Bangalore District Court
Ranjith Kumar.P.S vs P.M.Srinivasa Reddy on 29 November, 2021
1
OS.No.3332/2007
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this the 29th day of November 2021
PRESENT
Sri.SADANANDA NAGAPPA NAIK, B.A.L., LL.B.
XVIII Addl.City Civil Judge.
O.S.No.3332/2007
Plaintiffs: 1. Ranjith Kumar.P.S.
S/o P.M. Srinivasa Reddy,
Major,
2. Kum. P.S.Chitra,
D/o P.M. Srinivasa Reddy,
Major,
Both are R/at
Parappana Agrahara Village,
Begur Hobli, Bangalore South Taluk
[By Sri.R.G.K., Advocate]
/VS/
Defendants: 1. P.M.Srinivasa Reddy,
S/ Late Muniswamy Reddy,
Aged about 52 years,
R/at Parappana Agrahara Village,
Begur Hobli, Bangalore South Taluk
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OS.No.3332/2007
2. K.Dharmalingam,
S/o S.R.Krishnaswamy,
Aged about 50 years,
3. K.Ramalingam,
S/o S.R.Krishnaswamy,
Aged about 44 years,
Defendant No.2 & 3 are
R/at No.48-B, 4th Cross,
Karungalapatti Main Road,
Gugai, Salem - 636 006.
Tamil Nadu.
[By Sri.M.G., Adv., for D1,
Sri.V.D.G., Adv., for D2 & 3]
Date of institution of 21.04.2007
suit
Nature of the suit Partition
(Suit on pronote, suit
for declaration and
possession suit for
injunction, etc.
Date of the 23.07.2012
commencement of
recording of the
evidence.
Date on which the 29.12.2021
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 14 08 08
(SADANANDA NAGAPPA NAIK)
XVIII Addl.City Civil Judge, Bangalore.
3
OS.No.3332/2007
J UD GME N T
The suit of the plaintiff is for the relief of partition and
separate possession of their 2/3rd share in the suit schedule
property,
For the relief that the sale deed dtd.23.3.1996 executed
infavour of defendant No.2 & 3 is not binding on the plaintiffs
and for costs.
2. Shorn of unnecessary details, the material facts
leading to plaintiffs case as contended in the plaint are as
follows:
It is the contention of the plaintiff that they are the son
and daughter of 1st defendant. The plaintiffs and 1 st defendant
constitute an Hindu Undivided Joint Family and they are in
joint possession and enjoyment of the land bearing
Sy.No.61/2, Measuring 12 guntas, situated at Parappana
Agrahara Village, ie., suit schedule property which is their joint
and ancestral property. The 1st defendant is managing the
affairs of the joint family as kartha. It is further contended that
the plaintiffs have demanded partition of the suit schedule
property and the defendant No.1 has postponed the same on
one pretext or other. When the plaintiffs approached the Sub-
registrar, Bangalore South, and obtained the certified copy of
the sale deed dtd. 23.3.1996, they came to know that the 1 st
defendant has alienated the suit schedule property in favour of
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OS.No.3332/2007
defendant No.2 & 3. Though the said sale deed has been
executed, the plaintiffs and 1st defendant are continued to be
in joint possession and enjoyment of the suit schedule
property as absolute owners. The revenue records are
standing in the name of 1 st defendant. The defendants
colluding each other have created the document and the same
is not binding on the plaintiffs. The said alienation is not for
the joint family necessity or for the benefit of the joint family
members. The defendant No.2 & 3 are not in possession of the
suit schedule property and are making attempt to alienate the
same in favour of 3rd parties. Hence, prayed to decree the suit.
3. Defendant No.1 to 3 appeared through their counsel
and defendant No.2 & 3 have filed their written statements.
