Bangalore District Court
Smt.Padmavathi vs ) Smt.I.C.Pushpalatha on 15 December, 2021
KABC010156082014
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
Dated this the 15th day of December 2021
PRESENT: Sri. Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.NO.6010/2014
PLAINTIFF SMT.PADMAVATHI
W/o.Sri.Balakrishnachari
Aged about 55 years
R/at No.261, 7th Main, 2nd Cross
Arakere, MICO Layout
1st Stage, B.G.Road, Bengaluru -560 076
[By Pleader Sri.V.B.Shivakumar]
/Vs/
DEFENDANTS 1) SMT.I.C.PUSHPALATHA
W/o.late Sri.Vsudev Balakrishnachari
Aged about 33 years
O.S.NO.6010/2014
2
R/at No.64/24, 6th 'A' Cross
6th Main, SVG Nagar, Mudalapalya
Bengaluru -560 072
Presently residing at :
No.256, 2nd 'G' Main
Near BDA Complex
Nagarabhavi 2nd Stage
Papireddy Paly, Bengaluru -560 072
[By Pleader Sri.A.M.Vijay]
2) SRI.S.DAMODAR
S/o.late Sri.A.Srirama Reddy
Major
R/at No.39/1, 1st Cross Road
Obalappa Garden, Tata Silk Farm
Bengaluru -560 004
3) SRI.G.H.JANARDHAN
S/o.Sri.G.Hanumaiah
Major
R/at No.5, Gulakamalle, Tharalu Post
Uttarahalli Hobli
Bengaluru -560 082
4) SRI.M.PRASHANTH PATEL
Major
R/at No.27, 10/11, Dore Bangles
26th Main, J.P.Nagar
Bengaluru -560 078
5) SMT.PRAMILA PATEL
Major
R/at No.27, 10/11, Dore Bangles
26th Main, J.P.Nagar
Bengaluru -560 078
[Exparte)
Date of Institution of the suit : 06.08.2014
O.S.NO.6010/2014
3
Nature of the Suit : Partition
Date of commencement of recording
of evidence : 23.01.2020
Date on which the Judgment was
pronounced : 15.12.2021
Year/s Month/s Day/s
Total Duration : 07 04 09
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
Suit is filed by Plaintiff for partition of suit schedule property claiming 1/3rd share; for declaring the Sale Deed dated 10.11.2010 executed by Defendant No.1 in favour of Defendant No.2 as null and void and same is not binding on her share in suit schedule property; and for mesne profits and costs.
O.S.NO.6010/2014 4
2) In nutshell, Plaintiff's case is that late Sri.V.Vasudev is the son of Sri.H.R.Balakrishna and Plaintiff. Defendant No.1 is the wife of late Sri.V.Vasudev and daughter-in-law of Plaintiff.
3) It is stated that late Sri.V.Vasudev purchased suit schedule property under a registered Sale Deed dated 30.04.2008 with the aid and assistance of his father and Plaintiff.
4) It is stated that late Sri.V.Vasudev died in accident on 08.01.2010 leaving behind Plaintiff, Defendant No.1 and minor daughter Kum.Meenakshi, who, being Class I heirs, succeeded to the suit schedule property and Plaintiff is entitled to 1/3rd share therein.
5) It is stated that Defendant No.1 filed Claim Petition in MVC No.3416/2010 seeking compensation for the death of late Sri.V.Vasudev O.S.NO.6010/2014 5 and compensation amount was apportioned and Plaintiff got her share.
6) It is stated that ignoring the right of Plaintiff, Defendant No.1 sold the suit schedule property to Defendant No.2 under registered Sale Deed dated 10.11.2010 and same is not binding on the share of Plaintiff.
7) It is stated that without seeking the written permission as provided in Guardians and Wards Act, Defendant No.1 disposed of the minor's right in suit schedule property and therefore, the alienation made in favour of Defendant No.2 is also bad in law. Hence, prays for decree.
