Bangalore District Court
2 To 5 Are The Sons vs No.5 Is The Son Of Late Narayanappa And ... on 16 March, 2021
Government of TITLE SHEET FOR JUDGEMENTS IN SUITS
Karnataka
Form No.9
[Civil] Title Sheet IN THE COURT OF V ADDL.CITY CIVIL COURT AT
for Judgement
in Suits BENGALURU
Present: Sri. C.D. KAROSHI, B.A., LL.M.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 16th day of March, 2021.
O.S.5854/2002
BETWEEN
1. Smt. Sadamma,
W/o Late Gurumurthappa,
(Second Wife)
Aged about 65 years
2. Sri. Venkatesh,
Aged about 42 years
3. Sri. Manjunath,
Aged about 33 years
4. Sri. Narayana Swamy,
Aged about 30 years
5. Smt. Muniyamma,
Aged about 39 years
Plaintiffs 2 to 5 are the sons
and daughters of Late Gurumurthappa
and Sadamma
All are R/at No.127/A, Tank Road,
1st Cross, Krishnaraja Puram,
Bengaluru-36. Plaintiffs
( By Sri. NR., Adv.,)
AND
1. Smt. Lakshmamma,
W/o Late Gurumurthappa,
(First Wife)
Aged about 79 years,
Since dead by her L.Rs already on record
2
O.S. No.5854/2002
2. Sri. G. Seenappa,
S/o Late Gurumurthappa,
Aged about 59 years,
R/at No.35, Old Police Station Road,
2nd Cross, K.R. Puram,
Bengaluru-36.
3. Sri. G. Ramaiah,
S/o Late Gurumurthappa,
Aged about 56 years,
Since dead by his L.Rs
3(a). Smt. Jagadamba,
W/o late G. Ramaiah,
Aged about 46 years
3(b). Kumari. Pushpa,
D/o Late G. Ramaiah,
Aged about 25 years
3(c). Kumari. Rani,
D/o Late G. Ramaiah,
Aged about 19 years
3(d). Mr. Suhas,
S/o Late G. Ramaiah,
Aged about 17 years
3(d) is minor
under the care and custody of mother
i.e. 3(a) and all are R/at No.35,
Old Police Station Road,
2nd Cross, K.R. Puram,
Bengaluru-36.
4. Smt. Shanthamma,
W/o Late G. Narayanappa,
Aged about 53 years
5. Sri. Sudhakar,
S/o Late G. Narayanappa,
Aged about 29 years
Sl.No.4 and 5 are R/at
New Police Station Road,
K.R. Puram, Near MM Choultry,
Bengaluru-36.
3
O.S. No.5854/2002
6. Smt. Padmavathi,
D/o Late Gurumurthappa,
W/o K.V. Srinivas,
Aged about 50 years,
R/at No.201, New Bazaar Street,
K.R. Puram,
Bengaluru-36.
7. Smt. Saraswathamma,
D/o of Late Gurumurthappa,
W/o Ramakrishna,
Aged about 47 years,
R/at Kashi Vishwanatha Layout,
Krishnarajapuram,
Bengaluru-36.
8. Sri. A. Ravichandra,
S/o A.V. Anjanappa,
Aged about 31 years,
R/at No.9, 2nd Cross,
Gangothri Road,
K.R. Puram, Bengaluru-36.
9. Smt. Saraswathamma,
W/o Sri. C. Manjunath,
Aged about 47 years,
R/at Doddahullaru village,
Kasaba Hobli,
Hosakote Taluk,
Bengaluru Rural District.
10. Sri. M. Kiran Kumar,
S/o Sri. C. Manjunath,
Aged about 28 years,
R/at Doddahullaru village,
Kasaba Hobli,
Hosakote Taluk,
Bengaluru Rural District.
11. Sri. K. Ganesh,
S/o M. Kenchappa,
Aged about 38 years
12. Smt. R. Geetha Sri,
S/o Sri. K. Ganesh,
Aged about 31 years,
4
O.S. No.5854/2002
Both are R/at No.168,
1st Cross, V.B. Layout,
K.R. Puram, Bengaluru-36.
13. Sri. Gopinath.P.V
S/o Late Venkataramanappa.B.R
R/at Flat No.N-601,
Green Valley CGHS Plost No.18,
Sector-22, Dwaraka,
New Delhi-78.
Since dead by his L.Rs
13(a). Smt. Aruna,
W/o Late Gopinath.P.V
Aged about 39 years,
C/o Yedunath,
R/at No.87,
K.M. Ramaian Lane,
1st Cross, Near Iyyappaswamy Temple,
K.R. Puram, Bengaluru-36.
14. Sri. K.R. Suresh Babu,
S/o Late J. Krishnamurthy,
Aged about 40 years,
R/at No.10/1, 1st Floor,
1st cross, 1st Block,
Anandanagar, Bengaluru-32.
15. Smt. V. Pramila,
W/o Suryanarayana,
Aged about 46 years,
R/at 4th 'A' Cross,
Sir.M.V. Nagar Extension,
Hosakote, Bengaluru Rural District.
16. Sri. K.M. Lakshmi Narayana Setty,
S/o Late Krishniah Setty,
Aged about 61 years,
R/at Bidarahalli village,
Bidarahalli Hobli,
Bengaluru East Taluk.
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O.S. No.5854/2002
17.Sri. Harish.C.
S/o Sri. J.C. Chandrappa,
Aged about 47 years,
R/at No.646, 4th 'C' Main,
OMBR Layout, Banaswadi,
Bengaluru-43.