It is the contention of the defendant No.2 that it is a
collusive suit between plaintiffs and 1 st defendant to make
wrongful gain. He has admitted the relationship between the
parties. He denied that the plaintiffs and 1st defendant are
joint owners and in possession and enjoyment of the suit
schedule property. The defendant No.2 & 3 are in possession
and enjoyment of the suit schedule property by acquiring the
same under registered sale deed dtd.23.3.1996 for valuable
consideration. The right, title, interest, share, claim and
possession over the suit schedule property in favour defendant
No.2 & 3 has vested as long back on 23.3.1996 itself and or
the past more than 11 years, the defendant No.2 & 3 are
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OS.No.3332/2007
exercising absolute rights of ownership and has throughout
protected the suit schedule property. The sale is for domestic
necessities and to purchase alternative property, same is
binding on the plaintiffs. It is further contended that the 1 st
defendant and his brothers entered into panchayat
palipatti(Parikath) on 28.7.1994, and the 1 st defendant got
huge extent of properties, out of which the suit schedule
property is only a portion thereof. The plaintiffs have not
claimed partition in respect of other properties. On the above
grounds, prayed to dismiss the suit.
4. The 3rd defendant in his written statement denied the
case of the plaintiffs and contended that the suit is not
maintainable for mis-joinder and non-joinder of proper and
necessary parties. Further contended that the defendant No.2
& 3 have purchased the suit schedule property under
registered sale deed dtd.23.3.1996 for valuable consideration
and they are in joint possession and enjoyment of the same. It
is further contended that the suit is also not maintainable for
the reason that on the date of sale, the 2 nd plaintiff had not at
all born. It is further contended that after purchase of the suit
schedule property, they have spent huge amounts and
developed the same. The nature of the said property has also
been changed in view of the substantial development made
over the same. The plaintiffs are nobody to question the title of
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OS.No.3332/2007
these defendants as the sale is made for domestic necessities
and to acquire alternative property. Hence, plaintiffs are not
entitled for any reliefs. There is no cause of action for the suit.
On the above grounds, prayed to dismiss the suit.
5. On the basis of the above pleadings the predecessor in
office has framed the following issues :
1.Whether plaintiffs prove that they and defendant No.1 constitute joint family?
2. Do they prove that sale deed executed in favour of defendant No.2 and 3 by defendant No.1 on 23-3-1996 in respect of suit schedule property is not binding upon them?
3. Do they prove that in spite of plaintiff No.2 not born on 23-3-1996 suit is maintainable by plaintiff No.2?
4. What order or decree?
6. Plaintiffs got examined their mother as PW1, got marked the documents at Ex.P1 to P4 and closed their side. On the other hand, the defendants examined 2 nd defendant as DW1. Since the DW1 has not come forward to lead further examination, he was discharged vide order dtd.19.8.2015. Therefore, evidence of DW1 was discarded on 11.11.2021 as they remained absent.
7. Heard the arguments on plaintiffs. The counsel for the defendants have not addressed their argument. Hence, their argument is taken as nil. Perused the materials placed on 7 OS.No.3332/2007 record.
8. My findings on the above issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : As per final order,
For the following:
REA S ON S
9. Issue Nos.1 to 3:- As these issues are interlinked, I have taken up them together for discussion in order to avoid repetition.
10. Before adverting to the other factual aspects of this case, let me analyze few aspects with regard to Partition and inheritance among Hindus. On the division of property, Yagnavalkya Smrithi states as follows:
As per the above text, in Mitakshara Law, property is divided into two classes such as Apratibandh Daya (unobstructed heritage) and Sapratibandh Daya (obstructed heritage). The property in which the son, grandson and great grandson had a birthright was called unobstructed heritage, which means that without any obstruction, the male issue had a right by 8 OS.No.3332/2007 birth. This was also called the doctrine of son's right by birth in joint family property where each son on his birth acquired an equal interest with his father in the joint family property. In the case of unobstructed heritage, as soon as the birth occurs, a person becomes the coparcener of the property by inheritance. The same has been reiterated in Art.216 of Mulla on Hindu Law - 23rd edition.