8) Suit summonses issued to Defendants No.1 to 3 were duly served. Defendant No.1 marked appearance through her counsel and filed her written statement. Defendants No.2 and 3 did O.S.NO.6010/2014 6 choose not to appear and therefore, they were placed ex parte. Despite taking summonses to Defendants No.4 and 5 in a daily newspaper, they did choose not to appear and hence, they were placed ex parte.
9) Defendant No.1, in her written statement, denies the plaint assertion that suit schedule property was purchased by her husband with the aid and assistance of Plaintiff and her father-in-law.
10) It is stated that suit schedule property was purchased by her husband after obtaining loan of Rs.8,74,000/- from IDBI Home Finance Limited.
11) It is stated that after the death of her husband, she was driven out of the matrimonial home along with her minor daughter and therefore, she is staying in parental home.
O.S.NO.6010/2014 7
12) It is stated that despite the request of Defendant No.1, Plaintiff and her husband evaded to pay the loan installments. Defendant No.1, with the help of her father and brothers, paid a sum of Rs.80,000/- towards the loan installments. As she is unemployed, she decided to sell the suit schedule property for payment of the balance loan amount and therefore, she sold the suit schedule property to Defendants No.2 and 3 for a meager amount of Rs.6,00,000/- as no one had come forward to purchase the suit schedule property.
13) It is stated that in addition to the sum of Rs.6,00,000/-, she also contributed a sum of Rs.2,24,668/- in payment of the entire loan amount.
14) It is stated that Defendant No.1 and her daughter filed a suit in O.S.No.2104/2010 against Plaintiff and her father-in-law in respect of house property in which Plaintiff resides, and other O.S.NO.6010/2014 8 movables and same is pending for adjudication. Had Plaintiff any right in suit schedule property, she ought to have claimed her right in the suit filed by Defendant No.1.
15) It is stated that suit filed without arraying the minor daughter of Defendant No.1 is not maintainable. Hence, prays for dismissal of the suit.
16) Issues that have been framed by this Court are as under :
1) Whether Plaintiff proves that her son, Mr.V.Vasudev purchased the suit schedule property by way of registered Sale Deed dated 30.04.2008 with the aid and assistance of Plaintiff and her husband?
2) Whether Plaintiff proves that she is entitled to 1/3rd share in the suit schedule property?
3) Whether Plaintiff proves that the Sale Deed dated 10.11.2010 executed by 1st Defendant in favour of Defendants No.2 and 3 is not binding on the share of Plaintiff ?
[Recast on 15.12.2021] O.S.NO.6010/2014 9
4) Whether suit is bad for non-
joinder of necessary party ?
5) What Order or Decree?
17) Plaintiff has got examined as PW.1 and got marked Exs.P.1 to P.19 on her behalf. Defendant No.1 has got examined as DW.1 and got marked Exs.D.1 to D.10 in support of her case.
18) Heard learned counsel for Plaintiff, as well Defendant No.1. Perused the records.
19) My finding on above Issues are :
Issue No.1 - In Negative;
Issue No.2 - In Affirmative;
Issue No.3 - In Affirmative;
Issue No.4 - As per findings;
Issue No.5 - As per final order, for the following :
O.S.NO.6010/2014 10 REASONS
20) Issue No.1 : Plaintiff, being the mother of late Sri.Vasudev B, claims 1/3rd share in suit schedule property, contending that suit schedule property was purchased by her son under registered Sale Deed dated 30.04.2008 with the aid and assistance of Plaintiff and her husband.
21) Plaintiff has deposed as PW.1 reiterating the facts stated in plaint. Documents marked on behalf of Plaintiff are at Exs.P.1 to P.19.
22) Ex.P.1 is Sale Deed dated 30.04.2008. It goes to show that Sri.Vasudev.B purchased suit schedule property from one Sri.C.S.Siddlingaiah for a valuable sale consideration of Rs.10,50,000/-.
23) Ex.P.2 is Sale Deed dated 10.11.2010, which goes to show that Defendant No.1 and her minor daughter, Kum.V.Meenakshi sold the suit schedule O.S.NO.6010/2014 11 property to Defendants No.2 and 3 for a valuable sale consideration of Rs.6,00,000/-.