18. Sri. K. Manjunatha,
S/o Sri. K.V. Krishnappa,
Since dead by his LRs.
18(a). Smt. Varuna,
W/o K. Manjunatha,
Aged about 35 years
18(b). Master. Diganth.M.
S/o Late K. Manjunatha,
Aged about 8 years,
Since minor represented by his
Natural Guardian Mother
Smt. Varuna
Both are R/at Sri. Nanjundeshwara
Nilaya, No.86/2, 1st 'B' Cross,
Near Ayyappa Temple,
Ramaiah Layout, Krishnarajapura,
Bengaluru-36.
19. Sri. G. Anjaneyalu,
S/o Sri. Gopalappa,
Aged about 36 years,
R/at No.33, 1st Floor,
Venkateshwara Nilaya,
Krishna Nagar,
Krishnarajapura,
Bengaluru-36.
20. Smt. Jwalanmma,
W/o Sri. H.A. Parshwanatha,
Aged about 51 years,
R/at 3rd Cross, 1st Main Road,
Kashi Vishwanatha Layout,
New Police Station Road,
Krishnarajapura,
Bengaluru-36.
6
O.S. No.5854/2002
21. Sri. H. Raghavendra,
S/o Sri. P. Hanumanthappa,
Aged about 30 years,
R/at No.1209, 10th 'A' Cross,
2nd Stage, West of Chord Road,
Mahalakshmipuram,
Bengaluru-86.
22. Smt. Shantha,
W/o Sri. Ramesh,
Aged about 42 years,
R/at No.136, 5th Cross,
Sadashivanagar,
Bengaluru-80.
GPA holder of N. Sudhakar
23. Smt. Venkatarathnamma,
D/o Sri. Gurumurthy,
Aged about 31 years,
R/at No.80, Manjunatha Nagar,
Kanakapura Road,
Bengaluru-04.
Agreement Holder executed by
Smt. Shantha GPA holder of N. Sudhakar
24. Smt. Manjula.N.
D/o Late G. Narayanappa,
W/o Padmanabha,
Aged about 31 years,
R/at No.35, Old Police Station
Road, Krishnarajapura,
Bengaluru-36.
25. Smt. Sharada.G
W/o Sri. Gangadhara,
Aged about 48 years,
R/at No.39, 3rd 'B' Cross,
Ner Thirumala Water Supply,
Anandapura, T.C. Palya,
Bengaluru-36.
26. Sri. Chamundi,
S/o Sri. M. Ranganatha,
aged about 48 years,
R/at No.162, FCI Godown Road,
Vijinapura, Dooravaninagar Post,
Bengaluru-16.
7
O.S. No.5854/2002
27. Smt. Virgini Geeta,
W/o Melvin Francis,
aged about 31 years,
R/at NO.30, Vargi Nilaya,
Seegehalli, Virgonagar Post,
Bengaluru-49. Defendants
( D.1 -Dead, D.2- By Sri. DTH
LR/D3(a)- By Sri. HNMP,
LR/D3(b to d)- In person,
D.4, 5- By Sri. MR,
D.6,7- By Sri. HRR, D.8- exparte
D1,4,8- By Sri. SKK,
D2, 3, 5, 7- ex-parte, P/D6- Sri. MLG
LR/D13(a)- By Sri. SKK,
LR/D18(a,b)- exparte,
P/D26- By Sri. HR, P/D27-absent
claim against proposed D.26 and 27
dismissed)
Date of institution of the Suit : 23/08/2002
Nature of the Suit : Partition and separate possession
Date of commencement of recording
: 04/09/2013
of evidence
Date on which the Judgment was
: 16/03/2021
pronounced
Year Months Days
Total Duration :
18 06 23
[ C.D. KAROSHI ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
-: J U D G E M E N T :-
This is a suit filed by the plaintiffs against the defendants for
the relief of partition and separate possession of their legal share in
the suit schedule properties along with cost of the suit.
8
O.S. No.5854/2002
2. The brief facts are as under :
That, the 1st plaintiff is the 2nd wife of Late Gurumurthappa and
the 1st defendant is the 1st wife of Late Gurumurthappa. The plaintiff
No.2 to 5 are the sons and daughter of Late Gurumurthappa born to
2nd wife/1st plaintiff. Further it is averred that, defendant No.4 is the
wife of late Narayanappa who was the son of Late Gurumurthappa.
Defendant No.5 is the son of Late Narayanappa and grandson of
Late Gurumurthappa, as such plaintiffs and defendants are the legal
heirs of Late Gurumurthappa. The defendant No.4 and 5 are the
second generation legal heirs of Late Gurumurthappa. Further it is
averred that Late Gurumurthappa was owning several immovable
properties namely Sy.No. 66/2D measuring 14 guntas, 105/1
measuring 1 acre 39 guntas, 65/2 measuring 2 acres 16 guntas and
66/2 measuring 3 acres situated at K.R. Puram village and Hobli,
Bengaluru South Taluk. Further it is averred that, out of the said
properties the plaintiffs filed a suit for partition in respect of Sy.No.
65/2 and 66/2B in O.S. No.2385/1997 which came to be settled by a
compromise petition. But by inadvertence plaintiffs failed to include
the schedule properties of the present suit therein, therefore they
filed the present suit for partition of the said properties by metes and
bounds to the extent entitled the under law. The plaintiffs have also
produced genealogical tree of Late Gurumurthappa along with death
extracts.
