Bangalore District Court
Mrs.Amudha vs Mr.Srinivasan.R on 18 September, 2017
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 18th day of September 2017.
O.S.No.2717/2010
Plaintiff:- 1. Mrs.Amudha,
W/o.Mr.C.Anniyappan,
Aged about 43 years,
Residing at # 20,
2nd 'A' Cross, K.B.Temple,
6th Block, Rajajinagar,
Bangalore-560 010.
2. Mrs.Vijaya.E.,
W/o.Mr.N.Elumalai,
Aged about 52 years,
# 2/206, Bajanai Kovil Street,
Pudiya Balakrishnapuram,
Govinda Cheri, Kuppa, Post,
Walajah Taluk,
Vellore District - 632 505.
Tamil Nadu.
3. Mrs.G.Anniyammal,
W/o.P.Gundshekaran,
Aged about 38 years,
No.1/64, Pillaiyar Kovil Street,
Puduramapuram Village,
Thalangain Post, Ammoor (via),
Walajah Taluk,
Vellore District - 632 501.
Tamil Nadu.
(P1 - Sri.P.Mahesha, Adv.
P2 & P3 - Sri.M.B.Santhosh Kumar, Adv.)
v.
Judgement
2 O.S.No.2717/2010
Defendants:- 1. Mr.Srinivasan.R.,
S/o. Raja Reddy,
Aged about 38 years,
R/at #20, 2nd 'A' Cross,
K.B.Temple, 6th Block,
Rajajinagar,
Bangalore-560 010.
2. Smt.Saraswathi,
W/o.Srinivasan.R.,
Aged about 40 years,
R/at #20, 2nd 'A' Cross,
K.B.Temple, 6th Block,
Rajajinagar,
Bangalore-560 010.
(D1 by Sri.S.Harish, Adv.)
D2 by Sri.M.Narayan, Adv.)
Date of institution of the suit : 07.04.2010
Nature of the suit : Partition, Declaration &
Permanent Injunction
Date of commencement of : 04.01.2016
Recording of the evidence
Date on which the Judgment : 18.09.2017
was pronounced
Total Duration : Years Months Days
07 05 11
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
JUDGEMENT
The plaintiffs have filed the above suit for partition and mesne profits. Further, Declaration that Gift Deed dated Judgement 3 O.S.No.2717/2010 01.08.2003 is not binding on the plaintiffs herein and permanent injunction, restraining the defendants or any person whosoever claiming through or under them from alienating and/or encumbering the schedule property in any manner whatsoever and costs.
2. The plaintiffs' case in brief as under:-
The plaintiff nos.1 to 3 and first defendant are the children of late Raja Reddy and late Smt.Yellamma. Second defendant is the wife of first defendant. Said late Raja Reddy during his life time had purchased property bearing Corporation No.6/31, K.P.Agrahara, nominally in the name of his wife i.e., Smt.Yellamma vide., registered Sale Deed dated 11.01.1974. On 11.07.1983, said Smt.Yellamma sold portion of above said property measuring East to West:27 feet & North to South:25 feet in favour of one Smt.Kokila for valuable consideration. Said sale consideration was utilized to put up construction of first and second floor over the suit schedule property during the lifetime of Smt.Yellamma. On 10.09.1981, first plaintiff's marriage was performed and ever since her marriage first plaintiff is residing in the suit schedule property. On 24.04.1999, said Raja Reddy died intestate leaving behind his wife i.e., Smt.Yellamma, plaintiffs and first defendant as his legal heirs. Plaintiffs along with defendants were looking after Smt.Yellamma. Said Smt.Yellamma Judgement 4 O.S.No.2717/2010 was suffering from diabetes and other ailments due to her advanced age and was totally bedridden for about 6 months prior to her death. On 30.08.2003 said Smt.Yellamma died intestate.