24) Ex.P.3 is Encumbrance Certificate for the period from 01.04.2008 to 20.05.2014. At Sl.No.8, the sale transaction which took place between late Sri.Vasudev.B and Sri.C.S.Siddalingaiah in respect of suit schedule property has been entered. At Sl.No.7, the sale transaction which took place between Defendant No.1 and Defendants No.2 and 3 has been mentioned. Similarly, Ex.P.4 mentions the above stated transactions.
25) Exs.P.5 and P.6 are judgment and award passed in MVC No.3416/2010, which go to show that Defendant No.1 and her minor daughter filed claim petition claiming compensation for the death of Sri.Vasudev.B. They further go to show that Plaintiff is Respondent No.3 in the said MVC proceedings. Exs.P.5 and P.6 make it clear that O.S.NO.6010/2014 12 Defendant No.1, her minor daughter and Plaintiff were jointly awarded compensation of Rs.1,14,12,000/- with interest @ 6% per annum.
26) Ex.P.7 is legal notice dated 31.05.2014 issued by Plaintiff calling upon Defendants and the Manager, Indian Bank to effect the division of suit schedule property and to give the 1/3rd share of Plaintiff.
27) Ex.P.8 is reply dated 18.07.2014 issued by Defendant No.1 to Plaintiff taking the similar contentions as the one that has been taken in her written statement.
28) Exs.P.9 to P.11 are unserved RPAD covers which were sent to Defendants No.1, 4 and 5, and Exs.P.9(a) to P.11(a) are notices. Exs.P.12 to P.17 are postal receipts for having addressed Ex.P.7, and O.S.NO.6010/2014 13 Ex.P.18 is acknowledgement for having received the notice by Manager, Indian Bank.
29) Ex.P.19 is judgment and decree passed in O.S.No.2104/2010. It goes to show that Plaintiff and her minor daughter filed suit claiming share in house property, insurance policy amount, provident fund of Sri.B.Vasudev and claiming gold ornaments.
Suit came to be decreed in respect of insurance policy amount granting 1/3rd share each.
30) Defendant No.1 has deposed as DW.1 reiterating the facts stated in her written statement. Documents marked on behalf of Defendant No.1 are at Exs.D.1 to D.10.
31) Exs.D.1 to D.3, D.9 and D.10 are certified copies of plaint, Valuation Slip, written statement, judgment and decree in O.S.No.2104/2010.
O.S.NO.6010/2014 14
32) Ex.D.4 to D.7 are Payment Receipts, which go to show that a total sum of Rs.70,000/- was paid to IDBI Home Finance on 22.07.2010, 24.03.2010, 22.05.2010 and 08.09.2010 respectively.
33) Ex.D.8 is 'No dues' letter dated 08.10.2010 issued by IDBI Home Finance, which goes to show that loan of Rs.8,74,000/- obtained in respect of suit schedule property has been re-paid in full.
34) Plaintiff contends that suit schedule property was purchased by her son under registered Sale Deed dated 30.04.2008 with the aid and assistance of herself and her husband, whereas, Defendant No.1 contends that suit schedule property was purchased by her husband after obtaining loan of Rs.8,74,000/- from IDBI Home Finance.
35) Sale Deed at Ex.P.1 clearly goes to show that suit schedule property was purchased by late O.S.NO.6010/2014 15 Sri.Vasudev.B, who is the son of Plaintiff and the husband of Defendant No.1, for a valuable sale consideration of Rs.10,50,000/-. Way of passing of consideration by late Sri.Vasudev.B to his vendor has been described in Sale Deed. Late Sri.Vasudev.B paid a sum of Rs.7,75,300/- by DD dated 29.04.2008 drawn on IDBI Bank Ltd. Rs.74,700/- is shown to have been paid in cash, and Rs.2,00,000/- is shown to have been paid in cash at the time of execution of agreement.
