Bangalore District Court
Is Not Maintainable Either In Law Or On ... vs Continued In The Joint Possession Is ... on 30 August, 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 30th day of August, 2021.
O.S.1902/2013
BETWEEN
Smt. Rajeshwari
D/o Srirama,
Aged about 40 years,
R/at No.25, II Cross,
II Main, Vinayakanagar,
Wlsongarden,
Bengaluru-30. Plaintiff
( By Sri. KSK. Adv.,)
AND
1. Srirama
Dead LRS by D2 and D3
S/o Late Chikkanna,
2. Smt. Laxmamma
W/o Srirama,
Aged about 60 years,
3. Sri Yathish
S/o Srirama,
Aged about 45 years,
All are R/at No.1489-36/2
Old No.11th Cross, New No.6th Cross,
C Block, II Stage, Prakashnagar,
Rajajinagar, Bengaluru. Defendants
( D.2/D3 -By Sri. HNP/HM advocate)
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O.S. No.1902/2013
Date of institution of the Suit : 08/03/2013
Nature of the Suit : Partition and separate possession
Date of commencement of
: 15/03/2017
recording of evidence
Date on which the Judgment was
: 30/08/2021
pronounced
Year Months Days
Total Duration :
08 05 22
[ 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 plaintiff against the defendants for the
relief of partition and separate possession of her 1/3rd share in the
suit schedule property along with cost and other reliefs.
2. The brief facts are as under :
That, the defendant no.1 and 2 are the father and mother of
the plaintiff and defendant no.3 is the younger brother of the plaintiff.
The plaintiff and defendants have constituted Hind Undivided Joint
Family and are governed by Hindu Mithakashara School of Law.
Further it is averred that defendant no.1 being the eldest member
and kartha of the family has been managing the joint family with the
assistance of the plaintiff/youngest daughter who lived at No.37, 9 th
Cross, 1st Main, S.R. Nagar, Bengaluru. Further the plaintiff has
helped the joint family and out of the joint family income the
defendant no.1 being the kartha has purchased the property
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O.S. No.1902/2013
No.1489/36/2, old no.11th Cross, New No.6th Cross, C Block, II
Stage, Prakashnagar, Rajajinagar, Bengaluru and build house/suit
schedule property. Further it is averred that, the defendant no.1 was
working at Government Press and now retired. The plaintiff married
in the year 1992, but plaintiff and defendants are in joint possession
and enjoyment of the suit schedule property. The suit schedule
property is the joint family property , but the defendants are acting
detrimental to the interest of the plaintiff, as such she requested and
demanded for partition and separate possession of 1/3 rd share over
suit schedule property in the month of December 2012 they refused.
Cause of action arose to file the suit on 02/12/2012 when plaintiff
demanded for partition and separate possession and subsequent
dates. Accordingly plaintiff has filed this suit for relief of partition
and separate possession. On these grounds plaintiff prayed for
decreeing the suit.
3. Records reveal that during the pendency of the suit
defendant No.1/father of plaintiff reported to be dead on 21/06/2016
stating that his L.Rs are already on record. It is contended in the
written statement filed by the defendant no.2 and 3 that, suit of the
plaintiff is not maintainable either in law or on facts is liable to be
dismissed with exemplary cost. The plaintiff has suppressed
material facts and made various false statement in the plaint. The
averments made in the para 2 of the plaint regarding the relationship
is true. However the allegation that the plaintiff and defendants
have constituted a Hindu Joint Family is denied and there is no joint
family. Further averments made in para-3 of the plaint are denied as
false. As marriage of the plaintiff was performed by the defendant
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O.S. No.1902/2013
no.1 by spending huge expenses and she has not helped the family
as alleged in the plaint. Further allegations that the schedule
property purchased out of joint family income is absolutely false. On
the other hand the defendant no.1 has purchased out of his income
on 05.01.1979 when plaintiff was aged about 8 years and thereafter
he has improved the same at huge expenses. Further in the year
1999 the defendant no.1 demolished the old house and constructed
a new house by borrowing money for acquisition of the property and
construction of the building. As such defendant no.1 was absolute
owner of the property and it is his self acquired property and not
belongs to joint family.
