Bangalore District Court
And His Brother And Sisters Partitioned ... vs No.1 Has Acquired The Said Property As A ... on 15 October, 2020
1 O.S.No.7385/2013
THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE, [CCH-
40], BANGALORE CITY.
Dated on this the 15th day of October, 2020.
-: Present :-
Sri. Kadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO.7385/2013
Plaintif N.Balaji Singh S/o. Late Narayan
Singh, 42 Years, R/o.No.1209,
(Old No.544/73), 5th Cross, 7th
Main, 4th Phase, Gokul 1st Stage,
K.N.Extension, Yeshwanthapura,
Bengaluru - 560 022.
(By Sri.N.J.Ramesh, Advocate)
/ Versus /
Defendants 1. Smt.Mathura Bai W/o.Late
Naryan Singh, 65 Years,
R/o.No.1209 (Old No.544/73), 5th
Cross, 7th Main, 4th Phase, Gokul
1st Stage, K.N.Extension,
Yeshwanthapura, Bengaluru -
560 022.
2. Smt.Uma Bai. [ Dead]
3. Smt.Amitha Bai D/o.Late
Narayan Singh, W/o.Pradeep
Kumar Singh, 45 Years,
R/o.No.894, Lakshmi Nilaya, 7thA
i
Cross, Triveni Road,
2 O.S.No.7385/2013
Yeshwanthapura,Bengaluru - 22.
4. Smt.Sunitha Bai D/o. Late
Narayan Singh, W/o.Prakash
Singh, 44 Years, R/o.No.1209
(Old No.544/73), 5th Cross, 7th
Main, 4th Phase, Gokul 1st Stage,
K.N.Extension, Yeshwanthapura,
Bengaluru - 560 022.
5. Smt. Sushma Bai D/o. Late Jyothi
Lakshman Singh & Uma Bai,
W/o.Guru Raghavendra Singh,
23 Years, R/o.No.27, 11th Cross,
2nd Main, B.K.Nagar,
Yeshwanthapura, Bengaluru: 22.
6. K.K.Rajanna S/o.Mariyappa, 60
Years, R/o.No.387/1, Sri.Gayatri
Devi Nilaya, 6th Main, 5th A Cross,
MEI Layout, Nagasandra Post,
Bengaluru - 560 073.
7. B.R.Sekar Rao S/o. B.Madan
Mohan Rao, 42 Years,
R/o.No.387/1, Sri Gayatri Devi
Nilaya, 6th Main, 5th A Cross, MEI
Layout, Nagasandra Post,
Bengaluru - 560 073.
8. Bank of Baroda, Peenya Branch,
No.1A, Khushai Garden Arcade,
Peenya Industrial Area, II Phase,
Bengaluru - 560 058,
represented by Senior Branch
Manager.
(D -1 to 5 - Sri.K.S.R. Advocate
3 O.S.No.7385/2013
D.6 to 7 - Sri.G.S., Advocate
D.8 - Sri.G.R.H., Advocate)
******
Date of Institution of the suit : 07.10.2013
Suit for partition,
Nature of suit : separate
possession &
declaration
Date of commencement of
evidence : 08.09.2014
Date on which the judgment
is pronounced : 15.10.2020
Years Months Days
Duration taken for disposal :
07 00 08
***
JUDGMENT
The plaintiff has filed the present suit against the defendants for the relief of partition and separate possession of his 1/5th share in the suit schedule properties, declaration that the two gift deeds dated 25.6.2010 executed by defendant No.1 in favour of defendants No.2 to 5 are illegal and not binding upon the plaintiff's share and declaring that the registered sale deed 2.2.2001 executed by defendant No.1 in favour of defendant No.6 and another sale deed dated 4.1.2010 executed by defendant No.6 in 4 O.S.No.7385/2013 favour of defendant No.7 and the mortgage deed dated 15.12.2012 executed by defendant No.7 in favour of defendant No.8 are not binding upon the plaintiff's share and for the relief of permanent injunction restraining the defendants from alienating or creating any encumbrance over the suit schedule properties.
2. The case of the plaintiff in brief is as under :
That, the defendant No.1 is the mother of plaintiff and defendants No.2 to 4. The plaintiff and defendants No.1 to 4 constitute a joint Hindu family, governed by Mitakshara School. That, one late Krishna Singh was the original propositus. The father of the plaintiff is the second son of said Krishna Singh. The propositor Krishna Singh and his wife Sundarabai died intestate leaving behind their two sons and two daughters as their legal heirs and successors. After the death of said Krishna Singh, the father of the plaintiff and his brother and sisters partitioned the joint family property on 18.3.1985. As per said partition, the father of the plaintiff acquired the suit schedule Item No.1 5 O.S.No.7385/2013 property i.e., BDA Site No. 544/73, Corporation No.73 situated at 5th Cross, 7th Main, K.N. Extension, Yeshwanthapura, Bengaluru. The plaintiff further pleaded that his father Narayana Singh was an employee of M.E.I. During his lifetime he applied for allotment of site. Accordingly the said M.E.I. House Building Co-Operative Society allotted the site in the name of said Narayana Singh. Subsequently said Narayan Singh died on 4.11.1991 intestate leaving behind the plaintiff and defendants No. 1 to 4 as his legal heirs. After the death of said Narayana Singh, the M.E.I.Employee House Building Co-operative Society Limited has executed registered sale deed in the name of defendant No.1 in respect of item No.2 property i.e., Site No.387, Khatha No.1892 situated at Bagalagunte, Yeshwanthapura Hobli, Bangalore North Taluk. The defendant No.1 has acquired the said property as a Manager of Hindu joint family. The plaintiff and defendants No.1 to 4 are in joint possession and enjoyment of suit schedule properties. Hence, plaintiff has got 1/5th share in the suit 6 O.S.No.7385/2013 schedule properties. The plaintiff further pleaded that his father was an employee of Mysore Electrical Industries and has performed the marriage of defendants No.2 and 3. Though the marriage of defendant No.2 was performed in the year 1985, she lived with her husband about 2 to 3 years and after she gave birth to defendant No.5, she has deserted her husband and started residing in the item No.1 property with the defendant No.5 along with her parents. The defendant No.3 is residing in her in-laws house. The plaintiff and defendants No.1 to 4 are the only legal heirs of said Narayana Singh. Accordingly his employer has given the job to the plaintiff on compensatory ground. The plaintiff and defendants No.1, 2, 4 and 5 have been remained in item No.1 property and let out remaining two houses in the ground floor and five houses in the first floor to various tenants. After the death of Narayana Singh, the defendant No.1 has been managing affairs of the joint family and its properties in all respects. The plaintiff has performed the marriage of defendant No.4 in the year 1997. 7 O.S.No.7385/2013 After the marriage she was living with her husband in her matrimonial house about five years and then she herself deserted her husband and started living with the plaintiff and defendants No.1 to 3 in item No.1 property. The source of the income of the joint family consists of plaintiff and defendants No.2 to 4 is the salary of plaintiff and rental income derived from item No.1 property.
3. The defendant No.1 is always showing soft corner towards her daughters than her son and virtually she is a puppet in the hands of her daughters and helping them from the beginning as far as possible without denying it. That, during the month of December, 2000 the defendant No.3 insisted the plaintiff and defendant No.1 to give loan of Rs.2 Lakh as she and her husband facing financial crisis. The plaintiff who had no money has expressed his inability to give it. After few days the defendant No.2 approached the plaintiff and defendant No.1 and suggested to raise a loan of Rs. 2 Lakh on item No.2 property and she knew the person who will give loan facility on lower interest at the 8 O.S.No.7385/2013 rate of 1% p.m. and then she and her husband will repay the said loan along with interest and get redeemed the property. Though the plaintiff was not willing to raise the loan on it as the other joint family members have also got right over it, the defendant No.1 has agreed for the same. Thereafter defendant No.3 has introduced defendant No.6 as creditor who is ready to lend Rs.2 Lakh on execution of mortgage deed in respect of item No.2 property towards the security of the loan amount. Defendant No.1 agreed for the same. As per the request of defendant No.1 the plaintiff gone to the Sub-Registrar Office on 5.2.2001 and put his signature on the documents. The plaintiff has put his signature on the document on the presumption that the said document is a mortgage deed. Subsequently he came to know that the defendants 1 o 4 have colluded with each other and have sold the property to defendant No.6.
4. Plaintiff further averred that, on 15.4.2005 the plaintiff got married one Mallika of different caste without the consent of defendants No.1 to 4. The plaintiff brought 9 O.S.No.7385/2013 his wife to his home and the defendants No.1 to 4 objected for this and however, the plaintiff continued to reside in the Item No.1 property. After the marriage of plaintiff the defendants No.1, 3 and 4 were giving pin-pricks to the plaintiff and his wife and children and without tolerating it, the plaintiff and his wife and children have started to live in one of the small house in the first floor. Subsequently the defendants No.1 and 3 to 5 were tried to dispossess the plaintiff from the said house. Therefore, the plaintiff claimed partition in the suit schedule properties. The defendants denied the claim of the plaintiff and claimed that the defendant No.1 is the absolute owner of the suit schedule properties and Item No. 1 property has been gifted to defendants No. 2 to 5 and also executed the registered Will in favour of the plaintiff. The Item No.2 property has been alienated to the defendant No.6 long back and same is not available for partition. By hearing the same, the plaintiff got shocked and made an enquiry about the properties and he came to know that the suit schedule item No.2 property 10 O.S.No.7385/2013 has been sold to defendant No.6 and the defendant No.1 has executed two gift deeds on 25.6.2010 in respect of Item No.1 property, out of which one is in favour of defendant No.3 and another one is in favour of defendants No.2, 4 and
5. The defendant No.1 has no right to execute the said gift deeds, Will and sale deed. That, the defendant No.6 on the basis of sale deed dated 5.2.2001 has alienated half portion in item no.2 property to defendant No.7 on 4.1.2010. The defendant No.7 has mortgaged the southern half portion Item No.2 property to defendant No.8 by way of deposit of title deeds and has obtained loan. That, in all these transactions the plaintiff is neither party nor the consenting for the same. The sale deeds and gift deeds made by defendant No.1 are not binding upon the plaintiff's share. Hence, prayed for decreeing the suit.