On the other hand, the property in which, the right accrued not by birth but on the death of the last owner without leaving male issue was called obstructed heritage. In a obstructed heritage when a person having a son inherits the property from his brother, till death of his father, no right will get accrued to the son and such right will be just a chance of an heir apparent/ spes-successionis. The unobstructed heritage devolved by the rule of survivorship, the obstructed heritage by succession. However, after coming into force of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), as on 9.9.2005 the law recognise the inheritance only by way of succession and not by survivorship.
Art.212 of Uncodified Hindu Law classifies the property as joint family which is synonymous with coparcenery property and separate property which includes self-acquired property. Joint family property is again has been divided as two types. Ancestral property (Art.221 to 223) and separate property of coparceners thrown into the common coparcenary 9 OS.No.3332/2007 stock.
11. It is also settled principle of law that there can be a joint family without a property. However, to constitute a coparcenary, there must be a property. There is also a presumption as to joint family that the Joint Family is joint in food, worship and estate, unless there is proof to the contrary. However, there is no presumption as to joint family property. The burden lies upon the person who asserts that a particular property is joint family or self-acquired property.
12. Keeping these principles in mind, let me analyze that, whether the plaintiffs are able to establish before the court that they are entitled for partition as prayed for or otherwise.
13. It is the contention of the plaintiffs that they are the son and daughter of 1st defendant. The plaintiffs and 1st defendant constitute an Hindu Undivided Joint Family and they are in joint possession and enjoyment of the land bearing Sy.No.61/2, Measuring 12 guntas, situated at Parappana Agrahara Village, ie., suit schedule property which is their joint and ancestral property. The 1st defendant is managing the affairs of the joint family as kartha. It is further contended that the plaintiffs have demanded partition of the suit schedule property and the defendant No.1 has postponed the same on one pretext or other. When the plaintiffs approached 10 OS.No.3332/2007 the Sub-registrar, Bangalore South, and obtained the certified copy of the sale deed dtd. 23.3.1996, they came to know that the 1st defendant has alienated the suit schedule property in favour of defendant No.2 & 3. Though the said sale deed has been executed the plaintiffs and 1 st defendant are continued to be in joint possession and enjoyment of the suit schedule property as absolute owners. The revenue records are standing in the name of 1st defendant. The defendants colluding each other have created the document and the same is not binding on the plaintiffs. The said alienation is not for the joint family necessity or for the benefit of the joint family members. The defendant No.2 & 3 are not in possession of the suit schedule property and are making attempt to alienate the same in favour of 3rd parties. Hence, prayed to decree the suit.
14. Percontra, it is the contention of the defendant No.2 that it is a collusive suit between plaintiffs and 1 st defendant to make wrongful gain. He has admitted the relationship between the parties. He denied that the plaintiffs and 1 st defendant are joint owners and in possession and enjoyment of the suit schedule property. The defendant No.2 & 3 are in possession and enjoyment of the suit schedule property by acquiring the same under registered sale deed dtd.23.3.1996 for valuable consideration. The right, title, interest, share, claim and possession over the suit schedule property in favour 11 OS.No.3332/2007 defendant No.2 & 3 has vested as long back on 23.3.1996 itself and or the past morethan 11 years, the defendant No.2 & 3 are exercising absolute rights of ownership and has throughout protected the suit schedule property. The sale is for domestic necessities and to purchase alternative property, same is binding on the plaintiffs. It is further contended that the 1 st defendant and his brothers entered into panchayat palipatti(Parikath) on 28.7.1994, and the 1 st defendant got huge extent of properties, out of which the suit schedule property is only a portion thereof. The plaintiffs have not claimed partition in respect of other properties. On the above grounds, prayed to dismiss the suit.