Further it is averred that, earlier the schedule-I of the property
was numbered as 66/2D measuring 0.14 guntas and subsequently it
was renumbered by fresh survey number as 66/2 measuring 0.14
guntas. Similarly at the time of filing of the suit the property bearing
9
O.S. No.5854/2002
Sy.No. 105/1 situated at K.R. Puram village and Hobli, Bengaluru
East Taluk which was standing in the name of Late Gurumurthappa's
children measuring 1 acre 39 guntas and subsequently it was
bifurcated by the revenue department and divided in to two portions
measuring 0.37 ½ guntas each and separate survey numbers were
given as Sy.No. 105/1 measuring 0.37 ½ guntas and Sy.No. 105/3
measuring 0.37 ½ guntas as per the RTC produced by the plaintiffs.
Further as per the RTC extracts produced by the plaintiffs the
land standing in the name of Late Gurumurthappa and after his
death, the plaintiffs and defendants continued to be joint and enjoyed
the properties as joint family members. Further there was no partition
of these properties even though for convenience sake they lived
separately. The plaintiff No.2 to 5 demanding to divide the properties
and to give their share in the properties, but when the 1 st plaintiff
requested the 1st defendant to effect partition, she did not show any
interest and recently plaintiffs learnt that 1st defendant is negotiating
to encumber the properties to deprive the rights of the plaintiffs.
Cause of action arose to file the suit during the third week of July
2002 when the plaintiffs learnt about negotiations with third parties.
On these grounds prayed for decreeing the suit.
3. Records reveal that, initially the plaintiffs filed the suit
against defendant No.1 to 5 only and during the pendency of the suit
they got impleaded defendant NO.6 to 25. Further defendant No.1
Smt. Lakshmamma reported to be dead and rectified as L.Rs are
already on record. Defendant No.3 also reported to be dead and his
L.Rs were brought on record. Despite service of suit summons
10
O.S. No.5854/2002
defendant No.2, 3, 5, 7, 8 and L.Rs of D.18 remained ex-parte.
Further the claim against proposed defendant No.26 and 27 came to
be dismissed as steps not taken.
4. It is contended in the written statement filed by the
defendant No.2 that, suit of the plaintiffs is not maintainable either in
law or on facts and liable to be dismissed. Further the averments that
1st plaintiff is the alleged 2nd wife of Late Gurumurthappa is
specifically denied and the plaintiffs be put to strict proof of the
same. It is true that the 1st defendant is the only wife of Late
Gurumurthappa and defendant No.2 and 3 are his only sons.
Further it is true that, defendant No.4 is the wife of late Narayanappa
and defendant No.5 is his son and now G. Narayanappa and
defendant No.3 G. Ramesh are no more. Further the averments
made by the plaintiffs in para 4 of the plaint are denied as incorrect
contending that, Sy.No. 66/2D measuring 0.14 guntas which was
allotted to the share of Sri. Thimappa S/o Narasimhaiah in a family
partition between N. Ramaaiah, Venkataswamappa and
Gurumurthappa is evidenced by a registered deed of partition dated
16/09/1947, as such contention of the plaintiffs that the land
measuring 0.14 guntas in the said survey number belongs to Late
Gurumurthappa is incorrect and denied. Further Sy.No. 105/1
measuring 1.39 guntas was allotted to the share of Sri. Venkatappa
S/o N. Ramaiah under the above said partition deed and the said
Venkatappa is the son of brother of Late Gurumurthappa.
Further contend that, said Venkatappa has sold 39 ½ guntas of
land in Sy.No. 105/1 to the defendant Sri. G. Srinivasa S/o Late
Gurumurthappa under a registered sale deed dated 10/04/1978 and
11
O.S. No.5854/2002
since then defendant No.2 is in lawful possession and enjoyment of
the same as his self acquired property. Further contend that Sy.No.
65/2 and 66/2B in O.S. No.2385/1997 filed by the plaintiffs came to
be dismissed as not pressed at the instance of the plaintiffs
themselves and no decision was rendered on merits nor finding was
given as to the alleged relationship claimed by the plaintiffs. Further
defendant No.2 was not party to the said alleged compromise nor
admits the claim of the plaintiffs. On the other hand, 4 th defendant
might have colluded with the plaintiffs in the said suit as such the
same does not bind the defendants nor create any right in favour of
the plaintiffs to seek the relief of partition. Further defendant No.2
categorically denied the relationship claimed by the plaintiffs as
against Late Gurumurthappa S/o Narasimhaiah nor the 1st plaintiff is
the alleged 2nd wife of said Late Gurumurthappa, as such plaintiffs
are not entitled to succeed to the estate of Late Gurumurthappa,
genealogical tree produced by the plaintiffs has been seriously
disputed. Further contend that, the averments of the plaint that RTC
shows the name of Late Gurumurthappa in Sy.No. 66/2D is concern,
the entry ought to have been only in the name of Mr. Thimappa to
whom the said extent of 0.14 guntas was allotted as per the
registered partition deed dated 16/09/1947 and name of Late
Gurumurthappa could not have been entered, as such the same is
an inadvertent mistake committed by the revenue authorities nor any
right created in favour of the Late Gurumurthappa. Therefore, claim
of the plaintiffs has no legal basis. Further the averments made in
para 5 of the plaint is concern after the death of Late Gurumurthappa
the plaintiffs and defendants continued to remain joint and enjoyed
the properties jointly as joint family members and as to there was
12
O.S. No.5854/2002
no partition has been specifically denied as false and misleading as
the same, without any basis and plaintiffs be put to strict proof of the
same as the 1st plaintiff is not at all the wife of Late Gurumurthappa,
on the other hand she is the wife of one Sri. Tekal Munikenchappa,
as such without seeking the relief of declaration regarding
relationship plaintiffs cannot maintain the suit for partition in respect
of the schedule properties. The plaintiffs are neither legal heirs nor
coparceners or lineal descendants of Late Gurumurthappa. There is
no joint family status or nucleus between the plaintiffs and
defendants, as such in the absence of proof as required under
Section 11 of the Hindu Marriage Act without supporting documents
claim of the plaintiffs cannot be considered. The Late
Gurumurthappa has never given application for admitting plaintiff
No.2 to 5 to the voters list, as such the same is denied. Late
Gurumurthappa had only three children viz., Narayana, Seenappa
and Ramaiah. The father of defendant No.2 belongs to Banajiga
community, the plaintiffs belong to schedule caste. Further the 1 st
defendant is legally wedded wife of Late Gurumurthappa who is still
alive, as such even the law does not recognize the status of the
plaintiff as 2nd wife of Late Gurumurthappa. No cause of action arose
to file the suit. The valuation made and court fee paid by the
plaintiffs is in correct. Suit is bad for non joinder of necessary
parties. On these grounds payed for dismissal of the suit with
exemplary costs.
