Bangalore District Court
Mr. D. Manjunath vs Mr. S. Dasappa on 8 June, 2020
1
O.S.No.26968/2013
IN THE COURT OF THE LXXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 08th day of June, 2020.
O.S.No.26968/2013
Plaintiff: 1. Mr. D. Manjunath,
S/o S. Dsappa,
Aged about 30 years,
2. Ms. D. Nirmala @ Hema,
D/o S. Dasappa,
Aged about 35 years,
3. Mr. D. Muniraju,
S/o S. Dasappa,
Aged about 32 years.
All are r/at portion of Premises known
as Shree Manjunathaswamy Nursery,
Near Thavarekere Bus Stop,
Bengaluru29.
2
O.S.No.26968/2013
(Plaintiff Nos.2 & 3 are transposed as
per Order dt.11.12.2018)
[By Sri. K.N.S.,Advocate]
V/s
Defendants: 1. Mr. S. Dasappa,
S/o Late Shamanna @ Shamaiah,
Aged about 63 years.
2. Mrs. Neelamma,
W/o S. Dasappa,
Aged about 55 years.
3. Ms.D.Nirmala @ Hema,
D/o. S.Dasappa,
Aged about 34 years,
4. Mr. D.Muniraju,
S/o. S.Dasappa,
Aged about 32 years,
All are r/at portion of premises known
as Shree Manjunathaswamy Nursery,
Near Thavarekere Bus Stop, Bengaluru
29.
3
O.S.No.26968/2013
[By Sri. H.S.R.P., Advocate for
D1 & D2,
Sri C.P.N.R., Advocate for
D3 & D4]
19.12.2013
Date of Institution of the suit
Nature of the (Suit or pronote, suit
for declaration and possession, suit
Partition Suit
for injunction, etc.)
Date of the commencement of
12.07.2019
recording of the Evidence.
Date on which the Judgment was
08.06.2020
pronounced.
Year/s Month/s Day/s
06 05 19
Total duration
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
4
O.S.No.26968/2013
JUDGMENT
This is the suit, initially filed by the Plaintiff No 1 against the Defendants for the relief of Partition in respect of the Suit Schedule Properties. Plaintiff filed a memo on 02.11.2018, 'Not pressing' the suit. Subsequently, the Defendant Nos 3 & 4 filed an application at IA No 1/13U/O 1 R 10(2) of CPC, praying to permit them to get themselves transposed as Plaintiff Nos 2 & 3. The said application was allowed on 11.12.2018 and the Original Defendant Nos 3 & 4 were transposed as Plaintiff Nos 2 & 3.
2. Facts of the Plaintiff's case are as under:
The Defendant Nos 1 and 2 are the Parents of the Plaintiff and the Defendants Nos 3 & 4.
As per the Registered Partition Deed dated 18.11.2002, the Defendant No 1 received Suit Schedule 5 O.S.No.26968/2013 A to D Properties. The said properties are Ancestral Properties.
Suit Schedule E and H Properties have been acquired out of the Joint Family Funds and the said properties were purchased in the name of the Defendant No 1. Likewise Suit Schedule F Property is acquired in the name of the Defendant No 2, out of the Joint Family Funds.
Suit Schedule G Property is received by the Defendant No 1 in the partition inbetween him, his father and his brother taken place on 31.01.1979.
Yet no partitions have taken place inbetween the Plaintiffs and the Defendants. The Defendant Nos 1 & 2 are aged old, the Defendant No 4, by playing fraud in the family, by misguiding the other Defendants is trying to alienate the properties, with an intention to knock off the same. The Plaintiff resisted the said activities of the Defendant No 4. Even a meeting of the elders were conveyened, wherein the Plaintiff requested the Defendants to affect partition in the Suit Schedule 6 O.S.No.26968/2013 Properties, but the Defendants refused to do so. Hence the Plaintiff is constrained to file the present suit for the relief of Partition.
3. Suit Summons were issued to the Defendants. Initially, due to their absence, the Defendant Nos 1 to 4 were placed "Exparte" on 17.02.2014. Defendant Nos 1 & 2 appeared through their Counsel on 16.06.2014 and the Defendant Nos 3 & 4 appeared through their Counsel on 12.08.2014.
4. The Defendant No 1 has filed his Written Statement on 26.09.2014 and the Defendant No 2 has adopted the contents of the said Written Statement, by filing a Memo on 26.09.2014. The said Defendants have denied all the allegations made by the Plaintiff in the Suit Plaint. They have admitted the relationship inbetween the parties. So also they have admitted that Suit Schedule A to D Properties were received by the Defendant No 1 in the partition dated 18.11.2002 and 7 O.S.No.26968/2013 Suit Schedule G Property is received by the Defendant No 1 in the partition dated 31.01.1979. But specifically deny that Suit Schedule E & H Properties were purchased out of the Joint Family funds in the name of the Defendant No 1 and Suit Schedule F Property is purchased out of the Joint Family funds in the name of the Defendant No 2. It is specifically contended that Suit Schedule E Properties is purchased by the Defendant No 1 under the Registered Saledeed dated 24.06.1999, out of his self earned money, when the Plaintiff was minor; Suit Schedule H Property is purchased by the Defendant No 1 under the Registered Saledeed dated 05.08.1978, out of his self earned money, much prior to the birth of the Plaintiff. Likewise Suit Schedule F Property is purchased by the Defendant No 2 out of her own earnings and money received by her from her parents. So Suit Schedule E & H Properties are the Self Acquired Properties of the Defendant No 1 and Suit Schedule F Property is the Self Acquired Property of the Defendant No 2. The Plaintiff 8 O.S.No.26968/2013 or the Defendant Nos 3 & 4 have absolutely no right and interest over the said properties. So the Plaintiff is not entitle to have partition in the said properties. These defendants were ready to affect partition in Suit Schedule A to D and G Properties, but the Plaintiff refused to have it. Thus prays to dismiss the suit of the Plaintiff.
