate/Ex.P.26, it is connected to the property at Roopena Agrahara, and it is not the suit schedule property. Ex.P.27 also not connected to the suit schedule property. So, the plaintiff has no document to show that the suit schedule properties are joint family properties. So, appreciating all the above evidence, it shows the defendant has proved the plaintiff is only a name lender to Sodhi & Company and the alienation made by the plaintiff by virtue of GPA dated 09.02.2000 in favour of 8th defendant, is not binding upon him. Accordingly, I hold Issue No's.3 & 4 in the 'Affirmative'.
20. Addl. Issue No.1: It is admitted by the plaintiff that, he executes sale deed in favour of 8th defendant, on the basis of GPA of 09.02.2000. In my above discussion elicited about O.S.No.339/2001 filed by 1st defendant challenging the execution of GPA and the same was decreed in favour of 1 st defendant of this suit and both appeals RFA No.105/2005 and SLP No.34272/2010 are dismissed and both appeals were preferred by 8th defendant. 29
O.S.No.4910/2003 The FSL report also filed before this court, it is marked as Ex.D.2. The contents in Ex.D.2 clearly concludes, it was elaborated on signature of 1st defendant and opined that she has not signed the alleged document. Further, PW.1 also admitted that, they were not challenged the FSL report. Further, based on the judgment of O.S.No.339/2001, the criminalcase also lodged against the plaintiff and others for forging the signatures. Hence, all these documents clearly concludes the GPA dated 09.02.2000, is fabricated document. Accordingly, I hold Addl. Issue No.1 in the 'Affirmative'.
21. Addl. Issue No.2: The above issue was framed on the basis of para9 of the writtenstatement, where he took the contention that, in item No.3, plot No.30 belongs to the 1 st defendant. Plot No's.30 & 32 belongs to the defendant No's.1, 2 and plaintiff, and they sold the same in the year 1979 to a developer, who constructed the building and thereafter sold it. So, it was not in existence. In respect of Plot No.34 also stands in the name of defendant No's.1, 2 and plaintiff and plaintiff gave his right to the third persons. Even in respect of Plot No.35, the plaintiff gave possession to the third party and it was in dispute. 30
O.S.No.4910/2003 Now, the defendant No's.5 & 6 are the owners of Plot No.35. In view of the same, I refer the documents Exs.P.1 to P.7. Whereas, herein, the deceased plaintiff's widow gave evidence as PW.1 and she has expressed her inability to give evidence in detail of those properties, where she replies, "I do not know". She is not knowing that, in respect of Plot No.34, the litigation is pending, and she was not knowing the schedule6 property sold long back. She replied that, her husband may be knowing of those transactions. The defendants were not filed the sale deed in respect of these properties. Accordingly, I hold Addl. Issue No.2 in the 'Negative'.
22. Issue No's.1, 2 & 6: The plaintiff's counsel argued that, the suit schedule properties are purchased out of the fund of M/s. Sodhi & Company, which is established by the joint family of the plaintiff. Whereas, the deceased plaintiff being a member of M/s. Sodhi & Company, has not produced any single document on the Articles of Association of the Company or the object to show that the companies are established out of family members only. Whereas, PW.1 in her evidence admitted that, there is one member is outside of the family. There is no single document to appreciate M/s. Sodhi & Company has purchased the property existing at 31 O.S.No.4910/2003 Bengaluru. The defendant's evidence proves that, there is no properties purchased out of the fund of M/s. Sodhi & Company. Although M/s. Sodhi & Company is in existence, there is no business to the company. To rebut the same, the plaintiff has no evidence. The plaintiff's counsel filed I.A.No's.27 to 29 under Order 12, Rule 8 of CPC, seeking the documents connected to M/s. Sodhi & Company, in the month of September, 2017. After hearing both sides, this court passed the order on merit on 28.06.2019, and dismissed all the I.As observing that, the wrong provision quoted in the I.As and plaintiff failed to prove that the defendants are in possession of those documents and they are not relevant for the case. The plaintiff has not challenged the order of this court in I.A.No's.27 to 29. The plaintiff has failed to establish that the defendants are in possession of those documents connected to M/s. Sodhi & Company. Moreover, M/s. Sodhi & Company is not made as party in the suit.
23. Whereas, without proving that suit properties are joint family properties, the plaintiff refers the citations as under:
(1) (2001) 8 Supreme Court Cases 487 (2) Laws (KAR) 1975 7 9 (3) ILR 1998 Kar. 1095 32 O.S.No.4910/2003 The gist of all the above citations is, Hindu widow is entitled for her husband's share in the joint family property. Whereas, to appreciate the same, the plaintiff has to prove that the suit schedule properties are the joint family properties and deceased plaintiff has share/interest in those properties. However, the above discussion shows, the defendant clearly established through the evidence of 1st defendant in O.S.No.339/2001 that, the suit schedule properties purchased are her selfacquired properties.
Moreover, on the basis of Will, already the property existing at Bengaluru, is partitioned. So, without challenging the same, the plaintiff failed to prove that the suit schedule properties are joint family properties.
24. The plaintiff baldly argued that, M/s. Sodhi & Company was headed by Late Kasturilal Nihalchand Sodhi and after the death of Kasturilal Nihalchand Sodhi, the partnership become completely defunct. But, there is no corroborative document for the same. Moreover, PW.1 also admits on existence of M/s. Sodhi & Company. It is pertinent to note that, in the evidence of O.S.No.339/2001, the deceased plaintiff admits his father purchased the property at Roopena Agrahara for the residence of 33 O.S.No.4910/2003 plaintiff and his wife. But, the said property is not added as suit schedule property. In fact, it is purchased by the plaintiff's father. The plaint contends, plaintiff's father is the Managing Partner of M/s. Sodhi & Company. But, the property purchased at Roopena Agrahara, does not becomes the property of M/s. Sodhi & Company. In what manner the plaintiff claims schedule4 & 5 properties situated at Kodichikkanahalli village, becomes the properties of M/s. Sodhi & Company, is not explained. There is no iota of evidence to establish the 1st defendant has no independent source of income for purchasing the schedule4 property. Instead O.S.No.339/2001 clearly concluded that, it is her selfacquired properties. Moreover, in Hindu Law the property purchased in the name of woman becomes her stridhan. When plaintiff even failed to prove source of income for purchasing schedule4 property is, from M/s. Sodhi & Company, the principle of stridhan will act upon i.e., woman has absolute right to dispose hr stridhan property. Herein, the 1st defendant obtained decree in O.S.No.339/2001, in respect of item No.4 of the suit schedule property in her individual capacity and it was absolute decree. No appeal is pending over the same. Thereafter, after the death of 1 st 34 O.S.No.4910/2003 defendant, her Will was probated before Mumbai High Court. None of the children challenged it. So, after the same decree of probate, the suit schedule property No's.4 & 5 was divided as per Will. Moreover, the compensation amount referred in schedule5 property also distributed among the male children of 1 st defendant, except the plaintiff. So, when the suit schedule property in Bengaluru, is already disposed off, the remaining suit schedule properties are situated at Mumbai. So, certainly this court has no jurisdiction to adjudicate upon the other remaining four properties before this court. So, I conclude the plaintiff is not entitled for any decree. When plaintiff failed to prove his right in the suit schedule property, the question of claiming of mesne profits also does not arises.
25. Further, it is pertinent to note that, the above discussion also shows, the role of 8th defendant behind this suit and also the reason is, he purchased the property on the basis of GPA dated 09.02.2000. The same was declared as void document. The 1 st defendant also obtained decree for possession of the suit schedule property alienated to 8th defendant. So, even in the appeal 35 O.S.No.4910/2003 preferred by 8th defendant in SLP No.34272/2010, order dated 16.12.2010, it is observed as follows:
"The Special Leave petition is dismissed. However, this Will not come in the way of petitioner pursuing his remedy against the power of attorney holders in accordance with law".
That is, if plaintiff obtains share in the properties, the 8 th defendant claim the same. But, herein the plaintiff failed to prove his joint family status in schedule4 property. So, the question of claiming his right in respect of this property also closed. Accordingly, I hold Issue No.1 in the 'Affirmative' and Issue No's.2 & 6 in the 'Negative'.
26. Issue No.5: The plaintiff valued the suit items more than Rs.10,000/ and paid fees of Rs.200/ and in respect of prohibitory injunction, separate Rs.25/ is paid. The defendant took the defence that, the courtfee should be valued under Section 25(1) r/w Section 26(1) of the Karnataka Court Fees & Suits Valuation Act. The Karnataka Court Fees & Suits Valuation Act refers Section 35 on partition suit. The plaintiff here referred Section 35(2) of the Act, as he claims joint possession. Explanation of Section 35 of Karnataka Court Fees & Suits Valuation Act says, the valuation is made not on the basis of writtenstatement. 36
O.S.No.4910/2003 Herein, when plaintiff claims his joint possession and claims as family property, Section 35(1) of the Act, does not attracts. Citation 2001 (4) KLJ 431. The courtfee is to be paid on the plaint and it depends on plaint averment alone nor the evidence nor the final decision have a bearing on decision relating to courtfee.
27. Prior to this suit, the plaintiff also filed petition in LAC No.181/2001, claiming compensation in respect of land acquisition of schedule5 property. The same was dismissed on merit. Whereas, the 1st defendant filed petition for enhancement of award amount and also succeeding to get enhancement order in LAC No.263/2001 (Ex.D.18), dated 08.12.2004. But, at that time also, the same was modified in MFA No.5443/2005 C/w 3953/2005, order dated 17.01.2011 (Ex.D.19). Ex.D.21 is the Crl. R.P.No.60/2013 filed by 8th defendant against the 2nd defendant - Kailashchand Sodhi, 5th defendant - Narendra Sodhi, and Smt. Suman Sodhi. The criminal revision petition is dismissed. Further, the same 8th defendant filed O.S.No.7585/2000 against the plaintiff - Gulshankumar Sodhi, his wife - Smt. Suman Gulshan Sodhi and Kailash Sodhi. It was dismissed for non prosecution on 28.11.2002. Ex.D.27 is the private complaint filed 37 O.S.No.4910/2003 by same 8th defendant in PCR No.25780/2011 against Kailashchand Sodhi, Narendrakumar Sodhi and Smt. Suman Sodhi, to take action against the accused for the offence under various provisions, including under Sections 420 & 471 r/w Section 120(b) of IPC. The same was dismissed and confirmed in the RFA order. One Smt. Pillamma and two others filed O.S.No.10413/2005 against Kamala Rani K. Sodhi, in CCH - 2, where the same 8th defendant tried to implead himself as 7 th defendant. The same was dismissed (Ex.D.30 order). The defendant's document Ex.D.32 shows, the alienation of property in favour of Smt. Kamala Rani Sodhi, in respect of schedule4 property. He also filed RTC (Ex.D.33) for the period 198889 of the suit schedule property, it shows the entry of 1 st defendant only. The RTC of 201112 shows the land acquisition by BWSSB in respect of 1 acre 29 guntas. So, 12 guntas in the name of 1 st defendant. The new RTC of 201516 shows the same property was entered in the name of Kailashchandra Sodhi, Narendrakumar Sodhi and Jagadishchandra Sodhi, on the basis of Maharashtra probate court order. The plaintiff has not challenged the revenue entry. It clearly shows, when 1st defendant challenges the sale 38 O.S.No.4910/2003 deed executed by the deceased plaintiff and also filed criminal case, the plaintiff filed this suit as a counterblast on the instigation of 8th defendant. It clearly shows, the plaintiff intends to harass the defendant. So, appreciating the same, I hold Issue No.5 in the 'Negative'.
28. Issue No.7: In view of the reasons stated supra, I proceed to pass the following:
ORDER Suit is dismissed with costs.
Draw the decree accordingly.
(Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court, on this the 26th day of November, 2020) (NAGAJYOTHI.K.A) XXIX Addl. City Civil Judge, Bengaluru City.
ANNEXURE List of witnesses examined for the plaintiff's side: PW.1 Smt. Suman Sodhi List of documents exhibited for the plaintiff's side: Exs.P.1}{ Property cards, which are in Marati language. to P.4}{ Exs.P.1(a)}{ Translated version of Exs.P.1 to P.4. to P.4(a)}{ Exs.P.5}{ Another 3 Property cards, which are in Marati language. 39
O.S.No.4910/2003 to P.7}{ Exs.P.5(a)}{ Translated version of Exs.P.5 to P.7. to P.7(a)}{ Exs.P.8}{ Another 3 Property cards, which are in Marati language. to P.10}{ Exs.P.8(a)}{ Translated version of Exs.P.8 to P.10. to P.10(a)}{ Ex.P.11 Original Records of Rights pertaining to Sy.No.30/2 of Kodichikkanahalli village, for the year 20102011. Ex.P.12 Original Records of Rights pertaining to Sy.No.30/1 of Kodichikkanahalli village, for the year 20102011.
Ex.P.13 CC of sale deed dated 01.03.1972. Ex.P.14 CC of sale deed dated 23.06.1969. Ex.P.15 Office copy of legal notice dated 09.12.2002.
Exs.P.15(a)}{ Postal acknowledgement cards. & 15(b)}{ Exs.P.16}{ Notices returned unserved (3 in No's). to P.18}{ Exs.P.16(a)}{ Envelop covers (3 in No's).
to P.16(c)}{
Ex.P.19 Tax paid receipt.
Exs.P.20}{ Original Records of Rights pertaining to Sy.No's.30/1
& P.21}{ & 30/2 of Kodichikkanahalli village, for the year
20022003.
Ex.P.22 Hakkache Pathra.
Ex.P.23 RTC for the year 197071.
Ex.P.24 CC of ordersheet in Ex.Case No.757/2012.
Ex.P.25 CC of affidavit dated 04.06.2013.
Ex.P.26 Encumbrance certificate from 01.04.1994 to
15.03.2011.
Ex.P.27 CC of sale deed dated 17.12.1994.
Ex.P.28 CC of I.A. under Order XXII, Rule 4 of CPC, with
affidavit in RFA No.105/2005.
Ex.P.29 CC of I.A. under Section 151 of CPC, with affidavit in
RFA No.105/2005.
Ex.P.29(a) Portion marked at page No.2 of the affidavit of
Ex.P.29.
Ex.P.30 Copy of letter dated 07.08.2006 written by deceased
plaintiff to the Manager, Punjab National Bank, Borivali East Branch, Mumbai.
40
O.S.No.4910/2003 Ex.P.31 CC of the ordersheet of Ex.Case No.757/2012, in the matter of LAC.
Ex.P.32 CC of memo of calculation submitted in Ex.Case No.757/2012.
Ex.P.33 CC of affidavit submitted by 2nd defendant in Ex.Case No.757/2012.
Ex.P.34 CC of I.A. under Order XXI, Rule 22(1)(2) of CPC, with affidavit in Ex.Case No.757/2012.
Ex.P.35 CC of the order passed by the Court of II Addl. City Civil & Sessions Judge, Bengaluru (CCH - 17), in respect of transferring the deposit of award amount. Ex.P.36 CC of the ordersheet of Ex.Case No.1456/2017, in the Hon'ble City Civil & Sessions Judge, Bengaluru. Ex.P.36(a) Office endorsement dated 30.08.2018 in Ex.P.36. List of witnesses examined for the defendants' side: DW.1 Kailashchandra Sodhi List of documents exhibited for the defendants' side: Ex.D.1 CC of writtenstatement filed by defendant No's.2 & 3 in O.S.No.339/2001. Ex.D.2 CC of FSL Report.
Ex.D.3 CC of judgment passed in RFA No.105/2005, dated 11.06.2010, before Hon'ble High Court of Karnataka. Exs.D.4}{ CC of sale deeds dated 01.10.1982 (3 in No's). to D.6}{ Ex.D.7 CC of writtenstatement filed by deceased plaintiff and his wife in O.S.No.339/2001.
Ex.D.8 CC of GPA dated 09.02.2000.
Ex.D.9 CC of sale deed dated 02.06.2000.
Ex.D.10 CC of deposition of Smt. Kamala Rani Sodhi in O.S.
No.339/2001.
Ex.D.11 CC of deposition of K.M. Rajendran in O.S.No.339/2001.
Ex.D.12 CC of deposition of deceased plaintiff - Gulshan Kumar
Sodhi in O.S.No.339/2001.
Ex.D.13 CC of judgment in O.S.No.339/2001.
Ex.D.14 CC of the ordersheet in LAC No.181/2001.
Ex.D.15 CC of the petition in LAC No.181/2001.
Ex.D.16 CC of GPA executed by deceased Smt. Kamala Rani K.
Sodhi in favour of 2nd defendant.
41
O.S.No.4910/2003
Ex.D.17 CC of declaration filed by deceased Smt. Kamala Rani K.
Sodhi.
Ex.D.18 CC of judgment and decree in LAC No.263/2001.
Ex.D.19 CC of judgment in MFA No.5443/2005 C/w 3953/2005,
dated, 17.01.2011.
Ex.D.20 CC of Probate issued by the Hon'ble High Court of
Judicature at Bombay in Petition No.873/2006. Ex.D.21 CC of the ordersheet in Crl. R.P. No.60/2013. Ex.D.22 CC of the petition in Crl. R.P. No.60/2013. Ex.D.23 CC of the objection in Crl. R.P. No.60/2013. Ex.D.24 CC of the judgment in Crl. R.P. No.60/2013. Ex.D.25 CC of the plaint in O.S.No.7585/2000. Ex.D.26 CC of the ordersheet in O.S.No.7585/2000. Ex.D.27 CC of complaint filed under Section 200 Cr.P.C. Ex.D.28 CC of sworn statement of A.M. Rajendran in 25780/2011.
Ex.D.29 CC of the order in CC No.25780/2011
Ex.D.30 CC of the order on I.A.No.10 in O.S.No.10413/2005,
passed by this court, dated 18.03.2016.
Ex.D.31 CC of the encumbrance certificate from 01.04.1957 to
31.03.1959.
Ex.D.32 CC of the encumbrance certificate from 01.04.1982 to
31.03.1983.
Ex.D.33 CC of the Records of Rights pertaining to Sy.No.30/1
from the year 197071 to 201415 (12 in No's).
Exs.D.34}{ CC of the Records of Rights pertaining to Sy.No's.30/1A & D.35}{ & 30/1B of Kodichikkanahalli village. Ex.D.36 CC of the Records of Rights pertaining to Sy.No.30/2 from 199596 to 201516.
XXIX Addl. City Civil Judge, Bengaluru City.
42 O.S.No.4910/2003 Judgment pronounced in open Court, vide separate judgment.
ORDER Suit is dismissed with costs.
Draw the decree accordingly.
XXIX Addl. City Civil Judge, Bengaluru City.
43 O.S.No.4910/2003