5. It is contended in the written statement file by defendant
No.5 that, the allegations made in para 3 that 1 st plaintiff is the wife
and defendant No.2 to 5 are the sons and daughters of Late
13
O.S. No.5854/2002
Gurumurthappa is specifically denied as false and plaintiffs be put to
strict proof of the same. Further contend that the 1 st defendant is the
only wife and defendant No.2 and 3 are the sons of Late
Gurumurthappa. Defendant No.4 is the wife and defendant No.5 is
the son of late G. Narayanappa and grandson of Late
Gurumurthappa. Further they deny that plaintiffs and defendants
are the legal heirs of Late Gurumurthappa. Further the allegations
made in para 4 of the plaint are denied as false. It is true that
plaintiffs filed O.S. No.2385/1997 before this court in respect of
Sy.No. 65/2 and 66/2B and it came to be dismissed as not pressed
at the instance of plaintiffs only.
Further, alleged compromise does not create rights of the
plaintiffs seeking partition in the self acquired properties of late
G. Narayanappa. It is false to say that the plaintiffs failed to include
the schedule properties and after the death of Gurumurthappa
plaintiffs and defendants are the legal heirs to succeed his estate.
The defendant disputes genuineness of genealogical tree produced
by the plaintiffs. The 1st plaintiff is not the wife of Late
Gurumurthappa. The allegations made in para 4 of the plaint are
denied as false. The said Venkatappa happens to the son of
Gurumurthappa's brother, sold 0.37 ½ guntas of land in Sy.No. 105/1
of K.R. Puram in favour of defendant No.5 under registered sale
deed dated 29/01/1974. Further after the death of Narayanappa the
defendant No.5 and his mother are in possession and enjoyment of
the property as absolute owners. The allegations made in para 5 of
the plaint are denied as false, as such demanding partition in the self
acquired property of the father of defendant No.5 and 1 st defendant
14
O.S. No.5854/2002
does not arise at all. Further contend that father of defendant No.5
late Narayanappa was an employee in ITI, Bengaluru joined the
service in the year 1972, due to women folk in the family he was
residing separately but enjoyed the joint family property out of his
own earnings. After his death the defendant No.5 and his mother
defendant No.4 are in exclusive possession of the same. Further
there is no joint family status or joint nucleus between the plaintiffs
and defendants. The 1st plaintiff is the wife of one Tekal
Munikenchappa. She has not produced supporting documents to
show that plaintiffs and Late Gurumurthappa were living together.
On the other hand the 1st defendant is the legally wedded wife of
Gurumurthappa S/o Narasimhaiah who is still alive, as such suit of
the plaintiff is liable to be dismissed with cost.
6. It is contended in the written statement filed by defendant
No.9, 10 and 14 that suit of the plaintiffs is not maintainable either in
law or on facts and liable to be dismissed. The allegations made in
para 3 to 6 of the plaint are denied as false and plaintiffs be put to
strict proof of the same. The suit is bad for misjoinder and non
joinder of necessary parties. Further contend that, the plaintiffs
without having physical possession of any portion of the properties
not justified in assessing court fees under Section 35(2) of the Act,
as such the same is not correct. The 1 st plaintiff is wife of one T.
Munikenchappa and plaintiffs 2 to 5 are their children, as such
defendant No.9 specifically deny that plaintiffs are the heirs of the
Late Gurumurthappa. Earlier suit O.S. No.2385/1997 filed by the
plaintiffs for the relief of partition against defendant No.1 to 5 had
15
O.S. No.5854/2002
been withdrawn and not adjudicated, as such present claim of the
plaintiffs is not maintainable. Further contend that, in the property
purchased by Narayanappa plaintiffs have no vested right to seek
partition as the same is not the property belongs to HUF of Late
Gurumurthappa. Defendant No.9 and 10 further contend that they
are bonafide purchasers of site No.18 and 17 carved out of
converted property in Sy.No. 105/1 vide conversion order dated
19/08/2010 purchased from defendant No.5 under sale deed dated
28/07/2011 for valuable consideration and paying tax to the
concerned department, but plaintiffs have impleaded the defendants
only to extract money.