36) Consideration shown in Ex.P.1 was paid by late Sri.Vasudev.B has been substantiated by 'No dues certificate' at Ex.D.8 issued by IDBI Home Finance. In Ex.D.8, it has been clearly mentioned that loan of Rs.8,74,000/- was granted in respect of "the property No.1969, BDA Layout, Site No.1969, 4th B Block, BSK VI Stage, 2nd Stage, Near Rajarajeshwarinagar, Bangalore" has been fully paid. Ex.D.8 has been issued in the names of O.S.NO.6010/2014 16 deceased Sri.Vasudev.B and his wife, Defendant No.1.
37) Property described in Ex.D.8 is suit schedule property. DD mentioned in Sale Deed at Ex.P.1 makes it clear that Rs.7,75,300/- was paid by late Sri.Vasudev.B to his vendor through DD of IDBI Home Finance Ltd. These facts make it clear that late Sri.Vasudev.B obtained loan of Rs.8,74,000/- from IDBI Home Finance Ltd for purchase of suit schedule property and paid part sale consideration amount of Rs.7,75,300/- out of the loan amount obtained by him.
38) Taking loan by Sri.Vasudev.B and sale consideration amount paid through DD have been admitted by PW.1 in her cross examination.
39) In Ex.P.1, remaining amount of sale consideration is shown to have been paid in cash by O.S.NO.6010/2014 17 late Sri.Vasudev.B. To prove that there had been financial assistance from Plaintiff in purchasing suit schedule property, nothing has been placed on record by Plaintiff except the pleadings in plaint. There is no evidence on her part to the effect that what avocation she does, what is her income and what is her actual savings. On the contrary, her examination-in-chief makes it clear that she is a house-wife.
40) PW.1 has deposed that in the year 2008 at the time of purchase of suit schedule property, her son was working as Software Engineer in a company. This would certainly lead to an inference that at the time of purchasing suit schedule property, the deceased Sri.Vasudev.B had sufficient means to pay the advance amount of Rs.2,00,000/- at the time of entering into agreement for purchase of the suit schedule property, and in absense of proving the fact by Plaintiff, there would be no O.S.NO.6010/2014 18 impediment to draw a presumption that entire sale consideration of suit schedule property was paid by deceased Sri.Vasudev. B. In that view, it can be fairly said that Plaintiff has failed to prove her joint ownership in suit schedule property. On other hand, it has been established that suit schedule property is the absolute property of late Sri.Vasudev.B. Accordingly, I answer the above issue in the negative.
41) Issues No.2 to 4 : These issues being interrelated are taken together for discussion.
Plaintiff claims 1/3rd share in suit schedule property being the mother of deceased Sri.Vasudev.B. Pleadings of the parties and their oral testimony make it clear that there has been no dispute relating to the relationship of the parties. Plaintiff is the mother and Defendant No.1 and minor Kum.Meenakshi are the wife and daughter of late Sri.Vasudev.B. O.S.NO.6010/2014 19
42) Section 8 of the Hindu Succession Act, 1956 deals with general rules of succession in the case of males. It specifies that the property of a male Hindu dying intestate shall devolve, firstly, upon the heirs, being the relative specified in Class I of the Schedule.
43) Schedule makes it clear that son, daughter, widow and mother are Class I heirs. Section 9 of the Hindu Succession Act, 1956 states that among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs.
44) In Uttam vs. Saubhag Singh, [(2016) 4 SCC], the Hon'ble Supreme Court was pleased to hold that "On the application of Section 8 HSA, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso HSA, such property would O.S.NO.6010/2014 20 devolve only by intestacy and not survivorship"
[para-18(v)].
45) In the present suit, it is not in dispute that deceased Sri.Vasudev.B died intestate leaving behind his daughter, wife and mother, who are Class I heirs. Suit schedule property has been proved to be the self acquired property of deceased Sri.Vasudev B and in that circumstance, Plaintiff, Defendant No.1 and minor Kum.Meenakshi would get their lawful 1/3rd share each in suit schedule property.
46) It is the case of Plaintiff that after the death of her son, Defendant No.1 alienated the suit schedule property to Defendants No.2 and 3 for a sale consideration of Rs.6,00,000/- in order to deprive her right in suit schedule property and same is not binding on her share in suit schedule property.
