Bangalore District Court
Dr Anirudh V vs Annaiah N M on 6 April, 2026
1
O.S.No. 1990/2018
KABC010292502023
Digitally
signed by
MOHAN
MOHAN PRABHU
PRABHU Date:
2026.04.08
15:10:54
+0530
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE AT BENGALURU CITY: (CCH-56)
DATED THIS THE 6TH DAY OF APRIL 2026
PRESENT
SRI. MOHAN PRABHU, M.A., LL.M.
LV ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
O.S. No. 1990 / 2018
PLAINTIFF/S 1. DR. ANIRUDH V.
S/O N.A. VENUGOPAL
AGED ABOUT 36 YEARS,
RESIDING AT 'NARAYANI' NO.18/21,
7TH CROSS, 9TH MAIN, 2ND BLOCK,
JAYANAGAR, BENGLURU - 560 011.
2. N.A. VENUGOPAL
S/O N.A. ANNAIAH
AGED ABOUT 65 YEARS,
RESIDING AT 'NARAYANI, No. 18/21,
7TH CROSS, 9TH MAIN, 2ND BLOCK,
JAYANAGAR, BENGALURU - 560 011.
(BY SRI.R.O.K. ADV.)
Versus
DEFENDANT/s 1. SRI. N.M. ANNAIAH
S/O N.A. MUNIVENTAKAPPA
2
O.S.No. 1990/2018
SINCE DECEASED BY HIS LRs ON
RECORD.
2. SMT. N.A. JANAKI BAI
@ N.A.NARAYANAMMA,
W/O N.M. ANNAIAH
SINCE DECEASED BY HER LRs
ON RECORD.
3. SRI. N.A. VENUGOPAL,
S/O N.A. ANNAIAH,
AGED ABOUT 65 YEARS, RESIDING AT
'NARAYANI' NO.18/21,
7TH CROSS, 9TH MAIN, 2ND BLOCK,
JAYANAGAR, BENGLURU - 560 011.
4. SRI. N.A. RAVIGOPAL
S/O N.M. ANNAIAH
RESIDING AT NO.19, 7TH CROSS,
9TH MAIN, 2ND BLOCK,
JAYANAGAR, BENGALURU - 560 011.
(Transposed as plaintiff)
5. SMT.AMULYA SUMANTH
W/O SUMANTH DONTHI
D/O N.A. VENUGOPAL
RESIDING AT NO.41, MOUNTAIN ROAD,
1ST BLOCK, EAST JAYANAGAR,
BENGALURU - 560 011.
6. SRI.HARSHA RAVI GOPAL
S/O N.A.RAVIGOPAL
AGED ABOUT 35 YEARS,
RESIDING AT NO.19, 7TH CROSS,
9TH MAIN, 2ND BLOCK,
JAYANAGAR, BENGALURU - 560 011.
7. SRI.ADARSHA RAVIGOPAL
S/O N.A. RAVIGOPAL
AGED ABOUT 30 YEARS,
RESIDING AT NO.19, 7TH CROSS,
9TH MAIN, 2ND BLOCK,
JAYANAGAR, BENGALURU - 560 011.
3
O.S.No. 1990/2018
8. A.R.SHIVARAM
S/O A.G. RAMAIAH REDDY
AGED ABOUT 74 YEARS,
RESIDING AT No.670, 6TH CROSS,
3RD BLOCK, KORAMANGALA,
BENGALURU 560 034.
9. HEMA S. REDDY
D/O A.R.SHIVARAM
AGED ABOUT 50 YEARS,
RESIDING AT No.670, 6TH CROSS,
3RD BLOCK, KORAMANGALA,
BENGALURU 560 034.
10. ASHOK KUMAR
AGED ABOUT 49 YEARS,
S/O A. SHIVARAM
RESIDING AT No.670, 6TH CROSS,
3RD BLOCK, KORAMANGALA,
BENGALURU 560 034.
(D1 & 2 DEAD
D3 TRANSAPOSED AS PLAINTIFF No.2
D4, 6 & 7 by Sri.S.R. Adv.
D5 by Sri. V.C. Adv.
D8 TO 10 by Sri.J.R.M.S. ADV.)
Date of Institution of the 14.03.2018
suit
Nature of the Suit Plaintiffs suit for partition
and separate possession.
Counter claim fo the
defendant No.5 for partition
and separate possession.
Counter claim of defendant
No.4, 6 & 7 for partition and
separate possession and
declaration and permanent
injunction.
4
O.S.No. 1990/2018
Date of commencement of 14.07.2025
recording of evidence
Date on which the 06.04.2026
judgment was pronounced
Duration Year/s Month/s Day/s
08 00 20
JUDGMENT
Initially plaintiff No.1 has filed this suit against the defendant No.1 to 7 for the relief of partition and separate possession of Plaint schedule properties seeking 1/6th share and also praying for directing and esquire into mesne profits and direct the defendants to pay 1/6th share of mesne profit to the plaintiff.
The defendants No.1 to 3 who engaged their counsel filed their written statement resisting the claim of the plaintiff as well as counter claim filed by the defendants No.4, 6 & 7.
The defendant No.5 engaged her counsel and filed written statement with counter claim seeking partition in all the plaint schedule properties as well as counter claim schedule 1 to 14 properties.
The defendants No.4, 6 & 7 who engaged their counsel filed the written statement with counter claim 5 O.S.No. 1990/2018 and sought for the relief of declaration as well as for relief of partition and Permanent Injunction.
In the present suit, the defendant No.3 transposed himself as plaintiff No.2 as the IA filed by him came to be allowed.
The defendant No.8 to 10 are impleaded during pendency of the suit.
During the pendency of the suit as IA No.9 & 10 were allowed, the plaintiff added item No.19 to 42 properties.
Prayer of Defendant No.4, 6 and 7 in written statement.
a) for a declaration that the alleged registered Gift Deed dated 12.06.2015, vide document No. YAN-1- 01425-2015-16, CD. NO. YAND 598, Book No. 1 in the office of the Senior Sub Registrar Yalahanka, Bangalore and the subsequent rectification deed dated 15.06.2016 vide documents No. YAN-1-01692-2016-17 CD No. YAND 629, Book No. 1, in the office of the Senior Sub-Registrar Yalahanka, Bangalore and the subsequent registered rectification deed dated 07.04.2017 vide documents No. YAN-1-00258-2018-19, CD No. YAND660, in the office of the Senior sub Registrar Yalahanka, Bangalore executed by the 1st defendant in favour of the plaintiff in relation to item No.4 of the written statement schedule property are not binding on them and 6 O.S.No. 1990/2018
b) for a declaration that the alleged registered Gift Deed dated 05.03.2004, vide document No. JNR6785- 2003-04 before Sub Registered, Jayanagara Bangalore executed by the 1st defendant in favour of the 3rd defendant in relation to item No.2 of the written statement schedule property is not binding on them and
c) for a declaration that the alleged registered gift deed executed by the 1st defendant infavour of the 3 rd defendant in relation to item No.3 of the written statement schedule property is not binding on them and
d) for a declaration that the alleged registered gift deed dated 05.04.2012, vide document No. CMP-1- 00071-2012-13, CD No. CMPD45, Book No1 in the office of the Senior Sub Registered Basavanagudi (Chamarajapet) Bangalore is not binding on them; and
e) for a partition and separate possession of Item Nos. 1 to 8 of the counter claim, both Movable and immovable properties and allot half a share in each one of the said items of the aforesaid properties to the 4th defendant and
f) for permanent injunction restraining the plaintiff and defendant Nos 3 and 5 from either alienating or encumbrance the respective items of the written statement schedule properties by them and
g) for a permanent injunction restraining the plaintiff from proceedings further with the construction of item No.4 of the written statement schedule property and
h) for a permanent injunction restraining the 3rd defendant from either alienating or encumbrance or entering into either MOU or JDA with third parties in 7 O.S.No. 1990/2018 relation to item No. 1, 2 and 3 of the written statement schedule properties and I) for permanent injunction restraining the 5 th defendant from either alienating or encumbrance or mortgage or lease item No.5 of the written statement schedule property and
j) to hold an enquiry with regard to mense profits from the date of filing of the suit till such time the defendant No.4 is delivered his 1/3rd share in respect of the written statement schedule properties.
k) for a declaration that the alleged Registered Gift Deed dated 12.06.2019, vide Document No. PRN-1- 01824-2019-20, Stored in CD No. RPND 327, Book I, in the office of the Sub Registrar, Jayanagar, Bengaluru Executed by the 3rd defendant in favour of the plaintiff, Gifting away item No.1 of the written Statement / Counter Claim schedule property is not binding on these defendants and as such set aside the same; and
l) for a declaration that the deliberate encumbrance made by the plaintiff in favour of State Bank of India, SMEC Banasawadi, Bengaluru by applying for and availing the huge loan amount in a sum of Rs.2,50,00,000/- by deposit of title deeds of item No.4 of the written statement/ counter claim schedule property is not binding on these defendants and as such direct the plaintiff to free the said item of property from such encumbrance and further direct the plaintiff to discharge the entire loan availed by him along with up to date 8 O.S.No. 1990/2018 interest personally without reference to the said item of property and
m) for a declaration that the alleged Registered Will, allegedly executed by the 3 rd defendant bequeathing item No.2 of the Written Statement/ Counter claim schedule property is not binding on these defendants and as such set-aside the same.
PLAINT SCHEDULE
1. All the piece and parcel of the property situate at No. 19 and 20, 7th cross, 2nd Block, Jayanagar, Bangalore, measuring to an extent of 5200 square feet (80X65) and bound on the East by : Property No. 18 West by : Private property North by : 7th Cross and South : Private property by (Note: Decree on admission already drawn).
2. All the piece and parcel of the property situate at No.9, 4th cross, Madiwala, Bangalore, measuring to an extent of 9000 square feet and bound on the East by : Private property West by : Private property North by : Private property South : Road.
by 9 O.S.No. 1990/2018 (Note: Decree on admission already drawn).
3. Al the piece and parcel of the property situate at No. 18/14 and 18/15, 1 'B' Cross, Madiwala, Bangalore, measuring to an extent of 1980 square feet (33 X60) and bound on the East by : Private property West by : Private property North by : Road and South by : Private property (Note: Decree on admission already drawn).
4. All the piece and parcel of the property situate at No.2 Hosur Road, Madiwala, Bangalore, measuring to an extent of 1650 square feet (30X55) and bound on the East by : Private property West by : Hosur Road North by : Private property and South : Private property by (Note: Decree on admission already drawn).
5. All the piece and parcel of the property situate at No.77 Hosur Road, Madiwala, Bangalore, measuring to an extent of 40,000 square feet and bound on the East by : Road West by : Road North : Property belonging to Nagaraj and 10 O.S.No. 1990/2018 by South : Property belonging to Vishwanth Modaliar by (Note: Decree on admission already drawn).
6. All the piece and parcel of the property situate at Bommanahalli, Converted land with Industrial sheds, Bangalore measuring to an extent of 1 acre 20 guntas excluding 1 Complex situated in an area measuring about 4800 square feet (Wherein a private person has built a complex by name 'Balaji Complex' after purchasing the said extent from the joint family) and about on the East by : Private property West by : Road leading to Grave yard North by : Grave yard and South : Private property by
7. All the piece and parcel of the property situate at Rupena Agrahara, Bangalore, Vacant land measuring nearly 22 guntas or approximately 25,000 square feet and bound on the East by : Road West by : Raja Kaluve North by : Private property South : Private property by (Note: Decree on admission already drawn). 11
O.S.No. 1990/2018
8. All the piece and parcel of the property situate at Doddabyalakhane, 3 sites measuring '30X42' each and bound on the East by : Private Property West by : Private property North : Road and by South : Road by (Note: Decree on admission already drawn).
9. All the piece and parcel of the property situate at BTM IV Stage, Banglore measuring to an extant of 2400 square feet (40'X60") and bound on the East by : Private property West by : Road North : Lane and by South : Road by
10. All the piece and parcel of the property situate No. 14 G.K. Temple Street, Chickpet, Bangalore, measuring to an exent of 2680 square feet and bound on the East by : Private property West by : G.K. Temple Street North by : Lane and South by : Road (Note: Decree on admission already drawn). 12
O.S.No. 1990/2018
11. All the piece and parcel of the property situate at No.15, 16 & 17, 1st Cross, Padryanapura, Bangalore, measuring to an extent of 4500 square feet (50' X92') and bound on the East by : Road West by : Conservancy Lane (Marginal land) North by : Private property and South by : Road (Note: Decree on admission already drawn).
12. All the piece and parcel of the property situate at No.12, 1st Cross, Padrayanapura, Bangalore, measuring to an extant of 1500 square feet (30'X50') and bound on the East by : Road West by : Private Property North by : Private property and South : Private property by (Note: Decree on admission already drawn).
13. All the piece and parcel of the property situate at No. 12/1, Padrayanapura, Emmaar Production Building, measuring to and extent of 1500 square feet and bound on the East by : Private Property West : Road by 13 O.S.No. 1990/2018 North : Private property and by South : Private property by (Note: Decree on admission already drawn).
14. All the piece and parcel of the property situate at No.10, 1st 'C' Cross, 1st Main, Sudhamnagar, measuring to an extent of 1260 square feet (30'X42') and bound an the East by : Road West by : Private property North by : Road and South : Private property by (Note: Decree on admission already drawn).
15. All the piece and parcel of the property situate at North park Road, Sheshdripuram, measuring to an extent of 1500 square feet (30'X52') and bound on the East by : Private Property West by : Park Road North by : Private property and South by : Private property (Note: Decree on admission already drawn).
16. All the piece and parcel of the property situate at Raghavendra layout, Yeswanthpur, measuring to an extent of 2400 square feet (40'X60').
14
O.S.No. 1990/2018 (Note: Decree on admission already drawn).
17. All the piece and parcel of the property situate at Site No. 6, No. 386/2, Dasamala Village, Hayathnagar, Revenue Mandal, Ranga Reddy District, Tellangana, measuring 4000 square feet (50'X80')
18. 50% at shares together standing in the name of defendants No.1, 3 & 4 ( in equal percentages) in the running business of M/s A V Exhibitors, which is in possession and management f the two theatres in Bangalore namely Sampige and Savitha as per the partnership deed dated 01.04.1992.
(Note: Decree on admission already drawn).
19. All the piece and parcel of the property in Sy.No. 37 measuring to an extent of 0-37 guntas (including 07 guntas of Karab) situate at Irigenahalli Village, Channarayapatna Hobli, Devanahalli Taluk, Bangalore Rural District bound on the East by : Boundary of Baluvanahalli Road West by : Property of Sri. N.M. Annaiah Park Road North by : Property of Sri. N.M. Ramarathnam and South by : Government Road
20. All the piece and parcel of the property in vacant site Katha No. 122/114/56 measuring to an extent of 4000 Sq.ft. Measuring East to West by 50ft & North to 15 O.S.No. 1990/2018 South by 80 ft., situate at 1st Ward J.C. Extension, 1st Division, Vijayapura Town, Devanahalli Taluk, Bengaluru Rural District bound on East by : Anasuyamma's Property West by : Annapoornamma's Property North by : Conservancy South by : Municipal Road
21. All the piece and parcel of the property in Sy.No.40 measuring to an extant of 2 acres (including 1 guntas of karab) situate at Irigenahalli Village, Channarayapatna Hobli, Devanahalli Taluk, Bengaluru Rural District bound on the East by : Sri. N.G. Loknath's Property West by : Sy.No. 41 North by : Boundary or Dharmapura South by : Sri. N.G. Loknath's Property
22. All the piece and parcel of the property in Sy.No.41 measuring to an extant of 2 acres situate at Irigenahalli Village, Channarayapatna Hobli, Devanahalli Taluk, Bengaluru Rural District bound on the East by : Sy.No. 40 West by : Boundary or Dharmapura North by : Boundary or Dharmapura South by : Sri. N.G. Loknath's Property 16 O.S.No. 1990/2018
23. All the piece and parcel of the property in Sy.No.149 measuring to an extant of 7 acres 06 guntas (including 04 guntas of karab) situate at Baluvanahalli Village, Jangamkote Hobli,Shidlegatta Taluk, Chickabalapur District bound on the East by : Sy. No. 142 West by : Boundary or Dharmapura North by : Sy.No.150 South by : Sy.No.50/1, 156 & 166
24. All the piece and parcel of the property in Sy.No.150 measuring to an extant of 5 acres 38 guntas (including 04 guntas of karab) situate at Baluvanahalli Village, Jangamakote Hobli, Shidlegatta Taluk, Chickabalapur District bound on the East by : Sy. NO. 142 & 51 West by : Boundary or Dharmapura North by : Sy.No. 151 South by : Sy.No. 149
25. All the piece and parcel of the property in Sy.No.151 measuring to an extant of 6 acres 02 guntas (including 04 guntas of karab) situate at Baluvaahalli Village, Jangamkote Hobli, Shidlegatta Taluk, Chickabalapur District bound on the East by : Sy.No. 51 West : Boundary or Dharmapura 17 O.S.No. 1990/2018 by North : Sy.No.152 by South : Sy.No. 150 by
26. All the piece and parcel of the property in Sy.No.152 measuring to an extant of 6 acres 02 guntas (including 03 guntas of karab) situate at Baluvanahalli Village, Jangamkote Hobli, Shidlegatta Taluk, Chickabalapur District bound on the East by : Sy.No.51 West by : Boudary or Dharmapura North by : Sy.No. 153, 154 & 155 South by : Sy.No. 151
27. All the piece and parcel of the property in Sy.No.153 measuring to an extant of 5 acres 01 guntas situate at Baluvanahalli Village, Jangamkote Hobli, Shidlegatta Taluk, Chickabalapur District bound on the East by : Sy.No.154 West : Boudary or Dharmapura by North : Boudary of J.Venkatapura by South : Sy.No. 152 by
28. All the piece and parcel of the property in Sy.No.154 measuring to an extant of 4 acres 39 guntas situate at 18 O.S.No. 1990/2018 Baluvanahalli Village, Jangamkote Hobli, Shidlegatta Taluk, Chickabalapur District bound on the East by : Sy.No.155 West by : Sy.No. 153 North : Boudary of J. Venkatapuura by South : Sy.No. 152 by
29. All the piece and parcel of the property in Sy.No.155 measuring to an extant of 4 acres 27 guntas situate at Baluvanahalli Village, Jangamkote Hobli, Shidlegatta Taluk, Chickabalapur District bound on the East by : Sy.No.51 West : Sy.No. 154 by North : Boundary of J. Venkatapura by South : Sy.No. 152 by
30. All the piece and parcel of the property in Sy.No.182 measuring to an extant of 1 acres out of the total 2 acres situate at Baluvanahalli Village, Jangamkote Hobli, Shidlegatta Taluk, Chickabalapur District bound on the East by : Property belonging to N.M. Annaiah West : Property belonging to N.M. Ramarathnam by North : Property belonging to N.M. Ramarathnam by South : Road 19 O.S.No. 1990/2018 by (Note: Decree on admission already drawn).
31. All the piece and parcel of the property in Sy.No.25/1A measuring to an extant of 2 acres 31 guntas situate at Baluvanahalli Village, Jangamkote Hobli, Shidlegatta Taluk, Chickabalapur District bound on the East by : Boundary of Irigenahalli West by : Sy..No. 182 North : Property belonging to N.M. Ramarathnam by South : Road by (Note: Decree on admission already drawn).
32. All the piece and parcel of the property in Sy.No.115 measuring to an extant of 4 situate at Dharmapura Village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru rural District bound on the East by : Boundary of Baluvanahalli Village West by : Channarayapatna Road North by : Property belonging to Kurubara Muniyappa South by : Sy.No. 116
33. All the piece and parcel of the property in Sy.No.116 measuring to an extant of 2 acres situate at Dharmapura Village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District bound on the 20 O.S.No. 1990/2018 East by : Boundary of Baluvanahalli Village West by : Channarayapatna Road North by : Sy.No. 155 South by : Hanumanyhappa S/o Koovappa's Property
34. All the piece and parcel of the property inChannaryapatna panchayathi Khata No. 42/36 measuring to an extant of ½ acre (including two rooms on the western side of the building gifted to Govt. School, Baluvanahalli ) situate at Irigenahalli Village, Channarayaptna Hobli, Devanahalli Taluk, Bengaluru Rural District bound on the -
East by : Building gifted to Govt,
primary School
West by : Road
North by : Road
South by : Road
(Note: Decree on admission already drawn).
35. All the piece and parcel of agricultural land measuring to an extent of 2 (two) acres in Sy. No. 113 of Dharmapura Village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District bound on the East by : Vijayapura- Channarayapatna Road West by : Dharmapura Narayanaswamy's land 21 O.S.No. 1990/2018 North by : Yeluvally Sriramappa's land and South by : Land in Sy.No. 114
36. All the piece and parcel of agricultural land measuring to an extent of 1 acres 11 guntas in Sy. No. 114 of Dharmapura Village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District bound on the East by : Vijayapura- Channarayapatna Road West by : Dharmapura Narayanaswamy's land North by : Land in Sy.No.114 and South by : Dharmapura Road
37. All the stocks, Shares, Debentures in different Companies, Bonds of different companies/ Authhorities standing in the name of /belonging to Sri, N.M.Annaiah.
38. Fixed deposites. Bank balances in Saving Account as well as current Accounts in the name of Sri. N.M. Annaiah in different Banks.
39. All the antiques collections of watches and other items of valuable items held by Sri. N.M. Annaiah including Vehicles.
40. All the Stocks , Shares, Debentures in different companies, Bonds of different Companies/Authorities standing in the name of / belonging to Smt. N.A. Janaki Bai also known as Smt. N.A. Narayanamma. 22
O.S.No. 1990/2018
41. Fixed deposits, Bank balances in Savings Accounts as well as current in the name of Smt. N.A. Janaki Bai also known as Smt. N.A. Narayanamma in different Banks and Post offices.
42. All the gold jewels and other items of valuable items held by Smt. N.A. Janaki Bai also known as Smt. N.A. Naryanamma including vehicles.
Written statement schedule properties of defendant No.5:
1. 50% shares in the property bearing Municipal No. 1006/1, New No. 76-47-1/3, property known as 'Sampige and Savitha Theatres' measuring East to West 250 ft.
North to South 150 ft., situated at Sampige Road, Malleshwaram, Bangalore and bounded on the East by Road, West by Mantri Apartments , North by Road and South Property in occupation of LIC.
2. All that piece and parcel of the property bearing Sy.No. 5/1, measuring 13 guntas at Beratana Agrahara, Beguru Hobli, Banagalore South Taluk and bounded on the East by Saraswathammal and KR Rajakrishna Reddy property, West by Bangalore- Hosur Road, North by Rajakrishna Reddy property and South by K.R. Rajakrishna Reddy Property.
23
O.S.No. 1990/2018
3. All the piece and parcel of the property bearing Site No. 18, 7th Cross , II Block, Jayanagar, Bangalore measuring East to West 40 ft., North to South 65 ft., and bounded on the Site No. 17 West by Site No. 19, North by road and South by Site No.27.
4. All that piece and parcel of the property bearing Sy.No. 12/3, situated at Madiwala Village, Begur Hobli, Bangalore South Taluk, measuring East 388 ½ ft., West by 3266 ft., North by 55 ft., and South by 34 ft., in all measuring 15 ½ guntas and bounded on the East by Smt. Gowramma land, West by KRS Murthy land, North by Road and South by B. Gundappa's land.
5. All the piece and parcel of the property bearing PID No. 66-12-05 ( Old No. 5), 4 th Main Road, Madiwala Extension, Bangalore standing in the name of 3 rd defendant.
6. All that piece and parcel of the property bearing No. 19/8-1, 4th Main Road, Old Fathima School, Chinnamma Layout, New Extension, (Madiwala Ward No. 172) Bangalore 560068.
7. All that piece and parcel of the property bearing No. 1599/1, PID No. 005-W2197-19, Nehru Nagar, Yelahanka Old Town, Bangalore 560064, ( now within BBMP limits ) having a commercial complex with four floors building measuring East to West 84 ½ + 102 ½ , North to South 24 O.S.No. 1990/2018 60 ft., in all measuring 5610 Sq.ft., and bounded on the East by channegowda property, West by Highway, North by Nehru Nagar Main road and South by site No.2.
8. (Property standing in the name of 5th defendant - vacant land gifted by 3 rd defendant and developed by of 5 th defendant evicting the them existing tenants at her cost) All that piece and parcel of the property bearing Old No. 148, New No. 162, situated on 3rd main Road, Chamarajapet, Bangalore 560018 measuring East to West 30 ft., North to South 110 ft., in all measuring 3300 sq.ft., and bounded on the East by property of Govindaraju Mudallar, West by property of Annayappa Chennappa, North by conservancy and South by 3rd Main Road.
9. ( Land acquired by BBMP - Compensation of about Rs. 4.00 crore deposited in Court) All that piece and parcel of the property bearing No.1 Platform Road, Malleshwaram , Bangalore -3.
10. Compensation amount received from M/s. Bangalore Metro Railway Corporation Ltd., (BMRCL) in respect of the land bearing BBMP Katha No. 457/17/5, in Sy.No. 17/5 of Rupena Agrahara, Begur Hobli, Bangalore South Taluk, Towards the acquisition of about 5000 sq.ft., of land.