4. Further contended that, after the marriage, the plaintiff was
residing with her husband. As such she did not have any joint
possession over the property. The allegations that the plaintiff and
defendants continued in the joint possession is false. On the other
hand the property had been in continues possession of the
defendant no.1 and his wife and son. As such allegation of the
plaintiff that, defendants are acting detrimental to her interest is
incorrect. Further plaintiff has not demanded any partition and the
allegation made in the plaint are false and incorrect and defendants
have no reasons to alienate the suit schedule property/house they
are residing. Further defendants specifically contended that, the
defendant no.1 being owner of the property and out of the love and
affection over the grand children he gifted the property to Y.Shreyas,
aged about 12 years son of defendant no.3 and Y. Yoghisha, aged
about 8 years another son of defendant no.3 in the registered gift
deed dated 26.06.2013 and donees are represented by
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guardians/defendant no.3, as such the minor sons of defendant no.3
have become lawful owners of the property by virtue of the gift deed.
The suit of the plaintiff is not maintainable without seeking relief of
possession. The suit is bad for non joinder of necessary parties. No
cause of action arose to file the suit. On these grounds prayed for
dismissal of this suit with exemplary costs.
5. On the basis of the above pleadings, my learned
predecessor in office has framed the following issues-
1) Whether the plaintiff proves that the suit
schedule properties are the joint family properties
of the plaintiff and defendants ?
2) Whether the defendants prove that the suit of
the plaintiff is bad for non joinder of necessary
parties ?
3) Whether the defendants prove that court fee
paid is insufficient ?
4) Whether the plaintiff is entitled for the reliefs
sought for ?
5) What Order?
6. In order to prove her case plaintiff examined herself as
PW-1 and got marked the documents at Ex.P.1 and P2. On the
other hand the defendant No.3 examined himself as DW-1 and got
marked Ex. D-1 to 13 and also examined a witness as DW.2.
7. Heard and perused the material on record.
8. My findings on the above issues are as under:-
Issue No.1: In the negative
Issue No.2: In the Affirmative
Issue No.3: In the negative
Issue No.4: In the negative
Issue No.5: As per final order for the
following:
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-: R E A S O N S :-
9. ISSUE No.1 :- It is worth to note that the plaintiff being
the daughter of defendant No.1 and 2 and sister of defendant No.3
has filed the above numbered suit for the relief of partition and
separate possession of her legal share in the suit schedule property.
In this regard, plaintiff has filed an affidavit in lieu of oral evidence,
examined herself as P.W. 1 by reiterating entire averments of the
plaint stating that herself and defendants constituted Hindu joint
family and suit schedule property is the joint family property. Further
states that, she has helped the joint family and out of the joint family
income the defendant no.1 being the kartha has purchased the
property and built house in the suit schedule property. Further states
that, the defendant no.1 late father Sriram was working at
Government Press and retired. She married in the year 1992, but
herself and defendants are in joint possession and enjoyment of
the suit schedule property, but the defendants are acting detrimental
to her interest and when she demanded for partition and separate
possession of 1/3rd share over suit schedule property in the month of
December 2012 they refused, accordingly she has filed the suit. In
order to support her oral testimony, P.W. 1 got marked documents at
Ex.P.1 and 2.
10. But during the course of cross-examination P.W. 1 has
categorically admitted the fact that, her marriage was performed in
the year 1991 and prior to the marriage she was residing at S.R.
Nagar and Kumaraswamy Layout Bengaluru. Further when a
question was put to the witness that in which year her father
purchased the schedule property, she pleads ignorance and
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O.S. No.1902/2013
volunteers that he was a government servant and does not know
when he retired from the service. Further admits that when her
father purchased the schedule property by availing loan there were
four row tiled houses and after his retirement her father constructed
a building, but the witness answered that she never visited the
parental house after her marriage.
11. In her further cross-examination P.W. 1 has specifically
admitted the fact that her grandfather Chikkanna had no family
property and suit schedule property is the self acquired property of
her late father Sriram /1st defendant. Further when a suggestion was
put to the witness that her father has already gifted the schedule
property under a Gift Deed dated 26/06/2013 in favour of
grandchildren i.e. children of defendant No.3 brother, she states that
she asked for partition of the schedule property in the month of
February and they executed Gift Deed in the month of June 2013,
thereafter her father died on 02/08/2013, but denied the suggestion
that she has no share in the suit schedule property.
12. In order to substantiate their contention the 3 rd defendant
filed an affidavit in lieu of oral evidence by reproducing the
contentions taken in the written statement, examined himself as P.W.
1 stating that since from the date of marriage plaintiff has been
residing with her husband and there is no joint family, 1 st defendant
was the absolute owner of the property purchased on 05/01/1979
and it is his self acquired property and he is also supporting for
maintenance of the family by driving an auto from the year 1996.
Further states that during the life time of defendant No.1 father gifted
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O.S. No.1902/2013
the schedule property under a registered Gift Deed dated 26/06/2013
in favour of Y. Shreyas and Y. Yogisha and thereby they became
lawful owners in possession of the schedule property as such plaintiff
is not entitled to any share in the schedule property. In order to
support his oral testimony D.W. 1 got marked the documents at
Ex.D.1 to D.13.