5. The Defendant Nos 3 & 4 have filed their Written Statement on 03.11.2014 and have denied all the contentions of the Plaintiff, takenup in the Suit Plaint and have specifically contended that Suit Schedule A to D & G Properties have been received by the Defendant No 1 under the partitions, so they are the ancestral properties, which are required to be partitioned and the Suit Schedule E & H properties are the Self Acquired properties of the Defendant No 1, likewise the Suit Schedule F Property is the Self Acquired Property of the Defendant No 2, and the said 9 O.S.No.26968/2013 properties are not liable for partition. Partition be effected in Suit Schedule A to D and G Properties and their shares be awarded. Thus prays to dismiss the suit of the Plaintiff.
6. On the basis of the above said pleadings, my Learned predecessor in office, has framed the following issues on 13.02.2017 as under:
ISSUES
1. Whether the Plaintiff proves that suit schedule properties are the Joint family properties?
2. Whether the Plaintiff proves that he got 1/5th share in the suit schedule properties?
3. Whether the defendants No 1 and 2 prove that item No "E", "F" and "H" suit schedule properties are self acquired properties?
4. Whether the defendants No 1 and 2 are prove that the item No "E", "F" and "H" suit schedule properties are concerned the 10 O.S.No.26968/2013 Plaintiff has no right to claim partition in the schedule properties?
5. Whether the plaintiff is entitled for partition and separate possession of the schedule property? If so, what is his share?
6. To what order or decree?
7. On 02.11.2018, the Plaintiff filed a memo praying to 'Not press' the suit. On the basis of the said memo, the Defendant Nos 3 & 4 filed an application at IA No 1/13U/O 1 R 10(2) of CPC, praying to permit them to get themselves transposed as Plaintiff Nos 2 & 3 and contest the suit. The said application was allowed on 11.12.2018 and the Original Defendant Nos 3 & 4 were transposed as Plaintiff Nos 2 & 3. The said transposed Plaintiff Nos 2 & 3 got amended the suit Plaint. Further they filed an application to amend the Suit Plaint by getting incorporated Para No 12(a) in the Suit Plaint, which was allowed and they were permitted to incorporate the said para, wherein they have 11 O.S.No.26968/2013 contended that Suit Schedule A to D & G Properties are the Ancestral Properties and the Defendants are postponing to effect partition. Further Item Nos E, F and H properties are the self acquired properties of the Defendant Nos 1 & 2.
8. The Plaintiff Nos 2 & 3 inorder to prove their case have got examined Plaintiff No 3 as PW1 and have got marked 5 documents as Ex.P.1 to Ex.P.5. PW1 was cross examined on behalf of the Defendant Nos 1 & 2 on 20.07.2019. Further the Original PlaintiffPlaintiff No 1 got examined himself as PW2. PW2 was cross examined on behalf of the Defendant Nos 1 & 2 on 03.12.2019. The said cross examination made on behalf of the Defendant Nos 1 & 2, were adopted by the Plaintiff Nos 2 & 3 on 03.12.2019.
Per contra Defendant Nos 1 & 2 got examined Defendant No 1 as DW1. DW1 was cross examined on behalf of the Plaintiff No 1 on 14.02.2020. Further DW1 12 O.S.No.26968/2013 was cross examined on behalf of the Plaintiff Nos 2 & 3 on 29.02.2020.
9. Heard the arguments of the Learned Counsels for the Plaintiff Nos 1 to 3, the Defendant Nos 1 & 2, respectively.
10. The suit was initially allotted to CCH29. The same was transferred to CCH 21 on 21.02.2015 by virtue of a notification No PPS (CCC) 68/2014 dated 01.12.2014 of the Principal City Civil and Sessions Judge, Bangalore. Further again the said matter was transferred to this Court on 31.08.2018 by virtue of a notification No ADMI(A) 413/2018 dated 31.07.2018 of the Principal City Civil and Sessions Judge, Bangalore.
11. My findings on the above said issues are as under:
Issue No 1 : Partly in the Affirmative; Issue No 2 : Partly in the Affirmative;
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O.S.No.26968/2013
Issue No 3 : In the Affirmative;
Issue No 4 : In the Affirmative;
Issue No.5 : Partly in the Affirmative;
Issue No.6 : As per final order for the following :R E A S O N S:
12. As per the contentions of the parties to this suit, the undisputed facts are as under:
a) Relationship inbetween the parties are admitted.
That the grandfather of the Plaintiff Nos 1 to 3 by name Shammanna @ Shamaiah was having two sons namely Dassappa and Nagaraj and three daughters; Defendant No 1Dassappa S/O:
Shammanna @ Shamaiah is the father of the Plaintiffs and the Defendant No 2. Inotherwords Defendant Nos 1 & 2 are having two sons Plaintiff Nos 1 & 3 and one daughter Plaintiff No 2.14
O.S.No.26968/2013
b) First partition taken place inbetween the Defendant No 1, his father Shamanna and his brother Nagaraj, as per Partition Deed dated 31.01.1979ExP2.
c) Second partition taken place inbetween the Defendant No 1, his father Shamanna and his brother Nagaraj, as per Partition Deed dated 18.11.2002ExP1.