25
O.S.No. 1990/2018
11. Outstanding in SB Account No. 00092100004385 maintained at M/s. HDFC Bank, Kasturba Road, Bangalore stainding in the name of deceased Defendant No.1 Annaiah NA.
12. Outstanding in SB Account No. 10386330503 maintained at M/s. State Bank of India, Jayanagar Branch, Bangalore standing in the name of deceased of defendant No.1 - Annaiah NA.
13. Gold, silver, Diamond Jewelleries in the custody of plaintiff Dr. Anirudh, defendant No.3 N.A. Venugopal, Smt. Menaka Venugopal, w/o N.A., Venugopal and Smt. Usha, daughter in law of N.A. Venugopal.
14. 1/3 rd Share standing in the name of N.A. Venugopal in partnership firm A.V. Exhibitors - Sampige and Savitha Theatres.
Written statement schedule properties of defendant No.4,6& 7.
1. All that piece and parcel of the immovable property bearing Survey No. 5/1, measuring 94,743 square feet of land situate in Beratena Agrhara, Beguru Hobli, Bangalore South Taluk, and Bounded on East by:
Saraswathamma & K.R. Rajakrishna Reddy's land and West by K.R. Rajakrishna Reddy and Bangalore Hosooru 26 O.S.No. 1990/2018 main Road, North by Rajakrishna Reddy's Land and South by K.R. Rajakrishna Reddy's Land.
2. All that piece and parcel of the immovable property bearing Site No. 18 situate in 2 nd Block, Jayanagar (7th Cross) extension, and bounded and East by: Site No.17, West by: site No. 19, North by: Road and South by site No. 2 measuring East to West 40 feet and North to Southh 65 feet.
3. All that piece and parcel of the immovable property bearing Survey No. 12/3 situate in Madiwala Village, Beguru Hobli, Bangalore South Taluk, Measuring East by 388 ½ feet West by 366 feet, North by 55 feet and South by 34 feet totally measuring 15 ½ Guntas of land and bounded on East by: Smt. Gowramma wife of Gundappa an dher Chldren, West by: Remaining Land in the Same Survey No. belonging to Sri. K.R.S. Murthi,North by: 30 feet Road and south by: Badanapalli Gundappa's Land.
4. All the piece and parcel of the immovable property bearing vacant site bearing No.1599/01, New PID No. 005-W2197-19, old Municipal Khatha No. 441/1, presently BBMP Khatha No. 110/109/467/387/1, Nhru Nagar, yelahanka Old Town, Yelahanka, Bangalore-560064, Now in BBMP Limits, Kempegowda Ward No.01, measuring East to West (84 ½ +102 102 ½) 2 feet and North to South 60 feet, in all 5610 square feet, and bounded on East by: Previously Conservancy Road, Presently 27 O.S.No. 1990/2018 Channegowda's Property, West by: Bangalore - Bellary Road (old), North by: Nehru Nagar Main road and South by: Site bearing No.2.
5. All that piece and parcel of immovable property bearing old No. 148 and New No. 162, situate on 3 rd Main Road, Chamrajpet, Bangalore 560018, measuring East to West 30 feet and North to South 110 feet in all measuring 3300 square feet and bounded on East by: Property belonging to Govendaraju Mudaliar, West by: Property belonging to Annaiahyappa Chennappa, North by:
Conservancy; and South by: 3rd Main Road.
6. All that piece and parcel of the vacant land bearing plot No.1, Platform Road, Malleshwaram , Bangalore 560003 measuring East to West 94 feet and on the Western side and 131 feet on the Eastern side and North to South 24 feet on the Western side and 96 feet 8 inches on the Eastern side and bounded on East by Platform Road, North by: Plot No.2, West by: Nulla and South by:
Property belonging to Southern Railways.
7. Gold Oranments belonging to N.M. ANNAIAH - 1st defendant
a) One Gold long Chain
b) One gold Neck Chain.
c) One Gold Wrist Chain (Hud dara)
d) One gold Bracelet.
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O.S.No. 1990/2018
e) 3 Gold Diamond Rings-9 stone, 5 stone and 1 stone.
7 a) Watches belonging to N.M. ANNAAH- 1st defendant Watches are taken by N.A. Annaias whenn he moved to N.A. Venugopala House in the year 2018. 7-b). Car Registered in the name of N.M. ANNAIAH - 1st defendant Honda City Car- 1.5 GX1 2004 Bearing No. KA-04- MA7299.
7.c). Bank accounts Belonging To N.M. Annaiah-1st defendant.
a) State Bank of India, Jayanagar 2nd Block Branch.
Account No.10386330503.
b) The then State Bank of Mysore Now State bank of India.
Malleshwaram Branch A/c No. 54047962984.
c) The Bharath Co- Operative bank (Mumbai) ltd Now Bharath bank, K.H. Road Branch. Current Account No. 002112100004133.
d) Post office Jayanagar III Block S.O. Savings bank General- With Chque book, C/F/D No. 3004862358, A/c No. 3013696406.
8. GOLD ORNAMENTS BELONGING TO N.A. NARAYANAMMA @ N.A. JANAKAMMA-2nd defendant.
a) 8 pair gold Bangles each weighng 100 gm/ pair= totally 800 grams.
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O.S.No. 1990/2018
b) 2 pair Stone Bangles weighing weighing totally 300 grams.
c) 10 Number Gold Neck Chains each weighing 80 grams= totally 800 grams
d) 1 gold wrist belt (Dabu) weighing 400 grams.
e) 1 gold 5 layer chain weighing 350 grams
f) 2 pairs of Diamond ear studs.
g) 3 Diamonds Nose studs.
h) 2 Diamonds Stone Rings.
I) 4 Gold Stone Rings.
j) 4 Stone Neckless (white & Blue stone etc.,)
k) 12 layer pearls Chain.
l) 1 Pearls Neckless.
m) 1 Coral Necklace.
n) 1 American Diamond
o) 2 Gold Teka Chains with pendent.
p) 8 Gold and Stone ear Rings.
q) 1 Mangala Chain with Mangalya.
r) 2 Gold Ear Mati Chain.
s) 2 Silver Wrist Belts each weighing 500 grams.
t) 100 Costly silk Designer Saris.
8-a) BANK ACCOUNTS BELONGING TO N.A NARAYANAMMA @ N.A. JANAKAMMA
a) State bank of India Jayanagar II Block Branch.
Current Account No. 10386330490.
b) The then Andhara Bank Now Union Bank f India Jayanagar Branch SB A/C No. 027310011010707. (Nominee N.A. RAVIGOPAL) 30 O.S.No. 1990/2018 The Plaint averments are briefly stated as follows:-
The Plaintiff is the great grand son of Late N.A. Munivenkatappa who was a successful businessman during his lifetime. The said A. Munivenkatappa is succeeded by his son Mr. N.M. Annaiah the 1 st defendant. Sri.N.M Annaiah the grand father of plaintiff developed the ancestral properties which he inherited from his father, Late A. Munivenkatappa, by virtue of a registered partition deed dated 31-3-1952 bearing No.4265 of 1951- 52 in Book I of the Office of the Sub-Registrar Bangalore and also has acquired several other immovable properties from the nucleus of the joint family income, both in his name as well as in the name of his wife Smt. Janaki Bai. @ N.A. Narayanamma-the grand mother of the plaintiff herein and has been arrayed as the 2 nd defendant in this case and also in the name of the fourth defendant herein who is the youngest son the first defendant.
Defendant No.3 is the father of plaintiff and eldest son of defendant No.1. 4th defendant is the younger brother of defendant No.3. Defendant No.5 is the sister of plaintiff and daughter of third defendant. Defendants No.6 and 7 31 O.S.No. 1990/2018 are sons of defendant No.4. For better understanding the plaintiff who furnished the family tree of plaintiff and defendants, who together form the joint family after the aforesaid partition dated 31-3-1952 between A. Munivenkatappa and his Sons N.M. Narayanaswamy; N.M Ramaswamy; N.M Annaiah (The first defendant herein) & N.M.Venkatesh. The joint family consisting of aforementioned members do own several movable and immovable properties. Though some of the properties have been acquired from the joint family nucleus, the same are purchased in the names of defendants No.1,2 and 4. some of the properties have been inherited by defendants 1 and 2. All the properties are listed and morefully described in the schedule. Plainitff being a coparcener is in joint and constructive possession of all the joint family properties detailed in the plaint schedule. The plaintiff submitted that during the past one decade the health of defendant 1 and 2 as deteriorated and there have been irreconcilable conflicts between defendants No.3 and 4 as a result the joint family properties have not been effectively utilized and appropriate income in correlation with the potential of 32 O.S.No. 1990/2018 the joint family properties, has not been generated. There have been frequent muted wars and ego clashes between the joint family members on account of which despite every joint family member's need, desire and demand to partition the joint family properties could not be amicably achieved. Several discussions and family panchayaths could not yield the desired results on account of one-up manship attitude of some of the joint family members. In order to put an end to the on going family feud and to bring about an amicable settlement and to effect lawful partition of the joint family properties in a proper, legal and an effective manner, plaintiff has opted to prefer the present suit for partition of joint family properties by metes and bounds. There is no other effective remedy available in law other than filing this suit for partition. Hence, the suit.
2. The written statement of the defendants No.4, 6 & 7 with counter claim is briefly stated as follows.
33
O.S.No. 1990/2018 The defendant Nos. 4 and 7 submit that the suit filed by the plaintiff against the defendants including them seeking for partition and separate possession of the suit schedule properties is not maintainable in law. Infact, the plaintiff having totally different cause of action against the defendant Nos. 1 and 2 in respect of the respective items of the suit schedule properties even if there be any, has filed the above suit against defendant Nos. 1 and 2, when infact, the plaintiff should have filed 2 separate suits against the defendants Nos. 1 and 2 and other defendants including these defendants, on which ground alone the above suit is liable to be dismissed. Moreover, the entire claim is silent as to which items of the suit schedule properties are the joint family properties standing in the name of the 1st defendant and which items of suit schedule properties are either the joint family properties or self acquired properties of the 2nd defendant and as such the entire claim of the plaintiff is ambiguous and incapable of being made out by the plaintiff himself. In addition to the above, the plaintiff along with the plaint has produced only the 34 O.S.No. 1990/2018 certified copy of the registered partition deed dated 31/3/1952 duly executed between the father of the 1st defendant and his sons including the 1st defendant in the above suit, the subject matter of which partition deed relates to only some items of suit schedule properties. With regard to the other items of suit schedule properties, the plaintiff has not chosen to produce the certified copies of title deeds standing in the name of either the 1st defendant or 2nd defendant and has also not bothered to produce the latest encumbrance certificate in respect of all the items of suit schedule properties. The plaintiff has cleverly not incorporated 6 items of immovable properties which are also having the nature and character of ancestral properties, in respect of which even though the 1st defendant is not the absolute owner, the plaintiff, his father who is the 3rd defendant in the above suit and his sister who is the 5 defendant in the above suit have managed to procure the registered Gift Deeds in their favour from the 1 st defendant and the subject matter of the said Gift deeds is the subject matter of the counter claim made by these 35 O.S.No. 1990/2018 defendants, which items of the Gifted properties are the written statement schedule properties, in respect of which the necessary reliefs of declaration and partition are sought for by these defendants by way of counter claim. The item Nos. 1,4,5, one site in item No. 8, 11 and 12 of the plaint schedule properties are owned and standing in the name of 1st defendant in the above suit. Likewise, the item Nos. 2, 3,7, two sites in item No. 8.Two sites in item No. 10 and one site in item No. 10 came to be released by the 1st defendant in favour of the 2nd defendant. Item No. 14 is owned and standing in the name of the 2nd defendant in the above suit. With regard to item No. 6 of the plaint schedule property, it was purchased in the name of the 4th defendant. With regard to item No. 9 of the plaint schedule property it was owned by the mother of the 2nd defendant and after her death, the 2nd defendant being the only legal representative to her mother succeeded to the same and subsequently the 2nd defendant in turn executed and registered the Gift Deed, Gifting away item No. 9 of the plaint schedule property in favour of her younger son 36 O.S.No. 1990/2018 who is the 4th defendant in the above suit. The 4th defendant has mortgaged the said item of property by way of deposit of title deeds in favour of the Bank for the purpose of raising loan and has put up construction of a Hotel Building and the said loan is still to be discharged by him. With regard to 2 sites in item No. 10 of the plaint schedule property which was owned by the mother of the 2nd defendant in the above suit and after the death of Smt. Dasamma the 2nd defendant became the absolute owner of the 2 sites in item No. 10 of plaint schedule property by virtue of the registered will executed by Smt. Dasamma in favour of her only daughter who is the 2nd defendant in the above suit. However, one site in item No. 10 of the plaint schedule property was purchased by the 1st defendant who in turn executed and registered the release deed in favour of his wife, who is none other than the 2nd defendant in the above suit. With regard to item No. 13 of the plaint schedule property which was owned by the mother of the 2nd defendant, viz., Smt. Dasamma and after her death the 2nd defendant being her only legal representative succeeded to the 37 O.S.No. 1990/2018 same. With regard to item No. 14 of plaint schedule property it is the 2nd defendant who purchased the same under the registered sale deed. With regard to item No. 15 of the plaint schedule property the 1st defendant got to his share the said item of property under the registered partition deed dated 31/3/1952 between his father, himself and his 6 Brothers. With regard to item No. 16 of the plaint schedule property, the said item came to be purchased by the 2nd defendant under the registered sale deed. With regard to item No. 17 of the plaint schedule property it came to be purchased by the 4th defendant under the registered sale deed dated 30/8/1993 duly executed by Sri. K. Peddi Raju and T. Govardhan Rao for a sale consideration of Rs. 6,480/- and the said item of property is the self acquired property of the 4th defendant which is not liable to be partitioned between the plaintiff and the other defendants in the above suit. With regard to item No. 18 of the plaint schedule property wherein presently 2 Theaters by name 'Sampige' and 'Savitha' are situate, the then vacant site came to be purchased by defendant Nos. 38
O.S.No. 1990/2018 1,3,4 and the Brother of the 1st defendant by name Sri. N.M. Venkatesh. In the said item of property the defendant Nos. 1, 3 and 4 have together 50% share and the Brother of the 1st defendant by name Sri. N.M. Venkatesh who is no more had the remaining 50% share in the said item of property. However, after the death of Sri. N.M. Venkatesh during the year 1977, his wife and 2 sons have succeeded to 50% in the said item of property. Even during the life time of Sri. N.M. Venkatesh, he along with defendant Nos. 1, 3 and 4 constituted a registered firm under the name and style 'M/s A.V. Exhibitors' for the purpose of running the 2 theaters mentioned above. After the death of Sri. N.M. Venkatesh in terms of one of the covenants of the partnership deed his wife and 2 sons have also become the partners of M/S. A.V. Exhibitors along with defendant Nos. 1, 3 and 4. Consequently, the plaintiff No.1 being the son of the 3rd defendant is not entitled to 1/6th share in the said item of property. Both the plaintiff No.1 as well as the 3rd defendant were fully aware of the fact that item No. 1 of the written statement /counterclaim schedule property is one of 39 O.S.No. 1990/2018 the subject matters of the court claim in respect of which the necessary relief of declaration is also sought for by defendant Nos. 4, 6 and 7. In fact, the defendant Nos. 4, 6 and 7 have also filed an application seeking for an order of Temporary Injunction restraining the 3rd defendant from either alienating or encumbering item No. 1 of the written statement/ counterclaim schedule property and the said application is pending consideration". Even during the pendency of the above suit and the application filed by them for Injunction in respect of item No 1 of the written statement/counterclaim schedule property which was/is well within the knowledge of both the 3rd defendant and the plaintiff No.1, the 3rd defendant by playing fraud on these defendants has clandestinely Executed and Registered the Gift Deed dated 12/06/2019, Gifting away the item No. 1 of the written statement /Counterclaim schedule property in favour of the plaintiff even during the pendency of the above suit. In fact, it is the 5th defendant who is the Daughter of the 3rd defendant and younger sister of the plaintiff No.1 who informed these defendants 40 O.S.No. 1990/2018 about the aforesaid Registered Gift Deed which made these defendants to apply for the Encumbrance Certificate and after obtaining the same, the fact of the Execution and Registration of the aforesaid Gift Deed came to the knowledge of these defendants and subsequently they applied for and secured the Certified Copy of the aforesaid Gift Deed. The plaintiff No.1 is not entitled to 1/6th share in the plaint schedule properties at all. Even according to the plaintiff No.1 it is his case that the plaint schedule properties are the ancestral properties. However, the entire plaint is silent with regard to the items of the plaint schedule properties which are standing in the name of the 1st defendant and the item of plaint schedule properties which are standing in the name of the 2nd defendant. Moreover, some of the plaint schedule properties cannot be made out in the absence of its situation, measurements and with reference to boundaries. In respect of certain items of plaint schedule properties standing in the name of the 1st defendant, the defendant Nos. 1, 3 and 4 are each entitled to 1/3rd share except item No. 17 of the 41 O.S.No. 1990/2018 plaint schedule property which is the self acquired property of the 4th defendant and not liable to be partitioned between the plaintiff and the defendants. In turn, the plaintiff and defendant Nos. 3 and 5 would each become entitled to 1/9th share from out of the 1/3rd share of the 3rd defendant. Like wise, in respect of the 1/3rd share of the 4th defendant, the Defendant Nos. 4, his 2 sons viz., defendant Nos. 6 and 7 would be entitled to 1/9th share each from out of 1/3rd share of the 4th defendant in the plaint schedule property except item No. 17 of the plaint schedule property which is the self acquired property of the 4th defendant and not liable to be partitioned between the plaintiff and the defendants. With regard to certain items of the plaint schedule properties standing in the name of the 2nd defendant, some of which items of properties came to be purchased by the 1st defendant in the name of the 2nd defendant are ancestral properties, the said items of properties having been purchased from out of the nucleus of the joint family accretions and certain items of plaint schedule properties which came to be succeeded to by 42 O.S.No. 1990/2018 the 2nd defendant by virtue of the will executed by the mother of the 2nd defendant in her favour also assumes the character of an ancestral property, in respect of which the 2nd defendant, the 3rd defendant and the 4th defendant have 1/3rd share each in respect of the said items of properties. In turn, the 3rd defendant along with the plaintiff and the 5th defendant in the above suit would become entitled to 1/9th share each from out of the 1/3rd share of the 3rd defendant. Likewise, the 4th defendant along with the defendant Nos. 6 and 7 would become entitled to 1/9th share each from out of the 1/3rd share of the 4th defendant in the above suit. The plaintiff and defendant Nos. 1, 2, 3, 5,6 and 7 are not entitled to any share in item No. 17 of the plaint schedule property, since the said item of property is the self acquired property of the 4th defendant and not liable to be partitioned. The genealogical tree at the end of Para III of the plaint and as such the relationship between the parties to the suit is admitted. It is true that the father of the 1st defendant was one A. Munivenkatappa. The said Munivenkatappa along with 43 O.S.No. 1990/2018 his sons including the 1st defendant in the above suit executed and registered the partition deed dated 31/3/1952 vide document No. 4265/1951-52 in Book No. 1 in the office of the Sub-Registrar Bangalore. The 1st defendant, who is one of the parties to the aforesaid partition, got to his share of following items of properties;
a) All that piece and parcel of the shop Nos. 146, 147 and 148 situate at Neharunagar, Seshadripuram, Bangalore measuring East to West 28 Feet and North to South 37+39/2bounded by East by: vacant site, West by: Narasingarayara's House, North by:
conservancy lane and South by Main Road.
b) All that piece and parcel of House property bearing No. 148, situated at 3rd Cross, Chamarajapet measuring East to West 30 Feet and North to South 110 feet, bounded on East by: Govindaraju Mudaliyar's House, West by: Annaiayappa and Channappa's House, North by: Conservancy Lane and South by Main Road.
c) All that piece and parcel of Municipal site No. 12, situated at Vadigenahalli, Devanahalli Taluk, measuring East to West 50 feet and North to South 80 feet bounded on East by:
Site No. 13, West by: Site No. 11, North by:
Road and South by; Conservancy Lane.
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O.S.No. 1990/2018
d) Piece and parcel of land bearing Sy. No.
60/1 measuring 4 acres situated at
Ayyebasapura, Channarayapattanna
Hobli, DevanahalliTaluk bounded on East by Muniyappa's land, West by: Halla, North by:
Halla and South by Munisamappa's Land.
e) Piece and parcel of land bearing Sy. No. 60/2 measuring 4- acres 12 guntas land situated at Ayyebasapura, Channar ayapattanna Hobli, DevanahalliTaluk bounded on East by Muniyappa's land, West by: Halla, North by: Halla and South by Munisamappa's Land.
f) Piece and parcel of land bearing Sy. No. 50, measuring 24 acres land situated at Baluvanahalli, Jangama Hobli. Shidlagatta Taluk, bounded on East by: Government Land, West by: Shatakundahalli, Dharmapurada Elle, North by: Venkatapurada Elle and South by Kalachai's Land.
g) Piece and parcel of Tarasi House situated at Joddihosooru, Channarayapattana Hobli, DevanahalliTaluk bounded on East by Road, West by: Road, North by: Road and Soth by: Narayanappa's House.
h) Piece and parcel of MaligeHouse situated at Joddihosooru, Channarayapattana Hobli, DevanahalliTaluk bounded on East by: Vacant Land, West by: Road, North by: Road and South by: Aanjamappa's House.45
O.S.No. 1990/2018
a) CASH OF Rs. 1,000/-.
b) Silver and Gold Articles Worth Rs. 6,320/-.
c) Insurance Worth Rs. 3,872/-
d) Ralli Cycle and Furniture's worth Rs. 459/-
e) Brass Articles Worth Rs. 200/-.
f) Iron Wood Desk Worth Rs. 110/-.
g) Silk Shop Balance Worth Rs. 75,181/-.
3. Thus the defendants have taken contention that except item No.17 of the plaint schedule property which is self acquired property of the defendant No.4, the plaintiffs and the defendant No.1, 3 (now transposed as plaintiff No.2) and defendant No.4 are entitled for equal share in the plaint schedule properties.
4. The defendants have taken contention that under the partition deed dated 31.03.1952 8 items of immovable properties, (a) cash of Rs. 1,000/-. b) Silver and Gold Articles Worth Rs. 6,320/-. c) Insurance Worth Rs. 3,872/- d) Ralli Cycle and Furniture's worth Rs. 459/- e) Brass Articles Worth Rs. 200/-. f) Iron Wood Desk Worth Rs. 110/-. g) Silk Shop Balance Worth Rs. 75,181/-, totally valued at Rs.1,33,192/- fallen to the share of the defendant No.1. The defendants No.4, 6 & 8 have sought for 1/3rd share of defendant No.4 in relation to item No.1 to 8, 10 to 16 of the plaint schedule properties and 1/3rd 46 O.S.No. 1990/2018 share out of or 50% share in item No.18 of the plaint schedule property which in turn results in 1/9th share each out of 1/3rd share of defendant No.4 to the defendants No.4, 6 & 7.
5. The defendants No.4, 6 & 7 have further contended that the plaintiffs deliberately left out counter claim schedule properties. Item No.1 of the written statement schedule property came to be purchased by 1 st defendant in the name of the defendant No.3 under registered sale deed dated 15.04.1974. from out of income derived by the 1st defendant from both ancestral and joint family properties and entire sale consideration was paid by the defendant No.1. Hence, this item no.1 of written statement property is the joint family property. Item No.2 of the written statement property which was then vacant site bearing No.18 measuring East to West 40 ft. and North to South 65 ft. which came to be purchased by the defendant No.1 under the registered sale deed executed by CITB out of the joint family income and hence, this property is also joint family property. The defendant No.1 is not having absolute ownership over the suit schedule property . The defendant No.1 had no right to 47 O.S.No. 1990/2018 execute the Gift Deed in favour of the defendant No.3. With regard to item No.3 of the written statement schedule property it was came to be purchased by the defendant No.1 under the registered sale deed dated 04.05.1966 for sale consideration of Rs.3,000/- from out of joint family income. The defendant No.1 has no exclusive right over the same in order to execute Gift Deed in favour of the defendant No.3. Item No.4 of written statement schedule property came to be purchased by the defendant No.1 in the Municipal auction under the registered sale deed in his name from out of income derived by him from several ancestral properties which came to be allotted to the share of 1 st defendant under registered partition deed dated 13.03.1952. Item No.5 of written statement property is the ancestral property of the plaintiff and defendants. Since it is the 1 st defendant who got his share in the said item of property under the partition deed dated 19.03.1952, the defendant No.1 who has no absolute right over the same executed registered Gift Deed dated 07.04.2012. The defendant No.5 has no absolute right over the same by way of gift deed. This property is the joint family property 48 O.S.No. 1990/2018 of the plaintiff and the defendants. Item No.6 of the written statement schedule property bearing Plot No.1, platform road, Malleswaram, Bengaluru measuring in all 7000 sq.ft. purchased by the defendant No.1 in the name of defendant No.3 under the registered sale deed. At the time of purchase of the property defendant No.3 was hardly aged 18 years and he was no source of income. The defendant No.1 purchased this property out of nucleus of joint family income. Hence, it is joint family property. This property acquired by BBMP for widening platform road and the compensation amount of Rs.6,45,39,439/- was awarded and said compensation amount deposited in Misc.No.634/2014. In that Misc. case neither 1st plaintiff nor defendants No.4, 6 & 7 were made as parties. Since item No.6 of the property is also joint family property liable to be partitioned. The branch of defendant No.4 together entitled ½ share in it. The branch of plaintiff No.2 entitled for ½ share. The defendant No.3 utilized joint family funds for the purpose of doing business and incurred huge loss. The defendant No.4 is entitled for equal share in counter claim schedule properties along with plaintiff No.2 and defendant No.1. 49
O.S.No. 1990/2018 The defendant No.1 died on 01.11.2020 leaving behind him surviving defendant No.3 (now transposed as plaintiff No.2) and defendant No.4 as his legal representatives. The defendant No.1 was residing along with 4 th defendant and his family members till the year 2018. The 2 nd defendant was also living with the 1 st defendant. But during the year 2018 the 1st defendant joined his wife, who started living in the house of the defendant No.3, at the time of 1st defendant left the house of the defendant No.4 and started living in the house of defendant No.3, he was in possession and custody of several items of jewels which were all owned by him. All the jewels which are mentioned in the written statement schedule properties are joint family properties. The gift deeds executed by defendant No.1 are not binding on these defendants. Hence, the defendants prayed for decre counter claim.