After the death of said Smt.Yellamma, plaintiffs and first defendant are in joint possession and enjoyment of the suit schedule property and second defendant is collecting rents from the tenants. There is no partition among the plaintiffs and defendants till today. On 14.02.2010, the plaintiffs demanded for partition, but the defendants refused to partition the suit property. Smt.Yellamma had no exclusive right to execute Gift Deed or alienate the suit schedule property, as suit schedule property was purchased nominally in her name. Gift Deed dated 01.08.2003 executed in favour of second defendant is fraudulent document and not binding on the plaintiffs. Hence, the plaintiffs have filed the above suit.
3. In response to the suit summons, defendants 1 and 2 have appeared before the court through their counsels. The defendants 1 and 2 have filed separate written statements before this court. Both the defendants 1 and 2 in their written statements have admitted the relationship between the parties. Defendants have contended that plaintiffs' father i.e., Raja Reddy was doing coolie work and had no regular source of income and denied the averment that suit property was purchased by Judgement 5 O.S.No.2717/2010 plaintiff's father nominally in the name of his wife i.e., Smt.Yellamma. Plaintiffs' mother i.e., Smt.Yellamma was doing onion and garlic business. The suit schedule property was purchased by plaintiffs' mother from out of her self earnings. The suit schedule property is the self acquired property of plaintiffs' mother i.e., Smt.Yellamma. Said Smt.Yellamma from out of her earnings has constructed first and second floor over the suit schedule property. The defendants admit that Raja Reddy died on 24.04.1999 but, contend that he died without leaving any property. Defendants have contended that plaintiffs' marriage was performed by spending huge amount and at the time of said marriage, jewels and other items were given to the plaintiffs. Further, have contended that plaintiffs' mother i.e., Smt.Yellamma voluntarily executed registered Will in favour of first defendant and after coming to know that first defendant was addicted to alcohol, said Smt.Yellamma cancelled the said registered Will. Later, said Smt.Yellamma voluntarily executed Gift Deed in favour of second defendant. Second defendant is the absolute owner and in possession of the suit schedule property. The plaintiffs have no right / share over the suit schedule property. Further, defendants have contended that site situated behind Vinayaka Theatre, Ananthapuram, Bangalore and ancestral property situated at Balakrishnapuram, Vellore District, Judgement 6 O.S.No.2717/2010 Tamil Nadu were sold and sale consideration amount was shared among the plaintiffs. Hence, prayed that suit may be dismissed with costs.
4. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES REFRAMED
1. Whether the plaintiffs prove that the suit property was purchased by their father in the name of his wife - Smt.Yellamma and the same is the joint family property of plaintiffs and defendant No.1?
2. Whether the defendants prove that suit property was self-acquired property of Smt.Yellamma?
3. Whether the defendants prove that Smt.Yellamma has executed Gift Deed in favour of defendant No.2 on 01.08.2003 in respect of suit property?
4. Whether defendant No.2 proves that the suit is bad for non-joinder of necessary parties? -
Deleted by consent of both counsels.
5. Whether the plaintiffs are entitled for mesne profits?
6. Whether the plaintiffs are entitled for the reliefs sought for?
7. What order or decree?
Judgement 7 O.S.No.2717/2010 ADDITIONAL ISSUE REFRAMED
1. Whether defendant No.2 proves that the suit filed by the plaintiffs is not maintainable as alleged in para-3 of the written statement?
5. To prove the case of the plaintiffs, first plaintiff examined herself as PW-1 and marked Ex.P1 to P3. Second defendant examined herself as DW-1 and got marked Ex.D1 to D12.
6. Heard the arguments. The learned counsel for the plaintiff has relied upon the decisions reported in:
1. AIR 1975 MADRAS 88, in the case of N.Ramaswamy Padayachi v.
C.Ramaswami Padayachi and others.
2. AIR 1992 MADHYA PRADESH 22, in the case of Ramjan Khan and others v.Baba Raghunath Dass and others.
3. AIR 2008 (NOC) 1649 (JHAR), in the case of Indrasan Singh and others v.
Yudhisthir Singh and others.