5. In response to the suit summons, defendants appeared through their counsel and filed their written statements. The defendants have denied the claim of the plaintiff and further contended that there is no cause of 11 O.S.No.7385/2013 action to file the suit. The plaintiff has filed the suit only with an intention to engulf the properties. The defendants further contended that the suit schedule properties are the self-acquired properties of defendant No.1 and she has got rights over the properties and she can dispose off the said properties as per her wish. That, the plaintiff is well aware about the sale deed dated 5.2.2001 and he is also one of the signatory to the said sale deed, even then has filed the present suit.
6. That, the plaintiff is not in possession of the suit schedule properties and has paid court fee under Section 35(2) of K.C.F.S Act. The plaintiff ought to have paid court fee under Section 35(1) of Karnataka Court Fees and Suits Valuation Act. The suit of the plaintiff is barred by limitation.
7. The defendants No.6 and 7 specifically pleaded that the defendant No.1 and plaintiff have been suffering from financial constrains and in order to discharge the debts and to meet the legal necessities they have sold the Item 12 O.S.No.7385/2013 No.2 property to defendant No.6. The plaintiff is one of the witness to the said sale deed. The plaintiff has voluntarily put his signature to the said sale deed. There is no coercion or undue influence made by the defendant No.6 to the plaintiff. On the date of sale deed itself the possession of the property has been delivered to defendant No.6. Since then the defendant No.6 is in possession of the property and as per said sale deed his name has been mutated in the B.B.M.P. records and khatha is standing in his name. The defendant No.6 in order to meet the family legal necessities has sold the portion of suit schedule Item No.2 property to the defendant No.7 and has executed registered sale deed in the name of defendant No.7 and possession has been delivered to the defendant No.7. The defendants No.6 and 7 are the bonafide purchasers for the valuable consideration. The defendant No.7 being lawful owner of ½ portion suit schedule Item No.2 property has mortgaged the said property to defendant No.8. The defendant No.8 is no way concerned with the suit, hence, the suit is not 13 O.S.No.7385/2013 maintainable in the present form. The plaintiff has filed the present suit only with an intention to cause loss and harassment to the defendants. Hence, prayed for dismissal of the suit.
8. On the basis of pleadings and documents produced by both the parties the following issues and additional Issues No.1 to 6 have been framed :
1) Whether the plaintiff proves that, the suit schedule properties are the joint family properties of himself and defendants No.1 to 5?
2) Whether the plaintiff proves that he has got 1/5th share in the suit schedule properties ?
3) Whether the defendants No.1, 6 and 7
prove that, the defendants No.6 is
bonafide purchaser of the suit property
for valuable consideration and for the
needs of the family of the plaintiff and
defendants No.1 to 5?
4) Whether defendant No.8 proves that the
14 O.S.No.7385/2013
suit is not maintainable against
defendant No.8 ?
5) Is plaintiff entitled for the suit relief as
sought for ?
6) What order or decree ?
Additional Issues framed on 16.01.2020 :
1) Whether the plaintiff proves that Gift Deeds dated 25.6.2010 executed by defendant No.1 in favour of defendants 2 to 5 are illegal and not binding upon plaintiff share ?
2) Whether the plaintiff proves that Sale Deed dated 2.2.2001 executed by the defendant No.1 in favour of defendant No.6 is not binding upon the plaintiff share ?
3) Whether the plaintiff proves that Sale Deed dated 4.1.2010 executed by the defendant No.6 in favour of defendant No.7 is not binding upon the plaintiff share ?
4) Whether the plaintiff proves that Mortgage Deed dated 15.12.2012 executed by the defendant No.7 in favour of defendant No.8 is not binding upon the plaintiff share ?
5) Whether the court fee paid by the 15 O.S.No.7385/2013 plaintiff is sufficient ?
6)Whether the defendants No.6 and 7
prove that suit of the plaintiff is barred by limitation ?
9. In order to substantiate his claim, plaintiff himself examined as P.W.1 and got marked the documents Exs.P.1 to P.28. On the other hand, in order to rebut the case of the plaintiff, defendants No.4, 6 and 7 have been examined as D.Ws.1 to 3 and got marked the documents Exs.D.1 to D.17.
10. That, during the pendency of the suit, defendant No.2 died. The counsel of plaintiff filed Memo stating that defendant No.5 is the only legal heir of defendant No.2.
11. Heard the arguments of both sides and perused the written arguments filed by the plaintiff.
12. My findings on the above issues are as follows:
Issue No.1 : In the affirmative.
Issue No.2 : Partly in the affirmative. 16 O.S.No.7385/2013 Issue No.3 : In the affirmative.
Issue No.4 : In the negative.
Issue No.5 : Partly in the affirmative. A.Issue No.1: In the affirmative.
A.Issue No.2: In the negative.
A.Issue No.3: In the negative.
A.Issue No.4: In the negative.
A.Issue No.5: Court fee paid by the plaintiff is insufficient.
A.Issue No.6: In the affirmative.
Issue No.6 : As per the final order, for the following:
REASONS
13. Issue No.1 :- In this case both the parties have admitted the relationship and have also admitted that the suit schedule Item No.1 property is the ancestral property of plaintiff and defendants No.1 to 4. It is is also admitted by plaintiff and defendants No.1 to 5 that the father of the plaintiff and defendants No.2 to 4 and husband of defendant No.1 was an employee of Mysore Electrical Industries. During his lifetime he applied for allotment of site to the Mysore Electrical Industries Employees House Building Cooperative Society Ltd. Accordingly the said Society has 17 O.S.No.7385/2013 allotted site No.387 situated at Bagalagunte Village, Yeshwanthapura Hobli, Bangalore North Taluk measuring East - West 40 Feet, North - South 60.6 Feet i.e., suit schedule Item No.2 property. That, after the death of the father of the plaintiff, defendants No. 2 to 4 and husband of defendant No.1 Narayana Singh, the said society has executed registered sale deed in favour of defendant No.1.
14. The plaintiff claims that both the properties are the joint family properties of plaintiff and defendants No.2 to
4. Whereas, the defendants No.1 to 5 claims that the suit schedule properties are the self acquired properties of defendant No.1 and the plaintiff is no way concerned with the said properties.
15. In order to substantiate his claim, plaintiff himself examined as P.W.1 and got marked the documents Exs.P.1 to P.28. The examination-in-chief of P.W.1 is nothing but replica of plaint averments. P.W.1 in his examination-in- chief deposed that, the suit schedule properties are the 18 O.S.No.7385/2013 joint family properties of plaintiff and defendants No.1 to 4. The suit schedule item No.1 property was inherited by the father of plaintiff in the partition taken place between father of plaintiff and his brothers as per Ex.P.28 - Relinquishment Deed. The father of plaintiff was an employee of M.E.I. and during his lifetime he applied for allotment of site to the MEI House Building Co-operative Society. Subsequently the father of plaintiff died. Since defendant No.1 was the nominee of Late B.Narayana Singh and hence, the said society has executed registered sale deed in the name of defendant No.1 as per Ex.P.6 in respect of Item No.2 property. The said society has issued certificate to that effect as per Ex.P.7.
16. After the death of Narayana Singh, the defendant No.1 was the senior member of the family and she was managing the entire family affairs. The plaintiff and defendants No.1 to 4 are in joint possession and enjoyment of the suit schedule properties.
19 O.S.No.7385/2013
17. P.W.1 further deposed that his father has performed the marriage of defendants No.2 and 3 and himself has performed the marriage of defendants No.4. His father has died on 4.11.1991 while in service. Ex.P.2 is the certified copy of the Death Certificate of Narayana Singh. After the death of his father, M.E.I. has given said job to him on compassionate grounds.
18. Though the marriage of defendants No.3 and 4 were performed, but they were living with him and his mother in the suit schedule properties. The defendant No.1 is always showing soft corner towards defendants No.2 to 4 and she is a puppet in their hands and used to help them in all respects from the beginning as far as possible without denying their demands. That, in the month of December 2000 defendant No.3 insisted to lend sum of Rs. 2 Lakh as she and her husband facing short of funds to purchase a site. The plaintiff shown his inability. After few days the defendant No.2 had approached the plaintiff and defendant 20 O.S.No.7385/2013 No.1 and suggested to raise a loan of Rs. 2 lakh on item No.2 property and she brought defendant No.6 and as per request of defendants No.1 and 3, the plaintiff agreed for raising the loan. While advancing the loan, the defendant No.6 demanded the security. Accordingly they have agreed to execute mortgage by deposit of title deeds in respect of Item No.2 property. As per request of the defendants No.1 and 3, the plaintiff gone to the Office of Sub-Registrar on 5.2.2001 and put his signature in the Sub-Registrar's Office. The plaintiff asked them to allow him to read the document before signing it. But, the defendants No.1 and 3 have stated that they have read and verified it, same is mortgage deed and they have also received the loan amount. Therefore, on good faith and believing the words of defendants No.1 and 3, the plaintiff put his signature on document. Subsequently the plaintiff asked defendant No.3 about the discharge of loan. She always used to say that she is paying the interest regularly and will repay the entire loan amount in a short period and will get redeemed 21 O.S.No.7385/2013 the property shortly.
