Sri A. Sharath Chandra Prasad vs ) Kumari G. Uma Bai on 19 December, 2018

[Cites 7, Cited by 0]

Bangalore District Court

Sri A. Sharath Chandra Prasad vs ) Kumari G. Uma Bai on 19 December, 2018

IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26).

Dated this the 19th day of December, 2018.

Present
Sri MARUTHI S. BAGADE, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.

O.S.No.6427/2014 CLUBBED WITH
O.S.No.6485/2014, O.S.No.5873/2014,
O.S.No.6057/2014, O.S.No.6210/2014 &
Misc.No.12/2017

PARTIES IN O.S.No.6427/2014

Plaintiff: Sri A. Sharath Chandra Prasad
s/o Sri M.V. Ananda Rao
aged about 55 years
r/at Flat No.D-908
Brigade Gateway
Dr.Rajkumar Road
Malleshwaram West
Bengaluru-560 055.

(By Sri Prabhakar. D, Adv.)

Vs.

Defendants: 1) Kumari G. Uma Bai
d/o Late Gurunath Joshi (Dead)
aged about 83 years

2) Smt.Vijaya,K
w/o Late Kailasnath
aged 56 years

Both are r/at No.31, 1st Cross
RMS Colony, Sanjay Nagar
Bengaluru-560 094.

3) Sri K. Arun Kumar
s/o Late Sri A.R. Krishnamurthy
2 O.S.No.6427/2014 & other clubbed cases

aged 42 years, r/at No.17
Canara Bank Colony
Jayanagar 3rd Block (E)
Bengaluru-560 011.

4) Sri N. Giridar
s/o Sri A.R. Nanda Kumar
aged 40 years
r/at No.180Y, 12th Main Road
3rd Block, Rajajinagar
Bengaluru.

5) Sri Prakash Reddy
s/o Narayanana Reddy
aged 47 years
r/at No.179, Ideal Homes
1st Phase, Rajarajeshwari Nagar
Bengaluru-560 098.

6) Sri Nagendraprasad
s/o M.V. Anand Rao and
Late Sunitha Bai
Aged 60 years
r/at No.72, 9th Main
Dr.Raja Road, Srinivas Nagar
BSK 1st Stage, Bengaluru-50.

7) Smt.Anuradha
w/o Srinivasa
d/o M.v. Ananda Rao
and Late Sunitha Bai
aged 52 years
r/at No.62, 9th Out House
Masti Venkatesh Iyengar Road
Gavipuram Extension
Bengaluru-560 019.

(By Sri J.M. Rajanna Setty, Adv.
For D.1, Sri G. Narayana Hebbar,
Adv. For LR of D.1,Smt.H.R.
Bharathi, Adv. For D.2, D.3- placed
exparte, Sri R.B. Sadasivappa,
Adv. For D.4, Sri Amarababu, M,
Adv. For D.5, Sri G. Ramesh, Adv.
3 O.S.No.6427/2014 & other clubbed cases

For D.6 and Sri J.N.M., Adv. For
D.7,)

PARTIES IN O.S.No.6485/2014

Plaintiffs: 1) Sri Smt.C. Lalithamma
w/o Late Sri A.R. Nanda Kumar
aged about 63 years

2) Sri N. Shashidhar
s/o Late Sri A.R. Nanda Kumar
aged about 34 years

3) Sri N. Raghavendra
s/o Late Sri A.R. Nanda Kumar
aged about 33 years

Plaintiff No.1 to 3 are r/at
No.762, Sanjay Nagar
Doddaballapura.

4) Sri N. Giridhar
s/o Late Sri A.R. Nandakumar
aged about 40 years
r/at No.180-Y, 12th Main
3rd Block, Opposite Sahakari
Rajaji Nagar, Bengaluru-10.

(By Sri R.B. Sadasivappa, Adv.)

Vs.

Defendants: 1) Smt. Uma Bai
d/o Late Gurunath Hanumantha
Joshi, aged about 85 years
r/at No.31, 1st Cross, RMS
Colony, Sanjay Nagar
Bengaluru-560 094.

2) Smt.Shobha
w/o Sri A.R. Krishnamurthy
aged 64 years
4 O.S.No.6427/2014 & other clubbed cases

3) Sri Arun K. Kulkarni
Aged about 41 years

4) Sri Sudhir K. Kulkarni
Aged about 40 years

D.3 & 4 are sons of
Sri A.R. Krishna Reddy.

D.2 to 4 are r/at No.17
Canara Bank Colony
Jayanagar 3rd Block
Bengaluru-560 011.

5) Sri Nagendra Prasad
s/o Sri M.V. Ananda Rao
aged about 60 years
r/at No.72, 9th Main
Dr.Raj Road, Srinivasanagar
BSK 1st Stage, Bengaluru-50.

6) Sri Sharath Chandra Prasad
s/o Sri M.V. Ananda Rao
aged about 58 years
r/at No.D-908, Bregade Gate
Way Main Colony
Malleswaram, Bengaluru-03.

7) Smt.Vijayalakshmi
w/o Late Sri Kailas
aged about 56 years

8) Sri Vasanth
s/o Late Sri Kailas
aged about 37 years

9) Smt.Bhavani
w/o Late Sri Kailas
aged about 35 years

D.7 to 9 are r/at No.31
1st Cross, RMS colony
Sanjay Nagar, Bengaluru-94.
5 O.S.No.6427/2014 & other clubbed cases

10) Sri G.S. Prakash Reddy
s/o Sri A. Narayanana Reddy
aged about 43 years
r/at No.179, Ideal Homes
1st Phase, Rajarajeshwari Nagar
Bengaluru-560 098.

(By Sri T.U.P., Adv. For D.5, Sri
K.S.M., Adv. For D.6, Sri MAB,
Adv. For D10, D.2 to 4- placed
exparte & D.1,7 to 9- Dismissed)

PARTIES IN O.S.No.5873/2014

Plaintiff: Sri N. Giridhar
s/o Late Sri R. Nanda Kumar
aged about 40 years
r/at No.180-Y, 12th Main
3rd Block, Opp: Sahakari
Rajaji Nagar, Bengaluru-560 010.

(By Sri R.B. Sadasivappa, Adv.)
Vs.

Defendants: 1) Smt.Uma Bai
d/o Sri Gurunath Hanumantha
Joshi, aged about 85 years

2) Smt.Vijayalakshmi
w/o Late Sri Kailas
aged about 56 years

Both are r/at No.31, 1st Cross
RMS Colony, Sanjay Nagar
Bengaluru-560 094.

(D.1 Abated and D.2- placed
exparte)
6 O.S.No.6427/2014 & other clubbed cases

PARTIES IN O.S.No.6057/2014

Plaintiff: Sri N. Giridhar
s/o Late Sri R. Nanda Kumar
aged about 40 years
r/at No.180-Y, 12th Main
3rd Block, Opp: Sahakari
Rajaji Nagar, Bengaluru-560 010.

(By Sri R.B. Sadasivappa, Adv.)
Vs.

Defendant: Sri Prakash Reddy
s/o Narayanana Reddy
aged 47 years
r/at No.179, Ideal Homes
1st Phase, Rajarajeshwari Nagar
Bengaluru-560 098.

(By Sri Amarbabu, M., Adv.)

PARTIES IN O.S.No.6210/2014

Plaintiff: Sri Prakash Reddy
s/o Narayanana Reddy
aged 47 years
r/at No.179, Ideal Homes
1st Phase, Rajarajeshwari Nagar
Bengaluru-560 098.

(By Sri Amarbabu, M., Adv.)

Vs.

Defendants: 1) Sri A. Sharathchandra Prasad

2) Sri N. Giridhar
s/o Late Sri R. Nanda Kumar
aged about 40 years

3) Sri Shobha
w/o Krishnamurthy, major

All are r/at No.908, Brigade Gate
7 O.S.No.6427/2014 & other clubbed cases

Malleshwaram, Bengaluru.

(By Sri D. Prabhakar, Adv. For D.1,
D.2 & 3- placed exparte)

PARTIES IN MISC.No.12/2017

Petitioner : Sri N. Giridhar
s/o Late Sri R. Nanda Kumar
aged about 40 years
r/at No.180-Y, 12th Main
3rd Block, Opp: Sahakari
Rajaji Nagar, Bengaluru-560 010.

(By Sri R.B. Sadasivappa, Adv.)
Vs.

Defendant: Sri Prakash Reddy
s/o Narayanana Reddy
aged 47 years
r/at No.179, Ideal Homes
1st Phase, Rajarajeshwari Nagar
Bengaluru-560 098.

(By Sri Amarbabu, M., Adv.)

Date of institution of the suit
O.S.No.6427/2014 21.08.2014
O.S.No.6485/2014 25.08.2014
O.S.No.5873/2014 31.07.2014
O.S.No.6057/2014 07.08.2014
O.S.No.6210/2014 13.08.2014

Nature of the suit
O.S.No.6427/2014 and For partition &
O.S.No.6485/2014 separate possession,
declaration and
permanent
injunction

O.S.No.5873/2014 For permanent
injunction
8 O.S.No.6427/2014 & other clubbed cases

O.S.No.6057/2014 For permanent
injunction

O.S.No.6210/2014 For permanent
injunction

Date of the commencement
of recording of evidence
O.S.No.6427/2014 06.06.2017
O.S.No.6485/2014 05.12.2017
O.S.No.6210/2014 22.02.2018

Date on which the judgment
Pronounced 19.12.2018

Total duration Years Months Days
O.S.No.6427/2014 04 03 28
O.S.No.6485/2014 04 03 24
O.S.No.5873/2014 04 04 19
O.S.No.6057/2014 04 04 12
O.S.No.6210/2014 04 04 06

COMMON JUDGMENT

All these suits are arising out of the same suit

schedule property and the parties are inter-connected to

each other, they are clubbed together for common

discussion.

2. Suit bearing O.S.No.6427/2014 is filed by the

plaintiff against the defendants for partition and separate

possession of his legitimate 1/3rd share in the suit

schedule property by metes and bounds; declaration that

the sale deed dated 27.06.2014 executed by the first

defendant in favour of defendant No.5 is null and void
9 O.S.No.6427/2014 & other clubbed cases

and not binding on the plaintiff and for permanent

injunction restraining the defendants, their agents, power

of attorney holders or anybody acting under them from

alienating by way of sale, mortgage, lease, gift or

hypothecation or creating any third party liabilities on the

suit schedule property.

3. Suit bearing O.S.No.6485/2014 is filed by the

plaintiffs against the defendants for partition and

separate possession to the extent of 1/4th share each in

the suit schedule property by metes and bounds;

declaration that the sale deed dated 27.06.2014

executed by the first defendant in favour of defendant

No.10 is null and void and not binding on them and for

permanent injunction restraining the defendants, their

agents, power of attorney holders or anybody acting

under them from interfering with the plaintiff No.4's

lawful and peaceful possession and enjoyment of the suit

schedule property.

4. Suit bearing O.S.No.5873/2014 is filed by the

plaintiff (defendant No.4 in O.S.6427/2014) against the

defendant No.1 (defendant No.1 in O.S.No.6427/2014)

and defendant No.2 for permanent injunction restraining
10 O.S.No.6427/2014 & other clubbed cases

them, their agents, servants and followers from

interfering with the plaintiff's peaceful possession and

enjoyment of the suit schedule property or by alienating

it.

5. Suit bearing O.S.No.6057/2014 is filed by the

plaintiff (defendant No.4 in O.S.6427/2014) against the

defendant (defendant No.5 in O.S.No.6427/2014) for

permanent injunction restraining him, his agents,

servants and followers from interfering with the plaintiff's

peaceful possession and enjoyment of the suit schedule

property or by alienating it.

6. Suit bearing O.S.No.6210/2014 is filed by the

plaintiff (defendant No.5 in O.S.6427/2014) against the

defendant No.1 & 2 (plaintiff and defendant No.4 in

O.S.No.6427/2014) and defendant No.3 for permanent

injunction restraining them, their henchmen, legal heirs,

assignees, representatives, legatees and authorised

persons from interfering with the plaintiff's peaceful

possession and enjoyment of the suit schedule property.

Pleadings in O.S.No.6427/2014

7. The brief facts of the case of the plaintiff

are as under:-
11 O.S.No.6427/2014 & other clubbed cases

a) That the plaintiff is the nephew of late Sri

Ramachandra Joshi and late Sri Lakshmana Gurunath

Joshi. The first defendant is the sister and second

defendant is the daughter-in-law of the sister of said

brothers and defendant No.3 & 4 are the grand-sons of

the sisters of said brothers by relationship. The fifth

defendant is the alleged purchaser of the suit schedule

property.

b) The suit schedule property was owned and

possessed by Sri Ramachandra Joshi, who acquired the

same from the then City Improvement Trust Board

(CITB), Bengaluru through allotment. After receipt of full

sale consideration, the CITB had executed lease-cum-

sale agreement dated 15.01.1959 in favour of Sri

Ramachandra Joshi and put him in possession of the suit

schedule property through possession certificate dated

28.07.1959. Thereafter, Sri Ramachandra Joshi had

constructed one House and three shops, which are in

joint possession of plaintiff and defendant No.3 & 4.

c) Further case of the plaintiff is that during his life

time, Sri Ramachandra Joshi had executed a WILL dated

01.03.1975, bequeathing the suit schedule property in
12 O.S.No.6427/2014 & other clubbed cases

favour of Sri Lakshmana Gurunath Joshi, who is his

younger brother, to look after the welfare of his

unmarried daughter Kumari Thunga Bai and his

unmarried sister Kumari Uma Bai. The said Ramachandra

Joshi died on 11.10.1976.

d) Further case of the plaintiff is that after death of

Ramachandra Joshi, Sri Lakshmana Gurunath Joshi

became absolute owner of the suit schedule property. He

has transferred khatha and revenue records of the suit

schedule property into his name and paid revenue to the

concerned authorities. Sri Lakshmana Gurunath Joshi

was unmarried. He bequeathed the suit schedule

property in favour of the first defendant and Miss.Thunga

Bai under a WILL dated 09.05.1990. As per the terms of

WILL, the defendant No.1 and Miss. Thunga Bai did not

have the right of alienation of the suit schedule property.

Sri Ramachandra, Sri Sharath Chandra, plaintiff and Sri

A.R. Krishnamurthy were appointed as executors of the

said WILL to manage and take care of the schedule

property as the said ladies were not aware of worldly

affairs and were spinsters. The said Thunga Bai died

intestate on 01.09.1994. Sri Lakshmana Gurunath Joshi
13 O.S.No.6427/2014 & other clubbed cases

died on 01.02.2006. After the death of Miss.Thunga Bai,

all the benefits derived from the suit schedule property

were enjoyed by the first defendant and was looked after

by the plaintiff.

e) Further case of the plaintiff is that since neither

late Ramachandra Joshi nor late Lakshman Gurunath

Joshi have obtained absolute sale deed from the BDA

pursuant to lease-cum-sale agreement, the plaintiff has

obtained the absolute sale deed in the name of first

defendant on 15.06.2007. Thereafter revenue records

were transferred in the name of first defendant. The first

defendant was living in the suit schedule property with

the defendant No.4. The plaintiff was taking care of her

daily needs and managing the suit schedule property by

receiving rents and remitting it to the account of the first

defendant.

f) Further case of the plaintiff is that the first

defendant has executed a WILL dated 07.11.2008 and

appointed the plaintiff and defendant No.3 & 4 as

executors and further stated in the WILL that the assets

so left behind by her should be distributed among her

nephews and nieces which was contrary to the intention
14 O.S.No.6427/2014 & other clubbed cases

of original owner. After realizing it, the first defendant

has executed a codicil to the said WILL on 05.06.2010

bequeathing the suit schedule property and her other

assets in favour of the plaintiff and defendant No.3 & 4

as beneficiaries.

g) This being so, all of a sudden, taking advantage

of the age oldness and ailments of the first defendant,

the second defendant took her to her house, taken the

signature of the first defendant on alleged sale

agreement dated 15.04.2014 with the fifth defendant.

After obtaining the certified copy of the said sale

agreement, the plaintiff came to know that the said sale

agreement is fabricated one and the sale consideration

amount shown therein is notional, because the actual

market value of the schedule property is more than

double the value of sale consideration.

h) Further case of the plaintiff is that, thereafter the

defendant No.5 at the instance of the defendant No.2 has

filed suit bearing O.S.No.4066/2014 against the

defendant No.1 for specific performance to enforce the

alleged sale agreement dated 15.04.2014, which was

compromised on 16.06.2014. Taking shelter of this
15 O.S.No.6427/2014 & other clubbed cases

order, the defendant No.5 obtained registered sale deed

dated 27.06.2014. On the influence of said sale deed, the

defendant No.1 was also made to cancel the registered

WILL dated 15.04.2014. The first defendant was doing

the act as the puppet of second defendant. Therefore,

the sale deed is sham and bogus document.

i) Further case of the plaintiff is that, the WILL

came into existence only after the death of first

defendant. In the meanwhile, there was partition of the

suit schedule property between the plaintiff, defendant

No.3 & 4 before the family members on 10.11.2013.

Smt.Lalithamma, Smt.Anuradha, Smt.Saraswathi and Sri

M.V. Ananda Rao were present in the said Panchayath.

As per the oral partition, the plaintiff and defendant No.3

& 4 have got 1/3rd equal share in the suit schedule

property and the first defendant has released and

relinquished all her right, title and interest over the suit

schedule property in favour of them and handed over

original title deeds to the custody of the plaintiff. Thus,

the plaintiff and defendant No.3 & 4 have become joint

owners in possession of the suit schedule property with

equal share.
16 O.S.No.6427/2014 & other clubbed cases

j) Further case of the plaintiff is that the third

defendant is residing in the house in the suit schedule

property and three shops are let out on rent and tenants

have paid rents to the plaintiff upto month of July 2014

and have not paid the rents of August due to intervention

of fifth defendant. The second defendant to knock off the

suit schedule property has created false documents and

implanted fifth defendant as the purchaser. In order to

give effect to the oral partition, the plaintiff has filed this

suit for partition and separate possession by metes and

bounds and for other reliefs.

8. After receipts of summons, defendant No.1,2 & 4

to 7 appeared through their respective counsels before

the Court and filed their respective written statements.

However third defendant remained absent, hence placed

exparte.

9. The defendant No.1 appeared through the

counsel and filed written statement, admitting the

relationship mentioned in the plaint; death of

Ramachandra Joshi, Thunga Bai and L.G. Joshi;

execution of lease-cum-sale agreement dated

15.01.1959 by the CITB; delivery of possession
17 O.S.No.6427/2014 & other clubbed cases

certificate on 20.08.1959; WILL bequeathed by

Ramachandra Joshi in favour of Lakshman Gurunath

Joshi on 01.03.1975; the first defendant became the

absolute owner in possession and enjoyment but

denying the first defendant became the beneficiary of life

interest in the schedule property.

Further contention of the first defendant is that the

suit schedule property was an individual property of R.G.

Joshi. On 01.03.1975, he bequeathed the said property

in favour of his brother L.G. Joshi, who was bachelor, by

way of WILL. Sri L.G. Joshi has bequeathed a registered

WILL on 09.05.1990 in favour of Smt.Umabai and Smt.

Thungabai wherein it is recited that in the event of any of

the persons dies, the property shall devolve upon the

surviving persons. Since L.G. Joshi and Thungabai died

before first defendant, the entire suit schedule property

has been devolved upon the first defendant with all

rights.

Further case of this defendant is that, on

17.08.2006, she approached the BBMP and got khatha

changed in her name and paid taxes. During the life time

of R.G. Joshi, L.G. Joshi, Renukabai and Thungabai, they
18 O.S.No.6427/2014 & other clubbed cases

did not move the CITB now BDA for getting absolute sale

deed in respect of the suit schedule property. Knowing

this fact, the first defendant moved the BDA and

obtained absolute sale deed on 15.06.2007. In the WILL

dated 09.05.1990, it is recited that "to take care of them

in the event of any help required". Taking advantage of

this recital, the plaintiff is claiming right, title and interest

and possession over the property, which is unlawful.

Further contention of the first defendant is that she

has incurred huge debts for the purpose of maintenance

of the family and for getting documents from the

concerned authorities. Accordingly, she entered into sale

agreement with the fifth defendant on 15.04.2014.

Thereafter, the fifth defendant has filed suit bearing

O.S.No.4066/2014 before this Court for specific

performance of the contract, which was decreed on

16.06.2014. Pursuant to it, the first defendant by

receiving entire sale consideration has executed

registered sale deed dated 27.06.2014 in favour of the

fifth defendant. Thereby, the fifth defendant became the

absolute owner in possession and enjoyment of the suit
19 O.S.No.6427/2014 & other clubbed cases

schedule property. Therefore, the first defendant prays to

dismiss the suit of the plaintiff.

10. The defendant No.2 has denied the averments

of the plaint in toto and contended that the suit schedule

property was the individual property of the first

defendant. There is no relationship between the plaintiff

and defendant No.2 to 4 to claim alleged share in the suit

schedule property. The fifth defendant is the absolute

owner in possession and enjoyment of the suit schedule

property as bonafide purchaser. The first defendant has

sold the suit schedule property for a valuable

consideration in favour of the fifth defendant in order to

discharge her debts. The plaintiff has no manner of right,

title and interest or possession over the suit schedule

property. More over, defendant No.2 is unnecessarily

arrayed in the case. Hence, prays to dismiss the suit of

the plaintiff.

11. The defendant No.4 & 6 have admitted the

averments made in the plaint and prays to decree the

suit by allocating their share in the suit schedule

property.
20 O.S.No.6427/2014 & other clubbed cases

12. The fifth defendant has denied the entire

averments of plaint and contended that only after detail

sale talks with defendant No.1, he had purchased the suit

schedule property for valuable consideration and became

its absolute owner under registered sale deed dated

27.06.2014 legally. The first defendant sold the property

for her legal necessity and thus he is a bonafide purchase

of the suit schedule property. After purchase of

property, he got transferred the khatha in his name and

as on today, khatha is standing in his name. He had paid

upto taxes to the concerned authorities. Three tenants

are giving rent to him. The plaintiff and other defendants

are totally strangers to the suit schedule property. In

order to extract monitory benefits, they have filed

collusive suit to harass him. Hence, the suit is liable to be

dismissed.

13. The 7th defendant has filed written statement,

admitting that she has filed suit bearing

O.S.No.6614/2014 for partition and other reliefs; due to

ill-advise, she withdrawn the said suit in view of the

pendency of the present suit.
21 O.S.No.6427/2014 & other clubbed cases

Further contention of this defendant is that

deceased Umabai had no absolute right to alienate the

suit schedule property except to enjoy the suit schedule

property during her life time; she was given only life

interest; this fact was well within the knowledge of

Umabai.

Further contention of this defendant is that

deceased Umabai was residing with Girish in the suit

schedule property till she was shifted to the house of

defendant No.6- Nagendra Prasad; the second defendant

hatched a plan with the wife of 6th defendant to dispose

of the suit schedule property illegally and in that pretext

she shifted Umabai to the residence of 6th defendant.

Further case of this defendant is that, the market

value of the suit schedule property was almost Rs.4

Crores but the second defendant in collusion with wife of

6th defendant sold the same to the defendant No.5 for a

meager amount of Rs.1.73 Crore; this itself amounts to

suspicious move on the sale transaction; therefore, the

plaintiff is entitled to succeed the suit schedule property.

Hence, defendant No.7 requested to set aside the sale

deed in favour of the defendant No.5.
22 O.S.No.6427/2014 & other clubbed cases

Pleadings in O.S.No.6485/2014

14. Brief facts of the case of the plaintiffs are

as under:-

The suit schedule property is the joint family

property of plaintiffs and defendant No.1 to 9. The suit

schedule property consists of one residential house and

three shops. The suit house is in occupation of plaintiff

No.4 and he is collecting rent from the tenants of 3 shop

premises.

Further case of the plaintiffs is that the first

defendant joining hands with the 7th defendant has sold

the suit schedule property in favour of defendant No.10,

though having no manner of right, title or interest.

Hence, sale deed executed by the first defendant in

favour of defendant No.10 is illegal and not binding on

them. They are entitled for share in the suit schedule

property. Hence, they prayed to decree the suit.

15. After receipts of summons, defendant No.5,6 &

10 appeared through their respective counsels and filed

their respective written statements. However, defendant

No.2 to 4 remained absent, hence, they are placed

exparte. Suit against defendant No.1, 7 to 9 is dismissed.
23 O.S.No.6427/2014 & other clubbed cases

16. The defendant No.1 admitted the relationship

mentioned in the plaint; death of Ramachandra Joshi,

Thunga Bai and L.G. Joshi; execution of lease-cum-sale

agreement dated 15.01.1959 by the CITB; delivery of

possession certificate on 20.08.1959; WILL bequeathed

by Ramachandra Joshi in favour of Lakshman Gurunath

Joshi on 01.03.1975; the first defendant became the

absolute owner in possession and enjoyment but

denying the first defendant became the beneficiary of life

interest in the schedule property.

Further contention of this defendant is that the suit

schedule property was an individual property of R.G.

Joshi. On 01.03.1975, he bequeathed the said property

in favour of his brother L.G. Joshi, who was bachelor, by

way of WILL. Sri L.G. Joshi has bequeathed a registered

WILL on 09.05.1990 in favour of Smt.Umabai and Smt.

Thungabai wherein it is recited that in the event of any of

the persons dies, the property shall devolve upon the

surviving persons. Since L.G. Joshi and Thungabai died

before defendant No.1, the entire suit schedule property

has been devolved upon the first defendant with all

rights.
24 O.S.No.6427/2014 & other clubbed cases

Further case of this defendant is that, on

17.08.2006, she approached the BBMP and got khatha

changed in her name and paid taxes. During the life time

of R.G. Joshi, L.G. Joshi, Renukabai and Thungabai, they

did not move the CITB now BDA for getting absolute sale

deed in respect of the suit schedule property. Knowing

this fact, she moved the BDA and obtained absolute sale

deed in her name on 15.06.2007. In the WILL dated

09.05.1990, it is recited that "to take care of them in the

event of any help required". Taking advantage of this

recital, the plaintiff is claiming right, title and interest and

possession over the property, which is unlawful.

Further contention of this defendant is that she has

incurred huge debts for the purpose of maintenance of

the family and for getting documents from the concerned

authorities. Accordingly, she entered into sale agreement

with the defendant No.10 on 15.04.2014. Thereafter, the

defendant No.10 has filed suit bearing O.S.No.4066/2014

before this Court for specific performance of the contract,

which was decreed on 16.06.2014. Pursuant to it, after

receiving entire sale consideration she has executed

registered sale deed dated 27.06.2014 in favour of the
25 O.S.No.6427/2014 & other clubbed cases

defendant No.10. Thereby, the defendant No.10 became

the absolute owner in possession and enjoyment of the

suit schedule property.

17. The defendant No.6 has admitted the

averments made in the plaint and prays to decree the

suit by allocating his share in the suit schedule property.

18. The defendant No.10 has denied the averments

of the plaint in toto and contended that the suit schedule

property was the individual property of the first

defendant. There is no relationship between the plaintiff

and defendant No.1 to 9 to claim alleged share in the suit

schedule property. That only after detail talks with the

defendant No.1, he had purchased the suit schedule

property under registered sale deed dated 27.06.2014

legally. Thereafter he took the possession of property,

got changed khatha in his name. The defendant No.1

sold property for her legal necessity i.e. to discharge her

debts, thus he is a bonafide purchaser of the suit

schedule property and therefore he is the absolute owner

of it. The plaintiffs have no manner of right, title and

interest or possession over the suit schedule property.

Hence, prays to dismiss the suit of the plaintiffs.
26 O.S.No.6427/2014 & other clubbed cases

PLEADINGS IN O.S.No.5873/2014

19. Brief facts of the plaintiff's case are as

under:-

The plaintiff (plaintiff No.4 in O.S.No.6485/2014)

has filed this suit contending that he is in lawful and

peaceful possession and enjoyment of the suit schedule

property. It consists of one residential house wherein

plaintiff and his family members are residing and three

shops, which are leased out to Sri K. Muneshwar, Sri

K.N. Sheshadri and SLN Stores on monthly rent of

Rs.9,000/-.

Further case of the plaintiff is that plaintiff is living

together with the defendant No.1 in the suit schedule

property since 20 years by looking after her.

This being so, when the plaintiff and his wife were

away from the house for some time, the second

defendant, who is far relative of the plaintiff, exercising

undue influence on the first defendant and coercing her

to execute deed of conveyance in her favour to deny the

valuable rights of the plaintiff over the suit schedule

property, took her to her house and by coercing the first

defendant, the second defendant has lodged a false
27 O.S.No.6427/2014 & other clubbed cases

complaint against the plaintiff. The Police on 23.07.2014

called the plaintiff and took explanation from him. The

defendants are trying to alienate the suit schedule

property detrimental to the interest of the plaintiff.

Therefore, the plaintiff has been constrained to file this

suit.

20. After receipt of the suit summons, the

defendants appeared through the counsel before the

Court. The defendant No.1 has not filed any written

statement.

The defendant No.2 filed written statement denying

the averments of the plaint in toto. She has taken

contention that plaintiff has unnecessarily dragged the

defendants into the litigation. She has noting to do with

the suit schedule property. Plaintiff has caused

unnecessary harassment and unwarranted expenses to

this defendant. The plaintiff is not in possession and

enjoyment of the suit schedule property. He never

collected any rents from the tenants. The defendant No.1

has alienated the suit schedule property voluntarily. The

plaintiff has never taken care of the defendant No.1.

Defendant No.1 lived alone and she was capable to take
28 O.S.No.6427/2014 & other clubbed cases

care of herself without help of anybody. Hence, prays to

dismiss the suit.

PLEADINGS IN O.S.No.6057/2014

21. Brief facts of the plaintiff's case are as

under:-

The plaintiff (plaintiff No.4 in O.S.No.6485/2014)

has contended that he is in lawful and peaceful

possession and enjoyment of the suit schedule property.

It consists of one residential house wherein plaintiff and

his family are residing and three shops, which are leased

out to Sri K. Muneshwar, Sri K.N. Sheshadri and SLN

Stores on monthly rent of Rs.9,000/-.

Further case of the plaintiff is that plaintiff is living

together with defendant No.1- Uma Bai, who is his

grand-mother in the suit schedule property since 20

years by looking after her.

This being so, when the plaintiff and his wife were

away from the house for some time, Smt.Vijaya Lakshmi,

exercising undue influence on Smt.Uma Bai and coercing

her to execute deed of conveyance in her favour to deny

the valuable rights of the plaintiff over the suit schedule

property, took her to her house and got executed
29 O.S.No.6427/2014 & other clubbed cases

registered sale deed dated 27.06.2014 in respect of the

suit schedule property in favour of the defendant. Under

the influence of the said sale deed, the defendant came

to the schedule premises on 05.08.2014 and threatened

the plaintiff and his tenants. In this regard, the plaintiff

has lodged complaint to the police, which went in vain.

Hence, the plaintiff has been constrained to file this suit.

22. The defendant appeared through the counsel

and filed written statement denying the averments of the

plaint in toto and contended that he has acquired the suit

schedule property in accordance with law. The plaintiff

has not approached the Court with clean hands. The

plaintiff is not in lawful possession of the suit schedule

property. The plaintiff has appeared in Ex.No.2304/2014

as an objector. He cannot maintain the above suit

parallel to his application in execution petition. The entire

suit schedule property was handed over by Uma Bai on

execution of the absolute sale deed in terms of judgment

and decree dated 15.06.2014 for specific performance in

O.S.No.4066/2014. Hence, prays to dismiss the suit.
30 O.S.No.6427/2014 & other clubbed cases

PLEADINGS IN O.S.No.6210/2014

23. Brief facts of the plaintiff's case are as

under:-

The plaintiff (defendant No.5 in O.S.No.6427/14) in

this suit has contended that he is in lawful and peaceful

possession and enjoyment of the suit schedule property

by acquiring the same from Uma Bai under registered

sale deed dated 27.06.2014. Subsequent to it, the

plaintiff has paid taxes to the BBMP. Khatha is standing

in his name. The vendor of the plaintiff was got khatha in

her name.

This being so, the defendants on 10.08.2014 tried

to demolish the wall, which was resisted by the plaintiff

with great difficulty. When the plaintiff failed in his

attempt, he lodged the complaint before the Police,

without any alternative, he has filed this suit seeking

permanent injunction.

24. After receipt of suit summons, the defendant

No.2 & 3 remained absent, hence placed exparte.

However, the defendant No.1 appeared through the

counsel and filed written statement denying the

averments of the plaint in toto and contended that the
31 O.S.No.6427/2014 & other clubbed cases

plaintiff is a land grabber. He is in the habit of cheating

the lawful owners of the suit schedule property and

threatened their lawful ownership. He is master in

fabricating the documents. He has got men and

machinery under his command. He has acquired several

properties in the city by this modus operandi. Hence,

prays to dismiss the suit.

Brief facts in Misc.No.12/2017

25. It appears that, the plaintiff in

O.S.No.6057/2014 filed application under Order XXXIX

Rule 2-A read with Section 151 of CPC against the

defendant for his detention in civil prison for deliberate

disobedience and breach of the interim order dated

07.11.2014, contending that on 03.11.2016, the

defendant damaged his name board hung on the wall and

damaged the wall and paintings; he has lodged complaint

in this regard with the jurisdictional police, but they did

not take any action; therefore, his life is in danger;

though the interim order is in force, the defendant has

violated the said order and he is liable to be punished.

26. As submitted by the counsel appearing for the

defendant- Prakash Reddy, he filed objection to the said
32 O.S.No.6427/2014 & other clubbed cases

application in the suit itself and thereafter Court ordered

for registration of I.A. as Miscellaneous Case, hence, I.A.

has been registered as Misc.No.12/2017. After

registration of this petition, this matter has been called

out along with the above suits, but the petitioner neither

in suit nor in this petition lead the evidence to prove the

allegations.

27. On the basis of the above pleadings of parties,

my predecessor in the office has framed following issues

in all the cases:-

ISSUES IN O.S.No.6427/2014

1) Whether the plaintiff proves that he has got
1/3rd share in the suit schedule property?

2) Whether the plaintiff proves that defendant

No.1 has no right to alienate the suit
schedule property?

th
3) Whether the 5 defendant proves that he is
the bonafide purchaser of the suit schedule
property?

4) Whether the defendant No.1 & 5 prove that

the suit is not properly valued and the
Court fee paid is insufficient?

5) Whether the plaintiff is entitled for the

relief as sought for?
33 O.S.No.6427/2014 & other clubbed cases

6) What order or decree?

28. After examining the plaint averments, evidence

on record and arguments of the plaintiff's counsel, it is

noticed that two issues are not framed regarding

obtaining the sale deed by the defendant No.5 by playing

fraud upon defendant No.1 colluding with the defendant

No.2 as well as non-binding nature of sale deed upon the

share of plaintiffs, even though there is pleading in this

regard. These issues are necessary to decide whether

defendant No.5 had obtained the sale deed by playing

fraud or not? and also, the sale deed is binding upon the

share of plaintiff or not? Similar issues have already been

framed in O.S.No.6485/2014. Both parties have already

led the evidence on these issues and also advanced the

arguments, touching the evidence of the both parties on

these issues, but without issues in O.S.No.6427/2014.

Hence, question of recording of additional evidence on

additional issues do not arise. As such, additional issues

are framed as under:-

ADDL. ISSUES
(Framed at the time of dictation of judgment)
1) Does plaintiff proves that the defendant

No.5 had obtained sale deed in his favour
34 O.S.No.6427/2014 & other clubbed cases

by playing fraud upon defendant No.1
colluding with defendant No.2?

2) Does plaintiff is entitled for declaration that

the sale deed dated 27.06.2014 executed
by defendant No.1 in favour of defendant
No.5 is not binding upon his share?

FRESH ISSUES FRAMED ON 12.12.2018 IN
O.S.No.6485/2014 (with consent of both counsels)

1) Does plaintiffs prove that the suit property
is joint family property of themselves and
defendant No.1 to 9?

2) Does plaintiffs prove that the defendant
No.1 had no absolute authority to sell the
suit property?

3) Does plaintiffs prove that the defendant

No.10 had obtained sale deed in his favour
by playing fraud upon defendant No.1
colluding with defendant No.7?

4) Does defendant No.10 proves that he is a

bonafide purchaser of suit property?

5) Does plaintiffs prove that the suit schedule

property is in the possession of plaintiff
No.4?

6) Does plaintiffs prove the interference
alleged against the defendant No.10?
35 O.S.No.6427/2014 & other clubbed cases

7) Does plaintiffs are entitled for declaration

that the sale deed dated 27.06.2014
executed by defendant No.1 in favour of
defendant No.10 is not binding upon their
share?

8) Does plaintiffs are entitled for partition and

separate possession of 1/4th share?

9) Does plaintiffs are entitled for the relief of

permanent injunction?

10) What decree or order?

ISSUES IN O.S.No.5873/2014

1) That for the reasons assigned in the plaint,
whether plaintiff does prove and
establishes that he is possession of suit
property and that there exist obligations in
favour of plaintiff in respect of suit property
to be performed by the defendants?

2) Whether the plaintiff further proves that

there is serious threat to such obligations
by the defendants and therefore that
plaintiff is entitle to protect his possession
as well as such obligations?

3) Whether the plaintiff is entitle for the
equitable relief of permanent injunction to
be granted under Section 38 of Specific
Relief Act?
36 O.S.No.6427/2014 & other clubbed cases

4) What order or decree?

ISSUES IN O.S.No.6057/2014

2) Whether the plaintiff further proves that

there is serious threat to such obligations
by the defendant and therefore that
plaintiff is entitle to protect his possession
as well as such obligations?

3) Whether the defendant does prove and

establishes that through court of law the
defendant had obtained sale deed in
respect of suit property as the suit
preferred by him against the grand-mother
of plaintiff was decreed in his favour?

4) Whether the plaintiff is entitle for the
equitable relief of permanent injunction to
be granted under Section 38 of Specific
Relief Act?

5) What order or decree?
37 O.S.No.6427/2014 & other clubbed cases

ISSUES IN O.S.No.6210/2014

1) Whether the plaintiff proves that he is in
peaceful possession and enjoyment of
plaint schedule property as on the date of
the suit?

2) Whether the plaintiff proves the defendants

are interfering with his peaceful possession
and enjoyment over the schedule property?

3) Whether plaintiff is entitled for the reliefs of

permanent injunction against the
defendants as prayed for?

4) What order or decree?

29. In order to establish the case, in

O.S.No.6427/2014, plaintiff and 4 witnesses are

examined as P.W.1 to 5 and got the documents marked

as per Ex.P.1 to Ex.P.21. Thereafter, defendant No.5,4 &

7 respectively examined as D.W.1 to 3 and got the

documents marked as per Ex.D.1 to Ex.D.57.

30. In O.S.No.6485/2014, plaintiff No.4 (defendant

No.4 in O.S.No.6427/2014) examined himself as P.W.1

and got the documents marked as per Ex.P.1 to Ex.P.23.

Thereafter D.W.1 to D.W.3 are examined and got the

documents marked as per Ex.D.1 to Ex.D.87.
38 O.S.No.6427/2014 & other clubbed cases

31. In O.S.No.5873/2014 and O.S.No.6057/2014,

plaintiff (defendant No.4 in O.s.No.6427/2014) examined

himself as P.W.1 and no documents are marked.

Defendants have not led either oral or documentary

evidence.

32. In O.S.No.6210/2014 plaintiff (defendant No.5

in O.s.No.6427/2014) examined himself as P.W.1 and got

the documents Ex.P.1 to Ex.P.13 are marked. Defendants

have not led either oral or documentary evidence.

33. Heard the oral arguments of all the counsels

and perused the written synopsis submitted by the

counsels for defendant No.5 & 7 as well as oral and

documentary evidence on record and the principles laid

down in the judgments relied upon by the counsels.

34. My findings on the above issues and addl. Issue

are as follows:-

O.S.No.6427/2014

Issue No.1:- In the negative;

Issue No.2:- In the negative;

Issue No.3:- Partly in the negative;

Issue No.4:- In the negative;

Issue No.5:- In the affirmative;
39 O.S.No.6427/2014 & other clubbed cases

Addl. Issue No.1:- In the negative;

Addl. Issue No.2:- Partly in the affirmative;

Issue No.6:- As per final order;

O.S.No.6485/2014

Issue No.1:- In the negative;

Issue No.2:- In the negative;

Issue No.3:- In the negative;

Issue No.4:- Partly in the negative;

Issue No.5:- In the affirmative;

Issue No.6:- In the negative;

Issue No.7:- Partly in the affirmative;

Issue No.8:- In the affirmative;

Issue No.9:- In the negative;

Issue No.10:- As per final order,

O.S.No.5873/2014

Issue No.1:- In the negative;

Issue No.2:- In the negative;

Issue No.3:- In the negative;

Issue No.4:- As per final order,

O.S.No.6057/2014

Issue No.1:- In the negative;

Issue No.2:- In the negative;
40 O.S.No.6427/2014 & other clubbed cases

Issue No.3:- In the negative;

Issue No.4:- In the negative;

Issue No.5:- As per final order,

O.S.No.6210/2014

Issue No.1:- In the negative;

Issue No.2:- In the negative;

Issue No.3:- In the negative;

Issue No.4:- As per final order, for the following:-

REASONS

34. ISSUE No.2 (IN O.S.No.6427/2014 &

O.S.No.6485/2014):- Having regard to the peculiar

facts and circumstances involved in these cases, I feel it

just and proper to deal with issue No.2 in both suits at

first instance so as to reach to a basic conclusion.

35. Having after hearing the rival contentions of the

counsel, I feel it just and proper to frame the following

points for discussion to make the discussion more

meaningful, namely:-

-Points-

1) Does plaintiff proves that whatever the
right granted by the R.G. Joshi under his
WILL dated 01.03.1975 in favour of L.G.
41 O.S.No.6427/2014 & other clubbed cases

Joshi is only the life interest but not
absolute right?

2) Does plaintiff proves that the R.G. Joshi
has further created only life interest in
favour of deceased defendant No.1 i.e.,
Umabai under his WILL deed dated
01.03.1975?

3) Does plaintiffs in O.S.No.6485/2014
prove that the R.G. Joshi did not acquire
valid title to the property from CITB and
therefore incompetent to executed the
WILL?

4) Does plaintiffs in O.S.No.6485/2014
have locus-standi to challenge the WILL
deed of R.G. Joshi?

5) Does these plaintiffs further prove that
the B.D.A. has not granted absolute title
to the deceased defendant No.1 i.e.,
Umabai?

36. POINT No.1:- During the course of argument,

learned counsels appearing for the plaintiffs and

defendant No.7 have contended that:-

the suit site measuring 40x60 feet was acquired by

the deceased Ramachandra s/o Gurunath Joshi

(R.G.Joshi in short) from the then CITB through
42 O.S.No.6427/2014 & other clubbed cases

agreement dated 12.11.1959 (vide Ex.D.1 in

O.S.No.6485/2014) and took the possession of property

under allotment letter dated 28.07.1959. Thereafter R.G.

Joshi had constructed the suit house upon site consisting

of 3 shops. Said R.G. Joshi had bequeathed the suit

property in favour of his brother Lakshman Gurunath

Joshi (L.G. Joshi in short) through WILL dated

01.03.1975. In the said WILL, at the middle para No.5,

R.G. Joshi made declaration of his intention. Though

recitals of para No.5 says that, the R.G. Joshi has given

absolute ownership rights to the L.G. Joshi, that is not

correct preposition, because, said R.G. Joshi in the last

para of the WILL has made a further declaration of his

last intention to the effect that-

"after L.G. Joshi, sister- Umabai gets
the right over the property till her marriage
and after her marriage, property shall got
to his daughter- Thungabai".

Learned counsels by drawing my attention to the

provisions of Section 88 of Indian Succession Act, 1925

have contended that, in a WILL, if two inconsistent clause

appears and if they are not reconcilable, then last clause

prevails. Therefore, the contention of the counsels is
43 O.S.No.6427/2014 & other clubbed cases

that, the L.G. Joshi did not become the absolute owner of

the property, because of grant of absolute interest in

favour of daughter at last clause. In support of this

contention learned counsels relied upon the judgment

reported in LAWS(SC) 1995 8 43 Special Leave Petition

(Civil) 4597 of 1990 in case of Kaivelikkal Ambunhi v/s H.

Ganesh Bhandary, LAWS(MAD) 1961 9 33 Second Appeal

392 of 1958 in case of Lakshi Ammal v/s Allauddin Sahib,

AIR 2000 SC 1908 in case of Balwant Kaur & anr. v/s

Chanan Singh & Ors., legalcrystal.com/928466 in case of

Raja Poongolu Chetty Charities & Ors. v/s Meer Alias

Meera Bai.

37. On the contrary contention of counsel appearing

for sole contesting defendant No.5 is that the recitals in

the WILL of R.G. Joshi are clear one. There is no scope

for any kind of ambiguity or confusion to invoke the

provision of Section 88 of Indian Succession Act, 1925.

According to the counsel, R.G. Joshi has granted absolute

right to the L.G. Joshi and it was so because L.G. Joshi

had given financial assistance to the R.G. Joshi for

construction of house. In that view of the matter, R.G.
44 O.S.No.6427/2014 & other clubbed cases

Joshi had bequeathed the suit property in favour of L.G.

Joshi, who is none other than the younger brother.

38. However, in last paragraph, he expressed his

intention that, after him, property shall go to sister-

Umabai (deceased defendant No.1) till her marriage and

after marriage, it shall go to the daughter-Thungabai.

This we can mean that, the testator R.G. Joshi had taken

abundant caution that, if L.G. Joshi dies intestate, then

property shall go only to the sister and daughter, but

none others. From this condition, one cannot come to

conclusion that, the R.G. Joshi has granted only the life

interest to L.G. Joshi. Therefore, the contention of the

counsels that, the R.G. Joshi had given only life interest

to L.G. Joshi but not absolute right over the property is

not acceptable.

39. I have carefully examined the contentions of

WILL dated 01.03.1975 executed by the R.G. Joshi in

favour of L.G. Joshi as well as the provisions of Section

88 of Indian Succession Act, 1925 and the principles laid

down in the judgments relied upon by the counsels. In all

the judgments, a common principle that has been laid

down is that,
45 O.S.No.6427/2014 & other clubbed cases

"if there are inconsistent clauses in
the WILL and they do not stand together,
or gives contrary meanings, then it is the
last clause shall prevail".

I have taken note of the principles laid down in

these judgments. At the outset what I would like to state

is that, as held in the above judgments, the assistance of

Section 88 of Indian Succession Act, 1925 is necessary

only when there are two inconsistent clauses susceptible

to give two different or contrary meanings. Here in the

case on hand no such confusion seems to be present in

the WILL under interpretation as contended by the

plaintiff's and defendant No.7's counsels.

40. It is not in dispute that, the R.G. Joshi and L.G.

Joshi are brothers. It is also not in dispute that the

Umabai is sister of both. It is also admitted fact that, the

Thungabai is the daughter of testator R.G. Joshi. The

execution of WILL by the R.G. Joshi as per Ex.P.13 in

favour of L.G. Joshi is also an admitted fact. What is

disputed is the intention of the testator.

41. According to plaintiff, R.G. Joshi had no

intention to bequeath the property in favour of L.G. Joshi

by giving his absolute ownership rights. According to
46 O.S.No.6427/2014 & other clubbed cases

defendant No.5, R.G. Joshi had given absolute rights.

Therefore, it is obvious that, it is only the recitals of the

WILL which can successfully give answers to the said

questions. It is well settled principle of law that, the

intention of testator cannot be gathered from one or two

sentences or paragraphs in the WILL. In order to find out

the correct intention of testator, entire body of the WILL

has to be read together. Keeping in view of this

preposition of law now let us proceed to examine the

intention of the testator.

42. On perusal of the WILL deed dated 01.03.1975,

it ii s obvious that, first paragraph is relating to the self

introduction of testator. Similarly 2nd & 3rd paragraphs

pertains to the reasons for writing the WILL and the

identity of properties bequeathed. Thereafter comes the

paragraph No.4/5th from which the declaration of

intention of testator begins. In order to make the

discussion more meaningful, I would like to reproduce

the relevant paragraphs as under:-

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47 O.S.No.6427/2014 & other clubbed cases

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«£ÀB ¨ÁQ ºÀtªÀ£ÀÄß ¤Ã£É PÉÆnlgÀÄwÛ. F PÁgÀt¢AzÀ F
48 O.S.No.6427/2014 & other clubbed cases

D¹ÛAiÀÄÄ ¤£ÀUÉÃ ¸ÉÃgÀvÀPÀÌzÀÄÝ. CzÀPÉÆÌÃ¸ÀÌgÀ F ªÀÄgÀt
¥ÀvÀæ¢AzÀ ¤Ã£É ºÀPÀÄÌzÁgÀ£ÁUÀÄwÛÃ".
From the bare reading of above paragraphs, it is

obvious that, the testator R.G. Joshi had bequeathed two

properties. One is landed property at Kanakapura village

at Haveri Taluk and another is suit property.

43. After meaningful reading of paragraph No.5,

one can easily say that, that the R.G. Joshi had not made

the gratuitous gift of suit property to the L.G. Joshi by his

WILL dated 01.03.1975. This paragraph clearly shows

that, since the L.G. Joshi had shared the portion of cost

of site and building, R.G. Joshi bequeathed the suit

property to L.G. Joshi as his absolute property.

44. In the same para, R.G. Joshi made clear that

none of his any other relatives shall have rights in the

said property and it is only the L.G. Joshi has got

exclusive ownership rights over the property. Therefore,

it is clear that the R.G. Joshi had bequeathed the suit

house exclusively to his younger brother L.G. Joshi not

only because of love and affection but also because of

financial assistance rendered by him for the construction

of house building.
49 O.S.No.6427/2014 & other clubbed cases

45. It is true that, in the last paragraph of WILL,

R.G. Joshi had expressed his intention that, after the L.G.

Joshi, sister Umabai will get the right over the property

till her marriage and after marriage, his daughter will get

right over the property. For convenience shake, I would

like to reproduce the last clause as under:-

"¤Ã£ÀÄ ¤£Àß £ÀAvÀgÀ (¥À±Áåvï) F D¹ÛUÀ¼À½UÉ £ÀªÀÄä
vÀAVAiÀiÁzÀ f. GªÀiÁ¨Á¬Ä DPÉAiÀÄÄ ®UÀßªÁUÀÄªÀªÀgÉUÀÆ
ºÀPÀÄÌzÁgÀgÁVgÀÄvÁÛ¼É. DPÉAiÀÄ ®UÀßªÁzÀ ªÉÄÃ¯É F D¹ÛAiÀÄ
ºÀPÀÄÌ £À£Àß ªÀÄUÀ¼ÁzÀ vÀÄAUÁ¨Á¬Ä eÉÆÃ¶UÉ ¸ÉÃgÀvÀPÀÌzÀÄÝ.
J®ègÀ£ÀÄß ¸ÀjAiÀiÁV £ÉÆÃrPÉÆAqÀÄ ºÉÆÃUÀvÀPÀÌzÀÄ"Ý .
In my opinion, this paragraph does not take away

the absolute right granted by the R.G. Joshi in favour of

L.G. Joshi. It is so because at the most what we can

interpret from this expression is,

"that the testator R.G. Joshi had
taken abundant precaution that, in case
L.G. Joshi dies intestate, the property shall
go only to the unmarried sister Umabai till
her marriage and in case Umabai gets
married, then property shall go finally to
his only unmarried daughter- Thungabai".

We can draw such an interpretation because R.G.

Joshi himself had expressed an intention that, his
50 O.S.No.6427/2014 & other clubbed cases

property shall not go to any other relatives. If at all such

a clause is not there and the L.G. Joshi dies intestate,

then as per Hindu Succession Act, every person in the

family would claim the rights in the properties.

Therefore, I am of the opinion that in order to avoid

future complications, R.G. Joshi has made substitute

declaration that in case of intestate death of L.G. Joshi,

property shall go only to sister and daughter but to none

others. From this substitute intention or precaution we

cannot mean that, the R.G. Joshi has not granted the

absolute rights to the L.G. Joshi. I am of the further

opinion that, if at all R.G. Joshi not at all interested to

give absolute right to the L.G. Joshi, he would not have

executed the WILL in his favour. Even otherwise if at all

he was of intention that the property finally shall go to

his daughter- Thungabai, then he would have made WILL

in her favour or would have died intestate. In both

circumstances, in law, daughter Thungabai will succeed

the property as an absolute owner. When R.G. Joshi has

not done all these things, then the simple and plain

interpretation that can be drawn is that, R.G. Joshi had

granted absolute rights to the L.G. Joshi over the suit
51 O.S.No.6427/2014 & other clubbed cases

property but subject to condition of taking care of

unmarried daughter and sister.

46. It is pertinent to note that, the plaintiff's

counsel in O.S.No.6427/2014 had much argued about

the non-grant of absolute right by the R.G. Joshi in

favour of L.G. Joshi. But what is significant to mention is

that the very plaintiff in his plaint para No.4 has clearly

admitted that-

"Sri Lakshman Gurunath Joshi
became absolute owner of the schedule
property, after demise of Ramachandra
Joshi and Khatha and other records
transferred in his name and he has paid all
property taxes".
It has been further admitted that-

"the L.G. Joshi was in possession of
schedule property and was exercising all
his rights of ownership over the schedule
property".

When such being the admissions of plaintiff in his

own pleadings, then how, plaintiff can now resile from his

own pleadings and contend that, the L.G. Joshi not

become the absolute owner of suit property by virtue of

WILL of R.G. Joshi.
52 O.S.No.6427/2014 & other clubbed cases

47. Similar view is applicable to the defendant No.4

also, because, according to the contention of defendant

No.4 in his written statement, R.G. Joshi executed WILL

in favour of Umabai (defendant No.1) and Thungabai and

since they were of unworldly knowledgeable women, he

appointed the L.G. Joshi as executor of the WILL. But on

perusal of WILL, it is obvious that, whatever the defence

set up by the defendant No.4 is false and imaginary one.

48. So far as the defence set up by the defendant

No.7 is concerned, it can easily be noticed that, the

defendant No.7 has admitted the case of plaintiff that the

L.G. Joshi has become absolute owner of suit property by

virtue of WILL executed by the R.G. Joshi. Therefore, I

am of the conclusive opinion that, neither plaintiff nor the

defendant No.4 & 7 can contend that the R.G. Joshi had

not granted absolute rights in the WILL to L.G. Joshi and

therefore L.G. Joshi does not become the absolute owner

of suit property.

49. Keeping in view of true and neutral

interpretation of contents of WILL of R.G. Joshi, I do not

find any inconsistency between the 4th & 5th para and last

para of the WILL. Therefore, question of adopting the last
53 O.S.No.6427/2014 & other clubbed cases

clause as provided under Section 88 of Indian Succession

Act, 1925 does not arise at all. In the back ground of

these reasons, point No.1 under discussion is bound to

be answered in negative.

50. POINT No.2:- Another face of argument of

counsels appearing for plaintiffs in both suits and

defendant No.7 (in O.S.No.6427/2014) is that, the R.G.

Joshi by his WILL deed dated 01.03.1975 has granted

only limited interest to the sister- Umabai over the

property till her marriage and after marriage of Umabai,

property necessarily shall go to his unmarried daughter.

51. On the other hand, contention of counsel

appearing for the sole contesting defendant No.5/10 is

that, the R.G. Joshi never executed WILL in favour of

Umabai or Thungabai. What R.G. Joshi had expressed is

that, after death of L.G. Joshi, property rights shall

devolve upon sister Umabai till her marriage and after

her marriage, property shall go to his unmarried

daughter Thungabai. It means in case of intestate death

of L.G. Joshi only, Umabai gets the rights over the

property, but till her marriage. If no marriage takes

place, then she takes the property as its absolute owner.
54 O.S.No.6427/2014 & other clubbed cases

Unfortunately Umabai remained unmarried. Under the

circumstances, even in case of intestate death of L.G.

Joshi, Umabai (deceased defendant No.1) would have got

the absolute ownership rights over the property, because

of non-occurrence of event of marriage mentioned in the

WILL of R.G. Joshi. When Umabai remained unmarried,

then question of succeeding the property by the

Thungabai from the Umabai does not arise at all.

52. In order to find out whether R.G. Joshi has

created only a life interest in favour of Umabai or not, we

have to examine the recitals of WILL of R.G. Joshi. The

WILL executed by R.G. Joshi is marked as Ex.P.13 (in

O.S.No.6427/2014). The last clause of the WILL is under

dispute, which runs as under:-

"¤Ã£ÀÄ ¤£Àß £ÀAvÀgÀ (¥À±Áåvï) F D¹ÛUÀ¼À½UÉ
£ÀªÀÄä vÀAVAiÀiÁzÀ f. GªÀiÁ¨Á¬Ä DPÉAiÀÄÄ
®UÀßªÁUÀÄªÀªÀgÉUÀÆ ºÀPÀÄÌzÁgÀgÁVgÀÄvÁÛ¼É. DPÉAiÀÄ ®UÀßªÁzÀ
ªÉÄÃ¯É F D¹ÛAiÀÄ ºÀPÀÄÌ £À£Àß ªÀÄUÀ¼ÁzÀ vÀÄAUÁ¨Á¬Ä
eÉÆÃ¶UÉ ¸ÉÃgÀvÀPÀÌzÀÄÝ. J®ègÀ£ÀÄß ¸ÀjAiÀiÁV £ÉÆÃrPÉÆAqÀÄ
ºÉÆÃUÀvÀPÀÌzÀÄÝ".

Upon perusal of last para of WILL of R.G. Joshi, it is

evident that he had expressed an intention that in case
55 O.S.No.6427/2014 & other clubbed cases

of intestate death of L.G. Joshi, property shall be

succeeded by the sister- Umabai (deceased defendant

No.1) till her marriage and after her marriage, property

shall go to his unmarried daughter- Tungabai. In my

opinion, from the plain reading of this last clause, it can

easily be gathered that, the R.G. Joshi granted the rights

over the property to the sister till her marriage. It is only

after her marriage, his daughter Tungabai will succeed

the property. What happened in the case on hand is that

sister Umabai not married at all. Under the

circumstances, how we can interpret the last clause of

the WILL of R.G. Joshi. The simple meaning of last clause

is that if the Umabai remains unmarried, then she gets

the absolute right over the property. In the back ground

of these reasons, I am of the opinion that the plaintiff

failed to prove that the R.G. Joshi has granted life

interest to the deceased defendant No.1- Umabai and

absolute right to Tungabai. As such, point No.2 under

discussion is bound to be answered in negative.

53. POINT No.3:- Besides the aforementioned

common contentions, additional, separate and specific

contention of plaintiff's counsel in O.S.No.6485/2014 is
56 O.S.No.6427/2014 & other clubbed cases

that, the then CITB has allotted site to the R.G. Joshi

under lease-cum-sale agreement, subject to non-

alienation clause of 10 years. After completion of non-

alienation period, R.G. Joshi did not get the sale deed

executed in his favour from CITB or BDA (now).

Therefore, it is obvious that, no valid title was passed to

the R.G. Joshi, therefore, R.G. Joshi was not having

absolute authority to bequeath suit property through

WILL.

54. It is true that, the CITB in its agreement dated

12.01.1959 (vide Ex.D.1 in O.S.No.6485/2014) has

imposed a condition for non-alienation of property for 10

years. This condition obviously ceases to be in force after

completion of non-alienation period of 10 years.

Thereafter, what remains is the fulfillment of formality of

execution of sale deed only. Such sale deed confirms the

right, title and interest granted in favour of allottees

under lease-cum-sale agreement from the date of

agreement.

55. It is further material to note that once the lease

period i.e., non-alienation period is over, then there will

be no any impediment for the allottees to alienate the
57 O.S.No.6427/2014 & other clubbed cases

property even without sale deed in their name, because

CITB or BDA is bound to execute the sale deed either in

the name of allottee or his assignee as per the terms of

agreement.

56. Here, in the case on hand, suit site was came to

be allotted to the R.G. Joshi under lease-cum-sale

agreement dated 01.12.1959 and possession was

delivered under possession delivery certificate dated

28.07.1959 (vide Ex.P.1 in O.S.No.6427/2014).

According to these documents, the non-alienation period

of 10 years comes to an end on 27.07.1969. As stated by

me at the beginning, after lapse of non-alienation period,

R.G. Joshi gets the right to alienate the property even

without sale deed in his favour. Because, the CITB/BDA

has to execute the sale deed in favour of the person to

whom R.G. Joshi transferred the property. This is all

about the open site. Now question arises, what about the

position of house building constructed upon site.

Admittedly, CITB or BDA has no authority over the

building. It is only the R.G. Joshi who was having

absolute ownership right over the building. Therefore,
58 O.S.No.6427/2014 & other clubbed cases

now it is crystal clear that the R.G. Joshi was having

absolute right to alienate the property after 1969.

57. Apart from that, a legal question that arises for

consideration is that, whether bequeathing of property

under WILL amounts to alienation. According to

defendant No.5/10's counsel, it is not. In support of his

contention, he relied upon the division bench judgment

reported in ILR 2001 KAR.3466 in case of N. Ramaiah v/s

Nagaraj, S & another. According to the principles laid

down in this judgement,

"bequeathing of property under WILL
does not amount to alienation like sale, gift,
etc.".

Having regard to these reasons, I am of the

opinion that, the R.G. Joshi had acquired valid title to the

property under agreement dated 12.01.1959 and

possession certificate dated 28.07.1959 and therefore,

he was fully competent to execute the WILL. As such, the

point No.3 under discussion is bound to be answered in

negative.

58. POINT No.4:- While dealing with point No.3, it

has been held that, the R.G. Joshi had legal rights to
59 O.S.No.6427/2014 & other clubbed cases

execute the WILL. The plaintiffs in O.s.No.6485/2014

have challenged the capacity of R.G. Joshi to write WILL.

Therefore, it is equally important to see whether they

have got locus-standi to challenge the WILL of the R.G.

Joshi and if so, had they taken sufficient pleadings in the

plaint. On minute examination of case of the plaintiffs, I

have no hesitation to say that these plaintiffs have no

locus-standi to challenge the WILL of R.G. Joshi,

obviously for following:-

-Reasons-

a) That the R.G. Joshi was absolute owner
of suit property, who constructed the
building with his own funds;
b) That the R.G. Joshi had executed WILL
in favour of L.G. Joshi during the life
time of daughter;
c) The daughter had not challenged the
WILL;
d) The so-called grand-mother of plaintiff,
who claims to be the sister of R.G. Joshi,
had not challenged the WILL;
e) The present plaintiffs claiming rights
over the property though the sister of
R.G. Joshi being revisioners cannot
challenge the WILL after 40 years;
60 O.S.No.6427/2014 & other clubbed cases

f) The present plaintiff No.2 to 4 would not
have born on the date of acquisition of
property nor execution of WILL by R.G.
Joshi;
g) Neither grand-mother nor the parents of
plaintiff No.2 to 4 have contributed for
the purchase of site or for construction
of house.

All these things clearly establish that, the present

plaintiffs have no locus-standi to challenge the legality of

WILL executed by the R.G. Joshi. Hence, point No.4

under discussion is bound to be answered in the

negative.

59. POINT No.5:- According to the plaintiffs'

counsels, the deceased defendant No.1 did not acquire

absolute title over the property by virtue of sale deed

executed by the BDA in her favour. Because in the sale

deed itself, BDA authority have put a condition that the

said deed is subject to the rights of any other relative or

claimants.

60. It is true that the R.G. Joshi after completion of

lease period did not get the sale deed registered in his

name. Similarly, L.G. Joshi, who got the property under

WILL of R.G. Joshi, also failed to get the sale deed in his
61 O.S.No.6427/2014 & other clubbed cases

name. It is the deceased defendant No.1- Umabai only

had approached the present BDA (old CITB) and got the

sale deed registered in her name. While applying for

BDA, Umabai had supplied a genealogical tree to the BDA

as per Ex.D.12 (in O.S.No.6485/2014), which has been

duly attested by the plaintiff No.4 in O.S.No.6485/2014

as well as plaintiff in O.S.No.6427/2014. In the said

genealogy, Umabai had disclosed only three persons

name i.e., R.G. Joshi, L.G. Joshi and her name. Apart

from those three names, name of wife and daughter of

R.G. Joshi i.e., Smt.Renukabai and Kum.Tungabai also

shown. This version has been accepted by the above

plaintiffs. They never objected for the G-tree nor they

filed application for grant of sale deed in their name also.

Therefore, it is obvious that, there were no any other

nearest relatives of R.G. Joshi and L.G. Joshi to claim

sale deed in their name except Umabai during her life

time. When these plaintiffs not objected for the G-tree

and sale deed in the name of Umabai and when they are

not the nearest relative of the R.G. Joshi and when the

suit property is not the ancestral property, then it is

obvious that, general condition imposed by the BDA in
62 O.S.No.6427/2014 & other clubbed cases

the sale deed of Umabai has no any kind of legal sanctity

nor it creates any kind of hereditary right in the plaintiffs

nor takes away the absolute proprietary rights acquired

by her under sale deed, as per law. Hence, point No.5

under discussion is bound to be answered in negative.

61. My findings on above said points now push me

to consider the fate of issue No.2 under discussion.

According to the plaintiffs and defendant No.7's counsels,

(i) the L.G. Joshi had no authority to write the WILL

against the terms of intention expressed by the R.G.

Joshi in his WILL and (ii) the Umabai had no absolute

authority to sell the suit property.

62. In my considered opinion, the above said

contention has no force of law. Because while dealing

with above points, it has been held that the R.G. Joshi

had granted absolute rights to the L.G. Joshi. It has also

been held that the plaintiffs have no locus-standi to

challenge the WILL of R.G. Joshi. It has also been held

that L.G. Joshi was fully competent to write the WILL and

dispose of the suit property.

63. This being so, now the WILL that remains for

the consideration of the Court is, the WILL of L.G. Joshi
63 O.S.No.6427/2014 & other clubbed cases

dated 09.05.1990. Under this WILL, L.G. Joshi had

distributed the property among Umabai and Tungabai

equally. Therefore, the root going contention of the

plaintiff's counsels is that, the Umabai had no authority

to sell the suit property much less the share of Tungabai.

Therefore, in order to find out the correct answer to this

question, it is necessary to examine the contents of WILL

of L.G. Joshi.

64. On perusal of paragraph No.4, page-3 of WILL

of L.G. Joshi i.e., Ex.D.1 (in O.S.No.6427/2014), we can

see following recital:-

"...............................................
£À£ÀVÃUÀ 70 ªÀµÀð ªÀAiÀÄ¸ÁìVzÀÄÝ, F fÃªÀ£ÀªÀÅ
£À±ÀégÀªAÉ zÀÄ £À£ÀUÉ ªÀÄ£ÀªÀjPÉAiÀiÁVgÀÄªÀÅzÀjAzÀ, ªÀÄvÀÄÛ £À£Àß
PÁ¯Á£ÀAvÀgÀ £À£Àß vÀAVAiÀiÁzÀ GªÀiÁ¨Á¬Ä eÉÆÃ² ªÀÄvÀÄÛ
£À£Àß CtÚ£À ªÀÄUÀ¼ÁzÀ vÀÄAUÁ¨Á¬Ä eÉÆÃ² CªÀgÀ fÃªÀ£À
AiÀiÁªÀ vÉÆAzÀgÉ vÀPÀgÁgÀÄ E®èzÉ ¸ÀÄR¢AzÀ ¸ÁUÀ¨ÉÃPÉAzÀÄ
£À£Àß EZÉÑAiÀiÁVgÀÄªÀÅzjÀ AzÀ ªÀÄvÀÄÛ CªÀgÀÄUÀ½UÉ ¨ÉÃgÉ AiÀiÁªÀ
«zÀsªÁzÀ ªÀgÀªÀiÁ£ÀUÀ½®èzÀÝjAzÀ®Æ CªÀgÀÄUÀ¼À ªÀÄÄA¢£À
fÃªÀ£À ¸ÀÄRªÁV £ÀqÉAiÀÄ¨ÉÃPÉA§ EZÉÑAiÀÄÄ¼ÀîªÀ£ÁzÀÝjAzÀ
£Á£ÀÄ ®PÀët UÀÄgÀÄ£ÁxÀ eÉÆÃ² ¨ÀsUÀªÀAvÀ£À ¥ÉæÃgÀuÉ¬ÄAzÀ
ªÀÄvÀÄÛ £À£Àß ¸ÀéEZÉÑ¬ÄAzÀ ªÉÄÃ¯É w½¹zÀ ¸ÀévÀÄÛ
(µÉqÀÆå¯ï£À°è «ªÀgÀªÁV w½¹gÀÄªÀ) £À£Àß vÀAV
64 O.S.No.6427/2014 & other clubbed cases

GªÀiÁ¨Á¬Ä eÉÆÃ² ªÀÄvÀÄÛ £À£Àß CtÚ£À ªÀÄUÀ¼ÁzÀ
vÀÄAUÁ¨Á¬Ä eÉÆÃ² CªÀgÀÄUÀ½UÉ ¸ÀªÀÄ£ÁV ¸À®ÄèªÀAvÉ F
«¯ï ªÀÄÆ®PÀ w½AiÀÄ¥Àr¸ÀÄvÉÛÃ£É. CªÀj§âjUÀÆ ªÉÄÃ¯É
w½¹zÀ ¸ÀéwÛ£À°è CªÀgÀ EZÁÑ£ÀÄ¸ÁgÀ ªÁ¸ÀªÁVgÀ®Ä ¸ÀA¥ÀÇtð
C¢üPÁgÀ«gÀÄvÀÛzÉ. ªÉÄÃ¯É w½¹zÀ ªÀÄÆgÀÄ CAUÀrUÀ¼À
¨ÁrUÉAiÀÄÄ EªÀj§âjUÀÆ ¸ÀªÀÄ£ÁV ¸ÉÃgÀvÀPÀÌzÀÄÝ,
¨ÁrUÉAiÀÄªÀjUÉ E§âgÀÆ dAnAiÀiÁV gÀ²Ã¢ PÉÆqÀvÀPÀÌzÀÄÝ.
EªÀj§âgÀ ¥ÉÊQ AiÀiÁgÉÆ§âgÀÄ PÁ®ªÁzÀgÀÆ F
¸ÀévÀ£Û ÀÄß G½zÀªÀgÀÄ PÁ¥ÁrPÉÆAqÀÄ ºÉÆÃUÀvÀPÀÌzÀÄÝ. D ªÀåQÛUÉ
¨ÁrUÉzÁgÀjUÉ gÀ²Ã¢ PÉÆqÀ®Ä ºÀPÀÄÌ EgÀÄvÀÛzÉ ªÀÄvÀÄÛ
ªÀiÁgÁl ¥ÀgÀ¨sÁgÉ ªÀUÉÊgÉUÀ¼À£ÀÄß ªÀiÁqÀ®Ä
ºÀPÀÄÌ¼ÀîªÀgÁVgÀÄvÁÛgÉ".
According to this clause, the property shall devolve

upon the surviving member in case of death of either

Umabai or Thungabai.

65. Here in this case, it is admitted fact that, the

Thungabai died before Umabai i.e., on 01.09.1994 (vide

Ex.P.2 in O.S.No.6427/2014). After Tungabai, Umabai

gets the whole property as per the WILL. But she could

not get absolute right because of survival of L.G. Joshi.

L.G. Joshi died on 01.02.2006. Therefore, in law, it is

only the Umabai became the absolute owner of property
65 O.S.No.6427/2014 & other clubbed cases

by virtue of WILL deeds executed by R.G. Joshi and L.G.

Joshi after the death of L.G. Joshi and Tungabai.

66. It is pertinent to note that, along with present

suit property, R.G. Joshi had bequeathed one landed

property to the L.G. Joshi under WILL deed of R.G. Joshi

dated 01.03.1975. It has not been made clear by the

plaintiffs, whether the landed property is still present or

sold out, if sold out, who sold out it. If at all the landed

property was sold out by L.G. Joshi, then plaintiff cannot

challenge his authority to write WILL. If the landed

property was sold out by defendant- Umabai, then also

plaintiff cannot challenge her right to alienate the suit

property.

67. From the above said discussion, it has been

clearly noticed that (i) R.G. Joshi had granted absolute

(ownership) rights to L.G. Joshi over the suit property,

(ii) L.G. Joshi had legally authorised to execute the WILL

and as per the terms of his WILL, it is the deceased

defendant No.1- Umabai gets the absolute ownership

rights over whole property. Under the circumstances, it is

needless to state that, when Umabai becomes the

absolute owner of suit property, she gets the right to sell
66 O.S.No.6427/2014 & other clubbed cases

it not only as per law but also as per the authorization

given to her by the L.G. Joshi in para-4 of his WILL.

Hence, issue No.2 under discussion in both the cases are

answered in negative.

68. ADDL. ISSUE No.1 (in O.S.No.6427/2014)

AND ISSUE No.3 (in O.S.No.6485/2014):- These

issues are taken up together for discussion as they are

one and the same.

69. During the course of the arguments of learned

counsels appearing for plaintiffs in both the suits as well

as learned defence counsel appearing for Smt.Anuradha

have unanimously contended that the deceased

defendant No.1- Umabai was a spinster; under the

complete control of plaintiffs, who were looking after her

welfare including medical expenses; therefore, there was

no any necessity for her to incur any debts from any

relatives or banks; when no such liability was in

existence, question of selling the suit property so as to

pay the debts at the age of 83 years does not arise at all.

70. Further contention of the counsels is that the

deceased Umabai was suffering from her age old

diseases and she was usually suffering from sodium
67 O.S.No.6427/2014 & other clubbed cases

deficiencies; she was not in a position to judge what she

is doing is correct or not; the sodium deficiencies

problem will bring the patient under the mental

imbalance condition and sometimes influence the patient

to act according to the directions given by the others;

this is what happened in the case on hand; the

defendant- Vijayalakshmi is none other than the

daughter-in-law of deceased defendant No.1- Umabai;

she is residing in Sanjaya Nagar house; one day she had

taken the Umabai for attending some function, but

thereafter she not sent back the defendant- Umabai to

the suit house.

71. It was further contended that the present

plaintiffs believing the words of the defendant-

Vijayalakshmi that she is looking after Umabai very

affectionately, they did not doubt her conduct; but by the

lapse of time the plaintiffs started to smell out something

bad from the conduct of the defendant- Vijayalakshmi

and on enquiry, they came to know that the defendant-

Vijayalakshmi got cancelled the WILL deed executed by

Umabai in favour of the plaintiffs as well as codicile and

in that place, she got another WILL executed by Umabai
68 O.S.No.6427/2014 & other clubbed cases

in her name; plaintiffs also noticed that finally she

successfully got cancelled WILL in her favour and thereby

she made the defendant- Umabai to enter into sale

agreement with defendant- Prakash Reddy for selling the

suit schedule property for Rs.1,73,00,000/-; accordingly,

defendant- Umabai coming under the fraudulent

representation of the defendant- Vijayalakshmi and

Prakash Reddy; defendant- Umabai had signed sale

agreement admitting the receipt of Rs.10,00,000/- sale

consideration amount on 15.04.2014 as per Ex.D.12

(O.S.No.6427/2014) in 3 cheques of Rs.2,50,000/-,

Rs.2,50,000/-, Rs.2,00,000/- and cash of Rs.3,00,000/-;

in fact, the cheques not at all encashed by the deceased

Umabai; no amount of Rs.3,00,000/- actually paid to

Umabai; if at all deceased Umabai had agreed to sell the

property and received advance amount of Rs.10,00,000/-

, she would have voluntarily co-operated with the

defendant- Prakash Reddy for execution of sale deed in

his favour, but that was not happened; as such,

defendant- Prakash Reddy was compelled to file the suit

for specific performance of contract bearing

O.S.No.4066/2014; said suit was filed on 05.06.2014 and
69 O.S.No.6427/2014 & other clubbed cases

case was posted for appearance of the parties on

16.06.2014; on 16.06.2014 only even without service of

summons, defendant- Umabai appeared along with

compromise petition under order XXIII rule 3 of CPC and

thereafter defendant- Prakash Reddy was successful in

getting the compromise decree in his favour; thereafter

defendant- G. Umabai straight away executed sale deed

in favour of the defendant- Prakash Reddy on 27.06.2014

within span of 10 days. All these things clearly establish

that the defendant- Umabai was completely under the

influence and control of defendant- Vijayalakshmi and

Prakash Reddy, who successfully managed all the affairs,

right from the date of agreement till getting of the

compromise decree and sale deed so as to legalise the

fraudulent transaction; in fact, the value of the property

is more than Rs.4 Crores as because it is not only a

residential house but commercial property consisting of 3

shops, situated at prime location of Rajajinagar,

Bengaluru; despite of it, value of the property has been

shown only Rs.1,73,00,000/- but the stamp duty has

been paid on Rs.2,31,00,000/-; this itself shows that

defendant- Prakash Reddy had played unfair trade
70 O.S.No.6427/2014 & other clubbed cases

practice and therefore his transaction is obviously a

fraudulent transaction hit by Section 111 of Indian

Evidence Act.

72. It was further argued that the defendant-

Prakash Reddy was fully aware that the defendant-

Umabai was 83 plus old and she not able to manage the

huge amount more than Rs.1 Crore; the very defendant-

Prakash Reddy though paid advance amount of

Rs.59,31,000/- through cheques/cash in favour of

defendant- Umabai on different dates; he not paid huge

amount of Rs.1,10,69,000/- either in cheque or cash;

when a question was put to him during the cross-

examination to know any impediment was there for him

to pay this amount in cheque, he did not give any

answer, his simple reason was that as defendant-

Umabai demanded balance amount in cash, he paid it in

cash in a bag in the open Court while recording the

compromise in suit bearing O.S.No.4066/2014 for

specific performance of contract, if at all defendant-

Prakash Reddy really paid amount in the open Court in

the presence of the Judge, Judge would have recorded it

in order-sheet, but the order-sheet dated 16.06.2014 in
71 O.S.No.6427/2014 & other clubbed cases

O.S.No.4066/2014 shows that the Court has recorded

only a compromise petition, Court not at all recorded any

remarks regarding the payment of Rs.1,10,69,000/- by

the defendant- Prakash Reddy to the defendant- Umabai

in the Court hall. It is therefore the bare sentence in the

compromise petition that the Umabai had received

balance consideration amount without mentioning

amount in figures and words cannot be accepted as a

conclusive proof of payment of Rs.1,10,69,000/- to

Umabai. This defendant- Prakash Reddy played a fraud

upon Umabai by simply taking her signatures on

compromise petition. Apart from that, even in sale deed

dated 27.05.2014, we can see a mention regarding the

receipt of balance sale consideration amount on the date

of execution of the sale deed by the defendant- Umabai.

If at all that amount was paid in the Court, same would

have been reflected in the sale deed, but in the sale deed

a simple mention is made that the balance sale

consideration amount is paid on today. The inconsistent

recitals in compromise petition and sale deed regarding

payment of balance amount is clear enough to show how

the defendant- Prakash Reddy had played fraud upon
72 O.S.No.6427/2014 & other clubbed cases

defendant- Umabai colluding with defendant-

Vijayalakshmi.

73. It was further argued that it is not the single

case of Umabai in which plaintiffs are alleging play of

fraud against the defendant- Prakash Reddy. In fact,

defendant- Prakash Reddy is a notorious land grabber in

the Bengaluru City. He involved in several land grabbing

cases. Several persons have filed civil as well as criminal

cases against defendant- Prakash Reddy for creating

false sale deed under the pretext of lease or mortgage

deed. Papers pertaining to those cases are marked as

Ex.P.17 to Ex.P.21. These documents clearly stands in

support of the allegation of the plaintiffs that the

defendant- Prakash Reddy is a fraudulent man and

therefore his version that the defendant- Umabai had

executed the sale deed in his favour after receipt of sale

consideration of Rs.1.73 Crore cannot be believed. These

are the facts prima-facie enough to establish that the

defendant- Prakash Reddy got executed the sale deed in

his favour by playing fraud on defendant- Umabai

colluding with defendant- Vijayalakshmi.
73 O.S.No.6427/2014 & other clubbed cases

74. On the other hand, contention of the counsel

appearing for the sole contesting defendant- Prakash

Reddy is that defendant- Prakash Reddy not knowing

who is Vijayalakshmi. In fact, he came to know about

availability of the suit property for sale through real

estate agents and therefore he approached the

defendant- Umabai in the suit house address and held

sale talks with her that too in the presence of Sharath

Chandra Prasad, Giridhar and other family members and

finalized the sale talks for Rs.1.73 Crores and paid

advance amount of Rs.10 lakhs on the date of sale

agreement.

75. It was further contended that the value of the

property was fixed at the rate of Rs.1.73 Crore because

of age old ness of the house as well as existing of big

rock in the open area of the house, even though market

value in the area may be of Rs.2.31 Crore and fixing of

value of the property lesser than the market value

cannot be viewed as a result of unfair trade practice.

76. Learned counsel further contended that since

the entire dimension of the property is mentioned,

question of mentioning the shops separately was not
74 O.S.No.6427/2014 & other clubbed cases

required; suit property has not been notified as

commercial area property fully and therefore value of the

suit property was fixed for Rs.1.73 Crore, that too, with

the voluntary consent of defendant- Umabai; as such she

executed an agreement of sale on 15.04.2014; after

receiving advance amount of Rs.10 lakhs. However, as

the defendant- Umabai was under the complete domain

of the plaintiffs, by coming under their ill-advise not

came forward to execute the sale deed, therefore

defendant- Prakash Reddy was compelled to file a suit

bearing O.S.No.4066/2014 for specific performance of

contract; on the said date, Court had ordered for issue of

summons, the suit summons was duly served upon

defendant- Umabai, which is evident from Ex.D.51 in

O.S.No.6485/2014; after receipt of summons only

defendant- Umabai realizes her mistake and agreed to

execute the defendant; as such, plaintiff and defendant-

Umabai entered into compromise in the said suit; at the

time of compromise, defendant- Prakash Reddy has paid

Rs.1,10,69,000/- to the defendant- Umabai in cash in a

bag as per her request only. A clear cut mention has

been made in this regard in compromise petition; when a
75 O.S.No.6427/2014 & other clubbed cases

compromise is entered by the parties in the Court hall,

how that compromise can be termed as a result of

fraudulent act of defendant- Prakash Reddy. If at all

plaintiffs were of the opinion that the compromise decree

has been obtained by playing fraud, then they would

have challenged it; without seeking the compromise

decree setting aside, they cannot contend that the sale is

obtained by fraud.

77. It was further contended that it is not the

plaintiffs or defendant- Anuradha are competent to say

that defendant- Prakash Reddy has played fraud when it

has not been alleged by the defendant- Umabai in her

written statement or before Police; in fact, defendant-

Umabai had alleged against the plaintiffs for giving life

threat to her and lodged the complaint against them as

per Ex.D.37 (O.S.No.6427/2014).

78. It was further contended that if at all plaintiffs

and defendant- Anuradha are of the view that defendant-

Vijayalakshmi and Prakash Reddy have played fraud

upon the defendant- Umabai, nothing prevented them to

file complaint against them in the Police Station, but so

far they did not file any complaint either against
76 O.S.No.6427/2014 & other clubbed cases

Vijayalakshmi or Prakash Reddy. Therefore, it is obvious

that whatever the allegations made by the plaintiffs and

defendant- Anuradha against the defendant-

Vijayalakshmi and Prakash Reddy that they colluded with

each other and played fraud on defendant- Umabai and

thereby got the sale deed executed in favour of

defendant- Prakash Reddy holds no water at all. It was

further contended that when plaintiffs alleges the fraud,

then burden cast upon them to prove it. In support of the

above contention, the learned defence counsel has relied

upon the judgments reported in (2014) SCC 269,

2004(1) KCCR 662, (2009) (6) SCC 194.

79. I have carefully examined the facts and

circumstances of the case as well as oral and

documentary evidence adduced by both the parties

including the written synopsis submitted by the counsels

along with citations.

80. Here at the beginning itself what I would like to

make a mention that whether defendant- Prakash Reddy

colluding with defendant- Vijayalakshmi has played fraud

upon the defendant- Umabai or not cannot be decided on

the basis of judgments of the Hon'ble High Courts or
77 O.S.No.6427/2014 & other clubbed cases

Hon'ble Supreme Court. This is purely a issue of fact.

This has to be decided by taking into account the oral

and documentary evidence on record as well as surround

suspicious circumstances (if any).

81. In my opinion, before going to see the factual

matrix, it is necessary to see the case of the plaintiffs

from legal point also. The mandate of the order VI Rule 4

of CPC is that-

"in all cases in which party making
allegation of play of fraud,
misrepresentation, breach of trust, etc.,
must furnish the particulars regarding date
and time, play of fraud or
misrepresentation and also the way in
which it has been played".

82. Here in this case in both plaints a simple

contention has been taken that the defendant- Prakash

Reddy colluding with defendant- Vijayalakshmi played

fraud upon the defendant- Umabai. Nowhere in the plaint

there is a mention how fraud has been played. The

arguments of plaintiffs and defendant- Anuradha's

counsels is that, the defendant- Prakash Reddy had

played fraud by taking the fraudulent compromise decree
78 O.S.No.6427/2014 & other clubbed cases

without paying Rs.1,10,69,000/- to the defendant-

Umabai. It is pertinent to note that, this has not been

pleaded in detail in plaints.

83. It is well settled principles of law that

inconsistent pleadings and proof is not at all admissible in

law. Assuming for the sake of argument that there is a

pleading in this regard in the plaints, then question arises

whether the way in which the play of fraud is alleged by

the plaintiffs is really amounts to play of fraud? According

to the plaintiffs, the starting point of play of fraud is

taking of defendant- Umabai by the defendant

Vijayalakshmi to her house at Sanjaya Nagar for

attending some family function that too in their absence.

Except bare pleading that the defendant- Vijayalakshmi

has taken the defendant- Umabai to her house at

Sanjaya Nagar, nothing has been pleaded at what time

and month, defendant Vijayalakshmi taken away the

defendant- Umabai and how long she had retained her in

that house.

84. It is necessary to decide the gab between the

date of taking home and date of sale agreement and

filing of compromise petition and execution of sale deed.
79 O.S.No.6427/2014 & other clubbed cases

Materials on record suggest that, the present plaintiffs

even after smelling about the sale of property, they did

not make attempts to get back the Umabai.

85. After minute examination of entire oral

evidence placed on record by the parties, it can simply be

gathered that the present plaintiffs had viewed the play

of fraud on following points:-

(i) that the Umabai had lost the judging capacity,

due to low sodium level;

(ii) that the defendant- Prakash Reddy not obtained

the consent of the plaintiffs;

(iii) the value of the suit property has been shown

lesser than the real market value;

(iv) that the compromise decree is fraudulent one.

86. The first contention of plaintiffs and counsel

appearing for the defendant- Anuradha is that, the

deceased Umabai due to age-old-ness was suffering from

several diseases, more particular low sodium level, as a

result she was not in a position to judge what she is

doing correct or wrong. The defendant- Vijayalakshmi

and Prakash Reddy by taking undue advantage of her

mental imbalance due to low sodium level have
80 O.S.No.6427/2014 & other clubbed cases

successfully got created fraudulent sale agreement,

compromise decree and sale deed. In support of this

contention, they have produced the series of lab reports-

Ex.D.80.

87. I have carefully examined the lab reports. The

lab reports shows the blood investigation results dated

14.11.2011, 15.11.2011, 17.11.2011, 22.11.2011,

23.11.2011, 24.11.2011, 25.11.2011. Among these

reports, reports dated 23.11.2011, 24.11.2011,

25.11.2011 are relevant. Upon perusal of the report

dated 23.11.2011, it is evident that the sodium level of

deceased Umabai was at 121.2MM01/L as against

minimum reference range 136-146 MM01/L. Rest of the

electrolytes like potassium and chlorides were in normal

range. Similar perusal of lab report dated 24.11.2011,

we can see low sodium level at 119.7. Similar perusal of

lab report dated 25.11.2011, we can see the sodium

level at 131.1. Therefore, it is evident that, due to

constant treatment, sodium level of deceased Umabai

was raised to 131.1 from 119.7. From this we can

presume that later on her sodium level might have come

to normal level.
81 O.S.No.6427/2014 & other clubbed cases

88. The most significant point to be noted is that,

the lab report dated 20.11.2013 shows the sodium level

of deceased Umabai at 138MM01/L. It is more than

minimum 135MM01/L. No lab reports for the year 2014

more particularly during the month of April 2014 to June

2014 not produced to show that the deceased Umabai

was suffering from low sodium level.

89. Apart from that, what I would like to state is

that, merely on the basis of lab report of low sodium

level, we cannot reach to a conclusion that the deceased

Umabai was unable to judge her dealings. Neither the

Court nor the counsels are expert to say the impact of

low sodium level. It is only the Doctors, who are

competent to say about the impact of low sodium level

and for what duration. Unfortunately, neither plaintiffs in

both suits nor defendant- Anuradha have examined the

doctor, who treated the deceased Umabai. It is therefore

I am of the opinion that, the defence of plaintiffs that the

Umabai was unable to judge correctness of her dealings

due to low sodium level is not sustainable in the eye of

law.
82 O.S.No.6427/2014 & other clubbed cases

90. So far as the 2nd point of the plaintiffs is

concerned, what I would like to mention is that though

the plaintiff's name has been mentioned in WILL

executed by L.G. Joshi expressing his intention that these

persons shall take care of Umabai, it does not mean that

they have been appointed as executors. During the

course of cross-examination, defendant- Prakash Reddy

has made clear that he had sale talks in the presence of

the plaintiffs. Further materials on record suggest that

these plaintiffs were not in good terms with the

defendant Umabai because of revocation of WILL and

codicile executed by her in their favour. Under the

circumstances, it can be expected that the plaintiffs were

ready to give consent. When the defendant- Umabai was

absolute owner of the suit schedule property, it was not

necessary for her to obtain the consent of the plaintiffs

for her any acts. Therefore, merely because consent of

the plaintiffs has not been obtained for confirmation of

sale transaction, it does not mean that defendant-

Prakash Reddy had played fraud.

91. So far as third point that the actual market

value of the suit property was more than Rs.4 Crores but
83 O.S.No.6427/2014 & other clubbed cases

defendant - Prakash Reddy has shown its value only

Rs.1.73 Crores and therefore, it is nothing but a fraud

played by him colluding with defendant- Vijayalakshmi.

At the out-set, what I would like to mention is that

whatever the market value of the property in the

particular area is fixed by the competent authority cannot

be considered as a real value of the property. Real value

of the property may be more or less also. It all depends

upon the location of the property, age of the building,

etc.,. Here in this case admittedly the suit schedule

property is more than 40 years old. It is not situated at

any corner point. However it is by the side of the road

consisting 3 shops. Simply because 3 shops are there,

property cannot be considered as a commercial property.

It has been brought on record that there is a big rock in

the open area of the property, which made the vacant

portion useless? More over though plaintiffs have

contended that property was worth more than Rs.4

Crore, they did not produce any iota of evidence in

respect of their contention. On perusal of the SR value in

comparison with the stamp duty paid by the defendant-

Prakash Reddy, it can be concluded that its SR value was
84 O.S.No.6427/2014 & other clubbed cases

between Rs.2 and Rs.2.5 Crores. Keeping in view of

these reasons, the parties to the transaction might have

fixed the sale consideration amount for Rs.1.73 Crore.

Merely because sale consideration amount is shown

lesser than the guideline value of the Government, it

cannot be held that the purchaser had played fraud by

paying lesser value. Therefore, I see no force in the

contention of the plaintiffs that the defendant- Prakash

Reddy by paying lesser value has played fraud upon the

defendant- Umabai.

92. Now coming to the 4th point is concerned, the

contention of the plaintiffs is that defendant- Prakash

Reddy had obtained compromise decree by playing fraud

and therefore, it is not enforceable. It is true that the

defendant- Prakash Reddy had filed a suit bearing

O.S.No.4066/2014 against the defendant- Umabai for

specific performance of contract and it was ended in

compromise decree on 16.06.2014. If at all in the opinion

of the plaintiffs, the compromise decree has been

obtained by playing fraud, then they have to approach

the competent court seeking setting aside the

compromise decree on the ground of play of fraud. In my
85 O.S.No.6427/2014 & other clubbed cases

considered opinion, mere mention in the compromise

petition that the balance sale consideration is received

does not prima-facie amount to fraudulent act as long as

it has not been challenged by the judgment debtor-

Umabai. The plaintiffs are making allegation of play of

fraud only on the basis that the balance sale

consideration amount has not been paid in cheque/D.D.

Therefore, unless and until the compromise decree is set

aside even if it is void, it is binding as held by the

Hon'ble Supreme Court in its judgment reported in

(2009) 6 SCC 194(B). When compromise decree is not

set aside as a result of fraudulent act of defendant-

Prakash Reddy, then the sale deed executed by Umabai

pursuance to the compromise decree cannot be

considered that it has been obtained by play of fraud by

the defendant- Prakash Reddy.

93. Besides the above said contentions, further

contention that was advanced by the plaintiffs' counsel

was that the defendant- Prakash Reddy is habitual land

grabber, who was involved in more than 40 land

grabbing cases and also criminal cases. It is true that one

M.P. Pushpavathi has lodged a complaint in
86 O.S.No.6427/2014 & other clubbed cases

Rajarajeshwari Nagar Police Station alleging fraud and

cheating against Prakash Reddy and others in which

Prakash Reddy and others have filed Crl.Misc. Petition

No.1764/2016 seeking anticipatory bail. But the question

that remains for the consideration is that whether

plaintiffs by producing a single piece of paper to show

that criminal complaint is registered against Prakash

Reddy and others able to prove that the defendant-

Prakash Reddy really a fraudulent man. It is the

experience of the Court that even vendors also found

denying the original transaction for one or the other

reason to save the property by making cheating

allegation against the purchaser until and unless the case

has been tried and decided and accused is found guilty, it

is not possible to hold that the defendant- Prakash Reddy

had really played fraud upon Pushpavathi. In my

considered opinion, bare production of criminal

miscellaneous papers is not enough, plaintiffs ought to

have examined Pushpavathi to prove how she was

cheated by defendant- Prakash Reddy. In the absence of

her evidence, the entire efforts made by the plaintiffs by

producing the criminal miscellaneous papers to establish
87 O.S.No.6427/2014 & other clubbed cases

the fraudulent activities of the defendant- Prakash Reddy

will go fruitless.

94. It is further material to note that though

plaintiffs alleges the play of fraud against the defendant-

Vijayalakshmi and Prakash Reddy, so far they did not

initiate any criminal action against them. Why they kept

silent or not taken criminal action against them, there is

no explanation from them. Hence, the admission of

defendant- Anuradha that, she withdrawn her partition

suit filed against other members of family as because

defendant- Prakash Reddy assured the payment of

amount but not paid. This leads to an inference that their

allegation of fraud against defendant- Prakash Reddy is

the result of malafide intention.

95. Another contention of plaintiff's counsel in

O.S.No.6427/2014 and defendant- Anuradha is that, the

advocate appearing for the defendant- Prakash Reddy is

none other than the own brother of advocate Rajan

Shetty, who appeared for defendant- Umabai. Not only

that, the Rajan Shetty, advocate has appeared for

defendant- Prakash Reddy in MFA before the High Court.

Thus, colluding the both brother advocates have
88 O.S.No.6427/2014 & other clubbed cases

defrauded the defendant- Umabai and thereby obtained

the sale deed by exercising fraud.

96. I have carefully examined this contention with

reference to the documents on record. At the outset what

I would like to state is that, it is only the deceased

Umabai who was competent to say whether she has been

really defrauded by the advocate brothers. There is no

law as such which prevents the advocate brothers to

appear for both side parties in the suit. What is important

is the factum of fraud allegedly played by them. If at all

plaintiffs and defendant- Anuradha were really injured by

the appearance of Rajan Shetty, advocate for Umabai as

well as Prakash Reddy, then they would have made

complaint against the advocate to the State Bar Counsel

as well as Police. Without making such complaints and

proving the allegations before the Bar Counsel, Police

and Court, they cannot take such defence before this

Court in these cases, more so when this has not been

specifically denied by the Umabai. It is further material to

note that, even in the cases on hand, they failed to place

sufficient materials to prove the fraud played by the
89 O.S.No.6427/2014 & other clubbed cases

advocate brothers on Umabai. Therefore, I straight away

reject this contention.

97. Basing on the above stated weaknesses of the

defendant- Prakash Reddy, plaintiffs' counsels tried to

convince the Court that the sale deed dated 27.06.2014

is fraudulent one. It is important to note that sale deed is

result of the compromise decree. Unless compromise

decree is set aside as fraudulent one, sale deed cannot

be viewed as fraudulent one. Therefore, in my opinion,

plaintiffs cannot try to stand upon the weakness of

defendants.

98. At this stage, it is necessary to refer the

judgment of Hon'ble Supreme Court reported in (2014)2

SCC 269 and judgment of Karnataka High Court reported

in 2004(1) KCCR 662 wherein it has been held that-

"weakness of case set up by the
defendants cannot be a ground to grant
relief to the plaintiffs because burden of
proof of allegations against the defendants is
on the plaintiffs".

The principles laid down in these judgments are

aptly applicable to the case on hand, because the

plaintiffs allege the fraud against the defendants-
90 O.S.No.6427/2014 & other clubbed cases

Prakash Reddy and Vijayalakshmi, they failed to prove it

beyond preponderance of probabilities.

99. In the back ground of above stated reasons, I

am of the opinion that the plaintiffs miserably failed to

prove that defendant- Prakash Reddy had obtained sale

deed in his favour by playing fraud. As such, addl. issue

No.1 (in O.S.No.6427/2014) and issue No.3 (in

O.S.No.6485/2014) are answered in negative.

100. ISSUE No.3 (In O.S.No.6427/2014) and

ISSUE No.4 (In O.S.No.6485/2014):- These two

issues are one and the same, hence they are take up

together for discussion simultaneously to avoid

repetition.

101. During the course of the arguments, learned

counsels appearing for the plaintiffs in both suits and

defendant- Anuradha have vehemently contended that,

as generally happens in the Society, the purchaser of any

property will first examine the legal necessity for sale

then the source of title with reference to the original title

deeds of vendor and also verify them in the concerned

office including encumbrance certificate and collects the

originals after completion of sale transaction. But what
91 O.S.No.6427/2014 & other clubbed cases

happened in the case on hand, the defendant Prakash

Reddy did not examine the source of title of Umabai nor

secured any legal opinion on the WILLs from the legal

adviser nor given paper publication of his intention to

purchase the property nor consulted the plaintiffs inspite

of knowing that, they are executors appointed under the

WILL of L.G. Joshi.

102. That apart he did not make any efforts to pay

balance sale consideration amount of Rs.1,10,69,000/-

through cheque or DD in the name of Umabai. Though

Prakash Reddy claims that he paid the amount in Court,

he failed to make request to the Court to record it in

order sheet. That apart, the defendant- Prakash Reddy

not made efforts to know what is the real legal necessity

or debts for which Umabai intending to sell the property.

All these lapses on the part of the defendant- Prakash

Reddy shows that he is not a bonafide purchaser.

103. Per contra, the contention of counsel for sole

contesting defendant- Prakash Reddy is that defendant-

Prakash Reddy before purchase of property had talks

with defendant- Umabai in the presence of plaintiffs. The

sale consideration amount is fixed for Rs.1.73 Crores
92 O.S.No.6427/2014 & other clubbed cases

after due consultation only. It was further contended

that, the defendant- Prakash Reddy only after examining

the source of title of Umabai that came to her under the

WILLs of R.G. Joshi and sale deed executed by the BDA

in her favour, he decided to purchase the property.

Accordingly he entered into sale agreement with the

Umabai on 15.04.2014 by paying Rs.10 lakhs as an

advance amount through cheque/cash. These cheques

were encashed by the Umabai. As per agreement,

Umabai was expected to execute the sale deed within

one month after receiving balance consideration amount,

but she was prevented by the plaintiffs. Hence,

defendant- Prakash Reddy was forced to file a suit

bearing O.S.No.4066/2014 on 05.04.2014 for specific

performance of contract. After registering the suit, Court

issued summons to the defendant- Umabai for her

appearance on 16.06.2014. After due service of

summons, defendant- Umabai had appeared in the Court

on 16.06.2014. Before that, outside the Court a

settlement talks were taken place and accordingly a

compromise petition was filed under Order 23 Rule 3 of

CPC in the Court on 16.06.2014. The defendant- Umabai
93 O.S.No.6427/2014 & other clubbed cases

only after receipt of balance amount of Rs.1,10,69,000/-

in cash she signed the compromise petition. The

compromise petition contains recital regarding receipt of

balance sale consideration amount. It was further

contended that thereafter only defendant- Umabai had

executed a registered sale deed on 27.06.2014.

Therefore, there are no circumstances basing upon which

defendant- Prakash Reddy can be stated as not a

bonafide purchaser. In fact defendant- Prakash Reddy is

a bonafide purchaser of the property. So far as the legal

necessity is concerned, there is clear mention in the sale

agreement and sale deed to show that, she has been

forced to sell the property to meet the debts, what kind

of debts she was having or not it is no way concerned to

the defendant- Prakash Reddy. In support of this

contention, learned counsel relied upon the judgment

reported in AIR 1971 SC 2228 in case of Pandurang m.

Kavade (LR's) v/s Anjali Balwant Bokil & others.

104. I have carefully examined the rival contentions

urged by both counsels and also perused the records.

The first contention of plaintiff is that there was no any

legal necessity for defendant-Umabai to sell the property.
94 O.S.No.6427/2014 & other clubbed cases

It is not in dispute that the suit property consists of 3

shops and each shop bringing monthly rental income of

Rs.9,000/- amounting to Rs.27,000/-. But question

arises who was receiving the amount? As admitted by the

plaintiff No.4 in O.S.No.6485/2014, during course of

cross-examination as D.W.1 in O.S.No.6485/2014, it was

the plaintiff- Giridhar receiving amount. According to this

admission, he crediting this amount to bank account of

Umabai and withdrawing it as and when necessary to

meet her medical and other necessities. Therefore it is

obvious that the defendant- Umabai was not having

necessity of money. Mere looking after the Umabai by

meeting her necessities not enough, it is also necessary

that she should be looked after with all love and affection

and dignity without any expectation. If care taking is

seems to be with ill-motive and without affectionate

treatment, then age old persons will change their mind,

that might have happened in this case. Therefore, I am

of the opinion that the plaintiffs are not competent to say

that the sale was not for legal necessity.

105. The second contention of plaintiff is that, the

defendant- Prakash Reddy did not examine the title
95 O.S.No.6427/2014 & other clubbed cases

documents of the property. In this regard, what I would

like to mention is that, the very recitals in sale

agreement and sale deed executed by the Umabai shows

that the defendant- Prakash Reddy had completely

examined the WILLs executed by R.G. Joshi in favour of

L.G. Joshi and by L.G. Joshi in favour of Umabai and

Tungabai as well as the sale deed executed by the BDA in

her favour including khatha records. When it is admitted

fact that, no any kind litigations either in civil Court or in

BBMP or BDA were pending on the date of execution of

agreement on 15.04.2014 and the plaintiffs after coming

to know about the sale agreement not challenged, how it

can be stated that the defendant- Prakash Reddy not

diligently examined the title documents to know the

source of acquisition of title by the Umabai. Had there

been any challenge to the sale agreement dated

15.04.2014 in proper time, definitely defendant- Prakash

Reddy would not have proceeded further to seek the sale

deed through Court. Therefore, with full confidence I

state that there is no any legal force in the contention of

plaintiffs that the defendant- Prakash Reddy not

examined the title deeds. So far as another contention of
96 O.S.No.6427/2014 & other clubbed cases

plaintiffs' counsel that the defendant- Prakash Reddy not

given paper publication regarding purchase of property is

concerned it is not mandatory one and simply because a

paper publication is given, purchaser cannot be held as

bonafide purchaser. It is only an one of the formalities

nothing more than that.

106. Now coming to the 3rd and final contention of

the plaintiffs' counsels that the failure of defendant-

Prakash Reddy to show the payment of Rs.1,10,69,000/-

to the defendant- Umabai is sufficient to show that he is

not a bonafide purchaser. So far as this contention is

concerned, I feel some force.

107. The materials on record shows that,

defendant- Prakash Reddy had entered into sale

agreement with defendant- Umabai on 15.04.2014 by

paying Rs.7 lakhs in 3 cheques and Rs.3,00,000/- in

cash. On perusal of Bank Statement of defendant-

Prakash Reddy, it is seen that all these cheques are

encashed.

108. It is further noticed that thereafter defendant-

Prakash Reddy filed O.S.No.4066/2014 against

defendant- Umabai for specific performance of contract
97 O.S.No.6427/2014 & other clubbed cases

and the order sheet dated 05.06.2014 shows that

summons was sent to this defendant for appearance on

16.06.2014. On this date, defendant Umabai and

defendant- Prakash Reddy appeared and filed joint

compromise petition. On perusal of compromise petition

marked at Ex.P.2 (O.S.No.6485/2014) page-3 one can

easily see the mode of payments made by the defendant-

Prakash Reddy. According to the recitals in page-3,

defendant- Prakash Reddy has made the total payment

of Rs.40,00,000/- through cheques/cash in the name of

defendant- Umabai. However, on perusal of defendant-

Prakash Reddi's bank statement marked at Ex.D.39

(O.S.No.6427/2014), it is obvious that in all he paid

Rs.57,00,000/- to the defendant- Umabai through

cheques of different dates right from the date of

agreement till the registration of sale deed. Addition to

that, this Prakash Reddy appears to have paid

Rs.2,31,000/- tax on 20.06.2014 on behalf of Umabai.

Thus, the total payment comes to Rs.59,31,000/-. This

total figure has not been reflected in compromise

petition. Compromise petition simply contains the

description of payment of Rs.40,00,000/- i.e., Rs.10
98 O.S.No.6427/2014 & other clubbed cases

lakhs advance amount and Rs.30 lakhs in the form of 3

post dated cheques of Rs.9,00,000/- each and one post

dated cheque of Rs.3,00,000/-. The details of payment

does not contain the issuance of cheque of Rs.5,00,000/-

and Rs.6,00,000/- on 30.06.2014. Therefore, the

irresistible conclusion is that the defendant- Prakash

Reddy was supposed to pay balance sale consideration of

Rs.1,10,69,000/-. Now the question that arises for

consideration is whether defendant- Prakash Reddy had

taken care of his own interest to show his bonafide ness

in transaction by making the payment of balance

consideration amount of Rs.1,10,69,000/-. In my

opinion, if at all he was a due diligent man, he would

have paid this amount through cheque or DD in favour of

Umabai. But he had not done it. What he done was he

simply mentioned a column in compromise petition

stating that-

"Further balance amount is received by
way of cash on today".

In cross-examination, he stated that he paid this

amount in Court. It is judicial system that if any

settlement amount is paid in Court, then it will be
99 O.S.No.6427/2014 & other clubbed cases

recorded in order sheet. However, on perusal of order

sheet dated 16.06.2014 in O.S.No.4066/2014, it is

obvious that there is no mention about the payment of

Rs.1,10,69,000/- in cash to the defendant- Umabai.

Order sheet dated 16.06.2014 simply shows that-

"The parties have filed the compromise
petition under Order XXIII Rule 3 of CPC, its
contents read over and explained to the
parties and they admits the contents to be
true and correct, hence compromise is
accepted and suit is decreed".

Except this, there is no narration about the

payment of Rs.1,10,69,000/- to the defendant in Open

Court. Therefore, the version of defendant- Prakash

Reddy that he paid the entire balance consideration

amount in cash in Court not fit to be accepted as

trustworthy. It is further material to note that, in the sale

deed dated 27.06.2014 also, there is a mention that, the

balance consideration amount was paid on that date. It is

common understanding that, if at all, balance amount

was paid in Court, same would have been mentioned in

sale deed. If the relevant line in compromise petition and

sale deed put together it shows double payment.
100 O.S.No.6427/2014 & other clubbed cases

109. It is pertinent to mention that, when the

counsel during the course of cross-examination has

raised a question that-

Do you have any impediment to pay the
balance amount?

the very Prakash Reddy failed to give answer and is

recorded in the evidence itself.

110. Having regard to these circumstances, I reach

to an irresistible conclusion that, since the defendant-

Prakash Reddy not exercised due care in payment of

balance sale consideration amount and in that view of

the matter only, for limited purpose, we can say that the

defendant- Prakash Reddy is not a bonafide purchaser.

Hence, issue No.3 (in O.S.No.6427/2014) and issue No.4

(in O.S.No.6485/2017) are answered partly in negative.

111. ISSUE No.5 (In O.S.No.6485/2014):- The

contention of plaintiffs in both suit is that, they are in the

joint possession of the property except the purchaser-

Prakash Reddy. Though purchaser- Prakash Reddy claims

that the actual possession of property is delivered to him

as mentioned in sale deed, in fact no possession was

delivered. In fact, what is mentioned in sale deed
101 O.S.No.6427/2014 & other clubbed cases

regarding delivery of possession of suit property is false.

Because if it was true, it was not necessary for the

Prakash Reddy to file Ex.No.2304/2014 seeking

possession of property. The Prakash Reddy by giving

threat of dispossession he collected the rents from

tenants in the shop. Therefore, it is evident that, he is

not in the possession of the property.

112. On the other hand, contention of defendant-

Prakash Reddy is that, though actual possession is

delivered to him, as vendor Umabai requested some time

to vacate the house, he permitted. That being the reality,

the present plaintiffs forcibly entered into the house and

compelled the Umabai not to quit the house, hence

Prakash Reddy was compelled to file the execution

petition.

113. I have carefully examined the materials on

record. In my considered opinion, the dispute between

plaintiffs and defendant- Prakash Reddy started only

because of non-payment of balance sale consideration

amount. Having regard to the filing of execution petition

for eviction of the Umabai from the property and delivery

of possession of it to him, it can easily be stated that, the
102 O.S.No.6427/2014 & other clubbed cases

Prakash Reddy is not in actual possession of property.

Though Prakash Reddy contends that he permitted the

Umabai to stay for some time in the house, he not

produced any kind of undertaking in this regard. As

rightly contended by the plaintiffs' counsels, mere issue

of rent receipts by the Prakash Reddy will not establish

the actual possession over the property. It is further

important to note that the plaintiff- Giridhar had filed

objection application in the execution petition seeking

protection against unlawful eviction.

114. Looking into the case of defendant- Prakash

Reddy, it is highly impossible to hold his contention that

he is in the possession of property from 27.06.2014. On

the other hand, the documents produced by the plaintiff-

Giridhar like Aadhaar card, electricity bills, etc., sufficient

to establish he is in the possession of the property.

Hence, issue No.5 (in O.S.No.6485/2014) under

discussion is answered in the affirmative.

115. ISSUE No.6 (In O.S.No.6485/2014):-

Though plaintiffs have sought the relief of permanent

injunction against the defendant- Prakash Reddy, they

failed to plead and prove how and when Prakash Reddy
103 O.S.No.6427/2014 & other clubbed cases

interfered in their possession over the suit schedule

property. He being the purchaser of suit schedule

property supposed to take care of it. Therefore, unless

actual overt act is alleged through cogent evidence,

interference cannot be inferred. Since plaintiff not only

failed to plead the actual nature of interference also

failed to tender supporting evidence. Hence, issue No.6

(in O.S.No.6485/2014) under discussion is answered in

negative.

116. ISSUE No.1 (In O.S.No.6485/2014):- The

specific contention of plaintiffs in both cases is that the

suit property is joint family property. But in my opinion,

this contention holds no water at all. Admittedly, suit site

was purchased by the R.G. Joshi with the help of his own

fund as well as with the financial assistance of L.G. Joshi.

Except these two persons, none others more particularly

parents of plaintiff have extended any sort of financial

assistance to built up suit property. Therefore, I am of

the opinion that at the threshold only plaintiffs'

contention of joint family is not acceptable.

117. That apart, no distant relative can form a joint

family. Joint family is not equal to the joint residence.
104 O.S.No.6427/2014 & other clubbed cases

Even too strangers may reside under one roof and form a

joint residence. But so far as joint family is concerned, it

is only direct lineal decedents coming within 3/4 degrees

can form the joint family. For example:- Grand parents,

parents, children, brother, unmarried sisters and sons'

children. Except these persons, any other person cannot

become the member of a joint family, more particularly,

daughters, children.

118. So far as female members are concerned, they

can be the joint family members until marriage. Once the

marriage took place, they became the member of

husband's joint family. Female's children can lay a claim

for partition as legal heir of mothers but not as joint

family members.

119. Keeping in view of the preposition of law, if we

assess the case on hand, the plaintiff in

O.s.No.6427/2014 is son of sister of R.G. Joshi, L.G.

Joshi and Umabai. Similarly the plaintiffs in

O.S.No.6485/2014 are the grand-children of another

sister of Umabai namely Smt.C.Lalithamma, Sri N.

Shashidhar, Sri N. Raghavendra and Sri N. Giridhar.

Therefore, they are not the joint family members of R.G.
105 O.S.No.6427/2014 & other clubbed cases

Joshi, L.G. Joshi much less Umabai, because Umabai died

as spinster.

120. It is further material to note that, neither R.G.

Joshi nor L.G. Joshi living as joint family members. It

appears that only Umabai was living with R.G. Joshi as

she was a member of joint family. But the said joint

family comes to an end after death of R.G. Joshi. When

joint family was not at all in existence, where is the

question of plaintiffs being the part of joint family

property. When joint family itself was not in existence,

where is the question of existence of joint family. At the

most, plaintiffs can be considered as reversers but not

falling in the schedule of class-II heirs as joint family

members nor the suit property as joint family property.

When suit property has not been succeeded by the

plaintiffs and the other defendants (except purchaser-

defendant- Prakash Reddy) where is the question of

constituting the joint family and treating the suit

schedule property as joint family property. Therefore,

with full confidence, I hold that plaintiffs failed to prove

this issue. As such, issue No.1 (in O.S.No.6485/2014)

under discussion is answered in negative.
106 O.S.No.6427/2014 & other clubbed cases

121. ADDL. ISSUE No.2 (in O.S.No.6427/2014)

and ISSUE No.7 (in O.S.No.6485/2014):- These

issues are taken up together for discussion as they are

interlinked to each other to avoid repetition.

122. While dealing with the issue No.2 & 4, it has

been clearly held that, the defendant- Prakash Reddy

failed to prove the payment of balance sale consideration

amount of Rs.1,10,69,000/-. Though defendant- Umabai

was absolute owner of the property, since payment of

balance sale consideration amount is not proved by the

defendant- Prakash Reddy, the sale deed executed by

the defendant- Umabai is not binding upon the plaintiffs

only to the extent of balance sale consideration amount,

but not their share in the suit property. Because suit

property is absolute estate of defendant- Prakash Reddy

by virtue of sale deed dated 27.06.2014. Hence, I hold

that, the sale deed is not binding upon the plaintiffs to

the extent of their share in the balance consideration

amount only. As such, addl. Issue No.2 (in

O.S.No.6427/2014) and Issue No.7 (in

O.S.No.6485/2014) are answered partly in affirmative.
107 O.S.No.6427/2014 & other clubbed cases

123. ISSUE No.5 (In O.S.No.6427/2014) and

ISSUE No.8 (In O.S.No.6485/2014):- Since these

issues are interlinked to each other, they are take up

together for discussion to avoid repetition.

124. On perusal of cause title of plaints, it is

obvious that, in all there are 9 claimants belonging to the

Umabai family. At the outset, I would like to make it

clear that, if at all defendant- Umabai would have been

alive by this time, plaintiffs' suits would have been

dismissed. Because they have no right to claim share in

the absolute property of defendant- Umabai during her

life time. But, unfortunate thing is that, defendant-

Umabai died during the pendency of the suits. Since she

being the absolute owner of the property had already

sold it to Prakash Reddy, her share necessarily shall go

to the purchaser of property i.e., Mr.Prakash Reddy.

125. On perusal of written statement of defendants-

Vijayalakshmi and Nagendra Prasad, it is obvious that

they did not plead for allocation of their share, on the

contrary, they pleaded for dismissal of suit. Defendant

No.2 to 4 in O.S.No.6485/2014 are remained exparte.

Defendant- Sharath Chandra Prasad in
108 O.S.No.6427/2014 & other clubbed cases

O.S.No.6485/2014 is plaintiff in O.S.No.6427/2014 has

claimed his share in this suit as well as in

O.S.No.6427/2014 as plaintiff. Suit against defendant

No.7 to 9 came to be dismissed. On total examination of

facts of both suits, it is obvious that, the plaintiff in both

suits are alone entitled for share, because none of the

defendants who filed written statement claimed share.

However, the defendant- Anuradha in O.S.No.6427/2014

simply supports the plaintiff's case and claims her share

indirectly. As already stated by me, defendant-

purchaser- Prakash Reddy stepped into the shoes of

defendant No.1- Umabai, he is entitled for the rest of the

share.

126. Looking into the cause title of both plaints, I

am of the opinion that the-

i) Sharath Chandra Prasad, Nagendra Prasad and

Anuradha forms one unit;

ii) plaintiff No.1 to 4 (in O.S.No.6485/2014)
forms the one unit;

iii) Shobha, Arun, Sudhir forms the one unit;

iv) Vijayalakshmi, Vasanta and Bhavani
forms the one unit;
109 O.S.No.6427/2014 & other clubbed cases

v) Defendant- Umabai and Prakash Reddy
forms one unit.

Therefore, it is evident that, the plaintiffs in both

suits are entitled for 1/5th share in general. But this 1/5th

share given to plaintiff in O.S.No.6427/2014 has to be

shared with Anuradha and Nagendra Prasad. Since

Nagendra Prasad did not seek his share, his share shall

be remained with Prakash Reddy.

127. Now coming to the quantum of share of

plaintiffs, as already stated by me in addl. Issue No.2

and issue No.7, plaintiffs are not entitled for partition and

separate possession in the suit schedule property,

because they do not have any legal right in it during the

life time of Umabai, Umabai died during the pendency of

suit. Since the remote LR's already on record, suit

against her cannot be abated. Since defendant- Prakash

Reddy failed to prove the payment of balance sale

consideration amount of Rs.1,10,69,000/-. It remains as

recoverable debt of defendant- Umabai and therefore,

plaintiffs are entitled for the share in this amount only.

128. With this, if we proceed to divide

Rs.1,10,69,000/- in five units, one unit comes to
110 O.S.No.6427/2014 & other clubbed cases

Rs.22,13,800/-. Therefore, it is evident that plaintiffs in

each suit gets their share in terms of money of

Rs.22,13,800/-. However, in this amount, plaintiff-

Sharath Chandra Prasad is entitled to 1/3rd share and

Anuradha is entitled to 1/3rd share and Nagendra Prasad

is entitled to 1/3rd share. Since Nagendra Prasad not

claimed share, that has to be left with the purchaser-

Prakash Reddy.

129. If Rs.22,13,800/- is divided into 3 shares, one

share comes to Rs.7,37,934/-. The plaintiff- Sharath

Chandra Prasad is entitled for Rs.7,37,934/- towards his

share. Similarly defendant- Anuradha is entitled to

Rs.7,37,934/- towards her share.

130. Likewise, plaintiff No.1 to 4 in

O.S.No.6485/2014 are jointly entitled for Rs.22,13,800/-

towards their share. However for convenience sake the

amount to be payable to plaintiff- Sharath Chandra

Prasad and Anuradha each is rounded off to

Rs.7,40,000/-. Similarly amount payable to the plaintiff

No.1 to 4 in O.S.No.6485/2014 is rounded off to

Rs.22,15,000/-. With these reasons, issue No.5 (in
111 O.S.No.6427/2014 & other clubbed cases

O.S.No.6427/2014) and issue No.8 (in

O.S.No.6485/2014) are answered in affirmative.

131. ISSUE No.9 (In O.S.No.6485/2014):- The

plaintiffs have claimed relief of permanent injunction

against the defendant. But since they failed to prove the

interference alleged against the defendants, they are not

entitled for the relief of permanent injunction. Hence, this

issue is answered in negative.

132. ISSUE No.4 IN O.S.No.6427/2014:- The

defendant No.5 has taken contention that the suit is not

properly valued and the Court fee paid in insufficient. In

order to prove this issue neither he adduced oral

evidence nor produced documentary evidence. In view of

the discussions on above issues, I am of the opinion that

the defendant No.5 has failed to prove this issue.

Accordingly issue No.4 in this suit is answered in

negative.

133. ISSUE No.1 TO 3 IN O.S.No.5873/2014:-

These issues are taken up together for discussion as they

are interlinked to each other to avoid repetition.

134. The plaintiff No.4 in O.S.No.6485/2014 has

filed this suit seeking relief of perpetual injunction
112 O.S.No.6427/2014 & other clubbed cases

against the defendants- Umabai and Vijayalakshmi. It is

pertinent to note that defendant No.1- Umabai expired

during the pendency of suit, therefore cause of action

against her does not survive. The defendant No.2

appeared and filed written statement, denying the plaint

averments. Thereafter issues were framed. After that

plaintiff filed evidence on affidavit, but not continued the

evidence process by entering into witness box, getting

the documents marked and subjecting himself for cross-

examination. Therefore, it is obvious that the present suit

suffers from lack of evidence. More over in

O.S.No.6485/2014, it has been ruled out that this

plaintiff failed to prove the interference. It is therefore

suit is liable to be dismissed. Accordingly, issue No.1 to 3

in O.S.No.5873/2014 under discussion are answered in

negative.

135. ISSUE No.1 TO 4 IN O.S.No.6057/2014:-

These issues are taken up together for discussion as they

are interlinked to each other to avoid repetition.

136. The plaintiff No.4 in O.S.No.6485/2014 has

filed this suit seeking relief of perpetual injunction

against the defendant- Prakash Reddy. The defendant
113 O.S.No.6427/2014 & other clubbed cases

appeared and filed written statement, denying the plaint

averments. Thereafter issues are framed. After that

plaintiff filed evidence on affidavit, but not continued the

evidence process by entering into witness box, getting

the documents marked and subjecting himself for cross-

examination. Therefore, it is obvious that the present suit

suffers from lack of evidence. More over in

O.S.No.6485/2014, it has been ruled out that this

plaintiff failed to prove the interference. It is therefore

suit is liable to be dismissed. Accordingly, issue No.1 to 4

in O.S.No.6057/2014 under discussion are answered in

negative.

137. ISSUE No.1 TO 3 IN O.S.No.6210/2014:-

These issues are taken up together for discussion as they

are interlinked to each other to avoid repetition.

138. The defendant- Prakash Reddy has filed this

suit seeking relief of perpetual injunction against the

defendants. The defendant No.1 appeared and filed

written statement and denying the plaint averments. The

defendant No.2 & 3 remained absent, placed exparte.

The issues are framed. After that plaintiff filed evidence

on affidavit and got the documents marked as per Ex.P.1
114 O.S.No.6427/2014 & other clubbed cases

to Ex.P.13 and taken time for further examination-in-

chief. After availing the time, he not continued the

evidence process by entering into witness box to lead to

complete his evidence including cross. Therefore, without

undergoing for cross-examination, his evidence cannot

be considered as a proof of allegations against the

defendants. Hence, I am of the opinion that, plaintiff

failed to prove the issues. It is therefore suit is liable to

be dismissed. Accordingly, issue No.1 to 3 in

O.S.No.6210/2014 under discussion are answered in

negative.

139. The Misc.No.12/2017 is filed by the plaintiff in

O.S.No.6057/2014 under Order XXIX rule 2-A read with

Section 151 of CPC against the defendant for his

detention in civil prison for deliver disobedience and

breach of interim order dated 07.11.2014, for which

defendant- Prakash Reddy filed objection. Thereafter

Court ordered for registering the I.A. as Mis.Petition,

hence office has registered it as Misc.No.12/2017.

Thereafter petitioner has not led any evidence on his

behalf and not proceed to substantiate his case.

Therefore, I am of the opinion that the petition filed by
115 O.S.No.6427/2014 & other clubbed cases

the petitioner against the respondent/Prakash Reddy is

liable to be dismissed.

140. ISSUE No.6 in O.S.No.6427/2014, ISSUE

No.10 in O.S.No.6485/2014, ISSUE No.4 in

O.S.No.5873/2014 & O.S.No.6210/2014 and ISSUE

No.5 in O.S.No.6057/2014:- Before proceeding to pas

final order, I would like to clarify that the reliefs are

moulded as per the requirement of the cases. With this

clarification, now I proceed to pass the following:-

ORDER

Suits bearing O.S.No.6427/2014 and O.S.No.6485/2014 filed by the plaintiffs are partly decreed against the defendant- Sri Prakash Reddy as under:-

It is declared that registered sale deed dated 27.06.2014 executed by the deceased defendant- Umabai in favour of defendant- Sri Prakash Reddy is not binding upon the plaintiffs' and defendant- Smt.Anuradha's shares in balance sale consideration amount only.

116 O.S.No.6427/2014 & other clubbed cases

It is further declared that plaintiff- Sri Sharath Chandra Prasad in O.S.No.6427/2014 is entitled to Rs.7,40,000/- towards his share.

Similarly defendant No.7- Anuradha of this case is also entitled to Rs.7,40,000/- towards her share.

Similarly plaintiff No.1 to 4 in O.S.No.6485/2014 are jointly entitled to Rs.22,15,000/- towards their share.

It is further decreed that plaintiffs are entitled for this amount only after handing over the possession of the suit schedule property to the defendant- Sri Prakash Reddy peacefully and without any objection.

It is further ordered that plaintiffs in both suits are not entitled for prohibitory relief as prayed by them.

Suits in O.S.No.5873/2014, O.S.No.6057/2014 and O.S.No.6210/2014 are dismissed.

117 O.S.No.6427/2014 & other clubbed cases

Consequently, Misc.No.12/2017 is dismissed.

No costs awarded.

Draw separate decrees accordingly in the name of plaintiffs in both suits and in the name of defendant- Anuradha after payment of necessary Court fee by her.

Keep original judgment in O.S.No.6427/2014 and copies thereof in O.S.No.6485/2014, O.S.No.5873/2014, O.S.No.6057/2014 & O.S.No.6210/2014. (Dictated to the Judgment Writer directly on Computer, printout taken, corrected and then pronounced in the Open Court on this the 19th day of December, 2018).

(MARUTHI S. BAGADE) X Addl. City Civil & Sessions Judge, Bangalore.

ANNEXURE O.S.No.6427/2014 List of witnesses examined for the plaintiff:

PW.1 : A. Sharath Chandra Prasad P.W.2 : S. Jagadish P.W.3 : Shivakumar, C.K. P.W.4 : Smt.Meera P.W.5 : Ramachandra @ Ramanna 118 O.S.No.6427/2014 & other clubbed cases List of documents exhibited for plaintiff:

Ex.P1 :    Possession certificate
Ex.P2,3:      Death certificates
Ex.P4     :   Original sale deed dt:15.06.2007
Ex.P5     :   Certified copy of Khatha certificate
Ex.P6     :    Khatha extract

Ex.P7 to 10: Tax paid receipts Ex.P11 : Certified copy of order sheet in O.S.No.4066/2004 Ex.P12 : Certified copy of plaint in O.S.No.4066/2004 Ex.P13 : WILL deed dated 01.03.1975 Ex.P14 : WILL deed dated 07.11.2008 Ex.P15 : Registered codicile Ex.P16 : Death certificate of R.G. Joshi Ex.P17 : Order sheet copy in Crl.Mis.No.1764/2016 Ex.P18,19: Order sheet & plaint copy in OS 1745/2016 Ex.P20 : Plaint copy in O.S.No.8246/2016 Ex.P21 : Copy of order sheet in OS 8246/2016 List of witnesses examined for the defendants:

D.W.1 : G.S. Prakash Reddy
D.W.2 :       N. Giridhar
D.W.3 :       Anuradha

List of documents exhibited for defendants:

Ex.D1 :    WILL deed dated 19.05.1990
Ex.D2 :       Reply
Ex.D3 :       Will cancellation letter dated 11.02.2014
Ex.D4 :       Objection in Ex.No.2304/2014
Ex.D5 :       Another objection
Ex.D6 :       Order sheet in O.S.No.5680/1997
Ex.D7 :       Plaint copy in O.S.No.5680/1997
                  119         O.S.No.6427/2014 & other clubbed cases


Ex.D8 :    Compromise petition in O.S.No.5680/1997
Ex.D9 :    Death certificate of Thunga Bai
Ex.D10:    Certified copy of sale deed dt:15.6.2007
Ex.D11:    Two tax paid receipts
Ex.D12:    Certified copy of sale agreement dt:15.4.2014
Ex.D13:    Sale deed dated 27.06.2014
Ex.D14:    Khatha certificate
Ex.D15:    Khatha extract
Ex.D16:    Uttara patra
Ex.D17:    Online tax paid receipt
Ex.D18:    Tax paid receipt
Ex.D19:    Another online tax paid receipt

Ex.D20: Encumbrance certificate Ex.D21: Property card Ex.D22: Intimation letter by BBMP Ex.D23: Approved plan Ex.D24: Lincence Ex.D25: Licence fee paid receipt Ex.D26: Water demand bills and water paid receipt Ex.D27: Demand notice issued by BWSSB Ex.D28: Letter copy Ex.D29: Electricity demand bills & electricity paid receipt Ex.D30 to 32: Three renewal rent agreements Ex.D33: 24 rent receipts Ex.D34: Copy of police complaint Ex.D35: Acknowledgement Ex.D36: Paper publication Ex.D36(a): Relevant portion in Ex.D36 Ex.D37 : Copy of complaint dt:21.07.2014 120 O.S.No.6427/2014 & other clubbed cases Ex.D38 : Receipt Ex.D39: Bank statement Ex.D40 : TDS form Ex.D41 : Copy of order sheet in OS 6614/2014 Ex.D42 : Copy of memo in OS 6614/2014 Ex.D43 : Copy of written statement in OS 6485/2014 Ex.D44 : Copy of order in OS 6427/2014 Ex.D45 : Endorsement issued by BDA Ex.D46,47: Two tax paid receipts Ex.D48: Canara Bank tax paid receipt Ex.D49 : Three rent receipts Ex.D50,51: Copy of summons & notice in OS 4066/14 Ex.D52 : Application for allotment of site Ex.D53 : Copy of registered lease-cum-sale agreement Dated 12.01.1959 Ex.D54 : Copy of tippani & order sheet issued by BDA Ex.D55 : Copy of affidavit of G. Umabai Ex.D56 : Copy of genealogical tree Ex.D57: Copy of evidence of D.W.2 in OS 6485/14 O.S.No.6485/2014 List of witnesses examined for the plaintiff:

PW.1 : N. Giridhar List of documents exhibited for plaintiff:

Ex.P1 :    Certified copy of order sheet
Ex.P2 :     Certified copy of compromise petition
            and decree
Ex.P3 :     Voter ID
Ex.P4 :     Aadhaar card
Ex.P5 :     DL

Ex.P6 to 13: 8 telephone bills Ex.P14 to 18: 5 gas bills Ex.P19 : Certified copy of WILL 121 O.S.No.6427/2014 & other clubbed cases Ex.P20,21 : Certified copy of 2 sale deeds Ex.P22 : Khatha certificate Ex.P23 : Khatha extract List of witnesses examined for the defendants:

DW.1 :     G.S. Prakash Reddy
D.W.2 :    Shivakumar
D.W.3 :    A. Sharath Chandra Prasad

List of documents exhibited for plaintiff:

Ex.D1 :    Lease-cum-sale agreement
Ex.D2 :    Certified copy of WILL dated 3.1.1975
Ex.D3 :    Signature

Ex.D4,5 : Police complaint & reply Ex.D6 : Police complaint Ex.D7 : Charge sheet copy Ex.D8 : Inter order on IA 4 & 6 in OS 6427/2014 Ex.D9 : Lease-cum-sale agreement Ex.D10 : Possession certificate Ex.D11 : Application submitted to CITB Ex.D12 : G-tree Ex.D13 : WILL dated 3.1.1975 Ex.D14 : WILL dated 9.5.1990 Ex.D15 to 19: 5 death certificates Ex.D20 : Sale deed dt:15.6.2007 Ex.D21 : Tippani & order sheet Ex.D22 : Affidavit of first defendant Ex.D23 : Khatha certificate Ex.D24 : Khatha extract Ex.D25 : Uttara patra Ex.D26 to 28: 3 tax paid receipts Ex.D29 : Acknowledgement issued by BBMP 122 O.S.No.6427/2014 & other clubbed cases Ex.D30 : Registered sale agreement dt:15.4.2014 Ex.D31 : Sale deed dt:27.6.2014 Ex.D32 : Khatha certificate of defendant No.10 Ex.D33 : Khatha extract Ex.D34 : Uttara patra Ex.D35 to 38: 4 tax paid receipts Ex.D39 : Encumbrance certificate Ex.D40 : PID card issued by Survey Dept. Ex.D41 : Licence issued by BBMP Ex.D42 : Approved plan Ex.D43 : Tax paid receipt issued by BBMP Ex.D44 : Water bill Ex.D45 : Electricity bill Ex.D46 to 48: 3 rent agreements Ex.D49 to 59 : 33 Rent receipts Ex.D60 : Bank statement Ex.D61 : TDS challan Ex.D62 : Order sheet in OS 6614/2014 Ex.D63 : Memo in OS 6614/2014 Ex.D64 : Plaint copy in OS 6427/2014 Ex.D65 to 68 : 4 W.S. in OS 6427/2014 Ex.D69 : Order on IA in OS 6427/2014 Ex.D70 : Marriage certificate Ex.D71 : Passport Ex.D72 : True copy of Aadhaar cards Ex.D73 : Certified copy of sale deed Ex.D74 : Copy of audit report along with IT return Ex.D75,76 : Letter issued by Bank of India Ex.D77 : Pass book 123 O.S.No.6427/2014 & other clubbed cases Ex.D78 : Certified copy of summons in OS 4066/2014 Ex.D79 : Voter ID Ex.D80 : Medical records Ex.D81 : Passbook of deceased defendant No.1 Ex.D82 : Certified copy of sale deed Ex.D83 : Evidence of D.W.3 in OS 6427/2014 Ex.D84 : Photograph Ex.D85 to 87 : Certified copy of order sheet, plaint and Compromise petition in OS 5680/1997 O.S.No.6210/2014 List of witnesses examined for the plaintiff:

PW.1 : G.S. Prakash Reddy List of documents exhibited for plaintiff:

Ex.P1 :    Certified copy of sale deed dt:27.6.2014
Ex.P2 :    Khatha certificate
Ex.P3 :    Khatha extract
Ex.P4 :    Tax paid receipt
Ex.P5 :    Encumbrance certificate

Ex.P6 to 8: Copy of rent agreement Ex.P9 : Certified copy of sale deed dt:15.6.2007 Ex.P10: Khatha certificate (under RTI Act) Ex.P11: Khatha extract (under RTI Act) Ex.P12: Uttara patra Ex.P13: Acknowledgement issued by Sanjay Nagar PS List of witnesses examined and documents exhibited for defendant:

Nil X Addl. City Civil & Sessions Judge, Bangalore.

Digitally signed by MARUTHI BAGADE

 MARUTHI                            DN: cn=MARUTHI
                                    BAGADE,ou=HIGH COURT OF
                                    KARNATAKA,o=GOVERNMENT
 BAGADE                             OF

KARNATAKA,st=Karnataka,c=IN Date: 2018.12.21 15:48:59 IST

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Bangalore District Court

Sri A. Sharath Chandra Prasad vs ) Kumari G. Uma Bai on 19 December, 2018