The learned counsel for second defendant has relied upon the decisions reported in:
1. (2011) 9 SUPREME COURT CASES 451, in the case of Marabasappa (dead) by LRs and others v. Ningappa (Dead) by LRs and others.
Judgement 8 O.S.No.2717/2010
2. AIR 2006 KARNATAKA 68, in the case of Smt.Radhamma and others etc v.
H.N.Muddukrishna and others.
3. AIR 2010 Supreme Court 2132, in the case of Shanti Budhiya Vesta Patel and others v. Nirmala Jayprakash Tiwari and others.
4. 2009 AIR SCW 5861, in the case of Abdul Rahim and others v. Sk.Abdul Zabar and others.
7. My findings on the above said issues are as follows:-
Issue No.1:- In the Negative.
Issue No.2:- In the Affirmative.
Issue No.3:- In the Affirmative.
Issue No.4:- Deleted
Issue No.5:- In the Negative.
Issue No.6:- In the Negative.
Addl.Issue No.1:- In the Negative.
Issue No.7:- As per final order.
for the following:-
REASONS
8. Issue Nos.1 to 3:-
These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
9. PW-1 in her evidence has stated that plaintiffs 1 to 3 and first defendant are children of late Raja Reddy and late Judgement 9 O.S.No.2717/2010 Smt.Yellamma. Defendants in their written statement admit the relationship between the parties. There is no dispute regarding relationship between the parties.
10. PW-1 in her evidence has stated that suit schedule property was purchased by Raja Reddy in the name of his wife i.e., Smt.Yellamma vide., registered Sale Deed dated 11.01.1974. Per contra, DW-1 in her evidence has stated that suit schedule property was purchased by Smt.Yellamma from out of her own earnings and it is her self acquired property. The burden is on the plaintiff to prove that Raja Reddy purchased the property in the name his wife i.e., Smt.Yellamma. It is pertinent to note that, in the plaint there is no pleading regarding vocation done by Raja Reddy during his life time. The plaintiffs have not specifically pleaded gross income earned by their father and income that was required to maintain the joint family and excess income that was available to purchase the property. Except, bald pleading that Raja Reddy purchased the property in the name of Smt.Yellamma, plaintiffs have not produced any document to show that Raja Reddy had sufficient income at his disposal to purchase the property. PW-1's examination in chief is silent regarding vocation done by Raja Reddy and the earnings of Raja Reddy. For the first time PW-1 in the cross examination has stated that Raja Reddy was doing onion and garlic business. The Judgement 10 O.S.No.2717/2010 said evidence is without any pleadings therefore it cannot be accepted.
11. PW-1 has produced certified copy of Sale Deed dated 11.01.1974 at Ex.P1. Ex.P1 is marked without any objection and it bears the seal and signature of the competent authority hence, admissible in evidence. From the recitals of Ex.P1 i.e, sale deed, it goes to show that suit schedule property was purchased by Smt.Yellamma from Smt.Lakshmi Bai. The said Sale Deed does not contain any recital to the effect that property is purchased nominally in the name of Smt.Yellamma and consideration amount is paid by Raja Reddy. Ex.P.1 i.e, Sale deed is registered document and presumption has to be in favour of the said document. No evidence is produced by the plaintiffs to disbelieve the recitals of the sale document. DW-1 has produced Ex.D1 i.e., original Sale Deed executed in favour of Smt.Lakshmi Bai to show that Smt.Yellamma's vendor had derived title. As per Ex.D2 said Smt.Lakshmi Bai had mortgaged the suit schedule property with one Smt.Lakshmidevamma for Rs.4,000/- in the year 1971. Further, from Ex.D3 it discloses that Smt.Lakshmi Bai sold the suit schedule property in favour of Smt.Yellamma in order to redeem the said mortgage. Ex.D2 goes to show that said mortgage was redeemed by Smt.Lakshmi Bai as per endorsement contained in Ex.D2. As per Ex.D4 Smt.Yellamma has mortgaged Judgement 11 O.S.No.2717/2010 the suit schedule property in the year 1978 with one K.M.Subaramani for Rs.5,000/-. In Ex.D4 it is clearly mentioned that suit schedule property is the self acquired property of Smt.Yellamma. Ex.D4 has come into existence at an undisputed point of time therefore recitals in Ex.D4 can be relied upon. Ex.D5 is the Redemption Deed. Ex.D6 is the Sale Deed executed by Smt.Yellamma, selling portion of property in favour of one Smt.Kokila. From Ex.D1 to Ex.D6, it clearly goes to show that Smt.Yellamma had purchased the property and subsequently mortgaged the said property and also sold portion of the property to Smt.Kokila, thereby exercising full ownership rights over the suit schedule property.
12. In AIR 2006 Karnataka 68, in the case of Smt.Radhamma and others et., v. H.N.Muddukrishna and others:-
"(A) Hindu Law - joint family property -
Proof of existence - Plaintiffs coming out with specific case of properties being acquired from joint family funds - Burden is on them to establish that adequate nucleus was available for acquisition of such property - Details regarding availability of joint family funds and nucleus are absent, question of shifting burden to defendants does not arise - Property stands in the name of female member - There is no presumption that it belongs to joint Judgement 12 O.S.No.2717/2010 family when it stands in the name of female member".
In the present case also details regarding availability of joint family funds and nucleus are absent. Therefore, adverse inference has to be drawn against the plaintiff.
13. Section 14 of The Hindu Succession Act, 1956 reads as follows:-
"14. Property of a female Hindu to be her absolute property - (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation - In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act".
14. In (2011) 9 Supreme Court Cases 451, in the case of Marabasappa (Dead by LRs. and others v. Ningappa (dead) by LRs. and others:-
Judgement 13 O.S.No.2717/2010 "A. Hindu Succession Act, 1956 - Ss.5, 6, 14 to 16 and 19 - Property acquired by Hindu woman, whether becomes or blends in joint family property. Held, Hindu woman has full ownership over any property that she has acquired on her own or as stridhana - Such property shall not become part of joint family property and she may dispose of same as per her wish".
From the above provisions of law and judgment, it is clear that property held by female Hindu is her absolute property. In the present case, Smt.Yellamma has purchased the property in her name as Ex.P1. Therefore, suit schedule property is the self acquired property of Smt.Yellamma.
15. DW-1 in her evidence has stated that Smt.Yellamma has executed Gift Deed in her favour as per Ex.D9. Per contra, PW-1 in her evidence has denied the execution of Gift Deed in favour of second defendant. Ex.D9 is marked without any objection, hence admissible in evidence. From recitals of Ex.D9 it clearly goes to show that Smt.Yellamma has bequeathed the property in favour of second defendant out of love and affection. From Ex.D9, it discloses that all the essential conditions of gift are fulfilled.
Judgement 14 O.S.No.2717/2010
16. In AIR 2010 Supreme Court 2132, in the case of Shanti Budiya Vesta Patel and others v. Nirmala Jayprakash Tiwari and others:-
"(B) Registration Act (16 of 1908), S.17 - Evidence Act (1 of 1872), S. 74 - Registered document -
Has lot of sanctity attached to it- Sanctity cannot be allowed to be lost without following proper procedure - Registered power of attorney - Mere filing of criminal complaint against power of attorney holder - Not sufficient to revoke power of attorney.
17. Ex.D9 is a registered document hence, presumption has to be raised in respect of execution of said document. The plaintiffs have not produced any evidence before this court to show that Gift Deed was not executed by Smt.Yellamma. Advocate for the plaintiff argued that Smt.Yellamma was bedridden 6 months prior to her death and was unable to understand the things. Therefore, Ex.D9 i.e., Gift Deed is not executed voluntarily by Smt.Yellamma and also relied upon the decisions reported in:
1. AIR 1975 MADRAS 88, in the case of N.Ramaswamy Padayachi v. C.Ramaswami Padayachi and others.
2. AIR 1992 MADHYA PRADESH 22, in the case of Ramjan Khan and others v.Baba Raghunath Dass and others.
Judgement 15 O.S.No.2717/2010
3. AIR 2008 (NOC) 1649 (JHAR), in the case of Indrasan Singh and others v. Yudhisthir Singh and others.
It is pertinent to note that, Smt.Yellamma during her lifetime has not disputed the Gift Deed. The said Gift Deed is attested by two witnesses and registered before competent registering authority. The plaintiffs have not pleaded specifically under what suspicious circumstances Gift Deed came into existence. In the absence of specific pleading above argument does not survive. The decisions relied upon by plaintiffs' counsel are not applicable to the facts and circumstances of the above case.
18. Advocate for the plaintiffs argued that the defendants have not examined the attesting witnesses of Gift Deed before this court, therefore Gift Deed cannot be relied upon. Section 68 of the Evidence Act, clearly says that if execution of documents is not denied by the author, examination of attesting witnesses is not necessary. Therefore, above argument does not survive.
19. In the light of the above discussion, I answer Issue No.1 in the negative and Issue Nos.2 and 3 in the affirmative.
20. Issue No.5:-
The plaintiffs have failed to prove Issue No.1. Issue Nos.2 and 3 are answered in the affirmative. Hence, plaintiffs are not Judgement 16 O.S.No.2717/2010 entitled for any mesne profits. Hence, Issue No.5 is answered in the negative.
21. Additional Issue No.1:-
The defendants have contended that plaintiffs were aware of execution of Gift Deed in the year 2003 itself but, the plaintiffs have not filed the suit within 3 years from the date of their knowledge, therefore present suit is barred by limitation. It is pertinent to note that, the defendants have not produced any evidence before this court to show that the plaintiffs were aware of execution of Gift Deed in the year 2003 as contended in the written statement. PW-1 in her evidence has categorically stated that prior to filing of the suit she came to know that Gift Deed was executed in favour of second defendant. Defendant has not specifically elicited on what date the plaintiff had knowledge of gift deed. The plaintiffs have filed amendment application before this court on 16.01.2012. Said amendment application was allowed with a direction that amendment shall not relate back to the date of the suit. Even if date of filing of amendment application is taken into consideration, the plaintiffs have filed necessary amendment within 3 years from the date of knowledge of gift deed. Therefore, above arguments of defendants' counsel Judgement 17 O.S.No.2717/2010 is not sustainable. Hence, I answer Additional Issue No.1 in the negative.
22. Issue No.6:-
The plaintiffs have failed to prove Issue No.1. Hence, the plaintiffs are not entitled for reliefs. Accordingly, I answer Issue No.6 in the negative.
23. Issue No.7:-
In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiffs is dismissed with costs.
Draw a decree accordingly.
(Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 18th day of September 2017) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru City.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
Judgement 18 O.S.No.2717/2010 PW.1 - Smt.Amudha
(b) Defendants' side:
DW.1 - Smt.G.Saraswathi II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Certified copy of Sale Deed dated 27.12.1973 Ex.P2 : Death Certificate of Yellamma Ex.P3 : Khatha Extract
(b) Defendants' side:
Ex.D1 : Original Sale Deed dated 03.12.1970 Ex.D2 : Original Registered Mortgage Deed dated 24.06.1971 Ex.D3 : Certified copy of Sale Deed dated 27.12.1973 Ex.D4 : Original Registered Mortgage Deed dated 15.02.1978 Ex.D5 : Original Deed of Redemption of Mortgage dated 24.07.1982 Ex.D6 : Certified copy of Sale Deed dated 06.07.1983 Ex.D7 : Original Will Deed dated 16.07.1987 Ex.D8 : Original Cancellation of Will Deed dated 01.08.2003 Ex.D9 : Certified copy of Gift Deed dated 01.08.2003 Ex.D10 : Khatha Certificate Ex.D11 : Khatha Extract Ex.D12 : Tax Paid Receipt XLII ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
Judgement