15. On the other hand, the 3rd defendant contended that the suit is not maintainable for mis-joinder and non-joinder of proper and necessary parties. Further contended that the defendant No.2 & 3 have purchased the suit schedule property under registered sale deed dtd.23.3.1996 for valuable consideration and they are in joint possession and enjoyment of the same. It is further contended that the suit is also not maintainable for the reason that on the date of sale, the 2 nd plaintiff had not at all born. It is further contended that after purchase of the suit schedule property, they have spent huge amounts and developed the same. The nature of the said property has also been changed in view of the substantial 12 OS.No.3332/2007 development made over the same. The plaintiffs are nobody to question the title of these defendants as the sale is made for domestic necessities and to acquire alternative property. Hence, plaintiffs are not entitled for any reliefs. There is no cause of action for the suit. On the above grounds, prayed to dismiss the suit.
16 . The plaintiffs got examined their mother as PW1. In her examination in chief PW1 has reiterated the plaint averments. The plaintiffs got marked the documents at Ex.P1 to P4. Ex.P1 is the certified copy of sale deed dtd.23.3.1996, Ex.P2 is the R.T.C Extract and Ex.P3 & 4 are the Mutation Register Extracts. PW1 in her cross examination has deposed that plaintiff No.1 was born on 1.6.1992. Plaintiff No.2 was born on 22.2.1996. Her husband Srinivasareddy is not doing any work. Her husband was residing with them at the time of filing the suit. She has admitted that there was a partition between Krishnareddy brother of 1st defendant and 1st defendant on 28.7.1994 and her husband (1 st defendant) got the land in Sy.No.61/2, Sy.No.17, Sy.No.19/2, and Sy.No.67/2 as per the partition deed dtd.28.7.1994. She has further deposed that 4 acres 5 guntas of land in Sy.No.61/2 fell to the share of 1st defendant. She has admitted that her husband has sold 32 guntas of land in Sy.No.61/2 to defendant No.2 & 3. She has denied the suggestion that 13 OS.No.3332/2007 possession of the suit schedule property is handed over to defendant No.2 & 3 by 1st defendant. She has denied the possession of defendant No.2 & 3 over the suit schedule property from the date of purchase.
17. On the other hand, though 2 nd defendant is examined as DW1 on behalf of the defendants, since he has not come forward to lead further examination, he was discharged and later his evidence was was discarded on 11.11.2021 as he remained absent.
18. It is not in dispute between the parties that defendant No.2 & 3 have purchased the suit property vide registered sale deed dtd.23.3.1996. The dispute between the parties are at narrow compass. If the plaintiff contends that the suit property is the ancestral property and they are having 2/3rd share in the suit property, it is the contention of the defendant No.2 & 3 that the property has been sold long back, suit for partial partition is not maintainable.
19. It is a settled principle of law that even suit for partial partition of the property is also maintainable under the law, when the joint family members agreed to continue as joint in respect of other properties and agree for partial partition of the property which is in their possession. In the present case, neither the plaintiffs nor the 1 st defendant have 14 OS.No.3332/2007 produced any documents to show that they are in the possession of the suit schedule property after alienation. The suit property has been already sold under the sale deed dtd.23.3.1996 infavour of defendant No.2 & 3 for valuable consideration.
20. On perusal of the plaint averments, it shows that the plaintiff has sought only for partition of the suit schedule property by metes and bounds and to put the plaintiffs in possession of their 2/3rd share in the suit property and for the relief to order the registered sale deed dtd.23.3.1996 infavour of defendant No.2& 3 is not binding on the plaintiffs. Admittedly, the plaintiff has not sought for declaration and possession of the suit property. Further, they have not also sought for declaration to declare the sale deed dtd.23.3.1996 is not binding on them. This court has already framed four issues on 17.12.2011. Though the matter is of the year 2007, the plaintiffs have not sought for amendment of the plaint or the issues. Even on perusal of the valuation slip it shows that plaintiffs have paid only a sum of Rs.200/- claiming the suit schedule property is in joint possession of plaintiff and 1 st defendant.