O.S.NO.6010/2014 21
47) On the contrary, Defendant No.1 contends that after the death of her husband, she was driven out of her matrimonial house along with her minor daughter. She has been residing in her parents' house along with her daughter. Loan obtained by her husband for purchasing the suit schedule property was to be cleared off, and therefore, she sold the suit schedule property to Defendants No.2 and 3 for a meager sale consideration as there were no buyers to purchase the suit schedule property at that time.
48) Sale Deed at Ex.P.2 makes it clear that Defendant No.1 sold the suit schedule property to Defendants No.2 and 3 for a sale consideration of Rs.6,00,000/- on 10.11.2010.
49) Ex.D.8, 'No Dues Certificate', makes it clear that the same has been issued by IDBI Home O.S.NO.6010/2014 22 Finance Limited on 08.10.2010 stating that loan has been closed on 23.09.2010.
50) This makes it clear that suit schedule property was sold subsequent to closure of the loan. Sale consideration of Rs.6,00,000/- is shown to have been paid by the purchasers to Defendant No.1 in cash on the date of registration of the Sale Deed at Ex.P.2. In that view, no presumption can be drawn to the effect that Defendant No.1 had received the sale consideration earlier to registration of Sale Deed and that the same was paid towards loan account. At the same time, this would lead to the conclusion that to deprive the right of Plaintiff, Defendant No.1 sold the suit schedule property to Defendants No.2 and 3 after the death of her husband. Even if it is assumed that sale was made for payment of loan amount, Plaintiff's legitimate right cannot be defeated by alienation without her consent. In that view, it can be fairly said that sale O.S.NO.6010/2014 23 made in favour of Defendants No.2 and 3 is not binding on the share of Plaintiff in suit schedule property as the same was executed by Defendant No.1 without the participation of Plaintiff.
51) Plaintiff's contention is that the entire sale transaction is vitiated for the reason that no permission to transfer the minor's interest in suit schedule property was obtained by Defendant No.1 as required under the Guardians and Wards Act, 1890.
52) Section 7 of the Guardians and Wards Act empowers the Court to appoint a guardian of minor's person or property.
53) Section 8 of the Hindu Minority and Guardianship Act, 1956 deals with the powers of natural guardian. It reads as under :
" 8. Power of natural guardian.- (1) The natural guardian of a Hindu minor has O.S.NO.6010/2014 24 power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the Court, -
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
(4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the Court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court under Section 29 of that Act, and in particular -
(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4-A thereof;
O.S.NO.6010/2014 25
(b) the Court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and
(c) an appeal shall lie from an order of the Court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the Court to which appeals ordinarily lie from the decisions of that Court.
(6) In this section, "Court" means the City Civil Court or a District court or a Court empowered under section 4-A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such Court, means the court within the local limits of whose jurisdiction any portion of the property is situate."
54) Section 12 of the Hindu Minority and Guardianship Act, 1956 specifies that guardian shall not be appointed for the minor in respect of undivided interest in joint family property. It reads as under :
" 12. Guardian not to be appointed for minor's undivided interest in joint family property.- Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for O.S.NO.6010/2014 26 the minor in respect of such undivided interest:
Provided that nothing in this section shall be deemed to affect the jurisdiction of High Court to appoint a guardian in respect of such interest."
55) A conjoint reading of Sections 8 and 12 of the Act, make it clear that minor's definite property cannot be disposed of without the previous permission of the Court. In respect of minor's undivided interest in joint family property, law mandates that no guardian shall be appointed.
56) Dictum laid down by the Hon'ble High Court of Karnataka in the case of M.Harish vs. Kum.Sindhu and Another, [(2011 (4) KCCR 3235] gives an insight to the said aspect of the matter. The Hon'ble High Court was pleased to hold as under :
"... Joint Hindu family property, in which minor had an undivided share, can be disposed of by kartha for legal necessity or benefit of estate. No prior permission of the Court under Section 8 of the Act is required for such alienation."