19. P.W.1 further deposed that he married one Mallika on 15.4.2005, but defendants No.1 to 4 objected for the marriage of plaintiff with the said Mallika and even after the marriage the defendants No.1 to 4 started to ill-treat the plaintiff and his wife and children. Therefore, the plaintiff started residing in a separate house. Thereafter the defendants No.1 and 3 to 5 tried to dispossess the plaintiff and his wife and children. Subsequent to 31.5.2013 the plaintiff demanded his share in the joint family properties, but the defendants No.1 to 4 have denied the claim of the plaintiff and they have contended that the defendant No.1 is the absolute owner of the suit schedule properties and she has executed gift deeds in respect of Item No.1 property in favour of defendants No.2 to 5 and also executed registered Will in favour of plaintiff in respect of portion of Item No.1 property. The defendant No.1 has alienated the Item No.2 property long back. Hence, the said property is not available for partition. By hearing the same, he made 22 O.S.No.7385/2013 an enquiry about the suit schedule properties and secured the documents in respect of the suit schedule properties. At that time he came to know that the defendant No.1 has alienated the suit schedule Item No.2 property in favour of defendant No.6 on 5.2.2001 for Rs.2,20,000/- and subsequently has executed gift deed in respect of portion of Item No.1 property in favour of defendants No.2 to 5 on 25.6.2010 and also executed a registered will. The defendants No.1 to 4 and 6 have played fraud on him and have transferred the property. That, after purchase of suit schedule Item No.2 property defendant No.6 alienated half portion of Item No.2 property in favour of defendant No.7. The defendant No.7 after purchasing the said property has mortgaged the same to defendant No.8 as per Ex.P.10 - Mortgage Deed and has raised loan. The defendant No.1 has no absolute right over the suit schedule properties and she cannot dispose off the property as per her whims and fancy. He has got 1/5th share in the suit schedule properties. Hence, he prayed for decreeing the suit. The 23 O.S.No.7385/2013 counsels for the defendants cross-examined P.W.1 in length, nothing worth has been elicited from the mouth of P.W.1 as regards to the joint family properties. The counsel for the defendants made a specific suggestion that the item No.2 property was self-acquired property of defendant No.1. The witness denied the said suggestion. The counsel for the defendants further made the suggestion that the defendant No.1 alone paid the entire sale consideration amount in respect of item No.2 property, the witness denied the said suggestion also.
20. The counsel for plaintiff argued that the defendant No.1 was the nominee, accordingly the sale deed in respect of suit schedule item No.2 property has been executed in the name of defendant No.1 as per Ex.P.8, the defendant No.1 has acquired the said property as a Manager of the family and also relied upon following decisions reported in :
1) (2016) 6 SCC 440 - Indrani Wahi Vs. Registrar of Co-Operative Societies and others, in which the Hon'ble Apex Court held that : "Having regard to 24 O.S.No.7385/2013 Sections 79 and 80 (1)(a) of the Act and Rules 127 and 128 of the Rules, it is clear that where a member of a co-operative society nominates a person in consonance with the provisions of the Rules, on the death of such member, the co-
operative society is mandated to transfer all the share or interests of such member in the name of the nominee. The co-operative society has no option whatsoever, except to transfer the membership in the name of the nominee, in consonance with Sections 79 and 80 of the Act (read with Rules 127 and 128 of the rules).
However, transfer of share or interest, based on a nomination under Section 79 in favour of the nominee, is with reference to the co-operative society concerned, and is binding on the said society. Such transfer of membership in the name of the nominee is binding only as against the society and would have no relevance to the issue of title between the inheritors or successors to the property of the deceased. Therefore, it shall be open to the other members of the family to pursue their case of succession or inheritance, if they so advised, in consonance with law."
25 O.S.No.7385/2013
2) AIR 1986 SC 1753 - Commissioner of Wealth Tax Kanpur etc., Vs. Chander Sen etc., in which the Hon'ble Apex Court held that : "Held, that the son inherited the property as an individual and not as karta of his own family. Hence, it could ot be included in computing the assessee's wealth."
3) 2007 (2) KCCR 1349 - [Mrs.Mallika and others Vs. Mr.Chandrappa and others] in which the Hon'ble High Court of Karnataka held that : Head Note C :
"Hindu Succession Act, 1956 - Section 8 - Property devolved under on a Hindu - Cannot be treated as undivided property in his hand vis-a- vis his own son - When schedule to Act indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, it cannot be said that, when son inherits property in a situation as contemplated by Section 8, he takes it as Kartha of his own undivided family - This position clarified by Supreme Court modifying earlier concept under Mitakshara law - High Court not considering same - Is an error apparent - Its order reviewable - Earlier order contrary to this principle accordingly modified."26 O.S.No.7385/2013
4) 2015 (4) KCCR 3115 (DB) - Smt. Radha Vs. Venkatappa and others, which the Hon'ble High Court of Karnataka held that : "Hindu Succession Act, 1956-Section 8-Ancestral or self-acquired property-Devolution of self-acquired property of father - Becomes self-acquired property of son."
5) AIR 2005 MADRAS 193 - H.Vidyapoornan Vs. L.H.Premavathy and others, in which the Hon'ble Madras High Court held that : "(B) : Hindu Law - Joint family property- Suit for partition - Plaintiff daughter not in possession of any property - Father of plaintiff had died leaving behind his self acquired property which was in possession of other heirs - Plaintiff should be presumed notionally that she is in possession and enjoyment of joint family properties - Suit cannot be said to be not maintainable on her behalf."
21. There is no dispute as regards to the ratio laid down by the Hon'ble Apex Court, Hon'ble High Court of Karnataka and Hon'ble High Court of Madras. But, the plaintiff has failed to convince the court how far the said ratios are applicable to the case in hand. In this case there 27 O.S.No.7385/2013 is no dispute as regards to the relationship and properties. The facts of the present case are altogether different from the facts involved in the above said decisions. Hence, the above said decisions will not come to the aid of plaintiff.
22. Though the defendants No. 1 to 5 have contended that the suit schedule properties are the self-acquired property of defendant No.1, but D.W.1 in her cross- examination at page No.6 clearly admitted that, her mother had no income and she had paid sale consideration amount in respect of the Item No.2 out of the rent received from Item No. 1 property. D.W.1 further admitted in her cross- examination at page No.7 that, "It is true that item No.1 is my father's property." D.W.1 further, admitted in her cross- examination at page No.9 that, "It is true that as my father was member of M.E.I. House Building Co-Operative Society, Item No.2 was allotted to my father. It is true that, he died before payment of entire installment. It is true that, after demise of my father, the society has executed sale deed in the name of my mother on behalf of joint family.", which 28 O.S.No.7385/2013 clearly goes to show that suit schedule properties are the joint family properties of plaintiff and defendants No.1 to 4. As per Section 58 of Indian Evidence Act, facts admitted need not be proved.
23. That, on perusal of Ex.P.1 - Sale Deed dated 3.4.1962, it reveals that Krishna Singh i.e., grand-father of the plaintiff and defendants No.2 to 4 had purchased the Item No.1 property and on perusal of Ex.P.28 - Relinquishment Deed dated 18.3.1985, it reveals that after the death of said Krishna Singh, his son Hanuman Singh and daughters Parvathibai and Ratnabai have relinquished their rights over the Item No.1 property in favour of Narayana Singh i.e., father of plaintiff, defendants No.2 to 4 and husband of defendant No.1. That, on perusal of Ex.P.3 - Sale Deed it reveals that the B.D.A. has initially acquired Item No.1 property and subsequently denotified the acquisition proceedings and has reconveyed the Item No.1 property in favour of defendant No.1. That, on perusal of Ex.P.6 - Sale Deed dated 21.9.1995 it reveals that the 29 O.S.No.7385/2013 Mysore Electrical Industries Employee House Building Co- operative Society Ltd., has executed the registered sale deed in respect of Item No.2 property in the name of defendant No.1. That, on perusal of Ex.P.7 - Letter issued by said MEI House Building Co-operative Society it reveals that B.Narayana Singh was member of the said society and has expired on 4.11.1991. The defendant No.1 being the nominee of said Narayana Singh, hence, Ex.P.6 - Sale Deed has been executed in her name. It is well settled law that the nominee becomes a trustee to hold the property on behalf of the legal heirs. It is only legal heirs who have the beneficial ownership rights of the property.
24. By considering the oral evidence of P.W.1, D.W.1 and documentary evidence - Exs.P.1, P.6, P.7 and P.28 it clearly reveals that the suit schedule properties are the joint family properties of plaintiff and defendants No.1 to 4. hence, the plaintiff proved the fact that the suit schedule properties are the joint family properties. Accordingly, I answer Issue No.1 in the affirmative.
30 O.S.No.7385/2013
25. ISSUE No.3 AND ADDITIONAL ISSUES No.2 TO 4: These issues are interconnected with each other. Hence, in order to avoid repetition of facts and evidence, they are taken up together for common discussion.
26. It is the case of plaintiff that suit schedule Item No.2 property bearing Site No.387, Khatha No.1892 measuring East - West 40 North - South 60.6 Ft. situated at Bagalagunte Village, Yeshwanthapura Hobli, Bangalore North Taluk is the joint family property standing in the name of defendant No.1. In order cause loss to the plaintiff, defendant No.1 has executed sale deed on 2.2.2001 as per Ex.P.8 and the defendant No.6 in turn has alienated half portion of Item No.2 property in favour of defendant No.7 on 4.1.2010 as per Ex.P.9 and presently khathas are standing in the name of the defendants No.6 and 7. The defendant No.1 is always showing soft corner towards his daughters and she is a puppet in the hands of her daughters. In order to help defendant No.3 the defendant 31 O.S.No.7385/2013 No.1 requested the plaintiff for raising loan on Item No.2 property. Accordingly, the defendant No.3 brought defendant No.6 as a creditor who is ready to lend the loan of Rs.2 Lakh. The defendant No.1 requested the plaintiff for signing the mortgage deed. Accordingly, by believing the words of defendant No.1, the plaintiff has put his signature on Ex.P.8 under the impression that the said document is a mortgage deed. He has not gone through Ex.P.8 - Sale Deed while putting his signature. Hence, the said sale deed is not binding upon him. The defendants No.1, 3 and 6 have colluded with each other and got registered the sale deed as per Ex.P.8. Though the plaintiff denied the sale deed Ex.P.8, but he admits the signatures on Ex.P.8 - sale deed.