1. The written statement filed by the defendant no. 1 to 3 to the plaint as well as counter claim is as follows.
The averments made in Paragraph No. III of the plaint in so far as relationship between the parties is admitted. 50
O.S.No. 1990/2018 The averments made in Para No. III-2 regarding the joint family of the parties owned several movable and immovable properties and that some of the properties have been purchased out of joint family nucleus which are purchased in the name of defendant No. 1, 2 and 4 are admitted. The further averments that the plaintiff is a coparcener and he is in constructive possession of the joint family property is admitted. It is contended that these defendants are also coparceners who are entitled for share and they are also in constructive possession of the suit schedule properties. The contention of the plaintiff that during the past one decade, the health of the defendant no.1 and 2 has deteriorated is denied as false. All the averments made in para no. III (4) of the plaint are denied as false. These defendants have taken contention that there was a family business of father of the defendant no. 1 wherein defendant No. 1 was getting income. The defendant no. 3 who is a qualified well educated person during his younger days working as a manager in Ennem Polpax company from 1972 to 1976 and was drawing salary of Rs 1,000 per month. The defendant no. 1 and 2 till the date of their filing this WS 51 O.S.No. 1990/2018 have not executed any will or codicil in respect of any of the suit schedule properties. However they intend that their share in all the properties shall go in favour of defendant No. 3 and 4 in equal shares. These defendants executed registered gift deeds in favour of plaintiff, defendant no. 5 and defendant no. 7. The property which gifted in favour of defendant no. 7 is mentioned as item no. 9 of suit schedule property. The property is gifted in favour of plaintiff and defendant no. 5 are the self acquired/ exclusive properties of defendant no. 1. The properties which are included with the written statement schedule are not partible. The contention of the defendant no. 4 is that plaint schedule item no. 17 is his self acquired property is denied as false. This property purchased from joint nucleus of the joint family of defendant no. 1. The contention of the defendant no. 4 is that Item No. 1 of Written statement schedule property had purchased in the name of defendant no. 3 is denied as false. Further contention that Item No. 2 of WS also purchased by defendant no. 1 out of joint family income is denied as false. Infact the said property had been purchased by defendant no. 1 out of his earning and that 52 O.S.No. 1990/2018 properties are not available for partition. The defendant no. 1 gifted the same in favour of the defendant no. 3. The Item No. 3 of WS also purchased by defendant no. 1 out of his individual income. Hence he had gifted the same in favour of defendant no. 3. The contention of the defendant no. 4 is that Item No. 4 of WS purchased by the defendant No. 1 in the municipal auction by utilizing the joint family funds, is denied as false. It is admitted that several ancestral properties were allotted to the share of defendant no. 1 under registered partition deed dated 13.03.1952. However the said properties have not been blended with that of the individual properties purchased by the defendant No. 1. It is admitted that Item No. 5 of Written statement property had come to defendant No. 1 under registered partition deed of the year 1952. Since the defendant No. 5 served the family including its business as a practicing lawyer and rendered her professional services without charging any fees, hence defendant No. 1 gifted Item No. 5 in favour of the defendant No. 5. Hence the colour of jointness of the property is lost. The contention of the defendant no. 4 is that Item no. 6 of WS had been purchased in the name of 53 O.S.No. 1990/2018 defendant no. 3 by the defendant no. 1 by using joint nucleus of the property is incorrect. Infact defendant no. 3 was helping the family business from his young age. In view of service rendered by defendant No. 3, the brothers of the first defendant namely NM Narayanasyamy, NM Ramaswamy, NM Venkatesh have funded to purchase the property out of their self earnings. The contention of the defendant no. 4 that the defendant no. 3 utilized joint family funds of Rs 25,00,000 and he also started techno plant, poultry farm, grape farm etc and suffered loss is denied as false. The contention of the defendant no. 4 is that, defendant no. 1 purchased the written statement schedule properties out of joint family nucleus is denied as false. The claim made by the defendant no. 4, 6 and 7 in their written statement hopelessly barred by law of limitation. The court fee paid is insufficient. Hence on these grounds, the defendant no. 1 and 2 prayed to grant them 3/9th share and defendant No. 3 prayed to grant him 1/9th share and to pass preliminary decree.
2. The written statement filed by defendant No. 5 along with counter claim is briefly stated as follows.
54
O.S.No. 1990/2018 The family tree mentioned in the plaint is admitted. Admitted all the suit schedule properties along with undisclosed items of the properties by the plaintiff for the reasons best known to him, are the joint family properties. The averments made in para no. 3 of the plaint is denied as false. If at all the health condition of defendant no. 1 deteriorated since a decade, how can he give instructions to counsel to prepare written statement. Except certain issues, in respect of the properties, there are no conflicts between defendant no. 3 and 4 who are staying next doors. There is no conciliation whatsoever nature that took place in respect of the division of properties among defendant no. 1 to 4. The properties are all joint family properties and its benefit . The intention of the plaintiff is just to avoid proper share granted to this defendant and to take away the share of himself along with his father Defendant no. 3. To meet this end, this defendant has been kept away from the family of her parents since 2 years. The plaintiff has created a situation wherein even the parents are not in talking terms with this defendant for the reasons best known to them who loved and kept this defendant happy 55 O.S.No. 1990/2018 all along. Defendant No. 1 passed away on 1.11.2020 while defendant no. 2 predeceased him on 17.03.2020. The defendant No. 1 is not in a good state of health to understand the situation since a decade and is bed ridden. In such an event, the question of mere dengue fever of defendant no.1 do not create and cause of action There are 7 coparcenars. Hence the plaintiff is not entitled 1/6th share.
3. The defendant no. 5 by way of counterclaim would contend that the plaintiff has deliberately left out certain highly valued properties acquired in the name of defendant No. 3 by the defendant No. 1 which are mentioned in the schedule. This defendant is ready to include the land gifted in her favour and development work carried out by her by availing loans from bank in the suit schedule properties. Defendant No. 3 and 4 have no avocation of their own except enjoying their rents, incomes and benefits arising out of the suit properties. All the immovable and movable properties standing in the name of defendant no. 3 and 4 are the joint family properties and this defendant has a share in it. The defendant no. 3 and 4 have virtually utilized the entire 56 O.S.No. 1990/2018 means profit of suit schedule and counterclaim schedule properties. These defendants are liable to account since the date of its acquisition upto the date of actual calculation. The plaintiff and defendants are the coparceners and joint possession and enjoyment of all the properties shown in the plaint and written statement. The calculation of the equal share by the plaintiff is totally wrong and the Hindu Succession act needs to be followed in this regard. Hence the defendant no. 5 prayed to incorporate the written statement properties along with all the suit schedule properties except the development undertaken in item no. 2 of the written statement schedule as available for partition among coparceners of joint family of Sri NV Annayya and prays to partition the same in accordance with the provisions of Hindu Succession Act.
4. In the written statement filed by the plaintiff, to the counterclaim of the defendants, he would contend that the item no. 1 and 6 of counterclaim schedule of defendant no. 4, 6 and 7 is the property exclusively purchased by defendant no. 3 out of his self 57 O.S.No. 1990/2018 earned income. The defendant no. 3 is well educated person with 2 graduation. He used to buy and sell shares of different companies and also guiding his uncles to buy the shares and sell shares of listed companies. The sale deeds dated 15.04.1974 and 23.10.1970 cannot be challenged as it is barred by limitation. Defendant no. 3 continuously in possession of these 2 properties as a owner. Item no. 2 of the written statement schedule acquired by first defendant under registered sale deed dated 28.10.1970 out of his self earnings. It was gifted by the defendant no. 1 in favour of defendant no. 3 under registered gift deed dated 5.03.2004. The defendant no. 4 being signatory to the said gift deed as a witness cannot dispute the same after lapse of more than 14 years 3 months. The Written statement item no. 3 property has been acquired by the defendant no. 1 under registered sale deed dated 4.05.1966 out of his self earning. The defendant no. 1 gifted this property in favour of defendant No. 3 under registered gift deed dated 7.07.2004. The defendant no. 4 being a signatory to the said document as a witness cannot challenge the same after lapse of 14 years. The defendant No. 3 who 58 O.S.No. 1990/2018 became the absolute owner and in possession of the property constructed industrial shed. The defendant no. 3 gifted this property in favour of the plaintiff under registered gift deed dated 9.09.2008. Thereafter, the plaintiff has demolished the building and constructed a factory premises in ground floor and PG accommodation in first, second and third floor by investing the amount. The written statement schedule Item No. 4 purchased by the defendant No. 1 in a public auction held on 4.02.1962 from his self earnings. He had gifted this property to the plaintiff under registered gift deed dated 12.06.2015. The plaintiff when he was studying in final year MBBS, first defendant on 15.11.2002 developed severe chest pain. Hence plaintiff took him to Jayanagar hospital wherein it is reveled that it is heart attack. First defendant was taken to Trinity hospital where he had given treatment. The execution of a gift deed in favour of the plaintiff on 12.06.2015 is a conscious and well thought after decision of both defendant no. 1 and 2. The written statement schedule Item no. 5 has been gifted voluntarily by the first defendant to the fifth defendant after informing all the family members. The counterclaim averments of 59 O.S.No. 1990/2018 defendant no. 4, 6 and 7 are barred by period of limitation. There is no cause of action to file the counterclaim. The court fee paid is insufficient. The properties which are mentioned in the plaint which are joint family properties are liable for partition. The defendant no. 4, 6 and 7 hold and possesses properties purchased by the first defendant. Those properties are liable for partition in terms of Benami Transaction Act as well as customary Hindu Law. Hence the plaintiff prayed for dismissal of counterclaim preferred by defendant no. 4, 6 and 7.
5. The written statement filed by the defendant No. 8 to 10 subsequently added defendants are as follows.
These defendants are the private persons and they are concerned only with respect to their purchased properties out of item no. 6 of the plaint schedule. The plaintiff should have excluded measurement as 7,200 Sq Ft. instead of 4,800 Sq. Ft. The plaintiff already mentioned 4,800 Sq. Ft. The balance 2,400 Sq. Ft has to be excluded from the item No. 6 of plaint schedule. The defendant no. 4 who is the absolute owner of this property sold 3 sites 60 O.S.No. 1990/2018 in item no. 6 in favour of these defendants under registered sale deeds. The item no. 6 are plaint schedule which measures 1 acre 20 guntas purchased by defendant no. 4 under registered sale deed dated 27.07.1972. This was converted land for industrial purpose as per order passed by Deputy Commissioner Bangalore on 26.11.1965. In this property, private layout of 10 sites were formed. Among them, site no. 2, 3, 4 came to be purchased by these defendants. The defendant no. 8 purchased site no. 4 measuring 60x40. Defendant no. 9 purchased site no. 2 measuring 60x 40, defendant no. 10 purchased site no. 3 measuring 60x 40. these properties purchased under 3 registered sale deeds dated 18.02.1995. They have joined all 3 sites together which totally measured 7,200 Sq ft and have put up construction in 26,000 Sq ft with ground plus 3 floors and the joint khatha is accepted and taxes are assessed to the building. These defendants are in peaceful possession and enjoyment of the same as a owners. These defendants on coming to know about pendency of this suit, inorder to safeguard their property got impleaded in this suit. They are the bonafide purchasers of the 61 O.S.No. 1990/2018 properties under registered sale deeds dated 18.02.1995. Hence they prayed for exclude 7,200 Sq ft in item no. 6 of the plaint schedule instead of 4,800 sq ft and to safeguard their rights.
6. Based on the pleadings of the parties, the following issues are framed.
1. Whether the plaintiffs prove that the plaint schedule properties (excluding item No. 1 to 5, 7, 8, 10 to 16 , 18, 20, 31 and 34) are ancestral and joint family properties of themselves and defendants?
2. Whether the defendant No.3 (now transposed as plaintiff as plaintiff No.2) proves that the property gifted in favour of D5 and D7 under registered gift deeds are self acquired properties of D1 and 2 as contended ?
3. Whether the defendant No. 4, 6 and 7 prove that item No. 6, 9, 17 of plaint schedule property is self acquired of defendant No.4?
4. Whether the defendant No.4, 6 and 7 prove that the registered gift deed dated 12.06.2015 bearing Doc. No. YAN-1-01425-2015-16 CD No. Y AND Doc.958, registered rectification deed dated 15.06.2016 bearing Doc. YAN-1-01692-2016-17 CD 62 O.S.No. 1990/2018 No. YAND 629, registered rectification deed 07.04.2017 DOC No. YAN 100258-2018-19, CD No. YAND 660 are not binding on them ?
5. Whether the defendant No.4, 6 And 7 prove that registered gift deed dated 05.03.2004 bearing DOC No. JNR 6785-2003-04 is not binding on them ?
6. Whether the defendant No.4, 6 and 7 prove that registered gift deed executed by the defendant No.1 in favour of 3rd defendant relating to item No.3 of written statement schedule property is not binding on them ?
7. Whether the defendant No.4 , 6 and 7 prove that registered gift deed dated 05.04.2012 DOC No. CMP-1-0071-2012-13, CD No. CMPD 45, is not binding on them ?
8. Whether the defendant N.4 , 6 and 7 prove that item No.1 to 8 of the counter claim properties are ancestral properties as contended in the written statement and counter claim ?
9. Whether the defendant No.4, 6 and 7 prove that the registered gift deed dated 12.06.2019 bearing DOC No. RRN-1-01824-2019-20 is not binding on them ?
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10. Whether the defendant No.4 , 6 and 7 prove that encumbrance by raising loan from the bank in respect of item No. 4 of the written statement/ counter claim property is not binding on them ?
11. Whether the defendant No.4, 6 and 7 prove that registered will executed by the defendant N.3 in respect of item No.2 of the written statement/ counter claim is not binding on them ?
12. Whether the defendant No.4,6 and 7 are entitled for mesne profits as sought for?
13. Whether the plaintiffs are entitled for the relief of partition and separate possession as sought for?
14. Whether the defendant No.4, 6 and 7 are entitled for the relief of permanent injunctions as sought for?
15. Whether the defendant No.5 proves that all the properties standing in the name of defendant No.3 (now transposed as plaintiff No.2) and defendant No.3, 4 are joint family properties?
16. Whether the plaintiff proves that item No.1 and 6 of written statement schedule properties are self acquired of defendant No.3 ( now transposed as plaintiff No.2)?
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17. Whether the valuation of the suit made and court fee paid is correct ?
18. Whether the defendant No.4 , 6 and 7 are entitled for the relief of counter claim as sought for?
19. Whether the defendant No.5 is entitled for the share in the properties as sought for?
20. Whether the plaintiff are entitled for reliefs as sought for ?
21. What - Order or decree ?
ADDITIONAL ISSUES FRAMED ON 07.01.2026.
1. Whether the defendant N.8 to 10 proves that they are bonafide purchasers of 7200 sq, ft., instead of 4800 sq. ft., mentioned in item no. 6 plaint schedule property ?
7. In this suit, initially the plaintiff failed to lead evidence. Hence evidence started on the side of the defendants. Defendant no. 5 examined herself as DW1. Documents Ex.D1 to Ex.D9 marked through her. Defendant no. 7 examined as DW2 for himself and also on behalf of defendant no. 4 and 6 got marked documents Ex.D26 to Ex.D84. During the course of cross- 65
O.S.No. 1990/2018 examination of DW1, on the side of defendant no. 4, 6 and 7, Ex.D10 to 25 are marked. During the course of cross-examination of DW1 and DW2 on the side of the plaintiffs, Ex.P1 to Ex.P15 are marked as these documents were confronted. Plaintiff No. 2 examined himself as PW1 but no documents are marked in his examination in chief. Defendant No. 8 got examined himself as DW3 on his behalf and on behalf of Defendant no. 9 and 10 and documents Ex.D85 to Ex.D97 are marked. Thus on the side of the plaintiffs, documents Ex.P1 to 15 are marked, on side of defendants, Ex,D1 to Ex,D97 are marked.
8. I have heard the arguments of the learned counsel for the plaintiffs, learned counsel for defendant no.5, learned counsel for defendant no. 4, 6 and 7 and learned counsel for defendant no. 8 to 10 who are all also filed their written argument. I perused the entire records.
9. While framing issue no. 3, instead of mentioning Item No. 6, 9 and 17, only Item No. 6 of plaint schedule is mentioned. Hence it is necessary to carry out amendment in issue no. 3 and accordingly, it is amended as item no. 6,9 and 17. Since the parties knows their case 66 O.S.No. 1990/2018 very well and already lead the evidence and adduced the evidence on that point, this court of the opinion that it is not necessary to post the case for further evidence.
10. My findings on the above issues are as follows. Issue No. 1:- Partly in the Affirmative Issue No. 2:- In the Negative.
Issue No. 3:- In the Negative.
Issue No. 4:- In the Affirmative Issue No. 5:- In the Affirmative Issue No. 6:- In the Affirmative Issue No. 7:- In the Affirmative Issue No. 8:- In the Affirmative.
Issue No. 9:- In the Affirmative Issue No. 10:- In the Negative Issue No. 11:- In the Negative Issue No. 12:- In the Affirmative Issue No. 13:- Partly in the Affirmative Issue No. 14:-Partly in the Affirmative Issue No. 15:- In the Affirmative Issue No. 16:- In the Negative.
Issue No. 17:- Partly in the Affirmative. Issue No. 18:-Partly in the Affirmative 67 O.S.No. 1990/2018 Issue No. 19:-Partly in the Affirmative Issue No. 20:-Partly in the Affirmative Addl. Issue No.1 - In the Affirmative.
Issue No.21: As per the final order for the following.
Reasons
11. Issue No. 1, 2, 3, 8 15, 16:- All these issues are interconnected with each other hence inorder to avoid repetition of facts and evidence and for the sake of convenience, they are taken up together for discussion. Prior to the adverting the evidence on record, it is important to note undisputed facts in this suit.
12. Undisputed facts:-
Defendant no. 1 Sri NM Annayaiah and defendant no. 2 Smt NA Janaki Bai @ NA Narayanamma are Husband and wife. Defendant No. 4 and plaintiff No. 2 are the sons of defendant no. 1 and 2. Plaintiff No. 1 is the son. Defendant no. 5 is the daughter of plaintiff no. 2. Defendant no. 6 and 7 are the sons of defendant No.4. Defendant no. 1 died on 1.11.2020. Defendant no. 2 died on 17.03.2020 during the pendency of this suit. Defendant no. 1 and 2 died intestate without leaving any 68 O.S.No. 1990/2018 will or codicils. There are 42 items of schedule properties mentioned in plaint schedule. There are 14 items mentioned in counter claim schedule of defendant no. 5. There are 8 items of properties mentioned in counterclaim of defendant no. 4, 6 and 7. IA No. 17 filed under Order XII Rule 6 of CPC came to be allowed and this court passed the judgment on admission dated 12.08.2022. Consequently, a preliminary decree has been passed in respect of plaint schedule Item No. 1 to 5, 7, 8, 10 to 16, 18, 30, 31, and 34. Consequently, final decree proceedings has been initiated in respect of these properties as per FDP No. 92/2023 which is pending for adjudication. Defendant no. 4, 6 and 7 except Item No. 6, 9 and 17 admitted all other properties are joint family properties. Existence of joint family is admitted by both plaintiffs and defendant No. 1 to 7. The ancestral properties were divided among defendant no. 1 and his three brothers under registered partition deed dated 31.03.1952. The plaintiff no. 2 was born on 15.11.1952.
Defendant no. 4 was born on 9.02.1954. Under Ex.D1 partition deed dated 31.03.1952, first defendant got the properties totally valued 1,33,392. Six items of the 69 O.S.No. 1990/2018 counterclaim schedule i.e., Item No. 1 to 6 of defendant no. 4 also mentioned by defendant no. 5 in her counterclaim. Keeping all these admitted facts in mind, now it is to be noted what are all the properties fallen to the share of defendant no. 1 under registered partition deed dated 31.03.1952 between him and his brothers and the properties are as follows.
a) All that piece and parcel of the shop Nos. 146, 147 and 148 situate at Neharunagar, Seshadripuram, Bangalore measuring East to West 28 Feet and North to South 37+39/2bounded by East by: vacant site, West by: Narasingarayara's House, North by:
conservancy lane and South by Main Road.
b) All that piece and parcel of House property bearing No. 148, situated at 3rd Cross, Chamarajapet measuring East to West 30 Feet and North to South 110 feet, bounded on East by: Govindaraju Mudaliyar's House, West by: Annaiayappa and Channappa's House, North by: Conservancy Lane and South by Main Road.
c) All that piece and parcel of Municipal site No. 12, situated at Vadigenahalli, Devanahalli Taluk, measuring East to West 50 feet and North to South 80 feet bounded on East by:
Site No. 13, West by: Site No. 11, North by:
Road and South by; Conservancy Lane.70
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d) The land bearing Sy. No. 60/1 measuring 4 acres situated at Ayyebasapura, Channarayapattanna Hobli, DevanahalliTaluk bounded on East by Muniyappa's land, West by:
Halla, North by: Halla and South by
Munisamappa's Land.
e) The land bearing Sy. No. 60/2 measuring 4- acres 12guntas land situated at Ayyebasapur a, Channarayapattanna Hobli, DevanahalliTaluk bounded on East by Muniyappa's land, West by:
Halla, North by: Halla and South by
Munisamappa's Land.
f) The land bearing Sy. No. 50, measuring 24 acres land situated at Baluvanahalli, Jangama Hobli. Shidlagatta Taluk, bounded on East by:
Government Land, West by: Shatakundahalli, Dharmapurada Elle, North by: Venkatapurada Elle and South by Kalachai's Land.
g) Piece and parcel of Tarasi House situated at Joddihosooru, Channarayapattana Hobli, DevanahalliTaluk bounded on East by Road, West by: Road, North by: Road and Soth by: Narayanappa's House.
h) Piece and parcel of MaligeHouse situated at Joddihosooru, Channarayapattana Hobli, DevanahalliTaluk bounded on East by: Vacant Land, West by: Road, North by: Road and South by: Aanjamappa's House.
a) CASH OF Rs. 1,000/-.
b) Silver and Gold Articles Worth Rs. 6,320/-.
c) Insurance Worth Rs. 3,872/-71
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d) Ralli Cycle and Furniture's worth Rs. 459/-
e) Brass Articles Worth Rs. 200/-.
f) Iron Wood Desk Worth Rs. 110/-.
g) Silk Shop Balance Worth Rs. 75,181/-. Then totally values 1,33,392.
13. The learned counsel for defendant no. 4, 6 and 7 in his written arguments mentioned regarding what are all properties purchased by the defendant no. 1 after the partition of the year 1952. He has submitted that Item No. 8 of plaint schedule property purchased on 11.01.1957. Item No. 11 of plaint schedule property purchased on 18.03.1957. Item No. 1 of plaint schedule property in Site no. 20 purchased on 26.03.1958. Item No. 1 of plaint schedule property in Site No. 19 purchased on 26.03.1958. Item No. 12 of plaint schedule property purchased on 7.12.1959. Item No. 13 of plaint schedule purchased on 9.11.1961. Item No. 31 of plaint schedule purchased on 8.12.1961. Item No. 19 of plaint schedule purchased on 24.07.1963. Item No. 4 of plaint schedule purchased on 19.02.1964. Item No. 5 of plaint schedule purchased under 3 sale deed i.e., sale deed dated 5.04.1965, 6.04.1965, 16.10.1966. Item No. 18 of plaint schedule property purchased on 23.10.1970. Item No. 21 72 O.S.No. 1990/2018 and 22 of plaint schedule purchased on 20.02.1970. Item No. 10 of plaint schedule property purchased in the year 1971. Item No. 6 of plaint schedule purchased on 26.07.1972. Item no. 1 of counter claim schedule property of defendant No. 4, 6 and 7 purchased on 15.04.1974. Item no. 2 of counter claim schedule property of defendant No. 4, 6 and 7 purchased on 28.10.1970. Item no. 3 of counter claim schedule property of defendant No. 4, 6 and 7 purchased on 04.05.1966. Item no. 4 of counter claim schedule property of defendant No. 4, 6 and 7 purchased on 4.02.1968. Item no. 6 of counter claim schedule property of defendant No. 4, 6 and 7 purchased on 23.10.1970. The learned counsel for the defendant No. 4, 6 and 7 also submitted that the Item No. 2, 3, 7, 8, 10, 13, 14 and 16 of plaint schedule properties are all belongs to defendant no. 2 Smt NA Janaki Bai @ NA Narayanamma. As I already noted that admittedly, all these items, item No. 1 to 5, 7, 8, 10 to 16, 18, 30, 31, 34 the decree on admission already passed by allowing IA No. 17 under Order XII Rule 6 of CPC.