13. During the course of cross-examination also the witness
has stated that soon after the marriage of the plaintiff in the year
1991 she has been residing in her matrimonial house. Further states
that himself and remaining family members did not attend the
marriage of plaintiff for the reasons that she did not agree to marry
as per the advice of the family members and when a suggestion was
put to the witness that they did not allow her to enter the schedule
house as well as funeral ceremony of her father, witness denied the
suggestion and volunteers that she left the parental house
voluntarily.
14. Further though D.W. 1 admits that himself and defendant
No.2 mother have signed Ex.D.6 Gift Deed, but when a question
was put to the witness that why they did not take the signature of the
plaintiff on Ex.D.6, he answered as they did not wish to take her
signature. Further denied a suggestion that since the plaintiff
married a person of intercaste and D.W. 1 himself took his father and
got executed the alleged Gift Deed in favour of minor children, he
denied as false. Further though D.W. 1 admits that his father was
alive at the time of filing the suit and due to pendency of the suit
Katha of the schedule property has not been transferred in favour of
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O.S. No.1902/2013
the donees, but denied the suggestion that the said Gift Deed has no
sanctity in the eye of law and plaintiff has got 1/3rd share in the
schedule property.
15. So also the defendants examined one of the attesting
witnesses as D.W.2 by name Govindaswamy, he filed an affidavit in
lieu of oral evidence stating that on 26/06/2013 the 1 st defendant
called him to meet at the office of Deepa Srinivas, accordingly he
went there and as per the instruction given by Sri. Sriram the
advocate prepared the Gift Deed and he signed thereon, thereafter
Smt. Lakshmamma also put her LTM and Sri. Yatish D.W. 1 also
signed the Gift Deed and then it came to be registered, as such he
can identify the signature of Sriram and another witness Raju who
are no more.
16. Further states that Ex.D.6 Gift Deed has been executed
by late Sriram in favour of grandchildren and also identified signature
of donor at Ex.D.6(a) and signature of defendant No.3 at Ex.D.6(b)
and signature of scribe at Ex.D.6(c) and signature of the witness also
identified as Ex.D.6(d) stating that another witness Raju is not alive.
17. During the course of cross-examination states that though
he knew defendant No.1 late Sriram since 20 years as friend, but he
is not one of the family members. Further state that he does not
know about the suit filed by the plaintiff against the defendants, but
after identifying the parties states that he has signed the Gift Deed
executed by Sriram as one of the witnesses. Further when a
suggestion was put to the witness that plaintiff Rajeshwari got
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O.S. No.1902/2013
married intercaste, he pleads ignorance, but denied the suggestion
that in order to deprive legitimate share of the plaintiff they have
created the Gift Deed in collusion with defendants. In such
circumstances, this court has to see that, in whose favour
preponderance of probability lies.
18. It is pertinent to note here that, on careful evaluation of oral
and documentary evidence on record, it is clear that, so far as in
respect of relationship between the plaintiff and defendants 1 to 3 is
concerned there is no dispute. It is also not in dispute that,
defendant No.1 Sriram being the father of plaintiff was working in
government press and retired from the service. Further though in the
plaint it is averred that she has also helped financially to purchase
the suit schedule property as such it is the joint family property,
thereby plaintiff and defendants constituted HUF and are in joint
possession and enjoyment of the schedule property, but it has been
seriously disputed by the defendants contending that soon after the
marriage of plaintiff she has been residing with her husband since
1991 as such there exists no joint family or joint family property as
alleged by the plaintiff.
19. It is settled that, though there can be a presumption
towards existence of joint family, but no such presumption can be
drawn to the effect that joint family possesses joint family property.
In such circumstances again burden lies on the plaintiff to prove the
same in accordance with law. Ex.P.1 katha extract reflects name of
late defendant No.1 Sriram as owner in possession of the schedule
property as on the date of the suit who reported to be dead on
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02/08/2013 as per Ex.P.2 death certificate. In this regard the
defendants would contend that it is the self acquired property of
defendant No.1 late Sriram. The evidence of D.W. 1 on this aspect
also been supported by the documentary evidence marked at Ex.D.1
to D.5 viz., grant certificate issued by the Government Central Press
dated 23/12/1978, mortgage deed dated 05/01/1979, Conveyance
Deed dated 04/06/1996, equitable mortgage by deposit of title deeds
by the defendant No.1 late Sriram in favour of Sri. Lakshminarayan
Co-operative Bank Ltd., and receipt issued by the said bank after
repayment of housing loan and corroborated with evidence of D.W.
2. Ex.D.13 is the notarized copy of driving license of defendant No.3
Yatish.R.
20. It is the case of the plaintiff that as she got married a
person of different caste, for that reason only the defendants denied
her legitimate share in the schedule property, but during the course
of cross-examination of P.W. 1 also she has categorically admitted
the fact that, her grandfather Chikkanna had no family property, her
father Sriram has purchased the schedule property and also
constructed a house by availing loan as such it is his self acquired
property. This being the fact the above said material admission itself
demolishes the claim of the plaintiff that the suit schedule property is
the joint family property and she has got legal share in the schedule
property.
21. On the other hand it is the specific contention of the
defendants that during the life time of defendant No.1 Sriram was
working in Government Press and initially he has purchased the
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schedule property having red tiled four row houses by availing loan
and there after he has built up a building in the schedule property by
availing further loan from the Lakshminarayana Co-operative Bank
Ltd., by depositing title deeds and thereafter he has repaid the same
as per Ex.D.5 referred supra, as such the suit schedule property is
the self acquired property of defendant No.1 late Sriram only and
plaintiff has no share in the property in dispute.
22. The defendants would further contend that during the life
time of defendant No.1 Sriram gifted the suit schedule property
under a registered Gift Deed dated 26/06/2013 as per Ex.D.6 in
favour of his grandchildren and thereby the children of defendant
No.3 became the absolute owners in possession of the schedule
property and plaintiff cannot seek partition in the self acquired
property of the father. Per contra, it is the case of the plaintiff that
when she demanded for partition no such document was being
executed by the defendant No.1, but after filing of suit only they got
executed Ex.D.6 alleged Gift Deed in favour of children of defendant
No.3 in collusion with each other. As against this statement, the
defendants got examined one of the attesting witnesses as D.W.2
before this court, who has categorically supported the case of
defendants by denying the claim of the plaintiff as alleged in the
plaint.
23. It is no doubt true that, if the plaintiff is able to show that
suit schedule property is the self acquired property of her father and
died intestate then as per the provisions of Section 8 of Hindu
Succession Act, 1956 she would have got legal share in the property
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in dispute. So now it is clear that, in view of aforesaid provisions, if
defendant No.1 father of the plaintiff would have died intestate then
the plaintiff could have claimed equal share in the suit schedule
property along with other defendants. But in the case on hand
admittedly the defendant No.1 father of the plaintiff died testate
during the pendency of the suit i.e. after executing Ex.D.6 registered
Gift Deed dated 26/06/2013 in respect of his self acquired property in
favour of his grandchildren who are none other than minor children of
defendant No.3 Sri. Yatish.R and he has already accepted the same
as guardian and also made efforts to get change khatha in their
names. It is evident from perusal of Ex.D.8 to 10 that due to
pendency of the suit the said requisition is still pending for
consideration. So though the plaintiff would contend that her father
has gifted the property in dispute during the pendency of the suit only
to deprive her legitimate share in the suit schedule property, but P.W.
1 admits that her grandfather Chikkanna had no family property and
suit schedule property is the self acquired property of her father who
died testate.
24. Further when the nature of acquisition of the schedule
property by the defendant No.1 late Sriram father of the plaintiff is
not in dispute, then it is settled that when the plaintiff did not have
pre-existing right in the property then during the lifetime of her father
plaintiff being the daughter cannot file such a suit claiming legal
share in the self acquired property of her father. This being the fact
even the provisions of Section 52 of the Transfer of Property Act
cannot be made applicable to the facts of the case on hand.
Consequently Ex.D.6 registered Gift Deed dated 26/06/2013
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executed by defendant No.1 late Sriram in favour of his
grandchildren as required under Section 123 of Transfer of Property
Act 1882 which remained unchallenged holds good. For these
reasons any amount of arguments addressed by the learned counsel
for plaintiff do not have weight and cannot be accepted. On the other
hand the arguments canvassed by the learned counsel for
defendants holds good. Hence, I answer Issue No.1 in the negative.
25. ISSUE No.2:- It is relevant to point out that, plaintiff has
filed the present suit for the relief of partition and separate
possession of her alleged share in the suit schedule property stating
that, suit schedule property is the joint family property. In this regard
the defendants would contend that suit of the plaintiff is bad for non
joinder of necessary parties. Accordingly this court has also framed
Issue No.2 on this aspect. It is not in dispute that as per Ex.D.6
registered Gift Deed dated 26/06/2013 the property in question
came to be gifted by late Sriram in favour of his grandchildren who
are none other than children of defendant No.3 and names of the
donees along with natural guardian/father came to be entered in
Ex.D.7 encumbrance certificate. But it appears that till today the
plaintiff has not taken necessary steps so as to implead the donees
as parties to the suit by appointing defendant No.3 Yatish.R as
natural guardian to represent the case on behalf of the minors, as
such decree of this court would affects interest of the minor donees
also. Therefore it can be said that suit of the plaintiff is also bad for
non joinder of necessary parties and on this ground also suit of the
plaintiff fails. Hence, I answer Issue No.2 is in the affirmative.
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26. ISSUE No.3:- With regard to payment of court fee by the
plaintiff on the relief is concern the defendants would contend that
the plaintiff is not in joint possession of the schedule property, but
she has paid court fee of Rs.200/- under Section 35(2) of the Act
which is insufficient and plaintiff has to pay court fee as required
under Section 35(1) of the KCF&SV Act. In this connection it has
been held by the Division Bench of our Hon'ble High Court in the
case of B.S. Malleshappa reported in ILR 2001 KAR 3988 that, in so
far as suits for partition are concern, payment of court fee has to be
determined with reference to the plaint averments alone and if the
suit is found to fall under Section 35(2) of the Act on the averments
of the plaint, court cannot at the instance of defendant or suo moto
convert the suit as one under Section 35(1) of the Act on the basis of
defendants pleadings or evidence and arguments at any point of
time much less while rendering judgment. So it is not in dispute that,
plaintiff has filed the present suit for the relief of partition claiming
that suit schedule property is the joint family property and herself
and defendants are in joint possession of the same, accordingly she
has paid maximum court fee of Rs.200/- as required under Section
35(2) of the Act. It is worth to note that, while dealing with Issue
No.1 referred supra this court disbelieved the claim of the plaintiff
regarding joint possession, as such though this court can hold that
case of the plaintiff does not fall under Section 35(2) of the Act and
plaintiff is not entitled to relief as sought for, but in view of the ratio
laid down by our Hon'ble High Court in the decision referred supra
this court cannot direct the plaintiff to pay court fee on market value
under Section 35(1) of the Act. For these reasons the arguments
addressed by the learned counsel for plaintiff on the point of payment
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of court fee as sufficient holds good. On the other hand contentions
of the defendants on this aspect cannot be accepted. Hence, I
answer Issue No.3 in the negative.
27. ISSUE No.4:- In view of my discussion made supra while
dealing with Issue No.1 and 2 and considering the relationship
between the parties, I am of the opinion that suit of the plaintiff is
liable to be dismissed without cost. Hence, I answer Issue No.4 is in
the negative.
28. Issue No.5 :- For the foregoing reasons, I proceed to pass
the following :
ORDER
The suit of the plaintiff is hereby dismissed. 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 30 th day of August 2021 ].
[ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ANNEXURE List of witness examined on behalf of Plaintiff:-
PW.1 Smt. Rajeswari List of documents exhibited on behalf of Plaintiff:-
Ex.P1 Khatha extract
Ex.P2 Death certificate of Sriram
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List of witness examined on behalf of Defendants:-
DW.1 Yathisha DW.2 Govinda Swamy
List of documents exhibited on behalf of Defendants:-
Ex.D1 Office order No.799/78-79 dated 23/12/1978 Ex.D2 KFC Form No.18 of Govt. of Karnataka, Mortgage Deed dated 24/03/1979 Ex.D3 KFAC Form No.35 Ex.D4 Deed of equitable mortgage by Deposit of title deeds dated 05/08/1999 Ex.D5 Receipt dated 25/03/2008 issued by Sri. Lakshminarayana Co-operative bank Ltd., Ex.D6 Registered Gift Deed dated 26/06/2013 Ex.D6(a) Signature of Sriram Ex.D6(b) Signature of 3rd defendant Ex.D6(c) Signature of advocate Deepa Srinivas Ex.D6(d) Signature of D.W. 2 Ex.D7 Encumbrance certificate Ex.D8 Endorsement dated 10/01/2014 issued by BBMP Ex.D9 Copy of objections dated 29/06/2013 and 03/07/2013 lodged by the plaintiff for change of Katha Ex.D10 Copy of endorsement dated 15/07/2013 issued by BBMP Ex.D11 Katha certificate dated 16/02/2017 in the name of Sriram Ex.D12 Katha extract Ex.D13 Driving license of 3rd defendant [ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 18 O.S. No.1902/2013 Operative portion of the judgment pronounced in open court vide separate judgment:-
ORDER The suit of the plaintiff is hereby dismissed.
No order as to cost. Draw decree accordingly.
[ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 19 O.S. No.1902/2013