Relevant events and dates:
1) Purchase of Schedule H Property dt: 05.08.1978.
2) First Partition dt: 31.01.1979.
3) Purchase of Schedule F Property Dt: 26.03.1999.
4) Purchase of Schedule E Property Dt: 24.06.1999.
5) Second Partition Dt: 18.11.2002.
13. ISSUE NOS. 1 & 3:
Both these issues are taken for common discussion, as both the issues are interlinked with each other and inorder to avoid repeatation in the discussion.15
O.S.No.26968/2013 A) INRESPECT OF SUIT SCHEDULE A TO D & G PROPERTIES:
i) The Original PlaintiffPlaintiff No 1, as per his pleadings/Plaint at Page No 3, Para No 4, Line Nos 9 to 11, contends that "Item Nos 1 to 4 mentioned as A to D Schedule is ancestral in nature."
ii) The Transposed Plaintiff Nos 2 & 3Ori Defendant No 3 & 4, as per the amended Pleadings to the Original Plaint, more specifically at Para No 12(a), contend that "the suit schedule Properties at Item No A to D including G are ancestral properties available for partition and defendants are postponing to effect the partition on one or other reasons".
iii) The Defendant Nos 1 & 2, as per their pleadings/Written Statement at Para No 2, contend that "Schedule A to D are fallen to the share of the Ist 16 O.S.No.26968/2013 Defendant in the family partition taken place as per the Registered Partition Deed dated 18.11.2002".
iv) The Plaintiff Nos 2 & 3 have produced the Certified copy of the Registered Partition Deed dated 18.11.2002 at ExP1. As per this document, it is seen that a Partition has taken place inbetween the Defendant No 1; his father Shamanna and his brother Nagaraj and in the said Partition Suit Schedule A to D Properties, which are shown as Schedule B properties are fallen to the share of the Defendant No 1. Partition taken place as per ExP1 is not in dispute.
Further the Plaintiff Nos 2 & 3 have produced the Certified copy of the Registered Partition Deed dated 31.01.1979 at ExP2. As per this document, it is seen that a Partition has taken place inbetween the Defendant No 1; his father Shamanna and his brother Nagaraj and in the said Partition Suit Schedule G Properties, are fallen to the share of the Defendant No 1. Partition taken place as per ExP2 is not in dispute.
17O.S.No.26968/2013
v) Coming to the ocular evidence on this point, more specifically, cross examination of PW1 at Page No 6, Para No 2, which reads as under:
"It is true to suggest that Suit Schedule "A,B,C,D and G" properties are the ancestral properties, received by my father from my grandfather. It is true to suggest that suit schedule "A,B,C,D and G" properties have been received by my father in a Partition Deed inbetween him and his siblings."
As per this evidence, Plaintiff Nos 2 & 3, through Plaintiff No 3 contends that Suit Schedule A to D and G Properties are the Ancestral Properties, received by his father from his grandfather.
Further as per the cross examination of PW2 at Page No 10, Para No 3, which reads as under:
"It is true to suggest that as per ExP1 Partition Deed my grandfather Shamanna again gave Suit Schedule "A" to "D" Properties 18 O.S.No.26968/2013 to my father in the year 2002. It is true to suggest that as per the Partition of the year 2002, Schedule "B" Property, therein was allotted to the share of my fatherDefendant No 1, the said properties are in the form of residential sites."
As per this evidence, the Original PlaintiffPlaintiff No 1 contends that Suit Schedule A to D Properties have been received by his father under the Partition Deed of the year 2002.
Further as per the cross examination of DW1 at Page No 10, Para No 3, which reads as under:
"It is true to suggest that myself and my brother have got partitioned as per Partition Deed dated 18.11.2002, as per ExP1. It is true to suggest that I have received Suit Schedule "A" to "D" Properties under Partition Deed dated 18.11.2002Ex.P1."
As per this evidence, the Defendant Nos 1 & 2, through Defendant No 1 admits that Suit Schedule A to 19 O.S.No.26968/2013 D Properties have been received by him, under the Partition Deed dated 18.11.2002ExP1.
Further as per the cross examination of PW2 at Page No 10, Para No 2, which reads as under:
"It is false to suggest that my father has comeout of the joint family consisting of himself, his father and his siblings by taking his share on 31.01.1979. It is false to suggest that only Suit Schedule "G".
Property was given as a share to my father by his father on 31.01.1979. It is true to suggest that my father was given 5 sites in Sy No 87/2B, which is shown as Suit Schedule "G" Property by my grandfather Shamanna. It is true to suggest that till today Suit Schedule "G" Property is in existence, as sites bearing Nos 18, 19, 20, 21 and 22"
As per this evidence, the Original PlaintiffPlaintiff No 1 though denied that his father came out of the Joint Family consisting of himself, his father and siblings, as per Partition dated 31.01.1979, but admits that his 20 O.S.No.26968/2013 father received Suit Schedule G Property, consisting of five sites in Sy No 87/2B, which are in existence.
Further as per the cross examination of DW1 at Page No 14, Para No 3, which reads as under:
"Suit Schedule "A" to "D" and "G"
Properties are my ancestral properties." As per this evidence, the Defendant Nos 1 & 2, through Defendant No 1 admits that Suit Schedule A to D & G Properties are the Ancestral Properties.
vi) As per the above pleadings and evidence, both documentary and ocular, it can be concluded that the Suit Schedule A to D & G Properties are the Ancestral Properties, received by the Defendant No 1, from his father Shamanna, under two different Partition Deeds ExP1 & ExP2.