O.S.NO.6010/2014 27
57) Suit schedule property was the absolute property of late Sri.Vasudev. B. After his demise, the same was succeeded by Plaintiff, Defendant No.1 and minor daughter of late Sri.Vasudev.B. All the three have undivided interest in suit schedule property. For the minor, suit schedule property is her father's property. It is not an absolute property of minor. Mother, Defendant No.1, being the natural guardian of minor, sold suit schedule property representing the minor to Defendants No.2 and 3. Sale Deed at Ex.P.2 makes it clear that suit schedule property was sold by Defendant No.1 for legal and family necessity of Defendants No.1. In that circumstance, it was not at all incumbent on the part of Defendant No.1 to obtain permission from the Court to sell the minor's undivided interest in the absolute property of minor's father. Be that as it may. Minor is having evey right to assent the sale made in respect of her share in suit schedule property or to challenge the same within three O.S.NO.6010/2014 28 years after attaining majority. That being the case, the question of vitiation of entire sale transaction in respect of suit schedule property as contended by Plaintiff has no substance to consider.
58) It is the contention of Defendant No.1 that minor Kum.Meenakshi, who is the daughter of late Sri.Vasudev. B, is a necessary party to the suit. Suit filed without arraying her as party is not maintainable and same is liable to be dismissed for non-joinder of necessary party.
59) Defendant No.1 has placed reliance on the judgment in the case of Shanmugham and Others vs. Saraswathi and Others, [AIR 1997 Madras 226], wherein the Hon'ble Madras High Court was pleased to hold that "question of non- joinder of necessary parties in partition suit can be raised at any time as it goes to the root of matter".
O.S.NO.6010/2014 29
60) Similarly, she has placed reliance on the judgment in the case of Smt.Juguna Bai and Another vs. Sardar Surjeet Singh and Others, [AIR 2008 (NOC) 1605 (A.P.)], wherein the Hon'ble Andra Pradesh High Court was pleased to hold that "suit for partition is liable to be dismissed for non-impleadment of a sharer".
61) It is to be noticed that both Defendant No.1 and minor Kum.Meenakshi sold suit schedule property in favour of Defendants No.2 and 3. Defendant No1, being the natural guardian of her minor daughter, represented the minor in the Sale Deed at Ex.P.2 to the extent of minor's undivided interest in suit schedule property. In fact, Defendant No.1 and minor Kum.Meenakshi have no interest whatsoever in suit schedule property and same has been parted to Defendants No.2 and 3 on execution of Sale Deed at Ex.P.2.
O.S.NO.6010/2014 30
62) Further, it is not at all the case of Defendant No.1 that even after sale of suit schedule property, minor has share in suit schedule property. If she intends to take such contention, certainly, she would be estopped from the rule of estoppel in view of execution of Sale Deed at Ex.P.2 on behalf of minor in favour of Defendants No.2 and 3.
63) That being the case, the principle of law laid down in judgments (supra) is not availed of to Defendant No1. In that view, there is no reason to contend that suit is liable to be dismissed as minor being not made as a party to the suit.
64) The remote contention of Defendant No.1 is that she filed suit in O.S.No.2104/2010 claiming share in the family house in which Plaintiff resides and other movables. Certified copies of Plaint, written statement, judgment and decree in O.S.No.2104/2010, which are at Exs.D.1, D.3, D.9 O.S.NO.6010/2014 31 and D.10 make it clear that said suit was filed by Defendant No.1 and her minor daughter on 26.03.2010 and same was disposed off on 12.07.2018.
65) Suit schedule property was not the subject matter of the said suit in O.S.No.2104/2010. In fact, Defendant No.1 should have included the suit schedule property in the said suit filed by her. However, she failed to include the suit schedule property in the suit filed by her. Instead, after filing of the said suit by her, she sold the suit schedule property to Defendants No.2 and 3, without giving legitimate share of Plaintiff in suit schedule property. This led Plaintiff to demand partition. As the same was not met with, Plaintiff filed the present suit against Defendant No.1 and the purchasers, who are Defendants No.2 and 3. More important is that Defendant No.1 had not filed any application during the pendency of the suit in O.S.NO.6010/2014 32 O.S.No.2104/2010 filed by her to adjudicate the subject matter of the present suit along with the suit filed by her. In that background, the contention of Defendant No.1 that Plaintiff ought to have claimed the share in the suit in O.S.No.2104/2010, has no substance. Accordingly, I answer the above issues.