27. The counsel for the plaintiff argued that the suit schedule Item No.2 property is the joint family property of plaintiff and defendants No.1 to 4, the defendant No.1 has no absolute right to sell the said property and hence, the sale deed executed by defendant No.1 in favour of defendant No.6 and sale deed executed by defendant No.6 32 O.S.No.7385/2013 in favour of defendant No.7 are not binding upon the share of the plaintiff.
28. Per contra, the counsels for the defendants argued that the defendant No.1 being the Manager of the joint family and has alienated item No.2 property for family legal necessity. The plaintiff is one of the signatory to Ex.P.8
- Sale Deed. Hence, he cannot deny the said document.
29. Admittedly, the husband of defendant No.1 and father of plaintiff and defendants No.2 to 4 - B.Narayana Singh had died on 4.11.1991. After the death of said Narayana Singh, the defendant No.1 managing the entire family affairs. P.W.1 also in his cross-examination at page No.29 admitted that, "2005 gÀ°è £À£Àß ªÀÄzÀĪÉAiÀiÁ¬ÄvÀÄ. 1991 gÀ°è £À£Àß vÀAzÉ wÃjPÉÆAqÀ £ÀAvÀgÀ 2002 gÀ ªÀgÉUÉ £ÀªÀÄä ªÀÄ£ÉAiÀÄ AiÀÄdªÀiÁ¤PÉAiÀÄ£ÀÄß vÁ¬ÄAiÉÄà ªÀiÁqÀÄwÛzÀÝgÀÄ. D°èAiÀĪÀgÉUÀÆ £Á£ÀÄ, £À£Àß vÁ¬Ä ªÀÄvÀÄÛ ¸ÀºÉÆÃzÀjAiÀÄgÀÄ eÉÆvÉAiÀÄ°èAiÉÄà EzÉÝêÀÅ. 2002 jAzÀ 2005 gÀ ªÀgÉUÀÆ £À£Àß vÁ¬Ä AiÀÄdªÀiÁ¤PÉ ªÀiÁqÀÄwÛzÀÝgÀÄ." P.W.1 unequivocally 33 O.S.No.7385/2013 admitted that defendant No.1 was managing the entire family affairs. The defendant No.1 being the manager of joint family she has got every right to dispose of the property for the family legal necessity.
30. The counsel for plaintiff argued that, there is no legal necessity for alienation of suit schedule item No.2 property. The alienation made by defendant No.1 is not binding upon the plaintiff's share. The plaintiff is one of the attesting witness and there is no presumption under the law that the attestor to the document is aware of the contents and also relied upon following decisions :
(1) ILR 1999 KAR 3129 - Babu Mother Savavva Navalagund and others Vs. Gopinath, in which the Hon'ble High Court of Karnataka held that :
(B) : Hindu Law - Sale of coparcenery property by one of the coparceners exceeding his own interest, does not bind the other coparceners if the sale is not for legal necessity or benefit of estate. They are entitled to have the alienation set aside to the extent of their own interest therein."34 O.S.No.7385/2013
(2) AIR 1979 ORISSA 60 - Kastura Sahani Vs. Das Seth and another, wherein the Hon'ble Orissa High Court held that : "Though defendant No.1 was the Karta of the family he could not exercise the powers of a karta in respect of that 1/3rd share of deceased L as the heirs under the Act would succeed to that portion of the property as tenants-in-common and there was no coparcenery between the son and the female heirs of L. Therefore, in the facts of the case the sale of the suit land (which was only 2.16 acres of the entire 60 acre of lands) by him to the plaintiff could not be declared to be illegal or invalid merely because defendant 1's distinct portion in that property has not been carved out by actual partition by metes and bounds. That being so, the plaintiff had acquired valid right, title and interest in the suit property, but he could ot obtain exclusive possession of the same at present as the entire property was still in joint possession of defendants 1 and 2. The plaintiff could recover possession of the suit property when defendant No.1's distinct share in the entire property was carved out by partition or otherwise."35 O.S.No.7385/2013
In this case the plaintiff is one of the signatory to the agreement to sell and sale deed i.e., Exs.P.7 and P.14. He is well aware about the alienation of Item No.2 property. Hence, plaintiff is estopped from denying the said sale deed. Hence, the above said decision will not come to the aid of plaintiff.
(3) AIR 1990 SC 1269 - M.Sundermoorthy Vs. State of Tamil Nadu through Inspector of Police, wherein Hon'ble Apex Court held that :
"Held, that conduct of appellant was inconsistent with the transaction of loan or return of money by informant. It could not be said that the appellant had even by preponderance of probability succeeded in rebutting the presumption."
The said decision pertains to criminal case as regards to the offence of accepting the bribe. Hence, the said decision is not applicable to the case in hand.
31. The counsel for plaintiff further argued that though the defendants have marked the document, but have not proved the contents of the document and the 36 O.S.No.7385/2013 purchaser cannot claim the joint possession the defendants have not examined the material witnesses and also relied upon the decisions reported in (1972) 4 SCC 562 - Sait Tarajee Khimchand and others Vs. Yelamarti Satyam @ Satteyya and others, in which the Hon'ble Apex Court held that : "Mere marking of exhibits does not give proof of document." In this case the plaintiff himself admits signature on Ex.D.14 - agreement to sell and sale deed. Once he admits the signature on the document, he cannot deny the contents of the document.
32. The counsel for the plaintiff relied one more decision 2014 (1) KCCR 865 - R.Sandhya and another Vs. S.R.Raju, in which the Hon'ble High Court of Karnataka held that, "B : Evidence Act, 1872 - Section 114(g) - Adverse inference - Where as best witness who could speak about the circumstances under which the disputed document was executed is withheld from examining as a witness, it will give raise to draw an adverse inference against the plaintiffs". It is well settled law that, 37 O.S.No.7385/2013 documentary evidence prevails over the oral evidence and it is also well settled law that the registered document has got presumptive value under law. One who denies the document has to establish his case. Hence, the said decision is not applicable to the case in hand.
33. The counsel for plaintiff also relied on another decision reported in AIR 1966 SC 470 - M.V.S.Manikayala Rao Vs. M.Narasimhaswamy and others, wherein the Hon'ble Apex Court held that : "Limitation Act (9) of 1908 Article 144 - Adverse possession begins when plaintiff becomes entitled to possession - Alienation by coparceners of undivided interest - Alienee not entitled to possession of interest purchased by him till partition." The defendants No.6 and 7 are not claiming the possession of suit schedule item No.2 property. They claimed that they are already in possession of suit schedule item No.2 property. That, on careful perusal of sale deed - Ex.P.8 the possession of the suit schedule item No.2 property has been delivered on the date of execution of sale deed itself i.e., 2.2.2001. D.W.1 38 O.S.No.7385/2013 also clearly deposed that the plaintiff is not in possession of suit schedule item No.2 property. The plaintiff has not denied the possession of the defendants No.6 and 7 over the suit schedule item No.2 property. Hence, the said decision is not applicable to the case in hand.
34. That, in a decision reported in 2008(4) ALL MR 882 the Hon'ble High Court of Judicature at Bombay (Aurangabad Bench) held in the case of Shripati S/o. Santu Mane Vs. Goroba S/o. Nivarti Ghutukade & Anr. as under :
"In absence of father, mother can very well sell the property of minor for legal necessity or for benefit of the estate." As per the above decision the mother can very well sell the property of minor for legal necessity or for benefit of the estate. Under the Hindu Law, the mother being the natural guardian of her children in the absence of father the mother can alienate the property for the welfare of the family. P.W.1 in his cross-examination clearly admitted that his mother has performed the marriage of defendant No.4 and she made the financial arrangement to the tune of Rs.4 Lakh. 39 O.S.No.7385/2013 P.W.1 further admitted that defendant No.1 has performed the marriage of defendant No.5 and she made the financial arrangement to the tune of Rs.5 Lakh. P.W.1 further admits that his father died due to ill-health and also he was admitted in St.Martha's Hospital. The counsel for defendants made a suggestion to P.W.1 that the defendant No.6 is the bonafide purchaser Item No.2 property and has purchased the said property in good faith, the witness not denied the said suggestion, but shown his ignorance. The evidence of P.W.1 clearly goes to show that there was family legal necessity to alienate the property.