Further defendant No.14 would contend that he has purchased
the site No.19 in Sy.No. 105/1 situated at Ward No.52, K.R. Puram,
Bengaluru under a sale deed dated 30/04/2012 from defendant No.5
and he is in peaceful possession and enjoyment of the same, as
such plaintiffs cannot claim any right over the property purchased by
defendant No.14 which was self acquired property of G.
Narayanappa and not belongs to HUF. Further contend that the suit
for partition filed by the plaintiffs in O.S. No.2385/1997 came to be
settled by compromise is false but it came to be withdrawn, as such
2nd suit on the same cause of action is not maintainable in the eye of
law. Valuation made and court fee paid by the plaintiffs is not proper,
On these grounds prayed for dismissal of the suit with exemplary
cost.
16
O.S. No.5854/2002
7. Basing on above narrated pleadings my predecessor in
office has framed the following issues.
1) Whether the plaintiffs prove that the
plaintiffs and defendants have succeeded to
the suit properties on the death of late
Gurumurthappa?
2) Whether plaintiffs prove that the first
plaintiff is the second wife of the
Gurumurthappa and plaintiff No.2 to 5 are their
sons and daughters?
3) Whether the suit is properly valued and
court fee paid is proper and correct?
4) Whether the plaintiffs are entitled for relief
claimed in the suit?
5) What order or decree?
8. In order to prove their case, the 2nd plaintiff examined
himself as PW.1 and got marked the documents at Ex.P1 to P43. On
the other hand the General Power of Attorney holder of defendant
No.2 examined himself as DW.1 and got marked documents at
Ex.D.1 to D.30.
9. Records reveal that inspite of giving sufficient
opportunities the plaintiffs/counsel have neither cross-examined
D.W. 1 nor addressed oral arguments or filed written submissions on
merits. Similarly, none of the defendants/their counsels made efforts
to address oral arguments or filed written submissions on merits.
This is a case of the year 2002. So in view of specific directions of
17
O.S. No.5854/2002
our Hon'ble High Court for speedy disposal of the oldest matters and
above numbered suit also covered under the list of 50 oldest matters
submitted to the Hon'ble High Court, arguments on both the sides
taken as nil. Moreover till today none of the parties made efforts to
address arguments with permission of the court on merits.
Perused the material on record.
10. My findings on the above issues are as under.
Issue No.1 In the negative
Issue No.2 In the negative
Issue No.3 In the affirmative
Issue No.4 In the negative
Issue No.5 As per final orders for the following,
-: R E A S O N S :-
11. Issue No.1 and 2 :- I take these issues together for my
discussion as the facts overlap and for the sake of convenience.
12. It is worth to note that the plaintiffs have filed the above
numbered suit for the relief of partition and separate possession of
their alleged legal share in the suit schedule properties claiming to
be the 2nd wife and children of Late Gurumurthappa. In this regard,
2nd plaintiff has filed an affidavit in lieu of oral evidence, examined
himself as P.W. 1 by reiterating entire averments of the plaint stating
that 1st plaintiff Smt. Sadamma is the 2nd wife and plaintiff No.2 to 5
are the children of Late Gurumurthappa succeeded the schedule
properties as legal heirs along with defendant No.1 to 5 on the
ground that in their first suit O.S. No.2385/1997 filed for the relief of
partition and separate possession, by inadvertence they sought the
18
O.S. No.5854/2002
relief only in respect of Sy.No. 65/2 and 66/2B of K.R. Pura village
and Hobli, Bengaluru South Taluk which came to be ended in
compromise, but they did not include the present schedule properties
in the said suit, accordingly they filed the present suit. In order to
support his oral testimony, P.W. 1 got marked documents at
Ex.P.1 to P.43.
13. But, during the course of cross-examination of P.W. 1 he
has categorically admitted the fact that, 1 st defendant is the legally
wedded wife and defendant No.2 and 3 are the sons of Late
Gurumurthappa and 4th and 5th defendants happens to be
sister-in-law and grandson of Late Gurumurthappa. Further admits
that during the life time of Late Gurumurthappa his wife and sons
were residing in a joint family and first defendant was alive as on the
date of the suit and later on she died. Further admits that, the
documents relating to the suit property were standing in the name of
Late Gurumurthappa and after his death came to be changed in the
name of 3rd defendant and after RRT proceedings now the revenue
records are standing in the name of 2nd and 5th defendant
respectively. Further admits that Sy.No. 66/2 stands in the name of
Late Gurumurthappa till today, but he denied the suggestion that 2nd
and 5th defendant are in possession of the suit property.
14. In his further cross-examination P.W. 1 has voluntarily
stated that, now a portion of the land has been sold by the 5 th
defendant and he is not in possession of any portion of the suit
properties. Again admits that one more suit was filed by one Afiz
Khan against his mother in O.S. No.2517/1989 wherein he has been
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O.S. No.5854/2002
examined as D.W. 1. Further admits that another suit was filed by
him and his mother against present defendants for the relief of
partition in O.S. No.2385/1997 in respect of two properties standing
in the name of Late Gurumurthappa, but it was settled out of court.
In his further cross-examination states that he has produced a
document to show that his mother is the 2 nd wife of Late
Gurumurthappa and to his knowledge marriage was performed in the
year 1966 at Muneshwara temple in the presence of one
Lakshmamma and Narayanappa and now they are no more.