B) INRESPECT OF SUIT SCHEDULE E PROPERTY:
i) As per Para No 5 of the Suit Plaint, the Original PlaintiffPlaintiff No 1 contends that the said 21 O.S.No.26968/2013 property is purchased under the deed of registered sale out of Joint family funds, in the name of the Defendant No 1, who being his father and head of the family.
ii) As per Para Nos 3 and 14 of the Written Statement of the Defendant Nos 1 & 2, they contend that the said property is the self acquired property of the Defendant No 1, acquired out of his own earnings, by virtue of a Registered Saledeed dated 24.06.1999.
iii) As per Para No 18 of the Written Statement of the Defendant Nos 3 & 4, who are transposed as Plaintiff Nos 2 & 3, as well as Para No 12A of the Amended Suit Plaint, they contend that the said property is the self acquired property of the Defendant No 1, acquired out of his own earnings and is not available for partition.22
O.S.No.26968/2013
iv) Transposed Plaintiff Nos 2 & 3 have produced the Certified copy of the Registered Saledeed dated 24.06.1999 at ExP3. As per the said document it is seen that S Dasappathe Defendant No 1 has purchased the said property from S Krishnamurthy S/O: Srinivasayya, for the valuable consideration of Rs 2,75,000/. Further this document also evidences that the purchaser has been put into actual possession of the said property on the day of its purchase.
v) Coming to the ocular evidence on this point, more specifically, cross examination of PW1 at Page No 6, Para No 3, which reads as under:
"It is true to suggest that suit schedule "E" propertySy No 31, situate at Kammasandara Agrahar village is purchased by my father, by virtue of registered Saledeed dt. 24.06.1999."
As per this evidence, Transposed Plaintiff No 3 contends that the said property is purchased by his father the Defendant No 1.
23O.S.No.26968/2013 Further as per the cross examination of PW2, at Page No 12, Para No 2, which reads as under:
"It is false to suggest that Suit Schedule "E" Property is purchased by the Defendant No 1 on 24.06.1999, out of his own earning. Witness volunteers that the said property is given by my (his) grandfather to my (his) father. I have produced the said documents in this case. It is false to suggest that I am deposing falsely that I have produced the documents in this case to show that the said property is given by my grandfather to my father."
As per this evidence, the Original PlaintiffPlaintiff No 1 contends that Suit Schedule "E" Property is given by his grandfather to his father and the same is not purchased by his father under Registered Saledeed dated 24.06.1999. Here two things can be cult out, firstly, that the Plaintiff No 1 contends that, his grandfather has given the Schedule E Property to his father and his father has not purchased the same. But 24 O.S.No.26968/2013 the same is totally contradictory to the documentary evidence ExP3Saledeed dated 24.06.1999, which says that the Defendant No 1 has purchased the said property from S Krishnamurthy S/O: Srinivasayya, for the valuable consideration of Rs 2,75,000/.
And Secondly, the contention takenup by the Plaintiff No 1, in evidence is totally contradictory to the contention takenup by him in the Original Suit Plaint, that the said property is purchased under the deed of registered sale out of Joint family funds, in the name of the Defendant No 1, who being his father and head of the family.
vi) Further as per ExP3, it is seen that Schedule E Property is purchased on 24.06.1999 and the age of the Defendant No 1, under the said saledeed is shown to be 45 years.
Inorder to ascertain the age factor of the Plaintiffs, at the time of acquisition of the said property, now we 25 O.S.No.26968/2013 will advert to the ocular evidence, more specifically, cross examination of PW1 at Page No 7, Para No 2, which reads as under:
"It is true to suggest that my father is running a plant Nursery under the name and style as Manjunath Nursery. Out of his earnings from the said nursery, he has purchased suit schedule "E" and "H"
properties. It is true to suggest that as on the date of purchase of suit schedule "E" and "H" properties, myself, my brother Manjunath and my sister Nirmala were minors and non earning members of the family."
As per this evidence, Transposed Plaintiff No 3 contends that all the Plaintiffs were minors and non earning members of the family, when Schedule E Property came to be purchased by his father the Defendant No 1.
Further as per the cross examination of PW2, at Page No 12, Para No 4, which reads as under:
26O.S.No.26968/2013 "It is true to suggest that as on the date of purchase of "H" Property by my father I have not born. It is true to suggest that at the time of purchase of Schedule "E" and "F" Properties by my father and mother respectively, I was minor and was studying in 7th standard."
As per this evidence, Original Plaintiff Plaintiff No 1 admits that he was minor when his father purchased the Schedule E property.
Further as per the cross examination of PW2, at Page No 12, Para No 3, which reads as under:
"I do not have any document to show that I have contributed my father and my mother towards the purchase of Suit Schedule "E", "F" and "H" Properties."
As per this evidence, Original Plaintiff Plaintiff No 1 admits that he has not contributed to his father towards purchase of the Schedule E property.
27O.S.No.26968/2013
vii) So as per the above ocular and documentary evidence, it can be concluded that the Original Plaintiff Plaintiff No 1 has firstly, failed to prove that Schedule E Property is purchased in the name of his father, out of the Joint family funds. And Secondly, he has failed to show that the said property is given to his father by his grandfather.
viii) As per ExP3, Schedule E Property is purchased on 24.06.1999. And admittedly second partition has taken place inbetween the Defendant No 1, his father and his brother on 18.11.2002, as per ExP1. If this property was purchased by the grandfather of the Original PlaintiffPlaintiff No 1, in the name of the father of the Original PlaintiffPlaintiff No 1, then this property would have been included in the said partition. When the same is not included, it goes without saying that the said property is the Self acquired property of the Defendant No 1.