21. On meticulous perusal of Ex.P1 of Ex.P1 sale deed dtd.23.3.1996, it shows that the 1 st defendant has received total sale consideration amount of Rs.3.6lakhs in the 15 OS.No.3332/2007 presence of witnesses. Further clause 7 of the sale deed Ex.P1 states that 1st defendant has put the defendant No.2 & 3 in possession of the suit schedule property on the date of sale deed. Hence, the oral evidence of the plaintiff that they are in possession of the property cannot be believed. Therefore, they need to seek for appropriate relief under law and cannot seek for partition of property which is not in their possession. Further Ex.P2 - RTC produced by the plaintiffs itself shows that Sy.No.61/2 Parappana Agrahara, Begur -2 Hobli, Bangalore south taluk measuring 4 acres 5 guntas. In that, defendant No.1 is in the possession of 2 acre 17 guntas and defendant No.2 & 3 are in possession of 32 guntas. Sec.133 of Karnataka Land Revenue Act provides for presumption that An entry in the Record of Rights and a certified entry in the Register of Mutations [or in the patta book] shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. Therefore, it can be presumed that defendant No.2 & 3 are in possession of the suit schedule property and the plaintiff needs to seek for appropriate relief.
22. Even if it is considered that plaintiffs are in possession of the suit schedule property, as the present suit is filed for partial partition of the suit property, the present suit cannot be entertained for a simple reason that if the plaintiff No.1 & 2 and defendant No.1 supposedly were having three sites of same nature of property, and one of the sites have 16 OS.No.3332/2007 been sold by 1st defendant, then the plaintiff No.1& 2 will still have rights over other two sites and as the defendant No.1 has sold one site, he will not be having any right over other two sites. In the present case, admittedly, there are many properties possessed by plaintiffs and defendant No.1. Further, PW1 in her evidence has admitted that there was a partition between 1st defendant and his brother and land in Sy.No.61/2, Sy.No.17, Sy.No.19/2, and Sy.No.67/2 fell to her husband's share. Further, Ex.P2 produced by the plaintiffs itself shows that the 1st defendant is in possession of 2 acres 17 guntas of land in respect of Sy.No.61/2. The same has not been sought for partition. Therefore, if the suit is decreed, the same will cause irreparable harm to the defendant No.2 & 3. It is not in dispute by the defendant that the plaintiffs and the 1st defendant are constituting a joint family. In the circumstances I hold the above issue No.1 in the affirmative and issue No.2 & 3 in the negative.
23. Issue No.4: In view of my findings on issue No.2 & 3, the plaintiffs are not entitled for the relief as sought. In the result, I proceed to pass the following:
O RDE R The suit of the plaintiffs is hereby dismissed. No order as to costs.17
OS.No.3332/2007 Draw decree accordingly.
[Dictated to the Judgment Writer in the open court, computerised, and print out taken by him, corrected and then pronounced by me, this day the 29th November 2021.
(SADANANDA NAGAPPA NAIK) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU AN N E XU RE
1. No.of witnesses examined on behalf of plaintiff/s :
PW1 : Smt. Asha Rani.
2. No.of documents marked on behalf of plaintiff/s :
Ex.P1 : CC of sale deed dtd.23.3.1996 Ex.P2 : R.T.C Extract Ex.P3 & 4 : Mutation Register Extracts
3. No. of witnesses examined on behalf of defendant/s :
- Nil -
4. No. of documents marked on behalf of defendant/s :
- Nil -
XVIII Addl. City Civil Judge Bangalore City.
18 OS.No.3332/2007 Judgment pronounced in the open court vide separate judgment. The operative portion of judgment reads thus:
O R DE R The suit of the plaintiffs is hereby dismissed. No order as to costs.
Draw decree accordingly.
XVIII Addl.C.C. & S.J., Bangalore