15. Further when a suggestion was put to the witness that his
mother formerly married to one Tekal Munikenchappa in the year
1963, he admits as true and say they lived for about 11 months only
and Kenchappa died in an accident in the year 1963. In this regard
when the copy of depositions of present PW.1/ G. Venkatesh who
deposed in O.S. No.2517/1989 dated 28/01/1998 were being
confronted, he admits as true, accordingly the same was marked as
Ex.D.1, but he deny that in the said deposition he stated as his
mother Sadamma and Kenchappa were living together as husband
and wife for a period of six years and now deposing falsely. Further
admits that his mother belongs to schedule caste and said
T.Kenchappa also belongs to schedule caste, on the other hand
Late Gurumurthappa belongs to Banajiga caste. Further though
admits that his mother Sadamma was residing in the house of
Munikenchappa till his death, but deny that Sadamma and Late
Gurumurthappa were neither married nor lived together as husband
and wife.
20
O.S. No.5854/2002
16. In his further cross-examination admits that, he also called
as Venkatesh @ Srinivas and doing petty business, but deny the
suggestion and himself and his family members are getting the
benefits under the scheme of schedule caste and tribes. In his
further cross-examination admits that no marriage certificate in
between Sadamma and Late Gurumurthappa is available, but to
show that they lived together as husband and wife before 1995
there is a voter list and denied the suggestion that they were not
married and he created Ex.P.35 to 38. Further admits that suit item
No.2 property stands in the name of G. Narayanappa and
G. Srinivas which were purchased by the joint family in their names.
Further states that he is not going to examine his mother in the
present suit. Again admits that his mother sold property panchyath
Katha No.181 in the year 1964-65 to one Gurumurthappa and
admits that Lakshmamma is the wife of Gurumurthappa. Further
admits that he has not made one Sarswathamma and
Padmavathamma other children of Late Gurumurthappa as parties to
the suit nor included house katha No.200 where Lakshmamma was
residing by the side of said property.
17. In order to substantiate their contention GPA holder of
defendant No.2 has filed an affidavit in lieu of oral evidence,
examined himself as D.W. 1 by reproducing entire contentions taken
in their written statements contending that, plaintiffs are neither the
wife/children of Late Gurumurthappa nor the schedule properties are
joint family properties or they are in joint possession and enjoyment
of schedule properties along with defendants 1 to 7 or there is joint
family status or nucleus between the plaintiffs and defendants, as
21
O.S. No.5854/2002
such plaintiffs are not entitled for any of the reliefs and suit is liable to
be dismissed. In order to support his oral testimony, D.W. 1 got
marked documents at Ex.D.1 to D.30. Records reveal that evidence
of D.W. 1 remained unchallenged and unrebutted. In such
circumstances, this court has to appreciate the oral and documentary
evidence available on record only.
18. It is pertinent to note here that, on careful evaluation of
oral and documentary evidence on record we can find that the
original propositus Narasimhaiah had four sons viz., Ramaiah,
Venkataswamappa, Thimmappa and Gurumurthappa. It is also not
in dispute that there was a partition amongst the sons of
Narasimhaiah under a registered partition deed dated 16/09/1947. It
is an admitted fact that Late Gurumurthappa had a wife by name
Lakshmamma who has been arrayed as defendant No.1 in the
present suit and three sons viz., Narayanappa, Srinivasa and
Ramaiah and two daughters defendant No.6 and 7. It is also not in
dispute that the 1st defendant Lakshmamma was the first wife of Late
Gurumurthappa and she was alive as on the date of present suit.
19. It is the case of the plaintiffs that, 1st plaintiff
Smt. Sadamma is the 2nd wife and plaintiff No.2 to 5 are the children
of Late Gurumurthappa stating that marriage of Smt. Sadamma and
Late Gurumurthappa had taken place in a temple in the year 1966,
but P.W. 1 admits that he has not produced supporting documents
except voters I.Ds at Ex.P.35 to 38 which has been seriously
disputed by the other side. Further, the defendants have also
seriously disputed Ex.P.1 genealogical tree relied by the plaintiffs. On
22
O.S. No.5854/2002
perusal of Ex.P.2 and Ex.D.18 death certificates reveal that said
Gurumurthappa died on 18/03/1985/19/03/1985. It is an admitted
fact that, as per entries made in Ex.D.17 death certificate, during the
pendency of the suit first wife of Late Gurumurthappa, by name
Smt. Lakshmamma died on 07/10/2004 itself. So when the
defendants have seriously disputed the relationship of 1st plaintiff
Smt. Sadamma as 2nd wife of Late Gurumurthappa through out the
proceedings, then it is the duty of the plaintiffs to prove that they are
the wife and children of Late Gurumurthappa in accordance with
section 32(5) r/w section 50 of Evidence Act.
20. It is also worth to note that, as against Ex.P.1 genealogical
tree the defendants though produced copy of genealogical tree
issued by the village accountant, K.R. Pura, V.P., Bengaluru East
Taluka and also available in the file, but failed to get mark the same.
It is also equally settled that, according to section 101 of Evidence
Act- burden lies on the plaintiffs to prove their case on basis of
material available, as such they cannot rely on weakness or absence
of defense of defendants to discharge the onus.