14. The plaintiffs even though in the plaint schedule 73 O.S.No. 1990/2018 claimed remaining properties excluding Item No. 1 to 5, 7, 8, 10 to 16, 18, 30, 31, 34 as ancestral and joint family properties of themselves and defendant No. 1 to 7. but during the course of arguments, learned counsel for the plaintiff vehemently argued that the properties Item No 18 to 42 were added to the plaint at the advise of defendant no. 1 and 2 inorder to settle the dispute. Hence by moving IA No. 9 and 10, these properties were awarded prior to referring this matter to mediation. But since during mediation, the matter could not be settled. an application in IA No. 33 was filed by the plaintiff to delete Item No. 32, 33, 35 and 36 from the plaint schedule as these properties are self acquired properties of the plaintiff no. 2 and are not available for partition. He submitted that even though IA no 33 came to rejected, but there in no oral or documentary evidence are lead to show these properties are joint family properties. He argued that Item No. 40 and 41 are the subject matter of P and SC No. 66/2022 and same has been disposed by this court vide final order dated 1.04.2022 as such the plaint schedule item no. 40 and 41 are not available for partition. He further argued that Item No 19 to 29 of 74 O.S.No. 1990/2018 plaint schedule are subject matter of 2 partition deeds dated 15.10.2015, certified copies of same are marked as Ex.D4 and Ex.D5 and these partition deeds are duly acted upon and as such these properties are not available for partition. He argued that only the properties which are available for partition are plaint schedule Item No. 6, 9, 17, 37, 38, 39, 42. He argued that all the counterclaim Item No. 1 to 6 of the written statement of defendant no. 4,6 and 7 are not available for partition and these properties are not joint family properties.
15. On the other hand, the learned counsel for the defendant no. 4, 6 and 7 argued that the plaintiff himself by moving IA No. 9 and 10 added Item No. 19 to 42 of the plaint schedule properties. The defendant no. 3 transposed himself as plaintiff no. 2 and thereby he adopted the plaint averments and not filed any additional pleadings. Hence the plaintiff no. 1 and 2 both are bound by the pleadings. He argued that the properties Item No. 19 to 29 are all fallen to the share of defendant no. 1 under registered partition deed dated 31.03.1952. He argued that the very same properties were subject matter of the partition deed dated 27.03.1945 between 75 O.S.No. 1990/2018 NA Munivenkatappa and his brother's son NM Munishayamappa vide document Ex.D70. He submitted that as per Ex.D70, partition deed dated 27.03.1975, NA Munivenkatappa, father of defendant no. 1 got 41 items of properties towards his share which includes plaint item No 15, 22 to 29 and Item No. 5 of Counter claim of defendant No. 4, 6, 7. He argued that as per Ex.D70, Sri NA Munivenkatappa, father of defendant no. 1 got the properties valued at Rs 1,31,981.11 annas as his share. As per Ex.D1 partition deed dated 31.03.1952, the total value of all the properties shown as 5,27,970. Thus the properties which acquired by NA Munivenkatappa under partition deed dated 27.03.1945 enhanced for 4 times when the partition was taken place in the year 1952. He argued that since the properties mentioned in Ex.D4 and 5 are the ancestral properties and the plaintiff no.1, defendant no.5 to 7 who are not the parties to this document it cannot be recognized as a partition. More than that, the plaintiffs themselves claimed the share in the plaint schedule properties. Hence these properties i.e., Item No. 19 to 29, 32, 33, 35, 36 cannot be excluded. He argued that except plaint schedule Item No. 6, 9 and 76 O.S.No. 1990/2018 17, all other plaint schedule properties and written statement schedule of defendant No. 4,6,7 are all joint family properties and the plaintiffs and defendants are all entitled equal share.
16. The learned counsel for the defendant no. 5 also argued that all the plaint schedule properties, written statement schedule properties of defendant no. 5 and defendant No. 4, 6, 7 are the joint family properties of the plaintiffs and the defendant no. 1 to 7. He argued that the defendant no. 1 purchased the properties in the name of plaintiff no. 2 and defendant No. 4 under the joint family property's nucleus as a kartha. The defendant No. 1 purchased the properties in his name as well as in the name of plaintiff no. 2 and defendant no. 4 out of joint family fund. Hence all the properties are the joint family properties and the defendant no. 5 is entitled 1/6th share in all the properties.
17. I have already noted down which are the properties fallen to the share of defendant no. 1 under registered partition deed dated 31.03.1952. Prior to proceed further, it is important to note the plaint averments in para no. III(1) and (2) of plaint. The plaintiff no. 1 who filed this 77 O.S.No. 1990/2018 plaint stated that his great grandfather late NA Munivenkatappa was successful businessman during his life time. The said A Munivenkatappa is succeeded by his son defendant no. 1 NM Annaiah. His grandfather defendant no. 1 NM Annaiah developed the ancestral properties which he inherited from his father late A Munivenkatappa by virtue of registered partition deed dated 31.03.1952 and also has acquired several other immovable properties from the nucleus of the joint family income both in his name as well as in the name of his wife defendant no. 2 Smt Janakibai @ NA Narayanamma and also in the name of defendant No. 4. In para no III(2) plaintiff pleaded that joint family consisting of afore mentioned members(genealogical tree mentioned) do own several movables and immovable properties. Though some of the properties have been acquired from the joint family nucleus, the same are purchased in the names of defendant no. 1, 2 and 4. Some of the properties have been inherited by the defendant no. 1 and 2. All the properties are described in the schedule. Plaintiff being a coparcner is in joint and constructive possession of all the joint family properties detailed in the plaint schedule. 78
O.S.No. 1990/2018 Thus on plain reading of the plaint averments, the plaintiff no. 1 himself stated in his plaint that his great grandfather Munivenkatappa was a successful businessman. His grandfather defendant no. 1 who succeeded Munivenkatappa inherited the properties mentioned in partition deed dated 31.03.1952 and continued the business and developed ancestral properties and acquired several other immovable properties from the nucleus of the joint family income in the name of defendant no.1, defendant no. 2, defendant no.4. The plaintiff no. 1 has also taken contention that he being a coparcener is in joint and constructive possession of all the joint family properties mentioned in the plaint. Now coming to the written statement contention of defendant no. 1 to 3 is concerned in para no. 3 of their written statement, they have admitted the contents of para no. III(1) and (2). They have admitted that the joint family of the parties owned several movable and immovable properties and some of the properties have been purchased in the name of defendant no. 1, 2 and 4. They have also admitted that the plaintiff no. 1 is a coparcener and he is in constructive possession of the 79 O.S.No. 1990/2018 joint family properties. In para No. 6 of the written statement, defendant no. 1 to 3 admitted that there was a family business of father of defendant No. 1 wherein defendant No. 1 was getting income. The defendant No. 1 and 2 also stated that they have not executed any will or codicil in respect of any of the suit schedule properties. However they intend that their share in all the properties shall go to defendant no. 3 and 4. Thus on plain reading of plaint averments as well as written statement contentions of defendant No. 1 to 3, one thing is very clear that they have admitted that Munivenkatappa who is the great grandfather of plaintiff No. 1 and father of the defendant no. 1 was successful businessman and defendant No.1 who inherited the ancestral properties under registered partition deed dated 31.03.1952 acquired several other immovable properties from the nuclues of joint family income. Even though the plaintiff added several other properties i.e., item No. 19 to 42, the plaintiffs have not amended the pleadings i.e., body of the plaint which indicates that even though Item No. 19 to 42 were added subsequently by way of amendment, the amendment revert back to the date of filing of the 80 O.S.No. 1990/2018 plaint.
18. The learned counsel for the defendant No. 4, 6 and 7 relied on the judgment of Hon'ble Supreme Court reported in AIR 1974 SC 471 between Nagindas Ramdas v/s Dalpatram Locharam @ Brijramand and others wherein the Hon'ble. Supreme court in para no. 26 of the judgment held that admission is true and clear are by far the best proof of the facts admitted. Admission in pleadings or judicial admission admissible U/s 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case stand on a higher footing than evidentiary admission. The former class of admissions are fully bindings on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admission which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong. He also relied on the Judgment of Hon'ble Supreme Court reported in AIR 2002 SC 3669 between Sampat Kumar V/s Ayyakunnu and another to contend that once amendment is incorporated in plaint, it relates 81 O.S.No. 1990/2018 back to the date of the suit- however court can direct in appropriate cases that it should not relate back to the date of suit. In my humble view, these principles laid down by Hon'ble Supreme Court aptly applicable to the present suit. It is not the case of the plaintiffs is that while allowing IA No. 9 and 10 under Order VI Rule 17 of CPC, this court passed any such order it should not relate back to the date of suit. In the absence of any such order passed by this court, the amendment made to the plaint with regarding to adding Item no. 19 to 42 of the plaint schedule automatically relates back to the date of filing of the suit. Since there is clear pleading on the side of the plaintiff that the defendant No. 1 who inherited the ancestral properties under registered partition deed dated 31.03.1952 and thereafter he developed the ancestral properties and out of the joint family nucleus, acquired several properties indicates that the plaintiff admitted that there is a joint family nucleus so as to acquire several properties by the defendant no. 1. Accordingly he purchased the properties in his name, in the name of his wife defendant no. 2, in the name of his son defendant no.4. Such admissions in the plaint and 82 O.S.No. 1990/2018 the written statement of defendant no. 1 to 3 are judicial admissions admissible U/s 58 of Indian Evidence Act which is not required any proof. The defendant No. 3 after passing the judgment on admission of IA No. 17, transposed himself as plaintiff no. 2.
19. Now coming to the evidence of Plaintiff No. 2/ PW1 is concerned, in his examination in chief, he has deposed that the properties divided under partition deed dated 31.03.1952 are all properties acquired from the income earned from the business of Munivenkatappa which was assisted by his 4 sons. As such, the partition dated 31.03.1952 between co-owners and partners in the business and the properties which came to his father defendant no. 1 are his self acquired properties. He has deposed that under this partition deed, the sundry debts of sum of Rs 75,181/- said to be receivable from various dealers and customers and also was saddled with obligation to repay debt of Rs27,798 payable to Munishyamappa and sons. He has deposed that it was not possible to trace the Sundry debtors and recover the money. Other properties which came to the share of his father defendant no. 1 were not yielding any income. He 83 O.S.No. 1990/2018 has deposed that his father defendant no. 1 started the business of Art silk yarn. His father's business was totally a private and independent business. He has deposed that his father purchased all the properties by his self earned income. Thus on perusal of the chief examination of PW1, he has given the evidence which is contrary to the plaint averments and written statement contentions of defendant no. 1 to 3. In the written statement of defendant No. 1 to 3, they have not stated anything about the defendant no. 1 started his fresh business of Art Silk yarn after the partition of the year 1952. If at all the defendant no. 1 is started his own business of Art Silk yarn after the year 1952, he would have stated the same in his written statement. On the contrary, the defendant no. 1 to 3 have not denied the averments made by the plaintiff in para no. III (1) wherein the plaintiff has stated that defendant no.1 developed the ancestral properties and has acquired several other immovable properties from the nucleus of the joint family income. Even though the plaintiff in his plaint para no . III(1) pleaded that his great grandfather Munivenkatappa was a successful businessman and his grandfather defendant no. 1 who 84 O.S.No. 1990/2018 inherited the ancestral properties, this averments are not denied by the defendant no. 1 to 3 in their written statement. On the other hand, the defendant no. 1 to 3 have admitted that properties have been purchased in the name of defendant no. 1, 2 and 4 out of joint family nucleus. In the absence of any such pleadings that the defendant no. 1 who started the business of Art Silk yarn for the first time after 1952 and out of his own income he purchased the properties without utilizing the joint family fund, such improved version of PW1 without there being a pleading is not acceptable. Since the oral evidence(in chief examination as well as in cross-examination) of PW1 is more than 100 pages it is not possible to highlight each and every depositions of PW1. In his cross-examination by the learned counsel for the defendant no. 4, 6 and 7 and defendant no.5, for most of the questions, he answered either that he do not remember or he do not know. The learned counsel for the defendant no.4, 6 and 7 rightly submitted that PW1 cleverly given answer in cross-examination for selective questions and by answering most of the question as either do not remember or do not know. Since the defendant no. 4, 85 O.S.No. 1990/2018 6and 7 have taken contention that plaint schedule item No. 6, 9 and 17 are their self acquired properties of defendant no. 4 and on the other hand, the plaintiffs have taken contention that these properties are ancestral and joint family properties, this court has to give finding regarding the same. Since the defendant no. 4 and 7 have taken contention that Item No. 1 to 8 of counterclaim schedule properties are the ancestral joint family properties of the plaintiffs and defendant no. 1 to 7, this court has to give finding regarding the same. Since the defendant no.5 has taken contention that all the properties standing in the name of plaintiff no. 2 and defendant no. 4 are the joint family properties, this court has to give findings on the same. Since the plaintiff has taken contention that item no. 1 and 6 of WS of Defendant No. 4 is the self acquired properties of Plaintiff No. 2, this court has to give finding regarding the same.
20. Prior to proceed further it is important to note that the defendant no. 5 in her written statement mentioned the very same items of the properties as mentioned by the defendant no. 4, 6 and 7 in their counterclaim. The item no. 1 of counterclaim of defendant No. 4,6, and 7 is 86 O.S.No. 1990/2018 mentioned as Item No. 2 of the counterclaim of defendant No. 5. Item No. 2 of the counterclaim of defendant No 4, 6 and 7 is mentioned as item no. 3 of the counter claim of defendant No. 5. Item No. 3 of counterclaim of defendant No. 4, 6 and 7 is mentioned as Item No. 4 of counterclaim of defendant no. 5. Item No. 4 of counter claim of defendant No 4, 6, and 7 is mentioned as Item No. 7 of counterclaim of defendant No.5. Item No. 5 of counter claim of defendant No 4, 6, and 7 is mentioned as Item No. 8 of counterclaim of defendant No.5. Item No. 6 of counter claim of defendant No 4, 6, and 7 is mentioned as Item No. 9 of counterclaim of defendant No.5. Thus we can consider item no. 1 to 6 of counterclaim of defendant No.4, 6 and 7 as Item No. 2, 3, 4, 7, 8, 9 of defendant No. 5 also. Three Extra properties mentioned by defendant no. 5 in counterclaim are Item No. 1 which is 50 percent share in Sampige and Savitha Theaters. The very same property is mentioned as Item No. 18 in the plaint which is already decreed by decree on admission as per order on IA No. 17. Item No. 5 of WS of defendant no. 5 is the property bearing PID No. 66-12- 05(old no.5) situated in 4th main road Madiwala Extension 87 O.S.No. 1990/2018 standing in the name of defendant no. 4. Item No. 6 is the property bearing no. 19 /8-1 4 th main road Chinamma Layout New extension Madiwala Ward No. 172.
21. Neither the plaintiffs nor the defendants have produced and documents regarding the business of defendant no.1, plaintiff no. 2 and defendant No.3. PW1 in his cross-examination admitted that he is a tax assessee. According to him, he is paying tax from the year 1970. DW2 also deposed that his father is also tax assessee. If at all PW1, plaintiff No.1 and defendant No. 4 to 7 have produced the income tax returns filed by the defendant no. 1, defendant no. 4 and plaintiff no. 2, then this court would have easily ascertained whether the defendant No.1, plaintiff no. 2, defendant no. 4 have any independent income of their own inorder to purchase the properties from their self earnings. PW1 in his evidence would take contention that whichever properties purchased in his name under sale deed are his self acquired properties. Likewise, the defendant No. 4, 6 and 7 have also taken contention that the plaint schedule properties Item No. 6, 9 and 17 are the self acquired properties of the defendant no. 4. Except the self serving 88 O.S.No. 1990/2018 statements of PW1 and DW2, no documents are produced before this court to show the actual income of plaintiff no. 2 and defendant no.4. DW1 in her examination in Chief has deposed that the defendant no. 4 and plaintiff no. 2 except the rental income of the joint family properties and income derived from the joint family properties, they have no other source of income. She has deposed that the business which carried out by the defendant no.1 also ancestral in nature. There was no other income to the joint family except income derived from the joint family properties and business. No doubt DW1 also not produced any documents to show the income of defendant No. 1, plaintiff no. 2 and defendant no. 4.
22. PW1 in his examination in chief has deposed that he is holding double graduate Bcom and Bsc. He used to earn from his young age and was assisting his father in his business. He has deposed that the properties Plaint Item No. 32, 33, 35 and 36 are all purchased by him under registered sale deed dated 8.03.1974 for Rs 4,000 Sale deed dated 14.1974 for Rs 2,000, Sale deed dated 25.03.1974 for Rs 2,000, Sale deed 25.07.1996 for Rs 89 O.S.No. 1990/2018 80,000 respectively from his hard earned money. He has deposed that he has purchased plot no. 1 Platform Road Malleshwaram i.e., item no. 6 of counterclaim of defendant no. 4 acquired by him when he was very young from his own earnings. His uncles also assisted him and money also lent by his father which was recovered from his share in the partnership firm in which he and his father and Dasamma were the partners. As such this property is also his self acquired property. He has deposed that defendant No. 4 has joined the partnership business on 1.02.1973. But he was joined the partnership firm in the year 1970. He acquired property No. 5 Beratena Agrahara Hosuru Main road from his self earned money of Rs 17,000 under registered sale deed dated 15.04.1974. He has gifted this counterclaim Item No. 1 property in favour of the plaintiff no. 1. Even though PW1 has taken such contention that the written statement schedule properties of defendant no. 4, 6, 7 are his self acquired properties, inorder to substantiate this contention, he has not produced any documents. Plaintiffs have not produced the balance sheet of the partnership firm to show the actual profit made by the 90 O.S.No. 1990/2018 partnership firm and actual share in profit given to the PW1. Even though PW1 has deposed that he had worked as a manager in Ennem Polpax company from 1972 to 1976 and drawing salary of Rs 1,000 per month. In order to substantiate these contentions taken in WS, he has not produced any documents. In the written statement of defendant no. 1 to 3, no such contentions are taken that PW1 joined the partnership firm in the year 1970 and he had income from partnership firm. If at all PW1 had such share of profit from the partnership firm, he should have produced the profit and loss account and balance sheet of the partnership firm inorder to show the actual profit earned from the partnership firm. PW1 in his examination not even got marked single documents except documents Ex.P1 to 15 marked during the course of cross-examination of DW1 and 2, no other documents are produced by the plaintiffs. Whenever any suit filed by the plaintiffs, it is mandatory on the part of the plaintiffs to produce atleast recent revenue documents. The provision U /s 133 of Karnataka Land Revenue Act is very clear which mandates to produce recent revenue documents. Even though the suit properties situated withing the 91 O.S.No. 1990/2018 jurisdiction of BBMP, the BBMP records should be produced before the court. But the plaintiffs have not produced any such revenue documents and no documents are marked in the chief examination of PW1. PW1 has deposed that plaint schedule Item No. 6 purchased in the name of defendant no. 4 under registered sale deed dated 27.07.1972 as per Ex.D26. He has deposed that in Ex.D26 itself it is mentioned that consideration amount of Rs 20,000 was paid in the presence of defendant No. 1 Annayaiah for defendant no.
4. Hence it is clear that Item No. 6 of plaint schedule is not the absolute property of defendant no. 4. It is the property of partnership firm NM Anniah and company comprising of defendant no. 1 Anniah his sister, Smt Dasamma and himself. He has deposed that defendant no 1 was managing this property through defendant no. 4 and in all the returns to the income tax department, this property has been shown as property belongs to NM Anniaiah HUF. He has deposed that item no. 9 of plaint schedule was allotted to Smt. Dasamma as she has lost her site in Koramangala First block which was purchased in her name by partnership firm NM Annaiah and 92 O.S.No. 1990/2018 company. At the time of execution fo sale deed dated 9.09.2002, she was aged about 85 years and she was represented in that sale deed by defendant no.4. Sale deed marked at Ex.D34. Since Dasamma passed away within a year and as in view of BDA norms, building has to be build within 10 years from the date of allotment, it was decided to get khataha of the property in favour of defendant No. 2. inorder to facilitate to avail loan from bank and financial institution and to put up a structure on the said property. Consequently Ex.D55 gift deed dated 5.04.2012 was executed by second defendant in favour of fourth defendant. PW 1 has deposed that Item No. 17 of plaint schedule property purchased from the earnings of the business of the partnership firm Ms. NM Anniah and company. Hence this property is liable to divide equally between him and his brother defendant no. 4. PW1 has deposed that Plaint schedule Item No. 37, 38, 40 are found to be non existent after the death of defendant No. 1 and 2. The movable properties Item No. 39 is in possession of defendant no. 4. Item No. 42 have already been distributed by defendant no.2. The property situated at Jayanagara has been self acquired property of 93 O.S.No. 1990/2018 defendant no. 1 which purchased under registered sale deed dated 28.10.1970. This property gifted in favour of plaintiff no. 2. He states that the property situated at Madiwala is self acquired property of defendant no. 1 who purchased the same under sale deed dated 4.05.1966 for sum of Rs. 3,000. Defendant No.1 gifted the same to him under gift deed dated 7.07.2004 as per Ex.D25. He has deposed that counterclaim schedule Item No. 1 of defendant No. 5 in which none of grandchildren, defendant no. 5, 6 and 7 and plaintiff no. 1 get any share. He has deposed that from his young age, he learned the shares and stock trading and doing independent trading from the year 1970 itself. He made profit in shares and stocks. Two gift deeds dated 5.03.2004 and 7.07.2004 as per Ex.D21 and Ex.D8 were inorder to compensate him for his excess contribution to the family. Hence he prayed to decree the suit only with respect to the plaint schedule properties excluding Item No. 32, 33, 35 and 36.
23. Since the main dispute is with respect to the plaint schedule item No.6, 9 and 17 and the counter claim schedule item No.1 to 6, it has to be noted under which instruments these properties purchased. The item No.1 of 94 O.S.No. 1990/2018 the couther claim schedule property purchased in the name of plaintiff No.2. This property purchased under the registered sale deed dated 15.04.1974. Item No.2 of the counter claim schedule property purchased in the name of defendant No.1 under the registered sale deed dated 28.10.1970. Item No.3 of counter claim schedule property purchased in the name of defendant No.1 under the registered sale deed dated 04.05.1966. Item No.4 of the counter claim schedule property purchased under the registered sale deed dated 04.02.1968 in the name of defendant No.1. Item No.5 of counter claim schedule property, which was fallen to the share of defendant No.1 under the partition deed dated 31.03.1952. Item No.6 of the counter claim schedule property was purchased in the name of plaintiff No.2 under the registered sale deed dated 23.10.1970. Item No.6 of the plaint schedule property purchased in the name of defendant No.4. Item No.9 of written statement schedule property granted by the Bangalore Development Authority in the name of defendant No.2. Item No.17 of the plaintiff schedule property purchased in the name of defendant No.4 under the registered sale deed. The plaintiff No.2 would contend 95 O.S.No. 1990/2018 that item No.1 and 6 of the counter claim schedule property of defendant No.4, 6 & 7 are his self acquired properties and he further contended that the item No.2 to 5 of the counter claim schedule property are the self acquired properties of the defendant No.1 which are all gifted. Out of which 2 properties gifted in name of plaintiff No.1, one property gifted in the name of plaintiff No.2 and one property gifted in the name of defendant No.5. In the present suit the defendant No.5 would contended that she is ready to give back the property in item No.5 as it is a joint family properties.
24. The learned counsel for the defendant No.5 argued that all the properties which are standing in the name of defendant No.1, defendant No.2, plaintiff No.2 and defendant No.4 are all joint family properties. He argued that since the defendant No.1 got the properties under the registered partition deed dated 31.03.1952 and also continuing business fallen to his share, out of joint family properties and continued the business, he has purchased the properties in his name in the name of defendant No.2, in the name of plaintiff No.2 and defendant No.4 96 O.S.No. 1990/2018 Hence, all these properties are joint family properties. The learned counsel for the defendant No.5 relied upon several judgments. He relied on the judgment of Hon'ble Supreme court reported in (1965) AIR SC 289 (K.V.NARAYANASSMI IYER VS. K.V. RAMAKRISHNA IYER AND OTHERS) to contend that when the joint family having sufficient nucleus to acquire the property, the property in the name of any member should be presumed to have been acquired from the funds of joint family. He relied upon the judgment of Hon'ble Supreme Court reported in AIR 1972 SC 2531 (BAIKUNTHA NATH PARAMNIK (DEAD) BY HIS LRS AND HEIRS VS. SASHI BHUSAN PARAMANIK), to contend that when there is joint family property, then the burden of proof as regards jointness or self acquisition upon the person who asserts that it is a joint family property. Proof of the existence of a joint family does not lead to the presumption that the property held by members of the family is in joint. IN a case where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question 97 O.S.No. 1990/2018 might have been acquired, the burden shifts to party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of joint family property. He relied upon the ruling of the Hon'ble Supreme Court reported in AIR 1966 SC 411 Achuthan Nair vs. Chinnamu Amma and others to contend that under Hindu Law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law rises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law. Appalaswamy vs Suryanarayanamurti AIR 1947 P 189 Babubhai Girdharlal vs Ujamlal Hargovandas AIR 1937 Bom Dattatraya Vs Mohan WP No. 8821/2013 d/d 30/9/2014 Bombay High Court (Aurangabad bench) Coparcenary distinction with Joint Hindu family. He relied upon the judgment reported in AIR 1970 SC 98 O.S.No. 1990/2018 14 N.V.Narendranath vs CWT to contend that, A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the Hindu joint family; it includes only those persons who acquire by birth an interest in the joint or coparcenery property, these being sons, grandsons and great- grandsons of the holders of the joint family property for the time being, Property acquired during the jointness of the family Existence of joint Hindu Family being not disputed, the property acquired during the jointness of the family is the property of Joint Hindu Family and belonged to all the members of the family. He relied on the judgement between Ramchandra Dubey and another vs. Dy. Director of Consolidation & others AIR 1978 All 157 No presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business to contend that It is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. 99
O.S.No. 1990/2018 Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. The question therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as a family business is a question of fact and has to be proved by evidence. Nadir Ali & ors vs Jt. Director of Consolidation Sultanpur (2016) 3 ADJ 615. He relied upon the ruling reported in Ramesh Verma (D) through LRS vs Lajesh Saxena 2017 AIR SC 494 =(2017) 3 SCC 257 to contend that Hindu Succession Act - Sec. 6 deals with the question of coparcener in a Mitakshara coparcener dying after coming into operation of the Hindu succession Act, without making any testamentary disposition of his undivided share in the joint family property. The initial part of Sec. 6 stresses that the Act does not interfere with the special rights of those who are members of Mitakshara property except to the extent that it seeks to ensure the female heirs as specified in Class-I of schedule, a share in the interest of a coparcener in the 100 O.S.No. 1990/2018 event of his death by introducing the concept of notional partition immediately before his death. Proviso to Sec. 6 operates where the deceased has left surviving him, a daughter or any female as specified in Class I of the schedule. He relied upon the ruling reported in AIR 1997 SC 1333 - Sher Singh and others vs Gamdoor Singh to contend that to contend that Hindu law - coparcenary property existence of joint family not disputed property held by family assumes character of coparcenary property finding of court that every member of family was entitled to 1/6th share in property - Proper. He relied upon the ruling reported in AIR 1992 AP 270 - Purna Bai and others vs Rachhoddas and others Hindu Law - joint family - self acquired property of member - proof members doing family business - properties purchased in the name of members - plea that properties were purchased by each member from his self-earnings sale deeds and witnesses to prove purchase from self-earning however not produced by members - held, properties were joint family properties. He relied upon the ruling reported in AIR 2003 SC 1880 - Madanlal (dead) by LRs and others vs Yoga Bai (dead) by LRS to 101 O.S.No. 1990/2018 contend that Hindu Law partition - property in question raised and developed by joint efforts of father and his sons - it is joint family property - amenable for partition among father and his sons. Hindu Law Joint family - existence of property is not a necessary incident. He relied upon the ruling reported in AIR 1926 Madras 273 Janakiram Chetty vs G.C.Nagamony Mudaliar Hindu Law -- partition possession of property is not necessary to decide status. He relied upon the ruling reported in AIR 1969 SC 1330 Ram (dead) by LRs - State Bank of India vs Ghamandi to contend that The incidents of coparcenership under the Mitakshara law are-(1) the lineal male descendants of a person upto the third generation, acquire on birth ownership in the ancestral properties of such person;(2) Such descendants can at any time work out their rights by asking for partition;(3) till partition, each member has got ownership extending over the entire property, conjointly with the rest;(4) as a result of such co-ownership the possession and enjoyment of the properties is common;(5) no alienation of the property is possible unless it be for necessity without the concurrence of the coparceners; and (6) the 102 O.S.No. 1990/2018 interest of a deceased member lapses on his death to the survivors. He relied upon the ruling reported in AIR 1954 SC 379 Srinivas Krishnarao Kango vs Narayan Devjoi Kango & others to contend that Hindu Law - joint family - self-acquisition existence of joint family property - burden of proof - proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. - Important thing to consider is the income which the nucleus yields. He relied upon the ruling reported in AIR 1988 Cal 375 Girindra Nath Mukherjee & others vs Soumen Mukherjee & others to contend that Benami property purchased in name of minor sons by father - minors have no means to acquire properties at 103 O.S.No. 1990/2018 relevant time consideration money proved to be paid by father - sons sere not intended to be real owners of properties the contrary father himself asserting his title and possession held properties could be presumed to be acquired by father for his own benefit and transactions were benami transaction doctrine of advancement not applicable.
25. On the other hand, the learned counsel for the plaintiff argued that what is the ancestral property is clearly described, defined, and explained by the Division Bench of Hon'ble High Court in 2009 (2) KCCR 1206 (DB) (SRI.K.MADHAVA RAJA NAYAK VS. SRI. K. SRIDHARA NAYAK AND OTHERS), wherein the Hon'ble High Court vide para 16 and 17, it is held that co- parcenary properties means and includes (1) ancestral property (2) acquisition made by the coparcenrs with the help of ancestral property (3) joint acquisitions of the coparceners even without such help provided, there was no proof of intention on their part that the property should not be treated as joint family property and (4) separate property of the coparceners thrown into common stock. The term ancestral property is arising in 104 O.S.No. 1990/2018 Hindu law. That means only such property as is inherited by a male from father, father's father and father's father's father and such inheritor's son, son's son and son's son's son get an interest in it by birth. Hence, unless there is a nucleus of ancestral property with the aid of which the acquisitions are made, the acquisitions cannot be included within the concept of coparcenary property available fro partition between the members of the joint family. The coparcenary property is the property held by a coparcenary absolutely and free of all claims from the rest of the coparceners which is known as separate or self acquired property. He has relied upon the judgment of Hon'ble Supreme court which is reported in 2016 4 SCC PG 68 (UTTAM VS. SAUBHAG SINGH AND OTHERS) and submitted that in this case the Hon'ble Supreme Court held that, some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. 105
O.S.No. 1990/2018 Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand, (2006) 8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:-
(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the 106 O.S.No. 1990/2018 coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
26. (iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.
27. (v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.
28. (vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.
29. He relied on the judgment of Hon'ble Supreme Court in CIVIL APPEAL No.5401/2025 (ANGADI CHANDRANNA VS. SHANKAR & OTHERS), wherein in para 17 of the judgment it is held that, it cannot be disputed that the properties divided among Defendant No.1 and his brothers through partition deed dated 09.05.1986, are joint family properties. However, as per 107 O.S.No. 1990/2018 Hindu law, after partition, each party gets a separate and distinct share and this share becomes their self-acquired property and they have absolute rights over it and they can sell, transfer, or bequeath it as they wish. Accordingly, the properties bequeathed through partition, become the self-acquired properties of the respective sharers. By relying on these citations, the learned counsel for the plaintiff argued that the properties which fallen to the share of defendant No.1 under the partition deed dated 31.05.1952 becomes separate / self acquired properties and the plaintiffs, defendants No.2 to 7 are not having any share in the properties fallen to the share of defendant No.1. He further argued that all the acquisition made by the defendant No.1 subsequent to the partition of the year 1952 is his self acquired property and separate property.
30. On the other hand the learned counsel for the defendants No.4, 6 & 7 argued that, the properties which were fallen to the share of defendants under the registered partition deed dated 31.03.1952 was also shown in the partition deed dated 27.03.1945 marked at Ex.D70 which was fallen to the share of Munivenkatappa, 108 O.S.No. 1990/2018 who is the father of the defendant No.1. he argued that under Ex.D70 partition deed dated 27.03.1945 Munivenkatappa father of the defendant No.1 got 41 items of properties towards his share which included the plaint schedule item No.15, 22 to 29 and item No.5 of counter claim schedule property of defendants No.4, 6 &
7. He submitted that under Ex.D70 the land in Sy.No.50/A, 50/B, 50/C, 50/D measuring 24 acres of land and also in Sy.No.50/1, 50/2, 50/3 measuring 12 acres of Kushki land totally 36 acres of land fallen to the share of Munivenkatappa. Apart from this he also received garden land bearing Sy.No.67/4, measuring 28 guntas of land and Sy.No.67/6 measuring 25 guntas of land situated at Baluvanahalli village in which 200 coconut fruit yield trees. In addition to this he also got residential premises, non-residential properties which were yielding large rental income. He argued that after division on 27.03.1945 Munivenkatappa along with his four sons including defendant No.1 continued the family business and acquired large number of properties and at the time of partition dated 31.03.1952 the properties enhanced four times. Under partition deed dated 31.03.1952 vide 109 O.S.No. 1990/2018 Ex.D1 out of total property worth Rs.5,27,970/-, property worth Rs.1,05,594/- fallen to the share of defendant No.1. The defendant No.1 also continued the business. Hence, out of properties fallen to his share and the business he was able to acquired the properties after 1952. He argued that the plaintiff in the plaint itself has stated that his great grand father Munivenkatappa was successful businessman which continued by defendant No.1 and the defendant No.1 who succeeded the properties under the partition deed dated 31.03.1952 acquired several properties in his name, in the name of defendant No.2 and defendant No.4. The very admission given by the plaintiff in the plaint as well as in the written statement of the defendants No.1 to 3 is sufficient to hold that the defendant No.1 has purchased the properties in his name and in the name of defendant No.2 in the name of plaintiff No.2 by using joint family property funds. Hence, it cannot be held that the properties which were given to the share of defendant No.1 under the registered partition deed dated 31.03.1952 is his separate properties.
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31. The learned counsel for the defendants No.4, 6 & 7 relied on the recent judgment of Hon'ble Superme Court decided on 05.02.2026 in CIVIL APPEAL No.2129-2130 / 2012 DECIDED ON 05.02.2026 (DORAIRAJ VS. DORAISAMY (DEAD) THROUGH LRS AND OTHERs) and submitted that facts of this suit and cited decisions are similar and in this judgment the Hon'ble Supreme Court upheld the judgment of Hon'ble High Court and dismissed the Civil appeal. He relied on the judgment of Hon'ble High Court of Karnataka in RFA No.1905 / 2005 decided on 09.12.2020 (C.N. LEELVATHI VS. M.NARAYANAPPA AND OTHERS).
32. The learned counsel for the defendants No.4, 6 & 7 relied on the judgment of Hon'ble Supreme Court reported in 2020(9) SCC-1 (VINEETA SHARMA VS. RAKESH SHARMA AND OTHERS) and submitted that the daughters are became coparceners by birth. He relied on the judgment of Hon'ble Supreme Court in CIVIL APPEAL No.3159 - 3160 /2019 (NEELAM GUPTA VS. RAJENDRA KUMAR). He also relied on same judgment relied by the learned counsel for the defendant No.5 reported in AIR AIR 1954 SC 379 (SRINIVASA KRISHNA 111 O.S.No. 1990/2018 RAO KANGO VS.NARAYAN DEVJI KANGO) and submitted that since there is a property allotted to the defendant No.1 under the partition of the year 1952 and these properties and business which he continued was enable him to acquire the properties it shall be presumed that all the properties which purchased by the defendant No.1 in his name in the name of his wife, defendant No.2, in the name of plaintiff No.2 should be considered as joint family properties.
33. I have appreciated rival contentions. I have already mentioned what are all properties fallen to the share of defendant No.1 under the registered partition deed dated 31.03.1952. DW2 in his further examination in-chief by producing the documents given his further evidence. DW 2 has deposed that huge number of properties such as agricultural, house property and movable properties came to the share of his great grand father Munivenkatappa under the registered partition deed dated 27.03.1945. He has deposed that under partition deed dated 27.03.1945 between Munivenkatappa and his brother's son N.M.Muniswamappa they divided the 112 O.S.No. 1990/2018 properties between them and in that partition his great grand father Munivenkatappa got his share about 41 items of the properties including item No.5 of counter claim schedule, item No.15 of the plaint schedule, Sy.No.50/A, 50/B, 50/C, 50/D, measuring 24 acres of land and also Sy.No.50/1, 50/2, 50/3 measuring 12 acres kushki land, totally measuring 36 acres of Kushki land besides other properties. In addition, his great grand father also got sy.No.67/4, measuring 28 guntas of land, Sy.No.67/6 measuring 25 guntas of land situated at Belavana village, in which there were 200 coconut fruit yielding trees. Total value of the properties fallen to the share of Munivenkatappa was Rs.1,31,981.11 anas. In order to substantiate this contention he has produced and got marked Ex.D70 certified copy of registered partition deed dated 27.03.1945. Ex.P70(a0 is the typed copy of Ex.D70.
34. During the course of cross examination of DW 2 by the learned counsel for the plaintiff DW 2 has denied the suggestion that Ex.D70 is the concocted document. It is pertinent to note that the document Ex.D70 is the 113 O.S.No. 1990/2018 certified copy of the partition deed dated 27.03.1945 is 30 years old document and it has evidentiary value u/S.90 of Indian Evidence Act. DW2 has deposed that the defendant No.1 under Ex.D1 got 8 properties towards his share which include item no.15, 23 to 29of plaint schedule and item No.5 of counter claim schedule property. But PW 1 has falsely contended that his great grand father Munivenktappa did not receive any properties as ancestral properties. DW 2 has deposed that the plaint schedule item No.23 to 29 were came to be granted in favour of N.A.Muniswamappa (son of N.A.Munishamappa elder brother son of his great grand father N.A.Munivenkatappa) which are also joint family properties. The same properties came to be allotted to the share of great grand father N.A.Munivenkatappa under the registered partition deed dated 27.03.1945. he has also produced original grant certificate dated 14.04.1938 which is marked at Ex.D72. DW 2 has produced original valuation certificate dated 20.08.1970, which is marked at Ex.D73 and also produced certified copy of the record of rights of the year 1970, which is marked at Ex.D74, certified copy of the record of rights of 114 O.S.No. 1990/2018 the year 1976 marked at Ex.D75,certified copy of index of the land of the year 1970, which is marked at Ex.D76. The certified copy of the record of rights of the year 1970 which is marked at Ex.D77. DW 2 also produced and got marked the documents Ex.D78 to D84 RTC of the year 1965-66 to 1969-70. Even though the plaintiff during the course of cross examination of DW 2 would contend that all these documents are created and concocted documents in order to substantiate such contentions, the plaintiffs have not produced any counter documents. All these documents marked at Ex.D70 to D84 are 30 years old documents which are having evidential value. The oral evidence of DW2, which is supported by the documents Ex.D70 to 84 is sufficient to hold that under the partition of the year 1952 as per Ex.D1, the defendant No.1 got ancestral properties as his share. The plaintiff in his plaint itself stated that his great grand father Munivenktappa was successful businessman during his life time and his grand father defendant No.1 N.M.Annaiah succeeded the properties of Munivenkatappa and developed the ancestral properties inherited from Munivenkatappa by virtue of the partition 115 O.S.No. 1990/2018 deed dated 31.032.1952 and thereafter the defendant No.1 acquired several immovable properties from nucleus joint family income. When there is a specific pleadings on the side of the plaintiff as well as defendants No.1 to 3 that the defendant No.1 N.M.Annaiah who had inherited the properties from his father Munivenkatappa and he had developed the properties and business and acquired immovable properties from the nucleus of joint family income, no other proof is required to say that the defendant No.1 after 1952 partition started to purchase the properties out of ancestral properties income and also from by developing the business inherited from his father Munivenkatappa. I have gone through the decisions cited by the learned counsel for the plaintiff reported in 2016 4 SCC PG 68 (UTTAM VS. SAUBHAG SINGH AND OTHERS) and judgment of Hon'ble High Court of Karnataka reported in 2009 (2) KCCR 1206 (DB) (SRI.K.MADHAVA RAJA NAYAK VS. SRI. K. SRIDHARA NAYAK AND OTHERS). There is no dispute regarding principles laid down by the Hon'ble Supreme Court and Hon'ble High Court in these cited decisions. But in the present suit the plaintiff as well as defendants No.1 to 3 116 O.S.No. 1990/2018 themselves admitted in the pleadings that the defendant No.1 who had succeeded the ancestral properties from his father's development including business development and purchased the immovable property from nucleus of joint family income, in his name and in the name of his wife defendant No.2, in the name of defendant No.4, no other proof is required. More than that when we compared the documents Ex.D70 to D84 with Ex.D1 partition deed, one thing is very clear that the defendant No.1 inherited the ancestral properties which were fallen to the share of his father under the registered partition deed dated 27.03.1945. The plaintiff No.1, defendant No.5, defendants No.6 & 7 who are the grand children of defendant No.1 are the third generation. Hence, in view of the judgment of Hon'ble Supreme Court in VINEET SHARMA's case the defendant No.5 acquired right over the ancestral properties by birth. Likewise, the plaintiff No.1, defendants No.6 & 7 are also acquired their rights by birth. Since there is no documents on the side of the plaintiff to substantiate that other than joint family income the defendant No.1 had other income of his own, it has to be presumed that the properties are purchased 117 O.S.No. 1990/2018 by the defendant No.1 in his name, in the name of his wife and in the name of plaintiff No.2 and defendant No.4 are all joint family properties
35. The defendants No.4, 6 & 7 as well as defendant No.5 have taken contention that the written statement schedule item No.1 property is the joint family property which purchased in the name of plaintiff No.2 by the defendant No.1 by using joint family funds. The documents Ex.D22 certified copy of the sale deed is marked which would go to show that this property item No.1 of written statement schedule purchased on 15.04.1974. PW 1 in his examination in-chief has deposed that this property item No.1 was purchased by him from his self earned money of Rs.17,000/-. In the written statement of the defendants No.1 to 3 they have taken contention that the defendant No.3 is qualified well-educated person and during his young days, he was working as Manager of the company and he was drawing salary of Rs.1,000/- p.m. during those days. He was working as Manager in Ennem Polpax company from 1972 to 1976. Out of his own income he had purchased 118 O.S.No. 1990/2018 this property. The learned counsel for the defendant No.5 argued that at the time when this item No.1 was purchased plaintiff No.2 was aged 19 years 5 months. At that relevant point of time, the plaintiff No.2 did not had any source of income to purchase the property. This property was purchased in the name of plaintiff No.2 by using joint family income. The learned counsel for the defendant No.4, 6 & 6 submitted that at the time of purchasing item No.1 of written statement schedule property the plaintiff No.2 was hardly 22 years and he was student and he had no source of income of his own. In this suit, even though the plaintiff No.2 has taken such contention that he was working as Manager in Ennem Polpax company and he had his independent source of income, he has not produced any documents. PW 1 has claimed that he is Income Tax assessee. If at all he was income tax assessee he should have produced income tax returns statement. Even though the plaintiff No.1 has taken contention that he had joint partnership firm in the year 1970 itself and getting the share in the property,in order to substantiate this contention also he has not produced any documents. Admittedly, the plaintiffs and 119 O.S.No. 1990/2018 defendants No.1 to 7 living together in the same house till 2006-07. PW 1 in his cross examination admitted the suggestion that during the year 2006-07 all of them the plaintiffs and defendants No.1 to 7 were residing in the plaint schedule item No.1. They were not divided any properties till the year 2015. When the plaintiffs and defendants No.1 to 7 were living together in the same house and messing in common kitchen it cannot be held that the plaintiff No.2 and defendant No.4 are having their separate income so as to purchase the properties of their own. If at all the plaintiff No.2 and defendant No.4 had any such separate income they should have produced the bank statement to show that they were getting separate income. But in this suit absolutely there is no documents to show that the plaintiff No.2 had his separate income so as to purchase the counter claim schedule item No.1 of the defendants No.4, 6 & 7. Hence, it has to be held that the counter claim schedule item No.1 property of the written statement of defendants No.4, 6 & 7 is the joint family property.
36. The counter claim schedule item No.2 of the property purchased by the defendant No.1 under 120 O.S.No. 1990/2018 registered sale deed dated 28.10.1970. In this regard document Ex.D20 certified copy of the sale deed is marked. PW 1 has deposed that this property purchased by his father from self earned income. On the other hand DW1 and 2 have stated that it was purchased out of joint family income. As I already noted that the defendant No.1 who had inherited the ancestral property and the business started to purchase the properties in 1956 onwards. There is no documents on the side of the plaintiffs to show that the defendant No.1 had his own income other than the income from the ancestral properties and the business which he was continued after partition. Hence, it can be held that the suit schedule item No.2 also joint family property purchased by the defendant No.1 out of joint family funds.
37. The counter claim schedule item No.3 was purchased by the defendant No.1 under registered sale deed dated 04.05.1966. In this regard document Ex.D23 is marked in the cross examination of DW 1. The counter claim item No.4 property purchased by the defendant No.1 under the registered sale deed dated 04.02.1968. 121
O.S.No. 1990/2018 This property in item No.4 was given to defendant No.1 under the sale certificate dated 04.02.1968 executed by Yelahanka Town Municipal counsel, Bengaluru. Absolutely there is no document produced by the plaintiffs to show that the defendant No.1 had any other income other than the income from the ancestral properties and from the business which he continued from his father and from the ancestral joint family funds. As I already observed that in the plaint as well as in the written statement of defendants No.1 to 3 they themselves stated that the defendant No.1 who had succeeded ancestral properties and business developed the same and purchased several properties in his name, in the name of his wife and in the name of defendant No.4. Under such circumstances, without there being any evidence on the side of the plaintiffs to show that there was any independent income of defendant No.1 other than the income from the properties inherited by the ancestors the defendant No.1 and he had any independent source of income, it cannot be held that the counter claim schedule item No.3 and 4 are the self acquired properties of the defendant No.1.
38. With regarding to counter claim, schedule item No.5 122 O.S.No. 1990/2018 of defendants No.4, 6 & 7 is concerned this property was fallen to the share of defendant No.1 under the registered partition deed dated 31.03.1952. This court already observed that this property originally belongs to father of the defendant No.1. In this regard DW 2 has got marked document Ex.D70. Hence it can be held that item No.5 of counter claim of D4,6,7 is the ancestral and joint family property.
39. In this suit, on the side of the plaintiffs in examination in chief of PW1, no documents are marked. During the course of cross-examination of DW1 and 2, 15 documents are marked on the side of the plaintiffs. Ex.P 1 is the notarized attested true copy of death certificate of NM Anniah who died of 1.11.2020. There is no dispute regarding death of defendant no. 1. Ex.P2 is the portion of WS filed by defendant no. 1 to 3 which confronted to DW1. Ex.P3 is the certified copy of orders passed on IA No. 3 in OS No. 1927/2021 to show that the plaint filed by DW1/defendant no. 5 came to be rejected under Order VII Rule 11 of CPC. Ex.P4 is the certified copy of plaint in OS No. 5958/2022 filed by the present defendant No. 5/DW1 against the present plaintiffs seeking partition with 123 O.S.No. 1990/2018 respect to the properties on which decree on admission is passed in this suit. Ex.P5 is the certified copy of orders passed on IA No. 1, 2 and 5 in OS No. 5958/2022 by learned 39th Addl City Civil Judge(CCH 39) Bangalore wherein by allowing IA No. 5 filed under Order VII Rule 11 CPC plaint came to be rejected on the ground that there is no cause of action to file the second suit for partition when there is a comprehensive suit in OS No. 1990/2018(present suit) is pending. Ex.P6 are 9 photographs with regarding to jewels. Ex.P7 is reply notice dated 12.12.2022 issued by DW1 to the SHO of Chanarayapatna Police Station. Ex.P8 is the certified copy of order sheet in CC No. 2652/20223. Ex.P9 is the certified copy of FIR in Crime No. 80/2021 registered by Devanahalli Police against the DW1 based on the first FIS lodged by the plaintiff no. 2. Ex.P10 is the certified copy of chargesheet filed against DW1. Ex.P11 is the certified copy of WS filed in OS No. 4858/2022 in suit filed before CCH-6 Bangalore. Ex.P12 is the certified copy of plaint in OS No. 4858/2022 filed by plaintiff no. 2 and his wife against defendant no. 5 and 2 others. Ex.P13 is the certified copy of IA No. 1 filed in OS No. 4858/2022. 124
O.S.No. 1990/2018 Ex.P14 is the certified copy of Memo filed in OS No. 4858/2022. Since all these documents Ex.P1 to Ex.P14 are admitted by DW1 in her cross-examination, hence these documents are marked. Ex.P15 is the copy of partnership deed marked in the cross-examination of DW2 but DW2 has deposed that this document is incomplete document. Thus on perusal of the documents marked on the side of the plaintiffs, none of the documents are helpful to the plaintiffs to say that written statement schedule properties are self acquired properties of defendant no. 1 and plaintiff no. 2. There is absolutely no documents on the side of the plaintiffs to show the plaintiff no. 2 had his separate income so as to purchase the properties in his name.