35. It is the defence of the defendants that the plaintiff and defendant No.1 have sold the suit schedule Item No.2 property for the family legal necessity. In order to establish their defence, defendant No.4 has been examined as D.W.1, defendants No.6 and 7 have been examined as D.Ws 2 and 3. D.Ws.1 to 3 have clearly deposed that Item No.2 property has been alienated for the family legal necessity. The counsel for the plaintiff made a suggestion 40 O.S.No.7385/2013 to all these witnesses that defendant No.1 alone has no right to alienate the Item No.2 property, witness denied the said suggestion. The counsel for plaintiff further made suggestion to D.W.1 that there was no family legal necessity to sell the Item No.2 property. The witnesses denied the said suggestion also. Further made a suggestion to D.W.2 that on 5.2.2011 plaintiff has been called to Sub-Registrar's Office at 11.30 a.m. and requested for signing Ex.P.8. By believing the words of defendants No.1 and 6, the plaintiff has put his signature on Ex.P.8 without verifying the document. The witness denied the said suggestion also. The counsel for plaintiff cross-examined D.Ws.1 to 3 in length, nothing worth has been elicited from the mouth of D.W.1 to 3. Per contra, D.W.1 clearly deposed in her cross- examination at page No.10 that, "My mother and my younger brother had taken decision to sell the said property. My younger brother had brought the defendant No.6 to our house. Employee of MEI had also accompanied the defendant No.6 at that time. It is true that, the name of said employee is Ranganath and after his retirement he is doing broker business. My mother and brother had 41 O.S.No.7385/2013 purchased the car by borrowing loan. To repay the said loan installment and put up construction of 1st floor they sold the property in favour of defendant NO.6. My mother and younger brother had signed sale agreement. I am aware that my brother Plaintiff had signed as a witness to the sale deed as per Ex.P8 in favour of defendant No.6. My brother and mother had received the sale consideration amount from defendant No.6. Either myself or Plaintiff and defendants do not have right over item No.2 and Plaintiff has no share on item NO.2."
36. D.W.1 unequivocally deposed that plaintiff and defendant No.1 have voluntarily sold the Item No.2 property for family legal necessity and plaintiff is also one of the signatory to the said sale deed i.e., Ex.P.8. The counsel for plaintiff argued that the defendants have no conflicting interest between them, even then the counsel for defendants No.6 and 7 cross-examined D.W.1 and put the leading questions to D.W.1 and succeeded in getting the favourable answer. Hence, the admissions given by D.W.1 cannot be considered and also relied upon a decision reported in ILR 1997 KAR 1378 -[Sri.Mohamed Ziaulla Vs. Mrs.Sorgra Begum and another] in which the Hon'ble High 42 O.S.No.7385/2013 Court of Karnataka held that, "Sec 137 and 138 of the Evidence Act do not specifically refer to cross-examination of co-defendant's witnesses. But the Courts have to adopt a golden rule that no evidence shall be received against any co-defendant or co-operative-accused who had no opportunity of testing it by cross-examination; as it would be unjust and unsafe not to allow a co-accused or co- defendant to cross-examine witness called by one whose case was adverse to his, or who has given evidence against him. If there is no clash of interest or if nothing has been said against the other party, there cannot be any right of cross-examination.". Admittedly, the defendants No.6 and 7 have filed I.A.No.4 under Order 18 Rule 17 r/w/s 151 of C.P.C. seeking permission to cross-examine D.W.1. the said application came to be allowed on 27.8.2016 and defendants No.6 and 7 have been permitted to cross- examine D.W.1. Being aggrieved by the said order, the plaintiff filed W.P.No.587-588/2017(GM-CPC). The said Writ Petitions came to be disposed off on 13.11.2007. In the said 43 O.S.No.7385/2013 Writ Petitions, the Hon'ble High Court of Karnataka held that "The Trial Court while deciding the suit, has to independently consider the cross-examination of D.W.1 made by the plaintiff as well as defendants No.6 and 7 and pass orders in accordance with law." Hence, as per the order passed by the Hon'ble High Court of Karnataka, this Court has to consider the cross-examination made by the plaintiff as well as defendants No.6 and 7. Hence, the above said decision will not come to the aid of plaintiff.
37. Though plaintiff denied Ex.P.8 - sale deed, that, on perusal of Ex.P.8 - sale deed it reveals that the plaintiff is also one of the signatory to the said sale deed. That, on perusal of Ex.D.14 agreement to sell dated 5.11.2000 in respect of Item No. 2 property , it reveals that prior to execution of sale deed - Ex.P.8 the defendant No.1 has executed an agreement to sell as per Ex.D.14. The plaintiff is also one of the signatory to the said agreement to sell. P.W.1 also in his cross-examination unequivocally admitted 44 O.S.No.7385/2013 that Ex.D.14 (a) signatures belongs to him, which clearly goes to show that prior to execution of Ex.P.8 - sale deed, the defendant No.1 and plaintiff have executed an agreement to sell as per Ex.D.14 in favour of defendant No.6. hence, the contention of the plaintiff that by believing the words of his mother defendant No.1 has put his signature on Ex.P.8 - sale deed is not acceptable one. P.W.1 in his evidence clearly deposed that he completed his PUC in the year 1990 and he joined the service in the year 1992. The evidence of P.W.1 clearly goes to show that he is an educated person and is an employee and is having worldly knowledge. Once he admits the signature on Ex.P.8- sale deed, he cannot deny the contents of the document. That as per section 115 of Indian Evidence Act plaintiff is estopped from denying the sale deed Ex.P.8. The entire evidence of P.W.1 and D.Ws.1 to 3 clearly goes to show that the defendant No.1 has alienated the suit schedule item No.2 property for the family legal necessity and plaintiff has consented for the said alienation.
45 O.S.No.7385/2013
38. That on perusal of entire material available on record it reveals that the defendant No. 1 was in strained financial circumstance and she executed the sale deed along with the plaintiff to meet the expenses for maintaining herself and her family members and for payment of debts and expenses for the marriage of her daughters. There was serious and sufficient pressure on the estate as to compel to sell suit schedule property.
39. Though it was also tried to be said that there was fraud, misrepresentation and undue-influence exercised for putting the signature of the plaintiff on sale deed Ex.P. 8, yet that branch of argument was not seriously pressed in as much as there was no evidence worth the name adduced to show that there was really any fraud practiced for putting his signature on Ex.P.8 - sale deed in favour of defendant No.6. The husband of defendant No.1 and father of plaintiff and defendants No.2 to 4 died in the year 1991 after a protracted illness. There is no reliable evidence that he left any property except the suit schedule properties. The 46 O.S.No.7385/2013 defendant No.1 had one son i.e., plaintiff and four daughters. They were six members in the family to be fed and clothed and marriage expenses of the daughters had to be met. The recital in the deed about the existence of pressure upon the estate are therefore amply corroborated by the circumstances. In my view the case of the defendants that the sale deed was supported by the legal necessity was amply made out. From attestation by the plaintiff to the agreement to sell - Ex.D.14 and sale deed - Ex.P.8 and the recitals in those deeds this Court is of the opinion that the legal necessity setup by the defendants is amply proved.
40. That, one more contention of the plaintiff is that, the defendants played fraud and got registered the sale deeds Ex.P.8 and Ex.P.9. That, as per Order 6 Rule 4 CPC, in case of fraud, undue influence etc., the pleadings must be specific regarding the same, but the plaintiff has not clearly pleaded regarding the fraud, undue influence etc., in his plaint.
47 O.S.No.7385/2013
41. The counsel for plaintiff argued that the defendants have adduced the evidence of D.Ws.1 to 3. The evidence of D.Ws 1 to 3 are contrary to their own pleadings. The defendants have adduced their evidence without proper pleadings and any amount of documents and also relied upon the following relied decisions :
1) (2018) 11 SCC 119 - Ratanlal @ Babulal
Chunlal Samsuka Vs. Sundarabai
Govardhanadas Samsuka (dead) through legal representatives and others, in which the Hon'ble Apex Court held that "C : Civil Procedure Code, 1908 - Or.6 Rr1 and 2 -
Pleadings - Cardinality of - Held, parties to suit are always governed by their pleadings - Any amount of evidence or proof adduced without proper pleadings inconsequential and would not come to rescue of parties - Practice and Procedure - Pleadings."
2) (2018) 7 SCC 646 - Shyam Narayan Prasad Vs. Krishna Prasad and others, wherein the Hon'ble Apex Court held that : "B : Registration Act, 1908 - Ss.17 (1)(b) and 49 - Unregistered exchange deed - Admissibility in evidence - 48 O.S.No.7385/2013 Exchange involving transfer of immovable property of value of Rs.100 and above and having the effect of creating and taking away rights in respect of such property -
Registration of - Necessity - Having regard to provisions under Ss.118 and 54 of Transfer of Property Act , 1882 and S.17(1)(b) of Registration Act, 1908, held, such exchange can be made only by a registered instrument."
3) 2014 (3) KCCR SN 175 (SC) - Rajasthan State Road Transport Corpn., and Another Vs. Bajrang Lal, in which the Hon'ble Apex Court held that, "A. : Civil Procedure Code, 1908 - Order 6, Rule 2 - Pleading - Party has to plead case and adduce/produce sufficient evidence to substantiate his submissions made in plaint
- If pleadings are not complete, Court is under no obligation to entertain pleas."
42. On going through the case law relied by the plaintiff, this Court finds that there is no dispute regarding the principles laid down by their Lordships. The point to be considered is how far the principles are applicable to the 49 O.S.No.7385/2013 present set of facts and circumstances. The facts of the decisions are altogether different from the facts of the case in hand. Hence, the above said decisions are not applicable to the case in hand.
43. Admittedly, the plaintiff has filed the present suit. He has to discharge his initial burden, he cannot take the weakness of defendants as trump-card. That, Section 101 of Indian Evidence Act has clearly laid down that, "Burden of proving of fact always lies upon person who asserts the fact. Until such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine as to whether the presumption upon whom the burden lies has been able to discharge his burden. Until he arises at such conclusion he cannot proceed on the basis of weakness of other party". In this case also, the plaintiff has to prove his case on his own, he cannot take the advantages of the weakness of the defendant. In a 50 O.S.No.7385/2013 decision reported in (2011) 12 Supreme Court Cases 220 (Rangammal Vs. Kuppaswamy), it is clearly held that :
"Evidence Act 1872 - S.101 - Burden lies on plaintiff to prove his case on basis of material available - He cannot rely on weakness or absence of defence of defendant to discharge the onus. If plaintiff claims title to property, he must prove his title."
44. In this case also the plaintiff claims that the sale deed executed by defendant No.1 in favour of defendant No.6 is not binding upon him. He has to prove the same. Hence, the above said decision is aptly applicable to the case in hand.
45. As discussed supra, the burden is upon the plaintiff to prove his case. He cannot take the weakness of the defendants in order to get the relief from the Court. In another decision reported in 2004 (1) KCCR 662 [K.Gopala Reddy (deceased) by L.Rs Vs. 51 O.S.No.7385/2013 Suryanarayan and others], in which the Hon'ble High Court of Karnataka held that, "Whenever party approaches the Court for the relief based on the pleadings and issues, he has to prove his case. A suit has to be decided based on merits and demerits of the party who approach the Court. Weakness of the defendants cannot be considered as a trump card for the plaintiff." The said ratio is aptly applicable to the case in hand. The plaintiff has to establish the case on his own. He cannot take the weakness of the defendants.
46. Admittedly, the plaintiff is well aware about the execution of sale deeds Ex.P.8 and Ex.P.9. There are no specific pleadings and evidence as regards to the fact that the defendant No. 6 and 7 got executed registered sale deeds in their favour with an intention to defeat the claim of the plaintiff over the suit schedule item No.2 property. It is well settled law that, without specific pleadings, evidence 52 O.S.No.7385/2013 and documents, Court cannot grant the relief. That, in a decision reported in 2002 (3) KLJ 512 [Patel Thippeswamy Vs. Smt.Gangamma and others] in which the Hon'ble High Court of Karnataka clearly held that, "A party pleading fraud and misrepresentation in respect of a transaction must give material particulars of allegations and in absence of such particulars, his plea is to be rejected. The defendants contended that the gift deed was got executed by misrepresentation and playing fraud on the third defendant. Defendants did not furnish the particulars of alleged misrepresentation and fraud. In the absence of particulars it cannot be held that the gift deed was obtained by misrepresentation." In another decision reported in (2011) 12 Supreme Court Cases 18 [Saradamani Kandappan Vs. S.Rajalaxmi and others] in which the Hon'ble Apex Court held that, "Head Note L : Code of Civil Procedure, 1908 - O.VI Rule 4 - Fraud - Burden of proof - Pleadings - Whenever a party wants to put forth contention of fraud, held : Specific pleadings as to fraud are to be made and 53 O.S.No.7385/2013 proved." The said decisions are squarely applicable to the case in hand. In this case also the plaintiff made stray allegation without any proper pleadings and proof as regards to the alleged fraud and mis-representation. Hence, without specific pleadings and proof, the Court cannot accept the contention of the plaintiff as regards to the fraud and misrepresentation.
47. D.Ws.1 to 3 clearly deposed that defendant No. 6 and 7 are the bonafide purchaser for value. It is well settled law that if transferee purchased the property in good faith and makes any improvement on the property believing in good faith that he is absolutely entitled thereto, then he cannot be put into trouble. So, here looking to the circumstances and the evidence of DWs.1 to 3, the defendants No.6 on a good faith, after proper enquiry, purchased the suit item No. 2 property from the defendant No.1 as per Exs.P.8 and plaintiff is also one of the signatory to the said sale deed. Subsequent to its purchase the defendant No.6 has alienated half portion of item No. 2 54 O.S.No.7385/2013 property to the defendant No. 7 as per Ex.P.9 Sale Deed. The defendants 6 and 7 are in peaceful possession and enjoyment of the property purchased by them. So, here there is no malafide intention by the side of defendants No.6 and 7 to defeat the rights of the plaintiff as defendants No.6 and 7 had no knowledge about the plaintiff's right over suit schedule item No. 2 property and the said fact has also not been disclosed to them by the plaintiff and defendant Nos.1 to 4 while they executing the registered sale deeds in favour of defendants No.6 as per Exs.P.8. So, here from the evidence of D.Ws.1 to 3, it is proved that, the defendants No.6 and 7 are innocents and have purchased the suit sites on good faith.
48. Though plaintiff pleaded in his plaint that believing the words of defendant No.1 he has put his signature to the mortgage deed, but he has not initiated any action for redemption of the mortgage. P.W.1 clearly deposed in his cross-examination at page No.29 that, "DzsÁgÀ¥ÀvÀæ JAzÀÄ ºÉý £À£Àß ¸À» ¥ÀqÉzÀÄPÉÆArgÀÄvÁÛgÉ, «£ÀB PÀæAiÀÄ¥ÀvÀæPÀÌ®è F 55 O.S.No.7385/2013 jÃwAiÀiÁV £À£ÀUÉ ªÉÆøÀ ªÀiÁrzÁÝgÉ JAzÀÄ £Á£ÀÄ ¥ÉÇðøÀjUÉ 1 jAzÀ 6£Éà ¥ÀæwªÁ¢UÀ¼À «gÀÄzÀÝ zÀÆgÀÄ PÉÆnÖ®è. ºÁUÉAiÉÄà £ÁåAiÀiÁ®AiÀÄzÀ°è SÁ¸ÀV zÀÆgÀÄPÉÆnÖ®è." which clearly goes to show that plaintiff has not initiated any action against the defendants for alleged fraud. Therefore, there is lethargic attitude by the side of the plaintiff in order to get execute the redemption deed by calling upon defendant No.6. P.W.1 further deposed in his cross-examination at page No.30 that, "zÁªÁ LlA £ÀA.2 gÀ D¹ÛAiÀÄ£ÀÄß 2001 gÀ°è 6£Éà ¥ÀæwªÁ¢UÉ ªÀiÁgÁl ªÀiÁqÀĪÁUÀ £À£ÀUÉ ªÀÄzÀĪÉAiÀiÁVgÀ°®è JAzÀgÉ ¤d." The evidence of P.W.1 clearly goes to show that he is having knowledge about Ex.P.8 - Sale Deed in the year 2001 itself.
49. After purchase of Item No.2 property the defendants No.6 and 7 have made construction in the said property. As per sale deeds the names of defendants No.6 and 7 have been entered in B.B.M.P. records and have paid the tax to the concerned authorities as per Ex.D.15. After purchasing the said property, the defendant No.6 has 56 O.S.No.7385/2013 obtained loan from Janatha Co-operative Bank, Bengaluru and the defendant No.7 has also obtained loan from Bank of Baroda by mortgaging the property purchased by him. The defendants No.6 and 7 have constructed the building in Item No.2 property much prior to the institution of the suit. The defendants No.6 and 7 have purchased the said property for a valuable consideration after proper inquiry regarding the legal necessity.
50. Besides, the defendants No.6 and 7 have purchased sites as per Exs.P.8 and 9. After purchasing the same, they have constructed the residential buildings in their respective sites and though the plaintiff is well aware about this fact, he has filed the present suit. One purchase of said property defendants 6 and 7 have raised loan. On perusal of Ex.D.13 it reveals that the defendant No.6 has raised loan to the tune of Rs.17 Lakh from the Janata co- operative Bank Ltd., Bangalore and on perusal of Ex.D.17 it reveals that the defendant No.7 has raised loan to the tune of Rs.1,80,50,000/- by mortgaging the property to the Bank 57 O.S.No.7385/2013 of Baroda. By obtaining the loan from the said banks have constructed the building over the Item No.2 property. The defendants No.6 and 7 have paid tax to the B.B.M.P. Hence, they are the bonafide purchasers, who purchased the suit item No.2 property after proper enquiry made with regard to title, possession and legal necessity of the plaintiff and defendants No.1 to 4. Therefore, it is not the fault of the defendants No.6 and 7, they have purchased the suit sites on good faith for valuable consideration. That, on the request of defendant No.7 and by considering the title deed i.e., Ex.P.9 sale deed the defendant No.8 has sanctioned loan to the defendant No.7. Hence, in this case relying on the oral and documentary evidence, it is proved that defendants No.6 and 7 are the bonafide purchasers, who purchased the suit item No. 2 property by paying valid consideration after proper enquiry. The defendant No.8 has sanctioned the loan to defendant No.7 by verifying the title deeds pertains to the suit schedule item No.2 property. Hence, I answer Issue No.3 in the affirmative and Additional 58 O.S.No.7385/2013 Issues No.2 to 4 in the negative.
51. Additional Issue No.1 :- The plaintiff contended that Item No.1 property is the joint family property. Item No.1 property being joint family property the defendant No.1 executed the gift in favour of defendant No.3. Hence, the Exs.P.4 and P.5 - Gift Deeds dated 25.06.2010 are not binding upon the share of plaintiff.
52. The counsel for the plaintiff argued that since the Item No.1 property is the joint family property, same has been purchased out of joint family nucleus, hence, the gift deeds made by defendant No.1 in favour of defendants No.2 to 5 are not binding on the share of plaintiff and also relied upon the decisions reported in (1987) 3 Supreme Court Cases 294 (Thamma Venkatasubbamma Vs. Thamma Rathnamma and others) and another decision reported in (1993) 4 Supreme Court Cases 392 (Pavitra Devi and another Vs. Darbari Singh and another). On perusal of the both the decisions, the Hon'ble Apex Court held in both the decisions that, "Alienation of coparcenary property - gift - 59 O.S.No.7385/2013 mithakshara law - gift by a coparcener of his undivided coparcenary interest to another coparcerner without consent of other coparceners void". Another decision reported in 2003 AIR SCW 4018 Ramabai Padmakar Patil (Dead) by LRs and others Vs. Rukminibai Vishnu Vekhande and others, in which the Hon'ble Apex Court held that : "E:
Hindu Succession Act (30 of 1956), S.8, S.15 - Right of property - Father died sometime in the year 1957 i.e., after 17.6.1956 when Hindu Succession Act had come into force -
Consequently mother and all her daughters would get equal share in the property - Will executed by mother in favour of one of the seven daughters - Thus only 1/8th share in the estate left by father which alone would go to the said daughter on the basis of the Will executed in her favour by her mother."
53. The said decisions are aptly applicable to the case in hand. In this case also the plaintiff has proved that the Item No.1 property gifted is the joint family coparcenary property of plaintiff and defendants No.1 to 4. Admittedly, 60 O.S.No.7385/2013 Item No.1 property is the joint family property of plaintiff and defendants No.1 to 4. The plaintiff and defendants No.1 to 4 have equal rights over suit schedule item No.1 property. The defendant No.1 alone has no exclusive right over the said property and hence, she cannot dispose off the said property as per her whims and fancies. Accordingly, the gift deeds dated 25.6.2010 executed by defendant No.1 in favour of defendants No.2 to 5 are against the law and hence, they are not binding upon the share of the plaintiff. Accordingly, I answer Additional Issue No.1 in the affirmative.
54. Additional Issue No.5 : - The defendants in their written statement took a specific contention that the plaintiff is not at all in possession of suit schedule properties, hence, the court fee paid by the plaintiff under Section 35(2) of the Karnataka Court Fees & Suits Valuation Act is not proper, the plaintiff ought to have paid the court fee on actual market value. It is primary burden upon the plaintiff to prove that he is in possession of the suit 61 O.S.No.7385/2013 schedule properties. P.W.1 in his cross-examination clearly admitted that he is residing separately and he also admitted the sale deed executed by defendant No.1 in favour of defendant No.6 as per Ex.P.8 - Sale deed dated 2.2.2001. P.W.1 further admitted in his cross-examination at page No.29 that "zÁªÁ LlA £ÀA.2 gÀ C¹Û J°è AiÀiÁªÀ gÀÆ¥ÀzÀ°è EzÉ JAzÀÄ £Á£ÀÄ AiÀiÁªÀvÀÄÛ ºÉÆÃV £ÉÆÃr®è." which clearly goes to show that plaintiff is not in possession of suit schedule item No.2 property.
55. The counsel for the plaintiff argued that the plaintiff is in possession of suit schedule properties and accordingly the court fee paid by the plaintiff is in accordance with law. And also relied on the following decisions :
1) 2017 (2) ICC 77 (Chh) - Tarun Babulal Chandrakar Vs. Kumari Bai Devilal Kumari, wherein the Hon'ble Chhattisgarh High Court held that : "Court Fees Act, 1870, Section 5 -
court fee - Declaratory suit that the sale deed is null and void - In all such suits the plaintiff shall 62 O.S.No.7385/2013 state the value of the suit, which means the value for seeking relief of declaration that the sale deed is null and void - If the relief is for declaration that sale deed is null and void and not for cancellation of sale deed, the plaintiff being not executant thereto, he is only required to value the suit for declaration and not on the basis of value mentioned in the sale deed."
2) 2017 (4) ICC 6 (SC) - J.Vasanthi and others Vs. Ramani Kantammal (D) represented by Lrs, wherein the Hon'ble Apex Court held that : "Tamil Nadu Court Fees and Suit Valuation Act, 1955, Section 25 - Court Fees Act, 1870, Section 7 - Deficient court fee - Proper valuation of the suit property stands on a different footing than applicability of a particular provision of an Act under which Court fee is payable and in such a situation, it is not correct to say that it has to be determined on the basis of evidence and it is a matter for the benefit of the revenue and the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action."
56. That, on perusal of evidence of P.W.1 it clearly 63 O.S.No.7385/2013 goes to show that the plaintiff is not in possession of the suit schedule property. Hence, he ought to have paid court fee on actual market value. Accordingly, the said decisions are not applicable to the case in hand.
57. On perusal of the Ex.P.8 - sale deed, it clearly reveals that as on the date of sale deed itself the possession of the property has been delivered to defendant No.6. Exs.P.8 and 10 clearly establish that the defendants No.6 and 7 are in possession of Item No.2 property. D.Ws.1 to 3 also clearly deposed that the plaintiff is not in possession of the suit schedule properties. Though the counsel for the plaintiff cross-examined the witnesses in full length, but there is no suggestion as regards to the plaintiff's possession over the suit schedule Item No.2 property. That, the entire material available on record clearly establishes that the plaintiff is not in possession of the suit schedule Item No.2. Even then by suppressing the material facts he has filed the present suit. The plaintiff utterly failed to prove that the suit schedule properties are in joint 64 O.S.No.7385/2013 possession of plaintiff and defendants No.1 to 4. Since the plaintiff claim the relief of declaration that the Sale Deeds dated 2.2.2001 executed by defendant No.1 in favour of defendant No.6 and Ex.P.9 - sale deed dated 4.1.2010 executed by defendant No.6 in favour of defendant No.7 in respect of suit schedule Item No.2 property are null and void to the extent of his share and he is not in possession of suit schedule item No.2 property. Hence, he ought to have paid the court fee on the market value under Section 24(b) of the Karnataka Court Fees & Suits Valuation Act. The entire material available on record clearly reveals that as on the date of suit the plaintiff is not in possession of the suit schedule Item No.2 property. Hence, the plaintiff ought to have paid the court fee on the market value of Item No.2 property to the extent of his alleged 1/5th share. Hence, the court fee paid by plaintiff on plaint is insufficient. Accordingly, I answer additional Issue No.5 that the Court Fee paid by the plaintiff is insufficient.
58. Additional Issue No.6 : - This issue is framed 65 O.S.No.7385/2013 with respect to contentions of defendants that, the suit of plaintiff is barred by law of limitation. The plaintiff has filed this suit challenging sale deeds dated 2-2-2001 and 4-1- 2010 executed by defendants No.1 and 6 with respect to suit schedule item No.2 property. While answering issue No. 1, I have already given finding that, suit schedule item No.2 property is joint family property. D.W.2 clearly deposed that defendant No.1 has executed sale deed as per Ex.P.8 on 2.2.2001. The present plaintiff is also one of the consenting witness to the said sale deed. Admittedly the sale deed has been executed on 2.2.2001, whereas the present suit has been filed on 7.10.2013. Hence, the suit of the plaintiff is barred by limitation. Though the counsel for plaintiff cross- examined D.W.2 in length but, there is no suggestion as regards to the limitation. Hence, the evidence of D.W.2 is in tact. P.W.1 also in his cross-examination at page No.30 clearly deposed that, suit schedule item No.2 property has been alienated in the year 2001 to defendant No.6. P.W.1 further admitted in his cross-examination at page No.31 66 O.S.No.7385/2013 that, he has not challenged Ex.P.8 sale deed within the period of limitation. It is vehemently argued by the learned counsel for the plaintiff that, during May, 2013, defendants have denied to give share to plaintiff and he has filed this suit within three years from 2013 challenging the said sale deeds as such suit is within period of limitation and also relied upon the decisions reported in : (1995) 4 SCC 496 - Vidya Devi @ Vidya Vathi (dead) by LRs Vs. Prem Prakash and Others, wherein the Hon'ble Apex Court held that :
"Tenancy and Land Laws - Delhi Land Reforms Act, 1954 - Ss. 55(1), 67 (d), 186, 13(2) and Sch.1, Sl.No.11, Columns 4 and 5 - Suit for partition of joint holding by co-bhumidhar - No period of limitation prescribed for - Plead of acquisition of title by adverse possession not available to the bhumidhar against whom such suit is filed - Plea being intended solely to oust the jurisdiction of the Revenue Court Explanation to Section 186(1) is attracted and the matter cannot be referred by the Revenue Assistant to the civil Court for decision on title (Per Kuldip Singh and 67 O.S.No.7385/2013 Venkatachala, JJ) - Plea of adverse possession not specifically raised by setting our all requisite ingredients to constitute ouster - Held, plea relating to title of suit property cannot be said to have been raised - therefore,, Revenue Assistant was not obliged to frame any issue on questions of title or to refer it to the civil Court - Words and phrases - "Ouster" (Per S.Saghir Ahmad, J.) - Limitation Act, 1963, Arts.64 and 65 - Adverse possession - C.P.C. 1908, Or.8 R.1." and another decision reported in ILR 2008 KAR 1773
- Sri. Veerayya Mahantayya Koppad and others Vs. Smt. Geetha and Others, wherein the Hon'ble High Court of Karnataka held that : Code of Civil Procedure, 1908 - Section 96 - Regular First Appeal - Suit for partition and separate possession - Dismissal of - Finding of the Trial Court that plaintiffs are not entitled for partition and separate possession and the suit properties are not joint family properties and suit is barred by limitation - Appealed against - Re-appreciation of evidence - ON FACTS, HELD, Finding of the Trial Court is contrary to the evidence on 68 O.S.No.7385/2013 record and perverse and contrary to the provisions of Article 110 of the Limitation Act - The plaintiffs have proved the genealogical table as well as relationship between the parties - The defendants have not been able to place any convincing evidence to show that the suit schedule properties were self-acquired properties - The material on record clearly discloses that the suit schedule properties are the joint family properties of the plaintiffs as well as first defendant - Judgment and Decree of the Trial Court is set aside." Though the counsel for plaintiff argued that there is no limitation for filing the suit for partition, on careful perusal of Ex.P.8 - sale deed it reveals that plaintiff is not in possession of the suit schedule item No.2 property and he has been ousted from the suit schedule item No.2 property. Hence, the said decisions will not come to the aid of plaintiff.
59. That, I have carefully perused the Article 109 of Limitation Act, which deals with period of limitation with respect to suit filed by a Hindu governed by 69 O.S.No.7385/2013 mithakshara law to set-aside the alienation of ancestral property by his / her father, which is extracted herewith :
Article 109 By a Hindu governed Twelve When the by Mitakhara Law to Years alienee takes set aside his father's possession of the alienation of property ancestral property
60. As per Article 109 of Limitation Act, the period of limitation to challenge the sale deed executed by his or her father or mother with respect to ancestral and joint family property is 12 years and the limitation starts from the date when the alienee takes possession of the property. As per Ex. P.8-Sale Deed, the defendant No.6 has taken possession of suit schedule item No.2 property as on date of execution of said sale deed, as such limitation to file this suit starts from the date of execution of Ex.P.8 - Sale Deed i.e, on 2-2-2001 and this suit is filed by plaintiff on 7-10-2013 i.e, after lapse of 12 years as such suit of plaintiff is barred by limitation. In the case in hand, plaintiff is challenging 70 O.S.No.7385/2013 the alienation of joint family property by his mother, as such limitation to file this suit is governed by Article
109. My view is supported by decision of Hon'ble High Court of Karnataka reported in ILR 2014 KARNATAKA 1293 (H.M. Rudraradhya V/s Uma and Others), wherein para No. 7, it is held as under:
The validity of sale transaction in respect of the joint family property by "Kartha" or "adult member" of a joint Hindu family depends upon the existence of the legal necessity. At the time of its alienation, though a minor in the joint family has an undivided interest in the property alienated, if a suit is instituted challenging such alienation of a joint family property by a "Kartha" or an "adult member" of the joint Hindu family and if it is proved that, the same was not for legal necessity, the plaintiff who is not a party to the sale transaction could ignore the alienation ad claim her share even in the property alienated. In such circumstances, it is the provisions of Article 109 of the 71 O.S.No.7385/2013 Limitation Act, which are attracted and the plaintiff can institute the suit within 12 years from the date of alienee takes possession of the property.
61. The sacred ratio laid down in aforementioned decision is squarely applicable to the case in hand. In view of discussion made above, it is clear that the plaintiff must have brought this suit within period of 12 years from the date, when the defendant No.6 took possession of Suit Schedule item No.2 Property and as per Ex. P.8 - Sale deed, the defendant No.6 has obtained possession of suit property as on date of execution of said Ex.P.8 itself. Thus, the plaintiff must have filed this suit within 12 years from the date of execution of Ex.P.8, as the suit is filed beyond 12 years, the suit of plaintiff as regards to the declaration of sale deeds is barred by limitation. Accordingly, I answer Additional Issue No.6 in the Affi rmative. 72 O.S.No.7385/2013
62. Issue No.4 : - The defendant No.8 in its written statement contended that suit of the plaintiff is not maintainable against defendant No.8 bank. In order to establish its defence, the defendant No.8 not stepped into the witness box. Besides, though this Court has granted sufficient opportunity to the defendant No.8 - Bank to adduce evidence on its behalf, the representative of the defendant No.8 - Bank did not choose to enter into witness box to substantiate its contentions raised in its written statement. As such, the contention raised in its written statement cannot be considered. The said proposition of law is supported by the Hon'ble Apex Court decision reported in AIR 1999 SC 1341 (Eshwar Bhai C.Patel Bachchu Bhai Patel Vs. Harihara Behara and another) wherein it is held that, "If a party to the proceedings does not enter into witness box to make a stand on oath in support of his pleadings, then an adverse inference is to be drawn against him to the effect that whatever stated in written statement was not correct." In this case also, 73 O.S.No.7385/2013 defendant No.8 - bank has not led evidence to prove its defence. As such, an adverse inference is drawn as against the defendant No.8 - bank. The said decision is aptly applicable to the case in hand. Besides, plaintiff challenged Ex.P.10 - mortgage deed dated 15.12.2012 executed by defendant No.7 and other in favour of defendant No.8 in respect of portion of suit schedule item No.2 property.
Hence, defendant No.8 is also one of the necessary party to the suit. Hence, the defendant No.8 - bank utterly failed to prove Issue No.4. Accordingly, I answer Issue No.4 in the negative.
63. Issues No.2 and 5 : - As discussed above, though the plaintiff has proved that the suit schedule properties are the joint family properties of plaintiff and defendants No.1 to 4, but has failed to prove that the sale deeds dated 2.2.2001 and 4.1.2010 in respect of item No.2 property are not binding upon his share. The plaintiff has proved that the gift deeds dated 25.6.2010 in respect of Item No.1 property are not binding upon his share. Hence, 74 O.S.No.7385/2013 the plaintiff is entiled to 1/5th share in Item No.1 property only and is not entitled for any share in Item No.2 property. Accordingly, I answer Issue No.2 and 5 partly in the affirmative.
64. Issue No.6 :- For the forgoing reasons, I proceed to pass the following: -
ORDER Suit of the plaintiff is partly decreed. Plaintiff and defendants No.1 and 3 to 5 are entitled to 1/5th share each in Item No.1 property.
The suit of the plaintiff in respect of Item No.2 is hereby dismissed.
The suit schedule 'A' property being house property is ordered to be divided by appointing Court Commissioner as per Order XXVI of C.P.C.
Since the plaintiff is not in possession of the suit schedule Item No.2 property and has challenged the Sale Deeds dated 2.2.2001 and 4.1.2010 in respect of item 75 O.S.No.7385/2013 No.2 of the suit schedule properties, he ought to have paid the court fee on the actual market value under Section 24(b) of the Karnataka Court Fees & Suits Valuation Act to the extent of his 1/5th share as on the date of suit. Hence, the plaintiff is hereby directed to pay court fee on his share soon after the expiry of the appeal period. If plaintiff fails to pay the same, office is hereby directed to calculate the court fee on suit schedule Item No.2 property and intimate the concerned Tahasildar to recover the said court fee from the plaintiff as if it was the land revenue and remit the same to the Court account.
By looking to the relationship of parties, no order as to costs.
Draw preliminary decree accordingly.
[Dictated to the Judgment Writer, typed directly on the computer, script corrected, signed and then pronounced by me in the Open Court, this the 15th day of October, 2020.] (KHADARSAB) XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
76 O.S.No.7385/2013ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : N.Balaji Singh
2. List of documents exhibited for plaintiff :
Ex.P1 Registered Sale Deed dated 3.4.1962.
Ex.P2 Death Certificate of D.Narayana Singh
Ex.P3 C/c of registered Sale Deed dated
9.10.2000
Ex.P4 C/c of gift deed dated 25.6.2010
Ex.P5 C/c of gift deed dated 25.6.2010
Ex.P6 C/c of sale deed dated 21.9.1995
Ex.P7 Letter issued by M.E.I. Employees
House Building Co-Operative Society
dated 17.6.2013
Ex.P8 C/c of Registered Sale Deed dated
2.2.2001
Ex.P9 C/c of registered Sale Deed dated
4.1.2010
Ex.P10 C/c of Memorandum of title deeds
dated 15.12.2012
Ex.P11 to Encumbrance certificates
13
Ex.P14 Copy of notice dated 11.7.2013
Ex.P15 to 6 postal receipts.
20
Ex.P21 to 5 postal acknowledgements
25
Ex.P.26 Complaint given to Yeshwanthapura
Police Station dated 20.7.2013
Ex.P.27 Acknowledgement given by
Yeshwanthapura police
77 O.S.No.7385/2013
Ex.P.28 C/c of Relinquishment deed dated
18.3.1985
Ex.P.8(a) Signature of P.W.1 in Ex.P.8
3. List of witnesses examined for defendants :
D.W.1 : Smt.Sunitha Bai D.W.2 : K.K.Rajanna D.W.3 : B.R.Sekar Rao.
4. List of documents exhibited for defendants :
Ex.D.1 Khatha certificate
Ex.D.2 to 9 Tax paid receipts
Ex.D.10 Endorsement issued by BESCOM
Ex.D.11 No objection leter dated 28.6.2010
Ex.D.11(a) Signature of plaintiff
Ex.D.11(b) Signature of Mallika Singh - wife of
plaintiff
Ex.D.12 NCR issued by Yeshwanthapura PS.
Ex.D.13 Certificate dated 30.6.2016 issued
by Janatha Co-operative Bank
Ex.D.14 Sale agreement dated 5.11.2000
Ex.D.14(a) Signature of plaintiff
Ex.D. 15 4 tax paid receipts.
Ex.D.16 C/c of sale deed dated 4.1.2010
Ex.D.17 C/c of Memorandum of deposit of
title deeds dated 15.12.2012.
(Khadarsab)
XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** 78 O.S.No.7385/2013 15/10/2020 Judgment pronounced in the open Court (Vide separate Judgment) :
ORDER Suit of the plaintiff is partly decreed. Plaintiff and defendants No.1 and 3 to 5 are entitled to 1/5th share each in Item No.1 property. The suit of the plaintiff in respect of Item No.2 is hereby dismissed.
The suit schedule 'A' property being house property is ordered to be divided by appointing Court Commissioner as per Order XXVI of C.P.C.
Since the plaintiff is not in possession of the suit schedule Item No.2 property and has challenged the Sale Deeds dated 2.2.2001 and 4.1.2010 in respect of item No.2 of the suit schedule properties, he ought to have paid the court fee on the actual market value under Section 24(b) of the Karnataka Court Fees & Suits Valuation Act to the extent of his 1/5th share as on the date of suit. Hence, the plaintiff is hereby directed to pay court fee on his share soon after the expiry of the 79 O.S.No.7385/2013 appeal period. If plaintiff fails to pay the same, office is hereby directed to calculate the court fee on suit schedule Item No.2 property and intimate the concerned Tahasildar to recover the said court fee from the plaintiff as if it was the land revenue and remit the same to the Court account.
By looking to the relationship of parties, no order as to costs.
Draw preliminary decree accordingly.
(KHADARSAB) XXXIX A.C.C & S. Judge, Bangalore City.