28O.S.No.26968/2013
ix) Thus to conclude, the Original Plaintiff Plaintiff No 1 has failed to show that the said property is either acquired out of joint family funds or is acquired by his grandfather in the name of his father, but the said property is purchased by the Defendant No 1 under the Registered Saledeed dated 24.06.1999 ExP3, so it is the self acquired property of the Defendant No 1.
C) INRESPECT OF SUIT SCHEDULE F PROPERTY:
i) As per Para No 6 of the Suit Plaint, the Original PlaintiffPlaintiff No 1 contends that the said property is purchased under the deed of registered sale out of Joint family funds, in the name of the Defendant No 2, out of love and affection.
ii) As per Para Nos 4 and 15 of the Written Statement of the Defendant Nos 1 & 2, they contend that the said property is the self acquired property of 29 O.S.No.26968/2013 the Defendant No 2, acquired out of her own earnings and funds received by her from her father's family, by virtue of a Registered Saledeed dated 26.03.1999.
iii) As per Para No 18 of the Written Statement of the Defendant Nos 3 & 4, who are transposed as Plaintiff Nos 2 & 3, as well as Para No 12A of the Ammended Suit Plaint, they contend that the said property is the self acquired property of the Defendant No 2, acquired out of her own earnings and is not available for partition.
iv) Transposed Plaintiff Nos 2 & 3 have produced the Certified copy of the Registered Saledeed dated 26.03.1999 at ExP4. As per the said document it is seen that Neelammathe Defendant No 2 has purchased the said property from Smt Jayalaxmamma W/O: B P Papanna Reddy, for the valuable consideration of Rs 3,88,000/. Further this document 30 O.S.No.26968/2013 also evidences that the purchaser has been put into possession of the said property on the day of its purchase.
v) Coming to the ocular evidence on this point, more specifically, cross examination of PW1 at Page No 7, Para No 1, which reads as under:
"It is true to suggest that suit schedule "F" property, situate at Tavarekere village is purchased by my mother, with the financial assistance from her parental house, by virtue of registered Saledeed dt. 26.03.1999ExP4."
As per this evidence, Transposed Plaintiff No 3 contends that the said property is purchased by her mother the Defendant No 2, with the financial assistance of her parental side.
Further as per the cross examination of PW2, at Page No 11, Para No 3, which reads as under:
31O.S.No.26968/2013 "It is false to suggest that Suit Schedule "F" Property is purchased by the Defendant No 2 on 26.03.1999, out of her own earnings and the amount received by her from her father. Witness volunteers that the said property is given by my (his) grandfather to my (his) mother. I have produced the said documents in this case. It is false to suggest that I am deposing falsely that I have produced the documents in this case to show that the said property is given by my grandfather to my mother." As per this evidence, the Original PlaintiffPlaintiff No 1 contends that Suit Schedule "F" Property is given by his grandfather to his mother and the same is not purchased by his mother under Registered Saledeed dated 26.03.1999. Here two things can be cult out, firstly, that the Plaintiff No 1 contends that, his grandfather has given the Schedule F Property to his mother and his mother has not purchased the same. But the same is totally contradictory to the documentary evidence ExP4Saledeed dated 26.03.1999, which says that the Defendant No 2 has purchased the said 32 O.S.No.26968/2013 property from Smt Jayalaxmamma W/O: B P Pappanna Reddy, for the valuable consideration of Rs 3,88,000/.
And Secondly, the contention takenup by the Plaintiff No 1, in evidence is totally contradictory to the contention takenup by him in the Original Suit Plaint, that the said property is purchased under the deed of registered sale out of Joint family funds, in the name of the Defendant No 2, out of love and affection.
vi) Further as per ExP4, it is seen that Schedule F Property is purchased on 26.03.1999 and the age of the Defendant No 2, under the said saledeed is shown to be 34 years.
Inorder to ascertain the age factor of the Plaintiffs, at the time of acquisition of the said property, now we will advert to the ocular evidence, more specifically, the cross examination of PW2, at Page No 12, Para No 4, which reads as under:
"It is true to suggest that as on the date of purchase of "H" Property by my father I 33 O.S.No.26968/2013 have not born. It is true to suggest that at the time of purchase of Schedule "E" and "F"
Properties by my father and mother respectively, I was minor and was studying in 7th standard."
As per this evidence, Original Plaintiff Plaintiff No 1 admits that he was minor when his father purchased the Schedule F property.
Further as per the cross examination of PW2, at Page No 12, Para No 3, which reads as under:
"I do not have any document to show that I have contributed my father and my mother towards the purchase of Suit Schedule "E", "F" and "H" Properties."
As per this evidence, Original Plaintiff Plaintiff No 1 admits that he has not contributed to his mother towards purchase of the Schedule F property.
vii) So as per the above ocular and documentary evidence, it can be concluded that the Original Plaintiff 34 O.S.No.26968/2013 Plaintiff No 1 has firstly, failed to prove that Schedule F Property is purchased in the name of his mother, out of the Joint family funds, out of love and affection. And Secondly, he has failed to show that the said property is given to his mother by his grandfather.
viii) As per ExP4, Schedule F Property is purchased on 26.03.1999. And admittedly second partition has taken place inbetween the Defendant No 1, his father and his brother on 18.11.2002, as per ExP1. If this property was purchased by the grandfather of the Original PlaintiffPlaintiff No 1, in the name of the mother of the Original PlaintiffPlaintiff No 1, then this property would have been included in the said partition. When the same is not included, it goes without saying that the said property is the Self acquired property of the Defendant No 2.
ix) Thus to conclude, the Original Plaintiff Plaintiff No 1 has failed to show that the said property 35 O.S.No.26968/2013 is either acquired out of joint family funds or is acquired by his grandfather in the name of his mother, but the said property is purchased by the Defendant No 2 under the Registered Saledeed dated 26.03.1999 ExP4, so it is the self acquired property of the Defendant No 2.
D) INRESPECT OF SUIT SCHEDULE H PROPERTY:
i) The Original PlaintiffPlaintiff No 1 contends that the said property is purchased under the deed of registered sale out of Joint family funds, in the name of the Defendant No 1, who being his father and head of the family.
ii) As per Para Nos 3 and 14 of the Written Statement of the Defendant Nos 1 & 2, they contend that the said property is the self acquired property of the Defendant No 1, acquired out of his own earnings, by virtue of a Registered Saledeed dated 05.08.1978.36
O.S.No.26968/2013
iii) As per Para No 18 of the Written Statement of the Defendant Nos 3 & 4, who are transposed as Plaintiff Nos 2 & 3, as well as Para No 12A of the Ammended Suit Plaint, they contend that the said property is the self acquired property of the Defendant No 1, acquired out of his own earnings and is not available for partition.
iv) Transposed Plaintiff Nos 2 & 3 have produced the Certified copy of the Registered Saledeed dated 05.08.1978 at ExP5. As per the said document it is seen that S Dasappathe Defendant No 1 has purchased the said property from Y S Venkataraman, for the valuable consideration of Rs 1,000/. Further this document also evidences that the purchaser has been put into possession of the said property on the day of its purchase.
37O.S.No.26968/2013
v) Coming to the ocular evidence on this point, more specifically, cross examination of PW1 at Page No 6, Para No 4, which reads as under:
"It is true to suggest that suit schedule "H" propertyproperty No 83/6, situate at Tavarekere village is purchased by my father, by virtue of registered Saledeed dt. 05.08.1978."
As per this evidence, Transposed Plaintiff No 3 contends that the said property is purchased by his father the Defendant No 1.
Further as per the cross examination of PW2, at Page No 11, Para No 2, which reads as under:
"It is false to suggest that Suit Schedule "H" Property is purchased by the Defendant No 1 on 05.08.1978, out of his own earning. Witness volunteers that the said property is given by my (his) grandfather to my (his) father. I have produced the said documents in this case. It is false to suggest that I am deposing 38 O.S.No.26968/2013 falsely that I have produced the documents in this case to show that the said property is given by my grandfather to my father."
As per this evidence, the Original PlaintiffPlaintiff No 1 contends that Suit Schedule "H" Property is given by his grandfather to his father and the same is not purchased by his father under Registered Saledeed dated 05.08.1978. Here two things can be cult out, firstly, that the Plaintiff No 1 contends that, his grandfather has given the Schedule H Property to his father and his father has not purchased the same. But the same is totally contradictory to the documentary evidence ExP5Saledeed dated 05.08.1978, which says that the Defendant No 1 has purchased the said property from Y S Venkataraman, for the valuable consideration of Rs 1,000/.
And Secondly, the contention takenup by the Plaintiff No 1, in evidence is totally contradictory to the contention takenup by him in the Original Suit Plaint, that the said property is purchased under the deed of 39 O.S.No.26968/2013 registered sale out of Joint family funds, in the name of the Defendant No 1, who being his father and head of the family.
vi) Further as per ExP5, it is seen that Schedule H Property is purchased on 05.08.1978 and the age of the Defendant No 1, under the said saledeed is shown to be 24 years.
Inorder to ascertain the age factor of the Plaintiffs, at the time of acquisition of the said property, now we will advert to the ocular evidence, more specifically, cross examination of PW1 at Page No 7, Para No 2, which reads as under:
"It is true to suggest that my father is running a plant Nursery under the name and style as Manjunath Nursery. Out of his earnings from the said nursery, he has purchased suit schedule "E" and "H"
properties. It is true to suggest that as on the date of purchase of suit schedule "E" and "H" properties, myself, my brother 40 O.S.No.26968/2013 Manjunath and my sister Nirmala were minors and non earning members of the family."
As per this evidence, Transposed Plaintiff No 3 contends that all the Plaintiffs were minors and non earning members of the family, when Schedule H Property came to be purchased by his father the Defendant No 1.
Further as per the cross examination of PW2, at Page No 12, Para No 4, which reads as under:
"It is true to suggest that as on the date of purchase of "H" Property by my father I have not born. It is true to suggest that at the time of purchase of Schedule "E" and "F"
Properties by my father and mother respectively, I was minor and was studying in 7th standard."
As per this evidence, Original Plaintiff Plaintiff No 1 admits that he was not born when his father purchased the Schedule H property.
41O.S.No.26968/2013 Further as per the cross examination of PW2, at Page No 12, Para No 3, which reads as under:
"I do not have any document to show that I have contributed my father and my mother towards the purchase of Suit Schedule "E", "F" and "H" Properties."
As per this evidence, Original Plaintiff Plaintiff No 1 admits that he has not contributed to his father towards purchase of the Schedule H property.
vii) So as per the above ocular and documentary evidence, it can be concluded that the Original Plaintiff Plaintiff No 1 has firstly, failed to prove that Schedule H Property is purchased in the name of his father, out of the Joint family funds. And Secondly, he has failed to show that the said property is given to his father by his grandfather.
viii) As per ExP5, Schedule H Property is purchased on 05.08.1978. And admittedly both the 42 O.S.No.26968/2013 partitions inbetween the father of the Plaintiff No 1, his grandfather and uncle has taken place on 31.01.1979 as per ExP2 and on 18.11.2002 as per ExP1. If this property was purchased by the grandfather of the Original PlaintiffPlaintiff No 1, in the name of the father of the Original PlaintiffPlaintiff No 1, then this property would have been included in the said partitions. When the same is not included, it goes without saying that the said property is the Self acquired property of the Defendant No 1.
Further the Learned Counsel for the Plaintiff No 1 would contend by placing his reliance to the recitals in Para No 2, Page No 4 of the ExP1Partition Deed dated 18.11.2002 that, Schedule H Property is the Joint Family Property. On perusal of the said recitals there is no any mention specifically about Schedule H Property, contending to be the Joint Family Property. But as per the recitals of Para No 2 of Page No 7 of ExP1Partition Deed dated 18.11.2002, wherein it is seen that there is a recital contending that the parties to the said 43 O.S.No.26968/2013 document have acquired separate properties, that will be treated as their self acquired properties and other respective executors of the said document, will not have any right over such acquired properties.
ix) Thus to conclude, the Original Plaintiff Plaintiff No 1 has failed to show that the said property is either acquired out of joint family funds or is acquired by his grandfather in the name of his father, but the said property is purchased by the Defendant No 1 under the Registered Saledeed dated 05.08.1978 ExP5, so it is the self acquired property of the Defendant No 1.
14. Thus the Plaintiffs have proved that Suit Schedule A to D & G properties are the Ancestral properties. And the Defendant Nos 1 & 2 have proved that the Suit Schedule E & H properties are the Self Acquired Properties of the Defendant No 1 and Suit 44 O.S.No.26968/2013 Schedule F Property is the Self Acquired Property of the Defendant No 2. Hence I am constrained to answer ISSUE NO 1 PARTLY IN THE AFFIRMATIVE AND ISSUE NO 3 IN THE AFFIRMATIVE.
15. ISSUE NOS 2, 4 & 5:
Since these three issues are interlinked with eachother, inorder to avoid repeatation and to have brevity in the discussion, the said issues are taken, at once for their discussion.
The Plaintiffs have shown that the Suit Schedule A to D and G Properties are the Ancestral properties, received by the Defendant No 1.
16. When the properties are in existence and has not been disposedoff, as on the day of birth of the Plaintiffs, then the said properties become an ancestral properties for the Plaintiffs and the Plaintiffs become the 45 O.S.No.26968/2013 coparcener and will be entitled to have share in it, alongwith their father the Defendant No 1.
As per Section 6 of Hindu Succession Act, which deals with "devolution of interest in coparcenery property".
The Principle underlying in this provision is that, so long as on partition, a share of ancestral property remains in the hand of a single person, it has to be treated as a seperate property and such a person shall be entitled to dispose of the coparcenary property, treating it to be his separate property and if a son is subsequently born, the alienation made before the birth cannot be questioned. But the movement a son is born, the property becomes a coparcenary property and the son would acquire an interest in that and become a coparcener. I find support to my above view as per the decision of the Hon'ble Apex Court in the case of Rohit Chauhan Vs Surinder Singh and Others; reported in (2013) 9 SCC 419, wherein it is held that, 46 O.S.No.26968/2013 "Coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. 'Coparcenary' is a narrower body than the Joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcenary has no definite share in the coparcenary property, but he has an undivided interest in it and it enlarges by deaths and diminishes by births in the family. It is not Static".
"So long as on partition, a share of ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property and if a son is subsequently born, the alienation made before the birth cannot be questioned. But the movement 47 O.S.No.26968/2013 a son is born, the property becomes a coparcenary property and the son would acquire an interest in that and become a coparcener."
Admittedly Plaintiff Nos 1 & 3 are the sons and the Plaintiff No 2 is the daughter of the Defendant Nos 1 & 2. When the Defendant No 1father is alive, the Plaintiff No 2, being the daughter, she will become a Coparcener, within the meaning of Amended provisions Section 6 of the Hindu Succession (Amendment) Act, 2005. Since Defendant No 2 is the wife of the Defendant No 1, she will not become a Coparcenar, within the meaning of the Amended provisionsSection 6 of the Hindu Succession (Amendment) Act, 2005.
Admittedly, Defendant No 1 acquired the said properties in partitions, so the said properties form the Coparcenary Properties, to the Plaintiffs and the Defendant No 1. Therefore the Plaintiffs and the Defendant No 1 will be entitle to have 1/4 th share, each in the said Suit Schedule A to D & G Properties.
48O.S.No.26968/2013
17. The Defendant Nos 1 & 2 have shown that the Suit Schedule E & H Properties and Suit Schedule F Property is the self acquired properties of the Defendant Nos 1 & 2, respectively, so they will not become the subject matter of partition. Thus the Plaintiffs will not be entitled to have any share in the said properties.
Hence I am constrained to answer ISSUE NOS 2 & 5 PARTLY IN THE AFFIRMATIVE AND ISSUE NO 4 IN THE AFFIRMATIVE.
18. ISSUE NO. 6:
In view of my findings on Issue Nos.1, 2 & 5 Partly in the Affirmative; and Issue Nos 3 & 4 in the Affirmative, so the Plaintiffs will be entitle to have partition in the Suit Schedule A to D & G Properties, to the extent of 1/4th share each. So also Defendant No 1 is entitle to have 1/4th share in the Suit Schedule A to D 49 O.S.No.26968/2013 & G Properties. But, the Plaintiffs will not be entitled to have partition in the Suit Schedule E, F & H Properties. Hence, I proceed to pass the following:
ORDER Suit of the Plaintiffs is Decreed in part.
Plaintiffs are declared to have 1/4th share each, in the Suit Schedule A to D & G Properties.
Likewise, the Defendant No 1 is entitle to have 1/4th share in the Suit Schedule A to D & G Properties.
Partition in Suit Schedule A to D & G Properties be effected, as per Partition Act.
Suit Schedule E & H Properties are declared to be the Self Acquired Properties of the Defendant No 1.
50
O.S.No.26968/2013
Suit Schedule F Property is
declared to be the Self Acquired Property of the Defendant No 2.
Looking to the relationship inbetween the parties, both the parties to bear their own costs.
Draw Preliminary Decree,
accordingly.
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 08th day of June, 2020) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 51 O.S.No.26968/2013 SUIT SCHEDULE APROPERTY:
All that piece and parcel of property measuring East to West on Northern side 23.9 ft., Southern side 24 ft., North to South 147 ft., in all 3,509.6 sq.ft., residential building in respect of property formed in Sy.No.99/1A & 99/2, western side now the property BBMP Ward No.66, Thavarekere, Bengaluru, bounded on:
East by : 20ft road thereafter 'C' schedule property of T.S. Nagaraj; West by : Property House No.45, North by : 'B' schedule property & remaining land South by : Govt. land.
Suit schedule Bproperty:
All that piece and parcel of property measuring East to West on Northern side 28.6 ft., Southern side 27.9 ft., North to South 137.6 ft., in all 3,867 sq.ft., in respect of property formed in Old Sy.No.99/1A & 99/2, eastern side now under BBMP limit under Ward No.66, Thavarekere, Bengaluru, bounded on:
East by : 20ft road thereafter 'C' 52 O.S.No.26968/2013 schedule property of T.S. Nagaraj; West by : Property belonged to Muniyappa, North by : 20 ft Road;
South by : 'B' schedule property belonged to S. Dasappa & remaining land.
Suit schedule Cproperty:
All that piece and parcel of property measuring East to West on Northern side 27.0 ft., Southern side 28.3 ft., North to South 233 ft., in all 6,436.6 sq.ft., in respect of property formed in Old Sy.No.99/1A & 99/2, western side present BBMP Ward No.66, Thavarekere, Bengaluru, bounded on:
East by : 20ft road thereafter 'C' schedule property of T.S. Nagaraj; West by : Property belonged to Muniyappa;
North by : Property belonged to Neelamma;
South by : 20 ft Road.
Suit schedule Dproperty:
All that piece and parcel of property measuring East to West on Northern side 48 ft., Southern side 58 ft., North to South Eastern side 187 ft., Westrn side 53 O.S.No.26968/2013 153 ft., in all 9,010.0 sq.ft., with residential building in respect of property formed in Sy.No.101/B, eastern side now Corporation BBMP Ward No.66, Thavarekere, Bengaluru, bounded on:
East by : Property belonged to Muniyappa; West by : 20ft road thereafter 'C' schedule property of T.S.Nagaraj;
North by : Private property;
South by : Thavarekere Main Road.
SCHEDULE ' E ' All that piece and parcel of property measuring 1 Acre 14Guntas of land Southern side of property out of total extent 2 Acre 28 Guntas in respect of Sy.No.31, Kammasandra Agrahara Village, Kasaba Hobli, Anekal Taluk, Bengaluru Rural District, bounded on:
East by : Property belonged to Suresh West by : Bengaluru Anekal Road North by : Portion of the same property South by : Property belonged to Suresh SCHEDULE ' F ' All that piece and parcel of property bearing No.7, of property No.101/3 of property No. 101/23 Corporation Ward No. 66, Old No.58, Thavarekere, 54 O.S.No.26968/2013 Bengaluru measuring East to West 32 ft, North to South 56 ft., bounded on:
East by : Sumithramma's Property No.8 West by : Remaining property of the same number North by : 30 ft road
South by : Property belonged to Shamanna.
SCHEDULE ' G ' The properties bearing site No.18, 19, 20, 21 & 22 formed in Sy.No.87/2B, situated at Chikka Adugodi Thavarekere village, Begur Hobli, now under the BBMP Division No.35 measuring East to West 135 ft, North to South 40 ft., bounded on:
East by : Private property of Ramappa
West by : 'A' schedule property
North by : Private Property of Mr.Venkatappa
South by : 22 ft wide road.
SCHEDULE ' H '
Property bearing site No.83/6 measuring 33 x 75 ft in total 2,475 sq., ft., situated at 1st cross, Thavarekere village, Ward No.66, PID No.661483/6, Madivala, Bengaluru bounded on:
East by : Private Property 55 O.S.No.26968/2013 West by : Private Property North by : Private Property South by : Road [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 56 O.S.No.26968/2013 ANNEXURES: LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: D.Muniraju PW.2 : D.Manjunath LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P.1: Certified copy of the Partition deed dt:18.11.2002.
Ex.P.2: Certified copy of the Partition deed dt:3101 1979.
Ex.P.3: Certified copy of the Registered Saledeed dt:24.06.1999.
Ex.P.4: Certified copy of the Registered Saledeed dt:26.03.1999.
Ex.P.5: Certified copy of the Registered Saledeed dt:05.08.1978.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1: Dasappa.57
O.S.No.26968/2013 LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Nil [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)