40. PW1 has deposed that counterclaim Item No. 6 of the property is his separate property as he acquired the same when he was very young from his own earnings and the money received from his uncle for assisting them in their shares and stocks trading business and the money lent to him by his father which was recovered from his share in the partnership firm. Inorder to substantiate such contention taken by PW1, he has not 125 O.S.No. 1990/2018 produced any documents. DW2 in his examination in chief has deposed that Item No. 6 of his counterclaim Schedule was purchased under registered sale deed dated 23.10.1970. He has deposed that defendant no. 1 purchased this property in the name of plaintiff no. 2. At the time of purchase of this property, plaintiff no. 2 was a minor and he had no source of income at all. This property came to be purchased by the defendant no. 1 as a kartha of Hindu undivided joint family out of nucleus of joint family income. Ex.D56 certified copy of the sale deed is marked through DW2. The learned counsel for the plaintiffs vehemently argued that since this property in item No. 6 already acquired for road, it is not in existence and it cannot be divided. He relied on the judgment of Hon'ble Apex Court on special Reference No. 1/1974 reported in AIR 1974 SC Pg No. 1682. He submitted that at Pg No. 1686, para No. 15 at 8th line, it is held that "The Maxim of law impotentia excusat legem is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotencia excusat legem is that when there is a necessary of invincible disability to perform the mandatory part of the law that impotentia 126 O.S.No. 1990/2018 excuses. The law does not compel one to do that which one cannot possibly perform. "where the law create a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him." He argued that this court cannot partition Item No. 6 of counter-claim Schedule property as same is non existent. But the learned counsel for defendant No. 5 and counsel for defendant No. 4, 6 and 7 argued that at the time of execution of this sale deed dated 23.10.1970, the plaintiff no. 1 was aged about 17 years. He was minor. The first advance amount of Rs 20,000 was paid on 6.08.1965 to purchase this property and second advance of Rs 49,311 was paid on 30.01.1967. At the time of payment of first advance, plaintiff no. 2 was 13 years of age and at the time of payment of second advance, plaintiff no. 2 was aged 15 years. That itself shows the entire sale consideration amount was paid by defendant no. 1. There is some force in the arguments of the learned counsels for defendant no. 4 to 7. It is not in dispute that plaintiff no. 1 was born of 15.11.1952. As on the payment of first advance on 6.08.1965, he was aged 13 years. As on 127 O.S.No. 1990/2018 payment of second advance on 30.01.1967, he was aged 15 years. Even as on the registration of sale deed on 23.10.1970, he was aged 17 years and 11 months. He was minor. The contention of the plaintiff no. 2 is that he started to earn in his young age is not believable. Plaintiff no. 2 holding 2 graduation i.e., BCom and Bsc by attending regular classes. Under such circumstances, it is very difficult to believe the version of plaintiff no. 2 that he had his own income during his minority. There is clear mention in the sale deed Ex.D56 regarding consideration amount passed from defendant no. 1. The defendant No. 1 who was the kartha of the family developed the properties succeeded by his father and purchased several properties in his name, in the name of defendant no.2 as per the own plaint averments of the plaintiff. Under such circumstances, it can be held that the counterclaim item no. 6 of defendant no. 4, 6 and 7 was acquired by the defendant no. 1 out of joint family fund. I have gone through the decision cited by the learned counsel for the plaintiff reported in AIR 1974 SC 1682. In my humble view, this cited decision can be distinguished on facts. Even though it is admitted fact that the property Item No. 128 O.S.No. 1990/2018 6 of counterclaim already acquired by the BBMP and the amount already deposited, since inorder to deposit such amount, the main base is the immovable property,hence this court can divide the compensation amount. It is pertinent to note that the plaintiff no. 1 and 2 have already received 1/6th share in the deposited compensation amount. It at all this compensation amount exclusively belongs to plaintiff no. 2, what made the plaintiff no. 1 to claim 1/6th share in the compensation amount is not made known. The plaintiff no. 1 who initiated this suit in the plaint claimed one sixth share in the plaint schedule properties. The oral evidence of DW1, DW2 and document Ex.D56, copy of sale deed would go to show that the counterclaim item no. 6 is the joint family property of the plaintiffs and defendant no. 4 to 7.
41. The learned counsel for the plaintiffs much argued that the plaintiff no. 1 added plaint schedule Item No. 19 to 29 because with hope that the matter would amicably settle. He argued that since there is a partition deed as per Ex.D4 and Ex.D5 which are duly acted upon, these properties item no. 19 to 29 are not available for partition. The learned counsel for the defendant no. 5 as 129 O.S.No. 1990/2018 well as the defendant No. 4, 6 and 7 have submitted that Plaint Item No. 19 to 29 are the subject matter of the partition deed dated 31.03.1952 which are the ancestral property of defendant no. 1. The learned counsel for defendant no. 4, 6 and 7 submitted that when the defendant no. 4 moved IA No 24 under Oder XII Rule 6 seeking to pass preliminary decree for partition and seperate possession of these Item No. 19 to 29 of the plaint schedule properties, on the basis of registered partition deeds dated 15.10.2015, the defendant no.3 (now transposed as plaintiff no. 2 filed detained objection by contending that both partition deeds dated 15.10.2015 cannot be construed as undisputed documents. It is contended that these partition deeds are incomplete documents and they have not been completely acted upon. Hence by considering the objection of the defendant No. 3, now transposed as plaintiff no. 2, this court was pleased to reject IA No. 24. There is some force in the arguments of the learned counsel for defendant no. 4, 6 and 7. This court already passed orders on IA No. 24 as per order dated 29.05.2023 and IA No. 24 came to be rejected by 130 O.S.No. 1990/2018 considering the objection raised by defendant no. 3( now transposed as plaintiff no. 2) that partition deeds dated 15.10.2015 cannot be construed as undisputed documents. Since the defendant no. 3(plaintiff no. 2) himself while filing the objection on IA No. 24 raised such contention that the partition deeds dated 15.10.2015 are not acted upon, the plaintiffs cannot approbate and reprobate. More than that the defendant no. 5, 6 and 7 and plaintiff no. 1 are not parties to the documents Ex.D4 and Ex.D5. Since the properties plaint schedule Item No. 19,20, 23 to 29 are ancestral properties, the defendant No. 5 is entitled for equal share in these properties along with her father plaintiff no. 2 and brother plaintiff no. 1 as one branch in view of the judgment of Hon'ble Supreme Court in Veenetha Sharma case. The plaint schedule Item no. 19 to 29 are the joint family properties of the plaintiffs and defendant no. 4 to 7.
42. So far as item No.6 and 17 of the plaint schedule property is concerned, it is the contention of the defendant No.4 is that it is his self acquired properties, but the plaintiffs and the defendant No.5 have taken contention that item No.6 and 17 of the plaint schedule 131 O.S.No. 1990/2018 properties are the joint family properties of the plaintiffs and defendants. PW 1 in his examination in-chief has deposed that this property in item No.6 is situated at Sy,No.49/5 of Bommanahalli Village, Begur Hobli has been purchased in the name of defendant No.4 for a sum of Rs.20,000/- by the 1st defendant under the registered sale deed dated 27.07.1972, which is marked as Ex.D26 through DW 2. He has deposed that in Ex.D26 itself it is clearly mentioned in handwriting of Sub-Registrar in the endorsement written by the Sub-Registrar, Bengaluru South Taluk that amount of Rs.20,000/- was paid in his presence by N.M.Annaiah for N.A.Ravigopal to K.R.Rangappa the vendor of the sale deed. DW 2 in his examination in chief has deposed that the property plaint schedule item no.6 is absolutely belongs to his father defendant No.4. He has deposed that his father is a B.Sc. and BE graduate . He did is B.Sc. in the National College and BE Electronics from BMS College of Engineering, Basavanagudi. His father beside looking after the joint family properties and joint family business and he was also having separate avocation out of his skill as Engineer and started earning from a young age. His 132 O.S.No. 1990/2018 father was into construction activity and earned substantial income which constitute separate and self acquisition out of his separate income. He has deposed that his father purchased item No.6 & 17 of the plaint schedule property out of his separate income. Hence, these two properties are his father's self acquired properties. On the other hand, DW1 / defendant No.5 would contend that the properties which are purchased in the name of defendant No.4 are purchased out of joint family funds. The learned counsel for the defendant No.5 argued that plaint schedule item No.17 was purchased in the name of 4th defendant by the defendant No.1 under the registered sale deed dated 30.08.1993 out of joint family funds. Except taking the care of joint family properties standing in the name of defendant No.1 defendant No.4 had no other income. PW 1 in his examination in-chief has deposed that item No.7 of the plaint schedule property has been purchased from the earnings from business of partnership firm M/s. N.M.Annaiah and Co. As such it is the property belongs to the plaintiff No.2 and defendant No.4. I have appreciated rival contentions and perused the records. On perusal of 133 O.S.No. 1990/2018 document Ex.D26 there is clear shara made by the Sub- Registrar, Bengaluru South Taluk in his handwriting that amount of Rs.20,000/- was paid in his presence by N.M.Annaiah for N.A.Ravigopal to K.R.Rangappa, the vendor in the sale deed. The very such endorsement made by the Sub-Registrar would indicate that the consideration amount was paid by the defendant No.1 N.M.Annaiah, father of the plaintiff No.2 and defendant No.4. According to the defendants No.4, 6 & 7, the defendant No.4 is B.Sc., and B.E. graduate. This property in item No.6 was purchased on 27.07.1972. It is not in dispute that the defendant No.4 born on 09.02.1954. Hence, at the time of purchase of item No.6 of the schedule property the defendant No.4 was aged about 18 years 5 months. In order to get graduation like B.Sc., B.E. it requires at least 21 years. The purchase of this item No.6 of the plaint schedule as on 27.07.1972 indicates that it was purchased when the defendant No.2 was student. There is absolutely no document or evidence placed before the court to show that the defendant No.4 was earning income of his own, except the joint family funds. The endorsement made in Ex.D26 134 O.S.No. 1990/2018 sale deed dated 27.07.1972 would go to show that the consideration amount of Rs.20,000/- was paid by the defended No.1 or kartha of the family. Hence, this court is of the opinion that the item No.6 of the plaint schedule property is of the joint family properties of the plaintiffs and defendants No.4 to 7. There is absolutely no evidence on the side of the defendants No.4, 6 & 7 to show that the item No.17 of the schedule properties also purchased out of separate income of defendant No.4. During the course of cross examination of PW1 and DW 1 nothing worth is elicited from their mouth to suggest that the defendant No.4 had his separate income purchased the plaint schedule item No.6 and 17 out of his own income. On the other hand, the suggestion is made to PW 1 is that till 2006 all the plaintiffs and defendant No.1 to 7 were all living together in the same house and messing together indicates that there was no any division taken place in the family of the plaintiffs and defendants No.1 to 7. Under such circumstances, the presumption is that the properties acquired are out of joint family funds. Hence, this court is of the opinion that the plaint schedule item no.6 & 17 are joint family properties of the plaintiffs 135 O.S.No. 1990/2018 and defendants No.4 to 7.
43. With regarding to plaint schedule item No.9 is concerned, PW 1 in his examination in chief has deposed that item No.9 of the plaint schedule property was site bearing No.934 allotted to Dasamma as she has lost her site in Koramangala 1st Block, which was purchased in her name by the partnership firm N.M.Annaiah and co. of which she was also partner. At the time of allotment of the site she was aged about 83 years. At the time of execution of sale deed dated 09.09.2002 she was aged about 85 years and she was representing in that sale deed by the defendant No.4. The copy of the sale deed is marked through DW 2 as Ex.D34. PW 1 has deposed that later within a year Dasamma passed away and as per Bangalore Development Authority in any site allotted by the Bangalore Development Authority building has to be built within 10 years from the date of allotment. As per Ex.D34 the property was allotted on 04.02.2000. This property is located at the prime point in BTM Layout, II stage. Dasamma passed away in the year 2005, as such the remaining partners of N.M.Annaiah and co. 136
O.S.No. 1990/2018 consisting partners such as himself, his father N.M.Annaiah, defendant No.1, his brother defendant No.4 have decided to get the Katha to the property in the name of 2nd defendant who was also by then aged more than 75 years. It was decided that it would be expedient to get the property registered in the name of defendant No.4 to facilitate availing loan from the bank and financial institutions and to put up construction on the said property. Consequently, Ex.D55 Gift Deed dated 05.04.2012 was executed by the defendant No.2, who is legal heir of Dasamma in favour of the 4 th defendant. Therefore, this property is joint family property belongs to him and defendant No.4.
44. The learned counsel for the defendant No.5 argued that this property in item no.9 of plaint schedule is the joint family property. The sale deed was in favour of Dasamma dated 09.09.2002. The defendant No.4 was mere General Power of Attorney holder to get the sale deed executed by Bangalore Development Authority . He submitted that the sale consideration amount of Rs.3,43,345/- was used out of joint family funds. The 137 O.S.No. 1990/2018 learned counsel for the defendants No.4, 6 & 7 vehemently argued that the property item No.9 which was vacant site was subject matter of allotment made by Bangalore Development Authority in favour of Dasamma. He argued that perusal of Ex.D34 to 39 it is clear that the allotment made in favour of Dasamma and she paid the sale consideration to Bangalore Development Authority. The defendant No.4 as General Power of Attorney holder of Dasamma got sale deed registered in his name. Subsequently, Dasamma's name was mutated in the office of BBMP. Upon her demise her only daughter N.a.Janaki Bai @ N.A.Narayanamma i.e. defendant No.2 succeeded to the estate of Dasamma which included item No.9. The defendant No.2 executed Gift Deed in favour of defendant No.4 which was accepted by defendant No.4, hence, the defendant No.4 became absolute owner. He argued that as the property was inherited by defendant No.2 in view of S.15 and 16 of Hindu Succession Act, the same is absolute property of the defendant No.2. Hence, this property item No.9 is the separate property of defendant No.4.
45. I have appreciated rival contentions and perused 138 O.S.No. 1990/2018 the records. It is not in dispute that the defendant No.1 married his own sister's (Dasamma) daughter N.A.Janaki Bai @ N.A.Narayanamma, who is 2nd defendant in this suit. It is not in dispute that the defendant No.2 acquired or inherited through her mother item No.2, 3, 7, 8, 9, 10, 13, 14 & 16 of the plaint schedule properties. It is pertinent to note that as this court allowed IA No.17 filed u/Or.XII R.6 of CPC, a decree on admission was passed with respect to all these properties i.e. schedule item No.2, 3, 7, 8, 10, 13, 14 and 16. The plaintiff in the plaint itself has stated that the defendant No.1 who developed ancestral properties out of the joint family funds purchased the properties in his name in the name of defendant No.2 and in the name of defendant No.4. The defendants No.1 to 3 in their written statement admitted the averments made by the plaintiffs by admitting that the defendant No.1 who succeeded joint family properties developed the same and by developing his business purchased the properties in his name, in the name of defendant No.2 and in the name of defendant No.4. While filing objection to IA No.17,D4,6,7 submitted that they have no objection to decree the suit on admission . Even 139 O.S.No. 1990/2018 if we peruse the written statement contentions of the defendants No.4, 6 & 7 except they disputed regarding item No.6, 9 & 17 they have admitted all other plaint schedule properties are joint family properties. Under such circumstances, it can be safely held that even though this property was allotted to the name of Dasamma, who is the sister of defendant No.1 and sale deed executed in her favour represented by General Power of Attorney holder the defendant No.4, sale consideration amount was flown from the joint family funds. The defendant No.4 as General Power of Attorney holder got the sale deed executed in his name through Bangalore Development Authority . After the death of Dasamma as this property mutated in the name of defendant No.2 she executed Gift Deed in favour of defendant No.4. When there is such circumstances, that the defendant No.2 had inherited and acquired such properties i.e. item No.2, 3, 7, 8, 10, 13, 14 and 16 of the plaint schedule properties we cannot isolate this property item No.9 as separate property of defendant No.2. The defendants No.4, 6 & 7 have not produced any documents before this court to show that Dasamma had 140 O.S.No. 1990/2018 her separate income, so as to purchase the property item no.9. Certain documents are marked through DW 2, which are marked as Ex.D34 to 39. Ex.D34 is the certified copy of sale deed dated 09.09.2002, which would go to show that Bangalore Development Authority executed this sale deed in the name of Dasamma represented by defendant No.4 as General Power of Attorney holder N.A.Ravi Gopal. Ex.D35 is the copy of death certificate of defendatn No.2 to show that she died on 17.03.2020. Ex.D36 is the property encumbrance certificate in form No.15. Ex.D37 is the encumbrance certificate in form No.16. Ex.D38 is the property tax receipt. Ex.D39 are e-Katha standing in the name of defendant No.4. Even though this property was allotted by Bangalore Development Authority in favour of Dasamma sale deed executed in her favour, but there is absolutely no evidence on the side of the defendants No.4, 6 & 7 to show that sale consideration was paid by her. On the contrary it would go to show that the sale consideration was given by defendant No.1 from the joint family funds. Hence, this court is of the opinion that the property in item No.9 is the joint family property of 141 O.S.No. 1990/2018 plaintiffs and defendants No.4 to 7.
46. The learned counsel for the plaintiffs argued that the property in item No.32, 33, 35, 36 of the plaint schedule properties are self acquired properties of plaintiff No.2 and are not available for partition. PW 1 has deposed that he was purchased item No.32 on 08.03.1974 from Venkata Boye and N.Munivenkatappa for sum of Rs.4,000/-. He has purchased item No.33 of the joint family property from Narayanappa and Pillappa for sum of Rs.2,000/- under the registered sale deed dated 14.06.1974. He has purchased item No.35 of the plaint schedule from Munishamappa for Rs.2,000/- on 25.03.1974. He had purchased plaint schedule item no.36 from Narasimappa S/o Nagarajappa and Nagaraju for Rs.80,000/- on 25..07.1996. PW 1 has deposed that all these properties item No.32, 33, 35 & 36 of the plaint schedule properties are self accused acquired properties.
47. In order to substantiate such contention taken by PW 1 and to show that item No.32,33,35,36 of plaint schedule are his self acquired properties he has not 142 O.S.No. 1990/2018 produced any documents. According to PW 1 he had purchased these properties item No.32, 33 and 35 during the year 1974 and item No.36 in the year 1996. The learned counsel for the defendants No.4, 6 & 7 argued that in the year 1974 plaintiff No.1 / PW 1 was a student. The plaintiff No.2/PW 2 completed his graduation somewhere in the year 1976-77. he has no income of his own in order to purchase these properties. It is not in dispute that PW 1 is holding two graduations. In his cross examination he has deposed that he is paying income tax from the year 1970. If at all he had income tax returns document he should have produced the saem. It is undisputed fact that PW1 born in the year 1952. Hence, in the year 1974 he was hardly aged about 22 years. If at all he was not college going student at the time of purchase of these properties item No.32, 33 and 35 of plaint schedule he should have produced his degree certificates and college marks cards in order show in which year he had completed graduation. Even PW 1 has not produced his bank statement in order to show that he had sufficient amount in his bank account so as to enable him to purchase these properties without the assistance 143 O.S.No. 1990/2018 of joint family funds. When it is admitted that till the year 2006-07 all the plaintiffs and defendants No.1 to 7 were living under same roof, presumption is that they are acquired properties by using the joint family funds. PW 1 in his cross examination stated that his date of birth is 15.11.1952. He states that in the year 1968 he was aged about 17 years. Even though in his cross examination PW 1 has stated that he is having income tax returns documents since from the year 1970 and he is ready to produce the same before the court, but he has failed to produce income tax returns before the court. Under such circumstances, an adverse inference can be drawn against PW1 is that since he has not having such documents to show that he is filing the income tax returns from the year 1970 for that reason he has withheld to produce the documents. PW 1 in his cross examination admitted the suggestion that he has not produced any documents before this court to show that he had his independent income during the year 1974. Under such circumstances, self serving oral evidence of PW 1 is that these properties item No.32, 33, 35 and 36 of the plaint schedule are his self acquired properties are 144 O.S.No. 1990/2018 purchased by him by using self earned money is not acceptable. On the other hand, the plaint averments as well as contentions of the written statements of defendants No.1 to 3 would go to show that the defendant No.1 by using joint family nucleus purchased several properties in his name, in the name of defendant No.2 and in the name of defendant No.4 are also indicates that he had purchased these properties by using joint family funds. Hence, this court is of the opinion that these properties item No.32, 33, 34 & 36 of the plaint schedule properties are the joint family properties of the plaintiffs and defendants No.4 to 7.
48. With regard to the contentions of the defendant No.5 with respect to item No.1 of her counter claim schedule property is concerned it is to be noted that same property is mentioned by the plaintiffs in the plaint as item No.18. This court already drawn decree on admission with regard to plaint schedule properties including item no. 18 of plaint schedule. Since this court already drawn preliminary decree on admission dated 12.08.2022 this court cannot give contrary finding with 145 O.S.No. 1990/2018 regarding to the plaint schedule properties item No.1 to 5,7, 8, 10 to 16, 18, 30, 31 and 34. With regarding to remaining immovable properties mentioned by the defendant No.5 in the counter claim schedule, the decree on admission already passed. Hence, this court need not give finding with regarding to properties under which preliminary decree on admission passed on 12.08.2022. The learned counsel for plaintiffs argued that item No.37, 38, 40 of plaint schedule are not in existence. He submitted that with regarding to item No.40 and 41 orders already passed in P&Sc No.66/2022 as per order dated 01.04.2022, which is attained finality. Hence, item no.40 and 41 of the plaint schedule properties also not available for partition.
49. The plaintiffs even though claimed that except items No.1 to 5, 7, 8, 10 to 16, 18, 20, 31, 34, all other plaint schedule properties are ancestral and joint family properties. But during the course of arguments, the learned counsel for the plaintiffs argued that the plaint schedule item No.6, 9, 17, 37, 38, 39 and 42 are only available for partition. This court in the above paragraphs 146 O.S.No. 1990/2018 given finding regarding item No.19 to 29, 32, 33, 35, 36. The learned counsel for the plaintiffs while addressing arguments submitted that the plaint schedule item No.40 and 41 are already decided in P&Sc No.66/2022. Such arguments addressed by the learned counsel for the plaintiffs regarding the order passed in P&Sc. No.66/2022 is not disputed by the learned counsel for the defendants. Hence, one thing is very clear that the plaint schedule item No.40 stocks, debentures, bonds are all standing in the name of Smt.N.A.Janaki Bai and suit item No.41 fixed deposits, bank balance savings account, current account are standing in the name of N.A.Janaki Bai are not available for partition. In this suit even though the plaintiffs have claimed their right over the stocks, shares, debentures, bonds of bank standing in the name of N.M.Annaiah showing it as item No.37 and fixed deposits, bank balance, savings account of different banks standing in the name of N.M.Annaiah and showing it as item No.38 of plaint schedule properties and all antique collections, other items and valuable items held by N.M.Annaiah including vehicles which is mentioned as item No.39 of the plaint schedule and all gold jewels and 147 O.S.No. 1990/2018 other items of valuable items held by defendant No.2 N.A.Janaki Bai, which is shown as item No.42, in order to show such immovable properties are available for partition, the plaintiffs have not produced any documents. No doubt, 9 photographs of jewels are marked at Ex.P6. But in the evidence PW 1 has deposed that some of these jewels are not gold jewellery and these jewellery were already shared by the defendant No.2 during her life time. Even though the defendant No.5, in her written statement and defendants No.4, 6 & 7 in their written statement mentioned several gold items, but they have also not produced any documents to show the existence of such gold items and stock, debentures, vehicles. In order to show such movables are available for partition. The defendant No.5 as well as defendants No.4, 6 & 7 have not produced any documents. Hence, this court is of the opinion that when there is no any documents to show that there exist such items mentioned in the plaint schedule item No.37 to 42, no decree for partition can be passed. More than that this court already passed an order in P&Sc No.66/2022 regarding certain shares and bank accounts. 148
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50. It is proved by adducing evidence of DW 2 and producing the document at Ex.D70 that the partition was taken place between the father of the defendant No.1 and his brothers family and in that partition dated 27.03.1945, 41 items of the properties came to the share of father of the defendant No.1. The plaint schedule items No.23 to 29 were subject matter of the partition of the year 1945. In that partition dated 27.03.1945 Sri.Munivenkatappa got his share about 41 items of properties which include counter claim item No.5 of defendants No.4, 6 & 7 and also plaint schedule item No.23 to 29. The total 36 acres of kuski land was given to the share of Munivenkatappa who is great grand father of plaintiff No.1 and he also got the land bearing Sy.No.67/4 measuring 28 guntas, Sy.No.67/6 measuring 25 guntas situated at Baluvana Village in which there were 200 fruit yielding coconut trees. Munivenkatappa got total worth of Rs.1,31,981-11 anas of the property in the partition deed dated 27.03.1945. The plaintiff No.1, defendant No.5, defendants No.4 to 7 are the great grand children of Munivenkatappa who are the third 149 O.S.No. 1990/2018 generations. The plaintiff No.1 himself in his plaint clearly stated that his great grand father Munivenkatappa was successful businessman, during his life time. The defendant No.1 succeeded the ancestral properties under the partition deed dated 31.03.1952. and developed the same and purchased the properties in his name, in the name of his wife defendant No.2 and in the name of defendant No.4. Even on perusal of the judgment relied by learned counsel for the plaintiffs in ANDAGI CHANDRANNA VS. SHANKAR AND OTHERS ((2025) 4 S.C.R. 1417 case, the Hon'ble Supreme Court in para 14 held that, in Hindu law, for a property to be considered as an ancestral property, it has to be inherited from any of the paternal ancestors upto three generations. When we consider the plaintiff No.1, defendants No.5 to 7 that their great grand father Munivenkatappa there are three generations. The Hon'ble Supreme Court in the said judgment in para 15 by referring earlier judgment of Hon'ble Supreme Court in ROHIT CHAUHAN VS. SURINDER SINGH AND OTHERS, it is held that " "11. ....In our opinion coparcenary property means the property which consists of ancestral property and a coparcener 150 O.S.No. 1990/2018 would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener". If this principle laid down by the Hon'ble Supreme Court applies to the present case, admittedly, the plaintiff No.2 born on 151 O.S.No. 1990/2018 15.11.1952 i.e. soon after partition deed dated 31.03.1952. The defendant No.4 born on 09.02.1954. Prior to birth of plaintiff No.2 and defendant No.4 the defendant has not alienated any of the properties fallen to his share. The plaintiff No.1 himself in the plaint stated that the defendant No.1 who had inherited the property from his father developed the same and purchased the properties in his name, in the name of his wife, defendant No.2 and in the name of defendant No.4 out of joint family nucleus. Such pleadings of the plaintiff No.2 made in para III (1) and (2) are admitted by the defendant No.1 to 3 in their written statement. Subsequently, the defendant No.3 transposed himself as plaintiff No.2. But the fact remains, prior to birth of plaintiff No.2 and defendant No.4, the defendant No.1 has not alienated any of the properties fallen to his share in the partition deed dated 31.03.1952 becomes coparcenary properties consisting of defendant No.1, plaintiff No.2 and defendant No.4. After the birth of plaintiff No.1, defendants No.5 to 7 they have also become coparceners as they are of the third generations from N.A.Munivenkatappa. In my humble view decision 152 O.S.No. 1990/2018 cited by the learned counsel for the plaintiffs in UTTAM VS. SOUBHAGYA SINGH AND OTHERS which is regarding S.8 of Hindu Succession Act is not applicable to the present suit. In this suit, we can made applicable S.6 of Hindu Succession Act. The defendant No.5 who is daughter acquires right by birth in view of the judgment of Hon'ble Supreme Court in VINEET SHARMA'S case. The plaintiffs have not produced any documents to show that the defendant No.1 and plaintiff No.2 have any separate income of their own, without the aid of the joint family funds to purchase the counter claim item No.1 to 6 of counter claim of defendants No.4, 6 & 7. Likewise, defendant No.4 also not produced any cogent evidence to show that item No.6, 9 and 17 of the plaint schedule properties is separate properties. Hence, I answer Issue No.1 partly in the AFFIRMATIVE, Issue No.2 in the NEGATIVE, issue No.3 in the NEGATIVE, issue No.8 in the AFFIRMATIVE, issue No.15 in the AFFIRMATIVE and issue No.16 in the NEGATIVE.