21. It is no doubt true that illegitimate children can claim right
over the self acquired property of their father, but it is equally settled
that in order to claim right over the property of their parents as
illegitimate under section 16(1) of Hindu Marriage Act , plaintiffs No.2
to 5 must prove that there should have been solemnization of
marriage between Plaintiff No.1 and Late Gurumurthappa. In the
case on hand though the plaintiffs have filed the suit for partition and
separate possession of their alleged share in the suit schedule
23
O.S. No.5854/2002
properties claiming to be the 2nd wife and children of Late
Gurumurthappa, but the relationship itself has been seriously
disputed by the defendants. In this regard the plaintiff No.1 who had
special means of knowledge claiming to be the second wife of
Gurumurthappa has neither stepped in to the witness box nor
produced supporting oral evidence or documents like invitation card,
Ration card, Voters list as against Ex.D19 relating to the existence
of any relationship of alleged second marriage with Late
Gurumurthappa that too during the subsistence of first marriage with
1st defendant Lakshmamma. If the 1st plaintiff would have entered
into the witness box then the real truth could have been come out,
but what prevented the 1st plaintiff Smt. Sadamma to step in to the
witness box claiming to be the 2nd wife and plaintiff No.2 to 5 are the
children of Late Gurumurthappa has not been explained
satisfactorily.
22. Further, though P.W. 1 has stated before this court that his
mother 1st plaintiff and T. Munikenchappa lived together for only 11
months, but in the cross-examination of P.W. 1 in the present case it
has been elicited that, he himself admitted in O.S. No.2517/1989 as
per deposition marked at Ex.D.1 to the effect that Tekal
Munikenchappa is the first husband of his mother who lived together
for about 6 years after the marriage which took place in the year
1957. Further Ex.D.1 also reflects that his mother and
Munikenchappa belongs to schedule caste and Late
Gurumurthappa married with Lakshmamma and he had three
children viz., Narayanappa, Seenappa and Ramaiah and first wife
Smt. Lakshmamma also alive and he does not know whether
24
O.S. No.5854/2002
marriage between his mother and Gurumurthappa was celebrated
as per Hindu rites and customs. This being the fact P.W. 1 has been
estopped from deposing contrary to the evidence given in earlier
judicial proceedings as referred supra. For these reasons evidence
of P.W. 1 cannot be accepted as worthy of credence. In these
circumstances even no presumption can be drawn with respect to
existence of alleged second marriage of 1 st plaintiff Smt. Sadamma
with late Gurumurthappa as claimed by the plaintiffs.
23. On the other hand DW.1 has deposed before the court
that plaintiffs are not the wife and children of Late Gurumurthappa.
And 1st defendant late Lakshmamma is the first wife of Late
Gurumurthappa, defendant No.2 to 5 are their family members,
which has not been disputed by the plaintiffs and evidence of D.W. 1
also remained unchallenged. As such an adverse inference on this
aspect can validly be drawn against the plaintiffs Smt.Sadamma and
her children.
24. With regard to existence of the properties for partition is
concern, during the course of cross-examination, though plaintiffs
have relied on Ex.P 2 to 29 old RTC, but P.W. 1 has voluntarily
stated that, now a portion of the land has been sold by the
5th defendant and he is not in possession of any portion of the suit
properties. Again admits that one more suit was being filed by one
Afiz Khan against his mother in O.S. No.2517/1989 wherein he has
been examined as D.W. 1 and another suit filed by himself and his
mother against present defendants for the relief of partition in
O.S. No.2385/1997 in respect of two properties Sy. No.65/2 and
25
O.S. No.5854/2002
66/2b standing in the name Timmappa and Late Gurumurthappa,
came to be settled out of court. Further admits that khata number
127/a stands in the name of Munikenchappa. His mother sold house
list No.270 to Gurumurthappa. In Ex.D1 states that said schedule
property has not been included in the present suit.Ex.D5 to 10 are
the RTC pertains to survey No.105/3 stands in the name G. Srinivas
based on Ex.D3 sale deed of the year1978 and also supported by
Ex.D22 decree. It is prima facie evident that, defendant No.8 to 25
are the purchasers of the portion of properties in dispute and they
are enjoying the same. So the material on record indicates that the
plaintiffs have also suppressed the material facts and not come to
the court with clean hands.
25. It is to be noticed that, the defendants have also
specifically contended that suit schedule properties are not belongs
to the joint family and no such properties are available for partition in
the name of Late Gurumurthappa as on the date of the suit. So,
even otherwise though there is a presumption regarding existence of
Hindu Joint Family, but there will be no presumption to the effect that
joint family possesses joint family properties. It is to be noticed that,
admittedly the plaintiffs have not produced any bit of documents to
show that Late Gurumurthappa had ancestral or self acquired
properties as on the date of suit and to show that he married with 1 st
plaintiff Smt. Sadamma in accordance with law and plaintiffs 2 to 5
are the illegitimate children from a void marriage so as to claim right
over the schedule properties along with the defendants 1 to 7. It is
settled that, the prohibition contained in section 16(3) will apply to
such children with respect to property of any person other than their
26
O.S. No.5854/2002
parents. For the aforesaid reasons I am of the opinion that benefit
given under the amended section 16 of the Hindu Marriage Act 1976
cannot be given to the plaintiff Nos.2 to 5.
26. Apart from this, it may be noted that in a suit for partition
all the family properties should be brought in to common hotchpotch
along with necessary parities. On perusal of material available on
record indicates that there were about 5 to 7 civil suits in
OS No.2517/89, OS Mo.2385/97, OS No.5854/02, OS No.508/2003,
OS No.8069/2010, and OS No. 5401/2013 pending before the
different courts. It is the case of the plaintiffs that inadvertently they
did not add the present schedule properties in OS No.2385/1997
filed by them for the similar relief of partition in respect of two
properties referred supra. But, when this court verified the particulars
of the case in e-Courts it is found as no record present. PW.1 admits
that he has also not included some other properties and parties in
the present suit. This being the case whether earlier suit was for
general partition or Partial partition has not been explained. So,
present suit for partition without seeking leave of the court in
previous suit and without adding remaining properties and parties is
also not maintainable and liable to be dismissed. Hence I answer
issue Nos.1 and 2 are in the Negative.