66) Issue No.5 : For the foregoing discussion and findings on Issues No.1 to 4, I proceed to pass the following :
ORDER (1) Suit filed by Plaintiff is hereby decreed.
(2) It is ordered and decreed that Plaintiff is entitled to 1/3rd share in suit schedule property by metes and bounds.
(3) It is further ordered and decreed that Sale Deed dated 10.11.2010 executed by Defendant No.1 is not binding on the share of O.S.NO.6010/2014 33 Plaintiff in suit schedule property.
(4) It is also hereby ordered and declared that Sale Deed dated 10.11.2010 executed by Defendant No.1 is null and void to the extent of 1/3rd share of Plaintiff in suit schedule property.
(5) No order as to costs.
(6) Draw Preliminary Decree
accordingly.
(Dictated to the Judgment Writer directly on computer, typed matter corrected and then pronounced by me in open court, on this the 15th day of December 2021) (RAMA NAIK) VI Addl.City Civil & Sessions Judge Bengaluru City O.S.NO.6010/2014 34 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Smt.Padmavathi, dtd 23.01.2020
(b) Defendants side :
D.W.1 - Smt.I.C.Pushpalatha, dtd.16.08.2021 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Certified copy of Sale Deed dtd.30.04.2008
executed by Sri.C.S.Siddalingaiah in favour of Sri.Vasudev.B Ex.P.2 Certified copy of Sale Deed dtd.10.11.2010 executed by Smt.I.C.Pushpalatha in favour of Sri.S.Damodhar and Sri.G.H.Janardhan Ex.P.3 Certified copy of Encumbrance Certificate for the period from 01.04.2008 to 20.05.2014 Ex.P.4 Certified copy of Encumbrance Certificate for the period from 01.04.2008 to 18.11.2019 Ex.P.5 Certified copy of the Judgment dtd.10.01.2012 in MVC.No.3416/2010 Ex.P.6 Certified copy of Award dtd.10.01.2012 in MVC.No.3416/2010 Ex.P.7 True Copy of legal notice dtd.31.05.2014 Ex.P.8 Reply notice dtd.18.07.2014 Ex.P.9 Returned RPAD Cover Ex.P.9(a) Notice dtd.31.05.2014 Ex.P.10 Returned RPAD cover Ex.P.10(a) Notice dtd. 31.05.2014 O.S.NO.6010/2014 35 Ex.P.11 Returned RPAD Cover Ex.P.11(a) Notice dtd.31.05.2014 Ex.P.12 To Postal Receipts Ex.P.17 Ex.P.18 Postal Acknowledgment Ex.P.19 Certified copy of Judgment and decree dtd.12.07.2018 in O.S.No.2104/2010 [Exhibited during cross-examination of DW.1)
(b) Defendants side :
Ex.D.1 Certified copy of plaint in O.S.No.2104/2010 Ex.D.2 Certified copy of Valuation Slip in O.S.no.2104/2010 Ex.D.3 Certified copy of written statement of Defendant No.1 and 2 in O.S.No.2104/2010 Ex.D.4 Certified copy of Payment Receipt dtd.22.07.2010 for Rs.20,000/- Ex.D.5 Certified copy of Payment Receipt dtd.24.03.2010 for Rs.20,000/- Ex.D.6 Certified copy of Payment Receipt dtd.22.05.2010 for Rs.20,000/- Ex.D.7 Certified copy of Payment Receipt dtd.08.09.2010 for Rs.10,000/- Ex.D.8 Certified copy of 'No Dues Certificate' dtd.08.10.2010 issued by IDBI Home Finance Ex.D.9 Certified copy of judgment dtd.12.07.2018 in O.S.No.2104/2010 Ex.D.10 Certified copy of Decree dtd.12.07.2018 in O.S.No.2104/2010 VI Addl. City Civil & Sessions Judge Bengaluru City O.S.NO.6010/2014 36