51. ISSUES No.4, 5, 6, 7 & 9: The defendants No.4, 6 & 7 have sought for the relief to declare that the 153 O.S.No. 1990/2018 Gift Deed dated 12.06.2015 subsequent rectification deed dated 15.06.2016 and 07.04.2017 with respect to item No.4 of counter claim schedule executed by D1 in favour of Plaintiff no.1 Gift Deed dated 05.03.2004 executed by the defendant No.1 in favour of plaintiff No.2, the Gift Deed executed by the defendant No.1 in favour of plaintiff No.2 with respect to item No.2 of written statement schedule, alleged Gift Deed executed by defendant No.1 in favour of plaintiff No.2 in relation to item no.3 of the written statement schedule, the alleged Gift Deed dated 05.04.2012 are not binding on these defendants. The defendants also prayed to declare that the alleged gift deed dated 12.06.2019 executed by defendant No.3 (now transposed as plaintiff No.2) in favour of plaintiff No.1 with respect to item No.1 of counter claim schedule is not binding on these defendants. In the present suit, some of the Gift Deeds are marked in the examination of DW1, since DW 1/defendant No.5 seeking partition in all the properties, with respect to plaint schedule and written statement schedule certain Gift Deeds are marked through DW1. Ex.D3 is the certified copy of the Gift Deed dated 154 O.S.No. 1990/2018 06.02.2024, Ex.D7 is the certified copy of Gift Deed dated 12.06.2019, Ex.D8 is the certified copy of Gift Deed dated 07.07.2004, Ex.D9 is the certified copy of Gift Deed dated 12.06.2015. During the course of cross examination of DW1 by the learned counsel for the defendants No.4, 6 & 7 certain documents confronted to her and marked on the side of defendants No.4, 6 & 7. Ex.D10 is the certified copy of the lease agreement dated 21.01.2019, Ex.D11 is the certified copy of the lease agreement dated 17.02.2020, Ex.D12 is the certified copy of lease agreement dated 17.02.2020. Ex.D14 to 19 are photographs. Ex.D20 is the certified copy of the sale deed dated 28.10.1970. Ex.D21 is the certified copy of the Gift Deed dated 05.03.2004. Ex.D22 is the certified copy of sale deed dated 15.04.1974. Ex.D23 is the certified copy of the sale deed dated 04.05.1966, Ex.D24 is the certified copy of the deed of rectification dated 15.06.2010, Ex.D25 is the certified copy of the rectification deed dated 07.04.2017 Some documents Gift Deeds are also marked through DW 2. Ex.D55 is the certified copy of Gift Deed dated 05.04.2012. 155
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52. The learned counsel for the plaintiffs argued that item No.1 of the counter claim schedule property is the self acquired property of plaintiff No.2 who purchased the same under the registered sale deed dated 15.04.1974. As a owner and in possession of this property the plaintiff No.2 executed a registered Gift Deed dated 12.06.2019 in favour of the plaintiff No.1. After the Gift Deed plaintiff No.1 is in possession of this property by exercising all the acts of ownership. He argued that since this is self acquired property of the plaintiff, the defendants cannot challenge the Gift Deed . He further argued that item No.2 of the counter claim schedule property is the self acquired property of the defendant No.1 who purchased the same under the registered sale deed dated 28.10.1970. Hence during his life time, on 05.03.2004 he gifted this property in favour of the plaintiff No.2 by executing registered Gift Deed dated 05.03.2004. He argued that the defendant No.4 also affixed his signature as witness to this Gift Deed . He argued that u/S.58 & 59 of Limitation Act, as the time is barred the defendants cannot challenge the Gift Deed dated 05.03.2004. He relied on the judgment of Hon'ble Supreme Court in Civil 156 O.S.No. 1990/2018 Appeal No.5180/2025 arising out of SLP No.13459/2024 (NIKHILA VIDYANG MEHTA VS. HITESH P. SANGHVI). He also argued that without cancelling the registered document, the relief cannot be granted. He submitted that the cancellation of instrument based on provision of S.31 of Specific Relief Act. He also argued that in order to file suit challenging the limitation period is 3 years. But the defendant No.4, 6 & 7 challenged this Gift Deed after more than 11 years 3 months. Hence, it is barred by period of limitation. He relied on the judgment of Hon'ble Supreme Court in SLP No.2998/2022 between (RAJEEV GUPTA VS. PRASHANTH GARG AND OTHERS).
53. The learned counsel for the plaintiffs argued that Item No. 3 of the counter claim schedule property is also self acquired property of the defendant no. 1 which purchased by defendant no. 1 under registered sale deed dated 4.05.1966. During the lifetime of defendant no.1, he gifted this property in favour of plaintiff no. 2 under registered gift deed dated 7.07.2004. He argued that this gift deed 7.07.2004 cannot be challenged of assailed because for 2 grounds. Firstly, it is self acquired property 157 O.S.No. 1990/2018 of defendant no. 1. Secondly, the claim of the defendants barred by period of limitation under Article 58 and 59 of Limitation Act. He further relied the same judgment of Hon'ble Supreme Court in Civil Appeal No. 5180/2025 arising out of SLP(C) No. 13459/2024 between Nikhila Divyang Mehatha and anr. V/s Hitesh P Sangavi and others by referring Para No. 24 and 25. He further by referring the judgment of Hon'ble Supreme Court in civil Appeal No. 14807/ 2024 arising out of SLP © No. 18977/2016 between Mukund Bhavan Trust and others V/s Srimant Chatrapathi Udayana Raje Prataph Singh Bonsle and others argued that without cancellation of registered documents, the relief cannot be granted. He further relied on the judgement of Hon'ble Supreme court in Civil Appeal No. 11061/2024 arising out of SLP (c) No. 2998/2022 between Rajeev Guptha and others V/ Prashant Grag and others to contend that whether a person had valid title and power to transfer a property can be examined only if the civil suit had been instituted by the plaintiff within the period of limitation. He argued that Item No. 4 of the counter-claim schedule property was purchased by defendant no. 1 under registered sale 158 O.S.No. 1990/2018 deed dated 4.02.1968 from his self earnings. Hence during his lifetime, on 12.06.2015, he has gifted this property in favour of the plaintiff no. 1 for the service rendered by plaintiff no. 1 when he had suffered heart attack on 15.11.2022 and given all medical treatment and taken care of him. He argued that since the Item No. 5 of counterclaim came to the share of first defendant under partition deed dated 31.03.1952, it also become his self acquired property. He argued that defendant no. 4 himself affixed his signature as a witness to the gift deeds dated 5.03.2004 and 7.07.2004. hence he is estopped from challenging the gift deeds. Hence the defendant no. 4, 6 and 7 cannot challenge the gift deed executed by defendant no. 1 in favour of defendant no. 5 with respect to this property.
54. On the other hand, the learned counsel for the defendant no. 5 argued that the defendant no. 5 herself in her written statement stated that this property Item No.5 of counterclaim of defendant no. 4, 6 and 7 is ancestral joint family property, she is not admitting gift deed and stated that it is also liable for partition. He 159 O.S.No. 1990/2018 argued that all the properties purchased by the defenant no. 1 after partition of the year 1952 which purchased in his name, in the name of plaintiff no. 2, defendant no. 2, defendant no.4 are all purchased out of joint family funds. He argued that at the time of partition dated 31.03.1952, plaintiff no. 2 was in the womb. Plaintiff no. 2 born on 15.11.1952, child in womb also get the share. Since all the properties purchased subsequent to the partition of the year 1952 out of joint family fund, the defendant no. 1 who is the coparcener, so also plaintiff no. 2 who is also coparcener have no right to execute the gift deeds.
55. The learned counsel for the defendant no. 4, 6, 7 argued that the counterclaim schedule Item No. 1 to 6 are all joint family properties. Counter claim schedule Item NO. 1 and 6 were purchased in the name of plaintiff no. 2 and counter claim schedule Item no. 2 to 4 purchased in the name of defendant no. 1 out of joint family fund. Counterclaim schedule Item No. 5 which was allotted to the share of defendant No. 1 under partition deed dated 31.03.1952. Hence all these properties are 160 O.S.No. 1990/2018 ancestral and joint family in nature. He submitted that according to Hindu law, a kartha of Hindu Undivided family cannot make a gift of ancestral and joint family property and such gift is null and void. He argued that defendant No. 1 had no authority or competence to make any gift in favour of plaintiff no.1, Plaintiff no. 2 and defendant no.5. The plaintiff no. 2 also has no authority to execute gift in favour of plaintiff no. 1. All the gift deeds being null and void have no legal sanctity in the eye of law. Even the plea of acquiescence would not apply in such situation as documents are void ab initio. He further argued that the defendant no. 6 and 7 are not the parties of the alleged gift deeds. He submitted that the defendant No. 4 not signed the gift deed as consenting witness. He argued that the provision under section 58 and 59 of Limitation Act does not applies. Since there is a suit filed for partition, the provision U/Ss. 58, 59 cannot be made applicable. The defendant no. 6 and 7 who are not parties to the gift deeds, came to know about the same only at the time of filing the pleadings. The learned counsel for the defendant no.4, 6 and 7 relied on the judgment of Hon'ble High Court of 161 O.S.No. 1990/2018 Karnataka in RFA No. 1905 of 2005 decided on 9.12.2020 between CN Leelavathi V/s M Narayanappa and others.
56. I have appreciated the rival contentions and perused the records. Even though the certified copy of gift deeds marked through DW1 and DW2, both the parties i.e. plaintiffs and defendants have not made any efforts to examine any one of the attesting witnesses signed on the gift deeds. The gist deeds are the compulsorily attestable documents. The provision U/s 68 of Indian Evidence Act ( Section 67 of BSA), it is very clear that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast have been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of court and capable of giving evidence provided that it shall not be necessary to call an attesting witness in proof of execution of any document not being a will which has been registered in accordance with the provisions of the Indian registration Act unless its execution by the person by whom it purports to have been executed is specifically denied. No 162 O.S.No. 1990/2018 doubt in this suit, the defendant no. 1 and plaintiff no. 2 have not disputed regarding execution of the gift deed. But the defendant no. 4 to 7 have taken contention that defendant no. 1 had suffering from grave ill health and he was under medical treatment. Hence taking undue advantage of the same, plaintiffs have got created the gift deeds. PW1 has deposed that defendant no. 1 had suffered a heart attack on 15.11.2002. At that time, plaintiff no. 1 gave immediate medical treatment and taken him to hospital. Thereafter plaintiff no. 1 had given all medical treatment and took regular medical care. Hence by appreciating the medical care given by plaintiff no. 1, defendant no. 1 executed gift deed dated 12.06.2015 with respect to counter claim schedule Item No. 4. The learned counsel for the defendant No. 5 during the course of cross-examination of PW1, put a suggestion to him that in Ex.D8, it is mentioned as " the donor out of love and affection and on account of the dedicated service rendered by the donee and his family members has executed the gift deed". He submitted that even in Ex.D21 gift deed with regarding to counter claim Item No.3 also, it is mentioned as " the donor out of love and 163 O.S.No. 1990/2018 affection and on account of the dedicated service rendered by the donee and his family members has executed the gift deed". The learned counsel for defendant no. 5 submitted that it was not only plaintiff no. 1 and 2 rendered service to the defendant no. 1 and 2, the family members also made service to defendant No. 1 and 2. On perusal of the plaint averments, the plaintiff in his plaint itself stated that during past one decade, the health of defendant no. 1 and 2 has deteriorated. That means, the defendant no. 1 was not having good health as on 12.06.2015. The plaintiffs have not produced any documents of medical treatment of defendant No.1 to show his health condition. The plaintiffs have not stated on which date the plaintiff no. 1 completed MBBS graduation. . While giving finding on Issue No. 1 to 4, 8, 15 and 16, this court has given finding that the Item No. 1 to 8 counter claim schedule properties of defendant No. 4, 6 and 7 are joint family properties purchased out of joint family fund. Hence the plaintiffs and defendant No. 4 to 7 are having equal share in Item No. 1 to 8 of counter claim schedule properties. In the judgment of Hon'ble High Court of Karnataka cited by 164 O.S.No. 1990/2018 the learned counsel for the defendant No. 4, 6 and 7 in CN Leelavathi's Case, RFA No. 1905 of 2005, decided on 9.12.2020, the Hon'ble High Court of Karnataka in para no.9 , Page no. 25 of the judgment wherein it is held that the law is well settled that gift by a coparcener of his undivided coparcenary interest to another coparcener or to stranger without the consent of other coparcener is void. The Hon'ble. High Court while giving finding regarding the limitation point is concerned, held that even though in that case, gift is executed in the year 1981 and the plaintiffs have filed the suit in the year 1993, it is held that Article 109 of Limitation act cannot apply as the plaintiffs have pleaded that they came to know about the alleged gift deed only in the year 1993. a suit for declaration is to be filed within 3 years from the date of accrual of cause of action, since the suit is filed within 3 years from the date of accrual of cause of action, hence the contention that the suit is barred by time is baseless. In my humble view, the principles of this cited decision of SN Leelavathi case is aptly applicable to the present suit. In the present suit, defendant no. 5/DW1 also sought for the counterclaim, claiming the share in 165 O.S.No. 1990/2018 the properties mentioned as Item No. 1 to 6 of counter- claim of defendant no. 4, 6 and 7. Admittedly, except the gift deed executed by defendant no. 1 in her favour with respect to item no. 5, she is not signatory to remaining gift deeds executed by defendant No. 1 and plaintiff no.2. The defendant No. 6 and 7 who are also filed the counterclaim claiming the share in these properties also not signatory to any of the gift deeds under challenge. During the course of cross-examination of DW2 by the learned counsel for the plaintiff, no point is elicited from his mouth to suggest that he was aware of the Ex.D8 and Ex.D21 gift deeds of the year 2004 itself. No doubt in his cross-examination, he has admitted the dates of the gift deed mentioned in Ex.D8 and Ex.D21. When question asked to him regarding putting of signature by his father to these gift deeds, then he answered that when he asked defendant no.1 and 2 regarding the signature of defendant no. 4, then defendant no. 1 and 2 told him that it was done purely to obtain a loan to build a house. DW2 has deposed that the defendant no. 1 and 2 told him that properties can only be partitioned and not to be gifted. Since there is no evidence on the side of the plaintiffs to 166 O.S.No. 1990/2018 show that DW1 and DW2 knowing very well regarding execution of Ex.D8 and 21 kept silent even after 3 years without challenging the same, under such circumstances, it cannot be held that the the gift deeds as per Ex.D8 and 21 challenging the same is barred by period of limitation. Even though there is a signature of defendant No. 4 in these 2 gift deeds, since defendant No. 5 to 7 are not signatories to these gift deeds, it cannot be held, the counter-claim prayer of defendant no. 4, 6, 7 praying to declare gift deeds are not binding on them is barred by limitation. In my humble view, the decisions cited by the learned counsel for the plaintiffs of Hon'ble Apex court in Civil Appeal No. 5180/2025, Civil Appeal No. 14807/2024, civil Appeal No. 11061/ 2024 can be distinguished on facts. In view of my finding on Issue no. 1 to 3, 8, 15 and 16, as this court of the view that the counterclaim Item No. 1 to 6 of schedule of Defendant No. 4, 6 and 7 are the ancestral and joint family properties, the defendant no. 1 and plaintiff No. 2 being the coparceners of their undivided coparcenary interest has no power or authority to gift the properties. Hence I answered Issue No. 4, 5, 6, 7 and 9 in the affirmative.
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57. ADDL. ISSUE No.1:- The plaintiffs in Item No. 6 of the schedule excluded one complex namely Balaji Complex by mentioning the measurement as 4,800 Sq Ft as same is purchased by private person from joint family. Neither the plaintiff no. 2 who was then defendant no. 3, nor defendant No. 4 to 7 have disputed regarding exclusion of this Balaji complex. During the pendency of this suit, the defendant No. 8 to 10 moved IA seeking to implead them as a defendants in this suit. This court was pleased to reject their IA. But defendant No. 8 to 10 have approached the Hon'ble High Court of Karnataka by preferring WP No. 30232 / 2025. The Hon'ble High Court of Karnataka allowed WP No. 30232/2025 as per order dated 9.12.2025. Hence the defendant no. 8 to 10 are impleaded in this suit. Only contention of the defendant no. 8 to 10 is that their purchased property measuring 7,200 Sq Ft should be excluded instead of 4,800 Sq Ft mentioned in Plaint Item No. 6. Defendant No. 8 who has examined as DW3 in his affidavit filed for examination in chief has reiterated the written statement contentions. Documents Ex.D85 to 97 are marked through him. He 168 O.S.No. 1990/2018 has deposed that he and defendant No. 9 and 10 have purchased sites measuring 60 x 40 Ft each under 3 registered sale deeds dated 18.02.1995. Thereafter they have joined all 3 sites together which totally measures 7,200 Sq Ft and have put up construction in 26,000 Sq Ft with ground plus 3 floors. Ex.D85, Ex.D86. Ex.D87 are the certified copies of sale deed to show that defendant No. 8 to 10 have purchased 3 sides from defendant No. 4 under sale deeds dated 18.02.1995. Ex.D 85(A) Ex. D. 86(A) , Ex.D87 (a) are readable copies of certified sale deed. Ex.D88, Ex.D90 are the khatha certificate. Ex.D89 is the khatha extract. Ex.D92 is property tax receipt from the year 2021-22 to 2025-26. Ex.D93 to Ex.D95 are 3 building license. Ex.D96 is 3 photographs of building. Ex.D97 is document for having obtained loan issued by KSFC. During the course of cross-examination of DW3 by the learned counsel for the plaintiffs and defendant No. 4, 6 and 7, nothing worth is elicited from his mouth to discard his examination in chief version regarding purchase of total extent of 7,200 Sq Ft and constructed the Balaji Complex therein. Since the plaintiffs as well as defendant No. 4 to 7 have not disputed regarding the 169 O.S.No. 1990/2018 Item No. 6 which measuring 1 acre 20 guntas excluding the Balaji Complex. As it is proved by the impleaded defendant no. 8 to 10 that the Balaji complex is situated in an area of 7,200 Sq Ft and not only in 4,800 Sq Ft as mentioned in Item No.6, this court has to exclude 7,200 Sq Ft instead of 4,800 sq ft mentioned in item no. 6 of the plaint. The defendant No. 8 to 10 have purchased this property measuring 7,200 sq ft in the year 1995 under registered sale deed dated 18.02.1995. the plaintiffs and defendant No. 4 to 7 have not challenged these 3 sale deeds dated 18.02.1995. Hence this court of the opinion that the defendant no. 8 to 10 proved that they are the bonafide purchasers of 7,200 Sq Ft instead of 4,800 Sq Ft mentioned in Item No 6 of plaint schedule. Hence I answered Addl. Issue No. 1 in the AFFIRMATIVE.
58. ISSUE No.10 & 11: The defendants No.4, 6 & 7 have taken contention that encumbrance by raising loan from the bank in respect of item No.4 of written statement / counter claim property is not binding on them. DW2 has deposed that item No.4 of the written statement schedule property was vacant site, which was 170 O.S.No. 1990/2018 purchased by the defendant No.1 in Municipal auction under the registered sale deed, out of the income derived by him from several ancestral properties and same is joint family property. But the defendant No.1 clandestinely gifted the same in favour of the plaintiff No.1 which is not at all binding on these defendants No.4 , 6 & 7. he has deposed that the plaintiff No.1 has been dealing with the property and he has leased out several portions of this property in favour of the tenants and collecting heavy rents and also collected huge security deposits from the tenants and utilizing the same for his benefit. No doubt, in this case, the lease agreements are marked during the course of cross examination of DW1, DW2 also produced documents. It is an admitted fact that the plaintiff No.1 by mortgaging this property obtained loan and constructed the building. Since these defendants have also claimed the mesne profits in this suit, mere raising loan from the bank in respect of the item No.4 cannot be held that this encumbrance made by plaintiff No.1 for the development of the property is not binding on the defendants No.4, 6 &
7. Since it is held that this property item No.4 is the joint 171 O.S.No. 1990/2018 family property, any development made by one of the co- sharers is binding on the remaining co-sharers. Hence, I answered issue No.10 in the NEGATIVE.
59. With regard to issue No.11, defendants No.4, 6 & 7 have taken contention that registered will executed by defendant No.3 in respect of item No.2 of the written statement is not binding on them. It is now settled principle of law is that any Will executed by any of the parties will come into force only after the death of that person. Since as on the date of this judgment, the defendant No.3 is alive, any such will executed by the defendant No.3 will not affect the right / share of the defendants No.4, 6 & 7 in item No.2 of the written statement schedule property. Hence, without much discussion I answered issue No.11 in the NEGATIVE.
60. ISSUE No.17: Originally, the plaintiff No.1 has field this suit against the defendants for the relief of partition and separate possession. The plaintiff by valuing this suit u/S.35(2) of Karnataka Court Fees and Suits Valuation Act paid the court fees at Rs.200/-, since the 172 O.S.No. 1990/2018 plaintiff in his plaint has taken contention that the suit schedule properties are the joint family properties and he is in joint possession of the suit schedule properties. The court fees paid by the plaintiff appears to be correct. The defendants No.1 to 3 sought for the relief of partition and they have also paid the court fees of Rs.200/- each by valuing the suit u/S.35(2) of Karnataka Court Fees and Suits Valuation Act, which also appears to be correct. The defendants No.4, 6 & 7 counter claim for declaration and partition and permanent injunction. These defendants have valued the suit for prayer of declaration u/S.24(d) of Karnataka Court Fees and Suits Valuation Act and by valuing the counter claim at Rs.1,000/- each paid court fees of Rs.400/-. By valuing the suit for partitoin u/S.35(2) of Karnataka Court Fees and Suits Valuation Act paid court fees of Rs.200/- each, in all Rs.400/-. For the relief of permanent injunction they have valued the suit at Rs.1,000/- each and court fees of Rs.100/- is paid u/S.26(c) of Karnataka Court Fees and Suits Valuation Act . Thus, the defendants No.4 and 7 have paid total court fees of Rs.900/-. The defendant No.5 also paid the court fees.
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61. It is undisputed fact that item No.6 of the counter claim schedule is already acquired and the BBMP deposited amount of Rs.6,45,39,439/-. So far as relief of partition with respect to immovable property and relief of declaration and consequential relief of permanent injunction is concerned, it appears that the court fees paid is sufficient. Since the defendants No.4 to 7 also claimed share in the compensation amount of Rs.6,45,39,439/- deposited by BBMP, they have to pay paid court fees of 1/6th share each on that amount. Hence, this court is of the opinion that the defendants No.4 to 7 shall pay court fees of 1/6th share in the amount of Rs.6,45,39,439/- deposited by the BBMP. Hence, I answered issue No.17 partly in the AFFIRMATIVE.
62. ISSUE No.12, 13, 14, 18, 19 & 20: It is pertinent to note here that while giving finding on issue no. 15, this court has not given finding regarding Item No. 1, 5, 6, 10 and 14 of counter claim of the defendant no. 5. Hence with regarding to these properties, this court discussed under this issue no. 19. Admittedly, this court has already 174 O.S.No. 1990/2018 passed preliminary decree on admission by allowing IA No. 17 filed under Order XII Rule 6 of CPC as per decree dated 12.08.2022 with respect to plaint schedule item no. 1 to 5, 7, 8, 10 to 16, 18, 30, 31 and 34 for which the final decree proceeding in FDP No. 92/2023 is pending for adjudication. The plaint schedule Item no. 18 is the 50% of the shares together standing in the name of defendant no. 1, 3, 4 (in equal percentages), in the running business of M/S AV Exhibitors which is in possession and management of 2 theaters in Bangalore namely Sampige Theater and Savitha Theater as per the partition deed dated 1.04.1992. Hence 50% of shares with respect to business of Ms AV Exhibitors already decreed. The defendant no. 5 by way of counterclaim Item No. 1 mentioned as 50% share in the land and building situated at Sampige Road Malleshwaram(Sampige and Savitha Theater). The documents Ex.D6, certified copy of sale deed dated 23.10.1970 marked through DW1. During the course of cross-examination of DW1, she has admitted the suggestion that NM Venkathesh is 50% co owner of this property mentioned in Ex.D6. She has also admitted the suggestion that NM Venktesh and his children are not 175 O.S.No. 1990/2018 the parties in this suit. It is the contention of the defendant no.5/DW1 is that this property Item No. 1 purchased by defendant no. 1 along with his brother NA Venktesh under registered sale deed dated 23.10.1970, at that time, the plaintiff no. 2 and defendant No. 4 were minors. It is the contention of the defendant no. 5 is that out of sale consideration amount of Rs 5,00,040/-, the 50% of said amount i.e., 2,50,020 paid by defendant no. 1 Sri Annaiah. It is not in dispute that the partnership firm formed and through the partnership firm, the business by name M/s AV Exhibitors running 2 theaters Sampige and Savitha. These 2 theaters are situated in this Item No. 1 of the written statement Schedule property. Since this court already passed the decree on admission regarding the plaint schedule Item NO. 18, this court cannot again give finding regarding Item No. 14 of WS of defendant no.
5. Since these theaters Sampinge and Savitha are situated in very same land bearing Item No. 1 of Written Statement schedule of defendant no.5, this court of the opinion that again we need not pass a decree with respect to the same property. More than that, this property in Item No. 1 of written Statement Schedule 176 O.S.No. 1990/2018 jointly purchased by defendant no. 1 and his brother NM Venktesh. Hence without there being NM Venkatesh and his children are made as parties, it is not possible to decide to who is entitled to how much share in the landed and building where Sampige and Savitha Theaters are situated. Hence this court of the opinion that at this stage, the item no. 1 is not partiable. With regarding to Item No. 5 of the written statement schedule of defendant No. 5 is concerned, DW1 in her examination in chief has stated that this property is divided portion of Item No. 4 mentioned by her in the schedule which was gifted by plaintiff no. 2 to plaintiff no. 1. According to the defendant no. 5, the Item No. 3 of the counterclaim of defendant no. 4, 6 and 7 is equivalent to Item No. 4 of her counterclaim schedule. This court has already given finding regarding Item No. 3 of the counterclaim schedule of defendant no. 4, 6 and 7 and also given finding regarding gift deed executed by defendant no. 1 in favour of plaintiff no. 2 and gift deed executed by plaintiff no. 2 in favour of plaintiff no. 1. Hence it is not necessary to give finding again. With regarding to Item No. 6 of written statement schedule of defendant no. 5 is 177 O.S.No. 1990/2018 concerned, even though she has mentioned Item No. 1 in her written statement, but in her examination in chief, DW1 has not stated anything about this item property. The learned counsel for the plaintiffs while addressing the arguments submitted that all other items of schedule properties decree of admission already passed. The defendant no. 5 has not produced any documents with regarding to item No. 6 of her written statement schedule properties. Hence this court of the opinion that Item No. 6 of WS of defendant no. 6 is not available for partition. With regarding to Item No. 10 of the written statement schedule of defendant No.5, even though DW1 has deposed that BMRCL awarded compensation with respect to land bearing BBMP Khatha No 457/17/5 in Sy No. 17/5 of Roopena Agrahara Begur Hobli, Banglore south towards compensation about 5000 sq ft of land and the plaintiff no. 2 and 4 have received the compensation amount, the defendant no. 5 has not produced any documents of the same to show the actual amount of compensation awarded. Without there being any particulars regarding the compensation, this court cannot pass any decree on compensation given by BMRCL. 178
O.S.No. 1990/2018 According to defendant no. 5, Item No. 11 to 13 mentioned in her WS and Item No. 7 and 8 mentioned by defendant No. 4, 6, 7 in their WS are one and the same. Neither the defendant no. 5, nor defendant no. 4, 6 and 7 have produced any documents with regarding to bank balance of defendant no. 1 and also not produced regarding shares, stocks, debentures, bonds standing in the name of defendant no. 1. The defendants also not produced any documents regarding existence of gold, silver, diamond jewelries and articles mentioned in their written statement. The plaintiffs also not produced any documents with regarding to the movable properties mentioned in the plaint schedule. The defendants have also not produced any vehicle documents to show existence of any vehicles inorder to make partition. In the absence of any documentary evidence, the court cannot pass decree regarding the movable properties on presumption and assumptions.
63. The learned counsel for the plaintiffs while addressing the argument, argued that plaint schedule Item No. 19 to 29 already partitioned under the 179 O.S.No. 1990/2018 documents Ex.D4, Ex.D5 partition deed. This court already given finding regarding these properties Item No. 19 to 29 mentioned in plaint schedule while giving finding on Issue no. 1 to 3, 8 to 15, 16. Added to that finding, on plain reading of the documents Ex.D4 and Ex.D5 certified copies of partition deed itself shows that all the properties mentioned in these documents Ex.D4 and Ex.D5 are ancestral and joint family properties. These properties are the subject matter of the partition of the year 1945 and also the subject matter of the partition deed dated 31.03.1952. The learned counsel for the plaintiffs while addressing the arguments submitted that the judgment passed on admission dated 12.08.2022 not challenged by the parties of this suit. Hence this court again cannot give finding with regarding to the plaint schedule Item No. 1 to 5, 7, 8, 10 to 16, 18, 30, 31 and
34. It is true that this court already passed decree on admission my allowing IA No. 17. Hence this court need not give finding regarding already decreed properties. While passing decree on admission, this court observed that since the plaintiff no. 1 and defendant No. 5 are the children of defendant no. 3, (now transposed as Plaintiff 180 O.S.No. 1990/2018 No.2), they will get share only through defendant NO. 3(now transposed as Plaintiff No.2). Observing so, the objection filed by defendant No. 5 not considered. But it is to be noted that while passing judgment on admission dated 12.08.2022, this court has not given any such finding that the plaintiff no. 1, defendant No. 5, Defendant no. 6 and 7 are not at all entitled any share in decreed properties. This court observed that the plaintiff no. 1 and defendant No. 5 being children of defendant no. 3 will get share through defendant no.3. Since the judgment on the admission passed by this court attained finality, this court need not give finding regarding plaint schedule Item No. 1 to 5, 7, 8, 10 to 16, 18, 30, 31 and
34. In view of my finding on issue no. 1 to 3, 8, 15, 16, the plaintiffs and defendant no. 4 to 7 are entitled for partition and separate possession of 1/6th share each in plaint schedule Item No. 6, 9, 17, 19 to 29, 32, 33, 35, 36 and counter-claim schedule Item No. 1 to 6 of counterclaim schedule properties of defendant No. 4, 6, 7 which are equivalent to Item No. 2, 3, 4, 7, 8, 9 of counterclaim of defendant No. 5 as these properties are ancestral and joint family properties of plaintiffs and 181 O.S.No. 1990/2018 defendant No. 4 to 7 and they are all coparceners. Hence this court of the opinion that so far as partition in these properties are concerned, plaintiffs and defendant No. 4 to 7 have equal shares.
64. In the present suit, DW1 and 2 have produced certain sale deeds and Gift Deeds. Ex.D3 is the Gift Deed dated 06.02.2024.Ex.D7 is the Gift Deed dated 12.06.2019, Ex.D8 is the Gift Deed dated 07.07.2004. Ex.D9 is the Gift Deed dated 12.06.2015. Ex.D20 is the certified copy of sale deed dated 28.10.2015, Ex.D20 is the certified copy of the Sale Deed dated 28.10.1970. Ex.D21 is the certified copy of Gift Deed dated 05.03.2004. Ex.D22 is the copy of Sale Deed dated 15.04.1974. Ex.D23 is the copy of Sale Deed dated 04.05.1966. Ex.D26 is the copy of Sale Deed dated 27.07.1972. Ex.D34 is the copy of Sale Deed dated 09.09.2002. Ex.D55 is the certified copy of GD dated 05.04.2012. Ex.D56 is the certified copy of Sale Deed dated 23.10.1970. In view of my finding on issues No.1 to 3, 8, 15 & 16 this court held that these properties purchased in the name of defendant No.1, plaintiff No.2, 182 O.S.No. 1990/2018 defendant No.4 are joint family properties purchased out of joint family funds. While answering issue No.4 to 7 and 9 this court held that since the defendants No.1 and plaintiff No.2 are the coparceners they are not having any right to execute Gift Deed with respect to written statement schedule item No.1 to 6 of written statement of defendants No.4, 6 & 7. This court also held that the plaint schedule item No.6, 9, 17 are also joint family properties of plaintiffs and defendants No.4 to 7. The documents Ex.D28 certified copy of the judgment in O.S.No.6617/2010 is produced and got marked through DW 2. On perusal of this judgment passed in O.S.No.6617/2010, which is filed by defendatn No.4 Ravi Gopal against the Commissioner of Bangalore Development Authority , it would go to show that even though it is held that the plaintiff proved that he is absolute owner of the suit schedule property therein i.e. property CMC No.290/1 and 5, 6, 7, 8, 9 and 10, Katha No.359, old Sy.No.49/5 measuring 1:18 residential 3 sites situated at Bommanahalli as a owner, but the court dismissed the suit on the ground that the property already acquired by the Bangalore Development 183 O.S.No. 1990/2018 Authority, it is held that after acquisition of the suit schedule property it vested with the defendant (Bangalore Development Authority) and suit for declaration of title and consequential relief of permanent injunction is not maintainable. In the present suit also it is is made it clear that acquired portion of the land is not entitled for partition. The remaining properties i.e. item No.6, 9,17, 19 to 29, 30 to 33, 35 & 36 and written statement schedule item No.1 to 6 of written statement of the defendants No.4, 6 & 7 which are all also claimed in written statement of the defendant No.5 are all joint family properties of the plaintiffs and defendants No.4 to 7 and they are having equal shares i.e. 1/6th share each in these properties. As this court already held that in view of the documents Ex.D70 registered partition deed dated 27.03.1945 certain properties i.e. schedule item No.23 to 29 were the subject matter of that partition also. These properties were fallen to the share of the great grand father of the plaintiff No.1, defendants No.5 to 7. The defendant No.1 got the same properties under the registered partition deed dated 31.03.1952 as per Ex.D1. DW 1 in her evidence clearly stated that the defendant 184 O.S.No. 1990/2018 No.1 continued business of his father and except that he is having income from continued business, and income from ancestral properties he had no other income. DW 1 has clearly deposed that her father plaintiff No.2 and also uncle defendant No.4 have no other avocation except income derived from the joint family property and they have no exclusive source of income. In the present suit neither the plaintiff No.2 nor defendant No.4 have produced any documents to show that they had any independent income of their own. Even though PW 1 has taken contention that he is an income tax assessee from the year 1970, for obvious reasons best known to him he has not produced any documents of income tax returns. Even the plaintiffs and the defendants have also not produced any documents to show how much amount was earned out of partnership firm. There is absolutely no evidence on the side of the plaintiffs and defendant No.4 is that they had any independent income of their own, so as to purchase the properties in their name. Hence, this court has given finding that these properties plaint schedule item No.6, 9 17, 19 to 29 32, 33, 35 & 36 and counter claim schedule item No.1 to 6 of the written 185 O.S.No. 1990/2018 statement of defendants No.4, 6 & 7 which is already claimed by the defendant No.5 in her written statement are all joint family properties and the plaintiffs and defendants No.4 to 7 are entitled equal share in the properties.
65. In view of my finding on Issue no. 4 to 6, 7 and 9, as it is proved that the gift deeds are not binding on defendant No. 4, 6 and 7, this court of the opinion that these defendants are entitled for declaratory reliefs as prayed for. The defendant no. 4, 6 and 7 have also sought for the relief of permanent injunction to restrain the plaintiffs and defendant No. 5 from alienating the written statement schedule properties. These defendants have also sought for the relief of permanent injunction to restrain the plaintiffs from proceeding further with construction in Item No. 4 of WS. So far as construction is concerned, as this court opined that the plaintiffs and defendants are in joint possession and are the coparceners, and properties are joint family properties, any construction will not effect the rights of the parties. More than that, the plaintiffs and defendants have not 186 O.S.No. 1990/2018 sought the relief to reimburse the amount of development made in these properties. Hence this court of the opinion that the defendant No. 4, 6 and 7 are not entitled for such relief to restrain construction. So far as relief of permanent injunction for non alienation is concerned, this court already granted temporary injunction. If prior to drawing final decree, the plaintiffs and defendant No.5 alienates the property by way of sale, mortgage, then it will lead to multiplicity of proceedings. Hence this court of the view that the defendant No. 4, 6 and 7 are entitled for the relief of permanent injunction to restrain the plaintiffs and Defendant.No.5 from alienating the properties by way of sale or mortgage. The defendant No. 4, 6 and 7 are not entitled for remaining prayer of permanent injunction. The plaintiffs as well as defendant No. 4 to 7 are entitled for enquiry regarding the mesne profit of their respective share in the properties. Hence I answered Issue no 12 in the affirmative, Issue no. 13 partly in the affirmative, Issue no. 14 partly in the affirmative, Issue no. 18 partly in the affirmative, Issue no. 19 partly in the affirmative, Issue no. 20 partly in the affirmative. 187
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66. Issue No. 21:- In view of my finding on Issue No. 1 to 20 and Addl Issue No. 1, I proceed to pass the following:-
ORDER The suit of the plaintiffs and counter claim of the defendant No.5, and counter claim of defendant no. 4, 6 and 7 are decreed as follows.
The plaintiffs and defendant no. 4 to 7 are entitled for partition and separate possession of 1/6th share each in plaint schedule Item no. 6, 9, 17, 19 to 29, 32, 33, 35,
36. The plaintiffs and defendant no. 4 to 7 are entitled for 1/6th share each in Item No. 1 to 6 of counter claim schedule properties of defendant No. 4, 6, 7 (which is equivalent to Item No. 2, 3, 4, 7, 8, 9 of counter claim of defendant No.5). The prayer of the defendant No. 5 regarding the remaining item of the schedule are rejected.
The prayer of defendant No. 4, 6, 7 with respect to item no. 7 and 8 of their written statement schedule is rejected.
The prayer of the plaintiffs regarding remaining plaint schedule item no. 37 to 42 is rejected.
With regarding to Item No. 6 of the plaint schedule, 188 O.S.No. 1990/2018 an area of 7,200 Sq Ft wherein a complex of defendant No. 8 to 10 is in existence namely Balaji complex is excluded by holding that they are the bonafide purchasers of 7,200 Sq.Ft.
With regarding to compensation of counter claim item no.6, since the order is already passed permitting the plaintiffs to withdraw 1/6th share each amount, the defendant No. 4 to 7 are entitled for the remaining compensation amount of 1/6th share each.
It is hereby declared that the gift deed dated 12.06.2015, rectification deed dated 15.06.2016, and 7.04.2017 executed by defendant no. 1 in favour of plaintiff no. 1 in relation to Item No. 4 of counter-claim schedule are not binding on defendant no. 4, 6 and 7. It is hereby declared that gift deed dated 5.03.2004 executed by defendant no. 1 in favour of plaintiff no. 2 with respect to item no. 2 of the written statement schedule is not binding on defendant no. 4, 6 and 7. It is declared that gift deed dated 7.07.2004 executed by defendant no. 1 in favour of plaintiff no. 2 with respect to item no. 3 of written statement schedule property is not binding on defendant no. 4, 6 and 7. It is hereby declared that the 189 O.S.No. 1990/2018 gift deed dated 5.04.2012 executed by defendant No. 1 in favour of defendant No. 5 with respect to item no. 5 of written statement schedule property is not binding on defendant no. 4,6 and 7. It is declared that the gift deed dated 12.06.2019 executed by plaintiff no. 2 in favour of plaintiff no. 1 with respect to written statement schedule item no. 1 not binding on the defendant no. 4, 6 and 7.
The plaintiffs and defendant No. 4 to 7 are entitled for enquiry regarding mesne profit in final decree proceeding with their respective 1/6th shares in the properties.
The permanent injunction is granted restraining the plaintiffs and defendant No.5 from alienating, encumbering, mortgaging the counter claim schedule Item No. 1 to 6 of counter claim of defendant no. 4, 6 and 7 till drawing final decree.
The defendant No. 4 to 7 shall pay court fee with respect to their 1/6th share of compensation of counterclaim Item No. 6 of counterclaim of Defendant No. 4, 6 and 7.
Parties shall bear their own cost.
190
O.S.No. 1990/2018 Draw preliminary decree accordingly. (Prepared by P.O. in the home office and some part of the judgment dictated to SG-I, transcribed by him, corrected and then pronounced by me in the open court on the 6th day of APRIL 2026).
(MOHAN PRABHU), LV Addl. City Civil & Sessions Judge, Bengaluru.
191
O.S.No. 1990/2018 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFF/S:
PW1 Sri.N.A.Venugopal LIST OF WITNESSES EXAMINED ON BEHALF OF DEFENDANT/S: DW1 Smt.Amulya DW2 Sri.Adarsha Ravigopal DW3 Sri.a.R.Shivaram Reddy
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PLAINTIFF/S:
Ex.P-1 Death Certificate Ex.P-2 Portion of writtens tatmeent filed by D1, 2 and 3 Ex.P-3 Certified copy of orders in O.S.No.1927/2021 Ex.P-4 Certified copy of plaint in O.S.No.1927/2021 Ex.P-5 Certified copy of order on IA No.1 and 2 in O.S.No.5958/2022 Ex.P6 None photographs Ex.P7 Reply notice Ex.P8 Order sheet in C.C.NO.2652/2023 Ex.P9 First Information Report Ex.P10 Head of charge sheet in Cr.No.80/2021 Ex.P11 Written statement in O.S.No.4858/2022 Ex.P12 Plaint in O.S.No.4858/2022 Ex.P13 Certified copy of IA No.I Ex.P14 Certified copy of memo Ex.P15 Partnership deed dated 01.02.1973 192 O.S.No. 1990/2018
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF DEFENDANT/S Ex.D-1 Registered Partiton deed dated 31.03.1952 Ex.D2 Certified copy of judgment on admission Ex.D3 Certified copy of Gift Deed dated 06.02.2024 Ex.D4 Certified copy of Partiton deed dated 15.10.2015 Ex.D5 Certified copy of partition deed dated 15.10.2015 Ex.D6 Certified copy of sale deed dated 23.10.1970 Ex.D7 Certified copy of Gift Deed dated 12.06.2019 Ex.D8 Certified copy of Gift Deed dated 07.07.2004 Ex.D9 Certified copy of Gift Deed dated 12.06.2015 Ex.D10 Certified copy of lease agreement dated 21.01.2019 Ex.D11 Certified copy of lease agreement dated 17.02.2020.
Ex.D12 Certified copy of lease agreement Ex.D13 Certified copy of Memorandum of deposit of title deeds executed by the plaintiff No.1 in favour of SBI.
Ex.D14 to 6 photographs 19 Ex.D20 Certified copy of sale Deed of the year dated 28.10.1970 Ex.D21 Certified copy of Gift Deed dated 05.03.2004 Ex.D22 Xerox copy of sale deed dated 15.04.1974 Ex.D23 Certified copy of sale deed dated 04.05.1966. Ex.D24 Certified copy of rectification deed dated 15.06.2016 Ex.D25 Another certified copy of rectification deed dated 07.04.2017 193 O.S.No. 1990/2018 Ex.D26- Certified copy of Sale deed dt: 27.07.1972. Ex.D27- Certified copy of Mutation Register Extract. Ex.D28- Certified copy of Judgment in O.S No.6617/2010.
Ex.D29- Certified copy of Decree in O.S No.6617/2010.
Ex.D30- Copy of Judgment in R.F.A No.1353/2018. Ex.D31- Downloaded copy of Withdrawal memo in R.F.A No.1353/2018.
Ex.D32- Certified copy of order sheet in O.S No.105/2023.
Ex.D33- Certified copy of plaint in O.S No.105/2023. Ex.D34- Certified copy of Sale deed dt: 09.09.2002. Ex.D35- Notarized attested copy of Death certificate of Dasamma.
Ex.D36- Certified copy of E.C in form No.15. Ex.D37- Certified copy of E.C in form No.16. Ex.D38- Six Tax paid receipts.
Ex.D39- E-Katha standing in the name of 4th defendant.
Ex.D40- Sale deed dt: 30.08.1993.
Ex.D41- R.T.C of Sy No.37 of the year 2025-26. Ex.D42- R.T.C of Sy No.40 of the year 2025-26. Ex.D43- R.T.C of Sy No.41 of the year 2025-26. Ex.D44- Copy of Mutation.
Ex.D45- Seven R.T.Cs.
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O.S.No. 1990/2018
Ex.D46- Mutation extract.
Ex.D47- R.T.C.
Ex.D48- Mutation.
Ex.D49- R.T.C.
Ex.D50- Mutation.
Ex.D51- R.T.C.
Ex.D52- Mutation.
Ex.D53- R.T.C.
Ex.D54- Mutation.
Ex.D55- Certified copy of Gift deed dt: 05.04.2012.
Ex.D56- Certified copy of Sale deed dt: 23.10.1970.
Ex.D57- Certified copy of Katha certificate.
Ex.D58- Certified copy of Katha extract.
Ex.D59- Certified copy of E.C.
Ex.D60- Certified copy of E.C.
Ex.D61- Certified copy of Notice dt: 03.12.2009
issued by B.B.M.P.
Ex.D62- Certified copy of order dt: 13.04.2012 in W.P
No.42047/2011.
Ex.D63- Certified copy of order dt: 08.01.2014 in
W.P No.42047/2011.
Ex.D64- Certified copy of order sheet in Misc.
No.634/2014.
Ex.D65- Certified copy of order dt: 30.01.2020 in
Misc. No.634/2014.
Ex.D66- 22 Photographs.
Ex.D66(a)- C.D of Ex.D66 photographs. Ex.D66(b)- The Certificate U/s.65(b) of Evidence Act. 195
O.S.No. 1990/2018 Ex.D-70 Certified copy of Registered Partition Deed dt:
27.03.1945.
Ex.D-70(a) Typed copy of Ex.D70.
Ex.D-71 Original Schedule Description list dt:26.07.1937 standing in the name of N.M.Munishamappa. Ex.D-72 Original Grant Certificate dt: 14.04.1938. Ex.D-73 Original Valuation Certificate dt: 20.08.1970. Ex.D-74 Certified copy of Record of Rights of the year 1970. Ex.D-75 Certified copy of Record of Rights of the year 1976. Ex.D-76 Certified copy of Index of Land of the year 1970. Ex.D-77 Certified copy of Record of Rights of the year 1970. Ex.D-78 RTC of the year 1965-66 to 1969-70. Ex.D-79 RTC of the year 1965-66 to 1969-70. Ex.D-80 RTC of the year 1965-66 to 1969-70. Ex.D-81 RTC of the year 1965-66 to 1969-70. Ex.D-82 RTC of the year 1965-66 to 1969-70. Ex.D-83 RTC of the year 1965-66 to 1969-70. Ex.D-84 RTC of the year 1965-66 to 1969-70. Ex.D-85 Certified copy of Sale deed dt: 18.02.1995. Ex.D-85(a) Readable copy of Ex.D85.
Ex.D-86 Certified copy of Sale deed dt: 18.02.1995. Ex.D-85(a) Readable copy of Ex.D86.
Ex.D-87 Certified copy of Sale deed dt: 18.02.1995. Ex.D-87(a) Readable copy of Ex.D87.
Ex.D-88 Katha Certificate.
Ex.D-89 Katha Extract.
Ex.D-90 Katha Certificate.
Ex.D-91 Katha Extract.
Ex.D-92 Property Tax receipt from the year 2021-22 to 2025-
196
O.S.No. 1990/2018
2026.
Ex.D93 to 95 Building License three in number. Ex.D96 Three Photographs of building. Ex.D97 Document for having obtained loan issued by K.S.F.C. LV Addl. City Civil & Sessions Judge, Bengaluru.