27. Issue No.3:- It is relevant to point out that though the
defendants would contend that the valuation made and court fee
paid by the plaintiffs is insufficient and not proper, but admittedly, it is
27
O.S. No.5854/2002
averred in the plaint that plaintiffs are in joint possession and
enjoyment of suit schedule properties along with defendants 1 to 5,
accordingly they valued the property to the extent of their share at
Rs.3,00,000/- and paid court fee of Rs.200/- as required under
Section 35(2) of Karnataka Court Fees and Suit Valuation Act, which
appears to be proper and correct. Hence, I answer Issue No.3 is in
the affirmative.
28. Issue No. 4:- In view of my discussion made supra while
dealing with Issue No.1 and 2, I come to the conclusion that plaintiffs
have miserably failed to prove that 1st plaintiff is the 2nd wife of the
late Gurumurthappa and plaintiffs No.2 to 5 are the children born out
of the said wedlock during the subsistence of first marriage of 1 st
defendant Smt. Lakshmamma with late Gurumurthappa so as to
succeed the schedule properties said to have exists as on the date
of suit in the name of late Gurumurthappa to claim rights as
illegitimate children as required under the amended provisions of
Section 16 of Hindu Marriage Act. On the other hand, the
defendants discharged by making their version reasonably probable
by adducing oral an documentary evidence before this court. This is
a case of the year 2002. Consequently, suit of the plaintiffs is liable
to be dismissed without cost. Hence, I answer Issue No.4 is in the
Negative.
29. Issue No. 5 :- For the foregoing reasons, I proceed to
pass the following :
28
O.S. No.5854/2002
ORDER
The suit of the plaintiffs is hereby dismissed. There shall be no order as to cost. Draw decree accordingly.
[ Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the Open Court on 16th day of March 2021 ].
[ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ANNEXURE List of witness examined on behalf of Plaintiffs PW.1 Sri. G. Venkatesh List of documents exhibited on behalf of Plaintiffs Ex.P1 Genealogical tree Ex.P2 Death certificate of Gurumurthappa Ex.P3 Death certificate of Narayana Ex.P4to7 Copy of Pahani Ex.P8&9 Tax paid receipts Ex.P10 Preliminary record in Sy.No. 66 Ex.P11 to 21 Copy of Pahani in Sy.No. 66/2 Ex.P22 Copy of mutation Ex.P23 to 32 Copy of Pahanis in Sy.No. 105/1 of Krishnarajapura village Ex.P33 Copy of Hissa tippani Ex.P34 Copy of pahani in Sy.No. 105/3 of Krishnarajapura village Ex.P35 Identification card of Sadamma 29 O.S. No.5854/2002 Ex.P36 Identification card of election of plaintiff Ex.P37 Identity card of election of Smt. G. Muniyamma Ex.P38 Election identity card of G. Narayanaswamy Ex.P39 Postal cover received from Human Rights Commission, Bengaluru to my address dated 25/01/2011 Ex.P40 A cover with address of mine issued by Karnataka Lokayuktha Ex.P41 A cover with address of mine issued by Karnataka Lokayuktha Ex.P42 Assessment extract issued by BBMP, K.R. Puram Division Ex.P43 Certified copy of the sale deed dated 16/01/2012 List of witness examined on behalf of Defendants DW.1 Sri. S. Venugopal List of documents exhibited on behalf of Defendants Ex.D.1 Certified copy of deposition in O.S. No.2517/1989 Ex.D.2 Power of attorney dated 21/07/2012 Ex.D.3 Sale deed dated 10/04/1978 Ex.D.4 to 10 RTC extract Ex.D.11 Copy of orders dated 20/09/2011 passed by Tahasildar Ex.D.12 Copy of the FIR in crime No.366/2011 of K.R. Puram Police Ex.D.13 to 16 Tax paid receipts Ex.D.17 Death certificate of Lakshmamma Ex.D.18 Death certificate of Gurumurthappa Ex.D.19 Certified copy of the voter list of Sanna Thammana Halli, K.R. Puram Taluk Ex.D.20 Certified copy of the order sheet in O.S. No.508/2003 30 O.S. No.5854/2002 Ex.D.21 Copy of the compromise petition in O.S. No.508/2003 Ex.D.22 Certified copy of the decree in O.S. No.508/2003 Ex.D.23 Certified copy of the plaint in O.S. No.5401/2013 Ex.D.24 Certified copy of the written statement in O.S. No.5401/2013 Ex.D.25 Certified copy of order sheet in O.S. No.5401/2013 Ex.D.26 Certified copy of transfer certificate dated 14/09/2013 Ex.D.27 Certified copy of admission register (3 No.s) dated 14/09/2013 Ex.D.28 Certified copy of complaint in HRC No.8835/2010 dated 16/12/2010 Ex.D.29 Certified copy of orders in HRC No.8835/2010 dated 06/01/2011 Ex.D.30 Certified copy of endorsement dated 01/10/2013 issued by K.R. Puram police station [ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 31 O.S. No.5854/2002 Operative portion of the judgment pronounced in open court vide separate judgment:-
The suit of the plaintiffs is hereby dismissed. There shall be no order as to cost. Draw decree accordingly.
[ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU